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Bar News - May 17, 2013

Coalition Pushes Forward on NH Mental Health Suit


Donald Shumway, CEO of Crotched Mountain Rehabilitation Hospital and former DHHS commissioner, describes the problems with the state mental health system at a fundraising event in Manchester.
The Mental Health Legal Rights Fund is soliciting donations to help cover the cost of a lawsuit against the State of New Hampshire by the Disability Rights Center, which has teamed up with Devine Millimet and two national public interest law centers.

The parties in the case were scheduled for a hearing in federal court in Concord on May 16 to argue whether the court should certify the five named plaintiffs in the case – all of whom are New Hampshire residents suffering from serious mental health conditions – as representatives of a plaintiff class.

In the initial compliant filed in February 2012, the plaintiffs accused the State of New Hampshire of violating the federal Americans with Disabilities Act (ADA) by failing to provide the community-based mental health services they needed to avoid unnecessary or excessive hospitalization at the New Hampshire State Hospital and Glencliffe, a state-run nursing facility for people with serious mental health conditions.

Dan Will of Devine Millimet, who is working with the DRC on the case, said it’s unclear how many New Hampshire residents would be part of the class action, but research has estimated that as many as one in 20 New Hampshire residents suffers from serious mental illness. The plaintiffs are seeking no monetary damages, only injunctive relief.

"What we’re really trying to do is affect systemic change," Will said.

Amy Messer, legal director at the DRC, is the primary litigator in the case. She cites a significant increase in the number of annual admissions to the state psychiatric hospital - from 900 in 1989 to about 2,300 today - as proof that the state’s underfunded mental health system has put undue emphasis on institutionalization. The state has countered that it is working to improve the system and implement its 10-year plan, despite significant budgetary constraints.

Earlier this year, the US Department of Justice, which also has found New Hampshire to be in violation of the ADA due to the limitations of its mental health system, became an intervener and full party in the case. The DOJ in March filed a motion in support of the court’s certification of the case as a class action.

The Mental Health Legal Rights Fund was established about two years ago to act as the fundraising arm for the lawsuit. Board members include co-chairs John Broderick, dean of UNH Law School; Lewis Feldstein, former director of the NH Charitable Foundation; and Donald Shumway, CEO of Crotched Mountain Rehabilitation Hospital.

If the plaintiffs are successful, the court could require the state to pay their attorney fees, board members said. In the meantime, the lawsuit is too costly for the DRC to pay out of pocket. So far, the MHLRF has raised about $95,000 of the needed $200,000 and is asking the legal community to contribute. Shumway, the former commissioner of the NH Department of Health and Human Services, said the state can reclaim its place as a national leader in community-based mental health supports. All it takes is public and political will. "Instead," he said, "the mental health system in New Hampshire has been systematically burned to the ground."

For more information about the case or to donate to the MHLRF, please visit

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