Physician’s Bill of Rights Slips into Coma in Baton Rouge, LA

Physician’s Bill of Rights Slips into Coma in Baton Rouge, LA

Louisiana Senate Bill 286, dubbed the Physician’s Bill of Rights, fell into a “coma” before the Louisiana Legislature on (Wednesday) May 2, 2018.

“Coma” is my word. The official status of this bill is that it has been “Involuntarily Deferred.” According to Louisiana House Rep. Katrina Jackson (D), District 16, this means that for all practical purposes, SB286 is “dead” for Louisiana Legislative session 2018. Jefferey Williams, Executive Vice President and CEO of the Louisiana State Medical Society (LSMS) responded to HARBR’s inquiry. He stated:

“In Louisiana, when a bill is “involuntary deferred” it is dead for all practical purposes.  Typically, you do not see the House entertain motions to override/hear bills that were involuntarily deferred in a committee as they do not want to set any sort of precedent as there are hundreds of bills each year that meet this fate. Therefore, I believe the bill to be dead.” The LSMS was an strong advocate for the bill.

Yes, there is a method by which the “dead” bill can be reconsidered before the committee which let it die via “Involuntary Deferment,” but such resurrection is unlikely according to the Louisianan’s contacted by HARBR including Elizabeth Crisp who covered the story in The Advocate.

Why is HARBR choosing the word “coma?” “Coma” would imply the state or condition of something which may “appear dead” but is not actually dead. The Physician’s Bill of Rights was, and remains, a strong bill. In fact, written and sponsored by Louisiana State Sen. John Milkovich (D), District 38, the Physician’s Bill of Rights passed through the Senate Health and Welfare Committee without opposition and then passed unanimously on the full Louisiana Senate floor. A similar House Bill (HB778) passed unopposed in the same House Health and Welfare Committee which left SB286 to die on May 2. HB778, written and sponsored by Rep. Katrina Jackson (also a Physicians Bill of Rights advocate), went on to pass unanimously on the full Louisiana House floor.

Advocates of SB286 praised it on May 2 as an excellent piece of legislation. It was referred to it as “landmark” bill with implications for the due process reforms of healthcare licensing boards in every state in the nation.

Undoubtedly, Louisiana will see this bill presented again. If not in the short session of 2019, then in the regular session of 2020. According to the Louisiana State Constitution, even though a non-passed bill in any given session will be withdrawn from the files of the legislature, a formal “continuous body” related to a bill (or “legislative instrument”) may meet on a regular basis between sessions.

Another reason to use the word “coma” instead of the word “death” is that Louisiana could very easily be subject to suit. If not the state itself, then the Louisiana State Board of Medical Examiners and other healthcare regulatory and licensing boards directly. This would be under the auspices of a precedent setting, and relatively recent, decision by the Supreme Court of the United States (SCOTUS). In North Carolina Board of Dental Examiners v Federal Trade Commission, SCOTUS laid out conditions by which licensing and regulatory boards could and could not act as agents of their respective states. In order to be considered a “state agency,” boards now need to show that they have a voting minority of “market place participants” in the profession being regulated. The other means by which a state regulatory or licensing board may come into compliance with the SCOTUS decision, and now, the Federal Trade Commission (FTC) mandate, is to have demonstrable and meaningful state oversight by an entity or entities which are not marketplace participants in the profession regulated by the board over which they are providing oversight.

The concern of SCOTUS and the FTC is that without meeting at least one of these two conditions, licensing and regulatory boards might act in their own interests rather than in the interest of the public. Too, SCOTUS and FTC, are concerned that beyond acting in the interest of their own professions over the interest of the public, boards may act in the interest of boards themselves over the fair and equal interest of given licensees or classes of licensees. This might be called “market capture via regulatory capture” and would be to the detriment of patients, the public, and licensees alike.

States whose regulatory boards do not comply with the conditions set forth in North Carolina Dental Board leave every member of every board including administrative staff and legal counsel vulnerable to suit in their professional capacities and as persons. Suits might be based in the violation of anti-trust laws, or on injury against persons (such as licensees) who were harmed without the benefit of due process of law.

Finally, we are choosing to use the word “coma” instead of the word “death” because healthcare licensees in every state across the nation, as well as their families, friends, and colleagues are being awakened to the injustices which have befallen physicians, and increasingly, other healthcare providers, since the passing of the short-sighted Healthcare Quality Improvement Act in 1986.

Louisiana is not alone by any stretch. It was foolish and immature for the Louisiana House Health and Welfare Committee to put SB286 to “rest” in the way they did. When the Physician’s Bill of Rights awakens from it’s “Involuntary Deferment” it may well be in a different state already positioned to make the rightful move. The first state will set the landmark precedent and if the precedent does not affect national policy, it will be followed by every state in the nation.

Preface to this story with additional links at HARBR News.

See Video of the May 2,2018 four hour Louisiana House & Welfare Committee Hearing which put The Physicians Bill of Rights to sleep. Start at 1 hour, 34 minutes (1:34).

BREAKING NEWS: Physician’s Bill of Rights Before the Louisiana Legislature: CALL TO ACTION!

