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Focusing on Olmstead Planning has some possible benefits: Avoiding the Fundamental Alteration Defense & Making It easier for Administrative Enforcement

7/2/2018

The "Fundamental Alteration" Defense under Olmstead has always been pretty limited.

'Burden on the public entity to prove that immediate relief for the plaintiffs would be inequitable."

I don't think many of us have completely appreciated the above sentence in No. 10 of the 2011 DOJ Guidance on the Americans with Disabilities Act & Olmstead.

It's the "Immediate Relief" that has the potential to make things unreasonable and raise the possibility of the "Fundamental Alteration Defense."

Those conditions are much less likely to exist in a Demand for a Comprehensive, Effectively Working Olmstead Plan with:

Measurable Goals
Reasonable Time Frames; and
Funding to Support the Plan

Further, Administrative Enforcement could be handled for State Olmstead Planning by CMS and HUD in relevant respects.

Perhaps Federal Technical Assistance Centers on Olmstead Planning could assist the States,

DOJ

10. What is the fundamental alteration defense?

  A:   A public entity’s obligation under Olmstead
to provide services in the mostintegrated setting is not unlimited.

A defense for the public entity is the
fundamental alteration  defense.

A public entity may be excused in instances where it can prove that the requested modification would result in a “fundamental alteration” of the public entity’s service system.

Burden on the public entity to prove that
immediate relief for the plaintiffs would be inequitable.

  A fundamental alteration requires the public entity to prove “that, in the a location of available resources, immediate relief for plaintiffs would be inequitable, giventhe responsibility the State [or local government] has taken for the care andtreatment of a large and diverse population of persons with [ ]
disabilities.”18

It is the public entity’s burden to establish that the requested modification would fundamentally alter its service system

https://www.ada.gov/olmstead/q&a_olmstead.htm

What Kind of Olmstead Progress is the Hickenlooper Administration Making -- Well, it's largely asking the Next Administration to do what the Hickenlooper Administration refused do in the previous years -- We'll Take It!

6/27/2018

Is there hypocrisy on the part of the State --- yeah, one could cut it with a knife -- BUT we don't live in a perfect world -- the State isn't perfect and neither are we.
Meaning, we've had a helluva time trying to enforce Olmstead in Colorado and I'm still not over it.
What the State is willing to do is create a report to the next administration regarding:
Lessons Learned
Recommendations
Including Long Term Care Waivers

It looks like stakeholders will have a lot of input -- and what we're saying is that:
The Olmstead Plan Needs to be a "Living Document" subject to regular modification.
There need to be measurable goals, reasonable time-frames, and funding to support the plan to comply with Federal Law
Both the State and Stakeholders see the need for an Olmstead Coordinator outside of the agencies.

Of course, this report doesn't guarantee anything -- BUT we're starting to get on the same page.

AND that is cause for CELEBRATION.

our criminal Justice ladder is leaning against the wrong wall -- Bio-markers might help to change that

6/17/2018

I really started out talking about "Mental Illness" and the Criminal Justice System AND then that spread to other "Invisible Cognitive Disabilities" such as Brain Injury and Developmental Disability.

After reading and listening to neuro-scientist Robert Sapolsky --- "Invisible Disabilities" has really become "Biological Explanations for Behavior."

This is important because the Mental Health Profession is operating under a scientifically involid diagnostic manual the DSM 5 -- THEIR LADDER IS LEANING AGAINST THE WRONG WALL. Who is the most notable critic of the DSM 5 -- Dr. Thomas Insel, former Director of the National Institute of Mental Health [NIMH].

The Ultimate Answer is Research and the Research Domain Criteria Program [RDoC] of the NIMH which is designed in large part to provide something that is "SCIENTIFICALLY VALID" to replace the DSM 5.

RESEARCH, RESEARCH, RESEARCH -- is really needed to get beyond some pretty subjective and flawed determinations of human behavior.

Specifically, we need "BIO-MARKERS" to help us identify and prevent suicidal and homicidal behavior.

A Criminal Defense is a pretty poor substitute for
PREVENTION.

Developing a Blood Test to Diagnose Suicidality

FDA Approves Blood Test That Can Predict the Presence of Brain Lesions.

