Author Archives: Susan

Magistrate Says Lack of Federal Jurisdiction in Cerwonka v LSBEP

Magistrate Judge Carol B. Whitehurst of the U.S. District Court Western District has recommended that a federal lawsuit against the state psychology board filed by Dr. Eric Cerwonka, be dismissed based on lack of federal jurisdiction.
In August 2017, Cerwonka filed a lawsuit in federal court against the Louisiana State Board of Examiners of Psychologists (LSBEP) alleging violations of his Constitutional rights. This followed a July 2017 ruling by 19th Judicial District Court Judge Michael Caldwell negating a February 2017 LSBEP disciplinary decision against Cerwonka, on grounds that the board’s methods “… violated the Constitutional rights of Dr. Cerwonka.”

In Whitehurst’s “Report and Recommendation,” filed March 26, she finds that the Louisiana State Board of Examiners falls under the umbrella of state immunity provided by the Eleventh Amendment.
Dr. Cerwonka and his attorney have fourteen days from service of the Report and Recommendation to file specific, written objections.

In Whitehurst’s Report, she wrote, “The Eleventh Amendment bars an individual from suing a state in federal court unless the state consents or Congress has clearly and validly abrogated the state’s sovereign immunity,” wrote Whitehurst. Citing Fairley v. Louisiana, (5th Cir. 2007), a lawsuit involving the state medical board, Whitehurst wrote, “A suit against a state agency or department is considered a suit against the state under the Eleventh Amendment.”

Whitehurst recommends that the motion to dismiss for lack of federal jurisdiction be granted, and that the plaintiff’s claims against the Board be denied and dismissed without prejudice. (In a civil case, dismissal “without prejudice” is a dismissal that allows for refiling of the case.)

Since Whitehurst recommends dismissal on jurisdictional grounds, she explained that she makes no recommendation on the LSBEP’s request for a dismissal based on failure to state a claim.

“When a district court finds it lacks subject matter jurisdiction, its determination is not on the merits of the case, and does not bar the plaintiff from pursuing the claim in a proper jurisdiction,” she wrote.

In the Report, Whitehurst stated that the party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to dismiss, such that, “the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.”

“The plaintiff’s argument that the Board’s financial autonomy prohibits the Board from being a state agency is not persuasive,” wrote Whitehurst.

“A legally sufficient complaint must establish more than a ‘sheer possibility’ that plaintiffs’ claim is true. Id. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action.”

“Although acknowledging there is no jurisprudence directly finding that the Louisiana State Board of Examiners of Psychologists, which was created by the Louisiana Department of Health and Hospitals (“LDHH”), is a state agency, defendant argues the Board is similar to the Louisiana
State Board of Medical Examiners, which was also created by the LDHH, and which has been held to be a state agency entitled to Eleventh Amendment immunity. Because the Board argues it has not waived its immunity from suit, it asserts the plaintiff’s claims against it are barred.

In Fairley, the Fifth Circuit recognized that the Louisiana State Board of Medical Examiners is a state agency for purposes of Eleventh Amendment Immunity.

“The Louisiana State Board of Examiners of Psychologists argues that the statute creating its existence and the statute creating the Board of Medical Examiners are similar, with similar powers and rights being granted to each Board, and with each Board being subject to the provisions of La. Rev. Stat. 36:803.4. Each board is created within the Louisiana Department of Health and each is given oversight over their respective fields.”

Attorney for Cerwonka, Brown Sims attorney Mr. L. Lane Roy, had argued in the “Opposition of Plaintiff to Defendant’s Motion to Dismiss,” filed on November 30, 2017:

“An important case for this Court’s consideration on the issue of the Eleventh Amendment Immunity is the United States Supreme Court decision in the matter of North Carolina State Board of Dental Examiners vs. Federal Trade Commission, 135 Sup. Ct.1101(2015). While the North Carolina State Board case involves as one of its principal issues federal anti-trust laws, one of the main topics decided by the court was whether the State of North Carolina possessed Eleventh Amendment immunity from application of the federal law and its being subject to suit before the federal courts. In a lengthy discussion, the court found that North Carolina did not possess Eleventh Amendment immunity.” […]

“Here, there is absolutely no showing whatever that the State of Louisiana had active control over the Board in this matter and in fact, the exact opposite is correct.”

“The State has virtually no control of this agency as shown by the decisions that its rendered in this matter, not involving a state person but private attorneys hired for the persons, private investigators, private members of the community acting as judges at the hearing before the Board, private employees acting as persons, though illegally, who made decisions on interim suspension without a hearing whatsoever,” Mr. Roy wrote.

Counsel for the LSBEP, Attorney General Jeff Landry, signed for by Jeremiah Sams, Assistant Attorney General, wrote that, “Under the Eleventh Amendment of the United States Constitution, an unconsenting state is immune from any lawsuit seeking monetary damages or equitable relief brought in federal courts by her own citizens or by the citizens of another state …” And, he wrote, “The Board is an agency of the State of Louisiana.”

In another section of the Attorney General’s “Motion to Dismiss,” Sams wrote, “Alternatively, Plaintiff has failed to state a claim against the Board under 42 U.S.C. §1983, as the Board is not a “person” under the meaning of §1983.

“To state a claim under §1983, a plaintiff must establish that a person, acting under color of law, deprived him of some constitutional right.

“State agencies and state officials acting in their official capacity are not ‘persons’ within the meaning of the statute, and it is a well settled point of law that a state is not capable of being sued under 42 U.S.C. § 1983, as the state is not a “person” under 42 U.S.C. §1983.34” […] “Accordingly, Plaintiff’s §1983 claims against the Board should be dismissed.”

Cerwonka also filed an amendment to the complaint adding Ms. Jaime Monic, current Executive Director, to the lawsuit.

The matter of state supervison of the boards has been a topic for some legislators since the 2015 Supreme Court decision. In 2016 Senator Fred Mills put forth a measure creating the Task Force on Meaningful Oversight to help address compliance with the North Carolina v. FTC and minimize exposure to antitrust claims. In the Task Force’s report, in this case having to do with antitrust laws, authors wrote, “a board must satisfy two prongs in order to claim state action immunity.” One involves the “inherent, logical, or ordinary result of the exercise of authority delegated by the state legislature.” The second prong is “active supervision,” satisfied by having a state review and approval of board’s policies. Mills put forth legislation in 2017 to help remedy the supervision issue and also this year, in his SB 40.

