Monday, December 17, 2018

Obamacare Struck Down ... What You Need to Know

On late Friday afternoon, December 14, 2018, United States District Court Judge Reed O’Connor struck down Obamacare, a/k/a the Affordable Care Act ruling that it was unconstitutional. Let us explore the reasoning behind the opinion and the possible ramifications and implications, both short term and long term of that decision.
Summary of Decision
Judge O’Connor issued a 55 page opinion which granted summary judgment for the plaintiffs in the case entitled Texas, et al v. United States, et al, Civil Action No. 4:18-cv-00167-O. (The case is generally known as “Texas v. Azar”) The plaintiffs were Republican State Officials from twenty (20) different states. The case was filed in February of 2018. The reason this date is significant will be discussed later in this article.
First, a summary judgment is a motion filed by a party which asserts that there are no disputed material facts in the case and that they are entitled to judgment as a matter of law. If the court agrees that there are no material facts, the judge then applies the law as established by prior cases, interprets the Constitution or statutes involved in the case and makes its ruling.
Judge O’Connor, predicting his ruling would be controversial started his historic opinion with these words: “The United States healthcare system touches millions of lives in a daily and deeply personal way. Health-insurance policy is therefore a politically charged affair – inflaming emotions and testing civility. But, Article III courts, the Supreme Court has confirmed, are not tasked with, nor are they suited to policymaking.”
The Court then struck down the entire Affordable Care Act (“ACA”) on the grounds that its mandate requiring people to buy health insurance is unconstitutional and the rest of the law could not stand without it. Judge O’Connor specifically held that the individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power.
The importance of Congressional taxing power
Judge O’Connor focused on Congress’s taxing power as the key issue because it was the issue the United States Supreme Court relied upon in upholding the constitutionality of the ACA in 2012. In the 2012 case, the Supreme Court said that Congress legally could impose a tax penalty on people who do not have health insurance.
In the 2012 case, the Justice Department under President Obama maintained that the individual mandate went hand-in-hand with the rules protecting people with pre-existing conditions and the insurance subsidies the law provides, and the individual mandate could not be eliminated without scrapping the entire law. This mandate was controversial and in a close 5 -4 decision, the Supreme Court placed great importance on this provision. The mandate provided that if an individual or family did not have health insurance, they would be subjected to a financial penalty of the greater of $695 per person per adult, or 2.5% of household income.
The Supreme Court, in its 2012 opinion written by usually conservative justice, Chief Justice John Roberts held that this “penalty” as referred to in the ACA was not in actuality, a penalty, but instead was a tax and as such, was a lawful, constitutional application of Congress’s taxation power. However, and in a significant glimpse of future battles, Justice Roberts also stated, “The Federal Government does not have the power to order people to buy health insurance.”
The Tax Reform Act of 2017
Enter President Trump and the Tax Reform Act of 2017. In this broad and sweeping reformation of the tax code, Congress eliminated the ACA’s individual mandate’s “penalties” as part of the new tax law. Because there are no tax penalties associated with the ACA and because, in part the Obama Administration argued the totality of the ACA must stand or fall on that basis, the plaintiffs in Texas v. Azar successfully argued that the basis for the Supreme Court’s decision in 2012 had been eliminated.
With the individual mandate now removed, the basis relied upon by the Supreme Court to uphold the constitutionality of the ACA became moot and the ACA was now susceptible to new attacks. These attacks came to fruition in February 2018 when Texas v. Azar was filed in the traditionally conservative Northern District of Texas.
With the reasoning of Judge O’Connor’s decision being explained in “civilian language” (hopefully), we can now examine the implications and ramifications.
Short-term impact?
The short-term impact of Judge O’Connor’s ruling is likely to be negligible. First, Judge O’Connor did not issue a “stay” order or grant injunctive relief to the extent that his ruling would be “stayed” pending final appeal. But, he also did not enter an injunction blocking its continued operation. So, technically, while the ACA is no longer the law of the land, it is likely to stay in force and effect pending final appeal through the Fifth Circuit Court of Appeals and then ultimately, the Supreme Court.
Further, Trump Administration officials who oversee the ACA exchanges went on record Friday night that the federal government will continue to enforce the ACA while the order is being appealed. Seema Verma, administrator of the Centers for Medicare and Medicaid Services tweeted, “The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.” Verma also stated earlier this month that CMS had a plan to protect pre-existing conditions if the law was struck down.
Democratic State Officials from sixteen (16) states vowed to immediately appeal Judge O’Connor’s decision. Ordinarily, a case cannot be appealed until a final judgment is rendered in a case. Some dispute exists as to whether the summary judgment order from Judge O’Connor resolves all issues and disputes in the case. If so, appeal will be immediate and the defendants in Texas v. Azar undoubtedly will petition the Fifth Circuit Court of Appeals in New Orleans to issue a stay of the ruling pending all appeals.
Therefore, until a final decision by the Supreme Court, or until a new law is passed by Congress, the provisions of the ACA are likely to stay in force and effect.
Long Term Possible Impact and Ramifications
Assuming Judge O’Connor’s ruling is not overturned by the Supreme Court, and the ruling that the ACA is unconstitutional is allowed to stand, the long-term ramifications are potentially catastrophic for mental health. The ACA provided coverage regardless of pre-existing conditions. It provided financial assistance for private insurance. The ACA established rules which set forth a basic minimum set of benefits insurance policies must cover. Finally, the ACA provided health coverage for millions of Americans who previously could not qualify under privately operated insurance plans. These issues and concerns, and many others are back on the table and are jeopardized.
