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District Attorney Rod Underhill won't charge employees for not forwarding abuse cases for investigation

PMG FILE PHOTO - Former Multnomah County investigator Greg Monaco in 2018 accused county mental health managers of failing to investigate abuse.  Following a 15-month investigation, the county announced Tuesday that 136 cases should have been investigated but were not.Hundreds of reports in Multnomah County of disabled or mentally ill adults suffering from abuse, neglect or other mistreatment made to a county hot line were essentially ignored.

Many of them were made about a county-supported facility where abuse was later confirmed to have led to harm and even death.

But after a lengthy review of the situation at the Multnomah Mental Health and Addiction Services Division, Multnomah County District Attorney Rod Underhill this week decided against charging any county mental health managers or line employees who failed to properly handle hundreds of complaints of abuse that came in on the Adult Protective Services, or APS, abuse hotline. He cited the confusion and lack of training that investigators found, as well as a change in state rules.

Click here to read exec summary

Click here to read Underhill letter

"The criminal investigation ultimately confirmed that there were instances in which APS screened abuse or neglect reports made to its reporting line but did not notify law enforcement when they arguably should have," said Underhill's Nov. 19 press release. "However, the Multnomah County District Attorney's Office is in agreement with the Multnomah County Sheriff's Office in concluding that prosecution in this matter is not warranted."

The full extent of the bureaucratic failures disclosed last week, however, were remarkable given that county leadership has made behavioral health care and homelessness a priority.

"Keeping people who are in a crisis safe is at the absolute core of the county's work and mission,'' said Chair Deborah Kafoury in a prepared statement. "We must continue to rigorously examine our policies and practices and hold ourselves accountable."

Documents in the case released to the Portland Tribune and other media outlets under Oregon Public Records Law related that, in an 18-month period, the county had elected to not follow up on 1,338 reports of abuse.

Of those reports, the county's review found that 136 cases of potential criminal wrongdoing should have been reported to law enforcement but were not.

Meanwhile, 94 cases should have led to a county investigation of abuse or neglect.

Finally, 210 reports should have sparked additional protective services, but did not.

County officials say they're still shocked by what happened. As realization hit last year of what had happened, there were "a lot of emotions there: Anger, shock —bewilderment, you know?" recalled county Chief Operating Officer Marissa Madrigal. "It was just like, How did this happen?"

Whistleblower speaks

In August 2018, a newly retired county employee, Greg Monaco, went public with his account of how he'd reported complaints of abuse and neglect at a new county-supported regional psychiatric facility, the Unity Center for Behavioral Health, only to be ignored and muzzled.

Operated by Legacy Health, the center had started up in January 2017 amidst promises of safety with funding from state and county officials, only to have two of its employees go to the state in 2018 with reports that it had become, in one's words, "a hell hole."

Monaco's repeated reporting of concerns about Unity to his bosses at the county— and to Unity management— were met with threats of discipline if he didn't shut up.

But after a scathing report by state investigators verified everything Monaco been saying about Unity — finding that hazardous conditions, poor management and understaffing had led to numerous instances of danger and harm to patients there, including one death — Multnomah's leadership started asking questions about why the county mental health authority had done nothing with the warnings and complaints.

"I started asking questions along with my team just to try to understand sort of the basics, you know, what happens to a complaint when it comes through?" Madrigal said. "And we pretty quickly discovered that we weren't getting logical or coherent answers back.

"And I felt like those are pretty basic answers, that somebody working in this (field) for a long time should be able to just, like, rattle off the top of their head. So the more we looked, the more concerned I got."

Kafoury ordered a full review later in August, while placing two top managers at the mental health division, Director David Hidalgo and Joan Rice, on leave.

They were later fired, and the review was expanded beyond Unity to address all the adult protective services abuse complaints the county had received in the 18-month time frame before Monaco blew the whistle. The county's internal review was then shared with the Multnomah County Sheriff's Office and Underhill, to determine which abuse complaints still merited follow-up, that people were safe, and whether any county employees had committed criminal wrongdoing.

The Nov. 18 letter released by Underhill declining to press charges cited a change in state rules, along with poor management, as why nobody could be found to have intentionally committed misconduct.

