Law Project for
PsychRights in 2009
2009 has proven to be another year of great progress with two major accomplishments and even the one setback leading to one of the major accomplishments, which is perhaps the most important initiative PsychRights has ever undertaken.
This was the launch on July 27th, of PsychRights' Medicaid Fraud Initiative Against Psychiatric Drugging of Children & Youth with the release of a Model Qui Tam Complaint. This is a national initiative and is potentially the most important thing PsychRights has ever done, and will hopefully surpass the impact from subpoenaing and releasing the Zyprexa Papers in late 2006.
The other major accomplishment in 2009 has been
another important Alaska Supreme Court case, Bigley
v. Alaska Psychiatric Institute, which held on constitutional
that (a) if there is a "feasible" less intrusive alternative to
forced drugging the state must provide it or let the person go, (b) a
for forced drugging must include information to support the best
finding required in Myers
v. Alaska Psychiatric Institute, the case we won in 2006, and
hospital must give the "patient's" lawyer their medical chart
sufficiently in advance of the trial to allow for adequate preparation.
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As a result of working on the PsychRights v. Alaska case (see, below), we realized at least a majority of psychiatric drugs prescribed to children and youth submitted to Medicaid are fraudulent. This is a technical analysis of the Medicaid Statutes that I was alerted to by one of Ed Silverman's Pharmalot blogs and tracking down some 2007 correspondence between the Utah Attorney General's Office and Medicaid.
More specifically, it is fraud if reimbursement from Medicaid is sought for prescriptions of psychiatric drugs given to a child or youth that is not for "medically accepted indication." "Medically accepted indication" is defined as an indication approved by the FDA or supported by a citation in at least one of three specific compendia, the (i) American Hospital Formulary Service Drug Information; (ii) United States Pharmacopeia-Drug Information (or its successor publications); or (iii) the DRUGDEX Information System (Compendia).
PsychRights has developed a Model Complaint set up for a former foster youth to sue the doctor(s) prescribing the offending drugs, their employer and the pharmacy(ies) submitting the fraudulent claims on behalf of the federal government to collect for this fraud and share in the recovery, if any. However,it can easily be adapted for anyone with "non-public" information (ie., specific offending prescriptions).
PsychRights is optimistic this approach can have a major impact. There have been billion dollar drug company payments to the government for illegally promoting such prescriptions, but that hasn't really touched the harmful practice because (1) it is just a cost of doing business to the drug companies, (2) the doctors have been indoctrinated to prescribe these drugs, and (3) Medicaid continues to pay for the prescriptions even though they have been prohibited by Congress.
We think that once the doctors realize they are subject to financially ruinous Medicaid Fraud judgments against them, the practice will stop or be substantially reduced. There are a lot of technical issues with bringing these lawsuits and we have information about it at http://psychrights.org/Education/ModelQuiTam/ModelQuiTam.htm.
I made presentations about this to the national conferences of the National Association of Rights Protection and Advocacy (NARPA) and the International Center for the Study of Psychiatry and Psychology (ICSPP) in order to find people who were potentially interested and willing to pursue such cases. This was successful and we have at least a few such cases cooking. We are interested in at least a few more being pursued, so, if you are interested in pursuing such a Medicaid Fraud case about psych drugs given to children and youth and want our help you are invited to contact us.
208 P.3d 168 (Alaska 2009)
FYI, Mr. Bigley is the person for whom I subpoenaed the Zyprexa Papers in late 2006, and whose representation the federal court in Brooklyn declared was a pretense. PsychRights has represented Mr. Bigley in a number of cases, both at the Superior Court level and in front of the Alaska Supreme Court, some of which ended up being public and some of which have not.
In this case, which is public, PsychRights challenged a number of aspects of Alaska's forced drugging assembly-line regime. In the trial court we were denied access to Mr. Bigley's medical records until after the forced drugging hearing had started, which the Alaska Supreme Court ruled a violation of Mr. Bigley's Due Process rights. We also had very short notice, which we also claimed denied Mr. Bigley's Due Process rights, but while the Alaska Supreme Court said there could be situations in which the amount of time given to prepare would be a violation of Due Process, because we had mounted a serious challenge in spite of the short notice, Mr. Bigley had not been prejudiced by the short notice.
