Over the course of the past two months, I have penned two articles on the Fast Track to Hell-th research study being undertaken in Australia.

Like many people in the eating disorder industry and community, I spoke out against this potentially dangerous study. By speaking out, perhaps I also meant to say mocked and ridiculed the researchers who seem hell bent on proceeding with the study despite the legion of information indicating the study is ill advised and potentially dangerous.

Our colleague, Louise Adams, a Clinical Psychologist in Australia just published the latest article on the study.

Louise’s article is thorough and authoritative. As such, I cannot add anything of significance except to include it here for your reading edification:

Louise Adams – Fast Track Investigation

“Failure is simply the opportunity to begin again, this time more intelligently.”

Henry Ford

“Honesty is the fastest way to prevent a mistake from turning into failure.”

James Altucher, Author, Entrepreneur

Last week, The Morgan Foundation had the privilege of hosting a booth in the Exhibit Hall at the Academy for Eating Disorders’ 2019 ICED Conference held in New York City. During the Conference we met many incredible people engaged in the eating disorder industry.

The week prior to the Conference, the Chicago Tribune published an article containing some very alarming information regarding Timberline Knolls (“TK”) and its handling of the Michael Jacksa abuse scandal. This prompted additional investigation and based upon information gleaned, I published an article which was released during the Conference. The article echoed the information in the Chicago Tribune story but also provided additional information and facts surrounding the Jacksa Sandal. When a topic like sexual predators is involved, emotions tend to run high.

Early one morning before the crowd arrived at the Exhibit Hall, I was standing in the Morgan Foundation booth preparing for the day. Then, two individuals walked past our booth, stopped, looked at our very recognizable logo, turned and walked toward our booth. They introduced themselves and said they were from TK. My response was to respond along the lines of, “Well … the last week and a half have certainly been very challenging for you.” Emotions initially ran high and they believed my article was inaccurate and unfairly portrayed TK. Naturally, I asked for clarification and stated if any facts were shown to be wrong, as is my custom, I would issue a retraction and apology.

The senior person of the two was the current TK medical director, Dr. Johnny Williamson. Dr. Williamson and I ended up having a productive conversation. I gave some suggestions regarding the matter, we shook hands and parted. Without any reservation, I can say I have a great deal of respect for Dr. Williamson. He approached me on a topic on which he believed the facility had been wrongly portrayed and responded.

I also had the opportunity to speak with leaders in the eating disorder industry regarding the matter. When all aspects and issues about which I know were disclosed and discussed, thoughts behind this article crystallized. And so, I come not to bury Caesar, but to see, well … if Caesar can be revived.

The Scandal

On August 21, 2018, Michael Jacksa, a counselor at TK was arrested and charged with assaulting a 29 year old patient during two counseling sessions between May and June of 2018. Patients accused Jacksa of digitally penetrating their vaginas and buttocks, putting his hands beneath their clothing, fondling their breasts and forcing them to perform oral sex on him.

He was then indicted for sexually preying upon a second victim. The patient alleges that Jacksa sexually assaulted her during four therapy sessions at TK. The prosecutor said the second woman came forward after seeing media reports.

According to the prosecutor assigned to the case, at least six patients of Jacksa’s from across the country have contacted the Lemont Police Department, stating that Jacksa engaged in “inappropriate sexual behavior” during their respective therapy sessions.

And questions are being raised as to when TK knew about Jacksa and whether they allowed him continued access to patients after the allegations were made.

Sexual scandals and the #MeToo movement have brought down giants in the entertainment industry, executives in Fortune 100 companies and have reached into state and federal governments and many major corporations. It must be addressed openly and honestly and with total transparency. A failure to do so inevitably leads to severe consequences.

Frame the Issues

But first, in order to address and “get ahead” of the Jacksa Scandal, TK must become proactive. TK must act with purpose, confidence, and resolve. Both its words and actions must indicate that the Jacksa Scandal was unforeseeable and when they had information, they acted swiftly and surely. They must “Frame the Issues.”

When attorneys litigate a case, the attorney who successfully “frames the issues” in the case prevails the vast majority of the time. “Framing the issues” means successfully convincing the judge or jury what the case is “really” about. This causes the opposing party to abandon their plans and address and focus on those issues you wish to illuminate. “Framing the issues” gives you control over the issues, the information and the manner in which that information is disseminated.

If TK can find a way to “frame the issues” with regard to the Jacksa Scandal, it could take this looming disaster scenario and turn into an opportunity to become a leader in the eating disorder industry in the areas of proactive security measures and compassion for victims of sexual predators.

So, let’s look at the possible ways for TK to accomplish this.

Establish the Face of Your Organization

In five (5) years, TK has had at least five (5) Chief Executive Officers. Corporations, businesses, political parties and treatment centers get their reputation, strength, operational mandates and marching orders from their Chief Executive Officer. Dr. Ken Weiner at the Eating Recovery Center. Dirk Miller at the Emily Program. Benita Quakenbush at Avalon Hills. Rachel Levi at Shoreline Center for Eating Disorders. The largest private equity owned centers. Small independent centers. All with one thing in common. A crucially important item. Strong leadership.

With Timberline Knolls, there is no face of their program. On its website, TK currently lists Robert Turner as its CEO. Turner is an Acadia employee, a Division President. On his Linkedin profile, he does not even list CEO of Timberline Knolls as a current or past position. As an aside, there are misspelled words and grammatical errors on his Linkedin profile. Is this trivial? Or the sign of a sloppy person who is out of touch with the requirements and demands made upon leaders of companies?

To complicate matters, it appears he may not even be their current CEO. On a recent photo posted on LinkedIn, Ms. Jessica Elbe is listed as the current, interim CEO for TK. But, on her LinkedIn profile, her current position is listed as Chief Operating Officer of Seven Hills Behavioral Health Hospital in Henderson, Nevada. (Acadia owns Seven Hills).

To complicate matters even further, Sari Abromovich, on her LinkedIn profile, lists that she has been CEO of Timberline Knolls from March 2018 to present.

Three separate individuals. Each being held out or holding themselves out to be CEO. So, does TK have 3 CEOs at the same time? Or do they have none at all? Do they have one?

What we do know is that TK has no respected, known leadership. TK is owned by Acadia Healthcare, a publicly traded company. Apparently, Acadia is using the “revolving door” technique to cycle executives in and out of top positions among its 586 treatment centers. 5 CEOs and 4 medical directors in 5 years. This results in lax standards. Low morale and high turnover among employees. A company adrift with no firm resolve or clear purpose. This naturally leads to dissension, dissatisfied employees and turnover. All the while, the internet is replete with former employees of TK expressing these very attributes. And dissatisfied, disgruntled employees make mistakes … which lead to tragedies.

Point No. 1? Establish the face of your organization. Find a strong, independent CEO.

That CEO cannot be one of the many minions currently employed by Acadia. Your CEO must be independent. Your CEO must have experience in the eating disorder industry. Your CEO must have experience operating a distressed company. Your CEO must be above and beyond reproach. Your CEO must be media savvy. Give that CEO a multi-year contract. Include Acadia stock, for whatever that is worth, if you must as part of the payment package.

You do not have the luxury of having 3 people claim to be your CEO at the same time. You do not have the luxury of issuing three (3) separate press releases every time a newsworthy event occurs. One from Acadia. One from TK not even signed by any officer or employee. Another issued and signed by the medical director and not the CEO. That is the quintessential example of a confused, lost organization. A strong, insightful CEO could weather this storm. And yet, not even 1 of the 3 TK CEOs signed or endorsed even one of those three (3) statements. He/she has not issued any statements to the press.

One can’t help but wonder if they are even aware of the Jacksa Scandal. Especially since in the LinkedIn photo, Ms. Elbe is standing next to Dave Marinier and she writes, “Happy Birthday to our Director of Operations, Dave Marinier! Thank you for all that you do to keep our campus safe and secure.” Besides the six (6) victims and Margret Cho walking out when she was being checked in and then taking her own life, you are doing one hell of a job. And besides that, how did you like the play, Mrs. Lincoln?

Put an end to the revolving door clown show. Find and then embrace a powerful leader.

Be proactive with donations being returned.

Upon information and belief, this past year, TK donated $10,000 to the National Eating Disorder Association (“NEDA”). When the Jacksa Scandal became public knowledge, it was disclosed that NEDA was going to return the $10,000 donation to TK. Allegedly, TK representatives are no longer welcome at NEDA “Fun Walks.”

NEDA’s position is obviously a strong statement of disapproval and ostracism. And so, the question becomes how do you show that you are worthy of being accepted back into the community as an important and vital contributor?

First, you do NOT keep the returned donation.

You take that money representing the donation, and you donate it to an organization like RAINN. RAINN is the Rape, Abuse & Incest National Network. RAINN is the nation’s largest anti-sexual violence organization. It created and operates the National Sexual Assault Hotline. If not RAINN, another worthy organization whose mission includes assisting those who have been preyed upon by sexual predators. And a forward thinking CEO makes this donation public, not just through a press release but arranges media coverage.

And when the allegations made by each of Jacksa’s victims at TK are corroborated, you donate a similar amount for each and every victim. You send a clear, strong signal that never again will this reprehensible conduct be allowed or tolerated at Timberline Knolls… not just through your words but through your actions.

Point N0. 2? Take negative, detrimental criticism directed toward your company, and turn it into positive action that helps others who have been hurt. Be a strong, forward thinking company which doesn’t just say the appropriate words … it acts upon them.

Arrange and Pay for Counseling for the Victims

The victims of Jacksa were so incredibly vulnerable. They are struggling with this insidious, deadly disease. And they were cruelly betrayed. The scars from this betrayal undoubtedly exacerbated the severity of this disease. And it happened under TK’s watch. At this point, Jacksa’s victims do not need your words. At this point, Jacksa’s victims do not need to hear about how you have implemented security measures after the fact.

The Jacksa Scandal demands action, sure and strong.

As such, you communicate with the victims through their representatives or current counselors that you will be financially responsible for their treatment for one year. Counseling. Medication if needed. Psychiatrists. They do not need your empty words. They need strong action.

Undoubtedly, your attorneys will advise against this. They will say that this action is tantamount to an admission of guilt. That it will be used against you in litigation which will inevitably be filed by one, if not more of Jacksa’s victims. And certainly that is a risk. But, no great deed was ever accomplished without risk. This proposal can be communicated in a way to lessen that risk. After all, this gesture is not intended to be an admission of guilt. This is not an empty gesture. This is not a gimmick. It is the right and morally responsible thing to do. It shows strength of purpose and compassion for the victims.

Point No. 3? TK claims that patient safety and quality care are its primary foci. And yet, TK’s patients’ safety has been compromised. And from this horrendous experience arises an opportunity. This is TK’s opportunity to take action, to show it stands behind its noble words. With this, TK can assist in starting the process by which those patients who were harmed, can receive the care they need … without the constraints of financial worries.

Implement State of the Art security measures.

The mental health industry has known since at least 1991, when Kenneth Pope published the definitive research study on “Prior Therapist – Patient Sexual Involvement Among Patients Seen by Psychologists” that sexual interaction between therapist and patient was far more prevalent than believed. Studies indicate that harm occurred in at least 80% of the instances in which the therapists engaged in sex with a patient after termination.

With eating disorder patients being so vulnerable mentally, emotionally and physically, their safety and well-being are of the highest importance. And because of the predatory nature of the criminal minds who exploit this vulnerability, treatment centers must be proactive, intelligent, anticipatory and creative. More often than not, these treatment centers fail in this mission. 

In one of TK’s three statements on the Jacksa Scandal, TK stated in material part: “State-approved protocols and rigorous training processes are implemented not only so that employees of Timberline Knolls are well-versed in the expectations and standards to which they will be held, but also to ensure that only the most optimal employees are selected to work with our residents. Every prospective employee undergoes a comprehensive pre-employment screening and background check. Tragically, this particular former employee managed to manipulate our policies, protocols, and procedures, and we have conducted a thorough investigation into how this happened so that it does not occur again.”

So, a sexual predator found a way to avoid TK’s policies and procedures even after TK adopted “state-approved protocols.” Far too often people believe that once state approved policies, rules or procedures have been adopted or approved, that is the end of the process and your guidelines are sufficient. If you believe that, you are mistaken. State or federal policies or rules are not the end of the process. They are only the beginning. They represent the bare minimum standard to which an entity must comply. And when has the bare minimum been good enough for any great accomplishment?

