
An outdoor area at the Oregon State Hospital in Salem, March 8, 2023.
Kristyna Wentz-Graff / OPB
In early June, a federal judge found the state in contempt of a court order that requires people with severe mental illness in custody to be quickly admitted to the Oregon State Hospital. Oregon has started racking up fines of $500 per day for each person who has to wait in a local jail cell for more than a week before being admitted to the hospital. Now, the state is appealing that decision and has asked the court to pause the contempt ruling.
Amelia Templeton is OPB’s health reporter and has been following this story. She joins us to share more on what is happening at the state’s psychiatric hospital.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Geoff Norcross: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Geoff Norcross. Earlier this month, a federal judge found the state of Oregon in contempt of a court order that requires people in custody with severe mental illness to be quickly admitted to the state psychiatric hospital. The state is now on the hook for $500 a day for every person who stays in jail more than a week. The state is now appealing that ruling.
Amelia Templeton is covering this story. She reports on health and health care for OPB, and she joins us now. Amelia, welcome to the show.
Amelia Templeton: Thanks so much.
Norcross: This ruling comes after decades of litigation. Can you remind us where it all started in 2002?
Templeton: Yes, a group that was known at the time as the Oregon Advocacy Center, now Disability Rights Oregon, sued the state over violations of the constitutional rights of people with serious mental illnesses who had been arrested and were in jail awaiting trial. They claimed that essentially Oregon’s county jails had no real capacity to treat patients with mental illness, that these people were sometimes languishing for many months in jail cells with no meaningful access to treatment. They were often put in isolation. They were getting sicker and sicker, and they weren’t being effectively restored to be able to regain enough mental competency to stand trial and face the charges against them. A federal judge was essentially convinced by the case that they made.
Since that time, the state has been under a permanent injunction to admit defendants from jail to the state hospital within seven days of when a judge overseeing their case rules that they are unable to aid and assist in their own defense and need treatment.
Norcross: They have not been hitting that, obviously. We’ll get to that in a minute. What has the demand for the hospital been like since then?
Templeton: I would say, certainly in recent years, it has grown, it has intensified. The state did actually, I think, for some period of time after that 2002 ruling, the situation improved. Even today, those sort of many months’ delays, that has come down somewhat. But essentially, as the demand increased, wait times started to climb again and that led Disability Rights Oregon to come back to the courts.
Norcross: Yeah, and that was in 2019 [when] they reopened the case. That was just a year before the pandemic, which we have to mention kind of reshuffled everything. But what came of that action by DRO to reopen the case in 2019?
Templeton: There was some legal back and forth, in part because the pandemic happened. And the state argued for a while that while COVID was taking place, they really couldn’t meet this admissions deadline. But eventually in 2021, the courts weighed in and said, “look, you can’t use the pandemic as a reason to not meet your constitutional obligation here.” Then, in 2022, we had this landmark ruling known as the Mosman Order, where the federal judge who was handling the case at that time ordered strict time limits on how long people could stay at the Oregon State Hospital. [They] also essentially closed the hospital to most civilly committed patients in order to preserve the capacity there for people coming in from the jails.
As a result of those rulings, about 95% of the patients at the Oregon State Hospital today are people on these aid and assist orders; people who are waiting in jail to be admitted. They can stay for a maximum of six months for treatment if they have been accused of a misdemeanor. A maximum of a year for treatment to try to restore them to be able to stand trial if they’ve been accused of a felony.
Norcross: You’ve mentioned a couple of times now that not admitting people within that seven days runs afoul of some constitutional issues. What part of the Constitution does it run counter to?
Templeton: Cruel and unusual punishment. Essentially, being held before you’ve been tried. I think also due process, I believe it is, being held before you’ve been tried. These are all people who are in pretrial detention and held for these lengthy periods of time without access to mental health care.
Norcross: OK, so it has been years since the hospital was able to admit people within the seven-day window. What led to this recent contempt ruling against the state?
