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Government-and-politics
What laws should be passed in the next Oklahoma Legislature? Send in your ideas

We are asking Tulsa World readers to become lawmakers for one week.

What new laws do you think should be enacted in the coming legislative session? We want to gather your ideas and send them to legislators, who have a Dec. 13 deadline to file ideas for bills.

To send in your idea, go to facebook.com/tulsaworld or twitter.com/tulsaworld and post a comment on the pinned posts at the top of each page. You can also send your idea by email to web@tulsaworld.com or by regular mail to “It oughta be a law!” c/o Tulsa World, P.O. Box 1770, Tulsa, OK 74102.

Ideas will be taken until end of day Monday, Nov. 11.

Readers will then get to vote in a poll on the top 20 ideas. The most popular ideas will be published on Sunday, Nov. 24, in print and online and sent to members of the Legislature.

It’s not a crazy idea to think one of the ideas will become law. The last time the Tulsa World asked readers to do this back in 2000, more than 500 ideas came in, including not taxing food and making license plates cheaper. One person wrote to urge a state law allowing pets to be added to family health insurance plans. “I would do anything for my daughter, Buffy, who is a cocker spaniel,” the reader wrote.

One idea actually went through the Legislature and became law.

Then Sand Springs Police Sgt. Mike Carter — who is now the police chief — suggested that eluding a police officer should be made a felony offense.

“If it’s a misdemeanor, and people elude police, maybe it should be felony,” then-Gov. Frank Keating said when he went over the ideas from readers.

After publishing the idea, the Oklahoma Highway Patrol endorsed the idea. Then the Tulsa County District Attorney’s office and the Tulsa Police Department joined in support.

Senate Bill 1383 was the result. Written by Sen. Dave Herbert, D-Midwest City, who was a former police officer in his district, the measure made it a felony for a person to willfully speed up or turn off the lights of a vehicle in an attempt to elude a police officer. The sentence could be up to five years in prison and the fine could be as high as $5,000.

The bill passed 45-0 in the Senate. It passed 96-1 in the House.

The law “sends a strong message that complete disregard for law enforcement and public safety will not be tolerated,” Keating said after signing the bill into law. “When criminals attempt to elude officers, they are putting innocent lives in jeopardy, and they should be prosecuted to the fullest extent of the law.”

The law went into effect on July 1, 2000, just five months after the Tulsa World’s project for citizen input in the legislative process.

Just a month later, the first felony charge that came out of the new law happened in Tulsa County and involved Carter, who was supervising a high-speed pursuit. Carter said he was happy the idea finally became reality, after years of the law enforcement community advocating the idea.

Send in your idea by Monday, Nov. 11. Then look for the poll on tulsaworld.com to vote for your favorite that will be sent to lawmakers.


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State-and-regional
While Oklahoma sued opioid makers, how did state regulators handle doctors accused of overprescribing?

Oklahoma sued opioid manufacturers amid a nationwide crisis. The state jailed drug dealers. But what happened to the doctors the state claimed prescribed too many opioids?

It’s complicated.

In May 2017, less than a month before the state filed a lawsuit against drug companies, the Oklahoma Board of Medical Licensure and Supervision held disciplinary hearings for two physicians accused of misconduct in prescribing opioids.

One, James Ferris, was accused of conspiring with a pharmacist to illegally distribute thousands of opioid prescriptions. Investigators are unsure how many ended up in the black market. The other, Scott Lilly, reportedly had as many as 14 patients die from acute drug toxicity — deaths that investigators claim were a result of his prescribing practices.

The board declined to revoke either physician’s license.

Both cases illustrate a complex, often overlooked component of Oklahoma’s opioid crisis, which state attorneys claimed left at least 6,000 dead since 2000.

Oklahoma Attorney General Mike Hunter has aggressively gone after pharmaceutical companies, winning multimillion dollar verdicts pledged to fund addiction treatment. Local prosecutors have targeted drug dealers in homicide cases after overdose deaths.

But accountability for doctors is somewhere between the collective — yet isolated — efforts of state prosecutors, narcotics agents and an appointed board given the uncomfortable task of policing its peers.

Former Assistant Attorney General Jason Seay prosecuted both cases on the eve of the state’s multimillion dollar offensive against the opioid epidemic. Seay said the cases represent two distinct issues the medical board has to reckon with: Ferris, who is accused of participating in a scheme to distribute as many opioids in as little time as possible, and those like Lilly, a doctor described as trying to do good but in the wrong ways.

“There are guys that are doing this s--- with clear criminal intent because they’re greedy bastards,” Seay said. “There are people on the other hand, though, that got in over their heads.”

