Thursday, December 15, 2016

My Letter Submitted to the Delaware Board of Dentistry at My Rule to Show Cause Hearing 4 October 2016





Executive Summary 

The mandatory Criminal Background Check program (CBC) is an unnecessary burden on the profession and an infringement on our rights. I feel obligated to resist as an act of civil disobedience. 

The CBC program resulted as a misguided response from the legislature in response to the Bradley case, but Bradley had no criminal background prior to being apprehended, and would have passed a CBC. 

CBC repudiates a basic tenet of American justice: innocent until proven guilty—the burden of proof lies with the accuser, not the accused. 

Lack of efficacy of the program: large cost in time and Division of Professional Regulation (DPR) resources for little or no return. How many criminal histories not previously disclosed to the DPR were uncovered? 

The meager results of this program does not justify the erosion of civil liberties. 

Poor selection of target groups, for instance: the practice of dentistry and dental hygiene takes place in open rooms, with no doors, no privacy, team treatment, and no disrobing. Children are more at risk unsupervised in the park than in the dental office. 

The DPR has the authority to sanction me, but does not have the right. It also has the discretion to permit me to continue to practice until my next licensee renewal. 

In Mar 2016, the DPR renewed my license until May 2018 despite my being out of compliance at the time. My application affirmation acknowledged my awareness of Title 24, not my compliance. At no time did I misrepresent my status. 

 I will soon turn 64 years of age, and I am approaching retirement. I am requesting I be permitted to continue practicing until my next license expiration in May 2018 at which time I will not request a renewal unless I am prepared to complete the CBC. 


Letter to the Division of Professional Regulation and the State of Delaware Board of Dentistry and Dental Hygiene 



Thank you for the opportunity to address this hearing board. I intend to use this letter to fully explain my position in regards to my noncompliance with the law mandating a criminal background check. I do not intend to comply, and I will explain why. 

My initial reaction to your first letter back in 2015 was the same as that of many of my colleagues. It was one of anger and frustration. It seemed there was to be no end to the ever increasing burdens and costs, both reasonable and unreasonable, imposed upon the conscientious healthcare providers of this state by a forever thriving state bureaucracy. 

Some of these burdens are reasonable and necessary such as the years spent in training and residency. Board examinations are reasonable as they ensure that only qualified professionals receive a license to practice. Still, they are costly and logistically challenging. Follow that up with a lifetime of continuing education, the daily regulatory burdens such as infection control requirements, OSHA, HIPAA, and radiation safety. There are business related burdens: malpractice protection, dealing with insurance companies, staff hiring, firing, and training, and finally, provisions for healthcare, pensions, and unemployment insurance for staff. Healthcare providers also pay certain professional taxes that are unique to our occupations. One might include renewal fees for drug licenses in this category and indeed the renewal fees for the dental license itself. 

Some of the burdens carried by healthcare professionals are unreasonable ones. I seem to remember a time several years ago where every 6-12 months for a period of about two years, the state mandated a new and evolving prescription form. Cost burden, logistics burden, and much of it wasted. And now, the state insists on a criminal background check. One more burden added to an already very long list of burdens, some reasonable, some arguably unreasonable. 

Dentistry is a very rewarding profession. It's rewarding in both job satisfaction, and standard of living. But it comes with a significant number of burdens. I gladly accept the burdens associated with providing high quality, safe dental care to my patients, but I chafe at those that are wasteful and malicious. 

Let me tell you a little bit about my background. I graduated from UCLA School of Dentistry in 1979, and completed a one year General Practice Residency the following year at David Grant USAF Medical Center at Travis Air Force Base in California. I spent a career in the Air Force and retired in January, 2001 with 21.5 years of service. Along the way I completed the two-year General Dentistry Residency at Keesler Medical Center (Keesler Air Force Base) in Biloxi Mississippi. I am Board Certified by the Federal Services Board of General Dentistry. Nine of my twenty one plus years in the Air Force were spent overseas in the United Kingdom. My final assignment was here at Dover Air Force Base, where I chose to remain after retirement. 

Since retiring from the Air Force, I have worked part time here in Dover. From 2001 until 2007, I worked two days a week as a contract dentist for the Division of Public Health at the James W. Williams State Service Center in Dover. I treated Medicaid eligible children, and left that position when they hired a full time dentist for that clinic. I declined reassignment to another clinic in Newcastle Delaware due to the commute. After leaving that contract position, I began working two days a week for Dr. Robert Webster DDS as an associate doing general dentistry. I've been there from 2007 until the present. Concurrent with those two positions, I have worked one day a week since 2001 in the office of Dr Bruce Lauder DDS operating a walk-in emergency dental clinic. I see few scheduled patients, but offer timely emergency dental service on a first come, first served basis to patients with pain, swelling, and other dental emergencies such as broken teeth. This practice consists largely of operative dentistry and exodontia. Many of these patients have no regular dentist or cannot get a timely appointment with their regular provider. This type of practice is unique in Delaware to my knowledge, and I receive frequent referrals from many local area dentists. 