Templeton: Well, for a brief period after this very controversial order that sort of tried to move people through the hospital more quickly to free up space, it did look like the state was getting close to that seven-day target. There was a few months where the Oregon State Hospital and the [Oregon] Health Authority did actually meet it. Then, things started trending in the wrong direction again. The reasons why are controversial. There is a group of prosecutors, district attorneys and even judges in the state who really believe that these time limits at the hospital have actually made the problem worse by contributing to sort of recidivism, that we are essentially releasing people before they’ve actually been able to be restored to competency. So part of why things are trending in the wrong direction is because we should be letting people stay longer.
The sort of contrary opinion is that there’s a fair amount of established precedent that shows that if people don’t respond to certain psychiatric drugs within a set amount of time, they are unlikely to in the long-term. And we can’t keep using the state hospital as essentially a warehouse for people who are homeless, mentally ill and getting involved with the criminal justice system. So, what brings us forward to that contempt ruling is a new judge is assigned to the case, Judge Adrienne Nelson. Fairly early on, she signals that she’s really not happy with the status quo. In court, she actually asks Disability Rights Oregon if they have considered seeking a contempt ruling against the state. At that point, a couple months later, Disability Rights Oregon files to raise this question of contempt.
There’s two days of arguments in court where the state’s job is to try to prove, not that they’re meeting the timeline – because everyone agrees they’re not – but to try to prove that they have taken every reasonable action to solve these problems at the state hospital, to come as close as they can, and that to find the state in contempt is premature. Some people really thought that the state had a good case to make there. The Oregon Health Authority, for example, had brought legislation in this legislative session that would take those time limits that have been so controversial, write them into state law and make them permanent. So, I think people had a sense like maybe she will let this play out in the legislature.
But what you saw was some of the same parties to this litigation also got involved in that legislative battle and were actually opposing that change. So in the end, Nelson pointed to a couple of things. One of them was, essentially, that the state has not built out enough – anywhere near enough – alternative places for people who are profoundly mentally ill to live, to be treated, other than the state hospital, and that we are essentially using the criminal justice system as if it were the only option. In her ruling, finding contempt, she essentially said this is not what the system was built for, and it needs to go back to its narrow purpose of just restoring people so they can stand trial.
Norcross: You mentioned that everybody agrees that the state is not hitting its seven-day target. How badly are they missing it? What’s the average wait time now?
Templeton: It fluctuates. It’s different in different reports, but it’s not crazy far off. I believe it’s taking them anywhere from an extra couple of days to an extra week or two on average most months. So kind of within the 10 to 20-day range is how long people are waiting before they get admitted, on average.
Norcross: What does that mean financially for the state since they’re on the hook for $500 a day per person who is jailed?
Templeton: It means the fines are going to accrue really quickly. So, $38,000 is what the state reported. They are responsible for estimating their own fines. And in less than two weeks, they racked up $38,000 of fines for a total of 24 people who had to wait past the court-mandated limit. You can extrapolate that out and it adds up very quickly.
Norcross: Amelia, you have a story on opb.org, just right now, that reveals that the state is appealing this decision. What is their argument?
Templeton: They make a legal argument. They say that Judge Nelson relied too heavily on some evidence that wasn’t actually presented at trial, but that’s from this expert report that came a few months after trial in concluding the state hadn’t made every reasonable effort. And, that they hadn’t had a full chance to defend themselves essentially in court. That’s the legal argument. They also make this argument that they’re requesting a stay of the contempt decision as well while they appeal, saying that having to pay these fines will cause irreparable harm because the Oregon Health Authority is simultaneously looking at millions of dollars in funding cuts, as a result of the Trump Administration’s cuts to public health and other things.
Essentially, they have a fixed budget. In order to pay these fines, they will have to make cuts elsewhere. The places they say that that will come from are things like a cost-of-living increase for the state’s behavioral health care workforce, which could be essentially on hold, and cuts to the staffing at the Oregon State Hospital. They’ve said they would have to cut nurse practitioner positions, administrator positions, custodial positions; a whole litany of staff they will not be able to afford if they are on the hook for these fines.