According to a report by the Louisiana Legislative Auditor published in 2017, individuals can file general liability claims against the state because Louisiana waived sovereign immunity in the 1974 Constitution. State law limits damages to $500,000 for personal injury and wrongful death claims. However, there is no cap on economic damages or medical expenses, according to the report, “Types and Costs of General Liability Claims, Office of Risk Management.”

Between 2010 and 2015 the state paid over $42M in Constitutional and Civil Rights violations, the Auditor reported.

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The Black Panther A Review

by Alvin G. Burstein

Once upon a time, centuries ago, in sub-Saharan central Africa, a group of tribes discovered a miraculous source of radioactivity, Vibranium. The competition for control of the lode was resolved when the leader of one of the tribes imbibed a tea concocted from an herb that the mineral had affected, acquiring superpowers. He used those powers to unite the tribes into a kingdom, Wakanda, and to initiate high-tech capabilities, all carefully concealed from the world at large. He called himself The Black Panther.

The Black Panther superhero made his first literary super hero appearance in a Marvel comic book, The Fantastic Four, created by Stan Lee and Jack Kirby in 1964. There is a remarkable synchronicity in his sobriquet. A black panther—and the motto, “Come Out Fighting”—was the icon of the all Black World War I 761st Tank Battalion.

Although Lee has said that there was no intention of referencing any political group in using the sobriquet, The Black Panther Party, founded in the mid 1960’s by Stokely Carmichael and Huey Newton had chosen the same icon. That revolutionary protest party was described by FBI chief J. Edgar Hoover as “the greatest threat to the internal security of the country.”

The current film spin-off is set in contemporary times. Complex tensions beset Wakanda. One of the five tribes, the Jabari, has Luddite objections to technology, seeing it as reflecting weakness. The current king’s brother argues for eschewing concealment and emerging from hiding to support oppressed Blacks world-wide. The Great Powers, Russia and the United States, have gotten scent of a possible African source of atomic power and are competing for access to it.

As the film opens, the Black Panther arrives in the United States to confront his brother about the latter’s scheme to make Vibranium available outside Wakanda. In the confrontation, the brother is killed, and the king returns home. Hoping to avoid stoking the policy disagreements by revealing what has happened, he leaves his brother’s son behind. The nephew ultimately becomes a lethal mercenary, adopting the name Killmonger. He is a brooding presence whose insatiable demand for vengeance makes him like Moby Dick’s Captain Ahab. Like Ahab, his purpose is “an iron rail on which my soul is grooved to run.”

After the King’s death, his son comes home to assume the throne and its super hero mantle. The succession requires him to meet any challenger from the other tribes in combat. Unexpectedly, he is challenged by the chief of the Luddite Jabari tribe. He defeats the challenger but spares his life.

The new Black Panther interacts with a cast of characters that includes a CIA agent, one of the few non-Blacks in this tale; a Dutch mercenary, also White, seeking to steal Vibranium to sell to the highest bidder; and Killmonger, who burns to return to Wakanda and overthrow the new king.

The movie’s initial popularity is deserved. Its plot is vivid and compelling. The action is suspenseful. The characters are fascinating. The cinematography is beautiful and the special effects impressive.

The film is remarkable, too, in cultural terms. The perhaps unintentional echo with the violent anger of the 1960’s Blank Panther protest stirs up uneasiness that could be usefully explored. At the very least, the presentation of a film with predominantly Black actors in complex and varied roles is an unsubtle critique of Hollywood’s failure adequately to reflect cultural diversity. Wakanda’s epitomizing sci-fi high technology calls into question a stereotype of Africans as primitive. That country also has a highly disciplined military elite of women, the Dora Milaje, central to the story. These strong, powerful female figures endorse current cultural shifts toward women as subjects who act rather than as objects to be used. In the film the magnitude of that shift is unfortunately diluted by the fictional country’s strongly patriarchal tradition of authority, especially one validated by mortal combat.

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The Shape of Water

by Alvin G. Burstein

My first reaction was to think of this film as a mash-up of The Creature from the Black Lagoon, with its fantastic and frightening monster, and Splash, with its mermaid romance.

But more complexity is promised by the beginning and ending epigraphs that frame it:

If I spoke about it – if I did – what would I tell you? I wonder. Would I tell you about the time? It happened a long time ago, it seems. In the last days of a fair prince’s reign. Or would I tell you about the place? A small city near the coast, but far from everything else. Or, I don’t know… Would I tell you about her? The princess without voice. Or perhaps I would just warn you, about the truth of these facts. And the tale of love and loss. And the monster, who tried to destroy it all.

And the afterword:

Unable to perceive the shape of You, I find You all around me. Your presence fills my eyes with Your love, It humbles my heart, For You are everywhere.

The opening, with its uncertain ifs and references to fair princes and last days suggest something other than facticity despite the story’s purported setting in the 1950’s cold war and space race. It implies a truth that transcends history, the truth of myth or legend.

The central characters are a striking assortment: A possibly divine monster from the deep, capable of bloody wrath, magical healing and striking vulnerability; a totally mute scrubwoman, employed at a top-secret research facility; a closeted gay illustrator, her confidant; a federal agent who combines sadism and phallic narcissism.

As the story unfolds, one striking theme is the federal agent’s figuring himself as a Samson castrated by a wily Delilah. He suffers losing two fingers in his battle with the creature, and ultimately rips off the re-attached digits in a desperate effort to avoid being defeated by the woman protecting his captive. This sub-plot includes the agent’s trying to act on his urge to sexually assault the mute scrubwoman. When she rejects him, he reacts by having rough sex with his wife and buying a fancy new car—which gets wrecked in the course of the unfolding plot.

