New Hampshire charged with violating ADA

In 2008, the Bureau of Behavioral Health within the Department of Health and Human Services (DHHS) analyzed the state’s mental health system and presented its findings and suggestions for improvements in a report. “Addressing the Critical Mental Health Needs of New Hampshire’s Citizens: A Strategy for Restoration,” a comprehensive 10-year plan, recommended increasing community residential supports and community-based psychiatric care, developing assertive community treatment teams and creating a retention and development plan for community mental health workforce as well as a budget to implement the changes. But on Feb. 9, six N.H. residents with psychiatric illnesses filed a class action suit against the state for failing to provide appropriate community-based mental health services in lieu of lengthy and unnecessary institutionalization.

According to a press release issued by the Disabilities Rights Center, which is representing the plaintiffs in conjunction with Devine Millimet & Branch, the Judge David L. Bazelon Center for Mental Health Law and the Center for Public Representation, Gov. John H. Lynch and four other state officials are charged with violating the American Disabilities Act (ADA), the Rehabilitation Act of 1973 and the Nursing Home Reform Act (NHRA).

The lawsuit, Lynn E. vs. Lynch, comes on the heels of similar findings from the U.S. Department of Justice (DOJ) after an investigation into New Hampshire’s mental health system. The DOJ began its inquiry on Nov. 19, 2010 and on April 7, 2011 issued a 28-page report that outlined the violations.

The federal report states that New Hampshire officials acknowledged the existence of “unmet needs” and “weaknesses” in its mental health system, which include “day-to-day harm associated with improperly and/or under- treated mental health conditions, needless visits to local hospital emergency departments, needless admissions to institutional settings like New Hampshire Hospital, the state’s only psychiatric facility, and Glencliff Home [a 120-bed, long-term care nursing facility in Benton], and the serious incidents that prompt involvement with law enforcement, the correctional system and the court system.”

In spite of this knowledge, the state continued to opt for institutionalization versus “less expensive and more therapeutic alternatives [that] could be developed in the community.” To institutionalize an individual at N.H. Hospital costs approximately $287,000 annually, while the price tag to serve an individual in the community is around $44,000, according to the report.

Moreover, approximately 45 percent of patients had been at N.H. Hospital for more than 30 days and 16 percent had been institutionalized longer than a year. Readmission rates within 30 days of discharge were 17 percent; 35 percent were readmitted within 180 days of discharge. Of the 1,800 adult admissions to N.H. Hospital in 2010, about 800 were readmitted within 180 days of previous discharge.

The DOJ report notes that patients were also sent to Glencliff, located in a remote part of the state where annual costs run about $124,000 per individual. Between 2005 and 2011, only 13 individuals were discharged from Glencliff; 11 of those went to N.H. Hospital or other facilities and two individuals returned to their homes. Additionally, those admitted have been younger; in 2010, 28 percent of admissions were in their 40s and 50s.

New Hampshire’s Attorney General Michael A. Delaney argued against the USDOJ’s findings in a letter dated Dec. 6, pointing out that the state had closed a 12-bed unit at N.H. Hospital and used the savings to create two Assertive Community Treatment (ACT) teams and had privatized its Transitional Housing Services, reinvesting those financial resources into expanding intensive community programs.

Three days later, the federal bureau responded and reaffirmed its conclusions. In part, the letter said, “New Hampshire’s mental health system, as currently configured, not only violates the ADA, but also is an inefficient use of state resources and is bad policy. New Hampshire is spending about as much to serve 5 percent of people with mental illness in New Hampshire Hospital as it spends to serve the entire remaining 95 percent in the community. As described in our findings letter, the state could serve roughly six people in the community for each person it serves at New Hampshire Hospital. New Hampshire could clearly spend its dollars more effectively. ”

During a press conference at the time the suit was filed, Amy B. Messer, legal director at the Disabilities Rights Center, said that the plaintiffs have lost the freedom to choose “where to live and sleep, when and what they’ll eat and how and with whom they will spend their time.”

“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,” Messer says in a written statement. She adds that although the legislature and the Department of Health and Human Services acknowledged a problem in reports from 2004, 2007 and 2008, insufficient corrective action has taken place. “But in four years, the crisis has worsened,” Messer says.

The goals of the lawsuit are to expand community-based mental health services, implement a mobile crisis service, create an ACT program and enhance supportive housing and supported employment.