I recently listened to closing arguments in the mental health lawsuit pitting Mississippi against the United States. The setting was the gleaming, modern federal building on the southside of downtown Jackson.
With $500 million dollars a year in state money on the line, you would think the audience would be packed, but there was plenty of room to sit and listen.
Earlier in the month, I covered the trial one day for the Associated Press. The media is so thin these days that the few reporters who are still left have to tag team just to cover a major trial. In the pre-Facebook/Google days, there would have been six or seven reporters all from independent newspapers or news agencies. So sad.
The trial was an amazing display of technology. Twenty-one lawyers, 49 depositions, 1,056 exhibits and thousands of emails and other notes. All instantly displayed on multiple video monitors.
At stake was how we treat the mentally ill: Lock them up for a while in a big state hospital or briefly stabilize them in a community-based facility and send them back home.
Locking them up in an institution is the old way. The new way is to 1) stabilize them in a small, unthreatening community facility; 2) get them back on their meds; 3) quickly get them back to their normal family and routine with a minimal amount of trauma and; 4) help them learn to live independently and get federally subsidized jobs.
Ironically, both the U. S. and Mississippi agree the new way is best. The question is the pace of change. The feds think Mississippi is moving way too slowly.
The role of money is interesting in this case. The feds argue that if Mississippi would shut down its five big mental health facilities, it would have more than enough to fund the hundreds of small non-profits delivering community-based mental health services. Federal grants and Medicaid would increase funding.
Critics of the big-facility approach to mental health argue that Mississippi spends far more on mental health than comparable states for inferior treatment. One critic told me if Mississippi eliminated the Department of Mental Health (DMH) and made it an adjunct of the Department of Medicaid, both the taxpayers and the mentally ill would be better off.
The irony here is that most of the mentally ill are in prisons, not the large mental health facilities. If you close the mental hospitals without properly developing community-based programs, even more mentally ill will be in prisons or on the streets.
Sitting through the trial, it was hard to imagine just 154 years has passed since Mississippi fought the United States with guns and guts on the battlefield. Instead of blood, sweat and tears, it was a war of words with both sides using logic and evidence to make their case to U.S. District Judge Carlton Reeves. The air conditioner worked flawlessly. This is progress.
This is not the first such legal battle between Mississippi and the United States of America. Similar lawsuits are being fought over the handling of Child Protective Services and our prison system. True to our rebellious heritage, the state of Mississippi has fought the feds tooth and nail, creating millions in legal fees for those firms lucky enough to get the contract.
During the trial, the concept of backseat driving came to me. Many people detest backseat driving. They don’t want any advice. As for me, I’ll take all the advice I can get when I drive. Two heads are better than one. Advise away.
Obviously, the state of Mississippi – in this case the Department of Mental Health – doesn’t welcome any backseat driving from the feds – even when everybody agrees that community-based treatment is the future.
So my question is this: Why did the Department of Mental Health not settle this lawsuit and welcome whatever assistance they can get from the federal experts? Almost every other state settled. Mississippi didn’t. Surrender? Hell no!
In a settlement, the top honchos at the Department of Mental Health would have to engage federally recommended experts to hasten the path toward community-based mental health services. Usually, these experts are non-profit organizations dedicated to improving the mental health services. That doesn’t sound too horrible.
DMH is a strange agency to begin with. It is an independent agency with its own staggered board. There is little oversight from the legislature or our state’s executive branch. They could probably use some help.
How are the feds even involved? It all stems from the American Disabilities Act of 1990, signed by the first George Bush. That act designated mental illness as a disability, which must be treated in the “least restrictive environment,” according to the U.S. Supreme Court’s 1999 Olmstead ruling. Twenty years later, a small army of U.S. Justice Department attorneys are suing states to comply.
Regan Rush made the closing argument for the feds. “The Medicaid 1915(i) program has been available to Mississippi since 2016. Why the state has failed to use the money is an unsolvable mystery,” she said.
“The Mississippi Department of Mental Health could encourage community-based providers to increase use of Medicaid and other federal funding services. State hospitals should be used only as a last resort.”
Rush said, “There is overwhelming evidence that Mississippi has discriminated against thousands of mentally ill citizens. The time to leave Mississippi to its own devices has passed.
“DMH is not using data to actively monitor 1,200 heavy users of mental hospitals.”
Rush argued DMH needs to actively work with community-based service providers to get these people out of big facilities into less intrusive environments like small supervised group living homes. “To the extent that Mississippi has a plan, there is no evidence that it is working,” Rush told the judge. She said the DMH plan was “poorly assembled patchwork” and is “nowhere near where it needs to be. The current plan does not even get to step one.”
“For most individuals, there are multiple ways to intervene early using community-based services and prevent commitment to a state mental facility.”
Reuben Anderson of the Phelps Dunbar law firm spoke in defense of Mississippi.
“To ask the state with the lowest per capita income to achieve what the highest per capita income states have failed to achieve makes no sense,” Anderson said. “Mississippi is deinstitutionalizing responsibly. We ask the court to allow Mississippi to continue to downsize responsibly.”
“The Department of Justice wants you to entrust this to people who have spent 12 days in Mississippi compared to our state officials who have been doing this all the time. . . The DMH provided services to 26,322 citizens. Is that enough? Is there any legal definition for what is enough?”
Phelps attorney Jim Shelson defended DMH saying, “It’s no secret that $28 million in state budget cuts didn’t help . . . If a chancery judge commits an individual to a state mental facility because that person is suicidal and that patient is stabilized and returned to his community, we maintain that is a good thing . . . What we are really arguing about is the pace of change. There is no clear definition of what DOJ wants Mississippi to do.”