The major focus of the film, however, is on the “princess without a voice,” the scrubwoman. During the day, she mops floors and cleans urinals. At home, she luxuriates—and masturbates—in the tub of her decrepit bathroom, and fantasies while watching television movies with her illustrator neighbor. When she encounters the captured monster, she sees past his grotesque and frightening appearance. He, beset by alien humans, recognizes her as a savior—and princess.

That brings us to the closing epigraph. Our prince and princess avoid attending to apparent externalities. They choose to bathe in each other’s love.
Amor Omnia Vincit.

Is the mythic lesson of the film that love always wins? Or that love is most important? Or is it that the real monster is not the grotesque creature, but crass and dangerous appartchik functionaries ignorant of the meaning of love?

Or does writer/director Guillermo del Toro have all three in mind?

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What’s New About Stress?

by Susan Andrews, PhD

Actually, I was about to say, “Practically Nothing,” when I happened upon an article in the HuffPost entitled, “20 Scientifically Backed Ways to De-Stress Right Now.” Okay, I agree that we have scientific evidence that a lot of methods work, but 20 ways to destress immediately might be pushing it. So, read on and discover a couple of new ways that you might not have known about.

The early part of the list was now new. Although these are great techniques to reduce stress, most everyone knows them, and few enough actually DO them. Number 1 is Go for a 10 Minute Walk, in a park or green space if you can. Number 2 should probably have been listed first as everyone knows the value of breathing. Deep slow breathing stimulates the parasympathetic nervous system, you yawn and feel better. Number 3 on the list was to do a short self-guided visualization or imagine a vacation you enjoyed or one you are looking forward to. The suggested visualization in the HuffPost list is to “picture yourself in an elevator, happily sandwiched between two hot actors of your choice.” Might work!

Taking advantage of the newly labeled “gut-brain-axis” is the 4th scientific way to destress immediately: Eat a Snack (Mindfully). The article draws on Dr. Drew Ramsey’s new book, The Happiness Diet. In Dr. Ramsey’s words, “After all, stress is a brain and immune system mediated phenomena, and your gut is the largest organ in your immune system.” Dr. Ramsey is an assistant clinical professor of Psychiatry at Columbia University College of Physicians and Surgeons.

But the surprise was that the Number 5 suggestion on the list was totally new to me: Buy Yourself a Plant. According to this article, Houseplants are not just beautiful air purifiers; they actually can help induce a relaxation response just by being around them. The science is that a Washington State University study found that a group of stressed-out people in a room full of plants experienced a 4-point drop in their blood pressure, while the control group in a plant-less room only dropped by 2 points. HuffPost included an article on the 10 Best Houseplants to De-Stress Your Home. They also quote a 2008 Dutch study that found that patients in a hospital with plants in their rooms reported lower stress levels than patients in rooms without plants. And, the # 1 top stress-reducing plant is the dangerously sharp-leaved Aloe plant. Not only does it have the ability to help heal burns and cuts, but also it cleans the air and the leaves act like canaries in a mine by displaying brown spots on the leaves when there are a lot of pollutants in the room air. (Important FYI, the aloe plant has other relaxing uses.) They list English Ivy as Number 2 and a Rubber Tree as Number 3. Number 4 is a Peace Lily and Number 5 is the Snake Plant. The only one I knew about was the Snake Plant or Mother-In-Law Tongue. And, I only knew about its air purification qualities. The bamboo palm made NASA’s list of top clean-air plants with a score of 8.4 for clearing out benzene and trichloroethylene. And, if those chemicals are in your house, you will need more than a plant to relax.

I kinda got sidetracked on the List of 20 Scientifically Backed Ways to De-Stress Right Now. And, I am running out of column space. So, I will quickly finish the list without much comment. Number 6 is Step Away from the Computer Screen – frequently. Number 7 is Pucker Up. Enough said. Number 8 is Try this Naam Yoga Hand Trick; it totally works. Apply pressure to the space between your pointer and middle fingers; it creates a sense of instant calm. Number 9 is Hang Up, Then Turn Off Your Phone. And, Number 10 is Put on Some Music. That is one of my favorites. I’ll save the other 10 for another time. These tips for instant relaxation are easy to do and I hope try them out.

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What Happened to Beverly Stubblefield?

by JNelson

In 2016 a respected member of the Louisiana psychology community and past member of the state psychology board, Dr. Beverly Stubblefield, entered a plea agreement of guilty in a Medicare fraud case. Dr. John Teal, a Louisiana medical psychologist, was also charged. Both Stubblefield and Teal pleaded guilty to one count of Conspiracy to Commit Health Care Fraud, surrounding the high profile case against Mississippi psychologist Dr. Rodney Hesson and his business partner, Gertrude Parker, an occupational therapist and Hesson’s mother.

Hesson and Parker owned and operated regional companies, Nursing Home Psychological Service and Psychological Care Services. They marketed to nursing homes in Louisiana, Mississippi, Alabama and Florida, and built on requirements in federal regulations, 42 CFR 483.20, a law requiring nursing home residents be evaluated every three months in a “…comprehensive, accurate, standardized, reproducible,” manner.

At the trial, Hesson said that his company served up to 72 nursing homes and that the company was “…inundated with referrals.” He said that at times the company had to cap how many people could be seen.

Physicians ordered the assessments and nursing homes needed them. According to the regulation, evaluations were to include information about “cognitive patterns,” “mood and behavior patterns,” “communication,” and “psychosocial well-being.”

Hesson designed a service that paired each contract psychologist with an assistant, called a “clinical coordinator.” The total units/hours billed was a sum of both the psychologist’s and the assistant’s procedures. The companies billed Medicare between three and eight hours of CPT code 96101, psychological testing, for which Medicare reimbursed an average of $80 per unit/hour.

Hesson testified he typically employed between 23 and 26 psychologists and between 18 and 20 clinical coordinators. One of the prosecutors stated that the firm has assessed 9,000 individuals and was one of the top billers for psychological testing in the country.

Contract psychologists were paid a flat fee of between $90 and $100 per case. Psychologists would go to a nursing home and see as many as 10 residents in a day, or more, along with the assistant.

