Friday, December 31, 2010

Melvin Sembler’s Legacy of Torturing of Children

Torture is the calculated physical and psychological assault on the individual, a practice used to instill fear, punish or degrade, to dehumanize, or to obliterate the self. It is often said that anyone who has been tortured remains tortured, long after the physical wounds have healed. Torture is the deliberate infliction of severe pain by one human being against another, thus it leaves particular kinds of mental and psychological scars. This trauma is different from other traumas because torture is a violation committed in secret and in spite of official denial. Many believe that torture only occurs in the most repressive regimes but the reality is that torture is widespread in all parts of the world. Although it is often perpetuated by police or security forces, it can also be carried out by armed forces, detaining authorities such as immigration officials, hospital staff, or prison wardens. Torture can be physical or psychological. New methods of torture are unfortunately being invented every year. Many can understand severe beatings, extraction of nails or teeth, burns, electric shocks, suspension, suffocation, excessive light, heat, cold or noise, sexual aggression (rape and other sexual violence), forced nudity, isolation and sensory deprivation, mock executions as torture. But psychological torture can be just as traumatic and the psychological wounds of both physical and psychological torture last a lifetime. The coercive and abusive methods of Straight Inc. were designed to obliterate the sense of self and instill fear and obedience to authority in young teens. Some of the abusive methods of Straight Inc. included sleep deprivation, beatings, sexual humiliation, sexual assault, prolonged sitting or standing in forced positions, isolation, detention for prolonged and indefinite periods of time, forcing one teen to abuse another, and prolonged denial of rest, sleep, food, water, adequate hygiene.

Many victims continue to suffer in silence and torture victims commonly report feelings of fear, guilt, shame, anger, disillusionment, insecurity and humiliation. For victims of torture coming forward to speak about what happened to them is very difficult. This is true for the tens of thousands of US children who were physically and psychologically abused and even sometimes sexually abused in the program called Straight Inc. What happened behind the closed doors of Straight Inc. is very deeply personal and highly traumatizing and so speaking about it can evoke for survivors a range of emotions. Survivors are afraid to speak publicly and may not have fully revealed their experiences to families and friends, in some instances they may not have come to terms with it themselves.

But victims of the abuse came forward again this month to tell of an emotional wound that will never heal. Listen to the straight survivors tell about their ordeal on Medical Whistleblowers’ BlogTalk radio show and how they feel about what they have been through.

http://www.blogtalkradio.com/medicalwhistleblower/2010/12/22/straight-inc--legacy-of-abuse-continues-1H

Survivors of torture find it very difficult and challenging to try to move forward with their lives. Many who had spent time in Straight Inc. and other abusive teen rehabilitative centers speak with frustration that the fact that their torture actually occurred has not been publicly acknowledged. Survivors have individual and often have different conceptions of justice, some speak of the importance of criminal prosecutions, and others speak about civil compensation, rehabilitation or prevention of recurrence. But for everyone there is a need to restore that sense of dignity and control that was taken from them when they were tortured.

The United States of America which has signed the UN Convention Against Torture and therefore has an obligation to investigate, prosecute and punish those who do torture. But the reality is that society has a deep seated prejudice toward the weak or powerless and there is a special stigma in the cases of persons who claim to be psychologically injured and who need to seek compensation or support. Governments are a reflection of the pervasive reactions to the horror of torture and so therefore denial, indifference, avoidance and repression are common. Impunity of the perpetrators will prolong, or in some cases deepen, the mental scars borne by the victim or by members of their families, as denial of the wrong makes psychological healing difficult. To obtain any justice through the court system, the torture victim is expected to testify to and provide a recounting of the violation suffered in order to create a public record of the event, and while this truth– telling may have a reparative value for many victims, it may also be deeply traumatic bring to the surface old emotional wounds. In addition those suffering from the mental anguish of torture do not always show physical scars and thus it is easier to deny the extent of their trauma and suffering. Can we afford to endorse the kinds of political compromises that give rise to de jure or de facto amnesties for perpetrators of torture when the right to reparation for victims of a wrongful act is a well-established principle of international law?(1)

