Justice Action Center Student Capstone Journal Project No. 11/12-08

Transcription

1 Justice Action Center Student Capstone Journal Project No. 11/12-08 Reintegrating Inmates with Mental Illness to the Community: Examining the Settlement of Brad H. v. City of New York Anna Ostrom New York Law School Class of 2012 This paper can be downloaded without charge from: Copyright 2012 by Author THIS PROJECT IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR LEGAL ADVICE. BECAUSE THE LAW CHANGES QUICKLY, WE CANNOT GUARANTEE THAT THE INFORMATION PROVIDED IN THIS PROJECT WILL ALWAYS BE UP-TO-DATE OR CORRECT. IF YOU HAVE A LEGAL PROBLEM, WE URGE YOU TO CONTACT AN ATTORNEY.

2 Reintegrating Inmates with Mental Illness to the Community: Examining the Settlement of Brad H. v. City of New York Anna Ostrom JAC Capstone May 2, 2012

3 TABLE OF CONTENTS I. INTRODUCTION II. BRAD H. v. CITY OF NEW YORK A. The Facts B. The Statutory and Regulatory Violations C. Justice Braun s Opinion D. The Settlement III. NATIONAL IMPLEMENTATION OF DISCHARGE PLANNING A. Other States Practices B. Lost Income Support C. APIC Model IV. CONCLUSION ! i!

4 I. INTRODUCTION Every year, nearly thirteen million individuals are admitted to jails and prisons in the United States and over seven million individuals are released from jails and prisons. 1 According to a 2011 study, state prisons cost American taxpayers approximately $39,000,000,000 annually. 2 New York State prisons alone costs taxpayers $3,558,711,000 annually, or roughly $60,000 per inmate. 3 The cost of incarceration is consistently on the rise as many inmates typically return to custody at least once after their release from incarceration. Statistics show that more than four out of ten prisoners will be re-incarcerated within three years of release. 4 Mental illness is highly prevalent in the United States, particularly in our correctional facilities. Approximately one in four Americans over the age of 18 suffer from a diagnosable mental disorder in a given year, and roughly 6% of Americans suffer from a serious mental illness. 5 The percentage of incarcerated individuals with mental illness is continuously rising; according to a recent study of more than 20,000 adults 1 The Report of the Re-Entry Policy Council, THE COUNCIL OF STATE GOVERNMENTS JUSTICE CENTER, 2 Christian Henrichson & Ruth Delaney, The Price of Prisons: What Incarceration Costs Taxpayers, VERA INST. OF JUST. (Jan. 2012), (the study reflects the costs of prisons in 40 states surveyed, and is an analysis of the direct cost of state prisons to taxpayers and does not measure every cost that arises as a result of incarceration. ). 3 Id. 4 Id. 5 Statistics, NAT L INST. OF MENTAL HEALTH, (last visited March 1, 2012) ( Serious mental illnesses include major depression, schizophrenia, bipolar disorder, obsessive compulsive disorder, panic disorder, post traumatic stress disorder, and borderline personality disorder. ).! 1!

5 entering five local jails, 14.5% of male inmates and 31% of female inmates in the United States had a severe mental illness, 6 and more than half of all inmates have at least one mental health condition. 7 Many mental health experts have debated over why the concentration of severe mental illness is higher in inmates than it is in the un-incarcerated public. At times severe mental illness and the symptoms associated with it such as delusions, hallucinations, and paranoia, can cause people to act out in ways that lead to an arrest or incarceration. People with mental illness have high rates of co-occurring substance use disorders, which leads to drug-related arrests. 8 Additionally, people with severe mental illnesses who are unable to work and lack financial support cannot afford housing and can be arrested for loitering as a result of homelessness. 9 Other mental health experts believe that present day jails have replaced the institutional facilities of the past, which housed a large number of individuals with mental illness. Before the birth of the civil rights movement and advances in modern psychotropic medications, public mental health hospitals served as the solution to 6 Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door, 166 AM J. PSYCHIATRY (2009), available at 7 Council of State Governments Justice Center Releases Estimates on the Prevalence of Adults with Serious Mental Illnesses in Jails. THE COUNCIL OF STATE GOVERNMENTS JUSTICE CENTER, governments8justice8center8releases8estimates8on8the8prevalence8of8adults8with8 serious8mental8illnesses8in8jails/mh_prevalence_study_brief_final.pdf [hereinafter Estimates]. 8 Fred Osher, Henry J. Steadman, & Heather Barr, A Best Practice Approach to Community Re-entry from Jails for Inmates with Co-occurring Disorders: The APIC Model, NATIONAL GAINS CENTER 2 (September 2002), [hereinafter The APIC Model] (A 2001 study found that nearly 75% of incarcerated adults with serious mental illness meet criteria for a co-occurring addictive disorder). 9 Estimates, supra note 7.! 2!

