Oklahoma mental health system, consent decree
Sent to Gov. Kevin Stitt on Thursday, May 30, 2024, House Bill 2929 prescribed $4.1 million to be set aside for potential "consent decrees" entered into by the state of Oklahoma. (Screenshot)

As part of the budget bills sent to the governor last week, the Oklahoma Legislature specified that $4.1 million appropriated to the Department of Mental Health and Substance Abuse Services “be reserved for implementation of potential consent decrees entered during the 2024 calendar year.”

While the provision received little discussion — one lawmaker skipped over the section while presenting House Bill 2929 — it indicates a federal lawsuit filed in 2023 against ODMHSAS could be headed for a negotiated settlement requiring new “competency restoration” resources when people experiencing mental illness are deemed unfit for criminal trial.

If a settlement is approved in Briggs et al v. State — a lawsuit the Attorney General’s Office called “indefensible” in a memo provided to lawmakers — the specified improvement plan could obligate Oklahoma to provide future mental health funding 10 to 20-times the $4.1 million figure designated for Fiscal Year 2025. As a result, some elected officials have reservations about the idea of settling.

Still, if an agreement is reached, it would become the fourth time in 40 years that a major consent decree or settlement has forced Oklahoma to improve state services for vulnerable populations. Such a consent decree could come as the U.S. Department of Justice continues its own separate investigation into whether the state, Oklahoma City and its police department have failed “to provide community-based mental health services to people in Oklahoma County, leading to unnecessary admissions to psychiatric facilities and police contact.”

Combined, the situations acknowledge what has been widely believed for years: The state of Oklahoma has fallen significantly short of providing adequate resources to serve populations with diagnosable mental health conditions.

‘Oklahoma’s competency restoration system is broken’

The Oklahoma Forensic Center is a state mental hospital in Vinita. (NOPIP)

Through their class-action complaint filed March 1, 2023, in U.S. District Court for the Northern District of Oklahoma, attorneys Leslie Briggs, Evan Watson and Henry Meyer have alleged violations of due-process rights for pre-trial defendants in state court who had been declared incompetent to stand trial and who were awaiting competency restoration treatment.

The attorneys filed their claim as the “next friends” of affected Oklahomans, and they allege the state’s failures force those deemed incompetent to endure lengthy wait times beyond what is “constitutionally permissible” for treatment at the Oklahoma Forensic Center.

“Oklahoma’s competency restoration system is broken. Scores of presumed-innocent Oklahomans who experience severe mental illness are languishing in county jails awaiting competency restoration treatment for prolonged periods that far exceed constitutional limits. Many have waited several months to receive the restorative treatment required by law. Some have waited more than a year. Almost all are indigent,” the plaintiffs’ attorneys wrote in their petition. “Plaintiffs are persons declared incompetent in Oklahoma state court criminal proceedings, but who are denied restoration services in excess of constitutionally permissible time limits.

“Caged in county jails, which have neither the resources nor expertise to provide effective restoration treatment, plaintiffs’ mental health deteriorates while their criminal cases are suspended.”

In the 15 months since the lawsuit was filed by Briggs — legal director for Oklahoma Appleseed — and the other attorneys, the named defendants have changed. When the litigation was initially assigned to Judge Gregory Frizzell, it named then-ODMHSAS Commissioner Carrie Slatton-Hodges and Oklahoma Forensic Center director Crystal Hernandez as defendants. Now, however, new Commissioner Allie Friesen and new director Debbie Moran have been substituted as defendants.

Located in Vinita, the Oklahoma Forensic Center has about 220 beds and is the only hospital operated by ODMHSAS that provides secure inpatient competency restoration services. The facility is also home to criminal defendants found not guilty by reason of insanity or mental illness until such a time that they are released from custody.

The lawsuit alleges that this overlap has resulted in a reduction in the number of beds available to those who require competency restoration treatment, thus elongating wait times for necessary mental health services and keeping the mentally ill in county jails.

“Most people found incompetent to stand trial in Oklahoma can be restored to competency if they receive timely and appropriate treatment,” the petition states. “Defendants’ acts and inaction have caused prolonged delays in providing restorative care to plaintiffs and the other class members, which violates their federal and state rights to due process of law. Due process requires that defendants’ obligation to accept and treat mentally incompetent defendants within a reasonable time period be measured in days, not months.”

Underscoring the situation in February, Oklahoma County District Judge Susan Stallings ordered a $500 per-day fine against ODMHSAS for not accepting custody of Zachary Whitaker, who was charged in 2023 with felony assault with a dangerous weapon and malicious injury or destruction of property less than $1,000.

