MD’s Appeal in PHP, Medical Board Lawsuit Denied (Medscape News Article)

Screen Shot 2017-10-02 at 2.46.00 AM.pngSource:  http://www.medscape.com/viewarticle/885577

MD’s Appeal in PHP, Medical Board Lawsuit Denied

Pauline Anderson

September 19, 2017

An appeal by a physician whose lawsuit against the North Carolina Physician Health Program (NCPHP) and the North Carolina Medical Board (NCMB) was thrown out by a lower court last November has been denied. But Kernan Manion, MD, is pursuing an “alternate route to justice.”

Following the lower court ruling, Dr Manion, a practicing psychiatrist for some 30 years, appealed his case to the US Court of Appeals for the Fourth Circuit, a court second only to the US Supreme Court. His lawsuit claimed loss of significant and potential earnings as well as public humiliation, irreparable harm to his professional reputation, and severe emotional distress.

The court found that Dr Manion’s appeal exceeded the statute of limitations and therefore could not be heard.

“The court strictly enforces the time limits for filing petitions for rehearing and petitions for rehearing en banc in accordance with Local Rule 40(c). The petition in this case is denied as untimely. The court denies the motion for leave to file the petition for rehearing out of time,” the order reads.

Dr Manion told Medscape Medical News he wasn’t surprised by the decision and maintains that the medical board and NCPHP deliberately employed stall tactics to “eat up the statute of limitations window.

“The law is structured in such a way that automatic deference is given to these licensing bodies ― medical boards and PHPs ― both at the state level and the federal level, and precedent is so greatly in their favor,” said Dr Manion.

He has no plans to pursue his case in the US Supreme Court.

“The bottom line is that it can’t be won in court, anywhere really, when you get right down to it. That’s because these agencies claim sovereign immunity,” he said.

Sovereign Immunity for PHPs

However, Dr Manion is pursuing another route ― allegations of anticompetitive practices.

In light of a US Supreme Court ruling in favor of the Federal Trade Commission (FTC) against the North Carolina Dental Board, he has written to the FTC in the hope that a comprehensive investigation will be launched in his case so that “this harmful anticompetitive civil rights and due process-denying behavior will be halted.”

As previously reported by Medscape Medical News, Dr Manion’s case dates back to September 2009, when he worked as a civilian psychiatrist under contract with the Deployment Health Center at Naval Hospital Camp Lejeune, in Jacksonville, North Carolina. After he raised concerns with the Navy and a personnel contractor about what he believed was dangerously deficient care of active duty service members who had posttraumatic stress disorder, he was dismissed.

He brought a wrongful termination suit under the federal Whistleblower Protection Act alleging retaliatory discharge. He said he was later harassed and followed, actions that prompted him to meet with the local police chief about concerns for his personal safety.

Shortly thereafter, Dr Manion said he was notified by the NCMB that an anonymous police source had expressed concern about his mental health and that, on the basis of these concerns, the NCMB was opening an investigation.

On a recommendation from the NCMB investigator, Dr Manion obtained an independent comprehensive psychological evaluation, which concluded that he did not have any mental disorder or impairment and that there was no basis to take any action that would restrict his medical license.

Despite this, the NCMB ordered its own assessment of Dr Manion. This assessment, carried out by Warren Pendergast, MD, who was then NCPHP chief executive officer and medical director, as well as a staff social worker, concluded that Dr Manion was mentally ill.

In his initial lawsuit, Dr Manion, who had never previously been disciplined by any licensing body, said he was forced to deactivate his medical license after the NCMB acted upon “wrongful and flawed” diagnoses made through the NCPHP.

Dr Manion’s case was originally dismissed in federal district court because the complaint was deemed to be outside of the statute of limitations and because the court considers that as a state institution, the NCPHP has “sovereign immunity” and therefore cannot be sued.