For 17 years Melvin Sembler and his wife Betty operated one of the most destructive and world’s largest chain of juvenile rehabilitation programs, Straight, Inc. As many as 50,000 kids were in the Straight program. Straight, Inc. is the biggest violator of human rights and civil liberties that the USA has ever seen. This was torture – there was deliberate degrading and humiliating treatment, sexual abuse, physical beatings, lack of proper food or sanitation, deliberate sexual humiliation, sleep deprivation, and lack of medical care. With inhuman conditions of confinement likened to Korean prisoner of war camps and amidst thousands of law suits alleging severe child abuse, the Straight Inc was finally shut down after a US Congressional investigation. The International Survivors Action Committee Corporation (ISAC)(2) estimates that two Straight clients died wrongfully for every one thousand who survived after being incarcerated for any length of time at Straight. Some estimate is that as many as a hundred to even a thousand children perished as a result suicide secondary to the psychological trauma of being tortured in Straight Inc. During his research Wes Fager was able to document 40 suicides of known Straight Inc abuse. Five percent of children and adults who attended Straight Inc. did so with court order and even after child abuse allegations had already filed against the facilities. But an important lesson we can learn from the history Melvin Sembler’s Straight Inc. is that any revulsion authorities have to cruelty and mistreatment of teens can be redeemed by the transformative power of political contributions. Melvin Sembler was a very successful political campaign fundraiser. People at the highest levels of the US government have endorsed and approved of Straight and its spin off programs including Nancy Reagan, George Bush Sr., Jeb Bush, and George Bush Jr.

After extensive federal and state investigations into the abuse, the Straight Inc. program just changed its legal name and continued business as usual. This gave rise to a myriad of programs under various names but all with the same abusive treatment of children. Torture which is prohibited under US law and under International law had been used by Straight Inc as a means to perpetuate extensive medical insurance fraud some of which involved fraud against the US taxpayer. As Straight Inc. branched out it started using governmental grants to fuel its growth.

In 1982 Donald Ian Macdonald, MD was appointed Director of Medical Research for Straight-national, and in 1986 Richard H. Schwartz, MD was Director of Research for Straight-Springfield. The 1991 report by author Richard Lawrence Miller titled Teens and marijuana: Ethics of research accuses Straight's Doctor Richard Schwartz of performing medical experiments on Straight clients without their informed consent. In 1971 the United States Senate's Judiciary Committee, Subcommittee on Constitutional Rights under the directorship of Senator Sam Ervin began an investigation of the US government's role in behavior modification. Ervin's 650 page report was published in November 1974 under the title "Individual Rights and the Federal Role in Behavior Modification." In the report about The Seed which was Straight’s predecessor, the “brainwashing” methods used were likened to those methods employed by North Koreans against American servicemen during the Korean War. The National Institute on Drug Abuse (NIDA) had funded The SEED under NIH. NIDA was at that time directed by Dr. Robert L. DuPont, Jr. Senator Ervin directed Dr. DuPont and NIDA to require The Seed to issue NIDA human consent forms to Seed participants and to their parents acknowledging that they were participating in human experimentation as required by NIDA's own regulations.

Melvin Sembler, a real estate magnate and strip-mall developer, earned his fortune as chairman of the Sembler Company, a Florida-based real estate company. Mel and Betty Sembler had a son in The Seed. When it closed Mel, Betty and some other Seed parents formed their own Seed-like program in 1978 which they called Straight, Inc. Straight was quickly accused of criminal child abuse by Florida's licensing and investigating agency the Department of Health and Rehabilitative Services (HRS). Bob Marshall, the principal investigator for HRS was fired and thus further investigation was halted. There is sound evidence that the HRS report was covered up. One of the Straight Inc victims, Jerry Vancil who testified disappeared, and has never been seen or heard from since--dead or alive. Melvin Sembler responded to the allegations of child abuse by replacing Straight’s clinical director Jim Hartz with Miller Newton.