In one of TK’s statements, TK notes the new changes which have been implemented, Unfortunately, “the horse already left the barn.” Presumably, these changes were made after an internal review. And the question of whether the same people who came up with the prior inadequate policies, rules and procedures which were eluded by one, lone sexual predator came up with the changes and new policies?

TK needs to get in front of this issue. TK needs to consult with law enforcement, the Federal Bureau of Investigation and outside companies which specialize in implementing safety rules and procedures for both employees and patients. A proactive company explores procedures much more thoroughly than simply performing an internet search on a person.

Families come to places like TK when they are in the pit of despair. Fear rules their lives. Imagine being able to tell those families that your policies and procedures were put in place only after consulting with federal and state agencies and are designed to do one thing, and one thing alone, protect the health, safety and welfare of their patients.

Point N0. 4? Your claim of prioritizing patient safety has been compromised and exposed. As such, TK must go above and beyond the bare minimum. It must set a new standard and elevate security procedures and employee vetting to the highest level. We live in the expanding age of technology and the internet. We entrust TK with the lives of our children. To reclaim the initiative they must originate then implement procedures that the rest of the industry will struggle to catch up with.

TK must become autonomous

Acadia Healthcare, a publicly traded company owns Timberline Knolls. Acadia purchased TK in 2012 for $90 million. Acadia is obviously now making the high level decisions for TK. For TK to survive, that must immediately stop.

TK must be allowed to operate as an autonomous, independent eating disorder treatment center. Not as a small profit center for a multi-billion dollar company. Decisions must be based on what is in the best interests of the patients and must not be profit driven alone.

But, there is another reason for TK to be autonomous. In the recent previous post about the Jacksa Scandal, various lawsuits against Acadia were detailed. Then, a more recent lawsuit was discovered. A lawsuit that if successful along the lines of the Wit case would spell the end of Acadia.

In February of 2019, a lawsuit was filed against Acadia and its upper tier officers in federal court in Tennessee (“Davydov case”). The lawsuit is a shareholders derivative complaint. This type of lawsuit is brought on behalf of shareholders against individual officers and directors of a corporation alleging they are not acting in the corporation’s best interests. Like the Wit case, the attorneys in this case specialize in that particular area of law. They are based in San Diego. And they have established a reputation of excellence.

The allegations in the Davydov case are shocking. The shareholder alleges Acadia sought to improve its profit margin by increasing the number of beds for patients while reducing staffing expenditures, its largest expense. He alleges the individual officers and directors withheld information pertaining to critical health and safety measures and thereby operated unsafe facilities. The Davydov case details numerous instances of improper care, of patients committing suicides at a number of Acadia owned facilities.

Sexual assaults against patients in other Acadia facilities are detailed.

The Davydov case specifically alleges:

“An extensive investigation conducted by Aurelius Value based on over 600 state and federal inspection reports as well as court records, media reports, lawsuits, and police records, confirmed the allegations contained in the Seeking Alpha report. In particular, Aurelius Value’s investigation found: (i) numerous patients, including children and teenagers, have died due to alleged negligence or malpractice at Acadia facilities; (ii) recurring reports of sexual abuse and physical assaults on vulnerable patients that have allegedly been perpetrated by Acadia employees or unmonitored patients; (iii) repeated instances of patient neglect or deficient care linked directly to staffing problems at Acadia facilities; and (iv) a pattern of whistleblower allegations made by former employees who say the Company retaliated against them after they reported fraud or misconduct.”

The 84 page complaint details a web of insider trading, patient abuse, patient suicide, misrepresentations, fraud perpetrated by Acadia. And for the reasons set forth above, Acadia has absolute control over TK.

Point No. 5? TK exists in name only. TK has no direction. TK has no leadership. For TK to start to thrive, Acadia must let loose its grip and allow TK to operate autonomously.

The Undiscovered Country

In Shakespeare’s “Hamlet,” the term “Undiscovered Country” is used. In the Bard’s context it refers to the concept of death, the mysteries of the afterlife, our lack of understanding and knowledge about it. And the fear of it.

More recently, in 1991, the movie, “Star Trek VI – The Undiscovered Country” was released. During a toast amongst the characters, the toast, “To the Undiscovered Country” is given. In that context, the Undiscovered Country refers to the future … and the endless positive possibilities which exist. It embraces a future of hope.

Embracing the future or fearing death. Those are the realities and choices now facing Timberline Knolls and Acadia. If Acadia keeps utilizing Timberline Knolls as a testing ground for its executive officers leaving it without a real leader and strong voice, it will surely fail. And our children will continue to suffer.

If however, Timberline Knolls is allowed autonomy and independence, without interference from Acadia, it can reclaim its place as a leader in the eating disorder industry.

The Undiscovered Country awaits.

“Justice is the set and constant purpose which gives every man his due.”

          Marcus Tullius Cicero, Orator, Philosopher

“Long is the way and hard, that out of Hell leads up to Light.”

          John Milton, Paradise Lost

At the recent 2019 International Conference of Eating Disorders hosted by the Academy for Eating Disorders (“AED”), I assisted organizing a 90 minute discussion with one of the lead attorneys from the Wit v. United Healthcare case. Some of the brightest minds in the eating disorder industry attended this discussion. The insightful questions directed toward attorney Brian Hufford demonstrated a clear understanding of the significance of the case and its possible future ramifications and impact on families and patients undergoing treatment.

One of the questions proffered was whether doctors, counselors, therapists and treatment providers can already start to use the ruling and the language within the ruling to best help their patients, and if so, how that can be accomplished.

This article will focus on responding to that question. We will analyze findings within the ruling that treatment professionals can utilize when conducting preauthorization or peer-to-peer reviews or appeals with medical providers used by UBH/Optum. Arguably, the arguments can also be used with other insurance benefit providers but some of the discussions will have to be specially tailored to fit the company involved and the types of treatment at issue.

Undoubtedly, UBH/Optum may attempt to argue the ruling is merely a preliminary ruling subject to appeal. UBH/Optum may also argue that the Court did not specifically enter an injunction preventing it from continuing to rely upon its now disgraced guidelines. They do so at their peril.

These arguments are tantamount to saying, “We understand a Court determined we did not comply with our duty of good faith and fair dealing with our insureds. We understand the Court found our guidelines were woefully inadequate. We understand the Court held that our guidelines did not comply with the applicable standard of care. We understand the Court determined our doctors and expert witnesses were not credible. Nonetheless, we are going to continue to let Rome burn while going scorched earth on our insureds.”

Stand your ground.

Summary of Considerations and Arguments

1. Understand that UBH’s treatment guidelines were found to not comply with generally accepted standards of care. UHB violated its sacred duty of good faith and fair dealing with its insureds, your patients in devising, implementing and enforcing these Guidelines.
2. Focus your requests for preauthorization and peer-to-peer reviews on these generally accepted standards of care and not UBH’s discredited guidelines. UBH’s guidelines do not comply with the generally accepted standards of care. Do not initially focus on the patient.
3. Be familiar with the legal interpretation used by the Court in Wit as to what constitutes the generally accepted standards of care.
4. Insist that the Peer Review Doctor disclose the exact criteria they are relying upon in reviewing your patient’s request for treatment. Although UBH is not legally prohibited at this time from continuing to use its Guidelines, these Guidelines do not comply with the generally accepted standards of care. Therefore, does reliance on discredited Guidelines constitute possible malpractice by the Peer Review Doctors and subject them to disciplinary action?
5. According to the Wit decision, Peer Review Doctors do not have the authority to make clinical decisions which contradict or violate these discredited Guidelines. Therefore, determine the exact basis those Peer Review Doctors have for refusing initial treatment or denying additional treatment.
6. Finally, make your case as to why your patient requires additional treatment under the generally accepted standards of care using the objective criteria set forth in the Wit (condensed below)
7. Be Bold. Be Resolute.

Argument One – Focus on their discredited guidelines

Your initial focus MUST be on UBH’s failed Guidelines and not the patient. Again, YOUR INITIAL FOCUS MUST BE ON THEIR DISCREDITED GUIDELINES AND NOT THE PATIENT!

This may seem counter-intuitive. After all, you may believe it is the patient that is the issue. You may believe it is the patient’s health and treatment at issue. It may be the way you have always conducted peer-to-peer reviews. We now know there is a new reality. Your patients, their insureds are merely corporate commodities and are being treated as such by UBH.

\Mental health parity may define the game. But, the insurance company’s guidelines define the rules of the game.

If you do not know the rules of the game, how can you possibly play the game to the best effect for your patient? If the rules of the game have always been stacked against your patient, and those rules have now been thrown out, what is the insurance company and their peer review doctor going to rely upon? At this point, they only have one safe, credible criteria upon which they can rely. One criteria which complies with the insurance company’s duty of good faith and fair dealing. One criteria which protects their own credibility and insulates them from possible board complaints. And that is, the generally accepted standards of care.

If you choose to continue to first focus on the patient, your patients will continue to lose. You are playing by their rules. Rules which have been discredited and shown to not comply with the generally accepted standards of care.

When attorneys litigate a case, the attorney who successfully “frames the issues” in the case prevails the vast majority of the time. “Framing the issues” simply means successfully telling the judge or jury what the case is “really” about. This causes the opposing party to change their strategy, address and focus on the issues you wish to illuminate. In the Wit case, the plaintiffs’ attorneys successfully prosecuted the case as a breach of the insurance company’s fiduciary duties to the insured. The attorneys did not have to argue that the game itself, mental health parity was violated. Instead, they argued the rules of the game, the guidelines were grossly unfair if not predatory.

Argument One – Frame the Issues! Initially, focus on UHB’S lack of credible guidelines, guidelines which have been discredited and which do not comply with the generally accepted standards of care.

Argument Two – Know the legal interpretation of the generally accepted standards of care

What are the accepted standards of care? Medical providers work with and comply with the accepted standards of care on a daily basis. And yet, it is peculiar that a magistrate judge in San Francisco nonetheless identified what those standards were. The manner in which a judge or arbiter is likely to interpret this issue is crucially important. Once you know these standards, you have additional evidence and arguments to fight for the rights of your patient.

Criteria Relied Upon

The Court in Wit relied upon the following criteria in determining the generally accepted standards of care:

1) The American Society of Addiction Medicine Criteria (“ASAM Criteria”);

2) The American Association of Community Psychiatrist’s (“AACP”) Level of Care Utilization System (“LOCUS”);

3) The Child and Adolescent Level of Care Utilization System (“CALOCUS”) developed by AACP and the American Academy of Child and Adolescent Psychiatry (“AACAP”), and the Child and Adolescent Service Intensity Instrument (“CASII”), which was developed by AACAP in 2001 as a refinement of CALOCUS, and;

4) The Medicare benefit policy manual issued by the Centers for Medicare and Medicaid Services (“CMS Manual”).

The Court also found generally accepted standards of care included:

1) The APA Practice Guidelines for the Treatment of Patients with Substance Use Disorders, Second Edition;

2) The APA Practice Guidelines for the Treatment of Patients with Major Depressive Disorder, and;

3) AACAP’s Principles of Care for Treatment of Children and Adolescents with Mental Illnesses in Residential Treatment Centers.

The Generally Accepted Standards of Care

Based upon the evidence, testimony and the criteria set forth above, the Court determined that the following standards are generally accepted in the field of mental health and substance use disorder treatment and placement.

1. It is a generally accepted standard of care that effective treatment requires treatment of the individual’s underlying condition and is not limited to alleviation of the individual’s current symptoms.
2. It is a generally accepted standard of care that effective treatment requires treatment of co-occurring behavioral health disorders and/or medical conditions in a coordinated manner that considers the interactions of the disorders and conditions and their implications for determining the appropriate level of care.
3. It is a generally accepted standard of care that patients should receive treatment for mental health and substance use disorders at the least intensive and restrictive level of care that is safe and effective.
4. It is a generally accepted standard of care that when there is ambiguity as to the appropriate level of care, the practitioner should err on the side of caution by placing the patient in a higher level of care.
5. It is a generally accepted standard of care that effective treatment of mental health and substance use disorders includes services needed to maintain functioning or prevent deterioration.
6. It is a generally accepted standard of care that the appropriate duration of treatment for behavioral health disorders is based on the individual needs of the patient; there is no specific limit on the duration of such treatment.
7. It is a generally accepted standard of care that the unique needs of children and adolescents must be taken into account when making level of care decisions involving their treatment for mental health or substance use disorders.
8. It is a generally accepted standard of care that the determination of the appropriate level of care for patients with mental health and/or substance use disorders should be made on the basis of a multidimensional assessment that takes into account a wide variety of information about the patient.

