DOJ sues Mississippi, says mentally ill are unnecessarily institutionalized

The federal government emphasized its stance on the importance of using home- and community-based services (HCBS) by filing a lawsuit against the state of Mississippi over its mental health program. The Department of Justice (DOJ) alleged that the state ran afoul of the integration mandate of the Americans with Disabilities Act (ADA) (P.L. 101-336) and forced thousands of people to be institutionalized when the services could be provided in a community setting.

Integration mandate and lawsuit

In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court found that the ADA requires public entities to provide services to the disabled in home- and community-based settings as much as possible. The ‘integration mandate’ states, “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities” (28 C.F.R. section 35.130(d)). According to the Olmstead Court, unnecessary institutionalization diminishes patients’ abilities to interact socially,  pursue education and employment, and find cultural enrichment.

The suit against Mississippi alleges that state-run hospitals are segregating mentally ill patients who could be successful in community treatment. The Justice Department believes that patients are regularly cycling through the state’s four mental health facilities because they are not able to thrive in their communities due to a lack of services. The cuts to the DOMH have limited its ability to offer HCBS services and activities, and State Attorney General Jim Hood expressed his displeasure toward the state legislature following the filing of the suit, blaming them for offering corporate tax cuts instead of serving the population. The state attempted to settle with the federal government, but negotiations failed. The DOJ wants a consent decree, but Hood objects due to expense and perpetual oversight. The state is now in the expensive position of defending itself against the DOJ.

Mississippi budget cuts

The state of Mississippi’s budget woes have turned into what some are calling a crisis, resulting in significant budget cuts. The state government admitted in June that at the close of the state fiscal year, there would be unpaid bills and a $50-60 million shortfall. Although some representatives disagreed on the impact of the amount, overcoming the shortfall would have required collections in the $725-750 million range in the month of June.

Significant budget cuts and dipping into funds failed to ward off the shortfall. Governor Phil Bryant (R) already cut $60 million from the budget and spent $50 million out of state accounts, making use of the Rainy Day Fund. The cuts impacted  state departments, such as the Department of Revenue, which was forced to dismiss temporary workers during tax season. In July, this blog covered some of these budget issues, including an editorial written by the director of the Mississippi Public Health Association that highlighted the Department of Corrections’ generous allocations, nearly nine times more than what the Health Department will be able to use (see Highlight on Mississippi: Budget crisis has health pundits grumbling, July 1, 2016).

Health impacts

Health agencies were not immune to the budget cuts, although there are arguments that they only lost a small chunk of money and, in one case, ended up on top. According to watchdog.org, in the latest round of cuts, the Department of Health (DOH) lost $5.8 million and the Department of Mental Health (DOMH) lost $7.3 million, which amounted to 1.53 percent and 1.17 percent of their budgets, respectively.

Departments heads note that these cuts are only the latest in a line of issues. The Dr. Mary Currier, head of the DOH, said the agency closed six clinics, failed to fill 89 positions, and has cut 64 employees. Diana Mikula, who directs the DOMH, said their reserves are tapped after absorbing a total of $8.39 million in cuts. The agency cut some of its workforce or transferred employees to other positions, but was still forced to eliminate a significant amount of facility space that psychiatrists used to determine if criminals were able to stand trial. Other closures include the Acute Medical Psychiatric Service unit at a state hospital,  Male Chemical Dependency Units, early intervention services, and psychiatric beds.

Highlight on Mississippi: Budget crisis has health pundits grumbling

Mississippi’s fiscal year (FY) 2017 state budget takes effect on July 1, 2016, and health care stakeholders are decrying budget decreases and the potential misuse of funds. Advocates and lawmakers are concerned about overall financial cuts, mental health experts want more program funding, and a health care trust fund is about to hit a zero balance in the state that ranks 48th in state public health funding compared to the rest of the United States and the District of Columbia.