In an interview with Dr. Stubblefield, she explained that the evaluation process was standard and set by the company. The evaluation included six components with tests, behavioral observations, review of chart information, and meeting with staff. She explained that the goals were often to “… get them off meds or increase functioning.”

In his testimony, Dr. Teal said the coordinator would complete information for the psychologist’s review and then prepare the “formalized report”
which the psychologist would review and edit.

The prosecution argued that the service was fraudulent because it was a screening, because it was not medically necessary, and because the time the psychologist provided in face-toface client contact was exaggerated and inflated.

At trial Hesson testified that Medicare had audited the design of the service in 2011 and the approach passed. He said, “When I was audited, we were billing 96101 and — 36 claims is a lot of claims, to my knowledge, to get in an audit,” he said. “Within those claims, we were billing 96101. Within those specific records, it was evident that there was an assistant…,” he said. “Under the diagnostic tests provision, all diagnostic tests are assigned a certain level of supervision,” he said, reading from the Medicare rules.

The defense attorney asked, “Did you rely on that in making your decision whether you could bill 96101?”

“Yes,” Hesson said, referring to Federal Code 42 CFR 410.32 for diagnostic tests. Under this regulation psychological testing is payable if “… personally furnished by a clinical psychologist, or “Furnished under the general supervision of a physician or a clinical psychologist.” And under Louisiana law, a psychologist may utilize assistants but billing must “… not be in the name of an assistant.”

Despite the fact that the evaluations were ordered by medical doctors, the Government prosecutors said that the defendants’ actions were fraudulent, “… by scheduling repeat tests for the same nursing home residents at three- to fourmonth intervals, notwithstanding Medicare’s stipulation that re-testing is not medically necessary unless it is required for a diagnosis or continued treatment.”

“The prosecution insisted that we were doing screening instead of testing,” Dr. Stubblefield explained to the Times, “and therefore we committed fraud and everyone who was compliant with the procedure was a conspirator. That is the gist of things.”

The Government presented other issues at trial, producing several individual cases where it was clear that cognitive testing had to be discontinued because the resident was too disabled to participate.

One attorney asked Dr. Teal, “Looking back on it, sir, was there a benefit to these patients for the tests you were performing on them?”

Teal said, “In general, that kind of testing could be helpful once perhaps, but the benefit of continuing to do that repeatedly over time the way we did it is limited and certainly questionable as far as how clinically useful it could be.”

The prosecution also presented charts where, based on Medicare data, large numbers of hours had been billed for a single psychologist. According to Hesson’s testimony this was due to locum tenens, where one doctor bills under another.

Also presented by the prosecution at trial was the Medicaid fraud case against Hesson from Mississippi that occurred in 2012. He had pleaded guilty to billing patients on one day when the services had been delivered on another day.

Dr. Stubblefield said that Hesson had described this as a bookkeeping error, but “Now, I’m not so sure,” she said.

Charges against all four defendants were elevated to “conspiracy,” which carries some of the harshest legal treatment that Government prosecutors can bring to bear on defendants, through laws that allow pre-trial and pre-conviction seizing of assets and property.

“Conspiracy” laws originate from prosecution of individuals in organized crime and terrorists. “Federal prosecutors can, and should, use civil forfeiture to enhance criminal cases and further the Department of Justice’s (Department) goal of effective law enforcement,” writes Craig Gaumer in the U.S. Attorney’s Bulletin, “A Prosecutor’s Secret Weapon: Federal Civil Forfeiture Law.”

Based on documents, prosecutors seized all assets from Hesson’s company, personal bank accounts, cash and real estate, including the family home, immediately once charges were formal.

According to Stubblefield, her home and accounts, including her retirement accounts, were seized. She said her elderly father placed a second mortgage on his home and that money allowed her to hire an attorney.

“I didn’t have the money to fight it,” she told the Times. “I never had the chance to defend myself against the conspiracy charge. Federal courts cost two or three times as much as other courts. It takes $100,000 just as a start. I only had $75,000.”

The “conspiracy” charge may also relate to areas of harsh treatment. “I never had my Miranda rights read to me,” she said. “I didn’t even know I’d been indicted until a client saw it on the news and contacted me.”

The FBI came to her office and she didn’t know why. In an email to this reporter, she wrote, “The FBI interviewed me without stating why they were there and I was under the assumption that they were there regarding a high profile rape case who was a former patient because my office administrator said that someone was coming in regard to that case.”

It appears that Stubblefield and Teal may have been included in the indictment because of their friendships with Hesson and Parker, and because both accepted company titles for a time.

Teal accepted the title of “clinical education coordinator.” Stubblefield accepted the title of “Clinical Director,” when Hesson asked her to in 2012. This was after Hesson pleaded guilty to Medicaid fraud in Mississippi and was not allowed to work with Medicaid/Medicare. She resigned from that role after five months but she said, “It was too late.”

“I was flattered,” she wrote, “but the position was just a ‘figurehead’ title. I really didn’t get to direct anything but was set up to be the ‘bad guy’ and ‘fall guy’ if things didn’t bode well. Emails to that effect were interpreted by the prosecution as conspiring to commit fraud by encouraging a psychologist to bill as they have done for NHPS…”

Overall, Stubblefield worked contract for the Hesson companies, part-time for about five years. She was paid $448,000 total or $89,000 per year. Her restitution is over $2M.

Teal worked full-time, for four and ½ years. He testified that he made approximately “… $200,000 a year, some of the years–– one year as much as $300,000.” His restitution is over $3M.

According to testimony neither had information regarding the billing procedures. Both testified that they relied on Hesson and Parker to understand the laws regarding the CPT codes. Stubblefield told the Times, “I never saw the billing. I didn’t want anything to do with that part of the service. I was preparing to retire. I wanted everything simple.” “When I went to work for in NHPS I was an employee because I didn’t want to file any claims or do any ‘business’ paperwork. I just wanted to be a psychologist.”

In their plea agreements, Stubblefield and Teal agreed that they: 1) documented services that had been “… in fact, provided by unqualified persons working with them; 2) administered tests to residents who were non-responsive; 3) billed for time when they were not present.

