And in ruling against PBH’s arguments that it is protected from court action by sovereign immunity, the Appeals judges added yet another interesting twist to the unique and dysfunctional chaos that is the state’s mental health system.

The Court of Appeals findings stem from a March 26, 2010, order from Davidson County District Court that PBH provide PRTF placement and other necessary services to meet the mental health needs of a minor child under DSS guardianship or to appear in court and explain why it was not meeting the order. DSS had been seeking services for the child since August 2009.

The District Court set an April 7, 2010, date for PBH to explain why it was denying services, ordering the appearance of PBH Medical Director Dr. Craig Hummel, then assistant medical director Dr. Kristin Baker, the current clinical director of PBH, or psychiatrists familiar with the case.

On April 5, PBH filed an objection that the court lacked jurisdiction since the issue of services was before the state’s Office of Adminstrative Hearings. It further noted that Hummel was out of the country, that Baker was no longer employed by PBH, that the agency had no clincical director, and that there were no treating psychiatrists familiar with the case on PBH staff.

And on April 7, they simply failed to appear.

The District Court then issued a Show Cause order, ordering then CEO Dan Couglin to appear at a June 2 hearing to show cause why the agency should not be held in contempt. At that hearing, Couglin reiterated previous reasons none of the requested parties attended the April 7 hearing, but during cross-examination testified that PBH had really done nothing to comply.

While Baker was no longer an employee, she did continue to work for the agency as a consultant. Asked if PBH could not have retained Baker’s services for the court appearance, Coughlin replied: “Theoretically, I could; whether she’d accept such an assignment or not, I don’t know.”

As for the agency’s efforts to comply with the Court’s order:

“Q: Okay. What other efforts did you make … in order to comply with the Court’s order?

Couglin: Other than?

Q. Other than just say, ‘Well, Dr. Hummel’s not in the country.’ What else did you do in order to comply with the Court’s order?

A. We didn’t do anything else.”

The court did give PBH another chance at compliance, saying it could purge itself of the contempt charge by producing Hummel or other psychiatrists to explain its original denial of service and paying a $10,000 fine, and on June 17 Hummel made the required appearance. On August 3, 2010, PBH appealed the contempt ruling and fine, that appeal being the one heard this past May by the Court of Appeals.

While the Court of Appeals upheld the lower court’s ruling of willful contempt, it did find the District Court had erred in ordering the $10,000 fine. In August, an Office of Administrative Hearings judge ruled in favor of DSS and its request for services.

While the Circuit Court’s opinion details PBH’s delays, no details are given as to what an unnecessary delay of two years from the original DSS request meant for the child’s mental healthcare.

In its appeal, PBH argued the trial court was in error in holding it in contempt since it contracts with the Division of Medical Assistance and that division’s sovereign immunity extended to it. And, it argued that since it operates under provisions of Medicaid Waivers as a managed care organization, federal rules and regulations supercede those of North Carolina’s mental health statutes, Chapter 122C.

While the arguments are interesting, the Court’s declaration that the agency is an independent contractor has the potential to further confuse the legal status of Local Management Entities in the convulted system unique to North Carolina. And that status could affect LMEs standing in contracts, their liability, and their need to comply with the Public Records Law and other statutes.

David Cornwell
Executive Director
North Carolina Mental Hope

From Patricia Porter, representing Rep. Fred Steen, R-Rowan

Nov. 29

Dear Mr. Cornwall,

Representative Steen has reviewed your message regarding concerns about your request to PBH for copies of select records and he has asked me to respond on his behalf.

We have investigated the situation thoroughly and found the following; PBH has, in fact, responded to the requirements of the law by inviting you to view the paper copies of the official records (including signed originals of the Board Minutes) and by inviting you to make copies then of any of the documents you would like to take with you. This, of course, would be at the cost they would incur to make such copies.