In 1983 Reverend Doctor Miller Newton, Straight's national clinical director, left Straight in Florida to setup his own second-generation Straight in New Jersey. In 1989 California health authorities closed down his expansion program in that state for reasons of criminal child abuse. Straight moved into the facility and took over Newton's clients. In just over a year later state authorities closed the California Straight too citing: "Documentation on file indicates that there have been incidents where children have been subjected to unusual punishment, infliction of pain, humiliation, intimidation, ridicule, coercion, threat, mental abuse or other actions of a punitive nature, including . . . interference with daily living functions such as eating, sleeping or toileting, or withholding of medication." (3)

The NIDA was not the only federal agency to have funded The Seed. The Law Enforcement Assistance Agency (LEAA) had also made grants. Under pressure by Senator Ervin LEAA Administrator Santarelli announced the cancellation of all LEAA funding for medical research, psycho surgery, and behavior modification because, in his words, there "are no technical skills on the staff to screen, evaluate, or monitor such projects." LEAA had been approached by Straight to fund its startup because Straight Inc. realized that NIDA would demand that Straight Inc. parents and children sign human consent forms acknowledging that their kids were participating in a medical experiment.

Straight which was founded in 1976 after The Seed was shut down, needed startup money but it was still too risky to approach NIDA for funds as much had been made in the newspapers about NIDA's relationship to The Seed. It was a certainty that NIDA would have to ask Straight parents and their children to sign human consent forms acknowledging that their kids were participating in a medical experiment. But LEAA had not been setup to fund programs involved in human experimentation and thus it had no policy for human consent forms. True, LEAA Administrator Santarelli had held a news conference announcing the cancellation of all LEAA funding for medical research, but after Senator Ervin retired, LEAA staff quickly forgot the guidance of their own administrator. Straight Inc. managed to get two startup grants from the LEAA in 1976 and again in 1977 for $50,000 each. Around 1978 NIDA's director Robert DuPont left NIDA and became a paid Straight consultant. Straight then went national and became the largest juvenile drug rehabilitation program in the world--and one of the most destructive.

In 1983 a former patient won $220,000 from a jury for unlawful imprisonment that involved regular beatings at the Straight, Inc., facility in St. Petersburg, Florida. Another Florida patient won a $721,000 jury award in 1990. Dozens—if not hundreds—of other suits were settled out of court. (4) In 1985 the Semblers fearing civil suits by the victims of the abuse and fearing possible criminal prosecution, changed the mission of Straight, Inc. from "treatment" to "education" and its name from "Straight, Inc." to "Straight Foundation, Inc." In 1995, two years after Straight had to be closed; Betty Sembler changed the name of the educational foundation again to the Drug Free America Foundation (DFAF).

From 1997 to 2000, Sembler served as Finance Chairman for the Republican National Committee and from 1994 to 2000 as Florida's National Committeeman to the Republican National Committee. He then lent his fund-raising skills to the presidential campaign of George W. Bush, helping raise a then-record $21.3 million during a single campaign dinner in 2000.(5) After his election, the younger Bush named Sembler Ambassador to Italy. Sembler served as U.S. Ambassador to Australia and Nauru during the presidency of George H.W. Bush. (6) Sembler was an adviser to Mitt Romney during the race for the 2008 Republican Party presidential nomination. According to Opensecrets.org, during the period 1989-2009, Sembler donated nearly $500,000 to political races and conservative political action committees. Sembler also supported former Bush administration figure I. Lewis Libby by serving as chairman of the Libby Legal Defense Fund, which raised money for the ultimately unsuccessful defense of Libby, Dick Cheney’s former chief staffer, against perjury and other charges related to the leaking of CIA agent Valerie Plame’s name.

