A dozen years after the Department of Justice first sent Mississippi a letter detailing shortcomings in its mental health system, the state may have finally beaten the federal agency.

A federal appeals court ruled Tuesday that a district judge erred in determining that the Mississippi mental health system violated the civil rights of adults with serious mental illness and in imposing a remedial order that required the state to expand a range of services, from crisis response to supported housing.

The Department of Justice sued the state in 2016, arguing the failure to provide mental health services that people could access in their communities resulted in them being involuntarily committed to state hospitals for treatment over and over again. U.S. District Judge Carlton Reeves sided with the DOJ in 2019, and in 2021 approved the remedial order and appointed a monitor to evaluate the state’s compliance.

The conservative three-judge panel at the United States 5^th Circuit Court of Appeals overturned all of that. The panel found that the DOJ’s claim that adults with serious mental illness in Mississippi were “at risk” of institutionalization was not sufficient to prove discrimination under the Americans with Disabilities Act.

“The possibility that some un-named individual with serious mental illness or all such people in Mississippi could be unjustifiably institutionalized in the future does not give rise to a cognizable claim under Title II [of the Americans with Disabilities Act],” Judge Edith Jones wrote for the panel. “Nor does such a vague and standardless theory license courts under the ADA to rework an entire state’s mental health system.”

In a statement, Wendy Bailey, executive director of the Department of Mental Health, said the agency would continue working to expand community services and decrease hospitalizations.

She said that over the last decade, the department has shifted legislative funding from the state hospitals to the community mental health centers. The state’s 11 regional centers are supposed to provide routine therapy and medication as well as intensive outpatient services for people with very serious mental illness. They also operate crisis stabilization units that can provide short-term inpatient treatment instead of state hospitals.

The department plans to use federal American Rescue Plan Act funds to continue expanding services. All of those funds must be spent by the end of 2026.

Bailey also said the department would continue to share data on the new services, which had been required by the remedial order.

A spokesperson for the Department of Justice declined to comment. It’s unclear whether the agency will appeal the decision.

Megan Schuller, legal director at the Bazelon Center for Mental Health Law, said other federal appeals courts have agreed that people who are “at risk” of unnecessary institutionalization can bring a claim under the ADA (the Fifth Circuit panel also cited those decisions in a footnote).

“It’s sort of a perverse approach, to say that… if you know that you are at serious risk of institutionalization, that you can’t challenge that until you’re already institutionalized and have suffered the harm,” she said of the Fifth Circuit panel’s ruling.

Are community services available?

In recent years, the state rolled out additional mobile crisis services and intensive treatment teams across the state. These services are run by the community mental health centers, which are certified by DMH but operate independently.

The most recent report by the court-appointed independent monitor, Michael Hogan, concluded that “foundational elements” like funding of services and data reporting were in place, but people were not always able to access care when they needed it and some still wait in jail without charges for treatment.

“The structural aspects of change have been addressed, but the system is not yet working for all people the way it should,” Hogan wrote.

Some of the data DMH has gathered so far indicates wide variance in services across the community mental health centers.

For example, some of the intensive treatment teams served fewer than half the number of clients they had capacity to treat in the first three quarters of fiscal year 2023, according to data Mississippi Today obtained through a public records request. One with the staff to serve 90 people actually treated just 36.

The services are supposed to help people access treatment so they don’t need to be hospitalized through the civil commitment process.

A recent Mississippi Today/ProPublica investigation found that from 2019 through 2022, at least 2,000 people were jailed without charges while they awaited evaluation and treatment through the state’s civil commitment process. Local chancery court officials and law enforcement said they wanted to place those people in crisis stabilization units for treatment, but that the facilities are often full or reject people because they are too “violent,” have a medical issue or need a higher level of care.

The state has expanded Crisis Stabilization Unit beds from 128 in 2018 to 180 today, with plans to open more.

Adams County Sheriff Travis Patten, who testified during the 2019 trial, said the CSU that opened in his area in 2021 hasn’t reduced the number of people held in his jail during the civil commitment process because the facility refused to admit them except in rare circumstances.

In late August, Lacey Handjis, a 37-year-old mother, died in Patten’s jail while detained there – with no criminal charges – during civil commitment proceedings. Her death is under investigation by the Mississippi Bureau of Investigation.

Patten said the Fifth Circuit ruling was “disheartening.”

“I’m not pointing the finger at anyone saying it’s their fault, but I am saying that you are judged by how you treat the least of them, and this state can do a lot better in terms of the treatment that is offered and supplied to our mental health consumers,” he said.

Advocates in Mississippi expressed disappointment with the ruling.

Polly Tribble, executive director of Disability Rights Mississippi – the state’s protection and advocacy agency for people with disabilities – said in a statement that Mississippians with mental illness are still unnecessarily institutionalized.

“If Mississippi was making improvements to its mental healthcare system, as the state has claimed, in conjunction with the order, why did the state feel the need to appeal?” she said. “Shouldn’t it be everyone’s hope that people with mental illness are receiving the care they need in the best environment for positive outcomes, no matter who is dictating it?”

Melody Worsham, a certified peer support specialist who lives with a mental illness and testified at the 2019 trial, said she worries that without federal oversight, the Legislature won’t be willing to continue funding expanded mental health services.

“My educated gut right now talking to you is that that’s what they’re gonna do in the Legislature: ‘We don’t have to do this anymore,’” she said. “‘The court case isn’t here anymore, so we can do whatever we want. I don’t want to fund that anymore. We’re just going to reduce the budget and you’ll just have to figure it out.’”

National implications?

The Department of Justice suit in Mississippi was one of dozens of actions the agency has taken to enforce the “integration mandate” of the ADA established by the U.S. Supreme Court in Olmstead v. L.C. In that case, the nation’s highest court ruled that institutionalizing people and depriving them of the chance to live in their communities constitutes discrimination. The Justice Department has relied on that precedent to sue states to force them to provide community services for people with mental illness.

At the Fifth Circuit, Mississippi argued that the remedial order “raises fundamental federalism problems by permitting the district court and the United States to micromanage a State’s mental-health system.”

Mississippi Department of Mental Health Board Chairman Stewart Rutledge said in a statement that those lawsuits had overstepped.

“Mississippi chose to fight,” he said. “And we fought for our citizens who desperately need mental health services. Conversely, the US Department of Justice spent the last twenty years bleeding mental health systems nationwide in bare pursuit of a win. Mississippi took a huge risk standing up to this bullying, but with this victory, Mississippi – and the rest of the states – can put their full resources back toward serving our fellow citizens in need.”

The Attorney General’s Office, which argued the case at the Fifth Circuit, said the lower court’s ruling “gave the federal government the ability to dictate the way Mississippi provides mental healthcare to its citizens” and cheered its overturning.

Joy Hogge, executive director of Families As Allies, pointed out that the district court’s requirements for the Department of Mental Health were substantially similar to what the department proposed. The state’s response to the lawsuit “was about Mississippi making it clear that the federal government can’t tell it what to do,” she said.

“That being said, there are more services in place than there were, and DMH has set up a system to monitor them,” she said. “I hope all that continues.”

Schuller, the legal director for the Bazelon Center, pointed out that the ruling is controlling only in the Fifth Circuit.

The Department of Justice could request a rehearing by all the judges of the Fifth Circuit.

It could appeal to the United States Supreme Court, but a loss there could have major ramifications for the enforcement of the ADA around the country.

“There’s a danger in any litigation and I would certainly say looking at the court right now, disability rights advocates and Olmstead litigators would oppose DOJ appealing that to the Supreme Court,” Schuller said. “I would certainly hope that they would not.”

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.