You have made a number of points about the ease of an alternate plan which would involve a staff member at PBH simply copying electronically maintained records to a disc and sending that information to you. We have discovered the following information which may serve to explain the difficulty with this alternate plan

• 1. PBH kept official records, including official signed Board Meeting Minutes in paper format until 2010
• 2. In 2010, PBH began integrating an electronic content management system into its operations by providing a central, regulation-compliant, searchable database for business records.
• 3. PBH completed this electronic records system change in June 2011. At that time, all official paper documents were shipped to storage.
• 4. When you requested to review and copy these paper documents, they were removed from storage to make them available to you
• 5. The offer by PBH to make these hard copies available to you is consistent with the Attorney General’s guidance on the law. On page 5, paragraph 13 of the Guide to Open Government and Public Records, it is stated ” agencies are not required to put a record into electronic form if that record is not already kept in that medium”.

With respect to the information listed above, we understand that in the interest of openness and willingness to assure that constituents remain fully informed, PBH has copied the records you requested at their expense and have sent these to you. Members of the General Assembly are pleased with this resolution and would encourage you to keep them informed if you have other issues of concern. Do not hesitate to contact me if I can be of additional assistance.

Pat Porter
Patricia Porter, PhD, Consultant
and Human Services
North Carolina General Assembly

North Caroilna Mental Hope’s response

Dec. 2

Dear Ms. Porter,

First, my last name is “Cornwell,” although “Cornwall” is certainly a common mistake. After reading the legal interpretations and explanations offered regarding PBH’s non-compliance with the state’s Public Records Law, however, it’s clear that mistakes, whether generated by your office or by PBH, are rampant. As you likely know, I received paper printouts of PBH board meetings last Friday, just just shy of four months after making the request.

As for PBH’s compliance with the law, I will again refer to General Statute Chapter 132 as well as the Attorney General’s Guide to Open Government. The apparent interpretation of the law by yourself and PBH is that the documents must first be inspected in person before being copies can be requested. In its guide, the Attorney General’s office clearly states, public agencies must: “Determine if the request is for copies of documents or to inspect documents. The public and news media are entitled to both.” Such requests are common practice and the intent of the law is obvious from reading the entire chapter.

The documented communication I’ve had with PBH shows that twice they insisted on some type of official request that the law makes no provisions for (except in the case of databases). “Some agencies might ask for written requests … but they cannot insist on it.” I informed PBH of this in a July 27 and again seven weeks later on Sept. 13 when I next heard from them, again seeking a written request.

What’s most concerning, however, is the conflicting information and illogical explanation being used to show PBH’s compliance and the cause for the delay.

First, I did not request Certified Copies, which would have been the only reason to have worried about the “official” copies kept offsite. Uncertified copies in electronic format would have been fine.

Apparently part of the delay was because of the offsite storage of “official signed Board Meeting Minutes” that had to be retrieved to make available. Certainly this would seem to violate the provision of the Public Records Law that “All public records should be kept in the buildings in which they are ordinarily used” and be reasonably available for inspection. Regardless, the delay attributed to sending “official” copies is invalid since I received unsigned, and therefore unofficial, copies anyway.

You note that by June 2011, business records had been converted to PBH’s electronic records system. My request was made at the end of July, at a time all should have been converted. In a September 16 email, however, the PBH Communications Manager emailed that “some of the older files were stored offsite” and further that “PBH has no plans to scan copies of files.” So apparently she was unaware that not just some, but all were stored offsite. Or she was unaware that all had been converted to electronic format.

As you mention, the law does not require agencies to put a record into electronic form if they are not already kept in that medium. So, were all PBH business documents except the Board Minutes integrated into the “central regulation-compliant, searchable database for business records?” And since I got unsigned and apparently unofficial minutes …. well, perhaps you can understand my confusion.

As I mentioned, I did receive the minutes about a week ago in as user unfriendly format as likely possible, paper printouts with one meeting following the other, with the beginnings of some meetings printed on the back of other meetings, depending on how they fall. Certainly, that adds a bit of confusion, but by now I recognize that as just a part of PBH’s standard operating procedures. And paper printouts aren’t readily searchable nor easy to share with others who might be interested. Knowing that electronic files of these minutes that would be far more useful exist, however, I’ll apparently need to reinitiate my original request and wait another four months.