Department of Health

The Mississippi State Department of Health is subject to budget cuts in FY 2017. Although a range of cuts have been mentioned, various news outlets report cuts amounting to $4 million.  They also indicate that the Department is suffering as a result, having been forced to lay off employees, leave other positions unfilled, and close clinics. Health Department funds are allocated to Health Services, including maternal and child health, oral health, and preventive health; Health Protection, including environmental health an licensure; Communicable Disease; Tobacco Control; Public Health Emergency Preparedness and Response; and Administration and Support Services. Charles “Buddy” Daughdrill, Executive Director of the Mississippi Public Health Association, published a scathing editorial criticizing the legislative cuts, noting that the budget allocates to the state Department of Corrections roughly nine times the amount of funds that the Health Department receives. He suggested that Mississippians “should be personally appalled” by the budget and contact state representatives, the Lieutenant Governor, and the Governor to express their views.

Department of Mental Health

The Mississippi Department of Mental Health is particularly concerned about more than $8 million in cuts.  The Mental Health department has eliminated 172 positions, although some employees were transferred to other positions within the agency, and cut forensic psychiatric beds, which allow psychiatrists to determine whether alleged criminals are mentally competent to stand trial.  Mental Health oversees various programs offering services to address mental illness (MI), intellectual and developmental disabilities (IDD), alcohol and drug addictions, and Alzheimer’s Disease and other dementia, including institutional and community programs and support services.

Health Care Trust Fund

The fate of the Mississippi Health Care Trust Fund is, perhaps, symbolic of the state’s budget woes. One of the first states to sue tobacco companies to collect funds required to treat ailing smokers, the state settled its lawsuit in 1997. In 1999, the legislature created the Fund.  Tobacco companies would pay money into the fund on an annual basis, where they would accrue interest; some of those funds would be directed for use by the Health Care Expendable Fund. Due to budget constraints, legislators sent funds for many years directly into the state budget.  Some funds were used on health care, while others were diverted to other programs. The state will receive roughly $116 million as part of its annual settlement payment in 2016, but the funds will be used in the budget.  The Fund will have a zero balance as of July 1, 2016.

Advocates view the overall cuts, which may appear relatively small, as unduly burdensome on a system that is already struggling to allocate funds to programs. As July first approaches, the possibility of changes to the budget diminish, but that hasn’t stopped advocates from raising their voices and demanding change.

Highlight on North Carolina: State entities join to build mental health workforce

North Carolina local management entities (LMEs) and managed care organizations (MCOs) announced a joint workforce-development initiative to offer training resources to professionals on the front lines of providing services to individuals with disabilities. Cardinal Innovations Healthcare, Smoky Mountain LME/MCO, and Trillium Health Resources will offer both raining and evidence-based curricula to direct support professionals through DirectCourse.

Workforce development

CMS standards for direct support professionals focus on improving the quality of services for individuals with intellectual and developmental disabilities. The curricula offered by the initiative were created to align with the CMS competencies adopted in the NC Innovations Waiver. The waiver was created to help the state’s Medicaid beneficiaries with intellectual or developmental disabilities live a more independent lifestyle. Under the waiver, LME/MCOs receive a set amount of money each year to help these individuals get specialized services. The curricula offered through the initiative includes: College of Direct Support & College of Frontline Supervision and Management; College of Employment Services; College of Personal Assistance and Caregiving; and College of Recovery Community and Inclusion.

Increasing mental health workforce

Recent recommendations from members of the state’s Task Force on Mental Health and Substance Abuse focus on increasing the number of mental health providers in the state. The Task Force noted that about 60 counties in North Carolina have no psychiatric provider and suggested expanding the scope of practices for nurses, as well as education loan-repayment programs to make mental health treatment more accessible. The issue reflected in the governor’s budget, with $30 million directed toward enhancing case management for those with mental health disabilities and creating transitional housing.

