When someone accused of a crime is found unable to aid and assist in their own defense, they are sent to the Oregon State Hospital for an evaluation. After that, they often need to spend time at a residential treatment center until they are fit to stand trial.
A new rule from the Oregon Health Authority requires residential treatment facilities in the state to accept those patients ahead of any who might be on their waiting list, setting aside their normal admissions standards. Attorneys for the Oregon Council for Behavioral Health and six residential treatment providers filed a petition with the Oregon Court of Appeals to block that rule.
We hear from Heather Jefferis, executive director of the Oregon Council for Behavioral Health, about the challenges faced by behavioral health providers in Oregon.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Last month, attorneys for the Oregon Council for Behavioral Health and six residential treatment providers filed a petition with the Oregon Court of Appeals. They’re asking the court to block a new rule put out by the Oregon Health Authority. That rule forces facilities to take patients from the Oregon State Hospital that, these facilities argue, they can’t adequately care for.
Heather Jefferis is the executive director of the Oregon Council for Behavioral Health. She joins us now. It’s great to have you on the show.
Heather Jefferis: Thank you for having me. Appreciate it.
Miller: It’s been a little while since we’ve talked about the issue of so-called “aid and assist patients.” Can you just first remind us what that phrase means, the population that we’re talking about?
Jefferis: Absolutely. And I think this will really help folks understand the core of the issue and why we’re asking for the halt of the rule. That status, just broadly, is a status of a person who has entered into the criminal justice system because, most likely, they did something while they were symptomatic, and that they have a co-occurring serious mental illness or other behavioral health issue that really was the root cause of them ending up in the criminal justice system. And then there will be an evaluation. It’s a whole legal process. It is really alongside but separate from their mental health condition, because it’s really a place where folks determine if their mental health condition will be stable enough that they can proceed with their criminal justice needs. Does that make sense what I’m saying?
Miller: Yes. Let me see if I can paraphrase it and you tell me if my even shorter version is accurate. These are people who have been accused of crimes, but because of their mental illness or mental health status, they cannot aid and assist in their own defense. So they go to the Oregon State Hospital where, ideally, they’ll get treatment to get into a position where they can then face the criminal justice system.
Jefferis: Yes, yeah. I think that that is a good broad summary of the situation, yeah.
Miller: So what’s been happening for the last couple years that has messed up the system, that’s made it gummed up?
Jefferis: Well, prior to the rule that brought us here today that you opened up with, that didn’t really happen until December, January. But this has been a long-standing issue, as I think many of your listeners have heard from excellent coverage that OPB has done, that at the state hospital and across the state of Oregon, we have a significant lack of access to mental health residential services to treat people’s behavioral health care needs.
And in that, what has happened at the state hospital for a long time is that, unfortunately, the cases that are going there are all folks, predominantly, who have an aid and assist case. So not only do they have a very serious mental health concern that would be best served at the hospital … just like when you go to an acute care physical hospital, right? The state hospital is there for the acute care needs of people with behavioral health concerns. But because we have this overlay of the criminal justice issue, the hospital has been inundated with a very large number of folks with those two conjoined issues, not leaving room for folks who have not committed crimes. We sometimes call that civil commitment, where the person really needs a high level of help, but they don’t have a criminal justice concern per se, or just a self-referral. Those things haven’t happened in years because we just don’t have the capacity to address that.
That is true, also, for the mental health residential programs that are in our membership across the entire state. There [is] just not enough capacity to serve all the people who truly qualify. And when there’s a special term in health insurance called medical necessity, they are ill enough to qualify for certain treatments just like physical health care. Does that make sense?
Miller: It does. So in January, the beginning of this year, the advocacy group Disability Rights Oregon asked a federal judge to hold the Oregon Health Authority in contempt because of this situation. How did the state respond?
Jefferis: That piece of the scope of the work is really kind of outside of my purview, as a representative of mental health residential folks. But what I can tell you is what it has done for our members. Our programs, as mental health residential providers … and we have four different kinds of mental health residential provider licenses, just like physical health has many different levels of care. Perhaps people are familiar with, you go to surgery, you go to recovery. Perhaps, if it’s heart specific, you go to the heart recovery wing or the cancer recovery wing. Then maybe you go out to a long-term care rehab facility to recover before you go home.
We have a very similar setup on mental health residential treatment, that there’s different levels of care and they all should not be permanent. There should be movement as people get healthier. The different interventions and supports provided to each of those settings is different, and appropriately different, to get them hopefully with outpatient support in either group housing, supported housing or independent housing. So it’s very similar to physical health care in many ways. People don’t always realize that.
