Carmichael's Photo-Journalism of NC Mental Hlth Reform : Its the LONELINESS That Is Life-Annhilating: Argument for Self-Empowerment for Those w/ MI

Here is a wonderful piece of photo journalism, a master's thesis, by J. Chris Carmichael as pertaining to the effects of NC mental health reform. One of the issues, well evidenced here, which seems a persistent issue for clients of mine w/ mental health challenges, is that they are LONELY in their isolation and the stigmatization of mental health challenges certainly contributes to that.

What this photo-journalism piece speaks to is the need for community which has been found as associated w/ several clubhouses----a model creating community for people w/ mental health issues, both in Europe and spottily, in the US. I know of no clubhouse in western NC. What we have is a more advanced (?) model, namely the Recovery Education Center at Meridian Behavioral HealthCare in Waynesville, NC, which is a good resource for learning about issues impacting mental health. I question this as it is run by good-meaning professionals and para-professionals but there is limited impact of the the clients/ consumers to determine what happens there.

Moreover, a recovery model has as its underpinning that the person can completely 'recover' from a mental health challenge when the fact is that there will be ups and downs throughout one's life. A model which has as an underpinning the empowerment of the impacted people----and that would be a clubhouse model I think----is more appropriate to the phenomenon associated w/ Severe Persistent Mental Illness (SPMI).

I was acquainted w/ a clubhouse in downtown Atlanta. It was always run-down, spilling over w/ people who had no where else to go. Best I know, it is no longer there after some decades of serving that community. There, some people were inside learning computer skills but the overall gist of the place was, as Carmichael seems to allude to, that this is the 'Last Exit' for many of them.

A client of mine yesterday, w/ her own demons re: narcotic addiction a few years ago, is struggling to make clear to her primary care provider how she does not want to become re-addicted, but at the same time knowing that somebody/ somehow has to address her chronic pain. From my experience, chronic pain, a significant stressor exacerbating mental health issues, such as depression, can much of the time be linked to sexual/ emotional/ physical abuse histories (this is well researched) but the story is deeper than that and just the wear and tear on a human body----particularly women re: child bearing-----has been vastly overlooked.

http://jchriscarmichael.com/InShadows/Voices/

Last Exit – Chris Carmichael | Visual Journalist | Chapel Hill, NC

Last Exit is a component of my master's thesis “In Shadows: Hardship and

Hope in Mental Health,” which examined mental health reform in North

Carolina seven ...

US Center for Medicaid/ Medicaid Services Versus Private Insurers Pay-Outs to Insured

A picture or graph is worth a thousand words:

http://hcfan.3cdn.net/15b2e716998ad2bdd0_ktm6bz8u0.pdf

Medical benefit ratios

of private insurers, public

Medicare plan, 1993 to 2007

Percentage of federal Medicare benefit outlays spent on medical care

compared with percentage of premium revenue spent on medical care

by investor-owned private insurance companies

UNC Chapel Hill's Institute of Government Outlines Problems w/ Non Disclosure Agreement Driving Medicaid Waiver

This was published in a previous Defarge post but I wanted to bring it forward again as the powers that be seem to be ignoring the issues driving the Medicaid Waiver. This document was passed out to the public at the June meeting of the Western Highlands Network LME Board:

"(e mail sent to WHN CEO Arthur Carder, 6.1.2011):

Arthur,

In response to your rquest that I examine some of the legal issues surrounding the use of the PBH "Non-Disclosure Agreement," I discussed the matter with my colleague, Frayda Bluestein, who has expertise in state public records law. Our review of the agreement raised two specific legal questions that the parties should consider before executing the agreement. One is how the state public records law might apply to restrict your LME's subsequent compliance with a public records request for documentary information you receive under the non-disclosure agreement. Another involves a state constitutional limitation, which I address in the next paragraph.

The constitutional limitation: Paragraph 6 of the agrement, the indemnity clause, says that the LME promises to indemnify PBH for any losses, liability, damages, and claims caused not only by any act of omission of the LME, but also for the acts and omissions of the LME's contractors. In other words, the LME promises to indemnify PBH for the negligence or liability of others. The Constitution of North Carolina, Art. V, Sec. 4, subsection 3, states that no unit of local government shall give or lend its credit in aid of any person, association, or corporation, except for public purposes and unless approved by a majority of the qualified voters. Because a loan of credit is defined to include the guaranteeing of debts of an individual, association, or private corporation, and because the indemnity clause (par 6 of the non-disclosure agrement) says that the LME promises to indemnity PBH for losses for which a contractor is liable (the contractor's debts), paragraph 6 is a "loan of credit" that triggers a constitutional requirement that cannot be agreed to unless approved by the voters. Therefore, paragraph 6 of the agreement is invalid if this vote is not taken and, generally, local government attorneys would not agree to such a provision.