The Urban Institute, a left-leaning organization and think tank estimated that up to 17 million Americans could lose their health insurance. This includes the millions who gained coverage through the ACA’s expansion of Medicaid and millions more who received subsidized private insurance through the ACA’s online marketplaces. Insurers would no longer have to cover young adults up to age 26 under their parents’ plans. Insurers could place annual and lifetime limits on coverage. The cap on out-of-pocket costs would be taken away.
Arguably the most catastrophic loss would be coverage for people with pre-existing conditions, a condition which is prevalent with those suffering from eating disorders. More often than not, an eating disorder is a long term disease requiring years of counseling and treatment. Recovery is dependent on medical stabilization, addressing any environmental component, psychological and behavioral treatment, work and resiliency. Recovery for each person is as individual as the person him or herself. It is not unusual for treatment to take a number of years. All of this information is well known to insurance providers. With no legislative oversight or federal law in place, insurance providers could again rely upon the “pre-existing condition” exclusion to deny coverage for residential treatment, outpatient treatment, PHP, IOP … in short, all eating disorder treatment.
Treatment centers and counselors would necessarily become even more dependent on private pay patients as insurance coverage would be denied or limited. This could result in the growing manifestation of the self-fulfilling perception that eating disorders are merely a “rich little, white girl’s disease.”
Residential Treatment Centers could be impacted the most
Despite the passage of the ACA and Mental Health Parity Act of 2008, insurance providers have been carefully scrutinizing residential treatment for eating disorders for medical necessity. Weekly peer-to-peer reviews are not unusual. Insurance guidelines independent from those set forth in the DSM-V are adopted in insurance policies. In November 2017, the Milliman Group found that behavioral health care was four to six times more likely to be provided out-of-network than medical or surgical treatment. This study also found that insurance providers paid primary medical care professionals twenty percent (20%) more for the same types of care than they paid mental health care specialists, including psychiatrists.
After the ACA was signed into law and became effective in 2010, private equity companies went on a feeding frenzy of acquisition of residential treatment centers. Between 2011 and 2018, there were at least seventeen (17) different transactions in which residential treatment centers were bought by private equity firms. Most of the members of the Residential Eating Disorder Consortium (“Consortium”) are owned by PE firms. The acquired facilities include the Eating Recovery Center (twice), Timberline Knolls, Castlewood, Monte Nido, The Emily Program, Remuda Ranch and many others.
The take-over of residential care by PE firms was predicated upon both the Mental Health Parity Act of 2008 and the ACA. PE firms saw an economic opportunity arise from the absence of federal regulation and oversight of the mental health industry. They were emboldened by legislation requiring parity between mental health treatment and medical treatment. The ACA removing pre-existing conditions from the purview of insurance providers and mandatory insurance for all Americans resulted in a perfect storm in the mental health industry and the private equity firms capitalized.
Acquisitions were structured in a manner attempting to avoid corporate practice of medicine doctrines and doctors and owners of treatment centers listened to the seductive “Call of the Sirens,” and sold their practices to PE firms. However, these transactions are structured to be dependent on aggressive expansion and growth. This growth is necessary to increase the asset base of the treatment provider so that future debt obligations can be met. The transactions are also presumably dependent on the belief and necessity that the ACA would remain in place.
With the harsh reality that the ACA has now been ruled unconstitutional, the PE firms and their treatment centers face a new reality … that is, insurance providers will increase their scrutiny of claims for treatment, that they will rely upon the Court’s holding that the ACA is unconstitutional and will phase back in their denying claims because of pre-existing conditions or and will remove the cap on the maximum amount of out-of-pocket expenses incurred by insureds. This will require residential treatment centers to increase their dependence on private pay patients. These treatment centers may also be forced to need to increase their costs and expense to patients. They could also be forced to implement large cost reductions including laying off staff and professional personnel in order to meet their debt obligations.
In short, financial Armageddon could be at hand.
Possible Solutions
The Texas v. Azar decision constitutes a grave crisis impacting all Americans. This crisis could shake the very foundation of the Republic at a time when both major parties are more intent on promulgating the power of their own party and tearing apart the other party. Confidence in our political leaders is low. As for loyal opposition? Respect for those across the aisle? Working together in the spirit of compromise and collaboration while maintaining one’s own dignity and self-respect? These are all attributes which have become foreign to our so-called political leaders on the Hill and in every state capitol.
And yet, the only possible long-term solution is to rediscover that collaboration and come up with a bipartisan plan that results in health care being made available to all Americans at a cost which is affordable. Unfair insurance practices must be curtailed. The most vulnerable of our citizens must be provided with health care which is both substantive and affordable.
The crisis is here. At the same time, the opportunity for a greater future is similarly here.
Crisis or Opportunity? Our future depends on the answer to that question.

