Medicaid Fraud Initiative Against Psychiatric Drugging of Children & Youth


Because of the massive, harmful, increase in the psychiatric drugging of America's children & youth, who are inherently forced, PsychRights has made addressing the problem a priority.

As a result of working on the PsychRights v. Alaska case (see, below), we realized at least a majority of psychiatric drugs prescribed to children and youth submitted to Medicaid are fraudulent. This is a technical analysis of the Medicaid Statutes alerted to by one of Ed Silverman's Pharmalot blogs and tracking down some 2007 correspondence between the Utah Attorney General's Office and Medicaid.

More specifically, it is fraud if reimbursement from Medicaid is sought for prescriptions of psychiatric drugs given to a child or youth that is not for "medically accepted indication." "Medically accepted indication" is defined as an indication approved by the FDA or supported by a citation in at least one of three specific compendia, the (i) American Hospital Formulary Service Drug Information; (ii) United States Pharmacopeia-Drug Information (or its successor publications); or (iii) the DRUGDEX Information System (Compendia).

PsychRights has developed a Model Complaint (contact PsychRights (address below) or this blog (address above) for a copy) set up for a former foster youth to sue the doctor(s) prescribing the offending drugs, their employer and the pharmacy(ies) submitting the fraudulent claims on behalf of the federal government to collect for this fraud and share in the recovery, if any. However,it can easily be adapted for anyone with "non-public" information (ie., specific offending prescriptions).

PsychRights is optimistic this approach can have a major impact. There have been billion dollar drug company payments to the government for illegally promoting such prescriptions, but that hasn't really touched the harmful practice because (1) it is just a cost of doing business to the drug companies, (2) the doctors have been indoctrinated to prescribe these drugs, and (3) Medicaid continues to pay for the prescriptions even though they have been prohibited by Congress.

We think that once the doctors realize they are subject to financially ruinous Medicaid Fraud judgments against them, the practice will stop or be substantially reduced. There are a lot of technical issues with bringing these lawsuits and we have information about it at http://psychrights.org/Education/ModelQuiTam/ModelQuiTam.htm.

PsychRights made presentations about this to the national conferences of the National Association of Rights Protection and Advocacy (NARPA) and the International Center for the Study of Psychiatry and Psychology (ICSPP) in order to find people who were potentially interested and willing to pursue such cases. This was successful and we have at least a few such cases cooking. We are interested in at least a few more being pursued, so, if you are interested in pursuing such a Medicaid Fraud case about psych drugs given to children and youth and want our help you are invited to contact us.

James B. (Jim) Gottstein, Esq.
President/CEO
Law Project for Psychiatric Rights
406 G Street, Suite 206
Anchorage, Alaska 99501
USA
Phone: (907) 274-7686)
Fax: (907) 274-9493
jim.gottstein (at) psychrights.org
http://psychrights.org/

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http://www.blogger.com/post-edit.g?blogID=15346048&postID=6848654114026785761
Lilly v. Gottstein (Zyprexa Papers)

In December of 2006 Jim Gottstein subpoenaed documents that had been kept secret in the litigation over Zyprexa causing diabetes and other metabolic problems and released them to various people, including New York Times reporter Alex Berenson when Lilly failed to object in time. This resulted in a number of front page New York Times articles and reportedly caused the federal investigation into Lilly's illegal off-label promotion of Zyprexa to "gain momentum," which ultimately led to Lilly pleading guilty and paying $1.4 Billion in civil and criminal penalties earlier this year. Even though Lilly screwed up by letting Gottstein get the documents, it spent millions of dollars in attorney's fees to go to the federal court in Brooklyn and get the judge to find he had "conspired" to "steal" them.

This set Gottstein up for Lilly to threaten civil and criminal contempt sanctions and to go after his license to practice law. However, because Gottstein believes he did nothing improper, he appealed this ruling and after numerous delays, briefing is just about complete. He wouldn't expect a ruling until late next year at the earliest. His legal fees in defending against Lilly's legal onslaught have so far been just under $300,000, including estimated unbilled fees, of which he still owes over $141,000. Of the $177,000 paid to date, some $42,000 has been paid through generous donations to the legal defense fund the International Center for the Study of Psychiatry and Psychology (ICSPP) set up. If you would like to make a donation to his legal defense fund it can be done at:

Jim Gottstein Legal Defense Fund
c/o Dominick Riccio, Ph.D.
1036 Park Avenue, Suite 1B
New York, NY 10028

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Bigley v. Alaska Psychiatric Institute
208 P.3d 168 (Alaska 2009)

FYI, Mr. Bigley is the person for whom Gottstein subpoenaed the Zyprexa Papers in late 2006, and whose representation the federal court in Brooklyn declared was a pretense. PsychRights has represented Mr. Bigley in a number of cases, both at the Superior Court level and in front of the Alaska Supreme Court, some of which ended up being public and some of which have not.