The public records law question: I note that the non-disclosure agreement applies to "proprietary information," which the agreement defines to include "know-how" and "ideas," as well as "documents." To the extent that the information to be shared is documentary in nature (paper, film, audio recordings, photographs, magnetic tapes, electrtonically stores records, etc.), it is "public record" as defined in G.S. 132-1 and subject to disclosure under the public records law unless some or all of the records are exempt from the law's provision granting the public a right of access. On the rother hand, unrecorded information or knowledge in the minds of public employees (e.g., how to use or think about the records ) is not a public record. therefore, my discussion here of the public records law does not apply to the know-how or ideas that reside in PBH employees' minds and that are intended to be shared pursuant to the non-disclosure agreement. By extension, my concern that the public records law raises obligations that compete with those created by the non-disclosure agreement does apply to know-how and ideas, nor do I examine the validity, appropriateness, or applicability of the non-disclosure agreement to know-how or ideas.

My understanding is that the information PBH intends to share with other LME's includes written (in paper or electronic form) policies and procedures, manuals, forms, contracts, privileging and credentialing tools, provider standards, provider appeal processes and forms, consumer appeal process and forms, etc. The North Carolina Public Records Act permits public access to all public records in an agency's possession unles the agency or the record is specifically exempts from the statute. (I will presume, here, that no one takes the view that PBH is not a governmental agency subject tot he public records statute. If I am wrong on this point, and need to address this qustion, please let me know). I have identified no provision of state law that explicitly exempts the PBH records at issue here from public access under the public records law. The public records act exemption for trade secrets does not apply, as that exemption applies to a trade secret that is the property of a private person.

Neverthtless, under federal law, a North Carolina local government may obtain copyright protection for appropriate materials that are public records. David Lawrence, in his book Public Records Law for North Carolina Public Governments (2nd ed., 2009), at page 55, writes, "a member of the public retains the right, under the public records law, to inspect and make a copy of copyrighted material when the government owns the copyright, but the government may assert its rights as copyright owner and restrict the uses that may be made of a copy of the copyrighted material." It is unclear from a reading of the non-disclosure agrement whether PBH is asserting a copyright interest in the records to be shared and relying on that legal interest as the basis for the agreement. To the extent that PBH holds a copyright on material subject to the non-disclosure agrement, it may be lawful for PBH to refuse to produce the material unless the reeipient signs an agreement restricting the commercial use of the records without PBH consent (See, Seago v Horry County, 663 S.E. 2d 38 (S.C. 2008), holding that state public records law and federal copyright law could be read harmoniously by requiring the county to provide public access to its digital maps but allowing it to restrict the subsequent commercial distribution of the maps by requiring citizns to sign a licensing agreement prior to the county releasing the requested copyrighted material.)

The issue at hand seems analogous to the Seago case. However, the terms of the PBH non disclosure agreement appear to create obligations on the part of the LME's receiving PBH information that go beyond PBH's interest in restricting the subsequent commercial distribution of public records subject to the copyright law. To put it another way, the PBH non-disclosure agreement does not appear to strike the harmonious balance between public records law and copyright law that is described in the Seago case. The PBH non-disclosure agreement, at paragraph 3,b., not only restricts the subsquent commercial use or distribution of records received by LME's but has the recipient LMEs promise that they will not, without the prior written consent of PBH, "copy, use or disclose" any information that "has value in PBH's business," remove the information from the premises of the LME, or "deliver" any information "to any person or entity outside the LME." (LME contractors are excepted from this promise). The terms of the agreement appear to prohibit the LME that receives PBH records from providing public access to the records under the state public records law. Thus, the LME that signs the agreement appears to agree that is will not only protect the records from commercial use and distribution, but also that is will not comply with the North Carolina Public Records Act.

The Seago case is a South Carolina case that North Carolina courts are not bound by, and there is no North Carolina case on point. I don't know how a North Carolina court might strike the balance between a copyright holder's interests and the public's interes in access to government documents. It is theroretically possible that a North Carolina court might permit public access and inspection, but not copying of copyrighted records. But, if we assume that State's courts would reach the same or a similar result as Seago, then we can say that the public retains the right, under state public records law, to inspect and make a copy of copyrighted material when government owns the copyright. Because that public right would apply to requests made to the LME that receives PBH material, it is unclear from the agreement how the recipient LME would be able to comply with both the agreement and state law when subsequently faced with a public records requrest for PBH records (One way to strike the balance might be to require the LME, prior to complying with a public records request, to have the citizen or other seeker of records sign an agreement prohibiting commercial distribution and use.)

The foregoing issues are not trivial. I am concerned that the non-disclosure agreement generally lacks the specificity necessary for the parties to clearly understand the scope of information to which it applies and the nature of obligations it imposes. Because the obligations imposed by the agreement on any LME signing it are broad and significant (e.g., permitting PBH attorneys to act on the LME's behalf at the LME's expense, the LME agreeing to pay PBH for damages arising out of contractors' breach of the agreement, no disclosure permitted of information subject to the agrement to any person or entity other than LME contractors), because the agreement states that it applies to any and all information and records disclosed by PBH to the LME, and because the agreement, though possibly appropriate for private parties, does not acknowledge or reference the existence of laws applicable to governmental entities that may raise competing obligations, it is reasonable and appropriate for your governing board to carefully consider the agreement before signing it, seek advice from your agency attorney, and request modifications from PBH as necessary.

