WA still too slow with mental health services for people in jail, judge told

A federal judge is being asked to weigh in on whether Washington state’s social services agency should face consequences for major delays in providing mental health services to people in jail.

Disability Rights Washington has filed a motion in federal court alleging the Department of Social and Health Services is in breach of a 2018 settlement to provide timely competency restoration services to thousands of people waiting in jails. The nonprofit civil rights group is asking the court to consider reinstating fines and using other means to compel DSHS into compliance. 

These defendants either don’t understand the charges against them or can’t assist their attorney in their defense; in both cases, they are entitled to an evaluation by a mental health professional who determines whether they’re competent to stand trial. If they aren’t, the state is obligated to provide psychiatric services intended to restore their competency before their cases can move forward.

At a Wednesday meeting with DRW and state parties, U.S. District Judge Marsha Pechman described the new motion as “very serious” and said she expects to schedule a hearing to examine evidence and hear testimony as soon as February.

The state has long struggled to transition people from jail to these services. Under the settlement in the federal court case known as Trueblood, the state is required to begin providing mental health care no later than seven days after their competency evaluation. In recent years, though, wait times have ballooned into weeks or months while people are stuck in jail. As of October 2022, DRW says, wait times for mental health services had reached an average of 83 days.

Washington is building a new 350-bed facility on the Western State Hospital campus that could ease wait times, but construction won’t be completed for several years. Meanwhile, the state shuttered wards to make way for the new facility, but hasn’t yet opened enough new mental health beds in communities to make up for the closures. 

Demand for these competency evaluations and mental health services is only getting worse, DSHS data suggests. In 2022, for instance, there were 2,397 orders for competency restoration services, 37% more than the year before. 

In a response to DRW’s motion, DSHS said last week that it is investing hundreds of millions of dollars and making progress toward its commitments, but that the settlement would take years to fulfill. 

A surge of people too sick to ever stand trial who’ve been ordered into state psychiatric hospitals — known as “civil conversion” patients — are taking up beds that would otherwise be used for competency restoration, the state agency added.

The state should have foreseen the bottleneck caused by a rise in civil conversion patients, said Kimberly Mosolf, of DRW.

“This was like a freight train coming down the tracks,” she said. “No way could you convince me that this was not absolutely foreseeable and preventable, and that the state has continued to move forward with this plan without really having enough beds or other options for this population while closing those beds at the hospital.”

The bottleneck isn’t a surprise, but, “the level of demand is perhaps higher than was anticipated,” said DSHS spokesperson Tyler Hemstreet. 

On Wednesday, DSHS officials acknowledged the new Western State facility will take years to complete, but said that two new wings — totaling 58 new competency restoration beds — may open as early February or March. And a new 16-bed residential treatment facility is expected to open in Thurston County in February, said Hemstreet, which would divert civil patients from Western State to make more room for those who need competency restoration.

The dispute stems back to 2014 when Disability Rights Washington sued — and in 2015, won — a case that compelled Washington to provide timely competency evaluations and treatment to people held in jails. Pechman has twice found the state in violation of the 2015 order, with related fines reaching into the tens of millions of dollars.

In 2018, Pechman approved a settlement between DRW and DSHS that was intended to force the state to comply. The settlement requires Washington to add competency restoration beds, and to reduce the number of competency evaluation orders by bolstering outpatient programs, among other things. In exchange, contempt fines continue to accrue, but the state can avoid paying them if they’re complying with the settlement.  

The latest motion from DRW asserts the state is failing to meet its obligations, and asks the court to reinstate those fines.

King, Snohomish and Pierce counties are also joining the fight, and filed a brief last week detailing costs to county governments and local taxpayers as delays in competency restoration services reach new heights. For example, the counties wrote, county jails are where defendants languish as they wait for services. And counties are responsible for hiring and maintaining designated crisis responders, running Involuntary Treatment Act courts and contracting with behavioral health providers that offer court-mandated care. 

At the Wednesday meeting, Pechman outlined the questioning she may pursue during the hearing, including how much progress the state has made since the 2015 decision, how the state makes decisions about placing people at state hospitals and why the state has struggled to expand its competency evaluation workforce. 

“One of the questions we’re going to have to answer is, is it too little, too late,” Pechman said.