Highlight on California: Aid-in-dying law allows patients to be given deadly dose of drugs

On October 5, 2015, California Governor Jerry Brown (D) signed AB2-15, the End of Life Option Act. Effective January 1, 2016, the law will allow an adult who is terminally ill to request and obtain a prescription for an “aid-in-dying drug,” defined as “a drug determined and prescribed by a physician for a qualified individual, which the qualified individual may choose to self-administer to bring about his or her death.”  The law requires several procedural steps and other protections to assure that the patient understands the nature and consequences of the act and that the patient has maintained the intention for a period of time. Specifically, the law requires:

  • attestation by both the patient’s attending (treating) physician and a consulting physician that the patient’s condition is terminal, the patient has the capacity to make the decision, and has done so with informed consent
  • two oral requests for the aid-in-dying drug made by the patient to the physician at least 15 days apart, and a written request. The patient must  make the requests personally, not through a personal representative, attorney-in-fact, guardian, conservator, or health care agent. All three requests must be made to and received by the physician personally, and not through a designee.
  • the written request must be made in a form prescribed by statute and signed in the presence of two adult witnesses, who must attest to the individual’s identity and to their belief in the individual’s voluntary action, the lack of duress or undue influence.
  • before writing the prescription, the attending physician must evaluate the individual’s mental health and make a referral to a mental health professional if there is any indication of a mental disorder and await the determination of the mental health professional that the individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder..

The witnesses may not be the attending physician, consulting physician, or mental health specialist. Only one of the two witnesses may be either a member of the individual’s family or entitled to any portion of the estate at death or the owner, operator or an employee of the healath care facility where the individual resides or is receiving care.

The prescription

The attending physician must give the patient the opportunity to withdraw or rescind the request before he or she writes the prescription and must confirm that the individual has the capacity to make the medical decision and understands:

  • his or her diagnosis and prognosis;
  • the risks associated with taking the aid-in-dying drug,
  • the probable result of taking it;
  • the possibility that he or she may choose not to take the drug after receiving it, and
  • all of the other treatment options available, including hospice or palliative care.

In addition, the physician must counsel the patient:

  • to take the drug in the presence of another person;
  • not to do so in a public place;
  • to notify the next of kin of the request;
  • to keep the drug in a safe, secure location until he or she ingests it; and
  • to complete the final attestation form within 48 hours before ingesting the drug.

Interpreters’ services

If the individual makes the requests and has the discussions with a physician or mental health professional in a language other than English, he or she may sign the form in English, but the interpreter must execute a form declaring under penalty of perjury that the interpreter is fluent in both English and the patient’s language and that the individual understood the meaning and significance of the decision and the document he or she signed.  The interpreter may not be a related to the individual by blood, marriage, adoption, or registered domestic partnership and may not be entitled to any portion of the individual’s estate.

Recordkeeping

The attending physician must maintain records of the patient’s requests in the patient’s medical records. Thirty days after writing the prescription for an aid-in-dying drug, the physician must report the prescription to the state Department of Health. If the patient has used the drug, the attestation form also is to be turned in to the attending physician, who must submit it to the state.

Prohibitions in contracts, wills, and other documents

Under the statute, any provision in a contract, will, or other agreement executed on or after January 1, 2016, that would affect a person’s making, withdrawing, or rescinding a request for an aid-in-dying drug is not valid. No obligation under a contract may be conditioned upon an individual’s making, withdrawing, or rescinding a request for such a drug. The sale, procurement,  issuance, or price of a life or health insurance policy may not be conditioned upon an individual’s making or rescinding a request for an aid-in-dying drug.

An individual’s ingestion of an aid-in-dying drug in accordance with the statute is to be considered a natural death as a result of the underlying disease and not a suicide.

Administration of drug: a fine line?

The law provides that an individual must have both the physical and mental ability to self-administer the drug or to coerce or exercise undue influence to persuade an individual to request the drug. It is a felony to administer the drug to an individual without his or her knowledge and consent. Section 443.18 provides, “Nothing in this part may be construed to authorize a physician or any other person to end an individual’s life by lethal injection, mercy killing, or active euthanasia.”

At section 443.14, the law provides that a person shall not be subject to civil or criminal liability solely for being present when the individual self-administers the drug. Still, the statute also provides that the person who is present may assist the patient in preparing the drug so long as he or she does not assist the patient in ingesting the drug.  it appears the statute leaves open the possibility that assisting with the injection of a drug, even at the request of a patient, could subject the person to civil or criminal liability.