UPDATED: MAY 17, 2018, 4:47PM
NH GOVERNMENT IS THE CAUSE FOR MUCH OF THE MENTAL ILLNESS EPIDEMIC AND LAWSUITS IN NH, COSTING TAXPAYERS FOR ALL THEIR MISTAKES BOTH IN NH HISTORY, THE PRESENT, AND IT's FUTRE.
TAX FREE NH GOVERNMENT SHOULD NEVER MAKE
_____________________THE STATE OF NH IS IRRESPONSABLE_____________________
FACT 1:"Novemeber 17, 2010
A wrongful death suit that addressed the balance between civil rights and the state’s role in providing care for the mentally ill has been settled out of court for $275,000.
Caitlin Bishop Murtagh of Rochester was awarded compensation nearly three years after her mother, Linda Bishop, was found dead in an empty house in Concord. Bishop, who suffered from bipolar disorder, died of starvation shortly after New Hampshire Hospital had granted her release.
A wrongful death suit that addressed the balance between civil rights and the state’s role in providing care for the mentally ill has been settled out of court for $275,000.
Caitlin Bishop Murtagh of Rochester was awarded compensation nearly three years after her mother, Linda Bishop, was found dead in an empty house in Concord. Bishop, who suffered from bipolar disorder, died of starvation shortly after New Hampshire Hospital had granted her release.
She had been dead for four months when discovered in May 2008. Two notebooks describing her fear and loneliness were found by her side. Court documents said Bishop planned to receive support and follow-up care at the New Horizons Shelter in Manchester, but she instead wandered aimlessly before taking refuge in an empty house for sale on Mountain Road in Concord.
Her journal said she lived on apples that had fallen from a nearby tree, which she retrieved at night. She was spotted through a window by a potential buyer 2½ years ago, having died roughly four months earlier in January 2008, according to medical reports.
“It’s our opinion that there was a failure on the part of the state to provide proper diagnosis, evaluation and treatment,” attorney Hage Hodes said. “She was given an absolute discharge without any safety net to protect her if she failed.”
...in January 2007, the state hospital petitioned to name Joan Bishop as her sister’s guardian, a request the probate court denied.
“People’s rights have to be protected, and they have to be allowed to leave if there are no guardians over them,” said Anne Edwards, part of the attorney general’s team that defended the state. “Because she didn’t have a guardian, she had the right to make her own decisions.”
Hage countered by saying the very fact that the state hospital sought to name Joan Bishop as her sister’s guardian proves the state knew she wasn’t fit to live on her own.
“The state by its own admission in filing a petition for guardianship believed that she was a danger to herself or others,” Hage said. “Just because (the petition) was denied, it was our position that shouldn’t have altered the state’s view of why it brought the petition for guardianship in the first place.”
...in January 2007, the state hospital petitioned to name Joan Bishop as her sister’s guardian, a request the probate court denied.
“People’s rights have to be protected, and they have to be allowed to leave if there are no guardians over them,” said Anne Edwards, part of the attorney general’s team that defended the state. “Because she didn’t have a guardian, she had the right to make her own decisions.”
Hage countered by saying the very fact that the state hospital sought to name Joan Bishop as her sister’s guardian proves the state knew she wasn’t fit to live on her own.
“The state by its own admission in filing a petition for guardianship believed that she was a danger to herself or others,” Hage said. “Just because (the petition) was denied, it was our position that shouldn’t have altered the state’s view of why it brought the petition for guardianship in the first place.”
Both sides said emotions played a part in their decision to settle. Edwards cited the feelings of a potential jury. “Linda Bishop had maintained a diary that you get to read about her dying, and that is a very difficult thing for a jury to hear. There is often an emotional reaction to all of that.”
Hage spoke about the feelings of his client and her aunt.
“Any trial takes an emotional toll on people to have to relive the tragic events,” Hage said, “because this was a tragic case, a tragic outcome.”
Bishop’s death and the subsequent legal action have shone a light on the problems the medical community faces when assessing a patient with mental illness."
TAX FREE NH GOVERNMENT SHOULD NEVER MAKE
EMPTY PROMISES THEY CAN'T AFFORD!
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2012FACT 2: ATTORNEYS FILE CLASS ACTION LAWSUIT AGAINST STATE OF NEW HAMPSHIRE FOR ITS FAILURE TO PROVIDE ADEQUATE MENTAL HEALTH SERVICES TO CITIZENS WITH MENTAL ILLNESS
DIABILITY RIGHTS CENTER, Inc.
Devine and Millimet
Attorneys at law
"CONCORD, NH – FEB. 9, – Six state residents with psychiatric disabilities whose lives have been interrupted, disrupted, and even destroyed by prolonged or needless stays at state institutions today sued New Hampshire for its failure to provide adequate community-based mental health services. A class action lawsuit, filed this morning in U.S. District Court in Concord, charges Gov. John H. Lynch and other state officials with violating the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Nursing Home Reform Act (NHRA) for their failure to provide clinically necessary and cost-effective community services to avoid the needless institutionalization of individuals with disabilities.
The named plaintiffs are or have been institutionalized at New Hampshire Hospital (NHH), a stateoperated psychiatric institution in Concord, or at the Glencliff Home in Benton, a state-operated nursing facility primarily for individuals with mental illness.
The plaintiffs include a 22-year-old Newport woman whose 20 psychiatric hospitalizations at NHH over the past 10 years robbed her of the normal educational and social experiences of adolescence; a 65-yearold man who went to Glencliff as a ‘temporary residence’ in 2005 and remains stuck there seven years later; a 30-year-old Manchester woman who lost custody of her daughter while she cycled in and out of NHH; a 55-year-old woman from Dover who has spent much of the last five years at NHH or Glencliff, where she is so isolated that she rarely sees her mother, children, grandchildren, or siblings; a 45-year-old Rochester man whose wife was forced to sell their home while he languished at NHH; and a 54-year-old wife and mother from Danville who wants to be with her family and return to work, but without Assertive Community Treatment and supported employment services, has remained at NHH since April.
