GAINESVILLE, Ga. — In early December, Donald Brown stood nervously in the Hall County Courthouse, concerned he’d be sent back to jail.

The 55-year-old struggles with depression, addiction, and suicidal thoughts. He worried a judge would terminate him from a special diversion program meant to keep people with mental illness from being incarcerated. He was failing to keep up with the program’s onerous work and community service requirements.

“I’m kind of scared. I feel kind of defeated,” Brown said.

Last year, Brown threatened to take his life with a gun and his family called 911 seeking help, he said. The police arrived, and Brown was arrested and charged with a felony of firearm possession.

After months in jail, Brown was offered access to the Health Empowerment Linkage and Possibilities, or HELP, Court. If he pleaded guilty, he’d be connected to services and avoid prison time. But if he didn’t complete the program, he’d possibly face incarceration.

“It’s almost like coercion,” Brown said. “‘Here, sign these papers and get out of jail.’ I feel like I could have been dealt with a lot better.”

Advocates, attorneys, clinicians, and researchers said courts such as the one Brown is navigating can struggle to live up to their promise. The diversion programs, they said, are often expensive and resource-intensive, and serve fewer than 1% of the more than 2 million people who have a serious mental illness and are booked into U.S. jails each year.

People can feel pressured to take plea deals and enter the courts, seeing the programs as the only route to get care or avoid prison time. The courts are selective, due in part to political pressures on elected judges and prosecutors. Participants must often meet strict requirements that critics say aren’t treatment-focused, such as regular hearings and drug screenings.

And there is a lack of conclusive evidence on whether the courts help participants long-term. Some legal experts, like Lea Johnston, a professor of law at the University of Florida, worry the programs distract from more meaningful investments in mental health resources.

Jails and prisons are not the place for individuals with mental disorders, she said. “But I’m also not sure that mental health court is the solution.”

The country’s first mental health court was established in Broward County, Florida, in 1997, “as a way to promote recovery and mental health wellness and avoid criminalizing mental health problems.” The model was replicated with millions in funding from such federal agencies as the Substance Abuse and Mental Health Services Administration and the Department of Justice.

More than 650 adult and juvenile mental health courts were operational as of 2022, according to the National Treatment Court Resource Center. There’s no set way to run them. Generally, participants receive treatment plans and get linked to services. Judges and mental health clinicians oversee their progress.

Researchers from the center found little evidence that the courts improve participants’ mental health or keep them out of the criminal justice system. “Few studies … assess longer-term impacts” of the programs “beyond one year after program exit,” said a 2022 policy brief on mental health courts.

The courts work best when paired with investments in services such as clinical treatment, recovery programs, and housing and employment opportunities, said Kristen DeVall, the center’s co-director.

“If all of these other supports aren’t invested in, then it’s kind of a wash,” she said.

The courts should be seen as “one intervention in that larger system,” DeVall said, not “the only resource to serve folks with mental health needs” who get caught up in the criminal justice system.

Resource limitations can also increase the pressures to apply for mental health court programs, said Lisa M. Wayne, executive director of the National Association of Criminal Defense Lawyers. People seeking help might not feel they have alternatives.

“It’s not going to be people who can afford mental health intervention. It’s poor people, marginalized folks,” she said.

Other court skeptics wonder about the larger costs of the programs.

In a study of a mental health court in Pennsylvania, Johnston and a University of Florida colleague found participants were sentenced to longer time under government supervision than if they’d gone through the regular criminal justice system.

“The bigger problem is they’re taking attention away from more important solutions that we should be investing in, like community mental health care,” Johnston said.

When Melissa Vergara’s oldest son, Mychael Difrancisco, was arrested on felony gun charges in Queens in May 2021, she thought he would be an ideal candidate for the New York City borough’s mental health court because of his diagnosis of autism spectrum disorder and other behavioral health conditions.

She estimated she spent tens of thousands of dollars to prepare Difrancisco’s case for consideration. Meanwhile, her son sat in jail on Rikers Island, where she said he was assaulted multiple times and had to get half a finger amputated after it was caught in a cell door.

In the end, his case was denied diversion into mental health court. Difrancisco, 22, is serving a prison sentence that could be as long as four years and six months.

“There’s no real urgency to help people with mental health struggles,” Vergara said.

Critics worry such high bars to entry can lead the programs to exclude people who could benefit the most. Some courts don’t allow those accused of violent or sexual crimes to participate. Prosecutors and judges can face pressure from constituents that may lead them to block individuals accused of high-profile offenses.

