County Attorney
José R. Rodríguez

Monday - Friday
8:00am to 5:00pm

500 E. San Antonio
5th Floor, Suite 503
El Paso, Texas 79901
Phone (915) 546-2050
Fax (915) 546-2133


  • El Paso County Attorney Testimony presented at DSHS Public Hearing 5-24-06


    Representative Suzanna Gratia Hupp (Chair), Rep. Rob Eissler (vice chair), and esteemed members of the House Committee on Human Services, thank you for the opportunity to offer my comments on the crucial issue of the status of the mental health services system in Texas. My comments will specifically address effectiveness and efficiency in the provision of emergency mental health services, some issues regarding funding mechanisms for local mental health services, and access issues regarding the elderly and disabled consumers, or those who have substance abuse disorders.

    The Office of the County Attorney has the responsibility for representing the State of Texas in involuntary commitments and in actions for injunctive relief for violations of the Mental Health Code. With an aim to improve access to mental health services in a crisis, ten years ago I convened the County Attorney InterFacility Transfer Task Force, which brings agencies together monthly to identify problems in the interagency transfers of anyone in mental health crisis. IFTF has fostered collaborative solutions to mental health issues such as the over-utilization of the criminal justice system, the misuse of law enforcement officers to provide free security at hospitals for people receiving care while on emergency detention, and the need for private hospitals to share the burden on our county's hospital district of addressing the non-psychiatric medical needs of detainees.

    Effectiveness and Efficiency of Crisis Mental Health Services El Paso had made considerable progress in improving access to emergency mental health services and diversion from jail, but this progress was reversed in September of 2005, when the local mental health authority (EPMHMR) unilaterally initiated a policy of not accepting emergency detentions (ED's) from peace officers, with or without a warrant. Rather, the officer and mental health consumer would be diverted to R.E.Thomason General Hospital's emergency department. EPMHMR has stated that they do not have appropriate facilities to hold individuals waiting for beds at El Paso Psychiatric Center (EPPC), necessitating the diversion. EPMHMR Crisis Screening and Assessment unit is located at their administrative offices, a few miles from the public inpatient mental health facility, EPPC. Since 2003, EPMHMR has required peace officers to take all adults on emergency detention to their offices for screening and assessment, and EPPC has not been permitted to admit patients unless the individual was screened, assessed and approved for admission by EPMHMR workers.

    In October of 2005, EPMHMR created an "overflow" policy that modified the initial blanket exclusion of all emergency detentions begun in September. The amended policy permitted EPMHMR to accept detainees if the person had the ability to pay. That means community members whose treatment is paid from state general revenue dollars have been turned away from EPMHMR for seven months and taken to hospitals where, some time later, EPMHMR sends a worker to screen the proposed patient. This practice violates the Health & Safety Code's assurance that a person "may not be denied services by a state facility because of an inability to pay for the services," as well as the state's obligation to "support, maintain, and treat indigent and non-indigent patients at the expense of the state." It further violates the state policy set forth in the Health & Safety Code to "offer services to those most in need."

    The limited access to EPPC's general revenue-funded adult beds has had a direct, adverse impact on local law enforcement, corrections, and hospitals. More importantly, however, human beings are too frequently subjected to four point restraint, handcuffs, or chemical restraints to protect them and others from harm, waiting days in hospital emergency rooms for transfer to EPPC, in full view of anyone who enters the emergency room. Significantly, hospital emergency departments generally do not have staff who are trained to address the particular needs of people in mental health crisis, and typically do not have facilities for privacy, food, or basic hygiene needs. In short, hospital emergency departments are not "mental health facilities" to which consumers in a crisis are required to be sent under the Health & Safety Code.

    Such treatment violates state and federal requirements that mental health services be provided in the least restrictive appropriate setting, which is defined in the Health & Safety Code as the treatment setting that provides the patient with the greatest probability of improvement or cure; and is no more restrictive of the patient's physical or social liberties than is necessary to provide the patient with the most effective treatment and to protect adequately against any danger the patient poses to himself or others.

    Since September of 2005, police dispatch reports that EPMHMR has been "open" to emergency detentions no more than a handful of days. Consequently, people without means of payment have not had meaningful and timely access to crisis intervention, screening, and assessment, a clear failure on the part of the Department of State Health Services (DSHS) to fulfill its obligation to "ensure" that core services, including 24-hour emergency screening and rapid crisis stabilization services "are available in each service area."

    The critical situation in El Paso, and a frustrating inability to negotiate a viable alternative, forced the Office of the County Attorney to file lawsuit on April 27, 2006 against the local agencies and DSHS. The petition asks the court for injunctive relief, requiring that DSHS take immediate action to halt the practice of diverting patients to local emergency rooms; that EPMHMR provide appropriate and timely emergency screening, assessment and referrals; and that persons be admitted to EPPC without undue delay if a physician makes a written statement that the patient meets criteria. While both the incidence of diversion away from EPMHMR and the waiting time for admission to EPPC appear to have been reduced since the filing of this lawsuit, hospitals and law enforcement officers currently report continued problems with accessing care.

    On May 2, for example, an officer called the County Attorney Mental Health Unit for advice as he had presented an individual on emergency detention to a local emergency room only to be turned away, saying that EPMHMR and other local hospitals were also on "overflow" status. On May 10, an area hospital reported that a mental health consumer had been waiting for over 48 hours after medical clearance for admission to EPPC.

