From the Oregonian, October 28, 2004
Archived at The Carter Center

The Oregon State Hospital has agreed to pay $200,000 to the family of a patient who died in 2001 when a group of hospital workers tackled him after a disagreement over soda pop, then tied him to a restraint bed while he was unconscious.

Workers eventually noticed that Ben Bartow, 41, was not breathing and tried to revive him. The state medical examiner determined that he died of a heart attack caused by the struggle.

The amount for the two claims of negligence in Bartow’s death is the maximum allowed under the Oregon Tort Claim Act, which places a limit on the extent to which a public entity may be held liable. The settlement comes at a time of increased scrutiny of the state hospital.

His death “was an avoidable incident,” said Stephen J. Mathieu, an attorney for the Oregon Advocacy Center, which sued on behalf of Bartow’s family. “Oregon State Hospital staff should have intervened to prevent the escalation. But because of the overcrowding and understaffing, staff were unable to pay as much attention to the warning signs as they should have.”

Mathieu said Wednesday that several employees who restrained Bartow testified in depositions that they’d never heard the term “positional asphyxiation.” In fact, when Bartow screamed that he couldn’t breathe, they assumed that because he could scream, he could, in fact, breathe.

That “fatal error” led to Bartow’s death, Mathieu said.

A Justice Department spokesman, Kevin Neely, said the hospital admitted no wrongdoing in settling the case. After Bartow’s death, he said, the hospital installed defibrillators on wards, updated restraint training to include information on positional asphyxia and instructed workers on how to de-escalate situations rather than use physical restraint.

Bartow was supposed to drink only one caffeinated beverage per day. On Aug. 11, 2001, he sneaked two.

According to the lawsuit, a psychiatric aide told Bartow that because he had broken the rule, he would lose his soda pop privileges the following day. When two patients returned to the ward after the next day’s “pop run,” the same psychiatric aide commented loudly that Bartow, who suffered from paranoid schizophrenia, would not receive a soda.

Bartow became agitated and exchanged words with the worker. Soon, the workers and Bartow squared off.

The lawsuit alleges that the workers called for help from other wards “without attempting to verbally or physically de-escalate this adverse interaction.

According to the complaint, at least six hospital workers formed a “dog pile” on top of Bartow. “Hands and knees were placed on Benjamin Bartow’s head, neck, extremities, shoulders, shoulder blades, hips and mid-back by six to 10, or possibly more, staff members,” the suit states.”

Lawyers, witnesses and state records indicate that other patients pleaded with staff members to let up, but workers continued, eventually injecting Bartow with tranquilizers until he went limp. Employees then placed him in steel handcuffs and ankle restraints, carried him to a seclusion room — his head dangling between his shoulders — and strapped him to the bed.

Sometime later, staff noticed that Bartow’s face was blue, that he had no pulse and he wasn’t breathing, state records show. A nurse tried to revive Bartow, using manual chest compressions and a breathing tube, but he died.

“It wasn’t just his family that was devastated. So were the patients who witnessed it,” said Bartow’s sister, Loyette, who didn’t want her last name used. “Many of them were his friends.”

Bartow, a former football player at Neah-Kah-Nie High School in Rockaway Beach, was diagnosed with paranoid schizophrenia at age 19, according to his sister. From then on, her brother was in and out of hospitals and group homes. The sounds of voices in his head often terrified him, causing him to react unpredictably.

While living in a rooming house in the Medford area in 1990, Bartow severely beat a fellow resident. He was charged with attempted murder and ultimately found guilty of assault, except for insanity. He was placed under the jurisdiction of the Psychiatric Security Review Board for 20 years.

Bartow worked as a janitor in the hospital and dreamed of owning his own cleaning service.

“The amount of money wasn’t the reason we sued,” Bartow’s sister said. “We wanted to let the hospital know that what had happened there wasn’t right and, if we could, bring about some changes for the other patients who are still there.”

In addition to the money paid to Bartow’s family, the state has agreed to discuss supplying each ward in the psychiatric hospital with a emergency crash cart to help resuscitate patients, Mathieu said.

The settlement comes days after Sen. Peter Courtney, D-Salem, said conditions inside the 121-year-old institution are so appalling that it is vulnerable to a federal lawsuit and possible takeover by the courts.

Bob Joondeph, executive director of the Oregon Advocacy Center, a watchdog agency for people with disabilities, agreed with that assessment. Joondeph said that while he believes understaffing and overcrowding played a large role in Bartow’s death, the center requested that the claim be dismissed “without prejudice” from the Bartow lawsuit, which would allow advocacy center lawyers to pursue that issue in the future.

“Sen. Courtney’s warnings about potential legal liability are real,” Joondeph said. “We’re hoping the state will move quickly to fix these problems on its own.”

Managing Mental Illness in Prison Task Force
Findings and Recommendations
October 2004
Oregon Department of Corrections
________________________________________

READ – Managing Mental Illness in Prison Task Force – 2004, in original formatting.

Oregon State Penitentiary was established in 1866 for the purpose of housing offenders away from the general citizenry. There are 12,733 inmates within the Oregon corrections system at the time of this writing. At about the same time, the first state mental hospital, the Oregon State Hospital in Salem, was opened in 1883 with the admission of 320 patients. The first legislative authorization for the construction of the hospital was passed on October 25, 1880. Before construction of the state mental hospital, Oregonians with mental illness were cared for in a private mental hospital in Portland at state expense.

There has been an increase in mental illness in prison. Twelve to fifty percent (12-50%) of the population experiences some form of mental or emotional problem. There are greater obstacles for the inmate with mental illness and for those in the general prison population, for who are charged with maintaining security within the prisons, and for those who would provide care and treatment for the inmate with mental illness. This brings us to the focus of this report.

By Executive Order dated October 8, 2003, Governor Kulongoski appointed a Governor’s Mental Health Task Force to address specific issues related to the delivery of mental health services to Oregonians. In their report, Governor’s Mental Health Task Force Report, September 2004, the authors identify short-term actions as well as long-term strategies to improve the lives of Oregonians with mental illness.

The Oregon Department of Corrections Managing Mental Illness in Prison Task Force goes on further to examine the aspects of how to effectively manage the mentally ill once they enter the corrections system. Historically, prison structures were not equipped to treat the mentally ill. Rather, corrections systems were organized along the lines of restraining the criminally inclined and protecting the outside population. To successfully fulfill the charter of the Oregon Accountability Model, the Department of Corrections must adapt.

This Task Force identifies the issues, supply findings, and provide recommendations for action. The Task Force wishes to acknowledge those who have contributed their talent, time and effort to the project.

Managing Mental Illness in Prison Task Force

Paula Allen, Chief of Operations, Oregon Department of Corrections
Terry Lorance, Projects Office, Oregon Department of Corrections
Mary Botkin, AFSCME Senior Lobbyist, American Federation of State, County and Municipal Employees Council 75
Stan Mazur-Hart, Ph.D., Superintendent, Office of Mental Health and Addition Services Oregon Department of Human Services
Stan W. Czerniak, Assistant Director of Operations, Oregon Department of Corrections
Shari Melton, MC, LPC, Mental Health Services Supervisor, Counseling and Treatment Services, Oregon Department of Corrections
Marvin Fickle, M.D., Superintendent, Oregon State Hospital
Robert E. Nikkel, M.S.W., Administrator, Office of Mental Health & Addiction Services Oregon Department of Human Services
Maynard Hammer, Deputy Superintendent, Oregon State Hospital
Mary Philp, Projects Manager, Oregon Department of Corrections
Larry Herring, Health Services Administrator, Oregon Department of Corrections
Steven Shelton, M.D., CCHP-A, Medical Director, Health Services, President, Society Correctional Physicians, Oregon Department of Corrections
Bob Joondeph, Executive Director, Oregon Advocacy Center
Dr. Arthur Tolan (non-practicing physician), Administrator, Counseling and Treatment Services, Oregon Department of Corrections
Angela Kimball, Executive Director, National Alliance for the Mentally Ill
Dan Weber, Correctional Corporal, Oregon Department of Corrections, Representative for Association of Oregon Corrections Employees

Note: Oregon Jail Managers Association was unable to fully participate with the Task Force.

Contents________________________________________

Introduction 6
Executive Summary 7
Findings 9
Findings, Facts and Practices 9
DOC Facts 9
DOC Findings and Practices 10
1. Intake Center Process 10
2. Community Impact on the Intake Process 10
3. Interruption of the 21-Day Intake Process 10
4. Mental Health Services to Inmates 10
5. Mental Health Credentials and Line of Authority 11
6. CTS Mental Health Clinical Staff Credentials 11
7. Crisis Management 11
8. Medication Management 11
9. Housing and Special Needs Population 12
10. Disciplinary Process 13
11. Transition and Release Planning 14
12. Counseling and Treatment Services 14
13. Internal DOC Communication 14
14. DOC Staff Training 15
15. DOC Policy, Rules and Procedures 15
16. Review or Audit Mechanism 15
17. Suicide Prevention 16
18. Translation Services 17
Task Force Recommendations 18
Overview 18
A Comprehensive Behavior Management Approach 19
MMIP Task Force Recommendations: 19
Appendix 28
Appendix A: Glossary of Terms 29
Appendix B: Task Force Charter 32
Appendix C: Allocation of Mental Health Services 33
Appendix D: Intake Process 34
Appendix E: NIC Recommendations 35
1. Introduction 35
2. Mental Health Screening and Assessment 37
3. Problems in Screening and Assessment 38
4. Mental Health Treatment 39
5. Use of Seclusion, Segregation and Restraints 45
6. Suicide Prevention 47
7. Treating Women Offenders 49
8. Treatment of Special Needs Populations 51
9. Continuity of Care 53
Appendix F: Correctional Best Practices 54
1. Statistics 54
2. Oregon Statutes (1999) 54
3. Criminal Justice/Mental Health Consensus Project – Findings & Best Practices 55
Appendix G: Proposed Mental Health Service Delivery Model 58
Appendix H: Criminal Justice System and Persons with Mental Illness 59
Appendix I: Bazelon Center for Mental Health Law – Building Bridges 61

Introduction
________________________________________

On May 4, 2004, Oregon Department of Corrections’ Director, Max Williams, chartered this Task Force to examine current practices and procedures relating to the management of behavior of the mentally ill within the Oregon prison system. Task Force members were appointed by the Director and included experts in mental health and in corrections institutions management from both within the DOC and from outside, including DOC Chief of Security and representatives from DOC Counseling Treatment Services, Oregon State Hospital, Oregon Jail Managers Association, Oregon Advocacy Center (OAC), National Alliance for the Mentally Ill (NAMI), Oregon Mental Health Addiction Services (OMHAS), DOC Health Services, American Federation of State, County and Municipal Employees (AFSCME) and the Association of Oregon Corrections Employees (AOCE).

The Mission of the Task Force was to identify prison practices and policy that result in safe and effective behavior management of inmates with mental illness; to affirm current DOC practices consistent with national corrections standards and best practices; and to recommend changes to align DOC practices, policy and rules with those standards and best practices identified. (Refer to Appendix B for the MMIP Task Force Charter.)

Members of the Task Force have invested more than 600 hours combined, extending over 5 months in meetings and active discussion, to produce this thorough body of work. During this time the Task Force operated using the following principles:

• Keeping people safe; inmates with mental illness, other inmates, staff and the community.
• Rehabilitation and recovery.
• Crisis stabilization is vital.
• The least restrictive environment.

Executive Summary
________________________________________

The 2004 DOC Managing Mental Illness in Prison (MMIP) Task Force has prepared a report that identifies issues of concern in DOC’s mental health system, additional findings, and offers numerous recommendations to reflect a comprehensive approach to mental health treatment programming. This includes change in systems, procedures, policy and rules to work more effectively with DOC’s population inmates with mental illness.

Primary Recommendation:

This Summary examines the overarching recommendation to structure the DOC Mental Health service delivery model to meet the needs of inmates with mental illness, rather than being driven by facilities or infrastructure.

The MMIP Task Force reviewed the September 2004 Governor’s Mental Health Task Force report and has aligned with their recommendation, “the Department of Corrections, OMHAS, the PSRB, and representatives of local law enforcement and mental health authorities must evaluate the possibility of creating a single forensic mental health facility to house and provide integrated services to individuals who cannot safely be treated in community settings.” This recommendation is consistent with the service delivery model the Task Force proposed in this report.

Other recommendations in this Task Force report relate to:

• Inmate housing assignments
• Increased availability for Mental Health services
• Improved internal communications
• Intake mental health assessments
• Oregon Medicaid eligibility
• Improved systems through automation
• DOC staff training relative to mental health services
• Change in policy and rules
• Bazelon Center model law strategies
• Recruitment and retention of health professionals
• Clinical, cultural and gender competence
• Suicide prevention

Funding:

The Task Force took into consideration the current department budget situation and funding realities within Oregon state government. Although some recommendations require additional mental health staffing and resources, a projected cost to the Department has not been included.

Findings
________________________________________

Findings, Facts and Practices

The Task Force views the identification of the following mental illness-related issues as a beginning step to facilitate important change in the way the Department provides housing and services to its mentally ill population. Recommended changes to housing and services will not only provide better care for inmates but, equally important, is expected to reduce behavioral issues encountered with the population of inmates with mental illness.

The Task Force reviewed the Department of Corrections (DOC) policy, rules, procedures and processes. In addition, the Task Force also reviewed policies and processes of the Office of Mental Health and Addiction Services (OMHAS) and Oregon State Hospital (OSH) as well as those of other states and standards established by National Institute of Corrections (NIC), Department of Justice, and National Commission on Correctional Health Care (NCCHC). DOC processes for Intake and the mental health evaluation were reviewed in depth.

DOC Facts

As of October 28, 2004 the DOC inmate population was 12,733 and includes the following:

Type
of
Population Number
of
Inmates
Men 11,789
Women 944
Total Inmates with Mental Health Needs 5,162
Receive Mental Health Services 3,000
Severely and Persistently Mentally Ill 1623
Developmental Disabilities 290

According to DOC Research Unit, there are a total of 2602 inmates who are age 46 and older. This number is expected to increase dramatically over the next 5 years. Of these inmates, there are 434 who are age 61 and older.

DOC Findings and Practices

1. Intake Center Process

Incarceration begins at the Coffee Creek Correctional Facility (CCCF) Intake Center. The Intake assessment is a 21-day process and includes the identification of: custody level, security threat groups, inmate relationship conflicts, educational needs, criminogenic risk assessment, substance abuse needs and vocational needs for the inmate. An initial mental health screening is conducted by a Health Services nurse within the first 24 hours of incarceration. The Personality Assessment Inventory (PAI) is typically administered to inmates with adequate reading skills within 48 hours. A face-to-face clinical evaluation is conducted on all inmates who have a history of mental illness, on those coming into the system already on mental health medications, those with elevated PAI scores, those inmates who because of their reading score were unable to take the PAI, and those who have either self-referred or have been referred by other staff. Inmates are also screened for developmental disabilities (DD) and substance abuse. Inmates are assigned a specific “A” code to indicate level of mental health needs and services necessary. DD inmates are assigned a “G” code.

2. Community Impact on the Intake Process

Most often, significant medical and mental health information about the inmate is not made available to DOC by the community. Limited mental health and behavioral information is received from the County jails. This can have serious consequences for the inmate with mental illness and DOC staff, prior to completing the 21-day Intake process.

3. Interruption of the 21-Day Intake Process

A flaw in the Intake process happens when an interruption of the initial assessment occurs due to inadequate bed space or a rule infraction by the inmate, which forces transfer to another facility with a special housing unit. In July 2004, five percent (5%) of the individual inmate assessments at Intake were interrupted. There is no formal process for completing the assessments after the interruption.

4. Mental Health Services to Inmates

Mental health services are provided to inmates based upon a continuum of care. Depending upon diagnosis and acuity level, an inmate with mental illness may receive services such as individual treatment, group treatment, medication and case management services. Case management includes coordination of services based on need for special housing, a treatment plan, special work assignments, and regular follow-up appointments. (Refer to Appendix C Allocation of Mental Health Services.)

5. Mental Health Credentials and Line of Authority

Counseling and Treatment Services (CTS) uses a broad range of professional mental health staff, and has a clear line of responsibility among its mental health professionals. Currently clinical supervision is provided on an intermittent basis within DOC institutions due to inadequate resources.

6. CTS Mental Health Clinical Staff Credentials

CTS experiences significant recruitment and retention issues for rural Oregon prisons. Urban and rural prisons have a noticeable difference in CTS staff credentials
• Minimum qualifications for employment as a DOC Mental Health Specialist or DD Case Managers are a Bachelor’s degree plus two years of experience, or a Master’s degree plus one year of experience.
• Although not a requirement, the sixty percent (60%) of CTS Mental Health Specialists and DD Case Managers hold either a Master’s or a Doctorate degree.
• No one practices outside the scope of their skills or licensure.
• Ninety-five percent (95%) CTS contracted providers hold either a Master’s or a Doctorate degree and are licensed to practice by the State of Oregon.
• Psychiatrists, Psychiatric Nurse Practitioners, and Registered Nurses utilized by DOC are licensed by the State of Oregon.
• All CTS Student Interns are pursuing Doctoral degrees.

7. Crisis Management

The Task Force finds the DOC Mental Health On-call System experiences occasional gaps within some institutions due to lack of adequate resources. These gaps most often occur after regular hours and on weekends when there are no mental health providers on site. Primary issues identified are:
• On-call requests for assistance that do not receive a response (primarily due to technical difficulties with pagers);
• Security, CTS and Health Services are the disciplines involved in crisis management of inmates. At times, one or all may have conflicting priorities regarding a given inmate that can result in disagreement and complicate the outcomes related to housing and level of supervision.

8. Medication Management
Staff recognizes the issue of medication management as critical to inmate and staff safety. Management of this population requires a great deal of medication, which results in high costs and a significant amount of staff resources to dispense, administer and monitor, despite innovative and cost saving practices such as: bulk purchase of medications, evidence based prescribing practices, decrease in polypharmacy and self administered medication.

• Some of the larger DOC institutions have over 600 inmates receiving mental health related medications.
• Dispensing and recording medications is a manual Health Services process with no formal mechanism to ensure that medications are dispensed. This is significant because of the difficulty in tracking treatment compliance and/or medication availability.
• A DOC Prescriber may have more than 450 inmates to manage at one facility. This constitutes a tremendous workload issue for the Prescribers, and impacts good prescribing practices.
• Research demonstrates that evidence based prescribing practices should contribute substantially to improved individualized clinical care as well as cost effectiveness. DOC Health Services has begun this process and should be encouraged to continue and expand it.

9. Housing and Special Needs Population

If the inmate is in crisis or needs acute care, DOC addresses the inmate need by channeling these inmates through a Special Management Unit (SMU) at Oregon State Penitentiary, Snake River Correctional Institution or Coffee Creek Correctional Facility. DOC cannot currently meet the care level necessary for inmates leaving the SMU or for those simply needing a less restrictive level of care.

Inmates transitioning out of SMU go directly to general population (GP). DOC has no alternative housing units to provide intermediate or transitional care prior to sending an inmate with mental illness to GP. Returning these inmates to GP does not provide the supervision or transition planning necessary to allow for a prevention of immediate complications inherent in the GP living environment. A sheltered environment would reduce risk of victimization, decrease the suicide potential and allow for better medication and behavior monitoring.

• A national correctional standard for the number of SMU beds is 30 beds for every 1000 inmates. This translates into more than 360 SMU beds to serve DOC’s 12,733 inmates. Currently, DOC is ranked 49 out of 50 in the nation for the number of SMU beds available.
• DOC houses its most severe and persistent inmates with mental illness in SMU. DOC operates three SMU units with a combined total of 72 beds located at Oregon State Penitentiary (OSP), Coffee Creek Correctional Facility (CCCF), and Snake River Correctional Institute (SRCI).
• DOC operates a COPE day-treatment program with 64 beds in GP, located at Eastern Oregon Correctional Institute (EOCI).
• DOC operates a Bridgepoint dual diagnosis (co-occurring disorders) day-treatment program with 50 beds in GP, at Columbia River Correctional Institute.
• DOC operates an IN FOCUS dual diagnosis (co-occurring disorders) day-treatment program with 54 beds in GP, at CCCF.
• Thirty to forty-five percent (30-45%) of the more severe mentally ill population in DOC is housed in the most restrictive security units, Intensive Management Unit (IMU) and Disciplinary Segregation Unit (DSU). There are no alternatives or system in place to house and treat inmates with both mental illness and significant disciplinary problems.
• SMU focuses on crisis stabilization through intensive treatment, assessment, and medication administration, both voluntary and involuntary.
• Inmates are referred to SMU when they become a danger to themselves or to others, or are unable to manage their activities of daily living.
• Limited alternatives to administrative segregation bed needs leads to the use of SMU beds for temporary housing of inmates with non-mental health related issues.
• A limited number of beds at two of the larger institutions, OSP and SRCI, are primarily used as an informal step-down unit. These units are mixed with inmates who do not have mental illness, and are not staffed with specially trained personnel.
• Inmates with mental illness are moved frequently without regard for their need for treatment programming.
• There are inadequate resources within the prisons to manage and serve inmates with mental illness in GP. For example, every week, Mental Health Intake assessments identify one new inmate who demonstrates the need for SMU related services.
• DOC Research Unit indicates that the number of inmates 46 years of age and older will increase by 73 percent (73%) during the next five years. Additionally, 30 percent (30%) of the current 434 inmates who now exceed 6o years of age are expected to develop dementia sometime during their incarceration. DOC must plan future services for the aging population.
• Eighty percent (80%) of inmates with mental illness have a co-occurring disorder of substance abuse, alcohol or drug. The Department’s current organizational structure separates A & D services from mental health services, thereby creating a significant disadvantage to inmates with mental illness and co-occurring substance abuse disorders.

10. Disciplinary Process

• DOC Research Unit indicates that inmates with the greatest mental health needs are twice as likely to receive a disciplinary report (DR) than those inmates without a mental health need. Inmates with mental health needs averaged 2.4 DR’s during the last 12 –month period; those without mental health needs averaged 1.1 DR’s.
• Security staff is consciously working to recognize the impact of mental illness on an inmate’s behavior. However, there is a need for more training and formalized mechanisms for communication between Security staff, Mental Health Program staff and Medical staff. For example, some DOC staff use inappropriate and derogatory language regarding mental health and inmates with mental illness.

11. Transition and Release Planning

Critical aspects of good release planning are a connection to housing, medication, community services and employment. Release planning begins six months prior to the inmates’ scheduled date of release into the community. The Case Manager works closely with the inmate to identify community and social services, share appropriate information, and psychological preparation. While the department supplies the transitioning inmate with a 30-day supply of medication upon release, there is likely to be no services beyond that point. The Task Force finds that it is common for an inmate to experience an unknown gap between an inmates’ supply of medication and the inmates’ eligibility determination for Oregon Health Plan prescription benefits. Aftercare is critical for the successful reintegration to the community and the long-term benefit of lower recidivism and revocations.

12. Counseling and Treatment Services

• Community staffing standards for a Prescriber caseload are 250 patients. DOC’s Prescriber caseloads average 350 inmates.
• National standards for a Mental Health Case Manager caseload are 80 inmates. DOC’s Mental Health Case Manager caseloads average 110 inmates.
• Due to inadequate numbers of Case Managers, not all inmates with mental illness have a treatment plan. This compounds difficulties when Mental Health professionals respond to an after-hour call to support necessary treatment decisions.
• Mental Health treatment programs should be placed where recruitment and retention of qualified mental health professionals can be expected to be available.

13. Internal DOC Communication

Effective internal communication, among work units and institutions, is a key factor and must be considered an essential ‘common thread’ by the department. The Task Force finds that inmate information derived from history and assessment, when used effectively, can decrease incidents of violence, self-harm, disciplinary incidents and staff injuries. The Task Force also found that the unusual incident report process poses a number of barriers to communication.

• When there is relevant information to be shared, there is no consistent information to relay to relevant staff.
• Informal and occasional inaccurate information is frequently shared among relative and non-relevant staff.
• Transferring an inmate after hours or over a weekend creates problems that demonstrate a need for improved communication between the respective institutions. (E.g., medications don’t arrive, transportation schedule is not communicated.)
• Transfer of inmate records, both criminal, medical and CTS does not happen in a consistent or timely manner.

14. DOC Staff Training

• Oregon Accountability Model (OAM) training and education are producing steady progress in how DOC staff work with and manage those inmates with mental illness in prison.
• DOC provides limited mental health training for Security staff working in SMU.
• DSU and IMU have a forty percent (40%) mentally ill population and their staffs receive no mental health training, and thus are at a disadvantage.
• There is insufficient training to that address confidentiality. The Task Force identified significant staff confusion regarding both confidentiality and HIPAA.
• Current levels of behavioral management training are not sufficient.
• Security staff is far more willing to involve mental health staff in assessing needs, identifying interventions and managing suicidal inmates than ever before. However, Security staff requires more training to appropriately recognize situations that may be appropriate to involve mental health staff.
• The need for expanded training in New Employee Orientation and In-Service was deemed paramount to program success.

15. DOC Policy, Rules and Procedures

It is clear to this Task Force that staff members have significant concerns about what information can and cannot be shared.
• DOC has not adequately addressed department policy specific to confidentiality.
• The Suicide Prevention rule directs the CTS Administrator to conduct a review process following a suicide. The report identifies security concerns which are then shared with the appropriate security administration. Confidential clinical issues are shared in a peer review process, which includes medical and mental health administration.
• There are separate work units who develop their own procedures that may conflict with DOC policy. This creates staff confusion when applying the Department rule or policy.

16. Review or Audit Mechanism

DOC currently has a satisfactory mental health audit mechanism in place. The NCCHC annual accreditation reviews mental health issues as a part of Health Services standard. Therefore, the Task Force will offer no recommendations for change at this time.

The MMIP Task Force Charter identified a need for an ongoing audit mechanism as a necessary component of a quality program for behavioral management of inmates with mental illness. It was determined that the rigorous accreditation program currently provided by the National Commission on Correctional Health Care (NCCHC) fulfills this requirement. NCCHC is also recognized by the National Institute of Corrections for their work with the mentally ill

Established in the 1970’s, NCCHC accreditation is a process of external peer review in which NCCHC, a private, not-for-profit organization, grants public recognition to correctional institutions that meet its nationally accepted Standards for Health Services. Through the accreditation process, NCCHC renders a professional judgment regarding health services provided and assists correctional facilities in their continued improvement.

Developed by experts from the professions of health, law and corrections, separate standards exist for health care delivery in jails, prisons, and juvenile detention and confinement facilities. The areas covered by the Standards include:

• Facility governance and administration
• Maintaining a safe and healthy environment
• Personnel and training
• Health care services support
• Inmate care and treatment
• Health promotion and disease prevention
• Special inmate needs and services
• Health records
• Medical-legal issues

The annual Accreditation Review is an on-site, facility-by-facility audit conducted by health professionals experienced in correctional health care, and includes a comprehensive review of medical documents and policies and procedures; interviews with health staff, correctional officers and inmates; and a tour of each facility.

17. Suicide Prevention

Recognizing the verbal and behavioral cues that indicate suicide risk is critical to early intervention and successful suicide prevention. To that end, a suitable suicide prevention program is built upon having properly trained correctional staff, adequate housing, good communication, proper staffing standards, and clear policies and procedures.