The NCMB said in a statement issued to Medscape Medical News that it “was gratified, but not surprised by the United States Court of Appeals’ decision that affirmed the dismissal of Dr Manion’s lawsuit. That decision, like the decision of the United States District Court, was well-reasoned and well-supported by precedent.

“The North Carolina Physicians Health Program has done much great work to improve the lives of North Carolina physicians who suffer from mental illness and substance abuse. We look forward to continuing that important work with the Physicians Health Program in the future.”

Similarly, Joseph P. Jordan, PhD, clinical director of the NCPHP, said the organization “was pleased that the US Court of Appeals for the Fourth Circuit affirmed the United States District Court’s sound reasoning in its dismissal of Dr Manion’s lawsuit.”

“Alternate Route to Justice”

While his appeal was being considered, Dr Manion studied the decision in the case North Carolina State Board of Dental Examiners v. Federal Trade Commission, which was heard by the US Supreme Court.

In that case, the FTC filed a complaint against the North Carolina State Board of Dental Examiners alleging that the board was preventing entrepreneurs from offering tooth-whitening services in shopping mall kiosks and were claiming that these groups were practicing dentistry without a license.

The FTC argued that the dental examiners board’s actions constituted an unreasonable restraint of trade by stifling market competition under the Sherman Antitrust Act and that its actions constituted unfair restraint of competition under the Federal Trade Commission Act.

Lower courts determined that state immunity did not apply because the action taken by the board was not actively supervised by the state. The case went to the US Supreme Court, which, in 2015, sided with the FTC.

“The Supreme Court ruled that the dental board doesn’t even meet the criteria to be a state agency eligible to claim sovereign immunity,” said Dr Manion.

“That case was seminal in establishing the necessity of state occupational licensing boards having active government oversight, and it also found that [the] NC dental [board] committed antitrust violations.”

He sees parallels with his own case and that of other physicians across the country, many of whom have been “grievously harmed” by the actions of PHPs and related organizations, he claims.

These actions have jeopardized the health and well-being of patients “by wrongfully depriving them of these physicians’ competent and compassionate care,” he wrote in a letter to the FTC.

In the letter, Dr Manion laid out what he called “the strongest argument yet” for challenging “the pattern of severe and harmful anticompetitive activity” being undertaken by the NCMB, the NCPHP, and the North Carolina Medical Society.

“I tried to point out that this isn’t a disciplinary matter. This is an anticompetitive, anticonsumer matter,” said Dr Manion. “What PHPs have done around the country is coalesce around this false AA [Alcoholics Anonymous] model and are sending people to their preferred institutions out of state, and so they’re running a racket.”

Dr Manion hopes this strategy will offer him an “alternate route to justice.”

brief of his appeal is publicly available through PACER (Public Access to Court Electronic Records), a service provided by the Federal Judiciary.

Dr Jordan said the NCPHP sees “no merit in commenting upon Dr Manion’s effort to draw hypothetical parallels to a case involving other federal and state agencies.”

For its part, the NCMB said that “since we have yet to see or receive a complaint, it’s impossible to comment. And unless or until NCMB receives a complaint, we will not engage in an academic discussion of FTC v Dental Board.”

 


Those wishing to lodge complaints with the FTC should contact Alan Friedman at  AFRIEDMAN@ftc.gov.

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Monopolies, Self-Referral and Shell Games: The Need for Antitrust Investigation of Physician Health Programs and their “PHP-Approved” Assessment and Treatment Centers

Screen Shot 2015-03-06 at 4.38.05 AMThree shells and a pea–ASAM, FSPHP, and LMD.

“PHP-Approved” Assessment and Treatment Centers

On the above list  can be found the Medical Directors of a number of drug and alcohol rehabilitation facilities.

Talbott, Marworth, Hazelden, Promises, and another two-dozen or so “PHP-approved”  assessment and treatment centers are represented on this list.    State Physician Health Programs (PHPs) refer doctors to these facilities for evaluations.  PHPs are non-profit tax-exempt organizations.  They do not evaluate or treat patients.   If a physician is referred to a PHP for a suspected problem the assessment must be done at an outside facility which will invariably be linked to a name on the list of Like-Minded Docs.

