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Justice Department joins mental health rights suit



Last modified: Thursday, March 29, 2012
The federal Department of Justice has joined a class-action lawsuit that accuses the state of cutting community mental health services and instead needlessly institutionalizing people at the state hospital and at a home for the elderly.

The lawsuit was brought in federal court in February by the Disabilities Rights Center against Gov. John Lynch and state Health and Human Services officials. It alleges the state has repeatedly violated the Americans with Disabilities Act by exiling the mentally ill rather than treating them in their own communities.

In announcing the decision to join the case, John Kacavas, U.S. attorney for the District of New Hampshire, said the state responds to people in mental crisis by forcing them to spend days at local emergency rooms until they can be brought to the state hospital, sometimes by the police.

The Monitor reported last week that the waiting list to get into the state hospital has reached historic highs this month, with as many as 20 people waiting in local emergency rooms for a state hospital bed.

"This costly and traumatic process could be avoided if New Hampshire offered proven and effective services in the community to prevent and de-escalate crises, help people maintain safe housing and assist them in finding and holding employment," Kacavas said in a written statement.

The state Department of Health and Human Services referred calls yesterday to the state attorney general's office, which is defending the state against the lawsuit. The lawyer overseeing the defense could not be reached yesterday.

The Concord-based Disabilities Rights Center sued the state after investigating complaints from patients, relatives of patients and caregivers, said Amy Messer, legal director for the center. A state task force confirmed the shortcomings of the state's mental health system in a 2008 report and wrote a 10-year plan to reform mental health services.

"I do think this is really significant," Messer said yesterday of the federal government's decision to join the lawsuit. "Unnecessary institutionalization of people is discrimination. It's happening in New Hampshire and it shouldn't be a surprise that the United States Department of Justice is here to enforce those anti-discrimination (practices.)"

In independent investigations, the center and federal justice officials concluded the state had not made progress on its 10-year plan. The state has cut funding for community mental health treatment, both agencies said, and instead opted for hospitalization, which is more expensive and less-effective.

Federal officials threatened this winter to sue the state over those alleged violations. Attorney General Michael Delaney and Health and Human Services Commissioner Nick Toumpas responded in December asking federal officials to withdraw their "erroneous findings."

Delaney and Toumpas said the state had made progress on its 10-year improvement plan.

The Disabilities Rights Center took the state to court first. In its lawsuit, the center cited a 150 percent increase in annual admissions to the state hospital since 1989, when it admitted 900 patients, to 2010, when it admitted 2,300.

Federal officials reiterated the center's allegations in its filings joining the lawsuit. "Because of the manner in which the state has administered its service system, people with mental illness in institutions, and many of those at serious risk of institutionalizations, have not been afforded meaningful access to adequate and effective community-based alternatives," the filing said.

The mentally ill are sent either to the state hospital in Concord or the Glencliff Home for the elderly in Glencliff, the lawsuit alleges. "Both . . . are segregated, institutional settings," the federal court filing said. "Physically, both . . . are isolated from the general community. They provide little opportunity for individuals with disabilities to interact with individuals without disabilities outside the institution.

The filing continued. "As a result," it said, "most aspects of their daily lives are controlled by the institutions, and they have limited autonomy, privacy, or meaningful opportunities to participate in the community."

Asked yesterday about the decision to join the lawsuit now, a spokeswoman for the U.S. Department of Justice said the agency felt it had no other choice.

"The Department intervened only after it determined that attempts to settle with the state had reached an impasse," said Xochitl Hinojosa in an email. "As a general matter, the department exhausts all efforts to settle before resulting in litigation, and that's exactly what happened in New Hampshire."

(Annmarie Timmins can be reached at 369-3323, atimmins@cmonitor.com or on Twitter at @annmarietimmins.)