Discovery of Biochemical Biomarkers for Aggression: A Role for Metabolomics in Psychiatry

Aggression

New Science is Amazing -- It Has huge moral implications now!

Science Up

Pew Research

Lower support for death penalty tracks with falling crime rates, more exonerations
http://www.pewresearch.org/fact-tank/2014/03/28/lower-support-for-death-penalty-tracks-with-falling-crime-rates-more-exonerations/

New Republic

Death Penalty Support vs. Violent Crime: Two Graphs With Very Similar Arcs
https://newrepublic.com/article/115405/death-penalty-support-and-violent-crime-there-correlation

OUR THESIS

Public Opinion supports compassion to people charged with horrible crimes WHEN there are FEWER of those horrible crimes.

That includes openness to biological explanations for bad and or horrific behavior.

"Conservative" D.J. Jaffe, a mental health Continuum of Care & Next Steps

6/9/2018

D.J. Jaffe recognizing bed Space As Part of a Mental Health "Continuum of care"

D.J. Jaffe, Executive Director of the Mental Illness Policy Organization

"NY Times endorsed the need for more psychiatric hospitals in an editorial Sunday. They specifically referred to a Manhattan Institute policy forum I spoke at with Dominic Sisti and Dr. Jeffrey Geller and a WSJ op-ed by in support of that forum.

"As a liberal, it has distressed me that the historically liberal media has ignored the need for more psychiatric hospitals, because that need challenges the myth that everyone with mental illness recovers. It is nice to see the Times acknowledge the need for beds as part of a continuum of care."

https://www.nytimes.com/2018/06/02/opinion/trump-asylum-mental-health-guns.html

What we need to do:

Next Steps:

We need clear eligibility criteria for all the steps in the Mental Health Continuum of Care we do have.
We need to identify service gaps -- there are many that might be filled with the following:
- Flexible Assertive Community Treatment
- Finnish Open Dialogue Approach
- Soteria Approach
- Etc.
We need the Feds [through various agencies, including the Centers for Medicare & Medicaid Services] to ENFORCE:
- the Olmstead Decision and the requirement for Olmstead Plans with
  - Measurable Goals
  - Reasonable Time Frames
  - Funding to support the plan.
- the Mental Health Parity and Addiction Equity Act of 2008
- Medicaid Network Adequacy
We need something along the lines of a "CURES BILL" for Intensive Mental Health Treatment that includes:
- Inpatient
- Assertive Community Treatment
- Flexible Assertive Community Treatment
- Open Dialogue
- Soteria Approach
- Innovative Microbiome Treatments that CU and others might have or be coming up with
- Etc.

We've got the "Good Guy" Hickenlooper Adminstration that hasn't had the integrity to comply with the Disability Civil Rights Laws -- although they do try to do enough to "LOOK GOOD."

AND quite frankly if the Hickenlooper Administration is going to flout the law -- which states are going to comply without a Court Order?-- and as we have seen in the Jail Wait Case -- the State may try to wiggle out of any settlement agreement with something like SB18-250 that thankfully failed.

So this is a HUGE problem for Mental Health Advocates, Individuals, and Families.

We need to work across the Mental Health Advocacy Aisle for both Inpatient and Intensive Community Mental Health Treatments.

We also need to work with States on Innovative Solutions to pay for this -- because to comply with Disability and Mental Health Civil and Human Rights Laws is NOT CHEAP.

When it comes to aggression, maybe we could be driven to distraction by our Strengths

6/6/2018

LawCrossing.com

Reasons Most Attorneys Hate The Practice Of Law And Go Crazy (And What To Do About It)

https://www.lawcrossing.com/article/900042544/25-Reasons-Why-Most-Attorneys-Go-Crazy-And-What-to-Do-About-It/

Dealing with injustice sounds like such a noble calling -- but there are many pitfalls for the unwary -- and I've fallen into more than a few and so have some of my colleagues.

Not least of which the anger and stress involved with handling matters of great
injustice involving real people. Well, in a world of poetic justice -- those physiological effects are all going to fall on the people acting contrary to law or unjustly, right?

Well, maybe -- but they are probably going to fall on you as well, no matter how just the cause is or perhaps in some cases there may be even more negative effects the more just the cause and the more personally felt.

