URGENT: All NC Physicians having had any adverse engagement with NCMB or NCPHP - Get Your Request for These Records Done IMMEDIATELY

Sneaky NC Law: You will not be able to access these records as of 10/3/2023

Attention: Physicians and ALL Healthcare Practitioners Licensed in North Carolina Who Have Had Dealings With NC Medical Board or NC Physicians Health Program

Very limited window of opportunity to access formerly privileged lawyer communications with NCMB and NCPHP

Please immediately distribute this as widely as possible as there is a deadline of less than 3 days to act on this.

Physicians (and all other clinicians subject to NCMB and NCPHP’s overreaching governance - you have a very limited window of opportunity to access formerly privileged lawyer communications with NCMB and NCPHP pertaining to any matters that may have affected you in your dealings with these agencies in which lawyers for either of these agencies were involved.

Existing NC law 132-1.1

That’s right. Existing NC law 132-1.1 HAD made it possible to obtain all such privileged communication between an attorney and a state agency (or instrumentality) in any matter pertaining to that entity’s engagement in judicial or administrative matters 3 years after that communication.

BUT, with the new budget law ratified by the General Assembly just days ago and set to take effect 10/3/2023, hidden on p. 530 is the section I just discovered¹. The ratified bill will REMOVE ALL ACCESS to such privileged attorney-agency communication.

(Where have all the sleepy, lazy “professional license defense” attorneys in NC been? Can anyone give me ONE REASON WHY physicians’ counsel haven’t acted on this in EVERY CASE? Hmmm … more collusion by passive complicity? Or is it just ignorance?)

As you know, I have been immersed in an in-depth examination of state medical licensing boards and their affiliated (so-called) Physician Health Programs. My primary scene-of-the-crime reference point has been North Carolina as that is the state that derailed my medical career on too-numerous-to-iterate unlawful bases in 2013.

From 2010 through 2016, I pursued my case as far as the 4^th Circuit (pro see), largely to no avail.² After that prolonged ordeal, I threw up my hands and said “I’m done. Enough of the soul suck. Gotta move on.” And so I set about to begin building the Coalition for Physician Advocacy which evolved into CPR The Center for Physician Rights. And I not so easily chugged along, trying to craft a career from the smoldering ruins of NCMB/NCPHP’s carpet bombing of my life.

And as CPR was beginning to take shape over the next three years, given the horror stories I learned of other physicians dealing with this MRTRC thug enterprise, I felt confident that we might connect some of the dots amongst the key players. ³

NCMB / NCPHP Strikes Again

No sooner was I starting to feel hopeful that some common threads were beginning to emerge than another reputational assault from NCMB emerged. (They can’t seem to help themselves.)

In what appears to have been NCMB’s (and host FSMB’s) irresistible icing on the cake celebrating another successful bombing run on a physician, they published an internationally distributed presentation on ‘What to do when your board gets sued’ and featured my and two other cases by name. In it, they gleefully portrayed me as severely mentally ill and revealed the infallible and incontestable diagnoses made by NCPHP. NCPHP had already lied to US DHHS about the fact of their conducting a diagnostic psychiatric evaluation of me, saying they only conduct “peer review” – and DHHS bought the lie in its entirety. Apparently factual evidence is of little value to DHHS as I presented them with the diagnostic evaluation report itself and they said, to the effect, “sorry Dr. Manion but one of NCPHP’s slick lawyers told us that they don’t do diagnostic evaluations; they only do peer review.” I actually obtained the lawyer’s response via a FOIA request and, sure enough, that’s what they said.

NCMB Attorney Elizabeth Meredith, the author of the presentation, failed to mention to the nation’s MLB executive directors, presidents, and board counsel (btw - these are supposed to be attorneys having some rudimentary familiarity with federal and state laws governing privacy of protected health information!) that both NCMB and NCPHP were in possession of fully qualified, expert, in-depth forensic psychiatric evaluation reports gotten at the behest of NCMB that explicitly documented the absence of any psychiatric illness or impairment. The second independent evaluation not only found no illness or impairment but asserted that NCPHP’s psychiatric assessment itself was significantly flawed, as was its consultant’s, as they conducted no corroborative interviews. NCMB, of course, chose to ignore these legitimate independent consultations.