At a press conference this morning, attorneys for the plaintiffs called upon the state to fix its broken system and expand community services, as required by federal law.
“For many individuals, these prolonged institutional admissions and hospitalizations result from the inability of New Hampshire’s existing community programs to meet their basic treatment needs and to prevent their unnecessary institutionalization,” said Amy Messer of the Disabilities Rights Center, which is representing the plaintiffs along with Devine Millimet & Branch, the Judge David L. Bazelon Center for Mental Health Law, and the Center for Public Representation.
Elaine Michaud of Devine Millimet pointed out that the needless institutionalization of the plaintiffs at NHH and Glencliff “is not only a human tragedy, but it is also a violation of their rights under federal law.” The ADA and the Rehabilitation Act mandate an end to discrimination against persons with disabilities, which includes unnecessary segregation in institutions. The NHRA requires the state to determine whether the needs of an individual with mental illness could be met in an alternative community setting before admitting him or her to a nursing facility such as Glencliff.
The lawsuit, Lynn E. vs. Lynch, echoes the findings issued last April by the U.S. Department of Justice following its investigation of New Hampshire’s mental health system. The DOJ found that the state is violating the ADA by failing to provide services to individuals with serious mental illness in the most integrated setting appropriate to their needs, and added, “Systemic failures in the state’s system place qualified individuals with disabilities at risk of unnecessary institutionalization now and going forward.”
Named plaintiff Mandy D., 22, receives limited case management, counseling and medication monitoring, but not the services she needs to address her ongoing risk of unnecessary institutionalization: supportive housing, mobile crisis intervention, assertive community treatment, and supported employment. “There are a lot of people like me that aren't getting the basic services they need,” she said. Her mother and guardian, Louise D., added, “I watch my daughter missing life because she can't participate. Right now her life is her mental illness, but she has a lot to offer.”
Without community services, Mandy and hundreds like her end up back at NHH or at other statesupported psychiatric units across New Hampshire, where they get little more than custodial care in an environment that violates their privacy and dignity, and robs them of their independence. Their lives – homes, jobs, relationships, community activities – are disrupted or destroyed by long hospital stays. “Community-based services are far better for people like Mandy, and they are far less costly than institutional care.” said Messer.
Yet New Hampshire, as the DOJ found, “has continued to fund costly institutional care at NHH and the Glencliff Home, even though less expensive and more therapeutic alternatives could be developed in community settings.” On average, community services cost a fraction of institutional services.
State officials have long known the system is broken. Reports issued by the Department of Health and Human Services (DHHS) in 2008 and 2009 acknowledged that the systemic failings impact individuals, families and communities by contributing to homelessness, and placing undue stress on law enforcement, emergency departments, the court system and county jails. The reports recommended many of the same remedies the plaintiffs are seeking today.
At any given time, approximately 125 adults are confined at NHH and 120 adults are at Glencliff. Most of them could be served and would prefer to be served in their own community. Hundreds, if not thousands, of individuals risk institutionalization at NHH because they lack access to needed community services, as evidenced by the large number of needless, and often repeated, hospitalizations.
There were over 1,800 adult admissions to NHH in 2010, nearly 800 of which were readmissions of individuals who had been at NHH within the previous 180 days. More than 17% of adults discharged from NHH in 2010 were readmitted within 30 days, and 35% were readmitted within 180 days of discharge. Several of the named plaintiffs have struggled to remain in the community with little to no support services, only to be forced into NHH’s revolving door for repeated and unnecessary admissions.
Prolonged institutionalization is also a severe problem at Glencliff, where individuals not only experience the same deprivations, and rights restrictions as class members at NHH, but also are far from family and friends due to the facility’s remote location in northern New Hampshire.
Moreover, few individuals ever return to the community from Glencliff. Between 2005 and 2010, there were only 13 discharges from Glencliff, and 11 of them were to NHH or other facilities; only two people returned to their homes. In recent years, more people have died at Glencliff than have returned to the community. And now, even younger people are being placed in this remote nursing facility. In 2010, 28% percent of the individuals at Glencliff, like one of the named plaintiffs, were in their 40s or 50s.
But they need not remain there, according to advocates for the plaintiffs. “People with serious mental illnesses, including those who have been institutionalized for years or have suffered repeated hospitalizations, can have successful and fulfilling lives,” said Steven Schwartz of the Center for Public Representation. “But living in one’s own home, maintaining relationships with family and friends, or finding and keeping a job can be challenging or even impossible without access to appropriate services.”
Other states have proven that individuals with serious mental illness can recover and live productive lives in the community with services that include mobile crisis intervention, assertive community treatment, supportive housing, and supported employment. Other states also have demonstrated that these clinically effective services are cost-effective as well, and reduce the need for expensive institutions.
With these services, individuals can access a coordinated array of psychiatric, rehabilitation, and medical supports in the community, and are able to live at home, obtain employment, and contribute to their communities.
Ironically, New Hampshire was once a leader in the delivery of community services to individuals with disabilities, and in the late 1980s, was recognized by the National Institute of Mental Health for its leadership in providing services in community settings. However, the state’s commitment to communitybased services was short-lived, and the rates of institutionalization rose as community services declined. New Hampshire reneged on its commitment to develop a system of community-based services, ignored the findings and recommendations of its own officials, and violated federal and state law. As a result, from 1989 to 2010, annual admissions to NHH increased by 150% from about 900 to about 2,300.