I will be sixty four years old in January of next year. I have reduced my work schedule to three half days per week at the practices of Dr Webster and Dr Lauder. While I clearly have one foot out the door of my dental career in anticipation of full-time retirement, I would rather not end that career just yet if I have a choice in the matter. I had tentatively planned a likely retirement sometime before my license would come up for its next renewal in May 2018. I did not seek out this present confrontation with the state, and I would have much preferred to be left alone to complete my career at a time of my own choosing. Unfortunately, circumstances have changed now, and the outcome of this hearing may end up determining my future plans. 

I'm a libertarian. That is my politics, as well as my philosophy of life. Politically it means I want a smaller, less intrusive state. In particular, we seek to jealously safeguard civil liberties. I view my noncompliance with this mandatory criminal background check as an act of civil disobedience.

 “One has a moral responsibility to disobey unjust laws.” --Dr. Martin Luther King, Jr. 

Dr. King knew the power of civil disobedience as a peaceful means of opposing discriminatory laws in the south. Libertarians admire Dr. King for his principled positions. Actions like lunch counter sit-ins and protests against unjust laws are part of America's DNA. 

Too many Americans these days seem to have a benign view of government. The founders felt otherwise. They recognized government for what it was. Force. 

“Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.“ --George Washington 

Years later, during the red scare of the 1950's CBS newsman Edward R. Murrow succinctly characterized the relationship between citizens and their government. 

"A nation of sheep, begets a government of wolves"

Anyone who believes his duty as an American is to blindly obey his government is a subject/slave, not a citizen. Suffice it to say, I believe this mandatory criminal background check law is unjust, overreaching, and an infringement of my rights and the rights of every Delaware healthcare professional. I feel I have a duty to refuse it. 

 In the United States, we have a legal system which is based upon certain standards. One standard applies here above all others. It's so important that we have a Latin equivalent to demonstrate what high regard we have for the principle it expresses. 

 Ei incumbit probatio qui dicit, non qui negat 

Translation: The burden of proof is on the one who declares, not on one who denies. 

We're talking about the presumption of innocence. This principle of presumption of innocence isn't just a cornerstone of the American legal system, it is a universal tenet of human rights. It is incorporated in the UN's Universal Declaration of Human Rights (UDHR) in Article 11. 

This law mandating a criminal background check essentially implies that every health care professional in Delaware is presumed guilty unless and until they can prove their innocence. This is our legal system turned upside down. What happened to innocent until proven guilty? That is the appropriate standard in every criminal trial conducted in this country. Now I realize that this is a hearing, and not a criminal trial, but seeing as how it is the existence or absence of a criminal background that is in question here, and that the outcome of this hearing could be to strip me of my right to earn a living in my chosen profession, I believe I have the right and a duty to demand that any burden of proof be shifted back to the state where it rightfully belongs. The very existence of this law equates to an accusation against me that I am a criminal. I am not a criminal. If your position is that this law is just and enforceable, and that I may be presumed a criminal then I insist that the burden is on you to openly accuse me, name my accuser, and present your evidence. This law presumes it can arbitrarily transform the state's burden to prove into my burden to refute. I refuse to accept the validity of this law to shift the responsibility in that fashion. That is the fundamental basis for my refusal to comply with this law. 

We all know the motivation for enacting this law. In 2010-2011, Earl Bradley, a Lewes pediatrician, was indicted on 529 charges of molesting, raping, and exploiting 127 child patients. For over two years, the story was headline news, not just in Delaware, but across the country. Bradley was ultimately found guilty on all charges and was sentenced to 14 consecutive terms of life plus 165 years in prison without parole on June 26, 2011. 

Delaware politicians, in a well intentioned but, in my opinion, misguided attempt to address these horrendous crimes and prevent future occurrences, introduced legislation (SB 98) in June of 2013. The bill mandated criminal background checks, not just for dentists, but for hygienists, podiatrists, chiropractors, physicians, occupational therapists, optometrists, physical therapists, athletic trainers, speech pathologists, audiologists and hearing aid dispensers. Hearing aid dispensers? Seriously?? It was passed by the legislature and ultimately signed by the governor in June, 2014. 