So today Straight has morphed into an organization called the Drug Free America Foundation, which specializes in helping small businesses set up Drug Free Workplaces, and in promoting national and international drug policy. Through the Drug Free America Foundation and other think tanks such as the American Enterprise Institute, Melvin Sembler still influences drug policy in this country by promoting public policy that allows coercive and abusive treatment methods. This child abuse is not limited to the U.S.A. Now the former staff of the KIDS program has established an abusive teen rehabilitation center in Canada, the Alberta Adolescent Recovery Center (AARC). The abuse of children in residential centers has not stopped but has gotten even more governmental power to hide its true nature from law enforcement and regulators. Abusive teen rehabilitation centers are now even more numerous and the industry is still not regulated by the US federal government. There is no adequate means to monitor these facilities for human rights abuses. Those who profit from this child abuse continue use their financial gains for political power including now undisclosed contributions to non-profits to hide the real source and identity of the funds from the American public.

Melvin Sembler co-founder and CEO of Straight Inc. claims that Straight Inc. no longer has any financial assets – all the financial profits disappeared after the victims of Straight Inc. abuse started to win their cases in a court of law. Obtaining diplomatic immunity by becoming President George Bush Jr’s Ambassador to Italy, the money from Straight Inc. just disappeared into a myriad of complicated real estate transactions. Competent and dedicated FBI agents who were trying to pursue the money trail were told to not pursue their cases. Family court Judges who felt that justice had finally been served by court findings of damages to the victims, found that redress and restitution were denied because the court ordered damages were never paid by Melvin Sembler and his business associates. Private attorneys who spent endless hours compiling the needed documentary evidence were thwarted in their pursuit of justice for the Straight Inc survivors. One attorney tried to assemble a civil RICO case involving thousands of victims’ cases but when the FBI could not assure the payment of money to those who had already won their court cases, further legal pursuit of reparation to victims seemed pointless.

Yet Melvin Sembler’s financial empire and political power continued to grow. In the 2010 national election in which many judges as well as US Senators and US Representatives were up for election, Melvin Sembler stood publicly in support of the American Future Fund and the American Crossroads and its affiliate — Crossroads GPS. Both are shadowy nonprofit organizations which purport to be exempt from tax under section under section 501(c)(4) of the Internal Revenue Code. Both organizations are registered as a 501(c)(4), which means they can receive unlimited donations and do not have to disclose their donors due to a recent decision by the US Supreme Court.

In January 2010 five justices of the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission that corporations have a First Amendment right to spend unlimited funds promoting or attacking candidates in local, state and federal elections. This opened the way for unlimited election campaign spending by corporations. Corporations such as Melvin Sembler’s Florida real estate corporation were already spending considerable amounts of money to influence elections, but Citizens United v. FEC allowed CEOs to spend as much as they want and hide their campaign contributions from the public. Corporate front groups can sponsor campaign advertisements supporting the candidates of their choice and the public will never know who is funding the ads. Thus Melvin Sembler as an anonymous corporate donor can influence the election of federal judges and the election of members of the US Congress and not have the US public even know which political candidate is beholden to him for campaign contributions through American Crossroads or American Future Fund. This is how money gained in medical insurance fraud, fraud against governmental programs and financial profits gained from abusing children finds its way into national politics and thus influences the investigative and legislative environment facilitating the criminal enterprises.

In March 27 2008 a complaint was filed against American Future Fund - violations of Federal Election Campaign Act of 1971 as amended. American Future Fund failed to register and report as a political committee with the Federal Election Commission and to comply with the obligations applying to such committees. American Future Fund in 2008 received $7.5 million in donations and was spending approximately $6.3 million in the 2010 election. Sandra Greiner, Director and President of American Future Fund, was previously an Iowa State Senator and is currently an Iowa State Representative. American Crossroads and its affiliate — Crossroads GPS, reportedly planned to raise $52 million. In the state of Kansas the American Future Fund poured an estimated $900,000 to defeat an incumbent Attorney General, Steve Six in the November 2, 2010 election. Attorney General Steve Six served as the highest ranking Department of Justice official in the state of Kansas and was thus responsible for all investigation and prosecution decisions made for any administrative, civil or criminal case in the state. Attorney General Steve Six was noted for aggressively investigating and prosecuting medical fraud and also was an effective prosecutor against those who abuse children, prosecuting those who do human trafficking and do pornography. The group called American Future Fund (AFF), which is based out of Iowa, has spent millions opposing selected incumbents across the country. AFF has not shared with the US public their real reasons for their targeting particular elected officials and judges in multiple states. Neither have they volunteered to provide the names of their contributors to the Federal Election Commission.