In addition to Gov. Lynch, the other named defendants are DHHS Commissioner Nicholas A. Toumpas; DHHS Asst. Commissioner Nancy L. Rollins; DHHS Deputy Commissioner Mary Ann Cooney; and Erik G. Riera, the administrator of the New Hampshire Bureau of Behavioral Health."
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FACT 3: State Agrees To $30 Million Settlement In Mental Health Lawsuit
By Todd Bookman and
Brady Carlson
Dec 19, 2013
"The state of New Hampshire has agreed to settle a major class-action lawsuit over its treatment of residents with serious mental illness.
Under the terms of the agreement announced Thursday, the state will spend an additional $30 million on expanding services for the strained mental health system over the next 4 years.
“The first priority in this case for the New Hampshire Department of Justice has been to ensure that the State of New Hampshire is able to develop its own plan for community mental health services that best meets the needs of its residents,” Attorney General Foster wrote in a statement. “This settlement agreement, developed in conjunction with the New Hampshire Department of Health and Human Services, enhances the State’s mental health services to address the concerns of the plaintiffs.”
The state agrees to spend an additional $6 million in the current budget, plus an additional $23.7 million in the next two-year spending plan. The resources will support more round-the-clock care for people in crisis, as well as more community housing and employment opportunities.
Governor Hassan says the settlement builds on the additional money she pushed for in the current budget for mental health services.
“Reaching this settlement ensures that we can continue addressing our mental health challenges in a fiscally responsible way that protects the state’s budget and that ensures that New Hampshire citizens are driving improvements in our mental health system – not federal judges,” she wrote in a statement. “Continuing the lawsuit would undoubtedly have cost the state millions of dollars in legal fees and untold millions more per year if the state had not prevailed in its case.”
Under the terms of the settlement, if the state legislature doesn’t agree to the funding levels, the plaintiffs in the case retain the right to resume their legal battle.
The state also agrees to pay the $2.4 million in legal fees accrued by the plaintiffs.
The Disabilities Rights Center brought the suit in February, 2012 citing violations of the Americans with Disabilities Act. It was joined by six residents with psychiatric disabilities who were allegedly subjected to prolonged or needless stays in state institutions due to a lack of community-based mental health services. The U.S. Department of Justice joined the case in March, 2012, citing the same failures.
Ken Norton with the National Alliance on Mental Illness of New Hampshire applauded the agreement. He says it will reduce the need for hospitalizations and provide critical services to residents in need.
“This negotiated settlement is a major step forward for New Hampshire,” says Norton. “It reflects the bipartisan recognition that services to adults with severe mental illness and children with serious emotional disorders must be improved immediately.”
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FACT 3. THE UNITED STATES JUSTICE DEPARMENT SAID...
“Today’s agreement realizes the promise of the Americans with Disabilities Act for people with serious mental illness in New Hampshire,” said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. “It will better ensure that effective community services will get to the people most in need when and where they need services – in their homes and communities. These services will help people with mental illness avoid and respond to crises without escalating them and without giving up their important connections to their communities. This agreement is also a testament to the vision and leadership of Governor Maggie Hassan and Attorney General Joe Foster.”
“The settlement of this landmark federal civil rights lawsuit marks a major step forward in New Hampshire’s treatment of one of its most vulnerable populations – those who suffer from mental illness,” said U.S. Attorney John P. Kacavas for the District of New Hampshire. “I commend the progressive leadership of Governor Hassan and New Hampshire Attorney General Joe Foster and their respective staffs, without whose efforts and will this achievement would not have been possible.”
The agreement requires the state to create and expand services over the next six years. The state will: create new mobile crisis teams and new community crisis apartments in Manchester, Concord and Nashua; expand and enhance Assertive Community Treatment team services, which will provide state-wide coverage for at least 1,500 people; add hundreds of new supported housing units and work to create community alternatives for people with complex health care needs; and expand effective supported employment services for hundreds of people. An independent expert reviewer will evaluate the state’s compliance with the agreement and will issue public reports on the state’s ongoing implementation efforts."
FACT 4:
"The state had originally agreed to spend an additional $6 million in the current budget, plus an additional $23.7 million in the next two-year spending plan. The resources will support more round-the-clock care for people in crisis, as well as more community housing and employment opportunities."
So exactly what did happened to those reports supposedly done by an "independent expert" on the state's compliance with the agreement made 5 years ago to the United States Justice Department and NH!?!
"Stephen Day, the expert reviewer overseeing reforms called for in the NH settlement of a 2012 lawsuit by patients and advocates, said the state’s failure to keep its promises had left some patients without treatment, waiting in hospital emergency rooms for high-level care or institutionalized when they could otherwise be receiving care through community clinics and services.
“The time for patience on these issues is over,” Day wrote. He noted “the need for the State to be more aggressive, assertive, planful, and timely in its implementation and oversight efforts” of the lawsuit settlement.
Day, who in January issued his last assessment, said the state
“has been and currently remains out of compliance”
with its obligation to expand and upgrade so-called Assertive Community Treatment teams. Such teams are made up of caregivers with a range of skills and training and provide high-level, ongoing treatment in community settings to patients with serious mental illness.
The state had also failed to meet its obligation to develop community services that would enable 10 patients to move out of the Glencliff Home, a state-operated nursing facility, he wrote.
In addition, Day found that while the state had surpassed its goal of having at least 18 percent of its seriously mentally ill patients in supported employment, some regions fell well short of the target rate because the statewide rate was increased by placements in the Manchester area, which had a supported employment rate of about 37 percent.
Supported employment refers to services that help patients find and retain jobs.
Studies at Dartmouth and elsewhere have found that such services enhance and complement other treatments for serious mental illness.
West Central reported supported employment for 15 percent of its patients.
Day called for the state to have in place by Aug. 1 detailed plans for expanding and upgrading ACT teams, widening access to supported employment services and moving residents out of Glencliff. He also urged the state to begin issuing monthly progress reports on those plans.