Marx once said: 

“Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies.” 

It was Groucho Marx who said that by the way, not Karl Marx. And how right he was. This legislation misinterpreted every lesson the Bradley case had to teach us. 

The system clearly failed these children. But where did the failure occur? There had been numerous allegations against Bradley for years beginning as far back as 1994 when Thomas Jefferson University Hospital investigated a patient’s complaint of sexual misconduct. There was a second allegation in 1995, but the hospital could not verify the claims. Bradley abruptly left the state and moved to Delaware. For 15 years, Bradley continued to commit these atrocities. How did he escape justice for so long? Who dropped the ball? The state medical society in Delaware had another opportunity to stop him in 2004, but they failed. Bradley’s sister Lynda Barnes, who had served as an office manager at his medical office, had alerted them that parents had complained to her about inappropriate touching by Bradley. Allegations were made again in 2005. Police records show that a nurse reported that he videotaped kids playing and other doctors reported complaints about long and unnecessary vaginal exams. When police in Milford, Delaware sought a warrant to arrest him for inappropriately touching a child patient, the Attorney General’s office concluded at the time that there was insufficient evidence to warrant prosecution. 

There are plenty of people who failed to try, and some who tried but failed to stop Earl Bradley. That's a tragedy. Clearly our first instinct is to strengthen the system against a repeat occurrence of this terrible victimization of children. We currently have laws on the books that create a duty to report for healthcare providers and staff if they suspect abuse. I don't know when those laws came into effect. I believe it was fairly recently, and it may even have been in response to the Bradley case. Those requirements are totally appropriate. If more people had suspected Bradley, more may have reported those suspicions earlier, and he might have been stopped sooner. 

 I believe the most effective solution to arise out of these events was the increased public awareness that resulted from the flood of publicity. No misguided state policy initiative can come close to accomplishing what the heightened public awareness of this problem has accomplished. It's sad that honest and caring healthcare providers should be subjected to an unwarranted level of suspicion, but if parents were just a bit more likely to believe an unusual story from their child as a result of the Bradley affair, or a little more likely to insist on being present in the exam room for their child's care, then that would be a positive result. It seems to me there is nothing the state could do that would have a more positive impact on the problem than the benefits derived from increased parent awareness. 

But instead, what we got from the state was a law that mandates criminal background checks. Was it not obvious to those legislators that this law did nothing to address the actual problem? Earl Bradley had no criminal record prior to his arrest. He could have submitted his fingerprints and completed his background check with flying colors and gone on to abuse more children totally unrestrained by the state. 

It's also worth noting that the program might even be redundant, though I can't be quite sure of this based on the information I was able to gather online. Your notification letter promises that an adverse finding in this hearing will result in a report being made to the National Practitioner Data Bank (NPDB). The NPDB and it's predecessor the Healthcare Integrity and Protection Data Bank (HIPDB) have been collecting adverse information on healthcare practitioners since before I started practicing dentistry. I don't know the exact nature of all the information collected or how the breadth of information collected may have expanded over the years, but at least based on an infographic that I found on the NPDB website, they currently collect what they refer to as Judgment or Conviction Reports (JOCRs). According to the infographic, these include Healthcare Related Civil Judgments or Criminal Convictions Taken in a Federal or State Court. I concede that you would be better equipped to know the exact nature of the data collected than I would. This is your business after all. Nevertheless, I'd be curious to know if the background check information might not be redundant for members of healthcare professions who are already monitored by the NPDB. Did the legislature pass a feel good measure that infringed on practitioner rights while offering little or no benefit to public safety purely based on the optics of maximum voter appeal? Regardless of the nature of this data collection, I feel healthcare practitioners are being unfairly deprived of their presumption of innocence by this new law. 

The background check is bad enough, but think about this: the government feels it can freely include the Orwellian twist of adding a fingerprinting requirement without concern for it being challenged. When did fingerprinting become standard operating procedure for anybody but criminals? Ask your mothers and fathers and your grandparents if they've ever been fingerprinted. You won't need to go back too many generations before you get an answer like, “No, I've never been fingerprinted. That's only for criminals.” Is America so complacent now that the government can institute mandatory fingerprinting and no one even bats an eyelash? Is it so incorporated into our concept of normal that we don't see how perverted it is? We're raising the first generation of Americans who accepts that that's just the way it is. I was fingerprinted in the military, but I thought they had a pretty good reason. “If we recover your grotesquely mangled body from a combat scenario, we want to be able to identify your hideously disfigured remains.” I can't say what perverse purposes the government might be putting that database to at present, but at the time, I thought it made pretty good sense. But now, in a civilian environment? No way! Politicians, however, always feel compelled to do something. They need to demonstrate a response to every problem even if it is the wrong response. Even if it is a bad response. They need to generate heat even if they generate no light in the process. Appearances are what matters, and that's how we got this law. 

