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Short-Sheeting the Psychiatric Bed: State-Level Strategies to Curtail the Unnecessary Hospitalization of Adolescents in For-Profit Mental Health Facilities

Published online by Cambridge University Press:  24 February 2021

Marc N. Sperber
Marc N. Sperber*
Affiliation:
Brandeis University; Northwestern University; Boston University School of Law
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Abstract

Over the past decade, there has been an increase in the hospitalization of minors in private, for-profit, psychiatric facilities. This increase suggests a tension between what is medically necessary and what is financially desirable. This Note discusses the hospitalization of minors in private, for-profit, mental health facilities and its attendant implications. This Note then examines various state efforts aimed at protecting minors from inappropriate psychiatric hospitalization. Finally, while there is no catch-all solution to the problem, this Note offers specific recommendations for reforming the for-profit psychiatric industry.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 18 , Issue 3 , 1992 , pp. 251 - 276
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1992

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References

1 The film LOST ANGELS (Orion, 1989) told the story of a rich youth committed to a private psychiatric hospital by his indifferent mother. The film depicts the institution as “an ‘uncaring parents’ warehouse for problem adolescents, where a bottom-line minded staff of uncaring doctors babysit the scamps.” Rita Kempley, ‘Lost’ in Teenage Space, WASH. POST, May 5, 1989, at D1.

Another movie, OUT ON THE EDGE (CBS television broadcast, May 14, 1989), portrayed an adolescent psychiatric facility in which physical restraint and forced medication were the rule.

2 Medicalization refers to the adaptation of medical terminology and methods to non-disease-related phenomena. Medicalization occurs on three levels: the conceptual level, through the use of medical terminology and definitions; the institutional level, where physicians control institutions that dispense treatment or provide governmental benefits; and the interactional level, where the medical model is employed to treat non-medical problems. PETER CONRAD ET AL., THE SOCIOLOGY OF HEALTH AND ILLNESS 378 (1986) (citing Conrad, Peter & Schneider, Joseph W., Looking at Levels of Medicalization, 14(A)(1) Soc. Sci. & MED. 75-79 (1980)Google Scholar).

3 Id.

4 See Robinson v. California, 370 U.S. 660, 667-68 (1962) (striking down a California statute that criminalized narcotic addiction on the grounds that the appellant's drug-addicted “status” resulted from an illness, and, therefore, could not rise to the level of a crime); see also Schwartz, Ira M. et al., The ‘Hidden’ System of Juvenile Control, 30 CRIME & DELINQUENCY 371 (1984)CrossRefGoogle Scholar (discussing teenage chemical dependency as a disease); Malcom Spector, Beyond Crime: Seven Methods to Control Troublesome Rascals, in LAW AND DEVIANCE 127, 139-40 (H. Laurence Ross ed., 1981).

5 DAVID F. GREENBERG, THE CONSTRUCTION OF HOMOSEXUALITY, 403 (1988) (quoting Swedish physician Magnus Huss).

6 Id.

7 Adolescence is generally defined as the period between puberty and maturity. See WEBSTER's NINTH NEW COLLEGIATE DICTIONARY 58 (1989); STEDMAN's MEDICAL DICTIONARY 29 (25th ed. 1990). This standard definition, however, does not address the complex emotional, sexual, and social processes that accompany this period of life.

8 See Powers, Sally I. et al., Adolescent Mental Health, 44 AM. PSYCHOLOGIST 200 (1989)CrossRefGoogle Scholar (discussing changing attitudes toward adolescence).

9 Theresa Droste, Teens: Trading Boarding Schools for Psych Wards, HOSPITALS, Sept. 5, 1988, at 74 (quoting Dr. Del Ohrt, Vice President and Medical Director, Blue Cross and Blue Shield of Minnesota).

10 NAPPH is an industry lobbying and trade organization founded in 1933. NAPPH, REQUIREMENTS FOR NAPPH MEMBERSHIP (1989). To qualify for membership, a hospital must be accredited by the Joint Commission on Accreditation of Healthcare Organizations. Id. The hospital must also have at least half of its beds (excluding alcohol and substance abuse beds) designated for psychiatric care, and the hospital must be “organizationally and functionally separate from any affiliated general hospital.” Id.

11 NAPPH, GUIDELINES FOR PSYCHIATRIC HOSPITAL PROGRAMS: CHILDREN AND ADOLESCENTS 3 (1989). The 1984 edition of this pamphlet also listed “inability to function” in family life, vocational pursuits, and inappropriate “choice of community resources” as justifications for hospitalization. Weithorn, Lois, Mental Hospitalization of Troublesome Youth: An Analysis of Skyrocketing Admission Rates, 40 STAN. L. REV. 773, 786 n.81 (1988).CrossRefGoogle Scholar “Choice of community resources” was defined as “avocational interests in school, church activities, scouting activities, the expression of hobbies and/or special interests in the community, as well as an individual's choice of peers for non-structured community activities.” Id. at 786 n.82. This criterion implies that “a teenager who prefers certain non-favored social activities (such as listening to punk rock music) over attending scout or church youth group meetings may be making a sufficiently poor ‘choice’ of community resources to justify his hospitalization.” Id. at 786.

