Mental Health Association in New York State, Inc.
(Publication Archives)

Friday Fax from Albany

We apologize for the size of this Friday Fax from Albany. It has been several weeks since out most recent edition. Therefore, we’ve included a TABLE OF CONTENTS to help you find what’s important to you in this edition.

1. OMH Suicide Prevention Conference
2. New MHANYS Website Dedicated to Medicare Part D – www.medicarepartdnys.org
3. MHANYS Public Policy Forums and Medicare Part D Forums – coming to a town near you
4. Campaign for 10% Increase for Community Recovery and Rehabilitation Services
5. New York/New York III Agreement
6. MHANYS Testimony Regarding Mental Health Needs of Returning Veterans
7. In the News
• Series of articles on civil commitment of sexual offenders
• Geriatric mental health act
• PTA support for Timothy’s Law
• Custody Loss of Individuals with Disabilities (featuring response from MHANYS regarding individuals with psychiatric disabilities
• Medicare Part D lawsuit

OMH SUICIDE PREVENTION CONFERENCE MARKS NEW FOCUS ON SAVING LIVES: Under the direction of OMH’s Commissioner Sharon Carpinello, mental health advocates and experts in suicide prevention came together on November 14-15 in Saratoga. The conference, really the first of this magnitude in New York State, addressed efforts to curb the loss of 1300 lives each year in our state.

Beginning nearly a year ago, OMH addressed this epidemic head-on in introducing the Suicide Prevention Education Awareness Kit (SPEAK) campaign designed “for the public, health care providers and educators to help them understand the terrible frequency and toll of suicide, and to discover ways and methods to aid in preventing it.”

Several speakers, including Commissioner Carpinello, talked movingly about their own personal stories about suicide. The wide range of speakers included experts in the field who shared a wealth of information including outcome driven data about prevention programs, risk factors and demographics.

Throughout the conference, groups were broken out into the five OMH regions in the state. The hope of these regional meetings are to develop networks that would identify the issues of suicide prevention and work in a collaborative model to begin implementation of community strategies that will aid in de-stigmatizing suicide and to provide additional community resources.

MHAs were very well represented at the conference with members from across the state. Among the MHAs in attendance was the MHA in Essex County, which was featured in a workshop about the development of grassroots support for suicide prevention programs. Their Community Mental Health Promotion (CMHP) team was selected to present to share their experience of promoting the creation of a suicide prevention program throughout their county and recruiting participants for initial training. The team created a power point presentation and a detailed manual on the methods they used to initiate the program so that others could benefit from their experience.

This conference represents a major step forward in the effort to address suicide and suicide prevention directly. Hopefully it will be just the beginning of the campaign to end needless death by suicide.

Additional information on the SPEAK campaign and the series of publications, “Saving Lives in New York: Suicide Prevention and Public Health” is available on OMH’s website at www.omh.state.ny.us/omhweb/speak/index.htm.

MHANYS LAUNCHES NEW WEBSITE – WWW.MEDICAREPARTDNYS.ORG: Simply overwhelmed by the daunting task of helping people with psychiatric disabilities manage the transition from Medicaid to Medicare as the provider prescription drugs, MHANYS has launched a web-based tool on the new Medicare Prescription Drug Benefit. Instead of re-inventing wheels that others have already created, this website acts as a conduit to other websites and resources on Medicare Part D, particularly for “dual eligible” individuals.

In addition, MHANYS will be presenting to mental health care recipients, providers and other interested parties on Medicare Part D in three locations over the next several weeks. Information on these presentations follows below.

UPCOMING EVENTS

MHANYS’ Public Policy Forums: In an effort to seek out meaningful input from people in communities throughout the state, MHANYS staff and a Board representative have arranged for several opportunities in which anyone interested in public policy issues as they relate to people with mental health needs can make recommendations regarding the public policy initiatives MHANYS will pursue in the upcoming year. The first of these forums was held in Buffalo a few weeks ago, and provided for a healthy dialogue about the policy issues of greatest importance to people in Western NY. Individuals and organizations from these regions of the state are invited to attend. The following forums have been scheduled:

Long Island – Dec. 8th from 11:00 - 1:00 at the MHA of Nassau County, 186 Clinton Street, Hempstead, NY.

Central New York – Dec. 19th from 11:00 - 1:00 at the MHA of Onondaga County, 6493 Ridings Road, Suite 112-114, Syracuse, NY.

Hudson Valley – Dec. 20th from 11:00 - 1:00 at the MHA of Dutchess County, 510 Haight Avenue, Poughkeepsie, NY.

Lunch will be served at each of these events.

Medicare Part D Forums: These events are geared toward mental health service recipients

Buffalo - Dec. 6th from 10:00 - 1:00 at Friendship Clubhouse, 66 Englewood, Buffalo, NY. RSVP to Jack Guastaferro at jr6126@aol.com or (716) 832-2141

Westport (Essex County) – Dec. 12th from 10:00 - 1:00 at MHA of Essex County, 6096 NYS Route 9N, Westport, NY. RSVP to Kellie Trombley at kellie@mhainessex.org or 518-962-2077.

Kingston - Dec. 20th from 2:00 – 5:00 at MHA of Ulster County, Building #300 Aaron Court, Willow Park Office Complex, Kingston, NY. RSVP to 845-339-3030 ext. 165.

CAMPAIGN FOR COMMUNITY RECOVERY AND REHABILITATION SERVICES NOVEMBER 21ST PRESS RELEASE:

Mental Health Advocates Call for Urgent Funding Fix

Local Community Mental Health Service
Safety Nets in a State of Crisis

In the midst of soaring expenses and with virtually no funding increases for over the past decade, representatives from a broad coalition of state and regional mental health advocacy groups for adults and children came to Albany Monday to call for a long overdue funding hike they say will be critical to maintain local mental health service safety nets across New York State.

"With the combination of no new funding in almost a decade and explosive increases in health insurance and other benefits, heating oil and rentals and general operating expenses, we have hit the wall," said Harvey Rosenthal, executive director of the New York Association of Psychiatric Rehabilitation Services, one of the 16 statewide and regional mental health advocacy groups seeking direly needed state relief.

The groups are seeking a 10% adjustment for a broad array of local community services that were created in the wake of the deinstitutionalization movement of the 1980's and 1990's, day program, emergency, self help, transportation, respite, employment and education services for tens of thousands of children and adults with severe psychiatric disorders and their families.

"These services are core elements of each county's local community mental health services safety net. They form the backbone of local mental health systems," said Paige Pierce, executive director of Families Together. "They help tens of thousands of New Yorkers to move ahead in their recoveries and avoid costly visits to emergency rooms, hospitals, homeless shelters and correctional facilities. They help adults return to work and school and children and teens stay in school and stay at home with their families. The financial crisis they face every day can no longer be ignored."

With virtually no funding increases over the past decade and in an environment of steadily rising costs, these programs are in dire distress with high staff turnover and growing declines in program capacity, staffing, services, and hours of operation.

"For many people living with psychiatric disabilities, community funded programs have provided, not only a strength based approach to recovery, but a safety net as well. Without these community programs in place, people could end in hospitals, emergency rooms, jails or homeless shelters. Maintaining funding at current levels while administrative and other costs have dramatically increased will end up negatively impacting individuals with psychiatric disabilities and the taxpayers of New York State," said Glenn Liebman, executive director of the Mental Health Association of New York State.