Argument Two – These objective guidelines and criteria are determinative and must be utilized by both treating doctors and doctors employed as peer review doctors. If the peer review doctor does not recognize, comply with nor utilize these standards, questions can then be raised regarding that doctor’s competence and objectivity.

Argument Three – UBH/Optum’s Guidelines were determined to be unreasonable and do not reflect the generally accepted standards of care.

The Court in Wit specifically held: “Applying the standard of review discussed above, and based on the Findings of Fact related to the challenged Guidelines and UBH’s Guideline development process, the Court finds, by a preponderance of the evidence, that UBH has breached its fiduciary duty by violating its duty of loyalty, its duty of due care, and its duty to comply with plan terms by adopting Guidelines that are unreasonable and do not reflect generally accepted standards of care.” [emphasis added]

The Court also found, “In this case, the denial letters (or in a few cases, the case notes) reflect that each class member’s denial was based on UBH’s determination that the member failed to meet the criteria in UBH’s Guidelines. See Trial Ex. 896 (Class List stipulation); Trial Ex. 894 (denial letter and case note excerpts for Claim Sample).”

Since UBH’s guidelines were found to be defective and do not comply with the generally accepted standards of care, and each denial was based on those faulty Guidelines, it is axiomatic that each denial for treatment for all of the Class Members was improperly denied. If UBH’s peer review doctors continue to rely upon those Guidelines, they in essence will be committing medical malpractice. And once again, UBH will be violating its duty of loyalty, good faith and fair dealing.

And yet, why can’t the peer review doctor simply disregard the Guidelines and recommend compliance with the generally accepted standards of care? … Because UBH’s Guidelines do not allow this.

UBH/Optum’s employees and peer review personnel do not have the authority to contradict or violate the Guidelines.

A peer-to-peer review is typically done as a scheduled telephone call between the Peer Review physician acting on behalf of the insurance provider, and the healthcare professional who requested the review. The Peer Reviewer applies the health plan’s medical coverage guidelines to the clinical information, is supposed to use clinical judgment, and renders a decision. Although the Peer Reviewer is a delegate of the insurance company, and is paid by the insurance company, allegedly the Peer Reviewer receives no financial incentive to deny or to approve a request. And yet, even a cursory investigation reveals that numerous peer review companies exist and market themselves with some even touting its transparent, competitive pricing. 

In the Wit case, the Court noted the following: “A Peer Reviewer’s job is to decide, for each request for coverage, whether the prescribed treatment meets the criteria set forth in the Guidelines. Trial Tr. 725:18-726:11 (Triana); Trial Tr. 1102:17-19 (Martorana); see also Trial Exs. 256-0018, 257-0020, 258-0018,259-0019, 260-0010, 261-0012, 262-0013 (Utilization Management Program Descriptions); Trial Tr. 309:15-18 (“UBH bases coverage determinations on the Level of Care . . . Guidelines, the Coverage Determination Guidelines . . . , and/or the psychological and neurological testing guidelines.”) (Niewenhous quoting Trial Ex. 735-0026). testifying that Peer Reviewers can depart from the Guidelines if their clinical judgment “takes them there”); Trial Tr. 1404:25-1405:2 (Allchin) (testifying that he had issued coverage determinations that were inconsistent with the Guidelines and had not required authorization to do so).”

The Court found this testimony to not be credible when it stated: “Dr. Simpatico’s opinions about the Guidelines were premised on the assumption that practitioners making medical necessity determinations for UBH are authorized to ignore the plain language of the Guidelines when it is inconsistent with generally accepted standards of care. The evidence presented at trial does not support that assumption. While the Guidelines allow for some exercise of clinical judgment, they are the criteria against which UBH Peer Reviewers make clinical coverage determinations, and they are mandatory. Trial Tr. 732:20-733:3 (Triana). Because there is no evidence in the record that the words in the Guidelines can be ignored by the Peer Reviewers when they are in conflict with generally accepted standards of care – or that they are, in fact, used that way – the Court finds that Dr. Simpatico’s testimony on the question of whether the Guidelines are consistent with generally accepted standards of care was not credible.” [emphasis added]

The Peer Review doctors do not have authority to make treatment decisions which contradict the guidelines. These guidelines have been conclusively shown to not comply with the generally accepted standards of care. Therefore, on what possible basis do the Peer Review doctors and/or insurance company have for denying coverage for treatment, which the attending physician states is necessary in accordance with the generally acceptable standards of care?

The Peer Review Doctors are faced with a “Morton’s Fork” dilemma. UBH mandates that clinical coverage determinations must be made in accordance with their Guidelines. But, those Guidelines violate the generally accepted standards of care and violate their duty of good faith and fair dealing with their insureds. Therefore, if the Peer Review Doctor issues a treatment decision in accordance with those Guidelines, he/she is arguably committing medical malpractice, is violating the insured’s/patient’s rights and could be subjecting themselves to disciplinary proceedings by State Boards of Medicine. But, if the Peer Review Doctor issues a decision which violates the UBH Guidelines, they could be in breach of their contract with UBH and have their contract terminated.

Clearly, UBH and the Peer Review Doctors epitomize the Bard’s expression, “Hoisted with his owne petard.”

We will now focus on a few of the Court’s more specific rulings which could assist you in your interaction with Peer Review Doctors.

UBH/Optum’s guidelines violate the standard of care pertaining to placement into and movement among levels of care.

It is a generally accepted standard of care that patients should be placed at the least restrictive level of care that is both safe and effective and that practitioners should err on the side of caution when there is uncertainty by placing patients at the higher level of care. Further, the fact that a lower level of care may be less restrictive does not justify moving the patient to that level of care if it is also likely to be less effective in treating the patient’s overall condition – including the underlying condition and any co-occurring conditions – even if movement to the lower level of care may be safe.

UBH’s Guidelines do not adhere to these principles. The Court noted: “Instead, they actively seek to move patients to the least restrictive level of care at which they can be safely treated, even if a lower level of care may be less effective for that patient.”

“It is a generally accepted standard of care that where there is uncertainty as to the likely effectiveness of different proposed levels of care, practitioners treating patients for mental health and substance use disorders should exercise caution by selecting the higher level of service intensity. See Trial Ex. 653-0007 (LOCUS) (stating that when there is “ambiguity” with respect to the appropriate level of care practitioners should assign the “highest score in which it is more likely than not that [at] least one criterion has been met should generally be assigned” so that “errors [regarding the appropriate level of service] will be made on the side of caution”)”

Finally, the Court held, “Placement in a less restrictive environment is appropriate only if it is likely to be safe and just as effective as treatment at a higher level of care in addressing a patient’s overall condition, including underlying and co-occurring conditions.”

The Court found that UBH violated this accepted standard of care.

UBH/Optum excessively over-emphasized financial considerations and ramifications when it generated its Guidelines.

The Court placed great emphasis on the manner in which UBH/Optum originated, adopted and amended its guidelines. The Court ruling contains numerous references to an improper emphasis on financial consideration and not medical guidelines.

The Court specifically held:

“In any event, the record is replete with evidence that UBH’s Guidelines were viewed as an important tool for meeting utilization management targets, “mitigating” the impact of the 2008 Parity Act, and keeping “benex” down. See, e.g., Trial Ex.768-0009 (2014 presentation describing “[c]ontinued use of concurrent review to ensure appropriate utilization” as the “Mitigation Strateg[y]” for Parity’s “[r]emoval of day and visit limits on IP, Intermediate and OP”); Tr. 307:4-24 (Niewenhous).”

“Perhaps the most telling example of the emphasis UBH placed on financial considerations in its decision making with respect to the Guidelines relates to UBH’s decision not to adopt the ASAM Criteria for making substance use disorder coverage determinations.” “Despite the clear consensus among UBH’s addiction specialists that the ASAM Criteria were preferable to UBH’s own Guidelines from a clinical standpoint, UBH consistently refused to replace its standard Guidelines with ASAM Criteria without first obtaining approval from the Finance Department. 

UBH/Optum’s guidelines emphasized acute symptoms at the expense of chronic underlying conditions and co-current illnesses.

The Court extensively reviewed the Guidelines and other related documents submitted by UBH. The Court found that UBH’s Guidelines were sorely lacking.

“The Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions. While the particular form this focus on acuity takes varies somewhat between the versions, in each version of the Guidelines at issue in this case the defect is pervasive and results in a significantly narrower scope of coverage than is consistent with generally accepted standards of care.”

“The primary focus of the Guideline development process … was the implementation of a “utilization management” model that keeps benefit expenses down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”

Finally, the Court determined, “For the reasons discussed above, those Guidelines embody a much narrower focus aimed primarily at alleviating acute symptoms and managing crises while ignoring the question of whether treatment is likely to be effective in addressing the member’s underlying condition or, in UBH’s words, supporting the member’s “broader recovery, resiliency and wellbeing.”

UBH/Optum’s guidelines violate the standard of care with respect to treatment of children and adolescents.

Of the many faults and misdeeds perpetrated by UBH, its knowing violation of the standard of care for treatment of children and adolescents is perhaps the most reprehensible. The Court in its ruling stated:

“One of the most troubling aspects of UBH’s Guidelines is their failure to address in any meaningful way the different standards that apply to children and adolescents with respect to the treatment of mental health and substance use disorders. Throughout the Class Period, UBH failed to adopt separate level-of-care criteria tailored to the unique needs of children and adolescents. Nor do the Guidelines instruct decision-makers to apply the criteria contained in the Guidelines differently when the member is a child or adolescent.”

The Court attacked the credibility of the expert witness retained by UBH wherein it stated,” … his testimony that UBH’s Guidelines are consistent with generally accepted standards of care with respect to the treatment of children and adolescents, which he based primarily on the “clinical best practices” in the Guidelines, was not persuasive in light of his admission that the unique factors that relate to the placement of children and adolescents are absent from the coverage criteria in the Guidelines. See Trial Tr. 1377:13-20 (Allchin) (testifying that the clinical best practices section contains “sufficient detail to tease out aspects that are developmentally related” to make up for the lack of coverage criteria tailored to young people).”

Ad Infinitum

Ad infinitum is a Latin phrase roughly translating to “again and again, in the same way, forever.” The Wit decision is a 106 page “Perfect Storm” revealing the blue print dissecting the manner in which an insurance company can ignore the mandates of the Mental Health Parity Act of 2008 and the Affordable Care Act. 

The message to our medical providers, our therapists, our counselors, our treatment providers has never been clearer. The game has changed. The rules have been thrown out. It is your turn now. It is your time now. You know how to attack the insurance companies and the Peer Review doctors. The method of obtaining life saving treatment for your patients, our loved ones is set forth above. And the only issue is… what are you going to do about it?

This article could go on for thousands of additional words detailing the manner in which the Court dissected UBH’s bad faith conduct and emphasis on increasing its profit margin at the expense of the lives of your patients, their insureds, our loved ones.

United Healthcare reported net profit in 2017 of $163.3 billion.

Optum reported a profit of $91.2 billion for 2017.

Approximately 8500 people in the United States died as a direct result of eating disorders in 2017.

For each child … for each loved one … for each beloved soul taken … UBH earned a net profit of $29,882,352.00 for each life taken by this disease. Approximately $29,000,000 per hour. Every hour. Every day. Every week. Every month.

29,882,352. The same approximate number of people in the United States who will suffer from this disease.

Doctors, counselors, therapists, medical professionals … It is YOUR time. It is our time.

One life = $29,882,352.00.

One Life. One Precious Life.

“It is almost always the cover up, rather than the event that causes trouble.”

Howard Baker, Former White House Chief of Staff

And it is the mental health and the very life of our most vulnerable that matters the most. But to those with a financial interest alone, it matters the least. And if we do not surely speak out and take action against those would seek to profit from that reality we bear the shame for that.

