Charleston –  Disability rights advocates say that state-owned psychiatric hospitals in West Virginia are confining patients found not guilty by reason of mental illness for years after those patients are well, wasting millions that could be used reducing the need for inpatient psychiatric care in the first place.

"It's a major civil rights violation for these people," said  Jeremiah Underhill, legal director at Disability Rights of West Virginia, "and it's a major money drain for the whole mental health system."

In September of 2017, the federal Centers for Medicare and Medicaid Services stripped Sharpe Hospital, a state-owned psychiatric hospital in Weston, of its permission to accept Medicare and Medicaid, saying that hospital officials were failing to document in treatment plans that they were properly caring for patients. Earlier this month, officials at the state Department of Health and Human Resources announced that Sharpe Hospital had regained Medicare/Medicaid certification from federal health officials. 

After losing the funding, DHHR officials had moved forensic patients, meaning those found not guilty by reason of mental illness, to Sharpe Hospital, and moved Medicare/Medicaid patients to other hospitals that were still allowed to accept Medicare and Medicaid.

Underhill said that once his organization, a federally-funded nonprofit, began looking into conditions at Sharpe, they learned that for decades, West Virginia has held forensic patients at state-owned psychiatric hospitals for years at a time for no medical reason.

Underhill said that the state spends millions each year that could be spent instead on community mental health services. He estimated $4 to $8 million a year.

If a person in West Virginia engages in behavior that would typically be considered a crime, such as a robbery or violence, but is found not guilty by reason of mental illness, courts can keep that person in a psychiatric hospital for up to the maximum sentence for the crime.

According to state code, the chief medical officer of the psychiatric hospital is supposed to notify courts when patients found guilty by reason of mental illness are either no longer mentally ill or no longer a danger to themselves or others. Within 30 days, the court is supposed to hold a hearing to determine whether the person can be released to a "less restrictive setting."

In an email, Jason Parmer, staff attorney for Disability Rights of West Virginia, said that while the United States Supreme Court has held that people cannot be involuntarily committed unless they are “presently mentally ill and dangerous,” that West Virginia state law provides “no criteria for judges to follow when considering a less restrictive environment.”

He said he is “relatively certain that we are the only state in the country that confines forensic patients in hospitals without consideration of the basic requirement for all involuntary commitments – present mental illness and dangerousness.”

Parmer noted that from 1983 to 1994, physicians could discharge people from psychiatric hospitals without court approval, but West Virginia lawmakers removed that power in 1995.

“Not to confuse correlation with causation, but it’s probably more than a coincidence that the forensic population in hospitals has skyrocketed since judges were given the power to discharge," Parmer said.

According to a Nov. 17, 2008 report of the state's Comprehensive Behavioral Health Commission that was presented to the Legislature, Parmer said there were 16 forensic patients in fiscal year 1996 and over 110 11 years later. As of Sept. 26 of this year, according to Parmer, there are 319 forensic patients; 141 at Sharpe, 16 at River Park, 38 at Highland Clarksburg, and the rest in less restrictive placements.

Underhill said he believes elected judges are keeping people restrained in an effort to look "tough on crime." 

"These judges are too focused on what they did when that's not even a factor," he said. "It's are they well or not? It doesn't matter if they hurt somebody. It doesn't matter if they were part of the robbery of a bank. What matters is are they well, because they were not guilty by reason of mental illness."

Advocates at his organization have spoken to patients who weren't aware they were entitled to hearings.

"We're basically doing stuff that other states got sued for three decades ago," Underhill said.

Underhill recommended that state officials work with the state Legislature and Governor Jim Justice's office to give hospitals the ability to determine whether people are stable enough to re-enter society, not judges. He said that practice is wide-spread in other states. 

"The playbook, you don't have to write it," he said. "The playbook is there."

Underhill said he doesn't buy the argument that the patients were once unsafe in society. He noted that prisons, every day, release people who were once unsafe.

Lisa Tackett, director of the West Virginia Supreme Court Division of Court Services, said she wasn't aware of the problem. 

Tackett, who is in charge of judicial training, said she would be willing to talk with those concerned about altering training for judges.

As for whether hospitals should take over the responsibility, she said, "That's entirely up to the Legislature," adding that the Supreme Court's role is to "interpret the law and follow the law and implement the law."

Allison Adler, spokeswoman for DHHR, said in a statement that Sharpe Hospital "is constantly assessing and reassessing the ability of patients to function in a less restrictive level of care. 

"Patients who are not a danger to themselves or others are placed in group homes where available or, if possible, returned to live with their family or relatives," she said.  "These placements must be approved by the court which must approve the treatment team’s recommendation for release to a lower level of care prior to the relocation."

"Secretary Crouch has stated publicly that reducing length of stay at the state’s psychiatric hospitals is one of his priorities," she added.

Underhill said he believes DHHR should be urging the governor's office to champion a bill to fix the problem. He said he has spoken with DHHR several times. 

"I'm just upset that Bill Crouch – he should be the one cheerleading this in my opinion," he said, referencing the cabinet secretary of DHHR. 

He believes they're worried about "a battle with the judiciary."

"I guarantee these judges will not want to release this power," he said. "They will want to keep it. They will want to be the ones who decide and really they're in the worse position. How does a judge in Kanawha County, Mingo County, Pleasants County, who doesn't have any mental health experience, how do they know when somebody's ready to be released? Why wouldn't you believe the hospital? Why wouldn't you believe the doctors?

"You wouldn't want someone making medical decisions for you who wasn't a doctor," he added.

DHHR officials have stated publicly that forensic patients cost about $600 each day to house in state-owned psychiatric hospitals, and up to $900 each day to house in diversion facilities, meaning other psychiatric hospitals that aren't state-owned facilities are housing patients under court authority.

Much of that money, Underhill said, could go a long way toward more preventative, community mental health services that keep people from ending up in court in the first place.

"I know I'm fired up about it.... but the amount of money we're hemorrhaging and the civil rights we're trampling here are pretty significant," he said.

West Virginia has long had a shortage of community mental health providers.

"Sometimes, people come to his office and tell him they need their psychiatric medications adjusted, but can't get an appointment with a mental health provider for weeks. So we tell 'em go to the emergency room," he said. "That's the only thing we can tell them.

"All they got to do is get in to see a doctor to adjust their meds and yet they can't get in for five weeks," Underhill said. "And then that person could end up, quite frankly, either at Bateman, or worse they commit a crime, and they end up at Sharpe. All because they couldn't get in to see a doctor."

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