Smart Phones and Kids in the Mile High State

We are struggling with technology, perceptions, and parenting. The world is changing around us and as individuals I think we are each struggling with change at some level and in some context. 

I recently read about a bit of a backlash against technology, particularly for kids. CNN reports on an effort by a Colorado physician to ban the sale of smartphones for children under 13 years of age. The motivation is Dr. Timothy Farnum's perceptions of his own son's "addictive behaviors toward the technology." Denial of the technology to his son resulted in "a pretty dramatic, very violent outburst." Dr. Farnum is also disturbed by "his 10- and 11-year-olds' loss of interest in activities such as playing outside."

I was reminded, as I read that, of the recent legislative debate in Florida regarding "addiction" and "compulsion." I  wonder if Dr. Farnum's son is actually "addicted" to technology as he asserts, or whether he is a "compulsive" user? However, I have heard the lament about how little time young people spend outside these days. And, video game pervasiveness is perhaps empirical. NBC news recently reporting young millennials are working less, and the young men are gaming more. Whether "addiction" or "compulsion," are gaming habits a product of early introduction to our youth?

An organization has been founded in Colorado, "Parents Against Underage Smartphones." The collective goal is to control parenting and thereby enforce the common good (good government, good parents, good kids). They are seeking "150,000 signatures in order to get Initiative 29 on Colorado's ballot." If passed, the law "would require retailers to ask a customer their age or the age of the intended primary owner of the smartphone before the sale." The stores would "have to file a monthly report" documenting who bought smartphones and "how old the owner was at the time of the purchase."

Selling a smartphone to be owned or primarily used by someone under 13 would "result in a written warning, the second violation would carry a $500 fine, and the fine would double for each subsequent violation." The import of this is that smartphones are allegedly seriously bad for children under 13. For comparison, the Colorado Department of Revenue website outlines retailer fines for selling cigarettes to minors, and those fines are $250.00 to $15,000.00, after the retailer has been issued a warning. The penalties for cell phone (with the doubling) might well exceed fines for cigarettes. 

Colorado has elected to decriminalize marijuana, allowing anyone over 21 years old to purchase and consume it at will. According to Colorado.gov, adults that provide marijuana to kids "may face civil or criminal penalties" and retailers "can lose their license for selling marijuana to anyone underage." According to Norml.org, the sale or transfer of "not more than 1 ounce" to a minor can be penalized by 6 to 24 months in jail and fine of $1,000 to $100,000.00 ("transfer" is broad, a parent might be imprisoned or fined for providing marijuana to a child; but no penalty for the parent that provides a smartphone?). So, distribution of marijuana to minors remains criminal, and potentially more expensive than the proposed cell phone penalties.

As an aside, I have wondered about second hand smoke from marijuana. But in a recent Florida court filing, it has been asserted that "there have been no reported medical cases of lung cancer" attributed to marijuana." Perhaps there is no risk from "second hand" smoke as regards marijuana. I have found no prohibitions on smoking weed around minors. 

I have also seen a trick where one shields the combustion portion of a pipe and blows air, causing a stream of smoke to emit from the mouthpiece of a marijuana pipe. The context of this action, sometimes referred to as "shotgunning" is to propel smoke into a second person's mouth and thereby lungs. There is also purportedly something called a "shotgun kiss" that accomplishes something similar. I have not found anything specific on this, but wonder if someone providing smoke to a minor in this way would incur similar penalties?

Colorado.gov assures us that exposure to secondhand smoke "is unlikely to make you 'high'." But, it also notes that "marijuana smoke, both firsthand and secondhand. contains many of the same cancer-causing chemicals as tobacco smoke." It encourages smokers to "protect your children and family from the effects of second-hand smoke." Now that may just confuse everyone in light of the assurances that "there have been no reported medical cases of lung cancer" attributed to marijuana."

But, putting concerns of weed and second-hand smoke aside, "Parents Against Underage Smartphones," have instead elected to take on what they see as a greater risk to Colorado's children, the smartphone. Dr. Farnum admits that some have been critical of the effort, suggesting that the smartphone decision should be left to the individual parent (the same parent perhaps that decides whether to blow dope around the kids). Cell phone industry groups have suggested an alternative approach in which parents would "talk with their children about responsible use and set rules that are right for their family." It is unclear why that solution is not preferred. A professor of pediatrics cited by CNN advocates for setting usage parameters, parental monitoring, and conversations between kids and adults.  

As I wrote this, I was reminded of a 2015 movie about video games, Pixels. In it, aliens attack Earth with an assortment of video game iterations from the 1980s. Confronted by this challenge, the President assembles the best and brightest at the White House for discussions. One leader, Admiral Porter, has a recurring solution to the challenge, to "bomb" whoever is responsible, eventually suggesting "let's bomb google." There is a viable solution, no matter what, let's bomb something, or should we just ban something?

There is general support for the concept of technology addiction. A recent study concluded that "over a third of Internet users worldwide agree they have a hard time disconnecting from technology." The study seems to support that the impact of technology, and the struggle to disconnect, is more prevalent with teenage users. But, in that broad concern is another question or two. Should this Colorado ban address tablets, laptops, desk tops, or consoles like the PS4, Wii, or XBox? Are games and gaming more addictive or more damaging if they are on a phone? Some will argue that phones are more accessible and portable. Perhaps. But the marketplace is full of an assortment of "handheld" video game devices. 

There is evidence that studies support "screen time" can present risks of "expressive speech delay" in children under 2. A demonstrable harm attributed to use by the very young. But, there is no data cited to suggest that "screen time" on a cell phone is any different than the "screen time" on any other type of handheld or console device. 