At present:

• DOC institutional staff training has improved awareness of verbal and behavioral warning signs for suicide. Additionally, staff must exhibit competence in suicide prevention to satisfy NCCHC standards.
• The use of Safety Smocks is a commonly recognized and accepted practice throughout correctional facilities across the country, mainly generated by the need to ensure the safety and security of the suicidal inmate. In a community environment a person who is actively suicidal would normally be hospitalized and receive one to one observation rather than isolated and given a Safety Smock. The use of Safety Smocks in DOC could be minimized through one-on-one observation; however one-on-one observations for all actively suicidal inmates would require additional staffing.

18. Translation Services

Language translation for those inmates who speak little or no English is insufficient for mental health assessments. Effective assessment of these inmates requires qualified professional staff that has ‘clinical cultural competence.’ Hearing impairments are also a concern.

Task Force Recommendations
________________________________________

Overview

In considering the mission to identify practices and policies that result in safe and effective behavior management of inmates with mental illness, the MMIP Task Force reviewed a large number of policies and practices and made specific and detailed suggestions for their improvement. We would be remiss in not mentioning that there are other mental health management issues beyond the scope of this Task Force implied in our mission that DOC should consider in setting its course for the future.

As we know, there is a steady increase in the number of inmates with mental illness. DOC has responded to this increase generally, by augmenting and enhancing existing mental health services within the existing institutional structure. Inmates in need of hospital-level services are housed in a Special Management Unit (SMU); inmates with less-acute conditions receive mental health services in the general, community–level population (some attend specialty programs). While this approach has been successful in many ways, it contains some gaps and weaknesses.

While DOC has the equivalent of hospital-level and community-level care, it is missing a mid-level equivalent of the group home or community facility. In a community mental health system, these settings are used for individuals who are disabled to the point that they cannot safely negotiate the world at large, but do not need hospital-level service. It appears that many inmates who fit into this mid-level description may end up in Disciplinary Segregation Unit (DSU) for long periods of time. Others may be housed in DOC facilities that are remotely located and have access to few mental health professionals. Some may be effectively denied access to vocational and other rehabilitative services due to their disabilities.

The Governor’s Mental Health Task Force report recommendations:

The Department of Corrections, OMHAS, the PSRB, and representatives of local law enforcement and mental health authorities must evaluate the possibility of creating a single forensic mental health facility to house and provide integrated services to individuals who cannot safely be treated in community settings.

This recommendation is an invitation for DOC to begin a study of how it may restructure its mental health services and facilities to more effectively treat and house inmates who need hospital-level and mid-level care housing and access to mental health professionals and programs that are not currently available.

The NIC has multiple recommendations located in Appendix E. Correctional Best Practices are located in Appendix F.

A Comprehensive Behavior Management Approach

The following recommendations reflect a comprehensive approach to behavioral management treatment programming. All references to mental health treatment programs refer to general education, employment and housing. Substance abuse also plays a role in this approach, as 78 percent (78%) of the total DOC inmate population is diagnosed with a form of substance abuse. Of those 78 percent (78%), 30 percent (30%) have a co-occurring disorder; a diagnosable mental disorder combined with a substance abuse disorder.

MMIP Task Force Recommendations:

1. Explore with OMHAS and PSRB, an option to create a common facility and treatment program for inmates with the most severe mental illness.

• As stated previously, this is a recommendation from the Governor’s Mental Health Task Force that we support.
• This exploration should include and not be limited to: resource and staffing issues, informed consent to treatment, use of physically managing inmate and client behavior, involuntary administration of psychotropic medications, and use of therapeutic restraints.
• DOC should research effective design options, staffing and resource costs for a forensic or Hospital Level facility and its inclusion in future construction plans.
• This research should include a review of Michigan’s forensic institute model; operated under the Michigan Department of Corrections and funded through Michigan’s state hospital.

2. Create a four-tiered inmate housing assignment system as described below:

• General Population: Provide the least restrictive treatment environment.
• Step-Down Unit: Serve long term inmates who cannot be managed safely in GP, and need a more protected environment with no need for a higher level of treatment. Population examples include the Developmentally Disabled (DD), inmates with organic brain trauma and those with mental illnesses that are chronic and debilitating but stable.
• Transitional Unit: Serve inmates who are stable and coming out of Hospital level or those inmates prior to moving into Hospital level; and need to be program defined for closer monitoring and/or ongoing intensive treatment. DOC current Special Management Units would be integrated into this level and used specifically for short-term crisis management.
• Hospital Level Unit: Serve inmates in need of intense treatment resources for acute care.

This system would allow:
• Mental Health services to be program or treatment driven, rather than facility driven by bed availability.
• Utilization of a continuum of care model; the ability to move inmates with mental illness through different stages of care and treatment.
• Creation and maintenance of the least restrictive environment for each level of the inmate population.
• Day treatment programming to divert inmates with mental illness from SMU and IMU.
• Appropriate educational services, employment availability and behavioral services (i.e. Cog) for a special needs population.
• The combining of special needs programs and housing within facilities in the future.

3. Create Transition housing units in facilities with SMU’s as well as formal DOC Step-Down housing units within various institutions.

Resource Implications: With the ever-growing number of mentally ill and behaviorally challenged inmates entering DOC, the need for additional special management beds will be evident. SMU and IMU beds are expensive to utilize for inmates who fit into the transition-type and/or long-term alternative housing need categories. Transition and Step-Down Units would be more meaningful, efficient, and cost-effective alternatives for inmates needing more intensive treatment than can be provided in general population.

For example:
The following staffing level integrates the needs of mental health, substance abuse, and behavior management service delivery. The Mental Health staff needed to manage a 216-bed Step-Down unit is:

o One Program Director
o Four Case Managers
o One Psychiatric Prescriber
o One Behavior Specialist
o Two Substance Abuse Specialists
o Two Support Staff

Special Housing Beds
Bed
Type Current
DOC Beds Available Recommended Special Housing Beds Difference in Current & Recommended
Hospital Level 72 (SMU) 360 288
Transitional none 100 100
Step-Down 64 500 436

This will clearly have budget and staffing implications that are somewhat dependent upon the system of delivery. Hospital level and Transitional staffing have not been identified.

The total number of developmentally disabled inmates is approaching 300. The total number of inmates with the serious mental illness is nearly 1700. Statewide, DOC currently has a number of informal units that house close to 400 inmates that are not adequately staffed or officially designated, but relatively successful. A total of 500 Step-Down beds are necessary statewide, and could provide appropriate longer term alternative housing for the developmentally disabled and the more severely mentally ill.

The cost savings for having Transitional units would include reduced SMU stays (approximately $500 per day), transportation costs associated with multiple transfers, decreased DSU and IMU housing associated costs, reduced medical expenses related to staff and inmate physical/sexual assaults, lawsuits associated with inadequate care of the most severely mentally ill and developmentally disabled, costs associated with suicide attempts, less staff overtime due to emergencies (more stable environment), and cost savings associated with reduced recidivism.

Policy Implications: Creating Mental Health Transition units at OSP, CCCF, and SRCI institutions would accommodate the more intensive treatment needs of inmates releasing from SMU’s or prevention from the need for SMU level care. This type of unit(s) would not be for long-term use, but transition from a crisis (SMU) to step-down or to outpatient units to provide the safe transitional environment so necessary to this type of inmate. The unit would be designed to deliver specialized programs, group therapy, provide medication management, and deliver skill development programming on the unit. It would keep these inmates out of the general population where inmates are, in reality, always there to “push these inmates’ buttons.” It would provide for close monitoring supervision, as well as supported employment and education.

There is also, however, a serious need for long term beds for those inmates not transitioning but vulnerable because of their chronic mental illness or cognitive deficiencies. A step-down unit could accommodate a mixture of inmate population needs, including those with developmental disabilities, neurological impairment, and those inmates with chronic and debilitating problems related to their mental illness within a day treatment-type program. Along with mental health services, the unit would address co-occurring substance abuse problems, education, and supported employment.

Public Safety Impact: Providing the inmates with the level of care based on their level of need offers them the opportunity to develop the skills needed to transition within the correctional environment and upon release to the community.

System Impact: This model is in keeping with the Oregon Accountability Model. It provides staff with the training to work in a team environment, dedicated to assist inmates to become better able to face challenges within the correctional environment and community.

Creating a safer environment in which these inmates can function is one of DOC’s major responsibilities. The potential for preventing suicide attempts, preventing weaker inmates from being victimized and teaching skills to function within a highly charged environment is imperative.

Recommendation: The increased number of mentally and developmentally challenged inmates incarcerated in the system dramatically necessitates the need for additional special housing.

Communities and DOC staff, as well as inmate families have a right to be confident in the knowledge that inmates are in a safe, monitored, learning environment appropriate to their needs. This has the potential to reduce the risk of these inmates being preyed upon, or them preying upon others.

(Refer to Appendix H – A Criminal Justice System and the Mentally Ill process describing the flow of inmates throughout the DOC system.) Note that the Hospital Level is currently DOC SMU, which is also residential treatment and crisis management. When the Hospital performs the acute care, current DOC SMU’s then become Transitional (residential) level care.

4. Increase Mental Health Case Management services for all DOC institutions.

• This is a significant strategy for crisis intervention.
• Newly developed department programs and policy change implementation have caused Mental Health Case Managers to experience a documented 20 percent increase in essential duties. This increase in duties greatly reduces a Case Managers’ time to proactively plan which allows only enough time to react to urgent situations. This in turn, creates safety concerns and promotes staff burnout and retention issues.

Implementation Option A: Staff institutions with Mental Health Case Managers for two shifts, seven days per week. This option assumes the current housing standard driven by available bed space rather than program need.

Impact: This option would require employing six additional Mental Health Case Managers and two support staff. An increase in Security appropriate staffing patterns is likely, and should be determined by each institution. Recruiting Mental Health professionals and retention may be an obstacle to this option.

Cost: $444,437 projected for 2005-2007 biennium; does not include Security staffing.

Implementation Option B: Adopt an expanded on-call protocol by which Mental Health Case Managers would be available to their respective institutions for after-hour and weekend emergencies. This would be an addition to the current on-call system, which is handled through Health Services Nurse Practitioners.

Impact: Probable increase in penalty pay.

5. Communication, Standardization and Information Technology

• Develop an automated Classification and Transfer program that includes different levels of approval and notification filters to be completed prior to approving and sending a Request for Transfer (Form 1206) to the Transport Unit for action. This type of programming would support an appropriate housing assignment of all special case factors such as mental health, medical, security threat groups and conflicts.
• Institutions currently develop internal procedures as to who can enter transfer requests and who can access transport information. It is recommended that institutions adopt standardized procedures to enhance the necessary flow of information regarding the movement of inmates with mental illness. This would result in fewer crises and an increase in effective use of CTS staff time for both the sending and receiving institution.
• Standardized information technology should be available to all staff, throughout the Department of Corrections. Including automated treatment and behavior plans, computer access for officers on every tier (read only authority for certain mental health sections); electronic medical records, access to transfer information, and automated tracking of medication compliance. Standardized access to, and maintenance of behavior and treatment plans would provide Security staff with pertinent information when needed.
• Facilitate continuous improvement of service delivery to inmates by creating an on-going and formalized communication among the three disciplines of Security, Medical and CTS. Examples of an interactive communication structure may be mini-in-service sessions, cross functional staff meetings, workshops, teambuilding, etc.
• Revise and automate the Unusual Incident Report process. The current paper system poses a number of barriers to communication. It is recommended that the process be automated to include electronic filing at all locations and a notification system to provide an alert to key personnel when an incident occurs that may require immediate review or action. Key personnel should include notification to CTS.

6. Avoid interruptions in the Intake Mental Health assessment. Create a process to ensure completion of the mental health assessment during intake.

• Identify a number of Disciplinary Segregation Unit (DSU) beds within the Intake Center to allow inmates to continue in their assessment process and avoid being sent out prematurely due to rule infractions.
• Minimize inmate transfers that occur after hours and on weekends.
• Develop a plan to manage those inmates that require suicide precautions at the Intake Center, in the same manner in which other institutions manage suicidal inmates, in accordance with the OAR 291-076 -Suicide Prevention.
• Create a back-up process.

7. State of Oregon develop effective release planning for inmates with mental illness including adequate housing, community mental health services, medication and access to any state or federal benefits to which they are entitled. (Refer to Appendix I Bazelon Center Building Bridges and Model Law.)

8. Automate a medication tracking and management system for use by DOC Health Services and CTS.

Consider cooperation and collaboration with OYA and the OMHAS state operated facilities to look at common problems related to technology in prescribing, dispensing, record keeping, and monitoring medications.

9. Provide adequate staffing for CTS clinical supervision within DOC institutions.

10. Provide mandatory confidentiality training to all employees and contract staff once every two years.

• Provide Officer(s) in Charge (OIC) with confidentiality training specific to crisis intervention and assisting on-call professionals with confidential mental health information.
• New Employee Orientation (NEO) should include confidentiality training to identify appropriate boundaries and describe the minimum confidential information necessary to perform an assigned task.
• Include confidentiality policy and or language in all institution specific employee orientations.
• Highlight confidentiality policy in all Human Resource new employee packets.

11. Provide mandatory mental health training to all staffs.

Behavior management of inmates with mental illness training must be completed before working in a segregation unit.

12. Eliminate inmate access to razor blades.

Currently, razor blades are the number one choice for self harm instruments among inmates.

13. Consider re-funding the position of liaison between DOC and OMHAS.

This position would support the Governor’s Mental Health Task Force recommendation for exploring the option of “a single forensic mental health facility to house and provide integrated services to individuals who cannot safely be treated in community settings.” Additionally, the positions should coordinate the state accreditation of mental health programs in prisons, providing more credibility and scrutiny to DOC Mental Health programs.

The projected cost of one Principal Executive Manager D for the 05-07 biennium is $ 133,990.

14. Enhance mental health services by sequencing the Workforce Development (WFD) Cognitive restructuring program as part of the cognitive behavioral treatment.

These services add to the integration of mental health treatment modalities with behavioral and cognitive modalities, providing a much needed and comprehensive continuum of mental health care.

15. Revise DOC policy and OAR’s as follows:

• All DOC operational policy should have consistent definitions and language in the beginning section of each policy.
• Definitions should be clear, inclusive and operationally defined (e.g., suicide watch, close observation, moderate observation, low-risk precautions).
• Definitions should include the following components:
- Operational description (what it looks like);
- Description of requirements and/or qualifications (e.g., necessary employee certifications or licenses);
- Identify specific behaviors and specific outcomes related to the described behaviors (e.g., an inmate qualifies for suicide watch by cutting himself);
- Qualification or description of behavior to be removed from consequences or results or earlier behaviors (e.g., how an inmate becomes eligible for removal from suicide watch, and who makes the decision);
- Identify the Mental Health staff who perform the assessment and release, and further treatment;
- Identify who is qualified to make decisions by rule;
- Exercise awareness of staff liability.
• Utilize NCCHC definitions for Qualified Health Care Professionals and Qualified Mental Health Professionals.
• All existing CTS and Health Services policy should be integrated to appropriately represent common policy for the department. (Example: integrate Health Services P-G-04 and CTS MH E-1 – Emergent and Urgent Access to Mental Health Consultation Procedure to become a DOC policy that describes how and when to access mental health services within the department.)
• Revise OAR 291 Division 011 – Segregation (Disciplinary) to reflect the following changes:
- Add language to section 0064(1) “be temporarily deprived of any service or…” not to include Mental Health services and Health services.
- Clarify language in sections 080(6), 050(5) (A) and 030(6) related to “qualified MH/Health care professional” by using the NCCHC definition.
- Define individual provider titles within the policy.
- Add the NCCHC definition for Qualified Mental Health Professional to rule.
- Change current language in section 080(12) “OIC will consider,” to indicate an immediate response by the OIC.
- Reflect the NCCHC mental health standard for accreditation.
- Revise policy to require staff mental health training prior to staff working in all DOC segregation units.
• Revise OAR 291 Division 013 – Use of Force. Planned use of force with regard to inmates with mental illness should be governed by consultation with a Mental Health professional. This policy should describe the planned use of force strategies that are and are not acceptable for use with inmates with mental illness.
• Revise OAR 291 Division 105 – Prohibited Inmate Conduct and Processing Disciplinary Actions to reflect the following changes:
- Change current language in section 0066(9), “the hearings officer may” to “the hearings officer shall.”
- Add language to section 0072 (5) (B) “Mental Health professional will help determine appropriate method of holding inmate accountable.” Clinically based advice should be given consideration during the disciplinary process. Mental health information provided for this reason should become part of the final order document. Also, within appropriate confidentiality rules, the final determination available to appropriate Security and or Transfer staff.
• Revise OAR 291 Division 071 – Therapeutic Restraints (Use of) to reflect the following changes:
- Eliminate conflicting language; revise this policy to be consistent with Division 013 Use of Force language and integrate NIC standards.
- Specific language regarding releasing inmate from restraints should be consistent with the Division 013 Use of Force language to the same end.
- The DOC Policy Group should consider the types of restraints used, location, and the resources available to supervise the use of therapeutic restraints in a correctional environment.
- Consider changing the terminology therapeutic restraints, as its use may be outdated in the mental health field. Use of soft restraints is for the means of emergency intervention and not for therapeutic purposes.
• Revise OAR 291 Division 076 –Suicide Prevention in Correctional Facilities to reflect the following changes:
- Integrate all CTS functional unit Suicide Prevention related procedures into one DOC policy. This policy should have a single focus and administrative rule that governs the response to an attempted inmate suicide.
- Add a clear set of definitions that identifies specific staff and their respective tasks to be accomplished.
- Describe specific suicide prevention measures used.
- Identify the timeliness of assessment, clearly designating that inmates must receive the services needed at the time they are needed. Receipt of needed services should not be based upon a fixed period of time.
• Create a DOC Confidentiality policy that includes clear language regarding the appropriate application of HIPPA as it applies to DOC. Policy should include internal and external use of confidentiality.
• DOC Security and CTS coordinate an in-depth revision of OAR 291-048-0170 - Provision of Basic Services and Programs.

16. Develop a pool of qualified medical and mental health professionals who have clinical cultural and gender competence. Designate this pool as a shared resource with OMHAS and the Mental Health community. This should include hearing impairments.

17. Develop effective recruitment and retention strategies for future vacancies; giving close attention to facilities in rural areas.

This process should include identification of existing barriers and solutions for the current challenges experienced with CTS recruitment and retention.

18. Identify Bazelon Center strategies for inmates with mental illness that can be implemented without additional legislation.

This should include pre-release planning and strategies specifically for the mentally ill population.

19. Develop a joint process with county jails and local area community providers to make available significant medical, mental health and behavioral information regarding individual offenders upon their incarceration with DOC.

Appendix
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Appendix A: Glossary of Terms
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The following terms as used within this report are defined as follows:

Assessment

An assessment is the process of examination or evaluation. Its focus is information gathering that includes an interview and a review of existing records. It can include the administration of specialized instruments or tests and is conducted to identify those inmates who may require a particular intervention or treatment. The assessment ascertains the specific nature and severity of the mental health and/or substance abuse treatment needs as well as includes recommendations for treatment.

Case Manager

CTS mental health specialist.

Developmental Disability

This term refers to a severe and pervasive impairment in several areas of development: reciprocal social interaction skills, communication skills, or the presence of stereotyped behavior, interest, and activities. These disorders are usually evident in the first years of life and are often associated with some degree of mental retardation. The essential feature of mental retardation is a significant sub average general intellectual functioning that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, and use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The onset must occur before the age of 18 years. Significantly sub-average intellectual functioning is defined as an IQ score of about 70 or below. Mental retardation would not be diagnosed in an individual with an IQ below 70 if there are no significant deficits or impairments in adaptive functioning.

GAF

The Global Assessment of Functioning (GAF) Scale is a system used by to indicate an individual’s psychological and occupational functioning on a scale designed to measure overall severity of psychiatric disturbance. The GAF scale may be particularly useful in tracking the clinical progress of individuals in global terms, using a single measure.

G codes

G-1: An inmate that has been assessed for developmental disabilities, including cognitive and adaptive functioning, and has been determined to have no need for ongoing case management services.

G-2: An inmate that has an IQ 79 or below with impairment in adaptive functioning.

G-3: An inmate with an IQ below 70 with significant impairment in adaptive functioning.

Mental Health Professional

Employee or contractor qualified to provide mental health services.

Mental Illness

The American Law Institute Test from Model Penal Code, 1962 defines mental illness as: 1) a person is not responsible for his/her criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his/her conduct to the requirements of the law, and 2) the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct. For the purpose of clinical practice, the operational definition of mental illness is the presence of a diagnosable severe and persistent mental disorder according to the DSM-IV TR.

Mental Illness Code Classifications

A-codes:

A system of classification to determine the allocation of mental health resources provided to inmates. A-codes also provide information to other corrections staff about an inmate’s need for services. A-codes are:

A-0: Assigned to an inmate who has been assessed by a CTS treatment provider and does not meet criteria for a diagnosis that requires mental health services.

A-1: Assigned to an inmate who has been assessed by a CTS treatment provider and, based on diagnosis along with mild acuity, does not meet criteria for mental health services.

A-1R: Assigned to an inmate who has been assessed by a CTS treatment provider and meets diagnostic criteria for a code of A-1 and is prescribed psychotropic medications by a CTS prescriber or the inmate’s acuity level is assessed as moderate or severe. The inmate will be restricted to institutions where mental health services are available.

A-2: Assigned to an inmate who has been assessed by a CTS treatment provider and meets diagnostic criteria for a high level of need for mental health services. The inmate will be restricted to institutions where mental health services are available.

A-3: Assigned to an inmate who has been assessed by a CTS treatment provider and meets diagnostic criteria for the highest level of need for mental health services. The inmate will be restricted to institutions where mental health services are available.

*As of September 2004, approximately 1290 A1-R inmates resided within Oregon prisons.

*A2 classified inmates obtain Case Management contact regularly, from weekly to every 120 days, depending upon GAF score. As of September 2004 approximately 910 A2 inmates resided within Oregon prisons.

*A3 classified inmates receive Case Management contact regularly, from weekly to every 90 days, depending upon GAF score. As of September 2004, approximately 713 A3 classified inmates resided within Oregon prisons.

Prescribing Practitioner

A licensed psychiatrist or psychiatric nurse practitioner.

Qualified Health Care Professional

As defined by NCCHC (National Commission on Correctional Health Care) , Qualified Health Care Professional includes physicians, physician assistants, nurses, nurse practitioners, dentists, mental health professionals and others who by virtue of their education, credentials and experience are permitted by law to evaluate and care for patients.

Qualified Mental Health Professional

As defined by NCCHC (National Commission on Correctional Health Care), Qualified Mental Health Professional includes psychiatrists, psychologists, psychiatric social workers, psychiatric nurses and others who by virtue of their education, credentials and experience are permitted by law to evaluate and care for the mental health needs of patients.

Screening

A screening is a preliminary appraisal to both determine the existence of a disorder and/or the need for a more in-depth evaluation.

Treatment Provider

A mental health professional or prescribing practitioner as defined above.

Appendix B: Task Force Charter
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MANAGING MENTAL ILLNESS IN PRISON TASK FORCE CHARTER

Mission

The mission of the task force is to identify the Department of Corrections (DOC) practices and polices that result in safe and effective behavior management of inmates with mental illness. (To avoid duplication with other work groups and initiatives, the group will not address mental health treatment programs in prison.) The work group is chartered to:

 Review current DOC policies and practices related to the management of behavior for inmates with mental illness
 Review current DOC policies and practices related to the use of disciplinary procedures with for inmates with mental illness
 Review and analyze behavior management and disciplinary procedures used in the mental health system and in other incarcerative settings, including use of restraints.
 Review collaboration between divisions with regard to management of inmates with mental illness.
 Review level of staffing and credentials of mental health staffing.
 Request and review recommendations from the National Institute of Corrections.
 Endorse current practices that represent the best practices in the safe and effective behavioral management of inmates with mental illness
 Identify needed changes in current practices
 Recommend new or changed practices as appropriate
 Recommend an ongoing audit mechanism that provides for annual review of behavioral management practices.

Deliverable

The task force will produce a report identifying the prison practices and polices that are most likely to result in safe and effective behavior management of inmates with mental illness, affirming current DOC practices that are consistent with these best practices, and recommending specific changes as needed to bring the DOC practices and policies into alignment with the identified best practices.

Timeline

The task force will complete its work by October 1, 2004.

Members

Members are appointed by the Director of the Department of Corrections. Membership will include experts in mental health and in corrections institutions management from both within the DOC and from outside, including DOC Chief of Security and representatives from DOC Corrections Treatment Services, Oregon State Hospital, Oregon Jail Managers Association, Oregon Advocacy Center, National Alliance for the Mentally Ill, and AFSCME.

Appendix C: Allocation of Mental Health Services
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Appendix D: Intake Process
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Appendix E: NIC Recommendations
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The following reflects recommendations from Effective Prison Mental Health Services, Guidelines to Expand and Improve Treatment, 2004 Edition by the National Institute of Corrections and U.S. Department of Justice. For additional information, refer to www.nicic.org.

1. Introduction

Since the early 1990’s, more and more adults with serious mental illness have become involved in the criminal justice system. Prisons, in particular, have undergone a dramatic transformation, housing a growing population of inmates with serious mental disorders. The U.S. Department of Justice estimates that 16 percent of all inmates in state prisons have mental illness (Ditton, 1999).

Historically, correctional facilities have been unprepared to provide mental health services. They typically have not had the physical facilities, staff, staff training, or clinical resources to necessary to meet the needs of inmates with serious mental illness. Yet the courts have made it abundantly clear that correctional facilities are legally and constitutionally required to provide adequate mental health services for the inmates in their custody.

It is important for prison officials to understand the severity and scope of mental illness in their populations and how to treat mental disorders effectively. These issues have important implications for humane and effective facility operation, maintaining safety for inmates and staff, and avoiding litigation.

Challenges

The high numbers of people with serious mental health problems entering prison present significant challenges. Adults with mental illness often enter prison with histories of chronic health problems, unemployment, homelessness, transient behavior, financial instability, and high-risk behaviors. Typically, they do not have health coverage, and they lack the supportive, positive, and enduring relationships that contribute to emotional health and stability (McVey, 2001). While incarcerated, inmates with mental illness often need housing and services different from those offered to other inmates. They may need extra medical attention, treatment, medication, security, suicide precautions, special programming, rehabilitative services, case management, or transition services. Due to their illness, they may need to be housed in units with higher staffing ratios. Many prison officials find themselves balancing the needs of inmates against the costs of the special services.

Many inmates with mental illness have difficulty adapting to the structure, routine, and social milieu of prisons. Some become overly passive, withdrawn, and dependent (Jemelka, Trupin, and Childes, 1989). Others act out their illness in antisocial ways. Infractions are primary indicator of prison adjustment and may ultimately affect classification and release decisions. Judgments about what behaviors are tolerable or are allowed as manifestations of illness, therefore, are important ones (Jemelka, Trupin, and Childes, 1989). Prisons should avoid penalizing inmates for infractions that are a direct result of their mental disorder.

Challenges in caring for inmates with mental illness may be summarized by the following:

• Determining whom and how to treat.
Prison staff must be trained to recognize the signs of serious mental disorders and substance abuse, monitor the entire prison population for signs of emerging problems, and distinguish acute and serious conditions form less serious ones.

• Managing inmate behavior and symptoms.
Prison administrators must often increase levels of staffing to house inmates with mental disorders safely and humanely because these inmates often have a disruptive effect in a prison environment. The Bureau of Justice Statistics found that people with mental illness were twice as likely as other prisoners to be involved in a fight (Ditton, 1999).

