Physician health programs: ‘Diagnosing for dollars’?

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Source:  Clinical Psychiatry News

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As medicine struggles with rising rates of physician burnout, dissatisfaction, depression, and suicide, one solution comes in the form of Physician Health Programs, or PHPs. These organizations were originally started by volunteer physicians, often doctors in recovery, and funded by medical societies, as a way of providing help while maintaining confidentiality. Now, they are run by independent corporations, by medical societies in some states, and sometimes by hospitals or health systems. The services they offer vary by PHP, and they may have relationships with state licensing boards. While they can provide a gateway to help for a troubled doctor, there has also been concern about the services that are being provided.

stethoscope with lots of money

Physicians find their way to PHPs in a number of ways. A doctor whose behavior suggests impairment can be referred to the PHP by his employer, or by a licensing board, following a complaint. In these instances, participation often is a condition of employment or of continued licensure, and the PHP serves as an agent of the hospital or the state. Doctors may also be referred to PHPs for monitoring if they ascribed to having a diagnosis of psychiatric illness or substance abuse, either now or in the past, and are with or without obvious impairment. Finally, PHPs serve as a portal to treatment for physicians who self-identify and self-refer in an effort to get help. Their use is encouraged in an effort to prevent bad outcomes from mental health conditions, stress, and substance abuse, in those who are suffering in ways that would not otherwise call attention to their plights. In these situations, the PHP may serve as the agent of the patient or client, but there may remain dual-agency issues if the physician says something that leads the PHP to be concerned about the doctor’s fitness. Compliance with PHP recommendations, including drug screening, might be mandated, and physicians may resent these requirements.Louise Andrew, MD, JD, served as the liaison from the American College of Emergency Physicians (ACEP) to the the Federation of State Medical Boards from 2006 to 2014. In an online forum called Collective Wisdom, Andrew talked about the benefits of Physician Health Programs as entities that are helpful to stuggling doctors and urged her colleagues to use them as a safe alternative to suffering in silence.

More recently, Dr. Andrew has become concerned that PHPs may have taken on the role of what is more akin to “diagnosing for dollars.” In her May, 2016 column in Emergency Physician’s Monthly, Andrew noted, “A decade later, and my convictions have changed dramatically. Horror stories that colleagues related to me while I chaired ACEP’s Personal and Professional WellBeing Committee cannot all be isolated events. For example, physicians who self-referred to the PHP for management of stress and depression were reportedly railroaded into incredibly expensive and inconvenient out-of-state drug and alcohol treatment programs, even when there was no coexisting drug or alcohol problem.”

Dr. Andrew is not the only one voicing concerns about PHPs. In “Physician Health Programs: More harm than good?” (Medscape, Aug. 19, 2015), Pauline Anderson wrote about a several problems that have surfaced. In North Carolina, the state audited the PHPs after complaints that they were mandating physicians to lengthy and expensive inpatient programs. The complaints asserted that the physicians had no recourse and were not able to see their records. “The state auditor’s report found no abuse by North Carolina’s PHP. However, there was a caveat – the report determined that abuse could occur and potentially go undetected.

“It also found that the North Carolina PHP created the appearance of conflicts of interest by allowing the centers to provide both patient evaluation and treatments and that procedures did not ensure that physicians receive quality evaluations and treatment because the PHP had no documented criteria for selecting treatment centers and did not adequately monitor them.”

Finally, in a Florida Fox4News story, “Are FL doctors and nurses being sent to rehab unnecessarily? Accusations: Overdiagnosing; overcharging” (Nov. 16, 2017), reporters Katie Lagrone and Matthew Apthorp wrote about financial incentives for evaluators to refer doctors to inpatient substance abuse facilities.

Dr. Dinah Miller is coauthor with Annette Hanson, MD, of “Committed: The Battle Over Involuntary Psychiatric Care” (Baltimore: Johns Hopkins University Press, 2016)

Dr. Dinah Miller

“Medical professionals who enter the programs must pay for all treatment out-of-pocket, which could add up to thousands of dollars each year. There are also no standards on how much treatment can cost.”The American Psychiatric Association has made it a priority to address physician burnout and mental health. Richard F. Summers, MD, APA Trustee-at-Large noted: “State PHPs are an essential resource for physicians, but there is a tremendous diversity in quality and approach. It is critical that these programs include attention to mental health problems as well as addiction, and that they support individual physicians’ treatment and journey toward well-being. They need to be accessible, private, and high quality, and they should be staffed by excellent psychiatrists and other mental health professionals.”

PHPs provide a much-needed and wanted service. But if the goal is to provide mental health and substance abuse services to physicians who are struggling – to prevent physicians from burning out, leaving medicine, and dying of suicide – then any whiff of corruption and any fear of professional repercussions become a reason not to use these services. If they are to be helpful, physicians must feel safe using them.

Dr. Miller is coauthor with Annette Hanson, MD, of “Committed: The Battle Over Involuntary Psychiatric Care” (Baltimore: Johns Hopkins University Press, 2016).

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A Rare and Huge Victory Against the Deep State in MA–Bharani Padmanabhan, MD, PhD-Medical Corruption Columnist

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Please donate to this effort below.  Your contribution can and will make a difference.  https://www.gofundme.com/PHPReform

 

New Public Records Law revealing MA medical board counsel concealed criminal fraud for years; Major misrepresentations made by defense counsel to court. Falsehoods with no factual basis.

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On June 3, 2016  Governor  Baker signed House Bill 4333 imposing greater accountability on state agencies  when responding to public records requests.  This includes shorter time frames to respond to requests (10-days for most), the provision of complete and legible records and appointing a Primary Records Access Officer to handle such requests.  The new Public Records Law also subjects agencies to sanctions for failure to comply.with the new law.
On  January 9, 2017  I submitted a Public Records Request  through the Executive Office of Health and Human Services (EOHHS) Website  for a dozen or so documents that had been submitted for board hearings but never directly addressed and containing textual content with evidence that was never weighed.   Moreover, many of the documents provided direct evidence of crimes (no other is evidence needed).
All of these documents were provided  to Board counsel Deb Stoller.
Today, Sunday March 12, is the beginning of daylight savings time. It also marks the beginning of  Sunshine Week, a national celebration started in  Florida 15  years ago to promote open government, transparency and accountability.   Transparency is about shedding light.  Transparency can bring accountability, and, often, meaningful reform.
Screen Shot 2017-03-11 at 3.29.35 PMIn response to a request for documents submitted for specific board hearings the board has not provided a single satisfactory response.   They have not been able to  provide a single document that is chronologically consistent with it being considered at the board  hearing for which it was submitted.   I had no expectations they would and this was the precise point of my record request.  These are documents that should exist but do not exist. The vault is empty.    None of the documents are in the records because they were suppressed on arrival and never got to the full board.  They never considered any of it.  The records do not exist.
Screen Shot 2017-03-12 at 5.39.29 PM It has now been over two months and this shows how transparency is not just about shedding light on what is there but what is not there–transparency can also illuminate contrivances and lies.  If these documents existed then they would have provided them long ago and this is all coming to light as a result of Public Records Division staff enforcing new  Public Records Law and they should be applauded for their integrity, honesty and genuine concern.    In a culture of deference, impunity and apathy where giving allowances are the rule rather than the exception this agency deserves an A+ amidst a sea of D’s and F’s.
 
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The majority of documents provided have illegible or missing dates.   Undated documents have no value.   Analyzing any dataset requires  that  data-points be annotated with reliable timestamps that signify when the textual content was created and this is especially important with records that accumulate over time. Documents with message content passed on to others must be annotated with reliable timestamps that signify when the textual content was received and acknowledged by the receiver.
The  Board Records obtained June 2016  provided  pretty clear evidence that the documents were concealed .  The only documents with a decipherable date stamp included a  December 15, 2011 letter requesting an attached  “litigation packet” be provided to the board for consideration at a December 21, 2011 hearing,  The documents are all date stamped  January 17, 2012.  (nearly one month after the hearing).    AAG  Bertram dismissed the timestamp and claimed it did not reflect when it was entered into evidence but when it was scanned into the computerized records.  In truth they should be one and the same and if that is the case then where is the timestamp reflecting when it was  entered into evidence?    Bertram  claimed this occurs  after hearings not before.  It all defies common sense.
The January 9, 2017 request specifically requested a copy of the documents from the “administrative record” compiled for the December 21, 2011  hearing but in response they returned the same documents provided December 15, 2011 but date stamped January 17, 2012  –nearly a month after the hearing.

