Ibsen Timeline and Brief

Email from Dr.
Ibsen, April 23, 2018, outlining timeline of

investigations and sanctions, updated with June 2018 court
decision and 2016 brief:
Here’s the timeline,
And my Attorney, John Doubek can confirm these dates.
I fired an employee in January 2013 for being abusive to patients. In

February I received notice that the board of medicine wanted me to
appear before them at a screening panel hearing. This occurred in April
2013. There were multiple complaints filed against my license( by the
former employee). All of these were dismissed except one: an
accusation of over prescribing narcotics.
After meeting with the board of medicine screening panel, to my

surprise the case went forward.
After much negotiating the board offered me an ultimatum:

In order to settle the case, I had to agree to
•Stop seeing addicts ( thought that was never defined)
•Only treat pain for three days
•Stop prescribing medical marijuana
•Submit to the Montana professional assistance program for physicians
( implying, without evidence, that I am or was impaired)
I declined this absurd restriction on my practice,
(But now my clinic is closed, so Mr Fanning knew something I did not.)
In the meantime I was seeing more more pain patients as they were
dropped by their doctors. This resulted in a three-part series in the
local newspaper on chronic pain in May 2014.
http://helenair.com/news/local/big-pain-series/image_d19e3b34-df0b-
11e3-8c80-0019bb2963f4.html
There were 4 hearings about my license

October 21, 2014
https://www.google.com/amp/helenair.com/news/local/helena-doctor-
fights-to-save-his-medical-license/article_7b3c32b6-252e-59ab-b7ed-
e3aa97e0e449.amp.html
October 22,2014
1. PETITIONER’S BRIEF
https://www.google.com/amp/helenair.com/news/local/doctor-s-hearing-
put-on-hold-after-pharmacist-testifies/article_1612facc-f8d0-5ade-
9a25-3162f49fe285.amp.html
December 3 2014
https://www.google.com/amp/helenair.com/news/local/physician-s-
license-on-the-line-patients-say-he-s/article_35fc8017-71e4-5fc3-95cb-
cf6067dfdcb4.amp.html
December 4 2014
https://www.google.com/amp/missoulian.com/helena/news/local/how-
much-is-too-much-helena-doctor-s-drug-
prescriptions/article_ab33e0a2-80cf-582d-b1bc-
d7e5c44fcbe3.amp.html
https://www.google.com/amp/helenair.com/news/local/attorney-
questions-doctor-s-sanity-in-final-day-of-hearing/article_bfe4cc7f-ffa5-
5d01-b0fa-5a332ebb70a8.amp.html
June 2015
The Administrative law judge, David Scrimm
Ruled on the case
https://dli.mt.gov/Portals/57/OAHDecisions/poldec190_2014.pdf
https://www.google.com/amp/missoulian.com/helena/news/local/exami
ner-finds-ibsen-met-standards-of-patient-care-but-
kept/article_cd19b2ee-ba6d-5192-9a6c-d0981abd967e.amp.html
The board of medicine chose to reject the ruling

And
In a series of hearings proceeded to revoke
And reject the findings of the ALJ.
http://www.kpax.com/story/30270669/ibsen-license-question-could-be-
settled-in-november
After hearings in November

December, 2015, and January 2016,
My license was suspended
March 2016.
Judge Reynolds immediately applied a Temporary Restraining Order,

So my license was restored with 36 hours.
https://www.google.com/amp/www.ktvh.com/2016/10/helena-doctor-
continues-fight-montana-board-medical-examiners/amp
June 2018 Update: Judge reverses decision of Montana licensing

board, remands case back to the licensing board for possible further
investigation.
I currently have my license under the temporary restraining order.
Judge Reynolds has yet to make his permanent ruling, 25 months since
the temporary restraining order was established.
The last hearing he had was 10/31/16.
While I have no idea why it’s taking him so long to make a permanent
ruling, my attorneys advice has been to “let sleeping dogs lie“ rather
than take the case to the Supreme Court risking an adverse ruling
against my license.
Parenthetically, it’s interesting that a case so simple on only nine

patients could result in years of hearings, hundreds of thousands of
dollars spent by me and millions of dollars spent by the state. The case
could’ve been resolved in a 10 minute conversation. It’s clear to me
that the board of medicine in the state attorney generals office was
only interested in finding a scapegoat. This case in the case of Dr.
Christianson [convicted of murdering two patients through reckless
prescribing] of course have cast a pall over opiate prescribing in our
state. The other unfortunate and vexing thing for me is that I
apparently cannot sue for damages because my case has never been
fully resolved.
Mr. Fanning, the board of medicine attorney, impugned my character

my mental health status
and the care I’ve given to my patients. He has yet to be found
accountable.
Thanks
Mark Ibsen MD.
Helena Mt.
PS:
This timeline does not include five different meetings with the Dragon
Forssman agency who came to my office inspected my practice, and
insisted on my attorney being present for these meetings.
June 2018 Update: Judge reverses decision of Montana licensing

board, remands case back to the licensing board for possible further
investigation.
Filed before 10/31/2016

John C. Doubek
DOUBEK, PYFER & FOX, LLP
307 North Jackson
P.O. Box 236
Helena, MT 59624
Telephone: (406) 442-7830
Facsimile: (406) 442-7839
Attorney for Petitioner
MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY
******
MARK IBSEN, M.D., ) Cause No. DDV-2016-283

)
Petitioner, )
) PETITIONER’S BRIEF
vs. )
)
MONTANA STATE BOARD OF )
MEDICAL EXAMINERS, )
)
Respondent. )
Petitioner respectfully submits this brief in support of his Petition to reverse the
decision of the Montana Board of Medical Examiners.
CASE ORIGIN
Oftentimes cases involving the review of a decision of the Board of Medical
Examiners as it relates to physician discipline arise as a result of some particular bad act
committed by the physician. It may arise from a referral or transgression against
Medicare or Medicaid. It may arise as a result of grossly deficient medical care. It may
arise because of an injury to a patient. It may arise as a result of a physician’s addiction
to alcohol or drugs. None of that was present here. Instead, this case started when one of
Dr. Ibsen’s employees filed a complaint against him upon being terminated from her job
at Dr. Ibsen’s Urgent Care Plus clinic. This terminated employee is named Sarah Damm.
She was a chiropractor but worked as an office staff aide in Dr. Ibsen’s clinic. She had
difficulty getting along with her co-workers. She spoke derogatorily about patients in
front of others. She had a difficult time obeying orders. Dr. Ibsen tried to find her some
office space so she could simply work as a chiropractor. That didn’t work out and so he
terminated her. In retaliation for the termination, this employee filed a complaint with the
Montana Board of Medical Examiners asserting that Dr. Ibsen had overprescribed
narcotics for a number of patients and identified 9 patients specifically to the Board of
Medical Examiners.
The Board of Medical Examiners determined to proceed and have a hearing on
the matter. Shortly before the hearing began the Board’s attorney offered to resolve the
complaint against Dr. Ibsen if he would simply acknowledge that his record keeping
could be better. Dr. Ibsen would not so agree and the matter went to a hearing which
lasted some 4 days. Many witnesses were called, some 2700 of pages of patient record
were submitted and a decision of an attorney Hearing Examiner named David Scrimm
followed.
The Board of Medical Examiner’s counsel did not like that decision and asked the
Board to reverse it in a number of respects. Ultimately the Board did as its Board counsel
wished and entered another order and it is that order from which Dr. Ibsen appeals.
Before the Board adopted its final decision and order (Exhibit A) it had two
deliberation meetings as to why and how the decision ought to be changed. The Board
deliberated “on the record” announcing what it was thinking, why it was thinking about
certain changes, etc. and then it had another work session which lasted several hours and
during that time again discussed its decision and what all was going into its decision.
That process of deliberation is fraught was error. The Board tipped its hand that it was
considering a number of things which were not in the evidentiary record.
THE FINAL ORDER
This final order by the Board is fraught with mistakes, many of which are just
plain garden variety mistakes by the Board. This brief will go through the final order as
it is set forth.
The Board states at page 2 that it was rejecting the Hearing Officer’s proposed
order because “certain findings of fact are not based on substantial competent evidence”
and the Board disagreed with some of the proposed conclusions of law drawn from the
ill-founded findings of fact. In actuality, the findings of the Hearing Officer as contained
in his proposed order (Exhibit B) were largely based upon competent, relevant and
substantial evidence but the Board didn’t like what the Hearing Officer had found and
willy nilly threw out what they wanted and simply stated that his findings were not based
upon substantial competent evidence. The transcript of the “deliberations” process shows
the Board was constantly coached by its counsel to use certain words if they wanted to
reject something in the Hearing Officer’s proposed order. Indeed, the Board’s counsel
gave the Board a handout telling them what words needed to be used to do the job.
It should also be noted that as per Mont. Code Ann. § 2-4-623(1)(a), a final
decision of an agency “must be issued within 90 days after a contested case is considered
to be submitted for a final decision unless, for good cause shown, the parties extended for
an additional time not to exceed 30 days.” This case has dragged on and on and the final
decision was not made within 90 days after the contested case decision was submitted in
June, 2015. We would also point out that at the top of page 2 of its Order, the Board
states that the Hearing Officer heard this contested case on June 23, 2014 and October 21
and 22, 2014. That’s a mistake. Actually, the administrative trial occurred on October 21
and 22, 2014, and December 3 and 4, 2014. The Hearing Officer thereafter entered his
order on June 12, 2015, over six months later. The Board did not enter its final order
until March 22, 2016, nearly 9 months later. Meanwhile, Dr. Ibsen continued taking care
of his patients.
When discussing the standard for review, there are two references made by the
Board to Mont. Code Ann. § 2-4-623(3). That must be a typographical error because that
statute does not provide what the Board states at page 2. The reference should have been
made to Mont. Code Ann. § 2-4-621(3). Furthermore, the whole approach by the Board
is in error here. This is a case where a Hearing Examiner duly appointed by the Board of
Medical Examiners had an administrative trial, received evidence in testimony and
exhibits and then issued his opinion (Findings of Fact, Conclusions of Law and Proposed
Order). It then went to the Board of Medical Examiners and thus it would appear that the
Board is referring at the bottom of page 2 when discussing the standard of review to
Mont. Code Ann. § 2-4-621 which is the statute relative to when absent members may be
involved in the decision and modify a decision. That statute is likely applicable because
what happened here is that the Board of Medical Examiners did not hear the case itself
but thereafter purported to issue a final order (Exhibit A) (which Petitioner has appealed).
The statute though specifically provides that the Board’s decision, “if adverse to a party
to the proceeding other than the agency itself, may not be made until a proposal for
decision is served upon the parties and an opportunity is afforded to each party adversely
affected to file exceptions and present briefs and oral arguments to the officials who are
to render the decision.” That didn’t happen here. The Board gave the parties the
opportunity to contest the Hearing Examiner’s order but we were not given an
opportunity to contest by filing exceptions and briefs and have oral argument on the
decision itself of the Board of Medical Examiners, which is what the statute provides. In
other words, the Board of Medical Examiners issued its decision by virtue of a final order
dated March 22, 2016. The parties, including Dr. Ibsen, were never afforded the
opportunity to file exceptions or present briefs and oral argument about that decision. He
was left only to file his Petition for Judicial Review of the Agency’s final order. On this
basis alone, the “Final Order” of the Board of Medical Examiners needs to be reversed.
Again, Dr. Ibsen was never given the opportunity to file a brief and exceptions and
contest the various provisions of the Final Order. When the Final Order came out, that
was the first time it was seen by Dr. Ibsen. Mont. Code Ann. § 2-4-621 provides the
following:
When absent members render decision-proposal for decision and

