Category Archives: News Stories

State to Reinvest Justice Reform Savings to Reduce Recidivism

Gov. Edwards and the Louisiana Department of Public Safety and Corrections (DPS&C) released the first report outlining savings from criminal justice reform measures passed by the legislature in 2017. The savings, according to the report, have exceeded Pew Charitable Trusts’ projections. Savings for fiscal year 2018 totaled $12.2 million, doubling Pew’s original projections of $6.1 million.

“In 2017, Republicans, Democrats and Independents came together to rethink our criminal justice system,” said Gov. Edwards. “We knew what we were doing just wasn’t working and it was costing us more money. By following the lead of other southern, conservative states, we passed a package of 10 bills that will improve public safety and reduce recidivism.”

“This is great news for the state of Louisiana,” said James M. Le Blanc, Secretary, Louisiana Department of Public Safety and Corrections. “Our goal and our mission with criminal justice reform is to reinvest money we would usually pay for incarceration into programs aimed at better preparing our returning citizens and individuals on probation and parole, and to help victims of crime.”

The Justice Reinvestment bills are anticipated to save the state more than $262 million over the next decade, and 70 percent of the savings will be reinvested into programs to reduce recidivism and support victims.

The Department currently intends to use first-year reinvestment funding in support of the following priorities: Increasing programming for state inmates housed at local jails; Enhancing and expanding Regional Reentry Centers; Increasing Probation and Parole staffing and Day Reporting Centers; Launching a Transitional Housing pilot program; Opening a new Reception Center to conduct assessments for new inmates; and Expanding Specialty Courts.

Grants to Community-Based Services: With the goal of ensuring this funding is spent in the most effective and transparent way possible, DPS&C has created a Community Incentive Grant Program and has issued a Request for Proposals (RFP).

The RFP is intended to elicit proposals from qualified community organizations that are interested in enhancing or expanding coordination of reentry services and community supports to increase prison alternatives and reduce recidivism. Funding will be awarded in the fall of 2018.

Grants to Support Victims’ Services: Louisiana Commission on Law Enforcement (LCLE) currently intends to use first-year reinvestment funding in support of the following priorities:

Supplementing the Crime Victims’ Reparations Fund; Establishing a new Family Justice Center in East Baton Rouge Parish; Improving
electronic notifications for victims by developing an electronic system that will interface with all 64 parish clerks of court; and Providing funding to the Louisiana Bureau of Investigations for a dedicated forensics server for their Cybercrimes Unit.

Prior to the passage of the Justice Reinvestment Initiative (JRI) legislation, Louisiana was leading the nation in imprisonment, with a rate nearly double the national average.

Dr. Susan Tucker, psychologist with the DPS&C has been working on programs to reduce incarceration rates. In 2016 legislators pointed to multimillion dollar cost savings to the state because of shorter incarceration times of those offenders who participated in the psychological programs designed and delivered by Tucker and her team at the Bossier Sherriff’s Office, Medium Correctional Facility, located between Benton and Plain Dealing, Louisiana. Dr. Tucker has been working on reducing the rates through her comprehensive, innovative, and evidenced-based programs, to improve lives, families and community safety.

“I am very proud of our program and that we accomplish two goals which save taxpayer money but also provide rehabilitation to the substance abuse incarcerated offenders as well as their families,” Dr. Tucker told the Times.

Governor Appoints Dr. Gormanous to Psychology Board

In a July 10 press release the Governor announced that he appointed Greg Gormanous, PhD, of Alexandria, to the Louisiana State Board of Examiners of Psychologists (LSBEP).

Dr. Gormanous will fill the position opened by Dr. Phillip Griffin, who has completed his term. Vice Chair Dr. Jesse Lambert was elected to theChair at last month’s meeting and Dr. Koren Boggs will serve as Vice Chair.

