A legal watchdog for the rights of certain mental health patients in Maine has filed a court action that is likely to halt the LePage administration’s plan for running a new 16-bed psychiatric facility in Bangor.

Daniel Wathen said the Department of Health and Human Services wants to pay a private contractor to run the facility with $5.4 million that is supposed to be spent on community-based services. He says that would violate the terms of a landmark 1990 consent decree to protect the rights of former patients at the Augusta Mental Health Institute.

Wathen, an attorney and former chief justice of the Maine Supreme Judicial Court who serves as special master for the decree, filed a recommendation against the state funding plan Tuesday in Kennebec County Superior Court.

In an interview Wednesday, Wathen said his opposition to the funding plan will probably stop the contract in its tracks unless the LePage administration mounts a legal challenge and convinces Judge Andrew Horton, who oversees the consent decree, to reject the recommendation.

If Horton rules in Wathen’s favor, the administration of Gov.-elect Janet Mills, who takes office on Jan. 2, will decide how to fund and operate the facility.

Jenna Mehnert, executive director of the National Alliance on Mental Illness Maine, said that when the Mills administration takes over, it will be a good time to take a step back and evaluate what purpose the new facility will serve, what entity should run it and how best to coordinate mental health services throughout the state. Mehnert said NAMI Maine “prefers a state-run facility” with strong oversight.

“Our hope is when the Mills administration comes in, they will bring groups together and take a look at the big picture, and have a vision that has been missing for the past eight years,” Mehnert said.

TALKS WITH PRIVATE CONTRACTOR

Julie Rabinowitz, a LePage spokeswoman, said the administration is “moving forward” with the project despite Wathen’s recommendation against the funding plan.

“As always, we value and appreciate the court master’s recommendation and will take it under advisement as we move forward with this project, which is aimed at increasing mental health capacity in the state and supporting the ongoing improvements at Riverview Psychiatric Center,” Rabinowitz said in a written statement. “It is important to note that with the exception of his objection to the use of consent decree funding, the department is not aware of any other concerns the court master has with the step-down unit. Additionally, we are grateful for (Horton’s) participation in discussions surrounding the step-down unit and his recognition of the facility as a necessary component of the continuity of care for people with mental illness.”

The so-called step-down facility is under construction, and DHHS is negotiating with Correct Care Solutions, a private contractor from Tennessee, to run it. Wathen said the agency was in the final stage of negotiating the contract when he filed the recommendation to prevent funding.

The 1990 decree was designed to protect patients who were at the since-closed Augusta Mental Health Institute, but it also applies to patients at Riverview Psychiatric Center in Augusta.

The new step-down facility, also called the Secure Residential Treatment Facility, is intended to serve patients transitioning out of Riverview into community-based programs, such as group homes. Patients still would need residential care, but not intensive, hospital-level care.

Wathen said the LePage administration is improperly using surplus consent decree funding – general funds that are set aside for people who need community mental health services, such as in-home care or medication management.

Rabinowitz defended the contract, saying it doesn’t stipulate the use of consent decree money.

“The contract does not specify the use of consent decree funds,” she said in an email Wednesday night. “It only specifies general funds as the source.”

‘AWAY FROM PETER TO GIVE TO PAUL’

Wathen, however, maintains that the money, about $5 million per year, is earmarked for clients who are not eligible for MaineCare, or who need services while awaiting a determination of MaineCare eligibility. He objects to using existing mental health funding set aside for community-based services to operate a new psychiatric facility, saying “it’s like taking away from Peter to give to Paul.”

“The department’s plan to utilize consent decree funds to support the operation of the Secure Residential Treatment Facility in Bangor is at odds with and contravenes the appropriations made by the Maine Legislature,” Wathen wrote in his court filing. “In addition, it violates the provisions of the consent decree and the consent decree plan adopted in 2006 with respect to the provision of core community mental health services.

“I formally recommend that the department neither encumber nor expend any consent decree funds to support any agreement for the operation of the Secure Forensic Residential Treatment Facility. It is my recommendation that such funds continue to be used for the purposes for which they were appropriated – core community mental health services for those ineligible for MaineCare.”

Wathen said Maine’s system for the mentally ill “has a capacity problem” and that the new Bangor facility is only tangentially related to Riverview’s decertification. A host of problems, including overuse of seclusion and restraints on patients, led the federal government to decertify Riverview in 2013, making it ineligible for federal funds. Riverview is in the process of applying for recertification, and Wathen said Wednesday that he believes it will be recertified soon.

MILLS ‘WILL WITHHOLD JUDGMENT’

Wathen’s filing came a day after Mills sent a letter to LePage’s DHHS and financial services commissioners asking them not to finalize any more contracts with private vendors before she takes office in January. She also asked for a list of all pending and expiring contracts, and she asked the administration to notify contractors of her request.

Mills did not identify any particular contracts that she was concerned about in her letter.

Her spokesman, Scott Ogden, issued a statement Wednesday that did not specify Mills’ position on the Bangor contract.

“The governor-elect has made clear her position on new, pending contracts,” Ogden said. “Otherwise, she, in conjunction with her future administration officials, will address them after she is sworn in as governor next month. Until then, she will withhold judgment.”

LePage rejected Mills’ request not to sign any final agreements, saying it would be irresponsible and interfere with the work of state government. Rabinowitz, LePage’s press secretary, said the financial services agency will have processed at least 400 contracts by the end of December, including 287 contracts from DHHS.

Joe Lawlor can be contacted at 791-6376 or at:

[email protected]

Twitter: joelawlorph


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