CRIPA, Olmstead, and the Transformation of the Oregon Psychiatric Security Review Board

Olmstead v. L. C. by Zimring

Olmstead is a 1999 Supreme Court decision based on a section of the Americans with Disabilities Act (ADA), which focused on the rights of disabled persons receiving services in public institutions. The case involved two developmentally disabled women who had been voluntarily admitted to one of Georgia's state hospitals. Eventually, the hospital's treatment staff determined that each could be cared for in the community, but the two remained in the hospital. The suit was brought against the state of Georgia because of the state's failure to provide community care for these women.

Justice Ginsburg, writing for the majority stated:

Specifically, we confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes. Such action is in order when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities [Ref. 3, p 587].

Olmstead provided the key legal framework regarding the question of release of institutionalized persons from state facilities. The decision rapidly became the central focus of the action agenda of national and state disability rights organizations. State hospital beds, which had been on a rapidly decreasing pathway from the highs of the mid-1950s,⁴ continued to decrease following the decision, although on a less steep trajectory.⁵

In 2003 the Olmstead decision had an impact on Oregon's state hospitals. At that time, the state entered into a settlement agreement with Disability Rights Oregon in a class action lawsuit alleging that the state had failed to provide community resources necessary to allow members of a class of “civilly committed adults” to be treated in the community. The settlement applied to Oregon's state hospitals and to those who “had not been discharged within 90 days of the ready-to-place determination of their Treatment Team.”⁶ In the settlement, the state agreed to develop the additional community resources necessary to accommodate the class.

The 2008 U.S. presidential election greatly influenced the policies of the DOJ. In the last month of the Bush administration, the Civil Rights Division reached CRIPA settlements with six states. These settlements were criticized as being weak.⁷ In 2009, on the 10th anniversary of Olmstead, President Obama issued a proclamation launching the Year of Community Living, which focused on increasing the availability of community options for disabled persons. The President stated:

The Olmstead ruling was a critical step forward for our nation, articulating one of the most fundamental rights of Americans with disabilities: Having the choice to live independently …I am proud to launch this initiative to reaffirm my Administration's commitment to vigorous enforcement of civil rights for Americans with disabilities and to ensuring the fullest inclusion of all people in the life of our nation.⁸

Following the President's proclamation, the DOJ issued a technical assistance guide to help individuals understand their rights and “to assist state and local governments in complying with the ADA.” This document states that the DOJ “has made enforcement of Olmstead a top priority” which “reaffirms its commitment to vindicate the right of individuals with disabilities to live integrated lives under the ADA and Olmstead.”⁹

This technical assistance document also recognized the role of a federally created “independent protection and advocacy system” to protect the rights of persons with disabilities. The representative of this system in Oregon is Disability Rights Oregon (DRO).¹⁰

On October 10, 2010, the DOJ and the state of Georgia signed a comprehensive agreement pertaining to patients in its hospitals for the mentally ill and developmentally disabled.¹¹ The settlement expanded the CRIPA agreement, made in the final week of the Bush administration, which focused on improved hospital conditions in Georgia's state facilities. Based on Olmstead, the new agreement focused on the significant expansion of the state's community mental health services with the goal of rapid deinstitutionalization of those patients ready for discharge. The parties also agreed that the state would develop stronger community crisis services to avoid future hospitalization.

Soon after the Georgia settlement, the DOJ wrote a letter to the state of Oregon expanding its CRIPA investigation to determine how the state was complying with the Olmstead decision.¹² This letter added emphasis to the portion of the original 2008 DOJ-CRIPA findings letter that dealt with hospital discharge.

The Oregon Response

The State of Oregon responded to the DOJ investigation by developing plans to rectify deficiencies cited in the DOJ's findings letter. The state's responses are detailed in two documents: the first, its response to each of the major DOJ findings,¹³ and the second, a chronology (from January 2004 through February 2010) outlining the major interactions between the state and the DOJ.¹⁴ The 2007 Oregon legislature took significant steps to improve OSH by authorizing the development of two new state hospitals. The first, opened in early 2011, is a 600-bed hospital located on the OSH campus in Salem, and the second is slated to be built in Junction City just north of Oregon's second largest city, Eugene, to be opened in 2013. In addition to new hospital construction, the 2007 legislature authorized significant increases in OSH staffing for both nurses and psychiatrists and approved funding for an extensive program improvement plan.

From 2007 to the present time there have been problems in OSH's implementation of its improvement plan, including a patient's death in 2009 that resulted in a second DOJ visit and an additional letter of concern. However, the state has made a genuine effort to address the findings outlined in the CRIPA letter. The chronology cited above indicates that in 2008 the DOJ and the state were in the process of negotiating a possible settlement agreement. An entry dated April 15, 2008, noted that the state “agrees to every substantive term in the USDOJ's proposal, but disagrees on two points: filing of the agreement in federal court; and including community issues in the scope of the agreement.”

The Psychiatric Security Review Board

The 1977 Oregon legislature created the PSRB, and it began functioning on January 1, 1978. From that date to the present, the PSRB has been responsible for the monitoring of all persons found guilty except for insanity³ by Oregon's trial courts who continue to be mentally ill and dangerous. Guilty except for insanity is Oregon's term for the insanity verdict. It has the same consequences as not guilty by reason of insanity in other jurisdictions.

