(CN) — Four of Oregon's largest health care nonprofits asked a Ninth Circuit panel on Wednesday to revive their lawsuit which sought to force the state to provide long-term health care for civilly committed, mentally ill patients.
The four hospital groups, Legacy Health, Providence Healthy & Services, PeaceHealth and St. Charles Health System, sued the Oregon Health Authority in 2022. They said that when community hospitals take in civilly committed patients — those being forced to undergo treatment and cannot go free — for emergency care, they are effectively left there to languish indefinitely by the state, in part because there aren't nearly enough long-term mental health beds to go around.
"Rather than ensure and provide timely access to appropriate treatment, OHA has adopted a practice of abandoning civilly committed patients in community hospitals — even though many patients have no medical need to be there," the plaintiffs wrote in their opening brief. "This practice injures both civilly committed patients and community hospitals."
The hospitals say this arrangement has gone on for decades, costs the hospitals tens of millions of dollars every year and harms the patients because they don't receive the kind of care that might rehabilitate them and improve their condition.
A federal judge found in 2023 that the four hospitals didn't have standing to sue — either on their own behalf or as a third-party on behalf of their patients — and dismissed the case.
Michael Gillette, the attorney for the hospital groups, told the three-judge panel that the hospitals were being forced to do a job they hadn't signed up for and aren't equipped for.
"We treat people for emergencies, and we’re good at it," he said. "But we are not built for and not staffed for people that require long-term care."
"Let's assume the district court complied with your request to declare that OHA’s policy violates various Oregon statutes, and various constitutional protections," said U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee. "Then where would you be? There’s no beds. You can’t manufacture a bed out of nowhere."
Gillette admitted the lawsuit, even if successful, would only be the first step in solving a problem that started in the 1980s.
"The day after, we’d be in the same place," Gillette said. "This problem arose over a long period of time. It can’t be cured tomorrow. But it can’t be cured until the state agency is told to do your job."
He suggested that a court could issue a ruling to the Oregon Legislature to allocate money to construct new facilities, adding: "In the interim, we will continue to care for these people, because we’re a hospital and that’s what we’re supposed to do."
U.S. Circuit Judge William Fletcher, also a Clinton appointee, asked if one of the possible remedies might be money — more compensation for patients held beyond the acute stage of care.
"You're keeping them," said Fletcher. "And it’s a considerable expense."
Gillette said no.
"We don’t want money," Gillette said. "We want to help these people. The money ain’t the answer. We’re not in that line of work. We’re not for profit. We’d prefer to be not for profit for the right people."
Because hospitals must regularly apply for re-certification to treat patients for acute mental illness, the state of Oregon has argued that the plaintiffs — knowing that providing such acute treatment often leads to treating them for months on end — have in effect agreed to the uncomfortable arrangement of holding civility committed patients indefinitely.
"The hospital plaintiffs have known about these challenges for decades, have sought certification and re-upped certification," said Dustin Buehler, an attorney for the Oregon Department of Justice.
"When a hospital goes into this arrangement, and re-ups, that is voluntary," said Buehler. "We are glad they care for these patients. We pay them. We would pay them more."
"How much more?" Fletcher asked.
Buehler didn't know. But, he said, "For years they have sought to provide acute care services, because there is a business advantage in doing so. And they’ve done that with the full knowledge that the bitter comes with the sweet."
After a while, he argued, it "starts to look like a voluntary business arrangement."
On rebuttal, Gillette took issue with that argument.
"We've put up with this nonsense for all these years," said the hospitals' attorney. "We have never signed on to a certificate that promises anything other than acute care. The certification ... has nothing to do with promising, once we’ve got these people stabilized, we’ll hold onto them for half a year."
The panel — rounded out by U.S. Circuit Judge John Owens, a Barack Obama appointee — seemed to agree with Gillette.
"They didn't up for long-term care," McKeown told Buehler. "I’m having a hard time with the argument, 'you signed up for acute care, in for penny, in for a hundred thousand dollars.'"
She said if the lawsuit wasn't revived, the patients would continue to receive inadequate care. Buehler disagreed.
"It's not lawsuit or bust," he said. "This lawsuit [is not] the only way."
"The long-term treatment capacity just does not exist. Is that right?" Fletcher asked.
"It’s no secret that there are inadequate beds in the state of Oregon," said Buehler. "If the goal is to transfer [the patients] out of the hospitals ... there’s no guarantee they will go to place that’s better."
"What makes you think that’s going to be the result of the lawsuit?" Fletcher responded. "The purpose of the lawsuit is to force Oregon to start spending money that it hasn’t been willing to spend."
The panel took the case under submission but did not indicate when they would rule.
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