So, will the state that seemingly leads the nation in the unprosecuted production and distribution of marijuana be the first state to monitor and regulate children's possession of smartphones? Is there risk in secondhand smoke (intentional or inadvertent)? Is the distinction between the vast array of gaming options and the smartphone valid? Would the better answer in these contexts be better parenting, parameters, and conversations? If you had told me ten years ago that smartphones would be seen as a bigger risk to kids than marijuana, I would have laughed. But, who's laughing now?

Offensive is Protected (somewhat at least)

There has been so much written about freedom of expression lately. There are those in our society that wish to never be offended. They seek government intervention to protect them from the statements of others. There are even those who advocate repeal of the First Amendment to the United States Constitution, arguing that both the framers were, and and the document is, "flawed." 

Fox News reported in 2015 that Ivy Leagers sign 'petition to repeal First Amendment. The National Review reported that "many Americans support making it a criminal offense to make public statements that would stir up hatred against particular groups of people." The NY Times reports that American universities have striven to provide "safe spaces" for people to shelter from speech that they might find "troubling or triggering." That has not been without controversy according to the Atlantic. 

In a general sense, America seems to be eschewing the age-old maxim that "sticks and stones may break my bones, but names can never hurt me," which most will remember as a recess mantra of some bygone era. Another favorite was "I'm rubber, you're glue, everything you say sticks right back to you." Ah, those were the days, remember recess? If you were looking for a definitive "non-safe zone" the elementary school playground was often a good bet back in the day. 

Incidentally, this year House Bill (HB) 7069 passed in Florida, which requires "free-play recess" for students. We have to legislatively force schools to provide recess. Don't get me wrong, I like recess (why not a statute that mandates "free-play recess" for workers' compensation judges?). But, I digress. 

Can we make the world "offense free?" There are efforts underway. There are street names being changed, college buildings being renamed,  statutes being removed, statutes being replaced, emblems being reconsidered, and even lawsuits over state symbols. Each represents some level of offense perceived by someone. However, recognizing that people are individuals, can we build an environment that is not offensive to anyone? One might win the Nobel Prize and yet not enjoy universal acceptance or admiration. Can the city name the street I live on after such a Prize winner with whom I disagree?

This subject arose again recently with the United States Supreme Court's decision in Matal v. Tam, 137 S.Ct. 1744 (June 2017). Simon Tam is a singer and his band is called "the Slants." Mr. Tam tried to register "THE SLANTS" as a trademark, to protect the intellectual property of his band. The Patent and Trademark Office (PTO) denied that application under a provision of "the Lanham Act" (note there is no "g" there, no relation whatsoever). This law prohibits "registration of trademarks that may 'disparage . . .or bring  . . . into contempt or disrepute' any 'persons, living or dead.'" The PTO found the term "slants" offensive in this context and therefore denied Mr. Tam's application. He sued, after all that is the American way. 

This is commonly referred to as the "disparagement clause." And, there is certainty that the term "slants" can have a negative and even insulting connotation. But, Tam is of Asian descent and he "chose this moniker in order to 'reclaim' and 'take ownership' of stereotypes about people of Asian ethnicity." Similarly, the band has named its albums "The Yellow Album," and "Slanted Eyes, Slanted Hearts." This appropriation is not new per se, others have expressed that the same logic, of appropriation and ownership. It has been employed by others who appropriate insulting epithets directed at their own perceptions of identity. There is a perceived power in appropriating derogation and denying words power over one's self. 

An eight judge unanimity of the Unites State Supreme Court concluded in Tam that employment of the "disparagement clause" is an unconstitutional infringement of "the First Amendment's Free Speech Clause." The Court rejected the government's contention that by granting such a government protection (trademark or copyright) that the speech would become "government speech." In a humorous paragraph, Justice Alito noted

For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make.believe” (Sony), “Think different” (Apple), “Just do it” (Nike), or “Have it your way” (Burger King)? Was the Government warning about a coming disaster when it registered the mark “End Time Ministries”?

These are great examples. By the same token, is the government endorsing someone is actually a Good Neighbor, that you will actually Be all You Can Be, or can eat your way to success with the Breakfast of Champions? Is government endorsing that we Eat Fresh, or Got Milk, or that something might actually be Good to the Last Drop? Let's face it, a great many trademarked promotional phrases make some pretty strident promises. 

Justice Alito wrote that if trademarks were government speech, then undeniably "The Federal Government is babbling prodigiously and incoherently" (some might find such a characterization to be offensive, but I am sure none was intended by the Justice). It is possible that this potentially offensive characterization hurt the feelings of some few government lawyers at the PTO (who may have simply adopted a "sticks and stones" stance in response, or who may now be seeking counseling to assuage their insulted feelings). 

This characterization of trademarks being "non-government speech" is compared by the Court to actual government statements. Coincidentally, the Court has held that "monuments in the park represent government speech." That distinction may be of interest in the instances of building renaming, statute removal and more discussed above. The Court similarly dismissed comparisons to the content of messages on state-issued, state-owned, vehicle license plates. These actually are government speech, and perhaps treated differently than individual speech. 

So, the law currently, seemingly, supports that free speech protections of the First Amendment protect the private ("non-government") expression of ideas that are offensive to some. Mr. Tam has won his right to appropriate and copyright a term that to some derogates his heritage, but by which he refuses to be personally offended. He has won the right to use and protect the term. 

