An Open Letter to Senator Elizabeth Warren Regarding Laboratory Developed Tests, Physician Health Programs and Institutional Injustice

An Open Letter to Senator Elizabeth Warren Regarding Laboratory Developed Tests, Physician Health Programs and Institutional Injustice.

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I can think of nothing more institutionally unjust than an unregulated zero-tolerance monitoring program with no oversight using unregulated drug and alcohol testing of unknown validity.   But that is what is occurring.   Some of us are trying to expose this corrupt system but barriers exist. As with the Laboratory Developed Tests (LDTs), those involved have intentionally taken steps to remove both answerability and accountability.  Both the tests and the body of individuals administering these tests are notable for their lack of transparency, oversight and regulation.  This renders them a power unto themselves.

Doctors (and others coerced into Professional Health Programs) across the country have reported going to law enforcement and state agencies only to be turned away.   The Federation of State Physician Health Programs (FSPHP)  has convinced these outside agencies that this is a “parochial” issue best handled by the medical profession..   Those reporting crimes are turned back over to the very people committing the crimes.


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Junk-Science in the Medical Profession: The Resurgence of Polygraph “Lie-Detection” in an age of Evidence-Based Medicine

Junk-Science in the Medical Profession: The Resurgence of Polygraph “Lie-Detection” in an age of Evidence-Based Medicine.

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Circa 1995

The article below was published in the now defunct magazine Gray Areas almost twenty years ago. (Vol. 4, No. 1, Spring 1995 pp. 75-77).   Antipolygraph.og founder George Maschke noted in 2008 that article “makes a good introduction to the pseudoscience of polygraphy” and “the criticisms of polygraphy remain valid today.”  They still do.

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The Art of Deception: Polygraph Lie Detection

By Michael Lawrence Langan, M.D.

I’d swear to it on my very soul, If I lie, may I fall down cold.”

– Rubin and Cherise
(Hunter/Garcia)

The accuracy of polygraphic lie detection is slightly above chance. Nevertheless, State and local police departments and law enforcement agencies across the United States are devoted proponents of this unscientific and specious device. In addition, the American public seems to lend an implicit credence to the “lie detector” as evinced by its ubiquitous use on television crime shows and in “whodunit” literature. It is given overt attributions of credibility on tabloid type talk shows and news shows. For example, in the highly publicized case of Tonya Harding a reporter stated, not with removed objectivity but with sardonic grin and mocking emphasis, that the accused had failed two polygraph tests. The implied assumption is that if the person has failed the polygraph test, then therefore he or she is guilty regardless of other evidence. Bottom line. Culpa ex machina. End of story.

Lie detection by the polygraph is based on the premise that the act of telling a lie causes specific, universal, and reproducible physiological responses as manifested by the autonomic nervous system. (Saxe, 1991) These physiological responses, which are largely outside the influence of voluntary control, are then measured by the polygraph instrument. The polygraph itself is simplistic in design. It consists of several devices which are attached to the subject to record blood pressure, pulse, respiration, and galvanic skin response (which is related to perspiration). The results are then recorded on a moving paper by a “kymograph.” Hence any change of one of the autonomic nervous system variables will be recorded on the paper as a change from baseline. The polygraph examiner then interprets the tracing. A characteristic change from baseline on a relevant question is interpreted as a lie.

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In fact, the polygraph test does measure autonomic nervous system activity. The role of the autonomic nervous system with its sympathetic and parasympathetic branches is well defined within the field of medicine, and was well described by the French physician Claude Bernard over a century ago. The primary role of the autonomic nervous system is to maintain bodily homeostasis to allow the individual to exist in a changing environment.

Simplistically described, the autonomic nervous system is a part of the peripheral nervous system which consists of a variety of outgoing nerve pathways that regulate important physiological functions generally outside of voluntary and conscious control. Thus, respiration, body temperature, heart rate, digestion, sweating, and blood pressure are all, partly or entirely, regulated by the autonomic nervous system. It is divided into sympathetic and parasympathetic branches which have contrasting functions in terms of effect. The sympathetic branch increases heart rate, respiratory rate, blood pressure, and perspiration. It is active at all times but varies with the constantly changing environment, and is especially active during rage or fright and prepares the body for the so called “fight or flight” phenomenon. Many of these reactions are caused by the release of epinephrine. The parasympathetic nervous system, on the other hand, is primarily involved with conservation and restoration. It is the sympathetic branch of the autonomic nervous system that the polygraph measures in terms of its activity. Thus, from a medical perspective it is entirely valid that the polygraph will accurately measure sympathetic nervous system activity with its instrumentation.

The false assumption of the polygraph test is that dishonesty is the sole cause of sympathetic arousal during a polygraph examination. Deception is a cognitive phenomenon that cannot be measured. Indeed, throughout the entire history of medicine there has not been a single scientific study that demonstrated evidence that a cognitive phenomenon (such as love, hatred, truth, altruism, jealousy) could be measured. Since, in the complex realm of truth and deception, there is no known physiological response that correlates with lying, then there is no validity to the test. Although the act of lying can elicit fear and anxiety via the sympathetic nervous system, so can multiple other confounding and complex emotional factors including stress, embarrassment, anger, and fear. “Deception itself cannot be measured directly.” (Steinbrook, 1992) In addition, each individual differs in autonomic lability. Some people stay calm with a gun at their head. While others get autonomically excited, with heart thumping and palms sweating at simply shaking someone’s hand.

In reality, the examination itself is inherently designed to elicit fear and anxiety. It is an interrogation. If this fear and anxiety are recorded on a relevant question, then you have failed that question according to the polygraph “experts.”

The polygraph technique begins with a pre-test. After a sixth-grade level lecture on the nervous system and a proclamation of the test’s infallibility, the examiner will go over all of the questions that have been formulated.

These questions consist of control questions, relevant questions, and irrelevant questions. The subject will then be attached to the polygraph equipment and the formal testing begins.

The most crucial questions on the polygraph examination, or “Control Question Test,” are the control questions and relevant questions. The control questions are garnered from the suspect by asking him an innocuous question which could not be truthfully denied. For example, “Have you ever thought of hurting someone?” or “Have you ever lied to anyone?” The responses to the control questions will elicit some degree of autonomic activity which can then serve as a baseline for which to compare subsequent questions. The relevant questions pertain to the actual investigation at hand. The magnitude of responses to relevant questions and control questions as compared with the irrelevant questions is then interpreted, in a non-blinded manner, by the examiner. The assumption is, that if you are prevaricating, the relevant questions will cause a greater response than the control questions. So if the question “Have you ever been late for an appointment?” (control question) elicits less of an emotive response on the polygraph equipment than “Did you murder and rape your girlfriend?” (relevant question) you have failed the test. And, according to the American Polygraph Association (APA) you are lying. Assuming the subject is innocent, it is fairly obvious that he would respond with more emotional autonomic activity to a question regarding a recently deceased loved one than he would an inquiry about punctuality. Obvious to everyone, that is, but the APA.

The APA is a professional organization for polygraph examiners who have complete faith in the accuracy of the test. They have their own trade journalPolygraph in which they report scientifically worthless studies and brandish anecdotes of the wonders of their trade. The majority of these members can pride themselves on completing a 6 week to 6 month post- high school training course in the art of polygraphy. They have no formal training in medicine, psychology, physiology, or behavior; the very disciplines on which the testing is based. The majority of them cater to the legal system wherein their economic livelihood depends.

Since they are primarily paid to identify guilty suspects, motivational factors may play a part in their eagerness to find the guilty suspect. (Kleinmuntz, 1987)

The accuracy of any test is determined by that test’s sensitivity (ability to find a positive) and specificity (ability to find a negative). A polygraph examiner will ardently tell you that the exam has somewhere in the neighborhood of a 95% sensitivity rate. This means that if 100 guilty suspects are given a polygraph exam, 95 of them will be detected through the test. Only five of the 100 will be a false negative and not be detected by this miraculous method. Likewise they will claim a similar specificity rate, and state that if you are telling the truth then you have almost a 100% chance of being cleared by the test. John Reid, the inventor of the Control Question Test claimed 99% accuracy. (Reid and Inbau, 1977)

This is clearly not accurate. The polygraph was not subjected to much critical and scientific investigation until the last two decades. (Saxe, et al., 1983) Since this time there have been a number of studies of sound scientific design and methodology which clearly refute the high specificity and sensitivity that polygraph advocates claim. These studies have appeared in reputable peer-reviewed journals and not trade publications. Horvath, for example, reported a sensitivity of 76 percent and a specificity of 52 percent. (Horvath, 1977) This means that out of 100 liars 76 of them will be detected by the polygraph. What is astonishing though is the specificity of 52 percent. This means that out of 100 people who are not lying, 52 will be identified as telling the truth while 48 of the honest individuals will be branded as liars. The odds are similar to that of a coin toss which would have a specificity of 50 percent. Barland and Raskin’s study actually demonstrated a specificity of 45%. Worse than a coin toss. (Barland and Raskin, 1976) Multiple other studies have shown similar results. (Brett, et al., 1986, Kleinmuntz and Szucko, 1984, Lykken, 1984).