Dr. Gormanous previously served on the board twice, the first time in 1981 to 1984, and then from 1986 to 1989. He is Professor Emeritus of Psychology, LSU Alexandria, and earned his PhD from the University of Southern Mississippi in General Psychology in 1976. He has been a member of Association of State & Provincial Psychology Boards (ASPPB), the Federation of Associations of Regulatory Boards, the American Psychological Association, the Society for Industrial & Organizational Psychology (APA Div. 14), the Society of Consulting Psychology Louisiana is Heading in Right Economic Direction Says Governor Edwards in July (APA Div. 13), and the Association for Psychological Science. He is also a veteran of the United States Army.

Dr. Gormanous was the sole candidate to selfnominate for the current position and was nominated by the Louisiana Psychological Association.

Dr. Gormanous noted several goals of his service. “My view for regulating psychology in Louisiana is helping the board become more effective and efficient in protecting consumers of psychological services, while simultaneously ensuring due process, irrespective of particular staff, board members, issues and personalities.”

He wants, “To proactively enhance effectiveness, collegiality and transparency with administrative, legislative, media, professional, psychological & public stakeholders in order for the LSBEP to ensure statutorily that consumers have access to qualified providers of psychological services and to ensure enforcement of ethical standards of practice to which providers are required to adhere, with appropriate over sight of the Board’s function by the state of Louisiana.

When applying to serve, he listed six specific issues:

“1. Revising the “complaint” rules, procedures and practices by focusing on two equally important objectives: protecting consumers of psychological services AND ensuring due process for all.

“2. Achieving more effective outcomes for the expenditure of legal fees – presumably underway now.

“3. Staying a pace with changes in education and training. For example, other jurisdictions will be moving toward eligibility for candidates to sit for the EPPP 1 after doctoral course work is completed.

“4. Adjusting to implementation of the competency model (EPPP 1 Knowledge and EPPP 2 Skills) by other jurisdictions and considering what is best for consumers in LA.

“5. Revisiting Generic versus Specialty Credentialing. Does the board stay with its “opportunity for registering…within a limited list of recognized specialties…” or does it implement the health service psychologist (HSP) & general applied psychologist (GAP) categories recognized by APA and ASPPB?

“6. Exploring any ramifications of implementation of the ASPPB’s PEP for LA.”

In a 2010 Times feature article (“Close-Up,” Vol. 2. No. 1.) Dr. Gormanous said that his heart was in teaching.

“Teaching is my drug of choice,” he said “I was one of those people who, in the Ericksonian sense, was late in forming my identity. I wanted to be a college professor. It was English, then math, and then I stumbled across psychology. I realized it was the field where I could discover myself, and discover my need to teach. I love to teach and help develop people, and we have students who want to learn and develop, and so it’s been a perfect fit.”

At that time, Dr. Gormanous has remained involved in his community through efforts with the Alexandria Zoo, Business Incubator, the Rapides Parish Primary Health Care Center, the Syra-Meric Club, and the Alexandria Mardi Gras Association, where he started a new parade – Classic Cars & College Cheerleaders. He also started the Krewe of Kolbi Bow-Wow with the Animal Shelter and the Alexandria Zoo. This is a dog Krewe that advocates for pet adoptions. He has been active with the Chamber of Commerce, Rotary Club of Alexandria, and the Convention and Visitors Bureau.

While his heart might be in teaching, his soul is in the blues. A special project, “Psychology of the Blues,” where he applied psychological principles to songs and singers, and how they have been molded into who they’ve become, has captured his imagination for many years.

“Psychology of the Blues” involves four musicians as he explained–Otis
Redding, Steve Cropper, Grady Gaines, and the great B.B. King.

“I’ve had the privilege of knowing, and sort of informally and unofficially traveling with B.B. King since 1983,” he said. In 1983 Dr. Gormanous attended an event memorializing the slain civil rights leader Medgar Evers. “Charles Evers and B.B. King
wanted to keep the spirit of Medgar alive,” he said.

“BB King and his band played free so that music could be the language to bring people together to overcome racism.” He realized then that music was a vehicle to change the world and it inspired him to be involved.

Louisiana Psychological Assn to Host Evolutionary Psychology Legend, Professor Robert Trivers

Times Magazine listed him as one of the 100 Greatest Thinkers of the 20th Century. Richard Dawkins calls him “A uniquely brilliant scientist.” Science named him “One of the most influential evolutionary theorists alive today.”

