County Administrator: "The system is broken"
An illuminating discussion about Section 730 forensic hospitalizations
On January 17th, Supervisor Bill Namestnik (Hopewell) brought up his concerns surrounding the expense of Section 730 forensic hospitalizations and asked the County to take action to lower their financial burden. The discussion that ensured was revealing. Here is an overview of what was discussed.
Section 730 refers to Article 730 of New York State Criminal Procedure Law (CPL), titled “Mental Disease or Defect Excluding Fitness to Proceed.”
The Problem: 730 Hospitalizations, restorative psychiatric hospital stays with the aim of making individuals competent to stand trial, are costing the County $1,400 - $1,600 per day per hospitalized individual. According to Supervisor Namestnik, forensic hospitalizations for just five individuals cost the County $1.2 million last year. The County is mandated (by the State) to provide this service to individuals facing felony charges. Until a couple of years ago, according to Namestnik, New York State assisted counties by paying 50% of this cost, but now Counties must foot the entire bill. A small handful of individuals could cost the County millions in unforeseen expenditures. How can the cost be reduced?
Work Toward a Solution: Counties across New York State have started talking seriously about this problem, which is significant for all suburban and rural counties, according to County Administrator Chris DeBolt, whose solution centers on decreasing the number of 730 hospitalizations. The best options, he said, are to educate judges and magistrates (who sometimes order a 730 evaluation in an attempt to get someone medical treatment — even though treatment is not provided under Section 730 — confusing, I know!), working with prosecutors to drop felony charges where possible and appropriate, and creating diversionary programs.
But wait…! Indigent Defense: Indigent defense lawyers, who defend individuals who cannot afford legal representation, are getting their first raise since 2004. They’ve been getting paid $75/hour since then, and they are expected to be bumped up to $150/hour this year. Whereas Section 730 hospitalizations are costing the County $1.2 million, this increase in layers’ salaries is expected to cost the County $2.5 million. If Counties have to ask the State for help paying for something, it will likely be indigent defense salaries, not Section 730 hospitalizations.
Highlights:
Sup. Namestnik urged haste out of a suspicion that the State will mandate its own plan and erect “barriers” to change
“The hospital rates, they’re set by the Department of Health, which is its own behemoth. And, if you can find somebody who can speak to you these days about rate-setting at DOH, you’ve performed a miracle, because they’re unlisted!” (Eileen Tiberio, Dept. of Social Services)
New York State entities are fearful of opposing the State because it is widely understood that the State will retaliate: “You didn’t like this? Try this!” (Eileen Tiberio)
County Administrator Chris DeBolt: “The system is broken.”
Watch my edit of the discussion here:
Full Rundown:
Supervisor Namestnik (Hopewell) spoke before HHS about the significant costs of Section 730 forensic hospitalizations, noting that last August, the budget had to be increased because of soaring costs.
“The County would be expending about $1.2 million dollars — all county cost” to pay for forensic hospitalizations for 4-5 people, he said. New York State used to cover 50% of the costs associated with these hospitalizations, but years ago, it stopped contributing. These costs do not represent a “full range of care,” but only the care required to become competent to stand trial.
“That’s a pretty costly means of care, at about $1,400 - $1,600 a day,” said Namestnik, who pointed out that at this rate, just a handful of new individuals requiring this care could cost the County dearly.
“Especially if they’re not getting full care in the psychiatric hospitals, is there an alternative delivery system that could be developed, or maybe ones that aren’t being pursued, or things like that, that we could still get the person to become competent to stand trial, but at a much lower cost?” he asked.
Namestnik is hopeful that the County can find a way to provide these services at a reduced cost. He expressed a desire to get a plan together before the State Senate does, since the State tends to erect “barriers” to prevent local governments from doing things their own way — especially when it comes to healthcare.
“…Determine what they want to do, etc., they’ll put barriers in the way if they don’t want things to be changed… In my previous work, we saw it all the time in healthcare.” -Supervisor Namestnik
In the course of his preliminary research, Namestnik also discovered that the County is not directly paying hospitals and the State for services. Rather, the County pays the State Office of Mental Health (OMH), which then pays the hospitals. Namestnik urged the Health and Human Services Committee to try to obtain itemized (and anonymized) bills for these hospitalizations in order to understand whether or not the County is paying full price for services. (Namestnik specifically declined to call it “price gouging.”) “The hospitals have master charge schedules, and so they have to be able to show their charges,” he said, adding: “Just want to get more information, if we can.”
County Administrator Chris DeBolt said that supporting these costs has been a struggle for “all of the counties, especially the suburban and the rural counties… even with the 50% cost share.”
“This is one of those few things where we have zero control. It is a commitment made by a magistrate or a judge,” continued DeBolt. “There’s no way to budget it.”
“Once somebody gets into a 730,” said DeBolt, “it’s a back box,” with individuals being whisked away to Elmira or Rochester for some kind of restorative treatment (which does not address anything other than readiness to stand trial) until they are deemed able to stand trial.
DeBolt then emphasized the need to educate members of the judiciary about the nature of a 730, emphasizing that 730 is not treatment — it is restorative.
