Category Archives: News Stories

Governor Signing Bills Into Laws

The Office of the Governor has been announcing a steady stream of measures being signed into law by Gov. Edwards.

Included in the recent list is the Zero Suicide bill, which authorizes the Louisiana Department of Health to create a program that helps healthcare professionals to prevent suicide. He also signed Act 43, which expands the substance abuse probation program to include treatment for mental health and Act 251 which creates a pretrial diversion program for veterans diagnosed with posttraumatic stress disorder. Act 352 provides for oral and telephonic orders of protections under exceptional circumstances and Act 480 prohibits state agencies from contracting with lobbyists.

Following are some of the measures the Governor signed into law in May:

ACT 38 – SB 275 Authorizes individuals to indicate that part of their refund go to the La. Coalition Against Domestic Violence for education of women who are victims of domestic violence.

ACT 103 – HB 711 Moves the Louisiana Council on the Social Status of Black Men and Boys, to the office of the governor, and changes the name to the La. Council on the Success of Black Men and Boys, which is to be the leading entity that provides and promotes an environment that is conducive to prosperity, success, and excellence for all black men and boys in the state.

ACT 152 – SB 284 Amends the present law regarding Disaster and Emergency Medical Services Committee of the Louisiana State Medical Society, by removing some references to the Medical Society and the Society’s approval of Rules.

ACT 193 – HB 145 Provides limitations on diagnosing of the disorder commonly known as “Munchausen syndrome by proxy”, and on initiation of child welfare proceedings.

ACT 227 – SB 24 Provides relative to social work practice. New law provides that a faculty member who has obtained a master’s degree or license in a field other than social work and who teaches a course in a social work program other than a clinical course, a clinical practicum, or any other course involving the scope of practice of social work at an accredited Louisiana institution of higher education shall not be construed as practicing social work or subject to the licensing of a social worker.

ACT 236 – SB 199 Creates the Advisory Council on Historically Black Colleges and Universities.

ACT 251 – SB 548 Creates a pretrial diversion program for veterans diagnosed with posttraumatic stress disorder. In addition to any existing pretrial diversion program, the district attorney for each judicial district, alone or in conjunction with the district attorney of an adjacent judicial district, may create and administer a special pretrial diversion program for defendants who meet requirements.

ACT 263 – HB 79 Creates the crime of abuse of persons with infirmities through electronic means and provides for criminal penalties and exceptions. The crime is where a person transfers an image that was obtained by any camera, videotape, or other device, of any person with an infirmity. “Person with an infirmity” means a person who suffers from a mental or physical disability, including those associated with advanced age, which renders the person incapable of adequately providing for his personal care.

ACT 270 – HB 524 Requires policies prohibiting sexual harassment and annual training on preventing sexual harassment for public officers and employees.

ACT 271 – HB 735 Establishes a workforce training pilot initiative to serve public assistance recipients in certain regions. Proposed law requires the executive director
of the La. Workforce Commission, the secretary of the Dept. of Children and Family Services, the secretary of the La. Dept. of Health, the state superintendent of education, and the president of
the La. Community and Technical College System, referred to collectively in proposed law as the “state partners”, to collaborate to design and implement a workforce training and education pilot initiative for public assistance recipients.

ACT 273 – HB 394 Establishes the Post-Conviction Veterans Mentor Program and the
procedures by which a veteran is determined to be eligible for the program and the procedures for the veteran’s participation in the program.

ACT 281 – HB 775 Provides relative to the reimbursement of healthcare providers. Provides for payment to a new provider in a contracted network of healthcare providers and authorizes recovery of certain amounts upon denial of an application for credentialing.

ACT 290 – HB 875 Provides relative to health insurance network provider directories. Requires the posting and regular updating of a directory of a health insurance issuer’s network of providers. Requires the directory to be both electronically searchable by
name, specialty, and location and publicly accessible without necessity of providing a password, a user name, or personally identifiable information.

ACT 320 – HB 466 Provides relative to court-appointed special advocates. Grants authority to court appointed special advocate program (CASA) volunteers to access a child’s home and to attend all administrative review hearings and family team meetings related to the case, and provides for the screening of CASA staff members or members of the board of directors.

ACT 324 – HB 539 Provides for an expedited licensing process and associated fees for facilities and providers licensed by the La. Department of Health, including Adult day health care facility; home health agency; hospice; hospital; intermediate care facility for people with developmental disabilities; psychiatric residential treatment facility; therapeutic group home; crisis receiving center; home- and community based service provider; adult residential care provider.

