Our Vanishing Right to Patient Privacy.

On March 20, I submitted the following letter to the Courier-Journal. Others have offered similar views and I gather that my contribution was not accepted. Since I buy my ink by the gigabyte, I have the opportunity to publish the letter anyway! Here it is.

Bullying not allowed in school.
Kentucky education Commissioner Wayne Lewis has demanded that 10 different school districts in the eastern half of the state send him records and documents for teachers who did not show up to work this legislative session. Enough teachers did so, that at least some schools had to close. The demand specifically includes doctor’s notes confirming illness. The first thought of the physician in me is that federal patient privacy law (HIPAA) prohibits the sharing of patient information except to other health professionals or entities sharing in medical care of a given patient. These protections are quite strict. Specific permission from a patient is
required to discuss matters even with a family member, or to even to disclose whether an individual is a patient or not. A note from a doctor– even without a diagnosis– conveys information simply by virtue of the physician’s practice. A note from an obstetrician might suggest a pregnancy. An individual may not wish to disclose that they are seeing a cardiologist, psychiatrist, or any other specialty that might announce a pre-existing condition. Even if Kentucky law or regulation allows Frankfort or a school district to demand a doctor’s note, it is not clear to me why federal law would not supersede state law. I will leave that to legal experts.

Given the obvious animus of the Bevin administration towards Jefferson County and its public-school system in general, and towards teachers and the teacher’s union specifically; a reasonable person might conclude that Commissioner Lewis’s demands represent an attempt to intimidate teachers for standing up for what they believe is right for their schools. The Commissioner’s more recent promise not to punish anybody if there are no further work stoppages converts a veiled threat into an operative one. Commissioner Lewis reasonably suggests that students can ill-afford to miss even one day of school when avoidable. How can one disagree? I would ask, however, what would be the response of the public if Commissioner Lewis asked for the names and the medical records of students who skipped school in order to protest for the need of gun control following the aftermath of school shootings here in Kentucky and elsewhere? I am confident that our public would be outraged! We should be outraged today. Teachers did not make the decision to travel to Frankfurt lightly. They deserve public support– indeed public protection against what is in my opinion, and that of others, an attempt to bully teachers into submission.

Peter Hasselbacher, MD
Louisville, KY
March 25, 2019

University of Kentucky Dental Professor Forced Off Faculty for Criticizing Gov. Bevin’s Medicaid Cuts Gets $620,000 in Court Settlement.

Yes.  But, behind them I suspect is the Emperor.
                                            Paul Atreides, in “Dune.”

More than a year ago I wrote about the capture of the academic process by the Kentucky Governor’s Office where some unnamed individual with clout became “pissed-off” when Dental Professor Dr. Raynor Mullins exercised both his faculty and first-amendment rights to suggest that cutting back on dental and vision services to Medicaid beneficiaries was a bad idea. Everyone involved seemed to know who in Frankfort held the power to intimidate the leadership of our “Flagship University,” but the Governor’s office denied any involvement in the matter.  (We have encountered that scenario before, right here in River City!)  The University rolled over and dismissed Dr. Mullins.

In response, and to both hold the University accountable and presumably to shine a bright light on what actually appended, Dr. Mullins filed a lawsuit against the persons of the Vice President for Administrative and External Affairs and the Dean of the University of Kentucky College of Dentistry.  In my earlier commentary, I opined that perhaps under oath that the truthfulness of the allegations would come out– or not!  It is not clear to me that any such disclosure happened. The University requested of Federal Judge Robert Wier a summary judgement (dismissal) of the case against it which was denied.  As I understand it, before the case was to go to a jury trial, a private settlement was reached without any admission of guilt.  I do not know how much pre-trial discovery was done. Today’s reports in the Lexington Herald and Courier-Journal do not refer to any information from depositions taken under oath.  Often such settlements include clauses of confidentiality that hide embarrassing findings from public view. Is it conceivable that court records might be sealed?  Is it possible that we may never know to whom the UK officials caved?

What is just as disturbing as not ever knowing the identity of the bully is the claim that communication within the University and with the Governor’s office in this matter was conducted using personal e-mails.  The use of personal electronic devises and emails to skirt open-meeting and open-record laws is an emerging threat to the ability of the public to hold its government accountable.

The University of Kentucky does not come off looking good in this matter.  It seemingly admits no guilt at all, but some UK entity now has a 6-figure settlement to pay with legal fees to boot. Dr. Mullins is taken back in to the faculty. Transparency disappears. No one is held accountable. Dr. Mullins may not have achieved all his goals, but in my view, he stood up to the state agency that is the University of Kentucky and won!

