AUGUSTA — Two legislative committees heard more than four hours of testimony Thursday as lawmakers tried to review plans for a 21-bed secure psychiatric facility that Gov. Paul LePage first wanted to build on state grounds beside the Riverview Psychiatric Center in Augusta, but now says he will build in Bangor.

Members of the Appropriations Committee, which oversees the state budget, and the Health and Human Service Committee, which has jurisdiction over the Department of Health and Human Services, heard from patients, their advocates, state workers’ union representatives, a former state supreme court justice and other witnesses.

Court Master Daniel Wathen said Thursday that lawmakers should approve Gov. LePage's proposal to build a state mental health facility in Bangor. Joe Phelan/Kennebec Journal

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• At state-run Riverview, danger and dysfunction pervasive

The proposed facility would house forensic patients – those in state custody who have been found not criminally responsible because of mental illness but no longer need hospital treatment. DHHS officials have said the new “step-down” unit is needed to help the state regain federal certification and funding for Riverview, the state’s largest secure mental health hospital, which has 92 beds.

Some lawmakers said Thursday that they haven’t been told enough about plans for the facility. Other witnesses say they have concerns about what they have heard.

Still others spoke favorably, saying it would ease the strain on other medical facilities in the state and provide more security than can be found in group homes.

Neither LePage nor DHHS staff attended the hearing. Members of the committees will submit written questions to LePage, even though the administration argues that it no longer needs the approval of the Legislative Council to move forward with the $3.5 million proposal.

Lawmakers have twice blocked LePage’s attempts to gain Legislative Council approval for the new building in Augusta under a law that requires the council to approve new construction on state lands in the Capitol Area of Augusta.

On Tuesday, LePage’s administration formally withdrew its request for Legislative Council approval. The governor has said the state will instead locate the new facility in Bangor, beside the state-run Dorothea Dix Psychiatric Center, the state’s other secure mental health hospital, which has 51 beds.

But lawmakers and some who testified Thursday said no governor has ever built a facility with taxpayer funds for a public purpose without approval of the Legislature and they question whether such an attempt by LePage would become bogged down in legal battles. Some said they are concerned that the governor would consider, without legislative oversight, building a new state facility and changing the way mental health patients in state custody are treated.

Sen. Roger Katz, R-Augusta, said some Republican lawmakers were offered a private briefing on the new facility but he was not. Katz, whose Senate district includes Riverview, said the lack of transparency from LePage is troubling and he believes the Legislature has a responsibility to learn as much as it can about the facility, whether it’s built in Bangor or Augusta. He said most agree that it makes better sense to keep the facility near Riverview.

“To me, this is all about process,” Katz said. “The administration has put forward a skeleton proposal. We know what the building will look like but we don’t know much yet about what’s going to go on inside.”

Katz said it may be a “great proposal. … But I think it’s a matter of the constitution that the Legislature has a role in setting policy, appropriating money and making major decisions about institutions.”

Donald Beauchene, a Riverview forensic patient in state custody since 1998, told lawmakers that what little patients were hearing about the new facility was “raising all kinds of red flags,” among them reports that fences surrounding it would be topped with razor wire and that it would be operated by a private contractor.

Others also testified that they had concerns about the proposal.

“The lack of transparency around this issue brings significant civil liberties concerns for the due process rights of the patients, those who will be transferred into this unit and those who will be denied transfer to this unit,” said Oami Amarasingham, advocacy director for the American Civil Liberties Union of Maine.

The union that represents the state workers at Riverview said it wants more information about the proposal.

“As the workers who currently care for these patients every day, we have some serious concerns about the lack of information and transparency with the administration’s plan for a step-down facility,” said Lisa Cromwell, a mental health worker at Riverview and secretary-treasurer of AFSCME Local 1814, in a prepared statement. “We agree that we need more beds with a step-down level of care, but we have yet to hear answers to key questions about how this facility will be structured and run.”

But Daniel Wathen, a former chief justice of the Maine Supreme Judicial Court who was appointed to oversee a consent decree over the state’s treatment of mental health patients, recommended the two committees sign off on the new facility.

Wathen said he was given access to some of the DHHS files on the proposal, including a draft of the request for proposals for private operation of the facility.

Wathen said he is confident that the request for proposals would bring in a contract that would ensure adequate staffing, treatment and security for patients and the community. He said he believes that a court would be more likely to allow a forensic patient to be transferred to the new unit than to a supervised group home because it would be more secure.

Also speaking in favor of the new facility was Jeff Austin, a lobbyist working for the Maine Hospital Association. He said Maine’s hospitals support the new facility largely because they face increasing numbers of mental health patients who need a secure facility.

The new facility is expected to free bed space at Riverview, easing some of the pressure on hospitals and county jails around the state. Austin said whether the facility is privately operated or state-run, it is needed to free up mental health bed space in Maine.

The federal agency that oversees Riverview’s funding revoked the hospital’s certification in 2013 after regulators found many problems, including the use of stun guns, pepper spray and handcuffs on patients, improper record-keeping, medication errors and failure to report progress made by patients.

The federal Centers for Medicare & Medicaid Services also determined that Riverview was improperly commingling patients who needed intense hospital treatment with those who no longer required hospitalization.

While the state has still been receiving federal Medicaid funds for Riverview, it has been warned that it may have to pay back as much as $20 million for each year it operates without federal approval.

LePage has charged Democratic lawmakers with “playing politics” with the issue, but Katz said Thursday that the dispute between LePage and lawmakers could have easily been resolved months ago had the administration been more forthright about its plans.

Lawmakers said Thursday that they will submit written questions to the administration in hopes of making a final recommendation by Jan. 18.

But in a letter to Grant Pennoyer, executive director of the Legislative Council, dated Jan. 3, Gilbert Bilodeau, interim director for the Bureau of General Services wrote, “The Administration no longer intends to construct the new facility within the Capitol Area. Therefore, Legislative Council approval of the submitted plans is unnecessary.”

It remained unclear what the Legislature’s or LePage’s next step might be although LePage has vowed to move forward with the new facility in Bangor.

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