Monday, December 10, 2018

What Makes America the Greatest Country in the World?

In the very first scene in the award winning show, “The Newsroom,” Jeff Daniels, who is playing a cable newscaster, is appearing as a guest speaker at  Northwestern University. A young college student asks him the following question, “Can you sum up in one sentence or less ... what makes America the Greatest Country in the World?” After first dodging the question, he is pressed for an answer by the moderator of the event. His candid response follows:

And you—sorority girl—yeah—just in case you accidentally wander into a voting booth one day, there are some things you should know, and one of them is that there is absolutely no evidence to support the statement that we're the greatest country in the world. We're seventh in literacy, twenty-seventh in math, twenty-second in science, forty-ninth in life expectancy, 178th in infant mortality, third in median household income, number four in labor force, and number four in exports. We lead the world in only three categories: number of incarcerated citizens per capita, number of adults who believe angels are real, and defense spending, where we spend more than the next twenty-six countries combined, twenty-five of whom are allies. None of this is the fault of a 20-year-old college student, but you, nonetheless, are without a doubt, a member of the WORST-period-GENERATION-period-EVER-period, so when you ask what makes us the greatest country in the world, I don't know what the fuck you're talking about?! Yosemite?!!!

We sure used to be. We stood up for what was right. We fought for moral reasons, we passed and struck down laws for moral reasons. We waged wars on poverty, not poor people. We sacrificed, we cared about our neighbors, we put our money where our mouths were, and we never beat our chest. We built great big things, made ungodly technological advances, explored the universe, cured diseases, and cultivated the world's greatest artists and the world's greatest economy. We reached for the stars, and we acted like men. We aspired to intelligence; we didn't belittle it; it didn't make us feel inferior. We didn't identify ourselves by who we voted for in the last election, and we didn't scare so easy. And we were able to be all these things and do all these things because we were informed. By great men, men who were revered. The first step in solving any problem is recognizing there is one—America is not the greatest country in the world anymore.

That scene is one of the most impactful opening scenes of any television show in recent memory. And although fictional, is there any legitimate doubt as to the accuracy of those remarks ringing true today? Especially in the field of mental health and more specifically in the eating disorder industry.

But, we are not here today to bury America. Instead, we are here today to praise Australia.

On Sunday, December 9, 2018, Christine Morgan, the CEO of the Butterfly Foundation issued a press release stating that the Prime Minister of Australia announced an amendment to Australia’s Medicare Benefits Scheme designed to improve access and affordability of appropriate eating disorder treatment across Australia. One executive stated, “The socio-economic impact of eating disorders on a person’s life is one of the most severe and enduring in Australia. The introduction of a Medicare response into the health system is the most significant and necessary reform. Without a Medicare response other system reforms that are still needed could not be considered.” [emphasis added]

Australia’s new benefit scheme in part provides:

 · A dedicated single Medicare Benefits Scheme item number for eating disorder treatment for those with severe and complex illness, delivering up to 60 Medicare funded sessions of treatment – 40 psychotherapeutic and 20 dietetic across the range of eating disorders – anorexia nervosa, bulimia nervosa, binge eating disorder and atypical presentations.

· Diagnosis by a GP and mental health practitioner recognizing that these psychiatric illnesses have a significant physical impact and integrated treatment is essential.

The Press Conference announcing this new law was momentous as well. It included politicians, foundations, counselors, and family members all united as one. The transcript from this Press Conference can be found here:

Standing by itself, this achievement is incredibly note worthy. But,  this is only the latest event in what now appears to be a concerted government – private enterprise collaboration to address this insidious disease. Australia along with New Zealand has a recent history of being progressive, of confronting a problem head on and objectively seeking to find solutions. In 2014, The Royal Australia and New Zealand College of Psychiatrists issued new Clinical Practice Guidelines for the treatment of eating disorders. These Guidelines included policies and procedures for the admission of children and young adults, guidelines addressing in-patient management and outpatient care, hospital care, residential care. It was free of corporate bias with no specific economic agenda. Treatment will be made available for groups of people who previously would not have been able to obtain help.