The polygraph examiner likens his “skill” to that of the radiologist reading a chest X-Ray or a cardiologist interpreting an EKG. (Barefoot, 1974) This analogy is not only ridiculous but, in fact, if a medical test had a similar sensitivity and specificity to that of the polygraph examination it would simply not be used in the field of medicine. They will cite the fact that the polygraph has been used in the United States for greater than 70 years as if longevity is directly related to validity. They will state that they have personally administered hundreds or thousands of these tests, and have almost never been wrong, as if total number of tests given constitutes accuracy.

They are so convinced of the accuracy of the polygraph that they regard opponents of polygraphy as communists and do-nothing professors. (Arther, 1986) It doesn’t occur to them that someone with a Ph.D. and years of research experience, in the very subjects they ignorantly dabble in, may know something more than they do.

It is astounding that the criminal justice system has institutionalized and perpetuated a so called “technology” that lacks scientific evidence and is in fact rejected by the scientific community. It is as ludicrous as procuring the so called “love meter” machine from the amusement park which measures galvanic skin response and placing it in the courtroom. But in a backward legal system which has been known to use psychics to help with unsolved murders and has allowed the mentally retarded to serve as jurors, it is not entirely surprising.

The tool is useful to them, however, in that 25 to 50 percent of examinees will, under the tense psychological pressure of the exam, confess to the misdeed at hand. (Lykken, 1981, Lykken, 1991) Persuaded that they have been proven dishonest by “scientific” means they give up hope. It is usual for the polygraph examiner to interrogate the subject who has failed the test. They will state that there is no way now to deny the objective guilt demonstrated by this impartial and unbiased scientific device, and that the only available option is to confess.

The assessment by the polygrapher is genuinely convincing because, sadly, he believes it himself. Thus the instrument is clearly useful as a confession inducing device. One wonders, over the past 70 years, how many false confessions have been obtained in this way from innocent persons.

In summary, the polygraph is a ludicrous implementation of pseudo-science at its worst. The members of the APA are non-scientists practicing science, and the consequences are often dire. Lykken reports the cases of three men who were convicted of murder largely due to the polygraph examiner’s testimony that in their “expert opinion” they had failed the test. All three were subsequently found to be innocent. (Lykken, 1991) Polygraph examiners ignore such cases or rationalize that they are due to the rare incompetence of some examiners.

The continued use of polygraphic lie detection has the potential to cause much harm to those who are judged dishonest by its results. The specificity and sensitivity are not dissimilar to that of a coin toss. Innocent suspects have about a 50/50 chance. One failure is all it takes to ruin your life. Since the 1923 Federal Court decision of Frye vs United States (293 F 1013 [DC Cir 1923]), polygraph evidence has not been admissible in federal court cases because there was deemed a lack of scientific validity to the test. This travesty however is still used widely by the state court system. Furedy characterizes the continued use of polygraphy as a serious “social disease.” (Furedy, 1987) State laws regarding abuse of the polygraph must change, and it is time for the medical and scientific communities to educate lawmakers and policy makers about the true validity of this perversion of science. It must be forever banished to the same realm of parapsychology as the Ouija Board, phrenology, and palmistry. The relatively conservative American Medical Association’s Council on Scientific Affairs recommended that the polygraph not be used in pre-employment screening and security clearance. (Council on Scientific Affairs, 1986) It is time to extend this recommendation across the board, and put the greater than 3000 anachronistic polygraph examiners in the United States out of business.

Meanwhile, if you are asked to take a polygraph test–don’t do it. Those involved in the criminal justice system, including lawyers, are largely uneducated in the realm of scientific scrutiny and experimental methodology.

They may not separate science and pseudo-science, and erroneously believe that the polygraph is an accurate scientific instrument. Their interactions are with polygraph examiners who proselytize its use, and they have little or no interaction with scientists, psychologists, and physicians who refute its use. Refuse to take the test and educate them. Cite the Frye doctrine, go to the medical library, copy the scientific articles which belie its validity, and present them to whomever requested you to take the test. State that the principles and assumptions underlying polygraphy are not supported by our understanding of psychology, neurology, and physiology. Then put the burden of proof on their heads. Tell them to present you with scientific evidence that corroborates the validity of the test. There is simply no rational basis for a machine to detect liars.

References

Arther RO. 1986. The polygraph’s enemies: An update. Journal of Polygraph Science. 20: 133-136.

Barefoot J. 1974. The Polygraph Story. Cluett Peabody and Co., New York.

Barland, G, Raskin D. 1976. Validity and reliability of polygraph examinations of criminal suspects (Report 76-1, Contract 75 NI-99-0001).

Brett AS, Phillips M, Beary JF. 1986. Predictive power of the polygraph: Can the “lie detector” really detect liars? The Lancet. 1: 544-547.

Council on Scientific Affairs. 1986. Polygraph. Journal of the American Medical Association. 256: 1172-1175.

Furedy JJ. 1987. Evaluating polygraphy from a psychophysiological perspective: a specific-effects analysis. Pavlovian Journal of Biological Sciences.22: 145-151.

Horvath F. 1977. The effect of selected variables on interpretation of polygraph records. Journal of Applied Psychology. 62: 127-136.

Kleinmuntz B. 1987. The predictive power of the polygraph: The lies lie detectors tell. Journal of the American Medical Association. 257: 189-190.

Kleinmuntz B, Szucko J. 1984. A field study of the fallibility of polygraphic lie detection. Nature. 308: 449-450.

Lykken D. 1984. Polygraph Interrogation. Nature. 307: 681-684.

Lykken DT. 1981. A tremor in the blood: Uses and abuses of the lie detector. McGraw-Hill, New York.

Lykken DT. 1991. Why (some) Americans believe in the lie detector while others believe in the guilty knowledge test. Integrative Physiological and Behavioral Science. 26: 214-222.

Reid JE, Inbau FE. 1977. Truth and deception: The polygraph (“lie detector”) technique. Williams & Wilkins, Baltimore.

Saxe L. 1991. Science and the CQT polygraph: A theoretical critique. Integrative Physiological and Behavioral Science. 26: 223-231.

Saxe L, Dougherty D, Crosse T. 1983. Scientific validity of polygraph testing: a research review and evaluation. Conference: OTA-TM. U.S. Congress Office of Technology Assessment.

Steinbrook R. 1992. The polygraph test – A flawed diagnostic method. The New England Journal of Medicine. 327: 122-123.

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Transcription and HTML by AntiPolygraph.org

Published in Gray Areas, Vol. 4, No. 1 (spring 1995), pp. 75-77. This article may also be downloaded as a 1 mb scanned PDF file.https://antipolygraph.org/articles/article-053.pdf


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Press Release | Forensic Science Misconduct: A Dark and Cautionary Tale | @csidds

Press Release | Forensic Science Misconduct: A Dark and Cautionary Tale | @csidds.

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Originally posted on FORENSICS in FOCUS @ CSIDDS | News and Trends:

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Don’t expect a “whodunnit” version of CSI victories in this Op-ed blog article about a darker side of the forensic sciences. It is from an author with ample forensic credentials and experience from both within and outside criminal courts of the US. The article has topics ranging from the continued use of outdated or grossly over hyped “CSI” methods, ethical and moral failures in some forensic groups, to the criminal courts inability to understand much of anything about what is “real ” versus self-serving personal opinion called “science.” A measure of proof confirming these systemic problems is the article’s presenting a glimpse into the multi-million dollar costs to taxpayers for damages won by those wrongfully convicted with the help of court-qualified forensic testimony. Some optimism about better scientific scrutiny is presented but the institutional inertia resisting legitimate change in some forensic organizations, government agencies, and criminal  justice institutions is still…

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Backfire Step 1: Expose the Injustice–Forensic Fraud being committed by PHPs in Collusion with Corrupt Labs


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I will be putting up a survey shortly and want to hear your stories.  One of the recurrent themes I keep hearing from those victimized by PHPs is falsified drug and alcohol tests.   Attached is an example of what they are capable of.

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Quote by Dr. Greg Skipper, MD, FASAM, FSPHP

Remember, this group has essentially removed themselves from accountability in drug and alcohol testing via the use of Laboratory Developed Tests (LDTs), a loophole which avoids FDA approval and oversight.   Whereas most drug testing is transparent and held accountable, the PHPs use testing that is opaque, unregulated and accountable to no one.  Accountability demands both the provision of information and justification for ones actions. PHPs block both.  While most drug-testing requires the immediate provision of information if the test is questioned (as it should be), PHPs have put forth the logical fallacy that doctors have some sort of inherent expertise in toxicology and pharmacology and can “figure out” how to circumvent the testing process if they were to get copies of their lab results.  They block this provision of information.  And even if this information is ultimately provided, as seen below,  no outside organizations exist to hold them to account.  They do not have to justify their actions to anyone.  No safeguards exist to assure integrity and honesty of the sample.   No safeguards exist to assure the integrity and honesty of those ordering the sample either.