Said Madrigal, "They were understaffed. They didn't have the appropriate training, they didn't have clear leadership."

That's exactly what Monaco, the whistleblower, had said when he went public last year.

But he declined to comment on the recent announcement, instead referring questions to his lawyer.

The Kafoury administration is fighting Monaco's whistleblower-retaliation lawsuit in Multnomah Circuit Court, saying, among other things, that the former county employee waited too long before suing and failed to file a preliminary claim with the state Bureau of Labor and Industries.

Madrigal, for her part, said that with new leadership and a complete overhaul of the county mental health division, "I am confident that we are in a much better place, but I'm not comfortable. You know, it's going to be something that we're going to have to continue to keep an eye on."

Sidebar

County statement blames new rules, lack of training, for mishandled abuse complaints.

Multnomah County on Tuesday, Nov. 19 issued a lengthy statement listing how more than 1,330 abuse complaints were not properly reviewed for forwarding. Here are excerpts of the county statement:

Changes in the County's handling of reports date to July 2017 when the state, through the joint Office of Training Investigation and Safety of the Oregon Health Authority and Oregon Department of Human Services, shared pending rule changes on abuse investigations with county mental health adult protective services programs. Starting in September 2017, the state said, county mental health programs could investigate allegations of abuse or neglect only on behalf of people receiving services from a licensed facility or a community mental health program in their jurisdiction.

That meant that if an alleged victim were not staying in a residential facility or engaged in mental health services with the county, the county could not launch an investigation.

But in cases that didn't fit the state's new standard for investigations, state officials expected counties to continue providing protective services in cases it could not investigate. And, in cases where there was a question of a crime, the state also expected counties to alert law enforcement. Instead, in Multnomah County, screeners in mental health adult protective services did not provide protective services or refer cases to law enforcement in many cases when they should have.

Almost a year later, by August 2018, state officials adopted a new administrative rule that once again broadened the counties' authority to investigate abuse. By then, County leadership had learned of the Division's mistake through questions raised by The Oregonian, The Lund Report and Portland Tribune about the County's handling of complaints of abuse and neglect from patients at the Unity Center for Behavioral Health.

In total, the team spent six weeks reviewing 1,338 reports.

When the reviewers completed their report in October 2018, Multnomah County Chief Operating Officer Marissa Madrigal submitted the findings to Multnomah County District Attorney Rod Underhill and the Multnomah County Sheriff's Office.

The Department also forwarded its findings to the Mental Health Adult Protective Services program, which responded to the findings with a quality improvement plan to prioritize cases with the greatest risk and safety concerns.

Detectives with the Multnomah County Sheriff's Office and with the Oregon State Police interviewed witnesses and people involved in the screening process while the District Attorney's Office interviewed still other witnesses, and reviewed County emails and training materials.

The District Attorney was to determine whether any county employee should be charged with official misconduct for failing — as mandatory reporters of abuse — to notify law enforcement in cases where a crime might have occurred.

To be criminally liable for official misconduct, District Attorney Underhill wrote Monday in his decision to County Chair Deborah Kafoury, a public servant must either knowingly violate a law related to that person's office or with the intent to obtain a benefit or to harm another, must knowingly fail to perform a duty imposed by law or clearly inherent in the nature of the office.

In the midst of the review, the Board of Commissioners appointed Ebony Clarke as interim director of the Health Department's Mental Health and Addiction Services Division. In March, she was permanently appointed director. Under her leadership, and in partnership with new Health Department Director Patricia Charles-Heathers, the division made sweeping changes to its adult protective services program.

The division reorganized oversight to better support the program, and hired three additional staff. They included a risk case manager to whom cases are referred that might not meet requirements for a county investigation, but in which safety concerns remain. The division created a program supervisor position to oversee the team — and to immediately review every decision her team made on whether to screen out a referral, when to refer a case to law enforcement, and how to ensure each person was safe and connected to social services.

The division also established documentation standards, increased consultations with legal counsel, and documented screening rules and processes to help screeners make their abuse determinations. It established protocols for the hiring and training of new employees and mandatory trainings for existing staff. Those trainings cover topics including screening and documentation requirements, law enforcement notification and safety planning. The division also increased training for community partners and mandatory reporters who might need to make a referral.


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