Dr. Stubblefield was sentenced to serve 30 months for 1 count. Two counts were dismissed. Her sentence began April 25, 2017. She must pay restitution of $2,181,378 and upon release at least $200 per month. Payee is Medicare.

Dr. Teal was sentenced to serve 24 months for 1 count. Two counts were dismissed. His sentence also began April 25, 2017. He must pay restitution of $3,505,137 and upon release at least $200 per month. Payee is Medicare.

Gertrude Parker was found guilty of three counts and sentenced to 84 months for Count 1 and 60 months for Count 2, to be served concurrently. She began serving September 2017. Ms. Parker is to make restitution of $7,313,379 and $200 per month. Payee is Medicare.

Dr. Hesson was found guilty of three counts and sentenced to 120 months for Count 1 and 60 months as to Count 2, to be served concurrently. He began serving September 2017. He is to make restitution of $13,800,553 and $200 per month. Payee is Medicare.

Beverly was sentenced to 30 months incarceration at the Federal Prison Camp in Aliceville, Alabama. This, she explained to the Times, was not the hardest part of what has happened to her.

“The worse part is losing my psychology license,” she said. “This…the time, this is just something to be dealt with, something I had to do.”

In February Dr. Stubblefield wrote a letter to past-president of the American Psychological Association (APA), asking that APA take a stand for sentencing reform in regard to white collar, first offenders.

“In regard to white collar crime,” she wrote, “there are many innocent professional women her who have been charged with the ill-defined ‘castnet’ of conspiracy, when the only thing they’ve done was to comply with company procedures or file data given to them. If they went to trial, the sentence was automatically doubled,” she wrote. “Losing one’s license and livelihood is punishment enough, but the Department of Justice seizes or places a lien on everything owned including your home and retirement accounts because judges set unrealistically high restitution of millions of dollars never received by the people charged. The people charged are primarily MDs, PhDs, CPAs and NPs who have licenses, Medicare/Medicaid numbers, and ethical standards or responsibilities, not office managers or company owners who may be the ones submitting faulty claims.”

Dr. Teal said at trial, “I had concerns. I look back on all that time with tremendous regret because of exactly what you just said. I should have. I should have done due diligence and called the Medicare hotline or hired a lawyer and asked him. I should have done those things. Lord knows, I wish I had.”

At trial Dr. Stubblefield, after she was surprised to hear the number of hours billed under her name, was asked how she felt to testify against Ms. Parker.

“Dismayed, disgusted, betrayed, still in shock about everything, remorseful about the whole situation, regretful that I ever went to work for another agency.”

How does she cope? “I use my cognitivebehavioral skills,” she said, “and prayer. I couldn’t get through this without my faith.”

Were you naïve? “Absolutely,” she said.

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Bill for School Violence Prevention Calls for More Mental Health Evaluations

Representative Tony Bacala, Republican from Prairieville, representing District 59, has submitted a bill, HB511 which seeks to address reporting of threats of violence and mental health issues.

The legislation would address matters relative to the reporting of threats of
violence and terrorism at schools and requires mental health evaluations.

According to the digest of the bill, currently, the law does not require that teachers, principals, or other school employees report threats of violence or terrorism on school campuses to law enforcement. The present law does not require any person who threatens violence or terrorism in a school setting to undergo a mental health evaluation.

HB511 would require any school employee who learns of a threat of violence or terrorism at a school or a school-related function to report the threat to law enforcement.

“Any administrator, teacher, counselor, bus operator, or other school employee, whether full-time or part-time, who learns of a threat of violence or threat of terrorism, whether through verbal communication, written communication, or electronic communication, shall report the threat to local law enforcement.”

The proposed law provides for procedures for law enforcement upon receiving a report of a threat of terrorism or violence on a school campus or school-related function.

The legislation would require mandatory mental health evaluations for individuals who make threats of violence or terrorism at schools or school-related functions. Any individual making a threat of violence or terrorism at a school or school-related function is prohibited from being within 500 feet of the school until undergoing a mental health evaluation and being cleared by a mental health professional to do so.

“If the person who is reported to law enforcement is a minor, then the local law enforcement agency shall contact the local child protection unit of the Department of Children and Family Services. The local child protection unit shall file a motion with the appropriate judicial district court for a medical, psychological, and psychiatric examination as authorized by Children’s Code Article 760.”

Representative Bacala is a retired Deputy of the Ascension Parish Sheriff’s Office, and attended LSU and the FBI National Academy.

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Senator Fred Mills Renews Efforts to Restructure Boards

Senator Fred Mills has paired down last year’s effort to restructure the health care boards, and is proposing SB40 which contains several of the components of last year’s SB75, including adding a consumer member to each board and removing the professional associations from the board’s nomination process.

SB40 would transfer the extensive list of boards, commissions and agencies to the Louisiana Department of Health (LDH). Included will be the boards for psychology, counselors, social workers, and the other 22 healthcare boards. These are the boards for dentistry, nursing, optometry, pharmacy, medicine, physical therapy, speech-language, addictive disorders, vocational rehab, behavior analyst and others.

SB75 would also remove repealed and obsolete cites and references and categorizes those entities statutorily created within the department.

The proposed law adds at least one consumer member to any board that did not previously have one and provides standardized eligibility criteria of consumers to serve on any board.
Present law provides for professional trade associations and other entities to select and submit nominees to the governor for board appointment.

The proposed law opens board nomination eligibility to any member licensed by the board who is interested and eligible. Proposed law requires the board to send notice to its licensees to fill board positions and submit the names of those interested and eligible to serve to the governor for board appointment.

Last year, SB75 included sweeping changes in the disciplinary processes of the boards, his measures fueled in part by the 2015 anti-trust decision of the Supreme Court, and Mills’ own views that boards have “virtually no detectable oversight.”

Mills’ previously explained to the Times, “… there has to be
a place for consumers and practitioners to go when they feel they haven’t gotten a fair shake from their boards.”

Perhaps the most dramatic change Mills proposed in 2017, missing from this year’s SB40, is in disciplinary hearings. Last year the Senator wanted to remove final adjudicatory hearing authority from the boards and transfer that to the division of administrative law. The Division of Administrative Law will preside over hearings in which a final action of the licensee is being pursued by the board.