Peter Hasselbacher, MD
Emeritus Professor of Medicine,
University of Louisville
Dec 10, 2018

[If anyone has public court documents or other information that might shed light on this sad affair– or for that matter correct any misunderstanding of mine– I hope they will communicate with me confidentially or with the email link found in the side-bar of this website.]

Here is a copy of Judge Wier’s opinion of 9-28-18

Who Should Control the Curriculums at Kentucky Universities?

Lest anyone doubt Gov. Bevin’s inclination, indeed intention to intervene in the academic decisions of Kentucky’s state universities, I draw your attention to his recent speech to the Kentucky Council on Postsecondary Education (which sets Kentucky’s higher education policy and which he largely appoints) in which he “suggests” to our university Boards and administrations that they should shed whole academic programs that do not contribute to employment and economic development as he envisions it. This should not come as a surprise to anyone, because he made the same statement early in his term shortly after he celebrated his intention to open the separation of church and state more widely. Others have already noted how a broad-based general education has not done badly for the Governor personally. I will add that the Governor’s initial public spokesperson in Kentucky did not do very badly with her history major from a Kentucky college. She moved from working for a governor to working for the president of the United States.

It is my impression that a “suggestion” from Gov. Bevin forebodes a more aggressive intervention on his part. I point to the “pressure” brought to the University of Kentucky to fire a professor who was critical of one of the Governor’s healthcare policies, and his “pressure” brought on the University of Louisville Hospital and KentuckyOne Health to sever and not renew its transfer agreement to accept the rare patient from Planned Parenthood or other abortion provides who has a serious complication from surgery. (This latter matter is now in Federal Court.)

Although the Governor’s office denies any intervention on his part, in my opinion, and that of the parties being leaned on, the pressure could only have come from the Governor himself directly or indirectly through proxies. The Governor has not been shy about stating his intention to achieve his economic and religious agendas. Why should be not believe him? In my opinion, such tactics do not deserve the banal description of “pressure,” but meet the definition of bullying. We all know what happens when a bully is not confronted – the result is more of the same. University accreditors at SACS, are you watching? Kentucky elected officials and our general public, are you?  Our Universities cannot fight this battle by themselves.

Peter Hasselbacher, MD
Emeritus Professor of Medicine, UofL
September 14, 2017

Who Will Defend Kentucky’s Academic Institutions Against Political Capture?

[Below is the full text of my shortened Op-Ed piece published on-line by the Courier Journal on Aug 8, and in the print edition of Aug 9.  The complaint by Dr. Mullins and links to background and documentation are also available.]

I submit this as an open letter to the Southern Association of Colleges and Schools Commission on Colleges (SACS) and to the Louisville community. On August 2, the Courier-Journal reported extensively on a lawsuit brought against senior members of the University of Kentucky’s administration and the administration of Governor Matthew Bevin by Dr. Raynor Mullins, a distinguished senior member of the faculty of the School of Dentistry at UK. The lawsuit alleges that Dr. Mullins was fired from his non-tenured faculty position in retaliation for comments that were critical of Gov. Bevin’s plans to reshape Kentucky Medicaid– a plan intended to considerably reduce the number of Medicaid beneficiaries and cut back on benefits, including dental services. The lawsuit names as defendants “Mark Birdwhistell, UK’s Vice President of Administration for UK HealthCare; Dr. Stephanos Kyrkanides, Dean of the UK College of Dentistry; and ‘John Doe,’ described as an official in the Bevin administration.” (Dr. Birdwhistell is a major architect of Gov. Benin’s healthcare plan.) The story was picked up by the Associated Press and is appearing across the country. What is happening in Lexington is relevant to the accreditation status of the University of Louisville and the reputation of our Commonwealth. Continue reading “Who Will Defend Kentucky’s Academic Institutions Against Political Capture?”

Gov. Bevin Reappoints His Original Ten-Person Board of Trustees for UofL

Breaking Information:

The Governor’s office released today Governor Bevin’s list of 10 appointments to a replacement Board of Trustees for the University of Louisville.  With a single exception, all 10 are the same as the Board he appointed earlier in 2016.

Newly appointed Trustees:
J. David Grissom, of Louisville, until Jan. 13, 2023.
John H. Schnatter, of Louisville, until Jan. 13, 2022.
Sandra Frazier, of Louisville, until Jan. 13, 2021.
Nitin Sahney, of Prospect, until Jan. 13, 2021.
Bonita K. Black, of Crestwood, until Jan. 13, 2020.
Brian A. Cromer, of Louisville, until Jan. 13, 2020.
Ulysses Lee Bridgeman, Jr., of Louisville, until Jan. 13, 2019.
Ronald L. Wright, MD, of Prospect, until Jan. 13, 2019.
James M. Rogers, of Prospect, until Jan. 13, 2018.
Diane B. Medley, of Ekron, until Jan. 13, 2018.

