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Wednesday, March 28, 2012

Federal prosecutors look to joint class action lawsuit against NH for problems with the mental health system

CONCORD – Obama administration prosecutors jumped in with both feet Tuesday seeking to join a class action lawsuit against the state for “costly and traumatic” institutionalization of citizens with severe mental disabilities.

In an alarming development for the Lynch administration, the U.S. Justice Department has asked to intervene in the suit that the Disabilities Rights Center and associate groups launched against it two months ago.

The federal government clearly has been following a controversy it started last April with a critical report charging the state with violating the Americans with Disabilities Act.

Attorney General Michael Delaney had called that report “erroneous” and if not taken back, rightly predicted it would lead to federal litigation.

Health and Human Services Commissioner Nick Toumpas and Delaney had declared the system was “broken” and “in crisis.”

State officials maintained that within a very tight state budget, they were making progress with a 10-year plan to improve the mental health system.

But in court papers filed in Washington on Tuesday, prosecutors cited the findings two weeks ago from the New Hampshire Community Behavioral Health Association that gave the state a failing grade for backing up the lofty improvement goals with state spending.

“States are obligated by the ADA to provide services to people with disabilities in appropriate, integrated settings, so they can live and work in the community, just like people who do not have disabilities,” said Thomas E. Perez, assistant attorney general for the Civil Rights Division.

“People with mental illnesses in New Hampshire are currently denied this right and are instead forced to receive costly services in inappropriate settings, like state institutions, as well as local hospital emergency rooms, rather than in more therapeutic and less expensive community settings.’’

What’s telling here is for the federal government, in an election year, to try to put its full weight before a judge in federal court to, as prosecutors said, “vindicate the rights of those with disabilities.”

The suit could proceed to a hearing even quicker as a result and as voters go to the polls, this case would highlight state budget cuts that failed to finance promises for more community mental health beds and intervention teams to work with the most troublesome cases.

“Individuals with mental illness who experience a crisis in New Hampshire often spend days in local emergency rooms that are ill-equipped to address their needs, at great expense, and are then transported to the state’s psychiatric hospital, sometimes by the police,” said John P. Kacavas, NH’s U.S. attorney.

“This costly and traumatic process could be avoided if New Hampshire offered proven and effective services in the community to prevent and de-escalate crises, help people maintain safe housing and assist them in finding and holding employment.”

The suit charges the state’s treatment of adults at the New Hampshire Hospital and the Glencliff Home are in violation of the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the Nursing Home Reform Act.

New Hampshire Hospital has an admission rate 40 percent higher than the national average. Its re-admission rate is nearly double the national average.

In 2010, more than 15 percent of the patients discharged by the hospital were readmitted within 30 days. Nearly one-third were re-admitted within 180 days, and some patients are essentially in and out of the hospital all year.

Federal officials also noted that people in psychiatric crisis can wait for hours in a hospital nursing room before they receive help, which is both costly and inadequate care.

The federal report further pointed out the state could treat these adults in the community for much lower cost than it now spends to treat them.

In 2010, the lawsuit notes there were 1,100 admissions of adults to New Hampshire Hospital in Concord and 15 percent were re-admitted after release within 30 days; a third of all cases returned within six months.

Joining the DRC in this lawsuit are the Bazelon Center for Mental Health Law, the Center for Public Representation and the New Hampshire Disabilities Rights Center. Devine Millimet, one of the largest private law firms in the state, has assigned lawyers to assist the plaintiffs.

“With our efforts today to intervene, we hope to vindicate the rights of people with disabilities and prompt the state to take the necessary steps to meet their needs in more appropriate community settings,” federal prosecutor Perez added.

Kevin Landrigan can reached at 321-7040 or Also, check out Kevin (@KLandrigan) on Twitter.