Who is suffering the physical and mental effects of discrimination -- it is people who are discriminated against. That doesn't sound very fair -- but that's the reality.

I often tell people I'm working with [such as older Black men with mental illness who are now serving long prison sentences] -- that we have to be better than the oppressor.

That is actually not easy for me say -- but it is a lot harder for the people whose lives are being taken away from them.

We have a whole lot of people who are dealing with injustice on a very personal level -- and the deep anger and helplessness that engenders.

If we DISTRACTED people by spending 80% of the time on developing their strengths and 20% of the time on workarounds for weaknesses -- what a wonderful world it would be.

Aggression

Law Enforcement as "Peer Specialists"

Racism and Mental Health

BLACK & HISPANIC YOUTH RARELY GET HELP FOR MENTAL HEALTH PROBLEMS; -------MINORITIES' PSYCHIATRIC AND BEHAVIORAL PROBLEMS OFTEN RESULT IN SCHOOL PUNISHMENT OR INCARCERATION, BUT RARELY MENTAL HEALTH CARE, ACCORDING TO NATIONWIDE STUDY.

DISCRIMINATION AFFECTS OUR MENTAL HEALTH -- ENGLAND'S UNIV. OF MANCHESTER STUDY FINDS

By and large, attorneys are not physically aggressive-- but we're certainly verbally aggressive -- and I believe that takes a toll on us as well -- Even if that verbal aggression is more politely or even passively delivered than by attorney Michael Cohen.

Well Law Enforcement are at times physically aggressive, and that can be a reinforcing and accelerating behavior -- not just for Law Enforcement but anyone who finds themselves in the grip of aggressive behavior -- it's not a bad person vs. good person issue --- It's a human being issue.

Current Opinion in Psychology (Feb. 2018)

Aggression prevention and reduction in diverse cultures and contexts.

https://www.sciencedirect.com/science/article/pii/S2352250X17300817?via%3Dihub

Trying to Move Colorado Beyond Vague Assurances to Concrete & Reliable Olmstead Commitments -- There's A lot of resistence

5/29/2018

A comprehensive, effectively working {Olmstead] plan must do more than provide vague assurances of future integrated options or describe the entity’s general history of increased funding for community services and decreased institutional populations.

Instead, it must reflect an analysis of the extent to which the public entity is providing services in the most integrated setting and must contain concrete and reliable commitments to expand integrated opportunities.

The plan must have specific and reasonable timeframes and measurable goals for which the public entity may be held accountable, and there must be funding to support the plan,

----DOJ Guidance on Olmstead, Answer 12.

It takes a lot of integrity to comply with Federal Disability Civil Rights Laws because:

Public Enforcement is patchy;
Private Enforcement is expensive and often out of the reach of people with disabilities and their advocates.

We're looking for a break from the Status Quo that will prioritize Colorado Compliance with:

Olmstead
Parity, and
Medicaid Network Adequacy

We are continuing to work on our letter to CMS regarding our concerns.

We have requested information from the State -- and we have not heard back.

DOJ GUIDANCE ON OLMSTEAD

2. When is the ADA’s integration mandate implicated?

A: The ADA’s integration mandate is implicated where a public entity administers its programs in a manner that results in unjustified segregation of persons with disabilities.

More specifically, a public entity may violate the ADA’s integration mandate when it:

(1) directly or indirectly operates facilities and or/programs that segregate individuals with disabilities;

(2) finances the segregation of individuals with disabilities in private facilities; and/or

(3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs.

12. What is an Olmstead Plan?

. . . A public entity cannot rely on its Olmstead plan as part of its defense unless it can prove that its plan comprehensively and effectively addresses the needless segregation of the group at issue in the case.

Any plan should be evaluated in light of the length of time that has passed since the Supreme Court’s decision in Olmstead, including a fact-specific inquiry into what the public entity could have accomplished in the past and what it could accomplish in the future.

13. Can a public entity raise a viable fundamental alteration defense without having implemented an Olmstead plan?

A: The Department of Justice has interpreted the ADA and its implementing regulations to generally require an Olmstead plan as a prerequisite to raising a fundamental alteration defense, particularly in cases involving individuals currently in institutions or on waitlists for services in the community .

