Raleigh, N.C. — Officials from the U.S. Department of Justice told North Carolina leaders this month that the state isn't doing enough to help keep people with serious mental illnesses in their local communities and out of more restrictive housing.
In a Nov. 6 letter to Attorney General Roy Cooper and state Department of Health and Human Services Secretary Rick Brajer, the DOJ said the state was violating a 2012 settlement agreement and "must take significant corrective action" to avoid unnecessarily funneling the mentally ill into adult care homes. DHHS signed the settlement under Gov. Bev Perdue following a federal investigation into possible violations of the Americans with Disabilities Act.
Since the state struck that deal, attorneys with the DOJ's Disability Rights Section wrote this month that North Carolina's mental health programs have "failed to address gaps in community-based services," missed targets for community housing subsidies and are not providing enough employment support to people with serious mental illness, all services that help them live more independently.
The DOJ acknowledged, however, that the state's work in the last three years has "improved the lives of hundreds of people with serious mental illness." Mental health advocates say they've seen a renewed commitment to improve services from Brajer, who took the helm of DHHS in August.
"The new secretary must have impressed DOJ with his commitment to address these deficiencies in a very assertive, if not aggressive, manner," Vicki Smith, executive director of Disability Rights North Carolina, said. "It's the secretary saying, 'I will fix this.'"
But if those problems aren't fixed soon, federal attorneys said they "will take appropriate action" that could drag the state back into court.
Citing ongoing litigation, DHHS spokeswoman Kendra Gerlach declined an interview request to discuss the DOJ letter. But in a statement, she said the department was committed to complying with the settlement agreement.
"While DOJ contends the State’s results fall short of several of the required benchmarks of the Settlement Agreement, the State’s many successes demonstrate forward progress," Gerlach said. "As long-term efforts continue to build a sustainable system, North Carolina will focus its energy and resources on assuring that it fully implements all the requirements of the Settlement Agreement."
Settlement addressed mental health shortfalls
Under the ADA, governments offering public services to people with disabilities can't just confine them to institutions such as adult care homes, a situation that the U.S. Supreme Court wrote perpetuates the assumption those with disabilities are "incapable of or unworthy of participating in community life." Instead, health officials must make efforts to provide community-based services wherever possible, keeping them in their own homes.
After Disability Rights alleged in 2010 the state was violating that requirement, a year-long DOJ investigation ended with the 2012 settlement agreement requiring the state to meet specific benchmarks to ensure compliance, including offering people with serious mental illness more housing subsidies and job training.
'I'm encouraged by some of the steps they're taking, but I do not believe they're going to meet some of the numeric targets in the short term. It's just not possible.'
Martha Knisley, independent reviewer
More than 20 states in the country have similar settlement agreements, according to Martha Knisley, an independent mental health expert charged with reviewing North Carolina's program for compliance.
Smith said it's not surprising the state has come up short.
"We've been monitoring how the state's been complying with the settlement all along and have been aware they haven't been meeting their targets," Smith said.
The goal is to bring mental health programs in line with the law by 2020. Although they're still in the early stages, Knisley said it will be a long process given the state of services when the process started.
"I'm encouraged by some of the steps they're taking, but I do not believe they're going to meet some of the numeric targets in the short term," Knisley said. "It's just not possible."
Mental health services are largely provided through publicly funded managed care organizations, or MCOs, that contract with the state. State officials depend on those contractors to meet the terms of the settlement.
"DHHS has always been weak in holding its contractors accountable, and it's demonstrated that in multiple ways," Smith said. "If the person who holds the contract feels like they can't demand more, then you have a problem with implementation."
In its letter, the DOJ said state officials have "failed to address gaps in needed services and supports" for individuals with serious mental illness looking to live outside adult care homes. The availability of services is "especially problematic" in some areas of the state, federal attorneys said.
"This is troubling, not only because it reflects noncompliance with the State's commitments, but because it contributes to poor outcomes for individuals served by the State," DOJ attorneys wrote in the letter. "Despite ongoing attention to this issue, however, the State has not resolved its noncompliance."
The state was tasked under the settlement agreement to gradually step up the number of slots available for housing subsidies year after year, with the goal of reaching 3,000 by July 2020. Although it agreed to serve 708 people in housing slots by July 2015, it had only served 417 by that date.
Smith said adding slots can be a complex problem to solve, especially in areas where the supply of affordable housing is low.
"The MCOs are really the key to any mental health services that you need, but they're not responsible for creating housing where it doesn't exist," Smith said.