It is my sincere hope that members of the General Assembly are not pleased with the resolution of this matter. Certainly they are not so gullible as to think an LME that prides itself on its IT prowess and is the model agency for others to emulate would lack electronic copies of its minutes and have such difficulty providing them. Surely the tortuously illogical scenario laid out here will be seen as the outlandish excuses they are from a public agency doing its best to keep public business out of the public eye.

David Cornwell

Copies of that Nov. 3 email and the response this past Satuday after becoming aware of it are included below. Key points/counterpoints of Shipman’s response to an inquiry from Rep. Pat Hurley’s office:

• What Shipman says: PBH makes all records subject to public records law available upon request in accordance with state law.
• What the law says: Shipman includes the opening paragraph of Chapter 132 of the General Statutes, the Public Records Law but incredibly chooses to ignore the second part of the very sentence she offers to support her contention that PBH is complying with the law, the part that requires copies of records to be provided upon request. While the rest of Chapter 132 spells out a public entity’s obligations in meeting its provisions, those obligations are clearly and simply stated on the first page of the Attorney General’s “Guide to Open Government and Public Records.”

• What Shipman says: “We have had a number of communications with Mr. Cornwell” …. and he has “repeatedly declined” invitations to come view the records.
• What the record shows: Three email responses and one phone call from PBH communications director Cyndy Brooks in 121 days (all communication from PBH compiled here; it is a short read).
• First two emails: Disregarding provisions of Chapter 132 that say no formal document or procedure can be required for making a public records request, the first responses to our request attempt to do just that. In each instance (seven weeks apart), I refer PBH to the statutes and Attorney General’s guide.
• A September 16 email seeks to make arrangements for me to come view the Board minutes, again ignoring the law’s requirements that copies be provided upon request and the spirit of the law to make public documents readily accessible to all taxpayers. Requirements outlined in the Attorney General’s guide continue to be ignored.
• Brooks calls to follow up on making arrangements for viewing the minutes. I again point out PBH’s legal obligation to require copies upon request, but ask how many of the older files are stored off-site, in what format, and why they have to be scanned rather than copied. Conversation ends with Brooks saying she will get back to me with answers to those questions.

• What Shipman says: “He demands that the materials be retrieved, converted to electronic format, and sent to him at no cost.”
• What the record shows: I refer again to the record of communications with PBH, in which no such demands have been made. It would certainly be my expectation that most, if not all, of the requested records would already be electronic files, since the day of typewriters is long past. It would also be my expectation that costs associated with copying those files would be negligible since four other LMEs responded to our request at no charge and since complying with the law should be as easy as copying text files to a CD or sending as email attachments.

Adlous Huxley observed that facts don’t cease to exist because they are ignored. But PBH administrators are apparently hoping that the Public Records Law as it applies to them will cease to exist if they can ignore it long enough for revisions to be made to Chapter 122C of the General Statutes. The best the public can hope is that if PBH is indeed playing them for fools, legislators won’t let them.

David Cornwell
Executive Director
North Carolina Mental Hope

PBH on records request

Note: The following is a Nov. 3 email from PBH CEO Pam Shipman to legislative assistant Susan Whitehead in the office of Rep. Pat Hurley’s office and distributed to Hurley and other members of the Health and Human Services Joint Legislative Oversight Committee.
PBH makes all records subject to the public records law available upon request in accordance with the NC requirements for disclosure of public records cited below:

§ 132‑6. Inspection and examination of records.

(a) Every custodian of public records shall permit any record in the custodian’s custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.

I assume the complaint from … is regarding the requests of David Cornwell of Mental Health Hope for copies of our Board minutes back to 2003. To my knowledge we have no requests from … to access our Board minutes.