It is nonetheless possible that others of Asian descent and heredity might nonetheless take offense at THE SLANTS. It is possible (or factual) that Native Americans, or those of native American descent, could find the Washington Redskins trademark as offensive. That is a trademark that has similarly been in the news in recent years. A federal judge in 2015 ordered "Redskins" and other trademarks cancelled because they were "disparaging to a substantial composite of Native Americans." 

And, there will be discussion in the future about whether our individual identity, or identity perceptions, matter in the delineation of offense. Is it acceptable for Mr. Tam to appropriate the potentially offensive "SLANTS" because he is of Asian descent, or will equal protection be afforded if a non-Asian seeks to use some similar potentially offensive term? Does the identity of the user matter? 

That will be at least two-fold, does identity matter in trademark (will the non-native american owners of the Redskins receive the same treatment as Tam), and does the identity matter in public perception (will society be more forgiving of spoken utterances of derogation if they are spoken by those they originally or traditionally disparaged)? Despite receiving a trademark, might some individuals nonetheless stage protests against either the Redskins or the Slants?

The fact that the law protects this speech seems settled, at least in this PTO or trademark context. But, that does not mean that language will not offend or hurt (the fallacy of "sticks and stones" is that words really do sometimes hurt, like it, admit it, or not). Does it matter in that context that the speaker is self-deprecating or appropriating as strength (as in Tam or Kanye), as opposed to purposely insulting others? May a listener be offended by such expression despite the identity or intent of the speaker? 

In a far broader context, is it possible to render the world an "offense free zone," or even to render smaller "zones" so? It seems a difficult proposition, particularly in light of the subjective nature of people's perceptions. What might seem innocuous to many in Tallahassee (an FSU Seminole jersey, bumper sticker, or lapel pin) might be downright offensive to some whose loyalty lies in other 'villes around Florida. Can one freely eat a hot dog without fear of offending some passing vegan? There seems so much that might offend, upset or disconcert. I have seen fist fights erupt over the relative desirability and reliability of the Bow Tie versus the Mopar. 

It is a fascinating discussion, about speech, expression, government involvement, offense, perceptions, feelings, and more. Perhaps it will turn out that each of us will invariably hear and see things periodically that offend or hurt us. Not necessarily because someone intended to hurt us, but because the speakers have no way of knowing our individual thoughts, beliefs, and trigger points? Is it possible that there might be a little "snowflake" in all of us, but that some of us internalize and cope with our offense more? Or, is "snowflake" per se offensive and inappropriate to say or to trademark?

The United States of Xanax

A recent NY Times article caught my eye. No, I do not subscribe to the Times (or any paper for that matter), but this story was found sitting next to me as I recently awaited a flight. The headline was "An Anxious Nation," but when I looked it up online for this post the name had been changed to "Prozac Nation is Now the United States of Xanax." 

The NY Times reports that Americans are anxious. One source cited in the article claims that “If you’re a human being living in 2017 and you’re not anxious, there’s something wrong with you.” That may be just a bit disconcerting for the rest of us I guess. But, perhaps it is just a matter of vernacular, as the author suggests that we are perhaps merely using the word "anxious" more often and more freely. It is suggested that it "has become our everyday argot."

The analysis draws a comparison between anxiety and depression, which the article stresses "are medical conditions," but suggests that "anxiety is (also) starting to seem like a sociological condition." And, the suggestion is that it may begin with over-scheduled, helicoptered youth targeted on the successful end-game, with too little focus on just growing up. It suggests that anxiety has become a "shared cultural experience" that is spread to us all through constant exposure to news and social media. In support of this hypothesis, it is suggested that today's "it" diversion, the fidget spinner" has found a home with a great many people, an endless expenditure of "nervous energy rendered in plastic and steel." 

The Times notes that youth from 13 through 17 have high volumes of diagnosed anxiety disorders, between 26% and 38% depending on gender. Anxiety is said to be "the most common  mental health concern" on American college campuses, surpassing depression. Thus, the revised article title reference to Prozac (for depression) and Xanax (for anxiety and panic disorder). College students report that they suffer from anxiety, having focused for years on success. 

One student described how " the pressure began building in middle school when she realized she had to be at the top of her class to get into high school honors classes, which she needed to get into Advanced Placement classes, which she needed to get into college." This is a cycle that I have certainly heard over years of parenting and extra-curricular activities. The quoted student has seen two effects. First, she now attends prestigious University of Michigan. But, she also has "has A.D.H.D., anxiety and depression."

The Times attempts to draw comparisons between the generations, suggesting there is some logic in the evolution from diagnoses of depression to anxiety. There is suggestion that faith in national leadership has affected generations, who have little belief in those who might explain to them where they fit in the grand scheme of life. The Times lauds a former "low key" President and laments "a fast-talking agitator from New York," but seems to ignore that America's anxiety is not a months-old phenomena. 

There is a conjecture that people lack self-confidence, foisted persistently on the petard of social media. Conversation is perceived as a dying art. A trip to virtually any eatery will surround you with groups in social outings, but submersed in their individual digital nirvana. I recently saw a group of youths sitting and keyboarding. There erupted a coincidental laugh by all present. I inquired how that coincident was choreographed, and learned this group was sitting together, but was texting with each other in "conversation" rather than speaking. Their out-loud laughter a spontaneous human reaction to their techno-interaction. 

The Times suggests that anxiety stems from "the Cold War, staring China, North Korea, and Russia." But, it conveniently omits mentioning that the Boomers who grew up in the real Cold War had Armageddon drilled into them, from the nightly news, to school-sponsored "duck and cover drills," (which drills the Times does acknowledge later in the discourse). And, despite that very real Cold War on the heals and memories of the greatest war in history, fought by America's Greatest Generation, anxiety was still not so prevalent in the 1970s and 1980s. 