• Recognizing the negative effects of the prison environment on mental health. Overcrowding, the lack of privacy, temperature and noise levels, victimization, and other environmental conditions in prisons can easily exacerbate the symptoms of mental illness for some people. The prison environment itself can contribute to increased suicide and the inability of inmates with serious mental illness to adjust.

• Understanding inmates’ difficulties in adjusting to institutional life.
Inmates with mental disorders generally have a more complicated adaptation to prison as measured by rule violations and incidents of misconduct. Serious mental illnesses are stress sensitive; changes in housing, staffing and routine may bring about an adverse reaction. Misunderstanding an inmate’s aberrant behavior can turn a minor incident into a serious situation (Morgan, Edwards, and Faulkner, 1993).

• Determining the need for special services.
Many adults with mental illness enter the prison system with histories of problems such as victimization, co-occurring substance abuse, chronic health conditions, or violence. Many inmates with mental illness, especially women, have histories of trauma and abuse prior to entering prisons; others are victimized while incarcerated.

• Addressing chronic care programs and special needs housing.
Inmates with chronic mental illness and a growing number of geriatric inmates pose special challenges. Special programs and housing units, when designed appropriately, can reduce serious rule infractions, suicide attempts, correctional discipline, seclusion, hospitalization and the need for crisis intervention.

2. Mental Health Screening and Assessment

Implementing effective screening and assessment practices help maintain an optimal level of safety and security for staff, inmates and the public. The process of identifying and evaluating this subpopulation of inmates consistent with national standards and guidelines is outlined below.

Offenders entering into the state prison system should be screened for mental health disorders for both clinical and legal reasons. Screening and assessment for mental illness:

• Identify those at risk for injuring themselves and others.
• Determine whether the inmate is capable of functioning in the prison.
• Determine whether the inmate should be transferred to a mental health facility.
• Determine whether the inmate can benefit from treatment at the prison (Ogloff, Roesch, and Hart, 1993).

Standards for screening and assessment developed by several national organizations suggest that, as with other acute medical conditions, mental health and substance abuse issues need to be identified immediately on entry into a correctional facility. Significant stressors encountered in adjusting to the prison environment can be particularly problematic for those who have a preexisting psychiatric condition. The sooner individuals can be identified, the sooner treatment providers working in the correctional setting can intervene to help them adapt to the environment. This helps the facility maximize security, maintain its operational routine, and make the prison safer for staff and inmates (Dvoskin and Steadman, 1989). Adequate screening and follow-up procedures help the offender with mental health or substance abuse problems function better and have the potential to reduce inmate suicide (NIC, 1995), violence, and other predatory behaviors (Cohen and Dvoskin, 1992).

Useful guidelines for mental health screenings have been developed by the American Psychiatric Association (APA) and the National Commission on Correctional Health Care (NCCHC) (Metzner, 1993). APA recommends that a mental health screening be conducted at the time of admission to the prison. Following the initial screening, APA recommends a more detailed, thorough intake mental health screening be conducted. APA’s guidelines also recommends that any inmate identified by these screenings as having a mental illness or disability be referred to an appropriately trained mental health professional for a more comprehensive mental health professional for a more comprehensive mental health examination or assessment. This assessment should take place within 24 hours of receiving the referral from the screener.

NCCHC also has developed standards for two levels of mental health screenings in prisons. The first is recommended to take place immediately, within 2 hours upon arrival, and to be completed by qualified health care personnel.

The second level of screening is a post-admission mental health evaluation (closer to an assessment). It is recommended that this evaluation occur within 14 days of admission to the prison and be completed only by qualified mental health personnel. This mental health evaluation should include a structured interview that inquires into the inmate’s history and current status.

Co-occurring Disorders

Screenings and assessments in criminal justice settings ought to address issues related to mental health, substance abuse and the interaction between the two (Peters and Bartoi, 1997). The screening approach used to identify mental health and substance abuse conditions should be integrated; that is, if either a mental health or substance abuse disorder is detected, the other should immediately be screened for as well. The prevalence of co-occurring substance abuse and mental health disorders is especially high in the prison population. An estimated 13 percent of the prison population has both a serious mental illness and a co-occurring substance abuse disorder (National GAINS Center, 1997), and 23 to 56 percent of inmates in general population who have a diagnosable mental disorder also have a substance abuse disorder (Regier et al., 1990).

Screening and Assessment of Women Offenders

The screening and assessment of female inmates is particularly significant given the growing numbers of women in state prisons and the higher incidence of mental illness and substance abuse disorders when compared with male inmates (Bureau of Justice Statistics, 1999). An estimated 19 percent of female jail detainees are diagnosed with schizophrenia, bipolar disorder, or major depression compared with 9 percent of male detainees (Teplin, 1994; Teplin, Abram, and McClelland, 1996). A history of prior physical or sexual abuse is reported by 30 percent of mentally ill male inmates and 78 percent of female inmates (Bureau of Justice Statistics, 1999).

Screening and assessment of women offenders, therefore, need to be particularly sensitive to the presence of mood symptoms, depression and anxiety symptoms which can have significant impact on the way these women relate to others and on the safety and the security of the facility.”

3. Problems in Screening and Assessment

Problems identified by NIC relating to screening and assessment for mental health are as follows:

• Determining how to screen and the methods to use remains challenging.
• Mental health professionals who choose to work in prisons are in short supply.
• Many people with serious mental illness do not acknowledge they have it or do not want other inmates or staff to know they have it.
• Some inmates do not have a preexisting mental condition when they enter prison but develop significant psychiatric problems as a result of incarceration.
• Inmates with mental illness who stand out and cause problems quickly get attention. Those who are quietly psychotic or depressed are harder to recognize.
• Suicide is an additional risk in correctional settings, and inmates with mental illness are at particularly high risk.
• Suicide is the third leading cause of death in prison (Hayes, 1999), and almost all suicide attempts committed in prisons are by people diagnosed with major psychiatric disorders (Bonner, 2000).
• There is a high incidence of borderline intelligence and mental retardation in the prison population. An inmate’s inability to think abstractly and lack of verbal skills may inhibit his or her ability to put common symptoms and feelings into words that adequately convey a sense of what is happening.
• Cultural differences play a role in the diagnostic process.

4. Mental Health Treatment

A number of court rulings affirm that prison inmates are entitled to mental health care equal to that available in the community. Yet, few if any prisons are able to offer a comprehensive array of mental health services for all inmates who may require or request them. Limitations of mental health staff and resources force most prison officials to prioritize inmates with the most severe impairments and dangerous and disruptive symptoms. Inmates with adjustment disorders and less severe mental health problems may wait lengthy periods for treatment or get no treatment at all.

Ruiz v. Estelle (1980) established the minimum components needed to deliver adequate mental health treatment in prison, including the use of trained mental health professionals in sufficient numbers to identify and treat inmates who are mentally ill (Metzner, 1993).

National Standards and Guidelines

Although the courts do not mandate the use of any particular mental health service delivery model, they do expect correctional facilities to maintain policies and procedures that will reduce needless suffering and allow access to needed services (Cohen and Dvoskin, 1992).

American Psychiatric Association

The APA guidelines (APA, 2000) recommend that a variety of biological and psychological therapies be available to treat mental health disorders that significantly interfere with an inmate’s ability to function in prison. Treatment should be multidisciplinary, eclectic, and consistent with generally accepted mental health practices and institutional requirements. APA’s guidelines require the following components be available:

• A crisis intervention program with infirmary beds available for short-term treatment (less than 10 days).
• An acute care program (inpatient treatment for inmates with significant psychiatric symptoms that interfere with their ability to care for themselves).
• A chronic care program (a special housing unit for inmates with a chronic mental illness who do not need acute inpatient care but cannot function adequately within general population).
• Outpatient treatment services.
• Consultation services (including consultation with other prison officials and departments ant the training of officers and program staff).
• Discharge/transfer planning (including both transfer to other institutions and release to the community.

NCCHC

APA’s guidelines were designed to be used in conjunction with the standards developed by the NCCHC (Anno, 2000). In addition to issues of care and treatment, NCCHC standards address administrative and personnel issues, support services, special needs and services, health records, and medical-legal issues. Care and treatment issues stipulated by NCCHN include the following:

• Inmates must be screened for mental health problems by a qualified health professional within 2 hours of admission.
• Inmates must be informed within 24 hours of arrival of the types of mental health services available and how to access them.
• Inmates must have a health appraisal within 7 days of arrival that includes taking a history of any prior mental health problems, hospitalizations, psychotropic medications, suicide attempts, and alcohol and other drug abuse.
• Inmates must receive a mental health evaluation within 14 days of arrival that includes a complete mental health history and current mental status and screening for mental retardation and other developmental disabilities.
• Treatment plans must be created for inmates who are identified as having serious mental health needs and who are developmentally disabled.
• Inmates should be seen by a qualified professional within 48 hours of a request for non-emergency mental health services (72 hours on a weekend).
• Prison procedures must address psychiatric emergencies and suicide attempts.
• Mental health treatment should occur in private (except for high security risks) and with respect for the offender’s dignity and feelings.

Metzner (1993) has integrated several sets of national guidelines and recommends the following 13 policy and procedural issues be addressed in the development of a prison’s comprehensive mental health system:

• A mission and goals.
• Administrative structure.
• Staffing (e.g., personnel, credentialing, job descriptions).
• Reliable and valid methods for identifying inmates with severe mental illness.
• Treatment programs available to inmates.
• Involuntary treatment, including the use of seclusion, restraints, forced medications, and involuntary hospitalizations.
• Medical/legal issues, including informed consent and the right to refuse treatment.
• Confidentiality.
• Mental health record requirements.
• A quality assurance and improvement plan.
• The training of mental health staff regarding correctional and security issues.
• The formal training of correctional staff regarding mental health issues.
• Research protocols involving human subjects.

Informed Consent and the Right to Refuse Mental Health Treatment

Although APA, NCCHC, and other guidelines exist to ensure that offenders receive adequate mental health treatment, the right of inmates to refuse mental health treatment also must be addressed by policies and procedures in prison settings. This right to refuse treatment is inherent in the notion of informed consent, which NCCHC (1999) defines as:
“…the agreement by a patient to a treatment, examination, or procedure after the patient receives the material facts about the nature, consequences, and risks of the proposed treatment, examination, or procedure, and the alternatives to it.”

There are exceptions to the need for informed consent. When inmates with mental illness pose an imminent danger to themselves or others, they can be treated despite their refusal. These exceptions should be clearly delineated in written procedures.

Mental Health Staffing

Guidelines and standards from national organizations (including NCCHC) do not stipulate how many or what type (i.e., from which discipline) of mental health or substance abuse professionals should be employed by each prison. They recommend only that there be qualified mental health professionals at sufficient levels to ensure that inmates can receive the treatment equal to contemporary standards or care (Metzner, 1993). Very little empirical data exist to help administrators select a particular staffing model for providing mental health services to inmates (Rice and Harris, 1993; Dvoskin and Patterson, 1998). The numbers and types of mental health care providers required at any particular facility depend on the number of inmates being treated, the particular needs of those inmates being treated, the particular needs of those inmates, and the scope of services being offered (NCCHC, 1999). It is recommended, however, that the professionals providing mental health and substance abuse services meet the state licensure, certification, and registration requirements necessary to practice outside of the prison setting so as not to compromise the quality of care provided to inmates (NCCHC, 1999).

Treatment Planning

Regardless of the specific treatment or setting where services are delivered, and individualized treatment plan is essential to the provision of prison-based mental health services. The plan includes a series of written statements that address key components of the inmate’s mental health issues and treatment (Metzner et al., 1998). A treatment plan should include:

• An objective description of the problems the inmate faces as a result of mental illness.
• An objective description of short- and long-term goals of treatment.
• The types of therapeutic interventions that will be used to achieve those goals and how often they will be delivered.
• The providers who will deliver the treatment.

Treatment plans also can address interventions or activities to be provided by non-mental health staff that can be critical in helping inmates with mental illness function adequately and provide relief from symptoms. These interventions and activities may include attending school or vocational programs, recreational activities, family visits, and work assignments (Metzner et al., 1998).

Crisis Intervention

Offenders who require long-term mental health interventions and treatment are generally seen in residential units or at outpatient clinics. There are times, however, when emergency interventions for crisis situations must be provided to inmates who may or may not be receiving mental health services on a regular basis. Crisis intervention is needed when inmates’ mental illnesses make them dangerous to themselves or others or leave them unable to adequately care for themselves. Most often, this is the result of an acute suicidal depression or an acute exacerbation of psychosis (Cohen and Dvoskin, 1992).

On these occasions, the success of the crisis intervention in preventing further psychiatric decompensation (the appearance or exacerbation of a mental disorder due to the failure of defense mechanisms) and in protecting the inmate and others depends on the timely response by staff and the ability to provide the necessary services, including access to:

• Mental health screening and assessment.
• Psychotropic medications.
• Supportive psychotherapy.
• Crisis stabilization beds.

Long-term mental health treatment may or may not follow these crisis intervention services. At times, it is a crisis situation that first brings an inmate into contact with mental health staff. This may be true for several reasons: the inmate’s initial screening and assessment did not reveal mental illness, the inmate’s mental illness was in remission prior to the crisis, or the illness developed while incarcerated (Cohen and Dvoskin, 1992).

Case Management

Case management was first developed in the 1960’s and 1970’s as a way to help those with mental illness access the social and health services they need to function on a day-to-day basis in the community (Chamberlain and Rapp, 1991). The traditional functions performed by Case Managers working with adults with mental illness are:

• Assessment of the offender’s needs.
• Planning services to meet the needs identified through assessment.
• Advocating for the offender’s needs.
• Linking offenders to the services identified by service planning.
• Monitoring the offender’s progress in achieving the objectives detailed in the service plan.

In correctional settings, Case Managers may be assigned to inmates who have mental health disorders, alcohol or drug abuse disorders, or both (co-occurring disorders). In a prison, the community comprises the general, or open, population housing units and the various departments and programs that deliver services to offenders. The Case Manager may need to broker between both correctional administrative systems (e.g., security, classification, housing) and treatment-oriented services and programs (e.g., education, vocation, health/medical, mental health, and alcohol and drug abuse services).

It is increasingly recognized that interventions with inmates who have mental illness need more intense involvement and that the relationship between the Case Manager and inmate should be emphasized. Case mangers report that informal counseling with their clients is a vital component to their relationship. With appropriate education and training, Case Managers can provide treatment in the form of counseling and psychotherapy.

Requiring that case manages be properly trained mental health professionals is consistent with national guidelines that recommend that the training and competence of the qualified mental health personnel employed in correctional facilities be equal to community standards (APA, 2000; NCCHC, 1999).

To avoid conflict in roles, clinicians who provide mental health treatment in forensic settings should not also provide correctional services. Effective case management:

Mentally ill offenders are best managed by an identified Mental Health Case Manager who is responsible for activating and monitoring a continuum of treatment and classification services to a caseload of mentally ill offenders. The purpose of this approach is to monitor each offender’s individualized mental health treatment plan, and to regularly evaluate the adequacy and appropriateness of the plan, making modifications where necessary. Effective case management will ensure consistency of service delivery, and will monitor mentally ill offenders’ progress, including changes in levels of functioning and treatment needs. (Jemelka, Rahman, and Trupin (1993).

Staff Training

Prison-based Case Managers working with inmates with mental illness should possess, at minimum, the skills needed by any successful prison staff member, including correctional officers (Rice and Harris, 1993).

Studies suggest that staffs who are most likely to succeed with correctional or mentally disordered offender populations are those who use authority to enforce rules but in a non-confrontational manner, who model prosocial (and anti-criminal) attitudes and behaviors, and who are at the same time emphatic and interpersonally skilled.

Line correctional staffs assigned to work with inmates with mental illness are best prepared for this role if they receive the same training as direct care workers in psychiatric hospitals (Hafemeister, 1998). Correctional officers can be highly effective when they are trained to:

• Understand that simply listening and talking to inmates with mental illness may resolve crisis.
• Understand that frequent contact by staff, even brief contacts, can help calm confused and anxious inmates.
• Provide accurate information about the institution and how to access mental health services to inmates.
• Observe and record inmate behavior.
• Receive and relay inmate requests for assistance from mental health staff.
• Consult with mental health staff about mental issues.
• Monitor inmates who take psychotropic medications for compliance and side effects.
• Identify the early signs and symptoms of mental illness and implement suicide prevention (Hafemeister, 1998).

Basic training for all correctional staff should therefore include the following information:

• How to recognize the early signs and symptoms of serious mental illness and suicide.
• The nature and effects of psychotropic medications.
• The mental health services available in the prison.
• How and when to make referrals to mental health services (Cohen and Dvoskin, 1992).

Case Managers should demonstrate the ability to:

• Establish rapport with inmates.
• Educate inmates about the institution and its mental health services.
• Link inmates to other services and departments.
• Link inmates to community services on release.
• Prepare treatment plans.

Co-occurring Disorders

Of the 16 percent of state prison inmates with a mental illness, 59 percent reported using alcohol or drugs at the time of their offense, and 34 percent have a history of alcohol dependence (Bureau of Justice Statistics, 1999). The term co-occurring disorders is defined within this context as those inmates who have a severe and persistent mental illness and a substance use disorder.

There are three models of treatment commonly used for delivery of service to inmates with co-occurring disorders: parallel, sequential, or integrated treatment. Both parallel and sequential treatment approaches may be adequate for offenders with less severe co-occurring disorders. The integrated model, calling for a single professional or team of professionals trained in both mental health and substance abuse providing comprehensive treatment to address both disorders simultaneously, is most effective for inmates with severe persistent mental illness.

5. Use of Seclusion, Segregation and Restraints

Finding safe, humane, and non-punitive methods for handling inmates who are experiencing the symptoms of mental illness is an ongoing challenge for prison administrators. The nature of serious mental illness may create major problems for managing the behavior of these inmates. Some symptoms of serious mental illness may result in inmates’ committing disciplinary infractions. Prison administrators must work to maintain order in their facilities but must also work to avoid penalizing inmates with mental illness for behavior that results directly from their illness. Inmates with mental disorders who do not fully comprehend the rules or who are unable to control their behavior often get into trouble and are punished even when they clearly have diminished responsibility, comprehension, or self-control (Faiver, 1998).

The American Psychiatric Association (APA) has expressed concern that inmates who have difficulty understanding or adhering to institutional rules as a result of their mental illness will find their way into segregation units unnecessarily in prisons with inadequate mental health services (APA, 2000). Solitary confinement or extended segregation may cause extreme stress for a mentally ill person and can promote decompensation and exacerbate the illness (Faiver, 1998).

As do other inmates, offenders with mental illness violate institutional rules and commit infractions that would normally result in discipline, including segregation and confinement. Although administrators must ensure that such behaviors trigger appropriate consequences, caution must also be taken because segregation for mentally ill offenders can severely exacerbate their psychiatric symptoms. Segregation may be so anxiety provoking for some that they may go to extreme lengths to avoid it, including threatening or attempting suicide (Hafemeister, 1998). Given that offenders with mental illness will at times be placed in administrative or disciplinary segregation, mental health staff should be readily available onsite to identify inmates who are experiencing significant psychological problems and to provide an adequate level of services.

NCCHC standard specifically stipulated that health care must continue to be made available inmates in segregation (Anno, 2000). Routine checks must be made by health staff at least three times a week for inmates in administrative segregation and daily for inmates in disciplinary segregation. Although the NCCHC standards do not address the frequency with which mental health staff should visit inmates in segregation, the APA has recommended that they make the rounds of segregated inmates at least weekly to check their mental status (Anno, 2000; APA, 2000). Anyone needing further evaluation or treatment should be referred for follow-up interventions and seen in an appropriate clinical setting.

APA recommends that, when inmates are in segregation for any reason, mental health staff should make a special effort to assess and address serious mental health needs because of the stressful nature of segregated housing.
Meeting Mental Health Needs in Segregated Housing:

• Inmates should not be confined in segregated housing units solely because they exhibit symptoms of mental illness.
• Segregated inmates must continue to receive any mental health services that mental health staff determines essential.
• Inmates in current, severe psychiatric crisis, including but not limited to acute psychosis and suicidal depression, should be removed from segregation until they are able to psychologically tolerate segregation.
• Inmates who have been identified as having serious mental health needs, especially those with severe and persistent mental illness, must be assessed regularly by mental health staff to identify and respond to any crises as soon as possible.

Unlike the NCCHC, the APA specifically recommends that mental health staff conduct regularly scheduled rounds in all segregation units and have contact with every inmate. APA also states that mental health staff needs to communicate with security staff to help identify offenders who show signs of decompensation.

Use of Seclusion and Restraints

Both seclusion and mechanical devices that restrain are used at times to protect mentally ill offenders from harming themselves and others. Because of the high potential for misuse of these devices (i.e., to control or punish an inmate rather than as a therapeutic intervention), specific and well-articulated policies and procedures must be in place to govern who can use them and under what conditions. When restraints are used for therapeutic interventions by health and mental health staff, NCCHC standards stipulate certain requirements (Anno, 2000):

• The facility must have written policies and procedures governing their use.
• Only soft restraints may be employed.
• Only a physician or other health provider permitted by law may order restraints or seclusion.
• Health staff may only use restraints or seclusion as part of a treatment regime and not for disciplinary or custody reasons.
• Any single order for restraints or seclusion cannot exceed 12 hours.
• Inmates in restraints or seclusion must be checked at least every 15 minutes.

APA recommends that staff consider that many inmates, especially women, may have suffered from a history of abuse and trauma and may be re-traumatized when secluded and restrained (APA, 2000). They recommend that the treatment team work together with the inmate to use other methods to manage behavior, such as talking the person down and understanding what is really going on.

The new American Correctional Association (ACA) standards for health care (ACA, 2001) also stipulate that correctional institutions have policies and procedures that address the use of restraints for psychiatric reasons. These policies and procedures must include:

• The conditions under which restraints may be applied;
• The types of restraints allowed;
• The staff qualified to decide when they are to be used because less restrictive measures would not be successful;
• The length of time they can be applied;
• Documentation of efforts for less restrictive alternatives as soon as possible; and
• An after-incident review.

Although ACA guidelines state that all of these issues must be addressed, the specific details are left up to the organization to determine.

6. Suicide Prevention

Perhaps nothing is more tragic and unsettling for prison staff and inmates than the suicide of an inmate. This event can shake an institution and leave anxiety and anger in the minds of both staff and inmates for a considerable length of time. It is important for prison administrators to adopt the most effective standards and procedures to prevent suicides and manage suicidal inmates. Staff must be equipped to identify inmates who are at risk so they can intervene and prevent this tragedy.

Suicide remains a leading cause of death for prison inmates, ranking third among all deaths that occur in prisons (Bureau of Justice Statistics, 1993). Prison Suicide: An Overview and Guide to Prevention (NIC, 1995) contains the most current data on prison suicide and its prevention, including a report on a 10-year survey of prison suicides conducted by the National Center on Institutions and Alternatives (NCIA) from 1984 through 1993. Important findings of this survey include the following:

• Suicides in prisons occurred at the rate of 21 per 100,000 inmates per year.
• Suicides in general population occurred at the rate of 12.2 per 100,000 people per year.
• Prison suicide rates gradually and steadily declined throughout the country from 1985 through 1993.

Hayes (NIC, 1995) reviewed local, state, and federal studies on prison suicides and found common characteristics among prison inmates who successfully completed suicides. These risk factors for prison suicides include:

• The presence of significant mental illness.
• A prior history of suicide attempts.
• Having a lengthy sentence (20 years or more).
• Being 31 to 40 years of age (which is older than the age of most jail inmates who successfully complete suicides).
• Having institutional problems (e.g. being in protective custody).
• Being housed in a segregated or isolated housing unit.
• Being male.

One of the most important and consistent findings in suicide prevention research is the strong correlation between segregation and successful suicide.

Overwhelmingly consistent research shows that isolation should be avoided whenever possible. NIC has stated, “Whether its use is disciplinary or observational, isolation can pose a special threat to inmates who have limited abilities to cope with frustration.” (NIC 1995, p. 7).

Suicidal Gestures and Manipulations

Prison administrators and correctional staff must differentiate those inmates who are genuinely distressed to the point where suicide has become a legitimate option in their minds from inmates who threaten suicide or make suicidal gestures (e.g., superficial cuts to wrists) to effect some change in their situation.

Regardless of the motivation, it is a serious mistake for prison officials to ignore inmates and their para-suicidal (intentionally self-harmful) behaviors for fear of reinforcing the manipulation. Further, it is even more egregious for inmates to be punished and isolated as a consequence. It is common for inmates who manipulated their situation by these threats or gestures to escalate their behavior in an attempt to achieve their goal and, in so doing, to die either accidentally or by miscalculating how the staff will respond (NIC, 1995).

In the final analysis, all correctional staff shares the responsibility for preventing inmate suicide. The challenge for the correctional administrators is to provide staff the training and resources that put them in the best possible situation to help at-risk and hopeless inmates whenever possible and prevent this type of tragedy from occurring.

National Commission on Correctional Health Care

NCCHC standards (1999) require a written suicide prevention plan. NCCHC also suggests 11 essential components for such a program:

• Identification. Initial screening should include observation and interview data related to an inmate’s potential suicide risk.
• Training. All staff should be trained to recognize verbal and behavioral cues that indicate suicide risk.
• Assessment. A qualified mental health professional should designate the inmate’s level of suicide risk.
• Monitoring. The facility should develop a procedure for monitoring at-risk inmates that includes regular and documented supervision.
• Housing. Suicidal inmates should not be isolated unless under constant supervision. When constant supervision cannot be maintained, the inmate should be housed with another inmate or in a dormitory and checked every 10-15 minutes.
• Referral. Procedures should be developed for referring inmates who are at risk for suicide or have attempted suicide to mental health staff.
• Communication. Effective communication must take place between correctional and health staff about an inmate’s status.
• Intervention. Staff should develop procedures on how to handle a suicide attempt in progress (e.g., first aid measures and how to cut down a hanging inmate.)
• Notification. Procedures for notifying family, prison administrators, and other outside authorities regarding potential, attempted, or completed suicides should be developed.
• Reporting. Staff should document in detail all potential, attempted, or completed suicides.
• Review. The facility should perform administrative and medical reviews of completed suicides.

NCCHC also provides recommendations for the assessment, housing, and observation of suicidal inmates through a level system that allows for a more individualized approach to the problem of suicidal potential and behavior:

• Level 1. Inmates who have recently attempted suicide should be observed continuously in a safe and protected room.
• Level 2. Inmates at high risk for suicide based on current mental status and history should be placed in a safe and protected room and observed every 5-10 minutes.
• Level 3. Inmates at moderate risk (e.g., coming off level 1 or 2) should be observed by staff every 10 minutes when awake and every 30 minutes when asleep.
• Level 4. Inmates who have a significant risk history and could become severely depressed or suicidal should be observed every 30 minutes when awake or asleep.

7. Treating Women Offenders

The characteristics of women offenders differ from those of men. And the number of women in prison is on the rise. Some research indicates that between the years 1984 and 1999, the number of incarcerated women increased by 273 percent (Gilliard and Beck, 1996).

Women offenders are a diverse group. Many represent ethnic minorities, have had significant academic or educational difficulties, are survivors of child maltreatment or domestic violence have histories of substance abuse, and suffer from a sexually transmitted disease or other chronic health condition. Often, their involvement in the justice system exacerbates the difficulties they face due to their traumatic histories. The often punitive culture within the justice system may trigger a reliving of past traumatic events, which may cause them to present with symptoms associated with posttraumatic stress disorder.

