Judge lets law stand

11-19-2013 Arkansas:

A federal judge in Little Rock denied a motion to enjoin enforcement of a state law on Medicaid practice eligibility pending resolution of the lawsuit brought by a Hope physician because the judge does not believe the physician, who is a registered sex offender, should be allowed near children.

A federal judge in Little Rock denied a motion to enjoin enforcement of a state law on Medicaid practice eligibility pending resolution of the lawsuit brought by a Hope physician because the judge does not believe the physician, who is a registered sex offender, should be allowed near children.

U. S. District Judge Billy Roy Wilson, in a 28-page order delivered Nov. 14 in a lawsuit brought by Hope physician Dr. Lonnie Parker, admits that he weighted his decision on the side of caution in the “public interest.”

“While the probability of a non-contact sex offender committing a sexual-contact crime may be low, an appreciable chance of exposing a child of tender years to sexual abuse outweighs any financial harms or inconvenience Act 1504 may cause,” Wilson wrote. “I am going to err, if I am going to err at all, on the side of he children of tender years.”

Wilson admits that he is bypassing “usual practice.”

“Because State authorities have classified Parker as a Level 1 sex offender and have given him a license to practice medicine, at first blush, it appears that a federal district judge should defer to state authorities, which is the usual practice,” Wilson wrote. “After considerable reflection, however, I cannot agree with this classification. The nature of some of his child pornographic photos and the fact that he would be working with young children if his motion were granted is too strong for me.”

“Some writers have criticized courts and legislators for presuming that those convicted only of possession of child pornography present a danger to children,” he wrote. “This criticism may be well taken to some extent, and some rulings and enactments may well be too extensive. Again, however, I must base my decision on the particular facts of this case; and Parker has not convinced me by the greater weight of the evidence that one who possesses child pornography of a sadistic nature does not pose a danger to children of tender years.

“There may be additional evidence at the final hearing which will convince me otherwise, but, for the time being, I conclude that Plaintiffs' Motion for a Preliminary Injunction should be, and hereby is, denied,” Wilson wrote.

Wilson has taken arguments by both sides under advisement on the principal issues, but after those issues had been briefed and argued in the initial hearing, he also called for submissions by both attorneys of scientific literature on recidivism rates among registered sex offenders.

John Hardy, of Little Rock, attorney for Parker, and two Medicaid patients, argues that, Parker, who was convicted in Arkansas in 2000 of possessing child pornography and was sentenced to federal prison, then required to register as a Level 1 sex offender in Arkansas, indicating he had no prior history of such offenses, is unconstitutionally affected by Act 1504, which passed in the 2013 legislative session.

He has also argued that Parker had his medical license to practice in Arkansas restored by the Arkansas Medical Board in 2005, and that Parker has maintained he is innocent, and contended at trial and on appeal that he was acting in concert with federal authorities in receiving and possessing certain child pornography images via e-mail.

Hardy said Friday he was “amazed and disheartened” by Wilson's ruling.

“Despite the 'legal reasoning,' the judge seemed to base his decision on a belief that Joseph is somehow a danger to young patients,” Hardy said.

Wilson opens his reasoning in his order by stating his belief that Parker was guilty.

“In this lawsuit, Parker continues to insist that his conviction was a miscarriage of justice,” Wilson wrote. “The jury and Eighth Circuit killed this contention graveyard dead, and I reject it out of hand.”

With that stated, Wilson argues that Parker will not succeed on the merits of the case, a key factor in obtaining a preliminary injunction, which would stay enforcement of the law during the proceeding of the lawsuit. Wilson argues primarily that Act 1504 is consistent with either or both of the ordinary police powers of the state of Arkansas, and/or the consistent application of federal Medicaid law by the state; and, is, therefore, not “punitive” in its application to Parker.

He argues, specifically, that the “moral turpitude” definition rendered by the Arkansas Supreme Court in the case of Fort v. Brinkley applies to the extent that, although licensed by the state to practice medicine, the “moral turpitude” of his crime affected his ability to have his services rendered to everyone who might choose to use them under state Medicaid law.

To the same extent, Wilson said that because there is no conflict between Act 1504 and the federal Medicaid Act, there is no violation of the “free choice of provider” provision of the federal law under the Supremacy Clause of the U. S. Constitution for Parker's patients.

He also argues that Parker's contract with Medicaid, though impaired by Act 1504, it was not to the extent of “substantial impairment.”

“'Substantial impairment,' in analyzing a claim under the Contract Clause, is a term of art,” Wilson wrote. “Substantial impairment depends on 'the extent to which the parties' reasonable expectations have been disrupted.'

“...In other words, the pervasiveness of regulation within an industry can render the impairment insubstantial because parties who willingly enter well-regulated industries do so with little expectation that their contractural rights will prevent a state from exercising any aspect of its police powers that is necessary to promote the health, safety, and general welfare of its citizens,” Wilson added. “...Parker cannot effectively argue that he did not expect governmental regulations to interfere with the provisions of his contract.”

He also argued that Parker has no “protected property interest” in his contract with Medicaid, since it can be voluntarily terminated by either party with notice.

“Since Parker is able-bodied and has a medical license, he can earn a living without the contract,” Wilson wrote.

As a result, because Parker is not qualified to practice under Medicaid, Wilson wrote that his patients should have no expectation that he can provide them with services.

“Federal law allows Medicaid beneficiaries to chose among a range of qualified providers,” he wrote. “But, as an overwhelming majority of courts have noted, that choice is not absolute. Where a state has deemed a provider to be unqualified, Medicaid beneficiaries have no protected interest in receiving Medicaid services from that provider. Since Parker is not a qualified provider in the Arkansas Medicaid Program, his patients have little chance of showing a substantive due process violation.”

Wilson admits that Parker can show “irreparable harm” to his practice, but neither he nor his patients are bereft of options, otherwise.

Wilson also admits that he is not inclined to grant Parker's motion because of potential harm to his patients.

“The agency classified Parker as a Level I sex offender, but the guidelines provide that Level I is usually not appropriate for offenders with sexual interest in children or for those offenders who have a history of working with children or around children if the victim was a child,” Wilson writes. “Parker was convicted of possessing child pornography of a sadistic nature... In view of the nature of his conviction and the nature of his practice, I doubt that the Level I classification is accurate.”

Wilson clearly considers “non-contact sex offenders” as a threat, despite his admitted inability to draw a conclusion from the scientific material provided by attorneys on both sides.

“The submitted materials lead me to believe that there is no clear scientific answer,” Wilson wrote. “It is clear, however, that some non-contact sex offenders, such as Parker, do pose a danger or threat of committing sexual-contact crimes.”

He writes that much of the literature deals only with rates of recidivism involving sex offenders who were subsequently arrested or convicted of a latter crime.

“Although Parker has never been arrested or charged with a sexual-contact offense, studies show that between 62 percent and 85 percent of men convicted of non-contact sexual crimes (such as possession of child pornography) and who have no history of committing a contact offense, later admitted to committing at least one undetected sexual-contact offense,” Wilson wrote. ..Source.. by Ken McLemore, Hope Star Editor