opportunity to submit findings and conclusions - modification by agency.
(1) When in a contested case a majority of the officials of the agency who
are to render the final decision have not heard the case, the decision, if
adverse to a party to the proceeding other than the agency itself, may not
be made until a proposal for decision is served upon the parties and an
opportunity is afforded each party adversely affected to file exceptions and
present briefs and oral argument to the officials who are to render the
decision.
In this case, none of the members or officials of the Agency (Board of Medical
Examiners) heard or participated in the underlying administrative trial. That being the
case, its decision, whatever it might have been, needed to be first presented to the parties
if it was going to be adverse to one of the parties and certainly it was adverse to Dr. Ibsen
and Dr. Ibsen should have been given under the law the opportunity to file exceptions and
present briefs and oral argument to the same. That didn’t happen. That’s one of the many
reasons why the Final Order of the Board of Medical Examiners needs to be set aside for
failure to follow the law.
SPECIFIC ERRORS IN FINAL ORDER
At page 6 of its Final Order, the Board modifies the Finding of Fact 3 to delete
any comparison between standard of care and the fact that the pendulum concerning pain
treatment has indeed changed significantly over the years which, according to the Board’s
own witness, pharmacist Starla Blank, at Tr. 661, specifically stated that, “there really
was this big shift of the pendulum from, you know, pain and pain medicines being
reserved for either acute instances or in a chronic case just for like cancer pain, and that
really has shifted.” Tr. 661. All of the witnesses who testified in this case spoke about
their being a change in attitude and a change in treatment using narcotics to address pain.
Indeed, the pendulum shifted relative to the pain treatment using narcotics which greatly
increased. Thus, the standard of care changed as well. For a time narcotics were used
more so than they were used in other times. The standard of care changed as a matter of
fact and as admitted by the Board’s own witnesses, but the Board doesn’t want that to
appear in the Hearing Examiner’s Order. The Board stated that it was an inaccurate
statement of standard of care but there is no basis for that position being announced by
the Board. This is a hallmark of the Board’s Final Order, that is, if the Board didn’t like
something it would simply strike it from the Hearing Officer’s decision, not because it
was based upon non-record evidence or because it was clearly erroneous or because it
was based upon something other than substantial record evidence. The fact that all the
witnesses made reference to the fact that the use of opioids changed over time and thus
the standard of care changed over time is something that the Board has to recon with not
strike because it doesn’t like it. The Board must follow the law and cannot reject or
modify factual findings unless it first determines from a review of the entire record and
states with particularity that the findings were not based on competent substantial
evidence or were somehow not in compliance with legal requirements. Further, it cannot

increase any penalty without a complete record review. See, Mont. Code Ann. § 2-4-
621(3).
The Board committed error in the first paragraph on page 4 of the Final Order by
stating that unless there was contemporaneous documentation by Dr. Ibsen in the patient
records, it would not accept any of his testimony. This is flatly an unlawful and
unprecedented hurdle placed on his testimony by the Board. It says that the Hearing
Officer was wrong to administer Dr. Ibsen the oath to testify truthfully if he couldn’t also
corroborate his testimony by reference to the patient records for everything he had to say.
In so doing, the Board stripped the Hearing Examiner of his right and duty to attach the
amount of credibility he felt the testimony warranted. I frankly have never encountered
such a limitation placed on someone’s testimony or on the Hearing Examiner’s function
before. This approach permeates the Board’s decision as will be demonstrated hereafter.
One of the first times this can be shown is when the Board, without any basis,
changed the Hearing Officer’s Finding of Fact number 10. The Board struck all
testimony that Dr. Ibsen used the Montana Prescription Drug Registry (MPDR) because
his patients’ records, evidently it felt, did not contain copies of those MPDR records. The
Hearing Officer found from Dr. Ibsen’s testimony that he began using the MPDR in
February 2013, a couple months after it came on line. While copies of the MPDR may
not have been in each patient’s records, it was in use by Dr. Ibsen. That matter can be
verified as to when he signed up for it. He also produced copies of the MPDR for the
patients at issue here. See Exhibit M. There is thus no basis whatsoever for the Board to
strike Dr. Ibsen’s testimony that he and his office began to use the MPDR in February

2013. It was supported by his testimony and by the records (Exhibit M) in the evidence.
The MPDR is a separate record from the medical records of a particular patient. Dr.
Ibsen kept those separate.
The Board routinely in the Final Order would throw out what it did not like or
want in the Hearing Examiner’s decision. It did that indiscriminately. This approach
compels reversal. As the Montana Court held in Moran v. Shotgun Willies, 270 Mont.
47 (1995), if the Hearing Examiner’s findings are supported by the evidence, the rejection
or modification by the agency of such finding is an abuse of discretion and a clearly
unwarranted exercise discretion.
The Board next struck all of Finding of Fact 13. The Board did not like the
factual finding that “all of Dr. Ibsen’s prescriptions were for legitimate medical
purposes.” Indeed, Dr. Kneeland was asked the following and gave the following
response:
Q. You’re not here testifying that any prescribed pain medication was for
anything other than a legitimate medical reason or purpose?
A. No.
Indeed, Dr. Kneeland also acknowledged in his testimony that he was not
testifying that any of the 9 patients who received pain medication were not truly having
pain (Tr. 474). He was also not testifying that any of the 9 patients ever misused their
pain medications in any way (Tr. 474). He testified that there was no patient who had any
long term, bad outcome, because of any of the pain medications that had been prescribed
for them by Dr. Ibsen (Tr. 475). No one at the 4 day administrative trial testified that the

kind or amount of pain meds prescribed by Dr. Ibsen was inappropriate. No one testified
that Dr. Ibsen did not counsel with the patients about their use of medications and have an
agreement with them about getting the meds at one place using only Dr. Ibsen as their
prescriber. All of his patients trusted him implicitly. None of his patients were ever
abandoned by him. Incidentally, when the Board called Starla Blank, a pharmacist at St.
Peter’s Hospital to testify, she acknowledged that Dr. Ibsen used the PDR in Montana
shortly after it went live (Tr. 716) (contrary to the Board’s rejection in Finding of Fact
10). She agreed with others who testified. She was unaware of any case where Dr.
Ibsen’s prescriptions exceeded any manufacturers’ stated limits (Tr. 717-718). It’s plainly
a fact that the Board simply doesn’t want to admit what the evidence clearly shows,
which is that no patient of Dr. Ibsen’s ever received improper pain medications. There’s
no reason to throw out Finding of Fact 13. Such action is clearly erroneous and arbitrary
and capricious. Indeed it is a correct factual finding and the various references to the
transcript by the Hearing Officer should be affirmed.
The Board simply throws out Finding of Fact 15 because it states that the medical
records are somehow inadequate in the documentation of referrals to other healthcare
resources. This is an absurdity. Indeed the Hearing Examiner specifically states that the
Dr. Ibsen’s patient records indicate that he uses all of these other disciplines in his
practice (referring to Finding of Fact 14) which the Board accepted at page 8 of its Final
Order, that is, mental and behavioral health, psychology, psychiatry, counseling, physical
therapy, chiropractic, massage, interventional therapy, and other modalities. Indeed, three
of the patients who testified confirmed that Dr. Ibsen involved other modalities in their

care for their chronic pain. In the case of Patient number 4, he testified that Dr. Ibsen got
him involved with the Landmark Forum. Dr. Ibsen recommended chiropractic care
although the patient was afraid of that. He referred him to a psychiatrist who was a great
help to Patient number 4 according to Patient number 4. He testified that Dr. Ibsen gave
him literature to read concerning life issues and prescription medications (Tr. 526).
Patient number 4 basically credited Dr. Ibsen with saving his life and getting him off of
pain meds.
Patient number 3 talked about Dr. Ibsen getting her involved with Landmark
Forum which counsels about drug use and other life issues. She testified that from the
beginning Dr. Ibsen told her that he was going to do everything he could to get her off
pain medications that other doctors had been giving her (Tr. 551). He referred this patient
to chiropractic, physical therapy, did x-rays, MRIs, prolotherapy and other modalities.
He referred the patient to a pain interventionalist in Helena (Tr. 553). He referred her to
naturopathic doctors (Tr. 556). She also testified that she had stopped taking narcotic
pain medications with Dr. Ibsen’s help.
Patient number 5 testified that Dr. Ibsen sent her to a naturopathic doctor to talk
about other modalities including massage (Tr. 588).
The Board rejected Finding of Fact 16 for no legitimate reason. The evidence
supported the fact that Dr. Ibsen referred some his patients to Landmark Forum. The
Hearing Examiner noted that it was a “program designed to transform people’s lives by
helping them create a powerful life full of self expression, joy and access to power” (Tr.
627). Dr. Ibsen testified that he referred some of these patients to Landmark Forum and

the patients confirmed that. The fact that there may not be a specific reference in all of
the patients’ records to the referral to Landmark Forum should not negate the fact that he
did refer patients to Landmark Forum on occasion. The Board simply wants the record to
look devoid of things that Dr. Ibsen did for the benefit of his patients. It is flatly a mean
spirited attempt to reconstruct what happened with these patients in the narrow minded
view of the Board. It also ignores the evidence in the patients’ records (Exhibit L) and is
thus arbitrary, capricious and clearly erroneous.
The Board tossed Finding of Fact 18 for no legitimate reason. The fact of the
matter was that Dr. Ibsen testified that he had formed verbal contracts to limit patients’
use of pain medications and their agreement to use only one pharmacy. The Hearing
Examiner found that the MPDR records (Exhibit M) were consistent with that testimony.
The Board simply does not want to believe that. Dr. Ibsen did indeed indicate that these
agreements were verbal and thus they wouldn’t be in the patients’ records. The Board is
saying that if it’s not in the patients’ records the Doctor can’t testify that he had a verbal
contract. If indeed the patients testify that he had a verbal contract and Dr. Ibsen testified
he had a verbal contract, there isn’t any need for the verbal contract to be in the patient’s
record. That’s what occurred here. Again, this is clearly reversible error.
The Board totally rejected Finding of Fact 21. It also states that there was an
inaccurate classification of two drugs, Tramadol and Ultram as non-narcotics when
indeed they are narcotic. However, just an internet search of whether Tramadol (also
called Ultram) is a narcotic reveals that it is indeed not a narcotic. That internet search is
attached as Exhibit C. Further, the Board rejects Finding of Fact 21 because it says there

is “virtually no documentation of Dr. Ibsen’s use of alternative treatment.” That is quite
misleading. A packet of these documents from the evidentiary record will be shown to
the Court at the hearing/argument herein. Dr. Ibsen did prescribe acetaminophen to the
one patient and was criticized for it. He prescribed all kinds of other modalities which
constitute treatment or alternative treatment to narcotics. It’s important to remember
again that these 9 patients were cherry picked by the lady who was fired for cause and
then filed a complaint against Dr. Ibsen with the Board of Medical Examiners. The
Board didn’t do a random sampling review of Dr. Ibsen’s files, they looked at these 9
cherry picked files and then, as will be discussed later on, other patients who came to Dr.
Ibsen late in the proceeding who had been discharged or unable to see their doctor (Dr.
Christiansen in Hamilton, Montana) because the doctor was being sanctioned or
suspended by the Board for other matters.
The Board rejected entirely Finding of Fact 25 by essentially saying that Dr. Ibsen
didn’t use the MPDR because they couldn’t find it in the 9 patients’ files. As stated
previously, the unrebutted testimony from Dr. Ibsen was that he and his clinic frequently
used the MPDR shortly after it came on line. He testified that it was a great tool and that
he instituted a policy requiring his office to use it. He also employed internal policies at
his clinic consistent with the Substance Abuse And Mental Health Services
Administration (SAMSA) policies. There was no contrary evidence offered by the
Board’s attorney. There is no contradictory evidence in the file. There is no legitimate
reason for throwing out that testimony except that it’s a part of the Board’s effort to make
Dr. Ibsen look bad so it could then punish Dr. Ibsen, who dared to confront the Board.