12 NAPPH, WHEN YOUR CHILD NEEDS PSYCHIATRIC HOSPITALIZATION: A CHECKLIST OF WHAT PARENTS NEED TO KNOW ABOUT INPATIENT PSYCHIATRIC CARE FOR CHILDREN AND ADOLESCENTS 8 (1989) (hereinafter CHECKLIST). In a NAPPH survey of adults, 72% stated that they know a teenager or child who had experienced conflict with parents. NAPPH EDUCATION & RESOURCE FOUNDATION, TEENAGERS AT RISK: AN ADULT PERSPECTIVE 9 (1988) (hereinafter TEENAGERS AT RISK). Thirty-seven percent characterized conflict between parents and teenagers aged 13 to 18 as “very serious.” Id. Sixteen percent of the respondents characterized the conflicts between these two groups as “extremely serious.” Id. Forty percent of those polled termed peer pressure on 13 to 18 year olds as “very serious,” while 3 1% called it “extremely serious.” Id.

13 Weithorn, supra note 11, at 789.

14 Id. “A California study revealed that 53% of hospitalized juveniles suffered from disorders defined by antisocial or runaway behavior or general personality problems, while those hospitalized because of depression comprised another 17%.” Id. at 789 n.99 (citing, Carol A.B. Warren & Patricia Guttridge, Adolescent Psychiatric Hospitalization and Social Control, in MENTAL HEALTH AND CRIMINAL JUSTICE 119, 123 (Linda A. Teplin ed., 1984). Between 36 and 70% of youths committed to Virginia state hospitals between 1983 and 1986 “suffer[ed] from no more than ‘acting out’ problems and a range of less serious difficulties.” Id. See also PAUL LERMAN, DEINSTITUTIONALIZATION AND THE WELFARE STATE 135 (1982).

15 Weithorn, supra note 11, at 792. The American Psychiatric Association defines conduct disorder as “[a] persistent pattern of conduct in which the basic rights of others and major ageappropriate societal norms or rules are violated.” AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL: DSM III-R, 53 (3rd ed. rev. 1987).

16 Schwartz et al., supra note 4, at 382.

17 Miller, Robert B. & Keeney, Ernest, Adolescent Delinquency and the Myth of Hospital Treatment, 12 CRIME & DELINQUENCY 38, 40 (1966).CrossRefGoogle Scholar

18 See Lawrence K. Altman, Release of Mentally Ill Springs Doubts, N.Y. TIMES, Nov. 20, 1979, at Bl, B4.

19 Weithorn, supra note 11, at 806.

20 Schwartz et al., supra note 4, at 372 (citing Barry Krisberg & Ira M. Schwartz, Rethinking Juvenile Justice, 29 CRIME & DELINQUENCY 333, 361 (July 1983)); see also ERNEST HARTMANN ET AL., ADOLESCENTS IN A MENTAL HOSPITAL 27 (1968) (describing adolescent psychiatric inpatients’ perception of psychiatric institutionalization).

21 Weithorn, supra note 11, at 797.

22 In one institution, a patient was placed in isolation for two days after he accidentally bumped into a hospital staff member. “The hospital records indicated that he was punished for engaging in ‘noncombative contact.’ ” Schwartz, Ira M., Hospitalization of Adolescents for Psychiatric and Substance Abuse Treatment: Legal and Ethical Issues, 10 J. ADOLESCENT HEALTH CARE 1, 4 (1989)CrossRefGoogle Scholar.

Another institution curtailed an adolescent patient's privileges after he allegedly made “a drug and alcohol-related remark.” Id. While the patient was playing the board game “Trivial Pursuit,” the staff overheard him reading aloud a question card that asked, “ ‘how does James Bond like his martinis stirred?’ ” Id.

At a hearing before the House of Representatives’ Select Committee on Children, Youth, and Families in 1985, a 15 year-old girl gave a harrowing account of her hospitalization, which included physical restraint, forced injections of antipsychotic drugs, and isolation. Emerging Trends in Mental Health Care for Adolescents: Hearing Before the House Select Committee on Children, Youth, and Families, 99th Cong., 1st Sess. 20 (1985) (statement of Marisa DeFoe).

23 In a NAPPH poll, 65% of those surveyed agreed that “[p]eople are afraid of people who have been treated for mental illness.” TEENAGERS AT RISK, supra note 12, at 10. Fifty-seven percent agreed that “[m]ental illness problems in children are an embarrassment to families,” and 47% agreed that “[w]hen a teenager has been admitted to a psychiatric hospital for treatment of mental illness, it puts a cloud over this person's head for the rest of his/her life.” Id.