Australians have been given hope. They know that their government listened to their concerns and fears and took affirmative, strong action. Research and treatment are not being driven by private corporations whose interest begins and ends with their profit margin.

Meanwhile, back in the United States

Status quo ante reigns, no progressive, affirmative bold conduct is being undertaken and our children continue to die. In the halls of Congress, strengthening and increasing the financial gains of the private equity overlords predominates lobbying efforts. Nowhere is this more obvious than in analyzing the 2018 payments to the eating disorder lobby and the specific bills being lobbied.

In 2018 alone through the end of October, the Eating Disorder Coalition, the Residential Eating Disorder Consortium (“Consortium”) and the National Eating Disorder Association (“NEDA”) paid their now unified lobbyist a combined $250,000.00. This number is expected to exceed $325,000 by years end. And what did the eating disorder industry buy with this money? The specific bills and resolutions the lobbyist was instructed to lobby involved:

1.             On behalf of NEDA, H.R. 1625, the “Consolidated Appropriations Act of 2018,” related Labor and Defense Appropriations Acts and House Resolution 428 and Senate Resolution 419 both of which recognize February 26, 2019 – March 4,2018 as “eating disorder awareness week.” NEDA paid the lobbyist $60,000 for this work.

2. The Consortium paid the lobbyist $100,000 to lobby on the following matters:

S. Amdt. 2222 "Bipartisan Health Care Stabilization Act of 2018" to H.R. 1625 "Consolidated Appropriations Act, 2018," all provisions. H.R. 4666 "Premium Relief Act of 2017," all provisions. S. 1835 "Lower Premiums Through Reinsurance Act of 2017," all provisions. Issues pertaining to Association Health Plans- 29 CFR Part 2510, RIN 1210-AB85, all provisions. Issues pertaining to Short-Term, Limited Duration Insurance- 26 CFR Part 54, RIN 1545-BO41, all provisions. P.L. 114-255 "21st Century Cures Act," all provisions. H.R. 6311 "Increasing Access to Lower Premium Plans and Expanding Health Savings Accounts Act of 2018," all provisions. S. J. Res 63 "A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Secretary of the Treasury, Secretary of Labor, and Secretary of Health and Human Services relating to "Short-Term, Limited Duration Insurance", all provisions. H.R. 6898 "Maintaining Protections for Patients with Preexisting Conditions Act of 2018", all provisions. [emphasis added]

3. The ED Coalition paid $90,000 on the following issues: Senate Bill 3158, deemed the 2019 Department of Labor Appropriations Act and the aforementioned H.R. 1625, the “Consolidated Appropriations Act of 2018.

That is the totality.

That is what almost 1/3 of a million dollars in lobbying bills gets you. No additional treatment funding. No additional university based research funding. No mandatory increase in training on eating disorders in medical schools and internships. No new laws policing the out of control private equity firms who are running amuck in the eating disorder industry. 

So what do you receive? Lobbying to cut off much needed help for families.

Short-term, limited-duration insurance is a type of health insurance coverage that is primarily designed to fill gaps in coverage that may occur when an individual is transitioning from one plan or coverage to another plan or coverage, such as when they are between jobs.

The Rule proposed by the Secretary of the Treasury, Secretary of Labor and Secretary of Health and Human Services provides consumers with more affordable options for health coverage. Under this Rule, consumers would have the ability to purchase short-term, limited-duration insurance policies that: 

1.    Are less than 12 months in duration;
2. Contain important language to help consumers understand the coverage they are receiving, and;
3.   May be renewed for up to thirty-six (36) months.

Parents, moms, dads, families … The Residential Eating Disorder Consortium paid the unified lobbyist to oppose short term, limited duration insurance policies. You read that correctly. To reiterate, the Consortium paid the lobbyist to oppose short term, limited duration insurance policies.

These insurance policies could provide the ability to pay for life saving treatment for our loved ones. And yet, the Consortium opposes it? To double check, I looked at the specific language utilized in the Senate Joint Resolution 63. The totality of the language states:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Secretary of the Treasury, Secretary of Labor, and Secretary of Health and Human Services relating to “Short-Term, Limited Duration Insurance” (83 Fed. Reg. 38212 (August 3, 2018)), and such rule shall have no force or effect.