ACT 352 – SB 72 Provides relative to the execution of an order for protective custody and examination. New law provides that a coroner or his staff may apply to the court for an order of protective custody that allows law enforcement to use forced entry to gain access into premises when executing an order of protective custody. New law provides for accompanying documents for an order for protective custody and provides for both oral and telephonic orders of protections under exceptional circumstances.

ACT 353 – SB 99 Extends legislative authority for the Louisiana Behavior Analyst Board. New law changes the year of termination from 2018 to 2028.

ACT 354 – SB 101 Creates the Louisiana Sexual Assault Oversight Commission. New law replaces the current task force with the La. Sexual Assault Oversight Commission (the commission) within the office of the attorney general to develop recommendations for a standardized sexual assault collection kit and protocols for forensic medical examinations to be used statewide.

ACT 359 – SB 147 Provides relative to a defamation claim brought by an alleged
perpetrator of sexual misconduct against the alleged victim. New law provides that a court shall stay proceedings in cases of defamation of character, libel, slander, or damage to reputation brought by an alleged perpetrator of sexual misconduct against the alleged victim. Further provides that the stay shall remain until the completion of all investigations, hearings, or proceedings relating to the allegations of sexual misconduct.

ACT 361 – SB 166 Requires the National Human Trafficking Resource Center hotline information to be posted in additional locations.

ACT 375 – SB 306 Provides relative to Assistive Outpatient Treatment. New laws outlines matters for involuntary outpatient treatment, including: The court shall not order involuntary outpatient treatment unless an examining physician, psychiatric mental health nurse
practitioner, or psychologist develops and provides to the court a proposed written treatment plan, which specifies a provider that has agreed to provide services.

ACT 392 – SB 558 Provides relative to incarcerated women. Requires wardens or sheriffs of a correctional facility to make certain healthcare products available, in housing units and in the medical area, to all women incarcerated in a correctional facility at no cost and in a quantity that is appropriate to the needs of the woman without a medical permit.

ACT 402 – SB 66 Provides relative to admission to treatment facility for mental
illness pursuant to emergency certificate. New law retains prior law but requires physicians executing an emergency certificate to be licensed or permitted by the La. State Board of Medical Examiners.

ACT 409 – SB 207 Extends and provides for the Louisiana Obesity Prevention and
Management Commission.

ACT 412 – SB 291 Provides relative to family violence and domestic abuse as factors to consider in determining visitation and custody. New law retains prior law and provides relative to restriction on visitations for a parent who has subjected a child, stepchild or other household member to a history of family violence or has willingly permitted abuse to his or her children or stepchildren despite the ability to prevent it.

ACT 424 – HB 198 Provides relative to distribution of funding from the Traumatic Head and Spinal Cord Injury Trust Fund. Requires that the Traumatic Head and Spinal Cord Injury Trust Fund is used as a fund of last resort following the exhaustion of Medicare and Medicaid funding.

ACT 431 – HB 440 Expands DPS&C’s substance abuse probation program to include treatment for mental health issues. The program shall provide substance abuse counseling and treatment for defendants, and develop contracts with local governmental entities or the office of behavioral health, training facilities, and service providers.

ACT 450 – HB 148 Provides for implementation of the zero suicide initiative and a state suicide prevention plan. The initiative requires the office of behavioral health to ensure that administrators of all healthcare facilities licensed by LDH and that all healthcare professionals licensed by any Louisiana board or commission have ready access to informational resources and technical assistance necessary for implementation of the zero suicide initiative.

ACT 454 – HB 189 Provides for processes, including public comment, to identify agency rules that may be contrary to law, outdated, unnecessary, overly complex, or burdensome.
Prior law allows any interested person to petition an agency regarding a rule. New law requires the agency to conduct a public hearing for the purpose of comments and to consider fully all submissions.

ACT 458 – HB 488 The mandatory reporting of crimes of sexual abuse of a minor will include female genital mutilation.

ACT 475 – SB 528 Provides relative to physician assistants. New law increases
number of physicians’ assistants that a supervising MD may supervise from four to eight. Physician assistants may apply for prescriptive authority if he/she has 500 hours of clinical training and meets other requirements.

ACT 480 – SB 25 Provides relative to prohibited conduct by state employees and agencies. New law prohibits state government employees from contracting with lobbyists or for lobbying services by use of a contract, memorandum of understanding, cooperative endeavor agreement, or other similar agreement.

ACT 489 – SB 507 In Medicaid managed care organizations, among other requirements, each MCO is to be responsible for ensuring that any provider it contracts with has attained and satisfies all Medicaid provider accreditation requirements and all other applicable state or federal requirements in order to receive reimbursement for providing services to
Medicaid recipients.