There are several teen rehabilitation facilities in Kansas run by Teen Challenge USA. Teen Challenge is considered by HEAL (8) to be a teen torture center, managed on the same principles as The Seed and Straight Inc. Teen Challenge is a national faith-based residential drug treatment program that is in many states including CA, WA, TX, AL, AZ, AR,CO, CT, ID, IL, IA, KS, KY, LA, MD, MA, MI, MN, MS, MO, NV, NH, NJ, NM, NY,OH, OK, OR, PA, SC, SD, TN, UT, VA. The programs have no medical component and center instead of around prayer, Bible study and religious conversion. Teen Challenge currently operates five drug treatment centers in Texas – none of which have a state license, but only two of which have formally registered their status as a faith-based facility exempt from state licensing. As exempt faith-based drug treatment centers, Teen Challenge facilities are not required to have licensed chemical dependency counselors, conduct staff training or criminal background checks, protect client confidentiality rights, adhere to state health and safety standards, or report abuse, neglect, emergencies and medication errors. Even prior to seeking an exemption from state licensing, a 1995 state inspection revealed that Teen Challenge was not compliant with numerous state health, safety and quality of care standards. Teen Challenge USA has been reported to be abusive and has even hired staff even though they were already registered child sex offenders. It would seem to be common sense to not hire a known convicted sex offender to be director or on staff of a facility that treats children, but that is exactly what Teen Challenge in Winthrop Maine did – not once but twice – two registered sex offenders on staff.

Prior to the November 2010 election the grassroots non-governmental organization, Public Citizen had filed a complaint to the Federal Election Commission against both the Crossroads GPS and American Future Fund alleging violations of federal election campaign laws and requesting that the Federal Election Commission take immediate steps to enforce the law and expose these groups’ secret financing to light of day. Currently Melvin Sembler can secretly donate any amount of money anonymously to these secret non-profit funds like American Future Fund and Crossroads- GPS and by doing so control who will be the highest Department of Justice official –the State Attorney General as well as which sitting judges will continue to serve the bench. That is the kind of non-transparent political power that allows this system covert governmental power to continue to allow abuse children to continue, and to allow those corporations who violate human rights to flourish and prosper in the United States of America. Constitutional civil rights and human rights have little chance of success when millions of dollars are spent to unfairly bias the election of judges or the State Attorney General.

Thus to stop further abuses of children and teens in residential programs the US must identify those that enable this activity to flourish and shut off the perpetrator’s access to grant money and political power. In order to prevent or halt further abuse, it is important to know the identity of the key actors. Explaining the role of the enablers as well as the perpetrators can make governmental officials adopt new due diligence commitments to avoid be complicit in what is actually criminal activity. Economic sanctions, reduction of various forms of governmental assistance as well as public media attention can all help to shine a light on the problem. Focused pressure on key individuals can gain their attention and cause them to rethink their actions or inactions. Much information is already available through several US Congressional investigations; the most recent was done by the House Education and Labor Committee chaired by Representative George Miller. H.R. 911: Stop Child Abuse in Residential Programs for Teens Act of 2009 passed the US House of Representatives on Feb 23, 2009 but still has not yet received any real action in the Senate. This act was “To require certain standards and enforcement provisions to prevent child abuse and neglect in residential programs, and for other purposes.”

The Straight Inc. survivors need to feel that the US government will create effective measures aimed at the stopping the continuing violations and a verification of the facts and full public disclosure of the truth especially for abuses occurring today. For 17 years Straight Inc. and some of its medical doctors were in violation of international law by being in violation of both the Helsinki Declaration and the Nuremberg Code. We must have effective regulatory control over residential treatment centers and wilderness camps. These are gross violations of international human rights law and serious violations of international humanitarian law and we need guarantees of non-repetition. We also must not give de jure or de facto amnesty to the founder and CEO of Straight Inc. Melvin Sembler and should require him to make effective and adequate reparations to the victims of this institutional child abuse. Many victims feel that a public apology including acknowledgment of the facts and acceptance of responsibility is particularly pertinent because the US government knew of the abuse but still failed to protect the children. The United States as a part of the international community should keep faith and human solidarity with victims, survivors and future human generations, and to reaffirm the international legal principles of accountability, justice and the rule of law.