6 containing the population with mental illness. 10 People with mental illness were often locked away for years or even decades in poorly run state hospitals that were understaffed and overcrowded. 11 As modern medicine developed and research began to shed more light onto the causes of and treatments for mental illness, psychiatrists and other professionals began advocating for the patients with mental illness to move out of the hospitals and reintegrate back into the communities with outpatient services. 12 In 1970, W.C. Rawlins filed suit in Alabama District Court on behalf of her nephew, 15 year old Ricky Wyatt, who was living in a state hospital. 13 At the hospital, Wyatt slept on wet floors, lived in overcrowded wards, and spent much of his time heavily medicated and locked in a cell-like room. 14 Though it would take more than thirty years to enforce the ruling of Wyatt adequately, in 1971, Judge Frank M. Johnson Jr. issued an order establishing the right to treatment as will give each [patient] a realistic opportunity to be cured or to improve his or her mental condition. 15 Later, he set the standards for humane conditions and adequate treatment. 16 While a method of outpatient services and treatment is undoubtedly more humane and effective than the state hospitals pre-wyatt, the costs of these services still rival the high costs of hospitalization. With so many federal and state budget cuts each year, outpatient services struggle to find funding. As a result, many people with mental illness 10 Id. 11 See Wyatt v. Stickney, 334 F. Supp (M.D. Ala. 1971). 12 Psychiatric Disorders and Repeat Incarcerations, supra note Wyatt, 344 F. Supp. at Landmark Mental Disability Lawsuit Ends After 33 Years, BAZELON CENTER FOR MENTAL HEALTH LAW, (last visited March 31, 2012) [hereinafter 33 Years]. 15 Wyatt, 334 F. Supp. at Years, supra note 14.! 3!

7 do not receive the treatment they need to function in society, and many wind up in a perpetual cycle of arrests and incarceration. Many inmates may actually have better access to mental health services in jail than they do in their own communities. The American Psychiatric Association (APA) has voiced concerns over providing underserved populations with adequate treatment and care, especially groups that lack strong political constituencies such as individuals with mental illness in jails and prisons. 17 The APA further states that timely and effective access to mental health treatment is a hallmark of adequate health care. 18 Mental health professionals agree that discharge planning is an essential step in any transition from services for an individual with mental illness. Discharge planning, also known as reentry planning or transition planning, is the practice whereby a provider of mental health care develops a plan for the continuation of a patient s treatment following the patient s discharge from the provider s care. 19 In recent years, the mental health community has begun to challenge state and local authorities on the issue of discharge planning. One of the most notable challenges was the class action lawsuit of Brad H. v. City of New York in which the plaintiffs, a group of incarcerated individuals with mental illness, argued that New York statutory, regulatory, and constitutional law mandates New York City jails to provide discharge planning for inmates with mental illness upon release from incarceration. 17 American Psychiatric Association Position Statement on Psychiatric Services in Jails and Prisons, 146:9 Am. J. Psychiatry, 1244 (Sept. 1989), available at 18 Id. 19!Complaint at 2, 12, Brad H. v. City of New York, 712 N.Y.S.2d 336 (N.Y. Sup. Ct. July 12, 2000) (No /99).!! 4!

8 II. BRAD H. v. CITY OF NEW YORK A. The Facts Brad H. v. City of New York was a landmark decision in the state of New York that changed the protocol for releasing inmates with mental illness from New York City jails and addressed the issue of the revolving door of correctional facilities. 20 In 1999, seven individuals, diagnosed with mental illness and incarcerated in a New York City jail, brought an action on behalf of themselves and on behalf of a class consisting of similarly situated mentally ill inmates in New York City jails, ( the plaintiffs ) against the City of New York, Mayor Rudolph W. Giuliani, and other individuals, corporate bodies, and public agencies ( the defendants ) responsible for providing mental health services to inmates in New York City jails and upon their release from these jails. 21 In their complaint, the plaintiffs sought declaratory and injunctive relief requiring [the] Defendants to provide adequate discharge planning services as part of the mental health care that [the] Plaintiffs and other inmates receive during their incarceration in New York City Jails. 22 The plaintiffs defined discharge planning as the practice whereby a provider of mental health care develops a plan for the 20 Brad H. v. City of New York, 712 N.Y.S.2d 336 (N.Y. Sup. Ct. 2000). 21 See Complaint, supra note 19 at 5 (The class included inmates who are currently confined or will be confined for 24 hours or longer and who, during confinement received or will receive treatment for mental illness. ). 22 Id. at 2.! 5!

