Lower Cost, But at What Cost?

Late last month, Essex County Mental Health Association director Bob Davison went undercover to experience the current conditions at Dover Woods, a residential psychiatric facility in Toms River, New Jersey.  His subsequent report was published in the Newark Star-Ledger.  It paints a bleak and jarring account of life within the large mental health care facility, as the state continues to remove individuals from state-run hospitals and places them in residential health care facilities like Dover Woods.

Davison spent just over 48 hours in the facility.  He reported his room was “small” - featuring cigarette burns, rips in the bed spread and sheet, and broken dressers and closets.   However, more disturbing was what Davison experienced while interacting with other residents — he was sexually propositioned by an “actively psychotic” woman, had “no heat on a chilly night,” heard individuals “actively hallucinating” and “up all night screaming,” and broke up a fight between two individuals when officials were nowhere to be found.

In addition to what he saw inside the facility, Davison was disturbed by what he saw outside of it.  Averaging 275 police calls per year, Dover Woods is located near two major state highways, and the area lacks safe sidewalks — even though residents are free to come and go as they wish.  During his stay, Davison nearly witnessed a resident get hit by a car while crossing Route 9, one of the highways near the facility, something that is apparently not uncommon.  In fact, just a week before Davison’s undercover visit to the facility, Dover Woods resident Edward Braden was struck and killed while trying to cross Route 70 at 11pm on a Monday night.

Davison’s interactions with Dover Woods officials seemed surprisingly infrequent:  when checking in, officials quizzed him about his criminal history (and took him at his word).  Further, three days after he left the facility, Dover Woods officials finally called his emergency contact in search of him.

Davison’s experience highlights the worst of the residential health care facilities for the mentally ill — which cost the state around $68,000 per year per resident (compared to $301,000 per patient per year in a state-run psychiatric hospital).  He hopes his experience will bring more attention to the residential facilities and will lead to long-term changes.  And with many states cutting funding for mental health services previously mentioned here, investigations like Davison’s that draw attention the plight of the severely mentally disordered continue to be invaluable.

Rigid, Severe Penalties of FCAs On Full Display

News of the $1.2 billion verdict against Johnson & Johnson and its subsidiary Janssen Pharmaceuticals Inc. for their roles in marketing Risperdal during the middle of last decade sent reverberations through the industry earlier this week.  The award resolved Arkansas’ claims that the companies fraudulently marketed the “second generation” antipsychotic, misleading doctors and deceiving the state’s Medicaid program into paying for 239,000 prescriptions of the drug.  Specifically, the state claimed the companies minimized Risperdal’s dangerous side effects by not disclosing the risks on its label, marketed the drug for unapproved uses, and characterized it as more effective than competitors’ drugs.

After the jury found that the companies had misled doctors about the risks associated with Risperdal, Judge Tim Fox awarded $11 million for the violation of the state deceptive trade practices act. Further, Judge Fox turned to the Arkansas’ False Claims Act (FCA) – which carries a minimum $5,000 civil penalty for each violation of the Act (the federal FCA requires a minimum civil penalty of $5,500) – and applied Arkansas’ statutory penalty to the 239,000 prescriptions of Risperdal paid for by Arkansas Medicaid between 2002 and 2006, totaling $1.195 billion in damages.  According to Janssen, the state paid only $8.1 million for Risperdal during the 3½ year time period, which amounts to less than 1% of the damages amount.  The companies plan to appeal.

Arkansas adds itself to a growing list of states taking legal action relating to Risperdal’s marketing – trials in Louisiana and South Carolina have already resulted in damage awards of $258 million and $327 million, respectively.  Earlier this year, the state of Texas settled its allegations for $158 million.  And the federal government is also pursuing the companies, reportedly seeking between $1.3 and $1.8 billion to resolve its claims.

