Fraud, Waste, and Abuse

This report is written from the perspective of two detained Minnesota Sex Offender Program (MSOP) patients extensively trained in law, scientific literature regarding sex offense recidivism, and the history of MSOP. The authors of this paper remain incarcerated despite the MSOP having determined that they do not require services for mental illness.

The MSOP has a thirty-plus year history of wasting taxpayer funds. The program has been riddled with dubious intent since its origin, a matter which has been left unaddressed due to the political toxicity surrounding the agency. However, certain brave political and judicial leaders have spoken the truth regarding the MSOP, conscientious men and women with respect for the Constitution and the highest principles of morality.

For instance, in dissenting to the constitutionality of the MSOP, Minnesota Supreme Court Justice Tomljanovich wrote, "[T]he Due Process Clause of the Constitution prohibits us as a society from locking up persons simply because we fear them" before further noting "that the state did not even bother to argue its compelling interest in passing the SDP Act [thus creating MSOP] was to provide treatment for [the very first committee] Dennis Linehan or any other subsequent committee. And for that, the state deserves credit for its honesty." Yet treatment is for what the MSOP bills the State over $126 million dollars each year.

Similarly, Justice Page, also dissenting to the constitutionality of the MSOP, wrote, "In upholding the SDP Act, the court is acting... in violation of our duty 'to provide safeguards against the state's improper use of civil commitment as a constitutionally invalid form of preventive detention." Yet according to law, it is for the provision of "proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary for which the MSOP bills the people of Minnesota over $126 million dollars every year.

Most recently, in 2014, Minnesota Court of Appeals Judge R.A. Randall described the three "great myths" of the MSOP. The first "great myth [is] that civil commitment is 'remedial... for treatment purposes and... not for purposes of preventive detention." "The next great myth (close to being a 'lie') is that it is for medical treatment." "The third great myth or 'lie,' is that once you are civilly committed you have a rational due process chance to be medically discharged." Yet it is for the operation of a functioning treatment program which MSOP invoices the legislature over $126 million dollars each and every year.

"[A]s a judge," Randall wrote, "I hate lying about it."8

MSOP's Senior Management Team (SMT) also appears to hate lying about it. In fact, they are quite open about the fraudulent nature of their program.

The authors of this paper have historically been members of MSOP's Resident Advisory and Family Council (RAFC), a statutorily authorized organization tasked with making recommendations to the SMT regarding facility policies. As such, we have had the opportunity to witness and document many of the open denials the SMT has responded with to our rational requests, requests which would help to legitimize the program and facilitate the release of healthy patients.

For instance, we have historically recommended that therapists report behaviors that identify whether or not patients' behavior supports their current mental health diagnosis. We have also recommended that the SMT update their outdated program theory manual to accommodate contemporary best practices. Both of these common-sense proposals were denied by the SMT.

Similarly, the SMT is charged with providing psychiatric treatment to the mentally ill. But they do not provide annual psychiatric evaluations to their patients. If you ask the Executive Director, Nancy Johnston, how the SMT can provide psychiatric treatment without providing psychiatric evaluations, she will tell you the "vast majority" of her patients are not mentally ill so they do not need psychiatric services."

As a result, the minority of patients who are in need of psychiatric services are deprived of care and the "vast majority" of patients who are not mentally ill remain unnecessarily detained. The SMT then bills the State for the "cost of care" of these unnecessary services, currently at a rate of over $126 million dollars each year. With an open checkbook to draw upon and no oversight to date, the SMT has little incentive to petition for the release of patients who no longer require treatment, instead allowing them to wallow, typically for decades, until they die.

We find it difficult to understand the rationale behind the SMT's decisions, no matter their brazen and open admissions of disregard for law. Even present Executive Clinical Director Jannine Hébert-who is responsible for the implementation of the MSOP's treatment program, a program which has yet to show any discernible impact on reducing sexual violence in Minnesota despite costing taxpayers over $126 million dollars each year has confirmed our suspicions. In her own words, "I think civil commitment is ridiculous."13

How has this happened? The MSOP is a political football which no one wants to touch, and as a result has remained an intentional afterthought year after year despite its vast financial implications throughout the entirety of Minnesota. How many children could go to school and be fed on $126 million dollars? How many homeless families given homes? How many sexual assaults could be prevented through the funding of actually effective programs?