NCMB Squashes Pest Dr. Manion

But perhaps the most remarkable manifestation of NCMB’s delusional grandiosity was their portrayal of me as – an insect. A microscopic biting insect.

This is NCMB Attorney Elizabeth Meredith’s selected avatar for me in her “What To Do When Your Board Gets Sued” internationally distributed presentation hosted by their trade group Federation of State Medical Boards (FSMB) in 2019. Despite repeated requests, both NCMB and FSMB refused to take it down. That’s, shall we say, unfortunate.

Apparently delivered in late 2019, I only discovered it in September 2020. Notwithstanding the fact that I was a bit breathless at the sucker-punch and newly aghast at their brazenness, I filed numerous objections – which of course they arrogantly chose to ignore, deigning my protest as though the annoyance of a nuisance pest.

US DHHS chose to ignore my complaint, having already determined infallibly that NCPHP wasn’t a HIPAA-CE (covered entity) and that neither was NCMB! And I filed numerous complaints with NCMB and NCPHP about the full crapper of violations committed.⁴ US DOJ seemed it might investigate but then informed me they just didn’t have the resources to do so. (“But that’s not to say your case doesn’t have merit, Dr. Manion. You can still go out and hire a lawyer with the few pennies remaining in your pocket. Surely, they’ll be willing to jump into a thoroughly unrewarding multi-year representation pro bono.”)

I initially rationalized this as presuming that they’re all tied up with investigating the crockpot of corruption in DC, not to mention likely being short-staffed by COVID. But perhaps they were really saying “we don’t have the resources to investigate the dump truck of alleged violations you just delivered.” That would be understandable as there’s about ten or twenty in the impermissible and defamatory disclosure complaint alone and it’d take a dedicated wing of the DOJ to sufficiently investigate the hodgepodge. (Frankly, I think DOJ is a bit dumbstruck at the plethora of violations just having to do with the ADA. More on that later.)

And, as I’ve discovered in exploring violations of this board and others, the stealth strategy they use with nearly 100% success is the stringing together of multiple procedural and statutory violations that the licensee can never comprehensively challenge. Of course, most of these illegal actions wouldn’t be occurring were it not for the state’s complicity in looking the other way (i.e. failed oversight) and thus electing not to investigate and prosecute gross wrongs (i.e. failed enforcement) done by their favored agency. When you get right down to it, death by administrative malfeasance is a remarkably effective tool for any governmental leader, and for that matter, any healthcare leader who wants to rid themselves of their designated undesirables in the healing professions.

So getting rid of access to the myriad agency lawyers’ advisories to their clients about handling potential state and federal violations is a big deal.

North Carolina’s Open Records Law - Imminently To Be Virtually Gutted With Nary a Notice

But, as you can see, NC’s legislature and governor are VERY interested in disemboweling the open records law. This is really curious for a state that espouses authenticity and thus transparency in its very motto: “To Be Rather Than To Seem.”

The reality is they’d prefer to ‘seem’ rather than ‘be.’ It sure seems like there’s an ardent desire for the legislature and governor to cover the tracks of its failed oversight of its lawless agency and its wrongdoing.

But …, maybe NC is living up to its motto after all. We’re not just going to seem non-transparent, we are going to BE non-transparent, and because we’ve done this little tweak to the open records law in secret (and probably fooled a lot of legislators too!), you’ll NEVER find out how complicit our agency’s lawyers have been.

Amazing too, how thoroughly uncurious the NC press is. Has it ever occurred to them that they’re about ready to lose access to one of the most important information resources available? That this capability for retrospective analysis of agency lawyer opinion and strategic positioning is itself a necessary safeguard against governmental corruption and cronyism?

Here’s a TEMPLATE for your records request letter

So, don’t delay. Get your records request in ASAP and make sure it gets in their hands by the close of business Monday 10/2.

