A Tangled Web of Perversity by a Healthcare Company Owner - Subpoenaing Emails of Law Student Critics at NYU Law School, Where He is a Trustee

At Healthcare Renewal, we are largely calling for removal from healthcare of perverse managers and perverse management practices. 

One of those practices is the attempted silencing of critics.

This recent story is simply stunning in the audacity of its principal regarding "shutting up" critics, this time two law students at a law school of which he is a Trustee:

Law School Trustee's Company Chills Critical Speech With Subpoena For Students' Personal Emails

Mon, Apr 21st 2014 1:14pm

http://www.techdirt.com/articles/20140418/18013426963/law-school-trustees-company-chills-critical-speech-with-subpoena-students-personal-emails.shtml

A New York University trustee has found a way to chill speech critical of him and the [healthcare] companies he owns: subpoena the personal emails of two particularly outspoken opponents.

A New York University Law trustee's company wants two students to hand over their personal emails after they circulated a letter criticizing him, according to a subpoena.

The law students, second-year Luke Herrine and first-year Leo Gertner, were targeted after they helped circulate a letter denouncing NYU Law School trustee Daniel Straus, who owns Care One Management, a home health aide and nursing home company embroiled in a labor dispute.

The two students started a petition asking for the removal of Straus from the Board of Trustees, pointing out that a law school should probably be associated with someone who respects the law, something Straus' companies seem to have trouble doing. His two companies, CareOne (http://care-one.com/) and HealthBridge Management (http://www.healthbridgemanagement.com/), have been cited at least 38 times by the National Labor Relations Board for violating federal labor laws. In addition, HealthBridge was held in contempt of court for refusing to allow 600 workers to return to their jobs at their pre-strike pay levels.

"A law school should probably be associated with someone who respects the law" seems an oxymoron, not to mention protected speech under the First Amendment of the U.S. Constitution: http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution.

CareOne's current legal battle with a local labor union, Service Employees International Union (SEIU), something that has dragged on for years at this point, has seemingly turned into a convenient way for Straus to get back at his critics. Of course, CareOne claims otherwise.

CareOne spokesperson Deborah Maxson said the deadline for the requested information is April 25.

“Straus is not a party to the lawsuit and is not managing the litigation,” Maxson said.

Straus may not be a party to this lawsuit, but these are his companies, and there can be very little doubt that Straus would prefer the ongoing criticism of his business efforts be halted. If CareOne wants to use the excuse that Straus isn't a "party" to this lawsuit, then it needs to extend that same courtesy to the two students, who also aren't a "party" to the ongoing legal fight.

But they're defenseless students, and in healthcare matters, dissing a high-ranking healthcare management  person seems to be a crime that such persons cannot seem to tolerate.  (I won't get into the psychopathological issues that may come into play).

Then there's the content sought by the subpoenas. This, too, mentions Straus directly, even as CareOne claims this has nothing to do with him. According to a letter sent by the Board of Trustees to NYU administration, this is what CareOne is hoping to obtain:

“The subpoenas requested information regarding any contact the students may have had with SEIU and any activity they may have engaged in, such as protests or meetings, relating to Mr. Straus or CareOne...”

If Straus isn't "party" to this lawsuit, why does CareOne need information relating to Straus? Beyond that, the information requested bears all the hallmarks of trying to use the power of the court to silence free speech. Protests and meetings, both activities covered by the First Amendment, are mentioned specifically by the subpoena.

Perhaps some members of the generation after the "Greatest generation" have such low self-esteem that they have to bully mere students into submission.

For what it's worth, NYU has stepped up and has provided the students with the pro bono help of one of the school's lawyers. It also issued a very carefully-worded defense of the students, no doubt mindful of Straus' $1.25 million annual endowment.

