CHAPTER 10

A Rush to Privatization

“Everyone knew this day was coming. But not this soon. And not this poorly thought out.” This was how Michael Mayo, a writer for the Sun-Sentinel, began his August 8, 2011, column about the decision by the Florida Department of Children and Families to speed up the privatization of Broward County’s mental health and substance abuse services by two years.¹ It was a decision made by the DCF Secretary, David Wilkins, without prior notice or consultation. Imagine: A major change is made in government policy about how you access your healthcare, and no one bothers to tell you or ask your opinion. No letter or public service announcement or news report was ever released. There were no community forums or town hall meetings to brief the public and seek input. As to criminal justice stakeholders, including mental health court judges, drug court judges, the sheriff’s office, public defenders, state attorneys—absolutely no one had been consulted.

According to Florida Health News, hundreds of DCF layoffs together with severe budget shortfalls had accelerated the need for the state to relinquish its administrative and management functions to local entities.² As stated by Bob Sharpe, the former CEO of the Florida Council for Community Mental Health, “They can’t monitor the existing contracts anymore and need these managing entities as fast as they can get them.”³ If there was any consensus, it was that “a rush to privatization could affect services in each area and how those who need them, would get access.”⁴ Given the dire state of mental health in Florida, it seemed logical that DCF, which had privatized Florida’s Child Welfare System in 2006, would look to continue that trend.⁵

The DCF had begun to explore a new approach to the management of Florida’s public mental health system as early as 2000. The reform would entail shifting DCF’s administrative, management, and oversight functions to a nonprofit managing entity with which DCF would contract. Florida Tax Watch describes a behavioral health managing entity (BHME) “as a non-profit organization that manages a network of behavioral health providers in a specific region on behalf of the state.”⁶ In 2008, the legislature passed an amendment to Florida Statute 394.9082 that authorized the creation of behavioral health managing entities as a collaborative effort of DCF, the Florida Council for Community Mental Health, and the Florida Alcohol and Drug Abuse Association. The rationale for these entities is explained in the statute: “The Legislature finds that untreated behavioral health disorders constitute a major health problem for residents of this state, and substantially increase demands on the state’s juvenile and adult criminal justice systems, the child-welfare system, and healthcare systems. The Legislature further finds that behavioral health disorders respond to appropriate treatment, rehabilitation and supportive intervention.”⁷ The thinking was that the behavioral health managing entity, as a local entity, would have greater understanding of the values, culture, and needs of the community. In this regard, a report on public management of mental health care sponsored by the Milbank Fund and the Bazelon Center for Mental Health Law notes that proper preparation and consultation with community stakeholders is essential for the effective management of a public mental health system reform, which includes experimentation with privatization.⁸

The 2008 financial crash ravaged state mental health budgets. In its 2011 report, State Mental Health Cuts: A National Crisis, the National Alliance on Mental Illness (NAMI) detailed massive cuts to non-Medicaid state mental health funding, which totaled nearly $1.6 billion, with deeper cuts to come. According to NAMI, state budget cuts impacted thousands of youths and adults living with serious mental illness. As a result of the cuts, several services were eliminated: critical community- and hospital-based mental health care, in addition to housing and access to medications. NAMI also projected that the loss of temporary Medicaid funding through President Barack Obama’s stimulus package would end in June 2011.⁹ The report states, “Medicaid is the most important source of funding of public mental health services for youth and adults, leaving people with mental illness facing the real threat of being cut off from life-saving services.”¹⁰ The report emphasizes that even under the best of economic times, funding for mental health is inadequate. The impact of an individual’s inability to access care can be tragic, as we saw in the case of Aaron Wynn; the high-profile shooting of Congresswoman Gabrielle Giffords and murder of six people in Tucson, Arizona; and the Virginia Tech shooting in 2007. Clearly, there was an urgent need to find out what the plan was for Broward County.

As rumors swirled, I called Pat Kramer, Broward County’s DCF director for adult mental health and substance abuse and asked her whether the rumors about privatization were true. “They are,” she said. “I would be delighted to come and bring the judges and members of the criminal justice community up to speed on what is happening.”

