City Council Hearing
Update on the Implementation
of the Brad H. Settlement
February 17, 2005
Testimony of Jennifer J. Parish, Director of Criminal Justice Advocacy,
Urban Justice Center / Mental Health Project
(646) 602-5644
Good afternoon. I want to thank Margarita Lopez and all of the members of this committee for taking your valuable time to focus on this important issue, and for giving me the opportunity to testify before you today.
My name is Jennifer Parish, and I am Director of Criminal Justice Advocacy at the Urban Justice Center’s Mental Health Project. I represent the plaintiffs in Brad H. v. City of New York along with my colleague, Bill Lienhard; John Gresham of New York Lawyers for the Public Interest; and Christopher Tahbaz and Emily Slater, as well as many other dedicated associates, of the law firm of Debevoise & Plimpton (collectively, “Class Counsel”).
In August 1999, we filed Brad H. v. City of New York, a class action lawsuit challenging the City’s failure to provide discharge planning for people with mental illness in the New York City jail system. Prior to the lawsuit, people with serious mental illnesses who received psychiatric treatment in New York City jails were, upon their release date, dropped off at Queens Plaza between 2 and 6 a.m. with $1.50 in cash and a $3 Metrocard.
On January 8, 2003, the parties settled the case with an agreement that the City would provide class members with discharge planning. People who have received mental health treatment or have taken medication for a mental health condition while in jail are eligible for discharge planning services. Adequate discharge planning begins with an individualized assessment of the person’s specific needs.
The settlement entitles class members to a discharge summary that explains the individual’s mental health diagnosis, what services are needed, and the plan that has been set up to make sure that the person can get those services. Class members are entitled to have family members, social workers, or case managers involved in the discharge planning process. The following services and resources should be provided:
• appointments or referrals to appropriate community mental health programs;
• a 7-day supply of all psychiatric medications taken in jail and a 21-day prescription for the same medication; and
• assistance obtaining Medicaid benefits. For some, that assistance includes completing and submitting a Medicaid application; for others, it means having Medicaid benefits reactivated.
• For homeless class members, discharge planning includes assistance applying for supportive housing and, where supportive housing is unavailable, obtaining a bed in a program shelter.
• Class members who are seriously and persistently mentally ill are also entitled to help applying for Public Assistance and to receive transportation from the jail to their home or shelter.
I am disappointed to report to you that now more than two years after the agreement was signed, the City is failing to comply with key components of the settlement. The most egregious failure is not providing discharge planning to class members who are hospitalized in the Department of Correction prison wards. Because these class members are too ill to be treated in the various Segregated Mental Health Units at Rikers Island, they are moved to the secure prison wards at Bellevue or Elmhurst hospital. While they are in these units, all discharge planning activity comes to a halt. The City does not deny that it is not providing these people with discharge planning. In fact, they have taken the position that these extremely ill individuals are not part of the Brad H. class and have gone to Court to have them excluded from the provisions of the settlement.
We know the City is falling down on the job of providing discharge planning services not only through our own experience monitoring the settlement, which Raymond Ortiz will describe to you, but also through the Court-appointed Compliance Monitors’ Reports. The Brad H. settlement established performance indicators to measure the City’s compliance with each of the steps in the discharge planning process agreed to in the settlement. In their sixth report, released on February 7, 2005, the Monitors reported the City’s data on its implementation of the discharge planning process and provision of discharge planning services. This data, the validity of which is questioned by the Monitors and Class Counsel, reveals that the City is not in compliance with the settlement in many measures, most glaringly, in actually providing services to people.
For instance, during September through November 2004, the most recent period for which the City supplied data, the City provided referrals for follow up mental health care for only 58% of the eligible class members, falling far short of the Monitors’ expectation of 85%. They completed and submitted Public Assistance applications for only 43.2% of the people who needed them. Also, they completed only 23.8% of the Medicaid prescreens which determine who is eligible for both Medicaid applications and reactivation.
