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Virginia risks ADA violations in not releasing mental patients

- The Washington Times - Tuesday, May 22, 2012

Virginia, already mired in a $2 billion settlement agreement with the U.S. Department of Justice, is again at risk of violating the Americans with Disabilities Act — this time for failing to release discharge-ready patients from state-run behavioral-health hospitals.

During a six-month period of review by the state's inspector general for behavioral health, an average of 165 people per month were clinically ready to be released from Virginia's eight adult mental-health hospitals, but could not be discharged — most often because of a lack of community-based housing.

During the review, about 13 percent of the system's beds were occupied for more than 30 days by patients who had been cleared to leave. The operating capacity of the state's eight facilities was 1,514 as of July 1.

Last year, the Justice Department declared New Hampshire in violation of the Americans with Disabilities Act, which says people with mental illnesses must be placed in the most-integrated setting appropriate to their needs — a section arising from the 1999 U.S. Supreme Court decision in Olmstead v. L.C.

If those conclusions are correct, Inspector General G. Douglas Bevelacqua wrote, then Virginia may be noncompliant with the ADA.

Brian Gottstein, a spokesman for state Attorney General Kenneth T. Cuccinelli II, said the office is not in a position to agree or disagree with the report because it does not conduct investigations into the state's mental-health system. He would not speculate about whether the Justice Department would sue the state over the matter.

But in addition to resolving the possible federal violations, it actually would behoove the state financially to move people from institutions to the community, the report says. It costs a state facility an average of $214,000 per year to house a patient, while "a conservative estimate for serving the people in the community is approximately $44,000 per year."

At least 70 qualified individuals currently are ready for release. While discharging them to community-based care would cost the state a little more than $3 million upfront, it would save taxpayers $12 million per year.

The report comes on the heels of another report outlining the state's issues with failing to temporarily detain patients in need of mental-health services — a practice informally known as "streeting." The most recent report, meanwhile, points out faults on the back end of the process — how a lack of community-based housing is keeping patients ready to be released in hospitals longer than they should be, taking up beds that otherwise could be occupied by people in need.

"It doesn't make any difference which door is closed — you close either of those doors, you ultimately impact the entire system," Mr. Bevelacqua said. "If the hospital's full, people can't get in the front door. And if the community's full, you can't get out the back door."

The problem is not one that cropped up overnight. The state has long struggled to secure proper confines for the mentally ill and intellectually disabled. The report comes as Virginia is navigating a $2 billion, 10-year settlement with the Justice Department over its system of treating the intellectually and developmentally disabled.

Under the terms of the settlement, Virginia has agreed to make plans to close four of its institutions that house the intellectually and developmentally disabled and to downsize another.

For years, advocates have pushed for more waiver slots to transfer people from the so-called "training centers" to less-costly community-based settings. The settlement also requires Virginia to provide thousands of additional intellectual-disability waiver slots, which allow the state to waive the typical requirement that people receiving Medicaid funding live in institutions, enabling them instead to receive services in the community.

At the same time, some people who have family members housed in the centers say it would be impractical or impossible to take care of them outside that setting.

U.S. District Judge John A. Gibney Jr. has scheduled a hearing in Richmond on June 8 for advocates on both sides to make their cases. He noted in a May 16 order that the agreement does not require the state to close any of its five training centers. It merely requires Gov. Bob McDonnell to submit a plan to the General Assembly to close four of them.

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