Women inmates represent about 10 percent of the total criminal justice population and have higher rates of mental illness than men (Gilliard and Beck, 1996). Women involved in the criminal justice system are more likely than men to enter because of drug-related charges. According to the Bureau of Justice of Statistics, almost half of the women in prison reported committing their offense under the influence of drugs or alcohol.

Women Offenders with Histories of Victimization

On average, half of women in prison report histories of physical or sexual abuse at some point in their lives (Greenfield and Snell, 1999). Seventy-three percent of those who reported having an emotional condition had been sexually or physically abused. Women who have been abused may have difficulty dealing with restraints, seclusion, and searches, which they may perceive as dangerous or threatening and which may result in retraumatization.

Many women with histories of trauma have been diagnosed with co-occurring mental health and substance abuse disorders. Treatment methodologies must focus on both the residual effects of the trauma and the women’s subsequent mental health and substance abuse issues.

Promising Practices for Women Offenders

Due to the prevalence of co-occurring substance abuse and mental health disorders among women victims of violence, the federal Substance Abuse and Mental Health Services Administration (SAMHSA) conducted the Women, Co-Occurring Disorders and Violence Study in partnership with its Center for Mental Health Services, Center for Substance Abuse Treatment, and Center for Substance Abuse Prevention. The study’s goal was to identify promising practices for the treatment of women with co-occurring disorders who also have histories of violence. Although the study did not address treatment during incarceration, the attributes of successful treatments that address the specific needs of women with both co-occurring disorders and histories of violence can and should be applied to all systems that provide intervention to women, including the justice system.

The SAMHSA study reported that treatment for women with co-occurring conditions and histories of violence works best when it contains the following four components:

• Focus on each individual woman’s strengths. A woman with co-occurring disorders and a history of victimization has within her certain strengths that should be acknowledged and addressed during treatment.
• Acknowledge a woman’s role as a parent. Treatment provided to mothers with co-occurring disorders and histories of violence should acknowledge their roles as parents and incorporate maternal themes within individual and group therapies.
• Improve interactions between the parent and child.
• Use a comprehensive approach to coordinate specific types of treatment for the mother and her children. Attention should be paid to mothers’ struggles with issues of shame and guilt, which can exacerbate their mental health problems.

Using a Comprehensive Treatment Approach

The SAMHSA study recommends that the following should be considered to provide women with co-occurring disorders and histories of violence the treatment that addresses their unique needs:

• Issues of trauma, mental illness, and substance abuse should be interwoven to better integrate treatment.
• Treatment should be tailored to the developmental needs of each woman and the age of her children.
• Issues relating to historical involvement with other systems should be addressed; for example, custody, previous mental health and substance abuse treatment, and primary health history.

The overarching justification for integrating issues of parenting, mental illness, trauma, substance abuse, and violence into treatment is to improve outcomes for incarcerated women and their children. It is assumed that when mothers’ needs are addressed, their children, consequently, will be affected. If the issues of substance abuse, mental illness, co-occurring disorders, trauma and violence, and maternal-child relationships are addressed during incarceration, there may be increased opportunities for women to be successfully integrated into their communities and reunited with their families.

8. Treatment of Special Needs Populations

Several subpopulations within the prison are often referred to as “special populations” because they require a level of care or specialized services not required by other groups. These groups sometimes include adults with serious mental health disorders, as well as offenders with mental retardation, violent offenders, sex offenders and geriatric offenders.

Overcrowding, the lack of privacy, temperature and noise levels, victimization, and other environmental conditions in prisons can easily exacerbate the symptoms of mental illness for some people. In fact, the prison environment itself can contribute to increased suicide and the inability of inmates with serious mental illness to adjust. Environmental factors can also elicit significant adjustment reactions from inmates who may not have had a previous diagnosis but who become ill while incarcerated.

The vulnerability of inmates with mental illness to abuse by other inmates and their tendency to accumulate disciplinary sanctions for disruptive behavior may more often result in placing offenders with mental illness in protective segregation or isolation. Segregated placements address some environmental problems and create others. Administrative segregation, for example, can have substantial psychological consequences for an inmate with depression or schizophrenia (Reid, 2000). Isolation can increase symptoms for many people. Placing inmates in higher security settings may also limit their access to privileges, programs, work release assignments, and early parole (DiCataldo, Greer, and Profit, 1995).

NIC also reports that effectiveness of specialized mental health units for the care of inmates with serious mental illness, and who are unable to cope with participating in daily activities with the general population, but who are not in need of hospital-level care has been demonstrated in numerous prison systems (Wilkinson, 2000).

Specialized mental health units generally reduce the number of institutional crises and management problems and improve the quality of life for impaired inmates. These units have moderate costs, which are more than offset by the decrease in the use of inpatient psychiatric care and improvements in institutional safety and security (Haddad, 1999).

Inmates with Mental Retardation

Individuals with mental retardation have “significantly sub-average intellectual functioning” and other indicators of impaired functioning that occurred prior to the age of 18.

Prison staff may experience challenges with these inmates for a variety of reasons. Inmates with mental retardation may experience one or more of the following:

• Difficulty in comprehending and responding to instructions. This can be counteracted by using clear, simple language and giving the person adequate time to respond.
• Low frustration tolerance. This may lead to excited behaviors or inappropriate verbalizations/speech. Persons who can calmly redirect the individual may need to intervene.
• Impulsivity. Difficulty controlling impulsive behaviors and positive or negative affect may cause the individual to behave impulsively.

When violence occurs, it may be the result of limited communication skills, a sense of being threatened, misinterpreted social cues, or flawed concrete logic (believing that acting in a violent fashion was the only reasonable solution to the situation) (Day and Berney, 2001).

Prison staff must take extra care to make certain that inmates with mental retardation are not ridiculed or preyed on by other offenders. Inmates with mental retardation should be observed frequently so that these issues may be addressed.

Treatment of Older Adults

NIC uses the term “geriatric” for inmates who are 50 years of age or older. This fairly liberal categorization is suggested because of the higher “biological age” of the inmate population due to higher rates of smoking, poor nutrition, lower socioeconomic status, and limited access to prior health care (APA, 2000). The high-risk behaviors inmates commonly engage in have resulted in appraised medical ages 5 to 10 years older than their chronological ages (McVey, 2001).

Longer sentences and increased curtailment of parole have made older offenders the fastest growing population in state prisons (Ortiz, 2000). Older offenders are also the most expensive group to house and maintain, largely due to their physical and mental impairments. Data from several sources suggest that the cost of medical care for elderly prisoners is almost three times the average cost for the general population (Faiver, 1998).

Other important issues in the treatment of older adult inmate populations include their:

• Physical vulnerabilities when housed with aggressive, younger adults.
• Potential lack of connection to other inmates.
• Greater rates of successful suicides.
• Increased risk for death during their tern of incarceration.
• Greater difficulty in adapting to prison (APA, 2000).

All these vulnerabilities can exacerbate underlying psychiatric disorders.

Hopelessness and despair are common as older male and female offenders gradually lose contact with their families and face long prison sentences. Elderly offenders’ losses progress slowly over time, contributing to grief. Specially trained staff may be needed in prison settings to identify and treat geriatric health and mental health problems and to prevent suicide attempts. Treatment of both mental health and substance abuse problems must be individualized to meet the needs of these offenders (Maue, 2001).

Because many have aged out of the workforce, this population has special programming needs and significant issues regarding discharge planning, sex-offender counseling, long-term housing, medical costs for chronic conditions and hospice care.

9. Continuity of Care

Ensuring continuity of care for offenders with mental illness is a significant challenge for prison officials. As a rule, community providers and prison officials do not communicate or exchange records when a person enters the prison system or during incarceration. The lack of continuity and communication works considerable hardships on offenders with mental illness. Without good coordination between community and institutional programs, the offender’s disorder, anxiety, or both are likely to weaken any gains made earlier in treatment and trigger a relapse (Field, 1998).

Continuity of care is “required for admission to transfer or release from the facility (ACA, 2001). This includes sharing appropriate information between community-based providers and prisons.

One of the most significant issues facing people with serious mental illness when they are released from prison is their ability to continue their psychotropic medication.

Appendix F: Correctional Best Practices
________________________________________

Inmates with Mental Illness
Dr. Arthur Tolan, Non-practicing physician
Marvin D. Fickle, M.D.

Mentally Ill Persons in Prison
According to the US Department of Justice Mental Health Treatment of Inmates and Prisoners July 1999 study

1. Statistics

A 1999 US Department of Justice study found:

• An estimated 16.2% of state prison inmates and probationers are mentally ill.
• Homeless in the year prior to incarceration in state prison: 20.1% mentally ill vs. 8.8% other
• Physical or sexual abuse prior to incarceration in state prison: 36.9% mentally ill vs. 15.2% other
• History of alcohol dependence prior to incarceration in state prison: 34.4% mentally ill vs. 22.4% other
• Sentences for all offenses in state prison: 171 months mentally ill vs. 159 months other

Oregon Department of Corrections

From 1998 through July 2002, DOC had over 11% of population with severe and persistently mentally illness. (Numbers show an increase.)

As of July 2004 DOC had:

• 28.8 % of total inmate population = A-1 & A1-R
• 11.6% of total inmate population = A-2 & A-3 (Severe and persistent group)
• 23.2% of total inmate population on meds (R,2,3)

2. Oregon Statutes (1999)

• 161.365 Procedure for determining issue of fitness to proceed.
1. Whenever the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity as defined in ORS 161.360, the court may call to its assistance in reaching its decision any witness and may appoint a psychiatrist or psychologist to examine the defendant and advise the court.
2. If the court determines the assistance of a psychiatrist or psychologist would be helpful, the court may order the defendant to be committed to a state mental hospital designated by the Mental Health and Developmental Disability Services Division for the purpose of an examination for a period not exceeding 30 days.
• 161.370 Determination of fitness; effect of finding of unfitness; proceedings if fitness regained; pretrial objections by defense counsel.
1. When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed by a psychiatrist or psychologist under ORS 161.365, the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. If the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to summon and to cross-examine any psychiatrist or psychologist who submitted the report and to offer evidence upon the issue. Other evidence regarding the defendant’s fitness to proceed may be introduced by either party.
2. If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in subsection (13) of this section, and the court shall commit the defendant to the custody of the superintendent of a state mental hospital or other treatment facility designated by the Mental Health and Developmental Disability Services Division or shall release the defendant on supervision for so long as such unfitness shall endure.
• 161.295 Effect of mental disease or defect; guilty except for insanity.
1. A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.
2. As used in chapter 743, Oregon Laws 1971, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder. [1971 c.743 s.36; 1983 c.800 s.1]

3. Criminal Justice/Mental Health Consensus Project – Findings & Best Practices

• Receiving and Intake of Sentenced Inmates

1. Incorporate screening for mental illness and referral to mental health services into the existing receiving / admission protocol by integrating into the process a screening instrument along with observations by those charged with booking newly received inmates into the receiving / admission process.
2. Ensure consistency of screening protocols within correctional system by using the same screening instrument at all facilities statewide and training facility staff in their use.
3. Develop a system of triage to ensure that follow-up responses to the screening results reflect the immediacy of the inmate’s needs.
4. Evaluate periodically the effectiveness of the screening instrument employed, as well as the mental health assessment and mental health evaluation protocols.
5. Conduct a comprehensive mental health evaluation of every inmate flagged as having significant mental health issues during the professional mental health assessment process.

• Development of Treatment Plans, Assignment to Programs, and
Classification/Housing Decisions

1. Include the most appropriate psychotherapeutic medications in prison and county correctional institution formularies.
2. Develop and adopt jointly standardized clinical decision protocols (i.e., Algorithms) that are based upon research conducted on a national level.
3. Require, at a minimum, that (1) mental health-specific case management services and (2) effective, research-based behavioral and counseling interventions accompany the use of medication.
4. Develop and provide programs for inmates with co-occurring disorders.
5. Facilitate access to professional psychiatric services by using telepsychiatry in systems where inmates are distributed across a large geographical area or in locations where there is a shortage of psychiatric service providers.
6. Review mental health services provided to ensure that they are evidenced-based.
7. Ensure the cultural competency of all programs for inmates with mental illness.
8. Provide mental health treatment and services that are gender-specific.
9. Recognize the distinct programming needs of special populations with mental illness, such as the elderly, the developmentally disabled, those with chronic medical problems, substance abusers, and sex offenders.
10. Develop graduated housing options for inmates with mental illness that ensure the safety of staff and inmates and prepare inmates, when appropriate, for transition from specialized housing to general population units.
11. Provide disciplinary hearing officers with the proper orientation and training to make informed decisions about offenders with mental illness.
12. Ensure continuity of services when inmates are transferred to a different facility.
13. Require appropriate staff to review mental health information received with the transferred inmate and to respond accordingly.
14. Identify appropriate technology and protocols for the development of an electronic patient records system.

• Subsequent Referral for Screening and Mental Health Evaluations

1. Reassesses periodically the mental health status of inmates who are at the highest risk of showing signs of mental illness.
2. Conduct brief mental health assessments upon request of an inmate or by referral from any staff person.
3. Minimize the stigma that staff and inmates may harbor regarding mental illness.

• Release Decision

1. Develop guidelines regarding release decisions that address issues unique to inmates with mental illness, and consult with mental health professionals during the decision-making process.
2. Develop protocols to share information and resources among parole agencies, departments of corrections, and mental health organizations.
3. Establish special conditions of release that are realistic, relevant, and research-based to address the risks and needs of parolees with mental illness.
4. Ensure that the releasing authority can identify and obtain access to community-based programs and resources adequate to support the treatment and successful community reintegration of parolees with mental illness and that such programs and resources are available in the communities to which parolees return.
5. Train parole board members to increase their knowledge of the risks/needs of persons with mental illness and factors that mitigate that risk so release decisions and special conditions can be determined appropriately.

• Development of Transition Plan

1. Identify transition planners in each institution and charge them with coordinating a case management process, which incorporates representatives of institutional corrections, community corrections, social service agencies, and community-based mental health providers.
2. Involve all relevant agents and individuals who will assist in carrying out the transition plan, including family members, in its development.
3. Take steps to ensure that the inmate’s release from secure housing to the community progresses in a gradual sequence of planned steps.
4. Develop a transition plan that includes the inmate’s assignment to a community-based provider whose resources and assets are consistent with the needs and strengths of the inmate.
5. Integrate housing support services into the transition plan and provide releasees with mental illness an arrangement for safe housing or at a minimum, shelter.
6. Make arrangements for at least a week’s supply of important medications, along with refillable prescriptions, to be provided to inmates at the point of release.
7. Develop a process to ensure that inmates eligible for public benefits receive them immediately upon their release.
8. Notify the victim before the offender is released from prison, consistent with the requirements of the state’s law or constitution, prior to release.
9. Monitor the inmate closely in the days approaching release and modify the discharge plan when appropriate.
10. Provide enhanced discharge planning, including extensive coordination with the community treatment provider, to ensure continued case management for inmates with mental illness who will complete their sentence in prison.

Appendix G: Proposed Mental Health Service Delivery Model
________________________________________

Appendix H: Criminal Justice System and Persons with Mental Illness
________________________________________

Narrative – Criminal Justice System and the Mentally Ill:

The flowchart, shown on the previous page, was developed by the Workgroup on Criminal Justice Issues from the Governor’s Mental Health Task Force, maps the pathways that can be taken by a person with a mental illness who is accused of committing a crime in Oregon.

The first determination that must be made in such cases is whether the person is able to cooperate with counsel. If not fit to cooperate with counsel, the person is committed to community mental health treatment or secure treatment at the state hospital. Once able to proceed, the court must determine whether the person is guilty of the alleged crime and, if guilty, whether the person was responsible at the time of the crime.

If a person with a mental illness is guilty of a crime and responsible, the sanction is probation, a county jail sentence, or a prison sentence. Severity of the crime, history of any other criminal conduct, and sentencing guidelines determine the sentence.

If a person with a mental illness is found guilty of a crime but as the result of mental disease or defect lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of the law, the legal outcome is guilty except for insanity. The person then is placed under the jurisdiction of the Psychiatric Security Review Board (PSRB). The PSRB can place the person in a supervised community setting or in the state hospital. The criteria for placement include seriousness of the crime, past history of criminal conduct, and mental health status.

The main criterion for releasing persons with mental illnesses from secure settings (jail, prison, or state hospital) is public safety. Before release, that fundamental criterion must be satisfied or the person must have served the limit of required time. There is an additional criterion for persons committed to the state hospital, namely, the person’s mental illness must be in satisfactory clinical remission. If a person’s full sentence has not been completed at release, that person in the community remains under the supervision of the Board of Parole and Post-Prison Supervision or the PSRB.

These different pathways for persons who have a mental illness and are accused of a crime can be seen in the accompanying flowchart. Public safety is the primary purpose of the systems described here. The availability of mental health services for these individuals while incarcerated or in the community varies significantly from setting to setting.

Appendix I: Bazelon Center for Mental Health Law – Building Bridges
Building Bridges: An Act to Reduce Recidivism by Improving Access to Benefits for Individuals with Psychiatric Disabilities upon Release from Incarceration
For additional information, see www.bazelon.org.
As the number of people with psychiatric disabilities in jails and prisons continues to rise, prison officials, state lawmakers and mental health advocates have become increasingly concerned about the effect of this trend on inmates, staff and state budgets. Building Bridges offers states a strategy to reduce recidivism and help recently released inmates with psychiatric disabilities successfully transition to community life.
Section-by-Section Summary
Article I
Sets out findings and explains the purposes of the bill. When released from jail or prison, individuals with psychiatric disabilities often lack access to critical services and supports such as health and mental health care, housing, education and employment or income support. As a result, many become trapped in a cycle of destitution, deterioration, rearrest and re-incarceration. Although federal entitlement programs offer income support and health care coverage, individuals released from incarceration seldom have timely access to these benefits. The Act directs state and local agencies to adopt policies and procedures that enable individuals with psychiatric disabilities, upon release, to be enrolled or reinstated in these programs, receive needed services speedily and establish connections to the community-based mental health system prior to release. By thus promoting the successful community re-entry of inmates with psychiatric disabilities, the Act will enhance public safety and offer taxpayers relief from the fiscal burdens imposed by avoidable recidivism.
Article II
Defines terms used in the bill.
Article III
Establishes state policy to facilitate suspension, rather than termination, of federal benefits when an individual with psychiatric disabilities is incarcerated and to enable speedy restoration of benefits upon the individual’s release.
Article IV
Establishes state policy to assist inmates with psychiatric disabilities who are not on eligibility rolls for federal entitlements in applying, while incarcerated, to receive benefits upon release. Requires the Medicaid agency to set up procedures for receiving Medicaid applications and reviewing them within 14 days and enrolling eligible individuals on suspended status while incarcerated. Mandates that correctional agencies identify inmates who are likely to be eligible for Medicaid and/or disability benefits, ask them if they wish to apply and ensure that applications are filed well in advance of their release.
Article V
Requires correctional agencies to negotiate Pre-Release Agreements with the Social Security Administration and to arrange for competent and experienced staff to assist inmates with psychiatric disabilities in applying for federal disability benefits prior to their release.
Article VI
Creates a bridge program for released inmates whose applications for federal benefits are pending. Requires the state Medicaid agency to provide a temporary Medicaid card and cover services for up to six (6) months or until an individual is determined ineligible. Designates a state agency to provide temporary income support for up to six (6) months to individuals with psychiatric disabilities who have applied for but are not receiving SSI or SSDI upon release. Provides for the state to claim federal reimbursement of benefits provided to the individual and prohibits the recovery of any costs from an individual who is found ineligible for federal entitlements.
Article VII
Requires correctional agencies to arrange for the issue of a photo identification card that does not disclose the individual’s incarceration.
Article VIII
Requires access to medically necessary mental health services for inmates both while incarcerated and upon release. Assigns this responsibility to the state corrections agency for individuals in prison who have psychiatric disabilities, to the state juvenile corrections agency for individuals in juvenile corrections facilities, and to the state mental health agency for inmates in jails or juvenile detention facilities. Mandates the provision of an adequate temporary supply of medication upon an inmate’s release and requires the state mental health agency to provide case management services well in advance of an inmate’s release to help arrange for shelter, services and supports and assist with benefit applications.
Article IX
Requires the state Medicaid agency to seek federal approval of amendments to the state Medicaid plan that may be necessary to implement this legislation.
Article X
Appropriates funding to implement the Act.
Article XI
Sets dates when the various articles will take effect.