We also challenged the sufficiency of the forced drugging petition on Due Process grounds. Under the Myers case, which we won in 2006, the Alaska Supreme Court held that Due Process prohibits the state from giving psych drugs to someone against their wishes, unless, in addition to finding the person incompetent to decide to decline them, the state proves the drugging is in the person's best interests and there are no less restrictive alternatives. The Alaska Supreme Court then ruled the trial court had to consider certain specific factors, to wit: the patient’s symptoms and diagnosis; the medication to be used; the method of administration; the likely dosage; possible side effects, risks and expected benefits; and the risks and benefits of alternative treatments and nontreatment. Our challenge was that the petition did not include any information on these factors and therefore Mr. Bigley's Due Process rights to notice of what he is being charged with and a reasonable opportunity to respond were violated. The Alaska Supreme Court agreed.
Our other major issue was to flesh out what it means for the Alaska Supreme Court to have said in Myers that the state can't drug someone against their will "if there is a less intrusive alternative available." In particular what does "available" mean? We argued that it didn't mean the state could just choose not to fund it and therefore it was not available. We also argued the state was required to provide the less intrusive alternative that we presented to the trial court. The Alaska Supreme Court didn't order the state to provide the less intrusive alternative, but said that if such an alternative was "feasible" (accepting the trial court's finding that it was not in this case), the state's only choices were to provide the less intrusive alternative or let the patient go.
The ruling that a less intrusive alternative is "available" if it is "feasible" is hugely important. It is somewhat disappointing that the court didn't order the state to provide it, but this is an area of the law we might get the Alaska Supreme Court to take another look at because it doesn't make sense in a certain regard. This is because the issue only comes up when a patient has been found by the court to be so dangerous to self or others that the court has found safety requires the person to be locked up. Saying that the state can then just let the person go instead of providing a feasible less intrusive alternative is not logical and inherently invalidates the dangerousness finding. The reality is, as we know, the courts rule people are a danger to themselves or others all the time when they are not in order to lock them up, but it seems a reasonable prospect that the Alaska Supreme Court will not approve of this if the issue is presented to it crisply enough.
Alaska Supreme Court Case No. S-13558
evidence-based psychosocial interventions
(ii) rationally anticipated benefits of psychotropic drug treatment outweigh the risks,
(iii) the person or entity authorizing administration of the drug(s) is fully informed, and
(iv) close monitoring of, and appropriate means of responding to, treatment emergent effects are in place,
and that all children and youth currently receiving such drugs be evaluated and brought into compliance with the above.
The State responded that they didn't have any control over or responsibility for the psychiatric drugging children in their custody or any responsibility under Medicaid, and moved to dismiss the lawsuit (throw it out of court) on the grounds that PsychRights doesn't have standing (the right to bring the suit) because it wasn't harmed by the State's actions.
One of the things that some people have criticized PsychRights for is its failure to frontally attack the current medical model dominating psychiatry, i.e., the notion that psychiatric symptoms are manifestations of a defective brain, such as a chemical imbalances or genes, which has led to drugs as the universal response. When I presented the "medically accepted indication" basis for Medicaid Fraud cases at ICSPP, Dr. Fred Baughman, the point that there is no basis for medical treatment of psychiatric treatments. Dr. Baughman, is the neurologist with a conscience who has been indefatigable in pointing this out. In thinking about it, I came to realize that just as prescriptions that are not for "medically accepted indications" constitute Medicaid Fraud, so do prescriptions that are not "medically necessary."
Dr. Baughman is very interested in pursuing such a case and we are working on it. Such a case should require the psychiatrist who is sued to go up against Dr. Baughman and probably some of our other experts, in front of a jury, to justify the prescriptions with scientific evidence as being "medically necessary." It is a totally intriguing possibility, I think it presents a way to confront prevailing psychiatric practice's basic premise, and I am grateful to Dr. Baughman for his steadfast advocacy respecting this most basic flaw in the current practice of psychiatry.
Fighting forced electroshock has always been on PsychRights' agenda and the current FDA Reclassification Docket (discussed next) is an opportunity that everyone should seize to try and keep the FDA from reclassifying electroshock machines as safe. In connection with this everyone should read Linda Andre's terrific new book, Doctors of Deception: What They Don't Want You to Know About Shock Treatment. If you want to read it and can't afford a copy, let us know and we might be able to get you one. Advocating against electroshock has taken a back seat to the drugging, but it is also very important and we should all be doing what we can to fight it. PsychRights expects to be working more closely with Ms. Andre and the Center for Truth in Psychiatry on Electroshock to try and get some traction on this issue. For now, everyone should write to the FDA about its current reclassification docket.