To triple check, I then looked at the language of the Rule submitted by the Secretaries and recorded at 83 Fed.Reg. 38212. The exact language  summarizing this rule states:

This final rule amends the definition of short-term, limited- duration insurance for purposes of its exclusion from the definition of individual health insurance coverage. This action is being taken to lengthen the maximum duration of short-term, limited-duration insurance, which will provide more affordable consumer choices for health coverage.
And all of the treatment centers who are included in the Residential Eating Disorder Consortium not only oppose this provision, but are paying a lobbyist to oppose short-term, limited duration insurance policies which would potentially provide payment for life-saving treatment.

Is it because if this type of insurance passed and became law, it would reduce the profits for the insurance providers while increasing their costs? Is it because it could make treatment decisions in accordance with insurance policy language and the DSM V more problematic for treatment centers? Is it because the private equity firms which now control the Consortium and ED Coalition are in bed with the insurance industry?

Whatever the reason, the daunting obstacles confronting families who suffer from eating disorders are being exacerbated by the greed of the private equity firms which own the treatment centers and the insurance industry. And the cost to pay for this greed? The lives of our loved ones at the rate of one death every 62 minutes. At this point, you may use whatever word you wish … reprehensible, unethical, disgusting, or vile to define the state of the eating disorder industry in the United States.

As the mantle of leadership and insight into treating and researching eating disorders is firmly grasped by Australia, they are to be commended and even admired for their vision and wisdom. And as for us? The reality of why America is not the greatest country in the world comes more into focus.

Shards of Glass and Jacob Marley

On Sunday, December 9, 2019, I attended church services at Highland Park United Methodist Church in Dallas, Texas. The sanctuary was awash with vibrant, red poinsettias. Long strands of garland interspersed with large red ribbons were draped over the choir loft and majestic, organ pipes. The world-class choir was elevated to an even greater level by a soprano soloist whose angelic version of “O’ Holy Night” brought many to tears.
The lead pastor is Reverend Paul Rasmussen. Reverend Paul is not one of these television evangelist type ministers screaming fire and brimstone, urging one and all to, “LET THE DEVIL COME OUT! REACH DEEP IN YOUR POCKET FOR THE LOOOORD!!” No instead, Reverend Paul’s sermons are impassioned, they weave in every day life experiences with biblical references and one can readily sense that his message is not just coming from his head … but his heart and soul as well.
On this day, he held up a plastic baggy filled with a broken light bulb. He noted that at one point, we all have dropped a light bulb and watched it break into many pieces. We then routinely get a broom and dustpan, sweep the broken shards of glass away, grab another bulb and go about our day. After all, how can we be expected to fix a shattered light bulb? It is broken beyond repair. In any event, most people wouldn’t even know where or how to begin to repair it. Do you start with the base? What about the wiring? Do you assemble the larger pieces of glass first? Even trying to come up with a plan to repair this fragile, broken item is daunting. It is much easier to simply replace it.
Reverend Paul then poignantly described to some extent, we humans are all broken light bulbs  We all have flaws. But, God doesn't simply discard us because we are fractured. As a Loving Father, God has the recipe for salvation and it is up to us to find that journey of healing.
And at that point, the analogy and message became quite clear. I read on a number of Facebook groups, on other internet groups, through social media and through speaking with doctors, counselors and professionals in the eating disorder industry, of the fear, the hopelessness, the grief, the anger, the frustration and the helplessness felt and expressed by parents whose beloved children are afflicted with this damnable, insidious disease. They see their child, their very heart, slowly wasting away, self-harming, acting out, abusing drugs or alcohol speeding what they fear will ultimately result in the death of the most precious thing they hold dear. They are shaken to their very core. Their light, their love, their hope for the future lay at their feet, unworkable shards of glass, fractured to a point beyond measure or repair. They also know that this is a light bulb that they cannot merely sweep up, discard into the trash bin and then replace. And yet, many don’t even know where to begin to try to repair this fragile, broken life. Fear and despair cloud their vision and falsely point to a path that leads to even greater catastrophe. Where does one begin?
Parents, I so wish I could give to you as a Holiday Present, a copyrighted repair manual complete with blueprints for a successful reconstruction of a human life being torn apart by this disease. Alas, I cannot. In fact, in some ways, I feel like the mythical character Jacob Marley. We know Marley as Ebenezer Scrooge’s deceased business partner, now a chained and tormented ghost, doomed to wander the earth forever as punishment for his greed and selfishness when he was alive. Marley roams restlessly, witnessing the hardships others suffer and lamenting that he has forever lost his chance to help them. But then, in an ironic twist of fate, Marley arranges for the three spirits to visit Scrooge and gives his friend an opportunity for redemption, which Marley tells him was "... a chance and hope of my procuring." Until I breathe my last, my reality is that it is too late for me. But, it is not too late for you.
Moms … Dads … parents, I urge you to simply start with a beginning, any type of beginning. It doesn’t matter if it is the base, the electrical wires or the shards of glass that you address. But, address it you surely must. I can suggest that perhaps a starting point may be found by steeling up your courage, staring at yourself in a mirror and then, look within yourself. Right now, you may be overwrought with fear, despair and yes, perhaps anger. If those emotions dictate your every waking thought, if they dictate your decisions, there is very little doubt that the path upon which your journey will take you will be filled with mistakes, negativity, false hope and dead ends.
We also know that the manner in which we deal with fear and despair is as individual as the person experiencing it. So, where is a starting point? Perhaps for many, a starting point could be … educate yourself! Read vociferously. Actively join and participate in parent support groups. Start support groups in your community if you are able. Read academic research papers and studies. When you speak with treatment professionals, ask as many questions as you deem necessary. Arm yourself with knowledge. “Ipsa scientia postesta est.” [Knowledge itself is power.] That way, when you confront doctors, counselors, insurance claims representatives you will know much more than they believe they know and you can argue with more authority for more effective treatment protocols. You will be able to cite independent studies. You will empower yourself. As you learn, as your strength grows you may learn to take those negative emotions of fear and despair, and instead of them defining you in a negative manner, you use them to motivate you, to inspire you. Do not ignore those emotions. They are currently present in your life. However, the only place that fear can exist is in our thoughts of the future. It is a product of our imagination, causing us to fear things that do not at present and may not ever exist. And isn’t that near insanity?
Moms … Dads … You can save your beloved child. You will find your voice. And maybe along the way, you may find, or you may rediscover your very soul.

