Legislative panel, advocates: LePage proposal to create psych ward at prison won’t solve Riverview problems

Posted Aug. 27, 2013, at 7:47 p.m.

AUGUSTA, Maine — Whether the state chooses to expand a mental health unit at the state prison in Warren may have little bearing on whether the federal government cuts off $20 million in funding from Maine’s Riverview Psychiatric Center.

An ad-hoc committee of lawmakers, hastily formed last week in light of the looming funding crisis, contemplated the problem Tuesday for four hours, but seemed no closer to finding a comprehensive solution.

The full Legislature is set to convene Thursday in a special session called by Gov. Paul LePage, in part to vote on a bill that changes how so-called “forensic” patients are handled, including funding an expansion of the mental health unit at the state prison in Warren.

Theoretically, that expansion proposed under LD 1515, a bill offered by LePage’s administration, would ease some of overcrowding at Riverview and alleviate some of the safety concerns there raised by the federal Centers for Medicare and Medicaid Services.

That CMS review came after a hospital employee was attacked and injured by a patient in March.

A lengthy report issued by the federal government cited the hospital with failing to provide adequate safety measures to protect patients and staff. The report was critical of the hospital’s use of corrections officers and some of the techniques those officers used, including Tasers and handcuffs, to control some of the hospital’s most violent forensic patients.

The report also highlighted staffing and training shortcomings at the hospital.

Forensic patients are those who have been sent to the hospital by the judicial system and include individuals being evaluated for psychological competency, those deemed incompetent to stand trial and those who have been found not criminally responsible for their actions due to an underlying mental illness.

But state officials from both the Department of Corrections and Riverview told the legislative panel Tuesday that LePage’s proposal only solves a portion of the underlying problems at the state’s primary psychiatric hospital.

Under the legislation, which civil rights advocates are challenging, those either found incompetent to stand trial or those undergoing a psychological evaluations could be housed at the prison. Those found not criminally responsible would remain at Riverview. County jail inmates in need of mental health treatment could also be transferred to the prison under the proposal. Currently, they are sent to Riverview when space is available.

The legislation would allow those individuals to remain in the custody of the Department of Corrections as opposed to being placed in the custody of the Department of Health and Human Services.

Riverview Superintendent Mary Louise McEwen told the panel Tuesday that the state remains in negotiations with the federal government over the funding issue but has yet to receive final word on whether the state’s short-term corrective action plan will be accepted by the Sept. 2 deadline.

Part of that plan includes a proposal to decertify for federal funding 20 beds at Riverview, which would eliminate some of the requirements the state must meet for those forensic beds. That change would also result in a loss of federal funding, although McEwen said she couldn’t estimate that amount without knowing if the federal government would agree to such a proposal.

She said the change for Riverview under LePage’s proposal, based on the hospital’s current population, would only free up between four to seven beds.

Meanwhile, the $4.3 million price tag on the LePage plan to expand the mental health unit at the prison gave some lawmakers pause as they suggested that money would be better spent addressing the issues at Riverview.

Rep. Mike Carey, D-Lewiston, who chaired the panel Tuesday, said lawmakers seemed unified that the LePage plan wasn’t the answer to all the problems at Riverview. The administration had proposed the legislation earlier this year but the bill was held over, mainly due to the hefty price tag.

Carey said both the governor and the Legislature agree the bill is a good idea but neither found a way to fund it. He also said the bill didn’t solve the crisis at hand.

“CMS has come with some really significant concerns that could result in the state losing $20 million,” Carey said after the meeting Tuesday. “I am not convinced that [DHHS] is addressing those sufficiently. [LD] 1515 may be part of the solution but so much of it is dealing with things that have absolutely no bearing on the CMS report.”

Carey said the call to immediately pass the bill in an emergency special session was unfounded.

“This seems like trying to exploit a crisis to get something done that they wanted to do all along,” Carey said.

Advocates for civil rights and people with mental illness also expressed their concerns the legislation did not address the underlying problems identified in the CMS report.

Zach Heiden, an attorney with the American Civil Liberties Union of Maine, questioned the legality of sending those who have yet to be convicted of a crime to a prison for mental health treatment.

“It’s absolutely inappropriate to transfer patients in the custody and care of the Department of Health and Human Services to a jail or prison,” Heiden said. “We have a criminal justice system in this country that decides who belongs in jail and prison and there are rights that go along with it, constitutional rights.”

He said those who are deemed not criminally responsible or who are ruled incompetent to stand trial should not be treated as convicted criminals.

But Maine Attorney General Janet Mills said other states, including Massachusetts and New Hampshire, had systems in place similar to the one proposed by LePage.

“There is obviously a model to go on,” Mills said. She said that both those who have already been convicted of a crime and those pending a trial often need mental health services.

“I don’t know that a court has drawn a line and said you can’t mix and match those populations,” Mills said.

Other lawmakers on the panel Tuesday acknowledge LD 1515 may not solve all the problems at Riverview but the bill was still worthwhile and a valid first step.

Rep. Deborah Sanderson, R-Chelsea, the ranking minority member of the Legislature’s Health and Human Service Committee, said passing the bill sends a strong message to the federal government that the state is taking the problems at Riverview seriously.

But Sen. Margaret Craven, D-Lewiston, the Senate chairwoman of the committee, said one of the primary issues was a failure of the state to adequately fund the psychiatric hospital.

Other lawmakers said they believed that whatever the Legislature chose to do on Thursday, it should include some additional legislative oversight for Riverview.

Jay Harper of the Maine Disability Rights Center, a patient advocate at Riverview, urged the panel to use LD 1515 as a vehicle to address the issues raised by CMS. Among them are providing Riverview with the funding to adequately recruit and retain staff as well as train that staff properly. Harper estimated that cost to be about $700,000.

“If you made this investment, it would solve that problem almost assuredly,” Harper said. Passing LD 1515 as is risks “missing the boat in terms of what CMS is requiring and leaves at risk the possible defunding. Since you have the vehicle attempting to address the problems … I think you should take advantage of bringing up a reasonable solution rather than a little solution and a Band-Aid.”

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