When mental health advocate wheels, governor deals (Part 1)

On May 17, the two-year stay of a 1981 court order in the Arnold v. Sarn case requiring Arizona to provide care and services for people with serious mental illness in Maricopa County was extended in an agreement signed by Gov. Jan K. Brewer, Will Humble, director of the Arizona Department of Health Services, Joseph Kanefield, attorney for the governor, Gregory Honig, attorney for the Arizona Department of Health Services, and Anne Ronan, the attorney representing the plaintiffs.

In order to pay for the services that are referred to in the May 17 agreement, which include crisis services, employment and housing assistance, case management, family and peer support, life skills training, and respite care and medication services, Governor Brewer and the legislature have put $39 million into the budget for the next fiscal year.

This agreement doesn’t conclude the Arnold v. Sarn lawsuit, but gives the parties two more years to build a framework and to see how the Affordable Care Act will contribute to expanding behavioral health care services, as it is expected to do. The reason the court order was stayed was that the state, simply, ran out of money. And with the stay came the demise of the office of the court monitor responsible for enforcing the court order.

Balanced against the huge cuts of the past two years, this agreement does not bring the funding to nearly to the level of the pre-stay days, but still, it does add $39 million. At the signing ceremony, Governor Brewer said the day was “momentous” and she commended Charles (Chick) Arnold, the original plaintiff. As the lawyer for the court monitor, he was very much involved with the lawsuit until it was stayed two years ago. He was back on May 17, standing beside the signers. “He has devoted his life to improving Arizona’s behavioral health system, and today’s accomplishment would not have been possible without his efforts,” said Brewer.

What she didn’t say was that up until the night before, there was no chance that Arnold would be there that day. Instead, he would have been trying to prevent the agreement, which still needs court approval, from being signed.

Timeline for negotiations

About a week before the signing ceremony, Arnold got a call from Anne Ronan saying the governor – which whom he has a good relationship – wanted him to support the agreement. “I said, ‘Let me look at it first,’” he said. He looked at it and he found something he could not support. The agreement as written would have provided a quality service review (QSR) process that would be conducted by the Arizona Department of Health Services itself – a classic case of the fox guarding the henhouse.

Here’s what happened next.

Monday, May 14: Arnold met with Ronan and Kanefield, Governor Brewer’s attorney, telling them that he would have to advocate against the agreement if the QSRs would be done by the state. “I said this would never sell in the community and I would have to advocate against it,” he said.

Tuesday, May 15: Kanefield called Arnold, who proposed that the QSR process be academic-based. In particular, he recommended that Arizona State University conduct it, but that wasn’t essential. “I was offering the notion of an external, objective, credible, academic review,” said Arnold. “Joe said those were good ideas, but it couldn’t be changed by Thursday.” Thursday was the day the press conference announcing the agreement was going to be. “I said, ‘Okay then, I can’t support it,’” said Arnold.

Wednesday, May 16: At 8:30 in the evening Arnold got a phone call from the governor’s chief of staff, asking what it would take to get his support. He told her. “She said, ‘Okay, we will redraft it.” And by 10:30 that night, it was done.

Thursday May 17: Before the signing, the language was worked out that QSRs would be independent. He had wanted something more specific – “academically based with experience in behavioral health” – but he agreed “because they embraced the external independent party,” he said.

Goal: "independent, credible evaluation"

So now, Arnold is back in the process. “I’m going from the bottom up, working with Arizona State University people.” In addition, he proposes to include in the RFP for the new contract – Magellan’s is coming to a close – that the bidder would have to use ASU to do the QSRs and would pay them out of the contract. He gave the proposal to the state at the press conference. “Next week we’ll talk to the lawyers and the plaintiffs about this,” he said.

Why Ronan accepted the terms – the state conducting QSR on itself – is not clear, but she may have felt pressure from the state. Arizona has a threat that it can use – and did at the time of the stay – of repealing the statute that is the grounds for the lawsuit. And there was the $39 million.

“This agreement is intended to push the can down the road another year or two,” said Arnold. There is a lot of wiggle room for the state, with terminology like “best efforts” all over it. It did not go near to defining exit criteria. “During this time I see this as an opportunity get some independent credible evaluation back in the system,” said Arnold. “The governor thinks I’m important to this,” he said. “I’ve been met with nothing but positive response in the community when people recognize that the previous iteration said that DHS would be in charge of the review.”

While there are lawyers across the country who advocate well for the mentally ill, there are few – if any – who are mainly private practice lawyers, like Arnold, and do this. “I’m glad they were willing to make this last-minute compromise,” he said. “Since 1991 my role was lawyer for the court monitor, and two years ago they got rid of the court monitor. But I’m still Arnold and I’m still the main plaintiff.”

For the agreement, go to https://www.azdhs.gov/bhs/pdf/ArnoldSarnAgreement_05-17-12.pdf

Continue to Part 2 of the story.