Attorneys, agents and agencies

When appointed in 2017, Attorney General Mike Hunter and the Oklahoma Commission on Opioid Abuse set out to diagnose the state’s epidemic. The state filed its lawsuit against pharmaceutical companies in June 2017, and Hunter said his office has also criminally charged a handful of doctors in connection to “criminally reckless” conduct in prescribing opioids.

But there’s more to why that number is only a handful, given the 1.4 billion prescription pain pills supplied to the state from 2006 to 2012. Prosecutors at any level have to prove more than bad medical judgment. There has to be some evidence of gain for the physician or criminal intent in prescribing or distributing.

“Situations have to just be an egregious case of malfeasance with regard to passing out pills like they’re candy,” Hunter said. “Or just recklessness with regard to how patients are diagnosed and the extent to which they’re provided prescription opioids. I think that we’ve only had a half-dozen in three years.”

The Attorney General’s Office supplies attorneys for medical board disciplinary hearings, but Hunter said his office remains otherwise uninvolved. He said they leave those cases to the board to decide, in part, so as not to interfere with the doctor-patient relationship.

“One of the things we resisted in the opioid case was allowing the pharmaceutical companies to use the doctors as scapegoats,” Hunter said. “We resisted that because ... the extent to which doctors had been brainwashed over the last two decades with regard to opioid prescribing was so utterly calculated and diabolical.”

No agency is charged with coordinating efforts to investigate and prosecute physicians. The attorney general’s office isn’t involved unless a case is referred for prosecution. Two agencies have primary jurisdiction in most opioid cases involving physicians: the medical board that evaluates a doctor’s conduct, and the Oklahoma Bureau of Narcotics and Dangerous Drugs, which enforces rules on controlled dangerous substances.

The medical board, with seven physicians and four other members appointed by the governor, functions similarly to a traditional criminal system. Complaints are often settled in an agreement, but full public hearings mimic criminal proceedings — with attorneys, witnesses and evidence. The board president presides as a judge, and other board members hear the case and may ask questions. After closing arguments, the board goes into a closed-door session to decide on the case before a public vote.

Lyle Kelsey, the board’s executive director, leads the board staff. His office includes the board investigators. No members of the medical board responded to a request for comment on this story.

OBN, which often works in conjunction with the medical board, licenses the prescribing, transport, distribution and manufacture of controlled substances. Oklahoma is also a dual-registration state, requiring doctors to have licenses from both the OBN and the Drug Enforcement Administration.

Spokesman Mark Woodward said OBN is often aware of actions by state regulatory boards and may review those cases to take action against prescribers. Follow-up action by the OBN isn’t required, but Woodward said it’s often the case. Those actions sometimes lack criminal charges.

“We sometimes conduct investigations that do result in us presenting charges to a district attorney,” Woodward said. “And sometimes we do investigations where we don’t see criminal violations, but we do see violations of opioid rules such as where they stored the drugs and who had access to them.”

While the medical board polices a doctor’s ability to practice medicine, the OBN specifically regulates an ability to prescribe and distribute. Although the medical board has five full-time investigators, some of them former OBN diversion agents, the OBN has its entire Diversion Division dedicated to controlled substances.

But they aren’t doctors and don’t prosecute on medical decisions, Woodward said.

“We never use the term overprescribed because we do leave that up to the medical boards and their experts,” Woodward said. “We certainly do not get into the business of determining appropriate medical doses. What we do look at are the reasons behind the prescriptions, for example if they are writing prescriptions for a patient without a medical necessity.”

‘Magnitude of difference’

The medical board began its investigation into James Michael Ferris after a pharmacy board investigator found Ferris’ blank, pre-signed prescriptions during an inspection at a Wellston clinic in December 2015, according to medical board records.

Ferris and a pharmacist, Katherine Dossey, were accused of setting up a scheme whereby homebound patients would be automatically re-prescribed Schedule II opioids. The board’s case included 922 prescribing violations.

Ferris’ and Dossey’s attorneys of record did not respond to multiple requests for comment for this story.

The state and board staff both sought to revoke Ferris’ license and impose a heavy fine, according to a recording of Ferris’ medical board disciplinary hearing. In Seay’s opening statement, he sought to dispel any defense of Ferris’ actions as mistakes.

“This was not inadvertent or inattentiveness due to a practitioner,” Seay said at the hearing. “This is a business model done by a corporation. This board should send a strong public policy message that the business model for raw dispensary of CDS in violation of the Controlled Dangerous Substances Act absolutely will not be tolerated in this state.”