The Supreme Court has recognized that “[c]ommitment sometimes produces adverse social consequences for the child because of the reaction of some to the discovery that the child has received psychiatric care.” Parham v. J.R., 442 U.S. 584, 600 (1979). See also Schwartz, Carol C. et al., Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 ARCHIVES OF GEN. PSYCHIATRY 329 (1974)CrossRefGoogle Scholar; Ezra F. Vogel & Norman W. Bell, The Emotionally Disturbed Child as the Family Scapegoat, in A MODERN INTRODUCTION TO THE FAMILY, 412 (Norman W. Bell & Ezra F. Vogel eds., 1968).

24 Keisler, Charles A., Mental Hospitals and Alternative Care, 37 AM. PSYCHOLOGIST 349, 351 (1982).CrossRefGoogle Scholar

25 Carol A.B. Warren & William G. Staples, Mental Health and Adolescent Social Control 17 (unpublished manuscript, on file with author). See Szasz, Thomas, The Child as Involuntary Mental Patient: The Threat of Child Therapy to the Child's Dignity, Privacy, and Self-Esteem, 14 SAN DIECO L. REV. 1005 (1977).Google Scholar

26 Miriam Shuchman, In Child Psychiatrist Shortage, Young Must Wait, N.Y. TIMES, Jan. 3, 1991, at B5 (citing an Office of Technology Assessment estimate).

27 Id.

28 Id. (citing a report prepared by the Council on Graduate Medical Education, a committee of the Department of Health and Human Services).

29 Id.

30 Id.

31 “Many people in medical schools think of child and adolescent psychiatry as only playing with puppets and dolls … . There's a notion that anyone who works with children isn't quite as good as someone who works with adults.” Shuchman, supra note 26, at B5 (quoting Dr. John Schowalter, Chairman, American Academy of Child and Adolescent Psychiatry).

32 Weithorn, supra note 11, at 816-17. Between 1982 and 1983, the number of investorowned, private, psychiatric hospitals in the United States rose from 106 to 151. Id. In 1989, the number of beds in privately-owned psychiatric hospitals grew from 20,384 to 22,287. Howard Kim, Psychiatric Hospitals’ Growth Lags to Second-Slowest Pace Since 1985, MODERN HEALTHCARE, May 21, 1990, at 57. A notable decrease in the number of beds operated by non-profit secular and religious organizations has accompanied this private sector growth. Id.

33 Weithorn, supra note 11, at 816.

34 Id.

35 For example, during much of the company's two-decade history, Community Psychiatric Centers earned a three to four dollar profit on every $10 in revenue and saw annual profit growth rates of 15-20%. Susan Moffat, Community Psychiatric Suffers an Ailing Image, L.A. TIMES, Feb. 3, 1992, at D4. Profits are due in part to huge markups on drugs and supplies. See Peter Kerr, Mental Hospital Chains Accused of Much Cheating on Insurance, N.Y. TIMES, Nov. 24, 1991, at A1.

36 Susan Moffat, Healing Patients, or Profits?, L.A. TIMES, Feb. 2, 1992, at A24 (quoting Dr. James Q. Simmons, Director of the Mental Retardation and Child Psychiatry Division, UCLA Neuropsychiatric Institute).

37 These states are: Arkansas; California; Colorado; Connecticut; Florida; Georgia; Hawaii; Illinois; Kansas; Kentucky; Louisiana; Maine; Maryland; Massachusetts; Minnesota; Missouri; Montana; New Hampshire; New York; North Dakota; Ohio; Oklahoma; Oregon; Tennessee; Ver mont; Virginia; Washington; West Virginia; Wisconsin. HEALTH BENEFITS LETTER (Scandlen Publishing, Arlington, VA), Aug. 29, 1991, at 2-3. State-mandated insurance benefits are constitutional. Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724 (1985).

38 These states are: Arkansas; Connecticut; Georgia; Illinois; Maryland; Massachusetts; Tennessee; Virginia and Wisconsin. NAPPH, 1988 COMPILATION OF STATE LAWS AFFECTING PSYCHIATRIC HOSPITALS.

39 Weithorn, supra note 11, at 815.

40 Id.

41 Id. at 814.

42 “I diagnose a lot of kids. I don't believe in diagnostic categories and that sort of thing, but in order to get payment you have to go through that sort of thing.” In re Senate Bill 197: Hearings Before the House of Representatives Comm. on Aging & Youth, Commonwealth of Pennsylvania, Apr. 15, 1992 (statement of Dr. Gene Cary, Pennsylvania Psychiatric Society).

43 A 1981 University of Southern California study of four hospitals in Los Angeles County—conducted before the explosion of admission rates in the past decade—found that 70% of the 1200 adolescents studied had been admitted for some form of minor personality disorder or depression. Shawn Hubler, Right v. Rights: What Happens When Parents Commit Kids?, L.A. HERALD EXAMINER, Aug. 8, 1988, at A6. Fewer than 20% were being treated for schizophrenia, psychosis, or some other form of acute mental illness. Id.

44 Peter Kerr, Chain of Mental Hospitals Faces Inquiry in 4 States, N.Y. TIMES, Oct. 22, 1991, at D4 (quoting Dr. Paul Fink, former President, American Psychiatric Association).

