New Hampshire Enters into Settlement Agreement to Provide Community Mental Health Services
January 14, 2014 12:55 PM
On December 19, in Amanda D., et al. v. Wood Hasan, et al. (formerly Lynn E. v. Lynch), the State of New Hampshire (the State) entered into a class action settlement agreement (the Settlement) with the United States Department of Justice (DOJ) and mental health care recipients and advocacy organizations to provide new community mental health services. As a result, the State must expand community mental health services over the next six years, including mobile crisis teams, housing, and employment services. The Settlement still needs to be approved by the presiding judge Steven J. McAuliffe of the U.S. District Court. The parties have requested until the end of this month to submit comments to the settlement, and that the court schedules a fairness hearing on or after Feb. 17, 2014.
Facts Alleged by Plaintiffs
Among other state reports, in the Complaint the Plaintiffs cited a 2008 report conducted by a panel of mental health professionals entitled “Addressing the Critical Mental Health Needs of NH’s Citizens, A Strategy for Restoration” (the 2008 Report). In the 2008 Report, the panel observed that the mental health system was suffering from both a “front door” and “back door” problem: “many individuals are admitted to New Hampshire Hospital because they have not been able to access sufficient [community] services in a timely manner (a ‘front door’ problem) and remain there, unable to be discharged, because of a lack of viable community-based alternatives (a “back door problem).” The report’s authors advocated more community-based alternatives such as Assertive Community Treatment (ACT) teams (discussed below), additional crisis services, and supportive housing. The Plaintiffs also cited a 2011 report by the United States Department of Justice (DOJ) on NH’s mental health system, which stated that a lack of community services “has led to the needless and prolonged institutionalization of individuals with disabilities,” and that “systemic failures in the State’s system place qualified individuals with disabilities at risk of unnecessary institutionalization now and going forward.”
Terms of the Settlement
In the Settlement, the State did not admit to culpability or to the truth of any claims. The State, however, agreed to provide community mental health services either directly or through contracts with Community Mental Health Programs or Providers (CMHPs). Some of these services are discussed below.
Target Population: The services in the Settlement target NH adults with SMI who are either institutionalized, or have a serious risk of institutionalization at Glencliff or NHH. While the Settlement prioritizes residents at Glencliff and NHH, its “second priority” is those at risk for institutionalization, which include those who were unable to access community services within the last two years.
Crisis Service System: The State will establish a crisis service system available 24 hours a day, seven days per week, to administer “timely and accessible services and supports” to those with SMI who are experiencing a “mental health crisis.” This crisis service system will focus on quickly stabilizing these individuals in order to avoid unnecessary institutionalization. Among other things, this system will provide such services and supports “at the site of the crisis,” which can include the individual’s residence. The entire crisis service system, including mobile crisis teams and community crisis apartments, discussed below, will be implemented in stages by regions of the State, from now until June 30, 2017. For details of the implementation schedule, see page 8 of the Settlement, here.
Mobile Crisis Teams: As an element of the crisis service system, mobile crisis teams will be composed of clinicians trained in emergency behavioral health care. In addition to being able to provide services at the individual’s home, they can also be available telephonically. Lastly, these teams will be available to make face-to-face meetings in the individual’s home or community, where applicable. The teams will be available 24 hours a day, seven days a week, for up to seven days following the crisis.
Community Crisis Apartments: As another element of the crisis service system, the State will expand the number of community crisis apartments available. Individuals can stay in these apartments to receive crisis services. These will also be available and staffed 24 hours a day, seven days a week. Individuals can stay at these apartments for a maximum of seven days. Transportation will be included to and from the crisis apartment.
Assertive Community Treatment (ACT): The ACT teams will be expanded under the Settlement. The ACT teams will be available 24 hours a day, seven days a week, with overnight (12 AM to 8 AM) on-call capabilities. They will be multidisciplinary in nature, consisting of 7 to 10 professionals. These teams will deliver services including: assistance with employment and housing, case management, crisis services, family support and education, initial and ongoing assessments, psychiatric services, substance abuse services, and “other services, supports, treatment, and rehabilitation critical to allow the individual a reasonable opportunity to live independently in the community.” The staff to beneficiary ratio will be, at most, 1:10, with limited exceptions. These teams can also offer services via face-to-face meetings in the individual’s home or community, where applicable, as well as telephonically. Implementation of the ACT teams will proceed in accordance with the schedule on page 9 of the Settlement, here.