What most people do not know, however, is that this is an exclusive arrangement.    Evaluations are constrained to one of these facilities.   It is mandated.   No bargaining.  No compromises. No choice.  In other words it is a coercion.

“What’s wrong with that?” one might ask.   These facilities are all recognized as top-drawer and first-class.  Perhaps they were hand-picked on objective criteria and the PHPs are just making sure that doctors get the best assessments money can buy– decision making by experts based on knowledge and experience–picking a winner so you don’t have to.

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No documented Policy for Selecting Treatment Centers.  Criteria for “PHP-Approval” Unknown by those “Approving”

What objective criteria are used in selecting “PHP-approved” assessment and treatment centers?    According to a  Performance Audit of the North Carolina Physicians Health Program done by State Auditor Beth A. Wood that’s a good question.

The North Carolina State  Audit specifically noted the predominant use of out-of-state treatment centers.   In addition to “creating an undue burden on” those being evaluated the audit states that:

 “Program procedures did not ensure that physicians received quality evaluations and treatment because the Program had no documented criteria for selecting treatment centers and did not adequately monitor them”

In fact the audit found no documented policy for selecting treatment centers.  The very organizations demanding documentation of policy for approval and charged with approving the treatment centers could not even give a comprehensible, plausible or even simple explanation for what any of  these things even mean.    

Screen Shot 2014-05-07 at 5.38.23 PMThe auditor also noted this lack of concrete criteria goes against both The Federation of State Physician Health Programs (FSPHP) and the Federation of State Medical Boards (FSMB) requirements that physician health programs use established guidelines to select evaluation providers and treatment centers.

In its “Physician Health Program Guidelines,” the FSPHP established: • “Characteristics of Evaluation Providers Appropriate for PHP referrals,” and • “Characteristics of Treatment Programs which are appropriate for PHP referrals.”  And in its “Policy on Physician Impairment,” the FSMB states : • “PHPs should employ FSPHP Guidelines in selecting the providers/facilities to provide treatment of physicians with addictive and/or psychiatric illness.”

When the NC PHP was asked to define these characteristics they explained that they learned  of “new treatment centers through professional networks and other informal sources” and used the “treatment centers’ reputation as a basis for establishing a referral relationship.”      Staff credentials, quality of care, treatment methods and modalities, patient choice, follow-up data, outcomes and other objective information apparently took a back-seat to what appears to be ill-defined and subjective word-on-the-street.   Screen Shot 2014-03-15 at 7.33.14 PM

This  “failure to use FSPHP  recommended criteria to select treatment centers,” the Audit concluded “could cause the Program to enter into referral arrangements with service providers that do not meet quality standards”

Ironically the  NC PHP failed to follow guidelines they themselves introduced and demanded be followed.  They could produce no documentary evidence these criteria even exist or even provide plausible criteria.   “Professional networks”, “reputation” and other informal sources are fine for some choices.  That’s how I picked out my first skateboard.

Resources such as these can play in important role in choosing a shirt, buying new sneakers or even purchasing a car but they do not constitute selection criteria for an assessment in which the consequences and recommendations made for the person being assessed are significant, potentially life-altering and possibly permanent!

And to top it all off the  Medical Director of the North Carolina PHP,  Dr. Warren Pendergast,  was the  President of the national organization for state PHPs, the Federation of State Physician Health Programs (FSPHP) at the time of the audit!

PHPs are not clinical providers but monitoring agencies.  They meet with, assess and refer doctors for evaluations and then monitor doctors through drug and alcohol testing and periodic reports of supervisors, co-workers and others.        As such the PHP is tasked with just two jobs-referring doctors for evaluation and then monitoring them after they have been evaluated in a contractual agreement.  The fact that the state PHP 0r FSPHP could not produce the facts and reasoning  behind the mechanics and mentality of the very reason for which they exist is incomprehensible.  It is, in fact, ludicrous beyond belief.    The President of the FSPHP being unable to define the selection criteria for approved and mandated facilities is like Anthony Bourdain being unable to explain the ingredients of an omelette.