The Arkansas award provides an opportunity to engage in serious “Monday morning quarterbacking” as to why the companies did not settle the case, with a settlement estimate perhaps as low as $30 million.  In addition to providing an opportunity to second-guess the trial strategy, the court’s award also places the mandatory and stark penalties of state and the federal FCAs – blunt, severe governmental tools – into public discussion.  Due to the statutes’ structures, the damages amounts often far exceed the amounts of monetary damages the government initially suffers.  Further, as in federal fraud recoveries, the award amount does not go to those who may have been personally harmed by the Risperdal marketing tactics (notably, however, at trial, the state failed to show any patient harm, according to Janssen).  Instead, the recovery goes into the Arkansas Medicaid program (which, as pointed out by the Associated Press, is facing a $400 million shortfall for 2013).

The huge damage amount required by the federal FCA prompted one court in a widely publicized non-health-related fraud case in February to refuse rewarding any damages after finding FCA liability.  See U.S. ex rel. Bunk v. Birkart Globistics GMBH & Co., 2012 WL 488256 (E.D. Va. Feb. 14, 2012).  In Bunk, qui tam relators had brought a lawsuit (in which the government eventually partially intervened) alleging that bidders to a contract with the U.S. military had engaged in price collusion.  After the bidder had certified to the government they had independently arrived at their prices and denied collusion, the parties entered into a contract relating to transporting goods belonging to U.S. military members and their families.  Once relators found that the bidders had in fact colluded in setting the price, they brought suit.  The court found the defendants liable under the federal FCA, and proceeded to determine damages.

The defendants had filed 9,136 invoices under the contract, mandating damages under the FCA of at least $50 million (at least $5,500 per violation).  However, the court concluded that the prices under the contract – even if not independently reached – were fair and reasonable.  Further, the court found that the government was not financially harmed, and as such, the statutory penalty constituted an excessive penalty under the Eighth Amendment.  After finding that it lacked discretion to reduce the statutory penalty, the court refused to award any damages to the relators.

Both cases demonstrate the seriousness and rigidity mandated by both the federal and Arkansas FCAs.  Where the Risperdal settlement is staggering in its amount, the Bunk court’s failure to impose any damages is equally stunning.  As the government continues to rely on big FCA penalties to combat and deter healthcare fraud, defendants are incentivized to settle before trial, and more courts may be forced into a Bunk-like analysis.

Illegal Immigrants, Mental Illness and Due Process

Starting in 2010, states began addressing illegal immigration by rewriting their laws on the books.  Over the past two years, two states – Alabama and Arizona – have passed strict anti-immigration laws, and both states have had their laws challenged in court with split results.  Just last week, the Kansas legislature’s committee on House Federal and State Affairs reviewed new bills which would require police officers to verify citizenship and would criminalize the harboring of illegal immigrants.  Mississippi, which estimates it has 90,000 illegal immigrants living within its borders, has also discussed passing an anti-immigration bill which would force police officers to detain those who fail to produce identification.

With more illegal immigrants becoming ensnared in the growing detainment and deportation framework nationwide, the question of how they should be treated, once detained, is unavoidable.  How their mental health conditions affect their due process rights is one of the issues near the top of this list.

Four decades ago, the United States Supreme Court held that an incompetent criminal defendant could not be held by the state indefinitely while the state waited for him to become competent to stand trial.  Instead, the court held, the detention must only be held for a “reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.”  Jackson v. Indiana, 406 U.S. 715, 738 (1972).  The court added that if the individual’s competence is unlikely to be restored, then the state must civilly commit the individual or release the defendant.  Id.

However, today, contrary to the spirit of Jackson, those subject to removal proceedings who are declared incompetent to proceed are left in a lurch.  Many represent themselves during the proceedings – according to the Department of Justice, about 60 percent.  Further, the hearings are often complicated by language barriers.  Without counsel and unable to understand the proceedings, the result:  indefinite detention, or (arguably) worse, immediate deportation.