Additional Notes and References:

1. The right of torture survivors to reparations as a matter of international law. Chorzow Factory Case (Germany v Poland), 1928, PCIJ, ser. A, no. 17, p. 47.

2. The International Survivors Action Committee Corporation was a 501(c)(3) nonprofit organization created by survivors of Straight, Incorporated. ISAC works “to expose child abuse within privately owned behavior modification centers, drug treatment centers, specialty boarding schools and teen boot camps.” http://www.isacgroup.org.

3. Letter dated June 27, 1990 from Fred Dumont, Santa Ana, California District Manager for Dept. of Social Services to Straight, National Headquarters explaining why state authorities ordered the program closed.

4. Maia Szalavitz, “Why Jesus Is Not a Regulator,” American Prospect, April 8, 2001.

5. John Gorenfeld, “Ambassador de Sade,” Alternet.org, November 8, 2005.

6. “Biography: Melvin Sembler,” U.S. State Department, January 28, 2002 Former Ambassador to Italy (2001-2005); Former Ambassador to Australia and Nauru (1989-1993) http://www.state.gov/r/pa/ei/biog/7043.htm

7. American Future Fund P.O. Box 13434 Des Moines, IA 50310 The American Future Fund operates as a 501(c)(4). March 27 2008 a complaint was filed by DFL against American Future Fund - violations of Federal Election Campaign Act of 1971 as amended. The American Future Fund failed to register and report as a political committee with the Federal Election Commission and to comply with the obligations applying to such committees. The American Future Fund evaded basic disclosure requirements of the Federal Elections Commission by not filing a statement of organization and by refusing to file required reports. In this manner the AFF has evaded the oversight of the Federal Election Commission and failed to be in accordance with basic disclosure requirements and has spent money to influence elections. The AFF claim to provide Americans with a conservative multi-state advocacy group to communicate a free market viewpoint and to have a mechanism to communicate and a voice for free market ideals focused on bolstering America’s global competitiveness across the country.

Crossroads Grassroots Political Strategies – Crossroads GPS, 1401 New York Avenue NW, Suite 1200, Washington, DC 20005

8. Human Earth Animal Liberation, 126 SW 148th St, Ste C100-422, Seattle, WA, 98166-1984, (877)845-3232 http://www.heal-online.org/childtortureusa.htm

9. Unlicensed counselors were hired at the Teen Challenge facilities. In one Teen Challenge facility in Winthrop Maine, a known child molester became manager of a Teen Challenge facility. Shondi Fabiano listed officially as a co-head of Teen Challenge New England by the website of the Northern New England District of the Assemblies of God, and who is officially listed as a lifetime-registered sex offender for second-degree child molestation and sexual assault in the third degree. An online check of sex offender registries, including the Florida sex-offender registry run by Florida Department of Law Enforcement, also shows Shondi Fabiano also has a history of 2nd degree sexual assault conviction in Kent, RI. Shondi Fabiano listed her residence as Teen Challenge in Maine’s sex offender registry. Shondi Fabiano was convicted of Second Degree Child Molestation in Rhode Island. She is listed on the National Sex Offender Public Registry. http://www.nsopr.gov For additional information: http://www.dailykos.com/story/2008/5/2/17850/21034

Another sex offender Dennis Knox was also at Teen Challenge in Maine Registered Sex Offender Dennis Knox is the second rapist employed by the Teen Challenge in Winthrop, Maine. Dennis Knox, age 35, was convicted of gross sexual assault after raping an unconscious female. He is listed on the Maine Sex Offender Registry. http://sor.informe.org

At Teen Challenge there was also evidence of educational neglect (educationally insufficient material) and reports of physical, mental, sexual, and emotional abuse. There were many reports of abuse including forced missionary activity, possible violation of child labor laws, and forcing people to sign over paychecks to Teen Challenge. Florida has a nearly identical scheme to the one Texas had until recently, in that centers can be completely exempted from regulation by joining the Florida Association of Christian Child Caring Agencies--and Teen Challenge happens to be a member of FACCCA.

