Feds’ state hospital probe could make more headway with new governor

From the Salem Statesman Journal, December 18, 2010

Current governor had refused to meet with federal lawyers, but Kitzhaber might agree to a first face-to-face in February

Talks between state officials and the U.S. Justice Department are planned for early next year, opening a new, high-level line of communication in the expanding federal investigation of the Oregon State Hospital, records show.

Federal authorities have been investigating Oregon State Hospital for the past four years. The inquiry into conditions at the facility and care of patients is ongoing.

Federal authorities have been investigating Oregon State Hospital for the past four years. The inquiry into conditions at the facility and care of patients is ongoing.

Federal lawyers envisioned traveling to Oregon this week to brief governor-elect John Kitzhaber and state officials about the four-year investigation, according to recent e-mails and letters obtained by the Statesman Journal.

But state lawyers said the timing wasn’t right, and they persuaded the feds to delay the talks until after Kitzhaber takes office in January.

“I expect the governor-elect and his policy team may want to conduct a review of the state hospital matter that could have a significant impact on your investigation,” Kroger wrote in a Dec. 8 letter to Samuel Bagenstos, deputy assistant attorney general for the Civil Rights Division of the U.S. Justice Department. “However, no such review can take place until January at best, given the governor-elect’s need to appoint a new administration, deal with a massive state budget deficit, and develop a plan to jump-start the state’s ailing economy.

“Delay of these interviews until February will provide the Governor with sufficient time to get his administration started, to conduct any necessary review, and to identify senior members of his public health team.”

Amy Wojcicki, spokeswoman for the team that is working on Kitzhaber’s transition to the job he held from 1995 to 2003, declined to comment on Kitzhaber’s potential participation in the upcoming talks.

“While the governor-elect is paying attention to the issue, all of the correspondence and contact has been between the Oregon DOJ and the U.S. DOJ,” she said. “So I would have to refer you back to Kroger’s office for any comment about what is happening.”

Kitzhaber, a medical doctor, has made health care a priority in his two previous terms as governor and during this year’s campaign.

Should he opt to meet with federal officials, Kitzhaber will break new ground in the protracted investigation of Oregon’s main mental hospital.

A history of warnings

Outgoing Gov. Ted Kulongoski previously turned down a federal invitation for a face-to-face discussion of the investigation, which began in June 2006.

In 2008, the Justice Department warned Oregon that patient care and conditions at the state hospital violated patients’ rights and jeopardized their safety. State and federal lawyers have been in negotiations since then to reach a settlement on hospital reforms and head off a lawsuit. But no agreement materialized.

Last month, on the eve of the dedication of the new Oregon State Hospital being built in Salem, federal officials indicated they are expanding the investigation.

In addition to scrutinizing care and conditions inside the hospital, the Justice Department plans to look at community-based programs and services for people coming out of the hospital and those at risk of being institutionalized.

Early this month, federal officials informed the state that they wanted to spend Dec. 13-17 in Oregon and meet with a handful of state officials including Greg Roberts, OSH superintendent; Richard Harris, director of the state Addictions and Mental Health Division; and Mary Claire Buckley, director of the state Psychiatric Security Board.

As another part of their visit, federal officials planned “a listening tour to meet with a wide spectrum of stakeholders of Oregon’s mental health system.”

State lawyers nixed any high-level talks until Kitzhaber takes office.

“Oregon will not produce state officials for interviews next week,” John Dunbar of the Oregon Attorney General’s office stated in a Dec. 7 e-mail to the U.S. Justice Department.

“As we’ve discussed, given that a new governor is about to take office, we believe that the interviews should take place in February,” he said. “Going forward, we also request more notice than was provided last week. Like you, we desire a cooperative relationship as we move forward, and we look forward to having one.”

Oregon’s snub prompted a chilly response from the feds.

“Regrettably, the state now refuses to schedule any meetings with any state officials at any point during our weeklong visit,” Robert Koch, an attorney in the Special Litigation Section of the U.S. Justice Department wrote in a Dec. 8 letter. “Instead, the state asked that we delay our trip until February 2011.”

Kroger stepped in to the back-and-forth correspondence Dec. 8. He thanked federal officials for delaying the talks until February.

The next day, Kroger e-mailed Thomas Perez, head of the Justice Department’s Civil Rights Division, offering to meet with Perez in January, either in Portland or Washington, D.C., to discuss the investigation.

“It would be very helpful to me to get a better sense from you of the concerns that drive the investigation and the types of outcomes you would like to see, so I can have more productive conversations with our new governor and legislative leadership,” he wrote.

Kroger is taking a role in the case because “he wants to do what he can to resolve this issue and help the incoming governor get up to speed,” Tony Green, Kroger’s spokesman, wrote this week in an e-mail to the Statesman Journal.

‘A bit more hopeful than I was’

Mental health advocates, who have criticized Kulongoski for his refusal to meet with federal officials, said they are encouraged by new prospects for talks between state and federal officials.

“I hope this does signal a change,” said Chris Bouneff, executive director of Oregon NAMI, a chapter of the National Alliance on Mental Illness. “(Kulongoski) was so adverse to even talking that it’s led to nothing being done or things being done in a segregated manner.”

Bouneff and other advocates for people with mental illnesses maintain that the state spends too much money on hospital care and not enough on community-mental health services, such as outpatient care, intensive case management, supported housing and employment programs.

Bouneff pointed to a recent settlement between the U.S. Justice Department and the state of Georgia as a model for resolving the federal investigation of the Oregon State Hospital. Settlement terms called for Georgia to expand its community mental health services during the next five years.

“The agreement DOJ got in Georgia was perfect for what that state needed,” Bouneff said. “I’d love to see something for Oregon that’s comprehensive, too, and meets our needs. One of the attorneys who wrote the Georgia settlement is now assigned to Oregon, so I’m a bit more hopeful than I was.”