February 5, 2009
Host: Ted Simons
Mental Health Audit
- A court-ordered audit reveals the private, for-profit company that has managed Maricopa County's behavioral health care system since 2007 has shown �a pattern of regression and significant declines in a number of areas.� The court-assigned monitor joins us to talk about the audit.
- Nancy Diggs - Court Monitor
Ted Simons: Hello and welcome to "Horizon." I'm Ted Simons. The price of comfort will soon go up if you fly U.S. Airways. The airline announced today that starting February 16th, it will charge $7 for what it calls a "power-nap-sack." The kit includes a blanket, neck pillow, eye shades, ear plugs and a $10 coupon off a purchase in the sky mall catalog. The airline says the fees are needed because of a downturn in travel caused by the recession. Over nearly three decades Arizona has failed to provide the level of services for people with serious mental illnesses as dictated by state law. A recent audit of behavioral health services in Maricopa County indicates the quality of care may be getting worse. More on the audit in a moment, but first, David Majure takes us to the State Capitol, where lawmakers gathered yesterday to learn about a lawsuit that continues to shape, and it continues to take shape Arizona's system of behavioral health care.
Woman in court: This is a history lesson. I would suspect that there are not eight people in this legislature that really understand the history of Arnold vs. Sarn.
David Majure: It's a lawsuit filed in 1981 as the nation and the state were moving people out of mental hospitals into community-based behavioral health treatments.
Charles “Chick” Arnold: In deed, I’m sort of the institutional memory revolving around this case. I was the guardian as the Maricopa County Public Fiduciary of 600 people with serious mental illness.
David Majure: As their guardian, Chick Arnold tried to help them obtain the community based mental health services that were mandated by state law.
Charles “Chick” Arnold: Gee, there were no services in place. And with that, I became one of the five named plaintiffs in the center for law in the public interest effort to fix that.
David Majure: The case went all the way to the Arizona Supreme Court, which in 1989 affirmed that the state and Maricopa County have a statutory obligation to provide a wide range of services for the seriously mentally ill.
Speaker in the court: Over the course of the lawsuit, as far as services, money that has gone to services has been close to $2.2 billion.
David Majure: Two decades and billions of dollars later, the lawsuit remains unresolved. Performance criteria required to end the lawsuit have not been met and the company that manages Maricopa County's mental health system keeps changing.
Doctor Richard Clarke: I'm Dr. Richard Clarke, the CEO for Magellan of Arizona.
David Majure: Magellan is the latest company selected as the Regional Behavioral Health Authority for Maricopa County. It is awarded a three year $1.5 billion contract in September of 2007.
Doctor Richard Clarke: And we do believe that significant gains have been made.
David Majure: But according to an audit conducted in 2008 by the court monitor assigned to the case, services are declining.
Doctor Richard Clarke: The court monitor compares the results of 2008 to 2006, which is a full year before Magellan even came into the picture and so if one compares from 2006 to 2008, you can see a tremendous decline, but if you take a look from 2007 forward, you notice that there's been a significant improvement on 71% of the indicators on the provided class, ranging from anywhere from 3% to 46% improvement in performance.
John Hokanson: The system really has degenerated quite badly actually since Magellan took over.
David Majure: As a Maricopa County resident with Bipolar Disorder, John Hokanson speaks from experience.
John Hokanson: I’ve had a difficult time getting services; I had to fight for pretty much everything that I have right now. I have had to fight to get the monthly doctor's appointments; I’ve had to fight to get into therapy.
David Majure: He even had to fight for a case manager.
John Hokanson: I went for two months without any contact at all from this case manager at all and I didn't receive any updates to my I.S.P., it’s called an Individual Service Plan, it’s supposed to list what services that the client needs and everything; it expired and they didn’t update it or anything.
David Majure: Hokanson was able to fight for his rights but he worries about people sicker than him, who can't.
John Hokanson: You know it's one thing, if you know you're being hurt by this and you don't -- and you don't know what to do, but there's people out there that don't even know they're getting hurt.