The lack of guidance – and dearth of procedural protections in this area – has even left judges seemingly frustrated.  Immigration judge Renee L. Renner, in dismissing a removal proceeding against Ever Martinez Rivas, wrote that “[t]he Attorney General has provided little guidance regarding steps to take to protect the rights and privileges of the alien.”  Likewise, in her decision, U.S. District Court Judge Dolly Gee noted “the absence of any systemic guidelines setting forth what is a ‘reasonable accommodation’ for unrepresented mentally incompetent aliens.”  See Franco-Gonzales v. Holder, — F.Supp.2d —-, 2011 WL 5966667, at *12 (C.D. Cal. May 4, 2011).

But help could be on the way.  Recently, purported class action lawsuits were filed by the ACLU, Public Counsel Law Center, and others, seeking representation for severely mentally disordered detainees.  Although many of the court documents remain sealed, in a May decision, Judge Gee went on to order that mentally incompetent detainees must receive a custody hearing – in which the court would review the appropriateness of the detainee’s current custody – and must be given the services of a qualified representative (an attorney, law student or law graduate, or “accredited representative”).  Id. at *11.  Subsequently, in late November 2011, Judge Gee granted class certification to the detainees in the lawsuit (individuals with severe mental disorders currently detained in California, Washington, and Arizona).  Franco-Gonzales v. Holder, No. CV 10-02211 (Order Re:  Plaintiffs’ Motion for Class Certification) (Dkt. 348) (Nov. 21, 2011).  Last week, the proceedings were stayed so that the parties could pursue a potential settlement.  Id. (Order Staying Proceedings) (Dkt. 372) (Feb. 13, 2012).

The lawsuit seems to be a vital first step in building a more equitable system for incompetent detainees.  And while litigation continues, the cases serve as a reminder to Americans to seek not only clear, enforceable guidelines governing removal and/or paths to citizenship, but also fair and clear procedures that govern deportation hearings themselves – especially for those who often are faced not only with language and cultural differences, but also the formidable challenge of severe mental disorder.

Cuts in Mental Health Funding Continue; Supreme Court to Rule

As America waits for the U.S. Supreme Court to hear oral arguments in, and decide on, the constitutionality of the Patient Protection and Affordable Care Act of 2010 (PPACA) in March, state cuts in mental health funding continue unabated in many states throughout the country.  As previously mentioned here, the PPACA review undertaken by the Court will not only focus on the constitutionality of the individual mandate but will also examine PPACA’s Medicaid expansion.  By expanding Medicaid, PPACA will provide coverage to millions of those living with serious mental illness.  PPACA also provides for increased community-based outreach, from changing the waiver laws to awarding grants for new programs, in order to further improve essential services for those living with mental illness.

While many fixate on late March, local governments continue a practice that started a few years ago:  slashing funding for mental health services.  Just last week, Chicago’s Department of Public Health announced they were closing half of their mental health clinics — disproportionately affecting the city’s African-American and Hispanic populations, according to advocates.  Over the last fiscal year, New York has cut its mental health budget by $95 million, and California has by $177 million.  According to a new NAMI study released late last year, from 2009 to 2012, four states have slashed their mental health expenditures by more than 30 percent; South Carolina, at the top of the list, has cut funding by nearly 40 percent.  Alaska and Nevada — the two states with the highest suicide rates in the country — are both in the top five.  In total, “general funds for mental health” are down $1.6 billion overall between 2009 and 2012.

Besides painful, the cuts are likely to be counterproductive:  advocates argue that they will actually cost states more in the long run.  Ronald Hornberg, director of legal and policy affairs at NAMI recently told ABC news that the cuts are resulting in those in need of services showing up in emergency rooms or prisons, where they are expensively boarded because there is nowhere else for them to go.   Eric Lindquist, a clinical therapist at the Chicago Department of Public Health, called the mental health clinics that Chicago has decided to cut, when compared to hospitalizations or incarcerations, “one of the taxpayer’s best bargains.”

At the same time, headlines late last week brought news that 20 percent of Americans were diagnosed with mental illness in 2010 — nearly one in four women and about one in six men.  Among other findings, nearly nine million Americans “thought seriously” about suicide in 2010, with over one million attempting to kill themselves.  Almost two million teenagers “experienced a major depressive episode.”  Those aged 18 to 25 had the highest incidence of illness:  nearly 30 percent.