On March 5, 2019, a federal court in California rendered its industry-changing decision in the case of Wit, et al v. United Healthcare, et al. Patrick Kennedy, former representative from Rhode Island and mental health advocate stated, “This ruling is the Brown v. Board of Education for the mental health movement.”

Brown v. Board of Education was a unanimous US Supreme Court decision rendered in 1954 holding that racial segregation of children in public schools was unconstitutional.

The future will determine whether the Wit decision has the society changing impact Brown did. We do know that the Wit decision overshadowed any other immediate news stories regarding mental health.

This includes a very disturbing story first published on March 6, 2019 and which then received wide distribution the next day when a Chicago Tribune writer authored a column on the events at the heart of that story.

I had previously written about the allegations of sexual assault perpetrated by a Michael Jacksa at Timberline Knolls which occurred during the spring and summer of 2018. The article appears here:

TK – Jacksa Incident

The article details the ugly reality that predatory sexual interaction between therapists and patients is much more prevalent than what we are led to believe. And if the Jacksa matter ended with the facts as known, him pleading guilty then being sentenced to a jail term, we could attribute that tragedy as an isolated incident. And we could probably assume that Timberline Knolls could not possibly have known beforehand or taken steps to lessen the likelihood of it happening. After all, at the time, Timberline Knolls stated that they have a “zero tolerance policy for any activity that endangers the physical or emotional wellbeing of a resident.” Or … do they?

Law enforcement conducted its investigation. And 2 + 2 did not equal 4. And the coverup began to unwind. 

Questions and Concerns

Treatment centers get their reputation, operational mandates and marching orders from their Chief Executive Officer who ostensibly does the bidding of the board of directors. For example, like him, dislike him, respect him or not, there is no doubt that Dr. Ken Weiner is the face of Eating Recovery Center. So too, Dirk Miller is the face of the Emily Program. And whereas in the past, I have questioned certain practices of these organizations, there is no dispute that these gentlemen are the strong, guiding rudders for their organizations. And that is certainly worthy of respect.

With Timberline Knolls, there is no face of their program. In 2018, a former employee wrote the following: “In five years, they [Timberline Knolls] have had 4 medical directors and 5 CEOs.” On its face, this statement seemed a bit outlandish. But, research disclosed that Timberline Knolls had the following Chief Executive Officers:

Dr. Kim Dennis – 2013 (who left and started Suncloud Health)

William Parsons, Jr. – 2016

Colleen Kula Hopkins – 2017

Sari Abromovich – 2018

Rob Turner, PhD (who although appearing as CEO on the Timberline Knolls website, on his Linkedin profile, does not list his affiliation with Timberline Knolls but does list himself as a Division President for Acadia)

There may be others whom I missed. On Mr. Turner’s Timberline Knolls page, he describes the job duties for which a CEO is responsible: “As CEO, Dr. Turner is responsible for the operational and functional well-being of Timberline Knolls. He has primary responsibility for the development, implementation, and achievement of the strategic business plan in conjunction with routine operations to include: quality of care, staff development, maintenance of licensure and accreditations, financial performance, and continuous performance improvement.”

Any respected CEO has their own unique vision for the company entrusted to them. Implementation of that vision may take time. It could involve changing the corporate environment and attitude. Trust must be established with other officers. So, how is any company supposed to establish consistency, vision, ideals and a reputation of excellence when your leader is changing every year? A revolving door of CEOs conveys just the opposite message … that you are a company adrift with no resolve or purpose. This naturally leads to dissension, dissatisfied employees and turnover. All the while, the internet is replete with former employees of Timberline Knolls expressing these very attributes. And dissatisfied, disgruntled employees make mistakes … which could lead to tragedies.

The Chicago Tribune article contains many alarming facts and information apparently gleaned from the police investigation and contained within the reports generated. One such statement is: “In early July, when Timberline staff discovered journal entries by a patient that described her sexual encounters with Jacksa, they confronted the woman in his presence, police reports show.” [emphasis added]

First, the employee who authorized the “internal investigation” to include the predator being present with the victim when she was asked to relive the horrific experiences should be keel-hauled.  The accepted standard is to not permit the alleged predator to be present when the victim is giving her account.

The article states that the date of “early July” is allegedly the first date upon which Timberline Knolls knew of the abuse. Or is it?

On the website, glassdoor.com, employees can make anonymous reviews of their workplace. Now, I tend to look upon most reviews with a skeptical eye. Many people do not like their workplace, or immediate supervisor and websites like glassdoor.com give them an outlet for their frustration. But, one review of a former Timberline Knolls employee was poignant. This employee stated: “The management, cuts corners in health care, does not support staff when horrific things happen.” [emphasis added]

The date of this post? June 18, 2018. This date is prior to the date referenced in the article and leads one to speculate that Timberline Knolls knew that it had a horrific problem even earlier. Because of its significance, the webpage containing this allegation is attached at the end of this article.

Of great concern, one article published in the Legal Herald dated August 24, 2018 states, “Investigators believe that Jacksa assaulted a 29 year old female patient during two counseling sessions between May and late June 2018.”

If the date of the former employee’s post is accurate, that is June 18, 2018, and Jacksa was permitted to prey upon patients until late June 2018, we are drawn to the inescapable conclusion that Timberline Knolls KNEW Jacksa was a predator … and continued to allow him free access to his victims.

Further, if the date of this post is accurate, then we can only draw one of three logical conclusions. (1). Timberline Knolls knew of Jacksa’s reprehensible conduct before early July and either took no action or covered up this information; (2). The employee is making reference to another horrific incident which has not been brought to light, or (3). The employee is lying and it is just a random and bizarre coincidence that the predatory nature of Jacksa was exposed 2 – 3 weeks after that posting. Of the three, I submit that possibility 3 is the least likely. Regardless of whether conclusion 1 or conclusion 2 is the truth, both cast grave doubt on the credibility of Timberline Knolls. And questions must be asked whether Timberline Knolls is complicit in the damage done to the victims of these heinous crimes.

Another disconcerting statement in the Chicago Tribune article was as follows: “The administrator explained to police that administrators of individual Acadia facilities “have to contact corporate with these matters and corporate tells them to investigate and investigate more before they are allowed to call police,” according to a Lemont police report released to the Tribune under open records laws.”

Spokesman for Timberline Knolls, Gary Mack [who, as an aside, should never be allowed in the same zip code as a microphone ever again] then refuted that statement and said the administrator of the facility is expected to contact law enforcement on any criminal matters. One is left to wonder which policy is applicable, the statement given to investigators during an on-going criminal investigation or a statement made by a spokesman with the time and opportunity to “spin” a story? If one believes the first statement (when obstruction of justice and hampering an on-going investigation charges could result in criminal liability), then the parent company, Acadia finds itself embroiled in each investigation. And for Timberline Knolls … that is a tremendous liability.

Recent Acadia Lawsuits

Acadia Healthcare owned entities have been involved in these recent lawsuits and disputes:

West Memphis, AR: Ascent Treatment & Outpatient Clinic. In June 2017, four employees were charged with manslaughter after a 5-year-old boy died. The following month, the child’s family filed a wrongful death suit against Ascent (owned by Acadia), the employees, and its corporate entities for $135 million. KARK reported that: Ascent Children’s Health Services CEO Dan Sullivan admits some employees didn’t follow correct protocol and were fired.

Philadelphia, PA, Belmont Hospital. In a one-week period in 2017, two suicides occurred at the facility. A lawsuit charges that the facility lacks sufficient and appropriately trained staff. The State cited the facility for lack of staff and lack of facilities that would prevent suicides, among other things. When state inspectors visited in November of 2017, they declared a state of imminent danger.

Fort Myers, FL, Park Royal Hospital. In 2017, the location’s top physician since 2012 resigned, citing the decline of the facility under Acadia. He said: “Ultimately, it became a matter of principle over passion, and the former was non-negotiable for me.”

The hospital risk physician told regulators that she had:

… walked into a hot mess of an organization.

According to a report from the Centers for Medicare and Medicaid Services. Federal inspectors back them up, saying in a report that the facility is:

… too short-staffed to properly supervise patients, ignoring their complaints, and had poor quality control procedures in place.

Sexual assault against patients is alleged to have occurred as well.

New Baltimore, MI, Harbor Oaks Hospital. The facility has been accused of rampant patient and staff abuse, and allegedly inflates staff to appropriate levels only when a visit from the Joint Commission is expected. A month-long news investigation by WXYZ of Detroit, MI, found:

… a pattern of assaults on staff dating back years, repeated allegations of physical and sexual abuse involving patients.

Ada, OK, Rolling Hills Hospital. An alleged cover-up attempt at the hospital by not reporting the deaths of patients to the facility’s governing body. A lawsuit from one of the victims, Shannon Archer, highlights the conditions of neglect. This patient was admitted for alcoholism, but suffered permanent brain damage when, allegedly, a patient violently grabbed her from behind, grasping her hair and viciously slammed her head into the concrete floor. The other lawsuit, which involves an unnamed minor, alleges denial of critical emergency medical care, as well as multiple sexual assaults against children.

According to the Archer complaint, there was no supervision or security present at the time of the incident due to the understaffed personnel. I was made aware that the Oklahoma Department of Human Services apparently ordered the removal of all ODHS children from the facility.

Investigations by health inspectors from the Centers for Medicare and Medicaid Services revealed over 50 pages of violations ranging from unqualified staff to infection control deficiencies, patient rights, and maintenance issues. What we found most alarming were the instances of restraint and seclusion violations where adolescents were left unmonitored in seclusion rooms.

Henderson, NV, Seven Hills Hospital. Multiple allegations of sexual assault of a patient exist, including McCardle v Seven Hills/Acadia, in which a patient exposes himself to a young woman.

[Thank you to Penn Little for the above information and his on-going research into Acadia Healthcare]

An article published on February 13, 2019 by CCHR International, a group touting itself as a mental health watchdog group details numerous instances of abuse, substandard facilities, poor oversight and understaffed facilities. This article can be found here:

CCHR Article

In addition, Acadia’s operations in the UK is being investigated by Parliament as allegations of abuse, of treating their patients like “cash cows,” as allegations of physical and psychological abuse run rampant.

Acadia’s and TK’s Statements

On Friday, March 8, 2019, Timberline Knolls released two statements regarding the Chicago Tribune article. I will not painstakingly dissect the statements but have attached them at the end of this article. It would appear as if one statement is addressed to referring providers and interested third parties in emails. The other statement was released on Timberline Knolls website for public dissemination. However, there are a few obvious questions regarding the statements.

The most obvious question is why the necessity of two separate statements? 

Regardless, in its statement, Timberline Knolls makes reference to many upgrades and improvements in its security procedures. For that increased security, I am sure the patients and their families are grateful. And yet, one cannot help but wonder why those security measures were not previously implemented. As part of its corporate responsibilities, if Acadia and/or its general liability insurer performed annual inspections of its properties to determine if they were as safe as possible, shouldn’t those security measures, at least in part have already been implemented? After all, the health, safety and welfare of its patients should be, must be of paramount importance.

Another obvious question and admittedly, this may be minor, is wondering the reasons why one statement was released under Acadia Healthcare’s name and one statement was released under the name of Timberline Knolls. At the bottom of the statement emailed to third parties, it notes that it was released under Acadia’s name and its corporate address.

Acadia and Timberline Knolls are very much still in the briar patch. The issue of the date of the former employee’s posting about the “horrific event” must be exhaustively investigated. If the date of June 18, 2018 is accurate, and the “horrific event” refers to the abuse of its patients, and a patient was abused in late June 2018, then Timberline Knolls management knew of the “horrific event” prior to the date it represented to investigating law enforcement authorities, Timberline Knolls has a major liability and credibility issue and wrongful concealment of criminal activity could be involved.

Timberline Knolls also needs to stop playing musical chairs with its top executive officers. Having rotating chief executive officers is a recipe for confusion amongst employees and dissension amongst corporate officers. Vision is lacking and a treatment facility is left adrift.

The reality of one final disturbing conclusion absolutely must be faced. That is, Timberline Knolls knew it was employing a sexual predator. It knowingly exposed our loved ones to this reprobate. Our loved ones were harmed by this predator. When confronted with these facts, Timberline Knolls then concocted a scheme in an attempt to cover up its own wrongdoing. And now, this cover up has been discovered. The criminal activity does not just involve one warped person. It involves an organization.