The City reported dramatic improvement in some measures. However, when you look at the numbers themselves, rather than just the percentages, that improvement is called into question. For instance, from June through August 2004, the Defendants provided medication and prescriptions to 53% of the class members who were taking medication. In September to November, that number jumped to 85.6%. However, in the earlier period, they provided medication to 565 people out of 1066 who needed it. From September to November, they provided medication and prescriptions to only 309 people. The percentage increased because the number of people who they claim were entitled to the service dropped to 361. They were actually serving fewer people during the period for which they report greater compliance.
The same can be said of their success at reactivating class members’ Medicaid. From June to August, they reactivated Medicaid for 259 people or 48.1% of those eligible for reactivation. From September to November, they claim an increase to 77%; however, they reactivated only 154 people’s Medicaid – 105 fewer people than in the previous time period.
Likewise, their numbers more than doubled for scheduling appointments for follow up mental health care – going from 40.9% to 84.1%. But, in actuality, they served only 27 more people. You can see that they provided appointments for 132 people during the earlier period and for 159 people during the latter period.
In addition, the City is not serving homeless class members in the way that it should. The settlement calls for Defendants to assist with supportive housing applications and a referral to a DHS shelter that provides mental health treatment for those who cannot get a supportive housing placement. While the City’s numbers suggest that they are complying to some extent with their obligation to assist class members in applying for supportive housing, one really must look at the numbers behind those percentages. The City is undercounting the number of homeless class members as evidenced by their assertion that 5.5% of the class members were homeless upon release. A 1995 study in New York City found that 43% of defendants with mental disorders were homeless at the time of arrest.[1] In our own interviews of class members, 53% of the class members who had difficulties with discharge planning reported to be homeless.
Another area where a close inspection of the City’s data is necessary is Medicaid. For each class member who is incarcerated at the time that his or her discharge plan is completed, the Defendants must begin the determination of whether the person is eligible for reactivation of Medicaid benefits. This process involves submitting a prescreen application to the Human Resources Administration (HRA). For September to November, the Defendants initiated 1294 prescreens but timely completed only 146 of them and completed at any point, timely or not, only 377. This failure affects both the number of people who get their Medicaid reactivated and the number for whom a Medicaid application is completed. During this period, they submitted only 74 Medicaid applications. Were all the prescreens that were submitted completed, then one can conclude that 310 people would have been entitled to the service, more than three times the number that the Defendants claim needed Medicaid applications. Likewise, the Defendants reactivated the Medicaid benefits for 154 people, but if they had completed all the prescreens submitted, presumably 688 people would have been entitled to have their Medicaid reactivated. So, you see their compliance rate of 23.8% on Medicaid prescreens hinders all aspects of providing Medicaid to class members.
Under the settlement the City is required to explore the feasibility of assisting class members to apply for SSI/SSD benefits. There is a straightforward way of doing that. Barbara Samuels of Legal Services for New York City has submitted testimony regarding how the City could go about obtaining SSI/SSD benefits for class members.
Also, the City is required to explore the feasibility of establishing a system that would permit class members to submit Food Stamp applications. Bill Lienhard, Project Director of Urban Justice Center’s Mental Health Project, has submitted written testimony detailing the City’s failure to assist class members in obtaining Food Stamps.
Finally, Charlotte Moses Fischman, the President of the Board of Directors of NAMI-NYC Metro, is submitting written testimony regarding the need for adequate discharge planning. Also, Ann-Marie Louison of CASES is submitting testimony detailing that organization’s difficulties with the discharge planning that is currently being provided.
Thank you for investigating the implementation of this settlement.
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[1] Lamb, H. Richard, et al, Persons with Severe Mental Illness in Jails and Prisons: A Review, 49 Psychiatric Services 483-492 (1998) (citing Martelll, David A., et al., Base-Rate Estimates of Criminal Behavior by Homeless Mentally Ill Person in New York City, 46 Psychiatric Services 596-600 (1995).