Norcross: In the meantime, as this appeal happens, is the state hospital still on the hook for those fines? Are they accruing every day still?
Templeton: So, the court docket is filling up as we speak. There were new filings this morning from Disability Rights Oregon – which I should say opposes the appeal – [that] believes that the state has had plenty of time to essentially work the situation out and says there is a constitutional violation of constitutional rights here for hundreds of people. And those people are, in some cases, quite literally dying in jail while they await this care.
So, yeah, unclear. I have not seen a ruling on the request for a stay yet. I will say in a parallel case in Washington state, the state did ultimately have to pay $100 million in fines. But that was much, much later, I think even years after the court had initially ordered those fines imposed. So we’ll see what happens in this case.
Norcross: Outside of all of this, you’ve been covering a patient’s death at the hospital that happened back in March. What happened?
Templeton: Well, we don’t have all of the details. But we know that the patient suffered some sort of fall, some sort of medical emergency, while they were in seclusion. The response was poor enough to result in a pretty scathing report from investigators who are part of the regulatory oversight of the hospital through CMS, the Centers for Medicare and Medicaid Services. So, yeah, that patient’s death was one of a number of them that have raised questions about the speed of the hospital’s emergency response, the degree of oversight of patients, especially patients that are in seclusion … but also the leadership at the hospital.
Norcross: Speaking of the leadership, it’s changed hands quite a few times over the years. What is the current state of the leadership there?
Templeton: Governor Kotek essentially dismissed the previous … Let’s see, it has been such a back and forth, I’m trying to figure out how to explain this without … The state hospital had a very longtime superintendent, Dolly Matteucci. She stepped down. She was replaced by a woman named Sara Walker, who had been the chief medical officer at the state hospital. We have heard and reported that Doctor Walker was really asked to kind of step into that role. At the same time, she was still serving as the chief medical officer. That was an incredibly difficult, high-pressure set of roles to be juggling at a time when the state is also embroiled in this long-standing litigation.
Then weeks after the patient death, Governor Kotek said she had learned some sort of new information about what happened that led her to dismiss Dr. Walker. Dave Baden, who was the second in command at OHA, was brought in. He essentially announced some immediate changes. I think the biggest one was that clinicians – so psychiatrists, supervisors – will no longer be able to work remotely, and some other policy changes that were intended to sort of send a message of trying to raise the standards, trying to improve the quality of care. And they’ve just announced that Baden is heading back to his role as second in command at OHA and they have a new interim superintendent taking over.
Norcross: OK, a lot of churn at the top, clearly. What this brings to mind is the fact that there has been a lot of controversy at the Oregon State Hospital. It’s been in existence for over 150 years and there have been leadership issues, like you mentioned. There have been patient deaths, overcrowding, poor facilities. I’m wondering what this latest controversy tells us about the state of mental health care in Oregon right now?
Templeton: I think it tells us two things. One, I think the state hospital is really kind of a crucible for all of the hardest problems in Oregon. If you think about who’s there, about 95% of the people who are there have come from a county jail. The vast majority of those, I’ve heard it’s about two-thirds, were homeless at the time of their arrest. So you’re talking about a group of people who have been living on the streets, maybe without healthcare, without a lot of supports, who have serious mental illness. The kind of mental illness that leads to hallucinations, psychosis, delusions, catatonia, an inability to take care of yourself or feed yourself. So, the people at the Oregon State Hospital … I think a lot of them are working in an incredibly challenging environment with some of the most complex people in the state.
We have spent an enormous amount of money. It’s about half a million a year for a single individual to be treated at the state hospital. We’ve spent an enormous amount of money on this problem without really stabilizing a lot of these patients. It’s really a reflection of a much bigger, much more broken mental health treatment system in the state that we’re all kind of aware of that is going to take time and money to fix.
Norcross: Amelia Templeton, thank you so much for this.
Templeton: You’re welcome.
Norcross: Amelia Templeton covers health and health care for OPB.
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