Aaron Ginsberg, a lawyer for the New Hampshire Disability Rights Center, which represented the lawsuit plaintiffs, welcomed Day’s recommendations for action: “We hope the state follows that.”
Jeffrey Meyers, the state health and human services commissioner, acknowledged the shortcomings in the key areas identified by Day, but said his department “is committed to meeting the milestones set out in (Day’s) report and to continuing to implement the (settlement agreement).”
Meyers noted that Day had seen progress in data gathering and analysis, supported employment and efforts to find housing for mentally ill patients outside of institutions. “Access to quality mental health services is the (Health and Human Services) Department’s priority,” Meyers wrote in an emailed statement.
But Ken Norton, the executive director of the New Hampshire affiliate of the National Alliance on Mental Illness, an advocacy group for patients and their families, said the state’s deficiencies in mental health care extend beyond the issues addressed in the lawsuit settlement.
The state lacks “a clear strategic plan for mental health services and where we need to go,” Norton said. “The state has looked at the settlement agreement as the goal line but it’s really the starting line” for reform of mental health care, he added.
By one key measure, the state, which has an estimated 45,000 adults with serious mental illness, remains a long way from either line. The number of patients waiting on an average day in hospital emergency rooms for space in facilities that offer high-level treatment of serious mental illness rose to 28 in fiscal 2016, from 24 two years earlier, Day found. By comparison, the daily average in Vermont of patients waiting was less than one in 2015.
Day saw progress toward some goals of the settlement agreement, which was formalized in February 2014. For example, the state was “at or very close to compliance” with its obligation to expand the supply of so-called supportive housing for people with serious mental illness, Day found. There were 423 individuals in leased units and 26 approved for subsidies but not yet placed., which fell just short of the Settlement Agreement’s target of 450 placements by June 30, he said.
But the state fell far short of its goal for expanding the role of Assertive Community Treatment teams, which include psychiatrists and others with various caregiving skills. Such teams, which were a centerpiece of the reforms called for in the lawsuit settlement, promised to expand the availability of services and reduce the need for institutional care by reaching patients in their homes and communities.
But only 839 patients were receiving care from such teams, far below the 1,500 the agreement set as the June 30 target for ACT capacity, Day found. In addition, staffing at many teams fell short of the agreed-upon standard of seven to 10 professional caregivers.
West Central had the thinnest ACT staffing of any the state’s 10 community mental health centers, Day found, with only four full-time-equivalent positions on the team. West Central also had the fewest patients receiving care from its team — 26.
Suellen Griffin, the executive director of West Central, said the Lebanon-based nonprofit now has money in its budget to boost its ACT effort to the level called for in the settlement agreement — roughly, seven team members treating 70 patients. West Central is seeking to recruit the caregivers who would actually provide the services, she said.
Griffin, who heads a statewide organization of community mental health clinics and in the past had balked at the pressure to expand ACT services without being provided necessary financial support, said West Central and other groups now support the effort to expand and upgrade ACT teams: “We get that we need to share this responsibility.”
Meyers, who took over at HHS in January, had set a new tone in relations with the community mental health clinics, Griffin said. “We have a partner. We don’t have somebody lecturing us. That’s different.”
Day’s review was the product of visits to some state and community mental health facilities and meetings with parties to the lawsuit, which alleged that scores of patients were needlessly institutionalized because the state had illegally failed to provide sufficient community mental health services and care.
As of 2018, the state apparently is in contempt of court with the United States Department of Justice for it's failure to comply with the 2012 agreement to invest $30 million in mental healthcare within the immediate following 2 years. We are now 5 years later and in more of a crisis than ever before!"
What is New Hampshire really doing with TAXPAYER'S money because it clearly isn't going where it is suppose to!
The state’s defense was that instituting the enhanced community-based care the plaintiffs were seeking would “fundamentally alter” the nature of the state’s mental health services and programs (28 CFR §35.130(b)(7) (1998)). The underlying federal regulation states that if a government entity can demonstrate that increased integration of people with disabilities would result in a fundamental alteration of services, the government could not be forced to implement the less restrictive policies and procedures. In Olmstead, the US Supreme Court recites the regulation “with the caveat that we do not here determine [its] validity.”
Olmstead has served as the back drop for similar civil rights cases around the country, many of which have ended in settlement. Over the past five years, the US Department of Justice has stepped-up its enforcement, conducting independent investigations and joining forces with plaintiffs, as it did in New Hampshire when it became an intervener in the case. John Kacavas, US Attorney for the District of New Hampshire, said the increased enforcement was a direct result of new leadership in the civil rights division at the DOJ.
Due to the complex factual and legal issues in the case, both sides sought litigation support from private firms. The state hired Sheehan Phinney; Devine Millimet, without the expectation of payment, agreed to assist the DRC, starting in 2010. The DRC also received support from two advocacy groups, the Bazelon Center for Mental Health Law in Washington, DC, and the Center for Public Representation, based in Newton, Mass. Dozens of lawyers, from New Hampshire and elsewhere, worked on the case.
There was some disappointment, on both sides, that the case didn’t make it to trial.
“We were about to get into the fun stuff,” said Turner, of Sheehan Phinney. “There were some good arguments, and it’s an interesting area of the law.”
Will, of Devine Millimet, said that through working on the case and spending time with the plaintiffs, he gained a better understanding of people who suffer from mental illness. “They are people who have a lot to offer and also have a lot of need, and they’re often overlooked,” he said, adding: “This is not part of our daily routine, and as a lawyer, professionally, it’s incredibly rewarding to be able to be part of something like this. It’s inspiring.” Discovery on a Different Scale “Inspiring” was not a word any of the lawyers who worked on the case used to describe the long process of electronic discovery.
