Tough economic times might soon collide with a requirement that the state provide care for people diagnosed with mental illness. That could lead to a renegotiation of a 20-year-old judgment that an attorney for the people who benefit from it called “shocking.”
The prospect of renegotiation of the mental health consent decree, drafted after a class-action lawsuit against the state, was raised by lawmakers Thursday following a critical report by Daniel Wathen, former chief justice of the Maine Supreme Judicial Court, who as court master, monitors the state’s compliance with the decree.
“My report is not positive,” Wathen said. “Despite the fact that we’ve made progress in the last five years, things are slipping and deteriorating.”
Specifically, Wathen charged that the Dept. of Health and Human Services has not advocated sufficiently for full funding of the programs outlined in the decree.
DHHS Commissioner Brenda Harvey bristled at the suggestion.
“I think it’s an unfair characterization to suggest that we are not advocates at that table,” Harvey said later in the meeting. “I cannot make the decisions for the governor in terms of the needs of the entire state.”
Wathen also said a 25-person staffing shortage at the state-run Riverview Psychiatric Center in Augusta – most of which was the result of a system-wide hiring freeze – has led to deteriorating conditions for the patients there.
“Riverview is really a top-notch institution but it’s not guaranteed to remain that way,” Wathen said. “It’s shown up in the use of restraints, which is a very dangerous practice. It’s shown up in the nature and number of complaints I have received. This is a pretty serious thing. I just can’t sit by.”
Wathen has ordered a review of the system, which is due to be completed by the end of February. The results of the review will help him determine whether the state is complying with the decree.
The consent decree, inked in 1990 after a class-action lawsuit levied against the former Augusta Mental Health Institute (AMHI), requires the state to provide mental healthcare for anyone who was a patient there or at Riverview (AMHI’s new name) after Jan. 1, 1988, including current patients. That now includes more than 4000 people.
The lawsuit resulted from poor conditions at AMHI in the 1980s, which caused patient deaths.
Linda M. Pistner, chief deputy attorney general, told the Appropriations Committee that the decree does not preclude the Legislature from changing the mental health services it offers, but warned that such an action might land the Dept. of Health and Human Services back in court for a renegotiation.
“The commissioner [of DHHS] has an obligation to prepare a budget request that’s reasonably adequate to fund the requirements of the decree,” Pistner said. “The governor is not bound by the decree and the Legislature isn’t either. If the funding were sufficiently inadequate, we might be back in court talking about changing the decree.”
Helen Bailey, who represents the people covered by the consent decree, said on Monday she thought it was workable in its current form.
“I felt [the issues] could be resolved without revision to the settlement agreement,” Bailey said. “I was totally derailed by Linda Pistner’s presentation. It was quite shocking to me, frankly.”
One major issue is exactly how many people are covered by the decree. The document, after being amended by the Legislature in 1992, stipulates that the state can’t deny anyone with mental illness the services outlined in the decree, whether they’re former AMHI or Riverview patients or not. In October of last year, Wathen ruled that financial eligibility for MaineCare would not be a factor in deciding who is served by the system.
“I didn’t think there was any ambiguity in that,” Bailey said. “That’s what the plan has always said.” Wathen estimates that there are more than 12,000 people in Maine who have severe mental illnesses.
Carol Carothers, executive director of the Maine chapter of the National Alliance on Mental Illness (NAMI), said she respects the Legislature’s difficult position.
“I give them credit for consistently trying to meet the terms of the decree,” Carothers said. “I think the Legislature and the state were putting necessary services in place but with the financial difficulties, they’ve been taking apart the system they’ve constructed.”
Members of the Appropriations Committee asked several questions about the process and ramifications of altering the consent decree to bring it in line with what revenues can support.
“We have this dilemma which is that we have to decide rank and priority for folks who have very clear needs and who have persistent mental health issues,” said Rep. David Webster (D-Freeport). “We may decide that we cannot afford, whether we want to or not, to pay for services.”
Sen. Richard Rosen (R-Bucksport) said this is an opportunity to address the system’s design and make it more efficient.
“I’m interested in the range of flexibility the Legislature has,” he said. “That may be an avenue for us to pursue. Resources have shifted.”
Harvey agreed there are important and painful decisions to be made.
“There are lots of significant, big policy discussions and decisions to be made,” she said. “I would welcome that we and our staff be party to those discussions and help facilitate them rather than be in a position of feeling defensive and demoralized. I think that’s what our staff has experienced.”
The Legislature will spend the next several weeks deliberating over the 2010-11 biennial budget, in which they must account for a more than $800 million downturn in revenue.
(Statehouse News Service)