9 continuation of a patient s treatment following the patient s discharge from the provider s care. 23 At the time plaintiffs filed their complaint, New York City jails had essentially no discharge plan in place for the approximately 25,000 inmates with mental illness released every year. 24 Standard protocol for release from New York City jails for all inmates was to bus them to each day to Queens Plaza in Queens, New York, between the hours of 2:00 a.m. and 6:00 a.m. with $1.50 and two subway tokens. 25 The inmates who received mental health services while incarcerated were released without any support services, medications, or even a phone number or name of a referral who could help them set up new services or reinstate services they may have received prior to incarceration. These inmates had nothing but loose change in their pockets. Plaintiffs cited discharge planning as an essential component of mental health care for inmates with mental illness. 26 Discharge planning provides a necessary stepping stone for someone making the transition from supervised care to society and helps ensure that the individual with mental illness will not deteriorate and end up back in a supervised care setting. In the complaint, plaintiffs claim that a lack of adequate discharge planning may cause an individual with mental illness to experience the following symptoms: 1) acting in a bizarre manner, 2) auditory or visual hallucinations, 3) diminished contact with reality, 4) paranoia, 5) withdrawal from society, and 6) higher risk of suicide Id. (issues addressed during discharge planning may include whether a patient will participate in therapy, how a patient will obtain supportive housing and other public benefits, and how a patient will receive necessary psychotropic medications). 24 Id. at Id. 26 Id. at Id.! 6!

10 Finally, without discharge planning, former inmates with mental illness run a greater risk of rearrest. 28 The complaint profiles the seven named plaintiffs as examples of how a lack of discharge planning negatively affects inmates with mental illness. The first named plaintiff in the class action, Brad H.: Brad H. is 44 years old. He has been diagnosed with schizophrenia, chronic paranoid type, and alcohol dependence. He has been receiving periodic treatment for his mental illness since he was nine years old. From the ages of 9 through 18, he lived in a psychiatric hospital, and since then he has received inpatient mental health treatment in a number of other hospitals. He has been treated with many medications and therapies, including electroconvulsive therapy. He has been an inmate in City Jails approximately 26 times, and has received treatment for his mental illness on each of those occasions. On none of those occasions has he been provided with discharge planning. Before his most recent arrest, for allegedly jumping a subway turnstile, Brad H. was homeless and living in subway stations. He is currently incarcerated on Rikers Island where he is once again receiving treatment for mental illness. As has happened on every prior occasion when he was discharged from jail, no one has discussed with Brad H. how he will receive medication and other mental health services upon his release or how he will obtain SSI or Medicaid benefits or supportive housing. Without such discharge planning, he is very unlikely to be able to obtain treatment on his own after he is released. Without continued treatment, the symptoms of Brad H. s mental illness are likely to worsen in clinical terms, he will decompensate and he is likely to suffer the associated adverse symptoms of decompensation. These symptoms often result in extreme emotional suffering and are very likely to significantly impair Brad H. s ability to care for himself, to disrupt his interactions with others, and to reduce his opportunities to work. 29 The other six plaintiffs share similar characteristics to Brad H. s profile: a long history of arrests, incarcerations, and hospitalizations. 30 These plaintiffs clearly 28 Id. 29 Id. at Id. at 8-12.! 7!

11 demonstrate the revolving door that consistently transports inmates with mental illness to the streets and then back into the jails. B. The Statutory and Regulatory Violations The plaintiffs claimed that the defendants failure to provide discharge planning violated the New York Mental Hygiene Law 29.15, 14 NYCRR 587, et seq., and the rights of the Plaintiffs under Art. I 5 and 6 of the New York State Constitution. The relevant text of the statute and regulation are as follows: New York Mental Hygiene Law 29.15: The discharge or conditional release of all clients at developmental centers, patients at psychiatric centers or patients at psychiatric inpatient services subject to licensure by the office of mental health shall be in accordance with a written service plan prepared by staff familiar with the case history of the client or patient to be discharged or conditionally released and in cooperation with appropriate social services officials and directors of local governmental units.a written service plan prepared pursuant to this section shall include, but shall not be limited to, the following: o a statement of the patient's need, if any, for supervision, medication, aftercare services, and assistance in finding employment following discharge or conditional release, and o a specific recommendation of the type of residence in which the patient is to live and a listing of the services available to the patient in such residence.! 8!

