Receiver may take DMHSA: Parties file motion with federal court
By Dionesis Tamondong • Pacific Daily News • September 19, 2009
A motion filed last night on behalf of three people with disabilities asks the District Court of Guam to remove local government authority over providing federally required services to people with disabilities and that the court appoint a receiver to take over.
The motion for the appointment of a federal receiver who will have powers over the Guam Department of Mental Health and Substance Abuse follows years of the local government's failure to improve services to people with mental health and developmental disabilities, according to court papers filed yesterday.
The local government, according to the court filing, has shown a "cycle of failure" to live up to a 7-year-old federal court order to improve mental health services on the island.
"Plaintiffs confess that they bought into this charade more than once; the soothing promises of 'we're all good people who want the same thing for the consumers' had a siren sound which time and again convinced plaintiffs that the defendants really did mean what they said, and that defendants would finally take decisive action to comply with the (Amended Permanent Injuction),'" according to the motion for appointment of a receiver.
"Plaintiffs can no longer indulge this fantasy. What has long been abundantly clear, and what can no longer be ignored, is that defendants lack the leadership or the will to bring themselves into compliance with the API. Further negotiations, further extensions and further accommodations of Defendants' failure to obey the API will be fruitless exercises which will fail to break the pattern of non-compliance. Not even the filing of yet another motion to have the defendants held in contempt is likely to bring about the changes so urgently needed," according to the court filing.
If District Court Judge Consuelo Marshall grants the Justice Department's motion, the mental health agency would be the second government of Guam department to be placed under federal receivership.
District Court of Guam Chief Judge Frances Tydingco-Gatewood in March last year took trash management away from the local government and placed it in under the authority of a court-appointed receiver, after GovGuam continuously failed to meet court-ordered deadlines.
The mental health agency and the Department of Integrated Services for Individuals with Disabilities have been under a permanent injunction since 2004 to improve services and facilities for people with mental and developmental disabilities. The order follows a 2001 lawsuit filed against the government of Guam for failure to provide adequate mental health services.
After a status conference in July, Marshall ruled GovGuam in contempt for failing to meet certain deadlines and requirements in improving mental health services. She also raised the possibility of placing the mental health agency in receivership.
In a report filed yesterday to supplement their August status report, the court monitors listed several examples of continuing failures and lack of planning by Mental Health.
Several contracts with organizations that manage and operate the agency's residential group homes are still issued on an emergency month-to-month basis because Mental Health has failed to issue new requests for proposals for those services.
This arrangement has led to delayed payments to the service providers, and prevents mental health from being able to choose the best bidder, the report stated.
The report cites a comment from a Bureau of Budget and Management Research analyst that of all the GovGuam line agencies, "financial planning at DMHSA was undoubtedly the worst."
Mental health has prior obligations dating back to 1999 and totaling more than $2.3 million. The agency is also facing a shortfall of about $1.4 million for this fiscal year, which ends Sept. 30. And $700,000 of that shortfall represents payroll, the report stated.
Some of Mental Health's debts have prompted some vendors to stop providing services to the agency.
The Guam Memorial Hospital, which is owed more than $1.1 million for supplies and meals, will no longer provide hot meals to patients within Mental Health's Adult Inpatient Unit. "Consumers are relegated to eating sandwiches ad nauseam," the monitors said.
Some of the island's pharmacies have refused to provide services to the department because of a history of late payments, according to the report.
The federal court-appointed two monitors, attorney James Casey and clinical psychologist James Kiffer, are required to submit monthly reports on GovGuam's status effort -- or lack of it -- to improve its mental health services.