David Majure: Meanwhile, John has quietly taken on the role of advocate; emailing his lawmakers, attending meetings like this, watching, listening and waiting for the system to improve.
John Hokanson: We're going to have to do something else here, ok; just talk alone is not going to solve the problem.
Ted Simons: Joining me to talk about the latest audit of Maricopa County's mental health system is Court Monitor Nancy Diggs. She's a past Deputy Superintendent of the Arizona State Hospital and she has previous work experience with the Department of Health Services, and Comcare, a predecessor to Magellan. Thank you so much for joining us on "Horizon."
Nancy Diggs: Thank you for having me.
Ted Simons: You're the court monitor; what exactly does that mean? What do you do?
Nancy Diggs: Well the court monitor actually oversees the status of implementation against the court's orders. I actually report to Judge O'Connor, Karen O’Connor, who is the presiding judge in superior court and it's my duty to monitor the expectations in the court order and the court’s order and report to the court about the status of the class members in the case.
Ted Simons: And how do you go ahead and report your audit here? How do you audit who’s interviewed; how does that work out?
Nancy Diggs: Well we’ve actually--I've used Dr. José Ashford, he's my expert, out of A.S.U. School of Social Work and through a predefined process that's been agreed to by the health department, we randomly select -- this year we randomly selected 316 different class members that live in Maricopa County. And we used a pre-agreed to scientific protocol that involves visiting consumers, reviewing records. I just want to note that it's important to me that the system learns how to monitor itself so 88% of my auditors, this year, were actually staff members at Magellan or staff members at the health department. I do that to teach people how to monitor the system and to control the cost at the office of the monitor.
Ted Simons: With that in mind, what did the audit find?
Nancy Diggs: The audit findings were very disturbing to all of us. We found that there's not been progress in the system. There's a variety of standards that were required by the -- by agreement of the parties. And there's significant declines since the compliance in 2006. And more importantly, there has not been any significant gains in the last several years.
Ted Simons: We just heard from the Magellan fellow there and he was basically saying that the process -- the audit was looking more process as opposed to outcome. How do you respond?
Nancy Diggs: Well, one of the things that we actually do look at is there a treatment plan and those things, but most importantly, the most significant thing that the audit measures is exactly how is that individual doing in the community? Where are they living? What kind of services are they receiving? Are they working? Do they have something meaningful to do during the day? Do they have friends? Do they have a social life? And how are they doing in the recovery from mental illness? And all of those things are the kinds of outcomes that you would look for when measuring progress in -- and if people are getting services and are they helping them?
Ted Simons: And that Magellan fellow has a name, it's Dr. Clarke.
Nancy Diggs: Yes.
Ted Simons: And he also mentioned that you were looking too far back. You were looking back when value options was involved, as opposed to Magellan and if you had just looked at '07 to ‘08, you would see great improvements.
Nancy Diggs: I think the point of the audit, how I would respond to that, the purpose of the audit is not to measure the performance of either Magellan or the previous contractor. So in that sense, I'm not comparing their performance. What I am doing is measuring for the court how the defendants in the case are doing and how the consumers that are supposed to be served are doing in the system. And so that's how I would respond. And in some cases, there might have been one or two percentage points improvement since last year but the point is that, for example, 90% of the most ill people were supposed to have a well written treatment plan that describes the services and supports they needed and the audit results found that actually less than 15% of the people had a treatment plan. And so the audit also indicated of the non-party population, 80% of them were supposed to have their needs met according to their treatment plan and the audit found that less than, I think it was less than 15% of them actually were having their needs met. So I used the standards that are required by the court; that the parties have agreed to.
Ted Simons: Your report mentions that a complete overall is necessary. Why? What is wrong with the system now? Why were those results that you found -- why were they there if the system’s in place? What’s going on?
