Teen still at adult hospital for mentally ill, dangerous despite judge's order

A federal judge ruled Minnesota's largest facility for people who are mentally ill and dangerous was not a good home for a 16-year-old with developmental disabilities.

But a year later the boy still lives at the Minnesota Security Hospital in St. Peter, even though the state was found to have admitted him to the psychiatric facility against federal rules. Attorneys argue living there is hampering his development as he's being wrongly restrained and vulnerable to sexual predators.

The explanation for why the teen ended up in St. Peter and remains there illustrates the obstacles to finding safe and less isolating housing for minors and adults with developmental disabilities who may present a danger to themselves, or others.

Minnesota Department of Human Services officials declined an interview request, citing privacy laws that prohibit them from talking about specific patients. But DHS figures show the teen isn't the only one living at the facility who has only been diagnosed with a developmental disability — not a mental illness. There are 10 people living at Security Hospital in that situation.

Disability rights advocates say moving people with developmental disabilities to a forensic psychiatric facility is a direct violation of federal rules. The federal Jensen Settlement agreement reached in 2011 set terms to improve the lives of people with disabilities after an investigation by the state Ombudsman for Mental Health and Developmental Disabilities found "improper and inhumane use of seclusion and mechanical restraints" on vulnerable adults at a state-operated facility in Cambridge.

"An individual committed with a developmental disability shouldn't be in a criminal setting where there are sexual predators," said Shamus O'Meara, attorney representing clients in the Jensen Settlement, who said staff continue to use restraints that led to the shutdown of the Cambridge facility. "When they use a punishment technique from the 1700s, a restraint chair, to restrain an individual with a developmental disability, whether that individual is a minor or not, we have to object to it because those are obviously tactics that violate civil rights."

One of the settlement terms was to move all people committed solely as developmentally disabled out of the Security Hospital by early 2012 in an effort to integrate them into society.

But three years later, the state Department of Human Services violated that order by requesting a variance from its licensing division to put the teen, identified in court documents as W.O., at the Minnesota Security Hospital.

The case of W.O.

According to court records, W.O. was born with fetal alcohol syndrome and has limited frontal lobe brain functions. He has a criminal history that public records do not detail and was about to be released from a juvenile corrections facility before DHS moved him to the Security Hospital.

The state had requested the variance last May to put W.O. at the Minnesota Security Hospital but only retroactively, after he'd already been moved there.

DHS psychiatrists and administrators testifying in a hearing last summer about his case all agreed the Security Hospital was not the right place for W.O. But they can't agree with advocates or the court on where he should live or how staff should respond to his aggressive behavior.

During the yearlong legal process, U.S. District Judge Donovan Frank denied the state's recommendation to move W.O. to an existing Cambridge facility for developmentally disabled adults that present a public safety risk. Another revised plan about what to do about W.O. is due to the federal court Monday.

Court documents say Security Hospital staff put W.O. in mechanical restraints, which could include handcuffs and a restraint chair, at least twice, and a prone hold in another instance.

But W.O. is also an aggressor. Since his admission, he caused at least one security counselor severe head trauma.

The day W.O. attacked Kaija McMillen last summer started with him apparently upset and threatening other patients. When McMillen went into work, her co-workers told her W.O. had been having a bad day and everyone was giving him extra attention and tried to help him with coping mechanisms.

Staff took W.O. out to the courtyard but McMillen said he was still set on assaulting another patient inside.

"He sat down for a little bit and you could just see that he was getting angry," McMillen said. "When he tried to get back into the unit to assault this patient, I was in front of him and I was trying to talk him down and he turned his anger to me."

W.O. then grabbed McMillen by the hair, punched her in the face and threw her head against a brick wall three times.

"I turned to my left and I saw his knee coming forward so I quickly turned away and I tried to protect myself as much as I could," she said. "But his knee hit me right in the back of the head and I lost consciousness then."

The 25-year-old has been suffering from seizures, post-traumatic stress disorder and hasn't been able to return to work since.

Advocates blame the environment. They say the Security Hospital's main mission isn't to treat people with lifelong developmental disabilities who hope to be more integrated rather than isolated.