The documents below show forensic fraud.  This is undeniable and indefensible. It does not take a toxicologist or Medical Review Officer to understand what “chain-of-custody” is and that “updating” one constitutes misconduct, fraud and (as seen here) criminal activity.   These documents were obtained 5 months after a falsified test was ordered by Linda Bresnahan, Director of Operations at Physician Health Services, Inc. (PHS, inc.) the Massachusetts PHP via fax no less.  The blood test was drawn on July 1, 2011.  On July 19th, 2011 Ms Bresnahan requests (through the PHP secretary Mary Howard) that an already positive test for the alcohol biomarker phosphatidylethanol be “updated” with  ID # 1310 and a “chain-of-custody. (which is an oxymoron-a “chain-of-custody” by definition cannot be “updated.”  Unveleivably the lab does it without hesitation or any apparent compunction.   The documents speak for themselves.  ID # 1310 just happens to be my ID number.  When I complained that no one ever accused me of ever having an alcohol problem she replied:

“You have an Irish last name-good luck finding anyone who will believe you!” 

For a more detailed analysis see here, here and here.  And where was the Medical Review Officer during all of this?  Good question and one he will not answer!  And no one else is holding him to account.   This needs to change.


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1. Supression of Dissent: Basic Information

2. The keys to backfire

• “Reveal: expose the injustice, challenge cover-up

• Redeem: validate the target, challenge devaluation

• Reframe: emphasize the injustice, counter reinterpretation

• Redirect: mobilize support, be wary of official channels• Resist: stand up to intimidation and bribery”

via Helpful resources for those abused and afraid — via www.bmartin.cc .

When Dentists Go Too Far: North Carolina Board of Dental Examiners v. Federal Trade Commission

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The recent strike down of anticompetitive regulation in N.C. dental case opens the door to antitrust litigation against other state Regulatory Agencies such as Medical Boards.

The Federation of State Physician Health Programs has set up a “hidden” system of coercion and control using various methods (policy and moral entrepreneurship, changes in state medical practice acts and administrative procedure, misuse of health law, etc.) to create a system that lacks oversight and regulation. As a power unto themselves they are accountable to no one.

Although originally funded by medical societies and staffed by volunteer doctors in order to help sick colleagues and protect the public, any system can be subverted for profit and power, and these programs have been taken over by groups representing the multi-billion dollar drug and alcohol testing, assessment and treatment industry and become reservoirs of bad medicine and fraud. All manner of abuse can be hidden under a veil of benevolence. Although most are afraid to speak publicly under fear of punishment and retaliation (“swift and certain” consequences, summary suspension) I have herd from many many doctors in multiple states. Their stories are all the same.

In addition to misconduct related to the non-FDA laboratory developed tests (they themselves introduced into the market using a loophole that bypasses FDA approval) there are reports of coercion into unneeded evaluation and treatment at a couple dozen or so “PHP-approved” facilities under threat of loss of licensure.

Reports to a state PHP can be done anonymously with confidentiality guaranteed to the reporter. Any report will result in a meeting with the state PHP and if they feel a licensee is in need of an assessment they require it be done at a “PHP-approved” assessment center.

As non-profit tax exempt corporations, PHPs do not provide clinical assessments. They can only recommend assessments.  State Regulatory Agencies (Medical Boards, Nursing Boards, etc.) have accepted the PHPs requirements of limiting assessments to those approved by the PHP.   In fact many states mandate assessments to solely  “PHP-approved” assessment centers under threat of summary suspension of a professional license.

An Audit of the North Carolina PHP by State Auditor Beth Woods, however,  found financial conflicts-of-interest in the use of these predominantly out-of-state assessment facilities to which the N.C. PHP was referring and the state Medical Board was requiring.  Woods requested the qualitative indicators and quantitative measures used to  “approve” these assessment centers from the N.C. PHP but they were unable to produce any documentation showing any quality indicators or objective criteria existed!  The best response they could come up with was “informal” methods and “reputation.” The full audit can be seen here.

Imagine if the FDA gave this reply if  asked to provide the criteria used to “approve” medications or medical devices in the “FDA-approval” process!

Making matters even worse, the Medical Director of the N.C. PHP, Dr. Warren Pendergast was serving as President of their national organization, the FSPHP at the time of the audit.

The simple fact is no criteria exist.

A recent class action lawsuit in Eastern Michigan found this same pattern of referral to out-of-state assessment and treatment centers ( Marworth, Talbott, Hazelden. Promises,etc.)

State referrals to “PHP-approved” facilities has become a matter of public policy. Both the American Society of Addiction Medicine and the Federation of State Medical Boards have issued public policy statements stating that only “PHP-approved” centers be utilized by Regulatory Agencies in the assessment and treatment of their licensees.  Moreover, these policies specifically exclude “non-PHP-approved facilities and often involve a limited time-frame.  No choice, no appeal and no bartering.  Do it. Do it now and if you don’t suffer the consequences.

These public policy statements can be seen in the 2011 ASAM “Public Policy Statement on Coordination between Treatment Providers, Professionals Health Programs and Regulatory Agencies” and the 2011 FSMB “updated Policy on Physician Impairment.”  Many state Regulatory Agencies have strictly adhered to these policy recommendations.

What this means is that  states are mandating evaluations at  “PHP-approved” facilities even though there is no documentable or plausible reason for doing so.  No measurable criteria exist as to how the list of “approved” facilities were “approved” yet they have “cornered the market,” removed choice and created an imposed monopoly under threat of loss of professional licensure.

In reality no official “PHP-approved” list exists.  Neither does any objective published criteria for approving them.  At the same time state Regulatory Agencies and Boards are forcing evaluations on licensed professionals at these couple-dozen or so facilities.  They are excluding patient autonomy and choice violating the fundamental freedoms of the individual and informed consent.

All semblance of due process has been removed.  If  a plausible reason existed (i.e. they met some minimum standard of credentialing, quality or patient outcome) for referring to a proscribed list of assessment centers it could be arguably justified.  Without such criteria, and in light of the economic and ideological conflicts of interest involved, it is patently unjustifiable.

Even more disturbing is, as Drs. John Knight and J. Wesley Boyd (who collectively have more than 20 years experience as Associate Directors at the Massachusetts PHP, PHS, Inc.) pointed out in their 2012 paper published in the Journal of the American Society of Addiction Medicine,  many of these facilities are willing to “tailor” the diagnosis and recommendations of an evaluation to fit the wishes of the PHP.    “Tailoring” an assessment and recommendations to anything other than what the true data show is healthcare fraud.  It is, in fact,  the political abuse of psychiatry.

PHPs started out as “Physicians Health Programs” but many are transitioning to “Professionals Health Programs”  to widen the net.  For example in Michigan  and Florida the state PHP covers all health care practitioners from Acupuncturists to Veterinarians. PHPs have also entered non -healthcare employee assistance programs (EAPs) such as the aviation industry and the grand plan is expansion to  non-healthcare professions. They are doing this by claiming remarkable success rates and brandishing themselves as the “gold-standard” of substance abuse treatment.   Interestingly, the same individuals claiming how successful PHP programs are are the same individuals profiting from the drug and alcohol testing they introduced.  Anyone with any sort of license is at risk.

So whether you cut hair, teach, take care of patients or even drive a car they could be coming after you next and they don’t have to convince you of the validity and reliability of their services–they only need to convince those who regulate your license and, as we have seen, they are very accomplished at persuasion in this department.

And that is why we need more state audits of PHPs and Medical Boards.  The starting point is simple. Request from the state PHP and Board  a  list of “PHP-approved” facilities and the criteria by which they were approved. What should be a simple reply will undoubtedly not be as they will not be able to provide either.

Article 8

Antitrust litigation hasn’t disappeared, but rather changed its focus. Instead of targeting the great railroad empires of the late 19th century, today’s antitrust efforts focus on more minute industries, like dentistry.

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An Open Letter to Senator Elizabeth Warren Regarding Laboratory Developed Tests, Physician Health Programs and Institutional Injustice

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—There is no place in science for consensus or opinion, only evidence.-Claude Bernard

Dear Senator Warren,

Thank you for your reply regarding laboratory developed tests (LDTs) and the need for regulatory oversight.   As you mention, LDTs are developed without FDA approval—a pathway in which is not even necessary to prove validity of a test (that it is actually testing what it claims to be testing for) to bring it to market. With no FDA oversight or regulation a commercial lab can claim any validity they want in marketing these tests. The regulation debate has focused on the reliability and validity of a number of clinical tests marketed with unverified claims of accuracy such as prenatal screening and Lyme disease and this lack of oversight is a direct threat to patient safety.

I am sure you would agree with me that the importance of tests diagnostic accuracy is directly proportional to that tests potential to cause patient harm if reported inaccurately.

Sensitivity and specificity are important components of any diagnostic test because there are consequences associated with both false-positive and false negative results.

A test falsely indicating the absence of a condition in someone who truly has it can delay or prevent needed treatment wile a test falsely indicating the presence of a condition in someone who does not truly have it can result in unnecessary testing and treatment.

Incorrect treatment and false labeling of patients can also occur. Therefore diagnostic accuracy is paramount if a test is being used as the basis for further tests and treatment. Any test being used as a basis for further tests or treatment needs to be accurate. It needs to be reliable and valid. Moreover, if the consequences of a test can result in significant patient harm (such as unneeded chemotherapy) it needs to be either 100% accurate or be combined with other tests to confirm the true diagnosis.

 “Forensic” vs. “Clinical” Laboratory Testing

“Forensic” testing differs from “clinical” testing because of the consequences and the process is tightly controlled because false-positive results are unacceptable as the consequences can be grave, far-reaching and even permanent.

