Blog Archives

The ADA & Olmstead -- Still the Best Hope Against Recalcitrant States

11/28/2015

I have said this numerous times, and I don't think I can say it enough --- It is NOT that the State is doing NOTHING.
It is that they are not doing enough to comply with the law, and most importantly to address the problems of people with mental illness:

who are homeless,
incarcerated,
otherwise institutionalized,
lacking access to housing, intensive treatments such as Assertive Community Treatment,
and what has been brought home once again after the death of Michael Marshall in the Denver Jail -- adequate and sufficient jail diversion programs statewide.

The reality is that typically at least under Olmstead -- there are provisions for "waitlists moving at a reasonable pace" and "reasonable plans to bring to scale to meet the need."

Americans with Disabilities Act (ADA) (1990) & the US Supreme Court's decision in Olmstead (1999)

DOJ Letter and Q&A on ADA's Integration Mandate and DOJ Enforcement -- Even if you know a lot about Olmstead -- if you have not read this -- you probably will want to ----
2010 DOJ/Georgia Comprehensive Olmstead Settlement Agreement Involving 9,000 People With SPMI Including Those Who Are Chronically Homeless Or Being Released From Jails And Prisons.
DOJ Says 2010 Georgia Olmstead Settlement Agreement Template For Settlement Agreements Across The Country
2010 DOJ Findings Letter -- No Fundamental Alteration Of Delaware System Required Where Issue "Bringing To Scale" Scattered Site Supportive Housing & Assertive Community Treatment (ACT)

The State has been determinedly uninterested in any discussions to bring Colorado in compliance with Olmstead using waitlists moving at a reasonable pace and reasonable plans to meet the need for housing and assertive community treatment.

As much fun as it is for a public interest lawyer to demonize the State, the reality is -- they are making it pretty easy.

At some point this will all be over, we will ultimately, ultimately get our Complaint filed, DOJ may or may not intervene, the State if forced may actually come to the table or not or we will have our hearing before a Federal Judge ---
But right now there's actually some time for the State to signal that:

They actually do care;
They actually can comply with the law;
They actually can engage in good faith negotiations

Very few people in the mental health community believe the State can or will do those things, and those beliefs are based on the State's past behavior -- what mental professionals will tell you is one of the best predictors of future behavior.

This is an interesting statement of the law (the Mental Health Parity Addiction Equity Act (2013) from CMS ---has some good things from our perspective, although they seem to be under the illusion that they can exempt themselves from parts of the Act when its inconvenient --- Hmmmm . . . probably not.
But unless somebody challenges it, they can.
(Ya Gotta Love It)

Mental Health Parity Addiction Equity Act (2013)

http://www.samhsa.gov/health-financing/implementation-mental-health-parity-addiction-equity-act

Equal Protection & Due Process Clauses of the 14th Amendment to the US Constitution (1868)

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Getting Everyone "In" Humanity's "In Group"

11/21/2015

That title just sounds so sweet doesn't it -- we could just all hold hands and sing Kumbaya.

I've had an awfully long year of being jerked around by the State when they weren't just too indifferent or busy to care or fake polite-- and to paraphrase John Lennon in "Imagine" -- I'm not the only one.

Then the death of Michael Marshall.

And all that hard work of soothing myself so I could sound professional --- well there was a lot more work to do.

Because when you get treated like the "out-group" and your suffering barely registers a yawn by those in "power," "authority," whatever --- then you start viewing them as the out-group.

Attorney Corzine's Prescription for how to get everyone in Humanity's In Group is to rip-off Stephen Covey -- Build Up Each Other's Emotional Trust Accounts --

Enter into good faith negotiations on Olmstead
Just Come Off It: Nobody Here is Perfect ---If you work with people in good faith, they will work with you. If you don't, you just sow seeds of mistrust.

The alternative is what we are doing-- the State incarcerating vast numbers of poor people with a special emphasis on those who are Black and Brown and with Disabilities --- and those families' relatives suing the State when the State or political subdivision has killed the person because employees have been inadequately trained, there are grossly inadequate mental health services in the community, etc., etc., etc.

