Protectionist and restrictive

Decisions from licensing boards are oftentimes arbitrary and unfair

By BETSY THATCHER | January 29, 2020

A convoluted mathematical equation used by a Wisconsin state licensing board deprived a tribal dental clinic of a pediatric dentist for nearly a year.

The clinic, located on the Lac du Flambeau Band of Lake Superior Chippewa Indian reservation in the far northcentral part of the state, had been desperately looking for a pediatric dentist to treat its approximately 300 child-age patients.

For most of the year in 2018, only 30 of the 300 children had been able to travel to a referral clinic in Eau Claire — a fivehour round trip — to receive care, according to dental director and dentist Thomas Wheeler at the Peter Christensen Dental Campus, the tribal clinic.

It is difficult for rural and cold-climate clinics to attract dentists, so the clinic thought its prayers were answered when a nationally known pediatric dentist agreed to work there.

In November 2017, Lance Kisby, who has practiced dentistry for 36 years, interviewed for a position at the Lac du Flambeau clinic and filed an application with the Wisconsin Dentistry Examining Board for a license to practice in the state.

“Everybody (at the clinic) told me, ‘We’ve been without a pediatric dentist for years. When can you start?” Kisby recalls.

Little did Kisby know that it would take more than 13 months.

The North Woods clinic serves the 3,000-member tribe of Chippewa Native Americans. It is in a region that has been identified by the federal government as a “dental shortage area.”

Wisconsin ranked dead last in the nation for providing oral health care to the more than 550,000 children who receive dental benefits through Medicaid, based on 2015 U.S. Department of Health and Human Services.

“We were without a dentist for the children for more than a year,” says Tribal Attorney Jodie Bednar-Clemens. “I’m very bitter about it.”

Bednar-Clemens, a former Oneida County assistant district attorney, worked on Kisby’s case after the Wisconsin Dentistry Examining Board refused to grant him a state license.

Kisby’s distinguished career has included several stints as chief of pediatric dentistry in large American hospitals. He regularly lectures to his peers in seminars around the country and is a noted author on pediatric dental topics.

But the dentistry board denied the license based on a head-scratching determination that Kisby had not “engaged in at least 750 hours of the practice of dentistry within the 12-month period preceding” his Dec. 6, 2017, application.

The board’s practice has been to have one of its members review applications and determine whether the dentist had indeed worked for at least the 750 hours required by the state administrative code.

The board member, a dentist, came up with her own formulation that, in short, eliminated from the equation a whole month of practice if the dentist had worked fewer than 60 hours in that month.

The board denied Kisby’s application on March 30, 2018, almost four months after he applied, simply on the results of this math.

Kisby decided to appeal the decision.

“I sent them proof that I worked all that time,” Kisby says of 1,500 pages of time sheets and emails that showed he had worked at least 1,100 hours in the 12 months prior to his application. “I sent it overnight for $60 in a big box to the dental board. I didn’t hear from them for two or three months.”

And when he did, it was another denial. That’s when Bednar-Clemens, the tribal attorney, stepped in, and the matter went before administrative law judge Jennifer E. Nashold at the end of July 2018. Kisby waited another 100 days for documents and responses to be filed by both sides and for the judge to review and make a ruling.

Nashold reversed the board’s decision, writing that the board member’s “division, multiplication, rounding up and rounding down exercise (led) to admittedly arithmetically inaccurate results.” But it took almost a full year for the issue to grind through the bureaucratic process, and all the while the tribal clinic went without a pediatric dentist.

Tribal attorney Bednar-Clemens chastised the board for relying on a system of “made-up, arbitrary rules” that resulted in serious consequences for the clinic — and the children it serves.

“I was unemployed for 13 months while my kid was in college,” Kisby says. “We went through 50 percent of our retirement just to pay my bills. It was a super financial hit.” He was finally able to start his job in January 2019.

Following the resolution of this case, references to the hours worked in the 12 months prior to a license application have been removed from the state administrative code. Phone messages to the Dental Examining Board executive director and the board chairman were not returned.

Unfortunately, cases like this are not uncommon for Wisconsinites who work in licensed professions. According to state statute, licensing boards are authorized to “review, investigate or handle” disciplinary matters for those who are licensed in their designated profession. Boards are also the supervisory authorities “regarding qualifications of applicants for credentials.”

While licensing boards in theory are established to promote public health and safety, they at times deny licenses or discipline practitioners for reasons unrelated to these criteria. As a result, applicants can be stymied in their pursuit of an occupation, and existing license holders can face fines or the loss of the very license that allows them to practice their profession.

Clerical mistakes turned costly

Another case involving professional licensing resulted in months of aggravation and cost for a southeastern Wisconsin chiropractor who had inadvertently allowed his license to lapse.