“The Law School is not a party to the litigation between Care One and SEIU, and will remain uninvolved in it," the school wrote in a statement to DNAinfo New York sent Thursday. "We vigorously support the right of our students to express their views and to organize and participate in lawful demonstrations and other protest activity, at the same time that we acknowledge that parties to litigation are permitted, subject to applicable rules and judicial oversight, to gather evidence in support of their case."

Further statements reiterated NYU's support for its students' rights but also noted it considered Straus to be an "upright and honorable person."

That said, it seems that there is a clear -- and somewhat massive -- conflict of interest for Straus to remain on the board of trustees at NYU Law at the same time he's using the legal process to demand the email contents from two of its students.

Conflicts of interest are nothing new to healthcare.

As is noted by the students' new petition demanding the withdrawal of the subpoenas, this sort of activity, undertaken by a "victim" of criticism, will discourage others from approaching anything remotely controversial.

Forcing students to turn over emails and other private communications in litigation that does not concern them can chill free speech on campus and make students think twice about raising their voice about controversial issues. This is antithetical to NYU's mission of open academic inquiry and commitment to the public interest.

That's assuming the mission of NYU and other universities still remains "open academic inquiry."  Many have begun to doubt that, and with good reason; e.g., see http://www.bloombergview.com/articles/2014-04-22/free-speech-zones-and-other-college-lies as just one example.

Rather than address these concerns, Straus is allowing (or directing) his company to shut down his critics by seeking personal communications from non-party NYU students. Straus also has additional leverage with the university should this fail to keep future criticism at bay. Of course, there's always a chance NYU will side with the students and decide that Straus' companies don't really reflect the culture it's trying to instill in its students. But until this all plays out, we're just witnessing the sort of tactics deployed by entities who would rather shut people up than address their concerns.

I note the following statement on the web page of Care One Management:

"With a focus on the highest standards, clinical best practices and strong management principles, CareOne has developed a reputation as a premier health care company in New Jersey.

With services that include post-hospital care, rehabilitation, assisted living, long-term care and a variety of clinical specialty programs, CareOne offers compassionate care in gracious, professionally managed centers and communities."

With a focus on the highest standards, clinical best practices and strong management principles, CareOne has developed a reputation as a premier health care company in New Jersey.

With services that include post-hospital care, rehabilitation, assisted living, long-term care and a variety of clinical specialty programs, CareOne offers compassionate care in gracious, professionally managed centers and communities.
- See more at: http://care-one.com/#sthash.mAHNhXEp.dpuf

With a focus on the highest standards, clinical best practices and strong management principles, CareOne has developed a reputation as a premier health care company in New Jersey.

With services that include post-hospital care, rehabilitation, assisted living, long-term care and a variety of clinical specialty programs, CareOne offers compassionate care in gracious, professionally managed centers and communities.

- See more at: http://care-one.com/#sthash.mAHNhXEp.dpuf

With a focus on the highest standards, clinical best practices and strong management principles, CareOne has developed a reputation as a premier health care company in New Jersey.

With services that include post-hospital care, rehabilitation, assisted living, long-term care and a variety of clinical specialty programs, CareOne offers compassionate care in gracious, professionally managed centers and communities.

- See more at: http://care-one.com/#sthash.mAHNhXEp.dpuf P { margin-bottom: 0.08in; }A:link { }

In healthcare, I remind, the "shut people up" mentality results in patient injury and death.  It seems to me that this Trustee is not just setting a bad example for the legal profession, but it also throws the management of his healthcare organizations into question.

-- SS

Avatar fails. (No, not the Cameron movie, but yet another lousy EMR system implemented by amateurs.)

A story "Designed for Efficiency, New Computer Software at Health Dept. Misfires" by The Bay Citizen senior writer Katharine Mieszkowski appeared in the New York Times today regarding San Francisco's Dept. of Public Health.

"Misfires?"