    Funding Issues

    Under the Texas Health & Safety Code, DSHS is responsible for ensuring the delivery of mental health services in the State of Texas, and for the allocation for and oversight of those services. Its "first consideration" in making rules that relate to provision of services "must be to satisfy individual treatment needs in the most appropriate setting." Nonetheless, in September of 2005, DSHS reduced EPPC funding allocation for inpatient care, and announced EPPC would be receiving 16 forensic patients committed elsewhere in Texas without hiring adequate staff to meet the added need.

    Immediately, EPMHMR announced its illegal policy of refusing to accept emergency detentions from peace officers. The decision to de-allocate beds and reduce funds allocated to local agencies violated the statutory obligation found at Health & Safety Code § 533.082(b) that, when determining operation costs of EPPC, DSHS must assume compliance with applicable standards of care and maintenance of current levels of services, and also must include sufficient funds to comply with requirements of litigation and applicable standards of care under the law.

    Moreover, DSHS has violated its obligation to take into account how costs at facilities are affected by population fluctuations. El Paso census counts do not recognize the influx of mental health consumers from other jurisdictions due to its proximity to major urban areas in the States of Chihuahua, México and New Mexico, yet the Health & Safety Code requires court-ordered mental health services be made available at EPPC to any patient who either resides or who "is found" in El Paso County. Likewise, EPMHMR is required to provide emergency mental health services to individuals in the county where they are "found to be in need of or request [those] services." Any funding allocation by DSHS that does not take into account the impact of non El Paso residents found within the county at the time of mental health crisis violates DHSH duties under the Health & Safety Code.

    Other Access Issues
    Elderly and disabled consumers

    Adult Protective Service (APS) workers and other social service agencies complain of chronic trouble accessing both emergency and long term mental health care for elderly or disabled mental health consumers. Complaints include that EPMHMR crisis screeners, who are not physicians, will not accept elderly people on emergency detention citing the possibility that the emergent mental health symptoms are related to aging, or stating that EPPC does not have the facilities to accommodate other health care needs.

    Most recently, this past weekend, EPMHMR crisis screeners refused to accept woman with apparent mental retardation and behavioral disorders, removed by APS from such neglectful circumstances that criminal charges were initiated, stating that their refusal was because she was "mentally retarded" and could neither be accepted by EPMHMR Crisis and Assessment nor admitted by EPPC. Nonetheless, mental health consumers are guaranteed under the Health & Safety Code that they may not be denied admission to a mental health facility because they also suffer senility or mental deficiency.

    The Office of the County Attorney Mental Health Unit has had to assign its paralegal to serve as a liaison with advocates for the elderly and disabled, in part because DHSH has not satisfied its obligation under the Health & Safety Code to ensure that "the medical needs of the most medically fragile persons the department serves are met."

    Another problem is the dearth of facilities in which aging or disabled mental health consumers can be placed, even if temporarily committed for mental health care, once they are stabilized and should be discharged. Many of these consumers have 24 hour medical care needs, yet their behavioral issues make them unwelcome in regular nursing home facilities. Elderly or disabled individuals with mental illness are frequently placed outside the area because El Paso does not have the type of facility that will accommodate people with high level of care needs.

    The lack of appropriate placement choices has resulted in Probate Court Judge Max Higgs recently informing EPMHMR that he was considering the issuance of an order enjoining the practice of placing mentally ill and elderly consumers in unlicensed foster care.

    EPMHMR has failed to satisfy its mandatory obligation to "provide continuing care for an elderly resident placed in the authority's service area." Neither has DHSH satisfied its obligation to evaluate at least annually each elderly resident in a mental health facility to determine that they are placed in the least restrictive treatment setting.

    Consumers with substance abuse treatment issues Under the Health & Safety Code, a person with mental illness may not be refused admission or commitment to a psychiatric facility because the person also suffers from alcoholism. Nonetheless, substance abuse treatment providers and family members of consumers report chronic problems obtaining services from EPMHMR or admission to EPPC. Workers or family repeatedly report that EPMHMR crisis workers will state that it does not provide services to, or that EPPC will not admit, people with chemical dependency who do not have a primary diagnosis of mental illness or who are not currently abstinent. Substance abuse treatment centers will be left with floridly psychotic, actively hallucinating individuals with histories of psychiatric care, unable to treat the substance problem because of the acute condition of the mental illness.

    DSHS is mandated "to ensure that . . . chemical dependency services are provided in the local service area," yet there is no public substance abuse facility in El Paso where a consumer can be involuntarily committed for rehabilitation. DHSH is obligated to conduct an annual analysis, by county, of the hospitalizations of people with substance abuse problems, and to indicate incidence of co-occurring disorders. The most recent survey found on the DSHS website is almost ten years old, and states that it was last updated in 2002. Moreover, DHSH and the Texas Council on Alcoholism and Drug Abuse are obligated to jointly estimate, on a biannual basis, the "number of facility beds that should be maintained for person with substance abuse problems who cannot be treated in the community." Where are those reports? Clearly, DSHS has failed its statutory obligations to individuals who need treatment for substance abuse disorders.


    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 demographic realities that mean we face higher rates of mental disorder, and a higher incidence of lack of treatment.

    Inarguably, the issues described today stem from an obvious lack of resources. El Paso is already devoting considerable resources to address the needs of its community, and we will continue to advocate for increased local support, but the primary responsibility for providing these core services remains the duty of DHSH, EPMHMR and EPPC.

    It is not acceptable for the great State of Texas to be 48th in funding for mental health services in comparison with other states. We urge you to take the lead in advocating for increased funding and resources at the first opportunity to bring these agencies into compliance with the law, and to use the next legislative session to obtain appropriate funding so that the needs and legal rights of our most vulnerable community members are addressed.

    Thank you.