Obviously, the incidence of illness and prevalence of spending cuts nationwide does not bode well for the future of mental health care in this country.  Those that depended on the services being cut are left to try and make it on their own, and those who worked for gutted agencies are looking for jobs.  And this is why advocates look toward March.  The Court’s decision later this year will shape the future of mental health services in this country for years to come — services that, right now, are increasingly endangered nationwide.

The Needle (Exchange) and the Damage Done

As those nationwide prepared for their holiday gift exchange, American lawmakers inexplicably put an end to a different type of exchange:  a life-saving and successful public health tool called needle exchange.

House Republicans fought for, and won, a ban on federal funding for needle exchange programs in a massive spending bill passed in December that will fund the federal government until the fall of 2012.  The ban prevents the federal government from spending money funding needle exchange programs not only in the United States, but also restricts the State Department from funding syringe programs internationally.  Providing federal funding to such programs had been banned from 1988 to 2009, until finally the ban was ended after the election of Barack Obama.  Now it’s back.

These programs focus on high drug-use neighborhoods, providing free clean needles to intravenous drug users in an effort to prevent the spread of blood-borne diseases, including HIV/AIDS.  They are often accompanied by HIV counseling and testing, and typically also provide referrals to drug users for treatment.  After much debate about their effectiveness, data have shown that the programs drastically reduce infection rates and do not increase illegal drug use.  Further, the programs, which currently exist in 33 states, are widely supported by the scientific and public health community, from the CDC to the AMA to the National Academy of Sciences.  When the Washington, D.C. Department of Health looked at the efficaciousness of its needle exchange programs, 800,000 needles had been exchanged, 5000 HIV tests had been offered, and 900 people had been referred to drug treatment.  Unsurprisingly, the number of new HIV/AIDS infections dropped 60 percent in Washington, a city devastated by the HIV/AIDS epidemic.  In New York, the numbers of intravenous drug users with HIV have dropped from 50 percent in the 1980s to 16 percent today, following the implementation of a needle exchange program.

Not only do they make scientific sense, but they also make fiscal sense:  needle exchange programs reduce health spending in the long run.  According to a 2002 report by the Institute of Medicine, needle exchange programs save between $3,000 and $50,000 for each infection prevented.

But the news was not all baffling over the holidays.  In New Jersey, state lawmakers approved a bill allowing pharmacists to sell needles and syringes without a prescription, and it now awaits Governor Chris Christie’s signature.  Although previously against needle exchanges, Christie has said he has an open mind and will carefully review the bill.  And unsurprisingly, according to the New Jersey State Health Department, more than 40 percent of the state’s HIV or AIDS cases were a result of intravenous drug users’ use of contaminated needles.

When it comes to such common sense policy that is effective in reducing new infections, provides support and outreach to those struggling with addiction, is supported by data and the scientific community, and provides smart savings on health care costs in the long run, the ban on such a policy is not only confounding and irresponsible, but dangerous to us all.

Sources:

Clean Needles in New Jersey, N.Y. Times Editorial, Dec. 14, 2011, available at http://www.nytimes.com/2011/12/15/opinion/clean-needles-in-new-jersey.html?_r=1 (last accessed Jan. 3, 2012).

Emily Badger, Feds Poke Hole in Needle Exchange Funding, Miller-McCune, Dec. 20, 2011, available at http://www.miller-mccune.com/health/feds-poke-hole-in-needle-exchange-funding-38518/ (last accessed Jan. 3, 2012).

Kristen Gwynne, Risking Lives:  In 2012 Spending Deal, House GOP Slaps Ban on Federally Funded Syringe Exchange Programs, AlterNet, Dec. 16, 2011, available at http://www.alternet.org/newsandviews/article/749233/risking_lives%3A_in_2012_spending_deal,_house_gop_slaps_ban_on_federally_funded_syringe_exchange_programs/ (last accessed Jan. 3, 2012).

N.J. Lawmakers Approve Sales of Needles, Action News, Dec. 5, 2011, available at http://abclocal.go.com/wpvi/story?section=news/local&id=8455789 (last accessed Jan. 3, 2012).