45 Id. (quoting Dr. Robert Stuckey, former Medical Director, Alcohol Unit, Psychiatric Institutes of America's Fair Oaks Hospital).

On average, adolescents whose parents have private insurance plans stay 39 days longer than children of parents without private insurance. Weithorn, supra note 11, at 814. A Mental Health Needs Council of Houston study found that of the 2,333 youths aged 13 to 18 admitted to public and private psychiatric hospitals in the Houston area during 1987, those placed in for-profit facilities had an average stay of over 50 days. Dianna Hunt, The Big Business of Troubled Teens, HOUSTON CHRONICLE, May 14, 1989, at A1. Those in non-profit institutions stayed, on average, between 20 and 30 days. Id.

46 Deborah S. Pinkney, Youth Psychiatric Hospitalization Is Up Dramatically, AM. MED. NEWS, Mar. 10, 1989, at 50 (quoting Dr. Helen Beiser, Claims Reviewer, Blue Cross of Illinois).

47 Id. (quoting Dr. Irving Phillips, Professor of Psychiatry, University of California at San Francisco School of Medicine). As one author has observed, “when the psychiatrist also acts at the request of his employing institution, he may serve institutional goals at variance with the interests of his patient.” Jerome J. Shestack, Psychiatry and the Dilemmas of Dual Loyalties, in MEDICAL, MORAL, AND LEGAL ISSUES IN MENTAL HEALTH CARE 7, 12 (Frank J. Ayd ed., 1974).

48 NAPPH, GUIDELINES FOR ADVERTISING 1, (information sheet, 1989) (hereinafter ADVERTISING GUIDELINES).

Advertising and marketing pose interesting issues relating to conflict of interest. The NAPPH recommends that “[n]o incentives or bonuses for referral or admissions shall be awarded to professionals directly responsible for determining the appropriateness of admission. Fraud, kickbacks, or bribes intended to induce patient referrals are prohibited.” NAPPH, STATEMENT OF PRINCIPLES OF PSYCHIATRIC HOSPITAL PRACTICE ETHICS (approved by the NAPPH Board of Trustees on June 22, 1989) (emphasis added). Charter Redlands Hospital used to offer employees a Caribbean vacation in exchange for referrals leading to admissions. MacNeil/Lehrer Newshour: Troubled Teens (PBS television broadcast, May 23, 1990).

The NAPPH does not define “directly responsible.” Because a patient's admission process may involve observation by, and consultation with, more than one physician and/or psychologist, direct responsibility is hard to ascertain.

49 See ADVERTISING GUIDELINES, supra note 48.

50 “The depiction of psychiatric patients, the therapeutic environment, and patient-physician relationships, must be done with an emphasis on maintaining the dignity of and respect for the patient… . The hospital must be careful not to fuel unfortunate stereotypes.” Id. Nonetheless, “[i]t has been demonstrated that early intervention increases the likelihood of favorable outcome, reduces length of stay, and lessens trauma to patients and their families.” Id.

Hospitals have not always heeded the Association's appeal for good taste in advertising. A commercial for a Charter Hospitals facility in Sugar Land, Texas featured a teenager spray-painting “HELP” on a brick wall. Hunt, supra note 45. An advertisement for the Comprehensive Care Corporation featured a series of snapshots of a boy as he grows from infant to teenager. The series culminates in a group of police ‘mug shots’ of the youth, and a narrator's voice urges parents to seek help for their children “before it is too late … .” Gail Diane Cox, Juvenile Lockups Flourish in Private For-Profit Settings, L.A. DAILY J., Jan. 27, 1986, at 1.

A Charter Hospitals newspaper advertisement featured a checklist of purported signs and symptoms of mental illness in children. “Parents actually came to the hospital with th[e] advertisement cut out of the paper. They said, ‘[t]hank you for finally giving me something to look at.’ ” Hunt, supra, note 45, at A4. Nevertheless, NAPPH has cautioned against the use of checklists. ADVERTISING GUIDELINES, supra note 48, at 2 (“[C]areful review should be made of advertising which offers any scale for normal-abnormal behavior, or any form of self-assessment, especially when it is offered in direct connection with promoting a hospital's services. Any such checklist must be clinically sound.”).

One for-profit company that operates psychiatric hospitals refuses to advertise on television. “We still don't believe in advertising to the ill: ‘Come, have your breakdown with us.’ ” Leslie Berkman, Hospital Firm Shows It's Not Afraid of Risks, L.A. TIMES, Mar. 31, 1991, at D1 (quoting James Conte, Chairman, Community Psychiatric Centers).

51 Michael Lev, Community Psychiatric Centers Is Ready to Take on Debt, N.Y. TIMES, Mar. 31, 1991, section 3, at 8.

52 “There is no great reason to believe that adolescents have more serious problems than they once did… . There were an awful lot of empty beds out there before they started pushing for teenagers.” Jamie Talan, The Hospitalization of America's Troubled Teenagers, N.Y. NEWSDAY, Jan. 5, 1988, Part II, at 4 (quoting Brian Wilcox, Director of Public Interest Legislation, American Psychological Association).

