Massachusetts Governor Charlie Baker Moves to Control Professional Boards

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Baker moves to control professional boards

By Christian M. Wade Statehouse Reporter May 11, 2016

BOSTON — Dozens of independent boards that regulate doctors, barbers, electrical workers and an array of other professionals could soon be pulled under the state’s umbrella — a move that trade groups complain smacks of government overreach.

Lawmakers are considering a bill filed by Gov. Charlie Baker to limit the independence of licensing boards and give the state the power to “review and veto” any action deemed to stifle competition.

The proposal responds to a U.S. Supreme Court opinion last year that boards controlled by members of the profession they regulate are not immune from antitrust lawsuits.

In that case, the court ruled that the state dental board in North Carolina had no protection from antitrust claims when it issued cease-and-desist orders to companies offering teeth-whitening services.

Baker administration officials say the ruling leaves licensing boards in Massachusetts vulnerable.

Even legal actions may be challenged, Mike Kaneb, Baker’s deputy legal counsel, told a legislative committee on Tuesday.

“Individual board members can be sued,” he added.
But exerting authority over the boards is also raising concerns.

Frank Callahan, president of the Massachusetts Building Trades Council, which represents about 75,000 skilled construction workers, said the state needs to address the issue but he’s concerned the governor’s proposal would give the state too much power over the boards.

Boards that oversee electricians and other skilled trades already have state oversight, to varying degrees, he noted, as well as lawyers to ensure their decisions comply with federal anti-trust laws.

 

Baker moves to control professional boards | News | eagletribune.com 13/5/16 11:14 PM

Several representatives of trade groups opposed the proposal at the legislative hearing. Robert Butler, business manager for Sheet Metal Workers Local 17, called it a “solution to a nonexistent problem.”

“This bill would allow the state to make decisions without any public input or recourse,” he said.

Baker, a Republican, has promised to make the state more business- friendly, in part by cutting through red tape. In a statement, he said licensing rules and limits on professionals “have the effect of restraining trade and commerce” and are bad for business.

Donna Kelly-Williams, president of the Massachusetts Nurse’s Association, criticized his plan in comments to lawmakers.

“With this directive, it seems as though the governor would like to turn the Board of Registered Nurses and other similar boards into nothing more than vehicles to spur economic competition at the expense of the public health and safety,” she said.

Baker administration officials said that’s not the intent.

“The only motivation for the governor’s bill is to respond to the changes in law,” Kaneb said Tuesday.

Since the Supreme Court ruling, legislation to exert more control over independent licensing boards has been introduced in least six other states, according to the National Conference on State Legislatures.

In Massachusetts, the Division of Professional Licensure oversees 45 boards, which regulate more than 370,000 individuals and businesses in some 50 trades and professions.

Most board members are volunteers appointed the governor and operate independently from the state.

Baker signed an executive order last year directing the licensing division and other agencies to conduct monthly reviews of recent board decisions to determine if any violate federal laws.

Martin W. Healy, chief counsel for the Massachusetts Bar Association, said the state must act quickly to comply with the Supreme Court ruling to ensure that its boards don’t face legal challenges.

 

Baker moves to control professional boards | News | eagletribune.com 13/5/16 11:14 PM

“This is a major issue for the state that needs to be addressed quickly,” he said. “You would have a very difficult time attracting talented people to these positions if they could held personally liable for the board’s decisions.”

Christian Wade covers the Massachusetts Statehouse for the North of Boston Media Group’s newspapers and websites.

MA – State Oversight of Professional Licensing Boards – annot

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Physician Health Programs (PHPs) are not above the law; They just think they are

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Physician Health Programs are not Above the Law

Are Physician Health Programs (PHPs) above the law?  

 Unable to get law enforcement to take cognizance of reported abuse, many doctors I have spoken with believe that the actors involved are impervious to criminal liability.  Complaints of fabrication and fraud involving PHPs and their affiliates to the police, the Attorney General and other law enforcement agencies have been given no credence,  tabled or dismissed with little investigation.

Believing these agencies are deliberately ignoring credible complaints and the documentary evidence placed before them, some have concluded that state PHPs have been given the power to commit crimes with impunity and immunity.

