The state’s top health services officer says creating a new, separate treatment facility for mentally ill patients who have committed crimes may be the only way for the Riverview Psychiatric Center to regain federal certification and preserve an estimated $20 million in annual funding.

The idea of a new facility was first brought up by the LePage administration in May but failed to get support in the Legislature. Mary Mayhew, commissioner of the Department of Health and Human Services, said last week that the administration still sees it as a solution to satisfy the federal agency that oversees Riverview funding.

The decertification of Riverview has loomed over the 92-bed Augusta hospital and DHHS since a 2013 federal audit found numerous 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.

Mayhew said the hospital quickly moved to correct the deficiencies but that a new facility for so-called forensic patients – those who have killed, assaulted or committed other offenses but been found criminally insane – is the only certain way to obtain certification.

Given the guidance from the federal government, Mayhew said, “we’re challenged by the dual roles that Riverview plays in providing services to both forensic patients and civil patients.”

However, the LePage administration’s solution worries advocates for the mentally ill, who fear that a new facility will operate more like a prison and less like a treatment center. And some are concerned about indications that DHHS may privatize mental health services for a group of patients who garner little sympathy from the public and a health care system that has long stigmatized their illness.

A NATIONAL TREND

The move toward privatizing mental health services is a national trend. States have cut $5 billion in mental health services from 2009 to 2012, including the elimination of at least 4,500 public psychiatric hospital beds, according to the National Association of State Mental Health Program Directors.

Many of the cuts were a response to intense pressure on state budgets during the recession. Some states have continued to move toward turning over some mental health services to for-profit corporations, in some cases with disastrous results.

“The concern for us isn’t whether it’s state- or private-funded,” said Kevin Voyvodich, attorney for Disability Rights Maine. “It’s more who’s going to guide the care and what’s the oversight going to be. A lot of the models for that are prisons. I think it’s an emerging market for private companies with forensic hospitals. It’s a concern when we’re using companies whose primary focus is prison environments rather than health care environments.”

Jenna Mehnert, executive director of the Maine chapter of the National Alliance on Mental Illness, agreed.

“I care less about who runs it and a lot more about the standards they’re expected to meet,” she said.

Mayhew wouldn’t say if the LePage administration is pushing to privatize some mental health services in Maine. However, the administration has already proposed legislation signaling that DHHS is at least considering it.

Gov. Paul LePage submitted a bill in May that would have allocated money to create a 50-bed Behavioral Assessment Safety Evaluation, or BASE, unit. It was introduced in the last days of the legislative session and died, but is now sure to resurface based on the administration view that it is needed to resolve certification at Riverview.

Such a new facility, according to testimony by Jay Harper, the superintendent at Riverview, would provide services for court-ordered evaluations, restorative care to individuals deemed incompetent to stand trial, and the more lengthy evaluation and treatment of patients who have committed crimes but whose mental illness has made them not criminally responsible – also known as forensic patients.

Harper noted that the U.S. Centers for Medicare and Medicaid Services has already made it clear that “certain security interventions” for forensic populations cannot take place at Riverview. He said keeping forensic patients at Riverview also posed a risk to hospital staff and civilly committed patients.

The administration’s pitch for a new facility drew intrigue and skepticism from members of the Legislature’s Health and Human Services Committee, as well as patient advocates. The administration said the facility would be operated by “an experienced provider” but it wouldn’t name any under consideration.

Rep. Drew Gattine, D-Westbrook, was also puzzled at the request for funding: More than $1.5 million for one month, or $18.5 million a year.

Gattine and Democrats ultimately balked at the proposal, citing a lack of detail. Patient advocates were also concerned that DHHS had not provided specifics about licensing and oversight of the proposed facility.

Mehnert worried that the administration was scapegoating forensic patients to advance a facility that’s bigger than necessary.

“The reality is that labeling the forensic patients the problem is just an easy out because it’s stigmatizing the criminal justice connection,” she said. “But there are plenty of civilly committed people who have been (committed) who have violent or behavioral outbursts.”

THE CHOKE POINT

New proposals to remove forensic patients from Riverview are likely in development.

Forensic patients account for roughly half of the current patient population at the hospital. Federal officials have said that forensic patients must be separated from the civil patients, that is, people who have not had entanglements with the criminal justice system but who could be in danger of harming themselves or others.

Mayhew stressed that the presence of forensic patients at Riverview and the state’s struggle to manage the two groups of patients while following its correction plan for federal certification are creating backlogs within the state’s mental health system.

The waiting list for services was cited in an Aug. 3 report signed by Daniel Wathen, the former chief justice of the Maine Supreme Judicial Court and the court master assigned to periodically evaluate conditions at Riverview. The report found that efforts to separate the civil and forensic populations – the central issue in the federal certification matter – created a backlog for patients seeking treatment.

“For the most part, in recent months the hospital has operated at less than 80 percent of its total capacity at a time when waitlists exist for its services,” the report said.

Mayhew said the choke point at Riverview ripples throughout the state’s health care and corrections system.

“It means that we may not be able to accommodate those who are coming through the civil process and voluntarily need to be admitted,” she said. “Hospitals and their emergency departments get frustrated, and rightfully so. There is no timely access to inpatient mental health services.”

Patient advocates like Mehnert and Voyvodich aren’t necessarily opposed to a new facility or operation by a private provider. However, they said the state should create firm guidelines and oversight to ensure that patients are provided hospital-level care.

“When you start talking about something that is a jail, that’s run by the Department of Corrections, … we get concerned,” Mehnert said. “It’s criminalizing mental illness.”

“We want people who have been found (not criminally responsible) to receive hospital-level care and that was not in the governor’s proposal,” she added.

In April, Massachusetts Gov. Charlie Baker, a Republican, proposed privatizing mental health services in the southeastern region of the state.

Several states, including Texas and Florida, are well on the way toward enlisting for-profit companies to provide mental health services. The experience in both states has been marked by controversy.

In 2012, a Florida hospital run by Geo Care drew scrutiny after the deaths of three patients. An investigation found that employees overmedicated patients and failed to notify the state after another died in a scalding bathtub.

“Some of these companies have had problems in other parts of the country. You just want to make sure that it’s vetted well before you go there,” Voyvodich said.

STATE SUFFERS SETBACK

The state has disputed the audit findings that led to federal decertification of Riverview, but DHHS suffered a significant setback Aug. 13 when a federal judge ruled that the state missed its chance to appeal despite acknowledging that it was “acting in apparent good faith” to fix problems at the hospital.

The dispute could force the state to repay about $20 million it receives annually to run the hospital, and has raised questions about whether the state will have to pay the hospital’s full freight going forward – about $35 million a year.

The state can appeal the Aug. 13 ruling, but Mayhew said DHHS has not decided if it will.

Voyvodich is hopeful that the issues at Riverview can be resolved.

“A lot of systems failed and it’s taking a long time to turn those things around,” he said. “But I think it takes a long time to fix broken systems. I think there’s been a lot of focus on fix it quickly, but if you want to fix it correctly, and get the best care, it does take some time to turn things around.”

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