Supported Housing: The Settlement also calls on the State to provide supported housing, i.e. “permanent housing with tenancy rights, where obtaining tenancy rights is not conditioned on individuals’ participation in treatment or compliance with mandatory programmatic criteria.” The housing will be singly occupancy or single family, but an individual may have a roommate if that is her preference. For details, see page 10 of the Settlement, here.
Community Residences: As an alternative to supportive housing for beneficiaries with complex health care needs that cannot be cost-effectively placed in supportive housing, the State can instead transition these individuals into a community residential setting. These residences would house up to four people, and would coordinate care to its residents.
Implementation of supportive housing and community residences will proceed in accordance with the schedule on pages 11-12 of the Settlement, here. By January 1, 2017, the State should have sufficient capacity so that individuals will not have to wait more than six months for supported housing.
Supported Employment: The State will provide supported employment services, including job finding and job training.
Family Support Program: The State will provide training for families to identify a crisis, and how to connect the individuals in crisis to needed services and supports. Also, the family support program includes education on mental illness and community services and supports.
Transition Planning: The State will provide residents of Glencliff and NHH with transition planning to the home and community. This planning presumes that these individuals can live in an integrated community setting. All efforts will be made to avoid transitions to nursing homes or other institutions. The State must first consider all non-institutional alternatives, and “describe the steps it took to implement the alternatives,” before placing an individual in an institution.
For developmentally disabled patients who are transitions to NHH, the State must first exert “all reasonable efforts” to avoid this transition. If unsuccessful, the State shall document the reason for admission and “immediately” begin transition planning.
Transition plans will be person-centered and emphasize self-determination of the individual.
Quality Assurance and Performance Improvement: The State will implement a quality assurance and performance improvement program for the above community-based services. This program will focus on making sure the individuals receive more independence and integration into the community, stable housing, and less institutionalization and hospital visits.
Provider Network: The State will contract with “an adequate network of qualified providers” to deliver the services in the Settlement agreement. Providers will be recertified by the State or managed care organizations every two years.
Strong emphasis on rebalancing. The Council is supportive of the Settlement’s strong emphasis on rebalancing away from institutionalized care. The transition planning process, discussed above, stresses prioritization on home and community placement. The mobile crisis teams and the ACT teams also provide mechanisms for delivering additional services in the home and community.
Stakeholders should be wary of a “mission creep” in the family support program. The Council supports the State providing limited support to families regarding training and education, as stated above. However, the Council is wary that the State will eventually expect that the family member become the caregiver of the individual, as Georgia did in the GAPP. The Georgia Pediatric Program (GAPP) was originally designed for parents to become educated in clinical care for medically fragile children, but morphed into a permanent skilled care program. The GAPP, in emphasizing family care over professional care, compromised the health and safety of beneficiaries, and was one factor that resulted in recent litigation against that state.
Provider network vague. The Council maintains that allowing “an adequate network of qualified providers” is vague, and requests that New Hampshire provide greater clarity on network adequacy.
The Settlement, in addition to the above mentioned cases, supports the conclusion made in Senator Harkin’s Report that the victory of Olmstead, a case settled against the state of New Hampshire fourteen years ago, is incomplete. Home care providers should be aware that despite large national strides towards rebalancing, there is still unmet demand for community mental health services, and HCBS more broadly, caused by short-sighted policies like New Hampshire’s.
New Hampshire has significant room for improvement in HCBS utilization. According to its 2011 scorecard of LTSS utilization for older people and adults with physical disabilities, AARP ranked the state in the third quartile (out of four quartiles), or 27th overall. For older people and adults with physical disabilities, the State only spent 20.3% of its Medicaid and state funded LTSS in HCBS, ranking it 43rd among the states for that metric.
The Council encourages providers to continue to advocate for greater support of HCBS through their state associations, as well as through state and federal governments. Home care providers are encouraged to keep abreast of HCBS developments in their states, and nationally, and to contact the Council with any questions or concerns.