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The simple and straightforward request was made again and an appeal was filed requesting provision of the documents requested. Thankfully the  Public Records Division staff attorneys have not accepted  the logical fallacies and half-truths presented to deflect and dismiss a simple and straightforward request for documents. Supervisor of Records Rebecca Murray Ordered the  board provide a revised response and we obtained every document related to the December 2011 “litigation packet” that exists and all of the materials that Bertram claims were retrieved from storage.  All of it can be seen here:
It is a dataset with an N of 1. The only document retrieved from storage is the original December 15, 2011 letter requesting the “litigation packet” be submitted for consideration at the December 21, 2011 hearing and all of it is date-stamped  January 17, 2012 and this precludes the existence of any earlier copies.   No other copies exist!
 Take a look at the letter and all of the pages of the “litigation packet” as they are pristine.  No notations, initials, dates, scribbles or signatures.   So how were these documents “considered” at the December 21, 2011 board hearing?  At almost 50-pages did they all huddle around it or pass it around the room.
The simple fact is they were never considered by the board.  They were sitting in a drawer for a month (my guess under a bunch of moon pies and diet cokes) and then put in the system well after the hearing so no one would notice.
 In his cover letter RAO Dolan reiterates the ridiculous claim that  the date-stamp reflects when it was “bulk-scanned ” into the electronic archives and not when it was “presented to the board.”   What would be the purpose of putting timestamps on documents that have no meaning?   This is a bald faced lie and I want to call him on it.   Evidence presented for any hearing must be submitted and entered into the record before not after hearings. This is common sense but to put this to rest we can turn to the  2012  Manual for Conducting Administrative Adjudicatory Proceedings  which outlines how administrative proceedings are conducted  by professional boards.  It was also edited by AAG Quinan, the Managing Attorney of the Administrative Law, Government Bureau–the Department AAG Bertram is part of    The  “administrative record” is listed as one of the “basic principles” in chapter 1  and is second only to  “due process” M.G.L. c. 30A, § 11(8).    An administrative record must be compiled for every board hearing and indexed.   “The record is everything that is properly before the decision maker in rendering the decision.”
The manual makes it crystal clear that evidence must be compiled before hearings and anything not compiled before the hearing must be excluded!  Bertram also claimed that  “board staff”  reviewed its records and minutes and retrieved  from “off-site storage” the “materials”   that were before the Board in December 2011.”

1 The Board’s staff has reviewed its records and confirmed this to be the case.

2 To be sure, and to put this matter to rest for the Court once and for all, the Board has retrieved from off­site storage those materials before the Board in December 2011. The documents that Dr. Langan claims were “suppressed” are in fact there—and this should not be surprising given the Board’s many orders since that time, all of which have disclaimed any reliance on the July 2011 PEth test.

3 The Board’s staff has confirmed this by reviewing its minutes and confirmed this to be the case.


It has now been confirmed that the only “materials”  that exist are the documents themselves  and they are dated January 17, 2012 and this does not confirm but refutes Bertram’s claims.   In sum not a single data-point exists to support this document was before the board on December 21, 2011.   Moreover, the document provides direct evidence of crimes (no other evidence is needed).

I have requested that Bertram either provide documentation to support his footnoted claims or reveal to the court the misrepresentations.   As a government attorney he is obligated to reveal falsehood and perjury and I requested he do so.  But instead of revealing  no materials from off-site exist to support his claims he notified the court of his misrepresentation that by “offsite storage” he meant “basement”

He mentioned nothing about these major misrepresentations and dug his heels in deeper claiming that board staff did indeed   “retrieve and review those documents” and claims his “footnote representation remains uncompromised.”    His footnote representations no longer remain uncompromised.  At this point I’d say they are pretty compromised–the false contrivances are in actual fact shattered.

The off-point Bertram letter can be seen here:   ( Attachment B (6) )   “Uncompromised is a poor choice of words Mr. Bertram as “shattered” or “demolished” would be more appropriate.
Bertram claimed agency level investigation confirmed documents were before the board in December of 2011

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Reviewing Records and Minutes

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Retrieving Materials

The Reality

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These documents provide direct evidence of crimes (no other evidence is needed).

Bertram was also asked to address the “chain-of-custody error” misrepresentation.  The documents show intentional fraud.  This is no error.    The laboratory fraud seen here is similar to that of Annie Dookhan but the documents here show both of the parties involved; a state physician health program and one of the labs contracted by state physician health programs nationwide.   Precise and detailed documentation of forensic fraud was provided to a state attorney in 2011 but she concealed the documents. . I pointed this out to Bertram from the beginning and I also told him of all of the suicides that have occurred because of bogus tests just like this one.  He did not seem to care.   I notified him of another one here in Massachusetts;  a good doctor and a good person who was also subject to falsified testing and injustice involving the same actors.   I am hopeful that the transparency being provided here will lead to accountability.   Both of these attorneys need to be held accountable.

An attorney must have a factual basis for alluding to, offering or relying on evidence and that factual basis may not be wishful thinking.  There are two requirements for a factual basis — an attorney’s subjective belief and objective evidence to support that belief.

It is now established that no objective evidence exists.  Not a shred of evidence exists.

Not a single date-point with  a reliable timestamp is chronologically consistent with these documents being before the board.


Please donate to my Gofundme-  At this point I really need funding to mount a quick and effective response to these new developments.   Exposing these crooked attorneys would be a great step forward for all of PHP reform.  Please help me out.

https://www.gofundme.com/PHPReform

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How Public Records Law can force transparency and hopefully bring accountability. Root out the rats!

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This Sunday marks the beginning of  Sunshine Week, a national celebration started in  Florida 15  years ago to promote open government. Transparency is about shedding light.  Transparency brings accountability, and, often, meaningful reform.

On June 3, 2016 Governor Charlie Baker signed into law the first update to Massachusetts public records law since 1973.  House Bill 4333  imposes shorter time frames for agencies to respond to records requests.  Most agencies need to respond within 10-days but can be granted a 20-day extension provided they show good cause for it.  Those who believe a state agency  has violated its legal obligations can petition the Supervisor of Records and agencies are also subject to punitive damages for failure to comply with the requirements.

Massachusetts has historically ranked at the bottom of the barrel in terms of giving its citizens  access to public records.  A 2015 assessment by  a non-profit investigative news organization gave the state a grade of F and ranked it below Mississippi and Arkansas in the category of public records access (40th in the nation).

Under the new law documents previously provided with missing or illegible date-stamps were requested from the board.  The sole reason for this request was to  determine if these documents were submitted as evidence and forwarded to the tribunal for consideration at the hearing for which they were considered to be heard a, heretofore impossible task due to toothless public records law in Massachusetts.  This matter should be a given.  If I mail a letter I do not question or fret over whether or not it was received by the person I sent it to and  the same dynamic applies here.  It is a given assumption  that documents submitted as evidence for at hearing reaches those individuals who are supposed to hear that evidence at that hearing.    That is how the system is supposed to work and, like a lost letter, exceptions should be rare as there are safeguards in place to assure it.   Here we have a group that has removed those safeguards.  The Physician Health and Compliance Unit (PHCU) is part of the medical board but independent of the medical board and exist as a self-contained unit with no oversight, auditing of or accountability.   The PHCU was created to serve as a liaison between the state PHP and medical board to handle board cases involving doctors being monitored under PHP contract.  Ostensibly they are an objective go-between and these individuals are assumed to seek, follow and tell the truth.  Their job is to review the evidence and let the chips fall where they may.  They do not.  Given the power to act as their own hearing officers and present cases to the board they hold all the chips.  All evidence supporting any doctors case before the board in a physician health case must be submitted to the PHCU, not directly to the board and if that evidence contradicts the PHP then it never ever gets to the board.  This has been suspected for years but when these documents are later requested to see if they had been reviewed board has been able to  delay, withhold and censor them.  There has previously been no way to determine these matters and they could get away with whatever they wanted by gaming the system under toothless laws.

Not anymore (hopefully).

The Commonwealth of Massachusetts Public Records Division has been a breath of fresh air. Those I have interacted with have integrity and empathy as well as zeal.   Although limited in scope they can hold agencies to account by demanding the provision of complete, legible and accurate records and not backing down.

Pam Wilmot, executive director of Common Cause Massachusetts stated:

“As the cradle of liberty, Massachusetts should lead the way on openness and transparency, not lag behind the rest of the nation. The law Governor Baker just signed will help us catch up and begin to take our rightful place among those states that highly value and promote transparency.”


Document Submitted as Evidence for Hearings Date-Stamped  Long After

In response to a June 2016 request the board provided  just one with a legible date-stamp; a December 15, 2011 letter requesting  an attached “litigation packet”be   considered at an upcoming December 21, 2011 hearing .  The documents are all date-stamped January 17 2012 (nearly one month after ).. All of the other documents where  illegible or missing dates rendering it impossible to determine if and when they were entered into evidence  as required by law under  M.G.L. c. 30A§ 11(4) which states:

All evidence, including any records, investigation reports, and documents in the possession of the agency of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record in the proceeding, and no other factual information or evidence shall be considered, except as provided in paragraph (5) of this section. Documentary evidence may be received in evidence in the form of copies or excerpts, or by incorporation by reference.