Now, with the Legislature setting aside the $4.1 million as specified in HB 2929, it appears momentum could be moving toward a settlement, a consent decree and a corrective action plan to address problems for the next decade or more.

“I think the Oklahoma Legislature has worked well with the attorney general on identifying potential issues related to this lawsuit or any other lawsuit,” said Senate Appropriations and Budget Committee Chairman Chuck Hall (R-Perry). “The money may or may not be needed. We’re waiting for some additional guidance from the attorney general.”

Leslie Berger, press secretary for Oklahoma Attorney General Gentner Drummond, declined to comment on the pending litigation and instead directed people to court filings, which have recently included mutually-agreeable stays.

Sasha Teel, senior director of government relations and public partnerships for ODMHSAS, initially said Friesen, the agency’s new commissioner, would conduct an interview about the situation last week. However, the interview offer was withdrawn early Monday.

Abegail Cave, communications director for Gov. Kevin Stitt, provided a statement on the pending litigation and rumors of a settlement.

“Gov. Stitt is committed to protecting all Oklahomans and will never endorse a bad deal for the taxpayers,” Cave said.

Consent decrees, agreements have reformed Oklahoma before

A “consent decree” is a legally binding performance improvement plan, according to the Vera Institute of Justice. These court-enforced settlements can be used in a variety of areas, including cases related to private-sector business practices, environmental regulations or public facilities that fall below acceptable standards of operation. While consent decrees can sometimes stem from U.S. Department of Justice investigations, they can also be the court-ordered result of private litigation.

In Oklahoma, three notable consent decrees and settlement agreements have changed state systems serving vulnerable populations after horrific stories of abuse were revealed.

A federal lawsuit filed in 1978 — Terry D. v. Rader — resulted in a 1984 consent decree that lasted for more than a decade and fundamentally restructured Oklahoma’s juvenile justice system. Attorneys who filed the litigation found that incarcerated youth were often hog-tied with their limbs held behind their backs, and other children were sedated without medical authorization. The consent decree eventually spurred the creation of the Office of Juvenile Affairs and required monitoring and reporting about the corrective action plan, which continued until 1999.

In 2004, DOJ officials notified the state they were opening an investigation into “conditions of confinement” at OJA’s L.E. Rader Juvenile Detention Center in Sand Springs. One year later, the DOJ findings alleged that “the conditions of confinement violate the constitutional rights of youth confined at Rader,” and a lawsuit was filed by the federal government against the state. A consent decree signed and approved in 2008 mandated dozens of remedial measures and required OJA to create “quality assurance programs” for ongoing monitoring. The Rader Center ultimately closed.

Around the same time, another lawsuit filed in federal court — D.G. v. Yarbrough — alleged systemic problems with how the Oklahoma Department of Human Services handled children in the foster care system. Allegations involved the allowance of abuse, improper placement of children — even newborns — in overcrowded and under-staffed emergency shelters, and failure to provide secure long-term placements.

With Frizzell also presiding over that case, a 2012 compromise and settlement agreement — a remedial prescription differing slightly from a court-ordered consent decree — established the Pinnacle Plan, which required annual reporting about foster-care-system improvements and mandated monitoring from “co-neutrals” over the next decade.

In March 2023, the co-neutrals determined that substantial good-faith progress toward corrective goals had been made, and DHS was released from its monitoring obligations.

That same month, the Briggs lawsuit was filed against ODMHSAS and the Oklahoma Forensic Center in Vinita.

‘Plan designed to eliminate the constitutional violations’

With leaders of the Oklahoma Department of Mental Health and Substance Abuse Services seated across from him, House Majority Floor Leader Jon Echols (R-OKC) asks a question during a hearing Tuesday, April 30, 2024. (Tres Savage)

When the Oklahoma Legislature voted on HB 2929, the bill’s third section specifying $4.1 million for a potential consent decree received little discussion.

As Sen. Todd Gollihare (R-Kellyville) presented the bill on the Senate floor, he referenced its first two sections, paused, ignored the third, and skipped right to its fourth.

Days earlier, HB 2929 received its most thorough legislative discussion during a meeting of the Senate Joint Committee on Appropriations and Budget.

Sen. Carri Hicks (D-OKC) asked Vice Chairman Paul Rosino (R-OKC) to “elaborate” on the designation of funds.