In this case, which is public, PsychRights challenged a number of aspects of Alaska's forced drugging assembly-line regime. In the trial court we were denied access to Mr. Bigley's medical records until after the forced drugging hearing had started, which the Alaska Supreme Court ruled a violation of Mr. Bigley's Due Process rights. We also had very short notice, which we also claimed denied Mr. Bigley's Due Process rights, but while the Alaska Supreme Court said there could be situations in which the amount of time given to prepare would be a violation of Due Process, because we had mounted a serious challenge in spite of the short notice, Mr. Bigley had not been prejudiced by the short notice.

We also challenged the sufficiency of the forced drugging petition on Due Process grounds. Under the Myers case, which we won in 2006, the Alaska Supreme Court held that Due Process prohibits the state from giving psych drugs to someone against their wishes, unless, in addition to finding the person incompetent to decide to decline them, the state proves the drugging is in the person's best interests and there are no less restrictive alternatives. The Alaska Supreme Court then ruled the trial court had to consider certain specific factors, to wit: the patient’s symptoms and diagnosis; the medication to be used; the method of administration; the likely dosage; possible side effects, risks and expected benefits; and the risks and benefits of alternative treatments and nontreatment. Our challenge was that the petition did not include any information on these factors and therefore Mr. Bigley's Due Process rights to notice of what he is being charged with and a reasonable opportunity to respond were violated. The Alaska Supreme Court agreed.

Our other major issue was to flesh out what it means for the Alaska Supreme Court to have said in Myers that the state can't drug someone against their will "if there is a less intrusive alternative available." In particular what does "available" mean? We argued that it didn't mean the state could just choose not to fund it and therefore it was not available. We also argued the state was required to provide the less intrusive alternative that we presented to the trial court. The Alaska Supreme Court didn't order the state to provide the less intrusive alternative, but said that if such an alternative was "feasible" (accepting the trial court's finding that it was not in this case), the state's only choices were to provide the less intrusive alternative or let the patient go.

The ruling that a less intrusive alternative is "available" if it is "feasible" is hugely important. It is somewhat disappointing that the court didn't order the state to provide it, but this is an area of the law we might get the Alaska Supreme Court to take another look at because it doesn't make sense in a certain regard. This is because the issue only comes up when a patient has been found by the court to be so dangerous to self or others that the court has found safety requires the person to be locked up. Saying that the state can then just let the person go instead of providing a feasible less intrusive alternative is not logical and inherently invalidates the dangerousness finding. The reality is, as we know, the courts rule people are a danger to themselves or others all the time when they are not in order to lock them up, but it seems a reasonable prospect that the Alaska Supreme Court will not approve of this if the issue is presented to it crisply enough.


PsychRights v. Alaska
Alaska Supreme Court Case No. S-13558

In this case, PsychRights filed a lawsuit against the state of Alaska and responsible officials (State) seeking declaratory and injunctive relief that Alaskan children and youth have the right not to be administered psychotropic drugs unless and until:

(i) evidence-based psychosocial interventions have been exhausted,
(ii) rationally anticipated benefits of psychotropic drug treatment outweigh the risks,
(iii) the person or entity authorizing administration of the drug(s) is fully informed, and
(iv) close monitoring of, and appropriate means of responding to, treatment emergent effects are in place, and that all children and youth currently receiving such drugs be evaluated and brought into compliance with the above.

The State responded that they didn't have any control over or responsibility for the psychiatric drugging children in their custody or any responsibility under Medicaid, and moved to dismiss the lawsuit (throw it out of court) on the grounds that PsychRights doesn't have standing (the right to bring the suit) because it wasn't harmed by the State's actions.

The judge went along with the State and dismissed the case. We think the judge is wrong and have filed an appeal. It probably won't be decided until some time in 2011.

Potential Not "Medically Necessary" Medicaid Fraud Case

One of the things that some people have criticized PsychRights for is its failure to frontally attack the current medical model dominating psychiatry, i.e., the notion that psychiatric symptoms are manifestations of a defective brain, such as a chemical imbalances or genes, which has led to drugs as the universal response. When Gottstein presented the "medically accepted indication" basis for Medicaid Fraud cases at ICSPP, Dr. Fred Baughman, the point that there is no basis for medical treatment of psychiatric treatments. Dr. Baughman, is the neurologist with a conscience who has been indefatigable in pointing this out. In thinking about it, I came to realize that just as prescriptions that are not for "medically accepted indications" constitute Medicaid Fraud, so do prescriptions that are not "medically necessary."

