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The Honolulu Advertiser
Posted on: Thursday, March 23, 2006

New mental-health sanctions?

By Ken Kobayashi
Advertiser Courts Writer

U.S. Justice Department law-yers are asking a federal judge to impose sanctions on Hawai'i for what the attorneys say is the failure by state health officials to implement key portions of a community plan to serve Ha-wai'i's thousands of seriously mentally ill residents.

The attorneys did not specify what sanctions U.S. District Judge David Ezra should impose to get the state to comply with the plan. Assistant U.S. Attorney Harry Yee said they will leave it to Ezra to determine what they ought to be. Ezra scheduled a hearing on the request for today.

Under the law, the judge's options include ordering the state to pay fines, imposing a specific timetable for state compliance, and extending federal oversight that is supposed to end Nov. 30.

At stake is the state's ability to provide resources, including housing and services, to more than 9,000 seriously mentally ill residents.

State lawyers called the request "extraordinary" and opposed the imposition of any sanctions.

In 2002, the state agreed to implement the community plan, an offshoot of the Justice Department's lawsuit alleging violations of civil rights of patients at the Hawai'i State Hospital. As a result of the lawsuit, the Kane'ohe facility fell under a federal consent decree.

The hospital emerged from the decree in late 2004, but the federal jurisdiction continued over the state to implement a plan to provide services for residents diverted from the state hospital or discharged from the facility.

The Justice Department's request is based on a stinging report last month by U.S. Magistrate Judge Kevin Chang that essentially said the state's failure to develop the plan has led to overcrowding at the state hospital. He warned the the overcrowding could negate the accomplishments that enabled the hospital to emerge from the federal oversight.

As part of an agreement in October with the Justice Department, the state would try to meet a June 30 deadline to be in compliance with the plan. The agreement also calls for an end of federal oversight by Nov. 30.

Justice Department lawyers agreed with Chang that the state has failed to implement essential parts of the plan to the point it is in jeopardy of meeting the June 30 deadline.

They said the state is not implementing community services for former patients under court jurisdiction in connection with criminal cases, is not properly overseeing the discharge of patients, and is not setting up an organization chart in the Health Department's adult mental-health division.

They cited three cases that highlight the lack of services a former patient disappeared 90 days after his discharge from the hospital, another former patient was homeless within 12 days of discharge, and a third former patient died three days after discharge from the acute psychiatric unit of a community hospital.

The result of the state's noncompliance with the plan, the Justice Department attorneys said, was overcrowding at the hospital that led to a reported rise in patient assaults and the closing of the facility's primary treatment vehicle the "Treatment Mall." The lawyers also said patients slept on mattresses on floors and that they lacked proper bathroom and shower facilities.

The state attorney general's office said health officials are committed to implementing the plan, but Justice Department lawyers knew last year it was "unlikely" the Health Department would be in substantial compliance by June 30.

The state lawyers said the increase in the number of patients has been a concern for health officials for months. The patient population began to "spike" in the second half of last year because of re-admissions by patients who had been acquitted of crimes by reason of insanity and released from the hospital, they said.

Another reason was an increase in patients with mental problems related to the use of crystal methamphetamine, the lawyers said.

The state attorneys argued that sanctions are not warranted, pointed to progress made in implementing the plan, and suggested the Justice Department failed to distinguish between what is ordered and what is suggested under the plan.

The Justice Department's request "points out all too clearly the inherent difficulty in using negative reinforcement, or sanctions, as a tool to enforce the many complex and often ambiguous provisions of the community plan," they said.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.