Board Defense counsel Bryan Bertram dismissed the date-stamp as irrelevant and claimed it did reflect when it was entered into evidence but when it was scanned into the  Document Imaging Unit (DIU) . He claimed this occurs  after hearings not before. See  logical fallacy and lies.  We filed a Motion to Produce Documents (SJC-2015-0267, # 44) with legible dates which Bertram opposed in his  Response to Motion to Produce Documents

Bertram claimed “board staff” had reviewed its records and minutes and retrieved  from “off-site storage” those “materials before the Board in December 2011.”  The documents I claimed were suppressed, he claims , “are in fact there.”  and provides footnotes:


1 The Board’s staff has reviewed its records and confirmed this to be the case.

2 To be sure, and to put this matter to rest for the Court once and for all, the Board has retrieved from off­site storage those materials before the Board in December 2011. The documents that Dr. Langan claims were “suppressed” are in fact there—and this should not be surprising given the Board’s many orders since that time, all of which have disclaimed any reliance on the July 2011 PEth test.

3 The Board’s staff has confirmed this by reviewing its minutes.

He claimed my request was :

“……nothing more than an attempt to impose upon the Board a duty–absent from any statute, regulation or rule to search for and produce documents to him that are outside of that record.  Dr. Langan’s  Motion tellingly directs this Court to no authority to support such a request. Because it is devoid any basis in the law, the Motion should be denied.”


As of January 1, 2o17 my request for  legible documents does have a basis in the law. Authority does now exist to support such a request.

I filed a Public Records Request under the new law on January 9, 2017.   I received a response from Board counsel Robert Harvey  ( January 20, 2017 documents provided by board).   Most are still illegible or missing dates.  The same document date-stamped nearly one -month after the hearing for which it was submitted was provided.   One other had legible dates.   A document written June 6, 2013  is stamped both electronically and by hand with dates sometime in 2012, before it was ever written.

And in response to an Order from the Supervisor of Records  I was  provided the very same document date-stamped January 17, 2012.   But it is not a copy but original as indicated by the “blue-ink.    This original document precludes the existence of any others date-stamped earlier than January 17, 2012.    This documents no earlier dated copies could have been submitted as evidence before the hearing. This document was never admitted into evidence and may not be relied upon by the board in its decision M.G.L. c. 30A, § 11(4).

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The records, minutes, and materials  reviewed and retrieved by “board staff” constitute public records. I requested them. I also requested the board “reports” that would have resulted from “board staff” confirming  it was before the board in 2012.

“ABA Model Rule 3.3, Candor Toward The Tribunal, declares that ‘a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’ If a lawyer ‘has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.’

An attorney must have a factual basis for alluding to, offering, or relying on evidence at trial. That factual basis may not be wishful thinking. There are two requirements for a factual basis — an attorney’s subjective belief, and objective evidence to support that belief.

But none exist.  Not one  document, reference, record, or any other materials exist that are chronologically consistent with the documents being before the board in 2012. The only document that exists is the litigation packet date-stamped a month after the hearing.

I asked Bertram to either provide the factual basis or admit to the false statements.  He’s been ignoring me and will not answer.

The whole picture depicts the respondent as an attorney who, when it serves his advantage, is willing to violate clear norms of professional responsibility and to engage in purposeful deceit which harms others.

“The privilege of practicing law does not come without the concomitant responsibility of truth, candor, and honesty. Because no single transgression reflects more negatively on the legal profession than a lie, attorney misconduct involving dishonesty justifies disbarment.” Id. (quoting In re Young’s Case, 913 A.2d 727 (N.H. 2006)).

No matter what it takes I am going to make sure that is a certainty in this case.

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Make Medicine Great Again!   Please Donate and Help Drain this Swamp!

https://www.gofundme.com/PHPReform

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  MA Board Attorney Deb Stoller’s Fraud Upon the Court

Defending MA BORM Deb Stoller’s Five-Year Concealment of Fraud–Nothing left but logical fallacy and lies

Concealing crimes at the Massachusetts Board of Registration in Medicine: Why is this swamp not being drained?

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 Some day a real rain will come and wash all the scum off the streets- Robert De Niro

Massachusetts Public Records – House Bill 4333

One of the great mistakes is to judge policies and programs by their intentions rather than their results

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Milton Friedman (July 31, 1912 – November 16, 2006) was an American economist who received the 1976 Nobel Memorial Prize in Economic Sciences


In an article written for the March 2015 Physician Health News, the official newsletter of the Federation of State Physician Health Programs (FSPHP) President Doris Gunderson reviews the history of the organization in honor of its 25th anniversary. She writes:

“In 1990 the FSPHP was born out of a need for individual state programs to work together in discussing and promoting best practices and especially to influence national public policy.”

For the last quarter century the FSPHP has pushed a plethora of both practice and policy (legal, regulatory and healthcare) that claims to assist state physician health programs in identifying, managing and monitoring impaired physicians and protect the public from harm.It was recently suggested by the Chief Editor of American Society of Addictions Medicine (ASAM) Weekly News that this same group take the helm in influencing public policy for addiction medicine at large (i.e. not just doctors but everyone from our kids to our pregnant mothers to our elderly) on a national organizational level.

It is time we examined both the authority and the knowledge claims on which they are based.

In her rebuttal to Pauline Anderson’s August 2015 Medscape article ‘Physician Health Programs: More Harm Than Good?  Gunderson dismissed criticisms as “allegations rather than facts” and “second hand anecdotes.”

In response to allegations that PHPs have no oversight Gunderson comments:

“In fact, we operate under a microscope, answering to individual practitioners, medical boards, malpractice carriers, defense attorneys, state attorneys, medical societies, hospitals, medical schools and residency training programs. We are also accountable to patient safety entities and a Board of Directors.”

The list of organizations Gunderson has to “answer” to appears to be many of the  organizations and societies that physician health programs interact with.  She might as well add Blockbuster for getting her videos back on time. This is not meaningful oversight.  Oversight equates with accountability and that requires answerability (the provision of information) and justification for one’s actions. It also requires the presence of an outside organization truly independent of the group that is able to sanction or punish individuals for wrongdoing or misconduct.     No such organization exists for state physician health programs. Period.  There is no organization that exists that is able to investigate a complaint of misconduct and provide sanctions.  The same applies to their primary business associates, the assessment and treatment centers (because they are private pay and out-of-pocket) and drug and alcohol testing labs (because they use non-FDA approved tests).  The entire racket is unaccountable and unexamined.

Kathryn Pyne Addelson  warned that what we should fear most is “unexamined” authority. “Illegitimate politicization and rampant irrationality find their most fruitful soil when our activities are mystified and protected from criticism.”

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This group has been protected from criticism for the better part of a generation. They have enjoyed making authoritative pronouncements as unexamined authority. Their power depends entirely on not being questioned as what is behind the curtain is flimsy and dredged,  a Potemkin village.   The recent Medscape and BMJ articles are revealing that confrontation with direct and precise questions results in nothing but logical fallacy, distortions and lies.  They are utterly incapable of responding with a direct and precise answer.   Gunderson’s response to absent oversight  is just another example of this logical fallacy and distortion.  This is not how rational authority responds. This is not how legitimate authority responds.  I kindly invite her to debate this.  I would like a back-and-forth to clarify.  It is a simple question that deserves a simple answer and I know she follows my blog as she used her own name and e-mail address.

The cumulative comments on the articles critical of these programs are revealing a system of oppressions, injustices and illusions.   A more recent article on Medscape,  “One-Man Fight:  MD Takes on State Medical Board, PHP” reports the same pattern of coercion, absence of due process and diagnosis rigging for sham peer review that I am hearing from doctors across the country.   The comments section to this article are also overwhelmingly critical of PHPs.  They are pertinent, articulate and precise and missing from them is any semblance of a rebuttal by the FSPHP, their apologists or anyone else.   The writing is on the wall as they say. And for that reason we call upon all those of good will in both the medical profession and the public at large to join us in this confrontation with illegitimate, irrational and immoral authority.

  1. Gunderson D. Message From the President  Twenty-Five Years: A Remarkable Journey. Physician Health News. 2015;20(March).
  2. Addelson KP. The Man of Professional Wisdom. In: Fonow MM, Cook JA, eds. Beyone Methodology: Feminist Scholarship as Lived Research. Bloomington: Indiana University Press; 1991:16-35.

Disrupted Physician

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How your Employee Assistance Program (EAP) is at Risk for Fraud and Abuse: What you need to know about the “PHP-Blueprint” and “New Paradigm”

screen-shot-2016-10-13-at-10-27-30-pmEmployee Assistance Programs (EAPs)

Employee assistance programs (EAPs) evolved from the “industrial” or “occupational” alcohol programs (OAPs) of the 1940s that were developed by companies to address alcohol abuse and its impact on the workplace. The first of these programs was developed by Dupont de Nemours and Company from 1941-1944 followed by Kodak in 1945 (Royce and Scratchley, 1989). These  programs were typically staffed by a recovering alcoholic employee working in cooperation with corporate medical departments or a union health clinic and the sole referral source was to the recently formed self-help group Alcoholics Anonymous (AA).   The primary intervention was to “confront the alcoholic’s job performance decline and denial using possible job loss as leverage toward seeking help.”

screen-shot-2016-10-18-at-11-25-14-pmWith time these programs broadened to include other issues that could potentially impact job performance. Worker Assistance Programs (WAPs) emerged in the 1950s when companies such as Consolidated Edison, Standard Oil of New Jersey, and American Cyanamid extended their alcoholism programs to also address mental health issues in their employees (Roman, 1981; Steele, 1995).

