Opinion by Consumer Advocate Tim Bolen
The Administrative hearing set up by the Wisconsin Department of Regulation & Licensing (DRL) in the Vander Heyden matter will begin at 9:00 am Tuesday, June 8th and continue through June 9th, 2004, at the DRL offices – 1400 East Washington, Madison, WI. Check with the front desk for the meeting room.
Health activists from around Wisconsin will be attending, for good reason. This prosecution, in Wisconsin, is the “quackbuster’s” latest effort to twist the regulatory process to fit their desire to destroy innovation in health care.
The prosecutor in this case, James Polewski, brags of his membership in the National Council Against Health Fraud (NCAHF), and has sworn to uphold, and promote, that organization’s view of health care. The NCAHF corporate offices, we know, after having been evicted from Loma Linda University in California several years ago, now reside in a cardboard box in its current president, Robert Baratz’s, hair removal and ear piercing salon in Braintree, Massachusetts. Polewski also brags that he has no supervision at DRL.
NCAHF Baratz, we know, out-of-work for several years, was funneled over $90,000 of Wisconsin DRL money in “expert” fees, supposedly guiding DRL prosecutions against the NCAHF’s version of “health fraud.”
The NCAHF, already financially desperate, was recently hit with an $100,000 assessment of “attorney fees” for their failed, and foiled, attempt to stomp out the science, and profession, of Homeopathy, in California.
The Latest “Twist…”
It has always been difficult to understand the “quackbuster” approach to health care issues. For, even the average American, involved in their complicated daily existence, is aware, on a significant level, of both the problems in the American health care system, and the benefits of finding“alternatives.” The war between health and medicine – is ON.
It doesn’t make sense to most Americans, that there would be those, in America, that would be AGAINST INNOVATION in health care – for innovation is what America is all about. But that “against” position is what the “quackbusters” are all about. They are set in place to maintain the very profitable “status quo” of health care.
The latest “twist” in the “quackbuster” presentation is to maintain, in the Vander Heyden case, as presented by Polewski, that “the use, at all, of ‘Alternative Methods’ is outside the ‘Standard of Care’ and is therefore ‘Unprofessional Conduct,’ punishable by license revocation.”
In layman’s language, Polewski, and his “quackbuster” masters, are trying to stomp out ALL Alternative practices in Wisconsin, by getting this concept approved by a health board, and then using the “precedent” against all other practitioners in the State.
Polewski’s gambit, under most circumstances, wouldn’t even see the light of day, for there is NO LEGAL BASIS for his argument. But he got it this far, for one simple reason – he is not supervised. He has no chain of command to review his cases before they start into the system, or as they continue. He is, as he has stated on video, autonomous. He answers to no one. And, it shows.
Polewski’s case should be an embarrassment to DRL management. There are two “quackbuster” prosecutors at DRL, Polewski and Thexton. Of the two, Thexton is clearly the better attorney by leaps and bounds – and Thexton is NOT very good, at all.
Polewski’s cases are so scruffy looking they remind of a ransom note – pieced together from letters cut out of two-month old newspapers, and you get a queasy feeling wondering exactly what substance he used for glue.
In the Vander Heyden case, Polewski is coming to court without an “expert witness,” of any kind, to explain his position that Vander Heyden “is guilty of ‘Unprofessional Conduct.'”
Huh?
That’s right. NO expert witnesses. Polewski couldn’t find EVEN ONE Dentist in Wisconsin that would come forward and testify that Vander Heyden’s use of innovation was “outside of the Standard of Care.'”
So, why is this case going forward? Good question – and one the people of Wisconsin need to ask DRL Secretary Donsia Strong Hill.
Not only could Polewski not find a Wisconsin Dentist to testify, but HE COULDN’T FIND ONE ANYWHERE in the United States that would back up his ludicrous assertions. I was hoping Polewski would bring one of those “quackbuster testifiers,” but apparently he didn’t have $90,000 available, in his case budget, to hire the “hair removal expert” from Braintree, Massachusetts.
Polewski’s case substance is entirely based upon, he claims – get this – the “understanding” of the DRL “Investigator.” The Investigator position at DRL requires NO KNOWLEDGE of health care, and a high school diploma.
When pressed for information about whether he followed DRL guidelines to develop this case, Polewski will not respond. The ALJ, Ruby Jefferson Moore, despite petition, will not force him to respond before the hearing.
So, if Polewski’s case is this poorly done, then it should be an easy victory? True, but this isn’t a perfect world, and there are other factors involved.
So, there is a problem?…
The Dental Board, itself, is a problem. So is the Staff that services it. The “fix’ is probably in…
In Wisconsin, we’re watching the Krahenbuhl dental case. Polewski has been after Lee Krahenbuhl DDS for years, at the behest, I suspect, of one, or more, of the current dental board members – probably, for personal reasons, using the board position to inflict damage. Currently, Krahenbuhl is awaiting a decision in his case, where an ALJ recommended “dismissal” of the case against him. But the dental board wants a variance – and will announce it at the next dental board meeting. The case is about “Microdentistry” and Polewski calls this whole INNOVATIVE form of dentistry, “fraud.”
If the Wisconsin dental board, in any way, decides to declare “Microdentistry” as “fraud,” we’ll know that Polewski doesn’t have to prove cases against dental innovators, because the dental board, illegally, behind closed doors, and without public oversight or evidence, will have declared their policy against innovation.
The “fix” is probably in…
How do I know that? A recent development verifies my original suspicion. I think I’ve found another “quackbuster” at DRL. An employee of the DRL, one Karen Rude-Evans, who has been on my e-mail list for about a year-and-a-half, recently contacted me by e-mail saying “I do NOT want to receive any more of this crap from you. You are way off base and disseminate false information to unsuspecting people.”
Now, normally, I would just write someone like this off as a nitwit, and point them to the “Unsubscribe” button. But this one (Karen Rude-Evans) got my attention, because she is an administrative assistant to the Wisconsin dental board, itself. In that capacity she would have direct access not only to dental board members, but to their office staffs, their spouses, their children, etc… and would have the opportunity to deliver her biased “quackbuster” type opinion, outside of public scrutiny…
So, how do we win these cases?
They are not easy. They take a lot of work. So much so, that while you’re winning the case, you might as well solve some other problems along the way.
I used to just recommend that if you suspected that “the fix was in,” the client, in the “legal strategy,” simply set the case up for appeal, right from the start, going through the Administrative hearing quickly, and getting the case into a real courtroom. I don’t do that any more.
Now I recommend that the client set up the case for appeal, plus SUE the prosecutor, etc., and the board, in Federal court, on “due process”grounds. This works better, for it levels the playing field in terms of costs. Suddenly a health board has to budget money for a legal defensive action, defending not only the board, but their OWN personal net worth. Plus, they suddenly get a reality check – they find out that there are boundaries to their authority – and if they step beyond those, they are personally liable for their actions. And, of course, they get the public attention they DO NOT want.
Stay tuned…
Tim Bolen – Consumer Advocate