In order to raise a fundamental alteration defense, a public entity must first show that it has developed a comprehensive, effectively working Olmstead plan that meets the standards described above.

The public entity must also prove that it is implementing the plan in order to avail itself of the fundamental alteration defense.

A public entity that cannot show it has and is implementing a working plan will not be able to prove that it is already making sufficient progress in complying with the integration mandate and that the requested relief would so disrupt the implementation of the plan as to cause a fundamental alteration.

Anne Sexton was an American poet, known for her highly personal, confessional verse. She won the Pulitzer Prize for poetry in 1967 for her book Live or Die. ------Wikipedia

There are multitudes -- in fact Thousands of people with "INVISIBLE DISABILITIES,"primarily mental illness, brain injury, and developmental disabilities that need access to both housing and intensive services across a continuum.

Many of these people are homeless or incarcerated or in the homeless/incarceration cycle.

State Good Faith & Substantial Compliance with Federal Law are BIG ISSUES. "We're Improving" is NOT SUFFICIENT FOR GOOD FAITH or SUBSTANTIAL COMPLIANCE, according to the US Dept. of Justice.

GOD OF THE GAPS & Criminal Liability of the gaps

5/25/2018

Sir Nevill Francis Mott CH FRS was a British physicist who won the Nobel Prize for Physics in 1977 for his work on the electronic structure of magnetic and disordered systems--- Wikipedia

" 'God of the gaps' is a term used to describe observations of theological perspectives in which gaps in scientific knowledge are taken to be evidence or proof of God's existence. The "gaps" usage was made by Christian theologians not to discredit theism but rather to point out the fallacy of relying on teleological arguments for God's existence.

"Some use the phrase as a criticism of theological positions, to mean that God is used as a spurious explanation for anything not currently explained by science.

"The concept, although not the exact wording, goes back to Henry Drummond, a 19th-century evangelist lecturer, from his Lowell Lectures on The Ascent of Man.

"He chastises those Christians who point to the things that science can not yet explain—"gaps which they will fill up with God"—and urges them to embrace all nature as God's, as the work of "an immanent God, which is the God of Evolution, is infinitely grander than the occasional wonder-worker, who is the God of an old theology."

----Wikipedia

Devils, Demons, & Intent

Human "intent" as the element of many criminal offenses was a big step up and may even go back to Roman Law.
When we talk about whether something is progressive or regressive it really depends on what we're comparing it to.
If we are comparing a concept of "mens rea" [criminal intent] to maybe societies thousands of years ago or hundreds of years ago-- well, it looks pretty good.
But we're not in ancient Rome or William Blakestone writing Legal Commentaries in England of the 1700s -- we're in the 21st Century and a whole lot has happened in our understanding of the complexity of human behavior since those times.
In fairness, the "Insanity Defense" and "Incompetent to Proceed" are potentially available but Colorado imprisons thousands of people with mental illness and brain injury and to successfully divert those people is going to require enormous amounts of housing and services, including intensive services.
The problem is we still have a FUNDAMENTAL RESISTENCE to the REALITY that human beings are biological organisms, and the question of "INTENT" while not irrelevant -- raises many other questions regarding what is spurring the "bad intent."
If the answer is just "FREE WILL" or just "EVIL" -- that was the best we could do for thousands of years -- IT IS NOT A SUFFICIENT ANSWER TODAY -- even though some "acts" are evil.
So we know that a person's intent is influenced by:

Mental Illness
Brain Injury
Developmental Disability
Problems in Emotional Regulation
Etc.

But what happens when we find someone that we don't understand very well and the information from the major Research Institutions is incomplete -- well typically we put the burden on the indigent defendant for issues Billion Dollar Governmental Research Institutions are still trying to completely figure out.

We might grant that the person is NOT possessed by a Devil or a Demon. If the person is floridly psychotic we might recognize a "DEFENSE" of insanity, but we are very unlikely to recognize the Complex REALITY before us for a whole lot of reasons:

bureaucratic,
practical: lack of treatment resources and placements
moral hazard concerns
etc.