That's a mild term indeed. In the realm of incendiary comments in the interest of patient care:

In this story, mental health and social workers, and the disadvantaged people suffering mental illness, drug addiction, etc. that these professionals attempt to raise up from misery one difficult step at a time, are being used as unconsenting experimental subjects and free software debuggers and beta testers:

This story follows a script very familiar to Medical Informatics professionals:

• Poorly designed and implemented healthcare IT causes clinical and other chaos;
• Vendor and implementation leaders claims "glitches" and "teething pains" and blame the users for inexperience and/or incompetence;
• Vendor promises relief in the "next version";
• These principals hope it all "goes away" until the system implodes on itself and needs replacement, starting the cycle anew, and/or-
• The principals hope newspapers stop paying attention to the chaos caused by the IT and the users simply surrender, and let the information systems control them, rather than the other way around.

Considering the patient population involved here, one might wonder if the project leaders have any more compassion than the machines they proffer:

New York Times
Designed for Efficiency, New Computer Software at Health Dept. Misfires
By KATHARINE MIESZKOWSKI
November 18, 2010 (from the Bay Citizen)

In July, the San Francisco Department of Public Health started using an $11.2 million electronic medical records system, Avatar, that was designed to streamline billing and improve care for tens of thousands of clients. Thus far, however, it has brought administrative chaos to the mental health and substance abuse services in the city.

Documents obtained by The Bay Citizen under a California Public Records Act request show that shortly after installing Avatar, providers struggled to use the new software, causing health officials to lose track of millions of dollars of services.

Officials are scrambling to fill in the missing data to meet deadlines to qualify for reimbursement from the state.

In addition to mere financial chaos:

... Problems related to the conversion to Avatar delayed for months the payment of about $450,000 to individual therapists, Anne Okubo, the health department’s deputy financial officer, told the San Francisco Health Commission on Tuesday night. The department was forced to use a third party to make the payments, which are still incomplete.

In addition, some therapists and social workers report that the demands of the new software have cut into the time they spend with patients, eroding the quality of care.

In an Aug. 19 e-mail headed “problems with Avatar,” Steven Schreibman, a social worker at Sunset Mental Health, a city-run clinic, wrote that the software required “excessive time charting and performing data entry” and had led to “shorter sessions with clients” and “delays in our capacity to accept new clients.” [This is not news to anyone familiar with poorly designed, mission hostile healthcare IT - ed.]

The customary excuses were presented. Growing pains, ignorant users:

Senior health department officials and Netsmart Technologies, Avatar’s developer, said the problems were glitches that were to be expected as the city made the transition to a more efficient record-keeping system.

“We knew it was going to be rough initially, because there is a learning curve,” said Jo Robinson, who heads the Community Health Behavioral Services division, where Avatar was introduced.

Kevin Scalia, a Netsmart Technologies executive vice president, said that he does not see this as a big problem. “From our point of view,” he said, “everything is going swimmingly.” [Translation - they're making good money - ed.]

Here's the key passage:

Department managers told the Health Commission that Avatar would lead to “improved client care” and had “positive fiscal impacts,” but they acknowledged there had been problems.

In September, the department compared the cost of mental health and substance services reported by the hospital, clinics and organizations in March, before the software was put into use, to those reported in July using the new system.

The data showed that the mental health services reported had plunged 55 percent. Substance abuse services reported fell 32 percent. The large discrepancies caused alarm because they indicated that providers were having problems using the software, according to documents and interviews. [I can also predict they've had problems _providing_ those services under the time duress added by the software - ed.]

As someone who was once a Medical Review Officer for drug testing in the public transit industry, and a colleague of the company's Employee Assistance Program liaison, I can assure readers that implementation of health IT will not effect a one-third reduction in drug abuse problems and recidivism.

After a month of use:

A month later, as more providers gained access and proficiency with the software, the picture improved, but significant discrepancies remained.

Some data modeling issues are apparent:

But some organizations worry that the services they are providing will not be fully reflected in the new system.