The Board did another wholesale rejection of the Hearing Officer’s Finding of
Fact 27 for no legitimate reason. The MPDR records which are Exhibit M were admitted.
These were records that Dr. Ibsen testified were in his office and which kept track of the
pain medications prescribed for these 9 patients. Further, Dr. Ibsen pointed out that most
of the 9 patients had been seeing other providers previous to Dr. Ibsen seeing them for
the first time and when they saw Dr. Ibsen for the first time they had already been placed
on narcotic medications by these other doctors. A review of these patients’ records show
that Finding of Fact 27 is supportable by the records. The Board states that the finding is
not supported by the “competent substantial evidence” because the Hearing Officer
provided no citation to evidence of record. That’s not an appropriate determination by
the Board. If the Board wants to make the determination that the finding is not supported
by the competent substantial evidence it needs to look at the record evidence. It can’t just
blithely hold that because that was not specifically cited by the Hearing Officer that it
does not exist. Indeed, it does exist. For example, the Hearing Officer in Finding of Fact
number 43 discussing patient number 1 noted from the patient records that the patient had
had 8 surgeries prior to and while seeing Dr. Ibsen and presented with pain in her
abdomen and bruising. Thus, she was a chronic pain patient on pain medication before
she saw Dr. Ibsen and yet the Board throws out all of that by rejecting all of that on page
11 of its Final Order when it discarded the Hearing Officer’s Finding of Fact number 27.
Relative to patient number 2, the Hearing Officer pointed out that the Board’s
witness, Dr. Kneeland, testified that the amount of mediation which had been prescribed
for this patient on May 3, 2012 was excessive. However, Dr. Kneeland neglected to point

out that Dr. Ibsen did not prescribe any of those prescriptions to the patient (Exhibit 28-
2). A different doctor did that. The Hearing Officer pointed out that this poor patient had
multiple issues, including stomach ulcers, depression, anxiety, abdominal cancer for
which she had had a splenectomy, a hysterectomy, a hernia operation, gallbladder surgery,
two back surgeries, a gastric bypass and had lost 100 pounds. Obviously she was under
the care of other doctors as and while Dr. Ibsen was trying to help her. Obviously she had
received pain medication from other doctors and before she became a patient of Dr.
Ibsen. It is not rocket science to make that leap here, and yet the Board just tosses it to
the wayside. This poor lady died shortly after the trial.
The Hearing Officer discusses patient number 3 in the Proposed Order and how
she had three injury inducing falls during 2012 and had had two previous neck surgeries,
two thoracic outlet surgeries, a rotator cuff surgery and two lower back fusions. These
were all surgeries that Dr. Ibsen did not perform as he is not a surgeon. She also had a
traumatic brain injury and signs and symptoms of fibromyalgia. According to the
records, Dr. Ibsen conducted a complete physical examination and took a complete
history at every visit. See, Exhibit L-3. As the Hearing Officer found in Finding of Fact
59, “Dr. Ibsen took a more thorough history than any other physician.” Dr. Ibsen also
referred this patient for alternative modalities of chiropractic, physical therapy, x-rays,
MRIs, prolotherapy, swimming and massage classes. The patient also noted that she had
a pain contract between herself and Dr. Ibsen. Again, none of that is considered by the
Board in its wholesale rejection of Finding of Fact 27 which is inappropriate.

Patient number 4 had quite a lot of mental difficulties and had had prescriptions to
help with anxiety, bipolar syndrome, sleep and other psychological disorders. He was
referred by Dr. Ibsen to a psychiatrist. He credited Dr. Ibsen with saving his life.
Patient number 5 (Exhibit L-1) was another patient who had a very complicated
medical history, as the Hearing Officer outlines in detail with reference to the record
beginning with his Finding of Fact 48 and concluding with Finding of Fact 109. Patient
number 5 herself testified that she was desperate to find a doctor who would listen to her
and try to figure out what was wrong in causing her so much headache and pain. She
testified that Dr. Ibsen actually dug in and ordered a CT and found an infection, a serious
infection in her sinus (Tr. 580). Dr. Ibsen used a number of medications and modalities
for this poor patient who had 6 gynecological surgeries and was in an immense amount of
pain for a considerable period of time. She testified at Tr. 585 that Dr. Ibsen conducted a
physical exam and told her that she would be on pain medication for only short term.
She testified that Dr. Ibsen told her that if she was going to get pain medications from
anyone else he would no longer prescribe them for her (Tr. 587). She testified that Dr.
Ibsen sent her to a naturopath and talked about other modalities, such as massage (Tr.
588). She testified that Dr. Ibsen weaned her from all pain medications by the time that
she last saw him in March 2013 (Tr. 590). There were 7 urinalysis ordered and one drug
screen ordered as shown in her records.
Patients 6, 7, 8 and 9 all received care from Dr. Ibsen but had received care from
others earlier and for the most part were on prescription drugs from other providers
before and after they were patients of Dr. Ibsen. The Hearing Examiner discussed

pertinent aspects of their care from Dr. Ibsen in Finding of Fact 110 through 120, all of
which was tossed by the Board (pp. 16-34).
The Board did another wholesale rejection of Hearing Officer’s Finding of Fact
28 for no legitimate reason. Again, the Board says that it rejected the finding as not
supported by competent substantial evidence because the Hearing Officer did not provide
a citation to the record evidence. That doesn’t mean it didn’t exist and certainly there’s
2700 pages of patient records here and while the Board members all took an oath and said
that they read all the records in this case, we have serious doubt that some of them read
any of them. Because if they had read the records they would have seen that Dr. Ibsen
did conduct a full physical examination paired with a history. (Dr. Ibsen used a
streamlined record format developed by his billing company, Practice Velocity. One
needs to look at it closely to determine how to properly read it, but in this format there is
an immense amount of medical information.) They would have seen that this Finding of
Fact was well supported by the record evidence. They would have seen that Dr. Ibsen
spent a significant time listening to them and doing a physical examination to get to the
source of the patient’s complaints. He did diagnostic studies and lab tests and would
refer the patients for MRIs, CT scans, psychiatric issues and physical therapy. The
records and, to a greater degree, the patient’s testimony indicated that the time he spent
with them frequently included counseling that other doctors might refer out. There is
absolutely nothing in this Finding of Fact which wasn’t also in the patients’ medical
records and testimony from those patients who did testify. The fact of the matter is, it is
wrong for the Board to say something doesn’t exist because there isn’t a specific citation

in the Finding of Fact of the Hearing Officer. The Board certainly doesn’t say the matter
doesn’t exist, it just says that there isn’t a citation to it, therefore it doesn’t exist. That’s
wrong. That is clearly erroneous and arbitrary and capricious.
The Board did the precise same thing by rejecting Finding of Fact 29.
The Board’s modification of Finding of Fact 30 is a bit peculiar. First of all, it
said what it was going to do in the deliberation it had on January 14, 2016, and then
somehow miraculously changed its mind and decided to modify the finding instead. It is
not too big a deal but in the scheme of things it’s really another ridiculous change made
by the Board without any discussion during its two deliberation processes. It was simply
done. Whether it was done in a backroom or by whom on the Board it was done, we
don’t know. We’re only left to guess.
The Board did the same thing relative to Finding of Fact 35 as it did in Finding of
Fact 30. That is, it decided to change what it said it was going to do at its January 14,
2016 deliberation by giving an explanation of statutory requirements applicable to
physicians authorizing a patient’s use of medical marijuana to treat severe chronic pain,
even though that wasn’t an issue in this case. It appears that it did accept Finding of Fact
35 but couldn’t resist the temptation of saying something about it. It continues to
demonstrate the ill will of the Board for Dr. Ibsen for his challenges to the Board.
The Board rejected Finding of Fact 36 based upon its belief that the finding was
not supported by the “competent substantial evidence because Dr. Ibsen’s records lack
adequate documentation of the reasons for the patient visits.” There are 2700 pages
which outline the reasons for the patients’ visits. There is no legitimate basis for tossing

out this Finding of Fact on basis that there is no record of the reason for patient visits
when every patient visit has a reason set forth for it. If the Board would read the records,
it would realize its error.
Finding of Fact 37 is largely based upon the testimony of Dr. Ibsen. Also, patient
number 3, as discussed in Finding of Fact number 60, testified that Dr. Ibsen
recommended swimming and massage but patient 3 indicated that her insurance would
not cover those modalities. Her insurance did cover modalities such as chiropractic care,
physical therapy and naturopathic medicine which Dr. Ibsen recommended for the
patient. Indeed, there was treatment for pain which was an alternative therapy which
insurance wouldn’t pay for. That is part and parcel of Hearing Examiner’s Finding of
Fact 37 that should not have been simply cast aside because there wasn’t a page reference
or an exhibit reference to the same. It actually was in the testimony as cited by the
Hearing Examiner. This patient number 3 also testified extensively (Tr. 545-568) and
corroborated her records in Exhibit L and Dr. Ibsen’s testimony.
Patient 3 testified that Dr. Ibsen “would start from the beginning again every time
I would go in to him.” Tr. 549, l. 8-10. He took more time than anyone she had
previously seen. Tr. 549, l. 18. He would take a “whole history” and go through her
medications every visit. Tr. 550, l. 18-24. He often referred her to Landmark Forum. Tr.
551, l. 9-12. He referred her to all kinds of other modalities and a pain doctor. T. 553, l.
10-23. He routinely talked with her about getting off of narcotics. Tr. 559, l. 8-12.
The next gross error begins at page 16 of the Board’s decision which rejected all
of Findings of Fact 40 through 120 of the Hearing Examiner’s decision. The basis for

this total rejection was that the Hearing Officer was a layman and that while he gave a
“detailed analysis of the medical records geared to facilitate a better understanding of the
complexity of the patient’s diagnoses and care,” he was not a doctor and therefore could
not enter such findings. See page 16 of the Board’s final order. This case was entrusted
to a Hearing Examiner. The Hearing Examiner is a quite experienced attorney. There
was no objection from the Board’s counsel at the time of the hearing or at any time until
the Board didn’t like what was given to it. Throwing out all of the Hearing Examiner’s
findings about the 9 patients and his “detailed analysis” of their medical records finds no
support in the law. It was his job to make those findings and he did it. The fact that he
was not a medical doctor has nothing to do with whether he could enter those findings or
not. We suppose that if the Board doesn’t like this Court’s decision it will simply argue
that they don’t have to follow this Court’s decision because, after all, you are an attorney
and not a medical doctor. No law has been cited by the Board giving the Board the right
to simply ignore and reject the Hearing Examiner’s findings of fact because he is an
attorney. The Hearing Examiner’s preface to his discussion and entering of his findings
40 through 120 is telling. The Hearing Examiner at page 11 of his decision starts by
indicating that it’s unclear how the 9 patients were selected by the Board of Medical
Examiners but that he was concerned that they appear to have been hand selected by the
former disgruntled employee of Dr. Ibsen’s. Further, if indeed it was that employee’s
charge that patients were receiving poor care or were receiving too many narcotics, why
did she wait three years before filing her complaint.