In one instance mentioned at the hearing, a prescription was automatically renewed and sent to a patient who had already died. The scheme reportedly broke the “opioid safety net,” which an investigator described as a system of checks designed to keep opioids from diversion. The investigator testified there was no way to definitively know the number of Ferris’ prescriptions, as many as 3,000, that were diverted to the black market.

The board, instead of the revocation prosecutors sought, suspended Ferris’ license for 30 days and imposed a $5,000 fine. One board member, Bob Howard of Oklahoma City, voted against the measure because he didn’t feel the punishment was severe enough, according to board filings.

In the meantime, Seay and the board staff were aware of a federal case against Ferris and Dossey building in the Western District of Oklahoma.

Seay said the Attorney General’s Office chose not to pursue Ferris criminally to avoid interfering with the federal case, but the board’s decision against the state’s recommendation still came as a shock to him and to Ferris’ defense counsel.

“It seemed to be because they decided that perhaps he was taken advantage of by (Dossey),” Seay said. “They pretty much bought into that. That’s why I think he got the leniency that he got.”

On June 20, 2018, the federal case produced a 103-count indictment against Ferris, Dossey and the clinic’s owner. The three are awaiting trial on 62 counts of distributing a Schedule II controlled dangerous substance and 41 counts of Medicare fraud for allegedly billing Medicare for invalid prescriptions.

Kelsey said the indictment vindicated the state’s original argument in wanting Ferris’ license revoked.

Seay said cases like Ferris’, in which prosecutors allege a business enterprise, ought to be handled by OBN. It’s difficult to prove criminal intent in cases of overprescribing, but when a line can be drawn between a doctor’s benefit and an unnecessary prescription, Seay said it’s not the board’s strength.

“OBN has more resources and are better situated to adjudicate those cases,” Seay said. “By resources, I mean they’ve got helicopters, guys with big guns and they can go around and arrest people. The board investigators ... there’s only, like, five of them, and they are very busy all the time.”

‘If you can’t land a plane …’

The Oklahoma Bureau of Narcotics and Dangerous Drugs, in conjunction with a medical board investigator, served a search warrant at Scott Lilly’s office in Muskogee on July 9, 2015, after parallel investigations into Lilly’s prescribing practices.

Lilly declined to comment for this story; his attorney, Vicki Behenna, answered questions on his behalf.

In practice, Lilly was an oncologist, but the board began investigating after the family member of a patient filed a complaint, according to board records. The board investigator testified at Lilly’s hearing that the OBN was also looking into eight suspicious overdoses possibly connected to Lilly’s prescribing.

When the board staff filed its formal complaint against Lilly on July 25, 2015, “at least two” of Lilly’s patients had died since March. At least 12 others had died since 2010, according to the complaint. Seay said at the hearing that Lilly’s decisions reflected bad judgment in bad situations.

“If you can’t land a plane, you probably shouldn’t take it off,” Seay said.

No one at the hearing disputed Lilly’s ability as a physician; in fact, his diligence and skill in medicine were praised. Seay seized on his lack of training in chronic pain management outside the treatment of cancer. Lilly prescribed opioids to patients for pain but often lacked patient pain contracts and rarely did drug screens to monitor his patients, according to an audio recording of his hearing.

Behenna said he had taken on high-risk patients for chronic pain that other clinics had refused. She said Lilly knew mistakes had been made, but he was not solely to blame because his patients had an equal responsibility to take medications as prescribed.

A state narcotics agent testified that he recalled Lilly saying he could “just not say no” and that he knew some patients were known drug abusers when speaking to investigators in 2015. Lilly surrendered his OBN license the day agents raided his office.

The state’s expert witness, Dr. Robert Brittingham, reviewed patients’ medical records and described Lilly’s prescribing practices as a “really, really smart doctor doing stupid stuff.”

The hearing ran long enough that it lost a quorum on May 5, 2017, because board members are also physicians frequently on call. Between then and when the meeting reconvened, Behenna claimed she reached an agreement with prosecutors for Lilly to serve a 30-day suspension with a $25,000 fine. However, in that same time frame, the state filed its suit against pharmaceutical companies on June 30, and the agreement in principle was never formalized.

Seay said in his closing statement there were “a lot of deaths and they happened fast,” and that the board “should send a strong message that this type of prescribing practices cannot and should not be tolerated.”

On the other side, Behenna disputed the need to send a message to doctors.

“To persecute physicians who are trying to treat chronic pain is not the message to send,” Behenna said. “If there is an addiction problem in the state of Oklahoma and this nation, we should be treating the addiction.”

Despite prosecutors seeking revocation and a heavy fine, the board unanimously returned a six-month suspension and a $20,000 fine, along with a ban on prescribing controlled dangerous substances.