ACT 495 – HB 474 Requires additional training for peace officers in domestic violence awareness, including Dynamics of domestic violence, Predominant aggressor determination, communication with hearing impaired, and other topics.

No Deal: Special Session Ends

“Usually the day after session is a day of relaxation after a long few months of hard work and a little late night celebration,” said Keli Williams, with Ourso Consulting.

“Last night was a late night, but there was no celebration. With the last 30 minutes of the special session, which had to end at midnight, the House began taking up the budget bill, HB 1, and the revenue bills, HB 12 and HB 27.”

This special session was the second session and the sixth financial session in the last two years, attempting to deal with the state’s budget crisis when more than $1 billion in taxes are scheduled to expire on June 30. The earlier special session floundered after the house repeatedly rejected increased taxes. At the same time, dramatic cuts in health care services and what the Governor called “could face a catastrophic cut” to higher education had been threatening.

This week the House approved HB 1 but it makes dramatic cuts to TOPS, universities and state agencies, and is similar to the budget that the Governor previously vetoed, explained Williams to the Times.

But the deal collapsed when lawmakers failed to take up the two revenue bills that would have filled the gaps, something the Governor put forth in his hoped for compromise plan.

“HB 12 and HB 27 were both sales tax measures that would have increased the sales tax by 1/2 to 1/3 penny, respectfully, and cleaned some exemptions from the remaining pennies,” said Williams.

“Neither bill was able to gain enough support to pass before midnight,” she said. “With two minutes left, HB 12 was brought up for reconsideration. Rep. Seabaugh went to the microphone to oppose the bill for the purposes of running out the clock, per his own statement at the microphone. A second vote on HB 12 was not taken as time expired.”

As of publication there is no news yet about another special session.

This past weekend the Senate Finance Committee put forth a measure that would begin in July and would cover over $500 million of the state’s $600 million problem.

This is more than the house wanted to cover but not the entire amount that was asked for by Gov. Edwards.

In a May 25 statement Gov. Edward said, “We have a very short window left to fix the fiscal cliff and fund our critical priorities. Right now, the Senate is waiting on bills to come from the House and, with the clock ticking, any day not spent solving this crisis is simply unacceptable to the people of Louisiana. I am here and ready to work, and I’d hoped that the House would do the same. While I’m disappointed that we haven’t made more progress to close the budget gap, the fact that a majority of both the Republican and Democratic caucus members supported renewing a portion of the expiring revenue gives me hope that we can come to an agreement very soon.”

The Republican delegation responded On May 29, “Yesterday, the House of Representatives passed the Republican Spending Reduction Plan that makes sure our critical services like nursing homes and hospitals are funded by renewing one-third of the one-cent sales tax and requires government to reduce it’s spending by 1.3%.”

“The basis for our compromise is that government reduce its spending. Asking state government to cut its spending by 1.3% is not unreasonable. We simply cannot continue to grow the size of government while Louisiana’s GDP is shrinking, businesses are leaving and our population is falling. Again, asking government to reduce its spending by 1.3% is not unreasonable, it’s the most responsible thing we can do.”

In Gov. Edwards’ 2018 Second Special Session opening remarks he said, “The House of Representatives and the Senate passed wildly differing budgets. One completely decimated health care in Louisiana, the other funded health care but decimated higher education and other critical state services like education and public safety, while ignoring that a nearly 25 percent cut to our state agencies would leave thousands of our fellow Louisianans out of work and our agencies unable to do their work.” He asked them to do better.

ASPPB Presents Their Reasoning for EPPP2 At Psychology Board

Steven DeMers, EdD, Chief Executive officer of the Association of State and Provincial Psychology Boards (ASPPB), spoke as a guest at the regular meeting of the Louisiana State Board of Examiners of Psychologists, held Friday, April 20, 2018 at the public library in Baton Rouge.

Along with board members, Drs. Kim VanGeffen, Marc Zimmerman, Alan Coulter and Greg Gormanous also attended the public meeting and ASPPB presentation. Concerns about price, validity and need for the test, were reported by several of those attending.

Dr. DeMers presented information on the expansion of the licensing exam, the Examination for the Professional Practice in Psychology (EPPP) a topic that has garnered criticism from various directions.

ASPPB had announced in late 2017 that its previous plan for an optional, “Step 2” section to the national exam for psychologists was no longer going to be optional. The additional test would now be mandatory and the price will go from the current $600 to $1200.

Kim VanGeffen, Past-President of Louisiana Psychological Association (LPA) and currently Director and Chair of the Professional Affairs Committee for LPA, attended the presentation. She said that Dr. DeMers and others are travelling around the country with their slide show and that, if there were concerns expressed or if problems arise with the beta testing, they might postpone the implementation of this new test.