On page 12 the Hearing Examiner found that the patients’ accounts of their
medical care was “more reliable about what happened during their visits with Dr. Ibsen
and with any other providers they may have seen.” There is no basis to challenge this in
the record or otherwise. Instead, though, the Board simply strikes it from any and all
consideration.
The fact that in Finding of Fact 41 the Hearing Examiner found that the Board’s
only doctor expert witness “did not specifically criticize the care of any of these nine
patients” is significant and doesn’t really have anything to do with a medical issue. And
yet, the Board has tossed that finding to the wind. Importantly, if the Board’s expert
found nothing to criticize as far as patient care goes, this entire proceeding should be
dismissed.
At Finding of Fact 49, the Hearing Examiner pointed out that Dr. Kneeland was
critical of Dr. Ibsen because patient number 1’s pain medications increased 50%.
Interestingly and as the Hearing Examiner pointed out, Dr. Kneeland failed to mention
that the 50% increase in the amount of opioids occurred while the patient was “not Dr.
Ibsen’s patient.” Again, this has a lot to do with the credibility of the Board’s expert
witness. It has a lot to do with how closely the Board’s expert looked at the medical
records and how closely the Board scrutinized its own expert. It’s a finding that certainly
can be entered by an attorney versus a doctor.
Earlier discussion herein focused on the number of times that the Board rejected
any consideration of the medical records because the MPDR record itself was not
attached to or included amongst the pages of the various patient’s records. However, if

we take a look at Finding of Fact 54, which was not contested and which was entered by
the Hearing Examiner, as an attorney and not as a medical doctor which he need not be,
we see that the Hearing Officer notes the following:
Each prescription that Dr. Ibsen writes is photocopied and faxed, so there
is a copy in the chart. Dr. Ibsen does not write down all prescription
information in his notes because he keeps a copy of every prescription
written as a part of the patient’s records. (Tr. 55)
We are not certain why it is that the Board feels that this Finding of Fact could not
be entered by anyone other than a medical doctor. What the Hearing Examiner did was
he went through all of the medical records and entered relevant findings of fact. There is
no basis for tossing those out the window by the Board. Further, this finding shows how
meticulous, diligent and careful Dr. Ibsen was with his prescriptions.
As far as records were concerned, the Hearing Officer indicated in Finding of Fact
59 as concerns patient number 3, that Dr. Ibsen conducted a complete physical
examination and took a complete history at every visit according to patient number 3. Dr.
Ibsen took a more thorough history than any other physician, according to patient number
3. Patient number 3 testified that Dr. Ibsen “wrote down pretty much everything”, that
often he made notes about his discussions with the patients and would give them those
notes to take home with them. Again, the Hearing Examiner, as an attorney, could make
that Finding of Fact and didn’t need to be a doctor in order to do so. That Finding of Fact
is not otherwise contested by the Board and thus should stand. It also shows that Dr.
Ibsen was conscientious about his record keeping and his use of physical examinations.

As you go through these findings of fact, each and every one of them has nothing
to do with a medical determination. These are findings about what the records indicate
and what the witnesses testified about which can certainly be made by an attorney. There
isn’t a single solitary one of these findings of fact which require a medical background or
which constitute a medical interpretation. Interesting also, the Hearing Officer’s Finding
of Fact number 97 specifically references one of the exhibits, i.e., Exhibit L-1, page 676
and 681 and 680, which shows that Dr. Ibsen tried to refer patient number 5 to Al
Anon/Narc-Anon on a couple occasions. Remember that in rejecting Finding of Fact 37,
the Board stated that such testimony was not substantiated by the documentation. Once
again, the Board didn’t look closely at the evidence in this case, if at all.
This case arose from the allegation by the terminated employee that Dr. Ibsen was
providing too much narcotics to patients and 9 patients were singled out. In Finding of
Fact 108, the Hearing Examiner criticized Dr. Kneeland’s testimony about the dosage of
opioids that patient number 5 had received and pointed out that Dr. Kneeland neglected to
acknowledge that patient number 5 was receiving about one-half of what had been
prescribed over the course of the previous year and that other physicians were prescribing
more hydrocodone for patient number 5 than Dr. Ibsen had. Again, that’s a Finding of
Fact that can be entered by an attorney. One doesn’t need to be a medical doctor to enter
that Finding of Fact.
The same is true with regard to patient number 6. As noted in Finding of Fact
111, patient number 6 had been receiving much and more pain medication from another
physician than he had from Dr. Ibsen. That patient had also received pain medication

because he had low back pain, shoulder pain, neuropathy, anxiety, five previous knee
surgeries on the right side, two previous knee surgeries on the left side and two previous
shoulder surgeries, as well as hernia and sinus surgery. One doesn’t need to be a medical
doctor in order to recite the fact that this patient had this medical history and had pain
therefrom.
The records relative to patient number 7 showed that he was receiving nearly half
of what he had been receiving when he began his treatment with Dr. Ibsen. Again, such a
finding is appropriately entered in this case. By rejecting everything the Board rejects the
fact that most of these patients were successfully weaned from their pain medications and
in the case of five or six of the nine, were totally weaned from their pain medications
while under Dr. Ibsen’s care. This rate of success was far greater than Dr. Kneeland’s rate
of success which he indicated was about 10%. And further, in considering Finding of
Fact 116, patient number 8 was a patient who had been receiving the same or higher
levels of hydrocodone than had been prescribed by Dr. Ibsen. Thus, this patient was not
able to get off of her opioids but the amount she received from Dr. Ibsen was less than
what she had received from other doctors. One doesn’t need to be a medical expert in
order to make that Finding of Fact either.
The Board modified Finding of Fact 121 to preclude the Hearing Officer from
finding that there was “no substantial evidence or expert testimony upon which to find
that Dr. Ibsen is suffering from a mental illness.” The Board once again made the
determination that whether Dr. Ibsen was stable or unstable required a medical
determination by a doctor, not an attorney. That’s not what the Hearing Examiner said,

however. What the Hearing Examiner said was that there was no substantial evidence or
expert testimony upon which such a finding could be made. Therefore it was irrelevant
to his decision. The Board offers nothing to contradict the fact that there was no evidence
presented by the Board’s attorney or his witnesses that Dr. Ibsen was suffering from any
mental illness. Therefore, it was evidence that never should have been presented at the
underlying hearing in any event, but it was. Thus it had to be addressed by the Hearing
Examiner. He did address the evidence and determined that there was nothing presented
to show that Dr. Ibsen was suffering from a mental illness or was mentally unstable.
At the hearing the Board’s attorney presented testimony about the interactions that
Dr. Ibsen had with two pharmacists. There must have been a point to that, we assume.
The fact of the matter was that the Hearing Examiner in Finding of Fact number 122
determined that nothing in those interactions rose to any significance in the opinion of the
Hearing Examiner. The Board didn’t like that and tried to cut that portion out of the
Finding of Fact. There’s no basis for doing that. The Board simply says that its decision
wasn’t based upon that but there’s no basis for striking it. That is error on the part of the
Board and tips its hand as to the bias and prejudice that the Board has for Dr. Ibsen. The
Board wanted the proposed order to read as it envisioned it, not as the evidence unfolded.
Finding of Fact number 123 was tossed without explanation. This finding and a
couple additional ones which followed involved a number of patients that had driven over
from the Hamilton area where they had been patients of a Dr. Christensen. Dr.
Christensen had trouble with the Board and had his license suspended or revoked. He
had a lot of problems noted in the press. In any event, he had some 3000 patients and 21

of them made their way to Dr. Ibsen’s office and he took care of them for a time and later
on most of those patients went somewhere else. The Hearing Officer determined that
those patients presented unique circumstances and were somewhat unrelated to Dr.
Ibsen’s normal practice. There is no basis for the Board to indicate that the Hearing
Examiner could not make that Finding of Fact. And thus again the Board tips its hand as
to the bias it has for Dr. Ibsen. And, the Board’s attorney put those 21 patients at issue
and the Hearing Examiner found no issue with Dr. Ibsen’s care, which the Board simply
wants to ignore.
In rejecting Finding of Fact 124, the Board states that the finding is not supported
by the “competent substantial evidence” because the finding contradicts testimony cited
by the Department regarding professional relationships between pharmacists and
physicians in Montana. We have no idea what that relates to but the fact of the matter
was that the finding was referenced to the transcript and that is not contradicted by the
Board, and thus it should stand.
The Board strikes a sentence from Finding of Fact 126 because there is not a
specific citation to the record. Again, the Board indicated that it went through the entire
record and yet is critical that there isn’t a citation presented to it concerning what they
have now stricken. It was in the record but the Board once again missed it. Indeed if the
Board would have taken the time to really review the record they would have seen that
DEA Agent Alisha Tuss specifically testified that she had received complaints from these
two pharmacists about Dr. Ibsen’s prescribing practices and that “we also had some
information from the Medical Board that there could possibly be something going on.”

Tr. 226, l. 2-6. Interesting that the Board would have reported “something going on” to
the DEA when the matter was yet in litigation. In any event, this confirms that the Board
of Medical Examiners might be investigating Dr. Ibsen as well. It certainly doesn’t take
rocket science to determine that this Finding of Fact should stand. The Board simply
doesn’t like the fact that it or its staff was caught evidently talking to the DEA about this
case when this case hadn’t been decided.
The Board purports to change Finding of Fact 134 to simply reflect what they
want the evidence to show rather than what the evidence did show. They have stricken
the sentence that “Dr. Kneeland testified that all of Dr. Ibsen’s prescribed pain
medications were for legitimate medical reasons (Tr. 477)”. The fact of the matter was
that that was what he said. He was specifically asked, “you’re not here testifying that any
prescribed pain medication was for anything other than a legitimate reason or purpose?”
Answer: “No.” (Tr. 476) As much as the Board would like it to be otherwise, that was his
testimony pure and simple. There wasn’t one single solitary patient pain medication
prescription that Dr. Kneeland was critical of. At least, when he realized that there was a
difference between some pain medications prescribed by some other doctors and not Dr.
Ibsen, then it was indeed his testimony that all prescribed pain medications were for
legitimate medical reasons or purposes as it related to Dr. Ibsen. In modifying Finding of
Fact 134, the Board is simply rewriting the case to justify the end result here, not to
accurately reflect the administrative trial which occurred here. Such is arbitrary and
capricious.