We have had a number of communications with Mr. Cornwell in which we have offered to retrieve the Board minutes from off-site storage, bring them to PBH, make them available for his inspection, and allow him to have copies of any of the materials at our cost. However, Mr. Cornwell has repeatedly declined, Instead, he demands that the materials be retrieved, converted to electronic format, and sent to him at no cost.

There is no requirement that Board minutes be posted on the website of any LME. However, Mr. Cornwell’s request was reviewed by the PBH Board of Directors at our August 2011 meeting, and the Board voted to post approved minutes to our website on a go forward basis.

Thank you very much for checking with us. Please let me know if you have any further questions. Pam

North Carolina Mental Hope’s response

Note: The following is my Nov. 19 response after becoming aware of the Nov. 3 email from PBH CEO Pam Shipman.

Dear Legislators,

I will leave it for each of you to determine if it is Ms. Shipman’s intent is to play you for fools or not. She seems to be oblivious to the second part of the legal reference she provides requiring public entities to “as promptly as possible, furnish copies” of requested documents, as well as to the rest of Chapter 132 of the General Statutes, the Public Records Law.

On the first page of its “Guide to Open Government and Public Records,” the state Attorney General’s office clearly states how to make a public records request and the required response of agencies to such a request. The requirement for requesting records is simply to ask. The required response is to determine whether the request is for copies or to inspect records. The agency is then to determine a cost of making copies, if any, and then notify the requesting party as to that cost and a timetable for providing the copies.

The sum total of the communication with PBH is documented here. It’s a short read that speaks volumes to the validity of Mrs. Shipman’s response. As you’ll note, I have consistently informed them of the requirements of the law. There has been no offer to make or provide copies at PBH expense as Ms. Shipman states. There has been no insistence that the files be converted to electronic format nor that they be provided at no cost.

State statute is very specific about what allowable costs are and the pertinent paragraph of the General Statutes is provided below. A public entity is not allowed to charge for costs it would have incurred anyway. Therefore, a reasonable expectation is that the cost of providing electronic records would be negligible, since it should at most require a staff person perhaps 10 minutes to copy files to a CD. The only cost I have received from PBH is a price of 75 cents per page to scan older records that are stored off-site. They have not informed me the number of pages stored off-site or why they need to be scanned as opposed to simply being copied. I will note that a similar request for records was made from four other LMEs, all of which have provided those documents at no charge.

In my commentaries on the subject, I have questioned why records from 2003 or since would be paper only and stored off-site, reminding readers that 2003 was the “Dark Ages of Computing when Windows XP ruled the land, the iPod was just in its third generation, and Smartphones just weren’t as smart as they are today.” Certainly it should be a concern if the legislatively mandated model for the state’s MCO/LMEs should be so technologically backward that it could not easily retrieve these records.

Finally, I refer you to Ms. Shipman’s statement that “PBH makes all records subject to the public records law available upon request in accordance with the NC requirements.” And again, I think it’s fair to ask if her intent is to play you for fools. Apparently, I can see the minutes on PBH’s terms rather than the law’s. Was the intent of those who wrote the legislation that I take a day off from work, rent a car since mine is no longer trustworthy for longer trips, drive 2.5 hours and wait for PBH to produce and copy board minutes for an unknown cost (or free as Ms. Shipman now indicates) and then drive 2.5 hours home? Or was the legislation’s intent to make records of public agencies easily and readily available to the taxpayers who footed the bill for those records.

As mentioned, I have written on PBH’s refusal to provide copies of its minutes in violation of state law a number of times. A box with links to those commentaries is in the top right of our website’s home page at ncmentalhope.org. In those comments, I conjecture on possible reasons for PBH’s non-compliance and question the integrity of an organization that so brazenly flouts the law as well. To me, it would seem common sense for you to question their integrity, too.