The exceptions are that James Rodgers is appointed instead of Dale Boden.    In the first set, Douglas Cobb was appointed, but resigned shortly afterwards to be replaced by Brian Cromer who is on the list above.

I have commented on all of these at length, including an analysis of the application documents used for the first appointment process.  It is difficult for me to believe that the Nominating Committee that met last week, with 3 of its 7 members on that day new to the committee, had any meaningful independent influence on this intensely political appointment process.  Surely this was a done-deal from the start.

Peter Hasselbacher, MD
President, KHPI.
Emeritus Professor of Medicine, UofL
3:10 pm, Jan 17,  2017

Nomination Process for New UofL Board of Trustees Underway

Major twist in the story line!

postsecondary-educ-nominating-1The Governor’s Postsecondary Education Nominating Committee is presently in Executive Session in Frankfort selecting candidates to present to the governor for appointment to the University of Louisville Board of Trustees as described by new legislation passed by the Kentucky Legislature earlier this week.  Thirty names will be presented to  Gov. Bevin from which he is entitled to select 10, subject to approval by the Kentucky Senate.  This is a brand new process that is different from the previously uniform statutory requirement for Board appointment at Kentucky’s other major state universities.  I was told that the names of these candidates will not be released to those of us waiting in the hall when the Committee leaves its executive session. I suspect that the names that have been selected will come from the same binders used to appoint the first 10-person Board of Trustees last Spring. It remains to be seen to what extent the statutory protocols or actions of the nominating committee are different in any other way from the tightly controlled political processes used in the past by this governor or others. For example, it is not at all obvious that Governor Bevin elicited recommendations for his new Nominating Committee as required by statute.

What is newsworthy at the moment is the major change the Governor has made in the composition of his Nominating Committee. Announced just today is the replacement of three Committee members by new ones who are now in their first meeting ever.  To inspection, the new appointments to the Nominating Committee go a long way towards repairing a committee which was by statute illegally constituted by almost every parameter. There are now three women and two racial minorities on the 7-member Committee.  At least one of these is a Democrat, but the political party affiliation of all the rest is not yet known to me.

Obviously the Governor has been sensitive to criticism by me and others that his own committee was more “illegally” constituted than the UofL Board he sought to replace for the same reason.  That contradictory logic belied any other motives that might have been or still are operational.  Nonetheless, what is going on now represents a major deviation from past practices, and the product of the committee meeting remains to be analyzed.

This article has been amended.

Peter Hasselbacher, MD
Emeritus Professor of Medicine, UofL
January 13, 2017.  12:55 pm

postsecondary-educ-nominating-2

State Auditor’s Report On Governance of UofL and Its Foundation Relationship Highly Critical.

New University and Foundation leadership a breath of fresh air.

I went to Frankfort today for an early look aaudit-pix-12-14-16t the long-awaited result of Kentucky’s Auditor of Public Accounts of the relationship between the University of Louisville and its investment arm, the University of Louisville Foundation.  Alas, even before the press conference began, most of the major news outlets in Louisville had already published in-depth reports of the Auditor’s findings.  [Their reporters had access to an embargoed early release of the full report. My request for that opportunity went unanswered.]  My observations of those who spoke or asked questions at the session interpreted the report as highly critical of how the University and Foundation interacted under the administration of Former President James Ramsey– except for Dr. Ramsey’s attorney who termed the report a disservice to the community.  I will not duplicate the reports of  Chris Otts of WDRB, Tom Loftus of the Courier Journal, Kate Howard of the Kentucky Center for Investigative Reporting, Joe Sonka of Insider Louisville, Kyeland Jackson of the Louisville Cardinal,  or whatever other entity picks up this important story; but I encourage my readers to read some of these reports yourselves.  You can read a summary handed out at the session here, and a rebuttal offered by Dr. Ramsey’s attorney, Steve Pence.  The full report is available on the Auditor’s website.  It contains  responses by current leadership of the University and Foundation, a response by Former President Ramsey, and a rebuttal to that response by the Auditor’s office.  A video of the conference is also available. I have just begun to analyze the full report myself. At least read its Executive Summary, duplicated here, which contains specific recommendations. The summaries look rather damming to me, as was in my opinion the whole presentation by Auditor Mike Harmon. Continue reading “State Auditor’s Report On Governance of UofL and Its Foundation Relationship Highly Critical.”

Drop In Value of UofL Endowment Confirmed.

Endowment growth stalling compared to other institutions.

