SEATTLE — A lawsuit alleging that Oregon fails to take care of psychiatric patients advanced Wednesday, with lawyers presenting arguments to the U.S. Court of Appeals for the Ninth Circuit.
Four Oregon hospital systems — Legacy Health, Providence Health & Services, PeaceHealth and the St. Charles Health System — are suing the Oregon Health Authority, saying the state fails to provide proper treatment for people with severe mental illness.
The hospital systems’ case was previously dismissed by a district court judge, leading to the appeal.
Michael Gillette, an attorney representing the hospital systems and a retired justice of the Oregon Supreme Court, said Oregon’s rejection of its mental healthcare responsibilities is a problem that’s grown for decades that won’t be cured until OHA is forced into action.
“This [lawsuit] is an honor we just as soon have skipped, but somebody with a conscience needs to do this and we are in the business of trying to help those who can’t help themselves,” Gillette said on Wednesday.
The case hinges on Oregon’s obligation to provide suitable mental healthcare via civil commitment and the reliance on hospital systems to keep psychiatric patients when state beds and care options aren’t available.
In the complaint, the four hospital systems say they provide about 57% of Oregon’s psychiatric beds — but they are designed to provide acute care, not long-term mental healthcare.
Gillette said Oregon’s decision to reject admission of civilly committed patients has forced hospitals to ‘maintain’ patients in substandard settings while occupying needed bedspace at local hospitals.
“We are not built for and not staffed for dealing with people who require the long-term care and the special individualized attention that’s necessary in order to help these people return to society and be useful,” Gillette said.
Dustin Buehler, an attorney representing the Oregon Health Authority, started his arguments by saying many states face longstanding challenges in providing adequate care for civilly committed individuals.
Judge William Fletcher quickly challenged Buehler on his characterization of the problem.
“It’s a challenge because Oregon is not stepping up to the plate,” Fletcher said. “It’s a challenge because Oregon is not fulfilling its responsibility and then we’re trying to figure out how do we deal with that.”
Buehler explained that from OHA’s perspective, the hospital systems have continuously sought certification to provide acute care services knowing that they would need to also provide long-term care at times, based on the state’s limited capacity.
“They have sought to provide acute care services because there is a business advantage in doing so,” Buehler said. “They’ve done that with the full knowledge that the bitter comes with the sweet, so to speak…when you keep re-upping every two years, that start to look like a voluntary business arrangement.
He criticized the timing of the hospital systems’ lawsuit while acknowledging the strain the current system places on them.
“It’s not like we have animus to these hospitals,” Buehler said. “But at some point, it’s kind of the ‘Casablanca shock to find gambling scenario’ — where they knew about this for years and so to seek redress for it seems a little disingenuous.”
Gillette said it is strange to suggest that the hospital systems are stopped from filing a lawsuit because they ‘put up with this nonsense for all these years,’ which prompted a clarifying note from Judge M. Margaret McKeown.
“I think what he’s saying is every time you sign the certification, you knew that you were going to be housing these people for longer, so it’s kind of like beating yourself up but you keep signing the certification.”
Gillette responded with a quip expressing the hospital systems’ frustration that sparked a laugh from McKeown.
“Alright, that may be, but if it was an exercise in self-flagellation, we’ve quit,” Gillette said.
The hospital systems are not seeking compensation or financial damages through the lawsuit, Gillette said, only for the OHA to work out a way to start taking care of all patients in need of long-term mental healthcare instead of ‘warehousing’ them in acute care settings.
“We’re advocating for a single thing, for OHA to get on its horse and do something,” Gillette said. “The idea here is that if the [best] care we can provide is to advocate for them getting care somewhere else, then that’s the care we’re going to advocate for — that’s still part of our mission.”
Buehler questioned the hospital systems’ motivations in bringing forth this legal challenge, saying they have a financial incentive in transferring out psychiatric patients.
Medicaid and private insurance providers often don’t pay for long-term rehabilitative psychiatric care. Buehler said this means the hospital systems aren’t necessarily the best advocates for the interest of patients, referencing a Disability Rights Oregon briefing that makes a similar point.
“If the goal is to transfer them out, we’re in a system where there are not an adequate [number of] beds, meaning there’s no guarantee that they’ll go to a place that is a good as their current placement is,” Buehler said.
Judge Fletcher pointed out there is a conflict between OHA’s priority of criminal case admissions over civil commitment admissions, as KGW has noted in its reporting.
He said the purpose of this lawsuit seems clear to him.
“To somehow force Oregon to start spending money to provide appropriate placement that Oregon has so far been unwilling to spend,” Fletcher said.
Judge John B. Owens closed the hearing by thanking both attorneys for their advocacy in a “very interesting and challenging case.”
According to the Clerk of the Court, there is no specific timeline for when the 9th Circuit judges will provide their opinion on this case.