Be sure to do one each for NCMB and NCPHP - here’s one for NCMB:

NCMB Board President Michaux R. Kilpatrick, MD, PhD, and MLB Chief Executive Officer Thomas Mansfield, JD and Thomas Segars, JD of Ellis & Winters as Custodians of Records

[for NCPHP:

Joseph P. Jordan, PhD, Chief Executive Officer, and Kim Lamando, Director, Program Operations, as Custodians of Records for NCPHP and its Board of Directors, whether under the identity of “North Carolina Physicians Health Program” or “North Carolina Professionals Health Program”]

In light of SECTION 27.7.(g) of NC General Assembly HOUSE BILL 259 - Ratified regarding NC G.S. § 132-1.1. “Confidential communications by legal counsel to public board or agency” and cognizant of its imminent enactment, please promptly provide digital copies of all records pertaining to any and all matters handled by legal counsel relating to me in all my interactions with NCMB. In the event that certain records are not in digital format, please provide a paper copy of such record.

Currently Governing Law:

§ 132-1.1. Confidential communications by legal counsel to public board or agency; ….

(a) Confidential Communications. – Public records, as defined in G.S. 132-1, shall not include written communications (and copies thereof) to any public board, council, commission or other governmental body of the State or of any county, municipality or other political subdivision or unit of government, made within the scope of the attorney-client relationship by any attorney-at-law serving any such governmental body, concerning any claim against or on behalf of the governmental body or the governmental entity for which such body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected. Such written communication and copies thereof shall not be open to public inspection, … provided, however, that such written communications and copies thereof shall become public records as defined in G.S. 132-1 three years from the date such communication was received by such public board, council, commission or other governmental body."

Please consider this request effective the date of submission via email ([date]) (certified postal mail to follow) and do not delay its execution on any basis, including awaiting the receipt of funds for such records. Given the uncertainty of the fees to be assessed, it may require time to assemble the requested documents and construct an invoice. To preserve my rights under § 132-1.1 prior to enactment of its revisions under HOUSE BILL 259 - Ratified, I request such assemblage to begin immediately.

To preserve my rights of acquisition, I am sending via postal mail a preliminary payment of [$___] by check. And I hereby promise that the balance due for such records as reasonably assessed will be submitted upon receipt of such invoice or estimate.

Records Requested [this one is for NCMB - do similar for NCPHP]:

All attorney work product and correspondence whether by NCMB executive director, NCMB staff attorneys and investigators, or by counsel retained by NCMB and /or retained by individual board or staff members relating to matters involving me in any manner.

This includes all investigative records conducted under the direction of NCMB staff attorneys or its board members and correspondence pertaining to complaints submitted by me and complaints or concerns about me; the correspondence to be provided includes that received as well as sent by any means.

All attorney communications internally and externally, both received and sent, including to and from NCMB board members or staff in reference to me.

All attorney communications internally and externally, both received and sent, including to and from the Office of NC Governor, the Office of NC Attorney General, NCPHP and its attorneys, [name others], and any other agency or party in reference to me.

All attorney communications pertaining to each of my complaints submitted to NCMB regarding, but not limited to: [list any specific topics you want the communications on], e.g.

• NCMB’s allowance of NCPHP to operate and conduct diagnostic evaluations without a corporate medical license

• NCMB’s allowance of NCPHP to conduct privacy-invasive, ADA-impermissible psychiatric examinations, and to do so under the guise of peer review

• NCMB’s violation of state and federal privacy statutes pretaining to release of PHI in its various published filings.

• All attorney communications between NCMB, NCPHP, and /or NC Medical Society and its attorneys and any governmental agent or staff associated with any public office, especially pertaining to drafting or influencing the bill HB 543 > HB 728 that became AN ACT TO AMEND LAWS AND FEES PERTAINING TO VARIOUS OCCUPATIONAL LICENSING BOARDS and enacted on Oct 1, 2016.⁵

• All attorney communications between NCMB, NCPHP, and /or NC Medical Society and its attorneys and any governmental agent or staff associated with any public office, especially pertaining to matters surrounding the initiation of an audit of NCPHP by the NCOSA which culminated first in 2014 as well as matters involving subsequent audits of NCPHP and of NCMB (with or without consideration of other boards and commissions).