PHPs are not above the law.  It is by removing themselves from and blocking the usual routes of accountability and absolute operational control of the testing, assessment and treatment process that has enabled misconduct to remain hidden, unrecognized or excused. The crimes exist but they remain undetected, unnoticed and unpunished.

Removing Accountability

The essence of accountability is answerability which means having the obligation to answer questions regarding decisions and actions.   This requires the transmission of information when it is requested.  The accountable actor provides the information to the overseeing actors in a transparent manner.

Accountability also requires explanation and justification for the information provided. What was done and why? Standards, rules, regulations, codes, laws and other benchmarks are then applied by the overseeing actor to determine if the information provided was appropriate or inappropriate.

The availability and application of sanctions for illegal or inappropriate actions uncovered through answerability is also a necessary component of accountability. This is necessary to impose restraint on authority and power.  Lack of enforcement of sanctions contribute to the creation of a culture of impunity.

The usual mechanisms that exist to impose restraint and create incentives for appropriate behavior and actions are absent. No outside oversight exists to limit their power or subject them to a set of rules.  No regulation exists to curb abuse.

A Culture of Impunity

The authority accorded PHPs and the power they exercise exist in a culture of impunity.

The key findings of the2014  North Carolina PHP Audit are below:.

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No indications of abuse were found,  a point brandished by the PHP as redeeming  and proving no abuse was occurring. In actual fact it is an ominous finding that also relates to their apparent ability to violate the law. 

The audit found no indications of abuse but that abuse could occur and not be detected because of an absence of due process for the complainant, excessive control of the complaint process by the PHP and absence of oversight by either the medical board or medical society.  What this means is that a doctor with no power is making a complaint against an unsupervised agency with enough power to influence the investigation of a complaint against itself.  The reason no indications of abuse were found is because the system is specifically designed to hide abuse.  That is the intent.

Absence of transparency, regulation and oversight coupled with control of information enables both censorship and doctoring of records.   Strict Confidentiality is enforced by HIPAA, peer review protection, and drug and alcohol confidentiality law.  

Quest Diagnostics

PHPs are able to suppress and conceal criminal activity but they are also able to  manufacture information designed to hide misconduct.  

The North Carolina Audit found no objective selection criteria for the out of state assessment and treatment centers because none exist other than ideological mindset and monetary gain.  The same facilities are used by most state PHPS.  They are, in fact, mandated as they are the “PHP-preferred” facilities.  

In 2011 The American Society of Addiction Medicine (ASAM) issued a public policy statement on coordination between PHPs, regulatory agencies, and treatment providers. recommending only “PHP-approved” treatment centers be used and the statement specifically excludes ‘non-PHP” recognized facilities.  

What the Audit diid not discover is the medical directors of all of the “PHP-approved” facilities can all be seen on this list of Like-Minded Docs.  It is a rigged game    Every aspect of drug-testing, assessment and treatment is kept hidden and secret and within control of the PHP.

It is a rigged game in which they have removed themselves from all aspects of accountability.  They have, in effect, manufactured a culture of impunity at our expense.

 “PHP-Approved Attorneys”

My survey has revealed an additional factor stacking the deck and removing accountability from PHPs.  The attorneys ostensibly representing doctors are also part of the racket.

A doctor referred to a PHP will be given a list of 3 or 4 attorneys by the PHP who are “experienced in working with the medical board.” What they do not tell you is that theses attorneys are hand-picked or cultivated to abide by the rules dictated by the PHP.

They will not “bite the hand that feeds” and any procedural, ethical or criminal misconduct by the PHP will not be addressed.     Laboratory fraud, false diagnoses, and Establishment Clause violations are off limits.

The primary purpose of these attorneys is to enforce payment for laboratory fees and demand compliance with whatever the PHP demands.  Their primary purpose is to keep doctors powerless under the PHP and prevent misconduct, including crimes, from being discovered.

The attorney pool is currently over-served by those serving two clients and most of those outside simply do not know enough about the “physician health”  legal issues related to doctors.  When they appear before the board it is as if they are a deer in the headlights.  It is a new terrain where all due process and familiar protocol have been removed.  Of course this was all facilitated by changes in administrative and medical practice acts orchestrated by the physician health movement “in the interests of protecting the public.  This must be recognized and addressed.

