Judges, medical systems join growing opposition to state hospital discharge rules

A recent court order that imposes strict deadlines for releasing certain patients from the Oregon State Hospital faces mounting opposition.

In a flurry of court filings over the past two months, attorneys for two Oregon counties, five circuit court judges and three of Oregon’s largest hospital systems have weighed in. They sought to overturn a recent court order that requires the state hospital to discharge patients quickly in order to make room for new ones who would otherwise languish in jails without medical treatment.

They join three Oregon district attorneys, who first filed to join the case in September.

Attorneys from several of the involved parties said it’s highly unusual for so many groups to join an ongoing case — especially one that’s more than two decades old. This one, though, involves contentious and unresolved issues of how to treat mentally ill patients accused of crimes and how long they should reasonably be institutionalized.

The newcomers to the case are expected to air their concerns during two upcoming court hearings — one on Nov. 21 and the next one on Jan. 13. They are expected to argue that federal Judge Michael W. Mosman lacked the authority under state law to change the admissions process, and dispute the merits of the ruling itself.

State hospital spokesperson Amber Shoebridge declined to comment directly on the growing opposition to the ruling, which could force a rewrite of its strategy to deal with chronic overcrowding.

“OSH is doing what it can to help support the community with the increase in discharges,” she wrote in an email.

In September, Mosman ordered that the state-run psychiatric hospital release “aid and assist” patients — those accused of crimes but unable to participate in their own legal defense — within strict timelines.

Patients charged with misdemeanors, he ruled, must be discharged within 90 days of entry. Those charged with felonies can spend a maximum of six months at the state hospital, and those charged with Measure 11 crimes — one of the serious charges for which voters established mandatory minimum sentences in 1994 — may be held at the psychiatric facility for up to a year.

Disability Rights Oregon, a nonprofit advocacy group, and Metropolitan Public Defender, an indigent defense firm, urged him to limit the types of patients admitted and put strict caps on how long they can stay. The hospital has in recent years delayed admissions for weeks or months because it didn’t have beds available, leaving patients to linger untreated in jail.

The problem isn’t new — the ruling has its origins in a lawsuit that began in 2000 — but the pandemic has made the issue worse.

Earlier this year, a Michigan-based mental health expert, Dr. Debra Pinals, recommended the state hospital gradually lower its average wait times for patients, aiming to be back in compliance by February 2023.

When it became clear the hospital was far from meeting that goal, Disability Rights Oregon asked for the court to impose strict limits on who can be admitted, and how long they can stay.

About 100 patients have been in the facility longer than the allowed time. The state hospital is staggering their release over six months.

Several Oregon entities have raised alarms about the new admissions rules.

District attorneys: The top prosecutors in Clackamas, Marion and Washington counties, three of Oregon’s most populous, say they’re worried that there aren’t enough community facilities to treat patients as they’re released back into their counties, which poses a risk to community members and the patients themselves.

The prosecutors also say they’re not given enough warning before patients are released back to their counties. Washington County District Attorney Kevin Barton said the state now gives prosecutors 30 days notice — without identifying the patient — which he said doesn’t allow the county to prepare for more dangerous or challenging patients.

Many patients are discharged from the institutional setting of the state hospital to smaller, unsecured community care facilities, or into the custody of a guardian. Patients who have been deemed “able” to assist in their own defense may also be returned to jail, said Shoebridge, the state hospital spokesperson.

Barton recalled one patient who had been charged with several violent crimes, including threatening people on public transit with a knife and attacking a woman with a spear. He said that man was released because of the time limit, but no one knew where he was or what he was doing. He’s now back in jail, Barton said.

Private nonprofit hospitals: Oregon’s three largest healthcare systems have opposed the new admissions policy because they say it forces them to keep mental health patients they’re not suited to treat.

Legacy Health, Providence Health & Services and PeaceHealth sued the Oregon Health Authority in late September, alleging it failed to provide mental health care for “civilly committed” patients. Those patients have been deemed a danger to themselves or others and have been ordered to involuntary treatment at the hospital. But in 2019, the state hospital announced that it would no longer admit civil patients unless they had exhibited violent behavior recently.

Alicia Beymer, the chief administrative officer of the hospital system PeaceHealth, wrote in a Sept. 28 court filing that she tried to transfer a civilly committed patient to the Oregon State Hospital on an expedited timeline because the patient had shown violent behavior. The patient was turned away, Beymer wrote, because the patient was deemed “not violent enough” and because too much time had passed since the violent outbreak.

Medical hospitals, she wrote, don’t have the resources to provide long-term rehabilitative care for patients with symptoms like paranoia or psychosis. Yet with the state hospital not taking civilly committed patients, they often remain in medical hospitals for months without necessary long-term care.

Circuit court judges: Judges from five Oregon counties have filed to participate in the case. Marion County’s Audrey Broyles, Benton County’s Matthew Donohue, Tillamook County’s Jonathan Hill, Washington County’s Kathleen Proctor and Multnomah County’s Nan Waller have requested leave to give their input.

In September, the judges wrote that they have a unique perspective because they have to consider the interests of all the parties of this case and often make decisions about the patients that come through the state hospital.

Marion and Washington counties: Lawyers for the two counties have filed to join the case, stating they don’t believe Mosman, the federal judge, had the authority to override state law. They echoed some of the concerns of the district attorneys, such as lack of sufficient treatment facilities in their own counties to accommodate and treat patients who are released and inadequate notice when those patients are being sent back.

It isn’t entirely clear how patients are supposed to receive treatment after release, acknowledged an attorney from Disability Rights Oregon.

“Does an array of services exist? Are there off-ramps now?” said Emily Cooper, the advocacy group’s legal director. “The simple answer is, it’s building up.”

She said more beds have been added to residential treatment facilities this year in Marion and Lane counties. During the 2022 legislative session, Oregon lawmakers directed $100 million toward the residential treatment and community housing for mental health patients.

Still, she said it’s hard to fill those beds when providers have struggled to staff the facilities.

But she said she’s optimistic about some of the suggestions that Pinals, the mental health expert, made in her report. That includes community navigators, or peers who can help guide someone who has just left jail or the hospital and is getting settled back in their home county.

Cooper said the rapid changes present a challenge, but keeping patients at the state hospital indefinitely does them no good.

“What I’d probably welcome more is any party who wants to come forward with solutions,” she said.

The opposing parties will have time in the coming months to make suggestions. But Barton said the prosecutors hope for some immediate changes.

Instead of a “one size fits all” approach to how long patients stay , based on the level of crime they’re charged with, Barton said he’d like to have more flexibility, perhaps allowing district attorneys to file for a patient to stay longer in certain cases.

He said there are some gaps with the length-of-stay requirements. For example, someone charged with first-degree rape, a Measure 11 crime, could be kept at the hospital for up to a year. But someone charged with attempted rape would be released after six months.

“Does that make them less dangerous? Are your mental health issues less complicated because of that?” he said. “We feel like that conversation needs to happen, accounting for the level of dangerousness of the person.”

Attorneys for Washington and Marion counties suggested providing some limited treatment to patients waiting in jail and increasing the number of beds at the state hospital.

And the counties argued the state hospital isn’t maximizing its capacity. As recently as 2005, it treated 850 patients, a number that’s fallen to 600 in recent years — even prior to the pandemic, and even as the Salem hospital opened as second campus in Junction City.

“Although OHA and OSH have been rather opaque about the reasons for this reduction in capacity over the previous decade, it is clear that physical capacity to house additional patients currently in county jails without adequate mental health services appears to exist,” an attorney for the two counties wrote.

—Jayati Ramakrishnan; jramakrishnan@oregonian.com

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