For the 2017 failed proposal by Mills, “… final adjudicatory proceedings shall be transferred to the division of administrative law, that administrative hearings shall be held in the administrative law location closest in proximity to the licensee, and that venue for appeal of the administrative law judge’s ruling shall be the district court for the parish in which the licensee is domiciled.”

Another of Mill’s efforts in 2017 aimed to restrict board investigations to a one-year time limit. “If a board does not issue notice of an adverse or disciplinary action within one year from the date upon which a sworn complaint is received or, if no sworn complaint is received, within one year from the date the board voted to commence an investigation, the matter shall be dismissed. The one-year period shall be prescriptive.”

Senator Mills’ 2017 effort was stopped in the House Health & Welfare Committee after passing the Senate. At the committee meeting Mills said that there had been some misinformation and he clarified that the measure did not affect the duties or powers of the boards, or the scope of practice that some members of the boards had believed. He said that the changes are not new ideas. “Forty-four states have Administrative Law Judges for disciplinary hearings,” he said. “We don’t want you to be the sheriff, the DA, and the judge.”

“We revised the Ethics laws in 2008 and said that, as a body, we don’t want the sheriff and
the DA to be the judge and the executioner,” said Mills. “This bill is for the little man and the little woman. If you have to go in front of a full hearing, you should not go in front of a hearing that are those who’ve been investigating you.”

One source told the Times that psychology board members helped derail Mill’s 2017 effort. And sources said other boards also helped derail SB75. Ironically, in about that same time, a District Judge found that the psychology board’s investigation methods to be violations of due process.

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The Post: A Review

by Alvin G. Burstein

It could be argued that words printed on paper are passé and newspapers are a format in the process of becoming extinct. Warren Buffet, the Omaha sage of Wall Street, does not agree. He thinks that, despite the fact that the number of daily newspapers is shrinking, The New York Times and The Wall Street Journal will endure because of their gravitas, and that local newspapers have a unique ability to focus on local events.

Spielberg’s new movie The Post, starring Meryl Streep and Tom Hanks, joins McCarthy’s 2015 Spotlight as bracing reminders of the impact the press can have.

The latter film documented the role The Boston Globe played in exposing not only the extent of priestly involvement in the sexual exploitation of young children, but also the Church’s role in a cover-up. The Post chronicles the exposure of the United States government’s cover-up of the realities of the war in Vietnam.

In 1950 Daniel Ellsberg was part of a RAND corporation research team sent to Vietnam to study limited warfare. In 1965 he spent two years in that country working for the State Department studying counter-insurgency. In the movie, he is portrayed as being embedded with troops suffering heavy casualties.

When Ellsberg returned to Washington, again at RAND, he joined a team drafting a history of the U. S. political involvement in Vietnam. There he became privy to classified documents describing how administrations from John Kennedy’s to Lyndon Johnson’s recognized that the war was basically unwinnable, a reality that was concealed from the American public. Ellsberg made copies of the documents, sharing them with the NYT. He did so with the realization that he was committing a crime.

In 1971, The Times published an article describing the contents of the so-called Pentagon papers. They were ordered to desist by the U.S. Attorney General, but refused to comply, whereupon the government obtained a court order enjoining them.

The Washington Post, hearing that Ellsberg was on the run in Washington, managed to locate him and obtain copies of the papers. The Post’s editor, Ben Bradlee, broached the notion of publishing them to its owner, Katherine Graham. The decision was fraught for several reasons. Criminal charges might ensue. The paper was in the process of becoming publicly owned, and might lose investors. The Graham family was friends with Secretary of Defense McNamara, deeply implicated in the scandal.

The movie explores the play of these tensions and goes at least a half-step further, hinting at both Graham’s and Bradlee’s susceptibility to being seduced by the appeal of access to the powerful. The movie, too, dramatizes the power of the press in visual terms with a focus on linotyping and huge mechanical presses churning away.

In fact and in the movie, the question of governmental authority versus freedom of the press went to the United States Supreme Court for resolution. Justice Hugo Black’s words served as an epigraph to the movie:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government.

These words are particularly apposite in our time.

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BASS: The Beliefs about Stress Scale

by Susan Andrews, PhD

Do laypersons’ beliefs about stress influence their mental and physical health? In 2016, German psychologists from Berlin addressed this question and developed The Beliefs About Stress Scale (BASS), which is a standardized questionnaire to assess stress beliefs. The BASS consists of an item pool of 24 statements. To standardize the instrument, it was administered online to 455 university students at the start of term. Other information about students’ subjective stress levels, optimism, pessimism, neuroticism and somatosensory amplification was collected. A sub-group of these students were reassessed at the end of term exams 6 to 8 weeks later.

Analysis included factor analysis which suggested 3 dimensions of stress beliefs: negative stress beliefs, positive stress beliefs, and controllability. The item pool of 24 statements is given in the appendix of the publication. Some of the statements include:

“Being Stressed …
1 . . . is, for me, a sign of weakness 2 . . . impacts negatively on my ability to perform 3 . . . causes damage to my health in the long run 4 . . . is something I am able to influence through my actions 5 . . . enables me to work in a more focused manner 6 . . . makes me more productive 7 . . . makes my life more exciting in a positive sense 8 . . . causes damage to my health in the short-term

One study in 2016 by Drs. Johannes Laferton and Susanne Fischer, published in the International Journal of Behavioral Medicine, showed that students who held negative beliefs about stress being dangerous to one’s health did, in fact, complain of more somatic symptoms during a stressful period.

It is interesting to see the wide range of negative to positive statements included in the BASS questionnaire. Further research using the BASS with differing populations is needed.

In the light of these self-fulfilling and predictive beliefs, I might behoove all of us who are active and busy to take time to examine our own beliefs about stress. And, our beliefs about how well we believe we manage our stress is also critical. We may need to decide that Stress is NOT the “Bad Guy” after all. Dr. Kelly McGonigal, a health psychologist, gave a TED talk in which she said, “For years I’ve been telling people ‘stress makes you sick!’ …But I’ve changed my mind.” And, she quoted several large N studies to prove her point that changing how you think about stress can change the outcome.