12 o A listing of organizations, facilities, including those of the department, and individuals who are available to provide services in accordance with the identified needs of the patient. o The notification of the appropriate school district and the committee on special education regarding the proposed discharge or release of a patient under twenty-one years of age, consistent with all applicable federal and state laws relating to confidentiality of such information. 31 Official Compilation of Codes, Rules & Regulations of the State of New York, Operation of Outpatient Programs (14 NYCRR 587 et seq.): Treatment planning shall be an ongoing assessment process carried out by the professional staff in cooperation with the recipient and his or her family and/or other collaterals, as appropriate, which results in a treatment plan. The treatment plan shall be updated or revised as necessary to document changes in the recipient's condition or needs and the services and treatment provided.the treatment plan shall include criteria for discharge planning. 32 o Section of the NYCRR defines discharge planning: the process of planning for termination from a program or identifying the resources and supports needed for transition of an individual to another program and making the necessary referrals, including linkages for treatment, rehabilitation and supportive services based 31 N.Y. MENTAL HYG. LAW 29.15(f)-(g) (McKinney 2010). 32 N.Y. COMP. CODES R. & REGS. tit. 14, (2012).! 9!

13 on assessment of the recipient's current mental status, strengths, weaknesses, problems, service needs, the demands of the recipient's living, working and social environment, and the client's own goals, needs and desires. 33 The plaintiffs argued that the Mental Hygiene Law and NYCRR regulate New York City jails because these jails provide the types of mental health services that the statutes and regulations intended to cover. According to the plaintiffs complaint, every year, roughly 25,000 pre-trial detainees, sentenced inmates, and other individuals receive mental health services such as individual and group therapy and psychotropic drugs in New York City jails. 34 In 1999, the New York City jails had an average daily population of 17,897 inmates, an annual inmate admission total of 129,998, and the average length of jail time for sentenced inmates was 33.2 days. 35 In 1997, there were 192,228 mental health visits in New York City jails; approximately 25% of the total annual population of inmates received mental health services, and about half of these inmates, or approximately 15,000, received treatment for serious mental disorders. Finally, on average, inmates receiving treatment for a mental illness were incarcerated five times longer than inmates without mental illness: 215 days in contrast to 42 days Id. at Complaint, supra note 19 at DOC Statistics, CITY OF NEW YORK DEPARTMENT OF CORRECTIONS (last visited March 5, 2012), (these statistics were compiled from According to the New York City Department of Corrections website, in 2010 city jails averaged a daily inmate population of 13,049, an annual inmate admission of 95,385, and an average length of stay of 36.1 days). 36 Complaint, supra note 19 at ! 10!

14 All of these numbers and percentages emphasize the important role that mental health services play in New York City correctional facilities. Justice Richard F. Braun of the New York County Supreme Court took notice; in his opinion dated July 12, 2000, Justice Braun held that Plaintiffs would be awarded a preliminary injunction requiring Defendants to provide adequate discharge planning for inmates with mental illness according to the Mental Hygiene Law and NYCRR. 37 C. Justice Braun s Opinion Justice Braun agreed with plaintiffs that the mental health services provided by New York City jails for inmates fall within the umbrella of services covered under statutory and regulatory law requiring discharge planning. 38 Justice Braun recognized the legislative intent of the Mental Hygiene Law in that [i]t is the policy of the state of New York that all of its residents who are disabled will receive services according to their individualized needs. 39 The court added that [t]hese purposes apply as much to people incarcerated in the jails of New York City as other residents of our State. 40 Therefore, the Mental Hygiene Law s providing for discharge plans for mentally ill inmates who receive treatment while incarcerated before they are released... would promote the legislative purpose in enacting the statute Brad H., 712 N.Y.S.2d at 430 (Justice Braun chose not to decide the issue of the constitutional claims in his opinion: Plaintiffs have shown a likelihood of succeeding on the merits of their statutory and regulatory claims. Thus pursuant to a maxim of constitutional law, the likelihood of success on the constitutional claims raised by Plaintiffs shall not be decided. ). 38 Id. at Id. at 427 (citing N.Y. MENTAL HYG. LAW 29.15(f)-(g) (McKinney 2010)). 40 Id. 41 Id.! 11!

15 Moreover, Justice Braun held that the NYCRR had a similar legislative purpose: 14 NYCRR provides that it is the purpose of outpatient programs under 14 NYCRR Part 587 to diagnose and treat mentally ill individuals on an ambulatory basis, with the goals of reducing symptoms and maximizing the potential of those persons to recover meaningful social involvement in order to maintain their capacity to function in the community. Similar to recognition of an implied private right of action to obtain enforcement of Mental Hygiene Law 29.15, doing so for 14 NYCRR Part 587 would benefit Plaintiffs and the class, promote the administrative purpose in enacting the regulations, and would be consistent with the administrative scheme. 42 The court found that the categorical terms of the NYCRR encompasses New York City jails, which state that any provider of service... in which staff are assigned on a regular basis to provide services for the treatment of adults with a diagnosis of mental illness. 43 Consequently, these inmates are entitled to discharge planning. 44 Finally, Justice Braun acknowledged the importance of discharge planning for inmates with mental illness: It is not only to their benefit to provide them with a discharge plan but to that of all of us if such a plan can aid at least some of the Plaintiffs and the class to become healthier and thus more productive members of society who are not harmful to themselves and/or others. Plaintiffs and the class have shown through their expert, personal, and documentary submissions that irreparable injury will occur to Plaintiffs and the class if their release occurs from the New York City jails without any mental health discharge planning.... The irreparable harm without an injunction requiring mental health discharge planning would be decompensation for many former inmates, and a return to the cycle of likely harm to themselves and/or others, through substance abuse, mental and physical health deteriorations, homelessness, indigence, crime, rearrest, and re-incarceration Id. at Id. at 429 (citing N.Y. COMP. CODES R. & REGS. tit. 14, (2012)). 44 Id. 45 Id. at ! 12!