The groups provided a powerful sampling of the crisis that currently faces localities across the state:

North Country: The Mental Health Association in Essex County's Crisis Alternatives Program is designed to reduce hospitalizations by providing alternatives for those experiencing severe emotional crises, thus saving the state thousands of dollars each year. Amidst steadily rising operational costs, the program has only seen an increase of 3% over the past 6 years. Employees, too, have seen dramatic increases in their health insurance costs, rents, food, and other essentials of life, but remain with us today. Meanwhile, this program has increased by a grand total of 2.91% over six years.

Bill Sullivan, executive director: "Faced with absolutely no other place to make reductions to this, or any of our other programs, we are forced to consider reducing personnel costs by furlough of staff for two to four weeks, or some other reduction. Will we have staff at the end of the day if we implement the harsh measures that we are averse to?"

Long Island: The Mental Health Association in Nassau County s psychiatric rehabilitation center, the Gathering Place, provides a broad range of community support, skill building, employment, educational and social rehabilitative services to Nassau County residents. Due to the downsizing of the state hospital system, the implementation of Kendra's Law, and the introduction of more assertive outreach services, the program has seen an almost 25% increase in its attendees.

John Javis, Gathering Place director: "Due to the flat funding, we have had to reduce staffing positions and evening/ weekend hours. Our mental health workforce is 'in crisis'. We have had to increase the employee contribution to our health coverage, and at the same time, the plan covers less. Employees are getting hit with bills for hundreds of dollars that they can't pay. It's no wonder that we have a high turnover. Recently a job applicant turned down our offer of employment because he could make $30,000 as a church janitor, while we pay about $22,000 as an entry level worker. If we don't get an increase soon, we may have to eliminate our evening / weekend program entirely, and just be open during weekdays."

Finger Lakes Family Support Center: "With the cutting of funds for Family Support, families are losing their lifeline that often sustains them with advocacy, education, peer support, support groups, and respite. We can support these families and children now or we can support them in the juvenile justice system or on the welfare roles." Patti DiNardo Director of Finger Lakes Parent Network.

Family Support Services statewide:

Stephanie Orlando, Families Together: "Often times we build a relationship with professionals who quickly move on to another position and we are forced to start from scratch with a new worker. We also have to deal with under qualified people who have no training in de-escalation or specific treatment methods. We have been restrained and humiliated because of the simple fact that the staff were not educated in treatment and were only there to assert control. We need staff that will help us heal."

Buffalo: The Restoration Society has offered recovery based psychiatric services in Erie County over the past 32 years. It serves 1,500 persons per year, 7 days a week, Its services assist individuals to meet basic needs (food, clothing, shelter), maintain personal recoveries while staying out of emergency, inpatient and forensic settings, maintain good relapse prevention, develop personal development and vocational skills, often for those who are deemed 'hard to serve' or 'service resistant.'

Executive Director Jack Guastaferro: "We can no longer assure the continued operation of critical services, given one rate adjustment in 10 years and costs increasing at a rate of 45%, especially as we seek to welcome and serve an influx of more individuals with increasingly complex conditions. We are in a full austerity budget, conducting constant spending shakedowns and adjustments just to make it through the year. Accordingly, we've had to leave positions vacant, make do with aging equipment, face the never ending challenge of constant staff turnover."

In short, community recovery and rehabilitation service providers are stretched beyond their limits. "After years of robbing Peter to pay Paul, we have reached out limit. We can't do it anymore. There is no where else to cut without seriously impairing our ability to offer a basic level of service," said Jack Guastaferro of Buffalo's Restoration Society.

"While we must shore up those community services that are now left, we must not forget the big picture: Today, these services are reaching only about 20 percent of those who need them," J. David Seay, Executive Director of NAMI-NYS said. "Budget cuts over the past two years have forced some services to close altogether, living individuals and their families in limbo. Not only do we have to save the remaining services, which are in jeopardy, we need to restore funding to make up for what has already been lost and expand effective services to those who need them throughout the state."

"These are core services for every community and we will quickly feel the painful fallout if these services are allowed any further erosion," said Davin Robinson of the Schuyler Center for Analysis and Advocacy. "We will feel their absence immediately in the lines that form outside our emergency rooms, hospitals, homeless shelters, jails and prisons."

The Campaign for Community Recovery and Rehabilitation Services is supported by a broad-based statewide coalition that includes the Mental Health Association of New York State, the New York State Council for Community Behavioral Healthcare, Families Together, the New York State Rehabilitation Association, the New York State Coalition for Children s Mental Health Services, the Association for Community Living, Schuyler Center for Analysis and Advocacy, the Mental Health Empowerment Project, the Center for Mental Health Advocacy, the Mental Health Associations of New York City and Westchester, the Coalition of Voluntary Mental Health Agencies of Nassau County, the Suffolk County Coalition of Mental Health Service Providers, the National Alliance for the Mentally Ill-NYS and the New York Association of Psychiatric Rehabilitation Services.

CITY/STATE ANNOUNCES NEW YORK/NEW YORK III AGREEMENT:

For many years MHANYS has advocated for increased housing for individuals with psychiatric disabilities. This long term commitment from the state and the city is a significant response to this overwhelming housing need. Governor Pataki, Mayor Bloomberg, the New York State Office of Mental Health, the NYC Department of Health and Mental Hygiene and the other state and city agencies involved in crafting this agreement should be lauded for this historic programmatic and financial housing commitment.

The concern that many of us have, as was consistent with the first two NY/NY agreements, is that two significant populations in the mental health system are excluded from eligibility. These two core groups are individuals in adult homes who would like to live in more independent housing and individuals with psychiatric disabilities living at home with aging parents.

With the continued closing of adult homes and in some impacted homes where conditions continue to be deplorable, there is an overwhelming desire from some individuals to move to more independent housing.

Also, one of the groups with the greatest need for housing is individuals with psychiatric disabilities living at home with their families. There are countless examples of elderly parents housing their adult children. Unfortunately, there are very few mechanisms currently in place to insure the possibility of their moving into community settings. This creates an overwhelming burden on families.

In sum, we applaud the state and city leadership for their work in creating the nucleus for an NY/NY III agreement but we will continue to advocate for those populations not currently eligible for NY/NY III housing.

Listed below are both the Governor’s Press Release and the break down from the Coalition for the Homeless

Governor Pataki’s November 7th Press Release:

GOVERNOR PATAKI, MAYOR BLOOMBERG
ANNOUNCE UNPRECEDENTED PARTNERSHIP
TO REDUCE HOMELESSNESS IN NEW YORK CITY

New Plan Will Create 9,000 Additional Housing Units for Those in Need

Governor George E. Pataki and New York City Mayor Michael R. Bloomberg today announced agreement on an historic homeless housing initiative that will provide an additional 9,000 supportive housing units for individuals and families who are living on the streets or in the emergency shelters in New York City. The New York/New York III Supportive Housing Agreement will provide housing and related services to those New York City individuals and families most in need.

“We are proud of the work we have done to help people break cycles of dependency and today there are one million fewer people on our welfare rolls, but we know there is more work to be done. This new agreement will deliver 9,000 new units of supportive housing – an unprecedented number that is nearly double the commitment of NY/NY I and II, combined,” Governor Pataki said. “This agreement not only will provide housing for homeless individuals and families, it marks another step in our efforts to provide housing and services to those most in need. I want to thank Mayor Bloomberg for partnering with the State on this historic initiative.”

Mayor Michael Bloomberg said, “Our goal is nothing short of ending chronic homelessness through proven, cost-effective solutions like prevention and supportive housing – and we’re taking a giant step in that direction today. I thank the Governor for his support in making New York/New York III a reality. Investing in solutions and reducing reliance on expensive shelters are good for our neighborhoods, taxpayers, and, most importantly, homeless New Yorkers.”