Action 9 reporter Todd Ulrich in Orlando, Fla. uncovered an unlicensed telemarketing operation at the Sanford Teen Challenge. Men convicted of financial crimes took customers' credit card information over the phone. They were paid 33 cents a day for a 40-hour work week. They were instructed to lie to potential customers about timeshare vacations from the "Disney Planning Center Resort." Further investigation revealed that the timeshare company has no relationship to Disney. Sanford Teen Challenge director Wayne Gray resigned in the wake of the scandal, and then fled when approached by Todd Ulrich for a follow-up story. Florida's Division of Consumer Services, which regulates telemarketing, is continuing its investigation.

Former Sanford, Fla. Teen Challenge director Wayne Gray, who resigned in disgrace when Action 9 news exposed an unlicensed telemarketing scam that paid workers 33 cents a day, turned up 1300 miles away in Oklahoma. Gray is now the Executive Director of Oklahoma Teen Challenge. No word yet on whether any of the Oklahoma Teen Challenge locations is running a telemarketing operation.

10. Public Citizen, 1600 20th Street NW Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org ProtectOurElections.org, ProsperityAgenda.us, AmericanCrossroadsWatch.org, htp://www.citizen.org, Kevin Zeese, P.O. Box 9596, Washington, DC 20016, 301-996-6582, Chris Holman, 215 Pennsylvania Ave. SE, Washington, DC 20003, 202-454-5182, 202-454-5182

11. Florida Holocaust Museum, 55 Fifth Street South, St. Petersburg, Florida 33701, Tel: 727.820.0100, Fax: 727.821.8435

12. Drug Free America Foundation Inc., 5999 Central Ave Ste 301, St Petersburg , FL 33710 Web Address: www.dfaf.org Telephone: 727-828-0211 Mental Health, Crisis Intervention / (Alcohol, Drug and Substance Abuse, Dependency Prevention and Treatment) Year Founded: 1978 Mission statement To Prevent Drug Abuse and promote awareness through education.

Tuesday, December 21, 2010

The Whistleblower Protection Enhancement Act - S 372

The Whistleblower Protection Enhancement Act (WPEA) H.R. 985 had passed the House of Representatives with a strong bi-partisan majority was fully supported by the whistleblower community and contained true due process rights for all federal employees. But the new S 372 or the Whistleblower Protection Enhancement Act (WPEA) in the Senate which was approved by Unanimous Consent had significant differences from the house bill. Some in the whistleblower community such as the leadership of the National Whistleblower Center believe that there were in reality rollbacks of the current legal rights. Others such as the Make it Safe Coalition and the Government Accountability Project have supported the Senate bill despite its flaws.

Those who wish to “Tell Truth To Power” wish to do so within a safe responsible channel to work within the system not outside it. True national security experts realize that it is preferable to provide a proper protected channel for information about problems, mistakes, or even corruption to get from the field to leaders in authority. Enhanced whistleblower protections would specifically allow national security and intelligence workers to expose wrongdoing through their chain of command, keeping classified information within the intelligence community. Thus creating a viable protected system where none currently exists will help strengthen our national security rather than weakening it. We as a nation do need strong protections for those who step forward courageously to report problems so that we can respond by meeting those challenges and making the entire system stronger.

The following have been criticisms of S 372/WPEA as recently passed by the Senate:

1) Giving the power of summary judgment to the Merit Systems Protection Board is new power will may result in a substantial increase in litigation costs in whistleblower cases, a decrease in the ability to obtain settlements and the creation of a "record" that will be very difficult to reverse on appeal. Many cases could be dismissed by MSPB under this new power.

