Tag Archives: privatization of mental health services

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

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


Those people who, like me, have had the misfortune of  having to represent themselves without a lawyer (pro se) in court, can tell by scanning through the new NYS bill purporting to ‘protect’ the “people with special needs” that it is simply more bureaucracy on top of old bureaucracy. Actually, the new bill makes it MORE DIFFICULT for these “people with special needs” to protect themselves. This NYS senate bill 7400 is basically a bill of rights FOR THE PERPETRATOR.

Again, I’m not a lawyer or anything of the sort, I’m simply expressing my opinions. But don’t take them as correct;  go ahead, read the new law! That’s a challenge, my friends, literally. It’s a challenge because the bill will challenge your ulcers, so to speak.
THE MOTHER OF ALL LOOPHOLES

Loopholes are the bread and butter of those who lobby our politicians. Lobbyists either draft the bills they want for their professional gains and give them to our lawmakers to sign, or lobby to draft loopholes in the bill if it is being created to control them. Well, you tell me if this is not like the mother-of-all-loopholes:

there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of participating in good faith and with reasonable care in the communication of information in the possession of such person to an incident management committee, or on account of any recommendation or evaluation regarding the conduct or practices of any agent of a facility or provider agency.

The first loophole is in these words: good faith and reasonable care. Do you have any idea of how DIFFICULT it is for advocates (forget for the pro se!) to prove that a perpetrator, in any situation, but more so in mental health systems, acted NOT with good faith  and such perpetrator was ‘unreasonable’ in his/her professional behavior? The opposite of the legal concepts of good faith and reasonable care are ‘malice‘ and ”negligence‘. Well, good luck in trying to prove that a provider’s actions of ignoring an ongoing abuse in his/her facility was nothing but ‘unreasonable care’.

According to this bill, to convince the judge to accept to take a look at your complain, you first must PROVE to the judge that the provider was reckless and negligent. Otherwise, the case will be thrown out because this law states that you have NO CAUSE OF ACTION against a provider whose ‘errors’ are expected as part of the risks of the profession. In other words, instead of having a case to prove that there was negligence, you must prove that there was negligence to have the case heard in the first place.

The second loophole is in the fact that if the provider ‘misinforms’ the ‘investigating committee’ you have to prove that it was intentional. In other words, this bill tells you that from the outset you have no cause of action for damages, and that it is YOUR duty to prove that the information that should have been in a report but isn’t (or was misleading), was intentionally unreported.

I understand that people should be ‘innocent until proven guilty’, but the problem with this bill is that it TAKES AWAY YOUR RIGHT TO TRY TO PROVE YOUR CASE. You are simply being barred from court. Before this law, you could go and try to prove that there was negligence. Now you have to prove that you have a right to try to prove that you have a case. And the parts about ‘no cause of action for damages’ and ‘no monetary liability’ guarantees that hardly any private lawyer will take your case even if s/he can prove real damages.

Yeap, the new bill is protecting someone who is not you. Guess whom it is protecting?