Department of Justice extends OSH probe

From the Salem Statesman Journal, November 20, 2010

Now what? That question looms for Oregon leaders in the wake of a letter sent last week to Attorney General John Kroger by a top lawyer in the Civil Rights Division of the U.S. Department of Justice.

The two-page letter, which arrived on the eve of Thursday’s dedication ceremony for the new Oregon State Hospital in Salem, delivered a bombshell. It served notice that the feds are expanding a four-year investigation into Oregon’s main mental hospital.

Until now, the investigation has focused on patient care and hospital conditions. As outlined by the federal lawyer, the widening investigation will examine community-based programs and services for people coming out of the state hospital and those at risk of being institutionalized.

On Friday, state officials pledged to cooperate with the federal investigators — echoing a vow they made when the U.S. DOJ began investigating OSH in June 2006.

Amid uncertainty about the scope and duration of the new investigation, this much is clear: the U.S. DOJ has used its clout in other states to force improvements in community-based services for people with mental illness.

“What just happened in Georgia with the settlement there proves that the Department of Justice is serious about seeing that people are treated humanely,” said Chris Bouneff, executive director of Oregon NAMI, a chapter of the National Alliance on Mental Illness.

Like the situation now unfolding in Oregon, a federal investigation of Georgia’s mental health system started with flaws and failures at its psychiatric hospitals, then branched out to scrutinize community-based services.

Last month, Georgia and the U.S. DOJ reached a settlement that resolved a federal lawsuit filed against Georgia, alleging the state segregated people with mental illness and developmental disabilities in state facilities in violation of the Americans with Disabilities Act.

Settlement terms call for Georgia to expand its community mental health services during the next five years. In part, the state agreed to provide community treatment, intensive case management, supported housing and employment programs to serve 9,000 people with mental illness in community settings. Services also will be expanded to help people in mental health crisis without admitting them to a state hospital

Bouneff and other mental health advocates hope the expanded federal investigation into Oregon’s mental health system will spur increased state funding for an array of community programs and services, such as outpatient care, crisis counseling, job training and affordable housing options.

As advocates for mentally ill Oregonians tell it, the state’s community mental health system has long been poorly funded and fails to deliver services needed by thousands of Oregonians.

The U.S. DOJ signaled its intent to delve into such assertions and determine whether the state is violating the Americans with Disabilities Act.

In his letter to the state, Jonathan Smith, chief of the Special Litigation Section for the U.S. DOJ Civil Rights Division, wrote: “We have received information from the State and other sources that indicates that Oregon is committing funds to increase institutional capacity while simultaneously making substantial cuts to the budget for community mental health programs. Such budgetary re-allocations in favor of institutional care would appear to run afoul of the ADA’s integration mandate.

“We also have received information that indicates that Oregon fails to serve individuals with mental illness, both those confined to and discharged from OSH, as well as those at risk of being institutionalized, in the most integrated setting appropriate to those individuals’ needs. It appears that the lack of appropriate community-based services may be a primary cause of these problems, and our investigation will include an examination of these issues.”

Richard Harris, director of the state Addictions and Mental Health Division, said in a Friday interview that he disagreed with certain aspects of the letter written by the federal lawyer. But he concurred with its main thrust: Oregon hasn’t adequately funded community-based services.

“I think it’s got some slightly misleading points to it,” Harris said about Smith’s letter. “But, in general, it points us in the direction of how we need to perhaps make a bigger investment in the community services.”

Harris added: “Sometimes, people think the only interest this office has is in the hospital. I have a wide interest in making sure we have adequate community-based services because the hospital in many respects, although important, is not the correct tool to deal with mental illness in the community. Truly, an effective mental health system has to be in the community. We can’t have the hospital as the only tool.”

Any proposals to spend more money on community mental services could face a challenge next year in the Legislature because of stark budget realities. Lawmakers face a projected $3 billion shortfall in the 2011-13 budget cycle, which starts July 1.

Deep cuts in community services were outlined in budget-cutting scenarios recently drawn up by mental health administrators at the request of outgoing Gov. Ted Kulongoski.