Skilled negotiators and lawyers with administrative law experience would do well to consider representation for doctors before medical boards regarding “physician health” matters.

It is not that esoteric, complicated or difficult.   As with the rest of the population, most have just not critically analyzed the issues behind the curtain.

Crooked Board Attorneys

Perhaps the lowest bottom feeders  playing a role in this culture of impunity are those whose job is to ostensibly ensure that due process and fundamental fairness are followed.    It is becoming quite clear that some of the state employed attorneys within medical boards control the flow of information by picking and choosing what is before the board for consideration.    Many of these attorneys go on to represent doctors in cases before the board.   If these attorneys acted as zealous advocates on behalf of their clients they would never get a referral again and because of this the system is plugged with an attorney pool unwilling to win but simply compromise.

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How should scientists respond to science denialism?? John Cook explains @ConversationEDUen

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CauseScience

Inoculating against science denial

John Cook, The University of Queensland

Science denial has real, societal consequences. Denial of the link between HIV and AIDS led to more than 330,000 premature deaths in South Africa. Denial of the link between smoking and cancer has caused millions of premature deaths. Thanks to vaccination denial, preventable diseases are making a comeback.

Denial is not something we can ignore or, well, deny. So what does scientific research say is the most effective response? Common wisdom says that communicating more science should be the solution. But a growing body of evidence indicates that this approach can actually backfire, reinforcing people’s prior beliefs.

When you present evidence that threatens a person’s worldview, it can actually strengthen their beliefs. This is called the “worldview backfire effect”. One of the first scientific experiments that observed this effect dates back to 1975.

A psychologist from the…

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Urgent Action Needed on Proposed Legislation in North Carolina–Removing Due Process from Doctors a Harbinger of Wide-Scale Political Abuse of Psychiatry

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I received the email below from Dr. Jesse Cavenar, Jr. regarding legislative changes that would severely infringe on the rights of doctors as licensees of the North Carolina Medical Board and subject them to distinctly non-impartial diagnostic psychiatric evaluations and remove all possibility of due process.  These developments could possibly herald the wide-scale abuse of psychiatric evaluation and treatment by two governmental agencies acting in collusion with utterly no oversight or accountability.  Namely the Federation of State Physician Health Programs (FSPHP) and the Federation of State Medical Boards (FSMB).  As a state Representative who is also a physician told me this morning –“this bill is representative of a prevailing attitude that does not realize what is really happening.”


Bill H453 can be seen here:  H543v2 – 04152015[10]

NC Audit can be seen here:  http://www.ncauditor.net/EPSWeb/Reports/Performance/PER-2013-8141.pdf

This is the bill, entitled H453  that is before the NC legislature this session.  My reading of the bill is that the bill is a disaster.  It seems to be an attempt by the lobbyists and lawyers to remove many existing features of the present law. In particular, I would direct your attention to two features:

1) It appears that all mention of due process has been removed from the law. The NC State Auditor found that the NCPHP had not afforded due process as required by law, so one simply changes the law to remove all mention of due process.

2) There is a clause inserted in the law to immunize the NCPHP against civil liability for the performance of the NCPHP function. In other words, the state statute declares that one cannot bring legal action against the NCPHP because they are immune. This is absurd. These people should be no more immune than any other doctor in the state of North Carolina.

In addition, the proposed statute seems to attempt to haze out whether the NCPHP record is or is not a medical record. As you will see, one would be entitled to a copy of an ³Assessment² but it would appear not the entire medical record. This is contrary to the NC Medical Board position paper on medical records. I would urge everyone to immediately contact his or her appropriate Senator and Representative to register opposition to this bill as written, and to urge that an expert panel of disinterested physicians and attorneys be appointed to write a new bill that would be appropriate.

A colleague of mine who is a medical ethicist has reviewed this and had the following to say: ³Well, well!  I think the most interesting thing here is that someone has tried to get the NC Legislature to immunize the existing system against any countering action.  This, it seems to me, is tacit admission of culpability.²  Well stated, I would say.

                 Jesse

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