At least three county sheriffs have been told by the state Department of Human Services in recent weeks that they would have to hang on to their mentally ill committed inmates because the state had inadequate or unavailable treatment beds — a violation of a law that requires such inmates to get treatment within 48 hours of a judge-issued order.
Now Hennepin County and the state sheriffs' association are considering legal options to force state officials to explain in court why they can't find beds for often violent inmates who could pose a risk to themselves or others without proper treatment and medical supervision.
"We are doing the best we can to get patients into beds as quickly as we can," said DHS Commissioner Lucinda Jesson on Tuesday. "But only when it's safe for inmates and other patients. Even if it means breaking the 48-hour rule, I have to think about patient and staff safety."
Jim Franklin, executive director of the Minnesota Sheriffs' Association, said: "The DHS commissioner is telling us they no longer can comply with the law, and that leaves us with an interesting dilemma. Do we hold inmates illegally in jail, or is the commissioner failing in her public duty and violating a judge's order? The victim in all this is the person with mental illness sitting in jail."
State officials have been warning since 2013 that they were running out of space to house mentally ill inmates and had mounting concerns over safety and staffing. In late April, Jesson took the rare step of informing state sheriffs they would start limiting admissions of jail inmates to Anoka-Metro Regional Treatment Center, the state's second-largest psychiatric hospital. "Our medical director informs me that meeting the 48-hour mandate would result in an egregious compromise of safety," she wrote in her letter.
Hennepin County Sheriff Rich Stanek said Tuesday that he plans to meet with the County Board this week to pursue a legal strategy to resolve why the DHS can violate the 48-hour rule, which became law in July 2013. He said the county could sue the agency or seek an order requiring a DHS representative to explain to a judge that they can't fulfill the law.
'Grossly deteriorating in jail'
In July, at least six inmates under the 48-hour law faced delayed admission to Anoka-Metro because of safety and staffing issues at the facility. The delay ranged from 2½ days to more than a week, according to DHS statistics given to the Star Tribune.
Two of those inmates were from Hennepin County. Jail administrators received a letter from Jesson last Wednesday detailing the delay in admitting a 44-year-old man to Anoka-Metro. A judge ordered the inmate's commitment on July 2, but the transfer took nearly two weeks.
The inmate had been jailed on an assault charge for 9 months before he was committed for treatment. He spent much of that time in segregation because he'd been threatening to kill people and using racial and derogatory terms toward other inmates. A psychological examination concluded he was likely to harm others or "come to harm himself by retaliation to his angry and threatening behaviors."
Said Stanek: "He was grossly deteriorating in jail, which was absolutely no place for him."
Human Services has about 570 treatment beds for the mentally ill statewide, scattered among Anoka-Metro, Minnesota Security Hospital in St. Peter and seven community behavioral health hospitals.
Under the 48-hour rule, 232 inmates have been admitted to treatment facilities. But 55 of them — nearly a fourth — failed to move within the mandated period, mostly because law enforcement wasn't able to transfer them in time, according to DHS. Several hundred other inmates not under the 48-hour rule are also treated in the state facilities each year.
Anoka-Metro previously had funding for 110 beds. DHS recently lowered that number to 95 to address patient care safety. DHS did receive $8.2 million over the next two years from the Legislature to again have 110 beds at Anoka-Metro, and the facility should be fully staffed by September.
'We are at a crisis'
Delays under the 48-hour rule are not limited to urban jails. Beltrami County Sheriff Phil Hodapp said he wasn't surprised when he received two letters in the past few weeks explaining the lack of available beds at Anoka-Metro. He is sympathetic that DHS may be too overwhelmed and understaffed to handle the growing number of 48-hour law inmates, but his colleagues have been talking about this problem for several years.
"It's just a struggle across the board," Hodapp said. "It's a bad problem and it's getting worse. We are at a crisis across the state and we need more action."
Rep. Debra Hilstrom, DFL-Brooklyn Center, chief sponsor of the bill that created the 48-hour rule, said she wants to know why DHS is still struggling with a requirement that has been on the books for two years.
"This is an important issue and we want it to work," she said.
Franklin, of the sheriff's association, said members have been working with DHS on extending the deadlines for some patients and on alternatives that would house inmates in out-of-state facilities or in an isolated jail section staffed with DHS employees.
While Stanek plans to talk to the County Board this week, Chairwoman Jan Callison said commisioners have received no formal request for legal action against the DHS. She agreed it's prudent to raise potential legal issues over the 48-hour law. County Attorney Mike Freeman said he will wait for "walking orders" from the board.
Jesson said the 48-hour rule has nearly doubled the number of treatment bed admissions from jails DHS now handles. In the short term, she said, DHS will require even more beds. This year the agency did get more money for prevention and intervention programs and for crisis services.
"I know we've made some progress this year," she said. "I also know the next few months will continue to be a challenge because these delays are most likely not just a blip."