Bazelon Center for Mental Health – Model Law
Article I: Findings and Purpose
A. Findings
The Legislature finds and declares that:
1. When released from incarceration, adults and juveniles with psychiatric disabilities often lack access to mental health services, stable housing, employment or other income and education. Obtaining food and other necessities can be a problem. Without basic supports, many needlessly become trapped in a cycle of destitution, deterioration, re-arrest and re-incarceration.
2. Upon release, individuals with psychiatric disabilities need basic services and supports to enable them to transition successfully to community life. Existing federal programs, such as Medicaid, Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI), provide health care coverage and income support to people with psychiatric disabilities. Often, however, individuals released from incarceration are not enrolled in these programs or their enrollment is unreasonably delayed.
3. Legislative action is required to aid individuals with psychiatric disabilities in maintaining their eligibility for federal benefit programs during incarceration and, upon release, to enable them to access federal benefit programs for which they are eligible and temporary health care coverage and income when federal benefits are not immediately available.
4. Legislative action is also required to ensure that, upon release, individuals with psychiatric disabilities are connected to the community-based mental health system.
5. Providing access to mental health care and income support for individuals with psychiatric disabilities upon their release will promote successful community re-entry, enhance public safety and provide relief to taxpayers from fiscal burdens imposed by avoidable recidivism.
B. Purpose
The purpose of this Act is to facilitate the community reintegration of adults and juveniles with psychiatric disabilities upon release from jail, prison, detention centers or other correctional facilities and to enhance public safety and provide cost-effective care by enabling such individuals to receive benefits speedily upon their release from incarceration. It directs [identify state and local agencies] to adopt policies and procedures that enable individuals with psychiatric disabilities, upon release from incarceration, to:
1. Participate in federal benefit programs for which they qualify;
2. Be speedily reinstated or enrolled in federal health insurance and income support programs for which they are eligible;
3. Obtain temporary health care coverage and income support while receipt of federal benefits is pending; and
4. Receive mental health services, including case management, medications and substance abuse services.
This Act also provides funds for costs associated with its implementation.
Article II: Definitions
1. “Case management” means [see state law and policy]
2. “Correctional agency” means an agency of state or local government responsible for overseeing the operation of one or more correctional institutions, including juvenile justice facilities.
3. “Correctional institution” means a jail, prison, juvenile corrections facility, juvenile detention facility or other detention facility operated by a state or local correctional agency that qualifies as a public institution under 42 Code of Federal Regulations (C.F.R.) § 435.1009.
4. “Enrolled in the SSI program” means (a) currently eligible, as determined by the Social Security Administration pursuant to SSI program rules and (b) on eligibility rolls, even if cash benefits are currently suspended.
5. “Enrolled in the SSDI program” means (a) currently eligible, as determined by the Social Security Administration pursuant to SSDI program rules and (b) on eligibility rolls, even if cash benefits are currently suspended.
6. “Federal benefit programs” refers to Medicaid, Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI).
7. “Incarcerated” means confined in a correctional institution.
8. “Individuals with psychiatric disabilities” includes (a) adults with serious mental illnesses, as defined in [state law or policy], and (b) juveniles with emotional/behavioral disturbances or emotional disorders, as defined in [state law or policy].
9. “Inmates” refers to incarcerated individuals with psychiatric disabilities.
10. “Likely to be eligible” individuals means individuals with psychiatric disabilities (a) whose enrollment in the Medicaid, SSI or SSDI program was terminated during their incarceration; (b) who were enrolled in the Medicaid, SSI or SSDI program at any time during the five years prior to their incarceration; or (c) who were not previously enrolled, but who are likely to meet eligibility criteria for the Medicaid, SSI, or SSDI programs upon their release from incarceration.
11. “Medicaid eligibility category” refers to all existing eligibility categories established in the state Medicaid plan
12. “Medicaid eligibility through SSI” means that an individual is eligible to participate in the Medicaid program by virtue of enrollment in the SSI program.
13. “Mental health services” means [see state law and policy]. It includes substance abuse services.
14. “Parent” means a parent, guardian or individual acting in the role of parent (e.g., grandparent raising a child).
15. “Pre-Release Agreement” means a formal agreement with the Social Security Administration (SSA) under which a correctional agency and SSA will work collaboratively to ensure that applications for SSI and SSDI by inmates are speedily handled by SSA.
16. “SSI” means the Supplemental Security Income program, a federal income support program for people with disabilities and low incomes, provided under Title XVI of the Social Security Act.
17. “SSDI” means the Social Security Disability Income program, a federal income support program, provided under Title II of the Social Security Act, for individuals with disabilities who have worked and paid Social Security taxes.
18. “Suspend” Medicaid coverage means to place an individual’s Medicaid eligibility in an inactive status such that (a) the individual remains eligible for Medicaid and continues on the state rolls but (b) Medicaid benefits are not payable for services furnished (e.g., during incarceration).
19. “Suspend” SSI or SSDI eligibility means to stop cash payments due to incarceration.
Article III: Suspension of Eligibility Upon Incarceration and Restoration Upon Release
A. State Policy
It shall be the policy of [State] to facilitate, to the full extent permitted by federal law:
1. The suspension rather than termination of federal benefits when an individual with psychiatric disabilities is incarcerated, and
2. Speedy restoration of benefits upon the individual’s release.
B. Medicaid
The [Medicaid agency] shall adopt regulations or policies ensuring that:
1. When an individual with psychiatric disabilities enrolled in the Medicaid program is incarcerated,
a. The individual’s eligibility for Medicaid will be suspended rather than terminated, and will remain suspended rather than terminated for as long as is permitted by federal law; and
b. The individual shall not be terminated from the Medicaid program unless [Medicaid agency] determines that the individual (i) no longer meets the Medicaid eligibility criteria under which they had qualified and (ii) is not eligible for Medicaid under any other Medicaid eligibility category.
2. When an individual whose Medicaid eligibility is suspended is released from incarceration, the individual’s Medicaid eligibility will be fully restored on the day of release unless and until the [Medicaid agency] determines that the individual is no longer eligible for Medicaid.
C. Federal Disability Benefits
[Correctional agencies] shall seek to ensure the speedy restoration of benefits of inmates with psychiatric disabilities whose eligibility for SSI or SSDI has been suspended during incarceration. These agencies shall seek to ensure that cash benefits under SSI and SSDI are reinstated in the month of release. To this end, these agencies shall:
1. Identify inmates with psychiatric disabilities whose SSI or SSDI was suspended during incarceration, and ask them if they wish to receive benefits when released, and
2. For those who wish to receive benefits, ensure that (i) applications for reinstatement of SSI or SSDI upon release are filed on their behalf as soon as possible following suspension, and (ii) all applicants for reinstatement leave the correctional institution with a copy of the application.
Article IV: Applications for Inmates with Psychiatric Disabilities Terminated from or Not Enrolled in Federal Benefit Programs
A. State Policy
It shall be the policy of [State] to assist inmates with psychiatric disabilities whose eligibility for SSI, SSDI or Medicaid benefits was terminated while incarcerated or who were not receiving benefits at the time they were incarcerated to apply, while incarcerated, to receive benefits upon release.
B. Medicaid
1. The [Medicaid agency] shall:
a. Establish procedures for receiving Medicaid applications on behalf of incarcerated individuals with psychiatric disabilities in anticipation of their release.
b. Expeditiously review such applications and, to the extent practicable, complete its review before the individual is released. All reviews shall be completed within fourteen (14) days of the application’s receipt.
2. The review process shall assess whether the individual is presently eligible to be enrolled in the Medicaid program or is likely to be Medicaid eligible upon release.
a. If the individual is eligible to be enrolled while incarcerated, the individual will be enrolled but placed on suspended status. The individual will be provided a Medicaid card, entitling the individual to receive benefits effective upon his or her release.
b. If the individual is not eligible to be enrolled in Medicaid while incarcerated but is likely to be eligible for Medicaid upon release, the individual will be enrolled in the temporary Medicaid eligibility program described in Article VI. B., but on suspended status pending release. The individual will be provided a Medicaid card, entitling the individual to receive benefits under the temporary Medicaid eligibility program effective upon his or her release.
3. To facilitate enrollment in Medicaid, [correctional agencies] shall:
a. Identify inmates with psychiatric disabilities who are likely to be eligible for Medicaid while incarcerated or upon release, and ask them if they wish to receive benefits when released, and
b. For those who wish to receive benefits, ensure that (i) applications for Medicaid are filed, to the extent practicable, well in advance of release and, if possible, at least ninety (90) days before release, and (ii) all applicants for these benefits leave the correctional institution with a copy of the application.
C. Disability Benefits
[Correctional agencies] shall seek to ensure that inmates with psychiatric disabilities begin to receive SSI and SSDI cash benefits for which they are eligible in the month following release. To this end, these agencies shall:
1. Identify inmates with psychiatric disabilities who are likely to be eligible for SSI or SSDI upon release and ask them if they wish to receive benefits when released, and
2. For those who wish to receive benefits, ensure that applications are filed on their behalf prior to release and, to the extent practicable, at least ninety (90) days before release, and that they leave jail or prison with a copy of the application.
Article V: Facilitating Applications for Benefits
A. State Policy
It shall be the policy of [State] for correctional agencies to enter into Pre-Release Agreements with the Social Security Administration and to otherwise facilitate participation by inmates with psychiatric disabilities in federal benefit programs upon their release from incarceration
B. Negotiating Pre-Release Agreements with Social Security Administration
1. [Correctional agencies] shall use their best efforts to negotiate Pre-Release Agreements with the Social Security Administration that will ensure:
a. Speedy consideration by the Social Security Administration of new applications for and applications for reinstatement of SSI or SSDI on behalf of individuals with psychiatric disabilities, and that
b. The Social Security Administration is informed of the expected and actual release dates of individuals with psychiatric disabilities whose applications have been approved or are pending.
2. Once negotiated, each agreement shall be implemented as soon as practicable.
C. Application Assistance
1. Competent staff familiar with the characteristics of successful SSI, SSDI and Medicaid applications shall ensure that proper applications are filed and updated as needed. These staff will, among other things:
a. With applicants’ assistance, complete required forms for applicants with psychiatric disabilities;
b. With applicants’ consent, secure medical and other information required to support applications; and
c. Submit applications to the appropriate agency office.
These staff may be provided through contracts with local mental health agencies or providers.
2. With the applicant’s permission, a copy of each application shall be provided to a family member designated by the applicant and to any mental health case manager who will work with the individual upon release. Permission to provide a copy to a parent is not required in the case of minors under the age of 16.
Article VI: Bridge Programs
A. State Policy
It shall be the policy of [State] to offer individuals with psychiatric disabilities temporary Medicaid eligibility and temporary income support when released from incarceration while their applications for federal benefits are pending.
[Medicaid agency] will administer the temporary Medicaid eligibility program, and [state agency] will administer the temporary income support program.
B. Temporary Medicaid Card
1. An individual with psychiatric disabilities shall be qualified to receive a temporary Medicaid card upon release from incarceration if:
a. The individual is not receiving Medicaid-funded services;
b. The individual is likely to be eligible for Medicaid; and
c. An application for SSI or Medicaid was filed on his or her behalf while the individual was incarcerated or within three (3) months after the individual’s release.
2. An individual with a psychiatric disability may apply for a temporary Medicaid card while incarcerated or within three (3) months after release. Application may be made by submission to the [Medicaid agency] of an application for Medicaid, a copy of an application for SSI submitted on the individual’s behalf or other documentation deemed suitable by the [Medicaid agency].
3. Within fourteen (14) days of submission of the application, the [Medicaid agency] will determine whether the individual is qualified to receive a temporary Medicaid card and, if so, will immediately issue a temporary Medicaid card to the individual. If the individual is incarcerated, the card will entitle the individual to receive benefits under the temporary Medicaid program effective upon his or her release. If the individual has already been released, the card will be effective immediately.
4. If found qualified for a temporary Medicaid card, the individual is entitled to receive covered Medicaid services from certified Medicaid providers for a period of six (6) months. For individuals found qualified while incarcerated, the six (6) months begins upon release. For individuals found qualified after release, the six (6) months begins on the date of that determination. The six (6) month term may be renewed at the option of the [Medicaid agency].
5. A temporary Medicaid card shall be void if, prior to the end of a six (6) month term, it is determined that:
a. The individual is not eligible for the SSI program, and
b. The individual is not eligible for Medicaid under any other Medicaid eligibility category.
6. To the extent permitted by federal law, the state may claim reimbursement under the Medicaid program for payments made for care provided to an individual to whom a temporary Medicaid card has been issued. The state may not recoup any costs from the individual, including if the individual is found ineligible for Medicaid.
C. Temporary Income Support
1. An individual with a psychiatric disability shall be qualified for temporary income support upon release from incarceration if:
a. The individual is not receiving SSI or SSDI;
b. The individual is likely to be eligible for SSI or SSDI, and
c. An application for SSI or SSDI was filed on his or her behalf while the individual was incarcerated or within three (3) months after the individual’s release.
2. An individual with a psychiatric disability may apply for temporary income support while incarcerated or within three (3) months after release. Application may be made by submitting to the [responsible agency] a copy of an application for SSI or SSDI benefits, or other documentation deemed suitable by the [responsible agency]. Within fourteen (14) days of submission of the application, the [responsible agency] will determine whether the individual is qualified to receive temporary income support.
3. Temporary income support shall be paid monthly in an amount equal to the [basic SSI payment in the state]. Payments will be made for a period of six (6) months. For individuals found qualified while incarcerated, the six (6) months begins upon release. For individuals found qualified after release, the six (6) months begins on the date of that determination. The six (6) month term may be renewed at the option of the [responsible agency]. Payments may be terminated before the end of a six (6) month term if the Social Security Administration makes a final determination that the individual is not eligible to receive the federal benefits for which the individual applied.
4. To the extent permitted by federal law, the state may recoup the temporary income support from SSI or SSDI back benefits issued by the Social Security Administration. The state may not otherwise recoup any payments of temporary income support from the individual, including if the individual is found ineligible for SSI or SSDI.
Article VII: Photo Identification
[Correctional agencies] shall arrange for adults and emancipated youth with psychiatric disabilities to have photo identification when they are released from incarceration. [Correctional agencies] will ensure that inmates who lack photo identification are issued a photo identification card before or immediately upon release. The photo identification card will not disclose the individual’s incarceration or criminal record. It will list an address other than a correctional facility
Article VIII: Access to Services
A. State Policy
It is [State’s] policy that inmates have access to mental health services while incarcerated and upon release, as provided below.
1. For individuals in prison who have psychiatric disabilities, the [state corrections agency] shall be responsible for the provision of mental health services.
2. For individuals in juvenile corrections facilities who have psychiatric disabilities, the [state juvenile corrections agency] shall be responsible for the provision of mental health services.
3. For individuals in jail or juvenile detention facilities who have psychiatric disabilities, the [state mental health agency] shall be responsible for the provision of mental health services.
4. The [state mental health agency] shall be responsible for the provision of the case management services described in (C.) below.
These agencies may arrange for services to be provided through contracts with community mental health agencies or community mental health providers.
B. Mental Health Services
1. While incarcerated, individuals with psychiatric disabilities shall have access to medically necessary mental health services, including substance abuse and crisis services.
2. At the time of their release, individuals with psychiatric disabilities shall be provided a fourteen (14) day supply of the psychiatric medications they were taking prior to release.
3. Individuals with psychiatric disabilities shall be given access upon release to Medicaid-covered services as provided in Articles III, IV and VI.
C. Case Management Services
1. To aid their transition to community living, the [state mental health agency] shall provide to incarcerated individuals with psychiatric disabilities case management services well in advance of their release, to the extent practicable, and if possible, at least ninety (90) days before release.
2. The case manager shall work with the individual to identify services and supports that the individual desires and needs upon return to community living. As desired by the individual, the case manager will:
a. Help arrange for needed shelter, mental health services including substance abuse services and other supports to be provided to the individual upon release; and
b. Help the individual access federal benefit programs upon release, including, as needed, by updating benefit applications.
Article IX: State Medicaid Plan
If implementation of any regulation or policy anticipated by this Act requires an amendment to the state Medicaid plan, the [Medicaid agency] shall use its best efforts to obtain federal approval of the amendment.
Article X: Funding
A total of $_________ is appropriated for implementation of this Act, as follows:
1. $_____ to [Medicaid agency] for implementation of Articles III, IV and VI;
2. $_____ to [corrections agencies] for implementation of Articles III, IV, V, VII and VIII;
3. $_____ to [responsible state agency] for implementation of Article VI.C; and
4. $_____ to [state mental health agency] for implementation of Article VIII.
Article XI: Effective Dates
1. Articles III, IV and VII become effective _____ days after enactment. The [Medicaid agency] will adopt the policies and procedures required by Articles III and IV within _____ days after enactment. These deadlines shall be extended as needed pending federal approval of any necessary amendment to [state’s] Medicaid plan.
2. Correctional agencies] will use their best efforts to conclude negotiations with the Social Security Administration, pursuant to Article V, within _______ days after enactment.
3. The temporary health insurance and income support programs described in Article VI will be implemented within _________days after enactment.
4. Article VIII will be implemented within ____ days after enactment.

From The Oregonian, October 7, 2004

Child of the epidemic is part 5 of 5 UNNECESSARY EPIDEMIC: A Five-Part Series by The Oregonian – 2004 / 2005
SEE – All five stories here.

This series of articles, written largely by Steve Suo, illuminated and encouraged Oregon’s legal strategy toward addiction which uses institutional punishment approach versus a medical approach which might offer an individual’s recovery as a primary goal. As of Spring of 2011, Oregon’s strategy has had no affect on the number of arrests or convictions for drug possession or distribution, and has resulted in thousands of deaths, and billions of misspent tax dollars.

Her mother’s addiction to meth, which began before MaKayla Harris’ birth, ruptures her family and leaves a void at the heart of a Coos Bay girlhood

The day her mother vanished again, trading a promising run at sobriety for yet another hit of methamphetamine, 13-year-old MaKayla Harris joined friends at a parking-lot carnival.

She didn’t want to think about the magnitude of her mother’s fall this time, how close they’d come to reuniting as a family. Mostly, she wanted to forget that this was Mother’s Day.

MaKayla remembers scanning the rides. She picked the most frightening: The Zipper. She climbed into one of the steel cages and pulled the padded bar down across her lap. The ride spun like a giant propeller. Her cage whirled and rocked. Beneath her, the coastal community of her childhood blurred.

At first, MaKayla held on, white-knuckled, and screamed. She rode The Zipper more than 15 times that afternoon, coaxing friend after friend aboard with her. Soon, she let her hands hang free.

“At a certain point,” she said, “it’s not scary anymore.”

During MaKayla’s lifetime, methamphetamine permeated her hometown on Oregon’s southern coast despite concerted efforts by local law enforcement to stop it. Now, in towns and cities throughout the nation, more than 1.3 million people use meth.

MaKayla’s 15 years of life span the meth epidemic. Her mother became addicted at its beginning in the late 1980s, and her relapses throughout MaKayla’s childhood mimic the rise and fall of the meth trade in the West.

Tens of thousands of children are suffering the consequences. In the worst cases, they endure horrific abuse and die at the hands of their parents. Many more are neglected while their parents get high, too distracted to attend to them. And they shuttle between relatives and foster care, competing for their parents’ affection against a cheap and plentiful drug, each time hoping that a child’s love will prevail.

It rarely does.

MaKayla’s life was filled with broken promises. Over and over, her mother vowed to stay clean, only to retreat to the drug, then to flophouses or jail. MaKayla’s little brothers disappeared to foster care — and emerged in her troubling dreams.

MaKayla found shelter and comfort with her grandparents, Albert and Patricia Muse. Over the years, she persevered by combining a young girl’s strong will with a stubborn faith in her mother.

But as she grew older, that faith also threatened to hinder her. Spinning on the carnival ride in the spring of 2003, MaKayla struggled to let go of her hopes for her mother and brace for a future on her own.

A tenuous childhood

MaKayla Harris was born Aug. 30, 1989, with big hazel eyes and a squeak for a cry.

Her 27-year-old mother, Debbie Harris, looked down at her firstborn with relief. MaKayla was healthy.

Debbie had become pregnant with MaKayla after more than a year of injecting methamphetamine. She didn’t know at the time who the father was. When Debbie was arrested on drug charges five months into the pregnancy, an alarmed child welfare worker made a note in Debbie’s file: “We need to gain custody of that child due to her serious meth problem.”

But Debbie cleaned up in jail and was released early. She finished out her pregnancy at her parents’ aging blue ranch home in North Bend. Debbie was raised in that home. Smart and popular with curling-ironed blond bangs, she used to spend afternoons riding dirt bikes with her friends on the sand dunes nearby.

She married right out of high school, wanting to re-create the stable family life that her millworker father and homemaker mother had made for her and her siblings. But when she was 24, her husband suddenly left.

Debbie recalled seeking solace in local bars. Friends showed her how to tighten her shirt sleeve, jab a needle into a vein and plunge in a hit of meth. Debbie felt a rush of euphoria. Her insecurities slipped away. She felt like superwoman. She was hooked.

Addiction quickly overtook her, and now, Debbie hoped MaKayla’s birth would be a turning point. She qualified for welfare and moved with MaKayla from her parents’ home into a subsidized apartment.

Yet before long, Debbie left her infant daughter with sitters while she drank at Gussie’s Saloon. Early in 1991, Debbie met Morgan Vick there. She was 29. He was a blue-eyed 21-year-old with a mellow swagger. They used cocaine together. She returned to meth.

When MaKayla was 3, Debbie married Morgan while both were jailed — she for a parole violation, he for drug possession. MaKayla, who had stayed at her grandparents’ home, soon moved back with her mom. She remembers a second-story apartment off a main drag in North Bend. It became the scene of a recurring nightmare: MaKayla sees a small child standing in the parking lot below. She looks away from the child and hears an explosion. When she looks again, all that is left are the child’s slippers. They are made of ash.

MaKayla does not dwell on haunting images. She tells instead about walking to preschool with her mom, playing board games with her stepfather, or visiting the park with her mom and brother, born in 1994.

By the time she turned 7 in August 1996, MaKayla glimpsed her family’s darker side. She saw her stepfather violently shove her mother, pregnant with their second son. The baby was born with meth in his blood. MaKayla remembers moving in 1997 — for the third time in as many years — to a cramped apartment near Pony Slough. Debbie had promised authorities she would start over again — without Morgan. But Morgan returned.

That summer, MaKayla walked in on her parents. She remembers the smell, like cigarette smoke mixed with something spoiled. The odor sharpened near the open bathroom door. She saw her mother and stepfather inside arguing, caught up in the contents of a spoon. They brushed past to let her use the toilet. Her mother looked away.

MaKayla tried her best to cope. She remembers walking her toddler brother down the block for ice cream, holding the little boy’s hand, while her parents were strung out in the apartment.

“Half the time, we just ate snacks. There was lots of food. They just didn’t fix us meals,” MaKayla recalled. “That’s when I think it was really bad. They’d sleep for days, get up and go to the bathroom and sleep again.

“They were good parents, when they weren’t high.”

Disappointment, devastation

MaKayla did not stay long at the Pony Slough apartment. She says she was scared by her parents’ activities and the rats that scurried around the apartment grounds. She asked her grandparents to take her in again.

Eventually, Morgan beat Debbie bloody in an argument over a meth pipe. Debbie, pregnant again, sobbed as she packed her sons’ clothes for foster care. Morgan went to jail for assault; Debbie went to jail, too, for drug possession and child endangerment.

Debbie threw herself into drug treatment, parenting classes and domestic-violence counseling. Supervised by authorities, she got her children back in August 1998. A month later, her third son was born — healthy.

MaKayla, 9, started fourth grade while Debbie fulfilled her community service work at her oldest son’s Head Start program. In early April 1999, a staff person nominated Debbie to be Parent of the Year. “I am working very hard at trying to be the best mom I can possibly be,” Debbie wrote in her award application.

Just a few weeks later, as school was letting out, MaKayla was summoned to the office from her classroom. She figured her mother had come to fetch her. Instead, a stranger greeted her.

Get your stuff, MaKayla recalled the stranger saying. You’re going to foster care because your mother is in jail.

MaKayla returned, scared and bewildered, to her emptying classroom. Crying, she bundled up her books and told her teacher that she had to go. Friends in the hallway asked her what was wrong. She wouldn’t say.

“I didn’t want people to think badly of me because of my family,” she said.

Debbie served a brief sentence for letting Morgan visit in violation of her probation. When she got out, she started using meth again. MaKayla spent two weeks with her brothers at the foster home, building forts to distract herself. Her grandparents retrieved MaKayla but couldn’t handle all four children. Her brothers stayed behind.

MaKayla’s grandparents tried to raise her spirits. That summer, MaKayla’s grandfather got out his old record albums and taught her to do the twist.

“He’s what held me together,” MaKayla recalled.

Days later, on the first morning of fifth grade, she awoke to commotion. Her grandfather had died of a heart attack in the night. MaKayla remembers how still he was in his casket. But she had no final words for him. All she could do was cry.

His death galvanized Debbie. She weaned herself from drugs and was reunited again with her four children in April 2000. For a time, life seemed to stabilize. She resumed her relationship with Morgan, who worked as a logger. They grilled steaks outside while MaKayla and her brothers played in the yard.

In early March 2001, when MaKayla was 11, she noticed that her mother seemed distracted, unfocused. Sitting at their kitchen table, MaKayla asked if she was using drugs again. Debbie denied it.

But, in the pre-dawn hours of March 29, police found Debbie passed out in her van at The Mill Casino. She was nearly dead from a meth overdose.

MaKayla visited Debbie in jail. She remembers her message to her mother that day: You lied to me. And I could’ve helped you.

A prayer for renewal

MaKayla stood outside the North Bend Middle School cafeteria, surrounded by a half-dozen other girls, and plotted their lunchtime mission one December day in 2002.

Now an eighth-grader, MaKayla had learned to take charge. She occupied the center of a large social web at this timeworn middle school. She pulled her long, honey-brown hair up in a loose bun and decorated her sweatshirts and hip-huggers with safety pins. Other girls followed her lead, attracted to MaKayla’s individuality.

At 13, MaKayla thrived on their attention. She survived her mother’s overdose with roller-skating parties, sleepovers and church youth-group outings. She decorated her mother’s old bedroom at her grandma’s house with snapshots of classmates and posters of pop rockers.

But sometimes her sadness welled up. She cried watching “A Christmas Carol.” Tiny Tim reminded her of her little blond brothers, who were in foster care.

MaKayla missed them. She had not seen the boys since the spring, when Debbie got out of jail, and a judge terminated her parental rights. Debbie filed an appeal to get the boys back. She was attending treatment support groups and living with a friend from her church.

“With God as my witness, you’ll never see me in court again for drugs,” Debbie wrote to the judge. “My children are everything to me.”

MaKayla prayed that this time her mother would succeed.

On Dec. 10, MaKayla arrived to baby-sit at her mom’s church-sponsored treatment group. She noticed her stepfather, just out of prison, walk in with a friend from his drug-using days. MaKayla knew that if her stepfather relapsed, her mother might follow. She found her mother alone, crying, in the cold parking lot.

Debbie remembers the fear in her daughter’s hazel eyes.

Honey, she recalls telling her, I will not go back.

Oh, Mama, MaKayla pleaded, promise?

At an age when many kids rebuff their parents’ attention, MaKayla was renewing her crucial place in her mother’s life. Debbie told her she would come over with Morgan on Dec. 16.

At dinnertime, MaKayla set up folding tables, too heavy for her grandma to carry. Patricia, 61, sat in her recliner, weak after multiple heart attacks and a stroke.

MaKayla came over and sat in her grandpa’s old recliner. She dipped her chicken strips in ranch dressing. She guessed at the “Jeopardy” clues on television. The evening wore on with no sign of Debbie and Morgan.

Finally, MaKayla’s grandma said gently, “Looks like they’re not coming, Sis.”

MaKayla stared at the television. If she heard her grandma, she didn’t show it.

An addict’s guilt

The next evening, MaKayla backed out of her plans to baby-sit at her parents’ treatment support group. Debbie and Morgan, not realizing they had let her down the night before, were frustrated.

Morgan, blue eyes melancholy beneath his prison-shaved head, said he had been looking forward to seeing MaKayla. He said he just wanted another chance with the kids.

“Even though we were high, we never abused them physically. Mentally — I guess there was mental abuse,” he said. “It was really sad.”

Debbie sat beside Morgan at the support group in a chilly church basement, their arms touching. When it was Debbie’s turn to speak, she described the force that lures her back to meth.

“I have a lot of guilt,” Debbie said. “I sit and think about the kids and stuff, and it’s really hard. Until you’ve done what I’ve done, I guess you really can’t understand that type of guilt.”

Over the winter, Debbie saw MaKayla sporadically. She and Morgan were living with their pastor, Ivan Sharp. Sharp was trying to help them rebuild. But Morgan was drinking again. He and Debbie were fighting, and she feared a relapse. She was impressed by a couple who invited her and Morgan for dinner. The couple’s toddler ate off a glass plate without breaking it. The parents spoke respectfully to their kids.

Debbie recognized a simple truth about MaKayla: “All she ever wanted from me was to stop using drugs. I look at my daughter — what a blessing. Why couldn’t I appreciate that? Why couldn’t that have been enough?”

Debbie landed a greeter’s job at a discount grocery store. She quickly took over a check stand. “Deborah,” the store owner wrote on her first paycheck, “we are so pleased to have you with us.”

“I could have that,” Debbie said. “There was such a bond between me and my children even though I was an addict. But the emotional part wasn’t there.”

The state garnished Debbie’s wages by $146 a month to help support MaKayla. Debbie bought her daughter a Valentine’s Day gift — a box of chocolates and a stuffed skunk holding a rose.

“Not much,” Debbie said. “But she knows I love her.”

The end of childhood

MaKayla headed into Wal-Mart in search of poster board for a school assignment in late March 2003. She passed a large display of Easter baskets, just like the ones she and her mom had given her brothers on their last visit before the state permanently severed Debbie’s parental rights to them.

MaKayla said being in the store reminded her of a dream: She is shopping and encounters her brothers in one of the aisles. They don’t recognize her.

But MaKayla shrugged and said she thought her mother was ready to reunite their family. After all, she was winning awards at work for good customer service and balancing her till. She had left Morgan again and moved in with a friend. “She’s slowly getting better,” MaKayla said. “She just needs to get a house.”

On Easter, the anniversary of losing the boys, Debbie visited MaKayla. They sat together on the bed in Debbie’s old room. She gave MaKayla an Easter gift. She remembers asking MaKayla if this day was hard for her. MaKayla hesitated and then looked intently at her mom. She admitted that it was.

You don’t have to be so tough, Debbie told MaKayla. It’s OK to cry.

No, it’s not, MaKayla answered.

Debbie struggled to reassure MaKayla. Mama’s trying, she told MaKayla. I’m really trying to make things right.

Three weeks later, Debbie was gone.

Early on the Saturday morning before Mother’s Day, she showed up at the friend’s apartment where she had been staying. Her blond hair was disheveled. She was limping. The friend knew that Debbie had started hanging out with a meth dealer. That morning, she said she asked Debbie to move out.

The friend called to tell MaKayla’s grandma that Debbie had left. When Debbie didn’t visit on Mother’s Day, MaKayla knew in her heart that she had returned to using meth. MaKayla went with her friends to the parking-lot carnival and rode The Zipper, her dreams of reuniting with her mom and brothers spinning away.

MaKayla heard only secondhand reports about her mother in the following weeks. MaKayla’s child welfare caseworker learned that Debbie had relapsed. He told MaKayla and her grandma that MaKayla should not ever plan to live with Debbie again. MaKayla’s aunt and uncle agreed to take her in if anything happened to her grandma. With those plans in place, he told MaKayla, she had reached an age where the state would no longer closely monitor her case.

On her last day at North Bend Middle School in June, MaKayla spent the lunch hour licking ice cream bars with her friends in the warm stillness of a deserted hallway. For a while, it was as if she could remain suspended in childhood forever.

But after two more classes, the final bell sounded. Several students whooped, but MaKayla didn’t react. She followed the wave of kids out of the classroom. She milled around in the throng, moving toward the exit. She hugged friends as they passed. Tears welled in her eyes.

The school doors swung open. The afternoon light poured in. MaKayla walked out into the glare.

Drifting

MaKayla sat on the mottled brown carpet at a girlfriend’s apartment, music videos playing on the television, and listened to three of her friends talk about dieting, school and boys. She made a bracelet out of black electrical tape and jumped in when the conversation interested her.

More than a year had passed since she walked out the doors of her middle school. MaKayla was nearly 15 now. Her hair was shorter and softly layered, a more mature look. She had dyed it black underneath, still inventing her own styles.

MaKayla had spent the summer after eighth grade wondering where her mother was. The day after her 14th birthday, Aug. 30, 2003, MaKayla heard the front door open. In walked her mom. MaKayla ran to hug her. Debbie apologized.

Debbie later said she had turned back to meth to escape her creeping fear that she would lose the appeal for her sons. In fact, she did lose the appeal, but MaKayla’s only inkling was a letter that came to her grandma’s house from her mother’s attorney. It sat unopened all summer next to her grandma’s recliner.

MaKayla was relieved to see her mother, but said she also felt scared that Debbie “would just go out and never talk to me again.”

So that fall, MaKayla tried to concentrate instead on her freshman year. Her grandma took her to pick out a black off-the-shoulder dress for her first homecoming dance. She got C’s in science and English but otherwise pulled A’s and B’s. She wrote down goals in the workbook for her favorite class, the psychology of success: Go to college. Become a forensic scientist. Travel.

In her locker, she stuck an old photograph of her mom, vibrant in a Harley-Davidson jacket, the way she looks when she’s not using meth. In her workbook, MaKayla recorded a wish: “My brothers would live with me.”

She also wrote about a deepening sense of powerlessness, about times when her eyes water, her body shakes, and “I can’t think straight . . . everything runs through my mind.”

Midway through the school year, MaKayla’s focus blurred.

She spent evenings e-mailing friends rather than doing homework. Her mother began showing up more often after another jail term in February. Together, they sorted through MaKayla’s brothers’ baby clothes and held a garage sale. Meanwhile, MaKayla’s relationship with her grandma frayed for a time as MaKayla pushed the rules, and her grandma wearied of pushing back.

In April, North Bend police caught MaKayla and several friends smoking pot in the woods near MaKayla’s home. MaKayla appeared before Judge Richard Barron, the same Coos County judge who had terminated her mother’s rights to the boys after one too many promises of reform. He lectured MaKayla and suspended her driving privileges.

MaKayla later said she smoked the marijuana because, “I thought everything was bad. Bad life. Bad everything.” After doing it, she felt remorse. She said she would “definitely not” try pot again and has no intention of ever trying meth.