The Board modified Finding of Fact 136 to disregard that portion of the finding
that one of the pharmacists did things to demonstrate that he was on a mission to wean
Dr. Ibsen’s patients from their medication despite the fact that he was not a doctor and did
not understand their needs. The Board indicates that there is no citation to the record for
this aspect of the finding and thus reject it. The fact is, Mr. Gardipee testified that he was
a pharmacist and not a doctor. This Finding of Fact was really made based upon the
totality of the testimony given by the pharmacist, Mr. Gardipee. Indeed, he admitted
telling patients to go to a pain specialist, which certainly wasn’t his place as a pharmacist.
See, Tr. 313, line 18-24. At Tr. 318, line 23 through Tr. 319, line 4, Mr. Gardipee testified
that he didn’t think that chronic pain management was typically within the scope of the
practice of Dr. Ibsen or his Urgent Care Plus facility. That, of course, is not his place to
make that determination. Thus it became clear that this witness was making it his
practice to see that Dr. Ibsen’s patients were weaned off their medications despite the fact
he wasn’t a doctor and didn’t understand their needs.
The Board rewrote Finding of Fact 138 to make it look as though Dr. Ibsen
prescribed large doses of oxycodone for certain select patients, not mentioning those
patients or the reason why he so prescribed those medications. The Board also struck
because they couldn’t find it in the records that Dr. Ibsen prescribed these doses of
oxycodone to patients of Dr. Christensen for legitimate medical reasons. There wasn’t
one single solitary patient of Dr. Christensen’s who matriculated to the care of Dr. Ibsen
who was specifically criticized by any witness in this proceeding. Dr. Kneeland never
said that Dr. Ibsen prescribed medications for an illicit or illegitimate medical reason.

The pharmacist paid by the Board (Ms. Blank) to testify didn’t testify in that vein either.
No one testified that Dr. Ibsen prescribed pain medications to former patients of Dr.
Christensen for illegitimate medical reasons. And, as was pointed out, at Tr. 476 Dr.
Kneeland testified that all pain medication prescriptions were prescribed by Dr. Ibsen for
legitimate medical reasons and purposes. Thus, that modification of Finding of Fact 138
is erroneous.
The Board slightly adjusted Finding of Fact 139 because it stated that there was
no evidence to support Dr. Ibsen’s testimony connecting the actions of the DEA to the
Board. However, as we pointed out previously, DEA Agent Tuss indicated that she had
understood that there was concern by the Board about Dr. Ibsen’s prescribing practices.
Thus, though the Board wants to purge itself of any connection to this issue, Dr. Ibsen
believed it and the DEA believed it. Tr. 226, l. 2-6.
The Board again, in an effort to make the pharmacist look good and Dr. Ibsen
look bad, proposed to delete the first sentence of Finding of Fact 144 without any
legitimate basis for doing do. The fact of the matter was, Dr. Kneeland did not issue
complaints about Dr. Ibsen taking care of a handful of Dr. Christensen’s patients and thus
it was wrong for Mr. Gardipee to be complaining about Dr. Ibsen’s care for those patients.
The fact of the matter also remains that the Board approved Finding of Fact 145 which
states that “Gardipee is not credible in this area of his testimony and it undermines his
other testimony.”
The Board erroneously adjusted Finding of Fact 149. This change to Finding of
Fact 149 was simply designed to make its witness, Dr. Kneeland, look good and Dr. Ibsen

look bad. It threw out the Hearing Examiner’s finding as concerns Dr. Kneeland’s
opinions and position without acknowledging why it is that such should have been done.
The Hearing Examiner, in footnote number 7 to Finding of Fact 149, gave a very detailed
description of the fact that the MPDR records showed that Dr. Ibsen had great success in
reducing patients’ narcotic dosages. He noted that Dr. Kneeland’s calculations were in
error. That’s certainly something an attorney can do. One doesn’t need to be a medical
doctor in order to make that kind of a determination. The Board didn’t like the fact that
the evidence showed that Dr. Ibsen’s patients were largely successfully weaned from
opioids. The Board didn’t like the fact that Dr. Kneeland didn’t give Dr. Ibsen credit for
successfully weaning and reducing patients’ chronic opioid therapy. The Board didn’t
like the fact that Dr. Kneeland didn’t recognize that there were other doctors who
increased patients’ narcotics not Dr. Ibsen. There is simply no basis for throwing out the
important footnote number 7 to Finding of Fact 149.
The Board deleted an important aspect of the Hearing Examiner’s Finding of Fact
151, that is, that “Dr. Kneeland did not offer any specific criticism regarding the
treatment of patients 1 to 9 or the Christensen patients. On cross-examination, he did
offer opinions on whether patients 1 to 9 had weaned their opioids usage. As described
above, his calculations were so significantly opaque as to give them no weight.” The
only explanation for why the Board wanted that deleted is to make Dr. Kneeland look
better, to make his testimony look better than it was and to recognize the fact that indeed
their own expert did not offer any specific criticism regarding patients 1 through 9 or the
Christensen patients. That modification of Finding of Fact 151 is flatly wrong. And

again, the Board indicates that the Hearing Examiner cannot make such a judgment
because it involves a medical judgment. We’re not talking about medical judgments here.
We’re talking about whether Dr. Kneeland did or did not offer any specific criticism
regarding the treatment of patients 1 through 9 or the Christensen patients and the fact of
the matter is and the evidentiary record shows that he did not. Thus, the modification by
the Board is flatly false once again.
The Board did the same thing with regard to changing Finding of Fact 152. The
Hearing Officer found that Ms. Blank was not capable of giving opinions about the
quality of record keeping or Dr. Ibsen’s interactions with other medical professionals and
disqualified her testimony in that regard. And further, in Finding of Fact 152, the
Hearing Officer noted that “Ms. Blank was not qualified to render opinions on the
standard of care for a medical practice so no weight was given to her testimony about Dr.
Ibsen’s charting.” The Board stated that in this regard, “the Hearing Officer
misapprehended the purpose for which the Department’s expert pharmacist witness was
called to testify.” How in the world could the Board make a determination about what
the Hearing Officer appreciated or did not appreciate? There’s no way in the world that
the Board could make a determination as to the “purposes for which the Department’s
expert pharmacist witness was called to testify” than to look at the record. And in this
regard, Ms. Blank, the pharmacist admitted (Tr. 654, line 23 through 655 line 1) that she
was not qualified to discuss standard of care for a medical practice. Ms. Blank admitted
that the standard for prescribing narcotics and the management of that differed from
facility to facility (Tr. 709, lines 10 through 23). Certainly if Ms. Blank was not in a

position to testify regarding the standard of care for a medical practice, she certainly
couldn’t give testimony about charting of a medical doctor.
By modifying Finding of Fact 153, the Board disqualified Dr. Charles Anderson,
M.D., a now retired neurologist, from testifying in this case. The Hearing Examiner
determined that based upon his 30 years of practice and his experience in managing
patients with chronic pain, he was found competent to render an opinion as to whether the
standard of care was or was not met by Dr. Ibsen in caring for patients who were
receiving pain medications for their acute or chronic pain. The Board noted that Dr.
Anderson had stopped dealing with chronic pain patients for some 20 years prior to the
time that he testified. However, what Dr. Anderson testified to and which was important
to the Hearing Examiner, was that he would still act in a consultative role doing pain
management. In other words, he would help other doctors with the pain difficulties that
they were having with their patients. He would see patients and their records, take a
history, conduct a physical examination and then provide or recommend care (Tr. 737).
He testified that from 2000 to 2002 he was Chairman of the Credentialing Committee at
St. Peter’s Hospital and was Chief of Staff from 2002 to 2004. As such, he testified that
he was very familiar with doctors’ charting (Tr. 742). He felt that in reviewing Dr.
Ibsen’s records he could tell that the care rendered was appropriate in all respects. He
testified that he continued to prescribe pain medications and manage chronic pain
medications until his retirement in 2012 (Tr. 749-750). He treated patients concurrently
with other doctors. He was asked about his involvement in the management of care for
patients with chronic pain and gave a very detailed response at Tr. 758-759. He also

testified that Dr. Ibsen routinely offered alternatives to pain medications to his patients
(Tr. 768). He also testified that written pain contracts can be problematic (Tr. 770). He
testified at Tr. 771 that Dr. Ibsen’s care was appropriate and within all acceptable
standards of care based upon his years of experience.
What obviously crept into the Board’s determination concerning Finding of Fact
153 were the statements that Board member Dr. Guggenheim made at the deliberation
process on November 19, 2015 and again on January 14, 2016. She stated that she had
known Dr. Anderson for a number of years based upon her relationship and what she
thought he had done in his practice and didn’t feel that he dealt sufficiently enough with
the management of chronic pain and so she felt him disqualified. See pages 80 through
page 92, Transcript November 19, 2015. The determination whether Dr. Anderson
qualified as an expert has to be made based upon the transcript and the transcript supports
the finding by the Hearing Examiner that he was duly qualified to testify as an expert.
The fact that one of the Board Members had her own opinion outside of the evidentiary
record should not have been used at the deliberations. Interestingly, Dr. Guggenheim
again stepped out of the evidentiary record and seemed to rely upon a report dated
11/21/14 from Dr. Kneeland as constituting evidence upon which findings of fact could
be based. This is wrong. The letters that Dr. Guggenheim is referring to were pretrial
witness disclosures (see 11/19/15 transcript, page 96, line 12 through page 100, line 2).
Prefiled written disclosures do not constitute evidence, necessarily. These letters were
not offered into the evidentiary record as exhibits. They are simply pretrial disclosures.
As it turned out, Dr. Kneeland’s testimony was not the same as his disclosures. It’s the

testimony that has to be considered and utilized by the Hearing Examiner and that’s
precisely what he did. The fact that the pretrial disclosures differed from the actual
testimony of Dr. Kneeland sometimes happens but certainly the Board is wrong to set
aside the testimony in favor of the pretrial disclosure. That is simply error on the part of
the Board. In fact, Dr. Guggenheim specifically notes at page 98 (Tr. 11, 1915) that she
rejected Finding of Fact number 41 that Dr. Kneeland did not criticize the various cases
that were under concern because he did so in his prefiled disclosure. Again, it’s what Dr.
Kneeland testified to, not what he or an attorney wrote in a pretrial disclosure.
Dr. Guggenheim, who clearly monopolized the Board’s deliberation processes,
admitted at Tr. 96, l. 17-23 of the 11/19/15 Board proceeding that Dr. Kneeland did not
criticize the care of individual patients. She reiterated her reliance in the 1/14/16 Board
proceeding at Tr. 71-72 on the letter (pretrial disclosure) written by Dr. Kneeland, not his
testimony. She persisted at Tr. 80-84 (1/14/16 proceeding) in numerous places.
Further, what she said at Tr. 87-88 (1/14/16 proceeding) about standard of care is
quite analogous to what the Hearing Examiner found about standards of care changing
and evolving. For example, she stated:
It (standard of care) is the considered evolution and incorporation of

medical knowledge into the practice of medicine that is accepted by the
bulk of the profession . . . the aspects of care that constitute the standard in
this case for the treatment of chronic pain do evolve with time based on
certain facts and papers that were written . . ..
Tr. 87, l. 11-18.
The Board threw out findings of fact 154 and 155. First of all, with regard to
Finding of Fact 154, it is simply a citation from the Montana case of Chapel v. Allison,