16 The court granted plaintiff s request for a preliminary injunction citing that the comparative harm [to plaintiffs] is greater than any increase in bureaucratic work and cost to Defendants. 46 Plaintiffs and defendants agreed to resolve all remaining issues raised in the lawsuit via a settlement agreement in which both parties would set forth the stipulations for discharge planning. D. The Settlement In 2003, the plaintiffs and defendants reached a settlement agreement ( the Settlement ) in which defendants agreed to provide discharge planning for inmates who qualify as a class member. 47 Defendants agreed to assess each inmate within 24 hours of incarceration for all medical needs, including whether the inmate should undergo a mental health assessment. 48 The mental health assessment determines whether or not the inmate qualifies as a class member and also whether the inmate should be classified as Seriously and Persistently Mentally Ill (SPMI). The Settlement provides for an elevated level of discharge planning for all SPMI classified inmates. 49 Under the terms of the Settlement, discharge planning includes the following services: a. An individualized assessment of a person s need for: 46 Id. at Stipulation of Settlement, Brad H. v. City of New York, 712 N.Y.S.2d 336 (N.Y. Sup. Ct. 2000) (No /99), available at 48 Id. at ( Each individual referred for a mental health assessment as a result of the Medical Assessment shall be assessed by Defendants for his or her need for mental health treatment... within three days after the Medical Assessment. ). 49 Id. at ! 13!

17 (i) (ii) clinically appropriate forms of continuing mental health treatment and supportive services including but not limited to, where clinically appropriate, medication, substance abuse treatment, and case management services, public benefits, including but not limited to Medicaid, Public Assistance Benefits and Food Stamps, (iii) appropriate housing or appropriate shelter if housing cannot be located prior to the individual s release from incarceration in a City Jail, and (iv) transportation to appropriate housing or shelter; b. Assisting each individual with obtaining the services and resources set forth in (a), in accordance with each individual s need for those services and resources and in accordance with the terms of this Settlement Agreement. 50 The Settlement provides that discharge planning would vary for each individual based on the nature and severity of the individual s mental illness, the individual s needs, the length of incarceration and the individual s cooperation with planning efforts. 51 Under the Settlement, the defendants must create a comprehensive treatment and discharge plan for every released class member. Less comprehensive discharge plans are allowed if an inmate is released before a more comprehensive plan can be put in place. The Settlement states that all class members shall be released from incarceration during daylight hours and not prior to 8:00 a.m. unless otherwise mandated by court order. 52 Upon release, class members will receive a seven-day supply of all necessary psychotropic medications and a 21-day prescription for all medications. 53 The Settlement requires defendants to ensure that class members either apply for or reactivate their Medicaid, Public Assistance, and Social Security benefits so that the benefits are readily available on or before their release date. Defendants must assist class 50 Id. at Id. at Id. at Id. at 29.! 14!

18 members with all necessary documentation for the benefits. 54 Furthermore, if class members will not have access to Medicaid and other benefits immediately upon release, then defendants must enroll class members in the medication grant program (MGP). The MGP provides necessary psychotropic medications to newly released inmates while they wait for public benefits to activate, ensuring there is no gap in access to medication. 55 The Settlement requires defendants to assess each class member s need for appropriate housing following his release. If supportive housing is necessary, then discharge-planning staff must help fill out all applications prior to release. If supportive housing is unavailable then discharge-planning staff must try to find appropriate shelters or alternative housing. 56 Any class members released directly from court may receive the same discharge planning services as those released from jails by visiting a Service Planning Assistance Network (SPAN) office within thirty days of release. 57 SPAN offices are located within one-half mile of the criminal court in each of the five boroughs of New York City. SPAN offices can provide support and services to all class members, not just those released from courts. 58 For class members who go to a SPAN office more than thirty days after release, SPAN office staff shall make reasonable efforts to make an appointment with community agencies or organizations for further assistance as appropriate Id. at Id. at Id. at Id. at Id. 59 Id. at 48.! 15!

