Advocates: Inadequate funding undercuts consent decree’s potential for mental health care

Advocates believe Maine’s refusal to appropriate enough money to meet a court decree is at the root of many problems in the mental health care system.
A man looks down at the ground while sitting in a chair
Inside the Preble Street soup kitchen in Portland.

Advocates for the mentally ill believe state government’s refusal to appropriate enough money to meet the demands of the 1990 “consent decree,” the court order requiring proper treatment of seriously mentally ill citizens, is at the root of many problems in Maine’s mental health care and criminal justice systems.

The claim that the decree’s mandates haven’t been met is supported by the fact that a judge hasn’t discharged the state from its obligations and that a court-appointed “special master,” Daniel Wathen, is still trying to get the consent decree enforced — 22 years after the reforms were supposed to have been accomplished.

“Shortly after the consent decree was signed, the state basically decided not to fund it,” said Richard Goldman, one of the seven attorneys who sued the state in 1989. “They used their money for other priorities.”

Robert Marks, another plaintiff lawyer, commented on the decree’s establishment of community services: “It’s not working as planned. Everything needs money.”

Neville Woodruff, yet another of these activist attorneys, went further, suggesting an attempt should be made to hold the governor and other government leaders in contempt of court if they won’t do what the consent decree requires. “I’ve always said that until somebody goes to jail, then the funding issues won’t get clarified,” he said.

Wathen, the former chief justice of the Maine Supreme Judicial Court, however, feels his power is limited: “The major authority I have is to make a recommendation that they do something” — meaning the Department of Health and Human Services (DHHS) — “and they either have to do it or challenge it in court within 21 days.”

Early on, the state was held in contempt by a judge for not producing a plan for mental health services, as the decree required. It then produced such a plan.

Daniel Wathen, “special master” of the consent decree.

But Wathen said it would be impossible to hold high officials in contempt for not spending more money on the mentally ill, simply because the consent decree doesn’t specifically require them, as officials, to do that.

The decree itself does require DHHS to “prepare budget requests which are calculated to meet the terms” of the decree. DHHS also is obligated to “take all necessary steps and exert good faith efforts to obtain adequate funding from the Legislature.”

The department largely deals with the consent decree by appearing before legislative committees to testify for the governor’s DHHS budget requests. Wathen said his pushing of DHHS to request funds has in the past been fruitful, citing his success in getting $5.8 million in state funds for non-MaineCare support of mentally ill adults in 2016 and similar funding for previous years.

He has also advocated for more funds for rental subsidies for mental patients (now at $6.6 million), Riverview Psychiatric Center and other elements of the mental health system.

Wathen said that the consent decree has had a “positive effect” because “it obligated the department to maintain a menu of mental health services” which range from crisis intervention to medication management and help with transportation and places to live.

Others have a less positive view. “Nobody talks about the consent decree anymore,” said Mark Swann, veteran director of the Preble Street homeless shelters in Portland. Community support for the mentally ill, he said, “never got established.”

There is, of course, some funding for community care, defined as all mental health services provided outside of state-run mental hospitals like Riverview and correctional facilities. The money largely goes to an assortment of private, mostly nonprofit, statewide and local agencies that provide services ranging from individual counseling to group homes.

However, Mary Mayhew, who served as Governor Paul LePage’s DHHS commissioner for six years — and now running for the GOP gubernatorial nomination — removed 13,000 people from MaineCare mental health services over the past five years, according to a report the department furnished to Pine Tree Watch.

(Neither DHHS nor the governor’s office would explain why, although the number of people served went down during five years of LePage’s tenure, MaineCare mental health care spending by the department actually went up by $24 million over those same five years. Regardless, the increase in spending remains below the general inflation rate and significantly below the health care inflation rate.)

Mayhew’s most important action was to make several categories of mentally ill people ineligible for MaineCare, the federal-state fund, known nationally as Medicaid, that pays for health care for poor and disabled people.

LePage, a fiscal conservative, has bragged about reducing the number of people getting MaineCare. Soon after he took office in 2011 there were 359,000 people in the program. Last February, there were 268,000.

Peter Steele, the governor’s communications chief, said tightening MaineCare was needed because previous administrations gave “able-bodied people essentially free health care,” putting the state in a “disastrous financial situation.”

In August, House Republicans sustained LePage’s veto of a Democrat-supported bill, LD 808, to put some mentally ill people — those suffering from bipolar disorder and post-traumatic stress — back onto the rolls of those receiving full MaineCare assistance. As it is now, only people suffering from schizophrenia or schizoaffective disorder qualify, though others may qualify if they need hospitalization or meet other conditions.