David Cornwell
Executive Director
North Carolina Mental Hope

With the 3-month anniversary of North Carolina Mental Hope’s request for board minutes of Piedmont Behavioral Healthcare just passed, it seems an appropriate time to ask what the silence of the LMEs administrators, of legislators and of advocates has to say.

The silence of PBH: It doesn’t take an advanced degree in common sense to have sense enough to ask what they’re hiding. And if not hiding anything, what does it say about the organization’s integrity that the prevailing mindset is apparently one of fear or uncertainty that something adverse to its interests might be found? What does it say about an agency’s integrity that it chooses to hold itself above the law? To me, it screams they have none. And yet, it is the chosen model for others to emulate in building the bedrock of our state’s system for the delivery of mental health, developmental disability and substance abuse services.

The silence of legislators: Allow me to be diplomatic and say the silence must just say they haven’t heard. How else to explain their not questioning an entity brazenly ignoring the laws of the land, the laws that are so basic to the democracy they represent. And certainly legislators wouldn’t want to appear supportive of anything that keeps taxpayers from knowing how their dollars are spent. And so, I’m setting out to make sure they know, making sure their offices are contacted by phone and mail with additional efforts by email, fax, carrier pigeon or whatever other means might be available. Click here if you would like to help make sure they get the message.

The silence of advocates: Again, and with diplomacy, let me say perhaps they do not know. Or perhaps they are speaking and I’m unaware. Regardless, certainly the PBH Consumer and Family Advisory Council can’t think that PBH’s disregard of the state’s public record laws is in the best interests of the consumer and family interests they represent, much less those of consumers and families across the state. Certainly other advocacy organizations are about to chime in with their support by legislators to voice their concerns.

Then again, silence can be a powerful status quo.

David Cornwell
Executive Director
North Carolina Mental Hope

With New River Behavioral Healthcare losses of at least $6.5 million while under the oversight of the Smokey Mountain Center LME, it’s only logical to make LMEs more powerful with less oversight of themselves.

With Piedmont Behavioral Healthcare flaunting the state’s Public Records Law now for almost three months in ignoring a request for copies of its board minutes and requiring nondisclosure agreements, it’s only logical to make LMEs more powerful, including exempting them from provisions of the Public Records Law.

With the Super LME/MCOs and DHHS ignoring warnings of serious consequences from a lack of IT standardization and embracing a variety of information management systems, it’s only logical to give them more power to do what they want.

With the publicly funded Piedmont Behavioral Healthcare licensing software it developed to other LMEs and essentially giving taxpayers the opportunity to pay for its use time and time again, it’s only logical to give them complete control over intellectual property.  What do taxpayers know about software anyway?

With PBH apparently not only unable to control the intellectual propertyof software it claims as its own but fostering private sector development of that software through questionable business practices, it’s only logical to give them more authority to do the same.

With the creation of CABHAs and mountains of paperwork to do business with LMEs essentially killing off small providers, competition and choice, it’s only logical to make sure LMEs have more complete control.

With the power to make or break providers (see Elements of Success in a 501c-3 Spinoff under NC Reform), why not go a step further than the complete restructuring of boards and empower the executive committees of  Super LME/MCOs boards as hinted at by DHHS Deputy Secretary Mike Watson so that just a few individuals can be kingmakers?

With DHHS and legislators ignoring findings that the department was far from capable of managing oversight of a statewide waiver system and subsequent events bearing that out, it’s only logical to empower LME/MCOs to better oversee themselves.

With thousands of our state’s citizens warehoused in adult care homes over the past decade, with deaths in those homes and state hospitals, with the shame and disgrace every North Carolinian should feel over the consequences of our state’s neglect for the care and dignity of individuals with mental health diagnoses, it’s only logical that bureaucrats and lawmakers keep building on a failed foundation rather than even contemplate the blueprint for a new one.

With the Department of Justice findings that our state has failed miserably in providing quality care in community settings, it’s only logical that legislator’s stay the course that has led us here.

It’s only logical, isn’t it? But then, what has logic ever had to do with it?

