Common Sense, Deferred: Lessons From the “Fresh Air” Fight, Part Two

Part Two

This is a continuation from an earlier post, with more details on the “nuts and bolts” of how and why the “fresh air rights” idea faces such huge obstacles in the public policy arena.

“Fresh Air” as a Legislative Effort

For four consecutive sessions – 2005, 2007, 2009 and 2011 – bills were introduced at the Mass. State House to add to the existing “Five Fundamental Rights”¹ law. This is the only law protecting basic rights (access to telephones, mail, visitors, privacy and dignity, and legal counsel) on psych inpatient facilities and residences. The bills would add a sixth fundamental right – the right to daily access to fresh air and the outdoors. (The 2009-11 filings combined ‘fresh air’ with badly-needed language for better enforcement of the existing five rights).

While I’m very proud of this effort, it illustrates the complexity and frustration of trying to create change on a legislative level (and has added many gray hairs).

Despite the sponsorship of 39 lawmakers, and the remarkable energy invested by so many others who have supported it, the bill has either been “killed” or has expired each time. And for the entire time the bills have been active, lobbyists from powerful trade groups have fought it fiercely.

In addition, many organizations that have traditionally allied with us in the fight for human rights – human service worker unions and trade organizations – have steadily backed away from these causes, as their focus moves further toward ‘how can we protect our employees?’ (i.e., “risk management”).

Even some fellow peer activists, while approving of the idea, have withheld active support of the “fresh air” effort. I understand their viewpoint; i.e., given all of the other serious rights abuses we face, fresh air isn’t that important. But I (respectfully, but firmly) disagree. The issue is far bigger than what it may seem at face value!

How to Kill a Bill

Each year, the language of the “fresh air” legislation has been modified in ways that would severely weaken its effectiveness. The most recent (2011-12) bill filing is a classic example:

The Original Bill, as Filed

The original bill called for a right to fresh air, “automatically enacted upon admission” to an inpatient facility. New admissions would be subject to a clinical assessment (within 48 hours) to determine if outdoor access could ‘safely’ be granted.

This right could be temporarily revoked – but ONLY if access to fresh air would create a significant (and documented) risk of “harm.” Denial can only last as long as “harm” exists.

The bill would prohibit signing of “three-day notices” as grounds for denial of fresh air. “Three-day” notices are signed when voluntary admissions decide they no longer wish to stay in the hospital; they would either be discharged within three days, unless the hospital decides to petition for involuntary commitment. Hospitals have a history of revoking outdoor time and other privileges when a “three-day” is signed.²

Watering Down, Part One

When the bill passed the first legislative committee, its text was significantly changed. In addition to eliminating “enforcement” language for all fundamental rights, the following changes were made:

• The redrafted bill calls for “reasonable” access to fresh air and the outdoors. The word “reasonable” opens the doors wide for facilities to interpret what is “reasonable” or not.
• Language long-favored by opposing lobbyists was added, which says fresh air access must be “consistent with the ability” of hospitals to provide access. This is another huge loophole that lets hospitals decide which facilities can or (more likely) cannot provide access.
• The Department of Mental Health would be required to create regulations to:

A) Define “safe and reasonable” access; and

B) Promulgate regulations defining when a person is a ‘risk’ to self or others. (It’s not clear what the intentions of these regulations were, but they would likely delay implementation of the new right).³

Watering Down, Part Two

The “fresh air” bill passed a second committee in June 2012. However, even more restrictions and stipulations were put onto it. What’s left of the bill is maddeningly vague and non-enforceable.

• Language was added that ties outdoor access to each person’s “clinical condition and safety.”
• The clause that states that the right to fresh air would “attach upon admission” to an inpatient unit was removed, as was the timeframe for a clinical assessment to determine ‘privileges.’ So the big question this creates is, ‘when does access to fresh air start?’
• If a “voluntary” patient signs a “three-day notice” (explained above), they would no longer be protected from being denied fresh air.⁴

Oh, The Horror: Why Fresh Air is so Feared

The fierce opposition to the “fresh air” bill illustrates in many ways how public policy has failed us.

One day, early into the “fresh air” effort, I received a call from the CEO of a psychiatric hospital in the Boston area.

In a voice conveying equal measures of shock and anger, she asked me, ‘You want WHAT? Fresh AIR? People are admitted to our hospital because they need to be safe. They need treatment.’