PBH appears to have valuable and legitimate interests to protect, and a contract or licensing agreement may be the appropriate means for obtaining that protection. It strikes me that an agreement could be written that protects PBH intersts, but also permits the LME's that receive the information to comply with laws applicable to local governments. Towards that end, I would rewrite paragraphs 6 and 3, b., to address the issues raised above, and perhaps add a paragraph that says that the obligations of the agreement are binding and enforceable only to the extent that they are consistent with any other state and federal law applicable to North Carolina local governments (I note that Paragarph 9 refers to resolving conflicts in accordance with NC law, but leaving "as is" provisions that we know conflict with NC law---which creates confusion and leaves the parties uncertain as to their obligations---and later, face the prospect of the parties having to litigate the meaning of NC law, does not seem prudent if agreement and clarity can be achieved now.) I also note that the agreement permits the LME to use PBH records "exclusively to prepare the LME to operate the waivers and for no other purpose." Due to this language, it is possible to argue that the LME can use the records only to prepare for operation, and that once the LME begins to operate the waiver any continued use of the PBH materials would be a violation of the agreement. While this may not be the intention of the parties, the agreement would be better if it were clear and unambiguous on this point.

The foregoing analysis and conclusions are based on my own research, and consultation with others who have expertise in local government law. I am not an expert in federal copyright law or intellectual property rights. Attorneys with expertise in those fields may have something to say that requires additions or modifications to my own analysis and conclusions. At a minimum, I hope this information helps you identify some specific issues raised by the non-disclosure agrement that are amenable to resolution through further discussion with PBH.

Mark Botts "

Daymark Recovery, Insuring 38,000 clients in 29 Counties Backs Medicaid Waiver But Non Disclosure Agreement Trashing of Public Records Law Ignored

If NC DHHS and by default, large companies such as Daymark, see advantages to the Medicaid Waiver, then creating a LEGAL Non Disclosure Agreement in order to launch the Medicaid Waiver, that does not trash NC Public Health Records laws should be attended to. That would be the start of creating 'more accountability.'

Here is the article and its link: http://www.ncsapa.org/2011/executive-calls-for-changes-in-behavioral-services/

An influential voice in the intense debate over behavioral-health reform believes the state should give the groups charged with managing services more oversight power.

However, Billy West Jr., the executive director of Daymark Recovery Services Inc., also wants local management entities (LME), such as CenterPoint Human Services, to take on more accountability to ensure the system meets community and patient needs.

West’s opinion matters since Daymark, based in Lexington, is a nonprofit that provides mental-health and substance-abuse services for about 38,000 clients in 29 counties.

It also is noteworthy because few providers, large and small, discuss their opinions publicly out of concern for affecting their relationships with LME management officials.

West said LMEs need more oversight authority in order to keep the state from wasting money.

“Three years in a row, the state has spent almost $1 billion on community support Medicaid services only to find fraud, financial waste, enabling of patients and a high state hospital rate,” West said.

West said some of the fraud and inefficiency is a byproduct of not having all LMEs operate with a Medicaid waiver program, which allows LMEs to control how federal Medicaid money is spent.

Advocates are concerned the waiver program puts fewer restrictions on how LMEs manage the providers and services they oversee — allowing them to funnel clients to certain groups.

Associated Press: Early Retirees to Qualify for Medicaid under ObamaCare (plz, let's have another name)

http://apnews.excite.com/article/20110622/D9O0JB0O1.html

I want some Medicaid. I haven't been able to afford any health insurance for over a year and a half. BCBSNC was charging my husband and adolescent son, all w/ excellent health histories, over $700/ month w/ a $2500 deductible. And surely NC Mental Health Reform is going to make me want to retire early.

Whoa, what's this? An effort to have 'ONE PROVIDER'?

We can only hope. But wait! Of COURSE, ".... Republicans already see a problem...."

Quick: make obscure the loophole, just as the Republicans have done re: corporate taxation.

How about the common people get a little taste of Congress's health care benefits? hmmm?

"......"The fact that this is being discovered now tells you, what else is baked into this law?" said Leavitt, who served as Health and Human Services secretary under President George H.W. Bush. "It clearly begins to reveal that the nature of the law was to put more and more people under eligibility for government insurance."

The Medicare actuary's office roughed out some examples to illustrate how the provision would work. A married couple retiring at 62 in 2014 and receiving the maximum Social Security benefit of $23,500 apiece could get $17,000 from other sources and still qualify for Medicaid with a total income of $64,000.

That $64,000 would put them at about four times the federal poverty level, which for a two-person household is $14,710 this year. The Medicaid expansion in the health care law was supposed to benefit childless adults with incomes up to 133 percent of the poverty level. A fudge factor built into the law bumps that up to 138 percent.

The actuary's office acknowledged its $64,000 example would represent an unusual case, but nonetheless the hypothetical couple would still qualify for Medicaid. ...."

After 140 Years of Not Being in Control, This is What NC Republicans Have Given Us

This is the first time in 140 years that the Republican Party has been in control of both the NC Senate and House. And what they have given us, as a present, is a massively diminished public education system and massive cuts to public mental health.

Heckuva job, Brownie.

(see: Wikipedia, Michael D. Brown):

Resignation from FEMA

On September 12, 2005, in the wake of what was widely believed to be incompetent handling of the aftermath of Hurricane Katrina by state, local and federal officials, Brown resigned, saying that it was "in the best interest of the agency and best interest of the president."^[13] His standing had also been damaged when the Boston Herald revealed his meager experience in disaster management before joining FEMA. .....