“Dr. DeMers acknowledged that, currently,” VanGeffen told the Times, “there is not really any research on the validity of the EPPP2, “The EPPP2 committee believes that this exam has face validity and content validity,” she said. “They are satisfied that these types of validity are acceptable for the EPPP2. There do not seem to be any plans to obtain predictive validity nor does the EPPP2 committee believe that establishing this type of validity is necessary,” VanGeffen said.

“I was most impressed with how everyone in attendance who asked questions or offered comments is opposed to this exam due to its cost, concerns about its necessity, and concerns about its validity.”

Asked what if anything concerned her, VanGeffen said, “I am concerned that the EPPP2 will be forced on states. As it stands now, states will be required to use both parts or will not be able to use any of the EPPP. Concern was also expressed that ASPPB has an agenda to eliminate the post doctoral supervision year and oral exams which are required for licensure in some states,” she said.

“ASPPB is planning to do a study to compare how people score on the second part of the EPPP when it is taken prior to the post doctoral supervision year with those people who take the exam after the post doctoral supervision year,” Dr. VanGeffen said. “ASPPB believes that if there is no difference in scores on the EPPP2 whether you take it before or after your post doctoral supervision year, it will bolster their case that the additional year of supervision is not needed.”

““There is, however, another way to view such a potential finding,” she said. “That is, if there is no difference in scores from the two groups, the EPPP2 may not really be assessing competence. It would also seem that ASPPB might better convince states that the EPPP2 is truly assessing competence by doing research comparing test performance of beginning psychologists with psychologists five years out and ten years out in practice.”

Dr. Alan Coulter also attended the public meeting. He said that the LSBEP members appeared skeptical about Louisiana’s need to adopt these changes in order to ensure quality of psychologists serving the public.

“LSBEP members,” he noted, “expressed a need for substantial evidence from ASPPB that any additions to the current examination would add significant value to the state board’s current methodology for determining the fitness of candidates for licensure.”

Dr. VanGeffen echoed this, “Another concern is that the current EPPP may not be of much validity. There is data that the further out someone gets from their graduate school coursework the less likely they are to pass the current EPPP,” she said.

Dr. Marc Zimmermann, past LSBEP board member and Chair of the LPA Medical Psychology Committee, said, “I think the idea of measuring a professional’s skills before turning him/her lose on the public is a good idea. I do not think this attempt hits the mark,” he said. “When the Board does oral examinations we come closer to this by allowing the person to provide reasoning for their projected behaviors.”

“He [Dr. DeMers] stated that there is no predictive validity,” said Zimmermann. “He also threw in that none of the national tests had predictive validity. He reported that content validity was the accepted standard because a test with predictive validity could not be constructed.”

“It seemed to me that it was a c.y.a. and sales effort. He [Dr. DeMers] addressed the questions of why they changed from an optional second part of the EPPP to a mandatory component,” Dr. Zimmermann said.

“He did not say it, but reading between the lines, I think there was resistance to the second part and this is how they plan to implement their will. He said several times that they were just a vendor, but they have put themselves in the position of being the only vendor.”

Through 2016 and 2017 objections to the EPPP Step 2 mounted, mostly from student and early career psychologist organizations.

Last year in Louisiana, Dr. Amy Henke, then a Director on the Executive Council of the Louisiana Psychological Association and Co-Chair of the LPA Early Career Psychologists Committee, put forth a Resolution to oppose the Step 2 for Louisiana, which passed unanimously. Dr. Henke is now serving on the state psychology board.

Objections, from Henke and others, involve technical and scientific issues, but also the criticism that there is no problem that needs to be solved. “There is no evidence that the public is facing some sort of previously unheard of crisis in terms of safety from currently practicing psychologists,” said Dr. Amy Henke for an earlier interview.

Asked why ASPPB came to Louisiana Dr. Zimmermann said, “I think they are on a sales tour and hitting the states that are the squeakiest wheels.”

What impressed him most about the presentation? “That DeMers had the temerity to try to sell us something that does not meet the standard that psychological tests being published are expected to have,” said Dr. Zimmermann.

Appeals Court Reverses Judge Caldwell’s “Reeks” Decision in Cerwonka–LSBEP Dispute

On April 11 the State of Louisiana First Circuit Court of Appeal, reversed Judge Michael Caldwell’s decision that the state psychology board violated Dr. Eric Cerwonka’s rights when the board used attorneys from the same law firm, and when the board’s prosecuting attorney had been previously involved with Cerwonka in a child custody case and fee dispute.

The Appeals Court reversed Caldwell, and sent the matter back to the district court for further proceedings. Costs of the appeal are to be paid by Cerwonka.