The primary goals of the NY/NY III initiative are to prevent homelessness, reduce the period of homelessness, and increase independence. In addition to applying the lessons learned from earlier initiatives, NY/NY III will incorporate a greater understanding of supportive housing over the last decade in relation to models and access, recovery and hope, and implementation of evidence-based practices, as well as elements of Mayor Bloomberg’s 2004, “Uniting for Solutions Beyond Shelter” initiative.

Current research shows that individuals placed in supportive housing experienced marked reductions in shelter use, hospitalizations, length of stay per hospitalization, and time incarcerated. Before placement, homeless people with severe mental illness used about $40,500 per person per year in services (1999 dollars). Placement was associated with a reduction in services use of approximately $16,000 per housing unit per year, including a decline in the use of public health services.

In comparison to previous homeless initiatives, the current proposal includes an expansion of the target population as well as the service model. While NY/NY I and II focused solely on homeless single adults with serious mental illness, many of the individuals who are considered to be chronically homeless also include persons with disabling substance abuse disorders, families with heads of households who have a mental illness or substance use disorder, medically frail and elderly persons, people with HIV/AIDS and young adults who have left the foster care system without the necessary independent living skills.

Through a newly incorporated focus on prevention, the target population is expanded beyond persons who are currently living in shelters or on the streets to also include persons who are considered to be at risk of becoming homeless, based on their current status or history. To ensure that those most in need of supportive housing are given preference within the new units, priority access will be given to those who have had extended stays in the city’s shelter system.

The New York State Office of Mental Health (OMH), Office of Temporary and Disability Assistance (OTDA), Office of Alcohol and Substance Abuse Services (OASAS), and Department of Housing and Community Renewal (DHCR) will work together to implement this initiative.

When fully implemented in 2016, the NY/NY III Agreement will represent an approximate investment of more than $1 billion. This represents a Capital investment of $953 million for 9,000 beds at a full annual operating cost of approximately $160 million. Capital development will be shared equally by New York State and the City. Operating costs for Seriously and Persistently Mentally Ill (SPMI) units will be covered in full by the State, and costs for non-SPMI units will be shared equally between the State and the City.

OMH Commissioner Sharon E. Carpinello, R.N., Ph.D., said, “This is a monumental event for individuals with mental illness who are homeless or at risk of becoming homeless. I commend Governor Pataki and Mayor Bloomberg for recognizing the importance of having a safe and secure place to live, and for enabling people with mental illness to live, work and participate fully in their communities. Having a place to call home is an important factor in recovery from mental illness.”

OTDA Commissioner Robert Doar said, “This historic commitment will allow the state and city to continue the great progress we have made in addressing the problem of homelessness while at the same time helping individuals and families to achieve their highest level of self-sufficiency.”

OASAS Acting Commissioner Shari Noonan said, “This bold new initiative announced by Governor Pataki and Mayor Bloomberg will provide New York City's homeless population with a stable home environment designed to help them maintain a self-sufficient lifestyle. Unfortunately, far too many of New York State's homeless men and women suffer from chemical dependency. OASAS is proud to be collaborating with state and city partners to help New York City's chronically homeless enter into appropriate addiction and mental health treatment programs, find permanent employment and eventually achieve self-sufficiency.”

DHCR Commissioner Judith A. Calogero said, “As Chair of the Governor's Interagency Advisory Task Force on Housing for People with Special Needs, I am extremely hopeful about what an enhanced NY/NY III will mean to our consumers. This successful agreement addresses a number of overlapping special needs, and integrates a variety of supportive housing models that will provide an opportunity for people to live independently in the community of their choice while addressing the problem of chronic homelessness.”

In 1990, an historic agreement was established between the City of New York and the New York State Office of Mental Health to jointly fund and develop community-based housing units and support services for individuals who had a serious mental illness and were homeless. The purpose of that initiative, commonly known as the NY/NY Agreement, was to lessen the demands on the public shelter and psychiatric treatment system. Building on the success of the original initiative to provide safe and affordable housing to homeless persons with serious mental illness, a second city/state partnership was established in 1999. The NY/NY Agreements, in total, resulted in the creation of more than 5,300 units of supportive housing for persons with mental illness.

More on the agreement from the Coalition for the Homeless:

- The agreement will provide supportive housing to at least 4,350 homeless households with a head of household diagnosed with severe and persistent mental illness (SPMI) or mental illness and chemical addiction (MICA) -- 3,950 homeless individuals, and 400 homeless families with a SPMI or MICA head of household. Another 1,000 units are provided for homeless individuals living with HIV/AIDS who have a co-occurring diagnosis of SPMI, MICA, or a substance abuse disorder. Thus, in the spirit of the first two "New York/New York Agreements," the new agreement provides supportive housing for between at least 4,350 and as many as 5,350 homeless New Yorkers living with mental illness.

-- At least 1,400, and as many as 2,150 units, units are targeted to households who are not currently homeless -- including 1,000 units for residents of State psychiatric facilities, 200 units for youth leaving foster care, and 200 units for youth in State residential facilities. An additional 750 units are targeted to homeless or at-risk families with a head of household who has HIV/AIDS, a substance abuse disorder, or a serious medical condition. Thus, a significant number of units in the agreement are not targeted to New Yorkers who are currently homeless.

-- The agreement covers ten years, and many of the units committed will not appear until the later years of the plan. Of the 9,000 units included in the agreement, 6,250 units involve development of new housing ("capital" units) and 2,750 units -- 30 percent of the total -- are scattered-site units. Much of the capital development included in the agreement is "back-loaded" to the out-years of the plan. For instance, two-thirds of the capital units for homeless SPMI adults -- 2,051 of 3,200 capital units -- are not scheduled to come on-line until after 2011.

-- Finally, a press release issued by the City referred to an additional 3,000 units of supportive housing that will be provided by the City over the next decade, but did not offer details on those units. Those additional units are intended to fulfill the Mayor's June 2004 commitment to create 12,000 units of supportive housing for homeless people over ten years.

MHANYS SUBMITS TESTIMONY TO ASSEMBLY COMMITTEES REGARDING MENTAL HEALTH NEEDS OF RETURNING VETERANS: Recently, MHANYS submitted testimony to the NYS Assembly on the unique mental health needs of those returning from recent wars and the necessity of providing adequate and accessible mental health services for those people returning from active duty where they have nobly served our country. In light of budgetary cutbacks at the Federal level for veterans’ services, we urged that the state develop programs and resources specifically to address mental illness in veterans. In addition, we urged the state to pass Timothy’s Law to eliminate the artificial roadblocks that those with health insurance face in accessing mental health services. MHANYS' complete testimony is available at www.mhanys.org/pubpol/pp_womenvets_testimony.htm.

CHANGES AT NAMI-NYC METRO: After 6 ½ years as NAMI-NYC Metro’s Executive Director, the mental health community is bidding a fond farewell to Evelyn Roberts as she pursues other endeavors. Great credit is due to Evelyn for turning NAMI-NYC into the organization it is today.

Taking her place is a familiar face to many in the mental health community, Wendy Brennan. MHANYS has been pleased to work with Wendy, utilizing her expertise in employment issues as they pertain to people with mental health needs in advancing Timothy’s Law.

MHANYS wishes Evelyn the best of luck and welcomes Wendy with open arms.

IN THE NEWS:

Lawyers argue over extended confinement of sex criminals. By Samuel Maull
Newsday (Long Island), November 2, 2005

NEW YORK -- Lawyers for 12 sex criminals who are being held in mental hospitals after their prison sentences ended complained to a Manhattan judge Wednesday that the state was holding them illegally, a charge the state's lawyer denied.