But her second term at school had already suffered. She failed English and science. She tried to make up the classes over the summer but didn’t finish them. Instead, she hung out with her friends or stayed with her mom on a logging site where Debbie and Morgan lived in a trailer, and Debbie was paid to mind the equipment.

MaKayla considered moving in with her mother. She also thought about living with her 15-year-old friend, Monica Taylor, who has a subsidized apartment with her 9-month-old baby.

Sitting in Monica’s living room in August, MaKayla and her girlfriends were talking about their upcoming sophomore year when the subject shifted.

“Are you going out with Kris?” asked Victoria Hunter, 15, referring to MaKayla’s first significant boyfriend. “That’s so cute.”

Monica, cuddling her baby on her lap, interjected, pinpointing the moment that Kris first kissed MaKayla. “They started going out exactly at 3 o’clock at my house.”

MaKayla reclined on the arm of the couch, the red Converse tennis shoes she’d decorated with marker kicked out in front of her.

She didn’t say anything. She just pulled the tie from her hooded sweatshirt through her teeth and smiled.

From The Oregonian, October 6, 2004

Shelved Solutions is part 4 of 5 UNNECESSARY EPIDEMIC: A Five-Part Series by The Oregonian – 2004 / 2005
SEE – All five stories here.

This series of articles, written largely by Steve Suo, illuminated and encouraged Oregon’s legal strategy toward addiction which uses institutional punishment approach versus a medical approach which might offer an individual’s recovery as a primary goal. As of Spring of 2011, Oregon’s strategy has had no affect on the number of arrests or convictions for drug possession or distribution, and has resulted in thousands of deaths, and billions of misspent tax dollars.

Promising fixes to the meth scourge, including a cold pill impervious to abuse, go unpursued as . . .
Shelved solutions

Eight years ago at a laboratory in Texas, Warner-Lambert Co. began testing a possible cure for the methamphetamine epidemic: a new and improved cold medicine that could not be turned into the illicit stimulant.

The company was worried that federal regulators would soon ban or restrict sales of pseudoephedrine, the main ingredient used to make meth and Warner-Lambert products such as Sudafed, Actifed and Benadryl.

Warner-Lambert’s meth-proof alternative showed promise in animal testing, conducted at a university lab in Fort Worth. The company quickly applied for a patent. But that is where the product’s development ended.

Former company officials said they saw little chance of making a profit on the product. Federal approval of a new drug, which includes lengthy human trials, costs as much as $800 million, according to industry estimates. Warner-Lambert’s top-selling cold remedy, Sudafed, was grossing less than $100 million a year.

“It would be a long road and an expensive road,” said Robert G. Flynn, a former research vice president at the company.

A cold pill that could not be used to make meth would offer huge public benefits if it replaced existing products. Past constrictions in the flow of meth ingredients have radically altered the trade, disrupting the supply of meth for as long as a year, The Oregonian’s analysis of federal data shows.

Federal authorities never offered the pharmaceutical industry financial or other incentives to develop such a pill.

By the time Warner-Lambert had its patent, the threat of a ban on pseudoephedrine had receded. In 2000, Pfizer Inc. took over Warner-Lambert and did not pursue the new cold medicine.

Jay Kosminsky, a Pfizer spokesman, said Warner-Lambert’s formula was not enough of an improvement over existing products to merit further research.

Instead, Pfizer tried mixing Sudafed with chemicals that would make it harder for meth traffickers to extract pseudoephedrine. The company chose ingredients already approved for human use, which made it possible to avoid the lengthy testing required for new drugs.

After seven years of research, the company abandoned that project as unworkable this past summer, Kosminsky said.

Warner-Lambert’s new decongestant is a close chemical sibling of pseudoephedrine, the bulk of which is manufactured in nine overseas factories. Executives at two of the largest pseudoephedrine makers — India’s Emmellen Biotech and Malladi Drugs — say they could supply the new chemical if the vast U.S. market demanded it.

“I can supply large quantities, in tons,” said V.N. Gopalakrishnan, technical director at Malladi.

Fear of a ban

Pharmaceutical companies have known that cough and cold remedies could be misused ever since the federal government first threatened tighter regulations to deal with the meth problem.

“All manufacturers of these types of products are aware that these decongestant ingredients are related, on a technical, chemical basis, to more powerful abuse drugs,” Robert N. Anderson, an attorney for Nyquil maker Richardson-Vicks, wrote to Congress in September 1987.

But Anderson said Vicks’ research indicated that it would be impractical for meth cooks to extract ingredients from over-the-counter cold medicine because it “unnecessarily complicates the chemical process, and raises the cost dramatically.”

In fact, meth cooks did find it economical to extract the ingredients. The U.S. Drug Enforcement Administration responded in the 1990s with more attempts to control meth ingredients.

James D. Cope, former president of the Consumer HealthCare Products Association, said he warned the trade group’s members that the DEA would make pseudoephedrine a controlled substance unless they prevented their products from being misused.

“If you can put some chemical in to make it impossible or almost impossible, that’s a way of avoiding the federal sanctions,” Cope recalled telling the group, formerly known as the Proprietary Association. “Warner-Lambert was the leader in this.”

Warner-Lambert entered a joint venture with Burroughs Wellcome in the mid-1990s to market Burroughs Wellcome’s Sudafed and Actifed.

In a 1995 letter to DEA officials, David Long, Warner-Lambert’s vice president for regulatory affairs, said it was unlikely the company’s products would be used in meth labs. At the same time, Warner-Lambert’s scientists were studying how easily meth cooks could extract pseudoephedrine — and how to counteract that.

Some Warner-Lambert cold medicines combined pseudoephedrine and painkillers with inactive ingredients. In a November 1995 memo to Long, one company scientist explained that it was “rather straightforward” chemistry to dissolve the tablets and obtain pure pseudoephedrine.

Former Warner-Lambert executives say the company, which took over the two Burroughs Wellcome product lines in 1996, wanted to come up with a meth-proof cold medicine in case of a ban.

“The impetus of the research was related to finding decongestants that could not be manipulated,” said Flynn, the former research vice president.

“We obviously were well aware of what was going on relative to the methamphetamine issue,” said Lester Isbrandt, a former Warner-Lambert research vice president. “We immediately became concerned about it because of its impact on the sale of Sudafed.”

Warner-Lambert “had a huge pseudoephedrine franchise,” said a source familiar with the research program. “This was an insurance policy.”

The mirror image

The idea for the new decongestant came from the study of molecules.

Ephedrine, pseudoephedrine and methamphetamine are close molecular cousins; meth, in fact, is ephedrine minus a single oxygen atom.

As a result, their effects on the body are similar. All three shrink blood vessels in the nose and dilate airways in lungs, while unleashing adrenaline that stimulates the heart.

With meth, the latter effect is most pronounced. Removing the oxygen atom, it turns out, makes the molecule fit receptor cells in the human brain “like a key in the lock,” said Paul Doering, a professor of pharmacy at the University of Florida.

Each of the three related molecules also has a twin: a mirror image of the same atoms. Flipping the atomic pattern can have a huge effect on how a drug works. Mirror images can sometimes be even more effective than the original drug, producing the desired outcome with fewer side effects.

Drug companies also introduce mirror images to extend the life of an existing drug with a patent that’s close to expiring. For example, AstraZeneca created Nexium, the purple pill that fights indigestion, using a molecular mirror image of its product Prilosec, also marketed in purple.

At Warner-Lambert, a team led by researcher Anthony R. Booth was exploring ways to apply the mirror-image concept to improving the performance of ephedrine, pseudoephedrine and other drug ingredients that affect the central nervous system.

Booth’s team came up with a unique insight: Mirror-image pseudoephedrine could only be used to make mirror-image methamphetamine, a benign incarnation of the street drug with few stimulant effects. No amount of processing or lab magic could change that.

And, the new drug appeared to be a better cold medicine.

Warner-Lambert hired a team of researchers at the University of North Texas to test the drug in dogs and rats. The team found the drug remained an effective decongestant but had significantly fewer side effects, such as elevated blood pressure.

The research was complete by December 1997, said Michael Forster, one of the Texas researchers.

“It was essentially devoid of nervous system effects, as far as we could tell,” Forster told The Oregonian. “And yet it retained the nasal decongestant effects very well.”

Steep price

Back at Warner-Lambert headquarters in Morris Plains, N.J., executives discussed what to do next. They filed an initial patent application in July 1998, records show. But they were not sure whether to pursue additional research.

Sudafed was a hugely popular and safe product. Changing the formula would be costly, former executives said.

The U.S. Food and Drug Administration requires three phases of testing on thousands of human subjects. The FDA can impose even more extensive tests for over-the-counter products because consumers use them without a doctor’s guidance.

To make the new pseudoephedrine commercially viable, Warner-Lambert executives considered pitching it to the FDA as part of an anti-meth program. If the FDA required companies to sell only mirror-image pseudoephedrine, Warner-Lambert could reap substantial benefits.

“If you had the patent on the only drug that was effective for sinuses, I think it could be lucrative, especially if you had the patent, and everybody else had to come to you,” said Isbrandt, the former Warner-Lambert vice president. “That is kind of a pharmaceutical drug researcher’s dream.”

But the company never made that pitch with Booth’s idea.

Going to Plan B

While Booth’s mirror-image molecule was being tested in Texas, a second team, headed by Warner-Lambert scientist William Bess, went down another avenue.

Bess’ team mixed Sudafed with harmless ingredients such as guar gum, a common ice-cream thickener, that would create a sticky mess when meth cooks tried to extract the pseudoephedrine.

On this project, the company worked closely with the DEA.

“We had meetings in Washington,” said Isbrandt, “and we would be sending samples back and forth.”

Researchers tested the formula using a popular meth recipe found on the Internet. Ordinary Sudafed yielded 89 percent pure pseudoephedrine, but with the additives, no usable pseudoephedrine could be extracted.

Another bonus was that the additives were already FDA-approved chemicals, executives said. Unlike Booth’s decongestant, which would be considered a new drug, a cold medicine made with additives would not require costly clinical trials. The company could move the product quickly to market.

Keeping the costs low was important because executives had no guarantees from the government that they would be rewarded for their investment.

“We never had any strong indication coming back from the DEA or other sources saying if we had solved the problem, we would have owned the market,” Isbrandt said.

Warner-Lambert applied for a patent on the additives in April 1997. That November, a Warner-Lambert spokeswoman told a British magazine that the company was “now at the final stages of research into a global solution” to the pseudoephedrine problem.

But there was an obstacle. The harder researchers made it for meth cooks to extract pseudoephedrine from Sudafed, the harder it was for digestive fluids to break down the pills and absorb the decongestant.

“We were trying to do a balancing act, to make it difficult for a chemistry lab to get at it, but at the same time make it easy for the body to get at it,” Isbrandt said. “We kept trying to get at that sweet spot.”

At the same time, the original pressure on Warner-Lambert — the possibility that regulators might ban pseudoephedrine — was fading. Industry lobbyists persuaded Congress to exempt from regulation cold products in foil blister packages, which were considered harder for meth cooks to open in volume.

The DEA, which had been a major force behind previous pseudoephedrine rules, stopped pushing for additional powers.

Research ceases

The company received patents on both ideas: the additives in October 2000 and Booth’s mirror-image pseudoephedrine in December 2002.

Kosminsky, the Pfizer spokesman, said the Booth project ended before the company took over Warner-Lambert in 2000. He said Pfizer gave up on the additives that Bess’ team had studied after spending $12 million.

Pfizer plans to introduce a cold medicine in January made with the decongestant phenylephrine, which cannot be converted to meth. Kosminsky said the product will offer consumers an alternative in states that restrict retail sales of pseudoephedrine products.

The company will continue selling Sudafed nationwide.

Today, the National Institute of Drug Abuse spends $1 billion a year, much of it on developing drugs that will fight addiction to substances such as meth.

Yet in the past 15 years, Congress has never seriously debated financing research into a cold remedy that cannot be turned into meth. Pfizer’s patent on the mirror-image pill is a public record. Yet lawmakers have never discussed making it easier for Pfizer to get federal approval for its new drug.

Kosminsky said Pfizer would be open to such a proposal.

For now, experts say, drug companies have little incentive to pursue pseudoephedrine alternatives.

“If tomorrow there was no such thing as Sudafed,” Doering said, “people would probably be working 24/7 looking for something that could fill that need.”

From The Oregonian, October 5, 2004

Token deterrent is part 3 of 5 UNNECESSARY EPIDEMIC: A Five-Part Series by The Oregonian – 2004 / 2005
SEE – All five stories here.

This series of articles, written largely by Steve Suo, illuminated and encouraged Oregon’s legal strategy toward addiction which uses institutional punishment approach versus a medical approach which might offer an individual’s recovery as a primary goal. As of Spring of 2011, Oregon’s strategy has had no affect on the number of arrests or convictions for drug possession or distribution, and has resulted in thousands of deaths, and billions of misspent tax dollars.

By rubber-stamping rather than stamping out dubious chemical distributors, issuing flurries of warning letters without penalties, DEA mounts a mere . . . Token deterrent.

Thomas Narog stood outside his rented storage unit in Fort Lauderdale, Fla., one day in July 1999 while a federal inspector checked the lock.

The 66-year-old semi-retired mortgage broker wanted to go into a new business, but he needed the U.S. Drug Enforcement Administration’s approval. He wanted to sell pseudoephedrine pills from the storage unit.

While Narog had no background in pharmaceuticals, he also had no criminal record, and neither did the man he claimed as his sole customer. The inspector handed Narog some brochures that warned pseudoephedrine can be used to make methamphetamine, then told him to report any suspicious orders to the DEA.

Two weeks later, Narog had his permit, and Seaside Pharmaceutical Co. was in business.

It proceeded to supply millions of pseudoephedrine pills to meth labs, federal law enforcement officials say.

The Narog case, outlined in DEA and court records, illustrates a central reason why the nation failed to keep vital chemicals from meth traffickers in the 1990s.

The DEA did not make full use of the powers it had won from Congress to shut down illicit sales of the key meth ingredients. Instead, it created an honor system that took distributors such as Narog at their word.

Some lied.

Narog was charged with supplying the meth trade, and his trial exposed gaps in DEA procedures.

The DEA inspector who reviewed Narog’s application testified that he never contacted Narog’s purported customer, an investor in a Florida grocery chain.

That customer, in turn, told the court that Narog had spoken to him about selling cigarettes, not pseudoephedrine.

DEA agents began watching Narog eight months after granting his license, when his TruChoice tablets started showing up in huge quantities at California meth “superlabs.” By then, DEA officials say, Narog had bought 17 million pseudoephedrine pills — enough to treat 600,000 colds for a week or make a day’s supply of meth for 3 million people.

Prosecutors said Narog’s business was part of a cross-country network of warehouses and intermediaries that routed the pseudoephedrine into California via Oregon. Narog was convicted in 2002 of supplying the meth trade, but an appeals court this year ordered a new trial because of improper jury instructions.

Narog applied for DEA registration under a federal law designed to prevent meth traffickers from obtaining the chemicals they needed. Companies that wanted to sell pseudoephedrine were typically asked to name their proposed customers and suppliers.

But the drug agency’s inspectors did not always require answers. And they did not consistently verify what they were told.

To keep a DEA permit, a dealer was supposed to record all purchases and sales, and report any suspicious customers.

But the drug agency rarely did random audits to see whether companies were complying, a review of DEA and court records shows.

The law, which took effect in 1997, empowered the agency to revoke a company’s license if allowing sales to continue was “inconsistent with the public interest.”

However, DEA records obtained by The Oregonian through the Freedom of Information Act show that 35 of 129 companies whose products were found in meth labs received three or more warning letters without losing their licenses. One registered pseudoephedrine seller on the East Coast remained in business after 47 warning letters — most recently in May 2003, the records show.

More than 200 DEA permit-holders did business from houses, mobile homes or apartments, The Oregonian’s investigation found. The newspaper found at least 11 companies listed addresses that are public storage facilities.

DEA and court records show that the agency gave pseudoephedrine permits to at least two companies convicted of federal crimes. One was convicted of interstate transport of stolen goods, the other of sales of counterfeit pharmaceuticals.

The DEA allowed some pill manufacturers to keep licenses despite repeatedly selling large quantities of cold tablets to people who were later convicted of meth trafficking.

Several current and former DEA officials said the drug agency has historically placed a greater emphasis on cocaine and heroin. Some veteran agents, they said, disparagingly referred to meth and other synthetic drugs as “kiddie dope.”

In a statement, the DEA called that characterization a “gross misrepresentation” of how its agents view methamphetamine.

The drug agency said it moved in 2000 to tighten scrutiny over companies that sell pseudoephedrine. The DEA said it now requires inspectors to verify customers, check criminal backgrounds and visit the business addresses listed by applicants.

The DEA said it has always accorded a “high priority” to the battle against meth traffickers and the criminals who supply their ingredients. Officials declined The Oregonian’s repeated requests to interview DEA Administrator Karen Tandy. However, Terry Woodworth, the agency’s deputy director of diversion control, acknowledged last year that the DEA had approved companies it should not have.

“It calls into question the effectiveness of the law, the effectiveness of the regulatory controls, the effectiveness of the regulatory implementation, as well as the effectiveness of the law enforcement,” said Woodworth, who has since retired.

“Certainly, we’ve learned some lessons,” he said. “We’ve made some mistakes.”

Big-money “medicine”

Congress began cracking down on the chemicals used to make methamphetamine in 1988. Each time new controls were imposed, the traffickers shifted to other chemicals that were unregulated.

By 1995, a combination of U.S. regulations and foreign export controls had shut down the supply of ephedrine, the main ingredient of meth at the time. So Mexican drug cartels, which had pioneered the superlabs in California that churned out 80 percent of the nation’s meth, began buying huge quantities of ephedrine’s chemical sibling, pseudoephedrine.

While Congress and the DEA slowly worked out a system to regulate pseudoephedrine from 1995 to 1997, imports to the United States surged by 27 percent, according to federal trade statistics. At the same time, sales of cold medication grew 4 percent. DEA officials think meth traffickers were stockpiling the chemical in anticipation of federal control.

The pills often were made by little-known purveyors of generic vitamins, herbal remedies and over-the-counter medicines on the East Coast. They sold their products to middlemen who supplied knickknacks and candy to gas station mini-marts.

Middle Eastern immigrants in the wholesale trade called their product dawa in Arabic. To their Mexican customers in California, it was la medicina. In any language, “the medicine” meant big money.

The volumes were staggering. Mainstream makers of cold pills sold their product in foil “blister packs” of 30 pills each. Pill companies catering to Mexican cartels packed their pseudoephedrine into bottles that held 120 pills, and the bottles were crammed into crates that held as many as 17,000 pills each.

Court records show that in 1997, at least five little-known companies suspected of supplying the meth trade rivaled the sales of the leading name-brand cold medicine, Sudafed.

But in December 1997, the DEA finally had the authority to control the last remaining aspect of the trade in meth chemicals.

The agency first had gained the authority to turn away imports of ephedrine powder, then the power to approve or reject companies seeking to sell ephedrine tablets. Now, it would decide who could sell pseudoephedrine products.

The meth trade, squeezed by each tightening of the chemical supply, was destined for a crushing blow. But only if the DEA took full advantage of its new powers.

Flawed enforcement

At first, the new system seemed to be working as a deterrent.

Mark Reichel, a federal public defender whose clients include drug suspects in Fresno, Calif., said meth cooks ran short of pseudoephedrine.

“There was a big freakout,” Reichel said. “They were just doing anything to get their hands on pills.”

On the street, federal data show, the purity of methamphetamine began to fall, as did several indicators of meth abuse such as rehab and emergency room admissions.

In California, DEA officials put pressure on businesses that sold pseudoephedrine products, including those produced by Hammer Corp., a major Georgia manufacturer. Hammer’s pills had been repeatedly found in California meth labs, according to a federal search warrant affidavit.

California agents pursued multiple criminal cases against some of the distributors. Three other purveyors of Hammer products withdrew their applications for DEA registration after the agency raised questions. By 1998, Hammer’s sales were down 75 percent from the year before.

But while the California DEA was turning up the heat, the DEA office in Atlanta, where Hammer was located, granted the company’s application to sell pseudoephedrine in April 1998.

“It kind of looks like the right hand doesn’t know what the left hand’s doing, doesn’t it?” said Samantha Spangler, a federal prosecutor in Sacramento who worked on the Hammer case. “I think there may have been that culture of lack of communication in law enforcement between the left coast and the right coast.”

Hammer’s products continued to show up in the hands of criminals after it was licensed, according to court records. The company eventually pleaded guilty to supplying the meth trade — its products tied to 71 meth labs, dumpsites, drug suspects and undercover purchases from 1996 through 1999.

Hammer officials did not respond to written questions from The Oregonian.

Beyond inconsistency, DEA’s approval process had deeper flaws.

In Newton, N.J., pill-maker Robert Occhifinto applied for a DEA permit in 1997 while serving an 18-month federal prison sentence for laundering $350,000 from ephedrine sales to a California meth maker.

Occhifinto’s application was filed on behalf of his company, NVE Pharmaceuticals, which continued operating in his absence. According to the DEA decision published in the Federal Register, the NVE application portrayed Occhifinto’s conviction as a failure to file proper paperwork. It also omitted another conviction for smuggling more than a kilogram of hashish from Jamaica, the DEA notice said.

DEA officials took two years to reject Occhifinto’s application. But the DEA allowed pending applicants to keep doing business during the review. In that time, Occhifinto’s company made 36 sales totaling 3.5 million pseudoephedrine tablets to a customer not registered with the DEA, the agency said.

Occhifinto told a DEA appeals officer that he took steps to ensure his customers were legitimate; in fact, he told the DEA about the sales of 3.5 million pills to the unregistered customer. But the DEA cited the sale as one of the grounds for rejecting NVE’s application, effective December 1999.

Mountain Express

The DEA had the power to review records of companies registered to sell pseudoephedrine and ephedrine, but the biggest prosecutions of illegal chemical sales seldom arose from routine audits.

When the DEA shut down suppliers, it frequently came after a massive volume of their products had made their way to meth labs.

The most wide-ranging investigation after the pseudoephedrine law was enacted, for example, was initiated not by the DEA but by an alert security officer at a Federal Express office in Los Angeles.

In September 1999, the officer opened a suspicious box and found thousands of pseudoephedrine pills. When the recipient arrived, the FedEx employee tailed him to his destination and called the DEA, according to an investigator’s affidavit filed in federal court.

The package was sent by Hassan Zaghmot, an Aurora, Colo., resident whose application to sell pseudoephedrine was approved by the DEA in July 1998.

After receiving his license, Zaghmot fabricated an elaborate paper trail showing shipments to legitimate customers, according to government testimony. However, it proved unnecessary because the DEA didn’t check his records until after the FedEx tip.

The ensuing investigation of Zaghmot, dubbed Operation Mountain Express, revealed a national web of deception. DEA officials said businesses across the country had obtained DEA pseudoephedrine permits to form a 10-man syndicate called “the Commission” with Zaghmot. Its purpose, according to the DEA, was to set black-market prices and coordinate shipments.

By the time the agents shut down the ring in 2000, officials said, the Commission and its customers had moved an estimated 3 metric tons of pills to meth labs — enough for 36 million doses of meth at street purity.

Mitchel Krause, attorney for a Florida man convicted of illegally selling Zaghmot’s and Narog’s pseudoephedrine, said the DEA did little more than rubber-stamp the licenses of such wholesalers. He said the wholesalers appreciated that DEA officials were not watching closely.

“I don’t know if they looked the other way,” Krause said of DEA officials, “or whether they were just negligent in what they did.

“Maybe they didn’t think the defendants would figure it out.”

Cultural divide

The DEA has always been divided on the importance of controlling synthetic drugs and their ingredients.

The job of chemical control fell to civilian employees called diversion investigators. They had no authority to serve warrants, pay informants or claim overtime. Agency veterans say the door-kicking, Mafia-infiltrating special agents of DEA legend held meth in low esteem; they thought even less of unarmed bureaucrats. The funding flowed accordingly.

John Buckley, a retired diversion investigator, recalled watching an old-timer at DEA headquarters weighing the promotion of an agent who had made a career busting amphetamine dealers. “If it ain’t heroin,” Buckley recalled the reviewer saying, “he ain’t getting the grade.”

Gene Haislip, head of the DEA’s Office of Diversion Control from 1980 to 1997, said he once phoned Florida agents about a 1-ton load of ephedrine powder headed to California by truck.

“You’re sending us out to check on some (expletive) powder, when we’re up to our ears in cocaine?” Haislip recalled the Florida agents saying. “We don’t have time to do that.” The load was found only because a New Mexico state trooper happened to stop the truck on a traffic violation.

“They were working heroin, cocaine traffickers, the mob, organized crime, big cases,” said Portland agent Debora Podkowa, describing her early contacts with other DEA offices concerning East Coast chemical suppliers. “They looked at what we did in the West as ‘kiddie dope.’ ”

So deeply were these attitudes ingrained, when lawmakers offered money for 100 new chemical investigators and agents in 1989, the Justice Department declined, according to congressional records. Haislip’s office warned in 1992 that short staffing would allow for only “minimum fulfillment” of the DEA’s responsibility to control the chemical trade.

The agency now spends about $20 million a year — about 1 percent of its $1.7 billion budget — to monitor all manufacturers, importers and suppliers of drug precursor chemicals. It deploys 100 people to track 3,000 companies. By comparison, the agency fields more than 4,500 special agents to catch drug dealers.

Internal and external management critiques repeatedly flagged the agency’s ambivalence toward chemical control and the role of diversion investigators over three decades. By the late 1990s, the agency was fighting lawsuits from 250 current and former diversion investigators.

The investigators alleged their bosses routinely called on them to do the same criminal work as special agents, without the benefits or pay.

“The special agents always get the cars and best equipment,” said John Coleman, a retired DEA chief of operations and former head of the agency’s Boston and Newark, N.J., field divisions. Diversion investigators “are the 9-to-5 crew. They get what’s left over.”

“Swimming with sharks”

While diversion investigators fought internal battles over their proper place within the DEA, the agency faced pressure from the outside to rein them in.

A trade group alleged harassment when a member was subpoenaed for refusing to answer parts of a 34-question DEA application. A mail-order business said the DEA was intruding on its customers’ privacy by demanding their names and addresses. The U.S. Small Business Administration warned the DEA that the registration process “could have a tremendous impact” on an important segment of the economy.

Congress proposed in July 1998 to reduce the penalty for failing to report or keep proper records to $500 from $25,000. The Clinton administration assured lawmakers there was no need: The DEA did not plan to punish chemical registrants.

Mary Lee Warren, deputy assistant attorney general, testified that most chemical diversion investigations resulted in “at most, a letter of admonition.”

DEA officials were aware of the concerns. From the beginning, they had pushed back the deadline for registering and allowed companies to sell pseudoephedrine while the DEA reviewed their applications. Later, they lowered the registration fee to $116 from a proposed $595. Headquarters officials asked field offices to report monthly how many companies were processed.

In the field, investigators recognized that rejecting a company could create huge delays. Applicants could contest rejections before one of the agency’s three administrative law judges, who also heard appeals filed by the nation’s 1 million registered doctors and retail pharmacies. Hearings took six months to schedule, and a final decision could take two years.

Diversion investigators experienced in regulating prescription drug sales found themselves confronting an entirely different clientele.

“Now, all of a sudden, we’ve got some guy operating out of his garage,” recalled Detroit investigator Jim Geldhof. “He says, ‘I’m handling pseudoephedrine, and I’m going to sell to these gas stations.’

“In a way,” Geldhof said, “we were kind of swimming with the sharks with these guys.”

