Federal magistrate
to oversee state hospital

Kevin Chang will monitor
compliance with federal laws

By Helen Altonn
Star-Bulletin

U.S. Magistrate Kevin Chang, who had a sweeping role as probate judge and overseer of litigation in the Bishop Estate case, is now being given the authority to help resolve the Hawaii State Hospital's legal problems.

Chief U.S. District Judge David Ezra announced Chang's appointment yesterday as special master to oversee the 10-year-old hospital case, saying it "represents significant escalation of court involvement in the matter."

He said it is only "one half-step away" from the court running the hospital, "an involvement I had hoped at one time to avoid," he said.

State attorneys agreed to the special master in a meeting with Ezra and U.S. Department of Justice attorneys before a court hearing on the status of hospital conditions.

Paul Aucoin, a private attorney in Columbus, Ohio, was brought here as special counsel.

Ezra said the only alternative to a special master to oversee state compliance with federal laws at the hospital is to appoint a special master to run the hospital.

"This is make or break it for the state in terms of where we are," he said. "It has escalated to the point that if we don't have compliance in a reasonable time, we will have to take the final step (to take over the hospital)."

The Justice Department filed a lawsuit against the state in 1991 alleging federal violations at the hospital. It was settled with a consent decree requiring improvements to meet federal laws and guidelines in treatment and services to patients.

Reports by Leland Chang, court-appointed monitor at the hospital, "show continuing issues of noncompliance, and some issues have been around quite a while," Justice Department attorney Verlin Deerinwater told Ezra.

The monitor's latest report, filed last week, cited many operational problems at the hospital, including overcrowding, staffing, safety and morale problems. The Hawaii Government Employees Association has filed a grievance for the nurses about the conditions.

Aucoin said state attorneys spent two days trying to address issues raised by the monitor and by the court in late 1999. He said the plan developed by the state Department of Health for community-based services is fairly broad, and a $22 million commitment by the Legislature for the next two years is "a substantial performance anchor for all of us to do what we're supposed to do."

He said if the case were not so old, a special master might have been appointed when it was filed, and it might have moved more quickly. "All of us are concerned about the issues, but our perception is, the hospital in no way is in as bad shape as (the monitor) says."

He said the negative statements prompted a spot check by the national joint accrediting commission to see if the facility remains accreditable, and it is. The commission will be back in six months, he said.

Of his 13 years as a federal judge, Ezra said 10 have been spent on the hospital case. It has been a long time, he said, because of dissension among parties on the deficiencies, how serious they were and how much progress has been made toward remedying them.

The judge said he does not believe he should be involved for a long time in running the state hospital or the state education system (in the Felix case), but he will if he has to because he is committed to seeing services meet federal standards and constitutional mandates.

Ezra said he has given the state some leeway because of political practicalities. Because of a lack of legislative response to concerns before the lawsuit, he said the hospital was "akin to a Third World country" in a state that "prides itself on being socially progressive."

He said the Legislature's appropriation to develop community-based resources for patients "is giving me some hope that we can move forward positively and bring this matter to conclusion."

The monitor and Justice Department attorneys expressed concerns, however, about the plan to develop community services. "It's hard to get a grasp on the actual planning process," Deerinwater said.

Deerinwater asked for appointment of a special master to monitor and manage compliance in the case, saying it was troubling that monitor Leland Chang reported he was unable to get certain documents from the Department of Health and that the state is revising court orders.

Ezra commended the monitor for what he called an excellent, unbiased report. "The state disputes some particulars but not the ultimate conclusion: We are not where we want to be."

Stressing the importance of adequate mental health treatment, Ezra pointed out that patients are brothers, sisters, children, fathers and mothers of people in the community who have a disease or illness.

The community also is affected, he said, referring to the capture Wednesday of Leonard Moore, who escaped March 28 from the hospital and again April 7. "I'm not criticizing the Department of Health; I don't know the facts," Ezra said. But, he said, "we can do better" by providing more security and better facilities so confined people cannot escape and better care for those who are there voluntarily.

Ezra said he is talking only of basic services. "I'm not talking about a Mercedes ... but safe and secure bus transportation. ... We're a long way from providing the minimum."

He asked Deerinwater to draft an order within a week describing the powers necessary for Magistrate Chang. He said Chang will not be paid anything for the assignment.

State Health Director Bruce Anderson said he is "pleased the judge recognized there has been progress and there is a willingness to bring the system into compliance."

He said the magistrate will help clarify issues to be addressed at the state hospital. "We don't have clear criteria on what appropriate treatment plans are." It would be helpful for the magistrate to assist the parties to reach decisions on criteria, Anderson said.

"It is a very positive step, and hopefully we will be able to report to Judge Ezra in six months to a year that we are in compliance."