The Times seemingly struggles to associate this anxiety with the current state of America, and ignores the Billy Joel adage that "the good ole days weren't always good." The 1930's brought economic devastation, the 1940's brought unprecedented global war, the 1950's a chilling Cold War, the 1960's unrest, protest, and violence, the 1970's the Great Inflation. Sure, the 1980's might seem a respite, but only because you choose not to remember Sammy Hagar, Twisted Sister, and the Scorpions (just examples). As Berkely Breathed reminded us periodically of the 1980's "there's a whoooole lotta higgledy-piggledy happening out there," and there was.   

Perhaps the problem is not that the world is in a state of confusion, conflict and disarray. That situation has seemingly been fairly consistent (I cannot remember a time when there was no violence or discord in the middle east, can you?). Perhaps the problem might be addressed by something other than lamenting the passing of the "good ole days" (that weren't always good), and wishing. 

The Times article, despite its various wild pitches, does perhaps identify one of the real issues. That is the access to information. Perhaps in the 1970's we could all just choose to ignore the nightly news. Perhaps it was easier, before social media and the 24 hour news networks, to simply ignore some or all of what was going on around us? Perhaps we were happier with believing we were overweight, athletically challenged, unskilled, awkward, shy and more without some "shamer" reinforcing our individual weaknesses?

But, I recently listened to a program that may bring another aspect to light. This speaker, whose name I missed while driving, lamented that the great onslaught of helicopter parenting, participation trophies, and more have produced a generation or two of Americans that don't deal well with adjusting. The speaker suggested that all of those painful childhood experiences (not getting picked for the team, not being invited to the party, not having a date for the dance) all confronted us with uncomfortable and painful results. 

That speaker claimed that we are who we are today because we were forced by those experiences to get back up, dust ourselves off, and move on. The suggestion is that by making our world "safer" (emotionally and physically, but certainly artificially) for children in recent decades we are depriving them of those challenges, defeats, and resulting opportunities to recover, learn, and grow. 

I am no psychologist. But, I see some merit in The Times' quote of Mr. Stossel that “Every generation, going back to Periclean Greece, to second century Rome, to the Enlightenment, to the Georgians and to the Victorians, believes itself to be the most anxious age ever.” And in that vein, so that you understand that I am not parent-bashing, perhaps every generation of parent perceives itself to be the most challenged. Each generation of parents has undoubtedly intended the very best results and success for the next generation. 

So, while there may be plenty about which to be anxious, perhaps we can find solace in Billy Joel (no, not the "good ole days" quote). Let's perhaps instead "keep the faith," "listen to our 45's" and remember it is "wonderful to be alive," whatever that brings. And, if someone decries your truth or opinion on social media or the nightly news, turn it off. Who needs them anyway?

Does Farr's Law bring us Good News?

Narcotics are back in the news. I have not been effective at hiding my feelings about opioids. I have applauded Opioid Guidelines from the CDC. I have lamented the sheer volume of Americans that are dying of drug overdose. In Like a Broken Record, I recently updated the fatality rates,and frankly the numbers are staggering. It appears that despite a variety of efforts, national and local, the situation is not improving. Death by overdose 

I have noted Ohio's challenges with opioids, and the prescription drug monitoring program efforts. Ohio was noted in prior posts as having the fifth highest drug overdose death rate in the nation. Perhaps that is not so unexpected, it is the seventh most populous state. But Ohio has nonetheless made the news regarding overdose. In 2017, NBC News reported that one Ohio coroner lacked storage capacity for the bodies, and had resorted to a special trailer. 

NBC recently reported that in Florida there is a Death Race in which first responders rush from one overdose to the next. This report noted that in one small Florida town first responders recently attended to three overdose calls in two hours, all before the sun set one Friday evening. A firefighter was quoted concluding "The overdoses are everywhere." It is not a problem in specific populations or neighborhoods, it is now ubiquitous. Now, first "responders find people who have overdosed in restaurant bathrooms and on park benches, in private homes and while driving through busy intersections." 

Death Race concludes that the overdose death rate in 2015 was 52,000 Americans. That could be the entire population of Lompoc, California, or Cape Girardeau, Missouri. That is about the seating capacity of Sun Bowl Stadium (below, courtesy of Wikipedia.org) at the University of Texas, El Paso.  

That is a great many people, every year. 

The first responder battle against overdose has been aided by a product called Naloxone. It is an antidote that counteracts the effects of opioids. It is now being carried by first responders in most counties and towns. It has had immediate results in some cases, actually reviving patients that have lost consciousness following overdose. 

There are complaints, however, that first responders struggle to keep Naxalone in stock. According to the New England Journal of Medicine, Naxalone has been around for decades, and is produced in generic forms. The approval of "autoinjectors" to facilitate use by those without training was fast-tracked in recent years. States have worked to put Naxalone in the hands of people who could use it to prevent overdose in family members and others. Despite the availability of this drug solution to drug culture, fatalities continue to rise. 

Prescription Drug Monitoring Programs (PDMP) have been instigated in almost every state. Missouri remains the last hold-out, failing to see the benefits of monitoring prescriptions. The PDMP tool is showing progress. There is a great deal of effort being invested in slowing overdose and abuse. But overdose continues to plague us. Every few minutes, another American dies of overdose, leading me to ask What Worthwhile can you do in 11.2 Minutes. 