How does such a common-sense issue become such a monumental struggle? There are several themes I can identify:

The Politics and Economics of Fear

As my previous MIA post detailed, there’s a growing movement to strengthen “Risk Management,” which can worsen outcomes by smothering the “dignity of risk” – a cornerstone of recovery.⁵

In our fast-paced, quick-fix society, the subtleties of mental distress are lost in favor of what can be done NOW, and to accomplish this, ever-higher levels of control are perceived to be necessary.

Hospitals and providers are under great pressure to reduce risk. Highly-publicized incidents of violence, such as the Aurora, CO shooting, are in the forefront of public debate, and the suggested connection to “mental illness” remains a hot topic, thanks to the sensationalism of the media and the gaggle of involuntary commitment fanatics.

In this heightened climate of fear, providers are concerned with “what if?” What if patients escape, and harm themselves and/or others? Will facilities get hit with multimillion-dollar lawsuits?

Health insurers, focused on cost-cutting, have reduced the length of private hospital stays to around 4-14 days. That fact is often used to dismiss fresh air as an issue. Not that longer stays are better; however, many people, myself included, can attest to the fact that just one day can seem like an eternity in such places, which offer almost no meaningful ‘healing’ activity. The ‘mantra’ of the insurance companies on fresh air is, ‘If they [psych inpatients] are well enough to go outside, they are well enough to go home.’

(Of course, this issue does impact residential facilities as well, which have similar problems enforcing human rights. Because the bulk of my work has been with hospitals, I am focusing on them here, but I welcome any accounts of denial at group homes.)

In the past, passes off hospital grounds were considered an important measure of readiness for discharge, whereas now, people are tossed back out abruptly (often without meaningful discharge planning). Even more important, since going outdoors helps peoples’ mental state, then doesn’t it follow that discharge would be faster, and people can maintain a semblance of wellness and connection to the world? Going outside offers people critical relief from that dissociative sense of being nowhere at all – numbness under fluorescent lights – which hospitals offer.

Hospitals have moved further and further away from truly therapeutic interventions; “treatment” is mainly quick medication ‘adjustments’ (with discharge long before medications can be determined ‘effective’). Group therapy, occupational therapy – anything not medical (or billable) – has become rare. (When I recall my first hospitalization in 1989, it’s astonishing that they offered so much in comparison). Is it really surprising that so many people repeatedly go back into hospitals? While repeat admissions may be a boon to the hospital and pharmaceutical industries, they’re far more burdensome on the system, and counterproductive to true recovery.

Also, the proposed right to fresh air would have the same caveats in place as the original five “Fundamental Rights”⁶ – that it can be temporarily revoked if going outside truly poses a “serious risk” of harm to self or others. Quite a major concession, one may think, but not good enough for our opponents.

The Failure of Creative Thinking

Creation of ‘fresh air’ spaces may be a challenge. But with the economic resources at hospitals’ disposal, it can’t possibly take as much money and effort as they say. There’s been a lot of talk (and some progress) toward reducing incidents of restraint and seclusion. But I think it’s time that denial of the outdoors is considered a type of seclusion.

After years of debate, constructive discussion about the cost of creating outdoor space has been conspicuously absent. Just how much does it cost to create an enclosed outdoor space? Would it really force hospitals to close entire units, or necessitate hiring armies of new staff, as has been argued?⁷

One of the hospital industry’s favorite arguments is that this issue impacts urban facilities the most, because urban facilities have less space. Yet most of the biggest (and most profitable) hospitals are in urban locations. Rooftop spaces are seen as ‘out of the question,’ even though several less-profitable hospitals have created them. With so many advances in construction technology, is creating a simple, enclosed space impossible? As I write this, an inpatient unit is being built in the building where I work, and a “fresh air” space is being created – in an extremely urban location.

Redefining Wellness: Smoking as a Right?

Most hospitals in the State have gone “smoke-free,”⁸ and it’s difficult to argue in favor of smoking, especially with so much focus on smoking as a public health threat. Not surprisingly, health care facilities love to boast about being “smoke-free.”

Now, I don’t smoke and I don’t condone the practice. But when someone is hospitalized, it’s likely they’re struggling. Is this really the right time to force them to quit cold-turkey? Although nicotine patches and gums are made available, I believe it’s extremely irresponsible to place such a huge stressor onto anyone when they are in crisis.