Forensic testing demands special handling and safeguards to protect the donor such as validated tests, certified labs, strict chain-of-custody procedures and MRO (Medical Review Officer) review. These safeguards of quality control assure the validity and integrity of the specimen.   The LDT pathway was not designed for forensic tests.

Forensic Laboratory Developed Tests (LDTs)

 Paradoxically, laboratory developed tests with the potential to cause  life-changing and possibly irreparable harm have been absent from the regulatory debate; LDT drug and alcohol tests used for “forensic” monitoring purposes.

A panoply of tests using urine, blood, hair, fingernails breath and saliva have been developed and brought to market since 2003 when the first one was introduced by Gregory Skipper, then Medical Director of the Alabama Physicians Health Program, who “convinced the initial lab in the USA, NMS near Philadelphia to start performing EtG testing.” 1

Developed as an LDT, Skipper and NMS then claimed the alcohol biomarker (which was discovered in the 1950s) “appeared to be 100 percent specific” in detecting covert use of alcohol based on a study he coauthored that involved a mere 35 forensic psychiatric inpatients in Germany, all male. 2   With this “evidence-base” and a not yet published paper in the pipeline,3   Skipper then pitched the test to the Federation of State Medical Boards (FSMB) as an accurate and reliable tool detect covert alcohol use in health care professionals.

Policy Entrepreneurship

In  “Agendas, Alternatives, and Public Policies,”4 John W. Kingdon describes the problem, policy and political streams involved in public policy making.   When these three streams come together a specific problem becomes important on the agenda, policies matching the problem get attention, and then policy change becomes possible.

Kingdon also describes “policy entrepreneurs’ who use their knowledge of the process to further their own policy ends. They ‘lie in wait… with their solutions at hand, waiting for problems to float by to which they can attach their solutions, waiting for a development in the political stream they can use to their advantage.”4

And due to a perfect confluence of streams ( Institute of Medicine report that 44,000 people die each year due to medical error,5 media reports of “impaired physicians,”  the the war-on-drugs, etc.)  the FSMB was swayed into accepting not just the validity but the necessity of using an alcohol biomarker of unknown reliability and validity on doctors referred to or monitored by state Physician Health Programs (PHPs) .

As the national organization that gives guidance to state medical boards through public policy development and recommendations, the individual state medical boards adopted use of the test without critical appraisal and no meaningful opposition.

Shortly after its founding in 1912, the FSMB began publishing a  journal called the Quarterly of the Federation of State Boards of the United States. Now known as the Journal of Medical Regulation, the publication has archived all issues with full articles dating back to 1967 and, as the official journal of the national organization involved in  medical licensing and regulation this facilitates an unskewed and impartial examination of how and when specific issues and problems were presented and who presented them and, in doing so, the “policy entrepreneurship” Kingdon describes can be seen quite clearly. For example a 1995 issue containing articles written by the program directors of PHPs in 8 different states contains an FSMB editorial acknowledging the reported 90% success rate claimed of these programs (in part attributed to the 90-day inpatient treatment programs) that concludes:

“Cooperation and communication between the medical boards and the physician health programs must occur in an effort to protect the public while assisting impaired physicians in their recovery.” 6

No one bothered to examine the methodology of these reports to discern the validity of the claims and it is this acceptance of faith without objective assessment that has allowed the passage of flawed public policy in medical regulation.

Nowhere  is “policy entrepreneurship” more glaringly displayed as it is in a 2004 issue promoting the use of EtG in monitoring doctors as under the same cover is an article identifying both the need7 for such a test and an article providing the solution.8  

“Detection of Alcohol Use in Monitored Aftercare Programs: A National Survey of State Physician Health Programs,” a survey of state Physician Health Programs (PHPs) concludes that “surreptitious alcohol use” is a significant concern” for PHPs, there is no current  “best method” for detection,  but a promising new test  with “exceptional specificity (100 percent) and sensitivity” in detecting small amounts of alcohol for up to 18 hours has recently become available.7

This same issue contains an article authored by Skipper about a new marker “not detectable unless alcohol has been consumed” recently introduced in the United States and now commercially available.”8

Notably absent from both of these articles is Skipper’s role in the commercial availability of the test. This conflict-of-interest is nowhere mentioned in this display of “creating a market then filling it.”

This “regulatory sanctification” of the test implied its tacit approval by the medical profession  (i.e. “if they are using it on doctors it must be valid”) and facilitated its marketing  to other monitoring agencies (nurses, airline pilots) as well as  Courts and Probation Departments where those doing the monitoring had absolute power while those being monitored had no voice.

Bent Science

In Bending Science: How Special Interests Corrupt Public Health Research9, Thomas McGarity and Wendy Wagner describe how special interest groups scheme to advance their own economic or ideological goals by using carefully crafted distorted or “bent” science to influence legal, regulatory and public health policy.  The authors describe how those making these decisions often assume the information that reaches them has been sufficiently vetted by the scientific community as it flows through a pipeline of rigorous peer-review and professional oversight and that the final product that exits the pipeline is unbiased and produced in accordance with the norms and procedures of science.

McGarity and Wagner note the serious and sometimes horrific consequences of bent science and provide examples involving Tobacco and Big Pharma . The authors call for:

“..immediate action to reduce the role that bent science plays in regulatory and judicial decision making” and the need for the scientific community to be involved in “designing and implementing reform.”

“Shedding even a little light on how advocates bend policy -relevant science could go a long way toward remedying these problems.  Indeed, precisely because the advocates have overtaken the law in this area, heightened attention to the social costs of bending science could itself precipitate significant change.”

In the case of EtG this shedding of light is not very hard as no “carefully crafted” studies bending science were used to sway opinion.   None existed. The only items in the pipeline were directly related to Skipper.  If anyone dare to look, the Emperor has no clothes.

Lack of Answerability and Accountability

There are difficulties in challenging bent science including a general lack of recognition of the problem and an absence of counter-studies to oppose deliberately manufactured ends-oriented research.   This has proven true with the myriad LDTs introduced into the marketplace as no counter-forces or competing economic interests producing counter-studies exist.

Multiple lawsuits, including a class-action, have been decided in favor of the labs who have taken a stand-your-ground approach supported by a body of industry-related “research” they or their affiliates produced to support the validity and reliability of the tests.

Those affected by these tests either have no power or have had their power removed. Most do not have the resources to mount a defense let alone produce counter-studies questioning the reliability and validity of the tests.

Most employee drug testing follows Department of Health and Human Services (DHHS) guidelines using FDA-approved tests that have specific cutoff levels defining a positive-result in an effort to eliminate false-positive results.10  Procedural safeguards are in place in these programs to protect the donor.  Forensic testing programs using LDTs provide no such safeguards as the testing is unregulated and there is no oversight from outside actors.

Unlike clinical LDTs “forensic” LDTs are even exempt from CLIA oversight.   The only avenue for complaint is through the College of American Pathologists (CAP) and, as an accrediting agency, they can only address problems by ensuring compliance with CAP guidelines.   If an investigation concludes lab error or misconduct CAP can mandate the lab correct the test result and come into compliance with their guidelines under threat of loss of accreditation but no other consequences exist.  Accountability has been removed yet the  consequences to those harmed by these are significant and without remedy.

State Physician Health Programs

As is the case with the LDTs  they introduced, Physician Health Programs have no oversight or regulation.   A 2013 Audit of the North Carolina PHP 11 prompted by complaints from doctors and performed by State Auditor Beth Woods found absolutely no oversight of the program by either the state medical board or medical society and that “abuse could occur without being detected.”

The Audit also found that doctors were predominantly referred to the same “PHP-approved” out-of-state facilities to which they in part attribute their high success rates in treatment. Interestingly the PHP could not identify what quality indicators or quantitative measurements were used by the PHP to “approve” the “PHP-approved” facilities.

In January of 2015 a Federal class action lawsuit was filed in the Eastern District of Michigan against the state PHP program and found health care providers were subject to the same referral system using these out-of-state facilities. The suit alleges constitutional violations related to the forced medical treatment of health care professionals and the “callous and reckless termination of professional licenses without due process.” 12

As with North Carolina, the Michigan PHP will be unable to provide what quality indicators and quantitative measurements are being used to “qualify” and “approve these facilities.    None exist. The sole indicators for approving these assessment centers are ideological and economic. In fact, the medical directors of most, if not all, of these facilities can be seen on this list of “like-minded docs.” 

Institutional Injustice

You once said “People feel like the system is rigged against them. And here’s the painful part: they’re right. The system is rigged.”

So too is this system.

As the Michigan lawsuit notes: “Unfortunately, a once well-meaning program has turned into a highly punitive and involuntary program where health professionals are forced into extensive and unnecessary substance abuse/dependence treatment under the threat of the arbitrary application of pre-hearing deprivations.”

This has become the rule not the exception. The Federation of State Physician Health Programs (FSPHP), the same group to which Dr. Skipper belongs, has systematically taken over these programs state by state by removing competent and caring doctors not agreeing with the groupthink and silenced them under threat of litigation if they violate their confidentiality agreements and “peer review” statutes.

The same system of coercion, control and abuse exists in Massachusetts.  In the past week alone I have heard from a medical student, a resident and two doctors who complained of misconduct  misconduct involving fraudulent testing and falsified diagnoses.