However, if our Justice System isn't focused on PUNISHMENT, we are IRONICALLY in a much better position not only to provide ameliorating treatments as knowledge allows [& we often don't currently have complete knowledge] , we're also in a much better position to protect the community.
And, oh BTW, it's much more honest to move beyond our reductionist views of human intent and "Criminal Liability of the Gaps."
In "Slaughterhouse Five," Kurt Vonnegut wrote in connection with the WWII Bombing of Dresden, "The Brothers Karamazov isn't good enough anymore."
What did he mean? He meant that the argument that God allows evil in the world because of HUMAN FREE WILL isn't good enough anymore.
For Vonnegut it was a spiritual crisis and for many people acts of evil prompt spiritual crises.
But many of us today, across various Faith Traditions and Paths, have incorporated Science into our Spiritual, Ethical, and/or Moral Beliefs.
Recognizing the complexity of what the Human Being is contending with:

millions of years of evolution
genetic determinants of health
social determinants of health
developmental disabilities
mental illnesses
brain injuries
the health effects of discrimination
Trauma
Inter-Generational Trauma
poor diet adversely affecting the microbiome, which can affect the immune system and ultimately the brain.
emotional and physical intensities or "over-excitabilities" with the potential to damage the immune system and ultimately the brain.
brain damage from substance use [such substance use is not uncommonly the result of a dual diagnosis of mental illness]
Sleep Apnea, including High Altitude Sleep Apnea & Substance-Induced Sleep Apnea -- leading to insufficient oxygen, damage to the immune system & ultimately damage to the brain.
ETC., ETC., ETC.

ACKNOWLEDGING THOSE COMPLICATED REALITIES OF HUMAN LIFE, HUMAN BEHAVIOR AND INTENT DOES NOT LEAD TO MORAL HAZARD BUT TO MORAL REDEMPTION & SCIENTIFIC REALITIES.

BIG THINK with Dr. Robert Sapolsky of Stanford

DR. ROBERT SAPOLSKY IS A PROFESSOR OF BIOLOGY, NEUROLOGY AND NEUROLOGICAL SCIENCES, AND NEUROSURGERY @ STANFORD UNIVERSITY: "You are never really going to understand what is going on if you get it into your head that you're going to be able to explain everything with this is--

the part of the brain
the childhood experience
the hormone
the gene
or the evolutionary mechanism

---That explains everything.

"It doesn't work that way. Instead any behavior is the result of biology that occurred a second ago, hours ago, days ago -- a million years ago."
. . . .

"O000h it's complicated. Well, that's very useful.

"How 'bout, 'OOOh it's complicated and you better be really careful and really cautious before you think you understand the causes of a behavior, especially if it's a behavior you judge harshly.' "
. ------Prof. Robert Sapolsky Stanford

Duke Law Journal [2003]

OVERCOMING THE MYTH OF FREE WILL IN CRIMINAL LAW: THE TRUE IMPACT OF THE GENETIC REVOLUTION

Divergent

While Free Will may have a lot of problems so does Determinism. This is a really ancient construct that is not serving us well and we need to step out of it and engage in some "divergent thinking."

Structure of Legal Revolutions

"Even A Dog Distinguishes between being stumbled over and being kicked"

New Science is Amazing -- AND it has huge moral implications --NOW

Coloradans with Sex Offending behaviors: The Moral Imperatives to prevent homelessNESS, Provide placements & Services & Protect the community

5/24/2018

We've been struggling with dangerous behavior for a long time -- thousands/millions of years and we've been trying to figure it out for a long time.
Our knowledge is still very, very incomplete. Who is bearing the burden of that incompleteness -- generally people charged with bad acts.
That is deeply unethical and immoral.
It is also deeply unethical and immoral not to fully protect the community from people who are at varying risks for committing dangerous acts.
Punishment doesn't make sense anymore -- but that doesn't mean that Safety doesn't make sense anymore.
Having said that, Safety has to be addressed by individualized risk assessments, person-centered, strength-based treatment plans, and appropriate placement.
By the end of century, people may be getting their "Bio-Updates" on a regular basis -- we're not there now.
We have some very difficult ethical and moral choices. We've built some systems to handle these challenges -- but for the most part they don't have the resources to successfully discharge the tasks of humane treatment and community protection.
I really do think a lot of these issues are going to get solved -- but they can be incredibly complicated involving genetics and so much more.
It's probably not going to be in time for thousands if not millions of people living right now.
Our moment of choice for reform is NOW -- making our State more humane & safe -- also makes it more productive & efficient & prosperous.
We have to have availability of supportive housing & other placements where appropriate for Coloradans who have sex offending behaviors. And that availability must match the need.