Adjusting brain chemistry is the primary focus of short-term treatment, so doesn’t nicotine withdrawal change brain chemistry, just as medication does? In any case, forcing people to quit adds yet another layer of control to an already-oppressive environment.

Another chestnut from the hospital lobbyists: “We are not aware of outside access being a significant issue for our patients, other than for cigarette smoking requests.”⁹ So, going “smoke-free” means access to fresh air is often eliminated as well. Two major coping mechanisms, stolen from us!

Perhaps most telling, an independent research group in Mass. conducted a survey of patient satisfaction with inpatient psychiatric hospital units. Of all categories, the area patients were least satisfied with was “time spent outside.”¹⁰ Despite this, a lobbyist once wrote, “We believe that it is clear…that [the fresh air bill] is not necessary.”¹¹

These lobbyists are the main messengers of what really happens in hospitals – the ones the media and policymakers go to for information. How have they become so removed from the truth?

The Mighty Profit Margin

The hospital industry is one of the most powerful lobbying interests in Massachusetts. Their presence is especially strong at the State House. These organizations present themselves as protectors of quality and good patient service. But I’ve come to realize that it’s ultimately The Bottom Line – Profit – that motivates them. They will champion a human rights cause if it saves money or doesn’t cost much; otherwise, they’re against it.

A very common refrain from hospitals and their lobbyists – “Our units are struggling. Fresh air could result in closing units.” But I see billions spent on large capital projects, advertising, and PR. I ask again, how much does it really cost to create a relatively small space? I have yet to get a straight answer.

Curiously, the most vocal opponents of the ‘fresh air bill’ are the representatives of the wealthiest hospitals in Massachusetts.

Consider Fiscal Year 2011’s 3^rd Quarter profit report. Of the top ten most profitable hospitals in the State (altogether earning close to $730 million), eight have psych.units.¹² Of these eight, seven deny ALL outdoor access to psych patients, according to my estimates. Total profit of these seven hospitals? Over $420 million.¹³

One need not look any further than #1, the largest and most prestigious hospital in the State – Massachusetts General Hospital (MGH) in Boston.

Mass. General is the flagship hospital of Partners Healthcare, the largest health care chain in New England. Partners owns 14 hospitals, a major rehabilitation network, 21 Community Health Centers, a vast provider network and even a medical school.¹⁴ MGH is a giant hospital – in recent years, opening a $500 million expansion and even a museum of its own history.¹⁵ According to financial statistics, MGH made $184 million in the 3^rd Quarter of the Fiscal Year 2011, with an operating margin of 7.43%¹⁶ (2-3% is usually considered healthy). MGH’s CEO made $2.5 million in 2010, while Partners’ chief took in $3.1 million.¹⁷

Yet, MGH’s lobbyists have fought fresh air ferociously, using “urban location” as an excuse. MGH’s psych unit is on the 11^th Floor, which would require staff to escort patients to the ground floor – can’t be done, they say. Yet MGH’s highly-touted rooftop Cancer Garden¹⁸, which they (correctly) cite as an illustration of the healing benefits of nature, is located on the 8^th Floor! It’s very interesting that “healing gardens” for people hospitalized with life-threatening physical maladies are so highly celebrated – and rightfully so – but not for those in psychiatric units.

One of MGH’s Chiefs of Psychiatry was quoted in the Boston Globe that “We would never want in the name of fresh air to jeopardize a life,”¹⁹ thereby implying that we were somehow interested in endangering lives!

Industry Lobbying

Two major hospital lobbyist groups in Massachusetts have spent (literally) thousands of dollars to defeat the “fresh air” bills.²⁰ One is the trade organization for privately-run psychiatric hospitals, and the other is perhaps the most powerful lobbyist group in the State: The Mass. Hospital Association. Both spend untold thousands on political campaign contributions, strategically donating to the most powerful lawmakers – especially those who have the biggest influence on health care (Governor, House Speaker, Senate President, members of Mental Health and Health Care Finance committees, Ways and Means Chairs, etc.)

