For specialists, the poor’s legal cases can be cash cows
There’s little dispute that public defenders in Massachusetts are overworked and underpaid. They carry heavy caseloads, yet their $45,000 starting salaries are among the lowest in the country.
Private lawyers who do public defense work face a similar plight: Until recently, many of them were waiting to be compensated for last year’s bills after the state ran out of money to pay them.
For one group of people, however, working on these legal cases can be a cash cow.
Some private-practice psychiatrists and psychologists are being paid several hundred thousand dollars a year by the state’s public defender agency, the Committee for Public Counsel Services, to provide expert opinions and trial testimony. Many of them also hold down other jobs.
The agency’s spending on mental health experts has risen 44 percent since 2011, to $6 million last year, even though its annual budget grew just under 9 percent during that time. In certain types of cases, CPCS spending on experts has increased between 55 and 60 percent.
At least six mental health professionals earned more than $1 million each from CPCS over a seven-year period, and one of them made that amount in just four years, according to state payroll data. One Harvard Medical School psychiatrist made $452,000 from CPCS in a single year.
To critics, this amounts to a lucrative, taxpayer-funded system in which private-sector mental health professionals collect handsome government paychecks while public defenders are perpetually shortchanged.
“If we have limited budget resources and they’re paying their lawyers so little, I don’t see why they’re paying private psychiatrists nearly a half-million dollars,” said Lynn attorney Thomas Schiavoni, who specializes in mental health law and frequently handles cases opposite public defenders. “It’s like a spigot has been turned on, and the process is being misused and abused.”
The director of CPCS’s mental health litigation unit, Mark Larsen, acknowledged that some psychiatrists and psychologists are “making a good living out of” public defense cases. But he defended the expense, saying CPCS pays them below-market rates and requires their services to adequately represent its clients.
“I find it quite surprising that someone would think what we are paying for someone’s defense is exorbitant,” Larsen said. “What do the critics want us to do that doesn’t deprive our clients of their constitutional and statutory rights?”
Detractors argue that CPCS could save money by putting psychiatrists and psychologists on staff, but the agency said it doubts that would result in cost savings after factoring in benefits and overhead. It also said experts would not be considered independent if they were employed by the state.
Public defenders can request that their clients be evaluated by so-called independent medical evaluators. The private psychiatrists and psychologists who provide those evaluations, as well as expert trial testimony, are paid an hourly rate by CPCS: $150 to $225 an hour for psychiatrists, and $100 to $180 an hour for psychologists.
Among the highest-paid, according to a Globe review of state payroll data: Fabian M. Saleh, a psychiatry professor at Harvard Medical School who made $452,445 from CPCS in 2013; Mark N. Rudolph, a Middleboro psychiatrist who has earned about $300,000 annually from CPCS over the past four years; and Leonard A. Bard, a Needham psychologist who has taken home around $230,000 a year from CPCS since 2010.
Saleh, who also runs a private practice in Cambridge, did not respond to requests for comment. His 2013 earnings from CPCS would be the equivalent of between 1,900 and 3,000 hours of work.
Reached by the Globe, Rudolph, who also has a part-time clinical practice at McLean Hospital in Belmont, estimated he works 30 to 35 hours weekly for CPCS.
“CPCS attorneys have a really hard job, and I do believe they should be paid more,” he said.
Bard agreed to a telephone interview, but then e-mailed to say he had changed his mind because “it has been my policy in the past ten years not to speak with the media about my work.”
Beginning this summer, following an internal audit, CPCS capped the maximum amount of time an expert can bill annually at 1,650 hours because, according to Larsen, there was “a desire to limit how much CPCS was paying to any one individual.” Even with that restriction, mental health experts could make hundreds of thousands of dollars a year.
Over the past month, the Globe has repeatedly asked CPCS for numbers showing how much it spends on mental health experts. The agency has frequently been slow in its replies, blaming the delays on voluminous billing data. It has also struggled to provide certain figures and sometimes provided conflicting numbers.
To Schiavoni, that shows a lack of financial accountability by CPCS, which has an annual budget of $214 million.
“Nobody’s keeping honest-to-goodness data, statistics, metrics on this kind of stuff, and the very fact they can’t respond to you quickly” is evidence of that, he said. “And if they’re not keeping metrics like that, they’re not minding the resources properly.”
State law guarantees legal representation for people unable to afford an attorney in criminal cases, as well as in certain civil matters, such as when someone faces involuntary commitment to a mental hospital or involuntary treatment with antipsychotic drugs.
