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01/25/05 |
January 25, 2005 -- The Joint Committee on Boards, Commissions, and
Consumer Protection, chaired by Liz Figueroa (D-Hayward) held a “sunset
review” meeting to hear from the Enforcement Monitor
Frank H. Lucido M.D.
Diplomate A.B.F.P.
2300 Durant Avenue
Berkeley,
Ca, 94704
510-848-0958
fax 510-848-0961
[email protected]
January 25, 2005
Dear Senator Liz Figueroa and Committee
Members:
The vast majority of the Medical Board members are talented,
dedicated people.
They work hard in the public interest, and basically for
free. They are true public servants. Although I have many disagreements with the
direction that the Board’s leadership has allowed their staff to go, I believe
with proper monitoring by truly independent observers, like
MedicalBoardWatch.com, Society of Cannabis Clinicians, Americans for Safe
Access, and others that the Board can do a service to California
citizens.
From what I have seen, the Enforcement Monitor falls far short
of an independent report.
I am intimately familiar with the issues
touched on in the 3 pages out of 294 of the Enforcement Monitor’s report dealing
with medical Cannabis. This section is so inaccurate, that it bodes poorly for
expecting accuracy in the other 291 pages.
See Appendix A.
This report
was basically directed by Mr. Thornton, who came out of “retirement” to work
with the Monitor, and his staff, and perhaps elements of the AG’s office
staff.
Although Ms. Fellmeth is most likely a good consultant in many
ways, she is way too cozy with MBC legal staff for someone doing an independent
investigation, as you can see from my minutes of the 1/21/05 meeting. (See also
addendum at end of these minutes relating to last year’s 1/30/04 meeting of the
DMQ).
MBC 1/21/05
Special meeting to discuss the Enforcement
Monitor’s Report
Selected excerpts of the 3 hour 30 minute
meeting
Thornton: worked in Enforcement for 30 years
Came out of
retirement to work with the EM
Worked with Ms. Fellmeth for over 12
years.
Overview:
Licensing
Detect substandard
practice
Restrict or remove license for incompetence, negligence, dishonesty,
or impairment
This involves a slim minority of physicians, who can cause
irreparable harm.
“Incompetent physicians kill people, and the longer
they practice, the more lives they endanger.
It is time for fundamental
structural change.”
(Dr.Lucido’s note:
There was an intense push on
part of leadership to create “unanimity” on accepting selected parts of the EM
report, especially:
“Vertical prosecution”
“One way is to transfer MBC
investigators to DOJ”
(and then this was the only way
discussed)
Before any discussion, Dr. Wender (or Dr. Karlan) pushed for a
motion,
“Need to have a motion to support vertical prosecution
model”
To her credit, Board Member Rice suggested discussion of vertical
prosecution.
The further discussion was from the same presenters (EM and
MBC staff, rather than among the Board Members.)
EM Report Co-author
Papageorge: “You have outstanding staff, dedicated, excellent.
But need more
tools to successfully prosecute, or dismiss.”
Recurring themes: “mission
is consumer protection”
MBC needs resources/investment/money.
Prosecutors
need to buy in early
Cost recovery bill to respondent
(this is an
open-ended solution to their budget problem, when they can bill the doctor being
investigated for their “fishing expedition” investigations.)
Still with
no discussion by any Board Members
50 minutes into a 4 hour meeting:
Dr.
Karlan: “I wonder if we are beating a dead horse. We have unanimity of
opinion.
I call the vote.”
Board MemberYaroslavsky to her credit
called for more discussion so as not to just rubber stamp.
Karlan: “Right
now there’s unanimity. There’s been no negative
statement.”
Discussion again was just by staff and EM.
Chief
of Enforcment Jerzac: “We are not broken.
EM points out areas for
improvement
It makes no (mention?) of what we do right
It’s why the
Enforcement staff embraced the report
The EM asked the staff.
Many ideas
here are ours
We submitted them.
They had to write it.
They asked for
questions, supportive data, and existing resources
Our staff have contributed
endless hours of time, dedication, diligence, detail to give them the report
that they submitted to you.
We had decrease 25% (?staff) when EM began
EM
came in.
Like housekeeping was asked to tell us where the cobwebs
are.”
(Dr. Lucido’s note: So basically somehow this understaffed
Enforcement staff has endless hours to write their own “independent monitor
report”
60:00 minutes
Mr. Thornton:
“We will work with the
legislature, Figueroa, AG’s office…
1st: these are YOUR
investigators
you have to let us know if that’s the direction you want to go
in
once you vote and tell us that’s what you want us to do, then we can start
to ….work with the other (parties?)”
Some public
comment:
costs…
misplaced priorities
attitude of staff
Need adequate
training, especially Bearman v Joseph (MBC)
Sandra Bressler from CMA:
“Note that EM report says transferring the investigatory staff from the MBC
to the AG’s office is the OPTIMUM way, but not the ONLY way
CMA does not
support this, for a variety of reasons.
For many years: great deal of
difficulty of getting accurate financial billings from AG’s office…
MBC was
considering hiring its own attorney due to difficulty getting justification for
billing from AG’s office..
Not in favor of transferring internal
investigative staff to AG’s office.
The consequences are unknown, details
unknown….