In “Ethical and Managerial Considerations Regarding State Physician Health Programs,” published in the Journal of Addiction Medicine in 2012, Drs. John Knight, M.D. and J. Wesley Boyd, M.D., PhD who collectively have more than 20 years experience with the Massachusetts Physician Health Program (PHP) state that:

“Because PHP practices are unknown to most physicians before becoming a client of the PHP, many PHPs operate out- side the scrutiny of the medical community at large. Physicians referred to PHPs are often compromised to some degree, have very little power, and are, therefore, not in a position to voice what might be legitimate objections to a PHP’s practices.”13

Noting that “for most physicians, participation in a PHP evaluation is coercive, and once a PHP recommends monitoring, physicians have little choice but to cooperate with any and all recommendations if they wish to continue practicing medicine,” Knight and Boyd raise serious ethical and managerial questions about current PHP policies and practice including conflicts of interest in referrals for evaluation and treatment, lack of adherence to standards of care for forensic testing of substances of abuse, violations of ethical guidelines in PHP research, and conflicts of interest with state licensing boards.

Knight and Boyd recommend “the broader medical community begin to reassess PHP’s as a whole” and that “consideration be given toward the implementation of independent ethical oversight and establish and appeals process for PHP clients who feel they are being treated unfairly.” 13

They recommend the relationship between PHP’s and the evaluation and treatment centers and licensing boards be transparent and that national standards be developed “that can be debated by all physicians, not just those who work within PHPs.”13

Accountability, or answerability, is necessary to prevent corruption.  This requires both the provision of information and justification for actions.    What was done and why? Accountability also requires that consequences be imposed on those who engage in misconduct.

In discussing the financial conflicts-of-interest between PHPs and “PHP-approved” assessment centers Knight and Boyd state:

“..if a PHP highlights a physician as particularly problematic, the evaluation center might–whether consciously or otherwisetailor its diagnosis and recommendations in a way that will support the PHP’s impression of that physician.”  

To “consciously tailor a diagnosis” is fraud. It is political abuse of psychiatry. And it is not only the assessment and treatment centers willing to “tailor” a diagnosis; so too are the labs involved.

Physician Suicide

I can think of nothing more institutionally unjust than an unregulated zero-tolerance monitoring program with no oversight using unregulated drug and alcohol testing of unknown validity.   But that is what is occurring.   Some of us are trying to expose this corrupt system but barriers exist. As with the Laboratory Developed Tests (LDTs), those involved have intentionally taken steps to remove both answerability and accountability.  Both the tests and the body of individuals administering these tests are notable for their lack of transparency, oversight and regulation.  This renders them a power unto themselves.

Doctors (and others coerced into Professional Health Programs) across the country have reported going to law enforcement and state agencies only to be turned away.   The Federation of State Physician Health Programs (FSPHP)  has convinced these outside agencies that this is a “parochial” issue best handled by the medical profession..   Those reporting crimes are turned back over to the very people committing the crimes.

The Massachusetts Medical Society and Massachusetts DPH claim no oversight of the Massachusetts PHP, PHS.inc. The Massachusetts Board of Registration in Medicine (BORM) will not address ethical or even criminal complaints about the doctors involved in the PHP and there is good evidence that some members of the BORM are in fact complicit in unethical and even criminal behavior. As the Massachusetts AGO represents the BORM they defer issues back to them and dig no deeper.

Drs. Knight and Boyd have suggested State Audits and we are hoping that MA State Auditor Suzanne Bump will investigate the MA PHP and the Board of Registration in Medicine’s Physician Health and Compliance Unit shortly.

One major problem is that barriers have been put in place to prevent information from getting to the right people.

The majority of people at medical societies, boards, departments of public health and other organizations are individuals of integrity and honesty but the system has been erected so that valid complaints are deflected, delayed, dismissed or otherwise tabled by sympathizers, apologists and those complicity.   The criminal activity the Massachusetts PHP is engaging in is undeniable and indefensible but who is going to hold them to account?

It is going to take a while to reform this system of institutional abuse and it has to be done state by state. Please take a look at the facts and documentary evidence and help me hold them accountable. This needs to be exposed, acknowledged and addressed.   Doctors are dying from this system of institutional abuse. It is a public health emergency no one is talking about.  Yet those behind the PHP programs are claiming this system of coercion, abuse and control is the “gold standard” of addiction treatment and, using another loophole, they want to expand this system to mainstream healthcare.

Sincerely,

Michael L. Langan, M.D.

  1. Skipper G. Exploring the Reliability, Frequency, and Methods of Drug Testing: What is Enough to Ensure Compliance?:   Alcohol Markers and Devices. 2013; http://www.fsphp.org/Skipper, Exploring the Reliability Frequency and Methods 2 Presentation.pdf.
  2. Wurst FM, Vogel R, Jachau K, et al. Ethyl glucuronide discloses recent covert alcohol use not detected by standard testing in forensic psychiatric inpatients. Alcoholism, clinical and experimental research. Mar 2003;27(3):471-476.
  3. Skipper GE, Weinmann W, Thierauf A, et al. Ethyl glucuronide: a biomarker to identify alcohol use by health professionals recovering from substance use disorders. Alcohol Alcohol. Sep-Oct 2004;39(5):445-449.
  4. Kingdon JW. Agendas, alternatives, and public policies. Updated 2nd ed. Boston: Longman; 2011.
  5. Leape LL. Institute of Medicine medical error figures are not exaggerated. JAMA : the journal of the American Medical Association. Jul 5 2000;284(1):95-97.
  6. Schneidman B. The Philosophy of Rehabilitation for Impaired Physicians. The Federal Bulletin: The Journal of Medical Licensure and Discipline. 1995;82(3):125-127.
  7. Jansen M, Bell LB, Sucher MA, Stoehr JD. Detection of Alcohol Use in Monitored Aftercare Programs: A National Survey of State Physician Health Programs. Journal of Medical Licensure and Discipline. 2004;90(2):8-13
  8. Skipper G, Weinmann W, Wurst F. Ethylglucuronide (EtG): A New Marker to Detect Alcohol Use in Recovering Physicians. Journal of Medical Licensure and Discipline. 2004;90(2):14-17.
  9. McGarity TO, Wagner WE. Bending Science: How Special Interests Corrupt Public Health Research. Cambridge, MA: Harvard University Press; 2008.
  10. US Department of Health and Human Services. Mandatory guidelines and proposed revisions to mandatory guidelines for federal workplace drug testing programs: notices. Federal Register. April 13, 2004;69(71):19659-19660.
  11. Wood B. State of North Carolina Performance Audit North Carolina Physicians Health Program. . http://www.ncauditor.net/EPSWeb/Reports/Performance/PER-2013-8141.pdf. Accessed March 17, 2015.
  12. U.S. District Court Eastern District of Michigan, Case No: 2:15-cv-10337-AJT-RSW (2015). Carole Lucas, R.N., Tara Vialpandno, R.N., Scott Sanders, R.N., Kelly Schultz, P.A., and all other similarly situated health professionals v. Michigan Department of Licensing and Regulatory Affairs, Carole Engel, J.D.Former Director of Michigan Bureau of Health Professions, Ulliance, Inc. (State Contractor), Carolyn Batchelor (HPRP Contract Administrator), Stephen Batchelor (HPRP Contract Administrator), and Nikki Jones, LMSW.   Filed January 30, 2015.
  13. Boyd JW, Knight JR. Ethical and managerial considerations regarding state physician health programs. Journal of addiction medicine. Dec 2012;6(4):243-246.

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Monopolies, Self-Referral and Shell Games: The Need for Antitrust Investigation of Physician Health Programs and their “PHP-Approved” Assessment and Treatment Centers

Screen Shot 2015-03-06 at 4.38.05 AMThree shells and a pea–ASAM, FSPHP, and LMD.

“PHP-Approved” Assessment and Treatment Centers

On the above list  can be found the Medical Directors of a number of drug and alcohol rehabilitation facilities.

Talbott, Marworth, Hazelden, Promises, and another two-dozen or so “PHP-approved”  assessment and treatment centers are represented on this list.    State Physician Health Programs (PHPs) refer doctors to these facilities for evaluations.  PHPs are non-profit tax-exempt organizations.  They do not evaluate or treat patients.   If a physician is referred to a PHP for a suspected problem the assessment must be done at an outside facility which will invariably be linked to a name on the list of Like-Minded Docs.

What most people do not know, however, is that this is an exclusive arrangement.    Evaluations are constrained to one of these facilities.   It is mandated.   No bargaining.  No compromises. No choice.  In other words it is a coercion.

“What’s wrong with that?” one might ask.   These facilities are all recognized as top-drawer and first-class.  Perhaps they were hand-picked on objective criteria and the PHPs are just making sure that doctors get the best assessments money can buy– decision making by experts based on knowledge and experience–picking a winner so you don’t have to.

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No documented Policy for Selecting Treatment Centers.  Criteria for “PHP-Approval” Unknown by those “Approving”

What objective criteria are used in selecting “PHP-approved” assessment and treatment centers?    According to a  Performance Audit of the North Carolina Physicians Health Program done by State Auditor Beth A. Wood that’s a good question.