Imagine a football field filled with rows of banker’s boxes, stacked 11 high. That’s the analogy one IT expert used to describe the immense volume of electronic data produced int he course of litigating Amanda D. et al v. Hassan.
“‘Terabytes’ was what we were using to describe it, and that was the first time we had heard state documents described that way,” said Edwards, of the NH Attorney General’s Office.
The plaintiffs and the United States sought extensive discovery, with requests covering New Hampshire’s mental health and long-term care institutions, as well as information regarding community mental health services, homelessness, housing, Medicaid, and budget and financial information. Messer, of the DRC, said the broad scope of discovery was essential to showing that people wanted community-based services and could receive them, without a fundamental alteration of the state’s system. The defense viewed the discovery requests differently. “Their strategy was to ask for everything under the sun,” Turner said.
It took more than a year for the parties to decide how electronic discovery would be collected, exchanged, stored and searched.
There was so much data that it could not be stored on state servers. The in-house litigation support specialist at Sheehan Phinney, Charlie Stewart, worked with software vendors to craft a custom, $80,000 software program capable of indexing, tagging and searching the vast collection of documents.
State technical experts worked with the IT staff at Sheehan Phinney to transfer the documents from state servers to new servers at the firm’s Manchester offices, where they will remain until the case is dismissed. It was the first
time a collection of sensitive state documents –hundreds of millions of pages of emails, patient notes, treatment plans, Medicaid records and much more – has ever left state control.
“It took months of the two IT staffs working together to figure out how to move them,” Edwards said, “and we could not make a mistake, because these are people’s mental health records.”
The US Department of Justice assisted the DRC and litigation partner Devine Millimet with storing and searching the electronic discovery, Messer said.
The plaintiffs identified more than 200 custodian sand made more than 200 requests for production and interrogatories. It was impossible for every electronic document to be reviewed, so the state relied on a claw-back provision in the electronic discovery stipulation and good faith on both sides to ensure no privileged information was released to the plaintiffs.
The files of former governor John Lynch and Gov. Maggie Hassan had to be stored on separate servers due to the special confidentiality rules related to executive privilege. Those files “could only be searched in certain ways by certain people,” Turner said.
“It was a very confusing process,” said Edwards, who explained that executive privilege is often challenged in litigation with the state. “We don’t really have a good Supreme Court case on executive privilege in New Hampshire.”
Not all of the discovery material in the mental health case was electronic. There were hundreds of boxes of paper files from the NH Department of Health and Human Services, New Hampshire Hospital and the Glencliff Home. Those boxes were crammed into rooms at NHH, where a group of attorneys pored over them for weeks, using Post-It notes to categorize them, and scanning them into the monstrous discovery database.
“Every single piece of paper got attorney’s eyes on it,” Turner said. Reaching Agreement The federal court granted the plaintiffs’ highly contested motion for class certification in September 2013, but by that time, a new round of settlement negotiations had already begun. After the Legislature added $24 million back into the state budget for mental health services last summer, the phone rang in NH Attorney General Joseph Foster’s office.
“US Attorney John Kacavas reached out to Attorney General Foster,” Edwards said. “He was not interested in watching people in his office and people in our office go to trial in a case where a settlement would have been better for everyone.”
New Hampshire had a new governor, political control had shifted in the State House, and the cost of litigation was mounting. Kacavas said he made the phone call, but that “the credit, in my view, goes to [Attorney General] Joe Foster’s office and the governor’s office.” The parties were newly motivated, “not just to resolve it from a litigation standpoint, but to start to remediate the problem of a lack of community resources for mental health care,” he said.
Accepted by the court in February, the settlement agreement, which requires the state and local mental health centers to institute a variety of community-based treatment programs, is contingent on legislative appropriations. The NH House last month approved a combination of state and federal funds totaling about $11 million for the remainder of the current biennium. The agreement also requires the state to pay plaintiffs’ attorneys fees totaling $2.4 million and to pay the DRC and an expert monitor to ensure state compliance over the next four years.
“I think the important thing is what’s not in the agreement,” said Edwards. The state fought against the reduction of funding for acute care and reducing the number of dedicated mental health emergency beds. “Closing beds has been a requirement of DOJ settlements in other states,” she said.
Although attorneys for the state believed they had some strong arguments, Edwards said, state officials wanted to avoid a settlement agreement that wouldn’t suit New Hampshire, which could have been the result, if the state lost at trial. “We knew we had vulnerabilities with the state system, because there had been cuts,” she said. “We were concerned that the outcome be New Hampshire-centric, not a cookie-cutter settlement.”
Both sides agreed that the New Hampshire attorneys who worked on the case were as collegial as possible, given the complex circumstances and what was at stake, but out-of-state lawyers who stepped in brought out-of-state practices with them, changing the tone.
The so-called “New Hampshire way” of practicing law involves a degree of collegiality aimed at moving the case along, rather than strategies that seek tactical advantage. While many attorneys here have found a balance that enables this type of practice – and not at the expense of vigorous advocacy for the client – lawyers in other places dothings differently. That became apparent inthis case, Edwards said.
“We were trying to do this in the New Hampshire fashion,” she said. “Sometimes it sounds a little hokey to say that, but it really is true.” A Big Step Although the litigation is over for now, in many ways the settlement marks the beginning of a new phase of the case – implementation and monitoring compliance.
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The complexities of health care administration in New Hampshire, compounded by the move to managed care, the rollout of the Affordable Care Act and the debate over Medicaid expansion, led to many major benchmarks in the settlement agreement being pushed out to2015 and 2016, though some changes must be complete by the end of June.
The settlement agreement will cost the state more than$30 million between now and the end of the next biennium, but the enhancement of community-based mental health services, which are expected to keep people in their homes and out of institutions, has the potential for substantial cost savings over the long-term.
