Category Archives: licensing and regulation of mental health services

New York State Lags on Firing Workers Who Abuse Disabled Patients


In this NY Times article, Mr. Hakim seems to have understood that there is no point in arguing against the mental health system, or OMH/OPWDD. He threw the proverbial towel on them and is now focusing on the unions. The state came with a new law (Justice Center) that is more of the same loopholes to protect everybody but leave us VOICELESS. It’s a SCAM is what it is. The unions are the tip of the iceberg of the culture of abuse in the NYS mental health system.

Let’s be fair: the mentally ill is food for the big and small sharks equally.

Look, in ALL of the mental health system’s rules, old and new, the MANAGEMENT and PROVIDERS are off the hook from responsibility for abuses on the recipients of services. Abuses happen in their watch. Some of them are directly responsible for abuses, and most of them ENABLE the abuses. It’s what I call ‘the culture of abuse in the mental health system’.

Under those conditions, I too would want the union to stand for me if the supervisor, who knows what I do and laughs at it, is going Scot free.

The Justice Center was intended to stop the NY Times ‘complains’ AND to avoid the federal government from doing an investigation on the state’s practices. That explains why the Justice Center is WORSE than what we had before: now people THINK that SOMETHING was done with the issue of abuse when in actuality it’s worse.

Nothing was done. It just made it MORE DIFFICULT for us to report, and it provides MORE protection to the ‘providers’ and workers. There is LESS transparency.  See my comments to the Justice Center law in this blog.

OMH privatization of the mental health system, Cuomo’s surrendering the functions of government to the private sector, THAT’s where the problem is, politically speaking.

A policy system per logic has to put the responsibilities of failure of the policy on those who write and enact them. In this case, the NYS OMH/OPWDD system. Privatizing, reducing the mental health workforce and reducing their salary and benefits is a recipe for disaster. You can’t write ‘moral codes’ (as Justice Center pretends will do)  for those workers you hire  because, them been the lowest of the lowest, you know they are the cheapest.

I think Mr. Hakim should take a closer look at how the system protects the providers and managers. They are the one who must respond for their ENABLING abuses.

 

Cuomo Agrees to Plan for Housing Mentally Ill, Ending Legal Battle


This is breaking news in the NY Times. Cuomo Agrees to Plan for Housing Mentally Ill, Ending Legal Battle

This is an agreement to ´right´the wrongs committed by many NYS adult homes providers and that NYS judge that made that appalling decision in the case DIA v NYS-OMH etc in April last year. This agreement is a step forwards towards moving the people in those ‘homes’ of horrors to the community.

Am I personally happy and satisfied with this? I don’t go jumping with joy without first taking a quick glance to the text of the so-call ‘agreements’ and new laws to ‘protect’ people with disabilities of all kind. Why? Because one thing are the sound bites we get in the media about how great a new law is, another is the TEXT and the IMPLEMENTATION.

Now, with this agreement, everybody relaxes and forget about it. Just like with the Justice Center, we will assume that the government is looking to protect us. Nothing happens unless you threaten the government. Not even this agreement, the result of years of court battle with the state.

OK. I will NOT sour your joy. IT IS A STEP in the right direction.

I will tell you where we must put caution in this agreement.  You can read the agreement on your own here courtesy of Judge David L. Bazelon Center for Mental Health.

Suffice it say that the agreement WARNS those Adult Homes providers previously caught abusing the mentally ill that they should not interfere with their residents in this process of moving them out, or they ‘will be punished’. Adult Homes are going to lose $$ and they want to keep their houses of horror filled. That there is a NEED for a warning to them should tell you a LOT. (See page 8, part 4 in the agreement.)

First quick notes:

From “definitions” (pages 4 and 5):

1. You have to be 65 years old or under to qualify for the benefit of the agreement.

2. The agreement MAY take 4 or 5 years to be completed. If you are 62 now and you HAVEN’T been relocated within the next two years, you may not qualify anymore. Or at least the agreement doesn’t clarify that. This is a question that those of you in Adult Homes (AH) MUST ask the people involved in this agreement.

3. As usual, the agreement applies to AH that are LICENSED, per Social Services Law Article 7. If you are in an unlicensed one, you may have problem qualifying for the agreement. YOU MUST SEEK CLARIFICATION ABOUT THIS.

4.  AH with LESS than 80 beds do not qualify for the agreement. It (“transitional AH”) has to have 80+ beds AND  a “mental health census” of 25%. If you are in a small AH, you may want to confirm that it qualifies for the agreement.

5. “Impacted” AH are those in NYC with 120 beds or more AND a mental health “census” of 25%  of the population of the AH.

MENTAL HEALTH STATUS: Not so fast baby.

To qualify, a mental health evaluation to measure your level of functioning will be implemented. This is where the ENACTING may go astray, leaving people who are not dysfunctional ‘enough’.

1. Must have a mental diagnosis based on THE MOST RECENT DSM book.  I would say, tread with caution here.

  • ‘what if I my diagnosis is not in the book anymore? They removed some and added new ones.’ See my point?

2.  Excluded from the agreement are people with developmental disabilities, mental illness due to brain damage, and “SOCIAL CONDITION”. I’m as lost as you are on that last one. Looks like a loophole to keep people in. Must check the DSM bible for clarification.

3. “Must have a  SUBSTANTIAL FUNCTIONAL disability WITHIN the PREVIOUS 24 MONTHS before the date of the agreement.” Do you know what a “substantial”  functioning disability means? I suggest you look it up if you want to get out of there. Plus, it is ‘within’ the last 24 months of the agreement. Better check it out how that may affect you too.

4. Who will determine your disability, your substantial functional levels that will ALLOW them to put you in a supported housing?

  • a determination by SSA that you receive benefits due to mental illness will not be enough.
  • A “Health Home agency” AND a  MLTCP (managed long-term care Plan) will be in charge of the process of evaluating your qualification for the agreement. Even if SSA says you are disabled, these people may determine that you are not ‘substantially‘ dysfunctional and may disqualify you. See #5, subsections (b) i and ii on page 5.

So don’t assume that you automatically qualify to be relocated out of the AH just because you are there.

“PERSON-CENTERED PLAN”. Where have I heard that before??

Right, those of us in Supported Housing (SH) are struggling with “person centered support”. Welcome to our struggle. But, I will NOT deny that chances are that, if you make it to a SH, you may be better off than there. Just don’t come here thinking ‘wow, I made it. I’m out of danger’. Nope.

Now, I couldn’t find the dates for the agreement. If any of you find that info, please, forward it. It’s important to you, if you are in one of those homes,  because of the transition schedules. You don’t want to be left out.

My take about this:

1. This is a good step forward.

2. ALL THESE PEOPLE who are coming to the community are going to face the reality of what we have here: SH is over 80% unlicensed. This means, you have NO LEGAL PROTECTIONS there. People centered treatment does not exist. It’s a craps shoot.

3. the ‘culture of abuse’ that exists in those AH will relocate in the community, following our new ‘freed’ peers, with those workers who will get jobs from there to here.

4. TODAY MORE THAN EVER  we need to ORGANIZE our people. For ‘people centered ‘ services we NEED TO BUILD THOSE CABs.

5. Never has the state given ANYTHING without a fight. The NYS WILL BE crying ‘BROKE’ to avoid completing this agreement and creating housing for them. If you want to trust them 100% despite what history shows us, fine.

This is my first reaction to the agreement. Sorry if I sour your joy. I doubt it, though.

CONGRATULATIONS TO THE FORMER DIA.

GOOD WORK.

Welcome And good luck for those of you moving here to the community ‘with us’.

Like we used to say in the ’60s: the struggle continues.

Why we should stand against the SAFE ACT.


Why we stand against the SAFE ACT

We want our state and our nation to address the causes of the current nation-wide wave of violence effectively and with fair policies.

But, it is unfair to point at people with mental disabilities as the cause of all that violence and as a threat to ‘national security’. We are none of those. The statistics show that we are more likely to suffer the violence inherent in the prejudice against people with all types of disabilities, than to dish it out.

The SAFE Act was passed in 20 minutes late at night and right after the horrific Boston shooting last year. Clearly, it was intended as a quick placebo for a terrified society demanding action from politicians to control what it incorrectly perceives as the source of the wave of violence: guns and mental illness.

So, we must repudiate any policy that scapegoats us in the interest of political gains for our current elected officials of both parties at both the state and national levels.

The SAFE Act is not a law; it is a witch-hunt and ‘saves’ no one.

The SAFE Act is being used to limit the civil rights of, not only the ‘persistent and chronically mentally ill’, but of anyone who may seek mental health services for the first time. (See Side by side: SAFE Act and OMH.) The names reported per the SAFE Act mandate goes to the FBI, and from there they quietly seep up to Department of Homeland Security list of ‘possible terrorists’. In the ‘land of the free’, being in that list is terrifying in itself.

The causes of violence in a society are deep and complicated. But this much we can say: the government and its bureaucratic agencies inflict violence on the population in a form that passes as ‘lawful’ and ‘for your own good’, in the form of POLITICAL violence. Daily police brutality, violation to personal integrity by police searching your body  to protect you from the ‘terrorists’, 911 calls for the police to pick up an EDP (’emotionally disturbed person’) usually ends with the EDP being killed by the police…this is a system out of control.