Medical board filings show Lilly has not practiced medicine since the warrant service, though he successfully appealed for the right to prescribe Schedule V substances, like low-dosage cough syrup, in May 2019. OBN records show Lilly was re-issued a limited prescribing license in May and works at a clinic in Bixby.

To date, Lilly hasn’t been criminally prosecuted. Seay said thanks to the board’s restrictions on Lilly’s prescribing and his surrendered OBN license, the flow of drugs stopped. Despite concerns with some of Lilly’s patients, Seay said he doesn’t think Lilly did anything maliciously or with criminal intent.

Seay said the board is built to discern between good and bad choices by doctors. It’s why he said he thinks the board isn’t quite sure where the bar is for holding doctors accountable.

“For policy reasons, you will have leadership — who wants to appear hard on cracking down on opioids — just constantly ask for the max on these things,” Seay said. “But the individuals actually responsible for policing the profession will probably invariably have a different opinion because they understand context in this particular case matters.

“You’ve had the standard of care evolving throughout that timeframe where we were understanding more about how opioids work, and the problems with addiction wound up being more serious than what was previously thought.”

Standard of accountability

The OBN and medical board both have authority to revoke or suspend licenses. The board also has the option to impose a fine of up to $5,000 for each violation, impose certain restrictions and mandate continued education for physicians.

State law enforcement deals in black and white with its rules for controlled substances, and its agents’ knowledge of criminal enterprises is equivalent to board members’ knowledge of medicine. Short of prison time, the standard of accountability for doctors lies somewhere between reprimand and license revocation.

Seay said he believes the board for the most part has held doctors sufficiently accountable. The state leaves regulation of the medical profession to itself, not to judges, attorneys or other arbitrators. It’s why he said the board faces an ongoing challenge in combating the opioid crisis.

“The board is tasked with the unenviable job of telling their peers whether or not they get to keep their licenses, their profession, their livelihood based on decisions they made on individual patients years before,” Seay said. “The board has to come to terms with the fact that the standard of care may have been different than what the profession was actually doing.

“In hindsight, we would want to hold doctors to a higher standard than what they did, previously. I think that’s a hard position to put those folks in.”


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Education
special report
Thousands of students have left TPS. Where are they going and why?

Billy Adams may sympathize with the financial plight of Tulsa Public Schools, but he doesn’t regret ditching the district in pursuit of a better education for his son.

Overcrowded classes and under-resourced teachers at Grimes Elementary compelled Adams to enroll 11-year-old Brayden at another school this year. He first considered two higher-performing schools in the Tulsa district, but both were in neighborhoods with much higher housing prices.

Instead, he moved to the suburbs and enrolled Brayden at Jenks West Intermediate.

“It just felt like we needed to be in a district that felt more evenly distributed across the board,” Adams said. “When we looked at Jenks, it didn’t feel like one area was better than another or that the schools received different things.”

Thousands of students like Brayden have left Tulsa Public Schools for other options in recent years. Newly obtained data from the Oklahoma State Department of Education shows most end up in surrounding school districts and a variety of charter schools.

Between summer 2013 and the end of June 2019, the top five recipients of former TPS students have been Union, Broken Arrow, Epic Charter Schools, Jenks and Sand Springs.

While high student mobility rates mean many students also come to TPS each year, the district is facing a shrinking budget because of its net loss of about 5,000 students in the past decade.

“Those numbers don’t necessarily surprise me, but they’re not ones that should be considered normal,” Adams said. “It’s certainly disconcerting that, with a community as large as Tulsa is, this issue is so rampant.”

He said the recent revelation that TPS must slash $20 million from its 2020-21 budget reinforced his decision to leave Tulsa.

District officials have blamed declining enrollment and a decade’s worth of education funding cuts for the financial shortfall. TPS Superintendent Deborah Gist highlighted the downturn during a recent series of community engagement meetings centered on the looming budget cuts.

Gist also has been vocal about the loss of students to Epic, calling for regulation to reduce the constant churn of children coming and going from the state’s largest virtual charter school in January. About 3,700 students left TPS for Epic from summer 2013 to the end of June 2019.

Among them were Barbara Torres’ 10-year-old son, who previously attended Hoover Elementary School, and her 16-year-old daughter, who had been at Hale High School. She took them to Epic after repeated difficulty in getting accommodations for her son, who has severe medical issues with his brain and eyesight.

“Once he was on the 504 (a plan for accommodations for children with disabilities), it didn’t matter. It was just a piece of paper,” Torres said. “My son’s teacher was pretty much ‘I give up on your son, I give up on you, so go find something else.’ So that’s what I did — for both of my kids. I understand they’re underpaid, but at the same time, there is a 504 there for a reason. He has needs.”