In his veto message, LePage said DHHS had determined those people cut were getting services without regard to what they were able to do or “demonstrated need.” Therefore, he said, giving them services “not clinically appropriate is unconscionable.”

Sen. Shenna Bellows, D-Manchester.

Democratic state Sen. Shenna Bellows, LD 808’s sponsor, said counselors and medical professionals who work with mentally ill people every day are seeing the consequences of LePage’s cuts: “Sadly, the proof is in the crises we’re seeing in county jails and hospitals.”

Commissioner Mayhew also wanted to lower MaineCare reimbursement rates for many caregivers, a change Democrats said would have resulted in driving people from this line of work. As part of the budget deal ending the brief state government shutdown in early July, Democratic lawmakers were successful in getting the administration to agree to a two-year freeze on those proposed changes.

LePage’s welfare cuts, said Simonne Maline, executive director of the Consumer Council System of Maine, a consent-decree-established group that advises DHHS, have resulted in mentally ill Mainers “struggling mightily” and engaging in more “self-medicating.”

Bipartisan blame

The squeeze on community care for mentally ill people over the decades, however, isn’t wholly the result of initiatives by fiscally tight-fisted Republicans.

Wathen said he continually fought Democratic Gov. John Baldacci’s administration over cutbacks and succeeded in getting state funds for non-MaineCare-supported mentally ill people.

Tom McAdam, CEO of Kennebec Behavioral Health in Waterville, said many agencies had either gotten out of psychological counseling or were doing “a lot less than before” because of reimbursement-rate cuts for counselors that went into effect back in the 2000s, during the Baldacci era.

And as long ago as 1996, a Portland Press Herald article quoted the Waldo County sheriff of the time, John Ford, as saying, when the Augusta Mental Health Institute (AMHI) was being downsized during Independent Gov. Angus King’s administration: “My assessment is we now have 15 little AMHIs — the county jails.”

Prison, mental-hospital funding

Maine prisons have suffered for years from staff shortages, high staff turnover, and mental-patient scandals often attributed to inadequate funding. The Long Creek youth prison in South Portland, where young people are, overwhelmingly, both mentally ill and have a drug-abuse history, has had particular difficulties filling positions.

mentally ill
Maine Department of Corrections Commissioner Joseph Fitzpatrick

Even in the wake of the scandal when mentally ill inmate Charles Maisie Knowles killed himself at Long Creek in late 2016, LePage eliminated six teacher positions — a big chunk of the teaching staff. At the insistence of Democratic legislators, the early July budget deal restored funding for them.

Prison care of the mentally ill, however — given such difficult environments — suffers from more than just a lack of money. With the kind of young people that Long Creek holds, Corrections Commissioner Joseph Fitzpatrick said, the staff “culture” needs to be changed, moving toward encouragement of good behavior and away from punishment. Toward this end, he recently hired Caroline Raymond, a prominent Maine social worker in the mental health and substance abuse field, as superintendent of the facility.

Fitzpatrick said he has been lobbying “for 24 years” for more mental health care for prisoners. Before becoming commissioner, he was in charge of mental health treatment for the prison system.

mental health
Riverview Psychiatric Center in Augusta.

Maine’s major mental hospital, Riverview Psychiatric Center in Augusta, long had a high rate of staff turnover, submitting patients to many different counselors in a few years’ span. The controversy due to the 2013 denial of Riverview’s federal funding finally moved the Legislature to appropriate more money for Riverview staff pay to try to stem this tide. Wathen feels pay rates at the facility are now “competitive.”

The defunding controversy also provoked wide acceptance of the need to build a mental health “forensic” unit — for people placed in a mental hospital by a court — to supplement Riverview’s 40 or so beds in that category. Originally intended for patients needing high security, LePage’s current plan is to build it in Bangor as a 21-bed “step-down” facility operated by a private company for prisoner-patients who no longer need intensive care.

Democrats, who don’t think highly of the privatization of state functions, have opposed the Bangor plan, but in the last legislative session didn’t succeed with a bill to lock its location in Augusta and ensure it would be government-run.

David Heidrich, Department of Administrative and Financial Services communications director, said the governor’s plan for the new facility is “being done.” Heidrich didn’t respond to repeated inquiries about how much the facility would cost, but Wathen said he believed the price tag would be in the neighborhood of $3 million to $4 million.


Lance Tapley

Lance Tapley, of Augusta, is a veteran investigative reporter and a co-author of “The United States and Torture: Interrogation, Incarceration, and Abuse,” published by New York University Press. 
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