“People don’t necessarily realize the cost of the system when it’s in dysfunction,” Dan Will said. “It’s a big cost.”
Under the terms of the agreement announced Thursday, the state will spend an additional $30 million on expanding services for the strained mental health system over the next 4 years.
The state agrees to spend an additional $6 million in the current budget, plus an additional $23.7 million in the next two-year spending plan. The resources will support more round-the-clock care for people in crisis, as well as more community housing and employment opportunities.
Governor Hassan says the settlement builds on the additional money she pushed for in the current budget for mental health services.
“Reaching this settlement ensures that we can continue addressing our mental health challenges in a fiscally responsible way that protects the state’s budget and that ensures that New Hampshire citizens are driving improvements in our mental health system – not federal judges,” she wrote in a statement. “Continuing the lawsuit would undoubtedly have cost the state millions of dollars in legal fees and untold millions more per year if the state had not prevailed in its case.”
Under the terms of the settlement, if the state legislature doesn’t agree to the funding levels, the plaintiffs in the case retain the right to resume their legal battle.
The state also agrees to pay the $2.4 million in legal fees accrued by the plaintiffs.
The Disabilities Rights Center brought the suit in February, 2012 citing violations of the Americans with Disabilities Act. It was joined by six residents with psychiatric disabilities who were allegedly subjected to prolonged or needless stays in state institutions due to a lack of community-based mental health services. The U.S. Department of Justice joined the case in March, 2012, citing the same failures.
Ken Norton with the National Alliance on Mental Illness of New Hampshire applauded the agreement. He says it will reduce the need for hospitalizations and provide critical services to residents in need.
“This negotiated settlement is a major step forward for New Hampshire,” says Norton. “It reflects the bipartisan recognition that services to adults with severe mental illness and children with serious emotional disorders must be improved immediately.”
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FACT 3. THE UNITED STATES JUSTICE DEPARMENT SAID...
“Today’s agreement realizes the promise of the Americans with Disabilities Act for people with serious mental illness in New Hampshire,” said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. “It will better ensure that effective community services will get to the people most in need when and where they need services – in their homes and communities. These services will help people with mental illness avoid and respond to crises without escalating them and without giving up their important connections to their communities. This agreement is also a testament to the vision and leadership of Governor Maggie Hassan and Attorney General Joe Foster.”
“The settlement of this landmark federal civil rights lawsuit marks a major step forward in New Hampshire’s treatment of one of its most vulnerable populations – those who suffer from mental illness,” said U.S. Attorney John P. Kacavas for the District of New Hampshire. “I commend the progressive leadership of Governor Hassan and New Hampshire Attorney General Joe Foster and their respective staffs, without whose efforts and will this achievement would not have been possible.”
The agreement requires the state to create and expand services over the next six years. The state will: create new mobile crisis teams and new community crisis apartments in Manchester, Concord and Nashua; expand and enhance Assertive Community Treatment team services, which will provide state-wide coverage for at least 1,500 people; add hundreds of new supported housing units and work to create community alternatives for people with complex health care needs; and expand effective supported employment services for hundreds of people. An independent expert reviewer will evaluate the state’s compliance with the agreement and will issue public reports on the state’s ongoing implementation efforts."
FACT 4:
"The state had originally agreed to spend an additional $6 million in the current budget, plus an additional $23.7 million in the next two-year spending plan. The resources will support more round-the-clock care for people in crisis, as well as more community housing and employment opportunities."
So exactly what did happened to those reports supposedly done by an "independent expert" on the state's compliance with the agreement made 5 years ago to the United States Justice Department and NH!?!
"Stephen Day, the expert reviewer overseeing reforms called for in the NH settlement of a 2012 lawsuit by patients and advocates, said the state’s failure to keep its promises had left some patients without treatment, waiting in hospital emergency rooms for high-level care or institutionalized when they could otherwise be receiving care through community clinics and services.
“The time for patience on these issues is over,” Day wrote. He noted “the need for the State to be more aggressive, assertive, planful, and timely in its implementation and oversight efforts” of the lawsuit settlement.
Day, who in January issued his last assessment, said the state
“has been and currently remains out of compliance”
with its obligation to expand and upgrade so-called Assertive Community Treatment teams. Such teams are made up of caregivers with a range of skills and training and provide high-level, ongoing treatment in community settings to patients with serious mental illness.
The state had also failed to meet its obligation to develop community services that would enable 10 patients to move out of the Glencliff Home, a state-operated nursing facility, he wrote.
In addition, Day found that while the state had surpassed its goal of having at least 18 percent of its seriously mentally ill patients in supported employment, some regions fell well short of the target rate because the statewide rate was increased by placements in the Manchester area, which had a supported employment rate of about 37 percent.
Supported employment refers to services that help patients find and retain jobs.
West Central reported supported employment for 15 percent of its patients.
Day called for the state to have in place by Aug. 1 detailed plans for expanding and upgrading ACT teams, widening access to supported employment services and moving residents out of Glencliff. He also urged the state to begin issuing monthly progress reports on those plans.
Aaron Ginsberg, a lawyer for the New Hampshire Disability Rights Center, which represented the lawsuit plaintiffs, welcomed Day’s recommendations for action: “We hope the state follows that.”
Jeffrey Meyers, the state health and human services commissioner, acknowledged the shortcomings in the key areas identified by Day, but said his department “is committed to meeting the milestones set out in (Day’s) report and to continuing to implement the (settlement agreement).”
Meyers noted that Day had seen progress in data gathering and analysis, supported employment and efforts to find housing for mentally ill patients outside of institutions. “Access to quality mental health services is the (Health and Human Services) Department’s priority,” Meyers wrote in an emailed statement.