While it’s not accurate or fair to say that all legislators are influenced by these contributions, the fact remains: corporate lobbyists have a very strong presence at the State House, and have successfully convinced legislators that fresh air is an “unnecessary” issue of great complexity. Many hospital executives and their lobbyists seem to regard the issue as comically trivial. In general, lawmakers seem convinced that the dismal state of human rights in psychiatric facilities doesn’t need improvement; that the Department of Mental Health has everything under control.

Something is seriously wrong with this, and we have relatively few allies in places of power. So the weight is on us, outside of government and high-finance lobbying, to prove that yes, we are still second-class citizens, and no, we cannot tolerate the status quo that keeps us in that position.

Ultimately, the word that comes to my mind most often regarding this issue is dignity. The “fresh air” issue is a powerful illustration of how the peer/survivor population is still seen as less deserving of basic dignity than others. Even something as necessary and elemental as nature can be and is easily taken from us.

A fellow activist once said, “fresh air is a metaphor for freedom.” I can’t agree more.

CODA

Fresh Air: From a Fight, Directions to Inner Peace

In a marvelously serendipitous way, working on this issue has profoundly impacted my own wellness and recovery – even beyond the satisfaction and increased self-confidence of the advocacy itself.

As I’ve learned more about the value of nature, I’ve also reflected on the times I spent inpatient at psych. hospitals, at intervals between 1989 and 2002.

In those difficult times, there was a DIRECT correlation between the periods I spent outside and the vague stirrings of hope I felt for the future – whether on nature walks in the warmer months, or brief nightly outings to a local coffeehouse in the bitterly cold New England winter.

Over time, I’ve developed a deep appreciation of nature and its capacity to heal. I’m not an “outdoorsman” by any means, but I need to get outside daily to reactivate my senses and feel truly ALIVE.

That awareness dovetails with a newfound interest in my own creativity, particularly photography and drum circles – both of which offer no demands and few limits. I see these interests evolving from a deep longing to make life simpler, to slow down the pace – to just BE. Nature hints at a long-absent spiritual direction – or at least, a roadmap to a better life on my own terms.

Often, very little in the “human” world makes sense to me. I make myself frantic with self-imposed busywork, and constant self-doubt. But nature is simply there. Amongst the vast mystery of the natural world, my anxiety over ‘where’s my place in the world?’ is held in check.

Our society is so often preoccupied by the impossible demands we put on ourselves. We remain “busy” in our plugged-in, on-the-go, multitasked world to maintain a sense of control. But nature is vastly bigger than us, and this perspective is a powerful healer. Nature is not only the strongest medicine; it leads us by example with messages both profound and simple. We ignore this at our own peril.

I really believe there is something about nature – that when you are in it, it makes you realize that there are far larger things at work than yourself. This helps to put problems into perspective. And it is the only place where the issues facing me do not need immediate attention or resolution. Being in nature can be a way to escape without fully leaving the world.

 – Lauren Haring, Student at University of San Diego, quoted in Richard Louv’s book “Last Child in the Woods: Saving Our Children From Nature-Deficit Disorder.”²¹

 

CITATIONS

¹Commonwealth of Massachusetts. Massachusetts General Laws, Chapter 123, Section 23. Rights of persons receiving services from programs or facilities of department of mental health [the “Five Fundamental Rights” law]. Web. <http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter123/Section23>

 ²Commonwealth of Massachusetts. 187^th General Court. H. 1430, An Act regarding rights of persons receiving services from program or facilities of the Department of Mental Health. [Introduced in the Mass. House of Representatives; 20 January 2011]. (Original version as filed). Web. Massachusetts General Court Website.<http://www.malegislature.gov/Bills/187/House/H01430>

 ³Commonwealth of Massachusetts. 187^th General Court. H. 4023, An Act regarding rights of persons receiving services from program or facilities of the Department of Mental Health. [Introduced in the Mass. House of Representatives; 20 January 2011]. (Redrafted version passed by Joint Committee on Mental Health and Substance Abuse, April 2, 2012). Web. Massachusetts General Court Website.<http://www.malegislature.gov/Bills/187/House/H04023>

⁴Commonwealth of Massachusetts. 187^th General Court. H. 4191, An Act concerning the right of persons receiving services from programs or facilities of the Department of Mental Health to daily access to the outdoors. [Introduced in the Mass. House of Representatives; 20 January 2011]. (Further redrafted version passed by Joint Committee on Health Care Financing, June 21, 2012). Web. Massachusetts General Court Website. <http://www.malegislature.gov/Bills/187/House/H04191>