By Christian Wolff | Healthcare Alliance for Regulatory Board Reform (HARBR) I HARBR-USA.org I April 20, 2018

Louisiana State Senator John Milkovich has introduced Senate Bill 286 before the Louisiana legislature and according to The Advocate reporter Katie Gagliano, The bill, dubbed “The Physican’s Bill of Rights” sailed through the Senate Health and Welfare Committee on April 4, 2018. According to Elizabeth Crisp, also of the Advocate, a similar House Bill made it through the House Health and Welfare Committee “without objection.” The House Bill (HB 277) was introduced by Louisiana State Representative Katrina Jackson. HARBR researchers discovered the Louisiana news on April 10 and sounded the alarm to its affiliates. The affiliates in turn sounded the alarm to their affiliates and numerous communications were made directly to these legislators. The communications were made by HARBR members and affiliates from all across the country. Our interest is that what happens in Louisiana has much potential to forward our mission of full due process for physicians (and other healthcare providers) when they’ve been brought before their respective boards to answer to complaints. What happens in Louisiana could set a precedent for change in the other 49 states.

Call to action: As of April 19, 2018, The bills have gone before their legislative counterparts (The Senate Bill to the House, and the House Bill to the Senate). According to Elizabeth Crisp, HB 277 passed the full Louisiana House, 94-0 without discussion. Unfortunately, it would appear as if Rep. Jackson’s bill was “ammended” at some point and in HARBR’s reading, it appears as if her bill may have been “watered down. With this kind of positive reception, why would the bill need to be watered down? The reasonable answer is that there is a lot of powerful opposition. Organizationally, there is Federation of State Medical Boards (FSMB) which has issued a subtle intimation of their opposition to the Louisiana Bills. Given the power of the FSMB, HARBR opines, the intimation may be intended as intimidation. The Louisiana State Board of Medical Examiners (LSBME) opposes the bills, as do, likely, every Medical Board in the country. A very powerful group called “Public Citizen” opposes the bills, and perhaps, due a lack of understanding, many private citizens may be opposing the bills as reflected by a number of articles written for other publications.

In support of the bills are some powerful groups as well. One is the Louisiana State Medical Society. Another is the Association of American Physicians & Surgeons (AAPS). The Healthcare Alliance for Regulatory Board Reform (HARBR) supports these bills.

In the end, it is likely that Governor John Bel Edwards will have to sign the bills in order for them to become law. At last report, Gov. Edwards had not been briefed on these bills. There is good reason to believe he will sign them, but we should not yet rest on the laurels of the Louisiana Legislature quite yet. The good news is that both bills received unanimous support from their respective full houses. This indicates that the nature of the bills are not encountering any partisan divides. In fact, the bills were introduced by Democrats to a legislature which has a Republican majority. Gov. Edwards is a Democrat who, prior to becoming governor, served two terms as the Minority (Democrat) Leader of the Louisiana House of Representatives.

News links:

Bill to shield physicians during investigations advances to Louisiana Senate floor, 

Legislature considers sweeping changes to investigations of doctor misconduct,

Another bill advances that would change investigations into doctor misconduct,

In Louisiana, legislature considers changes to protect doctors accused of misconduct, by Joanne Finnegan |

Referenced in FierceHealthcare’s article: AP investigation: Doctors keep licenses despite sex abuse, By JEFF HORWITZ and JULIET LINDERMAN | Apr. 15, 2018 AP News

Bill advances that could change how doctor misconduct is investigated in Louisiana,

Louisiana Needs to Rein in Unaccountable Medical Board, States the Association of American Physicians and Surgeons (AAPS), By Jane M. Orient, M.D., (520) 323-3110, janeorientmd@gmail.com | Association of American Physicians and Surgeons (AAPS) | TUCSON, Ariz., April 19, 2018 (GLOBE NEWSWIRE)

Proposal to overhaul investigations of doctor misconduct up for hearing Wednesday

Proposals to alter doctor misconduct investigations still evolving, advancing

House panel rejects ‘Physicians Bill of Rights’ after concerns raised over impact on patients,

Does Your Medical Licensure Board Protect You? | Op/Ed | By Jane M. Orient, M.D., (520) 323-3110, janeorientmd@gmail.com | Association of American Physicians and Surgeons (AAPS) | May 5, 2018

Contacts:

 

John Bel Edwards, Governor of Louisiana: Email contact form: http://gov.louisiana.gov/index.cfm/form/home/4, Phone: 225-342-7015 or Toll Free at 866-366-1121

Katrina R. Jackson, Louisiana State Representative: Email: jacksonk@legis.la.gov, Phone: (318)283-0884, Fax: (318)343-2879

John Milkovich, Louisiana State Senator: Email: milkovichj@legis.la.gov, District 38 Phone: (318) 676-7877, Fax: (318) 676-7879

Louisiana State Medical Society: Email contact form: http://lsms.org/page/SolutionCenter, or  publicaffairs@lsms.org, Phone: 800.375.9508 | 225.763.8500, Fax: 225.768.5601 Website: lsms.org

Louisiana State Board of Medical Examiners: Executive Offices (Contact: Rita Arceneaux): rarceneaux@lsbme.la.gov, Phone: (504) 568-6816 ext. 242, Fax: (504) 568-5754, Website: http://www.lsbme.la.gov/

The Advocate (Baton Rouge) | Journalist, Elisabeth Crisp: ecrisp@theadvocate.com

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