Following a January 2017 hearing the Louisiana State Board of Examiners of Psychologists revoked Dr. Cerwonka’s license. He then sought a review in the 19th Judicial District Court. Presiding Judge Mike Caldwell stopped the review and vacated the board’s decision saying that the process “reeked” with due process violations.

Judge Caldwell said that allowing Lloyd Lunceford, a member of the same law firm as the Board’s general counsel, to serve as presiding officer for the administrative proceeding; and allowing James ‘Jim’ Raines, who represented Dr. Cerwonka in a prior child custody matter, which also resulted in a fee dispute, to serve as the Board’s prosecuting attorney, violated Cerwonka’s rights to a fair hearing.

The Appeals Court disagreed. They reviewed the record of the January 2017 hearing and said that despite Ms. Amy Lowe and Mr. Lunceford being from the same law firm, this alone does not constitute a violation.

They cited a U.S. Supreme Court ruling (Withrow v. Larkin, 1975) noting the constitutional framework for analyzing issues involving the combination of investigative and adjudicative functions in state and federal administrative proceedings.

In a case involving a physician’s disciplinary hearing in Wisconsin, the Appeal judges wrote, “Supreme Court recognized that a fair trial in a fair tribunal is a basic requirement of due process and that this requirement applies to administrative agencies which adjudicate, as well as to courts.”

“The Supreme Court went on to state that “[n]ot only is a biased decisionmaker constitutionally unacceptable but ‘our system of law has always endeavored to prevent even the probability of unfairness.”‘

However, the Supreme Court implicitly rejected that structural argument and held that the “combination of investigative and adjudicative functions does not, without more, constitute a due process violation.”

The Appeal judges wrote that the prevailing view is that a party basing a procedural due process claim on an impermissible combination of functions argument must demonstrate that the risk of actual bias is intolerably high, not merely that a combination of functions exists.

After reviewing the record of the hearing, the Appeals court found no evidence that Ms. Lowe had interjected herself unfairly in the proceedings. She did not prosecute or defend, or crossexamine any witnesses. The presiding officer Mr. Lunceford did not decide the merits of the allegations, and while he did rule on the admissibility of evidence, the Court did not see in its review of the record any evidence of unfairness to raise issues of due process.

Regarding Mr. Raines, Judge Caldwell agreed with Dr. Cerwonka’s view that Mr. Raines’ not recusing himself constitutes a due process violation. The Appeals Court disagreed.

The Board’s pleadings note that the issue was first raised during the course of the administrative proceeding, when Dr. Cerwonka argued that Mr. Raines should be recused because he was not impartial as required by LSAC.Cr.P. art. 680. The Appeals Court wrote that the article 680 “provides that a district attorney must be recused when he has a personal interest in the case, is related to the party accused or the party injured, or has been employed or consulted in the case as an attorney for the defendant before his election as district attorney.”

“However, we note that LSAC.Cr.P. art. 680 applies to district attorneys in criminal cases. By contrast, the Administrative Procedure Act applies to the underlying administrative proceeding. It requires only that the adjudicator be impartial and neutral.”

The Appeals Court wrote that Mr. Raines is not required to be a neutral party but an advocate, who has developed the “will to win.”

They wrote, “Dr. Cerwonka contended that Mr. Raines should have been recused because he represented Dr. Cerwonka in a prior custody case in 2006 in which a subsequent fee dispute arose between Raines’ firm and Dr. Cerwonka. Mr. Raines admitted that as a second year associate, he worked under the partner of his law firm and was one of two attorneys who represented Dr. Cerwonka over ten years prior to the initiation of the underlying administrative proceeding. That representation pertained to a custody judgment rendered against Dr. Cerwonka, which was wholly unrelated to the licensing dispute before the Board.”

“Rule 1.9 of the Louisiana Rules of Professional Conduct prohibits an attorney from representing a person or entity that is adverse to a former client in the same or substantially related matter.”

However, the Court said, “Here, there is no possibility that the issues involved in a child custody matter or a collections matter could be considered substantially related to the licensing issue before the Board.

However, Dr. Cerwonka asserts that Mr. Raines used information he possessed from his prior representation against Dr. Cerwonka in the underlying proceeding and that documents from the domestic litigation were used at the examiner’s hearing. Dr. Cerwonka has cited nothing in the record to support these assertions.”

Several Bills Focus on Occupational Regulation

A number of bills are being reviewed by lawmakers that concern the occupational boards, regulations, supervision, and other matters.

Representative Julie Emerson’s bill to review and control occupational licenses was adopted on the House floor and is now HB 748. The bill was heard in committee and reported by substitute in a 14 to 0 favorable vote. It is scheduled for floor debate on April 5.