Potential Implications of Research on Genetic or Heritable Contributions to Pedophilia for the Objectives of Criminal Law

--Recent Advances in Gene Sequencing (2014)

Colorado Civil Rights Attorney Alison Ruttenberg Photo Credit: Westword

What You Think You Know About Sex Offenders Is Wrong, Attorney Says

http://www.westword.com/news/the-truth-about-sex-offenders-9449138

"[Federal Judge Matsch] concluded: 'The fear that pervades the public reaction to sex offenses — particularly as to children — generates reactions that are cruel and in disregard of any objective assessment of the individual’s actual proclivity to commit new sex offenses.

"The failure to make any individual assessment is a fundamental flaw in the system.' "

Fourth 'sexually violent predator' takes up residence at Boulder homeless shelter
http://www.dailycamera.com/news/boulder/ci_31263478/fourth-sexually-violent-predator-takes-up-residence-at

Homeless sex offender rates on the rise in Southern Colorado

http://www.koaa.com/story/38210650/homeless-sex-offender-rates-on-the-rise-in-southern-colorado

Colorado's Sex Offender Management Board

https://www.colorado.gov/pacific/dcj/sex-offender-management-board

Intelligent, gifted, sensitivE: Congratulations! You've got a higher risk of joining the mental health club

5/20/2018

When we think of sensitivity -- we think of emotional sensitivity.
But there are all kinds of sensitivity involving:

Taste
Sight
Hearing
Touch/Skin
Smell
Etc.

Further, the line between Developmental Disability and Mental Illness can be pretty thin.

   The National Institute of Mental Health is now expressing some mental illnesses as: Genes x Age x Environment = Mental Illness.

As Human Beings, we're always after a bigger, more complete picture of reality -- AND that means taking in stimuli both externally and internally.

But we don't have an unlimited capacity to do that -- and we can also be overwhelmed by the amount of stimuli such as in some cases of Autism.

But there are probably a lot of gradations when it comes to our wiring for taking in stimuli.

Under certain circumstances, a greater than average capacity to take in and be affected by stimuli -- looks like intelligence.

In fact "gifted" individuals -- and there are many more than we recognize or acknowledge -- are characterized by "emotional intensity" as well as "over excitabilities" which can involve the senses, psycho-motor abilities, intellect, imagination, and emotion.

Further, these "gifted" individuals may have "disabilities" [including learning disabilities] -- and they are often not recognized for their abilities or "gifts." This is often known as 2e or Twice Exceptionality.

Well, that intensity and "over excitability" -- is very much a double-edged sword.

Research has recognized that people identified as intelligent have a greater risk of mental illness due to these intensities and over-excitabilities -- the idea is that it may damage the immune system and ultimately the brain.

SENG: Support for the Emotional Needs of the Gifted -- is often talking about how many "gifted" people are "misdiagnosed" with mental illness.

I'm sure a lot of people are "misdiagnosed" because our science isn't where it needs to be, including the need for much greater use of biomarkers ---

Having said that, if it looks like a duck, walks like a duck, and quacks like a duck -- maybe it is a duck.

Having said that, there are a myriad of implications that the needs of "gifted," "2e," and highly sensitive people have for our integrated physical & mental health, person-centered, strength-based care system.

Hyper-sensitive Immune System

CO Medicaid "Alternative" Mental Health Services, Discrimination & Parity

5/16/2018

Medicaid "Alternative Services" are defined as "additional non-Medicaid Services" provided under the Medicaid Managed Care Plan provided in a quantity in relation to the amount of savings of the Managed Care Plan.

On its face -- this is a good thing, right? -- people are going to get some services that can't be covered by Medicaid -- it's not complete coverage but these are "additional non-Medicaid Services."