See next how OMH is violating the SAFE ACT to grab power to limit our civil rights.


The IRS scandal: three degrees of separation from NYS Office of Mental Health


“An administrative agency does not have the power to change the plain meaning of the law and make a disaster happen and that’s what’s happened here.” Rep. Eleanor Holmes Norton  on the IRS’ interpretation of the words “exclusively” and “primarily” in the statue. May 23, 2013

This is relevant to the issue of how NY State’s Office of Mental Health (OMH) and other mental health agencies have ‘interpreted’ the mandate given to them by both the state and federal governments to protect the mentally ill from abuses and bad quality of services.

I discussed this problem in my post When is ‘minimum’ the same as ‘high’? When NYS OMH says so. I wrote it in February this year. There, I exposed how OMH changed the words “high quality of services”  mandated by the state mental health law, to make the providers accountable only to ‘minimum’ levels of care.  Mrs. Norton has validated the point I made there.

DISCLAIMER:

I am NOT supporting ANY politician of ANY of the two parties nor supporting ANY position in favor or against this IRS ‘controversy’. I use this controversy in this post ONLY as an example to ILLUSTRATE problems of statutory law in OMH’s regulations. These are my opinions and do not represent the opinions of other people who are part of the grass-roots group called The Citywide Mental Health Project. End of disclaimer.

THE BACKGROUND: Statutory vs. Regulatory laws and powers

The big issue and controversy is this: statutory law vs. regulatory laws. It’s about the process of making laws and how administrative agencies enact those laws.

1. Law-makers, whether state or Congressional (senate included), pass a law about any issue, be it mental health or IRS etc. It is called STATUTORY law because it is created by elected officials, not by a court or judge.

2. The law-makers delegate the enacting of the law to the commissioner of the administrative agency in charge of the issue for which the law was passed.

3. They give a BLUE PRINT to the agency which tells the agency what GOALS   the REGULATIONS it creates must achieve. The statutory law is a MANDATE to the agency. The regulation is to enact the mandate but carries the force of law and the backing of the police powers to enforce the regulation.

discretionary4. The law-makers give the commissioner of the  agency  DISCRETIONARY POWERS to enact the mandate. This means that the law-makers don’t care what regulations the agency creates, only that the MANDATE is enacted LEGALLY. The agency can create ANY regulation with ANY language as long as the PURPOSE of the regulation is to achieve the MANDATE.

5. But the DISCRETIONARY powers are LIMITED. The commissioner of the agency can pass any regulation as long as it is LEGAL and doesn’t violate the ‘spirit of the mandate nor state or federal laws.

spirit

The ‘spirit of the law’ as seen by some law-makers.

6. This means that an administrative agency is a LAW-MAKING body: Because it MUST pass REGULATIONS to bring the MANDATE into life, an administrative agency is considered a ‘law making’ system.

7. But the COMMISSIONERS of  these administrative agencies with  ‘law-making’ functions are NOT elected. STATUTORY law makers (meaning those we elect to state senate and assemblies and Congress) are, supposedly, accountable to us. Commissioners ARE NOT accountable to us, they are so only to state and federal law-makers.

All of the above is what is called POLICY-MAKING SYSTEM. This is important because:

  • the commissioners of the administrative agencies are NOT ELECTED and not accountable to the public, and
  • Because they have DISCRETIONARY POWERS to create NEW LAWS to control the public’s behavior through these regulations.

Because of all of this, there is a thing called FEEDBACK  built into that policy decision-making  system. It is there so that we can INFLUENCE those COMMISSIONERS into enacting or correcting REGULATIONS that had the unintended outcome of HURTING the people who was supposed to be protected by the regulations.

WORDS HAVE MEANING AND ‘FEELINGS’

words

OK. That was the background. Now, Mrs. Norton did exactly what I did in my document about OMH”s Supported Housing rules: she put the mandate and the agency’s rules side by side to illustrate how the agency DISTORTED the meaning of the mandate. The following is from MSNBC (bold and link by me):

Section 501(c)(4) of the Internal Revenue Code which defines social welfare organizations for tax-exempt purposes defines them this way:  “Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare.”

Then, the IRS code does a magic trick and changes the meaning of the word exclusively:

“To be operated exclusively to promote social welfare, an organization must operate primarily to further the common good and general welfare of the people of the community.”

http://tv.msnbc.com/2013/05/23/exclusively-vs-primarily-irs-law-a-disaster-waiting-to-happen/

The distortion of words in the mandates by these agencies have the consequence of stripping the SPIRIT out of the law, the PURPOSE FOR WHICH the statutory MANDATE was created in the first place.

There is always a ‘context‘ behind every law. Judges refer to them in many cases, they look at the ‘history of the statute” because words without context have no importance nor usefulness. That’s why writing policy and statutes is an ‘art’: there are specific rules about how to write them.

lawsIt is an art to prevent that the meaning of  “exclusively” be INTERPRETED as “primarily”, two words with DIFFERENT meanings. One, ‘exclusively’, CLOSES the door to anything that is NOT contained in the ‘universe’ described in the law. The other, “primarily” has a TENTATIVE meaning, it leaves the door open for things not envisioned and even EXCLUDED in the original description. “Exclusively” says ‘no way Jose’ to anything outside the boundaries; the other, “primarily”, says ‘yeah right, whatever’. One says “men only club’, the other says ‘primarily men only club’. Go figure. Bad examples? I think they are grrreat!

I stand by my claim that OMH’s so-called licensing rules violate  state and federal mandates. The problem is that, once these agencies write their rules, it is as if they were written in stone.

Remember how difficult it was to remove the administrative  rule that ordered Black people and other minorities to seat in the back of the bus in the South?

Just because it is a law or rule or written in stone doesn’t make it right nor are we obligated to obey unjust rules.

The elephant in the NY State mental health system’s room.


elephant

At the invitation of Mr. Stephen Freeman, CEO of the YAI, I made a presentation at their YAI International Conference here in NYC on May 7. The topic I chose, of course, was what I call the ‘culture of abuse’ in the NY state mental health system. I thank Mr. Freeman for inviting our group to the conference. Personally, this was my first experience participating in an activity of this importance. It was a learning experience for me, and a pleasant one too.

What follows is the material I handed out (revised) in the presentation. It is also in word format in the ‘our documents’ tab on the top of the page.

THE CULTURE OF ABUSE 

INTRODUCTION

The Citywide Mental Health Project is a recently created New York City grassroots group of consumers of mental health services and their supporters. Our work is focused on:

a) stamping-out the culture of abuse and mistreatment that exists like a tattoo in the body of our state’s mental health system (MHS), and

b) Opening a public discussion about how this culture of abuse is enabled and legalized by the regulatory policies enacted by our state’s mental health agencies.

Why the focus on abuse and not on any other of the many problems in the system, like funding cuts?

1. Because, as we speak, the culture of abuse is inflicting, with impunity, horrific abuses, mistreatment and humiliation upon many of us, people with all types of disabilities, in some programs and residences where we go seeking mental health services, not abuse. People have actually been killed in the hands of callous providers of ‘mental health services’.

2. Because the mental health agencies have made it a taboo in our community the discussion of the problem of ‘institutionalized abuse’. This taboo denies credibility to the victims of these abuses and mistreatment who come forward to tell their experiences.

3. Because this public silence dis-empowers us, it denies us the right to self-advocate to protect our physical and mental integrity, our personal, civil and human rights, and literally for our lives. It still rings true what was said in the 1980s: “silence = death”.

Yes, services and funds are needed, but must we suffer harm and humiliation, or die in order to get them in the programs? Our community is doing an excellent work at addressing the other problems. The problem of the culture of abuse needs to become a priority too, exposed as part of a broken system that wants to hide the fact that it has killed people and continues to threaten our lives with its indifference to our pleas for fairness in treatment.

Are people with disabilities more vulnerable to abuses and mistreatment than other groups of people in our society?

Yes. Our own state legislature stated it clearly in the beginning of its new Protection of people with Special Needs Act passed last year:

they are vulnerable because of their reliance on professional caregivers

 to help them overcome physical, cognitive and other challenges.”[1]

The Citywide Mental Health Project believes to eliminate this culture of abuse we need to start by breaking the taboo.

Breaking the taboo: exposing the culture of abuse

Apart from The Citywide Mental Health Project speaking up about this, there is neither public conversation nor outrage in our community about the following outrageous facts:

Fact #1: For nearly ten years (2003-2012) the NY Times have been writing about abuses and corruption in our mental health system, culminating with their investigative series ‘Abused and Used’. Those abuses took place in both licensed and unlicensed facilities run for the state by both non-for-profit and for-profit providers. In other words, the abuses are embedded in the mental health system. We have found no reports or investigations by the NY state about those articles.

Fact #2:  In response to the articles, the Federal Commissioner of the Administration on Developmental Disabilities investigated and concluded in her December 2011 report[1] about the NY State’s protection and advocacy (P&A) system that:

  • People with developmental disabilities (pdd) and their families were excluded from the state’s P&A board.
  • That no efforts were made to reach out to them.
  • That the state has failed to protect its pdd from abuse and mistreatment.
  • That the state is in violation of the Developmental Disability Act.