 How in the world did they select the categories of providers to whom this law would apply? I already expressed my incredulity that hearing aid dispensers were somehow under suspicion. Physical therapists I can maybe understand. Their job is to therapeutically “touch” people. But it's usually (always?) in an open room setting with other patients and therapists present. Why would anyone worry about the possible nefarious opportunities that might be afforded to a physical therapist in the course of performing their normal duties? 

 And why are dentists and hygienists on the list? For as long as I can remember, dentists and hygienists have always worked in open rooms with no doors and no privacy. And if you'll forgive my gender stereotyping, most hygienists and a significant number of dentists for that matter, are women. Women, God bless them, and for whatever reason, don't commit sexual offenses against children. Furthermore, for every single function I perform as a dentist I have a dental assistant in the room with me. And there's a 99% chance she's female too. It is also true that under no circumstances would I be in a professional position to ask my patients to disrobe. For absolutely everything I do as a dentist, the patient should expect to remain fully clothed. To suggest otherwise to a patient would be a pretty clear sign that something was amiss. 

And while we're on the subject, it's interesting to note who does not need to pass a criminal background check. Legislators and government officials, that's who. I know. I ran for Governor in 2012 so I'm clearly no stranger to futile efforts in support of principles. (1.0% of the vote. Go Libertarians!!) No background check for me back then. So somehow we're all under suspicion, and must prove our innocence, but apparently politicians' behavior is beyond reproach? And for what it's worth, if I'd won in 2012, I'd have vetoed this bill. 

Our children are more at risk unsupervised in the park than they will ever be visiting their local dental office. If passing a law would reduce the likelihood of another awful episode like the Bradley affair ever happening again, I'd be all for it. But while there were lots of people who failed those children, none of the healthcare professionals in Delaware who are not Earl Bradley are among them. 

I have reviewed the Professional Regulation Section of the state's online Public Meeting Calendar. There appears to have been scores, or perhaps hundreds, of Rule to Show Cause hearings scheduled for the various professions listed in SB 98. Apparently I am not the only one who has shown some reluctance to comply with this law. Judging by the numbers of lined through names, it is obvious to me that most of these refuseniks eventually succumbed to the leverage that you hold over them, namely that they either submit to the will of the state or they risk no longer being allowed to earn a living in their chosen professions. This entire affair makes me very sad for America. I weep for my country. 

I recently had a series of email exchanges with Mr. Akin, the Chief Hearing Officer. His responses were cordial and quite helpful in explaining the nature of the Rule to Show Cause hearing that had been scheduled for me. But I was less satisfied with the reply I received to my request for metrics on the response from Delaware's regulated providers to the Criminal Background Check (CBC) program. Surely the Division of Professional Regulation (DPR) monitors such things. I would very much like to know what efficacy this program has demonstrated. There are several statistics that would be of particular interest to me if I was evaluating this program: How many healthcare professionals in Delaware were impacted by this new law? With all the professions named in SB 98, the number of mandated CBCs must register in the thousands. Most importantly, I'd like to know how many CBCs have revealed a criminal background that was not previously disclosed to the (DPR), if not for all professions, at least for Dentistry and Dental Hygiene. I would think you should be able to summon that number up from memory without even referring to the statistics. I suspect that the number of CBCs that have revealed any disqualifying information is zero. My impression is that the DPR and the various professional boards have devoted an extraordinary amount of time and resources for very little, if any, benefit. If I am mistaken about that, I wish you would please advise me of that fact. 

I would hope that I have convinced you that the requirement for a criminal background check is at best, an unnecessary burden, and at its worse, an insulting accusation and a waste of resources. It repudiates my right to be presumed innocent. Furthermore, it fails to even address the actual problem it set out to solve. But it's the law, you might reply. Jim Crow in the south was the law. Apartheid was the law. Some people believe that we live in a democracy, but technically, we live in a republic. A republic is a form of government that practices democratic principles, but places certain rights beyond the reach of a majority vote. Rights such as free speech, freedom of religion, and due process for matters of enforcement of the law. Pure democracy is when your rights can be denied by the vote of the majority otherwise known as mob rule. Justice is when principles of individual human rights supersede the will of the mob. Citizens have a duty to oppose bad laws, even to the point of civil disobedience. It's the American way. 