I think the mental health community & the refugee community have a lot in common:
1. It's easy to ignore them -- they have very little political clout;
2. Their "social determinants of health" are often very poor;
3. They both tend to have physical and mental health problems related to poor social determinants of health;
4. What might have been minor human suffering is ignored by the larger community until its horrific human suffering on a mass scale and then the individuals themselves are blamed for the suffering which was in large measure a result of the indifference of the larger society.
5. But can we afford it? Certainly for the refugees the evidence is pretty clear that countries more than make up the money spent albeit in 3 to 5 years;
6. With respect to people with mental illness, here in Colorado where there are actually resources the unconvincing argument runs something like this, "We want to help people with mental illness in Colorado BUT WE JUST DON'T HAVE THE MONEY."
The reality is if they would take time enough out of their "BUSY SCHEDULES" they could save money by investing in alternatives to incarceration, homelessness, etc.

We Can Do This IF WE'RE SMART ABOUT IT, AND MOST IMPORTANTLY IF WE VIEW ALL COLORADANS AS PART OF OUR "IN-GROUP" -- INCLUDING THOSE WITH SERIOUS MENTAL ILLNESS, HOMELESS, AND INCARCERATED.

Response to D.J. Jaffee on the Murphy Bill

11/14/2015

Okay first -- this demonization of SAMHSA may just be a strategy to find money for the Murphy bill's new Asst. Secretary of Mental Health & Substance Abuse which I don't necessarily oppose the position, I just don't think one has to slander SAMHSA to support such a position.

Val's Take

Ironically SAMHSA is all about evidence-based programs

Finding Evidence-Based Programs & Practices [on the SAMSHA website]
Example: Assertive Community Treatment (ACT) Evidence-Based Practice Kit
SAMHSA'S National Registry of Evidence-Based Programs & Practices

As a practical matter, those with the most serious mental illness who are in the community needing long term care are served by Medicaid (or more often than not -- NOT being served by Medicaid because the States have refused to provide for an adequate number of intensive service slots such as assertive community treatment or fund necessary housing).
Going off on such a peripheral player as SAMHSA really diverts attention from the real players and problems ---the Centers for Medicare & Medicaid Services (CMS), the States & HUD.
The States, by & large (Colorado included) are in flagrant violation of the U.S. Supreme Court's 1999 Olmstead decision, holding that unnecessary institutionalization of people with mental illness amounts to discrimination, as well as subsequent caselaw and US Department of Justice Enforcement actions.
What we really need is for CMS & HUD to require the States to come in line with DOJ Enforcement Actions. A great start would be:

Waitlists moving at a reasonable pace for housing and assertive community treatment; and
Reasonable plans to bring housing and assertive community treatment to scale for those meeting the level of care for Medicaid long term care home & community based services.

(See 2010 DOJ/Delaware Findings Letter http://www.ada.gov/olmstead/olmstead_
cases_list2.htm#de )

   Well, as a former PAIMI attorney I do have some bias, and I think that the important thing is that it is "Protection and Advocacy for Individuals with Mental Illness."

I do think there is a challenge for the mental health advocacy community ranging across the spectrum and including PAIMI, the Treatment Advocacy Center, the Mental Illness Policy Organization, etc. to get a little bit more on the same page.

I think one of the problems is that we're not talking about one system, we're really talking about multiple systems and if we don't have some familiarity with almost all of those systems we really don't necessarily have a good sense of what the priorities should really be.

I think that may be a challenge for both PAIMI and the Treatment Advocacy Center, and the Mental Illness Policy Organization, because it is really Medicaid that is the key to providing a robust continuum of community care ranging from say Assertive Community Treatment, Intensive Case Management, to less intensive modalities.

None of this is to say the State shouldn't have adequate bed space but one of the reasons it doesn't is because it doesn't have a robust continuum of community care and people get "stuck" in the institutions because there is nowhere to discharge them to with adequate supervision.