Sarah Barr, Needle-Exchange Programs Face New Federal Funding Ban, Kaiser Health News, Dec. 21, 2011, available at http://www.kaiserhealthnews.org/Stories/2011/December/21/needle-exchange-federal-funding.aspx (last accessed Jan. 3, 2012).

School-based Health Centers, Mental Health Care and the ACA

On October 20, 2010, Jamarcus Bell, a freshman at Hamilton Southeastern High School in suburban Indianapolis, hung himself.  He was 14.

In a lawsuit filed last week, his mother, Natalie Moore, alleged that Bell was repeatedly bullied by other students because of his race, “perceived homosexuality,” and “emotional disability,” and that the school corporation was aware of the bullying and did nothing to stop it and prevent his death.  Brian Smith, the district’s superintendent, responded this week, denying Moore’s allegations, and argued that “teachers and administrators took multiple steps to assist the student and his family.”  Notwithstanding the merit of the lawsuit, this is yet another headline in what has clearly become a nationwide epidemic of bullying.  Parents are concerned, schools are scrambling, and state legislatures are eyeing changing the laws:  Michigan’s legislature just approved an anti-bullying bill which will likely be signed into law by the governor in the near future.

Mental health services are at the heart of the debate:  are schools doing enough to not only prevent bullying, but also to ensure that students have an adequate support system?

Just 125 miles southeast of the Hamilton Southeastern School District, in Hamilton County, Ohio, Oyler School is also receiving public attention.  But not because it is the latest in a string of schools marred by alleged bullying incidents; rather, the school on the west side of Cincinnati is a school that has instituted an innovative system that may represent the future.

Just more than a decade ago, Oyler represented much of what was wrong with schools located in impoverished urban areas:  more than 80 percent of its students did not reach tenth grade, it had declared an academic emergency, and was the lowest performing school in Cincinnati.  Last year, the high school graduation rate was 82 percent, and the attendance rate is now 94 percent.  So how did the school turn its fate around so quickly?

Oyler adopted a community-based approach, in which the school persuaded various health care providers to relocate their offices directly at the school.  Today, the providers are housed in a full-blown health center, complete with a full-time nurse practitioner and a part-time pediatrician.  There is a vision clinic, a dental clinic, and six mental health counselors — including three full-time psychologists.  The clinic offers more than just healthcare services:  preschool, daycare, and afterschool programs are available.  It also assists families in applying for Medicare, attaining bus passes, and even provides dinner to families.  Taxpayers do not foot the bill for the services; the school simply reorganizes resources to keep costs down.  Of course, poverty still grips the school — 92 percent of children are on subsidized lunches and 112 students are homeless — but the students are having their health needs fully addressed.  As a result, Oyler has become a model for other schools in Cincinnati, and officials from Tennessee and New York City have recently visited.

The federal government has picked up on the school-based health center idea.  Under the Affordable Care Act, the federal government offered grants to schools to assist in creating and updating school-based health centers like the one at Oyler:  these centers bring the services to the students, relocating health services, including mental health services, into schools.  After receiving over 350 applications in 2010, the U.S. government awarded $95 million in grant money this past summer to 278 school districts and programs to expand such clinics.

This will build on the amount of school-based clinics that existed nationwide prior to the passage of the ACA.  According to the National Assembly on School-Based Health Care, prior to the awards this summer, there were 1900 school-based health centers providing a spectrum of health care services to nearly two million children and adolescents in 44 states and the District of Columbia.  School-based health centers offer everything:  prescriptions, treatment, education, and screenings.

Additionally, for those wondering how to combat the nation’s growing problem of bullying, three-fourths of the school-based health centers offer mental health services:  from completing assessments to crisis intervention to offering therapy.  And, with more and more stories like those of Jamarcus Bell dominating national headlines, placing mental health services where they are most needed – our nation’s schools – could be a vital tool in the fight against bullying.

Sources:

Affordable Care Act (ACA) Grants for School-Based Health Centers Capital (SBHCC) Program, grants.gov.

