For the second time in less than a year, the Oregon State Hospital has fallen out of compliance with a long-standing federal court order that requires it admit inmates from jails within seven days of them being found so mentally ill they can’t aid in their own criminal defense.

The Oregon Health Authority — which is managing the state’s response to the coronavirus and also oversees the hospital — plans to ask a federal judge Thursday to modify an injunction on admissions imposed nearly 20 years ago.

The Oregon State Hospital in Salem, Ore., is pictured on Thursday, June 27, 2019.

The Oregon State Hospital in Salem, Ore., is pictured on Thursday, June 27, 2019.

Bryan M. Vance/OPB

On March 16, the Oregon State Hospital began restricting admissions in an effort to prevent COVID-19 from reaching the state hospital. Because of the cut in admissions, inmates found unable to aid and assist in their own criminal defense have been left without state-provided treatment for their mental illness. Instead, would-be patients are languishing in local jails where psychiatric and mental health services are either limited or don’t exist.

Now, the agency wants a federal judge to sanction that practice, effectively protecting OHA from violating the admissions order during the coronavirus pandemic.

So far, two staff members at the Oregon State Hospital have tested positive for the virus, state officials said Wednesday. Three patients have tested negative. No tests are pending.

The state hospital was out of compliance with the admissions order for nine months last year. In August, after lawmakers passed legislation that made it more difficult to send people to the state hospital, the state once again began accepting mentally ill inmates within the required seven days.

At least 34 people were in jail waiting for admission into the hospital as of Monday — and that number will likely continue to grow. They’re charged with crimes like harassment, assault and criminal trespass.

“They’re what you see from seriously mentally ill people,” said Jesse Merrithew, an attorney representing Metropolitan Public Defender who opposes the state violating the 2002 federal court ruling.

Public defenders and mental health advocates argue the state is leaving some of the most vulnerable people to suffer in jail or fend for themselves during the global public health crisis.

People in jails and prisons are vulnerable to contracting COVID-19, in part because it’s extremely difficult to create enough social distance to slow or prevent the spread of the virus. The New York Times found Chicago’s Cook County Jail was the nation’s largest known source for COVID infections.

“People with mental illness are already at risk in a jail setting,” said Emily Cooper, Legal Director for Disability Rights Oregon, which sued the state over timely admissions to the hospital and won. “We understand that there is a public health crisis and they’re doing everything they can do for patients at the state hospital. What we are asking them to do is consider the needs and risks for people who should’ve been patients at the state hospital.”

On March 16, the same day the hospital started restricting admissions, Oregon Assistant Attorney General Carla Scott wrote an email to U.S. District Court Judge Michael Mosman, informing him of an emergency action the Health Authority took to limit admissions to the State Hospital.

“Under this policy, we expect that OSH may become unable to temporarily comply with the injunction in this matter,” Scott wrote.

Oregon State Hospital spokeswoman Rebeka Gipson-King said Wednesday the hospital is currently developing protocols for expanding admissions.

“It is imperative that these brand-new admission protocols are well thought out and robust enough to protect the health and safety of our current patients as well as those we are admitting,” Gipson-King wrote in an email.

But that’s not what the OHA has been saying for weeks.

On March 18, state health officials told Disability Rights Oregon the safest way to protect hundreds of patients inside the state hospital was to restrict admissions.

But OHA’s plan didn’t include information about those would-be patients, especially those sitting in county jails.

“The implication of the policy is that the vast majority of people deemed unable to aid and assist their attorneys would not be admitted to the state hospital, but would instead remain incarcerated at a local county jail,” Disability Rights Oregon wrote in a letter to state officials on March 19. “There is no definite end to how long this prolonged confinement would last, and no one is currently in a position to make predictions.”

Enclosed in the letter, was a proposal: use OHA’s powers under the state emergency declaration to lease or purchase rooms so those deemed mentally ill and stuck in jail could have somewhere else to go. The state would also need to hire or contract staff to provide mental health treatment.

The Oregon Health Authority “has the authority to bypass state requisitioning laws and other bureaucratic hurdles that would typically stand in the way of such endeavors,” DRO wrote. 

On March 30, the state wrote back, saying a makeshift proposal wasn’t possible. 

“While DRO’s desire to create additional capacity for people suffering from mental illness is understandable and commendable, establishing a hospital level of care in a non-hospital setting (such as a hotel) is simply impossible during the current surge,” an attorney for the state Department of Justice wrote. “Psychiatric hospitals are highly complex operations, both clinically and operationally.”

Judge Mosman will hear arguments in the case at 9 a.m. PT Thursday.