By Martha Bellisle
The Associated Press
SEATTLE — Three years after a federal judge said Washington state is violating the constitutional rights of mentally ill people who must wait in jails for weeks for competency services, and two years after the judge held the state in contempt for failing to fix the problem, a settlement is in the works.
The settlement between Disability Rights Washington and the Department of Social and Health Services would require the agency to admit that it has failed to resolve the years-long problem, according to a summary of the agreement’s key points acquired by The Associated Press.
“Defendants acknowledge and accept that there has been a systemic failure, of which DSHS plays but a part,” the tentative agreement says. “Any solution will require systemic ownership of the failure to fix the problem. Solutions must be creative and may need to challenge the status quo.”
Fines at $59.45 million
The contempt-of-court fines the state has been ordered to pay over the past two years for forcing people to wait extended periods for services reached $59.45 million this month. The state is also on the hook for $2.34 million in attorney’s fees, according to Kathryn Leathers, a lawyer for Gov. Jay Inslee.
The proposed settlement lays out a list of goals the state must achieve. If the Legislature doesn’t allocate the funds needed to achieve the goals, “plaintiffs may seek remedies from the court.”
Both sides will meet through July to secure the ultimate agreement by Aug. 10 in hopes of submitting it to the judge in October, said David Carlson of Disability Rights Washington. The plan is to have the details worked out in time to be included in the governor’s proposed budget for the 2019-2021 biennium.
Disability Rights Washington sued the agency and the state’s two psychiatric hospitals in 2014 on the behalf mentally ill people who had been arrested and forced to wait for extended periods to receive a court-ordered competency evaluation. If the person was found incompetent to stand trial, they often had to wait additional weeks or months to receive mental health treatment to help them regain competency.
After a trial in 2015, U.S. District Judge Marsha Pechman said the state “is violating the constitutional rights of some of its most vulnerable citizens.”
“Our jails are not suitable places for mentally ill to be warehoused while they wait for services,” Pechman said in her order. “Jails are not hospitals, they are not designed as therapeutic environments, and they are not equipped to manage mental illness or keep those with mental illness from being victimized by the general population of inmates.’
Waiting beyond limits
A year later, mentally ill people were still waiting in jails beyond the seven-day and 14-day limits set by the court, so Pechman found the agency in contempt and ordered it to pay fines for each day a person waits for services ranging from $500 to $1,500 per day depending on whether the person is in jail or a hospital and whether they’ve waited more than two weeks.
The fines have averaged $3 million to $4 million each month. Although the funds must be used for competency services, people are still on waitlists.
In April alone, between 140 and 154 people were waiting in the state’s two psychiatric hospitals for evaluations and restoration services. Hundreds of other people waited in county jails across Washington. Some were held more than 100 days.
The settlement requires the state to seek funding to hire more forensic evaluators and to implement a phased roll-out of a community-based program to provide competency restoration treatment. The state must also open more forensic beds at its psychiatric hospitals and close to facilities in Maple Lane and Yakima.
The state opened those two facilities to help with the demand for services, but they were located in correctional-focused buildings, which resulted “in a design flaw that leads to the services being less therapeutic,” Carlson said.
Under the agreement, the state must also expand behavioral health crisis training for law enforcement and corrections officers.