Fact #3: The state agencies mandated to protect people with disabilities, ignored all those years theirs and their families pleas for help, even as the abuses were being made public. Yet, all agencies reported, and continue to report in their ‘evaluation’ of quality of services and other reports[2], that “90%” of consumers are ‘happy’ with services and with the “multiple layers of protection”[3], even in facilities where abuses are rampant.

Fact #4: State agencies like the Office of Mental Health (OMH) and the Department of Health (DOH)  appears frequently in court as co-defendant with abusive providers[4], or defending them.

Our governor confirmed indirectly that the culture of abuse has continued 40 years after Willowbrook by saying the following as he celebrated the creation (in response to the federal report) of the new NY State Protection of People with Special Needs Act:

New Yorkers with disabilities and special needs for too long have not had the protections and justice they deserve.”[5]

Who else but the state and the state’s courts could have denied them that protection and justice to which they have a right?


[5] http://www.governor.ny.gov/press/05072012-first-to-protect-special-needs

Explaining the taboo: money, but of course!

Taboo: a social custom that does not allow people to talk about matters that are considered embarrassing or offensive to others for fear of retaliation or punishment.

It is the state of NY who would be embarrassed if its citizens started to discuss publicly how it continues to abuse its people with disabilities years after Willowbrook.

Legally enabling abuse

The New York State’s constitution obligates the state to protect its people with disabilities, and the federal government also mandates it to do so as a condition to receive their funds. The state created its mental health agencies to carry out that obligation. But these agencies have failed miserably, decade after decade, to comply with their obligations.

In what could be considered a violation to the NYS mandate to license all providers of mental health services[1], the Office of Mental Health (OMH) have passed regulations to un-license (de-regulate) more than half of all the providers. It does it to relive the agency of its oversight and monitoring duties. OMH has also passed regulations reducing the providers’ accountability for their bad quality of services by legally eliminating the standards of care: from ‘high’, as mandated by the NYS mental health laws, to ‘minimum’ standards[2].

And here it is:

These agencies distribute the federal and state funds to all non-for-profit “care givers” as payment for their services. Who dares, at the risk of losing their funds or jobs, to speak up publicly to denounce these agencies as enablers of the abuse in which some callous providers engage, and sometimes as complicit with them? Mr. Jeffrey Monsour, for one, dares.[3]

“He was one of the people interviewed and featured in   a 2011 series of articles by The New York Times examining problems of abuse and corruption within the system.
Since then, the state has pursued a tenuous disciplinary case against Mr. Monsour, and it also tried to pressure the State Senate to disinvite him from a panel discussion. In an editorial last year, The Times Union of Albany criticized the state for its “muzzling” of Mr. Monsour. “

The taboo in our community to discuss the culture of abuse is the result of the fear of losing funds, jobs and prestige.

To be fair to many of our state legislators and some good judges in our courts, they cannot keep up trying to patch up the holes that these agencies continue to put in the intentions behind much good legislation. It is in the implementation by these agencies where the problems start.

[1] see on-omhs-unlicensed-policy https://thecitywidementalhealthproject.wordpress.com/our-documents/

[2] As above.

[3] http://www.nytimes.com/2011/08/22/nyregion/cuomo-administration-continues-to-pursue-case-against-jeffrey-monsour.html

Outcomes from the culture of abuse

“People with developmental disabilities [PDD] and their families were excluded from the state’s P&A board; no efforts were made to reach out to them.”Disempowerment through exclusion

Social exclusion is a process that leaves individuals or entire communities (like the disabilities community) systematically blocked from exercising their rights, from opportunities and from consistent access to resources. Healthcare, civic engagement, democratic participation and due process are considered ‘resources’. These are normally available to members of society and are the key to social integration.

For example, federal laws mandate that the board of the state’s protection and advocacy system be composed in its majority of people with disabilities and their families. This right gives these people the opportunity for ‘civic engagement’, to take part in the decision-making process about how the state is to protect them. But the state denied these people this opportunity when it purposely excluded them from the board, as we saw in the federal report, denying them the right to protect their interests.

The result of this exclusion from participating in our state’s mental health system is always disempowerment and alienation of the people with disabilities. Is the ADA and Olmstead still alive? If the answer is ‘yes’, then it seems as if the state has violated both. With the doors closed on them, the state escapes scrutiny and, as a domino effect, the whole system falls into lawlessness. But you don’t have to see it; it’s all behind the curtain of ‘lack of information’.

We, The Citywide Mental Health Project, believe that our ‘disabilities’ do not come from whatever illness we may have. They come from a mental health system that perpetuates with its own actions the stigma that people with physical or mental illnesses are inferior people who must be excluded from participation in the democratic process, denying them the right to protect their interests. This must change.

The opposite of ‘exclusion’ is ‘inclusion’: let’s get in!

The evidence that we are excluded from the system and its P&A is there. It shows that this exclusion is at the root of our two main problems: been abused and lack of voice in the system. We need to be included in order to change all of this. But included to do what and where?

We want to have a voice in the programs we attend so that we can protect ourselves from unprofessional practices passed as ‘quality of services’. We want to do the following in our programs through our Self-Advocates groups or Consumers Advisory Boards (CABs):

Policy-making in action

1. Give feedback about the quality of the services we are receiving from the program.

  • To identify persistent problems we and our peers are experiencing in accessing the services, and to present solutions
  • To identify what is working appropriately and to our satisfaction.
  • To discuss how the goal of person-oriented services is working.
  • To let the providers know how they are succeeding in achieving their stated mission and goals.

In organizing their own feedback process, the Self-Advocates will learn the real meaning of programmatic requirements such as “quality of services”, “compliance with regulations”, and other important terms.

2. Review an existing grievance procedure or develop one if none is in place in the program:

  • A grievance procedure must be meaningful, capable of addressing and resolving our complaints in a timely fashion.
  • It must guarantee that we can discuss problems about interactions with the staff or the administration without fears of being humiliated, ignored, or punish for coming forward with a complaint.

In reviewing the grievance procedures, the Self-Advocates will have the opportunity to learn important information about their rights and how to make them count.

All of the above describes exactly what ‘policy-making’ is all about. All of that and more is what the various laws invite us to do. The only barriers on the Self-Advocate’s path to learn to do this are: that people underestimate our capacity to learn how to be an active citizen, and that our mental health system does not want us to take part in this process. ‘Accountability’ is a term despised by the agencies and by some providers, but it is in our interest to learn to hold them up to it.

You CAN learn this and more. Your Self-Advocate group can prepare a plan to self-train each other on how to monitor and evaluate the services you receive. You will need to work with other groups and professional advocates who can help you prepare your self-training about policy and the feedback process.

Self-Advocates learn and keep updated by sharing information in their group, and at their own pace. But learn they do!

Gov. Cuomo’s new Protection and Advocacy System: Do we REALLY need to be protected??


I asked myself that question while I was at the state-wide video hearing last Friday about the Gov Cuomo’s proposal to create a  new P&A system. From the Metro area,  The Citywide Mental Health Project were the only ones there. More than shocked or upset, I was saddened by the lack of interest in our community and the public at large on the issue of abuses perpetrated on people with disabilities.

You would have thought that, after all the brouhaha about abuses and the gun control laws that promise to curtail the few rights we have left, after all those state reports about privatizing the functions of our government, which will make abuses a mere ‘collateral damage’ that comes with the imperative to make profit, you would have thought that after all that there would be a long line to get inside the conference room. Nope.

The situation I described was the same in other state counties: few brave souls showed up to speak up their minds. Many were able to articulate their lack of hope in the ability and willingness of this new system to protect people with disabilities. DIA was there, in another county; some people with developmental disabilities stood up to speak up  for themselves. The father of a son who was killed in one of this institutions was there. I wish I could speak to him; his comment was stripped of pleasantries and went to the root of the matter. His statements were very much what we at the Citywide have been saying about how the system is failing us.

Where is our community? It seems that our community and the society at large trust that the Governor, because he is a democrat, is doing everything right to help us.

Anyone who knows about politics knows that ‘trust’ in politicians is like trusting ice will keep your water cool for a long time. (Think about simile.)

Even if I grant good-will in the intentions behind this new P&A system, politicians make (GULP) mistakes. And one thing is the INTENTION behind the policy, another is the IMPLEMENTATION.

We are still here, the Citywide, trying to keep the issue in the open. The discussion of abuses is TABOO in our mental health system; we need to break that taboo.

Waiting for a miracle will not change things. We need to stand up and start speaking about this issue.

And if you are happy and have not experience abuses and mistreatment then, let those who have and want to denounce the abuses in the system do their work.

We can’t continue to cry ‘foul’ every time some story of abuse is published in our mainstream media and then go back to our state’s  ‘councils’ where nothing is done about anything without the consent of OMH or the city.

Organizing to secure funds for programs is a priority, but so is our lives and mental health.

We need to organize to make the system SAFE for us. It will not happen by magic.

Lourdes

Gov. Cuomo’s ‘Intent to redesignate the Protection and Advocacy Systems’ proposal


For those of you interested on this, there’s a copy of the proposal on  ‘Our documents’ tab up there for you to download.