In the 1970s  EAP-related legislation was passed and this markedly increased the number of these workplace programs. The Hughes Act ( Public Law 91-616 ) established the National Institute of Alcohol Abuse and Alcoholism (NIAAA) as part of the United States Department of Health and Human Services (USDHHS) and these organizations  subsequently developed guidelines applicable to  both the public and private sectors. Public Law 92-255 mandated their existence at all federal agencies and military institutions and in 1972 the Hughes Act was amended to also include drug abuse (Public Law 92-255 ). The amendment also required USDHHS Guidelines serve as the model for all federal programs. On September 15, 1986 President Ronald Reagan signed Executive Order 12564 stating a desired goal of achieving a Drug-Free Federal Workplace. This use of drug testing by governmental agencies then led to an increase in drug-testing by private employers and by 1986 more than a quarter of Fortune 500 companies were drug-testing job applicants

screen-shot-2016-10-10-at-2-58-23-pmAnother significant development was the formation of private EAP firms that began to offer EAP services and drug-testing  via contracts with employers.  One such example is Bensinger, DuPont & Associates (BDA) which was founded in 1982 by former DEA Chief Peter Bensinger and National Institute on Drug Abuse (NIDA) founding director Robert Dupont.  BDA became the sixth largest employee assistance program (EAP) provider in the United States and provided workplace drug testing and other services to some 10-million employees of companies such as Kraft Foods, American Airlines, Johnson & Johnson and the Federal Aviation Administration (FAA).  On December 1, 2015 Bensinger, DuPont & Associates was acquired by the Canadian firm of Mourneau Sheppel which employs 4000 plus individuals  and has approximately 20,000 clients ranging from small businesses to some of the largest corporations in North America.

The company now known as BDA Moreau Sheppel represents the largest employee assistance program (EAP) provider in the entire world.

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Ethical Considerations in Workplace Drug-Testing and EAP Management

EAPs can be managed internally by staff employees of a company or organization who contract with outside vendors for drug-testing or externally by an EAP provider such as BDA Moreau Sheppel.  The primary goal is to address an employees problem (such as a substance abuse or mental health issue)  before that given problem impacts job performance.  In this way EAPs are  viewed as mutually beneficial; they provide timely help to an employee experiencing a problem in addressing that problem and at the same time potentially avert absenteeism, poor work performance, accidents and termination of a valuable employee. They are designed to help both the employee and the employer in a “win-win” situation. The goals, therefore, should be identical.  The goals should  be convergent.

Although many of these programs offer mental health counseling and other such services, the core function of EAPs does not include diagnosis or treatment but to facilitate and ascertain diagnosis and treatment. Those referred to EAPs (either through self-referral or by someone else) are assessed and referred to outside sources, either individual practitioners or institutional agencies, that have expertise and experience in assessing and diagnosing the presenting problem. It is the EAP’s function to oversee and make sure that the presenting problem is not only properly assessed, addressed, diagnosed and treated (if indicated) but that the presenting problem remains managed and under control.   This requires a period of monitoring or oversight to provide reassurance; progress reports from supervisors, compliance reports from treatment providers, and periodic drug and alcohol testing (if the problem involved substance use) are all part and parcel of a typical EAP.

EAPs have two primary business relationships: 1)  a network of individuals and/or programs to which they refer individuals for assessment and treatment, and 2) laboratories capable of performing drug and alcohol testing. The integrity of an EAP is therefore dependent on  the integrity and quality of its referral sources and laboratory operations. Those assessing, testing and treating must have education, experience and expertise in assessing, testing and treating the problems presented to them.  They must be valid and reliable and it goes without saying that any and all assessment, testing and treatment must be objective, honest and without any conflicts-of-interest.

screen-shot-2016-10-10-at-10-23-26-pmThis topic is addressed in the book Employee Assistance Programs: What Works and what Doesn’t by Lawrence Mannion in which he  discusses the notion of “control” in the context of managed mental health care. For those wishing to control any direction, entity or circumstances pertaining to these types of services Mannion states:

“..if the ends or purposes of those doing the controlling are in accord with the ends or purposes intrinsic or inherent in the thing being managed there is no conflict.”(page 133).

A 2001 study that looked at EAP professionals perceptions of ethical issues related to their business practices found that 22% of those surveyed identified “referrals” and “ownership structures” as among the most important and critical ethical issues facing the industry (Sharar, White, and Funk, 2001). Many of the respondents expressed concerns that the organizations owning and operating EAPs expected them to generate treatment revenue via a pattern of preferential referral to specific programs or practitioners and were concerned that this financial conflict-of-interest undermined the fundamental obligation of providing “neutral” and “objective” assessments to individuals with problems.  To prevent the appearance of unethical conduct the recommendation below were made.

-Fully disclosing (to both employer and client) any affiliations with proposed referral options;

.-Offering an “objective” presentation of more than one referral option to the client;

-Providing clinical justification that the referral is in the best interests of the client;

-Refusing to accept any direct gain or financial remuneration for referring clients;

-Instituting a peer review program to monitor and evaluate the quality and appropriateness of referrals; and

-Developing a utilization/service summary report for employers containing detailed information on patterns of referral for continuing care and treatment.

In 1998 the American Medical Associations Council on Ethical Affairs suggested that incentive programs should be based on quality (rather than quantity) of services or referrals and that linking financial incentives to individual treatment decisions should be avoided (AMA, 1988). In summary any and all referrals need to be objective, honest and fair. They need to be reliable and valid. So too does any and all drug-testing. Most employee drug-testing follows a standardized protocol. Although errors do occur, the procedures followed by the vast majority of employee assistance program providers aim to minimize error. Most programs were implemented and evolved in collaboration with unions or other groups working on behalf of the best interests of the employee.

When drug testing initially entered the workplace many issues had to be worked out. Those in favor of drug-testing insisted that they had the right to demand a drug-free workplace and pointed to decreased productivity, increased accidents and absenteeism as potential consequences of drug abuse. Opponents challenged the constitutionality and reliability of drug-testing and also emphasized the necessity of distinguishing  work life from private life. If a person smoked a joint on the weekend, they reasoned, it is no concern of management so long as they performed competently come Monday. Many in the medical community dismissed mandatory drug testing at the time as “chemical McCarthyism.”   Nevertheless,  drug-testing for better or for worse did enter the workplace.  Most of these programs were implemented with the oversight and collaboration of unions or some other group advocating for the rights and interests of those being tested. Procedures and protocols were discussed, deliberated and had to be agreed on before implementation.   In his 1984 book Designing Employee Assistance Programs, David Masi emphasizes the need for the close involvement of unions in workplace  drug-testing and other EAP services in order to “protect employee rights”as well as the employers responsibilities in doing so (Masi, 1984). Most programs simply followed the already established Federal Workplace Drug Testing Guidelines and this is still the case for most EAPs today. The Mandatory Guidelines for Federal Workplace Drug-Testing Programs provide strict procedure and protocols specifically designed to protect the rights of those being tested. The Department of Transportation (DOT), United States Nuclear Regulatory Commission, and many other safety-sensitive organizations follow these stringent guidelines which include only using certified labs, strict chain-of-custody procedures and Medical Review Officer (MRO) assessment of all positive tests to rule out alternative explanations or “innocent-positives” (such as a prescribed drug). It is also the job of the MRO to verify that strict chain-of-custody was maintained from the collection of the sample to its final analysis.  Additionally, only FDA approved drug-testing methods are utilized. This strict protocol assures a high level of validity and reliability (although mistakes can and do occur) to reduce the risk of someone being falsely labeled as a drug or alcohol user.  False-positive-tests are absolutely unacceptable as the results of a positive drug-test can be grave, far-reaching and sometimes even permanent.

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Physician Health Programs (PHPs)

Physician health programs (PHPs) are basically just employee assistance programs (EAPs) for doctors. They  evolved from 1970’s “impaired physicians programs” much like EAPs evolved from the occupational alcohol programs (OAPs) of the 1940s. These programs were designed to both help sick doctors and protect the public in the same manner EAPs were designed to help sick employees and protect a company. The mechanics and mentality should be exactly the same. If the PHP feels a doctor is in need of an assessment he or she is then referred to an outside facility for evaluation (and treatment if that is indicated and in this system “treatment” is virtually guaranteed.  The PHP then monitors the doctor for a period of time (typically five-years) to make sure that the problem remains under control.  Monitoring inevitably includes at least weekly abstinence based substance abuse testing (including alcohol) using non-FDA approved laboratory developed tests (LDTs) no matter what the presenting problem.  As with EAPs, one can self-refer to these programs or be referred by someone else and the latter can be done anonymously and with guaranteed confidentiality for the referrer.

In the context of PHPs being EAPs for doctors, the Federation of State Physician Health Programs (FSPHP) functions in the same manner as an EAP provider. The FSPHP s a non-profit corporation formed in 1990 to promote best-practices in state PHPs and influence policy.  This  EAP for doctors is being called the “PHP-blueprint”.