A meeting with Kramer was scheduled for August 5, in my courtroom, to officially air the current state of privatization in Broward County. I am not sure what the twenty-five-plus criminal justice stakeholders who attended were expecting to hear. But I am convinced that no one was prepared for what Kramer was about to reveal. Once everyone had taken their seats, Kramer thanked those assembled for taking the time to be at this meeting and addressed the audience.

She opened her remarks with four words: “The deal is done.”

The deal is done? What deal?

I sat next to Michael Mayo, who as a journalist, one would think, would have had a heads-up if anyone had. But not even Michael had heard anything about the state’s plan.

“Allow me to explain,” Kramer continued, adding that although Broward County was slated to be one of the last counties in the state to be privatized, the secretary of the DCF had determined that due to unanticipated departmental budget cuts it was necessary to accelerate the plan. Further, it had been decided that it would be more expedient to merge Broward County with Miami-Dade County than to go through the time and expense of Broward’s establishing its own separate managing entity through a competitive bidding process.

As Kramer concluded her summary, a voice came from the audience: “It’s never going to happen.” Surprisingly, the spontaneous utterance was mine. To this day, I do not recall having that thought. Perhaps it was my way of restoring dignity and respect to a community whose dedication to social justice and people with mental illness in the criminal justice system was—and is—linked to our identity and culture as a court system and county. Broward County, whose mental health system has been underfunded since the 1960s, to its credit has never given up. From the federal class-action suit regarding South Florida State Hospital to the high-profile case of Aaron Wynn, which ignited a grand jury investigation, to Broward County’s Mental Health Court, it seems fair to say that Broward County’s relationship to its mental health and substance abuse service systems runs deep. In fairness to Kramer, she was only the messenger. She spoke professionally and did the best she could.

As tensions grew, the group of criminal justice stakeholders tried to process what they had heard. Several people asked questions—but there were no answers. If a merger was to occur, no details were known. Kramer was not able to answer questions. She tried to convey a positive tone but had scant information. She clearly believed what she had said—that the deal was done and was in the process of being implemented.

In hindsight, perhaps my comment about the plan could have been more artful. I should have said that the process by which the citizens of Broward County have been treated, as evidenced by DCF’s plan, was procedurally unsound. Further, it was unrealistic for the stakeholders in the room to accept this plan based upon the lack of the department’s transparency and the lack of any meaningful opportunity for them to provide input. Had there been more consideration for Broward County from a procedural justice perspective, perhaps conflict surrounding the state’s plan could have been avoided had the state been transparent and included Broward’s stakeholders in its privatization planning process. Why is this important?

Procedural justice is the driving force in how people determine the legitimacy of authority. According to legal theorist Lawrence B. Solum, there are four elements of procedural justice, which I will illustrate by applying to the mental health court process.¹¹ The first and second elements of the process are related and are intended to introduce participants to the court. (1) To convey the substance of the process by underscoring the voluntary nature of the court with a humanistic tone. (2) To actualize the process by engaging and introducing the court’s mission, goals, and values. This is the point where I express my support for the court participant and inform him or her about the court process and review due process rights and the voluntary nature of the court. (3) The integrity of process (an essential step) is to demonstrate that “fairness matters” because process is made up of rules and rules must be adhered to. (4) “The value of participation” is key to providing “voice and validation” so that a person perceives that he or she was “listened to” and the court’s outcome is perceived as fair. This, in my view, is where dignity and empathic listening are keenly important.¹²

In mental health court, when a person voluntarily chooses to participate in the court, it is my hope that he or she does so because all people should believe they will be treated with dignity and respect and because they trust that the court’s human rights mission of decriminalization and the promotion of mental health is legitimate.

Clearly, the lack of procedural justice in DCF’s rush to privatization was a problem.

