Wednesday, November 28, 2007

THE SYSTEM: How The Commission of DD/MH/SA, the LME CFAC's, and OAH are paper tigers w/ no authority to address LMEor consumer complaints

Well, this pretty much sums up Madame Defarge's work up to this point. I've documented how the system does not work and the next step appears to be a class action lawsuit.

This is how The Commission 'works'; this important commission, inhabited by people appointed by the governor and the state legislature, as stated by the Chairman, attorney Pender McElroy, is only advisory.

(November, 2007)

Dr. Hammond,

I am responding to the specific numbered inquiries at the end of your email of November 21, 2007.

(1) The Commission for MH/DD/SA Services has no jurisdiction over complaints processed through the Office of Administrative Hearings. Our statutory mandate is make and amend rules with regard to MH/DD/SA services in North Carolina and to serve in an advisory capacity to the Secretary of HHS. The Secretary is given statutory authority to make rules in certain areas. Our Commission has no ability to impact what goes on at OAH. Incidentally, please do not confuse our Commission with the Rules Review Commission (RRC). The RRC reviews rules proposed by all state governmental commissions and agencies for compliance with their respective statutory authority and for clarity.

(2) The legislature is the source of empowering CFACs. Again, the Commission for MH/DD/SA Services has not been given rulemaking authority with regard to how CFACs are formed and operated.

(3) Members of our Commission are appointed by the Governor, the state Senate and the state House. We have no authority over appointments.

(4) Please see No. 1 above.

(5) Please see No. 3 above.

In further response, you may know that in some states, there is a commission which is granted significant authority with regard to policy and oversight of mental health programs. North Carolina is not one of those states. In our state, the authority to set policy and to oversee the mental health programs and services is vested in the Secretary of Health and Human Services and is delegated to the Division of MH/DD/SA Services. Our Commission makes rules within the authority granted it by the legislature, and we give the Secretary our advice from time to time.

All of our Commission members have a keen interest in the programs and services in our state and how they are delivered. Our number one priority is consumer care. Within our authority, we believe we have a positive impact on delivery of those programs and services. We have consumers and family members of consumers on our Commission and on our two committees. We are open to and do hear all points of view on rules that are before us - including consumers, family members and public and private providers.

North Carolina has suffered from an underfunding of these programs and services for many years. If we can find the political will in this state to come closer to properly funding programs and services, many of the problems you recount would not exist.

Thank you for your interest in our work.

Pender McElroy

This is how the (Consumer and Family Advisory Committee) CFAC's are supposed to work: the CFAC's were written into law by the state legislature in order to provide a sounding board for consumers, providers, and citizens who wanted to bring issues of general importance before the LME:

"§ 122C‑170. Local Consumer and Family Advisory Committees.
(a) Area authorities and county programs shall establish committees made up of consumers and family members to be known as Consumer and Family Advisory Committees (CFACS). A local CFAC shall be a self‑governing and a self‑directed organization that advises the area authority or county program in its catchment area on the planning and management of the local public mental health, developmental disabilities, and substance abuse services system.
Each CFAC shall adopt bylaws to govern the selection and appointment of its members, their terms of service, the number of members, and other procedural matters. At the request of either the CFAC or the governing board of the area authority or county program, the CFAC and the governing board shall execute an agreement that identifies the roles and responsibilities of each party, channels of communication between the parties, and a process for resolving disputes between the parties.
(b) Each of the disability groups shall be equally represented on the CFAC, and the CFAC shall reflect as closely as possible the racial and ethnic composition of the catchment area. The terms of members shall be three years, and no member may serve more than two consecutive terms. The CFAC shall be composed exclusively of:
(1) Adult consumers of mental health, developmental disabilities, and substance abuse services.
(2) Family members of consumers of mental health, developmental disabilities, and substance abuse services.
(c) The CFAC shall undertake all of the following:
(1) Review, comment on, and monitor the implementation of the local business plan.
(2) Identify service gaps and underserved populations.
(3) Make recommendations regarding the service array and monitor the development of additional services.
(4) Review and comment on the area authority or county program budget.
(5) Participate in all quality improvement measures and performance indicators.
(6) Submit to the State Consumer and Family Advisory Committee findings and recommendations regarding ways to improve the delivery of mental health, developmental disabilities, and substance abuse services.
(d) The director of the area authority or county program shall provide sufficient staff to assist the CFAC in implementing its duties under subsection (c) of this section. The assistance shall include data for the identification of service gaps and underserved populations, training to review and comment on business plans and budgets, procedures to allow participation in quality monitoring, and technical advice on rules of procedure and applicable laws.

In actuality, this is how the CFAC functions, bearing in mind that as associated with thet original intent of the NC Mental Health Reform law, there were not in existence anything like a CFAC. The following is from a member of a local CFAC:

<> wrote:

What I sent was the most recent statute. It was passed as session law 142 in 2006 and is contained in present General Statute 122C as section 170 (NC GS 122C-170). It actually was not a change in the law as CFAC's were not included in the General Statutes previously. The best I can remember is that they were set up under the MH/DD/SAS Division's state plan. So previously, they were not required by law. Now they are, and as the law states "A local CFAC shall be a self‑governing and a self‑directed organization that advises the area authority or county program in its catchment area on the planning and management of the local public mental health, developmental disabilities, and substance abuse services system." To me, "self -governing and self-directed organization" means just that--- the LME Board, LME Director, or other outside entity do not tell the CFAC who to have as members unless the CFAC agrees to that. I think that most, if not all, CFAC members originally were appointed and/or approved by the LME boards, hence if the LME Board or Director wanted to remove a member or the whole group they could and, in at least one case, did so.

There are no commission rules that cover CFAC, only GS 122C-170. Hope this helps. 2 of the CFAC's, the only CFAC's in western NC associated with Western Highlands LME and Smoky Mountain Center LME-----covering one-fifth of the counties in NC.

And this is how Office of Administrative Hearings (OAH) is supposed to work & does work w/ the testimony of Diane Bauknight who has interfaced w/ OAH re: a family member:

The Office of Administrative Hearings is an independent state agency which provides impartial Administrative Law Judges to conduct fair and prompt hearings for persons affected by state agency actions. The Office of Administrative Hearings serves as a quasi-judicial tribunal for the expedient, independent and impartial adjudication of contested cases. Its mission is to provide a neutral forum for handling administrative hearings for certain state agencies, with respect for the dignity of individuals and their due process rights.

How it actually works:

After you go through the hearing and a decision is made by the judge, you may be pleased to learn that the judge agrees with YOU. Don't get too excited. The decision then goes back to the very agency you filed the complaint on. With mental health, this is Mike Moseley from DMH He can DISAGREE WITH THE DECISION and elect to do nothing to rectify the problem. The very agency you have filed the complaint regarding makes the final decision. Remember, this is a quasi-court. From the OAH website:

When the Administrative Law Judge issues a decision in your case, the case then goes to the agency or a commission for review. The parties will have an opportunity to file exceptions to the Administrative Law Judge decision with the agency or commission. This procedure will be set out at the end of the decision. The agency or commission must follow certain procedures when reviewing the judge's decision, and may reverse it only if it can demonstrate that the decision is clearly contrary to the preponderance of admissible evidence in the record. Once the agency has issued its final decision, you may ask for judicial review in Superior Court. Your right to judicial review is set out in North Carolina General Statute 150B, Article 4.


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