The Partnership for Drug Free Kids, says that drug overdose is expected to be about 52,000 again in 2017, about 16.1 deaths per 100,000 people. But it is not likely to be proportional around the country (some localities will be hit harder than others). In 2015, according to the Centers for Disease Control (CDC), the leading states were "West Virginia (41.5 per 100,000), New Hampshire (34.3 per 100,000), Kentucky (29.9 per 100,000), Ohio (29.9 per 100,000), and Rhode Island (28.2 per 100,000)." 

It is a relief to not see Florida in that group. However, the CDC says that Florida is among states with "statistically significant increases in drug overdose death rates from 2014 to 2015." That group of increasing states "included Connecticut, Florida, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Washington, and West Virginia." 

It is probably significant that West Virginia, Ohio, Rhode Island, and New Hampshire made both the list of highest rates of death and the list of states experiencing "significant increases." 

But, there is perhaps light at the end of the tunnel. The Partnership for Drug Free Kids claims that "drug overdose deaths may peak in 2017." It cites "experts at Columbia University" and concludes that death rates will begin declining in 2018. Then by "2034 the overdose rate could fall back to rates last seen in the early 1980s." This, according to a study published in Injury Epidemiology, discussing Farr's Law. 

Farr's Law "states that an epidemic usually follows a symmetrical curve that rises before subsiding." This paradigm has been used to "map" and study outbreaks such as "the AIDS epidemic, smallpox outbreaks and cattle disease." The authors concede that application of Farr's Law has met with "mixed results." Perhaps this "law " is "more what you'd call "guidelines?" (Pirates of the Caribbean, Curse of the Black Pearl, 2003). 

It is also interesting that there is no distinction being drawn between the nature of events discussed. Certainly, addiction is a medical condition in many instances, but see Legislative Words. Some will nonetheless question whether Farr's Law can be effectively used to predict epidemiology of drug death, which has a very significant human action component. They will posit that overdose is not consistent with disease processes like smallpox, and that therefore spread and effect cannot be mapped or predicted using such a model. 

The Injury Epidemiology authors endorse the role of prescription medications espoused by others. They "note that when access to prescription medication becomes more difficult with enforcement of prescription drug monitoring programs, there is a danger that people will shift to alternative substances such as heroin." They encourage "multifaceted interventions such as the expansion of prescription limits, increased drug screening, requiring pain contracts, and the distribution of Naloxone to first responders,” 

The authors contend that if death rates begin to recede in 2018, it will be attributable to these and other efforts that have been deployed in response to our overdose pandemic. They contend that these educational and treatment efforts are similar to, and will effect similar results as, other epidemiological approaches to various medical condition challenges like smallpox. 

But, an Ohio city councilman has proposed another solution, FoxNews reported. This plan would require that people perform community service to compensate this city for the cost of medical care received from first responders. Those who have not completed that service requirement would not be eligible for first responder services after "two overdose rescues by first responders." So, limited resources (first responder's time, Naxalone, etc.) would be rationed based upon a patient's past performance. 

Overdose once, receive care, and begin to pay back with community service. Overdose again, receive care, and begin to pay back with community service. Overdose a third time before that community service is complete, under this proposal, and you are seemingly on your own. Dan Picard, the Ohio city councilman, apparently envisions emergency dispatchers evaluating incoming 911 calls for help, and "If the dispatcher determines that the person who's overdosed is someone who's been part of the program for two previous overdoses and has not completed the community service and has not cooperated in the program, then we wouldn't dispatch.” 

In a Washington Post story, it is reported that there are police agencies whose officers carry Naxalone. However, there are sheriffs and police chiefs who view that first responder role as one for firefighters or emergency medical technicians (EMT), not police officers. There is a debate regarding this distinction. One Ohio sheriff says “I'm not the one that decides if people live or die. They decide that when they stick that needle in their arm.” The Sheriff is in the same community as the councilman proposing the third strike rule. 

As I read that story, I was reminded of the movie Airplane, and its parody of various 1970s "point - counter point" news segments. In this parody, Jack Kirkpatrick (a fictional character in the movie) is addressing the fact that a plane full or passengers is aloft with many ill and a plane piloted by one of the passengers, their situation is serious. Jack makes his point to his co-host, saying "Shanna, they bought their tickets, they knew what they were getting into. I say, let 'em crash." 

It was a funny bit of Hollywood sarcasm. But is Councilman Picard's proposal different? Are we at a point where some will die because responders will not be dispatched? Some will undoubtedly note that dispatchers are daily engaged in high-stress, difficult decisions, and that they cannot be asked to take on such additional "financial" distinction decisions. It may therefore be unrealistic. Even without that, however, will we reach a point where people will die because of the sheer volume of overdose and the simple fact that there are only so many first responders, or so much Naxalone available? 

In the midst of America's response to opioids, perhaps it bears remembering that this county was led into the panacea of opioids in the 1990s. It was led in by the manufacturers of various pills and a medical community all to willing to distribute them. There were those who prescribed them freely, and there were assurances that Opioids were the solution to pain. We were assured that there was no down side, no danger, no problem. And we were mislead. More study should have been done, better understanding should have been demanded. We failed to be skeptical and failed to demand valid proof before stepping into this abyss and now people are dying at epic rates despite our best collective efforts to address both the new prescriptions, and the growing illicit supplies. 

I know I sound like A Broken Record, but people taking these drugs are not alone in their suffering. Their families, their children, are increasingly affected by the decisions to use drugs. When overdose takes them, they leave behind people who loved them, whose lives were supported or enhanced by their presence. And as we look forward to (hopefully) the Farr's Law predicted downtrend in overdose nationally there are those who predict that we may be rushing headlong into similar acceptance of other chemicals. Some lament that rush to acceptance of marijuana, questioning whether there is currently enough data and study to make valid conclusions about its side effects and potential complications. 