At one point in time, I think there was talk of creating a Medicaid P&A. I do think that trying to bifurcate institutions from the community ultimately doesn't work because many people with mental illness will experience both, and people with disabilities in general are often more expert in the complex systems they find themselves in than their case managers or advocates.

So from my perspective, it's focusing on the real power brokers -- not PAIMI or SAMHSA -- BUT Medicaid, the States, & HUD.





The idea behind the IMD rule is that Medicaid is not going to pay for institutes of mental disease -- that's the State's responsibility, AND the hope was that it would encourage States to fund community Medicaid mental health with individual and small residences.

The goal of ending the practice of incarcerating people with mental illness is compelling, and I would support this exception to the IMD rule, with this caveat:

We have to have a robust continuum of care, without it the threat of incarceration, homelessness, etc. remains.

I think this is perhaps the most difficult issue ethically, because the State is so often a grossly negligent parens patriae (protector of persons who are legally unable to act on their own behalf).

I don't have an objection to loosening HIPAA & FERPA in this way, and I am open to the possibility that I may be wrong.

If people have arguments they want to get to me, they can e-mail me -- [email protected]

Well, Colorado has out-patient certification and I don't know that it has been a great panacea.

We're really a national poster child for a Failed Mental Health System.

The problem is that you gotta fund your Mental Health System, and that is something that even the Treatment Advocacy Center & Mental Illness Policy Organization have recognized.

SAMHSA is a critical source for evidence-based practices and in fact that is one of the great roles that they play.

We need to focus on CMS and HUD as instruments to bring the States in line with Olmstead and DOJ enforcement actions, because States are NOT doing it on their own and thousands and thousands of people with mental illness are incarcerated and homeless because of it.

The idea that poverty stricken people with mental illness and their advocates should have to re-litigate settled law in 50 states is not just ridiculous, it is leading to the horrific failed mental health systems we have in Colorado and across the country.

Federal executive agencies such as CMS and HUD could easily take their blinders off and start really requiring states to comply with the law.

Colorado is crying for Federal Enforcement and we're not the only ones AND at this rate DOJ may get to all of us within the next 100 years.

Scapegoating of SAMHSA & Mis-Statement of Facts

D. J. Jaffee

Perhaps the most important provision of HR2646 is the dismantling of the Substance Abuse and Mental Health Administration (SAMHSA) and replacing it with an Assistant Secretary of Mental Health and Substance Abuse. SAMHSA is a disaster.

It works at the federal, state, local and nonprofit level on moving mental health funds away from helping the seriously ill and toward non-evidence based, politically correct and often harmful programs designed to improve the mental health of all others.

None of SAMHSA’s strategic initiatives are focused on helping those with serious mental illness or on reducing arrest, violence, incarceration, homelessness, hospitalization and suicide among the seriously ill.

HR2646 requires the secretary to have expertise in serious mental illness, rely on evidence before expanding a program and to make serious mental illness more of a priority.

Replacing SAMHSA with an Assistant Secretary of Mental Health and Substance Abuse will give mental illness a higher profile and allow better interagency coordination.

PAIMI

The second most important provisions are those refocusing the Protection and Advocacy for Individuals with Mental Illness (PAIMI) program on preventing abuse and neglect of persons with mental illness.

PAIMI was founded by Congress primarily to provide lawyers to protect the institutionalized seriously mentally ill individuals from abuse and neglect.

This was eventually expanded to the uninstitutionalized and other activities were allowed.

PAIMI does some good work for some individual consumers, but that is trumped by it’s system wide lobbying efforts designed to free the seriously ill from treatment.

It is PAIMI’s unrelenting opposition to Assisted Outpatient Treatment and the presence of state hospitals that is causing more mentally ill to be incarcerated.

The original version of HR2646 refocused the program on protecting community and institutionalized patients from abuse and neglect.

However the new bill, with amendments not yet incorporated, might allow PAIMI to engage in other activities such as advocating for benefits and educational opportunities.