Within a week, Michael Mayo’s column “Rushed Privatization Plan Will Harm Broward’s Mentally Ill” was published.¹³ Michael quoted Broward County’s public defender, Howard Finkelstein, who commented, “It’s going to make a bad system worse,” and would result in a loss of scarce mental health dollars, which would be diverted to the managing entity and hurt community providers.¹⁴ The controversial plan then caught the attention of Florida state senator Christopher L. Smith, who immediately convened a legislative hearing to find out why there had been no competitive bidding process for the managing entity. After several public forums, DCF secretary Wilkins reversed the plan and offered an “intent to negotiate” for Broward County to establish its own managing entity.

In October 2012, the Broward Behavioral Health Coalition was awarded the contract to manage the county’s mental health substance abuse services. Its responsibilities would include a broad range of administrative and management functions such as contract management, system planning, oversight and allocating residential and treatment beds.

The lingering concern for me as presiding judge of a mental health court was, How would privatization impact the court process? In time I would find out.

When Joelle Dylan first appeared in court, it was a difficult and emotional hearing. Joelle was twenty-two years old and had been diagnosed with bipolar disorder. She had been cycling in and out of psychiatric emergency rooms for the past several years and self-medicating with drugs. She had never been connected to a mental health center. Joelle had been charged with criminal mischief for allegedly spray-painting her neighbor’s mailbox. The arrest affidavit noted that Joelle told the police officer, “I thought the mailbox would look prettier if it matched the color of the house.” She painted it bright yellow.

As Joelle was led into the courtroom in handcuffs and shackles, I noticed her mother sitting in the front row, on the side closest to the jury box. I asked the deputy to please seat Joelle in the chair closest to her mother. Joelle was petite and appeared much younger than her chronological age. She looked dazed and tired. In any other venue, Joelle could easily have been mistaken for a young teenager.

I asked her mother to approach the bench.

When she did so, I said, “Can you take her home, Mrs. Dylan?”

“I can’t take her home, Judge,” she said in a manner that reflected a deep level of frustration and angst. “Joelle will not take her medicine. And she is out at all hours of the night. I am worried sick—I just can’t take it anymore!” After a brief pause, she added, “Joelle doesn’t comply with her treatment, and I don’t believe she ever will.”

I thought carefully about how to address Joelle’s mother. She appeared to be under extreme emotional distress.

“Mrs. Dylan,” I said, “we can’t give up on Joelle. I believe you are tired and afraid—which is more than understandable. Yet, if we don’t have hope, we are hopeless. And there’s no reason to give up on hope.”

“What can I do?” Mrs. Dylan cried. “She refuses treatment.”

“You know, Mrs. Dylan, there is a big difference between mental health treatment and engagement in treatment. In fact, Joelle has never been provided the services she needs to properly support her engagement in care. It’s not her fault,” I said.

Mrs. Dylan had been holding her arms tightly across her chest. Now she relaxed and unfolded her arms. She looked at her daughter, as she sat quietly in handcuffs several feet away from her. Mrs. Dylan’s anguish appeared to lessen, as she realized that perhaps she had expected too much of her daughter. There was no way Joelle’s mother could have known what Joelle’s needs were. If only a treatment provider had taken the time necessary to talk with Joelle and her mother to determine what type of supports Joelle would need, they would have had a guide to show them how to navigate the system and how to secure those services.

“Please, try not to blame Joelle,” I said. “She has not begun to engage in care, and we need to help her do that.”

I glanced at Janis and knew she had already established a plan to get Joelle out of jail and into a residential bed.

“Judge, let me work on this. I have a few ideas,” Janis said.

“What do you think, Joelle?” I asked. “Would you be willing to participate in a residential program to work on your health so you could feel better and enjoy your life?”

“Yes, I’m really tired of this, and I don’t want to be in jail anymore,” she said. “I want to participate in the court, and I will do whatever I need to do to be with my mother.”

“Janis will come over and talk to you further and develop a plan.”

As I prepared to call the next case, jail deputies led several male defendants into the courtroom. Each defendant wore a different colored jumpsuit: one gray, one blue, and one orange. The colors correlated to the jail site where each defendant was being housed. There was also one defendant in red. Red means that an inmate is under special precautions, a color commonly assigned to people with mental disabilities in the jail. Due to their preexisting disabilities, many individuals are unable to properly comply with instructions from a correction officer or are unable to manage their behaviors. According to the Broward County Sheriff’s Office, approximately 40 percent of the detainees in the Broward County jail are diagnosed with at least one major mental illness and are prescribed psychotropic medications.

