AUGUSTA — State Human Services Commissioner Mary Mayhew and another top agency official are under threat of a legislative subpoena if they don’t voluntarily attend an upcoming meeting of lawmakers to answer questions about recurrent problems with patient treatment and safety at Riverview Psychiatric Center in Augusta.

The Legislature’s Government Oversight Committee voted 11-1 Thursday to issue the subpoena warning to Mayhew and Jay Harper, the Riverview superintendent. The committee recently reviewed a report by a court-appointed master for Riverview which found that inadequate staffing, training, and seclusion and restraint techniques continue to plague the 92-bed center.

Former Supreme Court Chief Justice Daniel Wathen, who was assigned by the court to ensure that Riverview patients receive proper treatment, appeared before the oversight panel Thursday to explain the ongoing deficiencies. However, Mayhew and Harper did not attend the briefing despite a request from the committee.

Their absence riled lawmakers, who argued that the Riverview situation is urgent and expressed frustration that Gov. Paul LePage had set a new policy that throttles the exchange of information between the executive branch and legislators. The policy requires that legislative committees request the appearance of state agency heads through the governor. Beth Ashcroft, director of the Office of Program Evaluation and Government Accountability, the watchdog agency directed by the oversight panel, told lawmakers that LePage’s office had informed her that Harper would not be allowed to attend and that Mayhew had a scheduling conflict.

The response from the governor’s office irked lawmakers. Rep. Anne-Marie Mastraccio, D-Sanford, said there was a clear contrast between the court master’s report, which found that the hospital was deficient in 10 of 16 evaluation categories, and a written response to the report from DHHS officials. Mastraccio described those responses as “unsatisfactory and insufficient.”

Sen. Stan Gerzofsky, D-Brunswick, said the administration’s response to the request for their appearance was “appalling.”

“We’ve asked and begged and pleaded,” he said. “I think it’s about time that this committee do something to force them to come in here.”

The committee voted to send a letter asking Mayhew and Harper to attend one of its two January meetings. If the two decline within 10 days, they’ll be subpoenaed.

‘NOT A BACK-BURNER PROBLEM’

Mayhew, in a statement issued Thursday afternoon, said DHHS has made significant progress in improving treatment at Riverview and took the committee to task for using a subpoena threat to compel her to appear.

She pointed to the scheduling conflict that prevented her attendance and said the committee had given her only five days’ notice. Beyond that, she said, legislative committees are consuming her staff’s time with little benefit.

“This process has been frustrating, duplicative and wasteful. It is disrespectful to our hard-working staff and the people they serve, taking them away from their core responsibilities, consuming hundreds of hours of time and thus far, the committees have produced nothing of value in terms of results,” she said.

Rep. Deborah Sanderson, R-Chelsea, cast the only vote against the subpoena motion, saying Mayhew did not outright decline to appear. “It sounds to me that there’s a conflict and they just couldn’t make it,” Sanderson said. “If they had (refused), I could understand this discussion.”

Sen. Roger Katz, R-Augusta, co-chairman of the committee, said the administration’s refusal to send commissioners before legislative committees was not unique to the oversight panel. He noted that department officials have sometimes not appeared before the budget writing committee and other study commissions.

Katz, whose district includes Riverview, made reference to the report by Wathen, the court master who found that employees at the hospital had been forced to work overtime to compensate for staffing shortages.

“This is not a back-burner problem,” he said. “There are constituents of mine who work (at Riverview) who are in physical danger. Maybe it’s less than it was a year ago, but it’s still there. We can’t be sitting on our hands. It’s irresponsible.”

ONGOING DEFICIENCIES

Wathen submitted the report to the state on Oct. 26. His oversight stems from a 1990 consent decree designed to ensure that people treated for mental illness receive appropriate care. The recent report details ongoing deficiencies that have prevented Riverview from regaining its federal certification, thus jeopardizing $20 million in annual funding.

The Department of Health and Human Services has fought since 2013 to regain federal certification, but has been unsuccessful.

In August, Mayhew asserted that the only way to achieve certification is to build a separate facility that will hold violent patients who have been found not criminally responsible and those who are incompetent to stand trial. The separation of so-called forensic patients and civil patients, and the sharing of staff, was singled out as a concern in audits that led the federal Centers for Medicare and Medicaid Services to decertify Riverview.

The separation issue is not mentioned in Wathen’s report, but personnel problems, including insufficient staffing levels and the use of temporary and part-time practitioners to fill vacant psychiatry positions, led the report to conclude that treatment is lagging because patients cannot form trusting relationships with physicians.

The report also found that mental health workers were working long hours to compensate to help the hospital meet minimum staffing levels. Mental health workers logged over 1,083 hours overtime in August, including 312 hours of mandated overtime.

On Nov. 5, DHHS responded to the court master review, stating that the agency doesn’t “fully concur with the findings.” The agency also noted that deficiencies at the hospital required additional funding by the Legislature. While that funding has been approved, the on-site visit took place less than three months after the money became available. Finally, DHHS reiterates its belief that separating forensic patients from civil patients is necessary.

“The hospital welcomes reviews of our progress toward becoming a Center of Excellence in Psychiatric Care,” the agency wrote. “However, Riverview’s problems will never truly be solved, and the hospital will always generate negative media attention, until a second facility is established that may house violent, not criminally responsible and incompetent to stand trial patients.”

PUSH FOR SECOND FACILITY

The LePage administration floated the idea of another psychiatric facility toward the end of the legislative session.

Gov. Paul LePage submitted a bill in May that would have allocated money to create a 50-bed Behavioral Assessment Safety Evaluation unit. It was introduced in the last days of the legislative session and died when lawmakers balked at the lack of detail about who would manage the facility and a funding request of more than $1.5 million for one month, or $18.5 million a year.

The LePage administration is expected push the proposal when the Legislature reconvenes in January.

Sen. Bill Diamond, D-Windham, concurred with Katz that the Riverview problems need to be addressed immediately and that the LePage administration needs to be involved in the discussion.

“I worked very hard not to get outraged or offended and all these things that seem to be the prominent thing to do these days. But frankly I’m getting sick of this,” Diamond said. “The fact that we can’t get key people before this committee because they’re not allowed to? And it’s almost become routine … I think every one of us should be outraged and offended at that. We’re not just asking for some trivial person to stop by. We’re talking about two key people in a situation that we know may be life or death, and certainly injurious, to people working for the state.