The North Carolina State  Audit specifically noted the predominant use of out-of-state treatment centers.   In addition to “creating an undue burden on” those being evaluated the audit states that:

 “Program procedures did not ensure that physicians received quality evaluations and treatment because the Program had no documented criteria for selecting treatment centers and did not adequately monitor them”

In fact the audit found no documented policy for selecting treatment centers.  The very organizations demanding documentation of policy for approval and charged with approving the treatment centers could not even give a comprehensible, plausible or even simple explanation for what any of  these things even mean.    

Screen Shot 2014-05-07 at 5.38.23 PMThe auditor also noted this lack of concrete criteria goes against both The Federation of State Physician Health Programs (FSPHP) and the Federation of State Medical Boards (FSMB) requirements that physician health programs use established guidelines to select evaluation providers and treatment centers.

In its “Physician Health Program Guidelines,” the FSPHP established: • “Characteristics of Evaluation Providers Appropriate for PHP referrals,” and • “Characteristics of Treatment Programs which are appropriate for PHP referrals.”  And in its “Policy on Physician Impairment,” the FSMB states : • “PHPs should employ FSPHP Guidelines in selecting the providers/facilities to provide treatment of physicians with addictive and/or psychiatric illness.”

When the NC PHP was asked to define these characteristics they explained that they learned  of “new treatment centers through professional networks and other informal sources” and used the “treatment centers’ reputation as a basis for establishing a referral relationship.”      Staff credentials, quality of care, treatment methods and modalities, patient choice, follow-up data, outcomes and other objective information apparently took a back-seat to what appears to be ill-defined and subjective word-on-the-street.   Screen Shot 2014-03-15 at 7.33.14 PM

This  “failure to use FSPHP  recommended criteria to select treatment centers,” the Audit concluded “could cause the Program to enter into referral arrangements with service providers that do not meet quality standards”

Ironically the  NC PHP failed to follow guidelines they themselves introduced and demanded be followed.  They could produce no documentary evidence these criteria even exist or even provide plausible criteria.   “Professional networks”, “reputation” and other informal sources are fine for some choices.  That’s how I picked out my first skateboard.

Resources such as these can play in important role in choosing a shirt, buying new sneakers or even purchasing a car but they do not constitute selection criteria for an assessment in which the consequences and recommendations made for the person being assessed are significant, potentially life-altering and possibly permanent!

And to top it all off the  Medical Director of the North Carolina PHP,  Dr. Warren Pendergast,  was the  President of the national organization for state PHPs, the Federation of State Physician Health Programs (FSPHP) at the time of the audit!

PHPs are not clinical providers but monitoring agencies.  They meet with, assess and refer doctors for evaluations and then monitor doctors through drug and alcohol testing and periodic reports of supervisors, co-workers and others.        As such the PHP is tasked with just two jobs-referring doctors for evaluation and then monitoring them after they have been evaluated in a contractual agreement.  The fact that the state PHP 0r FSPHP could not produce the facts and reasoning  behind the mechanics and mentality of the very reason for which they exist is incomprehensible.  It is, in fact, ludicrous beyond belief.    The President of the FSPHP being unable to define the selection criteria for approved and mandated facilities is like Anthony Bourdain being unable to explain the ingredients of an omelette.

To summarize, doctors in North Carolina were being forced by the PHP  to have evaluations at “PHP-approved” assessment and treatment centers but the PHP was unable to explain anything substantive in defining any of it.  Why?  Because no qualitative objective selection criteria exist.

“Reputation” obfuscates and confuses.  It does nothing to support or justify.    It is like answering “numbers” to the question “what is 9 x 9?”

And this is especially concerning when it is realized that these evaluations are limited to facilities and people  tied financially and ideologically to the groups and individuals who are mandating the referral.

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All of the “PHP-approved” assessment centers are represented by medical directors who belong to “Like-minded docs”-an admittedly  12-step steeped conservative fundamentalist faction of the American Society of Addiction Medicine (ASAM).   And all of these facilities are private-pay rehabilitation centers that recommend doctors be treated three-times longer than the rest of the population–another medical “urban legend” that should have been debunked from the get-go.

Limiting assessment and recommendations to this close-knit  group of evaluators is a monopoly of force.  It is unethical if not criminal. And the fact that these are all heavily indoctrinated 12-step facilities also makes it a violation of the Establishment Clause of the 1st Amendment.  Moreover,  many of the medical directors at these facilities are also graduates of the same program in “recovery.”

And if it is looked at from this vantage point it is a system of  self-referral.  Self-referral harms patients and society as a whole.

It is a shell game that removes all choice and removes freedom, objectivity, fundamental fairness, autonomy and choice.


Antitrust law

American antitrust law was “designed to be a comprehensive charter of economic liberty aimed at preserving  free and unfettered competition as the mule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions” (29, p 4).

In this case it is a safe assumption that all doctors desire the “best possible” care and this requires objective and unbiased assessment and treatment when requested by Physician Health Programs.

Congress and the Supreme Court have made clear is that the “best” services are selected by  consumers when their choice is made in an open market free of restraints. Eventually the marketplace will determine the best medical care, not judges, juries, or even doctors (30, p 904).

PHPs are clearly bypassing patient choice.  In 2011 the American Society of Addiction Medicine (ASAM) issued a Public Policy Statement on coordination between PHPs, regulatory agencies, and treatment providers recommending  that  only “PHP approved” treatment centers be used in the assessment and treatment of doctors.  The state Medical Boards have accepted and adopted this policy and denying doctors requests for assessments at non “PHP-approved” facilities. Many have been sanctioned for resisting, protesting or even questioning this unlawful monopoly.  It is prohibition of patient choice.

The N.C. PHP is representative of most PHPs. This is not an exception but a rule.      PHPs are mandating assessments only at facilities they approve but cannot define or explain how these facilities are “approved”  Yet The ideological and financial conflicts of interest between the PHPs and their referral centers are self-evident.  Connect the dots.  

State medical boards are enforcing this mandate under threat of loss of licensure.   Your money or your life.

Federal Trade Commission

For these reasons an investigation by the Federal Trade Commission and Office of the Inspector General of the DHHS is necessary.  For those who have been abused by this unholy alliance I urge you to look at this list to see if the medical director of the facility at which you were evaluated is represented.

If so note it here.   My guess is almost everyone will find this correlation and representation in numbers would necessitate both state and Federal investigation.  If this were done it  could quickly transform a system of institutional injustice into one that allows choice.

Applying Antitrust law to the linkage of  PHPs  and “PHP approved” assessment and treatment centers is consistent with free-market law and theory.   Demanding accountability would provide a powerful deterrent to this type of unfettered abuse.

1. Northern Pacific Railway v U.S., 356 US I (1958).

.2.  Koefoot v American College of Surgeons. 652 F Supp 882 (ND Ill 1986).

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Need Signatures: Please Sign Petition and Call (617-727-6200) MA State Auditor Suzanne Bump to Demand Audit of Corrupt Physician Health Services and the MA BORM Physician Health and Compliance Unit

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The Petition can be found here.  Or better yet, sign the petition and call her at 617-727-6200.   The evidence that Physician Health Services, Inc. (PHS) is committing crimes has been free-floating for the past two years.   It has been posted on Reddit, Twitter, Facebook, Linkedin, blogged, faxed, and phoned.  The response?  Absolute silence.

The procedural, ethical and criminal violations are clear and many.     The incontrovertible evidence has been directly delivered to individuals who can and should address this but for some reason do not.  This is not a matter of opinion folks but a matter of fact.    Time and time again we hear of  egregious misconduct hidden for decades because of  cognitive dissonance and blinkered apathy.

What evidentiary standard is required for action?   Over the past three years and under a lot of duress I have obtained indefensible documentary prima facie  proof of  crimes committed by individuals that should elicit immediate action but produced nothing but silence.

The crimes are many and they are of significance.  Accountability necessitates both the provision of information and justification for one’s actions.   This group has effectively blocked both of these. With much effort and under threat I have obtained proof of criminal activity with the expectation that the provision of this information would  result in those who should and could do something about it would.   They have not.

The documentary evidence of crimes is self-evident.  It is indefensible.    It is inexcusable that criminal activity is taking place within the walls of the Massachusetts Medical Society.   The fact that PHS is unregulated and without any meaningful accountability is irrelevant.  They are engaging in criminal activity within the walls of an institution whose very foundation is the antithesis of this groups actions and it must be addressed. Either support what the documents show or do something about it.

So please sign this petition and call  Massachusetts State Auditor Suzanne Bump at 617-727-6200

Institutional injustice just like that being committed by Luis Sanchez, Linda Bresnahan and the corrupt MRO Wayne Gavryck is killing doctors across the country.  They need to be held accountable.  Help me hold them accountable.

You do not need to be from Massachusetts to sign this petition. It is to raise public awareness–hopefully enough to elicit more exposure of this problem to prompt audits not only in Massachusetts but in other states as was recently done in North Carolina. The N.C. state auditor conducted an investigation and found poor oversight of the state PHP by both the state Medical Society and the state Medical Board, a lack of due process for physician’s who disputed the PHP’s evaluations and requirements, and multiple instances of potential conflicts-of-interest.