19 In order to ensure that defendants are strictly complying with the terms of the settlement, both plaintiffs and defendants designate a compliance monitor. 60 A compliance monitor must be either (1) a licensed and board certified physician, licensed for a minimum of five years with experience with individuals with serious mental illness, or (2) a social worker with a Master s degree in social work and three years of mental health discharge planning experience. 61 The compliance monitors must have access to all documents, records, electronic systems, facilities, staff and class members, and they must be allowed to observe any training sessions. 62 The compliance monitors may develop performance goals in order to measure defendants compliance with the Settlement Agreement. 63 The performance goals are expressed in terms of a percentage of class members for whom each goal must be achieved. As an example: [I]f the Compliance Monitors set a performance goal providing that 90% of Class Members shall be prescreened for Medicaid eligibility prior to their release from incarceration, then, by the date on which that goal becomes effective, Defendants must be prescreening 90% of Class Members for Medicaid eligibility before they are released from incarceration. 64 If defendants fail to meet any set performance goals within six months, then plaintiffs may apply for a court order requiring compliance. 60 Id. at Id. at Id. at Id. at Id. at ! 16!

20 The compliance monitors must submit written reports to the plaintiffs, the defendants, and the court every 90 days during the first year following the Settlement and every 120 days for each subsequent year. 65 According to the Settlement, the reports: 1. shall assess the current state of compliance with the Settlement Agreement and performance goals set in accordance with IV.D above, including whether progress has been made and whether compliance has been maintained for a substantial period of time; 2. shall analyze and review the cases of Class Members who did not receive clinically appropriate Discharge Planning in accordance with this Settlement Agreement (selection of any individual cases for review in a report pursuant to this subparagraph 149(b) shall be at the sole discretion of the Compliance Monitors); 3. shall analyze and discuss any impediments to meeting the performance goals set in accordance with IV.D of this Agreement and make recommendations for overcoming those impediments; 4. may make recommendations for changes in policies and procedures or any other matter relating to Discharge Planning as contemplated by this Agreement; and 5. may report on any other matters that affect the rights of Class Members, or any of them, pursuant to this Settlement Agreement Id. at 62 (copies of the reports can be found on the Urban Justice Center s website, 66 Id. at ! 17!

21 Additionally, plaintiffs and defendants counsel must meet periodically to discuss any issues that may arise from the Settlement, including problems with compliance. 67 The compliance monitors are perhaps the most critical element to the success of the Settlement. Written policy for discharge planning is utterly useless if no party is responsible for ensuring that the policy is upheld. The detailed compliance monitor reports not only verify that defendants are implementing the terms of the Settlement, but the reports also help plaintiffs and defendants determine which policies prove successful and which policies may need modification. Due to legislative and budgetary changes, community mental health services may vary over time, and the terms of the Settlement need to be updated to reflect any changes in order to maximize the potential of discharge planning. Nearly a decade after the Settlement was implemented, the compliance monitors have proven to be an effective monitoring tool. Today, the Brad H. litigants are still battling in court over the agreed discharge planning terms. As a result of the compliance reports, plaintiffs contend that defendants are not complying with all of the stipulations set forth in the Settlement. Furthermore, plaintiffs request that defendants modify some of the discharge planning policies that have failed over the last several years. On August 12, 2011, plaintiffs moved for a court order enforcing the Settlement and continuing it in effect for two more years. 68 Plaintiffs are still waiting for the court to issue a decision. 67 Id. at Memorandum of Law in Support of Plaintiffs Reinstatement of Motion to Enforce Stipulation of Settlement, 712 N.Y.S.2d 336 (N.Y. Sup. Ct. 2000), (No /99).! 18!

22 III. NATIONAL IMPLEMENTATION OF DISCHARGE PLANNING A. Discharge Planning in Other States Brad H. was an important step in working towards a solution to the problem of recidivism in New York City jails for inmates with mental illness. The Brad H. Settlement is evidentiary proof that correctional facilities can and should implement a discharge planning system. Other states must follow suit in order to resolve the national concern of the revolving prison door. Some states have already begun to implement various forms of discharge planning. Nebraska correctional facilities release inmates with mental illness with a twoweek supply of medication along with the names of providers and institutions that can offer mental health services. 69 In Arkansas, released inmates receive a one-week supply of medication and correctional staff encourage them to set up appointments with private providers of their own choosing. Alternatively, correctional staff will set up inmates with an after-care appointment at a Community Mental Health Center, although the appointments are not necessarily guaranteed or readily available. 70 Virginia inmates with mental illness receive a one-month supply of medication upon release, and they work on a discharge plan with a counselor and mental health professional while still incarcerated. 71 Correctional staff attempts to set up after-care appointments for released inmates if outside providers have adequate resources to 69 HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH MENTAL ILLNESS 194 (2003), available at [hereinafter ILL- EQUIPPED ]. 70 Id. 71 Id. at 195.! 19!