David Cornwell

Executive Director

North Carolina Mental Hope

Asked by Sen. Tommy Tucker, R, District 35, if there were a fair number of people on the “task force” reviewing the Department’s strategic plan for waiver implementation, Melcher replied:

“I wish I knew of a perfect system to get everybody’s input. I don’t  know of anyone who’s discovered that.” DHHS needs to develop multiple ways of getting input, she said, adding there is indeed a mechanism in place for receiving input moving forward as waivers are implemented and that conversations are ongoing on the best folks to serve and the best way to get input.

“It’s certainly our intent to try and get a broad range of input and opinion,” Melcher said, then described the challenge of getting input from individual service recipients through customer surveys and town hall meetings. And while that particular input has nothing to do with the strategic plan, it makes it sound like much is being done.

So, translating for those who don’t speak Raleighese, Melcher’s answer to Senator Tucker’s question was “No.” (Audio of her response here.)

The task force to which Tucker referred is the External Advisory Team. Melcher singled the group out as one of the stakeholder groups to which DHHS turned for input into “Partnering for Success: Strategic Plan for Statewide Implementation of the 1915(b)/(c) Medicaid Waiver.”

Since the External Advisory Team clearly falls under provisions of the state’s Open Meetings Law that require any group acting in a legislative, policy-making, or advisory function to give public notice of its meetings and to maintain minutes, you’d expect to find such notices and minutes on the DHHS website. But a search for the phrase External Advisory Team from July 1 to present yields just four results, one referring to the team’s role in the rulemaking process, one from State CFAC minutes from 2006 and two links to the draft strategic plan itself, saying that the External Advisory Team provided input. Talk about circuitous.

A Google search for the same term and time period nets 39 results with just four from North Carolina: two referring to the team’s role in the rule making process and two from the North Carolina Substance Abuse Providers Association, both brief and neither germane to the specific review of the strategic plan.

So, revising Tom Cruise’ famous line from the movie Jerry McGuire, I say “Show me the minutes.” Heck, just show me anything.

There’s no doubt the group does exist and did meet  and it may well have minutes that have yet to make it to the web. It may also be that there are none. From a brief review of the 35-plus participants, however, it’s hard to spot any mental health consumers. More in subsequent issues.

Also apparently called the Waiver Leadership Team, a search on the DHHS website for that phrase for the same period yields three results, although all three reference Communication Bulletin 106 from 2009.  A Google search for the same term and time period returns six results, three of them concerning the Wake County body by the same name, two again referring to 2009, and the final the minutes of the July 14 State CFAC, in which the need for input into the waiver implementation strategic plan was actually discussed.

According to Melcher in her comments to the LOC,  DHHS took the lead in developing the strategic plan because they “wanted people to have the opportunity to provide input at the very beginning.” While that makes DHHS sound quite noble, it’s really just another way of saying the General Assembly via House Bill 916 told them to.

David Cornwell
Executive Director
North Carolina Mental Hope

In a statement dated Wednesday outlining the chronology of events that led to the agency’s closing, Andrews takes exception to the use of the word “fraud” by the Division of Medical Assistance to describe New River’s difficulties.

“Fraud is an alarming word on its own and is compounded when it is accompanied by financial concerns. An accusation of fraud can result from something as simple as a document that hasn’t yet been uploaded to a patient’s file or from much more complex and even illegal actions. New River has done nothing illegal.”

I suspect the DMA letter informing New River of the suspension of Medicaid services uses the word out of necessity for legal and technical reasons, but as Andrews points out, it’s a word heavily imbued with negative connotations. At its simplest, fraud is a false representation of a matter of fact intended to deceive. It doesn’t have to necessarily be for gain, although it almost always is. It’s a powerful word that brands an individual or entity as profiteers, swindlers and cheats. Obviously, the jury is still out on whether there was any fraud at New River.

Whether there’s any particular significance or not, an interesting side note to New River’s demise is that payments were suspended pursuant to the provisions of , “An Act Relating To Requirements Of Medicaid And Health Choice Providers,” which just became law July 25 after Governor Perdue’s veto of it was overridden.

