500 E. San Antonio
El Paso, Texas 79901
Phone (915) 546-2071
Fax (915) 546-2012
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County Attorney

  • El Paso County Attorney
    DSHS PUBLIC HEARING 2-18-06
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  • TESTIMONY OF JOSÉ R. RODRÍGUEZ PRESENTED AT DSHS PUBLIC HEARING IN HARLINGEN, TEXAS ON REDESIGN OF THE STATEWIDE MENTAL HEALTH CRISIS SYSTEM
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  • Assistant Commissioner Joe Vesowate and Dr. Shon, esteemed members of the DSHS Workgroup, thank you for the opportunity to offer my comments on the crucial issue of redesigning the mental health crisis system in Texas. This hearing could not be timelier for El Paso, where our mental health crisis system is itself in severe crisis, and has been since September 1, 2005.

    As County Attorney of El Paso County, I have responsibility for representing the State of Texas in involuntary commitments and in actions for injunctive relief for violations of the Mental Health Code.

    Because I am committed to improving access to mental health services in a crisis, I convened the InterFacility Transfer Task Force almost ten years ago. Through the IFTF, and the Mental Health Unit I created in my office five years ago, I have made such access to mental health care a top priority of my office.

    The IFTF comprises representatives from El Paso Psychiatric Center (EPPC), El Paso MHMR (EPMHMR), El Paso Police (EPPD), Sheriff's Office (EPSO), the two county detention facilities, R. E. Thomason General Hospital's (Thomason) Emergency Department, Thomason's lawyer, the private hospitals, adult probation, the Veterans Administration, INS, the US Marshall's Service, and various social service agencies such as the homeless shelter.

    The IFTF brings these agencies together monthly to identify problems in the interagency transfers of anyone in mental health crisis. Through IFTF subcommittees, the community has created collaborative solutions to problems such as the over-utilization of the criminal justice system to warehouse people with mental impairments, the excessive misuse of law enforcement officers to provide free security at hospital emergency departments for people detained under the Mental Health Code who require emergency medical attention prior to addressing their mental health emergency, and the cooperation of private medical hospitals to share the burden on our county's hospital district of addressing the emergency medical needs of detainees.

    Through dedication of my office's resources, including a full-time attorney and legal secretary and a part-time attorney and paralegal, my Mental Health Unit, in concert with its partners in the community, had been successful in training peace officers to identify mental impairments and transport a person in crisis to a mental health facility rather than to jail.

    Our success was demonstrated by the reduction of the reported percentage of residents of El Paso County Detention Facility and Annex with severe mental illness from around 33 % in 2002 to 13.69 in January 2006. Our Probate Judge Max Higgs has repeatedly complimented peace officers for their testimony and their sensitive interactions with people in mental health crisis since my Mental Health Unit attorney has completed the training of each EPPD officer and sergeant, most Sheriff's deputies and detectives, and other local law enforcement agencies.

    Moreover, we have succeeded in expanding the pool of judges who will consider emergency detention applications from merely the probate judge and his designee to include all magistrates in El Paso, including municipal judges and justices of the peace. This makes ED warrants equally as accessible to officers as are arrest warrants.

    With these efforts and others, El Paso had made considerable progress in improving access to emergency mental health services and diversion from jail. This progress was reversed in September of 2005, when EPMHMR unilaterally initiated a policy of not accepting ED's from peace officers, with or without a warrant.

    See Attachment 1 (Alex's memo). In response to an outcry by deputies and police officers who had presented people in crisis to EPMHMR and been referred to the emergency department of Thomason Hospital, the EPMHMR Crisis and Intake Unit created an "overflow" policy that modified the initial blanket exclusion of all law enforcement emergency detentions.

    The amended policy permitted EPMHMR to accept an emergency detention from peace officers if the detainee has the ability to pay, since then placement in a private facility is possible. That means my community members whose treatment is paid from state general revenue dollars are turned away from EPMHMR and taken to a hospital emergency department, where frequently they are kept in hallways or chained to gurneys, sometimes for as much as four days. Some time later, EPMHMR sends a worker to the hospital to screen the proposed patient when informed to anticipate the opening of a bed at EPPC.

    Thomason emergency department doctors complain that many weekends they will be forced to work around as many as six detainees waiting for a bed at EPPC, some for as long as four days, when the detainees otherwise would not require emergency room health care but could be admitted directly to EPPC if there were a bed available.

    This crisis was triggered in September 2005 by the loss of funding for ten adult general revenue-funded beds at EPPC. Sixteen other general revenue-funded beds have been removed from availability due to their assignment to criminal defendants previously hospitalized in forensic facilities across the State. We are told that sometime soon there will be funding and staff for a separate forensic unit at EPPC, but even if that comes to pass, in the mean time our community members in crisis are not being served by EPMHMR citing a lack of beds at EPPC.

    The loss of access to almost half EPPC's general revenue-funded adult beds has had a direct, adverse impact on local law enforcement, corrections, private hospitals, and Thomason, deflecting limited resources from each of these agency's primary role in order to ameliorate the reduction or cessation of services through EPMHMR and EPPC.

    Not surprisingly, peace officers have reverted to prior common practice of coming up with some articulable criminal charge in order to justify removing an individual from the immediate crisis.

    Individuals an officer or judge has already assessed as presenting an immediate and serious risk of harm to self or to others, or as so severely deteriorated that they are incapable of living safely at liberty due to their inability to take care of their basic daily needs, are then taken to jail for their own protection as well as the safety of others or else dropped at the homeless shelter.

    This drastic response, documented to my office by one of the EPPD Commanders, was predictable, particularly when hospital emergency departments turned away people on emergency detention when there was no need for actual emergency medical care other than psychiatric screening and assessment.