Stephen Pinker, Professor of Psychology at Harvard and author of How the Mind Works, said, “I consider
Trivers one of the great thinkers in the history of Western thought. It would not be too much of an exaggeration to say that he has provided a scientific explanation for the human condition: the intricately complicated and endlessly fascinating relationships that bind us to one another.”

He is Professor Robert Trivers, the man who pulled back the curtain on key concepts of evolved preferences, and produced a major redirection in social and evolutionary psychology. He will speak at the Louisiana Psychological Association workshop on November 9, in New Orleans.

In a series of brilliant papers beginning in the 1970s, he laid out the evolutionary logic and foundational theory for major areas of human social interaction. His combining of psychology and evolutionary biology opened the door to a better understanding of the deep connections of love, cooperation, competition and the unconscious conflicts that accompany them.

In 1971, with, “The evolution of reciprocal altruism,” Dr. Trivers put the heart back into the psyche: Being moral, good, and fair, had in fact, evolved right alongside our purely selfish traits.

The model is where “friendship, dislike, moralistic aggression, gratitude, trust, suspicion, trustworthiness, aspects of guilt, and some forms of dishonesty and hypocrisy” could be explained as important adaptations to regulate the reciprocalaltruistic system, sensitive to developmental variables and selected to their specific social environment.

Trivers’ theories inspired a staggering amount of research and discussion with bestsellers like E.O. Wilson’s Sociobiology and Richard Dawkins’ The Selfish Gene, and later books like The Adapted Mind, The Red Queen, Born to Rebel, The Origin of Virtue, The Moral Animal, and Evolution of Desire.

As the explosion of research continued, Trivers wrote that some of the ideas had “…almost biblical proportions.” He said, “… you could see how a kind of social heaven and social hell could evolve right here on earth. The social hell was perpetual isolation, perpetual inability to link up with others in a positive way, never being cheated by others to be sure, but at the cost of eternal loneliness. The social heaven was not heavenly in some naïve way, dancing around the mulberry bush together without regard for selfish possibilities. Instead, cooperation required perpetual vigilance to enjoy its fruits, …’”

Together, Trivers’ work helped explain evolved tendencies in romantic relationships between females and males (“Parental Investment and Sexual Selection”) relationships between parents and children, and between siblings (“Parent-offspring conflict”), and how friends deal with friends, acquaintances and strangers (“The evolution of reciprocal altruism”).

In the 1990s, Trivers took another leap and explained an evolutionary logic of self-deception. (“The crash of Flight 90: Doomed by self-deception?” co-authored with Black Panther leader, Huey P. Newton; and “The elements of a scientific theory of self-deception”).

Dr. Trivers has stated that he “… was eager to contribute to building social theory based on natural selection, because a scientific system of social theory must, by logic be based on natural selection, and getting the foundations correct would have important implications for understanding our own psyches and social systems.”

Today, while psychology includes vast amounts of fascinating data and interesting partial theories, it still lacks a foundational, meta-theory, say evolutionary psychologists William Von Hipple and David Buss. In their survey, the two found that almost 90% of social psychologists accept Darwin’s ideas in general, but only about 50% believe that evolved characteristics apply to the human mind and social tendencies.

Trivers himself wrote that he expected his work would be welcomed––he viewed himself to be “on the side of the angels,” he said. Instead, it was labeled “regressive.”

In the past, evolutionary theory may have seemed harsh, and even to be a theory that gives permission for inequality, something psychologists work against. Von Hipple and Buss point to the mistaken idea of “genetic determinism”––the belief that genetic behavior is fixed, and also to the confusion between evolved preferences and actual behaviors in modern humans, as contributing to discomfort with embracing evolution as a metatheory.

Today, a stronger understanding that the expression of these predispositions is plastic, fluid, varying and context-dependent, has worked its way into psychologists’ thinking, along with the acknowledgement that the discipline cannot ignore important science only because it may at times be uncomfortable.

