From the Salem Statesman Journal, July 2, 2010

The state remains at odds with federal investigators amid an expanding civil-rights investigation into the Oregon State Hospital.

The gap emerged again Thursday as the state complied with a sweeping records request made by the Civil Rights Division of the U.S. Department of Justice, which has been investigating the Salem psychiatric facility for four years.

Newly released materials provided to federal investigators and the Statesman Journal include data on length of patient stays at Oregon State Hospital, discharge policies and the supply of community housing for patients leaving the state hospital.

Even as the state handed over documents to the federal Department of Justice, a state lawyer asserted in a letter to the feds that the information falls “outside the scope” of the agency’s investigation.

Micky Logan, Oregon’s Senior Assistant Attorney General, wrote in a cover letter to the U.S. Department of Justice: “As you know, this records request focuses on community placement information rather than Oregon State Hospital information. As we have consistently stated since the beginning of this matter in 2006, we believe that community placement issues are outside the scope of a Civil Rights of Institutionalized Persons Act (CRIPA) investigation. By providing this public information, Oregon is not conceding that community placement issues fall within the scope of CRIPA and your office’s current investigation of the Oregon State Hospital.”

The clash between the state and the federal Department of Justice carries increased significance because the federal Civil Rights Division, carrying out marching orders of the Obama administration, has stepped up enforcement to halt what it describes as “unnecessary institutionalization” of people in state-run psychiatric facilities throughout the country.

Thomas E. Perez, the leader of the Civil Rights Division, has said in recent speeches and testimony to Congress that so-called Olmstead enforcement ranks as the agency’s top priority.

At issue is a 1999 U.S. Supreme Court ruling in a Georgia case — Olmstead v. L.C. — that public agencies must provide treatment for people with disabilities in “the most integrated setting” that is appropriate to their needs.

The landmark ruling held that states must provide treatment for people with disabilities in community settings rather than in institutions when the state’s treatment professionals have determined that community placement is warranted.

The U.S. Department of Justice hasn’t confirmed that Olmstead issues are the focus of the Oregon State Hospital investigation. However, the leaders of mental health advocacy groups in Oregon are certain that is the case, and they welcome a federal examination of Oregon’s compliance with the mandate.

“Clearly, the U.S. Department of Justice is interested in whether the state is complying with Olmstead,” Chris Bouneff, executive director of the Oregon chapter of the National Alliance on Mental Illness, said Thursday.

As Bouneff and other advocates tell it, many OSH patients languish at the overcrowded, understaffed 127-year-old mental institution, and they would be better served with outpatient treatment, smaller community-based housing and other mental health services and supports.

“Is this a hospital or a jail?” Bouneff said about the state hospital. “If it’s a hospital, then it needs to be run like one, and community placement has something to do with that, both in terms of quality of care delivered and patient conditions. It’s also an issue in terms of deinstitutionalization, which is Supreme Court law of the land.”

Bouneff blasted Gov. Ted Kulongoski and Logan for the adamant state assertion that community placements are outside the bounds of the federal investigation.

“They just don’t get it,” he said. “They are so focused, as if this whole thing starts and ends within the walls of the hospital itself and only there. They are incapable of seeing the big picture.”

Sluggish discharge practices contribute to overcrowded conditions at the state hospital, which also kills patient motivation to get well and hampers their treatment, Bouneff said.

“Improving conditions at the state hospital takes more than just building a fancy building,” he said. “There are so many elements that go into it. U.S. DOJ has seen (lagging community placements) as an issue that is contributing to the poor level of care and neglect at the state hospital.”

Oregon is attempting to move patients out of the hospital faster to comply with the Olmstead decision, according to state materials handed over to federal investigators.

The state is wrapping up work on a final Olmstead plan, spelling out efforts to comply with the mandate.

“Oregon anticipates the final Olmstead plan will be completed in the next few weeks at which time it will be posted on the Addictions and Mental Health website,” states a summary report turned over to the U.S. Department of Justice.

To meet the intent of the Olmstead decision, it says, the state will provide opportunities for people to move to independent housing that promotes recovery, resiliency, independence and wellness in a system that is consumer driven and assists people in obtaining “a key to their own door.”

In keeping with that goal, the state intends to reduce the length of patient stays at Oregon State Hospital, establish a statewide network of independent living environments and prevent “unneeded hospitalizations at OSH,” the report states.

The U.S. Department of Justice has been investigating patient care and conditions at the state hospital since June 2006. In a 48-page report issued in January 2008, the agency rapped the hospital for unsafe conditions and widespread flaws in patient care. The report shocked state officials, spurring a concerted state push to improve patient care.

But last fall’s death of a patient who was neglected by hospital caregivers outraged mental health advocates, prompting them to call for Kulongoski to enter into a court-enforceable agreement with the U.S. Department of Justice for terms of better patient care.

Advocates want a court-appointed outside party to monitor progress at the hospital because they don’t trust state officials to make necessary reforms.

Kulongoski has rejected the idea, citing concerns about prolonged monitoring, expensive legal bills and sluggish reforms.

Beckie Child, board president of Mental Health America of Oregon, said Thursday that U.S. Department of Justice legal action against the state might be forthcoming because of Oregon’s no-budge stance on the issue of community placements.

“That issue hasn’t been resolved from the beginning,” she said. “So I guess that might have to get resolved in court. The state may be headed for a court-enforceable agreement one way or the other.”

READ – Letter + wide selection of documents responding to DOJ June 9 2010 request, June 30, 2010 (21 MB, 500+ pages, PDF)
READ – Cover letter to DOJ by Micky Logan, Oregon Senior Assistant Attorney General