And now, it is up to an industry to determine what to do about that organization.

Employee Review

TK Statement

Acadia Statement

“The success or failure of any government in the final analysis must be measured by the well-being of its citizens. Nothing can be more important to a state than its public health; the state’s paramount concern should be the health of its people.”

Franklin Delano Roosevelt

Legend has it that on November 18, 1307 the Swiss patriot, William Tell shot an apple off of his son’s head. One can’t help but wonder prior to this event, how many times Mr. Tell missed the target as he practiced his bowmanship. And yet it was those many misses which honed his skills, sharpened his eye and allowed him to excel when needed.

The healthcare system in the United States is broken. The health, safety and welfare of our citizens were entrusted to private enterprise … and private enterprise abused this sacred privilege.

Our feckless leaders in Washington have taken Medicare and bastardized it from a healthcare issue into a political issue. It has become a political beach ball being bounced back and forth between the “Medicare-For-All” advocates and the “System Will Work Just Fine Eventually” faction. Our broken political system and shortsighted politicians are using the lives of our beloved children to further their own ambitions. Meanwhile, the insurance industry continues to operate its money-making monopoly implementing self-serving guidelines designed to increase its profits at the cost of the health needs of their insureds, our children.

All the while, organizations in the eating disorder industry are paying large amounts of money to lobbyists in Washington and state capitals to lobby on bills concerning Medicare and Medicaid, as well as The 21^st Century Cures Act and Affordable Care Act. In fact, the National Eating Disorder Association (“NEDA”), reported on its 2017 Form 990 that it paid lobbyists $178,545.00. This is $7,000 more than it paid its CEO, Claire Mysko.

In 2018, the Eating Disorder Coalition, Residential Eating Disorders Consortium and NEDA paid their combined lobbyist, Center Road Solutions $340,000.00. Up to January 1, 2018, the Eating Disorder Coalition paid a lobbyist $310,000.00.

Lobbying is big business. It requires large financial contributions, influence and power. Those lobbyists and the groups they represent must stay abreast of the latest trends in the political arena lest they meander down rabbit trails on useless, Quixotic like quests. Nowhere is this truer than with the issue of Medicare and mental health parity.

And then one day, clarity comes from unexpected sources.

The Wit Case Reveals the Target

On March 5, 2019, Magistrate Judge Joseph C. Spero of the United States District Court for the Northern District of California [San Francisco] issued a 106 page Findings of Fact and Conclusions of Law in the case of David Wit, Individually and on Behalf of Others Similarly Situated, et al v. United Healthcare Insurance Co., et al, Civil Action No. 3:14-cv-02346.

Judge Spero eviscerated United Healthcare not only for the manner in which it operated its guidelines, policies and procedures, but the very manner in which it formulated those guidelines. Each of United Healthcare’s expert witnesses were deemed not credible or only partially credible. The following findings were particularly damning:

“Financial considerations have played a significant role in the development of the Guidelines throughout the relevant class periods.”

“ …Mr. Niewenhous’s testimony … that the Guidelines were developed solely to reflect generally accepted standards of care was not credible. As discussed further below, internal UBH communications involving Mr. Niewenhous make it crystal clear that the primary focus of the Guideline development process, in which Mr. Niewenhous played a critical role, was the implementation of a “utilization management” model that keeps benefit expenses [Ben-ex] down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”

“The Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions.”

“The criteria in the Guidelines that actually govern coverage determinations with respect to the treatment of co-occurring conditions, however, are not consistent with generally accepted standards of care.” 

“The Court finds that the financial incentives discussed above have, in fact, infected the Guideline development process.”

“ … the record is replete with evidence that UBH’s Guidelines were viewed as an important tool for meeting utilization management targets, “mitigating” the impact of the 2008 Parity Act, and keeping “benex” down.” 

“Perhaps the most telling example of the emphasis UBH placed on financial considerations in its decision making with respect to the Guidelines relates to UBH’s decision not to adopt the ASAM Criteria for making substance use disorder coverage determinations.”

The decision in Wit v. United Healthcare is a mandate for accountability. The Wit decision is a mandate for the implementation of objective guidelines. For guidelines based on generally accepted medical standards instead of unjustly enrichening insurance providers.

Each of the Court’s findings is a mighty hammer blow, tantamount to an indictment for first degree murder as United Healthcare placed the lives of its insureds at risk for the sake of unethical profiteering. And the most sacred trust bestowed upon it, that is the public health and welfare of the citizenry was abused and draconian ramifications must surely follow.

Turn the Page and Address the Issue

The Eating Disorder Coalition, in essence the legislative arm of the eating disorder industry rightly applauded the Wit decision. In a public service announcement, it stated in part: “Although Judge Spero’s decision is a step forward in holding insurers accountable for parity non-compliance, this case places a greater spotlight on the need for continued equity in treatment for patients and their families affected by eating disorders and other mental illnesses. We respect Judge Spero’s decision and remain hopeful this ruling can serve as a turning point in mental health parity compliance,” said EDC Board President, Chase Bannister, MDIV, MSW, LCSW, CEDS. “We will continue to advocate for equity in mental health treatment as a fundamental right.”

The case was not about parity.

The case was not about parity non-compliance.

The case was about one of the most historically egregious abuses of public trust bestowed upon a private entity ever perpetrated in the United States. The “spotlight” was the public disclosure of long guarded secrets held dear by insurance companies. It was about abuse of insureds. And if the ED Coalition and others continue to only trumpet the horn of “mental health parity,” and the “Bipartisan Health Care Stabilization Act of 2018” and trying to convince Tricare to cover treatment rendered at “freestanding eating disorder centers” a tremendous opportunity before us will be squandered.

Despite the well intentioned Mental Health Parity and Addiction Equity Act of 2008, parity does not and will not exist so long as the playing field remains uneven. We naively hoped that the Parity Act, the Affordable Care Act, the 21^st Century Cures Act would force insurance providers to not only pay for treatment for mental health but would treat claims fairly and in a transparent manner. How foolish we were. How naïve we were. And continue to be. And this was exposed in the Wit decision.

The reality of our woeful situation is that as long as insurance providers have the unilateral ability to determine the guidelines upon which life and death decisions are made, it is irrelevant which “mental health parity” bills we continue to lobby. It is irrelevant which bills mandating additional education for doctors and medical providers are pursued. It is irrelevant how much money we pour into lobbying Tricare. It is irrelevant that as lobbyists are handsomely paid to whisper sweet nothings in politicians’ ears, our children will continue to die. We are missing the mark.

Hit the Target

The Wit decision was a mandate. Collaboration amongst mental health advocates, organizations, lobbyists and financial backers must be sought. Collaboration must be achieved. There must be one, unified goal. One common purpose. One mighty voice consisting of those who have suffered, those who have been abused, the people entrusted to be their champions … and those who have been taken.

The time is right. The time is now. Congress must implement and then oversee universal guidelines which incorporate the generally recognized, accepted standards of medical care to which insurance providers who make life and death decisions for our children must be required to comply. Ordinarily, private citizens have the right to incorporate whatever negotiated terms they wish into their private contracts. But when the public health, welfare and safety of our citizens is involved; when private entities disregard, abuse and violate the sacred, public trust to protect the health, safety and welfare of the citizenry, then surely the privilege of entering into, and dictating the terms in those private contracts lies forfeit.

That is the target. That is the apple on the head of William Tell’s son. Until the privilege to make and enforce those guidelines are taken from the exclusive province of the insurance companies and are established and enforced through objective third parties, no amount of so-called parity will ever exist let alone be effective.

And we will continue to miss the target.

It is believed by many that the Great Chicago Fire of 1871, which caused millions of dollars in property damage and believed to have claimed the lives of 300 people started when a cow owned by a Mrs. O’Leary kicked over a lantern. This started the blaze that would prove so catastrophic. This fire lead to changes and improvements in the manner in which fire suppression in urban areas were to be conducted.

On March 5, 2019, Magistrate Judge Joseph C. Spero of the United States District Court for the Northern District of California [San Francisco] issued a 106 page Findings of Fact and Conclusions of Law in the case of David Wit, Individually and on Behalf of Others Similarly Situated, et al v. United Healthcare Insurance Co., et al, Civil Action No. 3:14-cv-02346. So too, the ramifications from this decision could be tantamount to Mrs. O’Leary’s cow.

On May 21, 2014, David Wit, along with 10 other people filed a class action lawsuit against United Healthcare (“United”). In most cases similar to the Wit case, the plaintiff employs a local attorney in that jurisdiction. The defendant ordinarily also enlists attorneys local to the jurisdiction in which the case is filed for cost reduction and because it does not regard the case as having much significance. The Wit case from the start, was different. The plaintiffs employed a law firm with offices in Washington, D.C., New York City and other cities. United responded in kind. It utilized its “A-List” counsel from a law firm with offices in Washington, D.C., Los Angeles and San Francisco. Attorneys from some of the most powerful law firms were engaged to fight this battle. And from the start, one could tell that this case would be different.

Each of the plaintiffs alleged that their request for coverage of treatment to address mental health issues had been wrongfully denied by United. If this was the main issue in the lawsuit, then both parties may have merely employed local counsel and a negotiated resolution would have been more likely. But, the plaintiffs not only attacked United for the manner in which it processed claims under its guidelines, policies and procedures, but the very manner in which it formulated those guidelines. Battle lines were drawn and the long, drawn out process of discovery and pretrial maneuvering started. United filed its usual Motion to Dismiss it files in every case. It also attempted to have the venue of the case changed.

The Court’s docket showing the types of motions and responses filed is a blueprint for the manner in which skilled attorneys prosecute and defend complex cases. There could be no allegation of incompetent attorneys involved in this case. It would stand or fall on its own merits and the strategies devised by each side.

In September 2016, the Court heard oral arguments on class certification. The first cracks in the defense of the Wit case began to show on September 19, 2016, when the Court granted the Motion for Class Certification. In past similar cases, courts generally denied class certification because they held that individual issues predominated over class issues. This in essence means the courts would have been required to conduct individual reviews of each claim to determine medical necessity or whether the individual plaintiff’s claims met the criteria set forth by the insurance providers under its own guidelines.

The Wit case was different. The plaintiffs in Wit alleged that United’s guidelines themselves did not adhere to generally accepted medical standards and/or state law. Therefore, the Court could review the guidelines, review what the generally accepted medical standards were and then determine, on a class basis, whether United’s guidelines fell short. And if one person was damaged as a result, all people in the class were damaged.

In a meticulous 55 page decision, Judge Spero granted class certification. The Court went through each issue raised by both the Wit attorneys and United attorneys, thoughtfully addressed the issues and rendered its decision. And yet, the battle was far from over. The plaintiffs still needed to prove that United’s conduct was wrongful. But, if that wrongful conduct could be proven, it would be applied on a class-wide basis. A jury trial was set for October 2017 in San Francisco.

Settlement conferences were conducted unsuccessfully. United filed a Motion for Summary Judgment seeking to have the case dismissed on legal grounds stating that as a matter of law, it was entitled to judgment. While this motion was pending, both parties decided to waive a jury and have the judge decide all issues in the case. For the defense, this decision was curious since on the one hand, insurance companies know that they are rarely sympathetic parties to a jury and a judge is much more likely to take emotion out of the equation. But, this judge had already denied its motion to dismiss and granted the motion for class certification. United also knew that in all likelihood, the judge would not grant its summary judgment especially if that very judge was going to be the final arbiter.

With regard to the summary judgment motion, the Court granted the motion to the limited extent that it dismissed the plaintiffs’ claims for “disgorgement of profits” by United. Otherwise, all other aspects of plaintiffs’ claims were going to be determined at trial.

Finally, the trial began on October 16, 2017. The total trial time would be approximately 10 days. Post trial briefs were filed and finally, on March 5, 2019, Judge Spero issued his decision. It was set forth in a 106 page Findings of Fact and Conclusions of Law in which he found for the plaintiffs.

Language from the Court’s Decision

The decision eviscerated United and its policies and procedures. Some of the more poignant language from the Court’s ruling includes the following:

“While some of Dr. Triana’s testimony was credible, his testimony that UBH does not consider benefit expense (sometimes referred to as “benex” or “Ben Ex”) when it develops the Guidelines was not credible in light of evidence and testimony introduced at trial, discussed below, showing that financial considerations have played a significant role in the development of the Guidelines throughout the relevant class periods.”

