Feds’ Oregon State Hospital inquiry focuses on civil rights

From the Salem Statesman Journal, July 1, 2010

Demolition of Oregon State Hospital's J Building in 2009

Demolition of Oregon State Hospital's J Building in 2009

More than a decade ago, the U.S. Supreme Court ruled that it is illegal to keep people with disabilities in state institutions to receive services they would be able to receive while living in the community.

Now, Oregon appears to be the latest state targeted for stepped-up federal civil-rights enforcement of the court’s landmark ruling.

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

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

The U.S. Department of Justice Civil Rights Division now is getting ready to scrutinize data and documents that could shed light on whether Oregon State Hospital is complying with the mandate.

In a June 9 letter to the state, David Deutsch, senior trial attorney for the Special Litigation Section of the Civil Rights Division, itemized 12 requests for state documents and data, including a statistical breakdown of the number of OSH patients whose length of hospitalization falls within specific time periods. His other requests centered on gathering information about community mental health facilities, programs and providers.

The federal lawyer asked for the state to provide the data and documents by Wednesday. As of Wednesday evening, state officials were still collecting and compiling the materials sought by the feds, officials said.

The Statesman Journal is seeking the same data and documents requested by federal investigators through a public-records request filed with the state.

As of 7 p.m. Wednesday, the state had not filled the records request.

Stepped-up enforcement

So far, the U.S. DOJ hasn’t publicly confirmed that Olmstead issues are the new focus of the agency’s four-year investigation of the overcrowded and understaffed 127-year-old psychiatric facility in Salem.

But Thomas E. Perez, leader of the Civil Rights Division of the federal DOJ, has said in recent remarks that Olmstead enforcement ranks as the top priority of the agency’s Disability Rights Section, which enforces provisions of the Americans with Disabilities Act, and its Special Litigation Section, which enforces the Civil Rights of Institutionalized Persons Act, or CRIPA.

Testifying June 22 before the U.S. Senate Committee on Health, Education, Labor and Pensions, Perez said the first year of the Obama Administration “proved to be a landmark year” for such enforcement.

Perez said the Civil Rights Division filed lawsuits in Arkansas and Georgia, intervened in a case in New York and filed legal briefs in cases in Connecticut, Virginia, North Carolina, Illinois, Florida, New Jersey and California.

“In addition to stepping up enforcement, our current approach to cases of unnecessary institutionalization represents a paradigm shift,” Perez said. “In the past, we conducted much of our institutional investigatory work under our CRIPA authority by first asking whether the institutions were safe, and whether the conditions of confinement were constitutional.

“This is a critical question, and one that must be evaluated any time we investigate an institution. But it should be the second question we ask. First, we must ask whether there are individuals in those institutions who could appropriately receive services in a more integrated setting.”

READ – Testimony of Assistant Attorney General Thomas E. Perez Before the Senate Committee on Health, Education, Labor, and Pensions on the ADA and Olmstead Enforcement, June 22, 2010

The type of data and reports sought by the feds in connection with the Oregon State Hospital investigation — length of patient stays, discharge policies and the availability of community housing — seems to conform with the “paradigm shift” cited by Perez.

Olmstead case in Georgia

If the feds determine Olmstead violations exist at OSH, they could sue the state or take action akin to what happened in Georgia.

In January, the Civil Rights Division filed a motion for immediate relief in a case involving seven state-run psychiatric hospitals in Georgia, including a facility that was at the core of an Olmstead case more than a decade ago.

After monitoring conditions at the hospital, federal investigators determined that hundreds of patients remained hospitalized despite evidence indicating they could and should be served in community settings.

After monitoring conditions at the hospital, federal investigators determined that hundreds of patients remained hospitalized despite evidence indicating they could and should be served in community settings.

In Oregon, hospital critics long have complained that some patients lose hope and sink into frustration and despair because they languish at OSH after being deemed ready to go.

Federal investigators reached the same conclusions in a 2008 report on OSH that assailed nearly every aspect of patient care and hospital conditions.

“Although we certainly do not advocate the release of dangerous persons into the community, we find that OSH often does not take appropriate steps to address the aggressive conduct that keeps many of its patients institutionalized,” stated the report.

“The failure to provide adequate, individualized treatment and discharge planning for these and other patients deviates from generally accepted professional standards and contributes to extended hospitalizations, unsuccessful community placements, and high likelihood of readmission.”

The report took issue with the state’s reliance on privately owned and operated community housing providers, saying they are “allowed to subjectively select or ‘cherry pick’ their residents from the OSH patients who have met the criteria for discharge and are on the hospital’s placement list.”

Some patients rejected by housing providers have remained at OSH for months or even years after being cleared for discharge, the report states.

“The detrimental effect on individual patients of this prolonged waiting and frequent rejection is documented repeatedly in their clinical records,” it said. “Patients’ despair, anger, and agitation about having been turned down by community providers become a part of their illness.”

A draft state report that outlines Oregon’s efforts to comply with the 11-year-old Olmstead ruling acknowledges a lack of housing for people coming out of the state hospital.

The report describes the existing system as overly reliant on residential facilities. It calls for increased state funding for smaller types of supported housing options, which are designed to help residents progress to independent living.

“Without an investment in supportive housing, intensive outpatient and peer services, Oregon will not be able to move individuals from state or community facilities to self-sufficiency,” the report states.

READ – US DOJ report to Oregon Gov. Kulongoski about deficiencies at Oregon State Hospital, 2008
READ – Correspondence archived by Oregon about Civil Rights of Institutionalized Persons Act
READ – U.S. Dept. of Justice letter to Oregon Attorney General, June 9, 2010
READ – About Olmstead v. L.C.
READ – The SCOTUS decision, Olmstead v L.C. , 1999