In her letter, Andrews says that on August 25 while closing out the financial year, New River’s CFO found a shortfall of approximately $1 million, less than two weeks after the same CFO had estimated a shortfall of just $200,000. The agency’s Executive Management Team then requested a leading CPA to assist in a review of accounts and after a cursory review, the shortfall had grown to an estimated $3 million. Based on that preliminary loss estimate, New River was prepared to implement a new business plan, Andrews says, but by then other factors were at play that prevented it.

The letter outlines steps New River has taken over the past several years in working with the external audit firm of Lowdermilk, Church and Co, in achieving accurate financial results. A critical part of that, Andrews says, was forensic accounting and a review of every number for possible malfeasance or misappropriation of funds. To date, she says, none have been found.

But, as Andrews points out herself, there remains questions on how the present circumstances could have occurred, given the internal oversight and regular financial audits.<

“It is both painful and frustrating that we now face an en to our organization … . The disappointment is compounded by the suspicions and confusion raised by allegations of fraud. The staff of New River knows that this is not an accurate reflection of our organization or its values.

David Cornwell
Executive Director
North Carolina Mental Hope

In presenting a broad overview of the issues DHHS says have arisen as LMEs become the new Super LME/MCOs (managed care organizations), Watson said: “The overall plan would be to come back in a session in November with a very limited request granting the Secretary the opportunity to perhaps waive some provisions of 122C and then to have the opportunity in the short session to have a more robust discussion about what changes might need to be made.”

And while Watson told the committee the same thing a bit later as well, that’s not necessarily a reason to believe proposals dramatically changing the nature and power of LMEs won’t pop up during next month’s special session anyway, introduced by a legislator at special interests request. During his presentation, Watson noted areas for change might include: board size and composition, the role of the executive committee, pay, fund balance restrictions, the ability to own property and borrow money.

DHHS has laid claim to those proposals, saying they are the result of input solicited from a broad range of groups and stakeholders.

A near-sighted legislature

A couple of thoughts after listening to yesterday’s presentations to the LOC: First is the tendency for me to forget that the ultimate blame for our state’s mental health woes lies with our elected officials, both past and present.

While DHHS staff can make matters better or worse, it’s still our legislators who sign off on it all. And listening to Secretary Cansler describe the complexities of dealing with a bevy of unknowns, including a $100 million hole in Medicaid, it’s hard to forget that it’s the General Assembly’s budget cuts that have made it all so difficult.

Secondly, between changes OK’d by House Bill 916 and proposed changes in Chapter 122c, it’s not just a wrecking ball that will be slamming into our state’s system, it’s an army of bulldozers and backhoes and mammoth dump trucks lining up to roll over it. And the same legislators that can’t see further than next year’s budget also don’t care if there’s a blueprint for the final product, only that there is a sketch of what the next phase will look like.

Anybody who doesn’t believe that only has to look at Central Regional and the new Cherry and Broughton hospitals as proof. While recent Department of Justice findings underscore the human and legal needs for de-institutionalization, the bulldozers are busy adding institutional capacity at Broughton just as they already have at Cherry and Central.

David Cornwell

Executive Director

North Carolina Mental Hope

With the announced closing of New River Behavioral Health Care, the mayhem that is the only constant in the state’s mental health system has claimed yet another victim.

According to news reports, the former LME that morphed into a provider agency after its July 2007 merger with Smoky Mountain Center is almost $3 million in debt and being audited, with commissioners from the counties served holding emergency meetings to see how best to continue services to the agency’s 13,000 clients and hopefully retain jobs for its 300 employees. And, of course, they’re trying to sort out who’s responsible for the agency’s bills as well.