241 Mont. 83, 92-93. The fact of the matter is, while Dr. Ibsen is board certified as an
emergency room physician and boarded as a family practice doctor, he is not certified as
a pain management physician and thus the statement should apply. The second facet
about findings 154 and 155 is that the standard of care concerning the treatment of pain
patients is changing and has changed over time. (Dr. Guggenheim confirmed it.) One
issue concerns the use of pain management contracts. For instance, pharmacist Ms.
Blank testified that St. Peter’s Hospital was only now going to the requirement of a
written pain management contract, that it had not been a requirement until quite recently.
Further, Ms. Blank testified and it is reflected in Finding of Fact 155 that the standard of
care regarding opioids prescription and pain management varies and that “different places
will adopt different parts of those recommendations” so that one facility might be
different than another facility but it doesn’t necessarily mean that either facility is
violating a standard of care.” (Tr. 709, lines 10-23) Further, Dr. Kneeland recognized that
some doctors use written pain contracts and some do not as was true in his locale. Even
in the literature there was debate over whether a written contract might adversely affect
the doctor-patient relationship of trust. In other words, there was not a standard of care
for using a written pain contract applicable to managing pain patients. What was
recognized by the Hearing Examiner in this case and what this Board fails to appreciate is
that there is no national standard of care which requires written pain contracts between
the patient and the doctor. This is why the Hearing Examiner noted in Finding of Fact
155, that there was confusion about what the affect of the standard of care is on an
individual standard practice or a statewide practice, etc. Certainly Dr. Ibsen should not

be sanctioned or reprimanded or disciplined for doing something that is different and not
contrary to any particular standard of care. Further, as we’ve pointed out previously, Dr.
Guggenheim may have relied upon what Dr. Kneeland said in a prefiled disclosure as
what constituted standard of care but we have to rely upon the testimony that he gave,
again, not on a prefiled disclosure statement. And in his testimony Dr. Kneeland
acknowledged that doctors conduct pain management differently location to location and
doctor to doctor.
With regard to Finding of Fact 156, the Board completely ignored the testimony
of the patients, all of whom testified that they were told by Dr. Ibsen that they could only
use one pharmacy for their pain prescriptions; that they could only see one doctor for the
pain treatment and might be subjected to urine drug screening. See for example, Tr. 554,
lines 18-21; Tr. 586, Exhibit 28-5; and Tr. 586: 16-21. They all had oral pain contracts.
The Board next modified Finding of Fact 157. The Board expressed some
concern that there was not documentation of the results of ongoing alternative modalities
or interventions attempted in the chart. However, Dr. Kneeland did testify (Tr. 442, lines
17-23) that “occasionally you would see something like headache better with this and
that’s kind of all.” In other words, Dr. Kneeland didn’t see or pay attention to the results
of the collaboration noted. However, the Hearing Examiner pointed out that Dr. Ibsen
often had discussions with the patients about previous treatment that wasn’t always
recorded in the patient records. There was no indication that such was part and parcel of
standard of care. All of the patients who testified talked about their extensive discussions
with Dr. Ibsen about what he had recommended, what they had done, etc. But here again

the Board simply discarded that evidence as though the Board didn’t want to hear that
evidence. Further, Dr. Kneeland did acknowledge that there were occasional references
to the results of the alternative modalities and thus it’s error for the Board to conclude
that there were no such discussions and an absolute failure to make note of such.
The Board discarded that portion of Finding of Fact 158 that states that Dr. Ibsen
adhered to standard of care by utilizing alternative modalities to narcotics. There is no
basis for that. The medical records of the patients show that Dr. Ibsen would wean most
of the patients off of narcotics and used other therapies and prescriptions to resolve their
issues. Why that was stricken makes absolutely no sense. As we go through the records
which are referenced in detail in proposed findings 40 through 120, we see that Dr. Ibsen
oftentimes prescribed prolotherapy, chiropractic, diagnostic imaging, physical therapy,
Landmark Forum, psychiatry, psychology, counseling, etc. for a lot of these patients and
that he uses alternative modalities quite often in his practice and in his treatment of
patients who have pain. The Board simply states that there is no competent substantial
evidence in the record of those other therapies or prescriptions to resolve pain issues, but
that statement is blatantly false. The testimony of the patients and their records
demonstrate how utterly erroneous, arbitrary and capricious this finding is.
The Board made slight adjustments to Finding of Fact 159, again in an effort to
disparage Dr. Ibsen’s testimony. Plainly Dr. Ibsen’s testimony was given no credibility
by the Board. If there was not something else by way of a medical record to substantiate
his testimony it was totally and always disregarded. This changes the burden of proof
and is unconstitutional. Dr. Kneeland admitted at Tr. 461, lines 20-22 that he did find

instances in the records of referrals to other specialists and communication from that
specialist about their findings to Dr. Ibsen. He also admitted that with regard to the issue
of early refills that there could be legitimate reasons for the same. Tr. 465, line 20. It
could be, for instance, that the pain was initially undertreated. Tr. 465, line 23. He
indicated that many times he would have to increase a patient’s pain medications for a
number of reasons. Tr. 466, line 1. He testified that the amount of opioids prescribed by
Dr. Ibsen were “relatively safe on a person’s organs.” Tr. 467, line 10-17. Further, in
Finding of Fact 159, the Hearing Examiner noted that “there was no expert testimony that
Dr. Ibsen’s prescribing practices led to any harm to his patients.” Further, at Tr. 475, Dr.
Kneeland testified that there was no patient who had any long term, bad outcome because
of any of the pain medications that had been prescribed for them. Thus, this statement is
true and should not have been stricken by the Board. The testimony was substantiated by
the testimony of the Board’s witness Dr. Kneeland in this respect.
Finding of Fact 160 was the only Finding of Fact to which Dr. Ibsen filed an
exception. The attorney for the Board likewise had difficulties with that finding but the
Board went ahead and accepted it as reflected by the Hearing Officer. The gravamen of
Finding of Fact 160 as it related to Dr. Ibsen was that he did not regular identify his
reasons for prescribing early refills in the patients’ records and should have better
documented that. Dr. Kneeland was asked whether it was a breach of the standard of care
to offer refills habitually and the Doctor indicated that without documentation it is a
breach of the standard of care to offer them habitually. Tr. 428, lines 6-8. He also stated
that it could be a breach of the standard of care to offer them with any regularity without

documentation of that rationale but that it could be accepted. Tr. 426, lines 8-12. Thus,
the only expert testimony from Dr. Kneeland was that there should be documentation of
the rationale for early refills if they were habitually or regularly given. There is no
evidence in this case that they were habitually or regularly given. There is no testimony
that if there was an occasional refill that there had to be an additional documentation.
The testimony does not provide that. Moreover, no one testified or criticized the amount
or kind of pain meds prescribed by Dr. Ibsen. No one testified that Dr. Ibsen did not
counsel with the patient about their use of medications and have an agreement with them
about getting the medications at one place using only Dr. Ibsen as their prescriber. All
patients trusted Dr. Ibsen implicitly and none of his patients were ever abandoned by him.
Further, Starla Blank, the pharmacist called by the Board’s attorney, testified that there
were a number of legitimate reasons for early refills (Tr. 708). She testified that pill
counts are not required or considered standard of care (Tr. 709). Dr. Kneeland confirmed
that in his testimony (Tr. 426, lines 1-3). Ms. Blank testified that she was unaware of any
evidence that any of the 9 patients diverted any medications (Tr. 712). She admitted that
all 9 patients had a good relationship with Dr. Ibsen (Tr. 715-716). She testified that she
was not aware of any case where Dr. Ibsen’s prescriptions exceeded manufacturer’s stated
limits (Tr. 717-718). Furthermore, in Finding of Fact 161, the Hearing Examiner found
that Dr. Kneeland was not qualified to render an opinion whether Dr. Ibsen’s
documentation met standard of care and thus, there was no contrary evidence that Dr.
Ibsen breached standard of care by failing to document his reasons for allowing early
refills. There is simply no testimony in the record to support that aspect of the Hearing

Examiner’s findings of fact. There is reference at the end of Finding of Fact 160 to a
transcript citation 437: 1-6, but the language that appears there doesn’t have anything to
do with any early refills. It states there as follows:
… original 9, did you find evidence that he had conducted

interviews with patients to determine if they were at risk?
A. I recall seeing once case of a mental health evaluation for a patient,

but other than that, no.
There is, thus, no basis for the assertion that the record keeping was inadequate or
insufficient from the point of standard of care. No one testified that Dr. Ibsen’s record
keeping was inadequate as a matter of standard of care. Therefore, that aspect of the
Finding of Fact 160 should be set aside.
The Board made changes to Finding of Fact 161 to cast Dr. Ibsen in a poor light
and ignored the fact that the evidence presented concerning standard of care and its
various iterations and as it pertained to this case was not black and white. Standard of
care was changing. Dr. Kneeland acknowledged that one doctor that dealt with pain
management in the Kalispell area dealt with it differently than another doctor. He wasn’t
sure how the hospital dealt with aspects of pain management. He simply knew what he
did in his own clinic. Thus, for Dr. Kneeland to testify about what the standard of care
was as it affected Dr. Ibsen was anything but black and white. It is certainly within the
province of the Hearing Examiner to make the determination whether expert medical
opinion has proved a particular point or not proved a particular point.
The Board struck from Finding of Fact 163 the last two sentences which stated
that, “the Hearing Officer’s review of all the patients’ records found a considerable

number of reports from specialists and notations that the results were communicated to
the patient. Dr. Ibsen met this standard of care.” The Board simply strikes this and says
that his decision is not based upon the competent substantial evidence. The Hearing
Officer said that he reviewed the patients’ records and found considerable numbers of
those reports. The Board simply took it upon themselves to ignore that. The Board
doesn’t indicate that it actually went and looked and couldn’t find what the Hearing
Officer was referring to. It simply ignored, wrongfully, the Hearing Officer’s finding.
The Board also indicates that Dr. Kneeland gave undisputed expert testimony regarding
follow-up documented in the records. Dr. Kneeland indicated that he found
documentation but he wasn’t asked how much, whether it was enough, whether it was too
little, whether it was inadequate or what. It was thus error for the Board to make this part
of its finding and reject that part of Finding of Fact 163.
Once again, the Board in rejecting a portion of Finding of Fact 164 simply ignores
that the Hearing Officer who is the Trier of Fact in the underlying trial found that Dr.
Ibsen did not violate any standard of care which requires regular assessment of a patient.
He saw these patients often. There are some 2700 pages of medical records concerning
only 9 patients for a limited period of time. How the Board can simply say this finding is
not supported by the evidence is an absurdity.
The Board deleted the significant portion of Finding of Fact 165. The fact is, Dr.
Kneeland testified that some doctors use written pain contracts and some doctors do not
use written pain contracts. He went on to testify, although this portion is ignored by the
Board (Tr. 470), that there are doctors in his area that don’t employ written pain contracts.