By the time he resigned from FEMA, Brown had already been discharged from his functions as coordinator of the federal efforts in New Orleans and Gulf Coast by Homeland Security Secretary Michael Chertoff and was sent back to Washington to continue FEMA's central operations. Bush, who had appointed Brown in 2003, praised Brown shortly after the storm hit, saying "Brownie, you're doing a heck of a job,"^[15] but later deflected questions about the resignation, except to deny having discussed the resignation with him.

At least one reliable source, The Economist, recognized the likelihood that Brown was "pushed" out by the administration rather than having resigned voluntarily, although internal e-mails from Brown indicated that he was already planning to leave FEMA at the time Katrina hit.^[16]"

I guess this means that the Republicans---and the Fabulous Five Democrats who drove their budget over Perdue's veto----will now 'get scarce' (like Brownie did around the time that Katrina hit New Orleans) since they've done a maximum amount of damage:

(On Governor Perdue): Last week, she made history again by placing a red veto stamp on the two-year budget bill, which became law when Republicans — in charge of both chambers for the first time in 140 years — overrode her with the help of a handful of Democrats."

http://www.greenfieldreporter.com/view/story/a3583ffb40e549e28882f51cb1df19c2/NC--Perdue-Bill-Signings/

You GO, Bev Perdue.

Republican Led NC State Legislature Puts Education BEHIND MS: MA Mental Health Worker Slain by Mentally Ill Man

Matters overlap. Behaviors can be predicted. And you can predict that the further shredding of NC Medicaid and Public Education by NC Republicans will lead to scenarios like the following.

But first, let's just be perfectly clear what has taken place here as per the midnight vote of the NC State Legislature, wherein the NC Republicans and the 5 Democrats who voted with them are responsible for what is about to happen to NC citizens: http://www.thepilot.com/news/2011/jun17/budget/budget-now-hangs-squarely-gop

In that the best predictor of future behavior is past behavior, and in that MA has had (not even nearly) the budget cuts to public mental health that NC has had, this is the kind of scenarios that you can expect to occur in NC as a result of the callow, misguided vote of the NC Republicans and the 5 Democrats whom did not seem to be able to stand behind the Dem governor:

A MENTAL PATIENT, A SLAIN WORKER, TROUBLING QUESTIONS

NYT Friday, June 17, 2011
www.nytimes.com2011/06/17/us/17MENTAL.html

"....The state mental health commissioner, Barbara A. Leadholm, said she believed her department was providing high-quality care despite the budget cuts it was obliged to accommodate.

"We have to be responsive to what the administration and the legislature feel they can financially afford.....

But advocates for the mentally ill, along with mental health care providers and experts, paint a picture of a underfianced department straining to meet the varying needs of its clients....Over the last two years, the department has increased its reliance on private community providers who say they are underfinanced and struggling to stay afoat. It has closed one state hospital and a small inpatient psychiatric center. It has whittled its client list by almost a thousand. And it has laid off a quarter of its case managers, severing important relationships for thousands of people with serious mental illness and transferrig them to younger, lower paid workers in the private sector......Over the last half-century, as Massachusetts eliminated over 20,000 long-term psychiatric hospital beds and many of the public, unionized jobs that went with them, the state developed a network of private agencies, mostly nonprofit, to provide care for severe mental illness.

The community system never had enogh money, many experts say, but recent budget cuts, combined with Medicaid reimbursement rates that did not keep pace with rising costs, have seriously weakened it.

"The outpatient treatment system in Massachusetts is dying on the vine,,", said Vicker V. DiGravio III, the chief executive of the Associaton for Behavioral Health care, which represents providers in the state." ....."The end result,", Mr. DiGravio said, "is a system where the folks with the least professinoal experience are serving the clients with the most intensive needs---because the Department of Mental Health serves only those people with the most severe mental illness."....

Care in "institutions for mental disease" has never been covered by Medicaid; community care is. Indeed, in the view of experts on public psychiatry like Dr. Jeffrey Geller of the University of Massachusetts Medical School, cost-shifting has been n"the major driving force" behind deinstitutionalization, "with the philosophy a tag-on." ...

Today only 3 percent of the Mental Health Department's clients live in state hospitals. For those in the community, the department has shifted in recent years from a model of care that sees serious mental illness as a long-term disability to a "recovery" model, which seeks to move clients into increasingly less restrictive, less supervised and less costly living situations.

"Its all about getting people discharged as opposed to getting them treatment," said Jill Homer, a state employed case manager for three decades who nnonetheless feels that the system has "fumbled through" its downsizing fairly well.

Dr. Marie H. Hobart, medical director of Community Healthlink in Worcester, said she worried that the new approach "pretends" serious metal illness is linear, that people who improve will never suffer setbacks. She said that seriously ill clients were being allowed to leave the care of the Department of Mental health, with some ending up homeless or in jail.....

"THE ELEPHNAT IN THE ROOM IS THE STATE MENTAL HEALTH BUDGET," she (Laurie Martinelli, the executive director of the NAMI in MA) said. "Did the murders have something to do with funding cutbacks?"

The "historical budget levels" posted on the department's Web site show a nearly 10 percent decline in appropriations for mental health from 2009 through 2011.