2) It is feared that the Senate version of the bill (S 372) may have decreased the ability of employees to blow the whistle on “mismanagement” by requiring the burden of proof to be at the level of “gross mismanagement.” (see Drake v. Agency for International Development, 543 F.3d 1377 (Fed. Cir. 2008).)

3) Section § 101(a) (and related provisions) of S. 372.1 re-defines the scope of a protected disclosures permitted under the WPEA, and permits managers and political appointees to fire career civil servants who disclose violations of law. This is contrary to Executive Order 12371. The key to a successful fraud detection program are laws and rules that protect and encourage employees to report "suspicious activities," regardless of the motives of those who engage in such activities and regardless of whether, after an investigation, those activities constituted only "minor" or "inadvertent" violations of law or regulation. The Government's interest in curbing waste, fraud, abuse and corruption is better served by over reporting, and the authorities to whom such disclosures are to be made can best determine the merits of the allegations.

Thus there has been dissent within the whistleblower community on whether the current House/Senate proposals were in fact rollbacks from current legal rights. But there is clear consensus that we do need strong whistleblower protections which will adequately protect federal whistleblowers, national security whistleblowers and a wider spectrum of those in the private sector. All in the whistleblower community believe that the house bill H.R. 985 was better written to provide the necessary whistleblower protections. Thus as S 372 moves forward to the House leadership it is an open question whether the House should approve it without any changes or instead hold it back and consider making the bill stronger and with greater protections for whistleblowers. The question that many whistleblowers are asking themselves is whether those changes ever truly materialize, and will legislation be passed that provides true protections for our whistleblowers. Let us hope that our national leaders listen to those who have questioned certain aspects of the current bill S 372 and make the necessary changes to improve it.

Tuesday, December 7, 2010

The U.S. Court of Appeals for the Fifth Circuit has ruled against the Texas Medical Board

The U.S. Court of Appeals for the Fifth Circuit has ruled against the Texas Medical Board (TMB), allowing landmark litigation by the Association of American Physicians and Surgeon to proceed to prove wrongdoing by the Board. In this important ruling the court has found that the Texas Medical Board has had claims of "pervasive and continuing violations of... constitutional rights" by the TMB, the Court expressly noted allegations that "the Board manipulated anonymous complaints," that the former Board president targeted physicians, and that "anonymous complaints allegedly were filed by a New York insurance company seeking to avoid paying... for claims." The case brought by AAPS means that allegations against the Texas Medical Board regarding bad faith administrative actions against physicians in Texas will no longer be able to be concealed and hopefully the transparency brought by discovery on this case will bring to light the truth behind the claims of wrongdoing against physicians.

Judge Denies Attorney Fee Motion Against PsychRights

Last month we reported certain defendants in PsychRights Big Medicaid Fraud case asked for over $325,000 in attorney's fees against PsychRights. Today the judge denied that motion. http://psychrights.org/States/Alaska/Matsutani/201-101207OrderDenyingAttyFees.pdf

For background, this is the case against various child psychiatrists, providers, pharmacies, state officials and a medical publisher for causing or submitting fraudulent claims to Medicaid for psychiatric drugs that are not for an accepted medical use as defined under Medicaid ("medically accepted indication"). The judge threw the case out of court because he said the Government knows all about the fraud and isn't doing anything about it. We have appealed that decision because we think the judge is wrong and in today's order denying the attorney fee award, the judge reiterated that there was "no consensus," that his decision was correct.

There is more information on the case at http://psychrights.org/States/Alaska/Matsutani/Matsutani.htm. The case is part of PsychRights' Medicaid Fraud Initiative Against Psychiatric Drugging of Children and Youth. See http://psychrights.org/Education/ModelQuiTam/ModelQuiTam.htm We think this initiative has the potential for really putting the brakes on the drugging of children and youth by making the doctors realize they face financial ruin by continuing the practice.

We had been reluctant to try and raise a bunch of money for PsychRights with the threat of having it go to the defendants so now would be an excellent time to make a donation to PsychRights if you can and are so inclined. It will be greatly appreciated.