Although this model of EAP management is currently just being used on doctors, nurses, and other health care professionals;  parts of the criminal justice system; and some areas of the airline industry, the grand plan is to move this model of care to other populations.  Moving the “PHP-blueprint” to other occupations and populations is what is being deemed the “New Paradigm.”  

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The “PHP-blueprint” and the  “New Paradigm”

The American Society of Addiction Medicine (ASAM) White Paper on Drug Testing  describes the current practice of drug-testing in various contexts and explains how physicians and other healthcare providers can “use drug-testing to discourage non-medical drug use and ‘diversion’ of controlled substances” to “encourage appropriate entry into addiction treatment,” identify relapse and “improve outcomes of addiction treatment” through the use of “long-term post treatment monitoring.”  The paper proposes random mandatory drug-testing by medical professionals (pediatricians to obstetricians to geriatricians) using not only urine but blood, oral fluid (saliva), hair, nails, sweat and breath.”

Screen Shot 2016-10-18 at 11.41.24 PM.pngThe White Paper’s  writing Committee Chair, Dr. Robert Dupont, described this  “New Paradigm” in his keynote speech before the Drug and Alcohol Testing Industry Association (DATIA) in 2012 and claimed this model “sets the standard for effective use of drug testing” (Dupont, Drug Testing and the Future of American Drug Policy 2012)  Dupont then proposed the “PHP-blueprint” be expanded to other workplace populations,  healthcare students and schools. His audience, the Drug and Alcohol Testing Industry Association (DATIA)  represents more than 1,200 companies involved in the drug and alcohol testing industry for profit and even employs their own DC-based lobbying firm, Washington Policy Associates.

In a 2012 article entitled “Six lessons from state physician health programs to promote long-term recovery” Dupont and co-author Dr. Greg Skipper describe the need to”reach more of the 1.5 million Americans who annually enter substance abuse treatment stating that:

“This model of care management for substance use disorders has been pioneered by a small and innovative group of the nation’s physicians in their determination to help other physicians save their careers and families while also protecting their patients from the harmful consequences of continued substance abuse. In fulfilling the professional admonition “physician: first heal thyself,” these physicians have created a model with wide applicability and great promise.” (Dupont, R., Skipper, G. 2012)

screen-shot-2016-03-10-at-5-31-28-amThese six lessons are:

(1) zero tolerance for any use of alcohol and other drugs;

(2) thorough evaluation and patient-focused care;

(3) prolonged, frequent random testing for both alcohol and other drugs;

(4) effective use of leverage;

(5) defining and managing relapses; and

(6) the goal of lifelong recovery rooted in the 12-Step fellowships.

screen-shot-2016-10-18-at-11-38-32-pmThe “PHP-blueprint” is being promoted as “Gold standard” and a “New Paradigm” of recovery.  In other words it is being proposed that the model of care management currently being used on doctors and managed by the FSPHP replace your current EAP.  And like a faulty smoke-detector or a misfired Epipen you won’t realize or possibly even care about  it until it happens.

The question for us, then, is this:

Are the ends or purposes of those managing physician health programs the same as or in accordance with those being managed by these programs?

Moreover, will the ends and purposes of the physician health model of care be in accordance with the ends and purposes of those who will potentially be managed by this model of care in the “New Paradigm?

The answer to the first question is a resounding “NO.”  Complaints of coercion, abuse and other misconduct and fraud are rampant.  Doctors are, in fact,  being diagnosed with substance use disorder and other problems when they do not meet the diagnostic criteria for substance use disorder or other problems and being forced into unnecessary and unneeded treatment while those  who do have substance use disorders and mental illness are being provided cookie-cutter treatment that is often inappropriate and inadequate treatment.  Why?  The money of course.  Do the homework and follow the money.

It is necessary that we conform our thinking and behavior to objective reality rather than an illusion and the version of the physician health model being put forth by those promoting the “PHP-blueprint” and the “New Paradigm”is at marked variance to those being managed by the model and for further reading start with the following:

  1.  British Medical Journal feature “Physician health programs under fire” by Jeanne Lenzer
  2. The “PHP-Blueprint”–A Trojan Horse for Profit and Wider Social Control:  Watching helplessly, as Cassandra did, while the soldiers emerge and wreak their predicted havoc.
  3. “New Paradigm” is a business model not a medical model
  4. Physician Suicide and “Physician Wellness” –Time to start talking about the elephant in the room!

In Employee Assistance Programs: What Works and what Doesn’t, Mannion states:

“We need to spend less time making hyperbolic statements about change and entertaining grandiose ideas about strategic alliances and more time developing criteria or standards to determine what does and what does not belong under the canopy of employee assistance. More specifically what is that principle or principles on the basis of which we can develop a criterion or criteria to determine those activities that could legitimately come under the heading of employee assistance?” (page 165-166)

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REFERENCES

American Medical Association, Council on Ethical and Judicial Affairs. Reports on Ethics in ManagedCare.Chicago, Ill.: American Medical Association Press, 1998

Dupont, R and G. Skipper “Six Lessons from State Physician Health Programs to Promote Long Term Recovery” Journal of Psychoactive Drugs 44 (1) 2012 (72-78)

Dupont, R. “Drug Testing and the Future of American Drug Policy” Presentation at the DATIA Annual Conference. San Antonio, Texas. April 19, 2012.

Jett K. Employee Assistance Programs–Government’s Role in an Expanding Field. In: Mecca AM, ed. Prevention 2000–A Public/Private Partnership: CHRF:69-81.

Manion, L. “Employee Assistance Programs: What Works and What Doesn’t” Praeger, Westport, CT. 2004

Massi, D. Designing Employee Assistance Programs. American Management Associations, New York, NY 1984

Roman P. From Employee Alcoholism to Employee Assistance. Journal of studies on alcohol. 1981;42(3):244-272.

Royce JE, Scratchley D. Alcoholism and Other Drug Problems: A Revised Edition of Alcohol Problems and Alcoholism. New York, NY: Simon & Schuster, Inc.; 1989.

Sharar D, W White, and R. Funk. “Business ethics and employee assistance/managed behavioral healthcare: A national survey of issues and challenges.” Journal of Behavioral Health Services and Research (submitted for peer review and publication April 2001).

Sharar, D., and W. White “Referrals and Ownership Structures: The first of two articles on the need for a revised ethic in employee assistance considers whether ownership structures can improperly influence EAP professionals.”

Steele P, Trice H. A History of Job Based Alcoholism Programs: 1955-1972. Journal of Drug Issues. 1995;19:511-532.

The New Paradigm for Recovery Making Recovery-and Not Relapse-the Expected Outcome of Addiction Treatment. Washington, D.C. March 2014 2014.

Making some serious gains.  Let’s not lose the momentum.  Please donate to my Gofundme here

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The proposed advocacy for addicts provides an altruistic cover enabling the group to pursue legal, regulatory and healthcare public policy change on behalf of addiction treatment for self benefit.

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ASAM Weekly is a publication of the American Society of Addiction Medicine (ASAM) circulated by E-mail to “more than 25,00 addiction professionals” every Tuesday.  It provides timely news briefings of top stories related to addiction medicine. The current issue includes a  National Survey on Drug Use and Health study correlating substance use with suicidal ideation;  original research  suggesting a strong link between  alcohol use and”thwarted belonging”  ( wanting and needing to be with others being socially isolated ) with both homicidal and suicidal ideation in a group under community corrections supervision by the criminal justice system; a study of privately billed services looking at the economic impact of the opioid epidemic on the healthcare system (Fair Health White Paper) which found a 1000% increase in opioid related treatment and service costs between 2011 and 2014;  and an article written for the  Huffington Post entitled  “When ‘All or Nothing’ Means Life or Death”  that questions the abstinence based model that currently monopolizes addiction treatment in the United States which the author notes  “is not only harmful and killing people,” but also “defies much of what we know about addiction.”

In his weekly editorial Editor-in-Chief William Haning refers to prescription database finding that the number of opioid prescriptions written in Tennessee last year outnumbered the number of people in Tennessee.  He appropriately notes this should “stun the readership” as it should. He notes several other articles this week “remind us that most of the public is not terribly interested in whether somebody has an addiction”  or the socioeconomic impact of addiction. He states “the public really can’t be expected to care” is someone with a substance use disorder is using substance and may not even be “realistically expected to care very much” about those who recover.

“What they do and rightly care about,” Haning declares,  “is the outcome of substance usage” and the public “is much more impressed by and will react to the consequences, ” As consequences he points to the two articles concerning suicidal and homicidal ideation and a report concerning sexual assault and violence from the University of Wisconsin .  He goes on to state:  “It causes an understandable lack of sympathy when a group of illnesses imparts injury to others.”  He lists crime, trauma in the workplace, spread of infectious disease and impact of childhood development of the disordered family as additional outcomes or consequences.

Haning notes a dilemma for those in recovery–they want to advocate for others but do not want to draw attention to themselves as the attention is far different from a diabetic or parent of a child with muscular dystrophy pushing for increased research or approval of a new medication.  He points out a national organization advocating for the treatment of the mentally ill exists (NAMI) that is comprised largely of those being treated but  “no strong national equivalent exists for substance use disorder yet” with two “organized bodies” as exceptions:    “physicians who have themselves entered recovery (IDAA), and another, smaller body of physicians in recovery who are engaged in the treatment of SUDs” These “organized bodies” have generally been focused on “ensuring identification of and care of their colleagues and patients” but have more recently become involved in the “pursuit of public policy changes.”  