Wednesday, December 5, 2018

Therapist - Client Sexual Relationships ... The Problem is Real.

For Brutus, as you know, was Caesar's angel
Judge, O you gods, how dearly Caesar loved him!
This was 
the most unkindest cut of all;
For when the noble Caesar saw him stab,
Ingratitude, more strong than traitors' arms,
Quite vanquish'd him: then burst his mighty heart;
William Shakespeare, “Julius Caesar, Act III, Scene 2”
Of the many hurdles, obstacles and life-threatening issues confronting persons suffering from severe eating disorders, being mentally, emotionally or sexually exploited by the very person from whom they seek help, guidance and sometimes even salvation truly is “the most unkindest cut of all.” It would be easy to dismiss reported incidents of therapists taking advantage of their patients as isolated and rare. Persons may argue that proven instances are so rare that they do not constitute a grave issue worth consideration and as such, we would be seeking to find a solution to a problem that does not really exist. You maintain these false beliefs at your peril.
Studies on Prevalence and Addressing the Issue
In 1991, Kenneth Pope published the definitive research study on “Prior Therapist – Patient Sexual Involvement Among Patients Seen by Psychologists[1].” The findings of this study were shocking. The study found, “A national survey of 1,320 psychologists found that half the respondents reported assessing or treating at least one patient who had been sexually intimate with a prior therapist; a total of 958 sexual intimacy cases were reported. Most cases involved female patients; most involved intimacies prior to termination; and most involved harm to the patient. Harm occurred in at least 80% of the instances in which the therapists engaged in sex with a patient after termination. Respondents reported that in only about 4% of the 1,000 cases in which the issue of sexual intimacies arose, the allegations were false.”
Other significant findings discovered and published by Pope include the following:
“1. It is crucial to note that the sole national study using the same instrument during the same time period with the three major mental health professionals found no significant difference among the rates at which psychiatrists, psychologists, and social workers acknowledged engaging in sex with their patients (Borys & Pope, 1989). 
2. Female patients were more likely to experience harm if the intimacy was initiated before termination (95%) than after (80%), while male patients were not more likely to experience harm from intimacies initiated before termination (80%) than after (86%).”
With regard to implementing processes to lessen the likelihood of this sexual exploitation, Pope and his team also submitted some very damning hypothesis and data. To this end, Pope’s study stated:
We need to reexamine the opportunities for preventing sexual exploitation of patients. To some extent this may involve increased understanding of the tendency of most therapists to experience sexual attraction to patients (Pope, Keith-Spiegel & Tabachnick, 1986Pope, Sonne, & Holroyd, 1993) and the phenomenon of engaging in sexual fantasies about patients (Pope et al., 1986; Pope, Tabachnick & Keith-Spiegel, 1987). It may also involve increased understanding of the sexualization of our teaching relationships and the ways in which training programs provide education and modeling regarding sexual issues (Glaser & Thorpe, 1986; Pope, Levenson & Schover, 1979; Robinson & Reid, 1985; Tabachnick, Keith-Spiegel & Pope, 1991). What seems likely, however, is that creating, implementing, and evaluating comprehensive and effective prevention efforts will not come easily for us as clinicians. As much as we may talk about the concept, it is hard to argue with Sarason's (1985) conclusion: "The fact is that in practice, and the ways clinicians are prepared for practice, the preventive stance is conspicuous by its absence" (p. 63). And yet as psychologists, we have a rich and growing legacy of theory, research, and experience in attempting to bring about the kind of sustained, systematic changes that might be part of an effective prevention program (e.g., Bronfenbrenner, 1974; Cowen, 1977; Kelly & Hess, 1987; Sarason, 1972, 1988; Trickett, 1990). As we consider the feasibility and desirability of various preventive strategies, it is important that we also consider carefully their ethical implications (Bond & Albee, 1990; Trickett & Levin, 1990).
Based in part upon Pope’s study, the American Psychological Association enacted a number of ethical codes addressing this sexual exploitation. These guidelines include the following:
3.02 Sexual Harassment. Sexual harassment is unwanted/offensive sexual solicitation, physical advances, or conduct that is sexual in nature, which may be deemed abusive to another party. Psychologists avoid sexually harassing those with whom they work.