Chris Kenning, Cincinnati’s Oyler Elementary Finds Winning Formula to Fight Poverty, Louisville Courier-Journal, Apr. 23, 2011.

Chris Sikich, Superintendent Says HSE Acted to Prevent Bullying, Indianapolis Star, Dec. 1, 2011.

Dan McFeely, Hamilton Southeastern Sued Over Bullying After Student’s Death, Indianapolis Star, Nov. 29, 2011.

Joy Resmovits, School-Based Health Care Programs Receive $95 Million From Affordable Care Act, Huffington Post, July 14, 2011.

Oyler’s School Based Health Attracts National Attention, Local 12, WKRC Cincinnati, Nov. 29, 2011.

School District Releases Letter Regarding Lawsuit Over Student’s Suicide, Fox 59 News, Nov. 30, 2011.

Suit Links Suicide to School Bullying, Nov. 30, 2011.

The Facts:  Funding for School-Based Health Centers Under the Affordable Care Act, National Assembly on School-Based Health Care.

ACA Litigation, Implications for Medicaid and Mental Health Care

Receiving most of the attention and coverage following the passage of ACA has been the debate over the constitutionality of the individual mandate, in which Congress has required individuals to purchase health insurance.  This discussion has grown louder in the wake of the Eleventh Circuit’s Florida v. Health and Human Services decision, which invalidated the individual mandate as exceeding Congressional power under both the Commerce Clause and Taxing and Spending Clause.  As mentioned on this blog, that decision, along with the parties’ responses to it, has paved the road to Supreme Court review, likely early in 2012.

But also in the Eleventh Circuit’s decision — and a clear focus of the petitioners’ reply brief filed last week — is a discussion of whether, by expanding Medicaid under ACA, Congress exceeded its spending power.  This assertion was rejected by Judge Vinson in the Northern District of Florida, see Florida v. U.S. Dept. of Health and Human Svcs., 780 F.Supp.2d 1256, 1269 (N.D. Fla. 2011), as well as the Eleventh Circuit, see 648 F.3d 1235, 1268 (11th Cir. 2011).  The Eleventh Circuit relied on a few determinative factors to reject the argument:  (1) Congress has reserved the right to make changes to Medicaid, and the participating states were aware of this possibility; (2) the federal government will pay for nearly all costs of the Medicaid expansion; (3) states have “plenty of notice” to decide whether they want to continue to participate in Medicaid before the changes go into effect; and (4) it is not conclusive that states who do not participate in the new Medicaid lose their funding. Id. at 1267-68.

Putting constitutional concerns aside, petitioners’ argument, if adopted by the Supreme Court early next year, can work to undo much of the good the ACA accomplishes on the ground level, including the ACA’s positive effect on those living with mental illness.  Today, according to CMS, Medicaid pays for the mental health services of 58 million Americans. See Mental Health Services Overview, Centers for Medicare & Medicaid Services, available at https://www.cms.gov/MHS/ (last modified Sept. 6, 2011).  But according to an interesting Perspective piece in September’s issue of the New England Journal of American Medicine, the ACA would likely result in coverage for at least an additional “3.7 million currently uninsured people with severe mental illnesses and many more with less severe needs for mental health and addiction treatment.”  Colleen L. Barry and Haiden A. Huskamp, Moving Beyond Parity - Mental Health and Addiction Care under the ACA, 365 N. Engl. J. Med. 973-975 (Sept. 15, 2011).  Further, in addition to mandating that Medicaid benchmark plans and state-based insurance exchanges cover mental health services as part of an essential benefits package, the ACA assists in the coordination and implementation of more community-based services, from changing the waiver laws to assist the states in administering behavioral health services to establishing grants for further community outreach.  Id.

So instead of focusing on the individual mandate debate, those in the mental health field should note the Florida petitioners’ other target of attack — Medicaid expansion.  Already rejected twice, the ultimate resolution early next year will affect millions of mental health providers as well as those who use their services and will have a profound effect on the administration of mental health services in this country.