The Daily Republic (Mitchell, South Dakota)
December 26, 2013
Florida man pries records away from SD officials
By Chris Mueller
It took nearly five months, but a Florida man has been allowed to view records about doctors excluded from Medicaid in South Dakota.
In July, Ken Kramer, of Clearwater, Fla., asked the South Dakota Department of Social Services for the names of every doctor terminated or excluded from Medicaid, a federal-state health care program for the poor, since 2010.
Individuals or companies may be excluded from federal medical programs for various reasons, including health care fraud, overcharging patients, charging for unnecessary services, failure to pay student loans, felony convictions, or failing to take corrective measures ordered by a federal agency.
Kramer documents abuses of the psychiatric profession on his website, PsychSearch.net, which includes a compilation of public records about ethical misbehavior, over-prescription of medications, sexual misconduct and Medicaid fraud.
As a result of his research, Kramer said he has become familiar with the rigmarole that can arise when dealing with government agencies.
“You get into a rhythm of knowing what’s right and what’s screwy,” he said.
South Dakota, Kramer said, is the only state in the country that attempted to withhold the records. Other states have either provided documents listing the requested doctors’ names or Internet links where the names of those excluded from Medicaid can be found.
“I think it’s mysterious,” Kramer said. “It’s strange why records are withheld like that when the entire country is pretty much open.”
Following Kramer’s initial request, Assistant Attorney General Daniel Todd, director of the South Dakota Department of Social Service’s Division of Legal Services, told Kramer “the information you request is not a public record in the state of South Dakota,” in a July 25 reply.
In an answer to Kramer’s request for an explanation of why the records were being withheld, Todd cited state codified law 1-27-1.5, which has 27 subparagraphs listing exemptions from the state’s open-records laws.
Kramer, who wanted to know specifically what part of the law excluded the information from public access, appealed in October to the South Dakota Office of Hearing Examiners — the office designated to handle disputes over government records.
In a Dec. 5 letter, Chief Hearing Examiner Hillary Brady notified the state Department of Social Services of Kramer’s appeal. Two weeks later, in a Dec. 19 letter addressed to Kramer, Todd released the information requested.
“The department carefully relooked at your request and will provide the requested information,” Todd wrote in the letter.
The record is a list of four doctors terminated from Medicaid in South Dakota since July 2007 — Jeffrey Buckau, Brian O’Connor, Joshua Payer and Edward Wegrzynowicz. The list does not say where the doctors are from or why they were excluded from Medicaid, but The Daily Republic gleaned further information about each one from other sources.
Payer surrendered his medical license in August 2010 for “alleged unprofessional conduct and violations of the South Dakota Medical Practices Act,” according to records from the South Dakota Board of Medical and Osteopathic Examiners’ website.
Payer pleaded guilty in March 2011 to aiding and abetting the distribution of a controlled substance and conspiracy to commit sex trafficking, according to court documents. He was sentenced to 22 months in prison.
O’Connor accepted a suspension of his medical license in March 2008 after he “engaged in the use of alcohol and/or controlled substances in a manner that would affect his medical practice,” according to the board of examiners’ records. In September 2009, the board reinstated O’Connor’s license, with certain restrictions in place to monitor him and keep him from using drugs or alcohol.
Buckau gave up his medical license in March 2008 after he was caught over-prescribing addictive drugs to patients, according to the board’s records.
No records appear from the state medical board on Wegrzynowicz.
State Rep. Stace Nelson, R-Fulton, helped Kramer pursue the information. Nelson, who is a candidate for U.S. Senate, also requested the records in question and, according to an email sent Friday addressed to state Attorney General Marty Jackley, was denied and was also told the records did not exist.
In that same email, Nelson requests an official explanation of the situation from Jackley.
Kramer believes public officials who wrongly deny requests for public records should face some type of penalty, though he said he doesn’t believe any such penalties exist in South Dakota law.
“There should be a criminal penalty in the statute that has some kind of deterrent to this type of non-compliance,” he said.