There is hope that the Farr's Law predictions will be valid. That we could see a marked decline in overdose death in coming years is indeed an encouraging thought. That we could otherwise witness difficult decisions about allocating the limited resources of first responders is troubling, and it illustrates that all resources are limited and allocation decisions are always difficult. But, allocation is more troubling when death is the probable outcome. Will the Farr's Law prediction bring relief, or will people continue to die. Could we have avoided this situation entirely? Tough issues that require thought as people continue to struggle with addiction, death, and familial/social devastation.

#opioids
#workers compensation
#farrs law
#overdose
#naxalone

A

An Anonymous Letter in November

I received a copy of an anonymous letter last November. It was addressed to Governor Rick Scott. The writer expressed concerns and questions about Florida's drug-free workplaces. As it was anonymous, it is very hard to provide a response to the writer, but perhaps that is a strength of blogs? If that letter writer does not run across this posting, perhaps it will be of assistance to others. 

One primary point worthy of noting is that this letter writer appears to have personal knowledge of an injured worker. Despite this knowledge, questions are asked in an anonymous format, and late in the claims process. While the writer laments the outcome that she/he perceived, nothing substantive was apparently done by the writer to express her/his concerns in a more timely manner. Some may interpret the writing as driven by perceptions of an eventual settlement more than by safety concerns for the employee or coworkers. 

The writer asks are "State offices not drug-free work places?" And, "why would the State's definition be any different than that of a private company with the same policies in place?"

Section 440.09(3), Fla. Stat., provides some guidance:

Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician.

There are also provisions in Section 440.102, Fla. Stat. that might be of interest. It provides for an employer to establish a "drug-free workplace program." In the event such a program is implemented, there are definitions (1), drug testing (2) and (4), requirements (3), (5), (6), and (8), benefits for the employer (7), standards (9), and rules (10). It is a long statutory section, with a great deal of information.

The November writer asserts that "in private business, when an employee is injured on the job, they are drug tested before given Workers' Comp." The writer concludes that "the employer has the right to fire any employee who comes to work impaired on alcohol or drugs." And, questions "why then is this practice not a policy with the State?" These are fair questions. I know of no reason that an employer would be prevented from testing, within the parameters of the law. And, that would include the State of Florida as an employer. But, that decision would appear, state or private, to be up to the employer, and dependent upon the employer's perceptions and knowledge. 

Then details emerge from the November writer's anonymous letter. The writer alleges that there is a current claim involving a state employee. Allegedly, in "7 or 8 years of working for the State," this employee has suffered 7 or 8 work accidents "most based on their own clumsiness." The writer complains that "never once was this claimant tested by the State for drugs." The writer complains that this person would certainly test positively, "had the State done their job." The result, is that "taxpayers have footed tremendous medical bills for this person and now stand to pay them a substantial settlement for their impairment-related accidents." 

The writer says that this particular recovering worker has since left State employment, but continues to suffer accidents as a result of being "always stoned." Allegedly, this employee came to the State after prior work injuries, positive drug tests, and termination from other employment. The description evokes conclusion of a very persistent history of work accidents. The writer questions "why have a policy in place and not enforce it when it affects a worker's stability and ability to do their job and remain safe while in the employ of the State?"

Because the case described by the writer was then "awaiting settlement/trial," the writer concluded it "would be pointless" to perform drug testing now, "as it would prove nothing about their condition/impairment at the time of their injury." And, they allege that this is "the state's fault," as it "did not do its job." Whose job is it to protect workers? Certainly some measure of responsibility is the employer's. But, does some responsibility fall on others? Do co-workers and the public share any responsibility when they see and perceive risks?

What is the harm of working while impaired by drugs or alcohol? The fact is that either can change perceptions, reactions, and performance. Either can put a worker at risk of injury to him/herself or others. Impaired workers, like impaired drivers (and an employee might simultaneously be both) can pose a risk to themselves, coworkers, and the public. As I read the anonymous letter, I had to wonder where was this letter writer as 7 or 8 work accidents occurred? Why was the employer not contacted much earlier in such a progression, perhaps after the first accident?

Recently, the Montana Standard reported on a workers' compensation fraud conviction there. An employee reported a work injury, but later admitted that he was hurt on his own time one Saturday while motorcycling. After the accident was reported, a tip to the fraud hotline led to questions asked, a witness found, and ultimately a guilty plea. The Montana Attorney General summed up citizen participation in the case:

This case is a good example of how vigilant and honest Montana citizens can alert authorities to bogus claims and help conserve work comp monies for injured workers who truly need assistance with medical expenses and lost wages.

The Florida letter writer appears frustrated because she/he perceives an employer, the State, is under-performing as regards at least one employee. But, it is impossible to know much in this setting of anonymous complaint. It is possible that the complained of worker has in fact undergone testing for impairment, and passed. It is possible that the employer has observed no signs or signals that would cause suspicion or justify testing for drugs. It is possible that the letter writer might have engaged 7 or 8 years ago and reported a possible safety issue to that employer, before anyone was hurt. 

One of the problems with workers' compensation, which it has in common with much else in life, may be the ease with which a Monday morning quarterback can question and criticize. It may be easy in retrospect to recognize issues, such as an impaired employee, a missing safety device or guard on a machine, an employer characterizing employees as independent contractors, and more. Afterward, there may be inclination to criticize and fault. But, if such information is known and thereby Floridians are at risk, then would it make sense to say something before 7 or 8 injuries?