Here's a reverse twist on HIT vendor "Hold Harmless" clauses:

At the Health Commission meeting, Estela Garcia, executive director of the Instituto Familiar de la Raza, a community organization that provides mental health services, asked the commission to protect organizations like hers from any financial liability related to Avatar.

“I want a hold-harmless policy until the system is fully up and running,” Ms. Garcia said.

How long that will take is unclear. One mental health program director, who would not allow his name to be used because it could jeopardize his relationship with the department, said his staff had gone to repeated training sessions to try to get up to speed.

“Avatar turns out to be a total disaster,” the program director said. “What is going to happen to contracted agencies if their billing is short at the end of the fiscal year as compared to the terms of their contract, because they can’t master Avatar?”

As in typical in health IT, system users are afraid to speak candidly:

A psychologist who works with a community organization under contract to the city, who spoke on the condition of anonymity because he was afraid of losing his job, said he used to do all his charting and billing on paper and was told that the new system would be more efficient. So far, that has not proved to be the case, he said.

“We are seeing the same number of patients,” he said, “but we are providing substantially less service to them, because the time we are now spending just to do the billing alone, not to mention the record keeping, it’s become the majority of our time.”

Labor unions are taking a look:

Greg Cross, a field representative for Service Employees International Union Local 1021, which represents hundreds of social workers, psychologists and counselors who work for the city, said he had met with officials to discuss Avatar’s impact on workload as well as performance expectations.

I invite SEIU Local 1021 and national SEIU leaders to read this blog, and review my academic site on HIT failure here, to better understand why these debacles repeatedly occur.

At the Health Commission meeting, Fred McGregor, the health department’s senior information technology manager for community programs, said that the department was aware that providers find the demands of Avatar “a little onerous” and that it was working on a redesign to make clinical assessment more efficient.

A "little onerous"?

"Working on a redesign to make clinical assessment more efficient"?

What about getting it right the first time, based on the significant amount of literature that exists on proper IT design?

I, for one, am tired of hearing this corporate mumbo-jumbo every time another health IT system impairs users.

What is needed here is a full scale investigation and evaluation of the competence and expertise of the project leaders, designers, and implementers to be experimenting in the complex field of healthcare information technology.

Mr. Schreibman, the social worker, made it clear in his August e-mail that change was needed quickly.

“The kind and amount of work skill involved using this software represents a change in our job description,” he wrote. “This is not the job we accepted when we chose to do clinical work for the city.”

In other words, they did not accept a job as data entry clerks and directors of workarounds to the mission hostile user experience presented by poorly designed healthcare information systems.

I note that missing in this story are the human tragedies (such as pain & suffering, injury, death) these IT "glitches" may have caused.

Until the memes of complete health IT beneficence and "anyone can do it" are soundly pounded into the ground and out of the heads of hapless politicians, healthcare leaders, and IT personnel, this type of mishap will continue.

Sadly, health IT mishaps are likely to be occurring on a national scale, soon, in a neighborhood near you, thanks to the timelines and penalties expounded in the HITECH act. HITECH was an integral part of the legislation known as the ARRA (American Recovery and Reinvestment Act of 2009).

-- SS

BLOGSCAN - Labor Union Helps to Market Lipitor

In the Health Beat Blog, Maggie Mahar discussed how a branch of a labor union, the International Association of EMTS and Paramedics, an affiliate of The National Association of Government Employees (IAEP/SEIU), has been helping to market Lipitor (atorvastatin, by Pfizer Inc). I am not sure I have heard of previous cases of labor unions enlisted in stealth marketing efforts by pharmaceutical companies. Ms Mahar so far has not been able to elicit a coherent explanation from the union. Thanks to Dr Alicia Fernandez for blowing the whistle on this on. This also has been re-posted on the GoozNews blog. Although I have not previously heard of a case in which a labor union was helping to market a drug manufactured by a big pharmaceutical company, this is but one of many, many examples we have seen of reputable organizations taken in directions at odds with their missions by leaders with their own agendas.