Torres’ older three children had all attended TPS, so she said she had never contemplated a home-based schooling option before. But she said her two school-aged children are already excelling with extra homework help available 24/7 and the hour each week when they get one-on-one time with their Epic teacher at a public library.

Cory Young 

People listen as Tulsa Public Schools’ superintendent Deborah Gist (above right) speaks during the Tulsa Public Schools community meeting at McLain High School. The meeting was about the coming $20 million shortfall. CORY YOUNG/for the Tulsa World

“You don’t want to make that change, because you want your child to be socialized. But you want your child to be wanted at school. There were so many kids from Hoover and Nathan Hale in the (Epic) program at the library. It’s like, ‘I’m not the only one that sees something going on!’ ” Torres said. “That’s a lot of students to lose. What’s going on with the school system so these children are leaving?”

The only districts that drew more Tulsa students during the last six years were Union, with 7,767, and Broken Arrow, with 4,045.

In an interview with the Tulsa World, Gist said she didn’t know why so many families are leaving TPS, but noted the district has experienced overall enrollment decline since 1968, when there were more than 68,000 students. Annual student counts recorded by the state show enrollment declines have escalated in the past five years, however.

“Any ability to speak to the reasons is speculation,” the superintendent said. “We’ve started doing exit interviews with families since I’ve been superintendent, but that wasn’t something that was a common practice, and we still don’t do a great job. That’s something that we have been working on.”

Gist theorized that the limitations caused by the small size and low capacity of many district school buildings contribute to families leaving. Larger facilities, such as those in Jenks and Broken Arrow, allow for more opportunities within each school.

Also, because a majority of TPS students qualify for free and reduced lunch, Gist said some families conclude their children will receive an inferior education.

“There’s definitely a perception about our schools that don’t always match,” she said, “so we have to do a better job of telling the story about our schools and helping them put the word out about the programs that they have to offer and the opportunities that students have.

Joseph Rushmore 

Tulsa Public Schools superintendent Deborah Gist speaks at an Oct. 10 community meeting regarding the $20 million budget shortfall faced by the district. JOSEPH RUSHMORE/for Tulsa World

“At the same time, we know that in many of our schools we have continued improvement that we need to do, and we’re focused on that as well.”

Gist said her administration has worked hard to enhance the district’s quality of education, resulting in an increase in high school graduates and more special programming available to students.

Officials also have ramped up their efforts to change the perception of their schools in recent years, with social media campaigns and a redesigned website. They’re also preparing to launch an improved enrollment system to make it easier for families to pick the right school.

Safety concerns were part of the reason Rigo Mireless pulled his children from the district and enrolled them at Tulsa Honor Academy, a charter school sponsored by TPS. Although they never experienced problems at their elementary schools, the father of two had heard about issues at the middle and high school they would have attended.

Mireless transferred his son when THA opened in 2015 and never looked back. His daughter switched over as soon as she was eligible to attend the charter, which starts at fifth grade.

“Within the first month, we loved everything about it,” he said. “The energy, the positive attitudes from the teachers. And not to say the attitudes were bad at the other schools. But with (traditional) public schools, I just don’t know if the attention is there.”

More than 3,300 students left for TPS-sponsored charter schools, which do not contribute to the district’s share of state aid through the funding formula.

Erica Randle said she moved her son, Ty’Reek, from East Central Junior High School to THA because he wasn’t getting help for his attention deficit hyperactivity disorder, or ADHD.

“He felt as if nobody cared about how he functioned, about how he needed to learn,” she said. “With the insecurities came a lot of depression and anxiety and thoughts of suicide. There were just a lot of different situations behind him not being able to progress and show how smart he actually is.”

THA reached out to Randle as she searched for other school options and expressed interest in her son’s academic potential and athletic background in track. She said the charter saw something in Ty’Reek that TPS didn’t.

Part of Angela Jackson’s decision to move her son from Emerson Elementary to the charter school KIPP Tulsa College Preparatory about four years ago was about trying something new and different. But she also said budget cuts and growing class sizes led her to see the writing on the wall at TPS.

“I loved the teachers at Emerson; I really did,” Jackson said. “I loved the principal there. But I could kind of tell that things were changing.”


TPS annual student membership 

School yearOct. 1 student membership
2008-0941,252
2009-1040,846
2010-1141,224
2011-1240,919
2012-1340,252
2013-1440,152
2014-1539,999
2015-1639,451
2016-1738,628
2017-1837,433
2018-1936,512
2019-20 Forecast36,065

Source: Tulsa Public Schools Preliminary School Budget and Financing Plan 2019-20                  


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