Certainly, there is reluctance to being the squeaky wheel. There is reluctance of outsiders to "getting involved." But if people's safety is at risk, don't we all owe it each other to say something? To say something before 7 or 8 injuries? It is easy to criticize in retrospect, and much more difficult to become involved prospectively. But if an accident could be prevented, potentially a life saved, is that not the better approach? The Florida Department of Financial Services has a website with information on reporting concerns, including a webform and phone numbers with which to contact them. 

The life you save, the injury you prevent, are worth your time and trouble.

Protecting Privacy in Florida

Two Florida WorkCompCentral stories recently caught my eye. In Under Settlement, Telemedicine Doc to Stop Treating Injured Workers, the recruiting of patients was described. And in Three New Comp Laws Signed by Governor and in Effect Saturday, the signing of House Bill (HB) 1107 was announced, one of a few 2017 bills affecting workers' compensation. 

The two stories may be interrelated. And a third recent Florida story might be intertwined also. In Compounds Billed at $1,000 or Greater will Require Preauthorization, we learned that specialized medication creams can be expensive. The story notes that some of these prescriptions can cost as much as $30,000 for a single tube of medication. 

The first story, Settlement, describes a "Florida doctor who recruited workers’ comp patients." He used public records to identify injured workers, recruited patients through direct solicitation, and provided them with "telemedicine visits" for their work injuries. And, the result of at least some of those visits was apparently a prescription for compound medication. 

In Florida, physicians treating injured workers' are primarily selected by the employer or carrier. An injured worker retains the right to seek emergency care from other providers in certain circumstances. The injured worker also has a statutory right to transfer care to a second provider (also usually selected by the employer/carrier). That opportunity is referred to as the "one time change." There are situations in which a request for one time change, not acted upon by the employer/carrier rapidly enough, may even afford the injured worker their choice of physician. 

The doctor in this Settlement story, Samuel J. Gerson, would recruit patients for telemedicine examinations and prescriptions. Some alleged that the method and phraseology used in the recruiting may have allowed some injured workers to believe that the services had been recommended by the insurance company or their worker's attorney, but that Dr. Gerson did not even inform either of them about his solicitation for patients. Some of the paperwork completed by the workers suggested or said that the worker was requesting to change physicians, selecting Dr. Gerson, which could be seen as the patient's "one time change." The insurance carriers were then billed for the telemedicine services. 

Dr. Gerson agreed in the settlement to stop treating workers' compensation patients in Florida. He will not even be affiliated "with anyone providing medical treatment for injured workers." He also agreed to "pay a $5,000 fine." In exchange for the doctor's agreement to these, the Florida Department of Financial Services "agreed to not refer" complaints against the doctor to the Florida Department of Health." That agency has authority over Dr. Gerson's Florida medical license. The WorkCompCentral article details Dr. Gerson's credentials and previous interaction with California's physician licensing authorities. 

Dr. Gerson, and a company with which he was affiliated, obtained the names and contact information for those injured workers from Florida public records. The second story, Three New Comp Laws Signed by Governor and in Effect Saturday, notes Governor Scott's June 26, 2017 signature on House Bill (HB) 1107. This enacts an "exemption from public records requirements for the personal identifying information of an injured or deceased employee." In other words, it removes vital information from the public domain and protects the privacy of injured workers.

The new law has a limited scope, protecting the records and information of injured workers that is "held by the Department of Financial Services pursuant to the Workers' Compensation Law." The Florida Division of Workers' Compensation is part of the Department of Financial Services. Therefore, this law will protect the information that is reported by employers when they file the notifications of injury under Chapter 440, such as the first report of injury, See Section 440.185(2), F.S., claim expenditure reports, and more. 

Information in Florida is generally available. The "Sunshine State," has a broad "Sunshine Law" protecting public access to volumes of state information. The 2017 law just signed exempts injured worker information from this broad policy of public access. And, this is not the first time that injured worker's information has been protected. From 1998 to 2003, Section 440.185(11) protected such information. It provided:

(11) Any information in a report of injury or illness filed pursuant to this section that would identify an ill or injured employee is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution."

However, the 1998 legislation included a "sunset provision" common in Florida law pursuant to "the Open Government Sunset Review Act of 1995." Following that constraint, the provisions of Section 440.185(11)(1998) were nullified by the passage of time. That law itself stated that the exemption from public disclosure would be "repealed on October 2, 2003, unless reviewed and saved from repeal through reenactment by the Legislature." 

Most laws that are passed remain on the books unless some future legislative action removes them. As a result there are a great many laws around the country that various people think should be repealed. Supposedly, these continue to include everything from restrictions on the duration of bingo games to proper etiquette of poultry crossing roads. The "sunset provision" is intended to effect the opposite outcome, that laws will automatically cease, unless there is further legislative action concluding that they remain necessary. In 2003, the protections of Section 440.185(11)(1998) were not re-enacted, and they disappeared from the statute. 

The newly signed HB 1107, fourteen years later, will protect the privacy of injured Floridians through a new statute section, 440.1851, which is more complex than 440.185(11)(1998). It will likewise protect privacy for five years, but will disappear from the law on October 2, 2022 unless re-enacted by the legislature. Thus, a physician wishing to solicit patients as Dr. Gerson did will have more difficulty locating and contacting patients. The provision will also diminish the volume of attorney solicitations which injured workers receive; some believe that there are many attorneys that have employed direct mail solicitation of injured workers using the information formerly available from the Division of Workers' Compensation. 