******************************
(Regarding the mentally ill man whom stabbed and bludgeoned the mental health care worker at the family care home):

"....Mr. Chappell was admitted to Massachusetts General for a couple of weeks. that is when schizophhrenia was diagnosed and he was prescribed antipsychotic medication, his mother said. Over the next couple of years, though, he did not take his medication consistenty because the side effects bothered him, she said. ....

The psychologist, Jeffrey Miner, cited non sequiturs that Mr. Chappell had spouted in a private session. He said that Mr. Chappell, a native of nearby Chelsea, told him various that he hailed from Texas and rooted for the Wasington Redskins and that he wanted "a lawyer from UCLA with a 3.5 grade point average." When Dr. Miner asked a follow-up question, Mr. Chappell responded, "Masseuse." ....

Ms. Moore, the chief executive of North Suffolk, would not discuss Mr. Chappell's case. Asked what her employeed did if residents becamse non-compliant with their medication, she said: "I don't like to use the word 'compliant.' that implies you can force people to take medication, which you can't." Still, she said, "Our staff is trained to observe and document, to note and report any changes, any symptomology. We would not ignore it." ....

Overall, the risk of violence from people with mental disorders is considered low. But studies have shown that it can be elevated by various factors apparent in Mr. Chappell's profile----delusions and hallucinations, a lack of treatment or failure to take medication, abuse of alcohol or drugs. the strongest predictor of violence by a mentally ill perso nis believed to be past violence...."

***************************************

Rest in peace, Stephanie Moulton. You did the best you could under the circumstances. The blame lies squarely in the lap of the Republican Party, both nationally and on a state-by-state basis.

5 NC Democrats are Poised to Vote Down Perdue's Veto of Budget Which Republicans Created, Slaughtering Medicaid

Governor Bev Perdue of NC wisely vetoed the budget bill created by NC Republicans whom have, as an agenda, to push NC to 49th in terms of funding for education and to further decimate NC Medicaid. Support the governor's veto by calling or sending e mail to these Democratic Representatives whom are poised to go along with the Republican agenda of smashing schools and NC Medicaid.

The VOTE is scheduled for Wednesday, June 15, 2011.

These are the Democratic Party representatives whom are purportedly leaning towards voting to smash schools' budgets and further undo NC Medicaid. I called them and hope you will also:

William.Brisson@ncleg.net: Bladen, Cumberland, counties

Jim.Crawford@ncleg.net: Granville, Vance counties

Dewey.Hill@ncleg.net: Brunswick, Columbus counties

Bill.Owens@ncleg.net: Camden, Currituck, Pasquotank, Tyrrell counties

Timothy.Spear@ncleg.net: Chowan, Dare, Hyde, Washington counties

Here is the referenced information about the above:

http://signon.org/sign/tell-the-party-of-five?source=mo&id=28023-17999971-cIjwe6x&t=2

Tell the Party of Five to support the Governor

By Action NC (Contact)

To be delivered to: Representative William D. Brisson, Representative James W. Crawford, Jr., Representative Dewey L. Hill, Representative Bill Owens and Representative Timothy L. Spear

....If passed as written, this budget will cut millions from public education, cripple our public health services, and badly damage public infrastructure for years to come. These five Democrats are all that stands between North Carolina and this horrible budget. We need them to understand the damage they could cause and tell them we expect better from our representatives.

Medicare Will Be The Game-Changer : APA Recognizes Psychologists' Role in Creating Healthcare Networks

http://www.apapracticecentral.org/update/2011/06-09/proposed-medicare.aspx

The following was just sent out by the American Psychological Association as associated w/ their 'looking ahead' regarding the coordination of health care amongst providers. Already, as associated with Humana cients, whose mental health care has been outsourced to a company in Irving, TX, called LifeSynch, clients must fill out forms indicating a release to coordinate health care between this psychologist and their primary care physician and other health care providers. Finally, we are beginning to get the bigger picture as associated with patient health care being coordinated so that health care providers can all be on the same page. This is a very positive move. See this URL for that letter from APA to the (federal) Department of Health & Human Services.

Comments call for psychologists’ inclusion in ACOsAPA Chief Executive Officer Norman B. Anderson, PhD, and APA Executive Director for Professional Practice Katherine C. Nordal, PhD, urge inclusion of clinical psychologists as participants in Medicare Accountable Care Organizations (ACOs)By Government Relations Staff http://www.apapracticecentral.org/update/2011/06-09/proposed-medicare.aspx

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Republican Paul Ryan's Medicare 'Vouchers' : Seniors Would Pay $6000 More Out of Pocket :Linking the Dots

I have a lot of clients whom are dually eligible re: Medicare and Medicaid. Indeed, those two are managed by CMS (Centers for Medicare and Medicaid Services). Medicare acts as the primary insurer and Medicaid wraps around and pays for the remainder of the bill. If one has Medicare and Medicaid, there is no co-pay.

All disabled citizens receiving Social Security Disability, for the most part, are dually eligible----that is unless they receive over about $950/ month as per their Disability check in which case, they have to pass through the 'doughtnut hole' in order to get to their Medicaid. These commonly would be people who own something, like a trailer, or a car, and are not completely impoverished.