    The current EPMHMR "overflow' policy obligates the Crisis and Intake Unit to inform police dispatch when open beds at EPPC permit EPMHMR to "accept" emergency detentions. EPMHMR has reported to an IFTF subcommittee that since September of 2005, they have been "open" to emergency detentions no more than a handful of days.

    Consequently, for almost half a year, El Paso residents without insurance or other means of payment have not had meaningful and timely access to crisis intervention, screening, and assessment.

    Since EPPC accepts commitments from across Texas, an open bed might not be still available by the time EPMHMR can get a waiting detainee from the hospital emergency department to EPPC for admission, according to reports to IFTF.

    Another impact seen by my office and the probate court is that the extreme pressure put on doctors to release patients creates a revolving door syndrome. Sometimes individuals will be picked up in crisis within days or even hours of being released.

    Likewise the Court has expressed concern about tran institutionalization, another type of revolving door, with stops at the psychiatric hospital, the jail, and the homeless shelter or the streets.

    I recognize that other areas in Texas are also facing reduced access to mental health services as a direct result of priorities set in Austin and Washington. The impact in El Paso is even greater, however, due to certain demographic realities. El Paso has a disproportionate number of its citizens who live in poverty and in substandard housing [23.8%], or who are members of an ethnic minority [78.2% Mexican American].

    According to the 2001 report of the Surgeon General, U.S Department of Health and Human Services.

    Mental Health: Culture, Race, Ethnicity: A Supplement to Mental Health: A Report of the Surgeon General (hereafter CRE) Executive Summary , we in El Paso face even higher rates of mental disorder, and a higher incidence of lack of treatment.



    This heavier burden results in greater levels of disability, missed work, and more limitations on daily living activities for Mexican Americans living in El Paso. Moreover, Mexican Americans are overrepresented among those people who are homeless, incarcerated, or institutionalized, all of which are high-need populations, have higher rates of mental illness, and face extra barriers to finding care. CRE, Executive Summary, Main Findings According to Dr. Mike Hogan, chair of the President's New Freedom Commission on Mental Health, "Most of the cost of mental illness is not the cost of providing care, but the cost of not providing care, or providing bad care."

    (quoted by Karen Patterson in her article "Overhaul Proposed for Mental Health" in the July 23, 2003 edition of the Dallas Morning News.) The DSHS should use the President's Commission report as a framework for analyzing the short and long term costs, in dollars as well as in human suffering, of the elimination of these services. See Achieving the Promise: Transforming Mental Health Care in America, Executive Summary, Goal 3.

    My fear is that allowing the current crisis to persist not only fails to further the goal of the U.S. Surgeon General, but even more importantly, current practice implicates questions of legality.

    As County Attorney charged with ensuring compliance with the Mental Heatlh Code, my staff and I have expressed repeatedly my extreme concern about the legality of the current situation in El Paso, raising those or similar concerns in comments presented to the Governor and to DSHS, and locally to the administrators of EPPC and EPMHMR, but to no avail.

    The Health & Safety Code and TAC require 24 hour access to emergency screening and rapid crisis stabilization services, as well as community based crisis residential services or hospitalization. Moreover, the Code precludes the denial of services to a person "because of inability to pay for services."

    Finally, the Code , as well as the Constitution and ADA as interpreted by the Supreme Court in the Olmstead case, require that mental health services be provided in the least restrictive effective and appropriate setting that protects adequately against any danger the patient poses to self or others. I believe that holding people in crisis for days in hospital emergency rooms waiting for screening, assessment, and hospitalization, or warehousing people with mental disorders in jails or homeless shelters, does not satisfy the clear requirements of Texas law.

    This untenable situation is, indeed, a crisis and steps must be taken by EPPC and EPMHMR to address this crisis in some way other than dumping their responsibilities on our local agencies. In the training my Mental Health Unit provides to law enforcement officers, medical professionals, mental health workers and social workers throughout the Rio Grande Valley, I am quoted as saying, "It is a shared community responsibility to care for and protect those who are most vulnerable in our society."

    I am here to say that El Paso is already devoting considerable resources to address the needs of its community, and I will continue to advocate for increased support, but the primary responsibility for providing these core services remains the duty of EPMHMR and EPPC.

    I encourage you to find a way to immediately ensure that these two agencies come into compliance with the law.

    DSHS must act swiftly to immediately open a forensic unit in EPPC. If staffing needs cannot be filled immediately from the El Paso population, then DSHS must move in the necessary doctors and nurses from across the state to address the needs of those 16 patients that were prematurely brought to EPPC from forensic units across the state.

    DSHS must also turn its attention to the inadequate facilities at the EPMHMR Crisis and Intake Unit at 1600 Montana Avenue in El Paso. If EPMHMR cannot accept emergency detentions there because they do not have the necessary facilities, then that lack must be remedied now, not later.

    If the set up at 1600 Montana will not permit provision of beds, holding rooms, and other necessities in order to accept emergency detentions, then DSHS should move to immediately require EPMHMR in finding other agencies who can contract to provide emergency mental health services or a 24 hour crisis unit. These suggestions are the minimum steps DSHS must take immediately.

    Several years ago, the Bishops of El Paso, Las Cruces, and Juárez issued a joint report on the status of farm workers in southern New Mexico and West Texas. In that report our spiritual leaders reminded us that a society is judged by the way it treats its most vulnerable members. By this standard, the people of Texas shall be judged harshly. It is not acceptable for the great State of Texas, one of the wealthiest states in our union, to be 48th in funding for mental health services in comparison with other states. You must take the lead in advocating with our administration for an immediate, emergency allocation of more money for crisis mental health services.