The potential for affecting the injured worker's rights is likely part of the drive to protect privacy in this manner. An injured worker with a singular statutory right of "one time change" may wish to use that carefully. Anyone that hires an attorney for any legal process may want to consult that attorney before taking any action that could affect rights (as in speak to your attorney before police questioning, that is what you hired the attorney for). The potential for unsuspecting injured workers unwittingly exercising their "one time change" without the knowledge of their attorney or the carrier may justify this newly enacted constraint on public information. 

But, the third story Compounds Billed at $1,000 or Greater will Require Preauthorization may be worthy of consideration also. In addition to the harm on the injured worker, that is the unwitting exercise of the "one time change," the solicitation by Dr. Gerson may have led to the prescription of a compound medication. Those compounds have been in the news recently in various states. There is a growing concern with the cost and efficacy of compound medications. States like Florida and Texas are taking steps to restrict them. And, it is possible that the involvement of compound creams in Dr. Gerson's telemedicine practice also influenced perceptions and state reaction. 

Thought the three stories may seem unrelated at first blush, it is suggested that they are intertwined to some extent at least. It may be worthy to consider that workers' compensation is a large and complex system, with many facets. When something affects one, there may be results that affect more. 

Sharing Everything or is it TMI

Young people today sometimes speak in acronyms. It is not necessarily that they like them, it may be simply that they do not want the rest of us to understand them without consulting Google. A physician once told me that is why doctors use Latin words, but I digress. One of my favorites, largely because of its great versatility is "TMI," for "too much information." I have heard this one used in a great variety of contexts, from a sincere "stop talking, that is too much" to a more "tell me more, tell me more, like does he have a car" context (Grease, 1978, once considered by some to be a bit racy, but strictly "G" in the new millennia). 

Today, I focus on TMI. I am amazed sometimes at the amount and detail of information that people are willing to share about themselves. From Instagram and Facebook postings with pictures of every meal they eat to detailed discussions of personal issues, the Internet is simply full of detail. If you had told me thirty years ago that people would voluntarily disclose so much of their personal lives, I would have laughed. Of course, it is obvious I would not have had the last laugh; the joke's on me I guess. 

So, I should perhaps not have been so surprised recently by the story published on Yahoo about a lady and her purchase of underwear. She was dissatisfied with the result of her purchase. She might have quietly returned them to the retailer for an exchange. She might have worked around the issues. She did not, and instead photographed them for the Internet. 

These undergarments were supposed to be organized by the days of the week, with one pair for each day clearly labelled. The purchaser was upset that the set contained no pair labelled "Monday," but two pairs labelled "Thursday." Some among us might have simply worn one of the Thursday pairs each Monday, and gone on with life. 

This purchaser, though, instead posted on social media, noting that such labelled garments might only be attractive to an "obsessively organized person." She said she was "unprepared for the horror that awaited me upon opening the box." She explained someone that would just move on and wear a Thursday pair on Monday, would be a person from among "the illiterate or the criminally insane." If your underwear is mislabeled, it is a "horror," and if you are not bothered, you have serious issues according to this purchaser. 

The comments (it is not a real news story if no one comments, assails some group or population, or makes accusations of ignorance or worse), were to the effect that this story was "not news," that the purchaser might have certain bigger issues, and humorously that someone must have gotten stuck with two pairs of "Mondays." But the best comment perhaps was someone suggesting "the real horror is how many people don't get that this was just a light-hearted joke;" the posting, not the mix-up.

So, in the process, all of this person's social media connections learn something about the purchaser (as does the world because it went viral and made the news). What in fact is learned is debatable, and may just be "she has a great sense of humor." But it reminded me of a nagging feeling that perhaps people are just sharing a little too much on social media, as in "oh, that's your underwear? TMI." 

Another story struck me in a similar vein, that is "was that TMI?" It was more on the level of actual horror however, at least I believe most will agree with that adjective. This ABC News story is about Makeva Jenkins of Lake Worth, Florida. In 2013 she was homeless, but had one of those spirits that strives for success. Just four years later, she was reportedly "making six figures," and then "multi six figures." Suffice it to say that she was doing well. 

Ms. Jenkins was growing a business, following her heart and persevering. She worked creating "business plans and marketing strategies for small businesses and entrepreneurs." It appears that she was living the American dream, rising from humble beginnings and challenges that would perhaps be insurmountable to some of us (I cannot conceive how I would react to being homeless, it is a situation I cannot understand and which I have just never experienced). 

Ms. Jenkins posted about her success on social media. She advertised that she was soon to host a seminar to spread her expertise and market her business. She explained on social media about her challenges, dedication and success. She wrote about her income, the "six figure" and "multi six figure" income. And hours later a knock came on her front door. It was not "opportunity knocking."

A man reportedly knocked at about three o'clock in the morning, a few hours after she posted to social media. When she answered, the masked man walked in and fatally shot Ms. Jenkins, leaving her three children, aged 1-7, without a mother. He fled "in the family car," which was then abandoned nearby. A young and apparently vibrant entrepreneur, having overcome adversity and challenges, shot down in her own home. 

There is no direct link between Ms. Jenkins death and that social media post. But, the implication has been suggested. That is in no way suggesting or implying blame on the victim. No one deserves to be attacked and killed in their home. She had every right to promote her success and her business. The success story that Ms. Jenkins achieved is inspiring and motivational. Her drive and determination, her achievement of the American dream is heartwarming. But, perhaps we have to question whether it is a good idea to post everything about ones self on social media?

Maybe there is such a thing as TMI. And, perhaps we learn from these stories that it may be better for us to reserve a little of the facts and details for ourselves?