The proposed law creates the office of supervision of occupational boards “office” within the office of the governor. According to the digest, the measure causes a review of occupational licenses and reports to the legislature and attorney general so to recommend the legislature enact legislation that may do any of the following: (a) Repeal occupational regulations; (b) Convert the occupational regulations to less restrictive regulations as defined in R.S. 37:42; (c) Instruct the relevant licensing board or agency to promulgate revised regulations reflecting the legislature’s decision to use a less restrictive regulation. One aim is to increase economic opportunities, promote competition, and encourage innovation.

SB 494 is pending and would establish the Occupational Licensing Review Act. The measure is proposed by Senator Thompson and similar to HB 748. The proposal creates the office of supervision of occupational boards with the office of the governor and provides for repeal of occupational regulations and less restrictive regulations, similar to HB 748. Proposed law provides for interpretation of statutes and rules Proposed law provides for interpretation of statutes and rules so that occupational regulations shall be construed and applied to increase economic opportunities, promote competition, and encourage innovation; that any ambiguities in occupational regulations shall be construed in favor of working licensees, aspiring licensees, and persons aspiring to work in regulated occupations, and that the scope of practice in occupational regulations is to be construed narrowly so as to avoid its application to
individuals who would be burdened by regulatory requirements that are only partially related to the goods and services they provide.

Senator Fred Mills’ bill to restructure health care boards remains pending in the Senate Health and Welfare Committee.

He 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.

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.

Representative Connick has put forth HB 372 aimed to also address aspects of the anti-trust matters surfaced by a 2015 Supreme Court decision.

The measure would create the Occupational Board Compliance Act. Policies provided in proposed law, are intended to ensure that occupational licensing boards and board members will avoid liability under federal antitrust laws. If passed the law would create the Occupational Licensing Review Commission to be composed of the governor, the secretary of state, and the attorney general or his respective designee. Establishes the governor as the chairman of the commission and the secretary of state as the secretary.

HB 372 would establish the commission’s responsibility for active supervision of state executive branch occupational licensing boards controlled by active market participants to ensure compliance with state policy in the adoption of occupational regulations promulgated by an occupational licensing board, according to the digest.

The present law provides for licensing of behavioral health services providers by the Louisiana Department of Health. The proposed law adds definitions for certified mental health professionals, community psychiatric supportive treatment (CPST), mental health rehabilitation, and psychosocial rehabilitation (PSR) to the definition provisions of present law.

If passed the law would be named the “Behavioral Health Services Provider Licensing Reform Law.” At this point is would focus on qualifications for providers for CPST and PSR for Medicaid reimbursement.

“Proposed law provides that only a certified mental health professional or an individual who is not certified, but who met present law criteria for providing PSR services and did so on a full time basis for a year prior to August 1, 2017, may provide PSR services and be reimbursed by the department for providing the services.

“Proposed law provides that CPST shall be provided by a certified mental health professional with a master’s or doctorate in counseling, social work, or psychology from an accredited university or college.

“Proposed law provides that in order to receive Medicaid reimbursement for CPST or PSR services, the provider agency, certified mental health professional, or other individuals allowed by law, shall have a national provider identification number, be fully accredited by a nationally recognized accrediting organization, be licensed by the department, and be credentialed by the Medicaid managed care organization in which the provider intends to submit claims for services.”

CPST is a face-to-face intervention with the individual present. A minimum of fifty-one percent of CPST contacts must occur in community locations where the person lives, works, attends school, or socializes. “Mental health rehabilitation” means outpatient behavioral health services which are medically necessary to reduce the disability. These services are home- and communitybased and are provided on an as-needed basis. PSR is designed to assist the individual with compensating for or eliminating functional deficits and interpersonal or environmental barriers associated with mental illness.

Suicide Prevention Act Passes House Vote

HB 148 by Representative Reid Falconer, the “Louisiana Suicide Prevention Act,” was reported favorably in a 9 to 0 vote out of committee on March 22 and passed the House this week in an 85 to 0 vote.

The initiative requires the office of behavioral health to ensure that administrators of all healthcare facilities licensed by LDH and that all healthcare professionals licensed by any Louisiana board or commission have ready access to informational resources and technical assistance necessary for implementation of the zero suicide initiative.

The office of behavioral health is to examine and coordinate the use of existing data to identify priority groups of patients, improve the quality of care for persons who are suicidal, and provide a basis for measuring progress in the ongoing operation of the zero suicide initiative.