The sex offenders were ordered held by Gov. George Pataki who, after years of failing to get a bill that would allow civil confinement of sex offenders when their sentences end, said he would "push the envelope" legally and hold them anyway.

Pataki's plan uses the state's involuntary commitment law, which normally deal with the noncriminal mentally ill, to win extended confinement of the sex criminals.

Assistant Attorney General Edward J. Curtis said that before the end of the sex offenders' sentences, the prison superintendents applied for orders of confinement, and got opinions from two psychiatrists saying each inmate needed to be hospitalized.

Curtis said a third psychiatrist, at the hospital, also examines the inmate.

Sadie Ishee, lawyer for Mental Hygiene Legal Services, said that did not satisfy state law. She said the law details what must be done to move inmates from prisons to mental hospitals at their sentences' end, and the officials didn't do it.

Ishee said the law requires the state to go to court and ask for an examination of the patient by two court-appointed psychiatrists. If the doctors find the patient needs hospitalization, then state officials must return to court, notify the patient's lawyer and MHLS, and ask a judge for a court hearing.

Justice Jacqueline Silbermann asked Curtis, "Are we finding people mentally ill because they are sexual predators? Are we equating the two?"

Curtis noted that exams by psychiatrists were needed for confinement.

Silbermann reserved decision on the inmates' petition.

Stephen Harkavy, deputy director of MHLS, said state officials created, on their own, an illegal procedure to move the inmates from prison to the hospital.

Harkavy said nothing in the law permits a prison superintendent to seek civil commitment of an inmate whose sentenced has ended. "If the legislature had wanted the prison superintendent as an applicant, then it would have said so," he said.

Kevin Quinn, spokesman for Pataki, said the state carefully followed all laws that permit the civil confinement of dangerous sexual predators who are mentally ill.

"It is outrageous that these 12 convicted sex offenders and their lawyers believe that sexual predators who prey on New Yorkers should have more rights than others," Quinn said. "Instead of seeking release based on a meritless legal technicality, they should prove that they do not pose a danger to our children and our communities."

The inmates have been held about three weeks at institutions on Ward's Island, Harkavy said. He said two of the 12 "want to be hospitalized. They don't want to be part of a court challenge."

Pataki, considering a run for the 2008 GOP presidential nomination, ordered state officials in September to look at the state's nearly 5,000 imprisoned sex offenders before their release to see if they should be civilly confined.

Donna Lieberman, executive director of the New York Civil Liberties Union, said Pataki's action "reeks of political exploitation."

"There's a grave risk of abuse whenever a governor engages in official lawlessness because he doesn't like the law and is running for president," Lieberman said.

Sex Offenders Held Illegally, Judge Rules. By Anemona Hartocollis
The New York Times, November 16, 2005

A judge ruled yesterday that New York State was illegally holding 12 convicted sex offenders in a mental hospital after they had served their prison sentences.

The judge, Justice Jacqueline W. Silbermann of State Supreme Court in Manhattan, found that the 12 men had been denied their right to an independent hearing and an examination by court-appointed doctors to determine whether they suffered from mental illness to the degree that they needed to be involuntarily confined to an institution.

She also said there had been no finding by court-appointed doctors that they posed a substantial risk to themselves or others.

Justice Silbermann did not order the men released immediately. But she directed Eileen Consilvio, executive director of the Manhattan Psychiatric Center, where the men are being held, to allow them to be examined by two court-appointed physicians as soon as possible. The offenders would be confined if both physicians found that they required involuntary hospitalization, she said; otherwise, they would be released.

The 12 were ordered held by Gov. George E. Pataki because, court papers say, he was frustrated with the State Assembly's refusal to pass a bill permitting the involuntary civil confinement of sex offenders.

Mr. Pataki told state officials to "push the envelope" and use existing law, which normally deals with the noncriminal mentally ill, to evaluate sex offenders before their release to determine whether they should be sent to mental hospitals.

"There can be no doubt that the governor and state officials have a very valid concern about the risks posed to the public by repeat offenders," the judge said. "Nevertheless, that some of the petitioners may involuntarily have been placed in the mental health system by executive fiat is a possibility which this court cannot ignore."

The state plans to appeal the ruling, a spokesman for the governor, Kevin Quinn, said yesterday. Such an appeal could result in a stay of the judge's order of court-appointed examinations.

"The court is granting convicted sexual predators more rights than law-abiding New Yorkers," Governor Pataki said yesterday in a written statement. "Without question, if this ruling is allowed to stand, it would jeopardize the safety of our children and communities throughout the state."

Justice Silbermann ruled on a petition filed on behalf of the 12 sex offenders by Mental Hygiene Legal Service, an agency created by state law and financed through the court system to represent patients in public mental hospitals. The agency contended that the offenders had a due process right under the United States Constitution to notice of their transfer from prison to a mental institution and to a chance to be heard before that happened.

"Some guys reported finding out in the van on their way there" that they were going to a mental hospital instead of being released from prison, Sadie Ishee, a lawyer for the agency, said yesterday.

After their sentences were up, the 12 were confined to the Manhattan Psychiatric Center on Wards Island between Sept. 23 and Oct. 21. Some were then transferred to the related Kirby Forensic Psychiatric Center, a high-security institution on the island that is also directed by Ms. Consilvio.

Ms. Consilvio failed to explain why the men, "alleged to be mentally ill and in need of hospitalization," had not been hospitalized during their incarceration, the judge said.

Two of the prisoners were diagnosed with antisocial personality disorder, but the judge said that according to the American Psychiatric Association, 75 percent of the prison population meets the criteria for the disorder.

Another of the offenders said that his medical evaluation had consisted of a 10- to 15-minute interview conducted by teleconference and that one of the examining physicians admitted that she did not want to send him to a psychiatric hospital but that a directive "had come down from Albany," according to court papers.

"The court takes no issue with the state's belief that each of these men poses a danger to society," Justice Silbermann said. "However, even persons acquitted of violent crimes by reason of insanity may not be civilly committed to a mental hospital solely because they pose a danger to society. A showing of mental illness and a need for inpatient care and treatment is also required."

Mr. Pataki has been considering a bid for the 2008 presidential nomination, and the question of whether sex offenders pose a continuing danger to society has been a divisive political issue. But Mr. Quinn denied yesterday that the governor's order for state officials to review the cases of New York's nearly 5,000 sex offenders before they are released was politically motivated.

"That's just ridiculous," Mr. Quinn said. "The governor has been fighting for almost eight years for the Assembly to act on legislation that the governor had advanced that would give the state clear authority to civilly confine sexual predators." The State Senate, he said, has overwhelmingly passed such legislation, but the Assembly has not brought it to a vote.

Donna Lieberman, the executive director of the New York Civil Liberties Union, said yesterday's ruling underscored the principle that politicians could not override the law in making decisions about how to treat even those who might be dangerous to society.

"It is entirely appropriate for a court to require politicians, including the governor, to follow the procedures set down in the law," she said.

Assembly won't rush on sex offender bill. By Cara Matthews
Ithaca Journal, November 17, 2005

ALBANY — The Democrat-controlled Assembly will not hurry to pass a bill to keep dangerous sex offenders locked up, despite a new court ruling that may put the predators back on the street and pleas from the GOP-led Senate to fall into step, legislators said Wednesday.

“It's a very complicated system. We should not be pandering to the Democrat versus Republican, liberal versus conservative approach to legislation,” said Assemblyman Peter Rivera, D-Bronx, chairman of his house's Committee on Mental Health, Mental Retardation and Developmental Disabilities.

Since 1999, Republican Gov. George Pataki has pushed for civil confinement of sex offenders whose prison terms are up but who are still considered a threat to society.