The Citywide Mental Health Project will, hopefully, make a testimony on this proposal on April 9.

Happy readings.  (smile)

Bloomy’s rights v. yours: he and the elite can (and will) infringe on your freedoms


“I do think there are certain times we should infringe on your freedom”

'nough said. Make sure you take your meds today or else....

‘nough said. Make sure you take your meds today or else “we” will infringe on your freedom….’

But YOU can’t infringe on “theirs”. You are the slaves of the elite.

Never was the elite more frank and public with their true fascists nature. Wow.

 

 

 

 

The Citywide Mental Health Project’s presentation at the NY City Council hearings on budget cuts to Mental Health services.


Below is the statement I read at the NY City Council. I would say    that the audience had a good response to this, most of them. There were some ‘uuuh’ at the part about the ASPCA, and a lot of laughter (intended) when I mentioned Dr. Evil  at the end.  The purpose of   this presentation was actually to have the providers and their          representatives there  hear us and our message. I think they did.

 Testimony presented by Lourdes Cintron for the Citywide Mental Health Project

At a Public Hearing on Thursday, March 21, 2013

14th Floor Committee Room

Presented to: New York City Council Mental Health Committee

Good afternoon. My name is Lourdes Cintron, the founder of The Citywide Mental Health Project, still a grassroots group of consumers of mental health services and their friends and relatives opening to public discussions the roots of our lack of voice in our mental health system and ideas on how to regain our voices in that system.

We, consumers, are grateful to you for trying to prevent more cuts in funding for programs, and to the highly professional service providers represented by these people here today for their efforts to keep these programs open.

But, after the money is allocated and everybody disperses to focus on the next threat to programs in the agenda, who keeps an eye on how are these funds been used in the programs?

Let’s be realistic: There is no meaningful follow up on accountability and what quality of services that money is buying. The CABs, [Consumer Advisory Board] the tool in place for us to partner with providers at the point of service to design policies that will deliver services effectively and without causing harm to us, are virtually nonexistent.

Unwittingly you continue to fund some providers who shouldn’t be in the business of social work, and your funds pay the salaries of some unprofessional directors and supervisors whom the ASPCA wouldn’t hire to service their dogs.

  • At a time when the mentally ill is been blamed and penalized for the violence and degradation of the social network  that comes with budget cuts
  • when privatization and decentralization of the functions of our government is almost complete (see the governor’ SAGE report),
  • when soon the quality and goals of our mental health services will be directly determined by how much profit they generate to Goldman Sachs and Wall Street in their new investment scheme called ‘pay for success’, in these times our role shouldn’t be limited to be consumers.

 

According to the SAGE report, the State spends 16 BILLIONS in contracts with NFP [not-for-profit] but there are few, and meaningless at that, CABs in those programs and no meaningful grievance procedures.

Instead we are given councils and advisory boards created by OMH and the DOHMH where we are forbidden to talk about the ‘A’ word: abuses.

They decide the agendas and do all the work; we just have to show up. So what happens when they decide to take the resources and change the structures of these boards?

The best illustration of the institutionalized mentality of disrespect and disempowerment of consumers is the so-called NYC “Federation” of Mental Health Consumer Advisory Board. I know because I was there and had to leave immediately to protect what is left of my sanity.

As you all know, the commissioner, without notifying or consulting the consumers who are there to ‘advice’ him, expelled the providers out from the old federation, kept the consumers because – well, you just can’t have a federally mandated consumer board without consumers – removed the resources from the MHC [Mental Health Committee] in the 5 boros [boroughs] and left the consumers with a shell of a ‘council’. He simply left us without a voice in the system.

That’s how OMH and the city have trained consumers to be helpless and disempowered.

In view of all these problems and realities, we are asking you to, as Dr. Evil said in Austin Powers, “throw me a freaking bone here”

We need MEANINGFUL CABs at the point of service, organized by consumers themselves to collect and bring to you our feedback about how the services you are paying for are been delivered.

That’s what the Citywide Mental Health Project is trying to do.

The least you can do for us is to help us organize a Town Hall meeting to listen to what the consumers at the point of service have to say about how they are receiving the services.

Maybe from there we can come up with more creative ideas to protect us other than building a whole bureaucratic structure around one phone call to report abuses.

On OMH’s unlicensed policy


On OMH’s unlicensed policy is in the form of  a Word doc here

About Privatization, fracking and Lucy the psychiatrist. 5


This post will close the ‘series’ on privatization of the NYS public health and mental health system. It’s difficult to make these posts short; the topics are too big. I will try to be economical. So, please, don’t give up on reading. 🙂

The roadmap leading to privatization

You can’t claim that the NYS government is not ‘transparent’. I have discovered since I started this blog that almost every piece of government policy that takes our collective property and rights have been announced beforehand to the public, like Garcìa Màrquez’ “Chronicle of a Death Foretold”. This applies to the latest big report: governor Cuomo’ SAGE Report published last month, February, a roadmap showing the steps  to PRIVATIZE the STATE: public land, public transportation, agencies transformed to ‘efficiently’ serve Wall Street, mental health programs run, literally, by Wall Street.  How many of you have heard about it or have bother to read it?

These ‘steps’ are hidden behind fancy names like “government efficiency“, “right-sizing” (to hide down-sizing), “initiatives” like the “centers of excellence” and “collaborative approach with private and public sector“, “pay for success”…They all relate to privatization, transferring our infrastructure and government functions to you know whom. Worried about fracking? Don’t;  Cuomo will put the responsibility of protecting our environment on the polluters themselves.

Let’s see some of those steps towards privatization, and don’t forget: the recommendations given are usually adopted, at least in part if not in totality. Also, the heads of all these commissions are your typical Wall Street friends. These are the reports mentioned here:

The Commission on Health Care in the 21st Century

OMH/DOMH licensing scheme

Workforce Report

The MRT report

The SAGE report

Step #1: “The Commission on Health Care in the 21st Century”: privatization ‘by all means possible’ and fast, please.

This one is appalling. It (over 200 pages) was commissioned by our legislature and governor in April 2005 to, basically, privatize hospitals and facilitate mergers and cut the competition. The title is misleading, a slap in the face of New Yorkers: You can’t change a health care system in ONE year, which was the length of this ‘plan’; plus, it was all about merging hospitals.

These recommendations were then to be transmitted to the Governor and the Legislature on or prior to December 1, 2006. The binding recommendations were to go into effect on January 1, 2007,” and not later than June 30, 2008.  (All quotes are from the DOH’s report on the Implementation of the Report of the Commission.)

They were in a rush to do this, wonder why?

At the head of the Commission was, guess who, someone with huge ties to Wall Street’s companies gambling on hospitals and health care:

Stephen Berger is Chairman of Odyssey Investment Partners, a private New York investment firm that specializes in private corporate transactions.” [ There’s more to that guy than that.]

This commission’s recommendations accelerated and facilitated a hospitals-merging feeding-frenzy that had started in 2003 and which continues even today after the ‘recommendations’ expired. The cost of this “reconfiguration of the health-care system” (assault on New Yorkers), of closing and paying the debts of the private entities closed, of facilitating mergers, of transferring state property to private hands, of filing for bankruptcies to save themselves, cost tax payers (as they reported, which is always an underestimation) over ONE BILLION dollars in one year.

dr-evil

Included was the cost of defending this atrocity in court:

“numerous lawsuits [more than 20] were filed seeking to prevent implementation” and “the State Attorney General’s office, …created a special group of attorneys to defend the cases…” “The Department substantially prevailed in litigation challenging the constitutionality of the legislation establishing the Commission.”

The recommendations included

“recommendations that municipal and state-operated facilities join together with not-for-profit corporations, in which the plaintiffs argued that such arrangements would be illegal. As described later in this report, however, the Department determined that the facilities could legally join together in a contract merger, in which the efficiencies contemplated by the report were realized, while the legal barriers were avoided.”

The funny thing is that our media didn’t report this hospitals-merger feeding-frenzy was actually designed by the state. On the contrary, the same wolves implementing this assault on us, the state and the Department of Health (DOH), cried innocence. These are all fascinating articles about this:  New York Hospitals Look to Combine, Forming a Giant;  Goal of the NYU-Continuum Hospital Mega-Merger: Raising Prices; this one just announced in March 2013: Mt. Sinai & Continuum announce merger plans, and this one is excellent: As Hospitals Face Pressure, Six in Brooklyn Could Close.

One of the appalling things about this report is that it showed that the state behaved as a Mafioso in order to do the damage quickly:

“Forced hospital mergers [were implemented]”,

“The Department Engaged in Unilateral Enforcement Efforts as Appropriate”

“…it could not easily require a facility to provide unwanted services, or to provide services in a configuration that was not financially or clinically feasible.”

“Nevertheless, the Department at all times insisted on…compliance”

“effectively foreclose the pursuit of constitutional claims, at least in State court.”

“preserve and protect the public health and safety only when the Department determined a safety issue could exist or when updated data made a clear and convincing case that a safety issue existed, [you had to REALLY make your case]”

“the Department [of Health] did not re-evaluate the Commission’s conclusions, or attempt to replace the Commission’s judgment with its own.” [it complied with the Wall Street guy’s recommendations as ordered].