 “The reasonable man adapts himself to the world. The unreasonable man persists in adapting the world to himself. Therefore, all progress depends on the unreasonable man.” --George Bernard Shaw 

I hope you will show me some forbearance. I have read Title 24 Chapter 11 of the Delaware Code. I even think I was able to understand 80-90% of it. I know what your disciplinary options are as relates to this case. But as near as I can tell, you have some discretion in this matter. I saw nothing in the text of Title 24 that compels you to act against me despite the fact that I have not complied with the law. The notification letter you sent me for my Rule to Show Cause hearing speaks of a possible revoking of my license. Am I mistaken, or do you not have the option to decide that despite my noncompliance, neither justice nor the interests of the residents of Delaware would be served by taking such an action? My preferred outcome, which should come as no surprise to anyone, is you read my letter, weigh your options, and decide to show some leniency. 

In March of 2016, the Division of Professional Regulation approved my license renewal through May of 2018, even though I had not been in compliance for almost two months. I don't know what the legal implications of that are; perhaps none. It was probably nothing more than the poorly coordinated workings of a cumbersome bureaucracy. I would like to stress that at no time did I misrepresent my status to the DPR. I was a bit surprised that the affirmation required on the application asked only that I confirm my awareness of the provisions of Title 24, not my compliance. To be honest, I fully expected to be refused a license renewal at that time. Nevertheless, I would be more than grateful if I were allowed to continue to practice until my next license renewal period beginning May 2018. As I mentioned earlier, I am almost sixty four years old now. Even if the decision was left up to me, I don't intend to practice too much longer, perhaps another year or two. If you were to refrain from taking action against my license, I would agree not to request a renewal of my license in 2018 unless I decided to comply with the requirement for the mandatory background check. 

 I realize that I am in no position to set terms for you, and I'm not so naive as to believe anybody owes me anything. But I don't wish to short change myself either by not directly asking for what I want. I would not have bothered to contest this matter if I didn't have a preferred outcome in mind. If your decision is to revoke my license, then so be it. For months now, I have made it clear to family, friends and colleagues that I felt strongly enough about this to stand my ground. One fellow dentist couldn't understand why I would take such a position. I couldn't explain it to her adequately at the time. Maybe I'll send her a copy of this letter. I've second guessed myself a lot. I've wondered if I'm making too big a deal out of this. In some sense, I've painted myself into a corner. The only justification there could possibly be for me to change my mind now would be cowardice. I feel there's no turning back. 


 Is it really so difficult to believe that an individual like me at this late stage in my career, would balk at the prospect of yet one more hoop to jump through? A hoop which essentially says that after practicing dentistry for 37 years, now we want to you to prove you're not a criminal. I'm reminded of a book I read years ago. It was either a Tom Clancy or a John le Carre novel. I don't even remember now. There's a character nobly standing up to torture by the Russians for some sort of information. He resists for weeks, and then one day, as his jailer is walking him back to his cell, the jailer stops in a corridor and pushes the prisoner to the ground and proceeds to pee on him. Despite all he has endured up until that moment in resisting the brutality of his captors, that one final display of total control, of contempt on the part of his captors, finally breaks him. It was the straw that broke the camel's back. That's a bit like the way I feel. I feel like I'm being pissed on. I've been a productive member of society my entire life. I've been hitched up and pulling the wagon. Doing good work; paying my taxes etc. But sometimes I feel like the state treats me as if I am nothing more than a resource to be mined. Maybe I should take off the harness and just get in the wagon. There is a novel called Atlas Shrugged by Ayn Rand which means a lot to me. It is the story of a dystopian society in which government grows more and more powerful and constantly increases the burdens it places upon the most productive members of society with the justification that it is for the public good. Eventually as the burdens increase to intolerable levels, those producers start to disappear one by one. They have decided to go on strike. The book is the story of the rapid decline of civilization as its most productive people decide they'd rather go on strike than to continue to produce while being disrespected by the very civilization they helped create. Atlas Shrugged was published in 1957. Ayn Rand could see the future that awaited us. I'm not just referring to background checks. 

 I am much luckier than most of my colleagues. They're younger, they own active practices, and they have huge responsibilities to their families, their staffs and their patients. Many of them have significant debt as well. They don't have the luxury of acting on their conscience. I do. Sometime soon after the 4th of October, I will either still be a dentist or I will not. We all have to retire sometime. 

Thank you for your consideration of this matter. 

 Jess McVay