Numerous earlier reports by Mr. Chris Otts of WDRB brought to the attention of the public information about financial dealings of enough concern that at least two major donors to the University of Louisville withdraw their support, triggering in large measure an intervention by the University of Board of Trustees to take a more controlling role in the University of Louisville Foundation and a full-scale fiduciary audit. This latter offers the potential to clear the air or to lead to even more troublesome revelations. Mr. Otts’s latest report  deals with unauthorized spending of the University’s endowment by the Foundation in support of its commercial research, real estate, and other agendas both known and unknown. The result has been a substantial fall in the value of the endowment as its principal is consumed.

Sparked by Mr. Otts’s use of information provided to him by the University as reported to the American Association of College and University Business Officers (NACUBO); and by comments made by Trustees Greenberg and Benz at last week’s meeting of UofL Trustees raising serious concerns about the endowment; I went to NACUBO’s website myself.  Summary files for public use are available including the market values of the endowments of some 850 of the most important Colleges and Universities in the US and Canada from 1990 to 2015.  I abstracted these and plotted the market value of UofL’s endowment along with its rank among other institutions in this regard. Spending information or investment yields for individual institutions are not made available to the public, although summary statistics on aggregates in broad categories are available. A static image is presented below, and an interactive version revealing the underlying data is available.

In summary, the amount of our endowment rose progressively from 1990 until around 2007 after which much volatility occurred to the point that the market value of the endowment in 2016 is indeed less than it was 10 years ago in 2006!  UofL appears to be eating its nest egg, and compared to other institutions of higher education, is losing ground in endowment growth.

uofl-endowment-1900-2016
Continue reading “Drop In Value of UofL Endowment Confirmed.”

Special Meeting of UofL Foundation Canceled at Last Minute.

University of Louisville Foundation goes rogue.

foundation-bld-9-2016An unexpected special meeting of the 5-member Executive Committee of the University of Louisville Foundation that was to be held at 5 PM today (Labor Day) was canceled at the last minute. I and several members of the traditional print and broadcast media arrived to cover the open session only to find we were the only ones there! It was anticipated that the meeting would initiate the hiring of an external firm to perform the forensic audit demanded by the James Graham Brown Foundation, and execute the separation of Foundation President James Ramsey and Kathleen Smith from the Foundation. It was reported by Andrew Wolfson on the Courier-Journal’s website that the cancellation was consequent to a letter by University of Louisville Board of Trustee Chairman Larry Benz. However, it was later reported by Chris Otts of WDRB, that today Acting University Chairman Neville Pinto had also sent an email to Foundation Chair Robert Hughes and other Board members expressing polite but strongly worded objections to the Foundation’s plans. Unbelievably, neither President Pinto nor Chairman Benz, both of whom are on the Foundation Board, had been consulted about the meeting nor informed about what was to be discussed or enacted. Copies of the emails from Chairman Benz and President Pinto to Chairman Hughes are attached. Continue reading “Special Meeting of UofL Foundation Canceled at Last Minute.”

Attorney General Finds University of Louisville Violated Open Records Law In NCAA Basketball Scandal.

Last February, I submitted an open records request to the University of Louisville for documents and information used by then-President James Ramsey underlying his decision to withdraw from postseason basketball play in 2016.  [I was reacting to media reports and a formal statement by UofL that University President Ramsey had received updates and information upon which he acted.  I asked for that information.]   My request was summarily dismissed and I filed an appeal with the Attorney General of Kentucky.  After much back and forth between that office and the University, it was determined that the University had indeed violated the requirements of Kentucky’s Open Records Act.  Even before I was able to read the opinion, it was being published by traditional media including the Courier-Journal, and WDRB. Here is the best summary to date. Here is another.  A shorter version from the Associated Press appeared in dozens of newspapers nationally before the end of day yesterday.  Because of the presumed general public interest in this matter, I believe it is appropriate to explain my motivation and make to make public the correspondence and documents that led up to the AG’s decision.

The decision may have been correct.
Let me say at the outset, I have no opinion about whether the decision to withdraw was appropriate or not.  It may well have been the best path forward.  I did not have any interest in learning the names of any of the students involved nor would I have made their names public. [Similarly I am not interested in any salacious details.]  I do however have an interest in how the University does its business.  I have written often over the last few years about the lack of appropriate transparency and accountability within the administration of Dr. Ramsey.  I have argued that many of the University’s problems, and certainly those of its its public relations image stem from its penchant for non-disclosure or secrecy.  Discussions with traditional journalists and my own experience led me to believe that the University is often a reluctant participant in the Open Meeting or Open Records requirements. Continue reading “Attorney General Finds University of Louisville Violated Open Records Law In NCAA Basketball Scandal.”