53 Gary B. Melton, Children's Competence to Consent: A Problem in Law and Social Science, in CHILDREN's COMPETENCE TO CONSENT 1 (Gary B. Melton et al. eds., 1983).

54 Id.

55 Id. (quoting Meyer v. Nebraska, 262 U.S. 390, 400 (1923)). See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925).

56 E.g., In re Gault, 387 U.S. 1, 13 (1967).

57 See Planned Parenthood of Central Missouri v. Danforth, 482 U.S. 52, 75 (1976) (striking down a state statute that gave parents a complete veto over minor's abortion decision); Tinker v. Des Moines Independent School District, 393 U.S. 503, 511 (1969) (holding that the state must honor the “fundamental rights of minor students”).

58 See Kidd v. Schmidt, 399 F. Supp. 301, 304 (E.D. Wise. 1975) (finding no more than a “minor burden” to state in providing pre-commitment hearing); Saville v. Treadway, 404 F. Supp. 430, 432 (M.D. Tenn. 1974) (holding confinement of mentally retarded minors must be in accord with due process); Pyle v. Brooks, 570P.2d 990, 992 (Ore. 1977) (affording minors due process rights before nonconsensual commitment); see also In re Long, 214 S.E.2d 626, 628-29 (N.C. Ct. App. 1975).

59 442 U.S. 584 (1979).

60 Id. at 600, 602, 604.

61 Id. at 600.

62 Id. at 602-04.

63 Id. at 602.

64 Id.

65 Id.

66 id. at 603.

67 Id. at 604.

68 Id.

69 Id. at 605.

70 Id. at 607.

71 Id. at 605, 610.

72 Id. at 611-12.

73 Id. at 610.

74 Weithorn, supra note 11, at 813. See also Gary B. Melton, Family and Mental Hospitals as Myths: Civil Commitment of Minors, in CHILDREN, MENTAL HEALTH, AND THE LAW 151, 153 (N. Dickon Reppucci et al. eds., 1984).

75 572 So. 2d 1225 (Ala. 1990).

76 Id. at 1228.

77 Id.

78 442 U.S. at 610 n.18.

79 569 P.2d 1286 (Cal. 1977).

80 CAL. WELF. & INST. CODE § 6000(b) (West 1967) (limiting the state's intervention power to cases dealing with wards of the court or emancipated minors).

81 569 P.2d at 1291.

82 Id.

83 “An erroneous conclusion by a parent that his child is mentally ill or in need of treatment in a closed mental hospital facility might well ‘jeopardize the health or safety of the child, or have a potential for significant social burdens’… .” Id. (quoting Wisconsin v. Voder, 406 U.S. 205, 234 (1972)).

84 “The therapeutic importance of granting due process to juveniles in commitment proceedings cannot be overlooked. Studies ‘suggest that the appearance as well as the actuality of fairness, impartiality and orderliness—in short, the essentials of due process—may be a more impressive and more therapeutic attitude so far as the juvenile is concerned.’ ” Id. (quoting In re Gault, 387 U.S. at 26).

85 569 P.2d at 1292.

86 Id. at 1296.

87 Id.

88 Id. at 1296 n.9.

89 Id. at 1289 n.3.

90 64 Cal. Op. Att'y Gen. 712, 714-15 (Sept. 18, 1981). Although commitment to a public facility implicates the Due Process Clause of the Fourteenth Amendment of the United States Constitution as well as the Due Process Clause of the California Constitution (Art. I § 7), and although the state licenses private psychiatric facilities, such regulation “was not so pervasive that it may be said that the actions of those operating a private mental facility should be considered acts of the state.” Id. at 721.2. The Attorney General noted that “[t]here is no monopoly in the case of private mental facilities, nor is there such regulation of rates and services as our law provides in the case of public utilities.” Id. (citing Gay Law Students v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458 (1979)).

91 A.B. 3648, Reg. Sess., 1977-78 Cal. Leg. (1978) (granting minors over 14 the right to visit the facility, consult counsel, and cross-examine witnesses before the proposed admission).

92 “The basic philosophical differences between the medical and legal perspectives were never resolved, so that the Roger S. bill finally represented an uneasy compromise with which no one felt entirely comfortable and which few could wholeheartedly support.” Dillon, Carol K. et al., In re Roger S.: The Impact of a Child's Due Process Victory on the California Mental Health System, 70 CAL. L. REV. 375, 433 (1982).CrossRefGoogle Scholar

93 Id. at 445. See Lachs, Stephen M., Placing Minors in California Mental Hospitals, 4 WHITTIER L. REV. 57 (1982)Google Scholar (surveying California Superior Courts’ attempts to implement Roger S.).

94 S.B. 1016 (Mar. 27, 1981) at §§ 6010-23 (as amended July 1, 1981). The original version of the bill applied only to publicly funded institutions. The bill's sponsor held stock in companies that operated private psychiatric facilities. Dillon, supra note 92, at 458.