For the first time, there will be a grievance procedure so those who believe PAIMI is acting inappropriately can have some recourse. We’ll see how that develops.

Reining in PAIMI and SAMHSA will help remove federally funded opposition to improving services for the most seriously ill.

Medicaid's IMD Rule -- Medicaid Can't Fund Institutes of Mental Disease

An obscure provision of Medicaid law prevents states from getting reimbursed by Medicaid for adults with serious mental illness who need psychiatric hospital care.

HR2646, as amended and passed in subcommittee, allows Medicaid to reimburse states for 20 days per month of hospital care in a psychiatric hospital.

However, prior to the bill moving to the full committee, that number will be reduced to 15 days, based on data from the Center for Medicare and Medicaid Services (CMS).

If funded, it could start to end the practice of incarcerating, rather than hospitalizing many seriously ill. “If funded” is a big if.

Medicare prevents beneficiaries from getting more than 190 days of inpatient care. In a previous version, HR2646 eliminated the prohibition.

Unfortunately, the bill that was passed does not eliminate the provision, so Medicare can still discriminate against the seriously ill.

This should offend all those who believe in ‘parity.’ I assume this was done for budgetary reasons.

HIPAA & FERPA Not Simple Ethical Issues

Some seriously ill need help from families.

But existing HIPAA and FERPA law prevents healthcare workers and schools from telling parents what meds their children are on, what their diagnosis is, when next appointments are, which side-effects to watch out for, and other information they need to facilitate care.

HR2646 as amended, allows families that provide care out of love, to get a small subset of the information paid providers already receive if the information is necessary “to protect the health, safety, or welfare of the individual or others.”

The disclosure is narrowly limited to the diagnoses, treatment recommendations, appointment scheduling, medications, and medication-related instructions, but not personal psychotherapy notes.

The information can only be disclosed if the absence of such information and proper treatment will lead to a worsening prognosis or an acute medical or mental health condition.

The bill also makes explicit, what has always been left unsaid: nothing in HIPAA prevents doctors from receiving information from family members. These are all important.

Assisted Outpatient Treatment

Assisted Outpatient Treatment allows judges to order a tiny subset of the most seriously ill into six months of mandated and monitored treatment while they continue to live uninstitutionalized in the community.

AOT is the most successful program at reducing institutionalization and incarceration of those who already accumulated multiple incidents of arrest incarceration, hospitalization, or homelessness because of the inability or unwillingness to voluntarily comply with treatment that was made available to them.

The bill as passed provides $20 million for three years (2018, 2019, 2020) to go to states with existing or new AOT programs.

It also provides a 2% bump in mental health block grants (under $10 million divided by all states) to states with an AOT law.

The bill also allows states to increase their mental health block grant by 2% if they have a civil inpatient or outpatient law that allows the gravely disabled to receive services under it.

Mr. Murphy amended the bill, in response to Democrat concerns, so it does not require to states to have grave disability standards or offer assisted outpatient treatment, but gives them a bump if they do.

Conclusions on HR2646: By minimizing the ability of SAMHSA and PAIMI to impede treatment of the seriously ill, it makes future reform easier.

The provisions addressing AOT, grave disability standards and state hospitals, if funded, will get treatment to many who would otherwise become incarcerated.

HIPAA provisions will make it easier for families to keep loved ones healthy.

And the requirement for programs to be evidence-based will lead to useless programs being replaced with useful ones.

The Evil Society Games

11/13/2015

I don't know about you, but I was really overjoyed several months ago when a 20-something Denver child welfare worker was criminally prosecuted for doctoring some of her records.
I was glad to see that the system was working and in fact was fair and equitable.
In fact, that is the kinda thing I really like to see -- that little social worker's ass really nailed to the wall & she would probably have a hard time getting a job after that.
Of course, we all hated to do it -- it had to be done -- & we have to be "accountable." And the fact that the child welfare system was criminally messed up was really irrelevant.