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Propoganda, Truth and Credibility

In   Propaganda: The Formation of Men’s Attitudes  Jacques Ellul discusses the underlying assumptions and ideology that give rise to propaganda and the structures and belief systems needed for propaganda to flourish.  Propagandists  move with an “assortment of soothing and easily digestible notions.”  He discusses how easy it is for most people to accept propaganda as the individual does not want information but only value judgments and preconceived positions.  On the surface Haning’s proposal is rational and seems like a good idea. Who could argue with it?

It is important to recognize what Haning is referring to.    IDAA is an acronym for International Doctors in Alcoholics Anonymous , an AA fellowship of more than 9500 doctors.  The organized body focused on ensuring “identification” of “colleagues” are the state physician health (basically employee assistance programs for doctors).  47 of them are under the management of the  Federation of State Physician Health Programs (FSPHP).  The organized body focused on “care” of “patients is a group called   Like Minded Docs (LMDs). Collectively these groups represent the physician health program model and it is being promoted as “gold standard addiction treatment” based on a 2009 study called the“PHP-blueprint”  that reported remarkable success rates (80%).  The  high success rate is attributed primarily to close linkage with 12-step programs and the use of “residential and outpatient treatment programs that were selected for their excellence.”

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Mechanics and Mentality

The “PHP-blueprint” is abstinence based and 12-step participation is mandatory.   Random frequent drug and alcohol testing is used with zero-tolerance. A positive test results in an out-of-state “PHP-approved” assessment center and concepts such as “potentially impairing illness” and “relapse without use” are accepted.  The core organizational structure includes the state PHP, commercial drug testing labs and a number of  out-of-state “PHP-approved” assessment and treatment centers.  The PHP’s have no regulation or oversight.  The testing, assessments and treatment are out -of-pocket cash only.The assessment and treatment centers have very little oversight and because the  commercial drug-testing labs use non-FDA approved laboratory developed tests (LDTs)  they are not regulated.  No agency exists to provide sanctions for faulty or even fraudulent testing.  No internal or external avenues of complaint exist.  It is essentially a closed system in which no outside opinion is acknowledged let alone addressed.    Transparency and accountability are absent. Due process is absent.   Every “PHP-approved” facility is represented by a Like-Minded Doc and many of the doctors involved in the drug-testing process are also on the list of LMDs.   It is a rigged system and explained  here.    Choice in assessment and treatment is removed and the “PHP-approved” facilities engage in “diagnosis rigging” and are willing to label people with diagnoses when they do not in fact meet the diagnostic criteria for that diagnosis.  Pervasive problems include:

–Labeling normal variations in behavior as pathological

–Failing to receive proper diagnosis and effective treatment in those who need it

–Forcing unneeded evaluations and treatments including forced committment

Pervasive and Serious Concerns

Physician Health Programs- More Harm Than Good?  was the first article critical of  PHPs. “Physician health programs under fire” was recently published in the British Medical Journal (BMJ). The lack of accountability and financial and ideological conflicts of interest are addressed.  Complaints include coercion,  threats, “diagnoses rigging,” lab fraud and false diagnoses to  to support unneeded treatment.    The physician health program model is a major factor in the current suicide epidemic in doctors.

Profit Motive and Plans for Expansion

In his Editorial Haning  mentions a “national organization for advocacy of treatment of the mentally ill” called NAMI and this stands for the  National Association of Mental Illness (NAMI). It is considered a pharmaceutically funded front-group founded by Abott Labs, Pfizer, Eli-Lilly and pharmaceutical manufacturers.  They all market drugs for mental illness.    Mother Jones reported  $11+ million over 5 years from Big Pharma, and an Eli Lilly executive directed operations from their headquarters..  A U.S. Senate investigation revealed Big Pharma contributed $23 million in a just two years and until forced by the Senate Finance Committee to identify its corporate donors  had refused to do so. The “Campaign to Stop the Stigma of Mental Illness”  was started by NAMI and the group claims one out of five adults will suffer some form of mental illness in their lifetime.    The system is designed to provide a seemingly altruistic agenda but is in actual fact driven and funded by groups who profit from labelling more people mentally ill.     It is, in fact, the very same business model as what we see here but the primary profiteers are not Big Pharma but Big Rehab -the multi-billion dollar drug and alcohol testing, assessment and treatment industry.images-4

What is planned is explicitly spelled out in the  ASAM White Paper on Drug Testing . This is a Trojan horse for expanding the “PHP-blueprint.”  The business mode is similar to the razor or printer model.  The razor or printer does not generate a profit, the razor and printer cartridge replacements do recurrently.  PHPs are simply employee assistance programs (EAPs). Selling the PHP (i.e replacing an existing EAP) does not turn a profit, the non-FDA approved drug and alcohol testing does (and the referrals to the “approved” assessment and treatment centers.    The New York Times reported that the size of the US drug-screening industry grew from $800 million in 2000 to $2 billion in 2013.

Infrastructure Already in Place 

The drug and alcohol assessment, treatment and testing organizations are already present To replace an EAP with the PHP model  it is only necessary to convince an employer or  administrative agency in charge of professional licensure.   If elected as public policy advocates for addiction treatment they will most assuredly be lobbying and working on state and federal laws and aligning themselves with licensing boards to remove due process and civil liberties by “medicalization”.  This could impact anyone from our elderly, to our military, pregnant women, nursing mothers and school children. It is a testing and treatment  Trojan Horse.   They will be pushing public policy to coerce people into treatment who do not need treatment.

screen-shot-2016-09-28-at-1-33-33-amCreating Bogus Risks of Danger

Linking patient harm to “impaired” doctors is one of the primary propaganda techniques used by the FSPHP to forward the assessment, testing and treatment agenda. Be creating fear in hospital administrators, medical boards and the public ( “The Junkie in the O.R.” ) This appeal to  consequences (argumentum ad consequentiam) is suggested by Haning in the editorial. He states the public will react to consequences such as crime, trauma in the workplace, spread of infectious disease and “impact of childhood development of the disordered family “as potential consequences. The PHP system uses a medical license as “leverage” but any other license or benefit provided by the state could be used in the same manner.   This is what is called “contingency management” and how this is done is discussed in the ASAM White Paper on Drug Testing.

FSPHP/FASAM/LMD

screen-shot-2016-09-29-at-7-11-01-amThe primary architects of this system can be found on a list of Fellows of the American Society of Addiction Medicine. The list can be seen  here and includes  G. Douglas Talbott,  Robert Dupont, and  Paul Earley whose contributions to the current paradigm I have detailed in previous posts.   The list also includes  Greg Skipper  who introduced the first non-FDA approved  laboratory developed test for alcohol and is currently promoting  Soberlink -another junk science gadget that is prominently advertised as the top header in the current issue of   ASAM Weekly.

The list of like-minded docs was taken down from the website several months ago. Below is a screenshot taken the week prior.  On this list are Dupont, Earley, Skipper and the medical director’s of every single “PHP-approved” assessment and treatment center and it must be a small world after all because if you look at this list it has the name “Bill Haning” on it.  You will also find him on the list of ASAM Fellows.

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Defending MA BORM Deb Stoller’s Five-Year Concealment of Fraud–Nothing Left but Logical Fallacy and Lies

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“To be sure, and to put this matter to rest for the Court once and for all, the Board has retrieved from off site storage those materials before the Board in December 2011. The documents that Dr. Langan claims were “suppressed” are in fact there—and this should not be surprising given the Board’s many orders since that time, all of which have disclaimed any reliance on the July 2011 PEth test.”

“Documents are typically entered into the electronic repository after being used or after a proceeding not before”

—Assistant Attorney General Bryan Bertram who is defending the Board of Registration in Medicine (“Board”) before Justice Hines in my case before the Massachusetts Supreme Judicial Court.

Related:  MA Board Attorney Deb Stoller’s Fraud Upon the Court

Screen Shot 2016-08-06 at 3.58.19 PMThe excerpt above is taken from the 2006 Massachusetts Board of Registration in Medicine  Annual Report and describes the Board’s  Document Imaging Unit.   The Document Imaging Unit scans agency documents into an electronic database and according to the Boards 2009 Annual Report has “allowed the agency to standardize and automate its processes for storing and retrieving documents.”   The  quotes above it are from Assistant AGO Bryan Bertram in response to recently acquired documents proving that Board attorney Deb Stoller was provided irrefutable, undeniable and  unequivocal evidence of forensic-fraud between the Massachusetts PHP (Physician Health Inc.) and a drug testing lab but concealed it and has been concealing it for over five-years.

The appeal to an imaginary storage unit and cart-before-the horse logic are just two of many absurdly illogical and nonsensical statements that he has used to defend the indefensible.