'People confined to institutions have no assets, no ability to live in the community. Many people I've met are not that disabled, they just got routed to these homes'
Martha Knisley, independent reviewer
Federal officials also dinged the state for falling short of its goal to provide 708 people with employment support, services that include on-the-job training and oversight to help those with serious mental illnesses gain more independence. Their last tally as of May was 288 people – it didn't report numbers for June or July.
Services like these are important, Knisley said, because the transition from adult homes is often further complicated by poverty.
"People confined to institutions have no assets, no ability to live in the community," she said. "Many people I've met are not that disabled. They just got routed to these homes."
She said one of the biggest weaknesses in North Carolina right now is this service delivery system, which can help keep those with serious mental illness in their own homes once they transition. Done right, she said, these services can be life-changing, and they can lead to better health outcomes and lower costs to the public.
"At the end of the day, you want a much more effective community mental health system than you have today," Knisley said, "and that's really a work in progress."
Despite dispute over numbers, advocates see progress
So far, DHHS says community treatment teams have helped more than 5,000 people. But several agency figures don't match those the DOJ cited in its letter, nor those in the independent reviewer's report.
Gerlach said they've provided 519 people with housing support and related services to date, compared with around 400 noted by DOJ. As for supported employment, DHHS says it's provided opportunities to around 1,000, far more than the 288 figure noted by the reviewer as of May.
DHHS officials say the state "correctly reflects the progress we have made to date," and that the DOJ is interpreting its performance differently.
"[It] goes to the heart of one of the matters that DHHS is working on with USDOJ, so it remains in discussion between the two agencies," Gerlach said.
But Knisley said state officials are counting the number of housing slots offered to people, rather than the number of individuals who received and are still receiving services.
Although the settlement agreement is written to address services to the population of people with serious mental illness in adult homes, she also said DHHS has opted to count employment support services offered for other reasons, pushing their own figures higher.
Knisley said the dispute may eventually see resolution by a judge down the road, which isn't unusual. But for now, her interpretation is that only people in the target population receiving housing and employment support count toward compliance – even if the availability of services as a whole is also seeing improvement.
"I think they should get credit, but I don't think they should get credit for the number," Knisley said.
For its part, the General Assembly has continued to allocate $20 million per year for transition services to comply with the agreement. But the challenge, Knisley said, is in the implementation.
"It's not a matter of enough or not enough," she said. "It's a matter of having the right service in place at the right time. That's not occurred yet."
If this settlement fails, if DOJ has to take DHHS to court and their defense is, 'Hey we couldn't make our contractors meet the terms of the settlement agreement,' it makes both parties look weak. This is pretty high-stakes for both of them.
Vicki Smith, executive director, Disability Rights N.C.
Smith said it's important for DHHS to accept its role as a "quality assurer" and must do a better job holding MCOs accountable.
"If this settlement fails, if DOJ has to take DHHS to court and their defense is, 'Hey, we couldn't make our contractors meet the terms of the settlement agreement,' it makes both parties look weak," Smith said. "This is pretty high-stakes for both of them."
Although the DOJ's letter certainly provides "a push," Smith said she thinks DHHS is likely to bring the program into compliance given the public commitment she's heard from Brajer. His predecessor, Aldona Wos, who resigned in August, rarely discussed the settlement or plans to implement its directives, Smith said.
"Brajer is providing leadership within the mental health community at this," she said, "and that was missing."
DHHS officials, meanwhile, say that, although they appreciate that advocates are taking note of the progress, there's been no change in commitment from the agency.
"The State is, and always has been, committed to fulfilling its obligations under the Agreement and has benefited from the leadership of both secretaries," Gerlach said in an email.
Since Knisley began monitoring the state for compliance in 2015, she said she's been impressed by how quickly state officials have responded to issues she's raised.
"There has been a seriousness about fixing this, particularly with the new secretary, that will help enable them to be successful long term – if they keep it up," she said.
Despite the complexity, Knisley said other states, including Georgia and New Jersey, have had success working through their settlements to improve mental health programming. Although North Carolina has several years to go before its 2020 deadline, she said she'll be watching closely to see that the state doesn't get too far behind on its annual goals.
"This coming year will be a pivotal year with respect to the inability to catch up," Knisley said.
Smith said she's hopeful that, by collaborating with mental health advocates, DHHS is getting serious about implementing programs that keep people in their communities when possible, and she gets the sense that the federal government agrees.
"If they do this right, this is a game changer," she said. "It can reform mental health services."