I'm being facetious, of course.. The problem is we lay this on all kinds of people BELOW US.
So when someone ABOVE US is held "accountable" -- there is a certain amount of rejoicing.
But what if the system weren't as horribly unfair as it is now, AND we recognized that everyone operates in a complex context and within that is doing the best that he or she can at any given moment.
In our society, we have created complex and sometimes perverse rules about when and to whom you can be honest and various privileges. Wouldn't it just be wild if you could always be honest & people would try to help you.
Well, I digress, the point is, I don't want to see us try to criminally prosecute ourselves out of this mental health crisis that is crying for massive, massive resources.

Ed, I know you've only been here 2 years -- but we've noticed some performance problems -- & people with mental illness in Colorado are suffering & this has been going on for 50 years, you understand we're going to have to bring felony charges against you -- we can't treat you any different than anybody else..

It's been nice knowing you.

ACT -- I KNOW We Can Get This

11/11/2015

My frustrations in attempting to discuss Assertive Community Treatment (ACT) with the State & with some of my favorite colleagues in the Mental Health Community or provide an easy primer to the uninitiated, often remind me of an uncomfortable interaction at the Bench in open Domestic Court with my Client "Joe":

Val: Your Honor, I think we can easily dispose of opposing counsel's arguments. I'll just have my client read from the record.

Joe: A look of pure terror

Val: Joe -- just right here . (Now pointing vigorously, pointing more vigorously almost ripping the paper.)

(Finally, when Val is practically on the ground pointing at the paper . . .

Joe: (Joe bends down & whispers) Val, I can't read.

Well my point isn't that state officials and mental health advocates need literacy classes (although I'm all for them), it's that something else is going on with regard to State & Advocate reticence when it comes to fully embracing ACT.

For the State, concerns about money, and I think just the inertia that comes with really changing the system -- because this could save the State money and it is legally required.

Of course, "real change" doesn't equate to the "fundamental alteration defense" under Olmstead or we could never make any progress, especially when Colorado already has ACT just not near enough of it.

For advocates concerns about coercion. Bottom Line: ACT is NOT synonymous with outpatient certification AND since it is on the high end of intensity of community mental health treatment, it wouldn't be surprising to see it with outpatient certification.

I think it is important to address advocate concerns about ACT, have peer members on the ACT Teams, etc. AND "Eternal Vigilance is the price of liberty" --- Jefferson

Of course, from my perspective a big part of what is necessary both for the State & Mental Health Advocates is getting out of denial and acknowledging what a F'ing Failure the current system really is.

AND in part that is recognizing that while those people with mental illness in jails, prisons and homeless are a fraction of the overall mental health community THEY ARE US.

To give you an idea of just how BAD it really is SEE HUMAN RIGHTS WATCH, of course, we've already seen the Christopher Lopez video -- AND administrative segregation is alive & well for people with mental illness in Colorado's jails.

For general information on Assertive Community Treatment, check the ---

Orchid A-Z Index

I'm going to use the right column to provide links to:

Examples of DOJ (US Department of Justice) Settlement Agreements that included ACT

DOJ Settlement Agreements that include ACT

U.S. v. New York – 13-cv-4165 – (E.D.N.Y. 2013)

Community-Based Mental Health Services

The Agreement will ensure that individuals with serious mental illness receive the array of services they need to successfully transition to, and remain in, community-based settings.

These services include ACT, mental health clinic services, personal care services, home health services, care coordination, and crisis services.

See Fact Sheet on the Agreement
http://www.ada.gov/olmstead/olmstead_cases_list2.htm#ny

U.S. v. North Carolina – No. 5:12-cv-557 – (E.D.N.C. 2012)

Following a nationally recognized fidelity model, the number of ACT teams throughout the State will expand to 50 ACT teams with the capacity to serve 5,000 individuals by July 1, 2019.

See Fact Sheet on the Agreement
http://www.ada.gov/olmstead/olmstead_cases_list2.htm#NC

Amanda D., et al. v. Hassan, et al.; United States v. New Hampshire, No. 1:12-CV-53 (SM)

- Over the first three years of the Agreement, the State will expand ACT team service capacity so as to be able to serve at least 1,500 people in the target population {Of course, New Hampshire is only 1/3 the population of CO]; this expansion will provide ACT team services to hundreds of additional people in need.