At Tr. 470 he testified that he wasn’t sure if his own hospital mandated the use of written
pain contracts. He simply acknowledged that his own clinic does. At Tr. 740, Dr.
Charles Anderson felt that in reviewing Dr. Ibsen’s records he could tell that the care
rendered was appropriate in all respects. He also testified that written pain contracts can
be problematic (Tr. 770). At Tr. 878, Dr. Ibsen testified that a written pain contract could
negatively affect his doctor-patient relationship and that his goal was to never carry on a
patient long term (Tr. 878). In summary, with respect to the use of a written controlled
substance agreement or pain contract, there simply was no evidence that established that
it was standard of care. It may be in the process of becoming standard of care but was
not at the time of this hearing the standard of care. Indeed, Ms. Blank testified that her
hospital, St. Peter’s Hospital, did not mandate the use of written pain contracts up until
the time of the hearing at least. For that reason, the Hearing Officer determined that the
use of pain contracts are not standard of care and that Dr. Ibsen did not violate such
standard of care if it did exist. It is further interesting that Dr. Kneeland was asked about
a recent article in the New England Journal which posited that the generally accepted
practice is to rely upon the patient’s history in treating the patient and that pain contracts
were not mandatory though they might be suggested. See, Tr. 469, line 1-22. With
regard to Finding of Fact 166, the Board simply rejected it. The Hearing Examiner
simply noted that there was no evidence presented at the hearing that pain contracts
achieve a better result for the patient. And, the Hearing Examiner cited at Tr. 469 that Dr.
Kneeland agreed that the generally accepted practice is to rely upon the patient’s history

in treating the patient’s pain. That is a matter of fact and it should not be simply
discarded by the Board.
The Board also rejected Finding of Fact 167 which was simply a recitation of a
colloquy between Dr. Ibsen’s counsel and Dr. Kneeland. The Hearing Examiner
supported his belief and his finding that the use of pain contracts to be standard of care
should not be relied upon. The fact is that Dr. Kneeland said pain contracts were not
mandatory but might be considered in the treatment of chronic pain. He acknowledged
that a fair number of physicians even in Kalispell don’t use pain contracts and he wasn’t
sure if his own hospital did so. The fact that here is a citation of testimony in this Finding
of Fact is certainly no reason to avoid it, disregard it, not consider it and thus this
rejection of Finding of Fact 167 is flatly wrong.
Regarding Finding of Fact 168, again, the Board simply discarded and thereby
struck the Hearing Examiner’s consideration of Dr. Ibsen’s testimony and changed what it
was that the Hearing Examiner was looking at. The Hearing Examiner made reference to
Exhibits L-1, L-2 and L-3 to arrive at the finding that key elements of a pain contract
were indeed part and parcel of what Dr. Ibsen included in his treatment of patients
without a written pain contract.
The Board simply rejected Finding of Fact 169 in its entirely. There is no single
one of the facts set forth in Finding of Fact 169 that is not well contained and reflected in
the evidentiary record. As the Hearing Officer said, “Dr. Ibsen’s decision not to employ
written pain contracts cannot be a basis for a finding of misconduct when Helena’s largest
medical facility did not adopt them until well after the time period when all of the

conduct at issue in this matter occurred.” For the Board to blithely state that, “hospitals
do not prescribe medications” ignores the fact that it was not required of the doctors at
the hospital to use written pain contracts begs the issue. It is flatly erroneous for the
Board to strike Finding of Fact 169.
The Board once again in disregarding a portion of Finding of Fact 170 does so
without any legitimate justification. The fact of the matter was, Dr. Ibsen did testify that
he had one patient who he felt was doctor shopping and he quit prescribing pain
medication for that patient as soon as he learned of that. It is just fallacious reasoning as
to why it would be that the Board would strike that portion of Finding of Fact 170.
The Board rejected Finding of Fact 171 and put in place its own position and
feeling about what is part of standard of care when a patient is treated for chronic pain
using narcotics. The Hearing Examiner determined, however, that pain contracts are not
yet the standard of care for all physicians treating chronic pain and thus he cannot
conclude that a pain contract is the standard of care. Furthermore, he noted that Dr. Ibsen
did use urinalysis when he had concerns about prescribing opioids to a particular patient.
The Board acknowledged that Dr. Ibsen employed urinalysis occasionally.
The Board added a sentence to this Finding of Fact which is incorrect. It stated
that the record submitted into evidence contain absolutely no records of Dr. Ibsen’s
search of the MPDR. That is not true. Dr. Ibsen testified that he relied upon the MPDR
beginning in February of 2013. He produced records relative to the 9 patients of their
MPD records and said that he relied upon them when he and his office got on line and

began to use them. Thus, there are records admitted into evidence that show his
utilization of the MPDR. This statement/addition to Finding of Fact 173 is flatly false.
Finding of Fact 174 basically shows that Dr. Ibsen’s ability to wean his patients
from narcotics either entirely or to a lesser level was affirmed by the patient’s records.
The Board didn’t like that and thus struck in its entirety Finding of Fact 174 and entered
their own opinion, their own finding about that issue. Thus, the Board is not so
concerned about what the findings said or whether they are justified and supported by the
record evidence. But instead the Board is more concerned about how the order should
look in its own view, not based upon the record evidence. This additional language
proffered by the Board is not a part of the record evidence and should be rejected.
The Board strikes a portion of Finding of Fact 175 and makes reference to Dr.
Anderson’s testimony in this finding. The finding, though, doesn’t specifically refer to
Dr. Anderson although what Dr. Anderson testified to was that during the slice of time
that he looked at, Dr. Ibsen was batting better than Dr. Kneeland’s 10% weaning rate.
That, of course, is clearly true. The Board is simply offering various passages from Dr.
Kneeland’s testimony in an effort to bolster his position in this case but it has no affect on
the outcome of this Finding of Fact which was that Dr. Ibsen’s rate of successful weaning
was better than Dr. Kneeland. That is a fact borne out from a review of the patient
records of the 9 patients involved here.
The Board changed Finding of Fact 177 to take out the words that Dr. Ibsen was
relatively successful in his weaning results with his patients. Again, taking that passage
out of Finding of Fact 177 is designed to make Dr. Ibsen look bad and unfairly reflect the

evidence which was indeed that Dr. Ibsen was more successful in weaning his patients
than was Dr. Kneeland.
The Board for whatever reason struck Finding of Fact 179 and we’ve made
reference to this on numerous occasions heretofore. Dr. Kneeland testified that he was
unaware of any patient who received medication for any purpose other than a legitimate
medical purpose. Reference to Tr. 470 may be a ministerial mistake but indeed Dr.
Kneeland did testify at Tr. 476 that he was not aware of any prescribed pain medication
being prescribed for anything other than a legitimate medical reason or purpose.
Q. You are not here testifying that any prescribed pain medication was for
anything other than a legitimate medical reason or purpose?
A. No.
Tr. 476, line 19-22.
Finding of Fact 181 was changed as the Board continued its refusal to consider
any testimony by Dr. Ibsen or any testimony by his patients. The Hearing Examiner
found that some of the patient charts were illegible but that Dr. Ibsen was indeed able to
demonstrate that he was not over prescribing any pain medications or inadequately
monitoring his patients. That is certainly within the providence of the Hearing Examiner
and cannot be set aside without some finding that there was no basis for it or that it was
clearly erroneous. Indeed the Hearing Examiner pointed out that Dr. Ibsen does have a
new record keeping system which is better detailed and understandable. That portion is
evidently acknowledged by the Board because it wasn’t changed or addressed by the
Board.

The Board adds a sentence at the end of Finding of Fact 183 that there was
another local pain specialist in Helena in an effort to detract from the fact that there are
too few doctors willing to treat chronic pain patients and particularly in the Helena area.
For the benefit of the Board, Dr. McLaren is a pain specialist but he engages in
interventional pain therapy. He doesn’t see patients as Dr. Ibsen does on a routine basis.
Again, this provision is added to bolster the Board’s desire to punish Dr. Ibsen and make
it appear as though others can provide the services Dr. Ibsen has provided and therefore
there isn’t any need for him to be licensed and providing pain management to folks in the
Helena area. It is vindictive and it is punitive what the Board is trying to do with this
Finding of Fact.
The wholesale rejection of Finding of Fact 184 again without any specific
references as to why it is rejecting this finding makes no sense. The Finding of Fact is
addressing Dr. Ibsen’s care for a number of patients from a totality of circumstances point
of view and the Hearing Examiner concluded that there was no over prescribing, that
there was clear evidence of tapering of opioid prescriptions, that Dr. Ibsen placed his
patients’ needs first and that he was well aware of the possibility of a diversion and in fact
aided law enforcement in protecting the public from the dangers of diverted prescription
drugs. Again, the Board didn’t like to see that as it moved toward punishing Dr. Ibsen
and thus simply struck the Finding of Fact 184.
For the same reason the Board simply rejected out of hand Finding of Fact 185.
Certainly there was evidence that the Board’s counsel attempted to present to the Hearing
Officer matters concerning the Board lawyer’s view of things, but the Hearing Examiner

rejected any argument that Dr. Ibsen’s personal conduct or his mental and emotional
abilities prevented him from handling his practice and dealing with his patients. In the
view of the Hearing Examiner, the Department failed to prove that Dr. Ibsen suffered
from any malady that might affect his ability to safely practice medicine. That is
certainly a finding that can be made by the Hearing Examiner and was made by the
Hearing Examiner. And there is no basis for setting that aside.
The same reasoning applies to the Board’s total rejection of Finding of Fact 186.
The Hearing Examiner found that the Department failed to prove that there was any
violation of standard of care as it related to monitoring of patients or the prescription of
narcotic pain medications. The Hearing Examiner found that the Department never
defined what over prescribing was or presented evidence to show that any prescription
was out of range for a particular drug. There is no basis at all for rejecting this Finding of
Fact, except that it didn’t square with what the Board wanted to do and has now
attempted to do to Dr. Ibsen.
It is somewhat difficult to address the changes that the Board made to the
Conclusions of Law because they are to some degree a follow-up to the Board’s mistakes
relative to changes they put in place as concerns the Findings of Fact by the Hearing
Examiner. For instance, they rejected the Hearing Examiners Conclusions of Law in
their entirety and simply reversed them. The Hearing Examiner concluded that, “the
Department did not meet with its burden of proof with respect to the issue of whether Dr.
Ibsen was over prescribing pain medications or whether he failed to meet the standard of

care with respect to patient monitoring.” They simply discarded that and stated that the
Department did meet its burden of proof in these respects.
In rejecting Conclusion of Law number 7, the Board showed its ingenuity by
taking what its own witness, Dr. Kneeland discussed, that is the pendulum of how patient
care standards have changed over time going one direction and then another by stating
that the Hearing Officer was confused by this analogy. The fact of the matter was the
standard of care relative to the care of pain patients has changed and has gone back and
forth over the period of time such that, for example, with regard to pain contracts, the
testimony showed that some doctors used them, some doctors have not yet come to use
them. Ms. Blank’s testimony that St. Peter’s Hospital had only at the time of the
December 2014 hearing decided to require pain contracts shows the evolving or changing
nature of the rules. That didn’t fit with what the Board wanted to do, that is, take action
against Dr. Ibsen, and so they threw out Conclusion of Law number 7 in its entirety.
Contrary to what the Board states at the top of page 67 of its Final Order that “the
Hearing Officer relied only on his personal understanding and perspective of the standard
of care”, the Hearing Officer relied upon the testimony and the evidence presented. The
conclusions that the Hearing Officer arrived at regarding standards of care was that they
were not certain. The standard of care was not something certain in black and white and
the Board refuses to accept that.
The Conclusion of Law number 8 was affirmed but it is indeed inconsistent with
other findings of the Hearing Examiner concerning Dr. Ibsen’s record keeping, namely

that Dr. Anderson said the record keeping was acceptable and that Dr. Kneeland was
found not to be able to opine on the issue.
The Board then begins at page 69 of its decision to recast the Findings of Fact to
fit its view of the facts. Interesting that the Board in its recast final Findings of Fact,
number 5, states that “the standard of care usually shifts over time but can sometimes
shift immediately.” In Finding of Fact 65 at page 80, the Board states that it is a breach
of the standard of care to offer early refills without documentation of the rationale for the
early refill and cites Tr. 426. Actually, that passage refers to early refills habitually or if
the early refills are done with any regularity. There is no testimony in this proceeding
that Dr. Ibsen did early refills habitually or with regularity without documentation of the
reasons. Further, Finding of Fact 65 references that Dr. Ibsen breached record keeping
standard of care by failing to document his reasons for early refills and cites Tr. 437 in
that regard. There is no reference to early refills in that transcript citation, however. This
finding is clearly erroneous.
The Hearing Examiner in Finding of Fact 160 indicated that Dr. Ibsen talked to
his patient about the issue of early refills, which seldomly occurred but he didn’t
adequately document the same. He felt there were legitimate reasons for the refills.
In Conclusions of Law number 9 and 10, the Board concluded that Dr. Anderson
was not qualified to testify because he had not worked in the field of chronic pain care for
more than 30 years prior to the time of his testimony and he spent the bulk of his career
practicing neurology. That is plainly false and contrary to the evidence. This sounds to
be a direct quote from Dr. Guggenheim during the deliberation processes. Conclusion of

