Law Firm Blog - State Hospital Accused of Cover-up | Eytan Nielsen
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State hospital accused of cover-up, violating inmate evaluation agreement

Dozens of Coloradans accused of crimes are spending months behind bars while awaiting competency exams and treatment

By Jordan Steffen
This article originally appeared in the Denver Post on October 22, 2015
To view the original article, click here

Jim Lynn is overwhelmed with guilt for the phone call he made in April. Out of options and again facing his screaming, schizophrenic son, Lynn had hoped his 911 call to the sheriff’s office finally would lead to treatment. Instead, his 35-year-old son was taken to jail and ruled incompetent to participate in court proceedings. Now, months later, he remains behind bars without the treatment the state says he needs and without a clear idea of when he might get it.

Lynn’s son is one of an estimated 100 inmates — none yet convicted of the charges — who have been forced to wait as long as 140 days for court-ordered mental health evaluation and treatment, according to attorneys handling a lawsuit against the state.

Those attorneys accuse the Colorado Department of Human Services of grossly violating a federal court settlement designed to reduce such wait times. They also accuse CDHS of providing misleading or false data to cover up the backlog of inmates waiting for services.

“It never should have slipped through the cracks this badly,” said defense attorney Iris Eytan, who handled a lawsuit against the department in 2011.

Department officials acknowledge missing deadlines and making mistakes in tracking inmates, but they say they have taken steps to fix the errors. They deny violating an agreement reached in 2012, and they disagree with the number of inmates attorneys say are awaiting evaluation and treatment.

That compromise, thought to be the first of its kind, was meant to ensure that hundreds of criminal defendants spend less time waiting for state doctors to determine whether they’re fit to continue their cases and to provide treatment if they are not.

Dr. Patrick Fox, chief medical officer for the Human Services Department, stopped short of using the phrase “wait list” when describing the queue of defendants waiting for evaluations and treatment. He said the issue is not a result of negligence, nor is it unique to Colorado.

“This is not a new situation,” Fox said. “We’ve known for years that the number continues to rise, and what we saw was a more pronounced rise more recently.”

The department handled 1,533 competency evaluations last year, Fox said.

The number of competency evaluations ordered by judges has more than doubled over the past decade. In the past two years, the number of evaluations increased by 19 percent, according to data the department supplied in a funding request.

In addition to the “unrelenting” increase in evaluations, a recent shortage of health care workers has made it difficult for the department to retain a full staff at the Colorado Mental Health Institute at Pueblo, Fox said.

The allegations that the department violated the agreement and provided misleading data are the latest in a long list of complaints lobbed at the embattled department and its executive director, Reggie Bicha. More than 80 lawmakers submitted a letter to the governor this year expressing displeasure with Bicha’s leadership and frustration with a list of issues at the department.

Lynn’s son, who faces three misdemeanor counts after becoming verbally abusive toward his father, was found incompetent in August. He is waiting for a bed at the state hospital or in a jail-based program where he will undergo what’s known as “restoration” treatment to ensure he can understand and participate in his defense.

“First, they said September, then November, and now it’s December,” Lynn said.

A judge, defense attorney or prosecutor may request a competency evaluation if they believe the defendant is unable understand the proceedings. If a judge orders an exam, all proceedings stop and an evaluator will try to determine whether the defendant is mentally competent to continue.

Delays in completing the evaluations can stall even routine cases for months.

Human Services has been sued twice for failing to complete the evaluations in a timely manner. The most recent lawsuit, filed in 2011 by The Disability Law Center, ended in the 2012 settlement agreement. The agreement requires the department to complete in-jail evaluations 30 days after they are ordered or admit people to the state hospital for in-patient evaluations within 28 days.

If defendants are found to be incompetent — such as Lynn’s son — they must be admitted to the hospital or an in-jail treatment program within 28 days. The department also must submit monthly reports to the law center detailing when the evaluation or treatment began for each defendant.

For three years, the reports reflected a system that operated like “clockwork,” Eytan said. But a call this past summer revealed something not found in any of the data.

Two men in different counties were marked as having undergone evaluations this summer. But by fall, neither had seen a doctor, Eytan said. A different defendant waiting for restoration treatment was not listed on any of the reports.

The inconsistencies continued to pour in.

Fox said the department first noticed challenges to meeting the deadlines in June. On Aug. 3, the department notified The Disability Law Center that “circumstances beyond their control” were preventing them from meeting the deadlines set in the agreement and asked for a temporary waiver, according to a letter the law center sent the department in September.

But the law center questioned the department’s reasons for failing to meet the deadlines and accused the state of knowing about the increasing backlog for months. The hospital’s monthly reports appeared to “have contained false and misleading data designed to keep the problem from the eyes of the monitor.”

If the state fails to meet the deadlines in the agreement, the law center threatened to file a motion of contempt in federal court.

“The Disability Law Center’s concerns about the data surrounding this issue coincided with our own and we have made appropriate corrections to ensure we have accurate data,” Alicia Caldwell, communications director for Human Services, said in a statement. “We have a plan that we think will get us back on track and we are moving in that direction.”

Citing the pending litigation, Human Services declined to provide The Denver Post a copy of the plan it submitted. But a large portion of that plan was boosted by the $2.7 million lawmakers approved last month, Fox said.

The funds will be used to hire psychologists to perform the evaluations and add 30 beds to the jail-based restoration programs. According to the funding request, it costs about $676 per day to house someone at the state hospital, compared with roughly $307 per day in the jail-based programs.

It would cost the state $4 million to fund the additional beds and psychologists for the following year, according to the request.

Still, the number of criminal defendants in need of mental health evaluations is a national issue and is only going to increase, said Dr. Neil Gowensmith, who teaches at the University of Denver and works at its Forensic Institute for Research Service and Training.

“I think the majority of the problem is people are sicker and sicker,” Gowensmith said. “They’re falling through the cracks and are unfortunately coming into the criminal justice system.”

In April, a federal judge in Washington ordered the state’s Department of Social and Health Services to comply with deadlines requiring them to complete competency evaluations seven days after they’re ordered. They must also admit defendants into restoration programs seven days after the treatments are ordered.

Gowensmith testified on behalf of the Washington department, warning that seven days is not enough time to complete an accurate competency evaluation. Still, there are several systemic issues that need to be addressed to improve how competency evaluations are done in Colorado, he said.

“None of these are easy, and none of these are quick,” he said.

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