Therefore, the Republican agenda is to sink even deeper into the mire of poverty not only the disabled but also the lower middle class and middle-middle class whom would not be able to afford payment out of pocket. They say its about saving money and balancing the budget but please tell me what is the worth of your gated community if you are afraid to outside of it for the chaos of the multitudes whom have been undone by your budget policies?

Or, to paraphrase the Bible, what shall it profit a man if he should gain the whole world (in terms of his tax savings) if he is bludgeoned by an insane person whom cannot get any mental health care? Better be making some bullet-proof luxury cars. We can, thankfully, depend on our access to guns.

That means that citizens who cannot pay, would not be able to pay, and as per the findings of the Congressional Budget Office, an analysis which ".....found that to get coverage equivalent to what they have now, older Americans would have to pay vastly more out of pocket under the Paul Ryan plan than they would if Medicare as we know it was preserved. Based on the budget office estimates, the typical senios would end up paying around $6000 more out of pocket in the plan's first year of operation." (see: "Vouchercare is not Medicare": NYT: www.nytmes.com/2011/06/06/opinion/06krugman.html)

The Congressional Budget Office's role (see their webpage) is to provide "objective,non-partisan" information to Congress and the public.

People who receive Medicare, if the Republicans have their way, would receive 'premium support payments' (as per the CBO document, otherwise known as 'vouchers') and would have severely truncated services for they would not be able to afford it.

And if you are Medicare only client, who has to go through a 'doughnut hole' in order to get to Medicaid, boy, you would sure move through that quickly-----that is, if you had the thousands of dollars to pay from your pocket in order to get to Medicaid which would be impoverished at the state level by the NC State Legislature Republicans.

Therefore, at the federal level, as per the Republican plan via Paul Ryan (R; Chairman of the House Budget Committe) to create 'vouchers' which citizens would use in lieu of regular Medicare, the Republicans are attempting to create a plan which would utterly fail and further sink mental as well as all other health care. I'd say that they were successful! as per their desire to drown government and successful! at lining the pockets of for-profit industry.

Here is the Congressional Budget Office's letter and analysis to Chairman Ryan: www.cbo.gov/ftpdocs/121xx/doc12128/04-05-Ryan_Letter.pdf

For, if we have Republicans at the NC State Legislature level refusing to continue a .1 cents sales tax (which we do)----which is decimating Medicaid and the public school system-----backing up to the US Congress, w/ the House of Representatives led by the Republicans whom want to create 'vouchers' for Medicare, then you might as well drag out the coffin related to NC mental health care.

WHN LME 'Goes Its Own Way' re: Medicaid Waiver: pbH Non-Disclosive Agreement Hoisted Upon LME's Deemed by UNC Institute of Government to Be 'Illegal'

Its a good day for those supporting open government and efficient public mental health service delivery in western NC. The Western Highlands Network Board and administration has made this happen (with a little help from the concerned CFAC, Consumer and Family Advisory Council appointed to advise the board as per NC Mental Health Reform; the NC Commissioners on the Health and Human Services committee; legal opinion from the UNC Chapel Hill Institute of Government; and, other concerned citizens/ providers such as this one).

Today was the Western Highlands Network (WHN) LME (manages mental health services for 7 counties in Western NC) June Board meeting (1st Friday of every month). The Board, to its credit, after something of a closed session, voted to 'go its own way' re: the NC DHHS mandated Medicaid Waiver. Comments from the WHN LME Board included that, "pbh acts like a public entity when it wants to and a private entity when it wants to." The chairman of the Board indicated that WHN LME Board had made a 'request for public records' of pbH as associated w/ the Medicaid Waiver, which they refused or did not acknowledge. Other associated comments included that pbH has 'state legislators now in control of the mental health reform process' whileas Martin Nesbitt, co-chair of the NC Joint Legislative Oversight Committee (D-Buncombe) has lost some impact even though he is the head of the NC State Legislature Senate (must be some pretty powerful Republican state legislators; yes, they're Republicans).

The Board indicated they wanted to 'cooperate' w/ pbH (Piedmont Behavioral Health LME, in eastern NC, whom have utilized and developed a Medicaid Waiver plan since 2005 at the behest and approval of NC DHHS). The Board indicated that they wanted a face-to-face meeting with the pbH Board or members associated with the Non-Disclosure Agreement which I hope they will make public. The legal opinion, offered in its entirety below, as per the written information handed out to the public today at the WHN LME Board meeting, states, in part:

".....The terms of the agreement appear to prohibit the LME that receives PBH records

from providing public access to the records under the state public records law...."


Therefore, if an LME has signed on w/ this Non-Disclosure Agreement of pbH's, they have cut-off (illegally, it appears) citizens' rights to obtain public records. This was the stated over-riding concern of the WHN LME Board at their May, 2011 meeting, during which they voted down the signing of the pbH Non-Disclosure Agreement (which pbH subsequently revised to take out some of the more onerous requirement, previously referred to as 'The Borg' on Madame Defarge; but the document, though truncated, is essentially the same).

Relatedly, in a letter to Robert Carey, a member of the Consumer and Family Advisory Committee for WHN LME, from NC DHHS's Michael Watson, Deputy Secretary for Health Services, dated 5.23.2011, states (and this was handed out at the Board meeting also):

"......More than 15 LME's have already signed the agreement and are currently working with the materials. LMEs will also develop and utilize their own materials, so long as all waiver and Medicaid contract requirements are met....."