The Senate has passed a civil-commitment bill every year since 1997, but the Assembly has not acted.

After the Legislature failed to pass legislation this year, Pataki directed that sex offenders be evaluated upon their release from prison to determine whether they were still dangerous. Unlike more than 15 other states, which have specific laws to lock up dangerous sexual predators, New York used the state's mental hygiene law to accomplish this. Twelve convicts sued, saying their rights had been violated.

But on Tuesday, a state Supreme Court Justice Jacqueline Silbermann in Manhattan ruled that was illegal.

The state had denied the men their due process protections. She ordered that the 12 men be evaluated by independent physicians and released if they are determined not to be mentally ill, in need of treatment at a psychiatric hospital and at risk of substantial risk to themselves or others.

Silbermann wrote in her decision that the court does not take issue with the state's belief that the men pose a danger to society. “However, even persons acquitted of violent crimes by reason of insanity my not be civilly committed to a mental hospital solely because they pose a danger to society. A showing of mental illness and a need for inpatient care and treatment is also required,” she wrote.

Sisa Moyo, a spokeswoman for Assembly Speaker Sheldon Silver, D-Manhattan, said the Assembly has been doing its due diligence in investigating what is a complex issue and holding public hearings. Democrats are reviewing the sex offenders' case against the state will have a multi-pronged plan on how to tackle the problem, she said.

“We really want to ensure that it is effective. We don't want people to have a false sense of security. There has to be something that addresses all issues,” she said.

Rivera predicted a “strong debate” in the Legislature next year. “I've already proposed stronger and longer prison sentences ... to reshape our penal law so that individuals that are accused and convicted of sex offenses receive longer prison sentences,” he said.

Assembly Republican Minority Leader Charles Nesbitt, R-Albion, Orleans County, said it's time for the Assembly leadership to stop delay tactics like holding hearings. The judge's decision puts some pressure on the Assembly, although Democrats have resisted action for years, he said.

“We know that this is a dangerous group,” Nesbitt said about sex offenders. “Perhaps we should be looking at sentencing as well, but one thing I know for sure is we should be looking at everybody who gets out of prison with this kind of record, and we should be passing civil confinement to keep people safe from them.”

Pataki said Wednesday that an appeal of the decision was imminent.

The judge's decision was “disappointing and legally wrong. It is very important that violent sexual predators be kept away from the people of New York,” the governor said in a taped message sent to reporters.

The governor said the state had been acting in a manner that protected the men's civil rights because three physicians evaluated each of them before they were sent to psychiatric centers.

Since Pataki issued his directive this fall, about 26 sex offenders of some 100 evaluated have been sent to mental institutions, according to the governor's office.

Some are in the Manhattan Psychiatric Institute and others in the neighboring Kirby Psychiatric Center. The last person was sent to a mental institution was sometime last week, Quinn said. There are about 5,000 sex offenders in New York's prisons.

Harvey Rosenthal, head of the New York Association of Psychiatric Rehabilitation Services, said many sex offenders aren't mentally ill. The governor has been misusing mental hygiene law, he said.

“The argument of mental illness is very convenient because the mental-health system is the only other system where you can lock someone up against their will,” he said.

Gov Fills Perv Pen. By Fredric U. Dicker in Albany and Dareh Gregorian and Rita Delfiner in New York
New York Post, November 17, 2005

Gov. Pataki revealed yesterday he ordered 14 more sexual predators confined to psychiatric hospitals beyond their prison terms, as controversy raged over a judge's ruling that might free 12 others.

The 14 perverts are from throughout the state and were shifted to psychiatric hospitals under the governor's controversial program to keep such predators off the streets, even after they've done their time.

Pataki yesterday asserted that "13 of [the total 26] were convicted of molesting children under the age of 10," and that all were examined by doctors who concluded they were mentally ill and "pose a threat to do this again" if released.

"I'm not going to let them out on the street," he said.

Pataki's disclosure came after a judge's ruling Tuesday held that the original 12 men were illegally kept beyond their term.

Pataki vowed to appeal that ruling "within days." It was unclear when he had ordered the other 14 confined.

The governor's appeal comforted Darlene Allen, whose 62-year-old brother-in-law Arnold Allen was convicted in upstate Steuben County of subjecting an 8-year-old boy to sexual contact and of abusing a 13-year-old boy.

"I don't think he should be free," said Allen. "He needs help. And I truly don't believe he can stop from doing that to another child."

She said her brother-in-law also sexually abused a young family member many years ago but was never charged, and that he fell into a psychiatric "gray area."

"We were told he was not mentally ill," she said. "We were told he had the mentality of a 13-year-old.

"My husband and I, we've been trying for years to get him placed where he can be taken care of and not hurt anyone else, but we can't get anyone to help us," she said from her upstate home.

The emotional battle began when Pataki, upset at the lack of legislation that would allow civil confinement of sex offenders when their sentences end, took another tack. He used the state's involuntary commitment law, which usually deals with the non-criminal mentally ill, to win their extended confinement.

In her decision, state Supreme Court Justice Jacqueline Silbermann said the 12 would have to be released within five days. They would be freed after being examined by two court-appointed psychiatrists, if both doctors don't agree they should remain in custody.

The judge said she didn't argue with the state's belief that "each of these men poses a danger to society.

"However, even persons acquitted of violent crimes by reason of insanity may not be civilly committed to a mental hospital solely because they pose a danger to society," she said.

In her decision, the judge noted that two men, referred to as John Does because the court papers contained confidential medical records, "were diagnosed only with antisocial personality disorder, but according to the American Psychiatric Association, 75 percent of the prison population meets the criteria for this disorder."

The judge also said that John Doe No. 11 alleges that after a brief interview, "one of the examining physicians thereafter admitted that she did not want to send him to a psychiatric hospital, but that a directive had 'come down from Albany.' "

If the state appeals, a higher court could keep the 12 men in two psychiatric hospitals on Wards Island pending a full hearing.

The issue is being waged on an emotional battleground, with both sides trying to balance individual rights and those of the community.

Jessica Lugo believes her former boyfriend, Johnny Torres, 21, of Brooklyn, who pleaded guilty to the attempted sexual abuse of another former girlfriend, should not have been sent to a psychiatric hospital after completing his sentence.

"It's a crime not to let him go," said Lugo, 22, who also knew Torres' 20-year-old unidentified victim. "They're giving them hope, but they're taking away their hope."

Authorities said that during the 2004 incident, Torres threatened to kill his victim if she didn't have sex with him. But Lugo says Torres was innocent, and that he pleaded guilty out of frustration while awaiting trial. At the time of the crime he suffered from depression, and was in a mental health program that found housing for him, Lugo said. His victim lived in the same building.

But a woman named Michele, a tenant in the building on Eastern Parkway, said she lives there alone with a young son and didn't want Torres returning.

"If he's abusive, he could be abusive toward kids, too," she said. "It's really scary."

Mayor Bloomberg yesterday weighed in on the controversial issue, urging the Legislature to take action.

"What I would like to have is the state Legislature increase the mandatory sentencing for sexual predators, all the way up to life if that's what it takes," he said.

"I don't know whether the courts will find prior restraint legal or not," the mayor said. "What we know we can do legally is take these predators off the streets so they don't threaten anybody."

Stephen Harkavy, of the state Mental Hygiene Legal Services, which represents the 12 men, said the state had not yet turned over any information about who examined them. "They clearly didn't follow the procedures," he said.

In Bushwick, where convict Michael Bleiwas once lived, some tenants were nervous that the 51-year-old man might move back.

"I'll tell you one thing," said Jeffrey Darling, 42. "If he comes back, a lot of eyes will be watching him."