And judges often aren’t trained to make decisions about participants’ care, said Raji Edayathumangalam, senior policy social worker with New York County Defender Services.

“It’s inappropriate,” she said. “We’re all licensed to practice in our different professions for a reason. I can’t show up to do a hernia operation just because I read about it or sat next to a hernia surgeon.”

Mental health courts can be overly focused on requirements such as drug testing, medication compliance, and completing workbook assignments, rather than progress toward recovery and clinical improvement, Edayathumangalam said.

Completing the programs can leave some participants with clean criminal records. But failing to meet a program’s requirements can trigger penalties — including incarceration.

During a recent hearing in the Clayton County Behavioral Health Accountability Court in suburban Atlanta, one woman left the courtroom in tears when Judge Shana Rooks Malone ordered her to report to jail for a seven-day stay for “being dishonest” about whether she was taking court-required medication.

It was her sixth infraction in the program — previous consequences included written assignments and “bench duty,” in which participants must sit and think about their participation in the program.

“I don’t like to incarcerate,” Malone said. “That particular participant has had some challenges. I’m rooting for her. But all the smaller penalties haven’t worked.”

Still, other participants praised Malone and her program. And, in general, some say such diversion programs provide a much-needed lifeline.

Michael Hobby, 32, of Gainesville was addicted to heroin and fentanyl when he was arrested for drug possession in August 2021. After entry into the HELP Court program, he got sober, started taking medication for anxiety and depression, and built a stable life.

“I didn’t know where to reach out for help,” he said. “I got put in handcuffs, and it saved my life.”

Even as Donald Brown awaited his fate, he said he had started taking medication to manage his depression and has stayed sober because of HELP Court.

“I’ve learned a new way of life. Instead of getting high, I’m learning to feel things now,” he said.

Brown avoided jail that early December day. A hearing to decide his fate could happen in the next few weeks. But even if he’s allowed to remain in the program, Brown said, he’s worried it’s only a matter of time before he falls out of compliance.

“To try to improve myself and get locked up for it is just a kick in the gut,” he said. “I tried really hard.”

KFF Health News senior correspondent Fred Clasen-Kelly contributed to this report.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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Mary Delgado’s first pregnancy went according to plan, but when she tried to get pregnant again seven years later, nothing happened. After 10 months, Delgado, now 34, and her partner, Joaquin Rodriguez, went to see an OB-GYN. Tests showed she had endometriosis, which was interfering with conception. Delgado’s only option, the doctor said, was in vitro fertilization.

“When she told me that, she broke me inside,” Delgado said, “because I knew it was so expensive.”

Delgado, who lives in New York City, is enrolled in Medicaid, the federal-state health program for low-income and disabled people. The roughly $20,000 price tag for a round of IVF would be a financial stretch for lots of people, but for someone on Medicaid — for which the maximum annual income for a two-person household in New York is just over $26,000 — the treatment can be unattainable.

Expansions of work-based insurance plans to cover fertility treatments, including free egg freezing and unlimited IVF cycles, are often touted by large companies as a boon for their employees. But people with lower incomes, often minorities, are more likely to be covered by Medicaid or skimpier commercial plans with no such coverage. That raises the question of whether medical assistance to create a family is only for the well-to-do or people with generous benefit packages.

“In American health care, they don’t want the poor people to reproduce,” Delgado said. She was caring full-time for their son, who was born with a rare genetic disorder that required several surgeries before he was 5. Her partner, who works for a company that maintains the city’s yellow cabs, has an individual plan through the state insurance marketplace, but it does not include fertility coverage.

Some medical experts whose patients have faced these issues say they can understand why people in Delgado’s situation think the system is stacked against them.

“It feels a little like that,” said Elizabeth Ginsburg, a professor of obstetrics and gynecology at Harvard Medical School who is president-elect of the American Society for Reproductive Medicine, a research and advocacy group.

Whether or not it’s intended, many say the inequity reflects poorly on the U.S.

“This is really sort of standing out as a sore thumb in a nation that would like to claim that it cares for the less fortunate and it seeks to do anything it can for them,” said Eli Adashi, a professor of medical science at Brown University and former president of the Society for Reproductive Endocrinologists.

Yet efforts to add coverage for fertility care to Medicaid face a lot of pushback, Ginsburg said.

