This article was republished with permission from The Lund Report, an independent nonprofit health news organization based in Oregon.

County officials claim state health officials are trying to bully them into fixing the state’s failures to treat people charged with crimes while experiencing mental illness. But state officials say they’re just trying to hold local behavioral health programs accountable.

In a strategy session filled with blunt talk the morning of Nov. 7, county officials across Oregon said they will hold firm against efforts by Oregon Health Authority leaders and the Kotek administration to rewrite the contracts guiding local behavioral health services — including changes that county officials say serve the needs of the state, not their community. 

“The emperor has no clothes,” said Multnomah County Commissioner Meghan Moyer of the state’s position. “This really is an attempt to try to shift liability with, I think, zero chance of additional funding, (and) most likely continual cuts here in Multnomah County,” said Moyer, noting that the regional care organization serving the state’s Medicaid program, Health Share of Oregon, reduced community behavioral health by $100 million this year. “At some point we’ve got to call this out and say, ‘Where is the leadership from the governor’?”

Gov. Tina Kotek’s staff did not respond to a request for comment Monday. In an interview, state Behavioral Health DIrector Ebony Clarke told The Lund Report that the state’s proposed changes to the contract with counties and local providers are intended to increase accountability.

“At OHA, we haven’t done the best job of being able to have the information that we need to go back to our legislative body to say, ‘Hey, here’s why we need additional resourcing or funding,’” Clarke said. “So when I talk about accountability, it’s about both counties and OHA, being able to be confident in terms of being able to explain where and how the dollars are being spent, and as a result of that, this is what the impact and the outcomes have been.”

But the counties’ pushback on the state’s earlier hard deadline of Nov. 10 seems to be having an effect.

On Nov. 7, at 5:41pm, health officials sent an email to the counties pushing back a deadline that they’d set for counties to sign the contracts to Nov. 17. Then, less than an hour later, they sent a second email pushing the deadline back to Nov. 24.

State wants to prioritize people facing jail time for behavioral health resources

Perhaps the biggest change sought by state officials is to to make counties prioritize the needs of court-ordered patients who are criminal defendants. 

The move is part of a larger array of changes sought by Oregon Health Authority officials to decrease the fines they are paying after a federal judge found them in contempt for failing to provide timely treatment to people facing criminal charges who are experiencing mental illlness.

County officials say the fine print of the new contract would not only limit their ability to spend money where it’s needed, it would shift accountability from the state to the counties and burden them with unfunded mandates. 

At a meeting the morning of Nov. 7 attended by representatives of about two dozen counties, including Multnomah, Clackamas, Washington, Marion and Lane, everyone who spoke agreed to reject the state’s deadline and demands, saying they would hurt people in need of care.

“All remaining sticking points … are all things that are results from OHA wanting to make changes to the long time language that has been mutually agreeable,” said Steve Elzinga, counsel for Marion County, who spoke during an information meeting of the Association of Oregon Counties on Nov. 7. “We’re only requesting changes that are compromises.”

State confident an agreement will be reached

The financial agreement is the basis for local contracts with community mental health providers who form the network of behavioral health services across the state. Those providers are often county agencies, but also include tribal organizations and private nonprofit providers. 

In the past, Oregon Health Authority officials have complained they have responsibility but little control over the state’s sprawling but fragmented behavioral health care system. They have blamed counties for failing to transport patients to the Oregon State Hospital in a timely way so they can be restored to competency so they can “aid and assist” in their defense. State officials have also faulted counties for failing to establish treatment capacity for patients discharged from the Oregon State Hospital.

The state had wanted to have the revised agreements signed by July 1, but no counties signed on, prompting the state to extend negotiations to the end of this year. Rather than leading to a solution, the extended negotiations have taken on an even more adversarial tone.

Regarding the state’s earlier ultimatum to counties that they needed to declare their intent sign by Nov. 10 or lose their contracts, Elzinga called the threat unfounded.

 “The law is very clear that OHA cannot just go and contract out with other entities without county consent,” he said. “Counties obviously do not consent to that …and logistically, the idea of doing a multi-hundred million dollar [contracting process] between now and January 1 is frankly laughable. It’s not gonna happen.”

But representatives of smaller counties said that the loss of that financial agreement would hurt their ability to maintain services.

Asked what a new contracting process for state behavioral health services would look like, Clarke told The Lund Report Monday that she was confident the state and the counties would reach an agreement.

“We’re not going to get to that place, because we, as OHA, we have the same desire and interest and commitment to doing all that we can to come to an agreement and get to a yes, so that the people of the state can have a system that meets their needs,” Clarke said. 

The state’s push to have local governments prioritize aid-and-assist patients gets at the heart of the counties’ issues with the proposal. The Oregon Health Authority routinely fails to meet court orders to admit patients into the Oregon State Hospital on a timely basis, which, following a contempt ruling earlier this year, has meant hundreds of thousands of dollars in fines against the state. Most recently, for the period between Sept. 15 and Oct. 14, the state has calculated fines at $447,000.

“We are concerned that the state might be trying to shift some of those responsibilities to the counties,” Washington County Counsel Eamon McMahon said at the Nov. 7 meeting. “And in that court case, the state has said that they are attempting to sort of assign and create accountability and avoid being out of compliance through this (agreement).” 

Moyer, the Multnomah County Commissioner, noted that she had worked for Disability Rights Oregon and was very familiar with the issues the court case and contempt order sought to address. She said state officials are not doing what they need to do to fix problems with Oregon’s behavioral health system, and instead are shifting the onus to counties — which don’t control the tools available to fix those problems.

“They’re not doing what they need to do to deal with the state hospital issue. And this is a joke to try to pass this off as if we control any of the levers. I mean, it’s cruelly unbelievable,” she said. “The legislature has made it very clear they don’t wanna tackle some of the very tough policy questions that need to be raised.

“Either we increase capacity through our state hospital system, or we, in some way, fundamentally change the front door and the back door, the state hospital.None of that is politically easy.

She added that lawmakers approved a Kotek-backed bill that “just broadened the civil commitment statute without any increase in capacity, which is, to me, that’s a really disingenuous approach. They control [provider] rate setting. They control [behavioral health] licensure.

“I do think it is probably time to go public, I would recommend a joint press release or something very similar to talk through the fact that OHA is unwilling to actually do the changes to the system.”

Counties want state as a partner, not adversary

The state has been under increasing pressure from a newly appointed court monitor as well as a federal judge demanding information on how state behavioral health funding is spent and with what effect.

Clarke called past versions of the agreement “archaic and overly prescriptive,” and said they didn’t allow counties at the local level to have a transformative plan to meet the needs of their local residents. 

During the discussion Nov. 7, representatives from multiple counties expressed their desire to reach an agreement with Oregon Health Authority officials if the state officials are willing to work with them.

“We are adversarial right now with OHA, but the point is we’re supposed to be partners,” said Lane County Commissioner Laurie Trieger at the meeting. “The state relies on the counties to deliver services. We have statutory obligations to do so.  And right now we’re talking about … behavioral health and community mental health. But another day we could be talking about disaster response or emergency preparedness or waste management or public safety functions or elections. We have to show that as counties, we work together for the good of the people we serve. And we’re here to partner with our state agencies. And OHA is not operating as a partner right now.”

Nick Budnick contributed to this article.

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