“730 is not treatment, so some of what we’re running into is, you get a magistrate in particular who has somebody in front of them who is clearly experiencing a mental health crisis, and they think, ‘Man, I need to get this person help,’” said DeBolt. “This [730] is a tool in my toolbox. I’ll order a 730 evaluation. We’ll get them some help.’ It’s not help. They do not get treatment. They do not get better. It is restorative. And the goal of restoration is just to get them over the threshold of being competent to understand the proceedings against them. It is a very low bar.”
730 only comes into play when there are felony charges pending, so, according to DeBolt, the County is working with its prosecutors “to say, ‘let’s take the felony off the table.’” He noted that those conversations “have been productive,” but “there are going to be some individuals where 730 is needed.”
It might be possible to get back the 50% price sharing agreement (since the State has gotten a new budget director), but no one is holding their breath. Namestnik argued for a coordinated, state-wide lobbying effort by counties, since if one entity were to be singled out by the State, “then other kinds of things happen within their entities.”
“I’ve seen other things change in healthcare, when associations and stuff got together, when entities got together, and basically applied pressure,” said Namestnik. “But I know in New York State, a lot of organizations don’t like to do that because if they get singled out by the State, then other kinds of things happen within their entities.”
“You didn’t like this? Try this!” quipped Tiberio, probably from personal experience.
“730 is a symptom, much like Eileen’s hard-to-place kids, of a broken system,” said DeBolt to a low chorus of voices agreeing with him. “How do we stop trying to put band-aids on these gunshot wounds and saying, ‘Oh my god, we’ve got somebody in Rochester Psych for 11 months.’ It’s because there isn’t an appropriate setting for that person, right? So, I think there’s value in us collectively, this committee, and then also regionally and as a state, having those discussions about ‘the system is broken.’ And these pressure points of the kids that we’ve had bounce around between emergency rooms, or when we covered for Wyoming County demand in emergency room[s], right? These are symptoms of a broken system. How do we have the discussion about what the system needs to be? The unfortunate part to that is those discussions are not quick.”
Dr. Jessica Mitchell, Director of Mental Health, voiced her appreciation for DeBolt’s depth of understanding of her department’s troubles and said that, since the State is not likely to help with the costs of 730, the best option her department has is to focus on diversion, prevention and education. Since Covid, however, mental health problems have surged.
According to Mitchell, her department’s efforts have been focused on creating “processes and systems… to divert those folks into other programs when possible,” who also said that her contacts informed her that “it’s always been written in such a way that it’s always been county responsibility to pay 100% of the forensic hospitalization costs,” and concluded, “I think that’s the position of the State: that it’s supposed to be this way, statutorily.”
“I have no problem trying to advocate for [the State continuing to pay 50%],” said Mitchell, “but I think where we’re going to have more impact is trying to kind of stay the course with educating, as much as possible, our judges and magistrates and our attorneys on the 730 process and then trying to do what we’re doing now, and continue to create diversion programs.”
“When you’re talking about rates, you’re talking, then, about the Department of Health setting those rates,” said Tiberio. “The hospital rates, they’re set by the Department of Health, which is its own behemoth. And, if you can find somebody who can speak to you these days about rate-setting at DOH, you’ve performed a miracle, because they’re unlisted!”
“I think that this committee needs to give the County Administrator some guidance of how we follow through on what needs to happen,” said Supervisor Todd Campbell (West Bloomfield), trying to rally the committee to develop a plan of action.
DeBolt did not recommend pursuing an itemized bill from service providers, since the charges are based on a flat, daily rate that is pre-determined almost entirely by the NYS DOH; the bill would probably not reveal much, and the rates are non-negotiable. He also said that he is speaking with other counties about this issue. Although it may be a very complex process, he said he would not oppose efforts to look into alternative treatment options.
There’s also the looming issue of the 18B panel rate to consider. The 18B panel is made up of private attorneys who voluntarily take on indigent defense cases that the Public Defender’s office cannot handle due to either a lack of manpower or a conflict of interest. Counties are required to provide legal defense to folks who are indigent. The 18B panel, also known as the Assigned Counsel Plan, was established in 1966.
18B attorneys have been making $75/hour since 2004. The State is considering raising this amount to $150/hour, which would increase Ontario’s costs by about $2.5 million. Realistically, there is pretty much no way that New York is going to agree to resume paying 50% of the costs for 730 hospitalizations and help pay for the increase in indigent defense costs. According to DeBolt, it will more likely be one or the other. This means that the County is going to have to carefully consider what would benefit their bottom line more — and it’s probably going to be indigent defense.
The full HHS committee meeting can be downloaded and watched here:
For further reading, check out:
https://ww2.nycourts.gov/rules/chiefadmin/111.shtml
https://ypdcrime.com/cpl/article730.php
https://www.manhattan-institute.org/deinstitutionalization-mental-illness-new-york-state-city
Umm, has anyone been in contact with Senator Samra Brouk's office? She is the Chair of the NY Senate Mental Health Committee. AND, until this past January, she represented the western side of Ontario County when it was part of Senate-55. While she may not currently represent Ontario, she certainly has the legislative influence to look into the wider problem of Section 730 costs, pricing, overall mental health service delivery challenges and working through the state executive branch bureaucracy.