I have to say that the ONE thing that threw me off my seat was the recommendation that OMH’s unlicensed facilities be made licensed again. The cause of the Citywide Mental Health Project was validated years ago. I knew we are right on our claims! Of course, that was the ONE recommendation ignored.

Step #2: OMH/DOMH licensing scheme

OMH was created in 1977 (per President Carter’s Commission on mental health) right after the 1972 Willowbrook case. Since THEN they have been acting like a corrosive acid on our system. Not only did OMH engaged and sanctioned (up to 2010) the same crimes that led to its own creation, human medical experimentation (previous posts), but they turned the back at the mandates given to them, as I described in my previous posts. OMH has been decertifying programs since the early 1990s; at least that’s what I have found.

By de-certifying most of our mental health system, these two agencies have de-facto privatized it without the people’s knowledge. You can’t reverse that without a major public movement, which requires the awareness they don’t have about what these agencies are doing. Most people are unaware that the programs they use are unlicensed. The people trust these agencies blindly because, otherwise, they would have to perennially keep an eye on them.

OMH has ‘rules’ to attract businesses by paying between 50 and 100% of the loans they take to run their businesses (PART 521. FINANCIAL ASSISTANCE FOR CAPITAL ACQUISITION AND CONSTRUCTION). This is done under the excuse of creating the facilities where services will supposedly be provided. But, despite all that public money, OMH refuses to license most of these businesses and, instead, gives them the ‘freedom’ to act unaccountable to anybody. This is how I understood that rule. I hope to be corrected by someone up there if I’m wrong.

Step #3: On the Workforce Report and Lucy the psychiatrist

This one is la creme de la creme. Not only OMH argued there  that we don’t need a licensed system, it said that we don’t need licensed professionals. It seems to insinuate that a case manager acting as a psychologist is as ‘safe’ and ‘efficient’ as a licensed psychologist. I’m not kidding. This is the background:

State’s legislators required in 2010 that a workforce study be conducted to determine what would be required for mental health agencies and non-for-profits to come into compliance with licensing by 2013. The issue is whether the state should enforce the requirement that these entities hire licensed professionals (which some legislators want to do) or that, on the other hand, they be granted a ‘waiver’ to allow them to hire unlicensed professionals to provide the same services as licensed do. It all has to do with the ‘corporate practice doctrine’, which I will not discuss here, but you can read a good history of the corporate practice doctrine here. It’s a fascinating controversy about corporations running health services businesses when they are not physicians.

The point is that OMH made the following conclusions in its report, basically saying that we don’t need the protections that come with a licensed system because, well, they have such a great history of protecting us and a great structure to provide the oversight they know is indispensable anywhere you hire people to do things. Take a look at how to downgrade quality of services:

They said that despite the fact that

“…15% of case managers were performing psychotherapy

and that

“…more than half of the agencies [“licensed”, imagine the case for the unlicensed] responded they employed titles that can be “licensed or certified” however were reportedly filled with unlicensed staff… including psychologists and social workers positions.”

…they concluded that:

lucy“OMH does not find a material difference in the quality of services provided in programs which also employ unlicensed staff.” [Meaning, perhaps, that the 15% case managers mentioned before with two or four years of college are as good psychotherapists as a real one who must have a doctorate degree to practice.]…

and that

[licensure]…would not provide any meaningful measure of increased safety or quality to our citizens as reflected by the survey results.”

We are also unaware of any evidence that would support better client outcomes with increased licensed staff, given the multiple layers of protections that exist in OMH licensed and funded programs.”

So much for the ‘best practices’ philosophy. OMH concluded that more unlicensed programs and unlicensed staff [performing as licensed] are better because they save money and, well, who needs a psychologist or social worker when a case manager can do ‘the same work’ for less? For those reasons, OMH concluded that the State ought to make permanent the exemption of requiring licensure for the professions and services discussed:

“OMH recommends to make permanent the exceptions…”

Credit to the DOMH: they argued in favor of licensing in their own report; goes to show that the ‘system’ is not monolithic.

Step #4: The MRT report

Many of you are familiar with this 2011 Medicaid Redesign Team. Same crap. Cheapening the system, facilitating involuntary commitment by allowing RN to do it without psychiatric authorization, re-working the work force (changing titles responsibilities in mental health services to push them down to less skilled workers), putting programs in private Wall Street corporations hands…Head is Wall Street guy.

Step #5: The SAGE report or ‘wake up! you are being robbed blind’

I don’t even know how to start with this one. It is difficult to unmask this initiative because of its exquisite double-speak language. Take for example the “pay for success program”. Sounds good, inoffensive:

“…the performance based approach known as “Pay for Success” contracts. These contracts, also known as “social impact bonds,” are an innovative financing mechanism that uses private and philanthropic funding sources. Provided at no risk to taxpayers, funding from these external sources is used to fund initiatives and improve programmatic outcomes in key areas such as human services, public safety, juvenile justice, public health, and others.”

Hmmm. Let’s see: “no risk to tax payers”, as if in this corporationist system the “private funding sources” are willing to bear the ‘risk’ instead of the government. This ‘pay for success’ initiative should be called ‘the government pays either way: for success and for failure’. Nothing new there.

Billionaire mayor Bloomberg is credited with opening the door to this shark attack from Wall St called “pay for success”: Goldman to Invest in City Jail Program, Profiting if Recidivism Falls Sharply

In New York City, Mayor Michael R. Bloomberg plans to announce on Thursday that Goldman Sachs will provide a $9.6 million loan to pay for a new four-year program intended to reduce the rate at which adolescent men incarcerated at Rikers Island reoffend after their release.

Right from the outset the shark shows its teeth: IT’S A WALL STREET LOAN, people! Somebody has to pay it. Hello! Anybody there!? 🙂

How sweet is that? Goldman gives HIMSELF a loan to gamble on your kids’ minds, loan which YOU will have to pay, and Bloomberg expects ME to believe this in the caption about this “pay for success” deal:

wall

“If the program reduces recidivism by 10 percent, Goldman would be repaid the full $9.6 million; if recidivism drops more, Goldman could make as much as $2.1 million in profit; if recidivism does not drop by at least 10 percent, Goldman would lose as much as $2.4 million.”

I’ll let you to figure that one out. I’m laughing so hard I can’t deal with it. Pay for Goldman’s success!! BUT WAIT!! It gets BETTER for Goldman.

Why put his own money, after all? This is what the SAGE report has in mind. It’s already working.

“The Governor’s 2013-14 Executive Budget advances this innovative, performance-based public-private sector partnership by authorizing up to $100 million in Pay for Success initiatives over the next five years.”

Did you catch that?

Look, among the other goodies for corporations are:-

– letting them license themselves – no need for the government to do it, plus it gives jobs to lawyers:

“Through this program, applicants have an attorney certify the accuracy of their application [for license], which allows SLA to expedite the review process”

– worried about fracking? No need no more:

“Reform of the State Environmental Quality Review (SEQRA) Process.This permitting process includes reviews by multiple agencies and support from environmental consultants, is extremely technical and can cause delay in some instances. As part of its efforts to reform SEQRA, DEC solicited feedback from stakeholders with diverse interests to identify how the process could be streamlined and delays avoided, without sacrificing meaningful environmental review and protection.

– workers, be worried. Civil Servants system is protected by our state’s constitution. Not for too long anymore.

“The Commission has identified as an option for future consideration certain changes [hmm] in the law governing the State’s civil service system that would facilitate workforce modernization.” 

“workforce modernization” as in going-back-to-the-middle-ages. That’s double speak.

“Controlling Wage Increases. In addition to controlling the cost of the State workforce by exercising discipline in new hiring, Governor Cuomo arrested the growth in per capita employee spending by entering into new four and five-year collective bargaining agreements that included no salary increases for the first three years of the agreements[now, THAT’s modernization.]

LIPA will be privatized together with other ‘assessts’, meaning transportation and public buildings.

There are a few good things there, but the bad things are the one they are not telling you about. It’s all in the works. We are ‘screwed’, excused my English. They will use the language that makes you say ‘hmm, that sounds good’ and you will consent to this attack.

Well, that’s my long speech about privatization. I hope this made sense. Please, feel free to post your comments.

By Lourdes

Of medical experimentation and privatization: OMH’s licensing rules. Part 4


Ok. So far we have seen that the state’s Department of Mental Health (DOMH)  and the Office of Mental Health (OMH) have downgraded the high quality of the services that the law mandated these agencies to assure, to the bare “minimum” (definition of minimum is ‘the least amount possible’) standards we can  tolerate without screaming.

We saw also that the rule protects the providers by stating the they will be held “accountable” only to those minimum standards; and that these agencies use this finely crafted rule  in courts to protect themselves and providers from any efforts to hold them to any higher standards.

Now, let’s see how the consumers fair in that licensing rule. Is there anything good for them there? A crumb? But of course NOT! It actually EXCLUDES you from its protection.

NYS MH LAW BASIS FOR ISSUING AN OPERATING CERTIFICATE

It says that the certificate will be given based on OMH finding that the following is working properly:

a) premises
b) equipment
c) personnel
d) records
e) and program
 

Seems reasonable to me. Does it says that it will be based on how ‘crazy’ you are, or on how your illness compares to other people with the same illness? Or based on whether you are ‘more’ physically disabled than mentally disabled?