Harris described the proposed cuts as a starting point for upcoming budget talks, not the final word.

“Look, we have a huge budget problem to cope with,” he said. “The governor’s requested budget, which has these 25 percent reduction scenarios in them, is one budget. The Legislature is going to ask us to produce another budget. Gov. (John) Kitzhaber is undoubtedly going to give us direction about how to do these reductions. So I’m not banking on those reductions as the final word on this. We’ve got a lot of road to travel.”

Advocates for the mentally ill say Kulongoski and state legislators have neglected community mental health programs amid the state’s push to build two new psychiatric hospitals to replace the dilapidated and obsolete 127-year-old institution in Salem.

The Oregon State Hospital bell choir performed at a dedication ceremony in the new building.

The Oregon State Hospital bell choir performed at a dedication ceremony in the new building.

In an interview Friday, Senate President Peter Courtney, D-Salem, defended the decision to build two new hospitals, and he said the state is making a “good-faith effort” to fix the mental health system.

“Give us some credit here,” he said. “We’ve really made a good-faith effort to start to move in so many directions. There’s only so much time and money, and only so much you can do given how far behind you were. There was no conscious decision to neglect anything. We know we have a major community mental health component we have to deal with, have to fund, and make sure we’re doing it right.”

Courtney hedged his assessment when asked whether the new governor and the 2011 Legislature would increase funding for the community mental health system.

“I’m just going to say, obviously, community mental health is going to be a focus,” he said. “The new hospital in Junction City is going to be a focus. And completion of the state hospital (in Salem) is going to be a focus.”

Bouneff sees it differently. He hopes the expanded federal investigation will prompt state officials and lawmakers to cancel construction of the planned Junction City hospital.

As it stands, state plans call for building a 360-bed hospital on state prison land in Junction City after the new hospital in Salem becomes fully operational late next year.

Combined construction costs for the two new hospitals are $458 million. Bouneff contends that state money required to operate the Junction City hospital, estimated at more than $110 million a year, would be better spent on community programs and services.

“Frankly, we have an opportunity here, in the midst of a budgetary crisis, to think differently,” he said.

Bouneff criticized Courtney’s staunch backing for the Junction City hospital.

“There are good things about Sen. Courtney being hard headed. One is certain things get done,” he said. “Certainly the new Oregon State Hospital got done in large part because he was hard headed. But then you wonder about his tenacity in going after Junction City when he and others will not stop and ask the question that is most pertinent: Do people in the state hospital really need to be there?

“I don’t hear the senator talking about those things, and it’s very frustrating. We just keep building institutions, and the federal government is going to come in here if we keep going down that path and force our hand. And then we don’t have control.”

The story so far

The basics: The new hospital in Salem that will replace the 127-year-old Oregon State Hospital is the first of two new mental hospitals planned to replace the existing facility, which was deemed obsolete and unsafe by state-hired consultants in 2005.

Phased construction of the 620-bed Salem hospital, described as “world class” by state officials, will be followed by construction of a 360-bed or smaller hospital in Junction City.

What’s new: Federal investigators have notified Oregon officials that they are expanding a four-year investigation into patient care and conditions at Oregon’s main mental hospital. The widening federal investigation will examine community-based mental health programs and services for people coming out of the hospital and those at risk of being institutionalized.

What’s next: State officials have pledged to cooperate with the federal investigation.

The costs: Budgeted costs for building the two hospitals are $458 million.

As approved by the Legislature, state financing for construction costs comes through the sale of certificates of participation, or COPs. COPs commonly are used in Oregon to pay for new public buildings. COPs are sold to investors whose interest income is exempt from state and federal taxes.

Unlike construction costs, operational costs draw on the state’s general-fund budget, which pays for a wide range of programs and services, including schools, prisons and social services.

Critics say: Mental health advocates have criticized the state’s two-hospital construction program, saying that staffing and operating costs for two new hospitals will drain the mental health budget, leaving scraps for long-underfunded community mental health programs. Advocates also doubt the new hospitals will produce lasting reforms in patient care.

Junction City debate: Advocates plan to take their case for canceling the Junction City project to the 2011 Legislature, which convenes in January.