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Dr. Chaney Serving on Governor Edwards’ Task Force to Prevent Sexual Harassment and Discrimination

Governor Edwards named Industrial-Organizational Psychologist Dr. Courtland Chaney to the Governor’s Task Force on Sexual Harassment and Discrimination Policy.

In a statement on December 15 the Governor’s Office announced the new Task Force and stated that seven members are included who will “review current harassment and discrimination policies within every state agency that falls under the executive branch, as well as research and identify the most effective ways to create work environments that are free from any form of harassment or discrimination.”

Dr. Courtland Chaney is a licensed industrial-organizational (I-O) psychologist in private practice in his company, Human Resource Management Associates, Inc., located in Baton Rouge. Chaney currently serves as a Director on the Executive Council of the Louisiana Psychological Association. He was a faculty member in the Department of Management at Louisiana State University until his retirement in 2010.

“Sexual harassment and discrimination,” said Governor Edwards in the December announcement, “have no place in the workplace and this task force will provide critical feedback on the current policies and procedures in our state agencies that are working and what improvements are needed in order to provide safe work environments for our employees.”

Also appointed to the task force were Terrence Ginn, deputy commissioner for finance & administration at the Louisiana Board of Regents; Sandra Schober, deputy director of administrative services for the Louisiana Attorney General’s Office; Makayla Weber-Harris, staffing assistant division administrator of the Louisiana State Civil Service.

Also appointed were Janice Lansing, chief financial officer of the Coastal Protection and Restoration Authority; Tina Vanichchagorn, deputy executive counsel, Office of the Governor; Suzette Meiske, human resources director for the Louisiana Community Technical College System.

“Every member of this task force brings a wealth of experience and knowledge to the table, and I have confidence in their ability to meet the goals and objectives set before them,” said Gov. Edwards.

In an Executive Order he outlined the duties of the group:

• Review the sexual harassment and discrimination policies of each state agency within the executive branch.

• Research and identify the most effective mode of training to prevent workplace sexual harassment and discrimination and evaluate the effectiveness of the existing video state employees are required to view each year.

• Develop a protocol for sexual harassment and discrimination policy orientation for new employees, those participating in any state sponsored training academy and employees promoted to supervisory positions.

• Research and identify the specific conduct that should be prohibited by sexual harassment and discrimination policies.

• Research and identify a clear reporting process when an allegation is made as well as the most appropriate action that should be taken once an investigation is completed.

The Task Force was created after Governor Edward’s deputy chief of staff, Johnny Anderson, voluntarily resigned amid an investigation of a harassment claim against him. Anderson says he is innocent of any wrongdoing. Some critics noted that Anderson should not have been hired because he had a similar problem while at Southern University, according to reports in the TimesPicayune.

Dr. Chaney commonly provides anti-harassment training for businesses that he assists and believes all decision-makers should ask themselves certain questions, involving, “Am I acting in an ethical manner? Am I treating people fairly, the way I would want to be treated, the way I would want my loved ones to be treated?” And, “Am I in compliance with all federal, state and local laws?”

He often engages his attendees to talk as a group and or individually, to dig into these types of questions even more thoroughly where needed.

“In my judgment, most antiharassment training––including sexual harassment––focuses on following the EEOC guidelines …” he said.

But after that analysis, which can be comprehensive, Dr. Chaney believes that the issues can extend to the organizational culture.

“I believe our next effort should be focused on describing the type of organizational culture we aspire to have and articulating the behaviors we expect of organizational members,” he explained. “The expected behaviors should then be reinforced through human resource management practices, including performance management, feedback, and progressive discipline.”

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Lady Bird: A Review

Lady Bird: A Review
by Alvin G. Burstein

Lady Bird is a coming of age story, a bildungsroman. We follow its protagonist, a teen-ager discontent with herself and her situation, beset with a vague yearning to change her life
and herself, as she struggles to free herself from what she feels confining her. The film opens with an epigraph displayed on the screen: Anybody who talks about California hedonism has never spent a Christmas in Sacramento. That is where Lady Bird lives, and, moreover, on the wrong side of the tracks. Living with her are her father who is unsuccessful in fending off unemployment, her critical and controlling mother who works double shifts as she scrabbles to make ends meet, a brother, who is tattooed and decked with body piercings, and the brother’s live-in girlfriend.

Lady Bird dreams of becoming someone, leaving home, going to an Ivy League college. Her grades, alas, are mediocre and its financial demands overwhelming. She steals looks at a classmate’s paper during a math exam and hooks the instructor’s grade book so that she can finagle a B in the class. She lies to classmates about where she lives, representing her home as being in an upscale neighborhood. She steals fashion magazines that she cannot afford to buy.

The film is a brilliant debut effort by Greta Gerwig, who wrote the story and directed the film. Gerwig leavens the grimness of Lady Bird’s struggle with genuinely comic elements. The
director makes the young girl sympathetic—no, loveable— because of her wit, her self-awareness, and the universal and urgent nature of her adolescent struggles with self-esteem.

The film opens with Lady Bird riding with her mother in an auto while they listen to a recording of The Grapes of Wrath, an elegant bit of foreshadowing. That book ends with the mother of the Oakie family shooing the men away and supporting her daughter, whose infant child has just died, to nurse—literally— an elderly starving man. The novel ends with a reference to the  daughter’s “mysterious smile.”

Lady Bird and her mother both weep as the reading ends, but begin to squabble when Lady Bird wants to move on to another tape. The fighting escalates, and the daughter jumps out of the moving car, breaking her arm.

A 1989 publication by the SUNY Freud Museum, Sigmund Freud and Art, cataloguing and describing Freud’s collection, contains a chapter by Ellen Handler Spitz, Psychoanalysis and
the Legacy of Antiquities. Spit draws our attention to the head of Demeter owned by Freud, and reminds us of the story of Demeter, the goddess of harvest and of the cycle of birth and
death, and her daughter Persephone. In the Greek myth, Persephone is kidnapped into marriage by the king of the underworld. Demeter, distraught, searches for her lost daughter. When, after much effort, she finds her, only to learn that during her captivity Persephone has swallowed six pomegranate seeds, and thus can only spend half of each year with her mother, returning to the underworld for the other half.