So for us, delivering those types of care, what we have found is that now the referrals we receive are being pushed out more along the lines of the case processing issue, versus the medical necessity. And that is a concern because our programs are designed to serve folks with their mental health treatment first. That’s our main concern. We are health care providers.
Miller: Can you explain just briefly the basics of the rule change that took effect on March 1, what the state is now asking your members to do that they were not asking earlier?
Jefferis: So just like larger system health care, physical health, there are people who come and need treatment for heart disease, treatment for diabetes, and maybe they have criminal justice involvement, maybe they have other social needs, maybe they have many other things. And of course they’re gonna get their health care, correct? It is the same thing – behavioral health, mental health and substance use disorder are exactly the same. We are health care providers with doctors, nurses, master’s-level clinicians, other types of specialty providers, occupational therapists, mental health technicians, all kinds of different positions.
One of the main components of the role, is that it said you must prioritize based on this other non-medical factor of a person having an aid and assist case. So because we are designed as providers to really focus on that mental health treatment … and of course we’re going to treat people with different other, in our world we call it, comorbid or co-occurring instances, or other ancillary kind of social needs issues. But it’s a very different program to develop that is specific to serving a very narrow population with very specific needs. And I think maybe the best metaphor for that for folks is to think about there is a reason in physical health that you put folks in the heart disease wing, because you have certain training, certain specific supports, certain professionals that really know how to deep dive for that specific issue and that is the better placement.
So we can serve aid and assist folks, but that is a very different program that requires very different staffing, very different training, very different specialty care than just how the programs are currently designed to serve a mental health first, forward health care intervention. Does that make sense? I know it’s a complicated issue.
Miller: But basically, you’re saying you’re being forced to take patients in, broadly, your members are not ideally equipped to take in.
The CEO of Cascadia Health, James Schroeder, wrote this in a court filing: “Cascadia Health has experienced a significant pressure to accept clients who are not clinically ready or appropriate for our program at the time of referral, as many have received less than 90 days of treatment, which is generally not sufficient time to enable them to become psychiatrically stable.”
He added this. “This has resulted in discharges against medical advice, elopements, and challenging behaviors for staff and other residents.”
What are elopements?
Jefferis: So elopement is when a person, perhaps people are more familiar with this, you leave against medical advice. Your health care provider says, you should really do this, and you as a patient decide, no, I don’t really want to do this. So elopement is when the individual leaves the program.
Miller: And this would be from a non-secure facility? I mean, it’s possible for somebody who was recently in the Oregon State Hospital, I think of that as a place where it’s very difficult to get out of … Is that different from the kinds of facilities the state is saying these patients now need to go to?
Jefferis: Yes, that is correct. So as I mentioned, there are two secure types of residential facilities and then the rest are not secure. So, yes. And even our secure facilities are not nearly as secure as the state hospital. They are not particularly designed to do the function of the state hospital. That is what the state hospital is for.
Miller: As we were talking about at the beginning, the state has been dealing with this issue in various ways and through various court proceedings for years now. What do you see as a sustainable long-term solution?
Jefferis: Our members over many years who have really been thinking very hard about this. And what we like to really share with all of our leaders and everyone is that there are solutions to the system, and it is really supporting providers to develop and have the ability to serve individuals in purpose-designed settings. So I think this gets back to what James was talking about. And there are successful examples – one of the other petitioners, New Narrative, has an excellent example of actually a non-secure setting designed specifically to serve the forensic needs of aid and assist individuals, and their mental health and other needs, in an unsecure setting. And they have very good outcomes.
So sometimes folks think, oh, because folks have this co-occurring criminal justice concern, they really need to be secure. That’s not necessarily so. We see that if we actually take the time, and invest in the right infrastructure and systemic support, that providers can develop programs that are less restrictive that can be successful. Now, I’m not saying everyone in aid and assist needs to go to that program. We do need secure and unsecure. We need both because not all programs fit the needs of all individuals, but that is the crux. Not all programs fit the needs of all individuals. Just like physical health care, we want to make sure that we have a group of people with similar needs, so that they are surrounded in whole person care by a properly trained and supported staff. So that they can really get the best intervention possible to help them move on to the next lower level of care.
Miller: Heather Jefferis, thanks very much.
Jefferis: Yeah.
Miller: Heather Jefferis is the executive director of the Oregon Council for Behavioral Health.
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