FDA Reclassification Docket
The Food and Drug Administration is in charge of regulating medical devices just as it does drugs, including the machines used to give Electroshock. It has allowed these machines to be used on millions of patients over the past generation without requiring any evidence whatsoever that shock treatment is safe or effective! This is so even though shock machines are Class III---high risk---devices, which by law are supposed to be investigated by clinical trials as thoroughly as new drugs and devices just coming onto the market.
The FDA is now supposed to require Electroshock machines to undergo the rigorous PreMarket Approval process (PMA) that is required of new devices, including clinical safety trials, but there is great risk the FDA will downclassify it to the low-risk Class II, without scientific evidence of its safety. The FDA has opened up a new docket for public comment on this and it is important for as many people as possible to write in with their opposition. Comments will be accepted up through January 2010.
You can make comments in writing to Food and Drug Administration, Dockets Management Branch (HFA-305), 5630 Fishers Lane, Room 1061, Rockville, MD 20852.
You can also submit comments by going to www.regulations.gov and either type in electroconvulsive therapy as a keyword, or the number of the federal register notice: 2009-N-0392. There is a coupon type form available at http://psychrights.org/Actions/FDA/FDAShockDktFlyer.pdf that you can use if you want.
Potential Electroshock Medicaid Fraud Case
PsychRights work on Medicaid Fraud regarding the psychiatric drugging of children has also made us realize that a similar approach might be mounted against electroshock submitted to Medicaid as not being medically necessary. PsychRights is just in the preliminary stages of potentially looking at such a lawsuit. This one might be directed at fraudulent researchers. Again, Linda Andre's terrific new book, Doctors of Deception: What They Don't Want You to Know About Shock Treatment is a must read for anyone interested in this topic.
Understand both the law for that state and what is actually happening, in order to determine the legal challenge(s) to pursue.
It seems probable that we need to recruit pro bono (volunteer) attorneys in most cases and we see the key to that is having a "package" that makes such representation attractive, including a legal analysis. In addition to the analysis of the Alaska situation in Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course, 25 Alaska L. Rev. 51 (2008), we have issued legal analyses in three states, New York, Massachusetts and Virginia, which gives some idea of what we mean.
New York -- Memorandum (Preliminary): Forced Psychiatric Drugging in the Community --Pro Bono Opportunity of Great Significance, August 18, 2008
Massachusetts -- Potential Strategies, October 6, 2007, and Opposing Forced Drugging ("Rogers Orders") in Massachusetts, February 1, 2004. If anyone is interested in being a State Coordinator, please contact us. We also could very much use a volunteer coordinator because I tend to be overwhelmed with what I am doing and not able to spend as much time on this type of organizing as is needed.
Virginia -- Memorandum re: Mental Health Commission Proposals, dated August 5, 2007.
PsychRights formed the PsychRights Cause in 2009 and as of this writing it has 1,764 members from all around the world and raised $1,399.
You might recall that in December of 2006 I
documents that had been kept secret in the litigation over Zyprexa
diabetes and other metabolic problems and released them to various
including New York Times reporter Alex Berenson when Lilly failed to
time. This resulted in a number of front
York Times articles and reportedly caused the federal investigation
Lilly's illegal off-label promotion of Zyprexa to "gain
momentum," which ultimately led to Lilly
pleading guilty and paying $1.4 Billion in civil and criminal
earlier this year. Even though Lilly
screwed up by letting me get the documents, it spent millions of
attorney's fees to go to the federal court in Brooklyn and get the
find I had "conspired" to "steal" them.
This set me up for Lilly to threaten civil and criminal contempt sanctions and to go after my license to practice law. However, because I believe I did nothing improper, I appealed this ruling and after numerous delays, briefing is just about complete. I wouldn't expect a ruling until late next year at the earliest. My legal fees in defending against Lilly's legal onslaught have so far been just under $300,000, including estimated unbilled fees, of which I still owe over $121,000. Of the $177,000 paid to date, some $42,000 has been paid through generous donations to the legal defense fund the International Center for the Study of Psychiatry and Psychology (ICSPP) set up. If you would like to make a donation to my legal defense fund it can be done at:
Jim Gottstein Legal Defense Fund
c/o Dominick Riccio, Ph.D.
1036 Park Avenue, Suite 1B
New York, NY 10028
Any such donations will be greatly appreciated.