“But Trivers’ ideas are, if such a thing is possible,” said Pinker in an interview with the Edge, an intellectual think tank, “even more important than the countless experiments and field studies they kicked off. They belong in the category of ideas that are obvious once they are explained, yet eluded great minds for ages; simple enough to be stated in a few words, yet with implications we are only beginning to work out,” Pinker said. This may be the case. Trivers Google Scholar citations, now over 44,500, are continuing to increase. Citations for his 10 major papers are much higher now than they were for the first 30 years after publication.

The Louisiana Psychological Association will host the evolutionary theorist at their winter workshop, to be held Friday, November 9, at the Hotel Monteleone in New Orleans.

The one-day event, “Evolutionary Psychology & Ethics,” will address the scientific foundations of self-interest, reciprocal-altruism, cooperation and deception in human relationships, and the evolutionary logic that predicts this complex psychological terrain.

Dr. Trivers will speak on “Ethics and Social Theory: The Evolution of Reciprocal Altruism,” and then on “The Logic of Deceit and Self-Deception.

“I will define natural selection, the basis social traits, then concentrate on altruism and quickly move to reciprocal,” he said, and explain gross and subtle cheating, sense of justice and other traits.

In “The Logic of Deceit and Self-Deception,” he will start with the co-evolutionary struggle between deceiver and deceived, the intrinsic bias in favor of the deceiver, and the invention of self-deception to facilitate deception.

Also presenting and participating as discussants will be Dr. Jack Palmer, from University of Louisiana Monroe, author of Evolutionary Psychology: The Ultimate Origins of Human Behavior.

Dr. Matthew Rossano, from Southeastern Louisiana University, author of Supernatural Selection: How Religion Evolved, will also present.

Dr. Michael Chafetz, known for his extensive work in malingering research, and Dr. Denise Newman, chair of the Louisiana Psychological Association Psychotherapy Interest Area and a psychoanalytic psychologist, and others.

Brilliant and controversial, Robert Trivers has attracted attention for his immensely original thinking and also for his unconventional activities. He currently lives in Jamaica, which he loves, and where he studies body symmetry in elite runners, and where he recently completed an autobiographical memoir––Wild Life: Adventures of an Evolutionary Biologist.

Registration opens August 10 at louisianapsychologicalassociation.org

Munchausen Syndrome by proxy Act 193 Taps into Complex Issues in Effort to Limit Diagnostic Errors

In the 2018 regular session, House Bill No. 145 placed limitations on who may diagnose the disorder known as “Munchausen Syndrome by proxy,” which is known in the DSM-5 as factitious disorder imposed on another or FDIA. The bill, by Representative Kenny Cox, was signed by the Governor and became Act 193.

Formally known as Munchausen syndrome by proxy (MSP), this condition is a mental illness in which a person acts as if an individual he or she is caring for has a physical or mental illness when the person is not really sick. In some cases, illnesses may be actually produced by the caretaker.

Act 193 directs that no physician or other health care provider shall diagnose the condition of factitious disorder imposed on another (formerly “Munchausen syndrome by proxy”) unless he or she meets certain criteria, such as being licensed, qualified by his or her license and training to diagnose, able to provide a certain level of quality in the evaluation, and other stipulations. The new law indicates that the evaluator must review relevant records, history, current clinical conditions, and obtain records from external sources searches schools, childcare providers, and family.

While these quality controls and expectations are standard for psychological evaluation, Representative Cox’s measure suggests that problems have been encountered in the past in this complex area where teasing out the accuracy of claims and symptoms could require a deeper understanding of illness-deception.

The measure was signed by the governor recently and became law as Act 193. However, the real complexities of the matter may still cause issues for those practitioners who are not highly trained to understand nuances and pitfalls regarding illnessdeception.

Dr. Michael Chafetz, a nationally recognized expert when it comes to malingering in forensic and medical
assessments, points to the complexities in understanding these issues.

“Every practitioner who makes a diagnosis has two potential positive outcomes and two potential errors,” said Chafetz. “If the diagnosis is made and is correct, it is a good thing because the patient has the pathology identified and can get appropriate treatment. If the diagnosis is correctly rejected (because no evidence for the pathology could be adduced), it is a good thing because the patient is spared the wrong treatment for pathology that does not exist.”