Over the years, I along with others have written extensively about the functioning of the PSRB^15,16 and about the case law related to it.¹⁷ It is beyond the scope of this commentary to describe the PSRB in detail. That will be the subject of a forthcoming empirical summary of the Board's activities from its inception in 1978 to 2012. In brief, the PSRB has the following features; a five-member board, replacing approximately 85 trial court judges making decisions about the hospitalization or release of insanity acquittees; a jurisdictional limit to the time that an individual can be under the board's jurisdiction¹⁸; an extensive system of monitored conditional release based on individualized conditional release plans; and the option for prompt revocation of conditional release. The PSRB also has the statutory responsibility to discharge an insanity acquittee at any time during the jurisdictional time period if they find at a hearing that an individual is no longer mentally ill or dangerous.

It is important to understand the scope of the PSRB program at the time that the 2011 Oregon legislature considered the two bills that would significantly alter the PSRB's enabling statutes. On the last day of 2011, the PSRB had 731 insanity acquittees under its jurisdiction. Of these, 318 (44%) were hospitalized at OSH, and 413 (56%) were on conditional release, with 403 (98%) residing in various living situations in Oregon. In 2011, Oregon judges committed 60 new insanity acquittees to PSRB jurisdiction, 6 (10%) after misdemeanor offenses. During this year, 70 individuals were discharged from PSRB jurisdiction: 47 (67%) because PSRB jurisdiction had lapsed, 17 (24%) after board findings that they were no longer mentally ill or dangerous, and 7 (10%) who died in 2011. There were no suicides, and no serious crimes reported for those on conditional release. During the year, 27 individuals had their conditional releases revoked. Finally, in 2011, the PSRB conducted 696 hearings, of which 312 (45%) were administrative reviews. It should be clear from this very brief review that the PSRB was responsible for a very large number of insanity acquittees with a slight majority on conditional release.

The 2011 Oregon Legislature

The Legislature concluded its session on June 30, 2011. Faced with insufficient revenues and heavy budgetary demands, the legislators made significant changes in the laws governing admissions to its psychiatric hospitals to reduce hospital census and perhaps to bring the DOJ investigations to a conclusion. It enacted two bills: HB3100 and SB420.¹⁹

Oregon generally has a deliberative legislative process that attempts to involve interested parties in the crafting and amending of bills. HB3100 is the product of just such deliberation. The bill has three components. First, it authorizes the Oregon Health Authority to develop a certification process for psychiatrists and psychologists who are participating in the evaluation of individuals for competency to stand trial or for criminal responsibility at the time of the crime charged. Second, the bill removes misdemeanor insanity acquittees from PSRB jurisdiction, but does allow judges to commit misdemeanants to the state hospital following successful insanity defenses if they remain mentally ill and a “substantial danger to others.”¹⁹ Finally, the bill provides for the hospitalization of those found IST only if the trial court determines that as a result of mental disease or defect they are dangerous to self or others, and as long as there are no services available for them in the community. Without a finding of dangerousness, those found IST are to be treated in the community.

The legislative process that led to the introduction of SB420 was atypical. In the midst of the legislative session and very close to the deadline for hearings on bills, the Chief Justice of the Oregon Supreme Court was asked by the Oregon Health Authority (OHA) (the parent agency of the mental health division) to convene a group to discuss further legislation involving the PSRB. As I understand it, the group was made up of representatives from the Governor's Office, OHA, and the Attorney General's Office, and a group of state legislators led by the Chair of the Senate Judiciary Committee. Also invited was the Executive Director of DRO and a representative from the Oregon District Attorneys Association. There were no representatives of other affected groups, such as the PSRB itself or the Oregon Psychiatric or Psychological Associations.

After several meetings, the group introduced a bill aimed solely at the PSRB. The Senate Judiciary Committee held a hearing that lasted six minutes. Without further debate, the Senate Judiciary Committee passed the bill and sent it to the Joint Ways and Means Committee for consideration of its potential fiscal impact. During the legislative process, OHA was not required to define the problems that it was trying to address.

The bill proposed to transfer the responsibility for all hospitalized insanity acquittees from the PSRB to the OHA, limiting the PSRB's authority and responsibility to those who are conditionally released. This change would amount to cutting PSRB's authority roughly in half. OHA would have complete jurisdiction over the hospitalized insanity acquittees and would have the power to release or discharge these individuals conditionally. Jurisdictional authority would pass between the PSRB and the OHA, depending on whether the person was in the hospital or community. SB420 placed the hospital superintendent in the key position of initiating conditional release or discharge. The bill required OHA to hold hearings for hospitalized insanity acquittees in lieu of the PSRB or a trial court judge and to follow all of the current law in considering conditional release or discharge. OHA would thus be placed in the position of both initiator of release and arbitrator of the release decision.

At the end of the legislative session, SB420 was on the fast track to approval. Only one amendment was considered. The Portland District Attorney proposed an amendment that would maintain PSRB jurisdiction over hospitalized insanity acquittees who had been charged with the most serious crimes. To get sufficient votes for passage of the bill, proponents agreed to an amendment that divided the crimes leading to the insanity verdict into Tier 1, the most serious crimes, and Tier 2, those crimes that were not Tier 1. With the new amendment, the bill had sufficient support to pass. The new bill went into effect on January 1, 2012, and at the end of that month, there were 734 insanity acquittees in Oregon. PSRB had 609 individuals under its jurisdiction in the hospital and in the community, whereas OHA had the responsibility for 125 hospitalized Tier 2 insanity acquittees.