Spitz suggests this tale is as figural for psychoanalysis as is the more famous one of Oedipus, the latter with its emphasis on the tension between fathers and sons. Spitz explores various
interpretations of the Demeter myth and argues for its potential to counterbalance the patriarchal focus in psychoanalytic practice and theory. At a minimum, she sees the Demeter
myth as central in directing our attention to mother-daughter relationships, especially as they relate to issues of birth and loss, and of separation and reunion.

Lady Bird ultimately leaves home and mother. Do they find each other again? Yes and no. You will have to see the film to decide.

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“Hoffman Report” Defamation Suit Continues in Washington, DC Defendants Claim Free Speech Rights; Plaintiffs Point to Leaks as “Actual Malice”

A dispute involving the ramifications of the “Hoffman Report,” a document prepared by the Chicago attorney David Hoffman and commissioned by the American Psychological Association (APA), during conflicts over the role of military psychologists, APA ethics decisions, and human rights policies in APA, was filed in Washington D.C. in late August, immediately following dismissal by an Ohio judge who said the case was not in his jurisdiction.

Motions put forth in the Ohio pleadings and in the new D.C. litigation indicate that the defense attorneys may be positioning themselves to argue that the report falls under free speech protections.

The defamation lawsuit is being brought against David Hoffman, his law firm, and APA, by retired Colonels and psychologists Morgan Banks, Debra Dunivin and Larry James, and also two psychologists who are former employees of the APA, Drs. Stephen Behnke and Russ Newman. The lawsuit alleges reckless disregard for the truth and false statements in a 2015 Hoffman Report.

In December, defense attorneys filed a motion seeking the Court to compel arbitration based on the employment agreements of Drs. Behnke and Newman with APA. Hoffman’s law firm, Sidney, also filed a request that Behnke and Newman arbitrate the dispute with Hoffman’s firm.

In both Ohio and D.C., the defendants filed motions asking for dismissal based on free speech protection laws, called Anti-SLAPP laws. “SLAPP” or “strategic lawsuit against public participation” are lawsuits without merit which are aimed to intimidate or silence free speech, according to the Public Participation Project.

The defense wrote, “Here, APA’s publication of the Report constitutes an ‘[a]ct in furtherance of the right of advocacy on issues of public interest.’ Id. § 16-5501(1). The publication of the Report is a ‘written . . . statement’ that APA allegedly made ‘[i]n a place open to the public or a public forum.’”

The motion to dismiss also says that the Plaintiffs are public officials or limitedpurpose public figures, calling for the higher standard of not only false statements but of the level of “actual malice,” to be met.

The Plaintiffs filed a Motion for Discovery, saying that they are entitled to limited discovery and that the Plaintiffs are private citizens and plaintiffs should not have to show “actual malice.” AntiSLAPP laws narrow discovery provisions.

The Plaintiffs’ attorneys say that the report was given to James Risen, a New York Times reporter, prior to review and publication, and these actions are evidence of actual malice, said the attorneys.

Mr. Hoffman was hired by APA in 2014 to review interactions between military psychologists, APA officials, and the Bush administration. Then APA president Dr. Nadine Kaslow sought to resolve ongoing accusations that APA was involved in supporting unethical behavior by military psychologists.

The accusations were voiced by human rights activists and psychologists, and had been outlined in several publications, including a book by New York Times’ journalist, James Risen, Pay Any Price.

Hoffman said that communications of a 2005 APA members’ task force amounted to “collusion” with military psychologists and therefore with the Department of Defense. A media furor commenced following publication of the Report, splashing the issue of “torture” and APA across national news outlets. APA paid Hoffman $4.1 million for the Report, according to sources.

In February 2017 plaintiffs filed the defamation lawsuit in Ohio, alleging how the expansion of the investigation was hidden, how Hoffman over-relied on the accusers and aligned with the accusers’ goals, and that Hoffman failed to consider and follow evidence that contradicted the final conclusions.

The attorneys also allege that APA failed to adequately review the Report, failed to give Plaintiffs an opportunity to respond to allegations, and failed to respond to evidence of the mistakes and errors in the Report.

The Complaint states, “The false light in which the Plaintiffs Behnke, Dunivin, and James have been placed would be highly offensive to the reasonable person,” and has caused mental anguish, emotional distress, and “severe personal and professional humiliation and injury to their reputations in the community – reputations they have built over many years.”

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State of Louisiana, BRF, Ochsner Health System, LSU Sign Letters of Intent

Ochsner/LSU Jointly Plan to Operate Health System in Shreveport and Monroe

On December 19, the Governor announced that the State of Louisiana, the Board of Supervisors of Louisiana State University (LSU) on behalf of Louisiana Health Sciences Center Shreveport (LSUHSC-S) and the LSUHSC-S Faculty Group Practice, the Biomedical Research Foundation and Ochsner Health System announced that they have signed Letters of Intent to create a new, long-term, Public Private Partnership agreement in Shreveport and Monroe.
Under the proposed agreement, LSU and Ochsner will jointly form a new University Health System (UHS) structure to coordinate activities between the school and the healthcare delivery system.

“Both Ochsner and LSU are proven partners who are committed to leading the advancement of healthcare in our state,” said Governor John Bel Edwards. “LSU has significant strengths in medical education and research while Ochsner, also committed to academics and research, has tremendous expertise in operating hospitals and supporting the clinical activity of large physician groups. Working together, in a more integrated fashion, we plan to successfully deliver quality, cost-effective patient care in an environment that is optimal for the continued teaching and training of our state’s future doctors and healthcare professionals.”

The UHS structure under consideration would be governed by a new UHS board of directors made up of Ochsner, LSU and community board members from Shreveport and Monroe and in addition a Community Advisory Board made up of Shreveport and Monroe community members, and representatives from Ochsner, LSU and BRF to provide insight into the healthcare needs of the greater Shreveport and Monroe region.

 

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