In the former Brooklyn neighborhood of another of the 12, Christopher Rivera, tenant Jason Best said if Rivera returned, "He'd probably be beat up. If he had to register [as a sex offender], he might not last long. People don't care what a judge says. He's still a molester."

Offending Albany. Editorial
The Journal News, November 18, 2005

Well of course a judge tossed out Gov. Pataki's unilateral bid to play executive, legislature, judge and jury, ruling that his involuntary commitment of convicted sex offenders who served their time was illegal.

The election-season pandering ran so afoul of fundamental constitutional protections - the governor had urged his underlings to "push the envelope" on the law - that Pataki and his legal advisers should be made to pay from their own paychecks the court costs incurred and to come in defending the legal heresy.

Notwithstanding a promised waste-of-time appeal, the ruling by Justice Jacqueline W. Silbermann of the state Supreme Court should compel Pataki, legislative leaders and criminal justice-mental health officials to redouble their efforts to address the in-prison and post-incarceration treatment of convicted sex offenders. The current modus operandi, especially evident in Westchester, of tough talk and grandstanding has accomplished very little. In the meantime, more untreated and no doubt unhinged offenders are released from prison every day.

The issue drew particular ire, and political pandering, after a woman was murdered in the early afternoon of June 29 at a White Plains mall parking garage. A Level 3 sex offender, who had served more than 20 years years in prison before being released two years earlier, has been charged in the killing.

Earlier this fall, Pataki cited frustration with the state Legislature when he ordered state officials to tap existing mental-health law for non-criminal mentally ill people to evaluate sex offenders before their release and send those deemed a continuing threat to mental hospitals. The process, which denied further detention only where both of two examining physicians agreed that the prisoner should not be held over, immediately committed about a dozen offenders to state mental institutions. Pataki said Wednesday that a total of 26 offenders had been so committed.

Notably, a lawyer for Mental Hygiene Legal Service told The New York Times, "Some guys reported finding out in the van on their way there" that they were going to a mental hospital instead of being released from prison. Silbermann also suggested that the examining physicians were anything but independent. She wrote that one John Doe offender alleged that the doctor who examined him admitted that she did not want to commit him to a psychiatric hospital, but stated that a "directive had 'come down from Albany.' "

The judge noted as well that two among the 12 prisoners addressed by the ruling were diagnosed with anti-social personality disorder, a condition so common it afflicts three-quarters of the prison population. On that basis, who couldn't be kept for Pataki-style extra confinement? Said Silbermann: ". . . [E]ven persons acquitted of violent crimes by reason of insanity may not be civilly committed to a mental hospital solely because they pose a danger to society."

In contrast with the medieval farce employed by Pataki, the commitment procedures set forth in the reasonably well-crafted civil confinement bill pending in Albany are infused with due process, opportunities for offenders to challenge their post-sentence confinement, including before a judge and jury.

"There can be no doubt that the governor and state officials have a very valid concern about the risks posed to the public by repeat offenders," Judge Silbermann wrote. "Nevertheless, that some of the petitioners may involuntarily have been placed in the mental-health system by executive fiat is a possibility which this court cannot ignore."

The governor should work for a civil confinement law and in-prison program for offenders that works for New York, and doesn't offend settled constitutional protections and common sense.

New York Mental Health Associations Help Pass Geriatric Mental Health Act. By Sara Thompson, senior director, Adult Mental Health Service
The Bell – The Newsletter of the National Mental Health Association, November 2005

“This landmark legislation will prepare for the vast increase of the number of Americans 65 and older over the next 25 years, from 35 million to 70 million, and the consequent growth of older adults with mental disorders from 7 million to 14 million. Approximately 800,000 of these seniors will reside in New York state.” —Giselle Stolper, executive director, MHA of New York City

Older adults who seek mental health services often face an uphill battle. Insurance coverage is woefully inadequate, services are delivered in mental health centers and not in an individual’s home or community, and providers are insufficiently trained in mental health and aging issues. In New York, a new law was recently passed to reverse these harmful trends.

Last summer, New York Gov. George E. Pataki signed into law the Geriatric Mental Health Act. It’s the first bill of its kind in the country to help meet the growing mental health challenges of older adults.

The law recognizes the need for innovation in meeting the unique mental health needs of older adults by providing for:

• Services demonstration grants that are designed to foster new approaches to help older adults live in the community; to improve access to, and quality of, mental health services; to integrate mental health, physical health and aging services; to increase the capacity of the mental health system to serve cultural minorities; to enhance caregiver supports; and to build a clinically— and culturally—competent workforce

 

• Interagency planning processes that will foster the integration of mental health, physical health and aging services, which is critical for effective service delivery for older adults.

The MHAs of New York City and of Westchester worked tirelessly to ensure the law’s passage. Together, the two MHAs created the Center for Policy and Advocacy in 2003 under the direction of Michael B. Friedman, a leading mental health policy expert. The Center mobilizes stakeholders and provides visibility and leadership to help move mental health issues to the top of the state’s political agenda. In 2004, the Center established the Geriatric Mental Health Alliance of New York, which has grown into a network of more than 800 individual and organizational members.

The Center is working to see that legislation similar to the New York law is passed by legislatures throughout the country. In fact, staff from the Center recently traveled to North Carolina to strategize with the state MHA there on ways to build an effective mental health and aging coalition, with the ultimate goal of enacting a North Carolina version of the Geriatric Mental Health Act.

For more information about this effort and to learn how to get your state involved, contact the MHA of Westchester at (914) 345-5900 or the MHA of New York City at (212) 254-0333.

Mental health bill gets push from PTA.
Albany Times Union, November 28, 2005

The opponents of Timothy's Law will have to be on their game during this coming election year session when lawmakers will be particularly vulnerable to the demands of voters.

The statewide PTA has joined forces with the small but feisty posse that has been trying to get the so-called "mental health parity" legislation passed for years.

The New York State Congress of Parents and Teachers, with nearly 400,000 members spread across every legislative district, unanimously passed a resolution at its annual convention two weeks ago in Buffalo to make Timothy's Law one of its legislative priorities for 2006.

"I was there to speak in favor of it -- it was resolution Number Two and passed without a single dissenting voice, which, if you know the New York State PTA, is incredible," says Kim Spicciatie, a delegate and mother of a 17-year-old who died trying to cope with his mental disorders. His heart gave out after his recovery from a severe overdose of alcohol.

Timothy's Law is named after Timothy O'Clair of Rotterdam, who hung himself in 2001 after his parents had difficulties getting his care picked up by a health insurance company.

The PTA folks have been known to flex their muscles in Albany and get results. For instance, they helped in the successful push for a graduated drivers license law a few years ago.

The PTA is also going to pursue another priority in 2006 -- getting schools to cut back on offering foods with trans fats, the hundreds of products with partially hydrogenated oils.

Mentally Retarded Mother Loses Her Parental Rights. John Caher
New York Law, Journal November 7, 2005

ALBANY — A mentally retarded mother who is admittedly unable to care for her children and protect them from their sexually abusive father can be stripped of her parental rights and permanently denied access to the children without any exploration of possible alternatives, an upstate appeals panel has ruled.

The Appellate Division, Third Department, disagreed with a law guardian and found that the Family Court was under no obligation to consider such options as open-adoption or long-term foster care, at least regarding two younger children. But the panel also said that the mother's parental rights in connection with the oldest child, a 17-year-old boy "who has minimal prospects of placement in an adoptive home that could meet his needs," should not have been terminated.