Dr. J. Wesley Boyd, who was previously an Associate Director at Physician Health Services, inc., the Massachusetts PHP is recommending that state government agencies audit their PHPs and his own state won’t even do it!  This is despite clear evidence that the Massachusetts PHP, Physician Health Services, Inc. is engaging in forensic fraud, ethical misconduct, HIPAA violations and crimes that Deb Stoller of the Massachusetts Board of Registration in Medicine Physician Health and Compliance Unit has been aware of and is most likely complicit in.   The Massachusetts State Auditor, Suzanne Bump, has refused to conduct an investigation.  Why is this?  I’d like to know why?

As Boyd states in his  Psychology Today blog:

“After a group of North Carolina physicians complained about their state PHP to the state auditor, the auditor conducted an investigation (link is external)and found poor oversight of the PHP by both the state medical society and the board of medicine, a lack of due process for physicians who disputed the PHP’s evaluations and/or recommendations, and multiple instances of potential conflicts of interest. 

The national federation of PHPs ought to implement national standards for its members and commence routine audits of its members.  Other state governmental agencies ought to audit their PHPs as well, to ensure that their vast power is wielded judiciously and with oversight.”

The Massachusetts PHP is much worse.     The Massachusetts PHP is engaging in unconscionable conduct including forensic fraud and self-evident criminal activity that is indefensible from within the walls of the Massachusetts Medical Society. Most are not aware of this. They need to be. This rigged game is a national problem and how the racket works in Massachusetts can be seen here.

Please help me expose this and put a stop to it!   Please Sign Petition and Call (617-727-6200) MA State Auditor Suzanne Bump to Demand Audit of Corrupt Physician Health Services and the MA BORM Physician Health and Compliance Unit.

The corruption is undeniable and the actions are indefensible, unethical and unconscionable. Please help me shine a light on these criminals.   Corruption needs to be acknowledged and investigated. Ignoring it and hoping it might go away seldom works.

The Massachusetts Auditor should either be able to defend the actions of PHS and the BORM Physician Health and Compliance Unit or investigate.  It is as simple as that.

 

http://chaoticpharmacology.com/2015/01/23/physician-health-services-inc-phs-a-tale-of-corruption-crimes-and-unethical-behavior/

Neuropsychological Misconduct –Making the Data fit the Diagnosis Part 1: Denial

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In May 1999, Dr. G. Douglas Talbott stepped down as president of the American Society of Addiction Medicine (ASAM) down as a jury awarded  Dr. Leonard Masters a judgment of $1.3 million in actual damages and an undisclosed sum in punitive damages for malpractice, fraud, and false imprisonment.  The fraud finding required that the errors in the diagnosis were intentional.

Masters was accused of improper prescribing and referred to the Florida Physician Health Program (PHP).  The PHP Director, a recovering alcoholic, gave him two choices-either lose your license or be evaluated at one of our assessment centers.   Believing he would have an objective evaluation that would clear him, Masters chose the latter.  His assessment resulted in a diagnosis of “alcohol dependence” and he was required to enroll in the Talbott Recovery Program where he was released 4 months later and forced to sign a 5-year monitoring contract with the Florida PHP.

But Masters was not an alcoholic.   According to his attorney,  Eric. S. Block,

“No one ever accused him of having a problem with alcohol. Not his friends, not his wife, not his seven children, not his fellow doctors, not his employees, not his employers, No one.


The type of treatment given Dr.Masters had been previously implicated in the suicides of at least 25 doctors at one of Talbott’s facilities.    Neither the exposure of these suicides nor the associated lawsuits resulted in any changes in treatment protocol.    Dr. Master’s successful lawsuit didn’t either.

Changes were made; not to the treatment protocol but to the medical record.  In order to prevent future malpractice suits for intentional fraud and false imprisonment they would make certain the medical records supported the diagnosis using a variety of tactics including  cherry picking,  suppression of specific information and deliberate avoidance of key facts, unprovable and un-disprovable statements, and a lot of illogical incomprehensible jabber all designed to make the data fit the diagnosis.

And in the year  2015 a doctor is required to be evaluated at a facility exactly like this  There is no choice. They simply stacked the deck and tightened the noose.


Neuropsychological Misconduct –Making the Data fit the Diagnosis Part 1:  Denial

To further complicate matters, many evaluation/treatment centers are dependent on state PHP referrals for their financial viability. Because of this if, in its referral of a physician, the PHP highlights a physician as particularly problematic, the evaluation center might–whether consciously or otherwise–tailor its diagnoses and recommendations in a way that will support the PHP’s impression of the physician.”  -John Knight and J. Wesley Boyd.  in “Ethical and Managerial Considerations Regarding State Physician Health Programs,”  Journal of Addiction Medicine  2012

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Dr. Stephen Snook, PhD

To “consciously tailor a diagnosis” is fraud.  To consciously tailor” recommendations (which would logically be an inpatient admission as I doubt the recommendations for a “problematic” physician would be send him home!) is the political abuse of psychiatry.

In 2008 I was asked to have an evaluation at Talbott by the Massachusetts PHP.  Like Masters I expected a fair evaluation. The evaluation was because of a positive urinalysis for the metabolite of a medication I was taking and there were no other issues.  I brought with me a letter from the manufacturer of the medication I was taking stating that it was manufactured from the substance found in my urine.  In addition I had two forensic toxicology tests done (fingernail and hair) by an independent lab.  My work performance and bedside manner had always been rated as superb. In my 13 years at Harvard Medical School and 10 at Massachusetts General Hospital I had never had or even been threatened with malpractice.  And if you talked to any of my supervisors, coworkers, nurses, students or patients they would have nothing negative to say.

But the folks at Talbott did not contact any of my supervisors, coworkers, nurses, students or patients.  They only spoke with PHS.   When I arrived at Talbott for the four day evaluation almost the entire first day was spent trolling my bank accounts, credit-limit, and retirement fund to see how much I could pay for up to 3-months of inpatient treatment. They even asked me if I had anyone I could borrow up to $80,000.00 for the cash only “PHP-approved” facility.  I next met with the Medical Director Dr. Paul Earley who told me my future was in his hands and I was in denial.  He told me I would never practice medicine again if I did not accept treatment.  I refused.  Any attempts at communication or questions were met with thought stopping memes and gibberish.    Simple questions were deflected with “you need a check up from the neck up” and “your best thinking got you here.”  I then had a neuropsychological exam done by Dr. Stephen Snook that included the MMPI and an IQ test.  At the end of the four day evaluation I met with the assessment team who told me that the neuropsychological tests revealed  “denial” and “cognitive impairment,” that I could not safely practice medicine and that I needed up to three months of treatment.   I looked at the evaluation which appeared to be a template for confirmatory distortion.  Most of it was subjective psychobabble I could not disprove but I did notice one-big red flag I could.  I had done some work with the MMPI in college.  Basing  my diagnosis of denial on the MMPI Dr. Snook’s interpretation was as follows:

The MMPI-2 and the MCMI-III were completed as self-report measures of psychological functioning and personality characteristics. An analysis of his response style to this inventory showed that he understood the items, but responded in a rather guarded and cautious manner. His pattern of responding is typical of an individual who may be seen as making a naïve and unsophisticated attempt to appear in a positive light. There may be a pattern of minimizing and denying even common human faults. Such a pattern of responding is not unusual in such an assessment, but may reflect a person who is not particularly insightful in terms of his won feelings and behavior. Additionally, such patterns of responding are also seen in individuals who are particularly moral or religious. Due to the level of defensiveness noted on the resulting profile, a degree of caution is warranted in interpreting these results.

The Minnesota Multi-phasic Personality Inventory

In 1942, Hathaway and Mckinley published the original Minnesota Multi-phasic Personality Inventory (MMPI). It is the most widely used psychological test in the world and has been translated into 150 languages.1. It is also the most extensively researched psychological test in history.2

Since its publication it has been revised only once and this revision is referred to as the MMPI-2.

The MMPI-2 is an objectively interpreted personality instrument with empirically validated scales. A high score on a particular clinical scale is associated with certain behavioral characteristics. These scale “meanings” are objectively applied to the test taker.

People taking the MMPI-2 are asked to give one of three responses to each of 567 items: true, false, or cannot say. The responses are scored on seven validity scales and a variety of clinical scales. The test is then scored by transforming raw scores into uniform T scores with a mean of 50 and a standard deviation of 10.

The MMPI has diagnostic value as its findings can help confirm or refute the diagnostic judgments drawn from other information obtained from the patient’s history.

The MMPI-2 is easy to score by counting item responses for each scale and recording them on a profile sheet or by using a computerized scoring program. The objective scoring procedures for the MMPI-2 assure reliability in the processing of the individual responses.

The MMPI consists of Validity Scales and Content (Basic) Scales. The creators of the MMPI were aware of the fakability of a verbal inventory and they attempted to develop several validity indicators. These are internal measures that would point to the individual who was not responding honestly.3

Although the scoring is objective, the interpretation is not. In practice clinicians generally select specific interpretations from already published possible interpretations, such as those found in an MMPI-2 handbook or a computerized report.   Commercially available tests, well written manuals, and dozens of research studies facilitate but do not ensure proper and responsible test use.

According to The Handbook of Psychological Assessment,4the L (Lie Scale):

…consists of 15 items that indicate the extent to which a client is attempting to describe himself or herself in an unrealistically positive manner. Thus, high scorers describe themselves in an overly positive and idealized manner. The items consist of descriptions of relatively minor flaws to which most people are willing to admit.”