3.04 Avoiding Harm. Psychologists take reasonable steps to avoid/minimize harming their clients, students, supervisees, research participants, and others.

3.05 Multiple Relationships. A multiple relationship occurs when a psychologist is in both a professional and additional role with another person, with a person associated with the person with whom the psychologist has a professional relationship, or when he/she promises to enter into another relationship in the future with any of these persons. If such a dual relationship impairs objectivity and/or competence, or could potentially risk exploitation or harm to those who are served, the actions are deemed unethical.

3.08 Exploitative Relationships. Psychologists do not exploit persons over whom they have power/authority.

7.07 Sexual Relationships with Students and Supervisees. Psychologists do not engage in sexual relationships with those over whom they have evaluative authority.

10.01 Informed Consent to Therapy. This is pertinent to the nature of therapy, so that clients have realistic expectations; the therapeutic relationship is a professional one, which should be made explicit to clients at the outset.

10.05 Sexual Intimacies with Current Therapy Clients/Patients. Psychologists must not engage in sexual intimacies with current therapy clients.

10.06 Sexual Intimacies with Relatives or Significant Others of Current Therapy Clients/Patients. Psychologists must not engage in sexual intimacies with relatives or significant others of current therapy clients.

10.07 Therapy with Former Sexual Partners. Psychologists must not conduct therapy with former sexual partners.

10.08 Sexual Intimacies with Former Therapy Clients/Patients. Psychologists must not engage in sexual intimacies with former therapy clients for at least two years after cessation or termination of therapy. After this interval, psychologists can potentially, albeit infrequently, become exempted from this principle if they demonstrate that no client exploitation occurred in the following areas: the amount of time that has passed since therapy terminated; the nature, duration, and intensity of the therapy; the circumstances of termination; the client’s/patient’s personal history; the client’s/patient’s current mental status; the likelihood of adverse impact on the client/patient; and any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the client/patient (American Psychological Association, 2002 American Psychological Association. (2002). Ethical principles of psychologists and code of conductAmerican Psychologist, 5710601073. Adrian, C. (1996). Therapist sexual feelings in hypnotherapy: Managing therapeutic boundaries in hypnotic work. International Journal of Clinical and Experimental Hypnosis, 44719. 2010 American Psychological Association. (2010). 2010 amendments to the 2002 ethical principles of psychologists and code of conductAmerican Psychologist,65493.[Crossref][PubMed][Google Scholar]).