Matter of William W., 97843, illustrates a growing concern among advocates of the mentally retarded or mentally ill who say too many judges are quick to assume that a mentally ill or retarded person is incapable of appropriately caring for a child. The advocates also say that laws encouraging prompt, permanent adoptions result in loss of parental rights for many parents who, at some point in the future, recover from their mental illness or progress to the point where they are fully capable of raising their child.

The case decided last week involved three children ranging in age from 11 to 17.

Court records show that the Columbia County Department of Social Services petitioned to terminate Linda X's parental rights on the grounds that she is mentally retarded. Under Matter of Joyce T., 65 NY2d 39 (1985), there is no requirement for a dispositional hearing once mental retardation has been established in a parental rights case.

Regardless, law guardian Daniel Gartenstein of Kingston attempted to persuade Family Court Judge Paul Czajka to promote a resolution in which the mother would still have access to her children, and asserted to the Third Department that Judge Czajka erred in declining to do so.

But in a unanimous opinion by Justice Thomas E. Mercure, the Third Department affirmed.

The panel noted that while adoptive parents have every right to permit contact between the adopted child and biological parent, courts simply lack the power to order post-adoption visits. In this case, the record shows, Judge Czajka took a recess to give the parties an opportunity to discuss an open-adoption plan, but no such agreement resulted.

Justice Mercure also rejected the possibility of long-term foster placement as contrary to the legal and public policy aim of limiting foster placements and encouraging permanency, concluding ultimately that termination of parental rights best serves the interests of the two younger children.

"Here, given [the mother's] partial responsibility for the sexual abuse of her daughter by the father, her admission that she is not able to protect the children from the father and the evidence that these limitations could not be overcome through services or treatment, as well as the fact that adoption remains a feasible option for the two youngest children, we agree with Family Court that termination of respondent's parental rights is warranted with respect to her daughter and youngest son," Justice Mercure wrote in an opinion joined by Presiding Justice Anthony V. Cardona and Justices Edward O. Spain, Anthony J. Carpinello and John A. Lahtinen.

But the panel reversed the order of termination regarding the older child, concluding that separation from the mother in that instance "is not in his best interests." The court noted that the prospects for adoption of the 17-year-old are slim, and there is no danger that the mother's continued parental relationship with her son would be detrimental.

Disabled Often Lose Custody

The decision in Matter of William W. comes at a time when the Mental Health Association in New York State Inc. is attempting to persuade judges that mental illness does not necessarily render a person incapable of good parenting. Helena Davis, director of the group's anti-discrimination program, said 70 percent to 80 percent of parents with a mental illness lose custody in contested cases.

"This is a systemic problem," she said. "Child protective services workers are . . . encountering a host of complex situations with adults and children with mental health issues. They tend to err on the side of caution, but they also err."

The Mental Health Association has embarked on an effort to provide judges with more information on mental illness, the limitations of those suffering from mental illness and the prospects for recovery.

Ms. Davis said the issues with regard to mentally retarded parents are similar to those who are mentally ill.

"There seems to be a general assumption that if somebody has a disability they will be a terrible parent," Ms. Davis said.

She acknowledged that a mentally retarded person, unlike a mentally ill person, cannot "recover."

"They can't recover, but one thing to keep in mind is that it is quite possible for some of these parents, with a little bit of help and support, to keep their children safely in their homes," Ms. Davis said. "There are a lot of instances where one parent is sexually abusing one of the children, or more, and the other parent is not mentally retarded and does not have a mental disability, yet it still happens. So, why is this parent with retardation being punished for something that a parent without her challenges couldn't have stopped or wouldn't have recognized?"

Loss of Rights Irrevocable

Under Social Services Law §384-b, parental rights can be terminated for abuse, neglect or abandonment, or when the parent — by reason of mental illness or mental retardation — will not be able to care for the child in the foreseeable future.

Under the law, termination of parental rights is permanent and irrevocable. The law defines mental illness as an affliction that impairs judgment to the extent that a child living with such an afflicted person would be in danger of neglect as described in the Family Court Act. It defines mental retardation as "subaverage intellectual functioning" to the degree that a child living with such a person would be in jeopardy of neglect.

But experts say those definitions are vague and fail to take into consideration the possibility that a mentally ill or mentally retarded person, even one not presently capable of caring for a child, may be able to adequately parent in the future with appropriate support. Yet, under the federal Adoption and Safe Families Act of 1997, children are supposed to remain in foster care for no more than 15 months and states are financially rewarded for moving a child from foster care to adoption.

Mr. Gartenstein, the law guardian on the appeal, said he had asked the court to consider the possibility of continued visitation with the mother.

"Mental retardation and mental illness are wide terms," he said. "There are extreme cases, there are less extreme cases and there are cases where the impact on the parent's ability to take care of a child doesn't warrant court intervention. In this case, the mother was never going to be a viable custodial resource for these kids. That doesn't mean that the kids would not have benefited from a continued relationship with her."

Cynthia Feathers of Delmar, Albany County, appeared for the mother. James A. Carlucci of Hudson argued for the Department of Social Services.

Prison Punishment Exacerbates Inmates' Psychiatric Illness. By Eve Bender
Psychiatric News, November 4, 2005

Inmates with mental illness who are placed in isolation cells are often subject to a cycle in which psychiatric symptoms lead to behavioral infractions, further isolation, and worsening symptoms.

The criminal justice system is creating a more "severely disturbed" population of prisoners with mental illness by failing to provide adequate psychiatric treatment and employing policies that ensure that these prisoners remain isolated, according to a psychiatrist with expertise in this area.

The number of prisoners with serious mental illness has risen dramatically as part of a trend that has seen general prison populations increase over the past couple of decades, said Terry Kupers, M.D., at APA's Institute on Psychiatric Services in San Diego in October.

In 1999 a report by the Federal Bureau of Prisons found approximately 284,000 inmates in jails and prisons and 500,000 on probation and parole with a diagnosable mental illness. The proportion of inmates with mental illness has likely risen since that time, according to Kupers.

Kupers is Institute Professor at the Graduate School of Psychology at Wright Institute in Berkeley, Calif., and has testified as an expert witness in class-action lawsuits in more than a dozen states regarding the effects of imprisonment on inmates with mental illness, the quality of mental health services in the correctional system, and prison rapes, among other issues.

Rehabilitation Programs Disappear

As prison crowding worsened throughout the 1970s, violence rates escalated, and prison riots occurred with more regularity. At the same time, correctional systems were dismantling rehabilitation programs in many states, Kupers said. "Politicians didn't want to appear to be coddling prisoners," he noted.

In 1974 sociologist Robert Martinson, Ph.D., published a study that found that rehabilitation programs, including those providing education and psychotherapy, did not reduce recidivism rates of prison inmates.

The findings grabbed headlines, and Congress took note of them too, Kupers said.

Martinson later acknowledged using dubious methodology in his study and in 1979 recanted his findings, but the later article was largely ignored, according to Kupers.

Authorities missed a "golden opportunity" to reverse worsening prison conditions brought on by crowding and a lack of rehabilitation in subsequent years, Kupers said.

Instead of reducing the prison population by diverting people to mental health or drug treatment, they began building larger and more secure facilities.

In the 1980s, as a way to control inmate crowding and violence, corrections departments authorized construction of "prisons within prisons," as Kupers calls them, or "supermax" prisons.

Each houses many "security" or "segregated" housing units (SHUs), which are small, well-lit cells in which prisoners spend 23 hours a day (for one hour a day they have access to a small concrete recreation area). While in the SHU, inmates have virtually no contact with other people and are allowed few or no belongings.