According to the Legislative Fiscal Office, the proposed law will increase SGF expenditures for the LA Dept. of Health, Office of Behavioral Health by an indeterminable amount. Cost estimates provided by OBH indicate that expenditures are anticipated to total approximately $748,950 in FY 19 with a phaseup of to approximately $792,900 in FY 20 before leveling off at approximately $790,000 in FY 22 and in subsequent years.

OBH reports a need for 2 positions for expanded personnel associated with the initiative. The 2 positions contemplated are a program manager ($123,617 salary and related benefits annually) and a program monitor ($108,015 salary and related benefits annually) for annual total costs of approximately $232,000. Personnel expenditures will be prorated for 9 months in FY 19, which will total $174,000. A majority of the projected recurring expenditure increases ($438,000), will be undertaken by the Human Services Districts and Authorities that will implement the initiative at the local level statewide via interagency transfers from OBH, reported the Fiscal Office.

If passed, the proposal will require a “State Suicide Prevention Plan” to be created and office of behavioral health shall collaborate with criminal justice and health systems, including mental health and behavioral health systems, primary care providers, physical and mental health clinics in educational institutions, colleges and universities, community mental health centers, advocacy groups, emergency medical services professionals, public and private insurers, hospital chaplains, and faith-based organizations to develop and implement all of the following, which shall be included as elements within the state suicide prevention plan.

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.

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.

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.

“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.”

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.

 

APA Finds Political Stress Significant

The American Psychological Association (APA) conducted its annual “Stress in America” survey to examine how Americans feel and how much stress they are experiencing and why.

Of those surveyed, 63% said that the future of the nation is a significant source of stress, 62% indicated that money stresses are significant, and 61% said that work was a significant source of stress, according to the news release.

APA has conducted the annual survey for more than a decade, and money and work
have consistently topped the list of stressors. In 2017, however, after adding a question with a list of additional stressors, the survey revealed a common new source of significant stress: the future of our nation. While the public’s overall stress level remains the same, on average,
compared to last year, Americans are more likely to report symptoms of stress, which include anxiety, anger and fatigue, said the announcement.

The survey was conducted by Harris Poll on behalf of APA.

The full report is available at http://www.apa.org/news/press/releases/stress/index.aspx

The APA Help Center also includes: 10 tips for dealing with the stress of uncertainty and Managing conversations when you disagree politically.

Data was weighted to reflect proportions in the population. The online survey included 2,047 women, 1,376 men with political affiliations of 1,454 Democrats, 698 Republicans, and 672
Independents.

Race of the respondents was 1,088 White, 810 Hispanic, 808 Black, 506 Asian and 206 Native American adults.

About a third (1,122) fell at or below 200 percent of the federal poverty level and 2,087 were above.

Parents made up 1,182 and those without children were 2,258.

Data was collected online. Because the sample is based on those who were invited and agreed to participate in the Harris Poll online research panel, no estimates of theoretical sampling error can be determined.

Gov Edwards Meets with President Trump to Address Opioid Crisis

Gov. John Bel Edwards and Dr. Rebekah Gee, secretary of LDH, attended a listening session at
the White House with President Trump on October 26 to discuss the growing opioid crisis. Also participating were Governors Bill Walker from Alaska, Chris Christie from New Jersey, Matt Bevin from Kentucky and others.

According to the press release, Gov. Edwards also met privately with Acting Drug Czar Richard
Baum to discuss drug and addiction trends in Louisiana, Gov. Edwards’ priorities related to
drug use, and opportunities to collaborate with the White House in the future.

Edwards praised a decision by Trump to declare the opioid crisis a national public health emergency. President Trump indicated that he intended to file a lawsuit against opioid
manufacturers for their role in escalating the national crisis. In September, Gov. Edwards and
the Louisiana Department of Health (LDH) filed a similar lawsuit.

“I appreciate President Trump’s commitment to this issue,” said Gov. Edwards. “This problem has escalated in Louisiana at a rapid pace, and we are taking action to combat the opioid crisis. The president’s declaration will put more tools at our disposal, and will allow us to help more Louisianans who’ve fallen victim to opioid abuse. This is going to take time, and my  administration and I are committed to working with the Trump Administration to provide assistance to as many people as we can.”

According to the White House, declaring a public health emergency will mobilize additional federal resources, including:

• Allowing for expanded access to telemedicine services, including services involving remote
prescribing of medicine commonly used for substance abuse or mental health treatment,

• Helping overcome bureaucratic delays and inefficiencies in the hiring process, by allowing the Department of Health and Human Services to more quickly make temporary appointments of specialists with the tools and talent needed to respond effectively to our Nation’s ongoing public health emergency,

• Allowing the Department of Labor to issue dislocated worker grants to help workers who have been displaced from the workforce because of the opioid crisis, subject to available funding, and

• Allowing for shifting of resources within HIV/AIDS programs to help people eligible for those
programs receive substance abuse treatment, which is important given the connection
between HIV transmission and substance abuse.

