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Proposed fixes for Oregon State Hospital stall in Legislature

Spending measures and legislation to address long-running litigation over the state’s behavioral health system face an uncertain future 
Oregon State Hospital in Salem. | OREGON HEALTH AUTHORITY
May 9, 2023

Last September, to free up beds in Oregon’s state-run psychiatric hospital and address complaints about the inhumane jailing of people experiencing mental illness as they waited for admission, a federal judge issued a landmark order that incorporated an outside expert’s sweeping recommendations

In the months since, one of the key recommendations has stalled while other measures that would ease pressure on the Oregon State Hospital are stuck in limbo. Notably, a controversial bill intended to set time limits for housing patients at the hospital died quietly in the Legislature, causing the expert to express concern in a recent status report.

The expert, Dr. Debra Pinals, described in her report “unclear” support from Gov. Tina Kotek and unfocused officials at the Oregon Health Authority as Senate Bill 219 met strong opposition. Pinals added that the gubernatorial transition to Kotek, who took office Jan. 10, “has not been as smooth as one would have hoped.”

Pinals’ status report shows how even with a federal court dictating management of a key segment of Oregon’s mental health system, change can be difficult in Salem.

Emily Cooper, legal director for Disability Rights Oregon, called Pinals’ concerns about Kotek’s handling of S.B. 219 “pretty damning.” She added that the bill would’ve been an “important” part of the state’s efforts to fix the problems with its behavioral health system. 

“The North Star is that people with mental illness shouldn’t languish in jail,” she told The Lund Report. 

But Billy Williams, an attorney representing local prosecutors in litigation over the state hospital, told The Lund Report that the Legislature should be focused on expanding capacity at the state hospital and increasing community resources. Right now, the federal court is in “the position of running the state’s mental health system,” he added.

A controversial timeline

State health officials have long struggled to comply with a 2002 federal court order intended to keep people who have mental illness accused of crimes from spending months in jail while awaiting treatment at the state hospital. 

As part of a 2021 agreement with Disability Rights Oregon and public defenders, the health authority hired Pinals to help it come into compliance with the order.

U.S. Judge Michael Mosman in September incorporated Pinals’ recommendations into an order intended to open up state hospital capacity. That included setting limits for how long the state hospital can house patients who are being treated so they can aid and assist in their own defense. 

Specifically, Mosman ordered that patients facing misdemeanor charges can be committed to the state hospital for a maximum of 90 days. Patients facing felonies can be housed at the facility no more than six months. For violent felonies, the limit is one year. 

But local prosecutors and others have criticized the discharge deadlines imposed by Mosman’s order as unrealistic and causing potentially dangerous patients to be released early. 

Pinals noted in her initial report that Oregon could improve access to services if it changed state law to align “with clinical data, case law, and legislation in other states.”

In her April report, Pinals wrote that Mosman’s order is not a “sustainable solution” to the state’s lack of community treatment beds, and called it “critical” that there be “a legislative remedy to the appropriate use of OSH beds and community restoration slots.”

‘Support by the state was unclear’

Before leaving office in January, then-Gov. Kate Brown submitted Senate Bill 219, which would have put the timelines ordered by Mosman into state law. It also would have set the same timelines for people whom a court has ordered to pretrial supervision or other community-based services. 

Additionally, the bill would have directed the health authority to study a cost-sharing arrangement between counties and the state for defendants who need treatment before facing charges.

But legislative leadership did not schedule the bill for committee hearing or vote before the March 17 legislative deadline.

To explain the bill’s demise, Pinals wrote in her report that Patrick Allen, health authority director under Brown, and other officials “had been significantly involved” in state hospital litigation. But Pinals wrote it wasn’t clear how much Brown’s administration was able to brief the incoming Kotek administration on the litigation.  

During health authority interim director James Schroeder’s brief stint in office, his chief of staff, Yoni Kahn, was assigned to the state hospital litigation, though he later was transferred to another post. Annaliese Dolph was appointed to lead Kotek’s behavioral health initiatives, according to Pinals’ report. 

“When asked, I initially received unclear messages from OHA and Ms. Dolph about whether this bill would be supported by the high-level executive branch leaders, though eventually Mr. Kahn was able to receive positive word that the legislation would be supported,” Pinals wrote. 

Pinals further wrote, “As the new administration took office, there were initial gaps in awareness of this bill (SB219) and its progress. This was followed by conversations to ensure alignment and ongoing support of the proposed legislation, though for a couple of weeks, the support by the state was unclear.”