But what if:

these are services that could be covered by Medicaid, the Colorado Department of Health Care Policy and Financing just refuses to designate it an optional Medicaid service.
And what if -- these services that HCPF is refusing to designate as optional Mental Health Services are actually some of the MOST ESSENTIAL MEDICAID MENTAL HEALTH SERVICES FOR PEOPLE WITH MENTAL ILLNESS -
- Residential Services
- Assertive Community Treatment ["the gold standard in intensive community mental health treatment"]
- Intensive Case Management

Well, those are HUGE SYSTEMIC problems. But what can we do about it --those services are "OPTIONAL" Medicaid services, right?

HCPF is NOT the only Medicaid Program or for that matter insurance provider to systematically discriminate against people with Mental Illness -- often without intent, and oblivious to the damage their policies are causing.

So the Mental Health Parity & Addiction Equity Act of 2008 is meant to address these issues. It has only recently been applied to Medicaid, since Oct. 2017.

Our Position Regarding Medicaid Alternative Services

So for services that CANNOT be Medicaid Services under any circumstances --- the Alternative Service route is very appropriate.

Also, there are Medicaid optional services that would be good to have BUT may not be strictly necessary to avoid institutionalization or homelessness.

Then there are Medicaid optional services that are ESSENTIAL SERVICES for people with mental illness to avoid institutionalization or homelessness. Residential Services, Assertive Community Treatment, & Intensive Case Management fall into that category.

Part of the problem is that States including Colorado did not comply with the 1999 Olmstead decision -- we're coming up on 20 years of non-compliance.

So other initiatives have been passed or re-emphasized due to various failures, namely the Mental Health Parity & Addiction Equity Act and CMS' much more rigorous take on Medicaid Network Adequacy after some critical federal reports.

To deem Residential Services, Assertive Community Treatment & Intensive Case Management as Non-Medicaid Alternative Services is like saying heart surgery or intensive rehab are "Alternative non-Medicaid Services" -- it's ridiculous, it's offensive, and we believe violates not just the spirit but the substance of Parity.

These are restrictions to ESSENTIAL MENTAL HEALTH SERVICES that to our knowledge are just not seen for physical or surgical ESSENTIAL SERVICES.

States can and are playing a lot of games with access to ESSENTIAL SERVICES under Medicaid for people with mental illness.

Some of these services are mixed: that is some of the elements of a service can be fully covered by Medicaid and some can't -- our understanding is employment can't be covered as a Medicaid service.

So employment would be appropriate as Non-Medicaid Alternative Service.

Further, Minnesota obtains grant money so that it can offer employment as part of Assertive Community Treatment to all where reasonably necessary. Minnesota covers all the other elements of ACT as a Medicaid rehabilitative service.

So we are working on a draft letter to CMS [Centers for Medicare & Medicaid Services] Region 8 regarding these issues. We will post a copy of the Draft on Saturday.

Note: HCPF is the CO Executive Agency charged with administering Medicaid here. This is somewhat similar to the problems at Pueblo overseen by CDHS. CDHS needed the cooperation of the legislature to begin to address the staffing problems @ the Colorado Mental Health Institute @ Pueblo.

HCPF will need the cooperation of the legislature to address this problem in "Alternative Services."

There are likely a lot of people who would want to support HCPF in making Residential, ACT, and Intensive Case Management available to all Medicaid recipients where "reasonably medically necessary," -- including law enforcement.

Among many other things including Safety, we think it is a matter of PARITY.

CODE OF COLORADO REGULATIONS 10 CCR 2505-10 8.200

8.212.4.B. Alternative services of the Community Behavioral Health Services program are:

1. Vocational -- Services designed to help adult and adolescent clients who are ineligible for state vocational rehabilitation services to gain employment skills and employment.

Services are skill and support development interventions, educational services,
vocational assessment, and job coaching.

2. Assertive Community Treatment (ACT) – Comprehensive, locally-based, individualized
treatment for adults with serious behavioral health disorders, that is available 24 hours a
day, 365 days a year. Services include case management, initial and ongoing behavioral
health assessment, psychiatric services, employment and housing assistance, family
support and education, and substance use disorders services.

3. Intensive Case Management -- Community-based services averaging more than one hour per week, provided to adults with serious behavioral health disorders who are at risk of a more intensive 24 hour placement and who need extra support to live in the community.

Services are assessment, care plan development, multi-system referrals,
assistance with wraparound and supportive living services, monitoring and follow-up.
Intensive case management may be provided to children/youth under the Early Periodic
Screening, Diagnosis, and Treatment (EPSDT) program.

