Feds hit N.H. on mental health reply

Last modified: Saturday, December 10, 2011
In a harshly worded letter yesterday, a federal prosecutor rejected Attorney General Michael Delaney's recent defense of the state's efforts to improve its mental health system and his plea for more time to fix alleged violations of the Americans with Disabilities Act.

"New Hampshire's mental health system, as currently configured, not only violates the (federal law) but also is an inefficient use of state resources and is bad policy," U.S. Assistant Attorney General Thomas Perez wrote. The next step, Perez told Delaney, will be assessing enforcement options, including a lawsuit.

Delaney did not return a call seeking comment yesterday afternoon.

Perez's letter is the latest missive between the parties since April, when a federal investigation alleged the state was forcing mentally ill people to live in overly-restrictive hospitals by refusing to invest in community housing and treatment centers. Federal law requires the mentally ill to be treated in the least-restrictive, most-integrated setting possible.

The two sides had been privately discussing remedies until Tuesday, when Delaney criticized the federal investigation as too cursory and told Perez in a letter that his timetable for improvements was unreasonable and impossible in this economy. The state created a 10-year plan to improve mental health services in 2008 and has made progress, Delaney told Perez.

"Simply stated," Delaney wrote in a letter he made public, "we do not believe New Hampshire is required by (federal law) to institute your recommended remedial measures on an expedited basis."

Perez's response yesterday came quickly. "Your claims that New Hampshire's reliance on (the state hospital and the Glencliff home for the elderly) is 'entirely reasonable' and that the state's system compares favorably to national statistics are simply incorrect," he wrote.

In a two-page letter, Perez reminded Delaney that New Hampshire's own 2008 investigation concluded the mental health system was "broken" and "in crisis." He then detailed what he described as particular failings by the state:

• Admissions to the state hospital are nearly 40 percent higher than the national average, and re-admissions are nearly double. "This problem has gotten worse, not better," Perez said.

• The state's determination to keep state hospital stays short is misplaced and reflects the large number of people who return to the hospital because there is insufficient treatment in their local communities.

• New Hampshire spends its treatment money foolishly. Perez said the state could treat about six people in their communities, where they'd have more freedoms, for what it spends on one patient at the state hospital.

"Systematic civil rights violations, such as those we outlined in our (April investigation report) call for prompt, concrete commitments, not general plans with indefinite timelines," Perez wrote. "While the implementation of the state's 10-year plan would be a step in the right direction, the state has not achieved many of the goals it established in the plan, nor has the state made any binding commitment to do so."

Perez is not the only one considering legal action against the state.

The Disabilities Rights Center in Concord conducted its own investigation of the state's mental health system in 2010 after receiving numerous complaints from people with mental illness and their guardians, said Amy Messer, legal director for the center. That investigation, like the federal one, concluded the state was illegally keeping mentally ill people institutionalized because it had not invested in community treatment.

Messer said yesterday her office, like Perez's, has met with state mental health officials about its findings but has not seen sufficient improvements. "We had meetings with the state that have not resulted in resolution," Messer said.

She said her office will "pursue all avenues available to us to ensure individuals' rights are protected and that they do receive the services they have a right to receive in the community." Messer said those avenues under consideration include litigation.

"Individuals have a right under (federal law) to receive their services in the most integrated setting," she said. "They can pursue legal action individually or as a class."

The center put state mental health officials on notice in November 2010 with a letter detailing what it believed were serious flaws in the state mental health care:

• Half the state does not have Assertive Community Treatment teams that respond quickly and locally to people in a mental health crisis. Having immediate psychiatric and nursing care available nearby keeps people out of restrictive hospital settings, the center said. Those teams "have been reduced or diluted," the letter said.

• Affordable housing for the mentally ill is in short supply and the waiting period for federal housing assistance is five years.

• The number of acute residential treatment programs and other community centers has shrunk dramatically as a result of state budget cuts. There were once about 150 beds statewide; now there about 24.

• People admitted to the Glencliff Home for the elderly with mental illness are dying there because there are no community services available. And the home is no longer treating just the elderly, the center said. People in their 40s and 50s are "languishing" there, it said.

"New Hampshire has the experience and know-how to fix this problem," the center's 2010 letter said. "Almost all of the individuals with mental illness experiencing long-term institutionalization at (the state hospital) and Glencliff can live in integrated settings with supports and return to their home community."

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