Yet another federal lawsuit against the state

By WYATT EMMERICH,

The State of Mississippi is being sued yet again and a trial is underway at the federal courthouse in downtown Jackson. This time it’s about the state’s handling of mental health issues.

Along with Mississippi’s child protective services and the prison system, that makes three major lawsuits filed against our state for failing to do its job.

Mississippi settled the child protective services lawsuit. A federally-appointed court monitor, non-profit Public Catalyst from New Jersey, is now working, sometimes battling, Mississippi’s Child Protective Services to implement reforms.

The prison lawsuit is still awaiting a decision from federal judge William Barbour. It’s been over a year since the trial.

The latest lawsuit is a bit different. The plaintiff is the federal government itself through the United State Department of Justice (DOJ).

In 1990, the U. S. Congress passed the Americans with Disabilities Act which requires states to address disabilities with the least restrictive remedy.

This was followed in 1999 by the U. S. Supreme Court’s Olmstead decision, which held that people with disabilities have a qualified right to receive state-funded supports and services in their communities rather than institutions.

The feds believe Mississippi’s system of 14 large state and regional mental centers is at odds with much smaller community services. The feds want the mentally ill treated at home or in small supervised group homes near where they live, not in big facilities. Hospital-ization should only occur during brief periods of crisis stabilization and for only a few weeks.

The feds are not alone. In fact, pretty much the entire psychiatric community, backed by tons of research, has concluded that community-based treatment is less expensive and provides much better results.

A major study published in the World Psychiatry Journal concluded: “The process of deinstitutionalisation has usually meant the closure of long-stay beds in the larger psychiatric institutions, and there is now strong evidence, for the large majority of such patients, that community based residential care offers such people a higher quality of life.

“Such types of residential care are usually best provided when they are small in scale, linked closely to the other components of a balanced care system, and when they are developed gradually over time as the nature of local needs emerges. Further to this there is now growing evidence that some types of community-based alternatives to acute hospital admission may also be cost-effective, such as crisis houses and home-based treatment by community mental health teams, and such innovative services are likely to become more common in the coming years.”

Angela Ladner, executive director, of the Mississippi Psychiatric Association (MPA), testified during the trial that her association has for the last nine years lobbied the Mississippi legislature to move towards community-based psychiatric services.

The MPA's support of community-based psychiatric services came after forming a joint task force in 2010 with the legislature and the MPA, according to testimony.

The task force report stated the Mississippi Department of Mental Health’s (DMH) "lack of focus on development of community based care" was a "disaster in the making."

The MPA report also criticized DMH for "failure to enforce minimal standards."

Ladner testified about the effort by the MPA to lobby DMH to create crisis stabilization units of 16 beds or less throughout the state and to create crisis intervention teams with law enforcement. The teams train law enforcers in deescalation techniques in an effort to keep the mentally ill out of jail.

"There was a concern that so many mentally ill people in crisis were being held in jail not because of a crime but because they were in crisis," Ladner testified.

Reuben Anderson, attorney defending DMH, questioned Ladner about the affordability of these community programs, pointing out MPA's own report stated "no mental health system can provide services for everyone with every type of need."

Ladner testified, "The idea is that if you shut something down then that would free up resources for community-based services." Ladner was referring to Mississippi's 14 large statewide and regional mental health facilities.  The MPA would like to reduce these large facilities and use the money saved to fund treatment in or near a patient's home.

Under Anderson's cross examination, Ladner admitted the state DMH had made progress but she said the MPA believes there is still much more to be done to transition to community-based services.

The problem here is one of bureaucracy. The DMH is a huge agency with 7,700 employees – the most of any state agency. Its facilities are located across the state and provide many jobs. If the legislature tries to shut any of the big mental health facilities down, DMH employees will start calling their state representatives who fear losing votes. So the status quo continues, even though better options exist.

Unlike many states, DMH is run by an independent board, whose members are appointed by the governor in staggered terms. As a result, there is little accountability to the executive or legislative branches.

Over the years, an entirely new ecosystem of private for-profit and not-for-profit mental health providers has emerged. Federal dollars, usually through Medicaid, funds this. These are private clinics, counseling services, drug rehab programs, crisis stabilization units in private hospitals, group homes and the like. The new ecosystem is more in line with community-based treatment.

Some experts argue the entire DMH could be abolished and replaced with these new private, community-based services, funded by federal Medicaid, saving the state half a billion a year.

The problem has been governments shutting down big mental facilities without developing community-based services, leading to a huge increase in mentally-ill homeless people.

On the flip side, 30 percent of the people in our state prisons are mentally ill. Many of these would get better treatment in a state mental facility than a state prison. Perhaps non-incarcerative community-based treatment could work for all these prisoners, but perhaps not. There are so many unknowns in this debate.

Meanwhile, it’s a mighty strange feature of our form of government that the federal government sues the state government about mental health policy. No doubt the Phelps Dunbar attorneys are quite happy with the millions in legal fees, courtesy of Attorney General Jim Hood refusing to settle the case.

Ultimately the feds will probably get a court-ordered expert “monitor” to chide and prod the DMH board for years to come. Perhaps progress will result. Governance through lawsuit is a strange way to govern.

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