When asked why he agreed to spend over a year reviewing the cases of 154 Mississippians who’d used state mental health services, Dr. Robert Drake sighed deeply. Swiveling his chair in the witness stand, he faced U.S. District Court Judge Carlton Reeves and gave a half smile.
“I thought I could be helpful to Mississippi,” said Drake, a New Hampshire-based psychiatrist. “But honestly I was surprised that the community-based system in Mississippi… I was surprised that at least the 154 patients in our review did not receive many of those services (Mississippi said were available).”
Drake, who has authored more than 200 studies on mental health care, was the U.S. Department of Justice’s first expert witness in its lawsuit against the state of Mississippi, which it says violates federal law by warehousing people with mental illness in old-fashioned state hospitals and failing to provide care to patients who aren’t institutionalized.
“This is not a case of people falling through the cracks. This is a case of thousands of people falling through the gaping holes in the state system,” said Deena Fox, an attorney for the Department of Justice, in her opening statement on Tuesday, the first day of the trial.
In a twist, Mississippi did not deny it could provide better mental health services. It just questioned whether it has to, at least according to Department of Justice standards.
“The Department of Justice says if Mississippi adds more and more community-based services, then at some point Mississippi will have enough services to satisfy Olmstead. This begs this question, though: How much is enough? The Department of Justice won’t say,” said James Shelson, a private attorney the attorney general’s office hired to handle the case, in his opening statement.
Olmstead is the landmark Supreme Court case at the crux of the Department of Justice’s complaint. In 1999, the Supreme Court ruled that not giving people with mental illnesses the option to receive mental health care in their own communities violates the Americans with Disabilities Act. These services can include medication assistance, crisis intervention, psychological services and housing and employment support.
In 2011, the Justice Department sent Mississippi a letter, reprimanding the state for continuing to rely on and fund its state hospital system while under-funding community-based services. In 2016, the Justice Department argued that the state was continuing to drag its feet on improvement and sued Mississippi for violating Olmstead.
In her opening statement, Fox argued that rolling out statewide community services shouldn’t be a significant problem for Mississippi because those services already exist, albeit in piecemeal form, and ultimately cost far less than institutional care.
Using a slide projector, she put up a map of the state of Mississippi, showing which counties have access to Assertive Community Treatment teams, which are designed to provide a variety of mental health services to people with severe mental illness living outside hospitals. Fourteen counties on the map were highlighted. Those services weren’t available in the remaining 68 counties.
“This is just further evidence of the uneven availability of services to people in the state,” Fox said.
Ironically, the slides that the state most frequently used to counter the Department of Justice’s Olmstead argument was Olmstead itself. At four different times during his opening statement, Shelson, the attorney representing Mississippi, put up excerpts from Justice Ruth Bader Ginsburg’s majority opinion in Olmstead. Shelson pointed out the places where she agreed that hospitals are crucial to some patients and can continue to cost the state money, even after patients have transitioned to community-based care. He also pointed to a place where she wrote “the state’s responsibility is not boundless.”
“(The Department of Justice says) it essentially allows them to seek boundless relief with no discernable limit and that is not possible,” Shelson said.
After Fox delivered her opening statement, Reeves asked the attorney what, exactly, the Department of Justice was seeking from this lawsuit.
“Does the United States expect the court to take over the Mississippi mental health system? Is that what we’re asking here at the end of the day?” Reeves said.
Fox pointed out that, in a deposition, the deputy director of the state Department of Mental Health had admitted that he did not know if the state had developed an Olmstead plan. She said the state needs to develop an Olmstead plan and stick to it.
“The agency knows what it needs to do and could make those changes,” Fox said.