Nancy Diggs: We've had two different companies, since for, I think for the last nine years. Clearly things are not improving even though there's been additional funding over time. In fact, the services and the supports delivered to people are actually getting worse. And the bottom line is people with serious mental illness really depend on this system of care and they are really suffering right now. And I believe that through the leadership of the new governor, that the community can come together and with the stakeholders and really take a look at how the system is designed, are there fundamental flaws, and what needs to happen to improve the system so that people that really need the services are actually getting the services.
Ted Simons: All right; very good. Nancy, thank you so much for joining us. We really appreciate it.
Nancy Diggs: Thank you.
- In Arizona, judges on the state level and in our two most populous counties are not elected; they are chosen by a commission. Find out about the history and pros and cons of the system from Maricopa County Judicial Nominating Commissioner Doug Cole and attorney Len Munsil.
- Doug Cole - Maricopa County Judicial Nominating Commission
- Len Munsil - Founding President,Center for Arizona Policy
Ted Simons: Since 1974, many judges in Arizona have been picked by a system called Merit Selection. It’s a system that is envied by many other states. But the process is not without its critics. We'll hear from both sides on the issue, but first, Mike Sauceda tells us more about Merit Selection of judges.
Mike Sauceda: Before 1974, judges in Arizona were elected. But voters of Arizona changed the Constitution that year to a Merit Selection system for statewide judges and superior judges in Maricopa and Pima Counties. Former legislature, Pete Dunn, explains why the system was changed.
Pete Dunn: I think there was a recognition that there was a danger of the -- really corrupting influence of campaign contributions on judicial elections. Campaign contributions are fine for legislators and candidates for governor, but I think you want your judges to be impartial referees and not dependent on contributions from political parties.
Mike Sauceda: Superior court judges in smaller counties are still selected by election.
Pete Dunn: That was really a compromise but it was felt that in the smaller counties voters would know their judicial candidates, whereas, when you get into a county the size of Pima or Maricopa, you really can't know the candidates for judicial office.
Mike Sauceda: When a vacancy occurs, potential judges are nominated by one of three nominating commissions. One of which handles Supreme Court and State Appellate judges and two others that nominate Superior Court judges in Pima and Maricopa Counties.
Pete Dunn: The nominating commission interviews the candidates and sends three to five names to the Governor and both political parties have to be represented in those names and then the Governor chooses the judge from those people that have been submitted to the Governor.
Mike Sauceda: Unlike the federal system, the judges are not confirmed by the senate but the 15 members on each commission are, five of whom are lawyers.
Pete Dunn: They are nominated by, in some cases the Governor and in some cases by the Board of Supervisors and confirmed by the State Senate. They are Bipartisan they are approximately equal number of Democrats and Republicans. Diversity; the 1992 amendment, diversity was encouraged and there's a great deal of diversity on those commissions.
Mike Sauceda: In 1992, changes were made to Merit Selection.
Pete Dunn: There was a change to make the nominating commissions larger and to ensure that they were Bipartisan and that there were more non-lawyers than lawyer on the nominating commissions.
Mike Sauceda: The 1992 changes also required a periodic review of the judge's performance resulting in the judicial performance review; which surveys those involved in the court process, and makes recommendations on whether judges should be retained or not in upcoming elections.
Pete Dunn: Only two have been defeated since merit started but the unknown fact is that several judges have, when faced with bad J.P.R. scores, have chosen not to run. They've retired or resigned, so that number two is a little bit misleading.
Mike Sauceda: In the smaller counties, judges still run for office. Such as in the recent Pinal County election that resulted in Democrat, Brenda Oldham, beating Republican, April Elliot. Both talked about what it took to run for office.
Brenda Oldham: It's a grilling experience. It takes a lot of energy; it takes a lot of time. But it's also a really great experience because I am a people person. I love to talk to people. And I love getting out there and talking to members of my community.
April Elliot: If you want to keep this job, I mean, you have to get out there and campaign. That's an advantage my opponent has in that she's not required to be here Monday through Friday, 8:00 to 5:00 to serve the public, she can be out there doing it.
Mike Sauceda: Oldham talked about possible conflicts of interest resulting from having to get campaign donations.