95 Id.

96 Id. at 459.

97 S.B. 595 (Feb. 22, 1989), at § 6002.10(a).

98 S.B. 595 (as amended Aug. 21, 1989), at § 6002.30(e).

99 S.B. 595 (as amended June 29, 1989), at §§ 6002.25(c), 6002.40(a).

100 A.B. 2424 (as amended in Senate Aug. 22, 1989) at § 6002.35(a).

101 “No offense to lawyers, but in the medical community, the feeling is this is not a place for a controversial hearing. Cross-examinations and attorneys—it doesn't seem or sound like that would be in the best interest of the child.” Hallye Jordan, Law May Protect Teens Forced Into Private Treatment, S.F. DAILY J., Oct. 20, 1989, at 1, 10 (quoting Ron G. Kester, a lobbyist for National Medical Enterprises).

102 Compare S.B. 595 at § 6002.25. (as amended in Senate May 1, 1989) (requiring the reviewer have “training and experience in treating adolescent psychiatric patients.”) with S.B. 595 at § 6002.25(d) (as amended Feb. 22, 1989) (mandating that the reviewer have at least five years of experience in treating child and adolescent patients).

103 S.B. 595, 1989 Cal. Leg., Reg. Sess., at § 6002.35 (1989) (enacted).

104 Id. at § 6002.25.

105 Id.

106 See, e.g., Letter from Barbara Demming Lurie, Vice President, California Association of Mental Health Patients’ Rights Advocates, to Assemblyman Richard Polanco 1 (July 17, 1989) (“[allowing the facility to select the reviewer profoundly compromises [the reviewer's] independence”) (on file with author).

107 S.B. 595, 1989 Cal. Leg. Reg. Sess., at § 6002.40(a) (1989) (enacted).

108 Letter from Chris Flammer, Legislative Assistant to Assemblyman Richard Polanco, to author 2 (Sept. 25, 1990) (on file with author).

109 See Letter from Stephen R. Magruder, San Diego Deputy Counsel, to Areta Crowell, Deputy Director of Mental Health Services 2 (Dec. 15, 1989) (on file with author) (“[the legislation] offers no guidance whatsoever with respect to how private insurers of health plans are to be billed or pay the costs associated with the SB 595 legislation”).

110 Letter from James Lott, President, Hospital Council of San Diego and Imperial Counties, to Areta Crowell, Local Mental Health Director, San Diego County 1 (Jan. 4, 1990) (on file with author).

111 Letter from Emilia Cutrer, Deputy Legislative Counsel, to Sen. Robert Presley 3-4 (May 10, 1990) (on file with author).

112 Letter from Jean Matulis, Staff Attorney, Protection & Advocacy, Inc., to Chris Flammer, Legislative Assistant to Assemblyman Richard Polanco 2 (June 18, 1990) (on file with author).

113 Draft Summary, S.B. 595 Survey Results, Protection & Advocacy, Inc. (1990) (on file with author).

114 Matulis, supra note 112, at 2-3.

115 See CAL. WELF. & INST. CODE § 6002.35(d) (West 1991) (releasing all licensed health professionals, including psychiatrists, who treat the minor during his stay at the facility, and the facility itself, from civil and criminal liability for the conduct of the released minor or his custodians).

116 Letter from Nancy Peverini, Associate Legislative Counsel, California Trial Lawyers Association, to Assemblyman Richard Polanco 1 (Feb. 28, 1990) (on file with author).

117 Los ANGELES COUNTY DEPARTMENT OF MENTAL HEALTH, CHILDREN AND YOUTH SERVICES BUREAU, SB 595 SURVEY FOR JANUARY AND FEBRUARY OF 1990 (1990). The majority of those surveyed said the reviews did not provide minors with sufficient safeguards. Id. One participant noted, “[i]t's difficult for an adolescent to have a fair hearing when the reviewer may be reimbursed by the facility.” Id. at attachment B.

118 Letter from Mike Mochizuki, Los Angeles County Department of Mental Health, Children and Youth Services Bureau, to John Hatakeyama 1 (July 16, 1990) (on file with author).

119 Letter from Barbara Demming Lurie, Director, Patients’ Rights and Advocacy Services Program, Los Angeles County Department of Mental Health, to Assemblyman Richard Polanco 1 (July 16, 1990) (on file with author).

Lurie said that the low response rate may be due to the facilities’ failure to inform minors of their rights to have these reviews. Id. Lurie also noted that two advocates in her office had quit because

no matter how good the case, no matter how much evidence there is that the minor does not qualify for treatment, the minor will be held in just about every instance. This is particularly true if the physician happens to be a personal friend of the treating psychiatrist—or if one views the other as a potential source of referrals.

Id. at 2.

Lurie also documented confusion as to the proper form for reviews as well as the hostility between facilities and reviewers. Id.

120 Letter from Richard Danford, Director, Patient Advocacy Program, University of San Diego, to Assemblyman Richard Polanco 5 (July 26, 1990) (“SB 595 has served only to heighten our frustrations and to verify our suspicions“). Of the 113 reviews conducted in the first seven months of 1990, only two resulted in the discharge of the minor. Id. at 2.