Meanwhile, staffing was limited. Agency officials ultimately decided to devote only six hours to investigate each applicant, after initially estimating 14 hours was needed. For follow-up audits, the agency could spare the equivalent of six people to check up on the nation’s 3,000 DEA-registered distributors.

“With the volume we were receiving, just a flood of applications in ’97, the perceived pressure was on to get them over, get them done,” said Marsha R. Jones, a DEA diversion program manager working in Detroit at the time.

Learning experiences

Operation Mountain Express, the investigation that began with a tip from FedEx, ended in July 2000 with the arrest of 140 people accused of supplying pseudoephedrine to Mexican drug cartels operating in California. Days later, Attorney General Janet Reno held a news conference to tout it as a DEA success story.

“This operation should send a message,” Reno said. “. . . Whether you are a dealer, a manufacturer, or one who makes it all possible by providing the chemical ingredients, you will be held accountable.”

Tandy, then a top narcotics attorney under Reno, was livid. She noted that the DEA itself had licensed many of the people charged with supplying pseudoephedrine to meth traffickers. According to people familiar with the case, Tandy posed a steely question to DEA officials afterward.

How, Tandy asked, could you let this happen?

Today, Tandy runs the DEA. President Bush chose her in 2003 to be the first woman to lead the agency, part of the Justice Department.

DEA officials, federal prosecutors and state regulators say Mountain Express made the agency more skeptical of people seeking to sell pseudoephedrine.

Frank Sapienza, a retired DEA chemicals official, said the agency’s approach toward applicants used to be “looking at the glass as half full, instead of half empty.”

Now companies must show a good reason for selling the product, said Geldhof, the Detroit investigator.

“We really are looking now to say, ‘Unless there’s a really good basis for it, we’re going to deny this thing,’ ” he said.

The agency said it is doing a better job tracking the sales of the nation’s 3,000 registered pseudoephedrine distributors. From 2001 to 2003, the DEA conducted what it called “periodic investigations” of more than 1,300 of those companies.

On average, that meant each company stood a one-in-seven chance of being visited by an inspector each year.

The DEA said it has moved to revoke or deny licenses to 143 companies.

After the Mountain Express case, pseudoephedrine brokers in the United States began looking for a new, unregulated source of pills.

Canada required no license to sell pseudoephedrine. U.S. brokers began hauling pseudoephedrine by the truckload from Quebec to Detroit to Los Angeles. From 1997 to 2001, Canada’s legal imports of pseudoephedrine quadrupled to about 140 metric tons.

Under U.S. pressure, Canada responded in 2003 with a DEA-style licensing system for pseudoephedrine dealers.

The haven provided by Canada demonstrated that control over the chemicals needed for meth required more than U.S. regulation. It would also take help from the handful of nations where pseudoephedrine is made.

From The Oregonian, October 5, 2004

Letter of the law becomes law enforcement by letter is part of UNNECESSARY EPIDEMIC: A Five-Part Series by The Oregonian – 2004 / 2005
SEE – All five major stories here.

A DEA program to document dealers of meth chemicals has holes large enough to drive truckloads through

The veteran investigators at the U.S. Drug Enforcement Administration found themselves on unfamiliar ground in December 1997, when federal law made them responsible for determining who should be entrusted to distribute pseudoephedrine products.

More than 3,000 companies, many of them self-employed wholesalers who distributed snacks and novelties to mini-marts, lined up seeking DEA licenses. Any company that beat the deadline was allowed to remain in business until the DEA finished reviewing its application, which had to be renewed each year.

Approving the applications was the job of DEA specialists previously assigned to investigating the nation’s 1 million doctors, pharmacies and pharmaceutical factories.

With manufacturers, meanwhile, DEA officials needed to develop benchmark sales figures for the industry that might indicate suspicious volumes. There were dozens of generic pill makers to examine in addition to the big-name brands.

The law said inspectors could deny or revoke any type of license if company officials lacked safeguards against illicit sales, broke “applicable” laws, were convicted of a drug felony or didn’t have proper experience. The agency also could weigh any other factor it considered “relevant and consistent with public health and safety.”

Yet in practice, current and former DEA officials say they were unsure whether such judgment calls would stand up in court if companies challenged them. The preferred alternative was a warning letter.

The following list describes DEA-approved companies whose ephedrine and pseudoephedrine products were discovered in meth labs. Except for Neil Laboratories, none of the companies or their principals were accused of breaking drug laws.

NEIL LABORATORIES INC.
Location: East Windsor, N.J.
Role: Manufacturer

What happened: 3.5 million tablets diverted to the black market; 50 law enforcement actions linked to Neil products in 11 states; four attempts to export millions of tablets to a Tijuana company that submitted bogus import documents.

What the DEA did: In 1998, responding to Neil’s repeated attempts to ship to the Mexican customer, the agency rejected Neil’s export requests. Yet officials allowed Neil to continue making pseudoephedrine pills for the domestic market — more than 100 million tablets a year, the DEA now estimates.

The DEA shut down 13 distributors that carried Neil tablets after millions were used in the meth trade. But the manufacturer itself received only warning letters.

In August 2000, officials audited the company’s books; later they launched a criminal investigation, sending an informant in May 2001 to tape-record a conversation with the company’s part-owner, Mantu Patel.

The outcome: Patel said he had no problem with the informant selling Neil’s products to meth makers, according to a federal affidavit. Patel proposed a phony paper trail that would keep the sales under the table, then made two shipments of pseudoephedrine powder to the informant’s California business, the affidavit said.

Patel was charged with supplying pseudoephedrine to the meth trade. The felony charge was dropped, and he pleaded guilty this year to a misdemeanor charge involving record-keeping.

In February 2003, the DEA announced that Neil had agreed to stop selling over-the-counter pseudoephedrine products. But the company’s Web site advertised ephedrine and pseudoephedrine until September 2003, when The Oregonian asked the DEA’s Newark, N.J., office about the ads. They were pulled a few days later.

Company officials did not respond to written questions from The Oregonian.

PDK LABS INC.
Location: Hauppauge, N.Y.
Role: Manufacturer

What happened: Tablets found at 140 meth labs and their dumpsites from 1997 through 2001; four unauthorized shipments of ephedrine from PDK to Canada in 1994 and 1995; thousands of tablets shipped from PDK to mail-order customers, two of them later convicted on meth charges.

What the DEA did: The agency sent the company at least 22 warning letters in four years. In 2000, the DEA halted two 3-ton shipments of ephedrine powder from India on their way to PDK, saying they might be diverted.

The outcome: PDK fought the DEA decision to block the two shipments, arguing that the diversion of its products to meth labs occurred at the retail level, beyond the company’s control. For the DEA to block a foreign shipment because it “may” be diverted further down the distribution chain, the company said, is beyond the agency’s authority.

An administrative law judge sided with the company, finding no evidence that the number of PDK tablets found in meth labs was unusually high. A federal appeals court this year also sided with PDK, ordering the DEA to reconsider its action.

The appeals court noted that PDK had taken steps to safeguard its products: cutting off distributors suspected of selling products in bulk; ending sales to California or Missouri, states where meth production is high; and hiring a former DEA official to review company policies.

The case continues, and the company remains legally approved to sell ephedrine and pseudoephedrine products.

GEMINI PHARMACEUTICALS INC.
Location: Bohemia, N.Y.
Role: Manufacturer

What happened: About 30 million Gemini pseudoephedrine pills found at 32 labs and dumpsites from 1996 to 1997. Gemini customer Spectrum International convicted of selling more than 350 million pseudoephedrine tablets to the California meth trade from November 1996 through April 1997. Customer Daniel Rosen, who paid Gemini $400,000 for pseudoephedrine from August through December 1997, was convicted of selling millions of pills to the meth trade. Customer Randa Saffo, who bought 40 million Gemini pills, was convicted of supplying the meth trade.

What the DEA did: The agency warned Gemini at least 10 times that its products were used to make meth. The DEA blocked imports of pseudoephedrine destined for Gemini in 1996 because its distributor, Spectrum, was suspected of supplying the black market. Yet officials allowed Gemini to resume imports in 1997 after the company agreed to supply Spectrum’s customers directly and cease its California sales.

The outcome: DEA agents searched Gemini’s offices in January 1998 but filed no charges against the company. Gemini remains a registered pseudoephedrine seller.

Company officials did not respond to written questions from The Oregonian.

OTC DISTRIBUTION CO.
Location: Dallas, Texas
Role: Wholesaler

What happened: Products found in 20 meth labs and dumps across eight states as of October 2000. Used unlisted 800 numbers on vehicle cell phones and never advertised. Accepted $70,000 cash from one pseudoephedrine customer whose products, it turned out, had been found in meth labs. Sold pseudoephedrine to a customer whose address was a day-care center.

What the DEA did: OTC founder Larry Petit says — and DEA officials confirm — that he ran a DEA informant operation at his pseudoephedrine distributorship, L&M Vending, from 1994 to 1997. Petit says he recorded about 100 telephone conversations with shady buyers and arranged dozens of major deals with black marketeers in California and Nevada. He says the DEA recovered more than $1 million in diverted pseudoephedrine because of his efforts.

In 1999, facing death threats from people he had incriminated, Petit was ready to get out of the business. But at the urging of his DEA contacts, Petit says, he formed OTC Distribution to do strictly legitimate sales.

DEA officials allowed it after Petit signed an agreement to go above and beyond the law’s record-keeping requirements.

When OTC’s products started appearing in meth labs, the DEA sent 14 warning letters. In March 2000, an audit of the company found thousands of bottles unaccounted for.

The outcome: On July 17, 2000, DEA officials suspended the company’s license. Investigators ultimately documented sales of 92 million pills by OTC in the first eight months of its registration, rivaling the amount of legitimate cold pills sold by Pfizer, maker of Sudafed, Actifed and Benadryl.

Petit says he feels betrayed by the DEA. The audit of his books was faulty, he says, lumping aspirin in with pseudoephedrine. He says he reported all suspicious sales, and all his customers — including the day-care center — were DEA-licensed. Petit says he didn’t need to advertise; he had a national list of pseudoephedrine distributors to contact.

DEA officials penalized him, Petit contends, to hide their own incompetence in screening applicants.

“They knew that pseudoephedrine was a problem,” Petit said. “They went out and dished out 3,000 licenses. They brought this on themselves.”

From The Oregonian, October 4, 2004

Lobbyists and loopholes is part 1 of 5 UNNECESSARY EPIDEMIC: A Five-Part Series by The Oregonian – 2004 / 2005 SEE – All five stories here.

This series of articles, written largely by Steve Suo, illuminated and encouraged Oregon’s legal strategy toward addiction which uses institutional punishment approach versus a medical approach which might offer an individual’s recovery as a primary goal. As of Spring of 2011, Oregon’s strategy has had no affect on the number of arrests or convictions for drug possession or distribution, and has resulted in thousands of deaths, and billions of misspent tax dollars.

Years of attempts by politicians, prosecutors and police to curtail sales of the two essential ingredients to make meth are hamstrung by… Lobbyists and loopholes

In his office on Washington, D.C.’s bustling Connecticut Avenue, five blocks north of the White House, drug lobbyist Allan Rexinger was scanning the Congressional Record one September day in 1986 when two words stopped him short.

“Ephedrine.” “Pseudoephedrine.”

The U.S. Drug Enforcement Administration wanted to require companies to keep sales and import records for these and 12 other chemicals used in making illegal drugs. Executives would have to give the DEA the documents when asked.

From his seven years protecting the interests of the pharmaceutical industry, Rexinger knew that ephedrine was important to sellers of nonprescription asthma and diet pills. Even more important, pseudoephedrine was the leading ingredient in the nation’s $3 billion cold medication market. Every major drug firm had a brand.

The controls, Rexinger suspected, were only the beginning, the first step toward making cold medicine a prescription drug.

The DEA had to be stopped.

Rexinger’s group prepared a counterattack. It was the first of many that would stall three major efforts over the next decade to regulate products sold by one of Washington’s most influential industries.

The lobbyists would repeatedly invoke the needs of tens of millions of cold sufferers and asthmatics who were buying pseudoephedrine- and ephedrine-based products over the counter. Meanwhile, they would forge alliances with Capitol Hill staffers, members of Congress and White House officials who would help them thwart the DEA’s plans. It was, the lobbyists believed, the only way to cope with a bureaucracy deaf to industry concerns.

Whenever federal officials tried to tighten control over the chemicals used to make methamphetamine, Rexinger and his colleagues swung into action. Again and again, DEA officials agreed to compromises that left open one or more crucial loopholes for traffickers to obtain their ingredients — the bulk of which are made in only nine factories worldwide.

A small group of federal officials, prosecutors and local cops understood the inner workings of the methamphetamine business and the threat it posed to Oregon, California and other states in the West. But their push for tougher laws was episodic, and they were repeatedly outmaneuvered by the pharmaceutical industry, which had far better access and influence over key decision-makers.

Meth traffickers relentlessly exploited the loopholes lawmakers left open.

By 1997, when the DEA completed its incremental struggle to control all levels of the trade in meth-related chemicals, an estimated 5 million Americans had tried methamphetamine.

As Rexinger studied the DEA’s first proposal to impose controls that fall day in 1986, he picked up the phone and sounded the warning.

Over the coming months, Rexinger would confront the bill’s congressional sponsors and challenge the DEA. Ultimately, someone would have to persuade the White House to intervene.

The idea man

The legislation that so riled the drug industry in 1986 was an idea scrawled on a cocktail napkin just a year before. Its author: a midlevel bureaucrat convinced that he could put drug traffickers out of business by cutting off the chemicals they needed.

Deputy Assistant Administrator Gene Haislip was an idea man. As an ambitious young attorney in the DEA Office of Chief Counsel, he had quickly set himself apart by suggesting new areas for legislation and then drafting it himself.

When Haislip was tapped in 1980 to run the agency’s tiny Office of Compliance and Regulatory Affairs, he began looking for ways to expand its mission beyond policing prescription drugs. His first opportunity came from Quaalude, a widely abused sleeping pill.

Haislip concluded that 90 percent of the world production of Quaalude’s legal chemical ingredient, methaqualone powder, was being bought by Colombian drug lords.

Haislip and his staff visited the countries that made methaqualone — China, Germany, Austria — and enlisted their help in halting the flow. Separately, Congress banned domestic sales of the prescription version of Quaaludes, which were made by just one company.

By 1984, Quaaludes had all but disappeared from the U.S. marketplace. It was the first time the DEA could claim total victory over a drug.

Haislip was certain the Quaalude story could be repeated. Flying home from Europe one day with his boss, Haislip sketched out a plan to place all drug-related chemicals under the same sort of system that tracked prescription drugs and narcotics.

Every chemical used in the illegal trade — from solvents that refined cocaine to essential ingredients in synthetic drugs such as PCP, LSD and methamphetamine — would fall under the Controlled Substances Act. Anyone who handled such chemicals would have to register with the DEA; each transaction from factory to final use would be reported to the government. Exports and imports would require permission from Haislip’s newly renamed Office of Diversion Control.

Given the go-ahead from DEA brass, Haislip gathered his staff at DEA headquarters one day in 1985. “Today, gentlemen, we are going to draft a new law,” he remembers saying.

From the beginning, Haislip had to adapt his bold proposal to what the DEA bureaucracy would accept. DEA officials reminded him that the agency had been buried in paperwork when Congress demanded reports on all sales of a chemical used to make the hallucinogen PCP.

Haislip scaled back. Companies buying and selling the key chemicals involved in the drug trade would be required to retain records that could be shown to DEA agents on demand.

Haislip also winnowed the list of chemicals to be controlled from dozens to 14, including both ephedrine and pseudoephedrine. Meth cooks were using ephedrine at the time, but DEA chemists knew pseudoephedrine would work just as well.

The legislation was ready by fall 1986, in time for final debate on a sweeping drug bill moving through Congress.

On Sept. 14, President Reagan and his wife, Nancy, called for a crusade against drugs.

“Each of us has to put our principles and consciences on the line — whether in social settings or in the workplace — to set forth solid standards and stick to them,” Nancy Reagan said in a 20-minute, televised address. “There is no moral middle ground.”

Nine days later, Senate Majority Leader Robert Dole, R-Kan., introduced the administration’s chemical control legislation as a potential addition to the omnibus House drug bill about to be debated in the Senate.

Haislip was confident his idea was on a fast track to the president.

Battle is drawn

Rexinger said he felt blindsided when he read about Dole’s bill in the Congressional Record.

His employer was the Proprietary Association, a trade group representing the nonprescription divisions of the nation’s largest pharmaceutical companies.

In the early 1970s, the Food and Drug Administration had launched a comprehensive study of over-the-counter drug ingredients. It ultimately led the agency to approve dozens of prescription-only products for sale without a doctor’s advice, including pseudoephedrine and nine other cough and cold ingredients in 1976.

Over the next 10 years, U.S. sales of pseudoephedrine products grew so fast that they outstripped the production capacity of the world’s main producers in Germany and Czechoslovakia.

Rexinger made an appointment with Dole’s staff. In the Republican leader’s office, he handed an aide a package of Sudafed. From Rexinger’s perspective, it was a proven, safe, effective and legitimate product that consumers needed.

“Your bill,” Rexinger recalled telling a Dole aide, “just made this product illegal.”

Dole could not be reached for comment, and his former chief of staff, Sheila Burke, did not remember the episode. But Rexinger recalled being told by a Dole staff member that the bill was not intended to harm the industry.

Weeks later, when Congress passed sweeping drug legislation with Dole’s support, it did not include Haislip’s chemical program. The final version asked the DEA to study the issue and report back by spring. Reagan signed it into law on Oct. 27, 1986.

Haislip still had momentum. But Rexinger had bought time.

The strategic compromise

Rexinger and his boss at the time, James D. Cope, say they spent the next months trying to get the DEA’s attention. They made appointments to see Haislip.

Rexinger and Cope, president of the drug association, felt their usual contacts at the Food and Drug Administration understood the needs of legitimate commerce. But they recall a much cooler reception at the DEA.

“DEA’s position was, ‘Look, this is too bad, but this is the only way we can really get a handle on this situation. We’ve got to know where this stuff’s going so we can make the busts,’ ” Rexinger said.

Cope said their demeanor indicated, “We’ll meet with you, but someone told us we have to meet with you bastards, and this is the way it’s going to be.”

Then, something changed.

“It took a telephone call,” Rexinger said, “to the highest levels of the United States government.”

“The pharmaceutical industry had well-placed people, and it was necessary to inform the White House that we weren’t making the progress that we felt we should be making with DEA.

“The White House basically intervened on our behalf,” Rexinger said.

Cope confirmed that a White House staffer arranged for a meeting with the DEA but didn’t recall who called whom. Haislip said he was unaware of any phone call but remembered that the meeting with the industry was arranged by the Executive Office of the President.

DEA officials met with industry representatives in the Indian Treaty Room of the Old Executive Office Building. Rexinger said White House involvement in the issue sent a clear message.

“It basically got DEA off the mark,” Rexinger said. “After that, we had useful negotiations with DEA.

“They realized that the pharmaceutical industry was willing to do what was necessary to protect the interests of legitimate drugs,” Rexinger said.

In April 1987, Attorney General Edwin Meese III reported back to Congress with a new legislative proposal. It looked identical to what the administration had proposed just six months before, with one difference.

It exempted from regulation any chemical — such as ephedrine and pseudoephedrine — turned into a legal drug product. Importers of raw ephedrine and pseudoephedrine powder had to keep records of their purchases and sales. Sellers of finished pills containing ephedrine and pseudoephedrine, meanwhile, did not.

The 31-word exemption left the drug industry out of the regulation, which is what Rexinger wanted.

“I don’t recall why, but I feel like we had to take it,” Haislip said.

“Certainly we didn’t like it, and we knew what it was about and where it was coming from,” Haislip said. “But sometimes you have to make a strategic decision. You’ve got to pick your fights. This is the way it is in this city.”

While Haislip was negotiating with the industry, prosecutors on the West Coast were developing their own ideas about how to choke the chemical supply.

In San Diego, Deputy District Attorney Hugh McManus had built a reputation for aggressively prosecuting dozens of major meth dealers. McManus noticed that when California legislators placed restrictions on ephedrine sales in 1987, the traffickers adapted, switching to unregulated chemicals.

McManus sat down and drafted a proposal for federal legislation to get ahead of the traffickers. Sellers of ephedrine and pseudoephedrine in any form, including finished cold pills such as Sudafed, would have to report all sales to the DEA. The agency also would have the power to impose controls on any comparable chemicals used by traffickers — without going back to Congress.

In the fall of 1987, U.S. Rep. Bill Lowery, R-Calif., introduced McManus’ bill and invited the California prosecutor to book a flight to Washington. The bill he wrote was headed for a hearing alongside Haislip’s.

A prophetic plea

On Sept. 16, 1987, two years after the first drafts, Haislip sat before the House Judiciary Committee’s Subcommittee on Crime to explain the compromises he had crafted.

Some members asked why he hadn’t attempted something more ambitious, like computerized tracking of every chemical sale.

“I am a little surprised, frankly, that you would only go this far,” said Rep. Larry Smith, D-Fla.

“Look at the number of labs you were able to break last year without any of this,” Smith said. “Just think of how many you could with it! Yet, I am looking, and I see a lot of things absent from the legislation.”

Haislip chose his words carefully. After all, his original proposal had gone much further. He told Smith the bill was a delicate balance of competing interests. The DEA’s aim, he said, was to fight crime without hindering legitimate commerce.

“We have perhaps designed a more modest approach,” Haislip said, “being conscious of the burdens on industry.”

Smith didn’t like that answer.

“What the hell does the modest approach have to do with the reality of law enforcement when it comes to drugs?” Smith said.

“I would be more than happy to work with the chemical manufacturers,” he said. “But frankly, I am interested in getting rid of drugs, and I really am tired of losing.”

A few days later, the committee followed up with a list of questions for Haislip’s boss, DEA Administrator John Lawn. The committee had seized upon the central compromise that Haislip made with the industry: regulating powder but not pills containing ephedrine and pseudoephedrine. Wasn’t this a loophole that would allow drug traffickers to get the same chemicals in a different form?

“Yes,” Lawn responded. “. . . It is highly unlikely, however, that this would occur.”

The next day, Congress heard a different story from McManus. The DEA’s strategy of regulating some chemicals while exempting others, he told Congress, gave meth cookers a road map.

“Merely listing the now-known precursors gives these imaginative chemists a lot of maneuvering room,” McManus said, “allowing them to come up with a new, unregulated precursor even before the new legislation is printed in the law books.”

McManus urged the committee to broaden the legislation that Haislip had written, authorizing the DEA to regulate chemical substitutes adopted by meth cooks. Otherwise, Congress would have to repeatedly push through new legislation as the criminals adapted.

“Meanwhile,” he said, “there is going to be another ton of methamphetamine shipped out of San Diego County.”

The chairman thanked McManus for his testimony. Congress went on to approve Haislip’s bill in late 1988 without McManus’ suggested changes. It took effect in August 1989.

Defeated but not surprised, McManus returned to San Diego.

“I knew before I got there,” McManus said. “It’s like one of these deals, other things I’ve been involved in as a DA, where everybody tells you, ‘You can take this case to trial, but you’re going to lose in the end.’ The fix is in, so to speak.”

Within months, McManus was proved right about the drug traffickers.

Finding the loophole

Ronald Lee Henslee was a prodigious supplier of California’s meth superlabs. The San Diego resident was caught with 1,200 pounds of ephedrine powder in 1989 but escaped a prison sentence, court records show. He was jailed later that year for violating his probation but continued to coordinate ephedrine shipments from prison through telephone calls to his girlfriend, according to prosecutors.

The federal investigation into how Henslee obtained his ephedrine led agents to a disturbing discovery: The loophole in Haislip’s law — which left ephedrine in pills unregulated — already was being exploited.

Henslee’s supplier, Pittsburgh-based Nationwide Purveyors, produced ephedrine pills called “Mini White Thins” for sale in magazines such as Hustler and High Times.

Before Haislip’s law took effect in August 1989, Nationwide Purveyors had a separate arrangement to supply Henslee with 55-pound barrels of raw ephedrine powder. As soon as the law required record-keeping of ephedrine powder sales, Nationwide Purveyors began shipping pills called “Mini-Thin Barrels,” which were exempt from regulation.

Nationwide Purveyors, its owner, Henslee and others eventually were convicted of supplying about 4 metric tons of ephedrine to the meth trade over two years — enough to make more than 49 million doses of meth.

The case surprised Haislip.

For the most part, his law was having a deterrent effect. By late 1990, U.S. exports of cocaine-refining solvents to Latin America had plummeted. And the total number of meth labs seized by drug agents had fallen.

But lawmakers in the West already were demanding that the government do more. They introduced legislation to expand Haislip’s law by requiring more information from chemical distributors.

“We have, most particularly on the West Coast, a problem now,” Sen. Slade Gorton, R-Wash., said in 1990. “We seek to address that problem now.”

Haislip resisted making radical changes to a law that he so recently had ushered onto the books and that his staff was still learning to enforce. On the other hand, Haislip could see from Nationwide Purveyors and other cases that the meth trade’s shift to ephedrine tablets would have to be addressed.

Back at the Proprietary Association, Rexinger was not happy about reopening the issue. To him, it seemed as though Haislip and the DEA were working behind the scenes to unravel the compromise they had struck.

“They would just keep going back to the Hill advocating their position without regard for the legitimate pharmaceutical industry,” Rexinger said. “I would get rumors of that from staffers up there.

“I would have to go up there,” he recalled, “and I’d just have to pull the plugs on them.”

Meth explosion

It took Haislip three years to close the loophole that made ephedrine pills common currency in the meth trade. While he negotiated with the pharmaceutical industry and prodded lawmakers, trafficking in methamphetamine exploded.

The Mexican cartels developed an additional source for ephedrine, buying bulk powder from overseas suppliers.

A flood of high-potency meth rolled eastward, through the Rockies and into the Plains. Between 1992 and 1994, the purity of meth on the street skyrocketed, from 46 percent all the way up to 73 percent. At the same time, the number of people entering rehab for meth doubled.

In 1993, after the DEA struck a new compromise with Rexinger’s group, Congress passed legislation that required sellers of ephedrine tablets to keep records of customers, report suspicious sales and register with the DEA. It was phased in from April 1994 through August 1995.

The DEA immediately cracked down on the trade in ephedrine-based pills. And drug agents cut off the network of overseas connections that had delivered 170 metric tons of ephedrine to the cartels in less than two years — enough to make more than 2 billion doses of meth.

Haislip’s staff flew to India, the Czech Republic and Switzerland. Within months, those countries began enacting stricter export controls on ephedrine.

The combined domestic and overseas efforts prompted a steep drop in the purity of street meth. Indicators of meth abuse — from the number of people in rehab to emergency room patients with meth in their systems — plummeted.

But already, the cartels were changing tactics.

To get the pharmaceutical industry to accept restrictions on sales of pills containing ephedrine, Haislip had agreed to leave pills containing pseudoephedrine — a potential substitute in making meth — unregulated. For meth cooks in California, it was the next best thing.

The new ingredient

In the spring of 1995, DEA agents needed five tractor-trailer trucks to empty the warehouse at Clifton Pharmaceutical, a Pennsylvania pill maker whose owner had moved as much as 70 metric tons of ephedrine tablets to meth traffickers. The owner was headed to federal prison for five years.

Yet the news was not all good.

Federal agents sifting through Clifton’s records discovered that the company had switched to buying huge volumes of pseudoephedrine after the new law took effect. In less than 18 months, the company purchased 110 tons and converted most of it into unregulated pills.