Law 10 also found that Dr. Anderson was not qualified to challenge Dr. Kneeland’s
expert medical testimony regarding standard of care. The fact of the matter remains that
though Dr. Anderson testified he retired from his busy practice in December 2012,
certainly his experiences made him qualified under even the medical malpractice
disqualification statute (Mont. Code Ann. § 27-2-601). Dr. Anderson testified that he
came to Dr. Ibsen’s office and reviewed everything. Dr. Anderson was a board certified
neurologist (Tr. 734). He had done more than 20 years of neurology and was part of a
chronic pain management team before moving to Helena in 1991 (Tr. 735). When he
arrived in Helena he stopped doing primary pain management but he would act in a
consultative role doing pain management. In other words, he would help other doctors
with pain difficulties that they were having with their patients. He would see patients and
their records, take a history, conduct a physical examination, and then provide or
recommend care (Tr. 737). Interestingly, Dr. Anderson was asked whether because Dr.
Ibsen was board certified in family medicine and emergency medicine and he was a
board certified neurologist and Dr. Kneeland was board certified in anesthesiology,
whether it made both Dr. Anderson and Dr. Kneeland less qualified to talk about pain
management issues and his response was:
A. The commonality is pain, yes. Pain is so ubiquitous that it hits all

specialties. You really can’t avoid it. Some doctors try, they say I don’t
want to hear it. If you hurt, see someone else and see your primary care
doctor or whatever.
...
Q. So you’ve cared for patients with chronic pain, have been involved in the
management of their chronic pain for 30-something years now?

A. Yes.
Tr. 759.
After giving all of those answers and others the Hearing Examiner at Tr. 760
determined that he was qualified to testify as an expert witness in this case. He treated
pain patients concurrently with other doctors. And see, Tr. 749-750 and 758-759.
Remember that Dr. Anderson testified that he did not consider the records to be
inadequate nor the care in any respect to the inadequate. The only way to avoid those
conclusions by Dr. Anderson was for the Board to find that Dr. Anderson was not
competent to testify as an expert and the bases upon which they disqualified him here
don’t stand up. Contrary to Conclusion of Law number 9 which says that Dr. Anderson
has not worked in the field of chronic pain for more than 30 years prior to his testimony,
he testified to the contrary. He testified that he has worked in the field of chronic pain
care for more than 30 years. For a large portion of the time he worked directly with
patients and their pain management and when he came to Helena he worked in
conjunction with other doctors to manage patients’ pain care and provide pain care
management. He helped other doctors with that issue. There is no basis in the world for
his testimony to have been disqualified.
Conclusion of Law number 12 seems to suggest that Ibsen should have from day
one tried other treatment modalities than pain medications. Of course, that is easier said
than done. When a patient shows up to his office and is in pain, they oftentimes need and
require pain medications. In nearly every instance the 9 patients came to Dr. Ibsen

having treated with and received pain medications from prior providers. It only makes
sense to continue the pain medications while their entire case and needs were assessed.
The fact that Dr. Ibsen would regularly recommend other alternative pain treatment
modalities or interventions was documented throughout the patients’ records. Their
responses were oftentimes communicated directly to him and in some instance they were
recorded.
The Board is simply wrong to hold as a standard of care that there be a written
controlled substance agreement in its Conclusion of Law 17 when narcotics were
prescribed for a long period of time. First of all, there is no definition as to what
constitutes a long period of time. Secondly, Dr. Ibsen testified that none of these patients
presented for pain treatment for a long period of time. They typically presented with
acute pain symptoms. The same is true with Conclusion of Law number 19 wherein the
Board for the first time established a standard of care of requiring regular use of
urinalysis. There is no testimony confirming that that is part and parcel of standard of
care. Furthermore, Dr. Ibsen used drug screening and urinalysis. (7 UAs for patient 5; Ex
L-1.)
The Board in Conclusions of Law 23, 24 and 25 makes the statement that the
Board met its burden of proof in certain areas but it doesn’t indicate how they met the
burden of proof, what the burden of proof was, or how it was that Dr. Ibsen failed in
various respects. For example, Conclusion of Law number 23 states that the Department
met its burden of proof with respect to whether Dr. Ibsen was overprescribing pain
medication. It doesn’t state that he was overprescribing pain medication. It doesn’t state

what the burden of proof was or anything else. That Conclusion of Law is simply
incomplete. The same is true with Conclusions of Law 24 and 25. It is also contrary to
Dr. Anderson’s testimony, Dr. Kneeland’s testimony and Ms. Blank’s testimony.
In Conclusion of Law 26, the Board concludes that there was excessive quantities
of narcotics prescribed but the particular patients are not identified. The amount which
constitutes excess quantities is not identified. This Conclusion of Law is incomplete and
flatly contrary to the undisputed testimony.
The Conclusion of Law number 21 and 22 are likewise incomplete. There is just
a blanket statement that he failed in his record keeping to record adequate histories,
physical examinations, etc. and document physical examinations. But there is no
specificity. Which patients were these? Which records were incomplete? Which records
were not incomplete? It’s just an indefensible vague statement in a conclusory sort of
way to enable the Board to do what it wished, punishment-wise, sanction-wise, with Dr.
Ibsen.
Based upon all of this, the Board did what it had in mind from the very beginning.
It indefinitely suspended Dr. Ibsen from practice as a medical doctor in the State of
Montana until he did certain things. Primarily, he was required to take a course on
medical record keeping, then be supervised and monitored.
I have been representing doctors in one capacity or another for 40 years. I have
never seen a doctor suspended over the issue of record keeping particularly when the
experts testify the record keeping was acceptable and when it is apparent that the Board
did not look at the records. Every doctor I know could do better in their record keeping.

Every lawyer I know could do better in their record keeping. This is a discriminate,
arbitrary and capricious sentence meted out without justification. Certainly record
keeping needs to meet certain levels but what level that might be is vague. In what
respects the record keeping was inadequate is vague. Whether it was in regard to every
patient or one patient or two patients is vague. We are left to wonder in what respects and
where was the record keeping deficient.
Punishment cannot be done without letting the punished know why they are being
punished. The suspension of a doctor’s medical license is serious business. In this case
the Final Order of the Board should be rejected. This case should be dismissed.
DATED this _____ day of July, 2016.
DOUBEK, PYFER & FOX, LLP
By_____________________________
John C. Doubek
Attorney for Petitioner
CERTIFICATE OF SERVICE
I hereby certify that on the _____ day of July, 2016, I served a true and correct
copy of the foregoing upon opposing counsel by inserting a copy of the same in a
stamped envelope and depositing it in the United States Post Office at Helena, Montana,
addressed as follows:
Graden Hahn, Esq.

Special Assistant Attorney General

Office of Legal Services
P.O. Box 200514
Helena, MT 59620-0514
_______________________________

Ibsen Timeline and Brief

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Ibsen Timeline and Brief

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Email from Dr.

Ibsen, April 23, 2018, outlining timeline of

I fired an employee in January 2013 for being abusive to patients. In

After meeting with the board of medicine screening panel, to my

After much negotiating the board offered me an ultimatum:

There were 4 hearings about my license

The board of medicine chose to reject the ruling

After hearings in November

Judge Reynolds immediately applied a Temporary Restraining Order,

June 2018 Update: Judge reverses decision of Montana licensing

The last hearing he had was 10/31/16.

Parenthetically, it’s interesting that a case so simple on only nine

Mr. Fanning, the board of medicine attorney, impugned my character

June 2018 Update: Judge reverses decision of Montana licensing

Filed before 10/31/2016

Attorney for Petitioner

MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY

MARK IBSEN, M.D., ) Cause No. DDV-2016-283

decision of the Montana Board of Medical Examiners.

Oftentimes cases involving the review of a decision of the Board of Medical

committed by the physician. It may arise from a referral or transgression against

arise because of an injury to a patient. It may arise as a result of a physician’s addiction

The Board of Medical Examiners determined to proceed and have a hearing on

considering a number of things which were not in the evidentiary record.

THE FINAL ORDER

Medical Examiners had an administrative trial, received evidence in testimony and

When absent members render decision-proposal for decision and

failure to follow the law.

SPECIFIC ERRORS IN FINAL ORDER

10. PETITIONER’S BRIEF

such a limitation placed on someone’s testimony or on the Hearing Examiner’s function

11. PETITIONER’S BRIEF

Ibsen kept those separate.

or modification by the agency of such finding is an abuse of discretion and a clearly

unwarranted exercise discretion.

12. PETITIONER’S BRIEF

transcript by the Hearing Officer should be affirmed.

records are somehow inadequate in the documentation of referrals to other healthcare

13. PETITIONER’S BRIEF

pain medications with Dr. Ibsen’s help.

about other modalities including massage (Tr. 588).

14. PETITIONER’S BRIEF

thus arbitrary, capricious and clearly erroneous.

inaccurate classification of two drugs, Tramadol and Ultram as non-narcotics when

15. PETITIONER’S BRIEF

constitute treatment or alternative treatment to narcotics. It’s important to remember

Christiansen in Hamilton, Montana) because the doctor was being sanctioned or

suspended by the Board for other matters.

Administration (SAMSA) policies. There was no contrary evidence offered by the

Board’s attorney. There is no contradictory evidence in the file. There is no legitimate

16. PETITIONER’S BRIEF

provided no citation to evidence of record. That’s not an appropriate determination by

17. PETITIONER’S BRIEF

Board in its wholesale rejection of Finding of Fact 27 which is inappropriate.

18. PETITIONER’S BRIEF

screen ordered as shown in her records.

19. PETITIONER’S BRIEF

which was tossed by the Board (pp. 16-34).

20. PETITIONER’S BRIEF

wrong. That is clearly erroneous and arbitrary and capricious.

The Board’s modification of Finding of Fact 30 is a bit peculiar. First of all, it

don’t know. We’re only left to guess.

2016 deliberation by giving an explanation of statutory requirements applicable to

21. PETITIONER’S BRIEF