Schroeder and Dolph held a listening session where “stakeholders conveyed their concerns” about the court order, prompting a new plan to hold work groups, wrote Pinals. Then Schroeder resigned and Kahn was reassigned; meanwhile, Pinals described Dolph as being less involved. 

The bill was assigned to the Senate Judiciary Committee early in the session. The committee did not take any action on the bill; nor was it referred to the Senate Rules Committee, which isn’t subject to most legislative deadlines and is often where lawmakers send bills that require more negotiations.  

Cooper said the bill’s failure was regrettable because it also contained a provision for the health authority to hire a consultant to look into whether counties are over-relying on the state hospital instead of more intensive community-based mental health supports.

But Washington County District Attorney Kevin Barton doesn’t agree. He is part of a group of local prosecutors who’ve asked the federal judge to reconsider the shortened treatment timeline for the state hospital. 

“The hospital needs to function,” Barton told The Lund Report. “And if we change Oregon law to put in these unreasonable timelines, it will create a bigger burden for communities that are least able to handle it.”

Asked about Pinals’ observations, Amber Shoebridge, a spokesperson for the health authority, pointed to some positive developments the expert noted. Pinals characterized Dave Baden, the agency’s new interim director, and new Behavioral Health Director Ebony Clarke as having a “strong investment in helping the state achieve compliance.” Pinals also praised state hospital staff and Superintendent Dolly Matteucci as “a steady hand.” 

“Oregon State Hospital and Oregon Health Authority continue to work closely and collaboratively with their community partners to follow the requirements laid out in the federal court order while also offering a safe and stable environment for patient recovery,” Shoebridge wrote in an email. 

Other concerns

Barton, the prosecutor, said the state hospital needs more beds, and he agrees with advocates that communities across the state need more treatment options.  

bill seeking to increase the state hospital’s capacity, however, died in committee. 

The Legislature is considering an estimated $271 million request to expand residential treatment beds for Oregonians with substance use or mental health disorders. 

But how much of that request will be funded remains an open question as lawmakers await next week’s release of the state economic forecast that some expect to predict tighter revenues than previous years. 

Meanwhile, state lawyers representing the health authority have highlighted concerns about the funding for Senate Bill 624, which would direct the health authority to expand its network of certified community behavioral health clinics that are eligible for Medicaid funds. 

Oregon is one of 10 states that have the clinics as part of their participation in a Medicaid-funded pilot program. The clinics provide a range of services including primary care as well as stabilization treatment for people with substance use and mental health disorders regardless of insurance. Proponents say the clinics could help better coordinate services and help keep people from landing in prison or the state hospital. 

The state lawyers contend the clinics could help “resolve the State Hospital crisis,” according to a state status report obtained under Oregon Public Records Law, and the delays caused by waiting for SB 624 “has posed significant barriers for the program team.”

There is currently no price tag on the bill, which is sitting in the Legislature’s budget-writing committee. But the document further states that it is “likely” the bill will not pass due to its high cost. That would mean Oregon’s behavioral health director would have to decide whether to pull out of the federal pilot or “try again” in the next session while losing out on federal funding, according to the document. 

The state document also observes that Kotek did not include in her proposed budget funding for a grant program, called Improving People’s Access to Community-Based Treatment, Supports and Services (or “IMPACTS”). The program directs grants to counties to help them provide services for people with mental health or substance use disorders. 

The Criminal Justice Commission, which administers the grant, is “worried about long-term implementation feasibility” of the program after Kotek didn’t include it in her budget. 

Asked about the state lawyers’ comments, Elisabeth Shepard, spokesperson for Kotek, told The Lund Report in an email that funding for the grant program runs through 2024 and the governor will consider its results with an eye on next year’s legislative session. 

Shepard added that Kotek’s proposed budget “is focused on effectively distributing the $1 billion in investments made in the 2021 legislative session” on the state’s behavioral health system. Kotek’s budget also calls for another $200 million in additional behavioral health investments in the next two-year budget that includes money for more facilities and staffing at the state hospital. 

“These investments will support a community continuum of care and take pressure off the state hospital, while also creating a sustainable workforce at the state hospital,” she said. 

Pinals wrote in her report that Kotek and health authority leadership should pursue another version of S.B. 219 “at the soonest possible available time.”

Oregon Senate Majority Leader Kate Lieber, D-Beaverton, plans to continue discussions with the health authority and other parties after the Legislature adjourns in June, according to a spokesperson. 

You can reach Jake Thomas at [email protected] or via Twitter @jakethomas2009.