To summarize, doctors in North Carolina were being forced by the PHP  to have evaluations at “PHP-approved” assessment and treatment centers but the PHP was unable to explain anything substantive in defining any of it.  Why?  Because no qualitative objective selection criteria exist.

“Reputation” obfuscates and confuses.  It does nothing to support or justify.    It is like answering “numbers” to the question “what is 9 x 9?”

And this is especially concerning when it is realized that these evaluations are limited to facilities and people  tied financially and ideologically to the groups and individuals who are mandating the referral.

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All of the “PHP-approved” assessment centers are represented by medical directors who belong to “Like-minded docs”-an admittedly  12-step steeped conservative fundamentalist faction of the American Society of Addiction Medicine (ASAM).   And all of these facilities are private-pay rehabilitation centers that recommend doctors be treated three-times longer than the rest of the population–another medical “urban legend” that should have been debunked from the get-go.

Limiting assessment and recommendations to this close-knit  group of evaluators is a monopoly of force.  It is unethical if not criminal. And the fact that these are all heavily indoctrinated 12-step facilities also makes it a violation of the Establishment Clause of the 1st Amendment.  Moreover,  many of the medical directors at these facilities are also graduates of the same program in “recovery.”

And if it is looked at from this vantage point it is a system of  self-referral.  Self-referral harms patients and society as a whole.

It is a shell game that removes all choice and removes freedom, objectivity, fundamental fairness, autonomy and choice.


Antitrust law

American antitrust law was “designed to be a comprehensive charter of economic liberty aimed at preserving  free and unfettered competition as the mule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions” (29, p 4).

In this case it is a safe assumption that all doctors desire the “best possible” care and this requires objective and unbiased assessment and treatment when requested by Physician Health Programs.

Congress and the Supreme Court have made clear is that the “best” services are selected by  consumers when their choice is made in an open market free of restraints. Eventually the marketplace will determine the best medical care, not judges, juries, or even doctors (30, p 904).

PHPs are clearly bypassing patient choice.  In 2011 the American Society of Addiction Medicine (ASAM) issued a Public Policy Statement on coordination between PHPs, regulatory agencies, and treatment providers recommending  that  only “PHP approved” treatment centers be used in the assessment and treatment of doctors.  The state Medical Boards have accepted and adopted this policy and denying doctors requests for assessments at non “PHP-approved” facilities. Many have been sanctioned for resisting, protesting or even questioning this unlawful monopoly.  It is prohibition of patient choice.

The N.C. PHP is representative of most PHPs. This is not an exception but a rule.      PHPs are mandating assessments only at facilities they approve but cannot define or explain how these facilities are “approved”  Yet The ideological and financial conflicts of interest between the PHPs and their referral centers are self-evident.  Connect the dots.  

State medical boards are enforcing this mandate under threat of loss of licensure.   Your money or your life.

Federal Trade Commission

For these reasons an investigation by the Federal Trade Commission and Office of the Inspector General of the DHHS is necessary.  For those who have been abused by this unholy alliance I urge you to look at this list to see if the medical director of the facility at which you were evaluated is represented.

If so note it here.   My guess is almost everyone will find this correlation and representation in numbers would necessitate both state and Federal investigation.  If this were done it  could quickly transform a system of institutional injustice into one that allows choice.

Applying Antitrust law to the linkage of  PHPs  and “PHP approved” assessment and treatment centers is consistent with free-market law and theory.   Demanding accountability would provide a powerful deterrent to this type of unfettered abuse.

1. Northern Pacific Railway v U.S., 356 US I (1958).

.2.  Koefoot v American College of Surgeons. 652 F Supp 882 (ND Ill 1986).

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