“Although Dr. Martorana’s testimony was credible on some issues, his testimony about the meaning of the Guidelines was not always credible because in several instances he ignored the plain meaning of the words used in the Guidelines. See, e.g., Trial Tr. 974:23-976:13 (Martorana testimony that the words “safely managed” in the Guidelines mean the same thing as “effectively treated”); Trial Tr. 1054:12-17 (Martorana testimony that “Why Now” factors referenced in the Guidelines call for an assessment of the “whole person” or the patient’s entire multi-dimensional history). Further, Dr. Martorana’s testimony that clinicians were trained to apply the Guidelines in a manner that was inconsistent with their plain meaning was not supported by other evidence introduced at trial. See, e.g., Trial Tr. 978:11-12 (Martorana).”

“Mr. Gerard Niewenhous was trained as a social worker and has been employed by UBH since 2003. Trial Tr. 1732:7-10 (Triana); Trial Tr. 297:4-5 (Niewenhous). He was responsible for maintaining the Level of Care Guidelines from 2003 to the middle of 2016 and for drafting the Coverage Determination Guidelines from 2010 to the middle of 2015. Trial Tr. 297:4-9, 297:12-15 (Niewenhous). He offered extensive testimony addressing the process UBH used to draft and update the Guidelines, factors that were considered in creating them, and the meaning of the words used in the Guidelines. While Mr. Niewenhous’s testimony was credible on some issues, his testimony that the Guidelines were developed solely to reflect generally accepted standards of care was not credible. As discussed further below, internal UBH communications involving Mr. Niewenhous make it crystal clear that the primary focus of the Guideline development process, in which Mr. Niewenhous played a critical role, was the implementation of a “utilization management” model that keeps benefit expenses down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”

“Dr. Allchin’s testimony was only partially credible. As discussed further below, his testimony that UBH’s Guidelines are consistent with generally accepted standards of care with respect to the treatment of children and adolescents, which he based primarily on the “clinical best practices” in the Guidelines, was not persuasive in light of his admission that the unique factors that relate to the placement of children and adolescents are absent from the coverage criteria in the Guidelines. See Trial Tr. 1377:13-20 (Allchin) (testifying that the clinical best practices section contains “sufficient detail to tease out aspects that are developmentally related” to make up for the lack of coverage criteria tailored to young people).”

“In particular, the Court finds that Dr. Alam’s testimony on the subject of whether the Guidelines cover certain lower levels of residential treatment set forth in the ASAM Criteria, and his testimony about Mr. Shulman’s conclusions on this subject, was evasive and at times untruthful. His testimony at trial also revealed that he had misrepresented material facts in his expert report when he stated that UBH contracts with “few, if any” providers of lower-intensity residential treatment, namely, at the 3.3 and 3.5 levels under ASAM; at trial, in contrast, he conceded that UBH does contract with such providers. Trial Tr. 1575:10-21 (Alam); 1642:21- 1644:10 (Alam). Dr. Alam also repeatedly offered interpretations of the Guidelines that were inconsistent with their plain meaning and dismissed changes to the Guidelines proposed by Mr. Shulman as “just changing words.” Trial Tr. 1651:3-8. The Court places no weight on the testimony offered by Dr. Alam that UBH Guidelines are consistent with generally accepted standards of care.”

“Research has demonstrated that patients with mental health and substance use disorders who receive treatment at a lower level of care than is clinically appropriate face worse outcomes than those who are treated at the appropriate level of care. See Trial Tr. 74:14-75:13 (Fishman) (describing research findings regarding adverse consequences of mismatching to a lower level of care in the area of substance use disorder treatment); Trial Ex. 673-004 (Alam/Martorana Article) (noting that improper placement at less intensive level of care for substance use disorder may result in relapse). On the other hand, there is no research that establishes that placement at a higher level of care than is appropriate results in an increase in adverse outcomes. Trial Ex. 673-004 (Alam/Martorana Article) (stating that “[t]here is no research evidence to the existence of a consequence to choosing a more intensive level of care than necessary”); Trial Tr. 1674:9-11 (Alam) (testifying that “there’s no research saying if you choose a higher level of care, whether it’s bad for you”). Consequently, it is a generally accepted standard of care that where there is uncertainty as to the likely effectiveness of different proposed levels of care, practitioners treating patients for mental health and substance use disorders should exercise caution by selecting the higher level of service intensity. See Trial Ex. 653-0007 (LOCUS) (stating that when there is “ambiguity” with respect to the appropriate level of care practitioners should assign the “highest score in which it is more likely than not that [at] least one criterion has been met should generally be assigned” so that “errors [regarding the appropriate level of service] will be made on the side of caution”)”

“Having reviewed all of the versions of the Guidelines that Plaintiffs challenge in this case and considered the testimony of the witnesses addressing the meaning of the Guidelines, the Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms11 and stabilizing crises while ignoring the effective treatment of members’ underlying conditions. While the particular form this focus on acuity takes varies somewhat between the versions, in each version of the Guidelines at issue in this case the defect is pervasive and results in a significantly narrower scope of coverage than is consistent with generally accepted standards of care.”

“The overemphasis on treatment of acute symptoms is found not only in the admission criteria of the challenged Guidelines but also in the continued service and discharge criteria that apply to all levels of care. Under these Guidelines, coverage of services at a given level of care may be terminated if the member either does not meet the continued service criteria or does meet the discharge criteria.”

“Nor does a denial of coverage at one level of care automatically lead to authorization of coverage at a lower level of care under the Guidelines. Rather, with respect to all challenged versions of the Guidelines, the member must qualify again under the admissions criteria for the lower level of care. See Trial Tr. 1104:14-1104:16, 1424:14-1424:19 (Martorana). Where coverage at a particular level of care has been denied or terminated on the ground that the member’s acute symptoms have been alleviated, services even at a lower level of care may not be covered because of the focus on acute symptoms in the admissions criteria for all levels of care.”

“The criteria in the Guidelines that actually govern coverage determinations with respect to the treatment of co-occurring conditions, however, are not consistent with generally accepted standards of care. Instead, in all relevant years the Guidelines instruct that determination of the appropriate level of care for the purposes of making coverage decisions should be based only on whether treatment of the current condition is likely to be effective at that level of care whereas treatment of co-occurring conditions need only be sufficient to “safely manage” them or to ensure that their treatment does not undermine treatment of the current condition. Conversely, the Guidelines omit any evaluation of whether a member’s co-occurring conditions can be effectively treated in the requested level of care, or whether those conditions complicate or aggravate the member’s situation such that an effective treatment plan requires a more intensive level of care than might otherwise be appropriate.”

“As discussed above, it is a generally accepted standard of care that patients should be placed at the least restrictive level of care that is both safe and effective and that practitioners should err on the side of caution when there is uncertainty by placing patients at the higher level of care. Further, the fact that a lower level of care may be less restrictive does not justify moving the patient to that level of care if it is also likely to be less effective in treating the patient’s overall condition – including the underlying condition and any co-occurring conditions – even if movement to the lower level of care may be safe. UBH’s Guidelines do not adhere to these principles. Instead, they actively seek to move patients to the least restrictive level of care at which they can be safely treated, even if a lower level of care may be less effective for that patient.”

“The Court finds that the financial incentives discussed above have, in fact, infected the Guideline development process. In particular, instead of insulating its Guideline developers from these financial pressures, UBH has placed representatives of its Finance and Affordability Departments in key roles in the Guidelines development process throughout the class period.”

“In any event, the record is replete with evidence that UBH’s Guidelines were viewed as an important tool for meeting utilization management targets, “mitigating” the impact of the 2008 Parity Act, and keeping “benex” down. See, e.g., Trial Ex.768-0009 (2014 presentation describing “[c]ontinued use of concurrent review to ensure appropriate utilization” as the “Mitigation Strateg[y]” for Parity’s “[r]emoval of day and visit limits on IP, Intermediate and OP”); Tr. 307:4-24 (Niewenhous).”

“Perhaps the most telling example of the emphasis UBH placed on financial considerations in its decision making with respect to the Guidelines relates to UBH’s decision not to adopt the ASAM Criteria for making substance use disorder coverage determinations.”

“Despite the clear consensus among UBH’s addiction specialists that the ASAM Criteria were preferable to UBH’s own Guidelines from a clinical standpoint, UBH consistently refused to replace its standard Guidelines with ASAM Criteria without first obtaining approval from the Finance Department. See, e.g., Trial Ex. 524-0002 (moving forward would require “‘green light’ from finance”); Trial Ex. 548-0034 (“BPAC requested that there be a financial review of possible impact of adoption of ASAM [C]riteria prior to moving forward”). But Finance would not approve the change because “a meaningful and valid BenEx modeling of the impact of a move to ASAM [C]riteria . . . [was] not possible due to the paucity of robust and relevant data.” Trial Ex. 548-0034 (original emphasis).”

“Applying the standard of review discussed above, and based on the Findings of Fact related to the challenged Guidelines and UBH’s Guideline development process, the Court finds, by a preponderance of the evidence, that UBH has breached its fiduciary duty by violating its duty of loyalty, its duty of due care, and its duty to comply with plan terms by adopting Guidelines that are unreasonable and do not reflect generally accepted standards of care.”

The Court then held the plaintiffs were entitled to judgment against United and requested scheduling for the remaining aspects of this case.

Next Steps

The case, that war is far from over. The next step in the case will involve determining the remedies (damages) which are available to all plaintiffs and class members and the manner in which the class members will be notified of their rights and remedies. Attorneys’ fees for the plaintiffs’ attorneys, which fees will undoubtedly number in the several million dollar range are yet to be determined.

And United is left with both a public relations nightmare and coming to grips with the reality that its internal practices, policies and guidelines have now been made public. And, these guidelines were determined to be woefully inadequate and did not comply with the generally accepted medical standards. This include the manner in which it implements its guidelines, the manner in which it reviews claims, the manner in which it conducts peer review, and the very manner in which it conducts business. Added to this is the reality that a court has found on a class-wide basis that United violated its duty of good faith and fair dealing with all of its insureds, the class members.

Other Issues with United

The Wit decision follows on the heels of another significant set back for United.

In January of 2019, the California Supreme Court decided not to overturn a California Appellate Court’s decision upholding a $91 million dollar fine rendered against United by the California Insurance Commissioner’s Office.

The Commissioner’s Office found more than 900,000 violations involving patient claims and other issues against UHC subsidiary PacifiCare around the time of their 2005 merger. Those violations were at the heart of the dispute.

The courts held that the Insurance Commissioner does not have to show that an insurance company intended to break the law or engage in a general practice of misconduct. It only needs to show that someone within an insurance company “reasonably should have known that what they were doing violated the state insurance regulations.”

After negotiations, administrative hearings and investigations that lasted years, in 2014, California Insurance Commissioner Dave Jones imposed a record $173 million in fines against United for 908,547 violations of engaging in unfair claims practices and other violations of the insurance code. $91 million of the fines were involved in this appeal with the remaining amounts are involved under a separate appeal.

Whereas this ruling only impacts insurers in the State of California, Insurance Commissioners in other states will undoubtedly attempt to utilize the findings in this case to bolster their own administrative power and oversight of the insurance industry.

Ramifications

So, what are the ramifications of these decisions against United? First, a studied review of the Court’s ruling should be undertaken. It gives incredible insight into the manner in which United’s claim process operates and the deficiencies within their system. Health care providers fighting for their patients can attack United and its peer review process with greater tools now. The Court’s ruling can be used by treatment center and doctors to press for additional life saving treatment.

Since United now has actual notice that its guidelines are woefully deficient and do not comply with the applicable standard of care, arguably, any reliance on those guidelines now would form the basis of many other lawsuits against United. In essence, reliance on defective guidelines which do not comply with the medical standard of care equates to no guidelines at all.

The fight in the Wit case is far from over. Winston Churchill is famously quoted as saying, “This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

As a result of the Great Chicago Fire, Chicago quickly rewrote its fire standards and developed one of the nation’s leading fire-fighting forces. Financial and rebuilding assistance came from all corners of the nation. From tragedy, came a rebirth of newer, better standards and the nation rallying around Chicago.

United … Mrs. O’Leary’s cow just kicked over your lantern.

If you would like a copy of the 106 page opinion, you can contact me at steven@dunnlawfirm.net.