I looked at Allen, my court deputy, but he was already one step ahead of me. He called for an armed deputy to ensure the safety and security of persons in the courtroom. As the lawyers scoured the printed court dockets to see who had yet to be called, the defendant in the red jumpsuit was becoming agitated.

“Judge, why am I here? I’m not crazy!”

“Sir,” I replied calmly, “I will be with you in one moment, please.”

“OK,” he said, as I located his paperwork.

His name was Raymond Collins. He had been arrested for allegedly causing a disturbance and for failing to leave the emergency room of a local hospital. I noticed that this was the fourth case referred to the court over the past several months that involved a hospital emergency room. It was a newly emerging pattern that I had begun to track informally since there seemed to be an uptick of incidents in emergency rooms leading to arrest.

“Mr. Collins, perhaps I am reading this arrest affidavit wrong, but were you arrested while trying to get medical attention at an emergency room?” I typically would not comment on the circumstances surrounding an arrest, but I felt it was important to understand why these arrests appear to be occurring with more frequency. The empathic tone of my voice seemed to take Raymond by surprise.

“Yes, Judge. I was trying to get a prescription for an inhaler because my property was stolen, and I need my medicine.” Mr. Collins was fifty-nine years old and homeless. As I reviewed his criminal history, I noticed that he had numerous arrests for low-level and quality-of-life offenses such as trespassing, urinating in public, disorderly intoxication, and panhandling. I am not sure why he was wearing a red jumpsuit or what had occurred in the jail system.

“So, what is happening, Mr. Collins?” I asked. “How can I help you?”

Mr. Collins told me that he was from New Jersey. He was a veteran. “I was trying to see a doctor to get my inhaler replaced because I suffer from asthma,” he said.

I explained to him why I thought his case had been referred to the mental health court: most likely the magistrate judge read the booking sheet and thought he needed assistance with services, particularly because the arrest involved a hospital.

Then, I counseled him about the use of the word “crazy.” It was a minor thing, and perhaps I should have simply let his remark go and moved on. But I couldn’t. It is my professional responsibility as a judge to create an atmosphere in my courtroom that is free of derogatory speech that is demeaning and in this situation could be viewed as stigmatizing. “Crazy” is such a word. The need to promote dignity necessitated me to say something about his use of the word “crazy.”

“You know, Mr. Collins,” I said, “I think you may understand that this division is a specialized mental health court and that there is a great deal of stigma and shame surrounding mental illness. And we do not want to use language that could cause people to feel badly about seeking mental health care.

“I’m sure you meant no harm, but for people affected by mental health conditions, that language could be hurtful,” I said. “You know, a mental illness is no different than any physical illness, such as asthma.”

“I’m sorry, Judge. I was upset,” Mr. Collins replied. He cast his eyes to the floor and seemed genuinely remorseful.

By the conclusion of the hearing, Janis had coordinated a bed for him at Broward Outreach Center in Pompano Beach. This homeless center, run by the Miami Rescue Mission, has its own on-site medical clinic, where Mr. Collins would be able to get medical assistance for his asthma and access other services. I entered an order to have the Broward County Sheriff’s Office transport Mr. Collins to the Broward Outreach Center.

Mr. Collins entered a plea of no contest to the charges against him, and I took judicial notice of his time in jail. As he walked out of the courtroom, he turned his head to look back at me and raised his shackled arms as high as he could in a gesture of appreciation.

Within a week, Joelle Dylan was back on the docket to discuss her residential program, answer any questions, and talk about her hopes for a successful and positive experience in what would mark the beginning of her journey to recovery and a new life.

“Judge,” Janis said, “I need to talk to you to the side. We have a problem. Joelle was rejected from the program,”

“What do you mean?” I asked. “Everything was confirmed.”

Janis informed me that she had just received an e-mail from the managing entity division, which oversees community bed allocation, stating that Joelle had been denied access to the community-based program she had been referred to.