In 2016, the statistics and harmful ramifications were reiterated in an article authored by Michael R. Capawana, PhD, who has privileges at Massachusetts General Hospital and published in the Journal of Cogent Psychology, Volume 3, Issue 1 (2016). In his article, “Intimate Attractions and Sexual Misconduct in the Therapeutic Relationship: Implications for Socially Just Practice[2],” Dr. Capawana stated:
Sexual contact between therapists and clients is unethical due to the power imbalance that permeates all aspects of the relationship, and because research has demonstrated that this form of sexual contact has ramifications for clients in the form of psychological damage (Sommers-Flanagan & Sommers-Flanagan, 2004 Sommers-Flanagan, J., & Sommers-Flanagan, R. (2004). Counseling and psychotherapy theories in context and practice: Skills, strategies, and techniques. Hoboken, NJ: Wiley. [Google Scholar]). Pope (2001Pope, K. (2001). Sex between therapists and clients. In J. Worell (Ed.), Encyclopedia of women and gender: Sex similarities and differences and the impact of society on gender (Vol. 2, pp. 955–962). Waltham, MA: Academic Press. [Google Scholar]) documented the most common reactions that are frequently associated with therapist–client sex, articulating them as comparable to outcomes of incest or rape. These reactions are: ambivalence; cognitive dysfunction; emotional lability; emptiness and isolation; impaired ability to trust; guilt; increased suicidal risk; role reversal and boundary confusion; sexual confusion; and suppressed anger (Pope, 2001Pope, K. (2001). Sex between therapists and clients. In J. Worell (Ed.), Encyclopedia of women and gender: Sex similarities and differences and the impact of society on gender (Vol. 2, pp. 955–962). Waltham, MA: Academic Press. [Google Scholar]). A majority of clients surveyed reported sex with therapists as damaging; even those who found it pleasurable at first, eventually viewed it as exploitative (Koocher & Keith-Spiegel, 2008 Koocher, G. P., & Keith-Spiegel, P. (2008). Ethics in psychology and the mental health professions (3rd ed.). New York, NY: Oxford University Press. [Google Scholar]).
Real Life Examples and Impact
We previously set forth the issues regarding Nicole P. Siegfried who has been with Castlewood/Alsana from April 2013 to present. In January 2018, Castlewood/Alsana named Ms. Siegfried as its Chief Clinical Officer. We disclosed that Castlewood offered employment to Ms. Siegfried while she was still on professional probation and under practice supervision for having an inappropriate sexual relationship with a patient. Five months after she was placed on professional probation, she began her employment with Castlewood and her misdeeds went largely undisclosed and unknown. And yet, that horse is at the glue factory and there is no reason to continue to beat it.
However most recently, on August 21, 2018, Michael Jacksa, a counselor at Timberline Knolls was arrested and charged with assaulting a 29 year old patient at Timberline Knolls during two counseling sessions between May and June of 2018. Jacksa was accused by patients of digitally penetrating their vaginas and buttocks, putting his hands beneath their clothing, fondling their breasts and forcing them to give him oral sex. During his first bond hearing on Aug. 21, Jacksa reportedly admitted to police that he "probably went too far."
This “probably went too far” conduct manifested itself by him being indicted for his reprehensible conduct directed toward a second victim. According to the new charges, between Dec. 1, 2017 and Jan. 10, 2018, Jacksa was treating an out-of-state woman for eating disorders, anxiety and past sexual abuse. The patient alleges that Jacksa sexually assaulted her during four therapy sessions at Timberline Knolls. The prosecutor said the second woman came forward after seeing media reports.
According to the prosecutor, at least six other former patients of Jacksa's from across the country have contacted the Lemont Police Department, stating that Jacksa allegedly engaged in "inappropriate sexual behavior" during their respective therapy sessions.
And therein lies the greater issue. More often than not, these instances are not isolated events, restricted to one person. More often than not, we are dealing with predators who repeatedly prey on the weak and the vulnerable. More often than not, these attacks are not about sex … they are about power, taking advantage of the weak and exploiting those most vulnerable knowing that they are less likely to get reported.
Unlike Castlewood, Timberline Knolls took immediate steps addressing the matter. They discharged Jacksa, stated that they performed a thorough background search on not only him, but on all employees and stated that they are cooperating with authorities. But, even this is not enough.
Address the Problem
As the many studies show, therapist – patient sexual involvement is not rare. And when it does happen, the damage and injury to the patient is very real, substantive and can be debilitating. It is long past time for the eating disorder industry to step to the plate and aggressively address this issue … before you are forced to do so by one of my brethren of the bar who represents one of the many victims.
First, this problem is tailor-made to be addressed by those programs in the Residential Eating Disorder Consortium. (“Consortium”). Last month, the Consortium published their new Standards of Excellence Project. (“STEP”). As part of this STEP project, they included the REDC Code of Ethics. A review of this Code of Ethics indicates with regard to this very real issue of therapist – patient sexual exploitation, the Consortium did not address this problem. This oversight must be rectified immediately.
Any attorney with any sense and experience would advise the Consortium to appoint a blue ribbon panel to address this problem; to come up with new standards and investigative techniques to increase the likelihood of finding predators who apply for and are offered jobs. Improve your interviewing standards and administer testing designed to increase the likelihood of discovering characteristics exhibited by predators who take advantage of our loved ones.
This issue is real. Our children are being exploited and harmed. The statistics and studies indicate that the problem is prevalent. It exists today. Improve your standards and pledge to employ only the best. Clean up your houses … or the court system will.
We entrust the most precious thing we hold dear … the very lives of our loved ones to the Consortium and other entities. And yet, the Consortium and these other entities are not “entitled” to that gift. It is a gift that must be earned each and every day. The duty is absolute and non-delegable. But, if the Consortium, its members or any other entity in the eating disorder industry fails at this task through neglect, avarice or sloth? 

The Bard, penned the line, “This was the most unkindest cut of all.” And yet, he also wrote, “Prick us do we not bleed? Tickle us do we not laugh? Poison us, do we not die? Wrong us, shall we not revenge.


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