Brenda Oldham: We’ve hit upon one of the difficulties in running for Judicial Office is the finance end of it. You have to avoid the impropriety of having any unethical issues and situations coming up.
Ted Simons: With me now to talk about the issue of Judicial Merit selection is Doug Cole, a member of the Maricopa County Judicial Nominating Commission, one of three commissions that nominate judges. Also here is Len Munsil, who has concerns about the system. Len is the founding president of the Center for Arizona Policy, a conservative think tank. He also was a gubernatorial candidate in 2006. Thank you both for joining us on "Horizon."
Doug Cole: Thank you.
Len Munsil: Thanks, Ted.
Ted Simons: Len, what is wrong with Merit Selection of judges?
Len Munsil: I think the main issue that many people have with Merit Selection is that the process itself is not really visible to the public. You have decisions on one of the coequal branches of government and a lot of made not only behind closed doors but they are made in a circumstance where you have an inordinate influence of lawyers and existing judges on the process of how judges are selected and so it's a fairly far removed in the minds of the public of what kind of judges they're getting and why.
Doug Cole: My response to that is your setup piece pointed out the commissions were expanded in the early '90s and now we have 10 public members, here in Maricopa County, that’s 2 from each supervisorial district. I represent district 1 and neither of those two commissioners can be of the same political party; I’m a Republican and my seatmate is an Independent. So we're the public voice, we're the public eyes in this whole process. And I can tell you, in the eight years I've been on the commission, we have -- we now have a website, the process is a lot more open, we're very careful what happens in session and all votes are taken in public and I'm a big advocate for continuing to open up the process because this is the people's process.
Ted Simons: The process, a lot more open; do you agree or do you think it could be more open?
Len Munsil: I think it's moving in the right direction and certainly, there are a lot of great people who give up a lot of time to go through the process of trying to evaluate candidates for judgeships, but there's a lot more that can be done and I've talked to a number of people who served on the commission in the last decade whose experience is that the influence of the attorneys on the commission, and in the past -- I don't think it's the case now -- but in the past, there have been justices, even the chief justice of the Supreme Court weighing in and lobbying and working to get certain candidates in place and that carries a lot of weight with the citizen members.
Doug Cole: That's not happening now. The Maricopa commission is chaired by Justice Michael Ryan, he acts more as an ex-officio chairman of the commission. He doesn't vote unless there's a tie. He's a big stickler on everything being done in the open. I think the commissions, because of outside groups now have put more of a focus on them, I think they're more visible and there's a higher understand in the public on how judges are selected here in and in Pima County.
Ted Simons: Is this a solution in search of a problem? Are things bad enough right now to where they need this kind of reform?
Len Munsil: I think there are many people who, like me, feel like over the last 30 or 40 years in the country, both the federal judiciary and at times the state judiciary have been used by activist judges who really are political ideologues, serving in positions of authority that don't like the decisions reached by the people's representatives and have decide they're going to overturn them not based on the Constitution or the law but based on their own personal desire of what they think the outcome should be. And those of us that have those types of concerns would like to see a process that's more open and in the light of day, people understand what are the judicial philosophies being presented, that are coming forth.
Ted Simons: Judicial activism seems to be at the bottom of this in a variety of ways. How do you see this?
Doug Cole: It depends upon what side of the fence you’re sitting on. There's Judicial Activism you like and there’s Judicial Activism that you don't like depends on your persuasion. We have a process here, and going back to the judicial performance review and every judge is rated and every citizen that votes for retention on the judges gets this in the mail. And I'm not -- haven't done a political science drill-down on various votes, but you can see, Ted, a correlation between low-rated judges in the amount of public votes they get in retention.