Funding for the participation in the San Diego County program ran out in February 1990; advocates were not able to attend reviews, but instead monitored them via telephone. Id. Reviewers made decisions prior to examining patients and did not explore less restrictive treatment alternatives; instead, they justified their admission decisions by characterizing the patient as “in denial about having a problem.” Id. at 3-4.

121 1991 S.D. LAWS 27A-15 § 296.

122 Telephone Interview with Scott Heidepriem, Chairman, South Dakota Senate Judiciary Committee (July 12, 1991) (“Young people were sent there and stayed, as a matter of coincidence, as long as their insurance held out.”).

123 1991 S.D. LAWS 27A-15 § 296.

124 Id.

125 Id. at § 305.

126 Id. at §309.

127 Id.

128 Telephone Interview with Rep. Linda Lea Viken, Interim Oversight Mental Health Committee (Mar. 9, 1992) (“A lot of people felt the whole adversarial review process would make situations worse … . There was pressure to prevent kids from objecting [to hospitalization] at every turn.”).

129 BCBSM has reimbursement arrangements with all of the general hospitals in Minnesota, with 55% of the freestanding psychiatric facilities that treat children and adolescents, and with 46% of the freestanding residential primary treatment centers. Letter from Mark Heymans, Director of Corporate Communications, Blue Cross and Blue Shield of Minnesota, to author 2 (Feb. 22, 1991) (on file with author).

130 See Judy Packer, Psych Length of Stay Keeps Falling, MODERN HEALTHCARE, June 3, 1991, at 17. Blue Cross and Blue Shield programs paid for 22.2% of inpatient mental health care costs in 1990. Id. Commercial insurers paid for 37.5% of all psychiatric care between 1988 and 1990. Id.

131 John Kass, Enough Is Enough, Youth Psychiatry Critics Say, Cm. TRIB., May 31, 1989, at 1. As one mental health activist noted:

We thought we needed [psychiatric benefits for adolescents] at the time… . The hospitals, of course, took advantage of it. Kids are being pushed into hospitals when they don't need it. Kids who need help don't get it. And because there's only so much money to go around, local community-based mental health across the country is ignored. It's become a nightmare.

Id.

132 Weithorn, supra note 11, at 784 n.69. Between 1976 and 1983, the rate of admission grew from 91 per 100,000 youths to 184 per 100,000. Schwartz, supra note 4, at 375.

133 In 1978, BCBSM spent $2,008,318; in 1984, it spent $4,056,998. Id. at 375-76.

134 Letter from Mark Heymans, Director of Corporate Communications, BCBSM, to author 1 (Feb. 22, 1991) (on file with author).

135 Id.

136 BCBSM, CRITERIA FOR INPATIENT PSYCHIATRIC TREATMENT § A.1 (1981) (hereinafter CRITERIA FOR INPATIENT PSYCHIATRIC TREATMENT).

137 Heymans, supra note 134, at 2.

138 CRITERIA FOR INPATIENT PSYCHIATRIC TREATMENT, supra note 136, at § A.7(2).

139 Id. at § A.7(4).

140 Id. at §§B(1)-(8).

141 Id. at §§B(1)-(5).

142 Id. at § C4.

143 Heymans, supra note 134, at 1.

144 Id.

145 Id. at 2.

146 Id.

147 Id.

148 Id.

149 Id. at 1.

150 Kass, supra note 131, at 14,

151 Id. In 1988, Blue Cross of Illinois opened an outpatient treatment center in Rockford and allowed subscribers unlimited visits. Id.

152 These states were Alabama, Alaska, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wisconsin. NAPPH, COMPILATION OF STATE LAWS AFFECTING PSYCHIATRIC HOSPITALS (unpaginated pamphlet 1988) [hereinafter COMPILATION OF STATE LAWS]. For a general discussion of Certificate of Need programs, see GEORGE J. ANNAS ET AL., AMERICAN HEALTH LAW 276-79 (1990).

153 For example, in Delaware, the threshold for a CON review is $150,000 for capital expenditures, and $750,000 for equipment, whereas Oklahoma only requires a CON review if the proposed capital expenditure exceeds $3,000,000. COMPILATION OF STATE LAWS, supra note 152.

154 See Simpson, James B., State Certificate of Need Programs: The Current Status 75 AM. J. PUB. HEALTH 1225 (1985)CrossRefGoogle ScholarPubMed. In the 1980s, Mississippi and Missouri used CON moratoria to stem the conversion of acute-care beds to psychiatric beds. Id. at 1226. In 1984 and 1985, 11 states had some form of CON moratorium in place. Id.

155 Sandy Lutz, Troubled Times for Psych Hospitals, MODERN HEALTHCARE, Dec. 16, 1991, at 30 (quoting David Olson, spokesman for National Medical Enterprises).