That's a little bit of arm twisting, eh?

Moreover, as per attorney Mark Botts reading of the pbH Non Disclosure Agreement which 15 LME's have signed, he states:

".......Thus the LME that signs the agreement appears to agree that it will not only protect the records from commercial use and distribution but also that it will not comply with the North Carolina Public Records Act....The terms of the agreement appear to prohibit the LME that receives PBH records from providing public access to the records under the state public records law. "

The overall conclusion of the WHN LME Board seemed to be that, as per obtaining an opinion from Mark F. Botts, J.D., Associate Professor of Public Law and Government, School of Government, The University of North Carolina at Chapel Hill, tel 919 962 8204, e mail: Botts@sog.unc.edu, that the pbH Non-Disclosure Agreement, which was quite massively upgraded as per the version that Mr. Botts overviewed, is still problematic and this is particularly troublesome given the fact that 15 LME's have already signed a document deemed to be disharmonious with state law (the state mental health programs are already, reportedly, being investigated by the Feds and surely this will throw more kindling on that fire).

Here is Botts letter, in its entirety except for the underlining associated with discriminating the sections, which was in a set of documents given to the public at the WHN LME Board meeting today (see previous Madame Defarge posts within the past month to see the old pbH Non-Disclosure Agreement; after I posted it online on 6.3.2011, I noted, on the Monday following the Friday of the board meeting, that there were some mispellings. I was eager to get the document online, admittedly, given the importance of it and I had hand-typed, rather than scanned, the document, into this blog and so I have tried to correct all of those as per the original document):

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(e mail sent to WHN CEO Arthur Carder, 6.1.2011):

Arthur,

In response to your rquest that I examine some of the legal issues surrounding the use of the PBH "Non-Disclosure Agreement," I discussed the matter with my colleague, Frayda Bluestein, who has expertise in state public records law. Our review of the agreement raised two specific legal questions that the parties should consider before executing the agreement. One is how the state public records law might apply to restrict your LME's subsequent compliance with a public records request for documentary information you receive under the non-disclosure agreement. Another involves a state constitutional limitation, which I address in the next paragraph.

The constitutional limitation: Paragraph 6 of the agrement, the indemnity clause, says that the LME promises to indemnify PBH for any losses, liability, damages, and claims caused not only by any act of omission of the LME, but also for the acts and omissions of the LME's contractors. In other words, the LME promises to indemnify PBH for the negligence or liability of others. The Constitution of North Carolina, Art. V, Sec. 4, subsection 3, states that no unit of local government shall give or lend its credit in aid of any person, association, or corporation, except for public purposes and unless approved by a majority of the qualified voters. Because a loan of credit is defined to include the guaranteeing of debts of an individual, association, or private corporation, and because the indemnity clause (par 6 of the non-disclosure agrement) says that the LME promises to indemnity PBH for losses for which a contractor is liable (the contractor's debts), paragraph 6 is a "loan of credit" that triggers a constitutional requirement that cannot be agreed to unless approved by the voters. Therefore, paragraph 6 of the agreement is invalid if this vote is not taken and, generally, local government attorneys would not agree to such a provision.

The public records law question: I note that the non-disclosure agreement applies to "proprietary information," which the agreement defines to include "know-how" and "ideas," as well as "documents." To the extent that the information to be shared is documentary in nature (paper, film, audio recordings, photographs, magnetic tapes, electrtonically stores records, etc.), it is "public record" as defined in G.S. 132-1 and subject to disclosure under the public records law unless some or all of the records are exempt from the law's provision granting the public a right of access. On the rother hand, unrecorded information or knowledge in the minds of public employees (e.g., how to use or think about the records ) is not a public record. therefore, my discussion here of the public records law does not apply to the know-how or ideas that reside in PBH employees' minds and that are intended to be shared pursuant to the non-disclosure agreement. By extension, my concern that the public records law raises obligations that compete with those created by the non-disclosure agreement does apply to know-how and ideas, nor do I examine the validity, appropriateness, or applicability of the non-disclosure agreement to know-how or ideas.

My understanding is that the information PBH intends to share with other LME's includes written (in paper or electronic form) policies and procedures, manuals, forms, contracts, privileging and credentialing tools, provider standards, provider appeal processes and forms, consumer appeal process and forms, etc. The North Carolina Public Records Act permits public access to all public records in an agency's possession unles the agency or the record is specifically exempts from the statute. (I will presume, here, that no one takes the view that PBH is not a governmental agency subject tot he public records statute. If I am wrong on this point, and need to address this qustion, please let me know). I have identified no provision of state law that explicitly exempts the PBH records at issue here from public access under the public records law. The public records act exemption for trade secrets does not apply, as that exemption applies to a trade secret that is the property of a private person.