Hmmm.

Hmmm.

Now compare it with this:

part 70

“Not intended to be include” was mentioned three times. This rule was written to exclude you and to deny services, all services, not to clarify how programs, equipment, etc must function, as described by section 31.05. Let’s break it to see who is excluded.

1. “on the same basis as others not so handicapped“. That’s a comparison. Nowhere in the state’s law you see that language.

A violation of ADA and other statutes?

This from the Supreme Court of the USA about violations to the ADA:

“Section 12132 can be understood to deem as irrational, and to prohibit, distinctions by which a class of disabled persons, or some within that class, [compering disabled people with each other]  are, by reason of their disabilityexposed by a state entity to more onerous treatment than a comparison group in the provision of services or the administration of existing programs, or indeed entirely excluded from state programs or facilities.”

That’s exactly what that Part 70.01 is doing, in my view. It denies services- “nor those services…” – based on how disabled or mentally ill you are and as compared to others. How is OMH going to make that comparison, it doesn’t say.

2. Who are the “not so handicapped”? How can an agency created to help eliminate stigma and stereotypes about mental illness write  with such an undefined and unprofessional language? The owner of the bodega on the corner of my street in the Bronx uses that language, “not so disabled”.

3. And who are those whose “disability is PRIMARILY other than mental” and not meant to be included? If it is not ‘mental’ then it most be physical. Thus, if you are physically disabled AND mentally ill, you are EXCLUDED from mental health services unless…you can measure which one is your biggest problem and come up with mental illness as the ‘big winner’. No wonder our mental health system is ‘fragmented’: it’s been run by car mechanics.

MECH

4. What are these “activities”, which “however well intended” [no compassion is allowed] , are “free of risk”!? Of course, they don’t say; go figure it out on your own. But this much I can tell you: if you think that human medical experimentation is considered by OMH as “above minimum risk” activity, think again. Consider this description and tell me that it is activity “free of risk”:

“These studies involve, inter alia, the administration of both FDA approved and experimental antipsychotic and psychotropic drugs, which are capable of causing permanent harmful or even fatal side effects *fn1and/or highly invasive painful testing procedures on subjects with no benefit or only the possibility of a beneficial effect expected from their participation. Moreover, several of the studies involve a medication free or placebo phase in which subjects, who are being successfully treated with approved drugs, are taken off the medication for a period of time before the experimental medication is introduced, during which time they may relapse and suffer the adverse symptoms of their particular illnesses or disorders.”

That is from the not-so-far- ago (1996) case T.D. v. New York State Office of Mental Health:

“The issues presented for determination in this matter concern the validity of regulations promulgated by the defendant New York State Office of Mental Health (OMH) codified at 14 NYCRR 527.10. The regulations, promulgated on November 7, 1990, state that their purpose is to “seek to ensure the protection of patients who participate in research while, at the same time, facilitating research into the very disorders from which they suffer and which underlie their impairment” (14 NYCRR 527.10[b]). Contained in the regulations are provisions which set out procedures for, and thereby sanction, the participation of adults and children, who are patients or residents of OMH operated and licensed facilities deemed incapable of giving consent, in so called “more than minimal risk” non-therapeutic and possibly therapeutic experiments.

That case was 20 years after Willowbrook! OMH was created in 1977, five years after Willowbrook and precisely to prevent another Willowbrook! But these activities were going on for a while before 1996 until the public lawyers brought that lawsuit. That case was not solved until 2010. Up to that date OMH argued, SUCCESSFULLY (in  Hirschfield v. Teller, related to the above case) that the public lawyers do not have the right to protect those people because it (OMH) didn’t see fit to require an operating certificate from the ‘facilities’ and, therefore, the lawyers don’t have access to clients in unlicensed facilities. But neither in licensed facilities, as we saw in the case above.

One has to ask oneself: for whom is OMH and the DOMH working?

And to close this part of this ‘series’, this is the last piece of the masterfully crafted rule Part 70.01 that leaves unprotected people in both licensed and unlicensed ‘facilities’:

final

That’s right: you can protect yourselves. Don’t bother these people. Who was it that said “HEAL YOURSELVES!!!”? Oh, right…JC.

So, OMH says that they expect you to be able to compare yourself to other people, come out short in terms of ‘health’, choose between either mental disability or physical disability and…be able protect yourself from abusive providers in licensed and unlicensed ‘facilities’.

A violation of ADA and other statutes, again?

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others…28 CFR 35.130 – General prohibitions against discrimination.

These agencies assume that you can do all these things and, based on that assumption, discriminate against you. These ‘experts’ on mental disabilities think that your illness is continuous or not, that you don’t go through ups and downs and relapses.

I have no problem with making sure that those who need the services are the ones receiving it. But this licensing rule has NOTHING to do with that. Otherwise, why use it to downgrade quality of services and protect the providers?

Next: Privatization

When is ‘minimum’ the same as ‘high’? When NYS OMH says so. Part 3


Yesterday we talked about how both the Department of Mental Health (DOMH) and OMH go to courts to argue against consumers in need of protection that there is no right to sue under NYS’ mental health laws and that they are not mandated to provide ANY levels of quality of services. (Every time I write that I have to laugh; it’s a laughter of irony.)

Today I want you to see, side by side, these two agencies license rules and the NYS MH law giving the mandate to them, and compare them and come to your own conclusion, which I hope is mine too.

law blog

omh side

Again, the state speaks of

  • mentally ill persons
  •  high quality of services
  • Protection of rights
  • OMH must regulate and control the services

And how do these two agencies interpret that? They say, in Part 70.01 that the certificate “is intended”, as in ‘meant’ but doesn’t have to necessarily be the case, that a provider has met, not ‘complied’, with MINIMUM standards of care. MINIMUM.

Question: Since when is ‘minimum’ the equivalent of ‘high’?

I’m thinking, thinking….

The NYS law says “high quality of services”. These agencies downgraded to “minimum”. Thus, according to their “intention”, EVERY single program ought to be ‘certified’ because they ALL provide  the bare “minimum” quality of services, the LEAST quantity or amount possible, which is the definition of “minimum”.scrooge

Not only that: the certification is for the benefit of the provider, meant to hold him accountable ONLY to those minimum standards.  It’s a protection measure for the provider. Don’t hold him up to ‘higher’ standards of care, don’t be cruel, baby.

You think it doesn’t matter? From where do you think they got the court arguments we saw yesterday? “MHL does not impose a duty on OMH to provide any particular level of care for specific individuals”. That was their interpretation.

But this is nothing compared with what I’ll show you tomorrow.Then, after that, we’ll see the privatization of our public mental health system in action. Let me give you a teaser of why OMH told our legislators that  it’s ok to privatize our system”:

“…15% of case managers were performing psychotherapy”

“[licensure]…would not provide any meaningful measure of increased safety or quality to our citizens as reflected by the survey results.”

Whaaat!? My psychotherapist is a case manager!? That’s psycho!

In NYS no private right of to sue abusive providers under the NYS MH LAW. Part 2


The following is our state’ mandate to OMH on how to enact the state’s mental health policy:

law blog

It speaks of:

  • mentally ill persons
  •  high quality of services
  • Protection of rights
  • OMH must regulate and control the services

Do you agree that is what it talks about? Well, they, OMH and the department of mental health( DOMH) disagree. OMH goes frequently to court to argue the following against consumers and their public lawyers:

1. about “seeing” that services are “of high quality” for “mentally ill persons”, they argue that

MHL does not impose a duty on OMH to provide any particular level of care for specific individuals” [Cintron v. NYS OMH and Comunilife  2011]

If that were true, that YOU, the specific individual reading this at this moment, don’t have a right to any level of quality of services, then NY MH laws are  nothing but empty words, beautifully crafted lies to fool you into believing that our legislators meant what they wrote.

The technicalities of our legal system can be manipulated against those with the least power in society. That piece of law above meant what it says. OMH manipulates its meaning. It’s a crap shoot for us in court.

2. about protecting the rights of persons with mental illness, they say that…

no person may individually seek to compel the State to take any particular law enforcement action.” [same case]

If YOU, the person receiving the abuse, can’t “compel” them to bring the unprofessional provider to justice, then, who can? What’s the point of having grievance procedures and ‘justice centers’ if the agencies created to protect us say that they are not mandated to enforce the law? We saw in yesterday’s post that one of the purposes of licensing policy is to regulate and the state lends these agencies its police-powers to enforce the rules to protect the consumers. What do these agencies think about that? This:

“such regulatory authority is of only indirect benefit to the individual, and its exercise is solely within the discretion of the governmental agency”

So, what do they do with those awesome powers if not to enforce the law that says “high quality and protect the rights”?

3. also about protecting our rights…

“MHLS can’t have access to clients in unlicensed facilities [Hirschfield v. Teller NY 2010]

That means that public lawyers can’t go out there, where you are, to listen and advocate for you. It says that this applies to unlicensed facilities, which happen to be, as we saw yesterday, more than half of all the programs in NYS. And they feel fine throwing that argument to you in your face in court. But wait, the argument doesn’t apply only to unlicensed facilities.

there is no private right of action under the NYS MH LAW“.