The chiropractor had completed all of the continuing education and other necessary requirements, such as bringing his CPR certification up to date, to renew his license in December 2012, except for one thing. The renewal did not get filed with the state Department of Safety and Professional Services in time. He had delegated the task to an employee in his clinic who had renewed his license in a timely manner in the past.

It took a few weeks before the chiropractor learned his license had expired. The doctor alleged that the employee falsely told him that she had filed the renewal. When she attempted to play catch-up, she erroneously stated that her boss had not completed the CPR update.

Ten days later, when the chiropractor learned that his license remained expired, the employee was terminated from her position.

The chiropractor immediately contacted DSPS and provided all the necessary documentation to renew his license. He testified in the disciplinary case that a DSPS employee twice assured him that he had “a grace period” and that it was just a “clerical matter” that would be taken care of.

In a follow-up call to DSPS three days later, the doctor was told that he was compliant.

But when the chiropractor checked the state license website in early February, it still showed an expired license. Concerned, he contacted the state agency and was asked to provide evidence of his CPR certificate because the original copy sent to them had vanished. And, yet again, he was reassured by the state employee that it was just a clerical issue, and it would be resolved.

The chiropractor later learned that he faced disciplinary action that resulted in not only a formal reprimand but also an order to notify every patient he treated between Dec. 14, 2012, and Feb. 4, 2013, that he was not licensed and that he billed for services he was not legally authorized to perform during that time.

The matter escalated to a full investigation by the state, which led to the chiropractor hiring an attorney and spending hours providing information and testimony.

Even the administrative law judge who heard the case admitted she would have preferred to give the chiropractor only an administrative warning, given the snafus committed by the state agency, but she concluded that precedents established in similar cases required a formal reprimand.

The law judge did reduce the time period of unlawful practice to just the month’s time between the license expiration and the chiropractor’s own call to DSPS.

Any patient treated by the chiropractor during that period could have sought a refund, which could have added up to a substantial sum. The doctor also was ordered to pay 20% of the costs borne by the state to prosecute the case.

Neither the chiropractor nor his lawyer responded to phone messages and emails seeking comment on the case.

“Very persnickety”

Arthur Thexton, who served as a prosecutor for DSPS for 24 years, and who is now in private practice handling cases for professionals on the other side of the table, called the Chiropractic Examining Board “very persnickety.”

“They are very hard on their disciplinary cases,” Thexton says.

But they’re not alone. In a case in 2017 involving the Dentistry Examining Board, a woman who wanted to practice in Wisconsin was denied because the foreign dentistry school from which she received her degree was not accredited by the American Dental Association Commission on Dental Accreditation.

“The case of Dr. (Bonolo) Odirile is extremely irritating to me,” says Thexton, who represented the dentist. Odirile had graduated with a bachelor’s degree in dental surgery from the University College Cork dental school, a university in Ireland that is ranked among the top colleges worldwide. Odirile had also obtained a post-graduate orthodontic certificate from the University of Pennsylvania School of Dental Medicine.

“There was no legitimate reason for believing this woman was not a completely well-qualified, welltrained, excellent dentist,” he says. “They decided to take a very conservative view of the rules that they had in place and apply them very strictly.”

Thexton calls the rules “protectionist in nature and usually restrictive.”

Odirile and her husband had hoped to settle their family in Wisconsin, Thexton says. Instead, Odirile’s family moved to Texas, where she is now working as a dentist.

The rules that guide the various professional and occupational licensing boards can often seem overreaching, Thexton says, “but on the other hand, you have to have some kind of standards, and once you establish them and put them in writing you have to stick to them or change them and try to be consistent.”

“The rules that they have don’t really deal well with the facts of the case,” he says, though. “That’s always going to be true. You can’t predict every possible case.”

In Odirile’s case, he says, “Wisconsin lost a very good dentist.”

Rules and punishment differ

In the case of the chiropractor who had inadvertently been practicing without a license, the consequences regarding his malpractice insurance had the potential to be serious, Thexton says.

“If you are not licensed, then it is very likely that your malpractice coverage will not be effective,” he says. “If you’re not covered, then your patients are at risk, because if they get hurt or something goes wrong, then they are without legal recourse to get the kind of care they might need to repair damage.”

Thexton, the former DSPS prosecutor, says it would be ideal to have across-the-board standards and operating methods among the various licensing bodies, but in practicality the differences in occupations and the levels of potential public harm have to be taken into account.

“Each profession has its own individual rules, of course,” Thexton says. “It’s one thing if you have an affair with your pharmacist; it is quite another to have one with your psychologist.

“There could be some standardization and rules that could apply to everybody, but, on the other hand, you’re never going to achieve total standardization.”

Betsy Thatcher of Menomonee Falls is a freelance writer and a former Milwaukee Journal Sentinel reporter.