As the 2019 National Eating Disorder Awareness Week comes to a close, we the advocates, organizations, medical professionals, counselors, and parents must aspire to far greater accomplishments and strive to accomplish goals deemed impossible just a few short years ago.

As the standard bearers we surely must be, we must embrace the incredible challenge before us. We must recognize and confront the corruption, fraud, ego and arrogance which threaten the very foundations of our community and which weaken our collective voices.

We must look, not within, but outside and explore new sources of inspiration and resources, be they political, or business, or foundational or financial. We must set aside petty differences. We must use our successes in the past, not in a manner which defines who we are and which inevitably leads to complacency, but as a springboard to a greater future and challenges us to continue to learn, to grow, to expand our horizons.

We must have our doctors, our scientists, our leaders in research and study collaborate, to share knowledge, information and material which can lead to one thing and one thing only … breakthroughs in the understanding and treatment of this deadly disease.

This past week, we celebrated our accomplishments. We raised some money. We recognized the survivors. We appeared on television shows and in podcasts. And yet, surely more is expected of us. More is demanded of us. And we must not fail.

The honored dead claimed by this disease expect and demand more. The Army of Warrior Angels is restless. We must be resolute. We must be strong. We must not quit. For if we do, we will surely lose ourselves, our very souls. And that is not an option.

To honor those who have been taken, and to remind us all what we must fight for … We leave you this. And our future beckons.

The Morgan Foundation … Let the Past Inspire Our Future

“Well, here at last, dear friends, on the shores of the Sea comes the end of our fellowship in Middle-earth. Go in peace! I will not say: do not weep; for not all tears are an evil.”

J.R.R. Tolkien, “The Lord of the Rings”

On March 12, 2018, the North Texas eating disorder community said a tearful good-bye to the eating disorder program at Texas Health – Presbyterian Hospital. Presby announced that it was discontinuing and closing its eating disorder program after being in existence for over 20 years.  Presby is a not-for-profit hospital and accepted Medicaid, Medicare and Tri-Care.  However, it is well known that these government-subsidized insurance programs do not pay sufficiently to sustain an eating disorder program and without sufficient, additional financial resources, this valuable member of the community closed.

As we close out “National Eating Disorder Awareness Week,” we had to say Auf Wiedersehen to another long-standing eating disorder stalwart in the North Texas community. This time, Renfrew Center of Dallas announced it was closing. [Note that it is only the Renfrew Center of Dallas closing and not its other locations]. In 2016, Renfrew celebrated its 30^th year in business under the steady hand of its Founder and President, Sam Menaged. Renfrew Dallas was located on the first floor of an office building in North Dallas from where it conducted its eating disorder treatment, IOP and counseling programs. In the last few years, it counted Kiersten Rapstein and Sharon Watts as two of its key employees. There are very few people in the eating disorder industry whom I respect more than Ms. Rapstein and Ms. Watts. They led the program with strength, humor and gentle grace. And Renfrew Dallas will be missed.

I understand that Renfrew has been proactive in finding positions for employees. Ms. Watts is still retained in a business development capacity. Ms. Rapstein is running a virtual therapist led outpatient support group for Renfrew. And Renfrew Dallas will be missed.

So, to them, we say, “Auf Wiedersehen” which in German does not mean good-bye, but “Until We Meet Again.” We hope to see you in North Texas again some day Sam. You are needed.

Keep Your Resume Updated

Most people have heard of the phrase, “When God closes a door, He opens a window.” Well sometimes, when God closes a door the window that is opened leads straight to the sub-basement.

With that, we acknowledge that the Eating Disorder Solutions treatment center (“EDS”) is attempting to open in Dallas, Texas.

EDS is owned by Niznik Behavioral Health based out of Miami Gardens, Florida. To begin our review of EDS, let us first go to their website, eatingdisordersolutions.com. At first glance, to say their home page looks rather parochial would be charitable. Nonetheless, upon scrolling down the page, we see the very recognizable gold seal designating that EDS has been accredited by the Joint Commission! Good for them. That is very commendable to obtain such recognition even before its residential home is even open for business. But wait …

Anyone can verify accreditation by the Joint Commission by simply going to qualitycheck.org. And upon doing so, and typing in the name “Eating Disorder Solutions,” 24 separate entities appear in the State of Texas. And strangely enough, NONE pertain to EDS. So, then when one does a search on Niznik, a number of different entities appear. And some of them are accredited by the Joint Commission. And yet again, strangely enough, none of these accredited entities is EDS. A search of Niznik on LinkedIn reveals the following representation: “All NBH facilities are fully accredited by the Joint Commission and collectively offer the full continuum of care for our clients.” Well, not so fast my friends.

Dear Niznik d/b/a Eating Disorder Solutions … EDS is in fact NOT accredited by the Joint Commission. You are making material misrepresentations of a material fact to the general public! You are using accreditation on your website that you do not have and that you are not entitled to use to falsely misrepresent your credentials. Your violations of the Texas Deceptive Trade Practice Act are open and notorious … and yet, we are just beginning.

On its homepage, EDS has a scrolling five (5) picture montage of a house in Dallas, Texas purporting to be its “residential treatment” house. This house is located in Northeast Dallas in a strictly residential area. When Niznik purchased the house, it was being used as a senior citizens residential group home. Again, the area in that part of Dallas is zoned as residential only. Next to hospitalization, a residential treatment facility is the highest, most intensive treatment regiment available for a person suffering from an eating disorder. It entails medical monitoring. It requires the attention of a medical doctor and/or psychiatrist to monitor and assist the patient suffering from eating disorders. Daily individual counseling. Group counseling. Blood testing. Medical services being administered. A patient’s life hangs in the balance. Strict requirements over access to bathrooms, kitchens, access to rooms must be enforced. And EDS has? None of these things in this senior citizens home. No controlled locks on the bathroom doors. No oversight over the kitchen. No medical staff living in this “residential” home.

Niznik bought a home. A home in a residential area of Dallas. And they are naively hoping that no one will take notice and object to their bastardization of the zoning laws. And yet, their incredulous arrogance does not end there. According to anonymous sources:

EDS does not employ a psychiatrist on a full time or part time basis.

EDS does not employ a medical doctor on a full time or part time basis.

EDS does not employ any certified eating disorder specialists on staff.

ESD employs a therapist and a dietician. That is it.

When you review EDS’s website, it lists ZERO, NADA, NO medical professionals. It does not list any counselors. No doctors. No nurses. No certified eating disorder specialists. No staff at all. And that is because, they have no doctors, no certified eating disorder specialists on staff. And yet, on its website, it states: “Under clinical supervision and with the guidance of experienced and certified eating disorder specialists, our clients gain the knowledge and tools necessary to redress harmful thought and behavioral patterns regain control of one’s eating habits.”

First, YOU DO NOT EMPLOY ANY CERTIFIED EATING DISORDER SPECIALISTS! Second, the people whose lives are entrusted to your care are not CLIENTS. They are patients. They are people suffering from a mental disease that has the highest mortality rate of all mental illnesses. These tortured souls are NOT clients! They are patients. And they are suffering. They are not assets upon which you can rely to make money.

EDS is owned by Niznik Behavioral Healthcare. The entity is named after Robert Niznik. In 2018, the United States Congress, through the House Committee on Energy and Commerce turned its attention to the substance abuse industry. One of the main purposes of this subcommittee was to investigate the predatory marketing and advertising practices in the substance abuse industry. This subcommittee cited the realization that there were many “bad actors” who preyed upon vulnerable families and addicts. Robert Niznik was called upon to testify before Congress about his company’s illicit marketing and advertising practices.

EDS also relies upon Eric Brandman as the Chief Marketing Officer for Niznik Behavioral Health. Mr. Brandman is a 26 year old boy. In 2013, he received his Bachelor of Arts in Financial Mathematics from Baruch College. [I will buy a martini for those who can, without any research, enlighten us as to where and what a Baruch College may be.] On the other hand, he does list that he was Treasurer of the Handball Club! When the Mental Health Parity Act of 2008 was passed, Mr. Brandman was a sophomore in high school. On the other hand, on his LinkedIn profile, Mr. Brandman lists under his Skills and Endorsements, “Microsoft Excel, Microsoft Word and … Powerpoint! Who would not entrust their child suffering from this insidious disease to a person barely out of puberty who collected two dollar apiece from his fellow handball aficionados?

When you call their toll-free line and are seeking help for your loved one who is suffering, you must talk with one of their marketing employees. You will first be asked about how you can pay for treatment. Can you pay cash? That is because they are not in-network with any insurance company! But, they do know that for residential treatment in their illegal residential home, they can try to charge up to $30,000 per month if they are successful in obtaining a single case agreement. (Assuming they even know what that is.)

To call this entity aggressive and predatory would be underestimating the reality of this operation. EDS represents everything wrong with the eating disorder industry. It represents the absolute worst that can happen in an unregulated industry. And while reputable, experienced entities like Renfrew Dallas are forced to shutter its doors, assclowns like EDS rear its ugly head.

Messrs. Niznik and Brandman, just know this … pray, to whatever God to whom you may pray, that your predatory practices do not harm even one family suffering from eating disorders. For if you hurt one person … one family, if you worsen one person’s life, if you harm one person suffering from this insidious disease … and they find me, I will be relentless. I will hunt you in the court system. I have 35 years of courtroom experience. Messrs. Niznik and Brandman, I was obtaining justice in the courts of the United States 10 years before you were even born. And I will never stop.

I will be coming for you. And an Army of Warrior Angels will be coming with me.

“We live in a culture where everyone’s opinion, view, and assessment of situations and people spill across social media, a lot of it anonymously, much of it shaped by mindless meanness and ignorance.”

     Mike Barnicle, Print and Broadcast Journalist

“By giving us the opinions of the uneducated, journalism keeps us in touch with the ignorance of the community.”

     Oscar Wilde, Author

Eating Disorder Awareness Week is once again upon us. That week when walks are held, buildings are lit in the blue and green colors chosen by the National Eating Disorder Association. Lunches will be held. Speeches will be given. Some people will appear before the clerks of Legislators and will tell their story. Maybe some movies or documentaries will be shown. And for many, we will feel good about ourselves believing we are making a difference. We will pat ourselves on the back and then go back to business as usual.

And if we believe the statistics, during this week, another 162 lives will be snuffed out by this insidious disease. 162 people who will never again see a sunset, or feel the gentle caress of a loved one, or smell freshly cut grass in the spring time, or wake up with hopes that today will surely be better. 162 souls.

And all the while, society for the most part will continue to not notice. On Friday, February 22, 2019, the local Dallas/Fort Worth CBS affiliate aired a story on Manda Welch. Manda has been struggling with eating disorders most of her life. It was an insightful story and included the manner in which social media interacts with eating disorders. The video appears at the end of the article.

If that were the end of the story, most of us would applaud the story and then move on with our lives. Sadly, it is not. On the CBS DFW page on Facebook, immediately after the story was aired, the comments from viewers began to pour in. The following are those comments. The names and messages have not been changed to protect the ignorant:

• Lisa Maciuba  She gave up chocolate milk and croutons at the age of 6….BECAUSE SOOO MANY 6 YEAR OLDS LOVE CROUTONS!!! WTF???

Tara Hood My six year old eats a ton of croutons!! 😂

Lisa Maciuba Tara Hood that’s something I wouldn’t even think about

Dennis Monares I loved eating croutons at 6, 41 years later and I still eat them.

Lisa Maciuba Dennis Monares I was more into sweet tarts and novelty candy!

Jo Richardson Social media hasn’t made anyone do anything

Christina Dixon Jo Richardson right. Just as many food ads, guess I can blame them for this extra 30 pounds I’m carrying? 👎

Jo Richardson Christina Dixon C,I hear ya

Dennis Monares Social Media makes me laugh.

Kyle Jones Jo Richardson it made me fat…and Chinese.

Brandon Collins Quit blaming other people for your issues

Shaz Uddin Jimmyjohns.com

JIMMYJOHNS.COM

Home | Jimmy John’s Gourmet Sandwiches

Home | Jimmy John’s Gourmet Sandwiches

Jeff Scott So her mental illness is somehow social media’s fault. I don’t think so. Sorry, her mental illness. Her problem.