But Ken Norton, the executive director of the New Hampshire affiliate of the National Alliance on Mental Illness, an advocacy group for patients and their families, said the state’s deficiencies in mental health care extend beyond the issues addressed in the lawsuit settlement.
The state lacks “a clear strategic plan for mental health services and where we need to go,” Norton said. “The state has looked at the settlement agreement as the goal line but it’s really the starting line” for reform of mental health care, he added.
By one key measure, the state, which has an estimated 45,000 adults with serious mental illness, remains a long way from either line. The number of patients waiting on an average day in hospital emergency rooms for space in facilities that offer high-level treatment of serious mental illness rose to 28 in fiscal 2016, from 24 two years earlier, Day found. By comparison, the daily average in Vermont of patients waiting was less than one in 2015.
Day saw progress toward some goals of the settlement agreement, which was formalized in February 2014. For example, the state was “at or very close to compliance” with its obligation to expand the supply of so-called supportive housing for people with serious mental illness, Day found. There were 423 individuals in leased units and 26 approved for subsidies but not yet placed., which fell just short of the Settlement Agreement’s target of 450 placements by June 30, he said.
But the state fell far short of its goal for expanding the role of Assertive Community Treatment teams, which include psychiatrists and others with various caregiving skills. Such teams, which were a centerpiece of the reforms called for in the lawsuit settlement, promised to expand the availability of services and reduce the need for institutional care by reaching patients in their homes and communities.
But only 839 patients were receiving care from such teams, far below the 1,500 the agreement set as the June 30 target for ACT capacity, Day found. In addition, staffing at many teams fell short of the agreed-upon standard of seven to 10 professional caregivers.
West Central had the thinnest ACT staffing of any the state’s 10 community mental health centers, Day found, with only four full-time-equivalent positions on the team. West Central also had the fewest patients receiving care from its team — 26.
Suellen Griffin, the executive director of West Central, said the Lebanon-based nonprofit now has money in its budget to boost its ACT effort to the level called for in the settlement agreement — roughly, seven team members treating 70 patients. West Central is seeking to recruit the caregivers who would actually provide the services, she said.
Griffin, who heads a statewide organization of community mental health clinics and in the past had balked at the pressure to expand ACT services without being provided necessary financial support, said West Central and other groups now support the effort to expand and upgrade ACT teams: “We get that we need to share this responsibility.”
Meyers, who took over at HHS in January, had set a new tone in relations with the community mental health clinics, Griffin said. “We have a partner. We don’t have somebody lecturing us. That’s different.”
Day’s review was the product of visits to some state and community mental health facilities and meetings with parties to the lawsuit, which alleged that scores of patients were needlessly institutionalized because the state had illegally failed to provide sufficient community mental health services and care.
As of 2018, the state apparently is in contempt of court with the United States Department of Justice for it's failure to comply with the 2012 agreement to invest $30 million in mental healthcare within the immediate following 2 years. We are now 5 years later and in more of a crisis than ever before!"
What is New Hampshire really doing with TAXPAYER'S money because it clearly isn't going where it is suppose to!
SHAME ON NH'S GOVERNMENT FOR LYING ABOUT HELPING
MENTAL HEALTHCARE, SHAME ON YOU!
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BONUS: WHAT THE NH BAR ASSOCIATION
HAD TO SAY ABOUT THIS CASE
"The Law Amanda D. et al v. Hassan hinged on the US Supreme Court’s 1999 decision in Olmstead, which states that people suffering from mental illness have a right to receive treatment in their communities when “the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking in to account the resources available to the State and the needs of others with mental disabilities.” The decision clarified that segregation through mental health treatment in unnecessarily restrictive settings qualifies as discrimination under the ADA.
The state’s defense was that instituting the enhanced community-based care the plaintiffs were seeking would “fundamentally alter” the nature of the state’s mental health services and programs (28 CFR §35.130(b)(7) (1998)). The underlying federal regulation states that if a government entity can demonstrate that increased integration of people with disabilities would result in a fundamental alteration of services, the government could not be forced to implement the less restrictive policies and procedures. In Olmstead, the US Supreme Court recites the regulation “with the caveat that we do not here determine [its] validity.”
Olmstead has served as the back drop for similar civil rights cases around the country, many of which have ended in settlement. Over the past five years, the US Department of Justice has stepped-up its enforcement, conducting independent investigations and joining forces with plaintiffs, as it did in New Hampshire when it became an intervener in the case. John Kacavas, US Attorney for the District of New Hampshire, said the increased enforcement was a direct result of new leadership in the civil rights division at the DOJ.
Due to the complex factual and legal issues in the case, both sides sought litigation support from private firms. The state hired Sheehan Phinney; Devine Millimet, without the expectation of payment, agreed to assist the DRC, starting in 2010. The DRC also received support from two advocacy groups, the Bazelon Center for Mental Health Law in Washington, DC, and the Center for Public Representation, based in Newton, Mass. Dozens of lawyers, from New Hampshire and elsewhere, worked on the case.
There was some disappointment, on both sides, that the case didn’t make it to trial.
“We were about to get into the fun stuff,” said Turner, of Sheehan Phinney. “There were some good arguments, and it’s an interesting area of the law.”
Will, of Devine Millimet, said that through working on the case and spending time with the plaintiffs, he gained a better understanding of people who suffer from mental illness. “They are people who have a lot to offer and also have a lot of need, and they’re often overlooked,” he said, adding: “This is not part of our daily routine, and as a lawyer, professionally, it’s incredibly rewarding to be able to be part of something like this. It’s inspiring.” Discovery on a Different Scale “Inspiring” was not a word any of the lawyers who worked on the case used to describe the long process of electronic discovery.
Imagine a football field filled with rows of banker’s boxes, stacked 11 high. That’s the analogy one IT expert used to describe the immense volume of electronic data produced int he course of litigating Amanda D. et al v. Hassan.
