Oregon hospitals’ effort to force state officials to provide care for severely mentally ill people — rather than make hospitals keep warehousing them — is entering round two, with additional legal arguments and new players.
Two years ago, Legacy Health, PeaceHealth and Providence Health & Services sued the state saying hospitals have been left to care for civilly committed patients in restrictive settings not designed for treatment. St. Charles Health System later joined the case. A federal judge struck the suit down, only to have it revived on appeal.
Now, in a revamped suit, the hospital systems are citing beefed up anti-discrimination rules issued by the Biden administration that reverse policies issued by the first Trump administration in 2020. The hospitals also have help from the Oregon chapter of the National Alliance on Mental Illness, and their arguments will be weighed by a different judge.
Federal Judge Michael Mosman, a former federal prosecutor whose rulings displeased the hospitals as well as some state judges and local officials, has been removed from the case as part of the District Court’s management plan and replaced by Judge Adrienne Nelson. Nelson began her career as a public defender in Portland before eventually rising to the Oregon Supreme Court.
State contends hospitals’ case is groundless
In a new Nov. 12 filing, the Oregon Health Authority is again arguing that the hospitals can’t legitimately argue on behalf of patients’ rights in court, and cites an earlier federal finding that civilly committed individuals do not have a right to “optimal treatment.”
If patients are not getting the right care, the filing said, it’s not because of discrimination but because of a lack of resources.
“Even if this Court were to order the declaratory and injunctive relief (the hospitals) seek, the likely outcome of this case will not change the shortage of treatment options and beds for civilly committed individuals,” lawyers for the health authority wrote.
They added that “civilly committed individuals do not have a constitutional right to optimal treatment or to treatment in the least restrictive setting.”
Hospitals hitch case to Biden rules
The hospitals are trying to force the state to provide community-based settings for severely mentally ill patients. Their suit claims that the health authority violated the federal law by failing to direct Medicaid funds toward adequate treatment options for civil commitment patients “in the least restrictive and most integrated setting.”
Rules issued by the U.S. Department of Health and Human Services earlier this year reiterated that state agencies and other federally funded providers cannot discriminate against patients. The office warned that “practices that result in the serious risk of institutionalization or segregation” of mentally ill people may run afoul of the law.
“Even if this Court were to order the declaratory and injunctive relief (the hospitals) seek, the likely outcome of this case will not change the shortage of treatment options and beds for civilly committed individuals.”
The hospitals blasted the health authority’s filing in a Nov. 13 joint statement provided to The Lund Report.
“Oregon Health Authority’s new motion to dismiss is further proof of the state’s disappointing stance on critical issues facing Oregon’s vulnerable population of civilly committed patients,” according to the statement. “Rather than work with community care hospitals and other stakeholders to improve care for civilly committed patients, OHA seeks to dismiss our lawsuit and silence our concerns.”
Oregon State Hospital overwhelmed
A major cause of the situation is that the Oregon State Hospital no longer accepts civilly committed patients. Because it lacks beds, it houses almost only patients accused of crimes who need treatment before they are deemed able to “aid and assist” in their own defense before a judge. That is the result of civil rights litigation brought on those patients’ behalf by Disability Rights Oregon and the nonprofit Metropolitan Public Defenders, to prevent people with mental illness from languishing in jail.
Now, the National Alliance on Mental Illness Oregon is backing the hospitals’ suit, arguing the rights of civilly committed patients have been ignored.
Health authority lawyers wrote in their filing that it has opposed NAMI Oregon’s involvement in the case because, so far, the group has not provided enough proof that it is suited to speak on behalf of civilly committed patients. If the court gives Oregon NAMI a formal role, the group would be better suited than hospitals to represent civilly committed patients, the state’s lawyers argue..
Chris Bouneff, executive director of NAMI Oregon, disputed the characterization that his group has not provided information on its membership. He told The Lund Report in an email that Oregon NAMI looks forward to making its argument in court.
The federal appeals panel in June said the question of whether the hospitals spearheaded by Legacy could sue on behalf of patients rested on how their requested remedy would play out.
“Whether Legacy Health System’s interests are sufficiently aligned with the interests of its civilly committed patients may depend on what outcome Legacy Health System in fact is likely to achieve in this litigation and whether that outcome would benefit the patients,” according to the appeals court ruling.
In a hearing in July, Nelson expressed interest in whether the state’s elected leaders were doing enough to tackle the behavioral health system and whether increased funding was actually leading to more treatment capacity.
“If they make this a priority and fully funded it,” she told the lawyers in the courtroom, “maybe no one would be here.”
Nick Budnick contributed reporting for this article.