- The State will develop effective regional and statewide plans going forward to provide sufficient ACT services to ensure reasonable access by additional eligible individuals.

See Agreement Fact Sheet
http://www.ada.gov/olmstead/olmstead_cases_list2.htm#wood

Perhaps they will listen -- Getting Beyond Starry, Starry Night

11/7/2015

Well, I'm starting with Don McLean's beautiful "Vincent" for a number of reasons:

I love it.
It illustrates the historical idea of the artist with mental illness (& whether Vincent Van Gogh had mental illness or epilepsy or nothing, we have historically thought he had mental illness)
Vincent is greatly misunderstood by the society.
AND there is a fair amount of suffering going on for Vincent.

Now the question I want to pose is, "How far have we come as a society for people with mental illness?"

Sure, we have the ADA (Americans with Disabilities Act in the US) requiring "reasonable accommodations" to be made in employment which is extremely important AND we have a lot of unemployed and under-employed people with mental illness AND a hell of a lot in jails, prisons and homeless.

I'm going to talk about this in terms of Neuro-Diversity. From a statistical standpoint, we are all very much alike AND we do pick up on very small differences.

If one is unexpectedly different in some way, it can be exceedingly difficult to both explain your weaknesses and your strengths.

So when Don McLean sings, "They would not listen. They did not know how . . . They are not listening, they are not listening still . . ." --- most people with "mental illness" can relate to that; of course, so can just about everybody else-- maybe it's just a question of frequency and intensity.

I'm going to throw something out here [somebody else may have already suggested this -- I'd be kinda surprised if they hadn't] , it may not be true, and mental illness is very much associated with "Stress", etc.

I'm wondering if very much like a person who is born blind -- the brain "may" re-wire itself to try to communicate to others and calm and soothe oneself through higher levels of :

Art
Music
Language
Etc.
AND if things get really desperate, thought broadcasting.

Okay, well what's the point? Even if that last part is all garbage, the point is that we don't listen to people with respect to what their strengths really are, their weaknesses, or what they want -- we just try to cram them into the existing models of employment that more often than not don't work for them, AND if it doesn't work well they must need more drugs or cognitive behavioral therapy.

We are going to have to create some new models of employment that work for people with essentially different nervous systems that take full advantage of their incredible strengths and compensate for weaknesses -- just like anybody else except they are different.

This is going to require a lot of creativity & systemic thinking -- just the kind of thing for people with "mental illness."

"They would not listen. They did not know how . . .They are not listening, they are not listening still . . . perhaps they never will. . ."

Science is accelerating at the National Institute of Mental Health, leading to new understandings, beyond the DSM 5 which should impact Strength-based Recovery Programs and Employment Programs.

See:

A Bad Job Is Harder On Your Mental Health Than Unemployment

Being in poor-quality work which, perhaps, is boring, routine or represents underemployment or a poor match for the employee's skills is widely regarded as a good way for the unemployed to remain connected to the labor market — and to keep the work habit. But Butterworth's data contradicts this.

The HILDA data shows unambiguously that the psychosocial quality of bad jobs is worse than unemployment. Butterworth looked at those moving from unemployment into employment and found that:

Those who moved into optimal jobs showed significant improvement in mental health compared to those who remained unemployed.

Those respondents who moved into poor-quality jobs showed a significant worsening in their mental health compared to those who remained unemployed.

http://mashable.com/2014/12/17/bad-jobs-mental-health/#zDqltmx2Ksq0

Val's Blog

The ADA & Olmstead -- Still the Best Hope Against Recalcitrant States

Getting Everyone "In" Humanity's "In Group"

Response to D.J. Jaffee on the Murphy Bill

The Evil Society Games

ACT -- I KNOW We Can Get This

Perhaps they will listen -- Getting Beyond Starry, Starry Night

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