Beginning in the ’60s as a community mental health center, the reasons for New River Behavioral Health’s demise are likely complex and varied. But before the agency becomes just another footnote to more than a decade of chaos, it’s worth considering how the continued consolidation of providers and LMEs may have affected New River’s financial health. At the very least, it’s worth considering the power that LMEs have to make or break an agency. And on the surface at least, the decision by Smoky Mountain Center to award a contract for services in its Central Region to RHA Health Services could be seen as the final nail in NRBH’s coffin.

Whether friction remained from the 2007 merger or not, by June 2010, New River’s discontent had made it into the minutes of the Smoky Mountain Center’s board. Those minutes refer to rumors that New River’s board was looking to meet with county commissioners of SMC’s Northern Region to discuss jumping to another LME, likely Crossroads Behavioral Healthcare. Those minutes, which include a fairly lengthy discussion of the issues involved, can be read here.

A year later, things had not improved, with minutes from this past May’s Smoky Mountain Center’s board meeting, noting a letter from the NRBH board with the following concerns:

• Not receiving the Central Region RFP
• Overmonitoring of NRBH service delivery
• Not being able to reconcile the claims processing procedures
• Professional Relationships – the feeling that NRBH staff was not valued

On September 9, New River announced on its website that it would be discontinuing its services to Smoky Mountain’s Central Region — Alexander, Caldwell and McDowell Counties — that had been awarded to RHA. On September 22, the Department of Health & Human Services through its Division of Medical Assistance announced Medicaid payments to New River had been suspended due to allegations made against New River. And a week later, Smoky Mountain Center CEO Brian Ingraham announced New River would be closing.

Perhaps it’s just a matter of New River simply not performing well, but the rapidity with which the dominoes fell last month would seem to indicate there’s more to it than that. And while an official cause of death may never be forthcoming, the end result is that the state will soon have one less provider, with another provider agency ready to step in and strengthen it’s already strong statewide prescence.

David Cornwell

Executive Director

North Carolina Mental Hope

• Remove requirements that county commissioners serve on LME boards as well as requirements for geographical representation
• Remove counties from virtually any control over LMEs
• Exempt LMEs from the Local Government Finance Act and remove fund balance restrictions
• Allow LMEs to purchase, hold title, improve and finance real estate
• Grant exemptions to the state’s Public Records Law that keeps LMEs from controlling the use of intellectual property
• Allow LMEs to “take advantage of any emerging opportunities” in introducing new product lines and services
• Exempt LME staff from the State Personnel Act and remove salary limitations
• Have Medicaid waiver appeals heard by a DMA hearing officer rather than the Office of Administrative Hearing

Essentially, the proposal has the new waiver entities, already being rebranded as MCO/LMEs (Managed Care Organizations) to enjoy the best of being both a private and a public entity. The continued push to privatize by PBH is light years beyond outrageous, especially when the state’s system has had to face change after change after change.

If the intent is to kill off the state system as we know it, and I believe it is, then it will likely succeed. Proponents of change will just have to use the right buzzwords and the GOP-dominated legislature that approved waiver expansion and other changes a few months ago, will do so again with this legislation when it convenes in special session next month.

During last week’s Crucial Conversations sponsored by NC Policy Watch, Disability Rights North Carolina Executive Director Vicki Smith spoke to issues facing mental health services in light of recent Department of Justice findings, noting the state is always in crisis mode and has never had nor taken the opportunity to “sit down and develop a long term plan on how it provides services, because the very structure of how policy is made is short term.”

The Department of Justice findings represent that opportunity, she said, the opportunity to “get out of the cycle of responding to the immediate crisis and short term budget restrictions” and to shift our focus “away from responding to … the crisis du jour … and protecting the status quo” to building an effective system of care that gives individuals with disabilities real choices about where they live and services that promote skills and independence.”

Trouble is, it’s hard as hell to think, much less create a vision, in a construction site, especially when no one has the slightest idea of what is being built. Common sense would dictate stepping back to develop a set of blueprints before returning to work. To do otherwise is not only stupid, but inhumane.

David Cornwell
Executive Director
North Carolina Mental Hope