Roberta Opheim, the Minnesota ombudsman for Mental Health and Developmental Disabilities, said the goal was to move W.O. as soon as possible.

"Does as soon as possible mean a year," she said. "The longer he's in there, the potential to do more damage to him ... every day he's anxious. The longer you're in a place and you know you're going to move but you don't know when you're going to move, it can lead to more anxiety, agitation."

Restrained and vulnerable

Throughout his stay at Minnesota Security Hospital, advocates have continued to raise concerns about how staff and others treat W.O. and how it may set precedent for how they respond to others with developmental disabilities.

In a letter obtained by MPR News, Department of Human Services Deputy Commissioner Charles Johnson acknowledged the use of restraints on W.O.

The letter argues against advocates' assertion that a restraint chair cannot be used on W.O. because of his developmental disabilities under rules created by the Jensen Settlement. But Johnson said staff followed policies in emergency situations when putting W.O. in restraints.

But Steven Schmidt, an attorney with the Minnesota Disability Law Center, who does not represent W.O., raised concerns with the DHS licensing division that mechanical restraint policies should be clear. He said the Jensen Settlement resulted in an upgrade to a state law called "Positive Support Rule" meant to eliminate those procedures from best practices.

The new rule prohibits use of mechanical restraints for four purposes: As a substitute for adequate staffing, as a behavioral therapeutic mechanism, as punishment or for staff convenience.

"The question then becomes how do we figure out what purpose the rule is being used for?" Schmidt said. "Mainly, there is a possibility that the exception could swallow the rule. A provider could say that I'm not using it for one of these things and then they're going to use the procedure."

Shortage of options

It's been five years since the state agreed to terms under the Jensen Settlement. But the federal court continues to mediate a plan to figure out how to integrate vulnerable Minnesotans, including people like W.O.

W.O. is not the only minor living at the Security Hospital. In 2015 there were a total of three, according to DHS data released to MPR News in response to a data request. It's not clear how the state was able to admit those juveniles into the facility.

Additionally, the data say 12 patients between the ages of 18 and 20 were there last year, up from three in 2014. The average age at the facility is 43.

"I do think that there is reason to believe that there are individuals that are coming in that really, again, would be more appropriately served in the community," Chris Michel, a regional mental health ombudsman, told Judge Frank during proceedings concerning W.O.

Even in other cases where the state was able to move people out of the Security Hospital and into the community, the housing didn't completely satisfy Jensen Settlement rules when it comes to integration. For example, DHS moved a patient out of the Security Hospital in 2012 into a pole barn in an industrial park in Austin, Minn., court records say.

"We don't believe that setting at all appropriately responded to the type of transition into the community that was contemplated in the class action lawsuit," Jensen Settlement attorney O'Meara said, "or best practices or just simply the moral obligation to treat people who are vulnerable with respect."

That patient is still living there at a state cost of $2,700 per day.

Some people with developmental disabilities, like this patient and W.O., are legally committed to the Department of Human Services commissioner, who then becomes responsible for their well-being.

Some developmentally disabled Minnesotans receive treatment in their homes, others live in group homes and some are in state-operated facilities. But a shortage of options or willingness by private providers to take on high needs, aggressive patients puts some like W.O. in a unique and challenging circumstance without a readily available option.

For the 10 developmentally disabled patients currently at Minnesota Security Hospital, the Department of Human Services said in a statement that "it's possible for someone to be admitted as a dual commitment (mentally ill and developmentally disabled, for example) and for the other commitment type to end after their admission (leaving them currently a DD only commitment)."

"Committing someone into the Minnesota Security Hospital is a big problem because you're labeled and it may be more difficult to get out," O'Meara said. "The state-operated facilities, the group homes, the other residences where these individuals are living should engage in positive behavioral planning, individualized planning addressing the person's aspirations, dreams, hopes, where they would like to live."

A team is currently working to ease W.O.'s release from the Security Hospital. The state has obtained a permanent home for him with at least 50 percent of the required positions to supervise and treat him filled.