Dr. Baughman is very interested in pursuing such a case and we are working on it. Such a case should require the psychiatrist who is sued to go up against Dr. Baughman and probably some of our other experts, in front of a jury, to justify the prescriptions with scientific evidence as being "medically necessary." It is a totally intriguing possibility, I think it presents a way to confront prevailing psychiatric practice's basic premise, and I am grateful to Dr. Baughman for his steadfast advocacy respecting this most basic flaw in the current practice of psychiatry.

Electroshock

Fighting forced electroshock has always been on PsychRights' agenda and the current FDA Reclassification Docket (discussed next) is an opportunity that everyone should seize to try and keep the FDA from reclassifying electroshock machines as safe. In connection with this everyone should read Linda Andre's terrific new book, Doctors of Deception: What They Don't Want You to Know About Shock Treatment. If you want to read it and can't afford a copy, let us know and we might be able to get you one. Advocating against electroshock has taken a back seat to the drugging, but it is also very important and we should all be doing what we can to fight it. PsychRights expects to be working more closely with Ms. Andre and the Center for Truth in Psychiatry on Electroshock to try and get some traction on this issue. For now, everyone should write to the FDA about its current reclassification docket.

FDA Reclassification Docket

The Food and Drug Administration is in charge of regulating medical devices just as it does drugs, including the machines used to give Electroshock. It has allowed these machines to be used on millions of patients over the past generation without requiring any evidence whatsoever that shock treatment is safe or effective! This is so even though shock machines are Class III---high risk---devices, which by law are supposed to be investigated by clinical trials as thoroughly as new drugs and devices just coming onto the market.

The FDA is now supposed to require Electroshock machines to undergo the rigorous PreMarket Approval process (PMA) that is required of new devices, including clinical safety trials, but there is great risk the FDA will downclassify it to the low-risk Class II, without scientific evidence of its safety. The FDA has opened up a new docket for public comment on this and it is important for as many people as possible to write in with their opposition. Comments will be accepted up through January 2010.

You can make comments in writing to Food and Drug Administration, Dockets Management Branch (HFA-305), 5630 Fishers Lane, Room 1061, Rockville, MD 20852.

You can also submit comments by going to
http://www.regulations.gov
and either type in electroconvulsive therapy as a keyword, or the number of the federal register notice: 2009-N-0392. There is a coupon type form available at
http://psychrights.org/Actions/FDA/FDAShockDktFlyer.pdf
that you can use if you want.

Potential Electroshock Medicaid Fraud Case

PsychRights work on Medicaid Fraud regarding the psychiatric drugging of children has also made us realize that a similar approach might be mounted against electroshock submitted to Medicaid as not being medically necessary. PsychRights is just in the preliminary stages of potentially looking at such a lawsuit. This one might be directed at fraudulent researchers. Again, Linda Andre's terrific new book, Doctors of Deception: What They Don't Want You to Know About Shock Treatment is a must read for anyone interested in this topic.

National Organizing

PsychRights has made very good progress in Alaska, winning four Alaska Supreme Court cases since starting in 2003, and while PsychRights Medicaid Fraud Initiative Against Psychiatric Drugging of Children & Youth is a national effort, we have not otherwise gotten much traction in other states. This is because I am in Alaska and can take cases here. In order to do the same sort of thing in other states we need to develop organizational capacity in such states. The way we think it makes sense to organize in other states is to have what we call a "State Coordinator," which can be a person or organization. The key things that need to be done are

* Understand both the law for that state and what is actually happening, in order to determine the legal challenge(s) to pursue.
* Identify cases to pursue such challenges.
* Recruit attorneys and expert witnesses.

PsychRights is insufficiently funded to provide financial support of any significance towards this effort.

It seems probable that we need to recruit pro bono (volunteer) attorneys in most cases and we see the key to that is having a "package" that makes such representation attractive, including a legal analysis. In addition to the analysis of the Alaska situation in Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course, 25 Alaska L. Rev. 51 (2008), we have issued legal analyses in three states, New York, Massachusetts and Virginia, which gives some idea of what we mean.

New York -- Memorandum (Preliminary): Forced Psychiatric Drugging in the Community --Pro Bono Opportunity of Great Significance, August 18, 2008

Massachusetts -- Potential Strategies, October 6, 2007, and Opposing Forced Drugging ("Rogers Orders") in Massachusetts, February 1, 2004. If anyone is interested in being a State Coordinator, please contact us. We also could very much use a volunteer coordinator because I tend to be overwhelmed with what I am doing and not able to spend as much time on this type of organizing as is needed.

Virginia -- Memorandum re: Mental Health Commission Proposals, dated August 5, 2007.