“Why?” I asked. “For what reason would she be denied?”

Janis explained that DCF standardized procedures required that Joelle’s assigned community case manager go to the jail personally and speak to Joelle face-to-face to obtain her verbal assent that she wanted to attend the program.

“But Joelle clearly stated in court that she wanted to go to a program. Isn’t there anything you can do to get her into that program?” I asked.

“Joelle’s bed was given to the next person on the waiting list.” Janis sighed and paused before she said, “She lost it—the bed is gone.”

Joelle’s case had become a test of how the shift to privatization would impact the court’s processes and how beds would be allocated to our consumers. As a result of privatization, residential treatment beds were controlled by the Broward Behavioral Health Coalition, and as a result, the court’s diversionary process had been disrupted. A system called Level of Care Utilization System was creating new barriers in bed allocation that were preventing consumers like Joelle from getting the care they needed.

I took a brief recess and drafted an urgent e-mail to John Bryant, DCF assistant secretary for substance abuse and mental health. Bryant is a well-respected advocate for mental health and substance services and is supportive of the mental health court. I requested his immediate assistance to exclude the mental health court from this cumbersome and redundant process, which obviously was having an unintended negative impact on the court’s diversionary process.

Within twenty-four hours, I received a response from Valerie Allen, the DCF mental health supervisor. Valerie and I go back more years than I care to remember, when we sparred during my time working for the Advocacy Center for Persons with Disabilities. Valerie called a meeting for within the week to discuss issues affecting the court and ways to streamline DCF procedures. These meetings are often intense for me, primarily because I am highly protective of the integrity of the court process. Sylvia Quintana, executive director of the Broward Behavioral Health Coalition, was present, along with several coalition staff members, who were young and eager to learn about the high-profile case of Aaron Wynn, Howard’s letter to the grand jury, and how the court had been created.

At the meeting, after much banter, Valerie—who is always a strong mediator—offered suggestions that would provide the flexibility and autonomy the court needed to meet its diversionary goals. Janis would be given community case manager status, so that she could more easily make community placement referrals. This suggestion streamlined the process in terms of diversion from jail. No longer would it be necessary for community case managers to meet with individuals to verify what had already been determined through the court process. This simple change eliminated a critical barrier to jail diversion—and for this I was genuinely grateful. In the end, the ability to problem-solve is always about relationship and having the will to be flexible in the promotion of human rights, disability rights, and social integration.

Within weeks, Joelle returned to court with her case manager, Cynthia. Cynthia was extremely positive and had identified several of Joelle’s strengths, such as her politeness, her altruism (she enjoys helping the other residents), and her love of music. Joelle is making steady progress and is slowly adjusting to the therapy groups and being around other consumers. Apparently, Joelle had been isolated at home and was becoming more detached from her family and friends.

It was an excellent report. I particularly appreciated that the program was flexible and that it allowed Joelle to be social when she felt the need to be around other people. The fact that she was adjusting to her medication and participating in activities was great progress. All of the staff were very proud of her.

“Joelle,” I said, “I am so proud of you. In fact, we are all proud of you.”

Janis said to me, “I know we experienced a few hiccups getting Joelle into the program. But I wanted to let you know that the managing entity worked very hard to contact treatment providers and identified a bed not only for Joelle but for the other individual who was more or less ‘competing’ for the same slot.” Janis paused, before adding, “In this court we always talk about making lemonade from lemons. I believe this experience also helped me become more integrated within the DCF–managing entity sphere. Don’t forget I was employed with DCF for more than twenty years. So, it is a win-win for all of us.”

“I want to thank you,” said Joelle. “And my mother asked me to tell you hello.”

“Please tell your mother that I send my best,” I said. Then, remembering the frustration and the hopelessness written on the face of a parent who believed her child would never get any better, I knew I needed to say one more thing. Despite the lack of services, Joelle’s mother had held on to the hope the court had told her to have. And now, Joelle was getting better. I smiled and looked at Joelle, who stood before the bench with a positive future in front of her. “And please tell her that I am proud of her.”