⁵Dosick, Jonathan. “Risk Management and the Dignity of Risk.” Blog post. Mad in America.com. Jonathan Dosick, 21 May 2012. Web. <http://www.madinamerica.com/2012/05/risk-management-vs-dignity-of-risk/>

⁶Commonwealth of Massachusetts. Massachusetts General Laws, Chapter 123, Section 23. Rights of persons receiving services from programs or facilities of department of mental health [the “Five Fundamental Rights” law]. Web. <http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter123/Section23>

⁷Testimony of Massachusetts Association of Behavioral Health Systems, David Matteodo, Executive Director, in Opposition to H. 2871.Massachusetts Joint Committee on Mental Health and Substance Abuse, 11 June 2005.

⁸“MA Tobacco-Free Hospitals Honor Roll.” Healing Inside and Out: MA Tobacco-Free Hospital Initiative. Massachusetts Hospital Association website, 2011. <http://www.mhalink.org/am/template.cfm?Section=MA_Tobacco_Free_Hospital_Honor_Roll>

⁹Testimony [letter] of Massachusetts Association of Behavioral Health Systems, David Matteodo, Executive Director, in Opposition to H. 2871. Massachusetts Joint Committee on Mental Health and Substance Abuse [letter to Co-Chairs], 16 February 2006.

¹⁰Consumer Quality Initiatives, Inc. “All Inpatient Facilities Aggregated Consumer Satisfaction Report, 2003-2005.” Consumer Quality Initiatives website, n.d. Web. <http://www.cqi-mass.org/pdfs/PDF30%202003-05%20Inpatient%20Aggregate.pdf>

¹¹Testimony [letter] of Massachusetts Association of Behavioral Health Systems, David Matteodo, Executive Director, in Opposition to H. 2871. Massachusetts Joint Committee on Mental Health and Substance Abuse [letter to Co-Chairs], 16 February 2006.

¹²Commonwealth of Massachusetts. Executive Office of Health and Human Services, Division of Health Care Finance and Policy. Massachusetts Acute Hospital Financial Performance, Fiscal Year 2011, Q1-Q3. 2012. Web. <http://www.mass.gov/eohhs/docs/dhcfp/r/qtr/fy11-q3/hospital-financial-performance-fy11q3.pdf>

¹³Commonwealth of Massachusetts. Executive Office of Health and Human Services, Division of Health Care Finance and Policy. Massachusetts Acute Hospital Financial Performance, Fiscal Year 2011, Q1-Q3. 2012. Web. <http://www.mass.gov/eohhs/docs/dhcfp/r/qtr/fy11-q3/hospital-financial-performance-fy11q3.pdf>

¹⁴“About Partners HealthCare.” Partners HealthCare website, 2012. <http://www.partners.org/About/Default.aspx?id=1>

¹⁵“The Paul S. Russell, MD Museum of Medical History and Innovation.” Massachusetts   General Hospital website, 2012. <http://www.massgeneral.org/history/russellmuseum/>

¹⁶Commonwealth of Massachusetts. Executive Office of Health and Human Services, Division of Health Care Finance and Policy. Massachusetts Acute Hospital Financial Performance, Fiscal Year 2011, Q1-Q3. 2012. Web. <http://www.mass.gov/eohhs/docs/dhcfp/r/qtr/fy11-q3/hospital-financial-performance-fy11q3.pdf>

¹⁷Kowalczyk, Liz. “Hospital bosses paid up to $3m in 2010.” Boston Globe, 16 August 2012. Print.

¹⁸“Healing garden at MGH Cancer Center welcomes visitors.” Massachusetts General Hospital website, 2005. <http://www2.massgeneral.org/news/releases/092905heal.html>

¹⁹Mello, Felicia. “Right to fresh air sought for patients.” Boston Globe, 8 July 2007. Web. <http://www.dlc-ma.org/news/fresh_air_sought_for_mental_pati.htm>

²⁰Commonwealth of Massachusetts. Secretary of State, Elections Division. Lobbyist Public Search. 2012. <http://www.sec.state.ma.us/LobbyistPublicSearch/>

²¹Louv, Richard. Last Child in the Woods: Saving Our Children from Nature-Deficit Disorder. Chapel Hill: Algonquin Books of Chapel Hill, 2006. Print.