Deb Kirksey Alexander So they want Big Brother watching 🤔Grow up take responsibility for yourself/friends. It’s not social media business 🙄

Victor Guerrero Just eat and shut up …lol

Jim White Disorder ≠ disease

RW Singley You mean like stop posting her pictures?😵

Macias Cesar Montoya Gtfo

Crystal Mougier Du Plessis Get the hell off of social media if it’s affecting you that badly and you can’t mentally handle what you are seeing…problem solved 🤷‍♀️ …. you don’t need to be part of social media… so stop using it…

Krista Davis Okkkkk where were her parents while she was in MIDDLE SCHOOL and not eating for a week….

Katherine Welch Krista Davis her parents were naïve and didn’t notice because they were busy with their own addiction.

Wesley Becknal Hahaha people like this are stupid and have a head problem. Pretty sure you weren’t a regular on social media at 6 years old.

Katherine Welch Wesley Becknal first of all I would like to just say you sound very ignorant! You shouldn’t call anyone with any kind of mental health issue stupid! I prayed you or anyone in your family ever suffers from one! Obviously she didn’t say she was using social media at the age of 6! What she said was this started at the age of 6!

Michael Reppond Absolutely right

Dell Stevens Prayers

Ryan Henderson Because it’s social media’s fault you have body image issues……

Misticious Twixx Daniels Ummmm whatttt?

Scott Boyd She needs to logout… while driving to seek professional help.. she needs to grab a burger and some tacos…

Fred Lee Knight You can’t protect someone from themselves.
You have a right to screw up your life how you choose

Joseph Esqueda What happened to personal responsibility?

Anthony Lewis It’s Trump and Obama’s fault. Did I leave anyone out?

Constance Chitman-Cage I have disordered eating. (EDNOS) So i get what she’s saying but it’s no ones fault what’s going on inside your own head. Trust me I’ve been dealing with this for a long time. Well before social media.
Just log off. That simple. If it’s making you feel some kinda way, walk away.

Cathy Gentry It’s not a dam disease it’s a choice like being alcoholic or dope head no disease choice

Cylena Morris-Smith Don’t join social media.

Estefana Chavez Don’t blame social media, see a real doctor

Justin Ward Wafflehouse.com

Floyd R Robinson Stated at 6 years old? She should be calling out her parents.

Debby Kastigar It’s always someone else’s fault.

Mandy Alsop log off. that simple

Austins Ossai NO THEY DO NOT

Zo Lopez She needs to hang around her Mexican friends she’ll be be fat by the summer.

The ignorance spewed forth by these people “span the globe.” Parents were blamed. Fingers were pointed. Suggestions to see a “real doctor.” Don’t blame social media! Anorexia is a choice not a real disease. Promulgating the stereotypical behavior of Hispanics. Baseless hostility. Cruel remarks meant to pass as humor one supposes.

And the ignorance came forth equally from African-Americans, Anglo-Americans, Hispanics, and men and women of all ages.

It would be very easy to simply blame this diatribe of short sighted, uninformed pablum on those who are not educated about, do not understand or refuse to grasp the deadly nature of this disease. Perhaps that has always been the case and those people have always existed. In 1830, Victorian author and playwright, Edward Bulwer-Lytton referred to people of that ilk as, “the Great Unwashed.” The only difference seems to be that now the internet and social media allow anyone to parade their ignorance in full public view for all to see.

But, it is more than that. The issue also lies elsewhere. Perhaps the issue lies at our doorstep. Perhaps it lies at the feet of us, those in the eating disorder industry and community. We speak of increasing eating disorder awareness. And yet, we tend to stay in the same, comfortable circles. We solicit money from the same financial resources. The only people who attend seminars or education classes are those in the eating disorder industry. We hold our “fun walks,” and for the most part, the only people who attend are those who have suffered from this disease, their friends and treating professionals. And the myth of “the rich, little white girl’s disease” lingers and permeates mainstream society.

The federal government ignores us. The state governments ignore us. We lobby on bills that are designed to help the private equity owned residential treatment centers in the industry while ignoring mainstream public knowledge. And our children continue to die.

So, this next week, as we pat ourselves on the back, as we hold ourselves out as doing great and mighty things, perhaps we should again read the messages and comments above. That is not just mainstream America but it is prevalent on a worldwide basis. Those people are part of our current legacy. And during Eating Disorder Awareness Week, 162 more souls will be taken. 162 families will be shattered.

And we must ask ourselves, have we in fact, failed in our messaging? A great opportunity lies before us. We have the opportunity to take the poor, huddled masses, those who would otherwise not come to us and tell them “Come as you aren’t!” We can help you. We can guide you to a more soulful enlightenment.”

162 souls.

For the sake of those 162 and the millions in that Army of Warrior Angels, we must embrace that opportunity to reach out to those who live in ignorance of this disease and tell them  “Come to Us as You Aren’t!”

Anorexia Survivor Calls Out Social Media Companies For Not Doing More To Stop People From Promoting Starvation

“Our greatest glory is not in never falling, but in rising up every time we fall.”

            Ralph Waldo Emerson, Author

“Character cannot be developed in ease and quiet. Only through experience of trial and suffering can the soul be strengthened, ambition inspired, and success achieved.”

          Helen Keller

Forty years ago, cancer was that dirty little secret never discussed in polite company. It may have been heard in whispered conversations. And, when it was discussed, more often than not the topic involved how cancer had claimed another life. Today, cancer is discussed openly. And when we discuss cancer, more often than not, the topic is how a person “beat” cancer, how they are not just a survivor, but are thriving. Stories of strength and inspiration.

Some attribute that change in attitude and perception in part to that stirring, inspirational speech given by former North Carolina State basketball coach, Jim Valvano in March 1993 when he was in the grip of cancer. His talk on an ESPN Awards Show kick started the Jimmy V Foundation for Cancer Research and its motto, “Don’t Give Up, Don’t Ever Give Up,” became a message of hope for those suffering from cancer.

Today, mental illness, particularly eating disorders is that “dirty little family secret” not talked about in polite company. Shame casts a dark pall over it. It is not talked about at dinner parties and when discussed, it is usually to mourn the loss of a loved one. And yet, success stories do exist.

Kristina Saffron and Liana Rosenman met while in treatment. As part of their recovery journey, they started Project HEAL. They are building Project HEAL into an industry giant as it is rapidly becoming an expanding, powerful entity in the eating disorder industry.

Brian Cuban is another inspirational story of recovery and redemption. From an early life of bulimia to alcohol and cocaine addiction, Brian now leads a life of sobriety, is a respected author and speaker and inspires so many through his stories of hope and resiliency.

Then there are the many others who do not seek, nor receive the spotlight. Their stories too would undoubtedly inspire and give courage, hope and strength to those who still suffer from this insidious disease. And as such, with their permission, I am going to briefly highlight two of these Warriors.

Manda Welch

I first met Manda Welch in April 2017 at an event the Morgan Foundation organized called, “Night with the Experts.” Dr. Stephanie Setliff of ERC Plano, Dr. Carrie McAdams of UT Southwestern and Dr. Dana Rubin-Remer of Girls to Women Health and Wellness Clinic appeared for two hours to speak to a crowd of people discussing eating disorders.

A frail, young woman sat in the front row, her leg tapping up and down in a way indicating anxiety, fear or simply not being aware of her own body. We spoke of my daughter Morgan. Manda indicated she was still struggling. Being in the midst of depression over my daughter being taken, I tried to talk of inspiration, strength and hope. But, even to my own ears, my words sounded hollow.

Manda and I kept in touch on Facebook through messaging. She was very open about her on-going struggles. And then, heroin entered her life and I grieved, fearing that these two demons combined would surely take her life. She would drop off of social media for awhile and then resurface. She applied for a scholarship to pay for treatment from Project HEAL. She applied for Medicaid and was denied. She lost her employment and unemployment benefits were denied. She finally checked herself into a detox clinic operated by the State of Texas.

Months elapsed. Then, fate brought us back together. Manda was going to be featured on a news story to be broadcast by the local CBS affiliate in Dallas/Fort Worth. This was being filmed at the offices of a very dear friend, Patti Geolat and the Something for Kelly Foundation. I showed up and was overjoyed to see Manda was the subject of this news story. And for the first time, I saw “life” in her eyes. And tears in mine.

We naturally hugged and Manda filled me in on her life. After surviving a heroin overdose, the fog was lifted from her. She has now been sober for fourteen (14) months. Her eating disorder demons were under control. And although there may be the occasional rare lapse, her life of sobriety and personal insight has put the demon back into the cage. She is employed and has a strong support group around her on a daily basis. And she has a future.

The Channel 11 news story happened and will be the subject of my next posting.

Most people in the eating disorder industry will never meet nor even know Manda. But Manda, survived and is beginning to thrive. The industry talks about people and that they can beat this disease. We know of those persons when they write books, or go on speaking tours or become spokespersons. And surely, society needs those people to put a “face” on this disease. But for every one of them, there are thousands of Mandas. A young woman who struggled. Whose life was almost claimed. Who survived. And for those of us who know her, we are inspired by her courage and perseverance.

Ariana Max

Ariana Max is a young woman residing in Houston, Texas. She found the Morgan Foundation through social media and reached out to me. When Ariana found me, I felt and feared that she was near the end of her rope.

She had been in a number of treatment centers. She left some. She was asked to leave others. None resonated with her recovery. Her physical health continued to deteriorate. Finally, when she was receiving treatment in Oklahoma, her body betrayed her. Her condition became dangerously acute and she was care flighted to the Children’s Hospital at the University of Oklahoma Medical Center. After partially stabilizing, she was discharged although still in a precarious medical condition.

She was fearful of emergency rooms, of being over-hydrated and having her electrolytes become unstable again. Her weight plummeted to the lowest in years, her insurance had lapsed and she could only afford to pay for one, 45 minute counseling session every week. She explored holistic options, acupuncture and polychromatic light therapy treatments. The world seemed dark and the demon was winning its fatal, dark game.

She had a falling out with her therapist and even her family felt hopeless. And then, just like Manda, she awoke from her fog.

She wrote these powerful words to me: “My body has defied science for 12 years, and it’s define science and logic right now. This is a sign for me that I am obviously here for a reason, and I do not want to waste that. I honestly feel like I am here for a reason. My body has defied science for 12 years, and it’s defining science and logic right now. This is a sign for me that I am obviously here for a reason, and I do not want to waste that. I spent a lot of time over the last several weeks putting the pieces to my puzzle together, and although it’s been very difficult as I do most of that on my own as I cannot afford the appropriate therapy, I am finding that I can be powerful and my voice does matter. I truly believe that I hold a very important key and it took all of the suffering and pain to figure it out.”

“I am Ariana and Ariana matters and I’m not going to stop fighting for that. I am done being told I can’t, I’m done being told people do not believe in me. I am done being defined by mental illness. I’m Ariana and Ariana matters and I’m not going to stop fighting for that. At this point I’m willing to get up in front of millions of people and tell my story because I truly believe it needs to be heard. I cannot stay silent on an issue anymore that is affecting so many people in this country that is killing so many innocent souls.”

Some time went by and then, she again contacted me. And what I saw overwhelmed me. She had found … salvation? She was physically, mentally and emotionally strong. She had found her voice and her voice had found her. On Facebook she posted photos of her doing one-handed, hand stands, walking on her hands, exhibiting strength, poise and grace. And she had rediscovered her gift of art. She custom paints jackets, jeans, artwork. If you go to a website featuring her recovery and art, you will see that strength, that creativity, that passion of the soul.

Ariana Max Art Website

We are Lifted Up

Both Manda and Ariana have told me that I am a “hero” to them, that I inspire them. To them and everyone, I say, I am no hero. I am an incredibly flawed man whose heart was ripped away. Yes, I have a gift of being able to use words reasonably well. But, Manda, Ariana and all of the silent Army of Survivors in our midst, YOU are the true heroes. YOU inspire me. YOU inspire those doctors, counselors and dieticians toiling in the industry. YOUR heroic victory over pain, over anguish, over almost losing your very soul is what the eating disorder industry is really about.

Manda and Ariana, you are our true Heroes! And it is heroes like you, and the Army of Survivors, who inspire us to continue working, to continue pushing, to continue to change the status quo which can only lead to a better tomorrow.

Manda and Ariana, you make it possible for us to continue to “Save Lives … One Precious Life at a Time.”