Massachusetts high court upholds privatization plan

By Janine Weisman
February 1st, 2017

A recent Massachusetts Supreme Judicial Court decision clears the way for replacing the last state-run mental health crisis teams with staff employed by two private vendor human service agencies, a move projected to save the state more than $7 million.

On Dec. 9, 2016, the state’s high court upheld State Auditor Suzanne Bump’s March 2016 approval of a privatization plan for emergency mental health services in southeastern Massachusetts.

Three unions – Service Employees International Union, Local 509, the Massachusetts Nurses Association, and the American Federation of State, County and Municipal Employees, Council 93 – challenged Bump’s decision on the grounds that proper procedures for initiating the bidding process to enter a privatization contract were not followed.

The court’s ruling allows the state Department of Mental Health to authorize the Massachusetts Behavioral Health Partnership to pursue a contract with Bay Cove Human Services Inc. and Community Counseling of Bristol County to provide services for more than 70 communities including and surrounding Brockton, Fall River, Taunton, Attleboro, Cape Cod and the Islands.

DMH already has a contract with MBHP through June 30, 2017, for the management of 24-hour emergency services programs (ESP) in the Metro Boston, Western, Central and Northeast regions of the state.

In 2015, DMH amended the contract to allow MBHP to privatize ESP in the Southeast region. After seeking interested bidders, MBHP ultimately recommended Bay Cove Human Services Inc. and Community Counseling of Bristol County to provide services in the Southeast region.

A financial analysis in Bump’s report projected DMH’s continued ESP operation in southeastern Massachusetts would cost $14.9 million, compared to $7.9 million under proposed contracts with the two agencies.

The plan would reduce Brockton-based staff from about 35 full time positions to 28 and Norton staff from 41 to 28. Staffing at Fall River’s Corrigan Mental Health Center would decrease from 36 to 26 but Cape staff would go from 22 to 26.

Community Counseling of Bristol County President/CEO Philip Shea, MS, MBA, said his agency would hire 50 to 60 positions for Norton and Brockton, ranging from master’s and doctoral level clinicians, physicians, R.N.s, peer support specialists and mental health technicians.

“We know there are many good staff that work there and we’re eager to meet with them and recruit them to come join us in delivering these critical services,” Shea said in mid-December shortly before jobs were to be posted on the agency’s Web site.

SEIU Local 509 President Susan Tousignant said the court’s decision will jeopardize critical care in the region. The union represents more than 100 DMH clinicians, family partners and peer specialists affected by the ruling.

“In deferring to the State Auditor’s illogical decision to allow cuts to vital services, the Supreme Judicial Court has played an unfortunate role in endangering the lives of thousands of children and adults throughout Southeastern Massachusetts, Cape Cod and the Islands,” Tousignant said in a statement.

Twelve affected MNA members working out of Brockton and Norton will have access to the contract layoff procedure, which gives each rights to fill another position, according to David Schildmeier, MNA director of public communications.

“Of course, we think this is a bad decision. Privatization of state services has never been a positive outcome for caregivers (obviously) and especially for patients,” Schildmeier wrote via email.

“The pay and benefits under private vendors never matches that of those in the public sector, because they have no protected voice and no right to advocate for fair wages and benefits or to have an organized voice and protected voice in fighting for better care and practice conditions. This often results in high turnover of staff, which is bad for clients.”

The unions argued that the auditor did not take into account the cost of retraining transferred employees who moved into different jobs on the basis of seniority or a process commonly known as bumping. But the court declared that retraining costs did not equal or outweigh the $7 million in savings the auditor found would result from privatizing the jobs.

The unions also contended that the proposed privatization would diminish the quality of care by failing to provide services to patients with commercial health insurance, but the court said the auditor acted reasonably by noting the proposal required care for all individuals regardless of insurance coverage.

The unions had also argued that the privatization proposal would result in fewer licensed clinicians serving patients and lead to a harmful reduction in staffing.

“The Auditor’s determination addressed both of these contentions by stating that the model contract requires ESP providers to meet the same standards of care currently provided by DMH’s State employees,” the court decision states.

The court also rejected the unions’ argument that the reduction of 24/7 staff availability at community-based centers to 8 a.m. to 8 p.m. in Brockton and Taunton and 7 a.m. to 11 p.m. at locations in Cape Cod and Fall River on weekdays would diminish quality of care.

DMH had maintained to the auditor that mobile service centers would still provide 24/7 response to patients in psychiatric distress, regardless of the hours when the community-based location is staffed. The auditor had noted in her decision that only 0.63 percent of patient encounters in the Southeast region over the prior year took place at the community centers between the third shift hours of 11 p.m. and 7 a.m.

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