'Lawmakers, advocates react to mental health suit threat'

Last modified: Wednesday, April 13, 2011
The state Department of Health and Human Services is not commenting on a Department of Justice investigation that accused the state of violating the Americans with Disabilities Act.

But state legislators and advocates for those with mental illness say the critical report, released last week, could force the state to focus on what has long been considered a failing mental health system. That could mean implementing a 10-year plan for the system. It could also mean reconsidering budget cuts proposed by the New Hampshire House. But given the state's tight budget situation, few are speculating on where money could come from to fix the system.

'I'm not sure if it needs more money or if we have an adequate amount of money, but how we spend that money is something someone needs to take a very careful look at,' said Rep. Tom Keane, a Bow Republican who serves on the House Finance Committee.

The Department of Justice's main finding is that New Hampshire is unnecessarily institutionalizing people because of a lack of community-based services. That is not a new concern. In fact, a coalition of mental health advocates was considering suing the state on similar legal grounds before the investigation was released.

Amy Messer, legal director at the Disabilities Rights Center in Concord, said the organization approached the state in November with similar concerns to those discovered by the Department of Justice. Messer said the Disabilities Rights Center has been working with local lawyers at Devine Millimet, the Bazelon Center for Mental Health Law in Washington, D.C., and the Center for Public Representation, a public interest law firm in Massachusetts.

Messer said the group received complaints from individuals about the state's mental health system and was considering filing a lawsuit based on alleged violations of the Americans with Disabilities Act. The complaints said New Hampshire lacked adequate community-based care and kept people institutionalized for too long. But the center delayed action pending the result of the federal investigation.

With the investigation complete, Messer said, 'We continue to hope we'll all be able to come to a resolution around these issues.'

Messer said the group will be looking for the state to create more supportive housing, more community treatment teams, and better plans for discharging people from New Hampshire Hospital or Glencliff nursing home.

'The state needs to rebalance the way it provides services to individuals,' Messer said. 'There's an over-reliance on institutional care, and an under-reliance on community based care.'

The 28-page Department of Justice report is dated Thursday. The department has not yet released information on how it will address the report. 'We are still evaluating the report to determine any next steps,' said Health and Human Services spokeswoman Kris Neilsen.

The Department of Justice has also declined to comment. A department spokeswoman said in an e-mail, 'As a general matter, the Department attempts to resolve matters through negotiations before resulting in litigation.'

Last October, the Department of Justice reached a settlement in a similar case involving Georgia's mental health system.

But the state does have a blueprint already for improving mental health services. In 2008, the state released a 10-year plan to improve the system, which advocates say has declined dramatically in recent years. The plan recommended several ways to improve mental health care in the communities: creating 'supporting housing,' where individuals get housing subsidies and community treatment, expanding residential treatment programs, providing additional mental health beds in community hospitals, and developing 'Assertive Community Treatment teams,' which provide services like nursing and case management in the community.

But the Department of Justice report noted that while progress had been made in some areas, there has been no money for adding community mental health beds, additional treatment teams were not added and no additional community hospital beds were provided.

Jeff Fetter, president-elect of the New Hampshire Psychiatric Society, said the Department of Justice investigation 'puts the 10-year plan back in the spotlight.'

'Many of the things the Department of Justice cites as ways that the state is falling short of its obligations would be remedied by simple adherence to the 10-year plan as it was outlined,' Fetter said.

The report also puts the state budget in the spotlight. Gov. John Lynch proposed closing a New Hampshire Hospital unit and using the money to create two community treatment teams, a step that would have advanced the recommendations in the 10-year plan. Lynch would have also cut a small amount of money from community mental health centers. The House recommended major cuts to community mental health centers, removing eligibility for about 7,000 community mental health patients. The budget is now pending in the state Senate.

'I suspect (the report) will have an impact on the Senate, will bring it much more clearly into focus that we haven't followed the reports of the New Hampshire Mental Health Commission, we haven't followed the 10-year plan,' said Rep. Jim MacKay, a Concord Democrat who serves on the Health, Human Services and Elderly Affairs Committee. 'I'm hopeful this may expedite some changes in the system back towards the direction we should be going.'

Democratic lawmakers say the federal investigation makes the proposed House cuts untenable. Sen. Lou D'Allesandro, a Manchester Democrat on the Finance Committee, said the investigation 'could have a pronounced effect' on the proposed budget. 'When I look at the number of people who will not be served under the current (House) proposal, that's scary to me,' D'Allesandro said.

Rep. Cindy Rosenwald, a Nashua Democrat on the Finance Committee, called the cuts to people with mental illness 'ill-considered.' She also said the House's proposed $115 million cut to hospital payments could further hurt the mental health system, since it would discourage hospitals from providing costly mental health care.

Already, the New Hampshire Hospital Association attributes the lack of mental health services in hospitals to a lack of state funding. Leslie Melby, vice president of government relations for the association, said a hospital like Androscoggen Valley in Berlin used to have beds for mental health patients who were admitted involuntarily. That made it possible for people to stay in the local community, not be moved to Concord. But the state did not pay the hospital enough to care for those patients, so the hospital shut the program.

Rosenwald said in the past, the state has made significant policy changes because of federal regulations - closing the Laconia State School, for example. She said this investigation could serve a similar purpose by forcing the state to put more emphasis on community care. 'From a care perspective, a financial perspective and a legal perspective, it does not seem like a good idea to be forcing people into institutions when we should be treating them in communities in the first place,' Rosenwald said.

Several Republicans on the Senate Finance Committee did not return calls yesterday. Keane, who worked on the House's mental health budget, said he agrees with the Department of Justice that the state's mental health system is inadequate. But rather than adding more money, he would look at ways of delivering less expensive services, like a 'clubhouse model,' where people who are recovering from mental illness help others. He believes instituting managed care for Medicaid - which Lynch proposed and the Legislature is likely to support - would also help spend existing money more efficiently.

(Shira Schoenberg can be reached at 369-3319 or sschoenberg@cmonitor.com.)