4. Clubhouse and drop-in center services – Peer support services for people who have
behavioral health disorders, provided in a Clubhouse or Drop-In Center setting.

Clubhouse participants may use their skills for clerical work, data input, meal preparation, providing resource information and outreach to clients. Drop-in Centers offer planned activities and opportunities for individuals to interact socially, promoting and supporting recovery.

5. Recovery Services – Community-based services that promote self-management of behavioral health symptoms, relapse prevention, treatment choices, mutual support, enrichment, rights protection, social supports. Services are peer counseling and support services, peer-run drop-in centers, peer-run employment services, peer mentoring, consumer and family support groups, warm lines, and advocacy services.

6. Residential Services – Twenty-four (24) hour care, excluding room and board, provided in a non-hospital, non-nursing home setting, appropriate for adults whose mental health issues and symptoms are severe enough to require a 24-hour structured program but do not require hospitalization.

Services are provided in the setting where the client is living, in real-time, with immediate interventions available as needed.

Clinical interventions are assessment and monitoring of mental and physical health status; assessment and monitoring of safety; assessment of/support for motivation for treatment; assessment of ability to provide for daily living needs; observation and assessment of group interactions;
individual , group and family therapy; medication management; and behavioral
interventions. Residential services may be provided to children/youth under EPSDT.

7. Prevention/Early Intervention Services – Proactive efforts to educate and empower
individuals to choose and maintain healthy life behaviors and lifestyles that promote
positive behavioral health. Services include behavioral health screenings; educational
programs promoting safe and stable families; senior workshops related to aging
disorders; and parenting skills classes.

8. Respite Care – Temporary or short-term care of a child, youth or adult client provided by adults other than the birth parents, foster/adoptive parents, family members or caregivers that the client normally resides with.

Respite is designed to give the caregivers some time. away from the client to allow them to emotionally recharge and become better prepared to handle normal day-to-day challenges.

Respite care providers are specially trained to
serve individuals with behavioral health issues.

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Val's Blog

Focusing on Olmstead Planning has some possible benefits: Avoiding the Fundamental Alteration Defense & Making It easier for Administrative Enforcement

What Kind of Olmstead Progress is the Hickenlooper Administration Making -- Well, it's largely asking the Next Administration to do what the Hickenlooper Administration refused do in the previous years -- We'll Take It!

our criminal Justice ladder is leaning against the wrong wall -- Bio-markers might help to change that

"Conservative" D.J. Jaffe, a mental health Continuum of Care & Next Steps

D.J. Jaffe recognizing bed Space As Part of a Mental Health "Continuum of care"

What we need to do:

When it comes to aggression, maybe we could be driven to distraction by our Strengths

Trying to Move Colorado Beyond Vague Assurances to Concrete & Reliable Olmstead Commitments -- There's A lot of resistence

DOJ GUIDANCE ON OLMSTEAD

GOD OF THE GAPS & Criminal Liability of the gaps

BIG THINK with Dr. Robert Sapolsky of Stanford

Duke Law Journal [2003]

OVERCOMING THE MYTH OF FREE WILL IN CRIMINAL LAW: THE TRUE IMPACT OF THE GENETIC REVOLUTION

Coloradans with Sex Offending behaviors: The Moral Imperatives to prevent homelessNESS, Provide placements & Services & Protect the community

Intelligent, gifted, sensitivE: Congratulations! You've got a higher risk of joining the mental health club

CO Medicaid "Alternative" Mental Health Services, Discrimination & Parity

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Val's Blog

D.J. Jaffe recognizing bed Space As Part of a Mental Health "Continuum of care"

What we need to do:

DOJ GUIDANCE ON OLMSTEAD

BIG THINK with Dr. Robert Sapolsky of Stanford

Duke Law Journal [2003] OVERCOMING THE MYTH OF FREE WILL IN CRIMINAL LAW: THE TRUE IMPACT OF THE GENETIC REVOLUTION

Author

Archives

Categories

Duke Law Journal [2003]

OVERCOMING THE MYTH OF FREE WILL IN CRIMINAL LAW: THE TRUE IMPACT OF THE GENETIC REVOLUTION