Some people are also entitled to public defenders in child welfare cases, and when prosecutors try to keep sex offenders jailed after completing their sentences on grounds that they remain dangerous.
CPCS experts are paid from a fund that covers expenses incurred while representing clients, from ballistics testing to blood analysis. Last year, that Indigent Court Costs fund paid out $18.7 million, roughly a third of which was spent on mental health professionals.
CPCS hires psychiatrists and psychologists from a list of about 100 willing to do hourly work for the state, as well as from hospitals and private group practices.
The highest-paid group practice appears to be Psychological Consulting Services in Salem, which has made $4 million from CPCS over the past seven years. One of the firm’s partners, Dr. Robert Joss, said it has 12 partners and associates, and its clients are mostly government agencies.
Numerous state agencies, including the trial courts, Department of Children and Families, and Executive Office of Health and Human Services, hire private mental health experts. But the gulf between how much CPCS pays its lawyers and experts is particularly stark, and CPCS has been criticized for pay disparities before.
About five years ago, frustrated that private attorneys paid hourly by CPCS were often earning more than CPCS staff attorneys, Governor Deval Patrick pushed for several hundred new public defenders to be hired. Whether that was ultimately a cost-saving move remains unclear after factoring in overhead costs.
Prosecutors also hire psychiatrists and psychologists, and pay them at a rate that usually does not exceed $400 an hour, according to the Suffolk district attorney’s office. But prosecutors spend less on mental health experts than public defenders do: $750,000 last year by the state’s 11 DA offices combined, according to a Globe tally.
That’s partly because prosecutors don’t have the civil caseload public defenders do, and partly because prosecutors have access to resources public defenders don’t, such as the state crime lab and prison clinicians.
CPCS argues it has little control over its workload and related costs because it must take on whatever cases come through the door.
Last year the agency handled 281,000 cases, divvied among 485 salaried staff attorneys and 2,850 private attorneys paid $50-$100/hour. The attorneys’ compensation is regulated by statute.
According to Jack Cinquegrana, a partner at the Boston law firm Choate who serves as chairman of CPCS, the agency’s growth in spending on psychologists and psychiatrists — from $4.2 million in 2011 to more than $6 million in the most recent fiscal year — is largely driven by two types of cases: those involving mental health and child welfare. In both, spending on medical experts has jumped nearly 60 percent over the last six years.
In child welfare cases, public defenders sometimes represent families when the state tries to remove children from their homes due to claims of neglect or abuse. Cinquegrana said CPCS’s child welfare caseload is growing because the Department of Children and Families has become more aggressive due to several highly publicized child deaths. The opioid crisis is also believed to be increasing DCF’s caseload.
In mental health cases, public defenders often get involved when someone is experiencing a psychiatric crisis and a doctor recommends the person be hospitalized or medicated against his or her will. In these so-called civil commitment cases, the patient is entitled to a public defender because the court system presumes that anyone in that circumstance is indigent (although the public defender can be revoked if the patient is later found not to be).
The number of medical evaluations that CPCS pays for in mental health cases appears to be another cost driver. These are basically second opinions, and they’ve grown sharply: up 60 percent in recent years, from 1,105 in 2011 to 1,758 last year.
CPCS says it pays for evaluations in 20 and 30 percent of its civil commitment cases, but former state mental health commissioner Marcia Fowler, now CEO of Bournewood Health Systems, a Brookline psychiatric facility, said she has seen an “incredible increase” in requests for second opinions by CPCS and considers many of them unnecessary.
“What we’re seeing is this perfunctory and indiscriminate filing” of them, Fowler said. “There should absolutely be protections in place around imposing psychiatric medication on individuals, but when your clients are in acute psychotic distress and aren’t able to make competent decisions and they’re not receiving treatment, I really question” the value and expense of a second opinion.
CPCS strenuously disagrees. It argues that people at risk of being deprived of their civil liberties must have robust legal representation.
“People can be taken off the street by a police officer, taken to an emergency room, and detained there until they can find space for them in a psychiatric unit,” Larsen said. “If you’re the patient in that case, do you want to have your own expert examine you?”
Larsen also noted that a public defender who does not request a medical evaluation could be faulted later for providing an inadequate defense.
Newton psychologist Eric L. Brown has made $1.3 million since 2010 working for CPCS and acknowledges there are “inequities” in how the agency compensates experts like him versus its staff attorneys.
“I feel guilty about not so much how much money I make, but that they’re so underpaid,” Brown said. “I think it’s grossly unfair.”