“The flip side of the positive outcomes involves the errors that are potentially made,” he said. “If the practitioner makes a diagnosis of a condition that the patient does not have, that is a false-positive error. Everyone involved with the case is now acting on false new information about the patient.

“On the other hand, if the practitioner rejects the diagnosis for a condition that the patient does have, that is a false-negative error,” he explained. “This error can be problematic, as no one involved with the case will get on board with the appropriate interventions.”

In decision-making, there is often a trade-off between false-positive and falsenegative errors, and the importance of not making one or the other depends on the relative merits of the outcomes, he explained. “For example, in cancer screening and bomb detection, a false negative error can be more costly than a false-positive error. TSA certainly does not want to miss a bomb, and the radiologist certainly does not want to miss a possible cancer. These false-positive errors may cause some discomfort, but they sure beat the alternatives!”

In Factitious Disorder Imposed on Another, both kinds of errors have realworld consequences. “If the practitioner makes a false-negative error, missing the parental deceptions, the parent does not get diagnosed, which increases the potential for a child to suffer abuse,” Dr. Chafetz said.

“If the practitioner makes a false-positive misdiagnosis of the parent, that parent may face drastic consequences with the possibility of termination of their parental rights.”

He noted that Factitious disorder (FD), like malingering (M), involves deceptive behaviors. In fact, both FD and M are similar in that they both involve deception of others. Malingering involves deception in a medico-legal setting, whereas FD typically occurs in a medical or psychological setting.

The “by-proxy” or “imposed on another” conditions for both disorders are meant to convey that an individual, usually a caretaker, is creating the deception by use of a person under their care.

Dr. Melissa Dufrene and Chafetz have studied these exact issues, in Chafetz, M.D., & Dufrene, M. (2014). Malingering-by-proxy: Need for child protection and guidance for reporting. Child Abuse & Neglect, 38, 17551765.

Both of the by-proxy or imposed conditions can lead to child abuse, he explained. In their guidance article, Chafetz and Dufrene developed guidelines for reporting.

Dr. Chafetz has also discussed these conditions in a physicianeducation article, Chafetz, M.D. (2018). Factitious Disorder Imposed on Another and Malingering by Proxy: Controversies, Recognition, Responsibilities, and Management. American Physician Institute, CMEtoGo, Volume 7, Issue 2.

It is important to recognize that both conditions, M and FD, involve deception of others. Typically, psychological treatments do not take into account the deception, he said.

While Act 193 may help somewhat to make sure qualified professionals are called upon for these complex issues, there could still be a lot of confusion for those that do not have the tools and methods to evaluate these serious issues.

Lawmakers Finally Make a Budget Deal

After a total of seven special sessions since 2016, and three special sessions this year, Governor Edwards and legislators finally wrestled the budget into some type of order by the passage
of an extra .45 percent sales tax, in down to the wire negotiations that ended last week. The move sidesteps drastic cuts to public health and higher education and provides several years
of stability.

The new tax will raise an estimated $463 million to plug holes in the budget hat if left unresolved, had threatened to bring dramatic cuts in health care services and what the Governor called
“a catastrophic cut” to higher education.

The new sales tax, a partial renewal of an expiring one percent sales tax, is said to give the lawmakers some respite from the yearly battles with the budget. The .45 brings the state sales
tax to 4.45.

“The fiscal cliff is now gone and we have predictability ahead of us,” the Governor said after the agreement passed in this year’s third special session.

In the special sessions lawmakers were attempting to deal with the state’s budget crisis when more than $1 billion in taxes would expire on June 30, 2018. The two earlier special sessions
floundered after the House repeatedly rejected increased taxes. The House passed a budget that made dramatic cuts to TOPs, universities and state agencies, and then that was vetoed by
the Governor.

Allowing the new arrangements, this week Moody’s Investors Service changed Louisiana’s rating to “stable.”

Gov. John Bel Edwards said, “Today’s action by Moody’s validates what we’ve been saying about the need for budget stability,” said Gov. Edwards.