Badda bam! All those rules and laws and all for nothing: you have no right to use our mental health laws to sue and get justice and stop the suffering. That last ruling is in the above cases and many others. So what are these laws there for if they can’t be enforced? How many times do we see these two agencies in court on the side of the abusive and unprofessional provider?

Next, how DOHM/OMH licensing rules defeat the purpose of our mental health act.

Privatizing NYS public mental health system, one rule at a time. Part 1


This is the first of a series about NYS OMH’s and the Department of Mental Health’s licensing policies. This is intended for my ‘peers’, to share what I have learned in my dealings with the mental health system. It took me a long long time to understand and put this together. Thus, I want to save the time to others.

Note: I am not a lawyer or paralegal. This information can’t be taken as legal advice (better believe it) nor as reliable for any legal purposes. In other words, I’m not responsible for the misuse of the information on this post.

Some topics I will cover this week  are: ‘best practices’, OMH report last year advocating using unlicensed workers (case managers) to provide the equivalent of psychotherapy, and the SAGE report. Let’s start.

NYS Mental Hygiene Law (MHL)
Title E, Article 31: Regulation and quality control of services for the mentally disabled

Section 31.02 Operating certificate required.

Some judges in our State’s courts have alluded to the simplicity of the title of that section 31.02: ‘operating certificate required’ (op cert here on). It flaunts purpose and determination: ‘op cert required, period.’  It is a declaration of State policy. It is a mandate. So why has OMH de-certified more than half of our mental health programs and providers, basically privatizing our public system?

According to the New York State Consolidated Budget and Claiming Manual there are a total of 90 types of mental health programs under OMH. Of those, 22 are licensed and 68 are unlicensed. OMH reported in 2012 that of a total of 6759 programs, 4646 were unlicensed and 2113 licensed.

Source: “Reports on the Workforce From State Agencies”   (OMH”s report)                                    March 2012

Source: “Reports on the Workforce From State Agencies” (OMH”s report)  
  March 2012

Do these figures matter to the consumers and to the public, who may one day find itself tagged as ‘client’? Let’s take a look at what a licensing policy accomplishes.

By the way: do you know how many license categories OMH has?

1. Licensed
2. Unlicensed
3. Not-licensed(!)
4. Certified
5. Operated by OMH
6. Regulated by OMH
7. Approved by OMH
8. Funded
9. By auspice
(From various sources, including the New York State Consolidated Budget and Claiming Manual)
 

Putting licensing policies in perspective:

safetynetA State’s licensing system reflects  its policy towards the issue it is licensing; it is part of the policy system.

Policy is the decisions and actions taken by the state:

  • to fix a social problem,
  • to protect and
  • to offer a better quality of life for its citizens.

The golden rule of all policies is ‘first, DO no harm’. It is so golden that it is alluded to in OMH’s ‘Rule 501.3 Waiver’:

(2) The commissioner may grant a waiver of a regulatory requirement…if he/she determines that:

(i) the rights, health and safety of clients would not be diminished; (The commissioner’s discretionary powers can’t be used if they  cause harm. Well, at least in theory.)

All policy systems have a feedback mechanism for those who receive the benefits of the policy. Through it they let the policy-makers know how effectively and efficiently it is working. Our state’s mental health policy is in NY Code – Mental Hygiene, Title B MENTAL HEALTH ACT. Consumer advisory boards (CAB) are the feedback mechanism, including for feedback to providers in the programs where the consumer is receiving the services.

The three characteristics and purpose of a licensing system:

  • To protect the public from dishonest practices and bad quality of services, and from violations of consumers’’ rights.
  • To regulate the profession or business in question. In our case, it regulates the (mental) health services industry. As a regulatory tool, it has the state’s police-power behind it: violators can be arrested and prosecuted.
  • It is a mandatory credentialing process that prohibits anyone not licensed to practice the profession or business in question.

We see all this in: “NYS Mental Hygiene Law, Article 31: Regulation and quality control [to protect] of services Section 31.02 Operating certificate required [the mandate].

Without its licensing policy, the state can’t protect, regulate or monitor its system. And the courts know it:

Hirschfeld v. Teller, NY 2010

Here, OMH decided that licensure was not required. Because only OMH is authorized to determine whether a facility is required to have an operating certificate and MHLS’s jurisdiction is expressly limited to licensed facilities…defendant it's the lawnursing homes are entitled to summary judgment dismissing the complaint.

And our state legislators, who are aware of the problem of licensing un-compliance, stated in law bill  S4858A-2011:

Lack of progress on licensure has a direct consumer impact. Without full implementation of the law, New York’s seniors cannot age in place and cannot take advantage of the numerous protections and disclosures contained in the statute.

That’s why it says “op cert required”. Once you choose to practice a regulated profession or business you can’t choose to be or not to be regulated, or both.

 But wait a minute!! With OMH you CAN be BOTH!

In a Q&A about request to run a business for housing for the mentally ill, the question was whether OMH would accept unlicensed units in a licensed program. But of course, why not? Hey, it’s not like the tenants care that you misrepresented the program as licensed but they are actually in de-regulated ‘units’. ‘It’s all about funding requirements, don’t worry, be happy. Trust me.’

And you can also report, with OMH,  as unlicensed a licensed program, and the other way around. For example, in the State’s Consolidated Budget Report, OMH’s:

1510 – School Program Co-located with Clinic Treatment Program (Non-Licensed Program if reported under this code) This program cannot be used to report expenses or revenues associated with services provided by the licensed Clinic Treatment Program (2100). [Parenthesis from the quote, highlight by me.]

2600 – CPEP Crisis Beds (Non-Licensed Program) This program is one of four program components which, when provided together, form the OMH licensed Comprehensive Psychiatric Emergency Program (CPEP). [Which is a licensed program.]

Tomorrow I will comment on the license policies of both the Department of Mental Health and of OMH.

Trying a ‘meeting of the minds’ with the Office of Mental Health


Yesterday’s MAC-OMH Town Hall meeting on licensed and unlicensed housing can be described as interesting, intense and illuminating: everything in it.

No other than Mrs. Moira Tashjian, OMH Director of Housing Development and Support came down from Albany to answer…er…field questions would be a more appropriate description, about that topic.

The attendance was a bit below expected, probably due to the freezing cold. By the way, there’s a flu going around. At least three people I know have come down with it and were unable to attend the meeting. I call that flu the “sequester threat”. They may be related, after all.

Back to the reporting. Mrs. Tashjian was open and honest in answering the tough questions from the audience; when she did not know the answer to a question, she would say so and not try to evade the situation. At least that’s how I saw it. She also promised to corroborate information and bring it back to us.

The meeting was interesting because of the different points of views on the topic. The issue of licensing was discussed by Mrs. Tashjian from the perspective of services and funding, the audience was more focused on protections and accountability of providers.

It was intense because, well, that’s what happens when ‘the meeting of the minds’ is incomplete. More on that later.

And the meeting was illuminating because it showed what was known and unknown by both the audience and the director of housing about the issue, the conflicting understanding (among everybody) about it, the levels of cooperation that can be achieved between her department and the consumers in the audience, and the steely resolve of the consumers-advocates in pursuing answers and clarity on the issue.

I’ll talk about the final outcome of the meeting at the end of this post. I want to focus now on the problem of reaching an understanding between administrators and the consumers.

‘Why would you want that?’

The question posed by Mrs. Tashjian at some point in the middle of the discussion that sticks the most in my mind is “why would you [the audience] want licensed housing?” She explained that licensed housing is the type where more restrictions are imposed on the resident because, as far as I understood her, it is for consumers still in lower levels of functioning (she didn’t use those words, I just did). I think that is where ‘the meeting of the minds’ broke, at least for me. I think that the question itself shows where the disconnect is.

First, most of us there don’t understand ‘licensed’ housing in the way she described it. For us, the issue is regulation and accountability of providers. She saw the issue as one of what services are provided in one or the other. While some people came looking for information about that, the majority of us went there to find information about the legal distinctions between licensed and unlicensed housing and programs.

That’s the issue Mrs. Tashjian had the most difficulty understanding, that we were not looking for services but to find out what protections each one affords. She was able to address everything else efficiently except that, at least in my view. We are not always looking for services, sometimes we want to know where to go when the service is being denied.

She was pressed to address the issue and pointed at the field offices to go for complaints and the grievance procedures that must be in place in the programs. That’s one of the problems with the unlicensed issue: we are not informed of options, providers are not held accountable for blocking access and, as Mrs. Tashjian said, their field office is made of only two staff members to cover thousands of residents. Come on!

‘He who has an ear…’

I don’t doubt Mrs. Tashjian commitment to helping us and her interest in listening and understanding what our concerns are. Yet, there is a disconnect between what the ‘system’ thinks we need and what we actually need, and it blocks the ability of administrators and providers to listen to us.

Despite all the words about ‘personalized treatment’ and all the committees and consumers’ councils to ‘listen’ to us, the mentality in the mental health system still is that we are this ‘needy’ people that don’t know any better, and ungrateful at that  too because we don’t appreciate all that is ‘given’ to us. It’s not a ‘conscious’ believe; it’s like everything in a culture: ingrained and unquestioned, until that believe is shaken. It’s always painful to have our culture questioned. Usually, something good comes out of the questioning.