156 Schwartz, Ira M., Hospitalization for Adolescents for Psychiatric and Substance Abuse Treatment, 10 J. ADOLESCENT HEALTH CARE 3, 3 (1989).CrossRefGoogle Scholar

157 For example, Charter Medical Corp. hired lobbyists to fight for the Ohio projects. In the mid-1980s, Charter had seven development personnel lobbying for its proposed hospital projects. The company paid the development personnel $5,000-$15,000 bonuses for every CON obtained and $5,000 for completing a project in a non-CON state. Lutz, supra note 155 (quoting Gary Carnes, former Director of Health Care Facilities Development, Charter Medical Corp.).

158 Laurent Belsie, Ohio Officials Wrangle Over Mental Health Care for Children, CHRISTIAN SCI. MONITOR, Oct. 29. 1987, at 5. The ODMH allowed the construction of eight new facilities offering child and adolescent psychiatric care. Schwartz, supra note 156, at 4.

159 Carolyn Hirschman, For-Profit Hospitals Make Grand Entrance, BUSINESS FIRST-COLUMBUS, Dec. 30, 1991, at 23.

160 1990 WL 5824 (Ohio App. Dec. 27, 1990).

161 Id. at * 1.

162 Id. at *6.

163 OHIO REV. CODE ANN. ch. 3702 (Anderson 1992).

164 Id.

165 1989 OHIO APP. LEXIS 3672, at *12 (Sept. 21, 1989).

166 469 So. 2d 613 (Ala. Civ. App. 1985).

167 Id. at 615.

168 Id. at 614.

169 Id.

170 495 So. 2d 759 (Fla. 1986).

171 Id. at 763.

172 Id. at 761. In a highly speculative dissent, the Chief Judge agreed with the hearing officer's finding that the denial of the CON would be particularly harmful to hospitalized adolescents and family members who visit them. He noted that the treatment of adolescents:

requires the involvement of the whole family. Repeated lengthy drives on an every-twoday basis … is disruptive to the course of treatment. The inconvenience of the long trip quite often lessens an already minimal desire for involvement on the part of the family and without family involvement, the potential for recurrence of the illness is higher.

Id. at 764-65 (Booth, C.J., dissenting).

173 The mental health professional charged with conducting the pre-admission hearing could not be “an employee of the facility to which admission of the minor is sought or to which the minor has been admitted,” and was not to “receive monetary benefit by the minor's admission to or continued stay in an inpatient psychiatric facility.” S. 0016, 1991 S.D. LEG. § 291(2) (enacted).

174 Outcome data are compiled from case records and treatment histories to discern patterns in patient care. Psychiatric outcome data generally concern initial diagnoses, length of hospital stay, and discharge diagnosis.

The “standardizing of diagnosis and treatment” has been called one of the “most important” developments in mental health care during this century. Robert S. Capers, In Mental Health Care, Measured Progress, HARTFORD COURANT, Nov. 7, 1991, at E1 (quoting Dr. Layton McCurdy, Chairman, American Psychiatric Association's Committee on Psychiatric Diagnosis and Assessment).

175 Judith Nemes, Charter Gears Up for Outcome Data, MODERN HEALTHCARE, NOV. 18, 1991, at 19.

176 The NAPPH began working on its “Critical Indicator Project” in 1986. By 1993, NAPPH plans to have a database in place and will ask member hospitals to “justify variances” based on surveys of outcome data. Lutz, supra note 155, at 33.

177 First Amendment protection of commercial speech will be invoked where “the regulation directly advances the governmental interest asserted” and is “not more extensive than is necessary to serve that interest,” the speech concerns “lawful activity” and is not “misleading,” and the “asserted governmental interest is substantial.” Central Hudson Gas & Electric Corp. v. Public Service Commission of New York., 447 U.S. 557, 566 (1980). See generally Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340-47 (1986); Board of Trustees of the State University of New York v. Fox, 492 U.S. 469 (1989).

178 Psychiatric Institutes of America is under investigation in New Jersey, Texas, Florida and Alabama for insurance fraud, and in Texas for the use of “bounty hunters” to find and “kidnap” potential patients. Kerr, supra note 44, at D4. The Texas Attorney General is investigating Community Psychiatric Centers hospitals for allegedly paying illegal kickbacks for patient referrals. Moffat, supra note 35, at D1. In September 1991, Community Psychiatric Centers’ per share profits fell 98% and the company had “millions in bad debts.” Id. at D4.

The House Select Committee on Children, Youth and Families held hearings on abuse in the private psychiatric industry in April 1992. Peter Kerr, U.S. Study of Mental Care Finds Widespread Abuses, N.Y. TIMES, Apr. 29, 1992, at D1. The General Accounting Office disclosed Department of Defense findings that mental health costs of the insurance program for military dependents, the Civilian Health and Medical Program of the Uniformed Services (Champus), increased 126% between 1986 and 1989. Id. at D22. Assistant Secretary of Defense, Rear Admiral Edward Martin, characterized this increase in cost, without a commensurate increase in quality, as “symptomatic of a mental health industry in which major incentives are financial.” Id. at D1.