On June 8, 2016  I requested a handful of documents from the Board of Registration in Medicine under a new Records Reform Act that had up until now been refused.   146 pages of docs were received within 24 hours and can be seen here:   Langan PDF copy

Only one of the five documents had a legible date-stamp on it.   The rest were blurred and indecipherable. Requests for clarification have been stifled with the last response from the Board on  June 17th claiming they were “working on it. ”  Multiple subsequent inquiries have been ignored.  Verifying these dates should be simple and take a matter of minutes.  Why all the fuss?

The only document with a legible date stamp was a December 15, 2011 letter  from my attorney  requesting  an attached “litigation packet ” be considered at a December 21, 2011 Board proceeding.  (I had requested the “litigation packet” as one of the documents but had never seen the letter).    Needless to say it wasn’t.

 

 

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Both the letter and the 47-page “litigation packet” are date-stamped   January 17, 2012.

The letter is addressed to physician health and compliance unit (PHCU) Board counsel Deb Stoller and cc’d to her underling Tracy Ottina.  The documents show clearly that the two were in possession of these documents  prior to a December 21st Board hearing.  They are date-stamped 27 days after the hearing and to support his claim that    “documents are typically scanned into the electronic repository after being used or after a proceeding, not before” Bertram uses the transcript of the same proceedings as an example as the December 21  document is date stamped  December 29 (8 days after the proceeding).  Apples and oranges.  Scanning a a transcript of a proceeding into the Board’s Digital Imaging Unit the following week is  understandable  but scanning a document that was submitted as evidence to be heard at that same proceeding  27-days after it took place and 18-days after the record of the proceeding was scanned is not.  It is very fishy for a number of reasons and defies common sense.

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But  Bertram claims the date-stamp is meaningless and wants to put the matter to rest once and for all.   In his  response opposing  a Motion to Produce Documents  (he does not want to produce them) he provides 3 footnotes (presumably to give an impression of legitimacy)  providing confirmation that the documents had been  carefully considered  at the December 21, 2011 proceedings by reviewing not only its minutes and records but procuring the original documents that were being stored off-site.

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Bertram also claims PHS has not committed any crimes because they have not been charged with any crimes.  This is called denying the antecedent or inverse error.  It is a logical fallacy where the consequent is an indicative conditional  claimed to be false because the antecedent is false. ( A, then B; not A, therefore not B).    

If it is raining, then the grass is wet.
It is not raining.
Therefore, the grass is not wet.

The argument is invalid because there are other reasons for which the grass could be wet such as spaying it with a hose.   There are multiple reasons for which someone who committed a crime has not been charged with a crime.

There is always a time-frame between the two and many who commit crimes never get caught.    Luck, stealth, cleverness, and multiple other variables might be involved.  Jimmy Savile molested and raped scores of children for decades and he was never caught.  As a major fundraiser for hospitals this fiend had free rein to prey on sick and helpless  little kids in hospital beds .

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They have not been charged with any crimes because the very agencies capable of charging them with crimes are ignoring or otherwise overlooking them for various reasons.  If I see someone being stabbed in the back  I can reasonably conclude they committed a crime. Savile got away with what he did because of a culture of deference. Because he was powerful others made allowances for him.  Monsters thrive in a culture of deference.

 

A Culture of Deference

According to Policy 94-002 (which has disappeared from the Board’s website) Board counsel for the Physician Health and Compliance Unit (PHCU) was created outside the Enforcement Division of the Massachusetts Board of Registration in Medicine (Board).  PHCU advises the board on issues related to drug and alcohol abuse and mental or physical impairment that may affect a doctor’s ability to practice and unit staff prepare and present cases to the board’s complaint and licensing committees to make sure identified impaired physicians comply with the terms of any rehabilitation agreements. According to Policy 94-002 the responsibilities of PHCU Board counsel include “serving as a hearing officer in some cases and resource in all cases involving physician health and compliance issues.”

The Board appoints a “hearing officer” to conduct an adjudicatory proceeding according to the procedures set forth in the Massachusetts Administrative Procedures Act. Mass. Gen. L. ch. 30A. It is the hearing officers responsibility to make all decisions regarding the admission or exclusion of evidence. Administrative procedure requires that hearing officers consider the probative value of the evidence and file it in the Administrative Record.

Massachusetts Board of Registration in Medicine PHCU Board counsel is run by attorney Deb Stoller with attorneys Robert Harvey and Tracy Ottina.  They have been given the power to act as “hearing-officers” on cases and present cases to the Board and  recommend disciplinary action.

Medical Boards provide deference to their physician health experts and their in-house compliance counsel who have been given the power of  judge, jury and executioners.

They give little thought or time to what is presented as predetermined fact. That the Board is not under any active supervision from the executive branch has been confirmed in writing to the Massachusetts Legislature by Governor Charles Baker in a letter accompanying his Bill (H.4188) which aimed to finally establish a framework for active supervision and oversight over the Board.

As independent units within the board who act as hearing officers and present cases the PHCU may be working with PHS in the same manner as the drug-testing labs engaging in laboratory fraud and the “PHP-approved” assessment and treatment centers that are “tailoring” diagnoses. It appears that Stoller and the PHCU is not representing the best interests of the Commonwealth  but those of the state physician health programs and under current management state PHPs represent the best interests of the billion dollar drug and alcohol assessment, testing and treatment industry.  The PHCU’s are clearly part of the racket.  It is a rigged game with a stacked deck existing within a culture of deference.

Obtaining the evidence is one barrier that has prevented exposure of this corruption. Another is the unwillingness of agencies available to hold them accountable. PHS has no oversight or accountability and the labs and assessment and treatment centers have minimal oversight. As these are non-FDA approved lab tests the FDA provides no oversight.   They  have  pushed public policy recommending  regulatory agencies provide deference to their authority and expertise.

This creates an organizational systems failure as the Board is deferring to the state physician health program and the states attorney Generals are deferring to the Board.   Each  complacent  in the integrity and good-faith of the agency before it.   This creates a complete organizational systems failure.

Governor Baker’s recent move to control professional boards seemed a promising step and I provided detailed documentation to the Director of Constituent Services at the Office of the Commissioner for Public Health,  Helen Rush-Lloyd ( Helen.Rush-Lloyd@state.ma.us   617-624-5223 ) who informed me on June 7 she would provide the name of the appropriate contact person to respond.  The email can be seen here: Physician Health and Compliance Unit.   Last I heard it was turfed to attorneys at the Board by whoever the appropriate contact person was and I have not been able to get a name.  As this too appears to be a dead-end it is important to find out who is responsible.  This is a system in which they often place their own people into positions where they can block, punt, deflect, dismiss and otherwise derail valid complaints.  For example they have a “point-person”on the Massachusetts Medical Society ethics committee who blocks valid complaints from ever reaching review.  They are turfed at the door and I would not be surprised if they placed one of their own or one of their apologists into this venue as well and this requires the provision of a name to see who is responsible and who should be held accountable.

The totality of evidence provides clear and convincing proof that PHCU Board counsel Deb Stoller has been suppressing evidence for years. The filed Administrative Record was missing every item I submitted including a critical document he claims was lost due to my “hand-delivery” of it.   I still cannot wrap my head around the connection between hand-delivery and losing it. I believe he’s so entrenched in his pervasive denial of facts and outside opinion and so used to shifting the burden and blaming me he couldn’t think of anything else.

One thing is for certain. The Board does not want to produce the records to Justice Hines. I realized this after I filed the “Motion to Expand the Record” as Bertram made it clear on multiple occasions the Board would not object to anything I filed with the Court to add to it.   Had I not known about the 10-day time limit to file the a motion to expand the record the Court would be limited the documents provided and none of mine were included. This is another administrative law trick frequently used to control the information that is seen.  If the December 2011 documents were considered then I would like to hear the logic.  The documents in question show black letter law crimes. They show specific crimes.   Any schoolchild could detect them.   The documents show flagrant forensic fraud  between Dr. Luis Sanchez and the VP of Lab Operations at USDTL Joseph Jones and this is  representative of the top-down corruption and unethical tone at the top that pervades this system.

None of the forensic fraud or perjury or concealment has ever been addressed by the Board and missing  evidence and unaddressed key arguments provide clear and convincing proof that Stoller has been concealing evidence for years.

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  Dr. Luis T. Sanchez, M.D. served as the Director of the Massachusetts physician health program, Physician Health Services (PHS) from 1998 until 2013.   He is past President (2005-2009) of their national organization, the Federation of State Physician Health Programs (FSPHP).

In  Disruptive Behaviors Among Physicians   stresses the importance of  of “clear expectations and standards”  and  values and codes-of-conduct in the practice of medicine and calls on physician leaders  “commit to professional behavior.”

One measure of integrity is truthfulness to words and deeds.  These people claim professionalism, ethics and integrity.  Colluding with a laboratory to intentionally misrepresent laboratory data is laboratory fraud and covered under Title 18 of the United States Criminal Code (Wire fraud 18 USC 1343, False Statements 18 USC 1001, Conspiracy 18-USC 371, False Claims 18-USC 287 and Obstruction of Justice 18-USC 1505). I believe all of these are applicable here. In addition Dr. Sanchez violated M.G.L 156 (B) Section 69 by making false statements to a state agency.  Later documents show clear evidence of his perjury and concealment.   August 6, 2014 to Langan with health materials.