It was, by then, a familiar story to Haislip and his staff. Twice they had struck compromises with the drug industry, agreeing to regulate one meth ingredient and not the other. Both times, meth cooks had seized on whatever the DEA left unregulated, just as McManus, the San Diego prosecutor, had predicted in 1987.

Haislip sent his chemists to the grocery store to buy various types of cold medicine containing pseudoephedrine — pills, capsules, liquids. The technicians returned to the DEA lab and started trying to extract useable pseudoephedrine from each product.

“The lab was able to make methamphetamine out of every size, shape and form,” said Terry Woodworth, the agency’s former deputy director of diversion control.

On Halloween Day 1995, the DEA announced plans to eliminate the loophole Haislip had accepted under pressure from Rexinger a decade before. Pseudoephedrine products, the agency said, would be treated like all other methamphetamine ingredients.

Haislip’s proposed rule seemed modest: Manufacturers and wholesale distributors would have to get DEA licenses and keep records if they sold more than 400 tablets of pseudoephedrine in one sale — enough for a 100-day cold at the normal dose.

But for drug executives, this was the moment Rexinger had warned about from the beginning.

An outright ban or prescription-only status for pseudoephedrine seemed easily imaginable.

A bag of pills

The pharmaceutical industry turned to a longtime ally, a member of Congress with enormous sway over DEA activity: Sen. Orrin Hatch, the Utah Republican who chaired the Senate Judiciary Committee, had also supported key legislation promoting generic drugs and curbing federal regulation of dietary supplements.

Within weeks of Haislip’s announcement, Hatch aide Michael Ashburn was dispatched to work on the pseudoephedrine issue. Ashburn, a University of Utah professor of medicine assigned to Hatch on a one-year fellowship, challenged the DEA to prove that traffickers were switching to cold pills.

“They said, ‘We know it’s the case,’ ” Ashburn recalled. “We said, ‘Show us. Show us the money, show us a list of arrests that came from where you found a popular brand of pseudoephedrine sitting on the floor.’ ”

DEA officials had to admit the shift had only recently begun. Pseudoephedrine had been found in 22 percent of labs busted in 1995, up from 11 percent the year before. But history told the DEA that traffickers would quickly make the transition.

“There was just no question in our minds that they were going to go there,” Woodworth said.

Facing resistance from the industry, the DEA found its own powerful friend in Sen. Dianne Feinstein, a California Democrat who was under pressure from her state’s drug agents and prosecutors to do something about the exploding meth problem.

In March 1996, Feinstein introduced a bill proposing enormous penalties for companies whose products repeatedly ended up in meth labs. The first occurrence would prompt a warning, the second a fine of as much as $250,000. The third time, the DEA could shut the company down. The agency wouldn’t have to prove intent, only that the company had been warned.

The bill languished in Hatch’s committee.

Feinstein sent her aides on a shopping trip to buy as many pills as the DEA’s proposed regulations would allow in a single transaction. They returned with a bulging bag, two staffers recalled.

Feinstein summoned a group of drug executives to her office one day. Her staff brought in the shopping bag, stuffed with packets of pseudoephedrine, and dumped it on the table. Surely, Feinstein said, there must be some quantity that the executives considered legitimate for the DEA to police.

By late summer 1996, Hatch and Feinstein reached a compromise.

Sellers of pseudoephedrine would be subject to DEA registration and record-keeping — unless they sold only pseudoephedrine tablets in individually wrapped “blister packs.” Meth cooks so far seemed to prefer pills in bottles, because blister packs took time to empty.

Feinstein’s proposed “three strikes” rule, requiring progressively higher penalties each time a company’s products were found in meth labs, was watered down to affect only companies that showed “reckless disregard” for where their products went.

The deadline for distributors to start registering with the DEA was pushed back a year.

Hatch called the compromise a “more fair approach” than the DEA’s, which might have created so much red tape that companies would stop selling pseudoephedrine products.

By the time the Hatch-Feinstein law governing pseudoephedrine took effect in late 1997, the traffickers’ switch to pseudoephedrine was complete. Agents seized 422 pseudoephedrine-based labs in 1996, up from 93 the year before. Legal imports of pseudoephedrine had jumped 160 metric tons in three years, an increase of 41 percent.

“Greed gets ahead of safety”

In the 12 years that had passed since Haislip drew up his idea on an airline cocktail napkin in 1985, the issue had come full circle.

The DEA now had nearly all the powers Haislip had given away in order to build support within the DEA and in Congress. He retired in 1997, just as the agency was preparing to register pseudoephedrine dealers for the first time.

Each expansion of Haislip’s law had made a significant dent in the meth trade, though only temporarily. In a decade of compromises on the issue, meth grew from a relatively small West Coast trend to an epidemic that claimed users from Oregon to Oklahoma.

The traffickers continued to adapt. A DEA study reported that blister packs — the sole unregulated aspect of the pseudoephedrine trade — were found in 47 percent of meth labs seized in 1999 and 2000.

Feinstein now acknowledges the shortcomings in the law she wrote and has introduced new legislation to repeal that loophole.

The “reckless disregard” provision did not work out as planned, either. DEA officials say it has not resulted in a single fine against a pseudoephedrine supplier. Feinstein, told by The Oregonian that companies had stayed in business despite 30 to 40 warning letters, vowed to push additional legislation lowering the DEA’s burden of proof against pseudoephedrine distributors.

Feinstein said the industry’s influence remains an obstacle.

“There’s no question there’s a problem. There’s no question that pharmaceutical companies allow the problem to happen,” Feinstein said.

“This is one issue where greed gets ahead of safety.”

Hatch said he considers meth “a vicious drug” and takes seriously the need to battle the trade. But he said he remains wary of giving the DEA too much influence over sales of “a good cold medication.”

“I would like to find a way to solve it,” Hatch said of the meth problem. “On the other hand, we shouldn’t let a bureaucracy unilaterally, without legislative authorization, interfere with the marketplace.”

Haislip said he now recognizes that some of the compromises he accepted in the interest of progress created a less-than-ideal system.

“At the time that it occurred, the truth is, we would not have seen it as, ‘This is the Achilles’ heel building in here,’ because we really didn’t know that. I had the strong hope that it wouldn’t happen. I guess that was a little naive.”

Rexinger, the former lobbyist, said it would have made no sense to regulate all legitimate cough and cold products at once, simply on the chance that criminals might misuse them in the future. Getting the ear of the White House allowed the industry to make its case.

“Mind you, there was nothing bad going on here,” Rexinger said of his legwork in 1986. “I mean, this is the way government works. You use your contacts, and you try to get someone’s attention.”

McManus, who pleaded unsuccessfully with Congress in 1987 to regulate all potential meth ingredients immediately, retired in 1992. He recalled that he was far more successful locking up drug dealers than he ever was lobbying Congress.

“I wish that I knew the way to have gotten around it,” McManus said of the pharmaceutical industry’s maneuvering.

“I wish,” he said, “I could have done a lot more.”

From The Oregonian, October 03, 2004

Invisible victories is part 1 of 5 UNNECESSARY EPIDEMIC: A Five-Part Series by The Oregonian – 2004 / 2005 SEE – All five stories here.

This series of articles, written largely by Steve Suo, illuminated and encouraged Oregon’s legal strategy toward addiction which uses institutional punishment approach versus a medical approach which might offer an individual’s recovery as a primary goal. As of Spring of 2011, Oregon’s strategy has had no affect on the number of arrests or convictions for drug possession or distribution, and has resulted in thousands of deaths, and billions of misspent tax dollars.

The siren of meth fuels crime and ravages communities across the West, but an analysis by The Oregonian shows sustained pressure by government could stop the . . .
Unnecessary epidemic

A decade ago, federal authorities choked off the supply of chemicals needed to make methamphetamine, a cheap, potent stimulant that was devastating the West.

The drug grew scarce, and rehab centers saw fewer meth patients. Emergency rooms reported fewer meth overdoses. Fewer people were arrested for possessing the drug. Identity theft and car theft — crimes typically committed by meth addicts — fell in several Western cities.

Federal agents had vastly improved the quality of life, but they didn’t know it.

Within a year, the drug cartels that make most of the nation’s methamphetamine found new ways to obtain their ingredients, taking advantage of a loophole left open by Congress. As a result, meth use rebounded, and the epidemic spread eastward. Today, an estimated 1.3 million Americans smoke, snort or inject the drug.

An investigation by The Oregonian shows that Congress and federal authorities could have contained the methamphetamine epidemic, and still can.

The investigation establishes for the first time that methamphetamine traffickers are uniquely vulnerable to government pressure.

Methamphetamine differs from heroin and cocaine, which are distilled from plants grown across vast stretches of South America and Asia. Drug dealers create meth from ephedrine or pseudoephedrine, chemicals used to make cough and cold remedies such as Sudafed. Only nine factories manufacture the bulk of the world’s supply.

Deprive traffickers of ephedrine and pseudoephedrine, and the meth trade withers.

Peter Reuter, a leading drug expert and longtime skeptic of the government’s ability to disrupt the drug trade, said The Oregonian‘s findings were startling. Reuter called them the first convincing evidence that government and law enforcement agencies could substantially reduce meth addiction.

The research, he said, shows that tightening control over the supply of meth chemicals would make “a significant difference to the criminal interests” while modestly inconveniencing consumers.

“I have been asked in the course of the presidential campaign, ‘Why doesn’t anyone talk about drugs?’ ” said Reuter, a University of Maryland professor who served on the Clinton administration’s meth task force.

The answer, Reuter said, is that no candidate has a plausible approach.

“Here, you actually do have a better idea.”

The Oregonian found striking correlations between government actions and meth abuse. In two periods — 1995-96 and 1998-99 — federal authorities interrupted the flow of chemicals to drug cartels. Each time, crime and addiction fell in tandem as the price of the drug rose.

The Oregonian discovered these previously overlooked successes by examining millions of reports on arrests, emergency room admissions, drug treatment, and the price and potency of meth seized by drug agents.

Until now, federal officials were unaware of the extent to which their policies succeeded.

The U.S. Drug Enforcement Administration began calling for much tighter control over ephedrine and pseudoephedrine nearly two decades ago.

But lawmakers were reluctant to interfere with the legitimate trade and said the DEA had no proof the approach would work. The pharmaceutical industry lobbied its allies on Capitol Hill and in the White House to delay or soften legislation that would have harmed the $3 billion market in popular cold products.

When Congress finally gave the DEA broad authority over the trade in pseudoephedrine in 1996, the agency did not take full advantage of the powers it had sought.

The agency allowed companies it licensed to continue selling cold medicine, even after 20, 30, 40 written warnings that their products were found in meth labs.

The DEA said it has tightened its registration program since 2000, when a number of officially approved dealers were charged with supplying pseudoephedrine to meth traffickers. In a written statement, the agency said it had “always considered” the control of meth chemicals a “high priority.”

Meth abuse is particularly widespread in Oregon, which treats more people for meth addiction per capita than any other state in the country.

The drug, sold in powder or rock form, delivers an intense rush. A few hits cost just $25. Heavy users stay awake for days, growing paranoid and aggressive before crashing into sleep.

Gov. Ted Kulongoski now calls meth the most pressing crime issue facing the state. Police in Portland and surrounding suburbs say that meth users are responsible for thousands of identity thefts each year.

In rural communities such as Coos County on the Oregon coast, social workers say meth abuse plays a role in most cases of child abuse and neglect.

The story is repeated in communities across much of the country. More people are now in rehab for meth addiction than for cocaine or heroin in 16 states. And recent treatment data show the drug is rapidly drawing new users in places such as Illinois, Kentucky, Alabama and Georgia.

The problem has been slow to reach the attention of national policymakers, in part because the threat remains distant from the nation’s major East Coast cities.

Authorities in Portland, Spokane, San Diego and Phoenix report that 25 percent to 38 percent of men arrested for any crime have methamphetamine in their bloodstream. The comparable rates in New York and Washington, D.C., are less than 1 percent.

Nancy Bukar, a lobbyist for the Consumer Healthcare Products Association, argues that the regional nature of the problem weighs against further restrictions on pseudoephedrine products.

“You’ve got to strike a balance here,” said Bukar, whose group represents pharmaceutical companies. “Yes, they’re being used in an illegitimate fashion by some people, but the major majority of people are using it for colds and to unstuff noses.”

Over the past decade, meth traffickers have displayed an uncanny ability to outwit regulators and obtain their raw materials. But former DEA officials say the government has failed to make a concerted effort to deprive traffickers of two chemicals produced in only four countries.

The Oregonian’s study shows that a national strategy to halt the flow of meth chemicals could be accomplished with little effect on consumers and relatively low cost to taxpayers.

U.S. diplomats could work with officials in India, China, the Czech Republic and Germany to more closely track every sale of pseudoephedrine from the few factories that produce it. Right now, DEA officials review only exports from those countries to the United States and Mexico.

U.S. diplomats could work with officials in India, China, the Czech Republic and Germany to more closely track every sale of pseudoephedrine from the few factories that produce it. Right now, DEA officials review only exports from those countries to the United States and Mexico.

That approach failed to immediately detect a huge smuggling route through Canada that opened in the late 1990s.

The National Institute on Drug Abuse, which spends $1 billion a year on addiction research, could dedicate some money to developing an effective decongestant that cannot be converted into meth.

Pfizer, one of the leading sellers of cold medicine in the United States, holds the patent to such a medicine. It has never been brought to market, Pfizer says, because it was not enough of an improvement as a cold medicine to make it commercially viable.

The government could provide incentives for drug companies to create such a product, just as it already subsidizes research on unprofitable “orphan drugs” that promise cures for rare diseases.

Finally, the DEA could take a more aggressive approach to overseeing the trade in the two key chemicals used to make meth. The agency spends $700 million annually eradicating coca plants in South America. It devotes only $20 million to tracking the flow of pseudoephedrine and ephedrine — the same amount the city of Portland spends annually on its motor pool.

John Coleman, DEA’s former chief of operations, said the agency “could do a lot of phenomenal things” if it put more money into regulating drug chemicals.

“We’re keeping the accomplishments low by keeping the staffing low,” said Coleman, who also served as head of the DEA’s offices in Boston and Newark, N.J.

“It’s not very hard, really,” he said. “It’s just like shooting fish in a barrel. But you have to have the bodies.”

Trend across states

The Oregonian set out to understand what caused the explosive growth in meth abuse during the 1990s.

First, the newspaper analyzed the records of 282,000 people entering rehabilitation programs for methamphetamine abuse in Oregon, Washington and California from 1992 to 2000. Their names were obscured to protect their privacy.

Researchers who study drug abuse have used treatment statistics as a barometer of the number of addicts. Just as population growth can be seen in clogged freeways, a rise in patients reporting to rehab centers is a sign that the drug problem is worsening.

The rise and fall of patients in rehab is an imperfect measure that could also reflect changes in availability of treatment and other factors. For this reason, The Oregonian examined treatment data from multiple states in combination with statistics on crime, emergency room admissions and arrests.

During the 1990s, the number of patients in Oregon, Washington and California admitted for meth abuse soared. But during the two periods in which federal authorities restricted access to the chemicals needed to make meth — 1995-96 and 1998-99 — clinics saw their meth caseloads sharply decline.

In those years, the numbers of patients diminished in Oregon, Washington and California, three states with different approaches to rehabilitation. That pattern was seen among people who voluntarily entered treatment and those ordered to do so by courts and child welfare agencies.

The Oregonian compared these treatment statistics with the number of trauma and overdose patients admitted to emergency rooms with meth in their blood. The patterns were identical.

The newspaper next examined arrests for methamphetamine possession in the same period. No statewide data were available for Oregon and Washington, but in California the numbers rose steadily except in 1995-96 and 1998-99.

Finally, the analysis turned to data on two crimes most commonly associated with meth users in Oregon: forgery and fraud. Data statewide, as well as for Portland and Salem, once again showed improvements in 1995-96 and 1998-99.

Police in Spokane; Salem; Sacramento; Kennewick, Wash.; and Phoenix reported the number of vehicles stolen monthly dipped or leveled off in 1995-96 and again in 1998-99 — the same periods when other indicators of meth use were falling. Annual FBI data showed similar declines in rural counties of Arizona, New Mexico, California, Oregon, Idaho and Washington.

The similarity among these multiple measures of meth abuse was striking. The numbers of meth rehab patients, overdoses, arrests and property crimes moved in unison, matching one another in many cases across states down to the month.

Taken together, the data The Oregonian examined show there was good news hidden within the deluge of meth-related crime stories of the past decade.

But what caused such simultaneous, dramatic changes in the drug habits of individuals living thousands of miles apart?

The answer lay in the supply of the drug itself — an aspect of the meth trade that turned out to be highly susceptible to government intervention.

Myths of meth

The most common belief about meth is that its use has grown rapidly because anyone can make it. Television news features colorful scenes of houses ablaze after volatile meth chemicals used by home cookers ignite.

The reality: Despite the existence of thousands of such home labs across the country, federal drug agents say local users make very little of the meth consumed in the United States.

From Oregon to Iowa, the DEA estimates that four out of every five hits of meth are cooked by Mexican organized crime syndicates operating in California, where they began making the drug on a grand scale a decade ago.

Their ability to produce plentiful, highly pure meth propelled the drug’s popularity.

In the 1970s, meth was a minor West Coast fad. California motorcycle gangs discovered the powerful stimulant first synthesized by a Japanese chemist in 1919.

In 1980, the bikers’ main ingredient, phenyl-2-propanone, came under federal control. So, underground cooks turned to ephedrine, a mild stimulant whose main legal use was as an asthma medication. To their surprise, ephedrine made meth twice as potent.

Prosecutors say a small-time Mexican cocaine runner named Jesus Amezcua Contreras and his brother, Luis, saw the commercial possibilities.

“This was not some Laurel and Hardy, dumb bunch of bikers that made meth in their back yards,” said Larry Cho, a federal prosecutor who obtained a 1994 indictment against Luis Amezcua in Orange County, Calif. “Those guys were starting to industrialize the methamphetamine process. They made it into a business.”

The key to their success, DEA officials say, was a massive and steady supply of ephedrine.

By 1989, the U.S. government had regulated sales of ephedrine powder, but the law exempted sellers of ephedrine pills — because the product was a legitimate asthma medication.

Some meth cooks began to tap a gray market that hawked these products in adult magazines as “energy boosters.”

But the Amezcua brothers went to the source, prosecutors say, arranging directly or through middlemen to purchase bulk ephedrine powder from manufacturers in Germany, the Czech Republic, India and China. A federal indictment says the Amezcuas and their scouts roamed Europe and Asia, placing orders by the ton.

By 1992, the brothers were shipping unprecedented quantities of ephedrine into Mexico and on through Tijuana to Southern and Central California, according to court documents. There, the Amezcuas and other cartels that followed found plenty of migrant labor and mile after mile of open space in which to hide a revolutionary process for making meth.

Drug agents from San Diego to Sacramento began discovering labs that cooked meth in a flask the size of a beach ball, big enough to hold 11 two-liter bottles of soda. As many as 12 of these giant globes were strung together, for a capacity of 144 pounds of pure meth every 48 hours.

Cut to street purity, that amount of meth would equal 1 million doses — enough to keep tens of thousands of heavy users high for days. By contrast, home-based labs produce about one ounce of meth at a time, enough for 280 doses.

Seemingly overnight, cookie-cutter copies of the mammoth labs were everywhere. The operators were migrant workers, paid and trained by mysterious benefactors to keep the labs running and their mouths shut.

The product entered existing Mexican distribution channels for heroin and cocaine that stretched as far as North Carolina.

As meth became more abundant, dealers had less need to dilute it. The drug’s purity rose.

Purer drugs are more habit-forming, studies have shown. Primates and rats, trained to press a lever that releases a shot of drugs, learn the trick faster when the initial dosage is strong.

Purer drugs also reduce the cost of getting high. A $25 bag of meth lasts longer. Numerous studies in both humans and animals show that when the “cost” goes down, users get high more often — just as motorists choose to drive more when gasoline is cheap.

That is what happened with meth from 1991 to 1994.

The average purity of meth doubled nationally in those years, reaching more than 70 percent, according to a RAND Corp. analysis of DEA data.

The highly potent meth hit the street simultaneously in nearly every Western state, The Oregonian’s analysis shows. Soon after, the numbers of people entering rehab for methamphetamine addiction, arrested for meth possession and suffering overdoses began to rise.

Drug cartels had created a national habit by making meth plentiful and pure. But the secret to their success — the ephedrine pipeline — was about to be exposed.

The perfect storm

One day in March 1994, a shipping agent in Frankfurt, Germany, made a mundane but fateful decision that would bring chaos to the market that the Amezcua brothers had built.

A customer with a shipment of 120 cardboard barrels bound for Mexico City had left explicit instructions to steer the load clear of U.S. ports. But the flight to Mexico City was overbooked and beyond its allowable cargo weight. Contrary to the shipper’s wishes, the agent sent the load on a Lufthansa flight that landed in Dallas.

There, the shipment immediately raised suspicions. U.S. Customs agents on the tarmac noticed that the labels had been altered. They pried open the barrel lids and found 3.4 metric tons of pure ephedrine powder, enough to cook up more than 41 million doses of methamphetamine.

It was a lucky break. For the first time, federal investigators had evidence they could use to trace precisely who was supplying ephedrine to the Amezcuas.

Four months after the first multi-ton seizure, customs agents in Dallas seized another 2.4 tons of ephedrine. In October, Dutch authorities at Amsterdam’s Schiphol Airport stopped a 6.9-ton shipment of ephedrine that was bound for Guadalajara.

Terry Woodworth, who recently retired as the DEA’s deputy director of diversion control, called the string of discoveries “an eye-opener.”

“We were, to be candid, not as aware of that situation as we should have been until the Dallas-Fort Worth seizures,” Woodworth said.

DEA officials flew to a meeting of the International Narcotics Control Board in Vienna to confront their counterparts from the countries that had unwittingly helped the Amezcuas obtain their ephedrine. Within months, the manufacturing countries and nations that were stopover points enacted stringent export restrictions.

In the United States, meanwhile, Congress had moved to choke off access to ephedrine pills, which had been protected from regulation and were being found by the millions in meth labs. A new law, requiring sellers of ephedrine pills to register with the government, was scheduled to take full effect in 1995. Many shady operators were scared away.

As a final blow, an IRS investigation led to a mail-order pill maker suspected of providing tons of ephedrine to the meth market in pill form. DEA agents shut down the Pennsylvania company in May 1995.

DEA officials say that in just 18 months, they and their foreign counterparts blocked or seized an estimated 170 to 200 tons of ephedrine. It was a sixth of the world’s entire annual production.

“The hose was clamped,” said Gene Haislip, former head of the DEA office that tracks chemical sales.

In California, the Amezcuas and other Mexican meth cartels felt the effects.

According to a DEA report written at the time, the standard, 55-pound drums of foreign ephedrine the traffickers called “tins” were going for as much as $80,000, nearly double the old price. Eventually, the traffickers stopped buying tins altogether, aware that the only people with any to offer were undercover police.

Short on ephedrine, traffickers produced less meth, prompting dealers to dilute or “step on” the product. In late 1995, according to a California Bureau of Narcotics Enforcement internal bulletin, meth samples for the first time were found mixed with MSM, a veterinary analgesic that looks just like crystal meth.

Retail purity plummeted. Nationally, samples of the drug bought undercover fell to only 40 percent to 50 percent pure after peaking at 70 percent to 74 percent.

It was much the same in all the communities where the drug cartels had extended their distribution network. From Oregon to Missouri, meth seized by drug agents tested weaker and weaker.

In August 1995, a final sign of desperation emerged. Investigators in California’s Central Valley seized a lab that made simple amphetamine, a much weaker stimulant that can be made without ephedrine. For months afterward, what was sold as meth was actually the less potent drug, according to law enforcement officials.

Relief came to communities meth had ravaged.

In 1996, for the first time in four years, the number of people in rehab for meth fell in 16 of the 24 states west of the Mississippi River; in five others, the growth in rehab patients dramatically slowed. Each had experienced double-digit annual growth in meth patients from 1992 through 1995. Now, the number was down: 18 percent in Oregon, 19 percent in California, 22 percent in Washington.

Numerous other indicators of meth abuse were falling: meth-related trauma and overdoses nationally; arrests for meth possession in California; car thefts in Salem and Spokane; forgeries in Phoenix and Portland.

The declining purity of meth had suddenly raised the cost of getting high and reduced the drug’s addictive allure.

Multiple gauges indicated that meth users responded by cutting back, while some first-time users decided not to make meth a habit.

To people who believe drug addicts will achieve intoxication at any price, the findings would seem surprising. But to the numerous researchers who have found that users are sensitive to changes in price and purity, the outcome is perfectly logical.

“There’s no doubt in my mind,” said William Woolverton, a leading addiction researcher on primates at the University of Mississippi Medical Center. “If you reduce the dose of methamphetamine, you weaken methamphetamine-taking behavior.”

In November 1995, the Amezcua brothers gathered with their underlings in Tijuana. According to a federal indictment, the Amezcua brothers discussed their plight. The disruption in their supply was forcing them to tap new sources. They were feeling the pressure.

Costly hesitations

The perfect storm that rocked the Amezcua empire represented a rare opportunity in the battle against meth.

It barely made a ripple with Congress.

DEA officials moved to control pseudoephedrine, ephedrine’s chemical sibling and the ingredient they assumed the cartels would try next. But pressed by the pharmaceutical industry, lawmakers resisted.

Meth purity rose again as the Amezcuas made the switch.

In 1996, Congress required pseudoephedrine sellers to register with the DEA, a major change. The law took effect the next year, chasing off some distributors who had supplied the meth trade. Meth purity began to fall, and with it addiction and crime.

Once again, the victory proved short-lived.

The DEA made limited use of its new powers, and the drug cartels slowly found other ways to obtain their chemicals.

In 1998, some pseudoephedrine wholesalers with DEA permits started selling millions of pills to meth traffickers. By 1999, purity was on the rise again.

In 2000, the DEA cracked down, sending dozens of black-market wholesalers to prison. By then, other pseudoephedrine brokers had found a new unregulated source: Canada, where the government had left open the same loopholes Congress had shut four years earlier.

Canada’s imports of pseudoephedrine jumped from 34 metric tons annually to about 140 tons in 2001. DEA officials say that additional amount was smuggled into the United States and driven to meth labs in California.

The DEA says Canadian pseudoephedrine imports have declined since. And last month, agents announced a successful operation against a new threat, Canadian distributors of ephedrine powder.

“Breaking up these organizations will dramatically limit the availability of ephedrine in the United States and will have a significant effect on the large-scale production of methamphetamine,” Deputy Administrator Michele Leonhart said in a statement.

But the most recent statistics on meth use show the number of addicts is rising, along with drug purity, suggesting that traffickers have found other overseas sources of supply.

Only one independent researcher has closely studied the issue.

In an article published last year in the journal Addiction, James Cunningham analyzed emergency room admissions in Nevada, California and Arizona. That study, based on a narrower range of data than The Oregonian’s, reached the same conclusion: Controlling chemicals reduces meth abuse.

Cunningham, of the Public Statistics Institute in Irvine, Calif., said researchers are reluctant to acknowledge the value of law enforcement in curbing drug abuse. “A lot of people have turned this into an emotional issue or a political issue,” he said. “We try to look at it as a health issue.”

Former DEA officials who worked to squeeze the chemical supply said they have long understood the basic principle.

“If you don’t have all the ingredients to make the pie,” said John Buckley, a retired DEA diversion investigator, “the pie isn’t going to come out right.”