Wender: “pursue the concept, not
details”
1:15:00
Board Member Aristeiguieta (new DMQ committee member)
“Recommendation #22: total funding unknown
This is the first time I’ve
heard that our investigators would be transferred to AG’s office”
Wender:
“this is one point of the concept and that requires a lot of other things to
happen and we’ve a long way to go on that?)
(Dr Lucido’s note: “CONCEPT”
comes up over and over:)))))))
Aristeiguieta: “Just speaking to the
motion…”
Karlan: I’ll call the question right here. We have discussed
with both sides, pros and cons…
Aristeiguieta: Dr. Karlan, I’m sorry. I
was recognized and would like to finish my statement.
Dr. Karlan: You
made your statement.
Aristeiguieta:
I haven’t finished my statement.
I’d like to finish my statement.
Karlan: Go
ahead.
Aristeiguieta:
I’d like to include in that motion that we make
it clear to legislature that this cannot happen with existing resources
Our
organization is at a zero sum game so we need earmarked funds to make this
happen
Wender: that’s basically a given and that’s another issue of fee
increase. I agree with you
All in favor of the motion?
Alexnder: Hold
on a second please. I don’t know what the motion is.
Wender: We’re not
going to tell you. (laughter)
Karlan: the vertical prosecution as stated
and the amendment we ask for legislative change with understanding that Lori
(Rice) added
Supporting this in concept
Funding costs, etc
We just want
to get this moving so we have consensus for Tuesday.
Now if you have
additional comments… be glad to talk to you after the meeting.
Amendment
passed, no nays
Motion passed, no nays
(Dr. Lucido: I don’t believe he
asked if there were any abstentions)
1:18:00
Karlan: so we have
unanimity of opinion and that’s the concept what we said before.
It’s not a
black and white decision…
That’s what we want for Tuesday.
(Dr. Lucido’s
note: Dr. Karlan was spouting unanimity of opinion before any discussion and
long before a vote)
1:54:00
Yaroslavsky: who decided today’s
agenda?
Thornton: I did it (as Executive Director)
Alexander: Can
we assume these are the items you need our guidance on?
Thornton:
Yes.
End of my selected transcripts.
Discussion:
The
Enforcement Monitor was NOT an independent Monitor.
This MBC, especially the
legal staff needs an independent audit of all cases.
I believe that the
revolving door between the MBC legal staff, the California Narcotics Officer’s
Association (CNOA), the Bureau of Narcotics Enforcement, and possibly the DEA
needs to be investigated.
Thank you,
Frank H. Lucido
MD
ADDENDUM:
Transcripts of 1/30/04 Medical Board DMQ meeting in
which Board Member Steve Alexander confronts staff member Nancy Vedera and
Enforcement Monitor lead author Julianne D’Angelo Fellmeth for smirking during
Dr. Lucido’s public comment:
ALEXANDER: I just want to comment real
quick, even though I know this is public comment section, and just make an
observation. It just seems like for some reason or another, I can't put my
fingers on it, I do a lot of public facilitation and meeting management, that
we're creating a polarization here. I'm watching the looks on people out in the
audience. Eighty percent of communication is non-verbal, so it doesn't matter
what people say oftentimes, it's how they say it and how they deliver it. I
don't know you at all, and I don't know your background, so I can't have any
opinion on that. I'll state for the record, I've never smoked marijuana. I was
a product of the 60's. I went to Woodstock. I just was raised by a family and
in a culture that I didn't do drugs. You know, I'm anomaly, I guess, for my
era. But, nonetheless, my dad died of cancer and went through that process, and
I saw the benefits of what he derived from this process.
It just strikes
me as odd, Barbara asked if we could have someone from the courts talk to us,
Carlos (Ramirez) got up and said, 'We'll tell you.' Well, they're cops, they're
the Attorney General, they are not the courts. We are not hearing from the
courts, we're hearing opinions about the courts, and I'm watching Nancy (Vedera)
here, sort of looking and, you know, the bottom line is what you communicate by
your body language to us is really disrespectful for the public that are coming
up and testifying to us. I don't have an opinion on this, but I'm watching the
polarization that we're creating between our staff and I don't mean Ron, and the
public that are trying to educate us.
Now, you could be 100% wrong on
this issue, I don't know. But I'll never know that, because all we're doing is
hearing the filtered side of things. And I don't appreciate that. That's not
helpful to me as a board member. It shows a bias coming in. So now the
paranoia or suspicion that you raise says to me, 'Pay attention, Steve.'
Several people have come and testified to us, I think over a year, and they
continue to testify with thisÉ that sense of animosity toward this board, toward
our staff, toward the AG's Office. I, for one, as a board member would like to
end that. And, again, get to the medical basis for these issues, the medical
issues that we're dealing with, and get out of the enforcement versus the public
phenomena that I think we've fallen into somehow.
And if nobody else
senses it than me, then I'll take full responsibility for it being my issue and
no one else's. But I'm watching it happen at every single meeting. These guys
get up and testify, and the AG's guys get up, or our attorneys get up, and they
either smirk at them, or they dish them, or something happens that creates a
tension. And it's not an either/or or a right/wrong. I just think that this
board's authority and ability to investigate this issue, just like with
electronic medicine, find out the facts, find out the trends, find out what's
emerging here, and then for us to take some position on that relative to that.
And in the meantime, I think we're basically the tail is wagging the dog.
That's just my perspective, for what it's worth. |