Over the years, Barbara Collura, president and CEO of the advocacy group Resolve: The National Infertility Association, has heard many explanations for why it doesn’t make sense to cover fertility treatment for Medicaid recipients. Legislators have asked, “If they can’t pay for fertility treatment, do they have any idea how much it costs to raise a child?” she said.

“So right there, as a country we’re making judgments about who gets to have children,” Collura said.

The legacy of the eugenics movement of the early 20th century, when states passed laws that permitted poor, nonwhite, and disabled people to be sterilized against their will, lingers as well.

“As a reproductive justice person, I believe it’s a human right to have a child, and it’s a larger ethical issue to provide support,” said Regina Davis Moss, president and CEO of In Our Own Voice: National Black Women’s Reproductive Justice Agenda, an advocacy group.

But such coverage decisions — especially when the health care safety net is involved — sometimes require difficult choices, because resources are limited.

Even if state Medicaid programs wanted to cover fertility treatment, for instance, they would have to weigh the benefit against investing in other types of care, including maternity care, said Kate McEvoy, executive director of the National Association of Medicaid Directors. “There is a recognition about the primacy and urgency of maternity care,” she said.

Medicaid pays for about 40% of births in the United States. And since 2022, 46 states and the District of Columbia have elected to extend Medicaid postpartum coverage to 12 months, up from 60 days.

Fertility problems are relatively common, affecting roughly 10% of women and men of childbearing age, according to the National Institute of Child Health and Human Development.

Traditionally, a couple is considered infertile if they’ve been trying to get pregnant unsuccessfully for 12 months. Last year, the ASRM broadened the definition of infertility to incorporate would-be parents beyond heterosexual couples, including people who can’t get pregnant for medical, sexual, or other reasons, as well as those who need medical interventions such as donor eggs or sperm to get pregnant.

The World Health Organization defined infertility as a disease of the reproductive system characterized by failing to get pregnant after a year of unprotected intercourse. It terms the high cost of fertility treatment a major equity issue and has called for better policies and public financing to improve access.

No matter how the condition is defined, private health plans often decline to cover fertility treatments because they don’t consider them “medically necessary.” Twenty states and Washington, D.C., have laws requiring health plans to provide some fertility coverage, but those laws vary greatly and apply only to companies whose plans are regulated by the state.

In recent years, many companies have begun offering fertility treatment in a bid to recruit and retain top-notch talent. In 2023, 45% of companies with 500 or more workers covered IVF and/or drug therapy, according to the benefits consultant Mercer.

But that doesn’t help people on Medicaid. Only two states’ Medicaid programs provide any fertility treatment: New York covers some oral ovulation-enhancing medications, and Illinois covers costs for fertility preservation, to freeze the eggs or sperm of people who need medical treatment that will likely make them infertile, such as for cancer. Several other states also are considering adding fertility preservation services.

In Delgado’s case, Medicaid covered the tests to diagnose her endometriosis, but nothing more. She was searching the internet for fertility treatment options when she came upon a clinic group called CNY Fertility that seemed significantly less expensive than other clinics, and also offered in-house financing. Based in Syracuse, New York, the company has a handful of clinics in upstate New York cities and four other U.S. locations.

Though Delgado and her partner had to travel more than 300 miles round trip to Albany for the procedures, the savings made it worthwhile. They were able do an entire IVF cycle, including medications, egg retrieval, genetic testing, and transferring the egg to her uterus, for $14,000. To pay for it, they took $7,000 of the cash they’d been saving to buy a home and financed the other half through the fertility clinic.

She got pregnant on the first try, and their daughter, Emiliana, is now almost a year old.

Delgado doesn’t resent people with more resources or better insurance coverage, but she wishes the system were more equitable.

“I have a medical problem,” she said. “It’s not like I did IVF because I wanted to choose the gender.”

One reason CNY is less expensive than other clinics is simply that the privately owned company chooses to charge less, said William Kiltz, its vice president of marketing and business development. Since the company’s beginning in 1997, it has become a large practice with a large volume of IVF cycles, which helps keep prices low.

At this point, more than half its clients come from out of state, and many earn significantly less than a typical patient at another clinic. Twenty percent earn less than $50,000, and “we treat a good number who are on Medicaid,” Kiltz said.

Now that their son, Joaquin, is settled in a good school, Delgado has started working for an agency that provides home health services. After putting in 30 hours a week for 90 days, she’ll be eligible for health insurance.

One of the benefits: fertility coverage.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

Subscribe to KFF Health News’ free Morning Briefing.