Len Munsil: I've heard the argument it depends on which side of the fence you're on, on judicial activism and I've heard this argument since the 1980s, the Judicial Activism has all been on the Liberal side. Overturning Conservative decisions made by legislative bodies. I challenge anyone to point me to examples of Conservative Judicial Activism. A court, for example, in Arizona saying we believe so strongly in Arizona's Constitutional Provision on gun ownership that every citizen must carry a gun now; we're mandating that. That's a Constitutional requirement, that would be Conservative Judicial Activism, but that's not what is occurring. And on issue after issue where you have an ideological, Liberal ideological bent, we've seen courts advance the Liberal agenda and overturn the will of the people really without any warrant or any basis in the Constitution.
Ted Simons: At the core of what I’m hearing here is -- am I hearing a distress of the judiciary?
Len Munsil: Well, here’s the thing; our system of government is based on a separation of powers and that requires accountability between the various branches of the government. I distrust government at every level if you put too much power in the hands of any one branch and when you set up the court with no accountability for judges that are in place and they have the ultimate deciding factor on every policy decision put before the people, then you're giving them authority that lends itself to abuse.
Doug Cole: Ted, the system that we have here in place is a model for the country. We meet very often in Maricopa County because we have 95 divisions. There's 95 superior court judges here in Maricopa County; down in Pima County I think there’s 23. So we're busy. We meet a lot and we have folks that visit regularly from all over the country and world. We had a Japanese delegation come in. We are looked to as a model; can it be improved? Yes and we have improved in very substantial ways since my tenure on the commission. Some of the items I mentioned earlier from web-based information now is available to the public and we -- we advertise we now see articles in the newspaper, which we didn't see in the past, that there are openings. But a big challenge here is getting people to apply. It truly has been a problem for the commission. Part of a commissioner, we're supposed to go out and help recruit candidates and we have two openings right now on Maricopa County Superior Court, we only had 45 applicants.
Ted Simons: I want to wrap it up quickly, but I know you like the federal model.
Len Munsil: Right.
Ted Simons: Talk about that and how that would apply in Arizona.
Len Munsil: Our founding fathers had a lot of wisdom, I think, when they said that the Executive Branch, the President appoints judges, the senate confirms them, that way you hold the political branches that are running for office accountable for the decisions they make and the kinds of judges they appoint. I’d like to see Arizona move in a direction of gubernatorial appointment, senate conformation because again, I think that brings into the light of day, when you have candidates for governor and state senate, the issue of what kind of judges we have is going to be an issue discussed politically. And I just want to say one more thing about accountability. We haven't had a single judge voted out on the retention elections in the last 30 years. Now, I've been voting in Arizona since 1982, I’ve never been part of an election where a judge was voted out. C.E.O.s lose their jobs, incumbent, President’s incumbent congressmen lose their jobs every election; but we've never had a bad judge in Arizona.
Ted Simons: Quickly, that doesn't sound like accountability, does it?
Doug Cole: But we have retention elections under the federal model, they're appointed for life.
Ted Simons: uh-hmm.
Doug Cole: So where --
Ted Simons: You would not go for that.
Len Munsil: I would argue that Arizona has a great history going back to statehood of fighting for the right of citizens to have direct involvement in judges. We fought a battle in state hood over whether we could recall judges and Arizona has a long heritage of that, so I think it's a good thing.
Ted Simons: Okay, we’re going to have to recall me if I don't stop the discussion right now because we are running out of time. Thank you for the discussion; great discussion and thank you so much for joining us. We have a couple of websites we've shown throughout the interview for the judicial nominating committee and judicial performance review. There they are. For more information on what we have just discussed there's a phone number and there's a website. So go to it. Thanks, guys.
Doug Cole and Len Munsil: Thank you.
Ted Simons: We'll look at why Maricopa County Sheriff Joe Arpaio is making headlines this week; including his new way to handle incarcerated undocumented migrants. That’s coming up Friday on the Journalist’s Roundtable on “Horizon”. That is it for now. I’m Ted Simons. Thanks so much for joining us; you have a great evening.
Operator: "Horizon" is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.
Operator: The "Horizon" segment on selecting judges is sponsored by the League of Women Voters, a non partisan political organization which encourages informed and active participation in government.