June 21, 2018
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Former chief justice tells Maine lawmakers that bill to fix psychiatric hospital failed

Seth Koenig | BDN
Seth Koenig | BDN
Former Maine Supreme Judicial Court Chief Justice Daniel Wathen
By Scott Thistle, Sun Journal

AUGUSTA, Maine — The former chief justice for Maine’s high court told lawmakers Tuesday a bill they passed to resolve safety and funding problems at the state-run Riverview Psychiatric Center did not work.

The bill, LD 1515, passed during an emergency session in August and signed by Republican Gov. Paul LePage, expanded the capacity of a mental health ward at the state prison in Warren by diverting about $3 million per year from the state’s Department of Health and Human Services to the Department of Corrections.

The funding goes mostly to pay a private contractor to expand its staff to provide mental health services for about 10 additional psych beds at the maximum security prison.

Former Maine Supreme Judicial Court Chief Justice Daniel Wathen, who serves as the administrator for a consent decree governing the state’s treatment of mental health patients in state custody, appeared Tuesday before the Legislature’s Health and Human Services Committee to update lawmakers about ongoing efforts by the state to regain its federal certification for Riverview and about $20 million of federal funding that goes with it.

The state lost its federal certification after a series of audits and site visits by federal inspectors determined the secure psychiatric hospital was not in compliance with federal law and would no longer be eligible for certain Medicaid and Medicare funds that support patient care at the facility.

LePage called lawmakers back into an emergency session to solve the problem to protect patient and worker safety at the hospital.

“Can you help me understand how the intensive mental health unit at the prison plays into all of this?” Rep. Peter Stuckey, D-Portland asked Wathen on Tuesday. “I was a bit challenged by it when it was proposed and I’m trying to figure out how it relates to some of the things you’ve been talking about so far.”

Stuckey was one of only eight lawmakers in the Legislature who voted against the measure.

Wathen said he shared Stuckey’s “inability to sort of get my hands around this.”

Wathen said, as first proposed, the bill was meant to relieve pressure at Riverview by allowing the hospital to move its most violent patients to a Department of Corrections facility in Warren. But changes made to the bill before passage essentially stripped it of the ability to do that fully, Wathen said.

Two categories of patients, those who were found either “not criminally responsible” for their crimes and those who were determined to be “incompetent to stand trial,” could not be sent to the prison for mental health care under the new law.

Those who could be sent to the prison mental health ward included prisoners in county jails or defendants who needed a psychological evaluation to determine if they were competent, Wathen said.

Ultimately, the patients who create the greatest dangers to staff and other patients are often among those who can’t be sent to the prison.

“The answer is [the new law] is designed to take some of the pressure off and it probably will do that,” Wathen said. “But whether it will relieve the [problems created by patients] who create the greatest risk is debatable.”

Changes made to the bill came at the urging of advocates for civil rights and mental health patients.

Lawmakers were assured by DHHS Commissioner Mary Mayhew the measure would satisfy the concerns of the federal Centers for Medicare and Medicaid Services.

Adrienne Bennett, a spokeswoman for LePage, said Wednesday the bill the governor sent to the Legislature addressed the problems at Riverview but changes made by Democrats at the urging of lobbyists gutted the measure’s effectiveness.

The committee Tuesday also heard from Jay Harper with the Maine Disability Rights Center and a patient advocate at Riverview.

Harper also said the law did not do what it was intended to do. He said of the 788 violent events recorded at the hospital’s most secure units during the last 12 months, more than 500 of them are attributed to three patients.

He said only one of those three would be eligible for transfer to the prison under the new law. Harper also said it was questionable whether that patient, who is suffering from a head injury, should even be at Riverview based on the consent decree.

“The bottom line is that there would be very, very few people who would meet the criteria of the law to go to the prison program,” Harper said. “And that population represents a very, very small number of people who create the events at Riverview.”

He said for the state to regain its federal funding it needed to “reverse the strategy,” moving the hospital away from a correctional-type containment model and return it back to a therapeutic program.

Harper said that reversal would likely be problematic because the underlying root of the violent incidents at Riverview is having too few and under-trained staff at the hospital.

Stuckey said the legislation passed in August should have addressed the staffing concerns at Riverview. He noted that the 92-bed hospital had about 20 empty beds but could not admit additional patients because the existing patients demanded the attention of all current staff.

“So back at the end of last session, we took $3 million out of the DHHS budget to fund the capacity at Corrections to move people out of jail — who are unadjudicated, looking for evaluations — from the mental health system into a maximum security prison,” Stuckey said. “Instead of taking that resource and applying it to the state mental hospital.”

He said the money should have been used to shore up Riverview’s capacity instead of expanding the services of a private mental health contractor in the state prison.

The status of Riverview and its federal funding is expected to be a topic of discussion for the Legislature’s budget-writing Appropriations Committee again on Thursday.

State Rep. Mike Carey, D-Lewiston, who serves on the Appropriations Committee, voted for the bill and urged its passage during a floor speech before the vote in August.

But in that speech Carey warned the bill wasn’t the complete solution.

“I would like to emphasize today that this bill alone does not solve the significant human rights, management and staffing problems at Riverview,” Carey told his colleagues at the time.

Carey has since said his support was misguided and based on false assurances from DHHS.

On Wednesday, Carey laid the blame for the loss of federal funds and ongoing problems at Riverview on LePage.

“I don’t understand how the LePage administration can still have its head in the sand about the significant management and staffing problems at Riverview,” Carey said. “Judge Wathen and the federal government see it, how can Gov. Lepage not see it? His approach puts staff safety at risk, costs a tremendous amount of taxpayer money and hurts patients.”

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