23 provide care. 72 North Carolina inmates with mental illness also receive a one-month supply of medication upon release in addition to names, addresses, and phone numbers of outside providers and pre-arranged appointments. 73 Moreover, the inmates participate in developing an after-care plan tailored to their own mental health needs while still incarcerated. 74 It is clear that discharge plans range widely from state to state. However, even if correctional facilities arrange for community support and mental health services upon release, one major obstacle remains for released inmates with mental illness: most, if not all, do not have the financial means to pay for these services. B. Lost Income Support While many released inmates may have never had mental health services prior to incarceration, others who did have services are released from jail to discover that their services have been revoked. Individuals with severe mental illness often rely on federal income support to pay for basic necessities such as housing, food, and mental health services. Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI), and health coverage under Medicaid and Medicare, may be the only source of income for someone who is unable to work because of the severity of his or her mental illness Id. 73 Id. 74 Id. 75 Finding the Key, BAZELON CENTER FOR MENTAL HEALTH LAW, November 2009, 20!

24 Released inmates need this income support in order to transition back into society successfully, and to reinstate or commence mental health services. If an individual receiving SSI was incarcerated for less than twelve months, then the Social Security Administration (SSA) will only suspend SSI payments until the individual is released from jail. However, if an inmate is incarcerated for twelve consecutive months or longer, the SSA will terminate that individual s eligibility for SSI, and he or she will have to file a new application for benefits and resubmit evidence of disability upon release from jail. 76 Applying for federal benefits is not an easy task. People sometimes wait months or even years until the SSA approves their applications for income support. Often, applications are initially denied and the applicant must endure the arduous process of appealing the decision. While non-profit organizations may provide free legal services to help applicants file the paperwork or argue an appeal, these organizations are usually understaffed and lack adequate funding, and therefore, are not readily available to all those in need. Released inmates with no income source or other support cannot wait months to find out whether or not they will receive benefits. Correctional facilities can help prevent this problem through discharge planning, as demonstrated in the Brad H. Settlement. 77 Inmates can file prerelease applications for 76 Id. (eligibility for SSDI is suspended during incarceration but never terminated regardless of the length of the sentence). 77 Stipulation of Settlement, supra note 47, at 42 (The Brad H. Settlement required defendants to assist inmates with obtaining income support: Defendants shall explore the feasibility of a system for the assessment of Class Members eligibility for SSI, SSD, other Social Security Benefits and Veterans Administration Benefits, and the completion and submission of applications for such benefits on behalf of Class Members before their Release Date, and Defendants shall implement a system to assist Class Members in obtaining such benefits, if such a system is feasible. ).! 21!

25 federal benefits with the SSA if they are first time applicants or if they need to reapply because their eligibility was terminated. An inmate who anticipates release from jail within a few months can file an SSI application while incarcerated. If the SSA approves the application before the inmate is released from jail, SSI payments will begin shortly after the release. 78 A prerelease application solves two problems: 1) the inmate will have income support almost immediately out of jail, and 2) the correctional facility can help the inmate file the application and avoid processing delays due to improper filing. Correctional facilities in some states actively participate in ensuring that benefits are in place for inmates with mental illness prior to release. In both North Carolina and Virginia, mental health professionals help inmates apply or reapply for Medicaid and SSI before release so that they will become eligible, if possible, on the date of discharge. 79 Kansas Department of Corrections also helps qualified inmates with mental illness apply for SSI benefits (but not Medicaid) that will become active upon release. 80 However, many states and facilities do not assist inmates with their benefit applications. The lack of a discharge plan results in releasing inmates with no money and no means to pay for necessities such as housing, food, medication, and mental health services. Without any resources, these former inmates face a greater risk of returning to the streets and ultimately back into incarceration. Successful transitions for inmates with mental illness require planning and cooperation between the correctional facilities and the community. 78 Id. at ILL-EQUIPPED, supra note 68, at Id. at 197 (every inmate with mental illness is assessed at an SSI disability screening appointment, and those that qualify may then get assistance with benefits applications).! 22!