How has this happened? Succumbing to fear leads to tyranny in our spots left blind. When we refuse to look, those living without being seen are bound to be dealt with in the currency of cruelty. And in the dark avenues of bureaucracy where the word "accountability" is but an unheard echo, those responsible are bound to drown in the profligacy of an open checkbook. We pray for change.

The authors of this paper know what it means to be afraid to do the right thing at all costs; after all, we are choosing to remain anonymous in our authorship for fear of our well-being and safety, retaliation a common practice of the MSOP and their Senior Management Team (SMT). We hope that the readers of this paper, those who likely get to go home to their families after a hard day's work and kiss their children goodnight, have more courage than we.

Our Official Position on MSOP's Senior Management Team (SMT)

MSOP's Senior Management Team knowingly exceeds their lawful authority, ignoring the laws governing the Minnesota Commitment and Treatment Act. The authors of this paper struggle with submitting themselves to believe the reality of the catastrophe that the program has become.

The results: The SMT accepts and spends over $126 million dollars from the legislature every year. This money is used to unlawfully detain hundreds of patients who do not require the minimal and ineffective services which are inefficiently provided. At present, patients are five times more likely to die in custody than to return home to their families' arms.

This occurs neither by accident nor coincidence. To accomplish this massive feat of waste, the SMT designed and implemented treatment-related policies, practices and procedures far surpassing their limited state interests of rehabilitating the mentally ill and protecting the public from sexual violence.

Through these changes, the Senior Management Team harms Minnesota citizens with wrongful hospitalizations and misrepresents their stated purpose to the State of Minnesota. The SMT's management style also enables the prevalence of sexual violence in Minnesota through an exorbitant misuse of taxpayer funds.

This is fraud; this is waste; and this is abuse.

The SMT is directly culpable this report shall serve as a credible allegation.

Background

The legislative intent of the Minnesota Commitment and Treatment Act (MCTA) is to detain any Minnesotan found to be a Sexually Dangerous Person (SDP) and/or have a Sexual Psychopathic Personality (SPP) and then to release them once their condition is in remission. The Minnesota Supreme Court has interpreted these interests under the MCTA as twofold, stating: "The state has a compelling interest in both protecting the public from sexual violence and rehabilitating the mentally ill."14 In regard to standards of care and treatment in the context of civil confinement, both the Minnesota and United States Supreme Courts have further stated that "[T]he State has considerable discretion in determining the nature and scope of its responsibilities in developing treatment regimens." 15 However, this discretion is not unlimited. Both Courts have concluded that the state "...serves its purpose of treating rather than punishing sexually dangerous persons by committing them to an institution expressly designed to provide psychiatric care and treatment."

Correspondingly, the Minnesota State Legislature, through the MCTA, has afforded certain rights to patients detained at the MSOP. These rights include:

• The right to "periodic medical assessment, including assessment of the medical necessity of continuing care," and that "the physical and mental condition of a civilly committed patient shall be assessed by the treatment facility as frequently as necessary, but not less often than annually" (Minn. Stat. §253B.03, subd. 5);

• The right to "receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary" (Minn. Stat. § 253B.03, subd. 7); and

• Procedures to petition for a reduction in custody every six months (Minn. Stat. § 253D.27-31).

These legislatively created rights and procedures were intended to provide layers of professional review to protect patients' liberty interests and to correct an erroneous commitment from continuing." These safeguards exist to limit civil confinement exclusively to those who are dangerously mentally ill. 18 Contrary to the binding rule of statute and judicial precedent, the SMT has implemented policies, practices, and procedures aligned with their own treatment philosophy at the expense of patient rights. This contempt towards the statutory and procedural rights of residents at MSOP has resulted in the unlawful detainment of men for decades. 19 (See Figure 1.)