Neverthtless, under federal law, a North Carolina local government may obtain copyright protection for appropriate materials that are public records. David Lawrence, in his book Public Records Law for North Carolina Public Governments (2nd ed., 2009), at page 55, writes, "a member of the public retains the right, under the public records law, to inspect and make a copy of copyrighted material when the government owns the copyright, but the government may assert its rights as copyright owner and restrict the uses that may be made of a copy of the copyrighted material." It is unclear from a reading of the non-disclosure agrement whether PBH is asserting a copyright interest in the records to be shared and relying on that legal interest as the basis for the agreement. To the extent that PBH holds a copyright on material subject to the non-disclosure agrement, it may be lawful for PBH to refuse to produce the material unless the reeipient signs an agreement restricting the commercial use of the records without PBH consent (See, Seago v Horry County, 663 S.E. 2d 38 (S.C. 2008), holding that state public records law and federal copyright law could be read harmoniously by requiring the county to provide public access to its digital maps but allowing it to restrict the subsequent commercial distribution of the maps by requiring citizns to sign a licensing agreement prior to the county releasing the requested copyrighted material.)

The issue at hand seems analogous to the Seago case. However, the terms of the PBH non disclosure agreement appear to create obligations on the part of the LME's receiving PBH information that go beyond PBH's interest in restricting the subsequent commercial distribution of public records subject to the copyright law. To put it another way, the PBH non-disclosure agreement does not appear to strike the harmonious balance between public records law and copyright law that is described in the Seago case. The PBH non-disclosure agreement, at paragraph 3,b., not only restricts the subsquent commercial use or distribution of records received by LME's but has the recipient LMEs promise that they will not, without the prior written consent of PBH, "copy, use or disclose" any information that "has value in PBH's business," remove the information from the premises of the LME, or "deliver" any information "to any person or entity outside the LME." (LME contractors are excepted from this promise). The terms of the agreement appear to prohibit the LME that receives PBH records from providing public access to the records under the state public records law. Thus, the LME that signs the agreement appears to agree that is will not only protect the records from commercial use and distribution, but also that is will not comply with the North Carolina Public Records Act.

The Seago case is a South Carolina case that North Carolina courts are not bound by, and there is no North Carolina case on point. I don't know how a North Carolina court might strike the balance between a copyright holder's interests and the public's interes in access to government documents. It is theroretically possible that a North Carolina court might permit public access and inspection, but not copying of copyrighted records. But, if we assume that State's courts would reach the same or a similar result as Seago, then we can say that the public retains the right, under state public records law, to inspect and make a copy of copyrighted material when government owns the copyright. Because that public right would apply to requests made to the LME that receives PBH material, it is unclear from the agreement how the recipient LME would be able to comply with both the agreement and state law when subsequently faced with a public records requrest for PBH records (One way to strike the balance might be to require the LME, prior to complying with a public records request, to have the citizen or other seeker of records sign an agreement prohibiting commercial distribution and use.)

The foregoing issues are not trivial. I am concerned that the non-disclosure agreement generally lacks the specificity necessary for the parties to clearly understand the scope of information to which it applies and the nature of obligations it imposes. Because the obligations imposed by the agreement on any LME signing it are broad and significant (e.g., permitting PBH attorneys to act on the LME's behalf at the LME's expense, the LME agreeing to pay PBH for damages arising out of contractors' breach of the agreement, no disclosure permitted of information subject to the agrement to any person or entity other than LME contractors), because the agreement states that it applies to any and all information and records disclosed by PBH to the LME, and because the agreement, though possibly appropriate for private parties, does not acknowledge or reference the existence of laws applicable to governmental entities that may raise competing obligations, it is reasonable and appropriate for your governing board to carefully consider the agreement before signing it, seek advice from your agency attorney, and request modifications from PBH as necessary.

PBH appears to have valuable and legitimate interests to protect, and a contract or licensing agreement may be the appropriate means for obtaining that protection. It strikes me that an agreement could be written that protects PBH intersts, but also permits the LME's that receive the information to comply with laws applicable to local governments. Towards that end, I would rewrite paragraphs 6 and 3, b., to address the issues raised above, and perhaps add a paragraph that says that the obligations of the agreement are binding and enforceable only to the extent that they are consistent with any other state and federal law applicable to North Carolina local governments (I note that Paragarph 9 refers to resolving conflicts in accordance with NC law, but leaving "as is" provisions that we know conflict with NC law---which creates confusion and leaves the parties uncertain as to their obligations---and later, face the prospect of the parties having to litigate the meaning of NC law, does not seem prudent if agreement and clarity can be achieved now.) I also note that the agreement permits the LME to use PBH records "exclusively to prepare the LME to operate the waivers and for no other purpose." Due to this language, it is possible to argue that the LME can use the records only to prepare for operation, and that once the LME begins to operate the waiver any continued use of the PBH materials would be a violation of the agreement. While this may not be the intention of the parties, the agreement would be better if it were clear and unambiguous on this point.

The foregoing analysis and conclusions are based on my own research, and consultation with others who have expertise in local government law. I am not an expert in federal copyright law or intellectual property rights. Attorneys with expertise in those fields may have something to say that requires additions or modifications to my own analysis and conclusions. At a minimum, I hope this information helps you identify some specific issues raised by the non-disclosure agrement that are amenable to resolution through further discussion with PBH.

Mark Botts "

I'm gonna go eat some NC barbecue in honor of the good intentions of the WHN LME Board. (however, it undoubtedly is from pigs that came from the eastern part of the state)