The fact that medical boards and public health departments are aware of criminal acts being committed  by this “authority” and others like him yet do nothing to address its existence will inevitably lead to worse.  A culture of deference allows this type of behavior to fester and thrive for years and even decades.  If dictatorships can be defined as systems in which there is a prevalence of thinking in destructive rather than ameliorative terms then the the physician health movement fits.

Many of the  “PHP-approved attorneys” who ostensibly represent doctors who are under PHP monitoring but only do so within the boundaries of the PHPs wishes are former board attorneys and assistant AGOs.  My suspicion is that the PHPs have preferred attorneys they use within the AGOs administrative legal division and the agency at large is unaware of what happens within this system.

Lord Acton warned that we should not make moral allowances for powerful people just because they are powerful. If a common man murdered someone, Acton explained, he should hang. But when a king or queen murders, we make allowances for it. “I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher, for the sake of historical science” Acton wrote.  The same dynamic applies here.

One thing is for certain.  There should be zero-tolerance for forensic fraud perpetrated by those in positions of power.   This is  worse than Annie Dookhan as her victims were abstractions.  She did not see the damage that resulted from her laboratory misconduct.

And as far as I can find, these documents are the most elaborate and complete representation of the mechanics of forensic fraud available and show the sequential steps between the requesting party and complicit lab.   The documents also show how easy laboratory misconduct is accomplished as well as the moral detachment of the involved parties.

Bertram knows these are crimes.

 I have also informed him that since 2011 there have been multiple suicides related to allegedly falsified alcohol tests at the same lab seen here and the ongoing concealment  of laboratory fraud is equally abhorrent as those who engage in it. I am unclear of his motive in defending a cover-up of forensic fraud in the wake of other lab scandals but  one other thing is for certain.  When  this racket is exposed the record will show who knew about it and when.  

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The 146 pages provided within 24 hours is the package containing the December 11, 2011 docs and all the others with smudged dates.  I already have the documents but I need the dates.

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Bertram 11:16:15 e-mail requesting he address the issues

Bertram e-mail 11:16:15 requesting he address key arguments.

Bertram e-mail 12:7:15

 

 

 

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Please donate–Making significant gains.

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Fraud Upon the Court

“Fraud Upon the court” occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.

Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985 states: “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”

It has recently become evident that the  Director of the Board of Registration in Medicine’s Physician Health and Compliance Unit, attorney Deb Stoller,  has been unethically and unlawfully withholding and concealing documentary evidence that is not only exculpatory to  me but reveals that  Physician Health Services (PHS) engaged in misconduct and fraud.   She has essentially been concealing their crimes.

The “Administrative Record” filed by the Board was absent copious documentation of major importance and all of it was submitted through the care of Ms. Stoller.  The missing documents include multiple petitions and supporting documents that are neither irrelevant nor superfluous. Each of these documents contains sufficient indicia of reliability to meet probative value.Concealing material fact, misrepresentation and making false statements to a state administrative agency is unethical. It constitutes abuse of power and fraud.

Fraud on the court occurs where a party tampers with the fair administration of justice by deceiving “the institutions set up to protect and safeguard the public” or otherwise abusing or undermining the integrity of the judicial process. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944).

The United States Court of Appeals for the First Circuit skillfully defined the concept of fraud on the court in Aoude, supra at 1118, as follows: “A `fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”

Ms. Stoller is in violation of the Rules of Professional Conduct including Mass.R.Prof.C. 3.4(c). Fairness to Opposing Party and Counsel which states in part: A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

Mass.R.Prof.C Advocate Rule 3.3 Candor Toward The Tribunal reads:
(a)A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false; (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal,; (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

And under Mass.R.Prof.C. 8.4(c, d, h. It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (h) engage in any other conduct that adversely reflects on his or her fitness to practice law.

The Supreme Judicial Court (SJC) reviews the Board’s decisions in part for constitutional error, see Mass.Gen.L. ch. 30A, Sec. 14(7), and is permitted to gather evidence “in cases of alleged irregularities in procedure before the agency [when those irregularities are] not shown in the record.” Mass.Gen.L. ch. 30A, Sec. 14(5). The Court may look beyond the record if it appears the agency deliberately or negligently excluded documents that may have been adverse to its decision.

 

On a writ of certiorari, the court’s review “is confined to the record and is for the purpose of correcting legal error, [and therefore] the inquiry about the presence or absence of genuine issues of material fact, germane to summary judgment procedure, is inappropriate. . . . [The reviewing court] need only inquire whether the commission’s decision was ‘legally tenable and supported by substantial evidence on the record as a whole.”‘ Gloucester v. Civil Serv. Comm’n, 408 Mass. 292 , 297 (1990), quoting Commissioner of Health & Hosps. of Boston v. Civil Serv. Comm’n, 23 Mass. App. Ct. 410 , 411 (1987). See G.L.c. 31, s. 2 (b); Mayor of Revere, supra at 319-322.

Fraud is distinguished from negligence, ignorance, and error by virtue of the fact that it is intentional; involving some level of calculation. Negligence is: “the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.”   In a professional context, it is defined as: “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm… it is characterized chiefly by inadvertence, thoughtlessness, inattention, and the like.”.  Fraud, in contrast, is not accidental in nature, nor is it unplanned.  Those who commit fraud know what they are doing and are deliberate in their efforts. They are also aware that it is unethical, illegal, or otherwise improper.

Fraudulent intent is established by examining the documentation of decisions and behaviors associated with those under suspicion. As explained in Coenen: “Manipulation of documents and evidence is often indicative of such intent. Innocent parties don’t normally alter documents and conceal or destroy evidence.”

As explained in Black’s Law Dictionary,  fraud is an intentional distortion of facts and truth for the purposes of inducing another to give up something of value that they possess or to relinquish a legal right that they might otherwise retain. It is additionally defined as a “false presentation of a matter of fact whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed which deceives and is intended to deceive another.”

I believe it is safe to conclude that the parties here participated in fraud.

The “litigation-packet” did not merely show “chain-of-custody” issues but forensic fraud. Misrepresenting invalid forensic test results as valid is the definition of forensic fraud. Ms. Stoller should have immediately assessed the “clear-weight” of this evidence, entered it into the docket for reconsideration and given me an opportunity to be heard. She did not.

The Federation of State Medical Board Policy specifically requires strict “chain of custody.” She violated the Board’s very own standards and then blocked me from returning to practice by putting barriers in place, refusing to allow independent evaluations and protracting the time –drawing this out in order to cause as much damage as possible to my family and me.

PHS has convinced the Board not to “second-guess” their decisions and apparently the Board has convinced state AGOs to not “second-guess” theirs; each presupposing the integrity of the individuals and validity of the decisions of the agencies in question. As a result complaints by doctors of serious crimes and abuse are ignored. Fact and truth do not matter as the agencies blindly support one-another. This removes all aspects of accountability including answerability and justification for one’s actions. It is a flawed system.

In the past the SJC has overturned the Board’s decisions on due process grounds, see, e.g., Morris v. Board of Reg. in Medicine, 405 Mass. 103, 110, 539 N.E.2d 50, 54 (1989) (vacating Board decision because proceedings “denied [the physician] fairness in a due process sense.”).

 

This interference with the administration of Justice, abuse of authority and denial of constitutional rights warrant the Board Orders be reversed, vacated and corrected. “The touchstone of due process is protection of the individual against arbitrary action of government.” (Wolff v. McDonnell, 418 U.S. 539, 558 (1974). “[i]n a just society those who govern, as well as those who are governed, must obey the law.” (United States v. Leon, 104 S. Ct. 3430, 3457 (1984) (Stevens, J., dissenting).

The Courts have held that the Massachusetts and Federal Administrative Procedure Acts require both the agency and the court to consider the entire record, including testimony given at the hearing. In Friends of Edgartown Great Pond v. DEP, 446 Mass. 830, 845 (2006), the SJC recognized that the agency must consider the hearing evidence, finding the agency hearing complied with the Administrative Procedure Act requirements because “the record illustrates that over the course of the five-day hearing, the administrative law judge carefully considered all of the relevant evidence.”

The record compiled here illustrates that over the course of four years the Board not only failed to carefully consider any of the relevant evidence but most likely never saw any of it.

Our Constitution mandates that level of legal process due to reflect “respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)

Ms. Stoller violated multiple professional regulations, ethics and the law in an ongoing campaign in which she blocked the administration of justice. By concealing the truth she prevented both exculpatory evidence favorable to my case and detrimental to the opposing party (involving misconduct and crimes from ever coming to light. It is quite clear the full Board never saw these documents. The fact that the latest Board action did not have any of the documents or petitions submitted over the past year is prima facie evidence of Fraud on the Court.  Ms. Stoller needs to be held accountable and I am requesting the SJC uses whatever power it has available to make certain this occurs. Ms. Stoller needs to be disciplined for her actions and this discipline needs to be commensurate with her crime.  In this case nothing less then disbarment and criminal charges would fit that bill.