• All attorney communications pertaining to NCMB disclosures of PHI and consideration of responsibilities as may be covered under HIPAA, 42 CFR Part 2, and state privacy and confidentiality statutes including that designated in NC as “non-public” or “confidential.”

• All other NCMB staff, contracted, and retained attorney records pertaining to my involvement in any matter with NCMB.

In the event of your non-provision of a record requested under NC G.S. § 132-1.1, please identify the existence of the record using the following designators and your reason for non-provision:

• the name / subject matter topic of the record

• the date of the record

• the owner/originator of the record

• with whom it was shared

• your reason for the non-release of this record

• the appeal mechanism provided in law or otherwise established for my obtaining that record.

Governing principles of “Open Records” laws in NC

NCGS 132-6(a) requires “custodians” of records to provide access to public records as follows: “Every custodian of public records shall permit any record in the custodian’s custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.” G.S. 132-6(a).

Under NCGS 132-9, remedy is provided under which “[a]ny person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records” may file a lawsuit to compel disclosure or obtain copies of public records. This provision allows a court to award attorneys fees to be paid by the public agency, as well as to be “paid personally by any public employee or public official found by the court to have knowingly or intentionally committed, caused, permitted, suborned, or participated in a violation of [the public records law].” G.S. 132-9.

Although it is not explicit in the statutes, it is also clear that individuals who have physical custody of records must be understood to have a legal obligation to provide them to custodians when those records are the subject of a request. Both the agency and individuals, including perhaps individuals who are not custodians, can be liable for failing to comply with the law.⁶

Your timely and full compliance with this request is greatly appreciated.

Confirmation to me at [your email] of your receipt of this email is requested.

Sincerely,

---

As you can see, you have a statutory right to obtain these records. And unless someone puts a stay on the enactment of this ratified bill with its sneaky removal of records access, those rights will vaporize 10/3.

See addresses in footnote below.⁷

Don’t squander this opportunity!

1. Thanks to a remarkable piece by Kristina Wilson of UNC SOG writing for Coates Canons!

2. Kernan Manion v NC Medical Board. 4th Circuit 5:16-cv-00063-BO 4th Circuit Court of Appeals # 16-2075

3. The Medical Regulatory Therapeutic Rehabilitation Complex. An enterprise consisting of hospitals, boards, and PHPs, any one of which can hobble your career, all three acting together comprising a virtual death squad.

4. Hmmm…. Will be interesting to see whether they consulted their attorneys on any of these. If so, well, it’ll be interesting to see their defense of the agency’s law breakage and their decision not to respond. If not, well NCMB and NCPHP, you could be out on a limb if you didn’t at least pass this by them. In either case, it’s not pretty.

5. This law magically removed NCPHP’s statutory designation as a peer review entity and newly deigned NCPHP as a diagnostic entity, in essence giving them permission to practice medicine with neither a license nor malpractice insurance. All due to uncurious legislators and the apparently asleep-at-the-wheel NC Medical Society who apparently see no reason why a state instrumentality can’t be the official state psychiatrist charged with sending people to evaluations at their preferred facilities and sentencing them to 5 years of invasive “monitoring” because they’ve been officially declared to be “impaired.” OF course, NCMS might be a bit biased as NCPHP is its offspring.

6. Material quoted or paraphrased from “Custodians of Public Records” Published: 12/19/14. Frayda Bluestein

7. Michaux R. Kilpatrick, MD, PhD, President; Thomas Mansfield, JD, Chief Executive Officer; Evelyn Contre, MBA, Chief Administrative and Communications Officer and Legislative Liaison - Custodians of Records

North Carolina Medical Board, PO Box 20007, Raleigh, NC 27619-0007

Fax recipient: Custodian of Records, NCMB; Fax: (919) 326-1131

Joseph Jordan, PhD, CEO; Kim Lamando, Director, Program Operations; North Carolina Physicians Health Program; 220 Horizon Drive, Suite 201; Raleigh NC 27615

Fax recipient: Custodian of Records, NCPHP; Fax: 919-870-4484