“Currently, the state has a lawsuit, and there’s a possibility that we might have to have some funding if the consent decree is entered into and signed,” Rosino said. “Currently, that has not happened yet. And so we just want to make sure that there’s available funds should that happen.”

Hicks followed up, asking if state leaders are “anticipating that there will be additional litigation.”

“Yes, and it’s probably going to cost more than this,” Rosino said. “This is just the original number that we have gotten in case the consent decree is signed.”

In April, legislators were provided a memo about the Briggs litigation written by Assistant Attorney General Tracy Neel. In the two-page memo — labeled “attorney work product” — Neel said the Oklahoma Forensic Center’s current obligation to house criminal defendants found not guilty for reason of mental illness means “less than 20 percent of OFC’s resources and beds are available to be used for competency restoration treatment.”

Neel described the litigation strategy being pursued by Attorney General Gentner Drummond, which involves the potential settlement and consent decree:

From the beginning of the lawsuit and well before then, the challenges ODMHSAS was experiencing trying to treat this group of people in a timely manner was well known and as a result, Attorney General Drummond wisely concluded the state did not need to spend millions of dollars defending an indefensible lawsuit. Rather, General Drummond brought together ODMHSAS, advocates for the persons awaiting treatment and experts in the field to develop a settlement agreement/comprehensive plan designed to eliminate the constitutional violations.

The proposed settlement agreement gives the department access to leading experts in the country regarding competency restoration treatment. It contemplates the department working with these experts as well as community leadership to improve competency restoration services in the state of Oklahoma, to increase training to forensic health care professionals, to reduce the number of individuals inaccurately declared incompetent, to reduce the wait times to constitutionally appropriate levels of competency restoration treatment, to create a state of the art in jail restoration treatment program, and to expand the state’s resources including additional in-patient competency restoration beds.

In Neel’s memo, lawmakers were told the “requested funding” would help ODMHSAS achieve eight objectives “to improve its competency restoration programs”:

  1. Increase staffing at OFC to appropriate staffing levels;
  2. Increase staffing at ODMHSAS headquarters dedicated to competency restoration;
  3. Allow for the development of forensic-based training so that all personnel are qualified to work in competency restoration;
  4. Upgrade the department’s data management system;
  5. Acquire necessary equipment for telehealth services;
  6. Retain nationwide experts to create a five-year plan to improve competency restoration in Oklahoma;
  7. Begin the creation and implementation of a pilot in-jail competency restoration program; and
  8. Continue to work collaboratively as opposed to protracted litigation for program development and improvement.

Multiple lawmakers declined to discuss the Briggs litigation and proposed settlement directly, but conversations about improving mental health services in Oklahoma have percolated at the Capitol for years, and two new mental health hospitals are under construction.

In late April, a joint legislative committee on American Rescue Plan Act funding met with ODMHSAS officials about cost increases for The Donahue, which is slated to become the state’s primary mental health hospital serving central Oklahoma. At a March groundbreaking, dignitaries tossed confetti into the air with shovels, just as they had done in Tulsa one year prior for the new Oklahoma Psychiatric Care Center, which is slated to open sometime in late 2024 or early 2025.

According to ODMHSAS documents provided to lawmakers, The Donahue Hospital is targeted for a December 2026 move-in. Located on the OSU-OKC campus near the Interstate 40 and Interstate 44 interchange, The Donahue would supplant the historic Griffin Memorial Hospital in Norman, the state-owned campus which deteriorated over decades and now features as many abandoned buildings as functional ones.

For years, Norman leaders and ODMHSAS officials have teased the idea that the city would purchase the property, but a $50 million estimated price tag has apparently dissuaded a deal. On April 30, legislators asked ODMHSAS officials about the languishing property and its portion of the $78.6 million funding hole for The Donahue project.

“The reality that we’re in today is we do not have confidence that we can obtain that amount,” Friesen told lawmakers about the $50 million price tag on the Griffin Memorial Hospital parcel.

House Majority Floor Leader Jon Echols (R-OKC) expressed frustration with the property sale’s delay, and he connected The Donahue project to the looming lawsuit and DOJ investigation about mental health care in Oklahoma.

“I think we have a team that can get us there. This was a tough meeting where we asked hard questions, because when numbers change that’s what you do. But we have to get this project done,” Echols said April 30. “To be clear, the federal investigation I referenced is into mental health in Oklahoma. Then we have a lawsuit, obviously, dealing with how long it takes to get restore-to-competency done, and this is a huge piece of getting that done.”