“If the clients score is considered high, it may indicate the person is describing himself or herself in an overly favorable light. This may result from conscious deception or, alternatively, from an unrealistic view of himself or herself.”

Examples of these questions include:

I do not always tell the truth

I do not like everyone I know

I would rather win than lose a game

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In Psychological Assessment with the MMPI-25, it is noted that the L scale, when elevated, “reflects naïve or obvious attempts by a person to look unusually virtuous, culturally conservative, overly conscientious, and above moral reproach,” and adds that “L scale scores above a T score of 65 are unusual except in persons…or are in situations…that prompt them to present themselves in their ‘best light’.”

In Forensic Uses of Clinical Assessment Instruments,6 Archer notes that high scorers on the L-scale “present in an unusually virtuous manner and deny personal flaws that most people would be willing to admit.”

In Psychometrics :An Introduction 7 it is stated that the L-scale consists of 15 items that describe “minor flaws and weaknesses to which most people are willing to admit” and is “intended to reflect a respondent’s attempt to present an overly positive impression.”

The Psychologists’ Desk Reference8 notes indicate that individuals who score high on this scale are “presenting an overly favorable picture of themselves.”

The K scale (Correction Scale) also measures defensives and guardedness. It evaluates some of the same behavior as the L scale but much more subtly.9

The original purpose of this scale was to identify “defensiveness against psychological weakness and…a defensiveness that verges upon deliberate distortion in the direction of making a more ‘normal’ appearance.”3

To evaluate the K scale properly the specific population must be noted. In a college population a T-score on this scale between 50 and 65 is typical on the MMPI-2.9 People scoring in this range are indicating that their lives are satisfactory, that they are basically competent, and that they can manage their lives. When T = 65 or above these people are indicating “not only that they are competent people and can manage their own lives, but also that they are a bit cautious about revealing themselves. Such scores are usually obtained when a person is defensive, and/or when the test administrator does not fully explain the reason for the test.”9

Raw Scores show Dr. Snook fabricated interpretation out of whole cloth  Elevated L-scale > 65  Mine = 49

When I got back to Boston I asked MGH neuropsychologist Dr. Lauren Pollak to contact Dr. Snooks office under the guise of continuity of care.  She requested that the MMPI raw data and my score sheet be sent to her.  As they usually refuse to send records and labs to doctors we waited  until he was out of town.  The raw data confirmed what I suspected—Dr Snook made up the interpretation to make it look as if I was in denial (elevated L-scale, “reluctant to admit to even common faults”, “unsophisticated attempt to appear in positive light.” All of my validity scales were within normal limits. My L-scale T score was 49 but he wrote his assessment as if it were 65!

The scoring sheet that I filled out in March of 2008 with a #2 pencil can be seen Here.   The scoring sheet  showed all of my MMPI validity test T-scores within normal limits. Moreover, Dr Snook’s raw data showed that he scored the test correctly. The scoring sheet was then run independently through the MGH Neuropsychology Departments computer and showed exactly the same thing. So there was no error in scoring. An error in scoring could be understandable. People make mistakes. But this was intentional and undeniable.

Both the original scoring sheet and his raw data show a T score of 49 on the L-scale which is normal any way you slice it. 49 is at the pinnacle of the bell shaped curve when looking at standard deviations.

This is not misinterpretation. This is not a close call. There is no controversy, ambiguity, alternative explanation, difference of opinion, or lack of clarity. MY SCORE COULD NOT BE MORE NORMAL. IT IS THE DEFINITION OF NORMAL.

There is also no defense of this as it was not a transcription error, a mathematical error, oversight, or forgetting to carry the 1 when adding. This was not a misplaced decimal or a misapplication of a fraction. There is no excuse, no rationalization, and no reason behind this.

MMPI scoring is standardized and objective. There is an MMPI manual that explains how the test is scored. It explains T-scores, standard deviations, percentiles; and what these mean and how to interpret them.

An error of quantification is understandable. An error of qualitative interpretation from quantitative data is not.

As a clinical neuropsychologist Dr Snook knows this.

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Confirmatory Distortion

“Confirmatory distortion” is the process by which an evaluator, motivated by the desire to bolster a favored hypothesis, intentionally engages in selective reporting or skewed interpretations of data thereby producing a distorted picture. It is an “indisputable conscious endeavor to find and report information that is supportive of one’s favored hypothesis.10

In other words it is a conscious decision and not an unconscious bias..

I requested Talbot and Dr. Snook address the fraud and rewrite the interpretation and recommendations.  I then complained to PHS not knowing at the time that they were the ones who requested it.  The requests were ignored.

I then filed a complaint with the Georgia Psychological Association. They confirmed the fraud and forced Dr. Snook to correct the test. Below is his apology. An apology received only because his back was to the wall. “Profound apologies”–Give me a break.  There would not be one if the Georgia Psychological Association did not force him to.

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I have since spoken to a couple dozen doctors who have the same template on their evaluations.   An elevated L-scale would be unusual in any doctor even if he were an alcoholic or addict. It is only the very naïve and unsophisticated who would think they can show themselves in a positive light by answering questions of obvious attempt such as “I never lie.” And if a class action lawsuit comes about this is one of the items that could be used to prove the systemic fraud. Obtain the score sheets from the facilities on anyone with this same interpretation and it will most likely show fabrication in the same manner.

Next up is the cognitive impairment piece.  Just like the MMPI they manipulate the IQ tests to show cognitive impairment by shaving off points in the executive function subcategories.

Snook is one cog in this system of fraud. He and others like him should have their licenses revoked permanently. There is no excuse. How many careers have ended because of his contribution to this scam? How many have died?

As always with my posts, if he cares to contest it and can disprove the fraud I’ll take the post down. As with all the others they can’t. If they could’ve they would’ve.

And this is the reason I was targeted by Linda Bresnahan.  Upset that I got one of their own in trouble she threatened retribution.   “You won’t be a doctor in five years” she said.   “Dead, relapsed or in jail  I don’t care.”  “Dead?” I said.

“Either that or you’ll wish you were”.   And when Drs. John Knight  and J. Wesley Boyd were removed from PHS and were no longer there to protect me she made good on her threat.  She and Luis Sanchez fabricated an alcohol test in retribution for calling out one of their own.

  1. Butcher JN, Williams CL. Essentials of MMPI-2 and MMPI-A Interpretation. 2nd Edition ed: University of Minnesota Press; 2000.
  2. Butcher JN, Rouse SV. Personality: individual differences and clinical assessment. Annu Rev Psychol. 1996;47:87-111.
  3. Levitt EE, Gotts EE. The clinical application of MMPI special scales. 2nd ed. Hillsdale, N.J.: L. Erlbaum Associates; 1995.
  4. Groth-Marnat G. Handbook of psychological assessment. 4th edition. ed. New York: J. Wiley; 2003.
  5. Friedman AF, Lewak R, Nichols DS, Webb JM. Psychological assessment with the MMPI-2. Mahwah, N.J: L. Erlbaum Associates; 2001.
  6. Archer RP. Forensic uses of clinical assessment instruments. Mahwah, N.J.: Lawrence Erlbaum Associates, Publishers; 2006.
  7. Furr RM, Bacharach VR. Psychometrics : an introduction. Los Angeles: Sage Publications; 2008.
  8. Koocher GP, Norcross JC, Hill SS. Psychologists’ desk reference. New York: Oxford University Press; 1998.
  9. Duckworth JC, Anderson WP. MMPI & MMPI-2 : interpretation manual for counselors and clinicians. 4th ed. Bristol, Pa.: Accelerated Development; 1995.
  10. Rogers R. Forensic use and abuse of psychological tests: multiscale inventories. J Psychiatr Pract. Jul 2003;9(4):316-320.

MMPI-2

GENERAL CONSIDERATIONS

Level                           Uniform T-Score                Percentile Equivalent

Extremely High         85-90                                             >99.8->99.9

Very High                  75-80                                            98->99

High                             65-70                                            92-96

Moderately High       55-60                                            73-85

Average                      45-50                                             34-55

Moderately Low       35-40                                            4-15

Very Low                    30                                                   <1

• MMPI-2 Manual Elevation Levels:

o Very High ≥ 76

o High 66-75

o Moderate 56-65

o Modal/Average 41-55

o Low ≤ 40

• 3,4,5,6,9,0 = character scales; 1,2,7,8 = symptom scales

• Acute: Elevated symptom scales, high F (out of ordinary distress), low K (feel

helpless in dealing with increased stress)

• Chronic: Lack of elevation on symptoms scales (or 1-8 > 2-7), moderately low K

(T= 45-55), lower F (T<60)

                

 

                             VALIDITY SCALES

• Interrelationships of Scales:

o Hi F, Lo L & K: Client is admitting to personal and emotional problems, may be

asking for help, unsure of abilities to deal w/ problems, good tx prognosis

o Hi L & K, Lo F: Client is attempting to deny problems and feelings, underreporting

of problems, attempt to present self in most positive light, most likely using primitive

defenses, problems usually chronic and therefore may be built into personality,

adequate social adjustment to see world as either good or bad

o L < F < K: Appropriate resources to deal w/ problems and not experiencing much