“Thanks to the bipartisan compromise achieved during the last special session, Louisiana is no longer on the negative watch list. By working together, for the first time in a long
time, Louisiana’s budget will have the kind of stability and predictability we need to bring new business opportunities to our state and grow our economy. As a result, not only are the
credit rating agencies taking notice, but we are positioned to generate greater savings for our state that will enable us to continue on our path toward prosperity.”

Consumer Member to be Added to Psychology Board New Legislation Brings Change to State Boards

In his effort that has been ongoing for three years, Senator Fred Mills’ measure was signed into law as Act 515, requiring boards such as the state psychology board to make several changes, including adding a consumer member.

Act 515 transfers the healthcare professional licensing agencies, boards, commissions, and like entities to the La. Department of Health (LDH) and deletes repealed and obsolete citations and references.

The new law adds at least one consumer member to each healthcare professional licensing board that did not previously have one and provides standardized eligibility criteria for such
consumer members.

The new law also requires the governor to ensure that his appointments to healthcare professional licensing boards demonstrate diversity with respect to race, gender, ethnicity, and geography.

New law also authorizes all licensing boards and commissions created and provided for in prior law to develop a process to issue a license, permit, or certificate outside the national
examination for those individuals with a disorder which is recognized by the Americans with Disabilities Act.

An effort to take professional associations out of the direct loop for board nominations was amended out of Senator Mills’ measure.

Some of the intent by Senator Mills’ efforts found its way to Act 623, the Occupational Board Compliance Act, authored by Representative Connick. The goal is to help boards use the least
restrictive regulation necessary, in regard to market competition and other factors, in their efforts to protect consumers from present, significant, and substantiated harms that threaten public health and safety.

Act 623 creates the Occupational Licensing Review Commission, comprised of the governor, secretary of state, commissioner of agriculture, commissioner of insurance, and the state treasurer, or
their respective designees, who are responsible for active supervision of state executive branch occupational licensing boards.

In a related measure, Act 655 allows that a person who has a disciplinary action brought against him or her by the La. State Bd. of Dentistry or the La. Auctioneers Licensing Bd. to elect to have the matter moved to the division of administrative law for a disciplinary adjudication by an administrative law judge. The measure also directs boards to develop process for different exams for those with disabilities, and submit quarterly reports to the legislative oversight committee about complaints regarding board actions.

Act 696 Allows Behavioral Health Providers to See Clients at School

Act 696 by Representative Pierre, allows a behavioral health provider to provide behavioral health services to a student at school during school hours if requested by the student’s parent or legal guardian.

The Act defines “Behavioral health provider” as a provider who is licensed by the Louisiana Department of Health or a health profession licensing board including but not limited to a psychiatrist, psychologist, medical psychologist, licensed specialist in school psychology, marriage and family therapist, professional counselor, clinical social worker, or a behavioral health provider organization licensed to provide behavioral health services in Louisiana.

According to the digest of the bill, services include individual psychotherapy, family psychotherapy, psychotropic medication management, community psychiatric support and treatment, and crisis intervention. Also, “Evaluator” shall mean a licensed psychiatrist, psychologist, medical psychologist, licensed specialist in school psychology, professional counselor, marriage and family therapist, or clinical social worker who is certified by the respective board of examiners in Louisiana to provide necessary evaluations and who is not an employee of the public school governing authority or the state Department of Education.

Behavioral health services shall be permitted during school hours if the student’s parent or legal guardian presents a behavioral health evaluation performed by an evaluator chosen by the parent or legal guardian and the evaluation indicates that the services are necessary during school hours to assist the student with behavioral health impairments that the evaluator determines are interfering with the student’s ability to thrive in the educational setting.

The Act says that a behavioral health evaluation presented by the parent or legal guardian of a student shall not be construed as an independent educational evaluation for purposes of determining if a student meets the criteria established for eligibility for special education and related services.

The cost of all behavioral health services provided to a student shall be the sole responsibility of the parent or legal guardian.

The parent or legal guardian of a student receiving services from a behavioral service provider shall be required to execute a “consent to release information form” between the provider and the public school governing authority. And a public school governing authority shall not enter into a contract or an exclusive agreement with a behavioral health provider that prohibits the parent or legal guardian from choosing the behavioral health provider for the student.

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.