Gov. Edwards Makes Several Board Appointments in Oct

Gov. Edwards announced in October that he reappointed Kathryn A. Steele, Ph.D., of
Metairie, to the Louisiana Licensed Professional Counselors Board of Examiners. Steele is a
licensed professional counselor, licensed marriage and family therapist, and professor of counseling at New Orleans Baptist Theological Seminary. Dr. Steele was nominated by the
Louisiana Association for Marriage and Family Therapy and will serve as a licensed
marriage and family therapist on the board.

The Louisiana Licensed Professional Counselors Board of Examiners is responsible for the regulation of Provisional Licensed Professional Counselors or PLPCs (formerly Counselor
Interns), Provisional Licensed Marriage and Family Therapists or PLMFTs (formerly MFT Interns), Licensed Professional Counselors or LPCs, and Licensed Marriage and Family Therapists or LMFTs.

The Governor also reappointed Paul M. Schoen, of Covington, to the Addictive Disorder Regulatory Authority. Schoen is a licensed addiction counselor and certified compulsive gambling counselor in private practice. Additionally, he is a veteran of the United States Navy
Reserve. He was nominated by the Louisiana Association of Substance Abuse Counselors and Trainers, Inc., and will serve as a member with significant experience and knowledge in the area of compulsive gambling.

Gov. Edwards also appointed Kerri L. Cunningham, of Lafayette, to the Addictive Disorder Regulatory Authority. Cunningham is a licensed clinical social worker, licensed addiction counselor, and the Clinical Director of Victory Addiction Recovery Center.

As required by statute, she was nominated by the Louisiana Association of Substance Abuse Counselors and Trainers, Inc.

The Addictive Disorders Regulatory Authority licenses and regulates addictive disorder counselors and prevention professionals in the State of Louisiana.

Also in October Gov. Edwards appointed Antoinette Q. Bankston, of Baton Rouge, to the Human Trafficking Prevention Commission Advisory Board. Bankston is a licensed clinical social worker and the Executive Director of the Baton Rouge Children’s Advocacy Center. As required by statute, she was nominated by the Louisiana Chapter of the National Association of Social Workers.

The Human Trafficking Prevention Commission Advisory Board provides information and
recommendations from the perspective of advocacy groups, service providers, and trafficking victims to the Human Trafficking Prevention Commission.

Bambi D. Polotzola, of Opelousas, was reappointed to the Louisiana Developmental Disabilities Council. Polotzola is the Director of the Governor’s Office of Disability Affairs and will serve as its representative on the council.

The Louisiana Developmental Disability Council’s mission is to lead and promote advocacy, capacity building, and systemic change to improve the quality of life for individuals with
developmental disabilities and their families.

Louisiana Department of Health Files Suit Against Opioid Manufacturers

On September, the Louisiana Department of Health announced a law suit filed against several leading opioid manufacturers for their role in escalating the opioid crisis in Louisiana. The lawsuit, filed in the 19th Judicial District Court in East Baton Rouge Parish, alleges that the drug
companies engaged in fraudulent marketing regarding the risks and benefits of prescription opioids, which helped fuel Louisiana’s opioid epidemic.

“These drug companies led prescribers to believe that opioids were not addictive and even suggested that treating physicians prescribe greater dosage units to those who had already
become addicted to opioids,” said Gov. John Bel Edwards. “As evident by the hundreds of Louisiana families that have lost loved ones due to this crisis, nothing could be further from the truth. We intend to hold these  pharmaceutical companies responsible for the lasting damage they have caused upon our people and the millions of dollars their wrongful claims have cost our state.”

The Louisiana Department of Health is seeking damages for the amounts it has already paid for excessive opioid prescriptions and treatment costs as a result of those prescriptions.
Louisiana joins dozens of other cities, counties and states that have filed similar lawsuits in response to the alarming number of cases of opioid addition and opioid-related deaths
throughout the country. Lawsuits were also filed last week by local sheriff’s offices in Avoyelles, Lafayette, Jefferson Davis and Rapides Parishes.

“By all means necessary, we are fighting the opioid epidemic in Louisiana. All indicators of this problem – opioid prescriptions, overdoses and deaths – are up. Recognizing that a key
contributor to opioid addiction is prescription medications, where 110 prescriptions for opioids are written for every 100 Louisiana residents, we are addressing a fundamental cause of this
problem,” said Dr. Rebekah Gee, secretary of the Louisiana Department of Health.