King County and 21 other Washington counties as well as the Washington State Association of Counties (WSAC) filed a lawsuit Wednesday against the Washington State Department of Social and Health Services (DSHS) over a plan to release a couple hundred patients back into the community without proper treatment planning, as well as for not providing mental health evaluations to people who have had charges against them dismissed due to mental health issues.

In the immediate term, the counties want a judge to order the state to take "civil conversion patients" (patients who came to the hospital via jail but who failed to regain legal competency) for mental health evaluations and to better notify local officials when releasing people from the state hospitals. But DSHS plans to release at least 45 patients to King County alone by Sept 7, and the soonest the counties' lawsuit will go before a judge is Sept 8.

King County is trying to coordinate proper placements for the patients, but Western State Hospital already released at least one patient directly from the hospital to a King County shelter, as opposed to the preferred option of releasing that person into supportive housing, according to Isabel Jones, deputy director of King County's Behavioral Health & Recovery Division.

The lawsuit, filed in Pierce County Superior Court, stems from county frustrations with DSHS consistently failing to provide mental health evaluations and treatment to people with mental illness who cycle through county jails. The counties claim the state consistently shifts the burden—and the costs—of behavioral health treatment to the counties despite the state’s legal obligation to provide those services. The counties also claim a DSHS plan to release about 200 patients to the 22 counties—as the result of a federal court order—violates state law because the department has not provided proper notification to law enforcement, prosecutors, and communities. King County Executive General Counsel David Hackett referred to DSHS's plan as a "fire sale release."

A group of counties deciding to file a lawsuit against the state is pretty rare; it's happened only a handful of times over the past decade, said Eric Johnson, WSAC executive director.

Gov. Jay Inslee’s office faulted the federal court order for DSHS’s inability to treat and care for civil conversion patients. In an email from Inslee’s spokesperson, Mike Faulk, the office said the counties brought the lawsuit as if the court order didn’t exist.

DSHS spokesperson Tyler Hemstreet said the challenge of tackling the state’s rising demand for behavioral health services doesn’t become easier when counties demand it to ignore a federal court order. The Legislature approved $2 billion in funding for construction of a new hospital for patients charged in criminal cases and other facilities to help people with behavioral health needs. At the same time, the demand for beds continues to increase. Over the past nine years, requests for inpatient evaluations and competency restoration services increased by 145%, Hemstreet said.

The lawsuit relates to an ongoing struggle to stop DSHS from allegedly violating the constitutional rights of people with mental illness who are languishing in local jails. In Washington, when courts suspect that a person charged with a crime is too mentally ill to stand trial, the law requires the state to evaluate that person within 14 days and—if needed—to provide competency restoration within seven days of that evaluation; that is, to treat them to the point where they understand the charges leveled against them. DSHS provides restoration services usually at one of the state hospitals. Those services involve a combination of medicine and classes about legal proceedings. US District Court Judge Marsha Pechman set the evaluation deadlines for the state as part of the Trueblood v. DSHS settlement agreement, which basically says the state must provide mental health restoration for people in jail in a timely manner.

However, if the state fails to provide that treatment, or if it fails to restore the person to competency, then prosecutors can dismiss the charges against the person and try to get the person treatment through the civil side of the judicial system. The dismissal of charges makes the person a “civil conversion patient,” a different class not covered under the umbrella of the Trueblood agreement. 

In July, Judge Pechman found the state in breach of the agreement and in contempt of the court’s orders, in part due to the fact that DSHS had created an artificial bed shortage by shutting down a ward at Western State Hospital that housed civilly committed patients. Pechman ordered the state to stop accepting civil conversion patients for commitment, to transfer and discharge some of the patients already at the hospital, and to pay about $100 million in fines. After the order, King County officials voiced concern that the decision would “fracture” another part of the mental health system.

In the lawsuit filed by the counties, officials claim DSHS took Pechman’s order too far when the agency said it planned to stop short-term evaluations of civil conversation patients. The counties argue Pechman’s order applied only to long-term civil conversion patients. 

In August, the state appealed Pechman’s order to the Ninth Circuit Court of Appeals. King County also filed a brief in that case complaining about the state not moving quickly enough to add bed space for people in jail and in need of restoration.

Months before the July order, Constantine called out the state’s failure to meet these court-dictated deadlines during his March State of the County address. Court records show that in the nine months prior to May, people in jail waited between 82 to 130 days for restoration services. The delays left an average of about 100 people in King County jails waiting in limbo on any given day, straining the jail resources already stretched thin due to staffing shortages. 

Constantine’s choice to highlight the state’s inability to provide services to people with mental illness came just weeks after the ACLU of Washington filed a lawsuit over the County’s failure to provide people in jail with adequate access to medical care and to court. 

In September 2022, both correctional officers and public defenders said King County should stop jailing nonviolent felony offenders to reduce jail populations. Instead, at the end of March Constantine convinced the King County Council to spend $3.5 million over two years to shift 50 people from the downtown King County Jail to a regional jail in Des Moines called the South Correctional Entity, also known as SCORE.

This post has been updated.