Proposal would ensure treatment priority for defendants deemed incompetent

Nebraska state senator calls current waiting list, lack of treatment beds a ‘human dignity’ issue
Lincoln Regional Center
Posted at 11:20 AM, Apr 09, 2022
and last updated 2022-04-09 12:20:39-04

LINCOLN, Neb. (Nebraska Examiner) — Defendants deemed incompetent to stand trial would be given priority for treatment at the Lincoln Regional Center under a bill given first-round approval Friday in the Nebraska Legislature.

State Sen. Steve Lathrop called it a “human dignity issue” during floor debate, saying it was inhumane to lock up someone with a mental illness for weeks in a county jail because there’s no room at the Regional Center.

Currently, 69 people deemed incompetent to stand trial are on a waiting list with an average wait of 67 days, according to figures provided by the Nebraska Department of Health and Human Services Friday evening. That is an improvement over a 77-person wait list and an average wait of 128 days, cited by Lathrop during floor debate earlier in the day.

‘Force the hand’

Under state law, the Regional Center is the only site where someone deemed incompetent to proceed to trial can get treatment in hopes of becoming well enough to participate in their criminal defense. 

Lathrop said Legislative Bill 921 would “force the hand” of the Nebraska Department of Health and Human Services to expand capacity to deal with such cases.

“This is a human dignity issue,” the senator said. “County jails are not equipped to take these people.”

Lathrop related the story of a shooting incident at an Omaha Hy-Vee store in March 2020 involving a man who suffered from autism and depression and who admitted later that he wanted to commit “suicide by cop” that day.

The shooter was subdued before anyone was shot or injured, Lathrop said, but adequate mental health care could help prevent “the next shooter at Hy-Vee or at a school.”

Study scheduled of issue

The bill drew questions from LaVista Sen. John Arch, who heads the Legislature’s Health and Human Services Committee. The committee has oversight over the Regional Center and has already scheduled an interim study on the state’s capacity to treat those deemed mentally incapable of standing trial.

Arch, a former hospital administrator, said he was concerned over an aspect of LB 921 that would require the Regional Center to set aside a certain number of its beds, 15%, for treating those deemed to be incompetent.

The senator said he realizes there’s “a lot of frustration” with the Regional Center and that “it has not been functioning well,” but he said mandating a certain number of beds be set aside wasn’t a good answer.

 Part of the reason for the shortage of space at the Regional Center is because some buildings have been shut down to make safety alterations.

Lincoln Sen. Matt Hansen had introduced the regional center proposal as LB 1223 after hearing concerns from Lancaster County corrections officials. He said one defendant, deemed incompetent to stand trial, had waited 365 days for treatment.

Under an amended version of his bill contained in LB 921, the state would have to reimburse county jails at a rate of $100 a day after a 30-day wait if there wasn’t room in the Regional Center. It would also create a legislative committee, the Mental Health Care Capacity Strategic Planning Committee, to study whether the state has enough capacity to treat such mentally ill inmates.

“We, as a state, probably don’t have enough inpatient mental health beds as we should,” Hansen said.

As a result, he added, they end up being housed in county jails, which are ill equipped to provide mental health treatment.

Enroll in Medicaid

Another aspect of LB 921, sponsored by Omaha Sen. John Cavanaugh, would require DHHS to ensure that a prison or jail inmate is enrolled in Medicaid prior to their release from incarceration.

Cavanaugh said that would ensure that an inmate who needs mental health care or substance abuse treatment will get it immediately upon release from custody. Right now, he said, state prison inmates are presented with an application for Medicaid, which doesn’t ensure they actually get enrolled. 

Lathrop said the current process can leave a “sweet spot” for a repeat crime because someone isn’t getting the medication or mental health assistance needed. About 56% of those incarcerated in Nebraska have some kind of mental illness, Cavanaugh said.

Arch said he was willing to work with proponents of LB 921. He said he would support requiring the Medicaid help only state prison inmates, and not county jail inmates, to reduce the financial impact of the bill. 

A fiscal note prepared on LB 921 estimated that DHHS would have to hire an additional 77 employees if it had to get county jail inmates enrolled in Medicaid. The note also estimates that $100 a day payments might add up to nearly $1 million in additional cost to the state.

Cavanaugh said his measure would allow DHHS to utilize a telephone or a Zoom meeting to help inmates enroll in Medicaid, thus lowering the fiscal impact.

Nebraska Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Cate Folsom for questions: Follow Nebraska Examiner on Facebook and Twitter.

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