26 C. APIC Model The Substance Abuse and Mental Health Services Administration GAINS Center (SAMHSA) is an organization dedicated to expanding access to community based services for adults diagnosed with co-occurring mental illness and substance use disorders at all points of contact with the justice system. 81 In 2002, the Center introduced the APIC model in a publication set to guide and educate mental health providers and correctional facilities on successfully transitioning inmates co-occurring disorders of mental illness and substance abuse from incarceration to the community. 82 The APIC model is broken down into four steps: 1) Assess, 2) Plan, 3) Identify, and 4) Coordinate ASSESS The first step is to assess the clinical and social needs and public safety risks of the inmate. 84 Assessment involves cataloging the inmate s psychosocial, medical, and behavioral needs and strengths, and determining how they impact the inmate s level of function. A designated person or team should gather all relevant information from law enforcement, court, corrections, correctional health, families, and community provider systems and use the information to design an appropriate transition plan for the inmate. The assessment stage also requires planning to consider any special needs related to cultural identity, primary language, gender, and age. 85 In order to maximize the benefit of any services, released inmates should be matched with services that will accommodate 81 SAMHSA S GAINS CENTER FOR BEHAVIORAL HEALTH AND JUSTICE TRANSFORMATION, (last visited April 25, 2012). 82 The APIC Model, supra note Id. at Id. at Id. at 7.! 23!

27 non-english speakers, cultural differences, and other potential needs related to race, gender, and age. Finally, the assessment stage requires that the inmate actively participate in the transition planning so that the inmate understands the process and ultimately chooses a plan that meets the inmate s own perceptions of what s/he needs. 86 Engaging the inmate in transition planning also helps to develop a trust between the inmate and the providers. The assessment stage can be tailored depending on the length of incarceration; short stays of 72 hours or less in jail can be fast-tracked in order to assess the inmate s needs while longer stays may require continual observation in order to ensure that the assessment remains current PLAN The second stage of the model is to plan for the treatment and services required to address the inmate s needs, both short-term and long-term. 88 Planning includes arranging for a wide variety of needs such as housing, medication, behavioral health services, medical care, income support, food and clothing, transportation, and childcare. 89 Inmates should again be involved in the planning stage so that the planners can determine which needs the inmate is struggled with in the past, especially after previous releases from incarceration Id. 87 Id. at Id. at Id. at Id.! 24!

28 3. IDENTIFY The third stage of the model is to identify required community and correctional programs responsible for post-release services. 91 Inmates should be referred to specific services that not only meet their mental and behavioral health needs, but also services that meet their financial, cultural, demographic, and geographic needs. 92 A mental health center service may be useless to a released inmate who has neither the money to pay for it nor the transportation to get there. All referrals for treatment and support services must also match the inmate s clinical diagnosis. 93 Services vary across a wide range of functionalities, and the inmate should be referred only to services that can match the appropriate level of necessary care. Identifying appropriate services also includes communicating with these outside providers so that they have all of the necessary information about the inmate s history and his needs. The correctional facility staff should forward a complete discharge summary to all community providers so that the providers have comprehensive records COORDINATE The final stage of the APIC model is to coordinate the transition plan to ensure implementation and avoid gaps in care. 95 Perhaps one of the biggest problems with many current discharge-planning systems is the lack of continuity of planning and follow-up. Any discharge plan for an inmate with mental illness, including referrals for services and medications, is likely to be unsuccessful if there is no one to ensure that these services are 91 Id. at Id. 93 Id. 94 Id. at Id. at 15.! 25!

29 actually put into effect upon release. Case managers act as intermediaries who can connect inmates to their service providers and ensure that no one falls through the cracks of an often bogged-down system. The case manager should make sure that the inmate knows the details of the transition plan, including times and locations of initial appointments after release, prescribed medications, and whom to contact in case of an emergency or if any problems arise with medications or scheduled appointments. 96 Furthermore, the community providers should know the case manager and be able to communicate with correctional facility staff in order to be up-to-date on all discharged inmates who will be seeking their services. 97 The APIC model clearly spells out the essential steps to providing successful discharge planning for inmates with mental illness. SAMHSA even created the following checklist for correctional facilities to reference when using the APIC model to help transition inmates from incarceration to the community: 96 Id. at Id. at 16.! 26!

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32 IV. CONCLUSION The case of Brad H. v. City of New York is a significant example of how jails and prisons can implement discharge plans for inmates with mental illness. Discharge planning is a fundamental stage of the treatment process for individuals with mental illness. If correctional facilities ensure that inmates with mental illness continue to receive mental health services and treatment upon release, the rates of recidivism may decrease. States and cities can use both the Brad H. Settlement and the APIC model to advocate for mandated discharge planning within their own correctional facilities. For discharge planning to truly be effective, communities must also designate resources to provide treatment and support for individuals with mental illness. Outside support services and treatment programs require sufficient funding and staff in order to properly care for not only former inmates, but also other individuals with mental illness already in the community. Adequate discharge planning and readily available community services will not only help transition inmates with mental illness from incarceration back into society, but also help deter these individuals from crimes that lead to arrest and re-incarceration. Discharge planning can provide inmates with mental illness the support they need in order to fully function in the community after incarceration and ultimately close the revolving prison door.! 29!