“‘Terabytes’ was what we were using to describe it, and that was the first time we had heard state documents described that way,” said Edwards, of the NH Attorney General’s Office.
The plaintiffs and the United States sought extensive discovery, with requests covering New Hampshire’s mental health and long-term care institutions, as well as information regarding community mental health services, homelessness, housing, Medicaid, and budget and financial information. Messer, of the DRC, said the broad scope of discovery was essential to showing that people wanted community-based services and could receive them, without a fundamental alteration of the state’s system. The defense viewed the discovery requests differently. “Their strategy was to ask for everything under the sun,” Turner said.
It took more than a year for the parties to decide how electronic discovery would be collected, exchanged, stored and searched.
There was so much data that it could not be stored on state servers. The in-house litigation support specialist at Sheehan Phinney, Charlie Stewart, worked with software vendors to craft a custom, $80,000 software program capable of indexing, tagging and searching the vast collection of documents.
State technical experts worked with the IT staff at Sheehan Phinney to transfer the documents from state servers to new servers at the firm’s Manchester offices, where they will remain until the case is dismissed. It was the first
time a collection of sensitive state documents –hundreds of millions of pages of emails, patient notes, treatment plans, Medicaid records and much more – has ever left state control.
“It took months of the two IT staffs working together to figure out how to move them,” Edwards said, “and we could not make a mistake, because these are people’s mental health records.”
The US Department of Justice assisted the DRC and litigation partner Devine Millimet with storing and searching the electronic discovery, Messer said.
The plaintiffs identified more than 200 custodian sand made more than 200 requests for production and interrogatories. It was impossible for every electronic document to be reviewed, so the state relied on a claw-back provision in the electronic discovery stipulation and good faith on both sides to ensure no privileged information was released to the plaintiffs.
The files of former governor John Lynch and Gov. Maggie Hassan had to be stored on separate servers due to the special confidentiality rules related to executive privilege. Those files “could only be searched in certain ways by certain people,” Turner said.
“It was a very confusing process,” said Edwards, who explained that executive privilege is often challenged in litigation with the state. “We don’t really have a good Supreme Court case on executive privilege in New Hampshire.”
Not all of the discovery material in the mental health case was electronic. There were hundreds of boxes of paper files from the NH Department of Health and Human Services, New Hampshire Hospital and the Glencliff Home. Those boxes were crammed into rooms at NHH, where a group of attorneys pored over them for weeks, using Post-It notes to categorize them, and scanning them into the monstrous discovery database.
“Every single piece of paper got attorney’s eyes on it,” Turner said. Reaching Agreement The federal court granted the plaintiffs’ highly contested motion for class certification in September 2013, but by that time, a new round of settlement negotiations had already begun. After the Legislature added $24 million back into the state budget for mental health services last summer, the phone rang in NH Attorney General Joseph Foster’s office.
“US Attorney John Kacavas reached out to Attorney General Foster,” Edwards said. “He was not interested in watching people in his office and people in our office go to trial in a case where a settlement would have been better for everyone.”
New Hampshire had a new governor, political control had shifted in the State House, and the cost of litigation was mounting. Kacavas said he made the phone call, but that “the credit, in my view, goes to [Attorney General] Joe Foster’s office and the governor’s office.” The parties were newly motivated, “not just to resolve it from a litigation standpoint, but to start to remediate the problem of a lack of community resources for mental health care,” he said.
Accepted by the court in February, the settlement agreement, which requires the state and local mental health centers to institute a variety of community-based treatment programs, is contingent on legislative appropriations. The NH House last month approved a combination of state and federal funds totaling about $11 million for the remainder of the current biennium. The agreement also requires the state to pay plaintiffs’ attorneys fees totaling $2.4 million and to pay the DRC and an expert monitor to ensure state compliance over the next four years.
“I think the important thing is what’s not in the agreement,” said Edwards. The state fought against the reduction of funding for acute care and reducing the number of dedicated mental health emergency beds. “Closing beds has been a requirement of DOJ settlements in other states,” she said.
Although attorneys for the state believed they had some strong arguments, Edwards said, state officials wanted to avoid a settlement agreement that wouldn’t suit New Hampshire, which could have been the result, if the state lost at trial. “We knew we had vulnerabilities with the state system, because there had been cuts,” she said. “We were concerned that the outcome be New Hampshire-centric, not a cookie-cutter settlement.”
Both sides agreed that the New Hampshire attorneys who worked on the case were as collegial as possible, given the complex circumstances and what was at stake, but out-of-state lawyers who stepped in brought out-of-state practices with them, changing the tone.
The so-called “New Hampshire way” of practicing law involves a degree of collegiality aimed at moving the case along, rather than strategies that seek tactical advantage. While many attorneys here have found a balance that enables this type of practice – and not at the expense of vigorous advocacy for the client – lawyers in other places dothings differently. That became apparent inthis case, Edwards said.
“We were trying to do this in the New Hampshire fashion,” she said. “Sometimes it sounds a little hokey to say that, but it really is true.” A Big Step Although the litigation is over for now, in many ways the settlement marks the beginning of a new phase of the case – implementation and monitoring compliance.
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The complexities of health care administration in New Hampshire, compounded by the move to managed care, the rollout of the Affordable Care Act and the debate over Medicaid expansion, led to many major benchmarks in the settlement agreement being pushed out to2015 and 2016, though some changes must be complete by the end of June.
The settlement agreement will cost the state more than$30 million between now and the end of the next biennium, but the enhancement of community-based mental health services, which are expected to keep people in their homes and out of institutions, has the potential for substantial cost savings over the long-term.
“People don’t necessarily realize the cost of the system when it’s in dysfunction,” Dan Will said. “It’s a big cost.”
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