Mental health agency, AG at odds over court-appointed monitor's work

by Isabelle Taft, Mississippi Today
September 28, 2022

While the Department of Mental Health works to expand community-based mental health services for Mississippians, the state Attorney General's Office continues to fight oversight of that effort.

State attorneys filed an objection to the most recent report by the court-appointed monitor reviewing the department's progress toward reducing unnecessary hospitalizations of people with serious mental illness – the latest example of the disconnect between the state's top law enforcement agency and the mental health department. 

“The State is concerned that the volume of general commentary, discussion in the nature of perceived best practices, and recommendations in the Second Report, coupled with the Monitor's 3-part framework for assessing compliance, is resulting in mission creep – i.e., the incremental expansion of the Remedial Order well beyond its terms,” the objection, filed on Sept. 22, said. 

In 2016, the Department of Justice sued the state over its mental health system. U.S. District Court Judge Carlton W. Reeves sided with the federal government in 2019, finding that Mississippi had violated the Americans with Disabilities Act by segregating people with mental illness in hospitals far from their homes and families. 

Last year, Reeves appointed Michael Hogan, a former New York State Commissioner on Mental Health with 40 years of mental health experience, to create twice-yearly reports monitoring the state's progress toward providing community-based services to help people avoid hospitalization. 

Hogan filed his second report in early September. The 62-page document found that Mississippi had reduced hospitalizations, but that problems with care coordination at community mental health centers lead to people falling through the cracks. 

Hogan told Mississippi Today that he sees the case as two sides of a coin. On one side, he believes the Department of Mental Health is working in good faith to comply with Reeves' remedial order. 

“The other side of the coin is legal, and on that side, the state has fought – as far as I can tell – every aspect of the case from the beginning, and continues to,” he said. 

The state appealed Reeves' ruling to the U.S. 5th Circuit Court of Appeals, arguing he had installed “perpetual federal oversight” of Mississippi's mental health system. Oral arguments are set to take place in New Orleans next week. 

Meanwhile, Department of Mental Health leadership has publicly praised Hogan's work.

“The Department of Mental Health values working with Dr. Hogan and appreciates his willingness to provide feedback as the agency continues to implement new data and validation measures, protocols, and audit processes that have begun over the past year,” department spokesman Adam Moore said earlier this month when Hogan filed his report. “As both reports have mentioned, much has been accomplished and there is much to be done.”

Moore said on Tuesday that the Department had nothing further to add and referred Mississippi Today to the Attorney General's Office for questions regarding the litigation.

Michelle Williams, chief of staff for Attorney General Lynn Fitch, said the office does not comment on pending litigation and will let the filing speak for itself.

In September of last year, shortly before the state filed its appeal with the 5th Circuit, Department of Mental Health Director Wendy Bailey told lawmakers the agency would move forward regardless.

“We will comply with the judge's order and do everything that we need to do as a state agency,” she told lawmakers. “As far as the appeal, that would be a question for the Attorney General's office.”

Reeves' order appointing Hogan requires him to “assess compliance” with each part of the remedial order, but it doesn't spell out how exactly he should do that. Some components of the order are quantitative – for example, the state must operate one or more mobile crisis response teams in each region. But others are not, like the requirement that community mental health centers “make reasonable efforts” to reach people with serious mental illness and connect them with care.  

So Hogan developed a “three-part framework” in consultation with the state and the Department of Justice. For each element of the order, he looks at whether the state took action to address the requirement. Then he asks how well the action is working. Finally, he tries to assess whether the action is reducing unnecessary hospitalizations– the key goal of the lawsuit. 

Hogan discussed that framework in his first monitoring report in March, and the state filed no objection. Now, the state claims the framework is “problematic” because it is not discussed in the remedial order and because it is not objective. 

“The Monitor cannot call balls and strikes without an objectively defined strike zone,” the state's objection says. “The Remedial Order does not provide an objectively defined strike zone for the vast majority of its provisions. The rules for balls and strikes are not dependent on the professional judgment of the umpire. Likewise, compliance with the Remedial Order should not be dependent on the professional judgment of a monitor.”

Both the state – represented by the Attorney General's Office –  and the Department of Justice have a chance to provide comments and suggested revisions before Hogan files each report with the court. Hogan said the state had raised many of the issues that now appear in its objection. He responded to those points but did not make all the changes the state wanted. 

“My view is, it is what it is,” he said. “And I proceed ahead on my side of the road or my side of the coin, which is to look at compliance and make the best judgments that are available.”

Read the state's objection here:

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.