The Ohio Department of Behavioral Health (DBH) and the nonprofit designated in state law to advocate for people with disabilities are squaring off in federal court over access to records, although they might try to solve their differences in mediation before an upcoming hearing.

Disability Rights Ohio (DRO) is designated by the state to serve as Ohio’s protection and advocacy (P&A) system and client assistance program (CAP), functions that must be performed for Ohio to qualify for certain federal funding streams for disability and mental health services.

In a lawsuit recently filed in the U.S. District Court for the Southern District of Ohio, DRO alleges DBH is blocking timely access to records it needs to monitor facilities treating people with disabilities and to respond to serious incidents, including a recent death by suicide at a DBH facility.

According to the litigation, DBH told DRO it would consider the requests under Ohio’s public records laws. But Kerstin Sjoberg, executive director of DRO, told Hannah News that state and federal law give DRO the right to promptly see information, while the reasonableness standard of replying to typical public records requests could entail delays of weeks or months.

“Under public records [law], they might redact information that we under our access authority are allowed to receive and have to also keep confidential in the same way they could have to keep it confidential,” said Sjoberg, noting that the lawsuit complaint in some cases refers to facilities pseudonymously because of those privacy issues.

The confidentiality requirements for DRO are there to enable it to have access to information that otherwise might be shielded by other privacy laws, she argued.

Sjoberg said the incident reports are crucial to DRO’s monitoring function because timely notice ensures the nonprofit can follow up on issues while memories are still fresh and video evidence still exists. As the lawsuit notes, one of the residential treatment facilities referred to in the litigation records over its video every 30 days, and Sjoberg said some facilities do so weekly.

“When you’re investigating something like abuse or neglect, it’s important to be able to be on that promptly. People’s memories obviously fade. Oftentimes individuals that are in facilities … they’re not necessarily there for an extended period of time, so even being able to find them to interview them is going to be challenging if we’re not able to do so quickly,” Sjoberg said.

Sjoberg said the parties have agreed to try mediation in the case ahead of its Thursday, Nov. 6 preliminary injunction hearing.

Asked about the case, DBH provided the following statement to Hannah News that invokes its privacy concerns:

“DBH’s mission is to promote mental health, support recovery, and protect the safety and rights of Ohioans receiving care in our system. In fulfilling this responsibility, we are committed to working collaboratively with partners and stakeholders while ensuring that our actions remain firmly grounded in both state and federal law. While we value and respect the role of the protection and advocacy system, we must exercise our statutory authority carefully to ensure compliance with applicable privacy laws. We take seriously our dual role of safeguarding patients’ rights and protecting the public, and our responses to records requests are guided by this balance,” the agency stated.