This is what I would like them to hear:

First, we are grateful and appreciate the services and the work of those providers who can rightfully be proud of their professional interventions. But don’t forget: we also fought for those services we now have and are a source of job for so many.

Second, we do ‘know better’. We know that the system is ‘broken’ (as stated in the MRT report) because we experience it. Some people pay with their lives or that of others for the ‘benefit’ of getting supported housing because, once they get in, they get abused by unprofessional providers to the point of breaking, or neglected to the point of abject hopelessness.

We want you to hear that getting a service, getting housing is not the end of our path; it should be a new beginning.  For some of us, it has become the end of that path.

We want you to hear that the goal of the State’s mental health system policy is to help us ‘liberate’ ourselves from the shackles of mental illness, not to tied us and make us dependent on that system.

Granted, and the audience agreed with Mrs. Tashjian, there are some people who makes it difficult to help them. But those are, probably, the ones who are either in the midst of ‘episodes’ or maybe the sickest one. Unfortunately, those are usually the ones who, out of making the job more difficult, ankles the work-culture to paternalism, stereotypes and stigma. Hey, we all suffer from those problems, it’s not personal. We can only confront ourselves on those matters.

The big secret

It amazes me how difficult it is for our administrators and providers to internalize that abuses and neglect is the element referred to in the maxim ‘first, do no harm’. For some reason, despite past and present history, despite it having been the reason for the dismantling by Governor Cuomo of the Commission on Quality of Care and Advocacy and his creation of the Justice Center, despite reports in our mainstream media about abuses, no one in the system wants to talk about it; no one wants to acknowledge it. It is as if we were shouting at someone who has no ears.

And the outcome

The outcome of the meeting was that more answers are needed. I think Mrs. Tashjian said she would find more information about the legal difference between licensed and unlicensed housing; also, that she would look into the OMH’s website to see what errors there can be corrected.

I would like for her to look specifically at the fact that the only distinction between licensed and unlicensed housing (“community residence”) is that in unlicensed “there is no rental assistance”. As I told her, the majority of these housing provide such assistance and yet they are classified as unlicensed. Not only that, there is no reference to the fact that regulation and monitoring is not included in unlicensed.

I’m convinced that trying to clarify the difference between licensed and unlicensed is going to show how convoluted these distinctions are; that clarification is near impossible due to the many funding sources requirements. But more important, because OMH doesn’t want us to know that its policies try to unburden the providers from accountability and the only way of doing that is unlicensing. De-regulating the system is the way to unburden the providers. But then, we are left carrying the burden.

Mrs. Tashjian has nothing to do with that, I think. She doesn’t make policy, does she? I think she is going to find things she was not expecting to find, nor wanted to find, if she looks seriously at the issue of licensed and unlicensed housing. It’s an ugly bureaucracy out there.

I wonder if she would be as open with us, as she was yesterday, were her to find out the nasty truth about license and unlicensed.

More to come this week end  on this topic.

Lourdes

NY gun control law. Reading the law.


I will have my comment about the new law posted after 6pm, for anyone interested. I know, you will not be holding your breath for it.

Anyway, I can see so far that, as I said I expected in my previous post,  the stigma of mental illness has been codified into law here.

Talk to you later.

 

Things that need fixing in our mental health system


Things that need fixing in our mental health system:

1. Certification

The NYS Mental Health Law mandates OMH to certify all providers. Certification provides the legal covers that allows our public legal advocates to bring cases of abusive providers to courts. But, totally against the mandate, OMH has established since the 1990s, together with our State’s DOH, a policy of DECERTIFYING providers. At least half of providers and services are not licensed in NYS.

This decertification scheme has provided judges who are less friendly to the mentally ill in our State’s highest courts the ammunition to allow the continued abuse of the disabled and the mentally ill in not-for-profit agencies. The state knows it; it participates in the abuses and defends these practices in courts.

Refer to the DAI case. Ask yourself: why, in the new millennium, we are still struggling with Willowbrookesque cases; why did we need to create a Center for The Protection of People with Special Needs this year, not 20 years ago?

2. ‘Best Practice’: no monitoring of providers needed.

Without certification, monitoring is just a word among the many used to describe something that is not happening in our mental health system. In other words, ‘monitoring of providers’ is a delusion of our mental health system. NYS courts have decided many times that legal advocates can’t monitor the safety of their clients in places where complains were logged, because these places are not ‘certified’.

Quality of services is a mandate. There is no point in giving money away to ‘providers’ who will pocket the money and dish out substandard mental health treatment. But you can’t have quality of services because our DOH and OMH says that monitoring is not necessary for people who can “defend themselves” from bad providers.  This is actually in their ‘license’ rules. Since you can’t monitor or be defended in court, quality of services becomes an unenforceable fantasy.

3. No Consumer participation.

This is the ‘pet peeve’ of the Citywide Mental Health Project. Please, read our Vision and Mission.

Federal and state laws provide for our participation in the programs, to the policy level of the programs. These provisions are there for us to protect ourselves from the history of abuse, to prevent more abuses.  It’s part of a policy system that requires the feedback of those receiving the benefits of the policy.

If you can buy a ticket to the moon then we consumers can give feedback to our not-for-profit servers.

Our bureaucrats are mis-managing our mental health system. Look, we adore the corporate system, even our bureaucrats use that model.  Just as you find CEOs that destroy their own companies and still get bonuses, we have the corporate model in OMH. They mismanage the system and still get praised.

Meanwhile, down here in the communities, you are raking your minds about why we have Erika Menendez in the streets. You are asking the wrong question. Ask why  OMH so often the defendant in cases of abuse; why is our public system been privatized by a decertification scheme that leaves the troubled people without quality of services. Why are the families so often complaining that the ‘system’ has left them alone with their troubled child?

Don’t look for quick fixes. Forced hospitalization as a remedy to the problem is a delusion you are suffering.

Re: NYS Law 7400 creating the Justice Center for the Protection of People with Special Needs#6


(f) where applicable, establishing uniform procedures for character and competence reviews of provider agencies initially, and upon renewal of licenses and operating certificates requiring a review of performance records regarding incident management, the role of the board of directors in maintaining oversight over agency performance in this area, and the management of incidents affecting resident safety, including cases of systemic problems.

Ay ay ay! Again??

Many many years ago OMH had a system where they would post in their website info about how many complains against providers have been received and how close they were to lose their licenses. That was when the ‘not licensed’ was not so widespread. Then they stopped this practice because…well, you guess why.

For many many years afterwards, complains were not recorded, period. Now we are back at doing what they really don’t want nor intend to do.

In the first instance, complains from consumers in ‘not licensed’ programs will automatically be left out. Mind you, more than half of all programs are ‘not licensed’. I claim that our ‘public mental health system’ does not exist. If more than half of the programs are not licensed, meaning private, how can we claim to have a ‘public mental health system’?

There are better ways to keep track of complains including letting consumers figure out how to keep track of their complains in the programs.

In the second instance, how do you determine ‘character’ when those affected by that character can’t inform you whether they have been treated with dignity or not?

Have you noticed that this new bill has no provisions for meaningful consumer input?

Re: NYS Law 7400 creating the Justice Center for the Protection of People with Special Needs#5


29 3. (a) when any allegation that could reasonably constitute abuse or 30 neglect is received by the register, the register shall accept and immediately transmit notice of the report orally or electronically to the appropriate state oversight agency and, as appropriate, to the director or operator of that facility or provider agency. (i) upon acceptance of a report of abuse or neglect by the vulnerable persons’ central register, promptly commence an appropriate investigation;

I know it looks as if I were against everything, but that is not the case. It’s difficult for people who have been entangled in the bureaucratic web while trying to resolve problems with it to not recognize the problems that these ‘new solutions’ create. Case in point, the above quote from the BILL 7400.

This new bill eliminated the Commission on Quality of Care because the commission was doing nothing. The commission would receive complains and dismiss them as ‘not reasonably constituting abuse’. By their own account in 2011, out of a bit less than 10k complains, they “screened” only 250. That means that they found the other 9k plus complains to be ‘not reasonably constituting” abuse. Yet, the commission was eliminated because there was abuse and they did nothing meaningful, they even didn’t include the cases denounced by the NY Times because those cases were in ‘not licensed’ programs and not licensed programs were not part of the commission’ surveys.

So now a clerk is going to receive some complains over the phone and make a decision right then and there that the complain “reasonably constitute abuse”. Then “(i) upon acceptance of a report of abuse or neglect by the vulnerable persons’ central register, promptly commence an appropriate investigation;”. That means that if they don’t accept the report, nothing will happen.

Think: do you have any idea of how difficult it has been for LAWYERS to convince JUDGES in civil court that an act constituted abuse? The Justice Center came as a result of the inability of our courts to protect these people. A whole agency (CQCA) was banished for doing a terrible job, but some how A CLERK OVER THE PHONE WILL DO A BETTER JOB AT ASSESSING THAT A REPORT CONSTITUTE ABUSE!. I’m not screaming, I’m just highlighting!

I just don’t see it, how is this bill any better at preventing abuse. I’m waiting to get someone to enlighten me.