A new report calls on the state of Oregon to reduce the time it takes to admit people to the Oregon State Hospital who’ve been languishing in jail, those deemed unable to assist in their own defense.

The report, by an outside expert, also recommends the state of Oregon to immediately change its policy to more quickly discharge patients currently housed at the Oregon State Hospital who are considered able to assist in their defense.

The report, obtained through a public records request, provides the Oregon State Hospital with a roadmap of reforms to open up a bottleneck that has sparked numerous lawsuits and widespread concern over civil rights violations as people with untreated mental health needs sit in jail cells and wait longer for a resolution to their criminal case.

The state-run hospital, which provides mental care for patients, received a final report and recommendations from an outside expert and evaluator, Dr. Debra Pinals, a clinical professor of psychiatry and director of the Law, Psychiatry and Ethics program at the University of Michigan. The 35-page report, dated Sunday, is part of an interim settlement agreement between the Oregon Health Authority, which runs the hospital, and the entities that sued the state, Metropolitan Public Defender of Portland and Disability Rights Oregon, a statewide advocacy and watchdog group. 

The recommendations mark the latest chapter in longstanding litigation between disability rights advocates and Oregon State Hospital over the state’s inability to admit patients who need treatment so they can face pending criminal charges in court and aid in their defense. The hospital has struggled to comply with a 2002 court order requiring admissions within seven days.The report, obtained Monday by The Lund Report, sets a goal for the state of gradually reducing the average wait time for admission to seven days or less by Feb. 14, 2023. In May, 67 people in “aid and assist” cases were waiting in Oregon jails for entry to the hospital for an average of 16.2 days. Aid and assist patients are those who need court-ordered treatment before they can stand trial in pending criminal cases and aid in their defense.

Patients in this group, called “aid and assist” cases, make up the bulk of the population at Oregon State Hospital, but not the entirety. 

The hospital also serves patients who enter through civil commitments and patients who are found guilty except for insanity and need treatment. As of May 23, the hospital had 683 patients in its Salem and Junction City campuses, 401 of them aid and assist cases, according to the expert’s report. 

Emily Cooper, legal director for Disability Rights Oregon, said the watchdog organization remains concerned about the harm that befalls people as they wait in jails for hospital care. For example, in April, an inmate in Washington County Jail died 10 days after a court ordered him sent to Oregon State Hospital, the Oregonian reported.

“We just remain concerned,” Cooper said in an interview with The Lund Report. “The state hasn’t been in compliance for several years now. And what’s really promising about this report is they now have the roadmap.”

In a statement, Oregon Health Authority Director Patrick Allen said:  “I am extremely encouraged by the thoroughness of Dr. Pinals’ work and her careful assessment of the capacity challenges the state faces. I believe her recommendations are reasonable and achievable and I look forward to seeing them applied.”

Expert Pushes Community Alternatives

The expert’s recommendations to the health authority came after months of visits with hospital and authority staff, patients, mental health providers and others. Earlier this year, Pinals gave the state an initial set of recommendations. 

In the final report, Pinals wants the state hospital to send aid-and-assist patients back to their county after their forensic evaluation finds them “able.” During the pandemic, the hospital started a policy of keeping those patients for an extra 30 days beyond that evaluation if the defendant contests that finding.  However, “this has contributed to extended lengths of stay for many individuals,” the report said.

The recommendations are designed not only to get patients into the hospital sooner but also to get hospital patients into community-level programs if possible to free up beds.

For example, Pinals recommends that the hospital by July 1 draw up plans to prioritize aid-and-assist patients and get them earlier evaluations that re-examine their competence to stand trial and quicker evaluations to determine if the patients still need hospital-level care.

Pinals also is asking the state to provide her with information about the state’s availability of community restoration programs. The programs could potentially be an alternative to the state hospital for some people, including those with substance use disorders. That report is due on Aug. 15.

Other recommendations include: 

• Producing a “data dashboard” twice a month and sharing it with entities working on the issue, including the Oregon Judicial Department, coordinated care organizations and others.
• Develop a public website as soon as possible, to keep people informed of the state’s progress toward addressing the issue and post public records and data on the case.
• Working with coordinated care organizations to ensure aid-and-assist patients get care through the Oregon Health Plan when they are released to their communities.

Report Urges Legislative Action

For some of the recommendations, the Legislature would need to change the state law. For example, Pinals wants the state to change its law that sets the time limit for how long an aid-and-assist patient can receive care in the hospital. 

Currently, Oregon law sets the time limit at three years or the maximum sentence the person would have served if the court found them guilty, whichever is shorter.

For misdemeanor charges, the expert recommends that Oregon change the limit to either 90 days or the maximum possible sentence, whichever is shorter. 

For felony charges, the recommendation is six months or the maximum possible sentence, whichever is shorter. For violent felonies, the six-month limit on treatment would be extended for another six months, up to one year total.

Separately, Pinals recommended that the state look for ways to use community and other alternative programs to treat misdemeanor defenders when possible instead of the hospital. 

The report and recommendations do not necessarily end the lawsuit. Disability Rights Oregon will continue to monitor the state’s progress, Cooper said. 

However, Cooper said, she views the list of recommendations as a “punch list” of steps for the state to take.

“The way I’m looking at this is if they don’t follow these recommendations … then that’s a message to us that we may have to work to go to the court to ask for relief for our clients,” Cooper said.

However, the organization views the report and recommendations as a good step, particularly as it comes nearly a year after the Legislature appropriated about $1 billion to help the state’s behavioral health system. The state is working on rolling out that funding for a variety of programs, including residential care and incentives for community providers to hire more employees. But progress has been slow. Providers and agencies say the state needs to more decisively  expand the capacity of a system that is still reeling from the impact of the pandemic.

“At the end of the day, this is a really promising step because the state has had the money to fix this problem for nearly a year,” Cooper said. “And now with this report, it has the directions from Dr. Pinals.”

Lawsuit History 

The 2002 lawsuit stemmed from the hospital’s inability to admit patients who need mental health care in order to face trial in pending criminal cases and aid in their defense. The initial court order in that case held that the hospital must admit those patients within seven days of the court finding that they lack the mental capacity to go to trial and aid their defense attorney. 

Disability Rights Oregon took the state to court in 2019 for its failure to follow the order, as people waited an average of 26 days for admission into the hospital while sitting in county jails. The state also asked the court for more leeway in timely admissions when COVID-19 started in 2020. This was initially granted, but later overturned in August 2021 when Disability Rights Oregon appealed. As negotiations continued, the state and plaintiffs agreed to hire the outside expert in December 2021.

You can reach Ben Botkin at [email protected] or via Twitter @BenBotkin1.