In people with no history of mental health problems, there is evidence that time spent in the SHU can lead to anxiety, confusion, violent outbursts, and even perceptual distortions and hallucinations, according to Kupers, who cited the work of Stuart Grassian, M.D., a psychiatrist who has studied the effects of SHUs on prisoners.

In people with serious mental illness, spending time in the SHU exacerbates symptoms and can lead to psychotic decompensation or suicidality, said Kupers, who has worked with inmates with mental illness serving time in SHUs in several states. "These are the most severely psychotic people I have seen in more than 25 years of practice," he noted.

Depending on the prison, from 25 percent to 50 percent of inmates serving time in SHUs have some form of mental illness, Kupers said.

Segregation Worsens Behavior Problems

Inmates with mental illness are more likely to end up in the SHU because they may have trouble controlling their tempers or miss social cues that would enable them to coexist peacefully with fellow inmates, noted Kupers.

They are also more likely to serve longer stints in isolation than inmates without mental illness.

Many supermax prisons implement a "phase" system in which inmates can, with good behavior, move from isolation in the SHU (phase one) back to the general population, Kupers explained.

Behavioral infractions ranging from cursing to spitting to self-injury earn the inmate tickets. To move out of phase one, inmates must be ticket-free for a specified period of time.

Since the effects of isolation often worsen psychiatric symptoms, inmates with mental illness may have a tendency to act out against themselves or others, receive additional tickets, and stay in isolation, he noted.

"There are a disproportionate number of people with mental illness in phase one," Kupers said.

Though these inmates usually receive some form of mental health treatment while in segregation, the treatment is conducted in front of the cell and within the sight of inmates in adjoining cells. This makes inmates less likely to engage in treatment.

Kupers cited instances in which inmates with mental illness accrue time in segregation that exceeds their original prison terms.

This means that when their original sentence is up, inmates move from total isolation to the streets. Kupers calls this "maxing out of the SHU."

"After we declare that these inmates are too dangerous to live among the general prison population, we then open the front door of the prison and let them out onto the streets," which makes little sense, he noted.

Recidivism rates for inmates released from segregation are high.

"They come out very angry, likely to return to substance abuse and likely to get into trouble and return to prison" where they are sent immediately to segregated units, he said.

According to Kupers, however, there is a growing recognition of inmates' mental health needs by governments and departments of correction.

For instance, in January 2003 the New York Supreme Court ruled in Brad H. et al. v. the City of New York et al. that the city must provide intensive discharge-planning services for inmates with serious mental illnesses before they are released.

In addition, a report released earlier this year by the Reentry Policy Council, a project of the Council of State Governments, outlines hundreds of recommendations for inmates' successful reentry into society from the criminal justice system.

"Reentry [strategies] must build upon the rehabilitation and mental health treatment that inmates have received during their sentences," Kupers said.

More information about the Reentry Policy Council and its report "Charting the Safe and Successful Return of Prisoners to the Community" is posted at www.reentrypolicy.org.

Lawsuit Seeks to Guarantee Coverage in Drug Shift. By Robert Pear
The New York Times, November 14, 2005

WASHINGTON, Nov. 14 - Eight advocacy groups from Maine to California sued the federal government on Monday to make sure impoverished older and disabled Americans do not lose access to life-saving medications when Medicare replaces Medicaid as the source of their prescription drug coverage on Jan. 1.

The lawsuit, filed in Federal District Court in Manhattan, asserts that the secretary of health and human services, Michael O. Leavitt, has not met his statutory obligation to ensure continued, uninterrupted drug coverage for people enrolled in both Medicaid and Medicare.

Robert M. Hayes, president of the Medicare Rights Center, one of the plaintiffs, said: "It is virtually certain that some of these beneficiaries will lose drug coverage on Jan. 1. Some have not received proper notices or do not understand them. Others were not assigned to a drug plan because of computer system and data errors."

Moreover, the lawsuit says that people enrolled in both Medicaid and Medicare, known as "dual eligibles," are particularly vulnerable.

State Medicaid officials also expressed concern that some of these 6.3 million patients might be lost in the transition.

People eligible for Medicaid and Medicare now receive prescription drugs from Medicaid, the federal-state program for low-income people. On Jan. 1, the federal government will no longer pay for outpatient drugs under Medicaid. People enrolled in both programs will have to obtain drug benefits through Medicare, which has signed contracts with scores of private insurance companies to provide such coverage.

The federal government has randomly assigned 5.5 million of the beneficiaries to Medicare drug plans. These beneficiaries will generally not have to pay premiums or deductibles, and a co-payment for a covered drug generally cannot exceed $5.

A study by the Medicare Payment Advisory Commission, an expert panel that advises Congress, found that more than 60 percent of dual-eligible beneficiaries did not have high school diplomas, more than 40 percent were members of racial and ethnic minorities, and 62 percent lived below the poverty level. In addition, the study found that 38 percent had mental disorders, Alzheimer's disease or other forms of dementia.

Plaintiffs include the Action Alliance of Senior Citizens of Greater Philadelphia, the Congress of California Seniors, the Massachusetts Senior Action Council, the Maine affiliate of the National Alliance for the Mentally Ill, the New York Statewide Senior Action Council and United Senior Action of Indiana.

A spokeswoman for Mr. Leavitt, Christina Pearson, said she had not seen the lawsuit.

Dr. Mark B. McClellan, administrator of the Centers for Medicare and Medicaid Services, said, "We will make sure that every dual-eligible beneficiary enrolls in a Medicare drug benefit on schedule."

Abby L. Block, director of the Center for Beneficiary Choices at Medicare, said the agency would provide "a fail-safe mechanism," so that "any person who walks into a pharmacy with proof of eligibility for both Medicare and Medicaid will be able to get their medications."

Even after hearing such assurances, state officials said they still had qualms.

In an interview, Stan Rosenstein, the Medicaid director in California, said: "In our state, we have one million people who are going to convert drug plans in one day. We hope it goes as well as the federal government expects, but we are very scared. If one out of 10 people has a problem, that's 100,000 people in California. We don't have the capacity to handle 100,000 problems."

In some cases, beneficiaries may find that Medicare drug plans cover fewer drugs than their state Medicaid programs do. They have no assurance they will be assigned to drug plans that cover their medicines.

"I have an open formulary," said Ann C. Kohler, the Medicaid director in New Jersey. "You can get any drug that's been approved by the Food and Drug Administration. You can get it at no cost. This varies by state, but in New Jersey there's no co-payment. What beneficiaries will get under Medicare is much less."

$5 Million Approved for Mentally Ill Offender Treatment and Crime Reduction Act.
Consensus Project News Alert, November 9, 2005

On November 4, conferees for the FY 2006 Science, State, Justice Appropriations Bill (H.R. 2862) approved $5 million for the Mentally Ill Offender Treatment and Crime Reduction Act. Senator Mike DeWine, who shepherded the bill's passage in the Senate and is a member of the Appropriations Committee, and Congressman Frank Wolf, Chair of the Subcommittee that has jurisdiction over appropriations for the U.S. Department of Justice, were instrumental in securing funding for the newly authorized program. The appropriations bill now heads to the President's desk for his signature.

Signed into law in 2004, the Mentally Ill Offender Treatment and Crime Reduction Act (S. 1194) authorizes a $50 million federal grant program for states and counties to establish more mental health courts, expand prisoners' access to mental health treatment while incarcerated and upon re-entry into the community, provide additional resources for pre-trial jail diversion programs and related initiatives, and fund cross-training for law enforcement officials and mental health personnel dealing with adult and juvenile offenders with mental illness.

Leaders in law enforcement, court officials, corrections administrators, and mental health advocates and service providers enthusiastically supported the legislation and worked hard to ensure that it was funded in this year's budget.