Category: HCPF

SEPT 4 MEETING WITH HCPF: LAW, POLICY & DISCRETION

9/8/2019

Federal Law

Colorado has historically taken a pretty laissez faire attitude towards compliance with Federal Disability Civil Rights Laws: They're not necessarily against -- but if it starts getting inconvenient --- they'll skip it.

Further, that is not just Colorado -- that is most States.

So other long-time Mental Health Advocates and I were NOT SHOCKED to find that HCPF [Colorado's Department of Health Care Policy & Financing] seemed to view compliance with FAIR HOUSING as a discretionary matter.

We brought up FAIR HOUSING issues relating to HCPF and its providers this SUMMER --- NOTHING HAS BEEN DONE ON THAT. IT SHOULD HAVE BEEN RESOLVED THIS SUMMER.

Well, we had this meeting didn't we? Most advocates have had their time wasted by State meetings for years -- and in the case of Mental Health Pioneer Amy Smith -- 2 decades.

A meeting is not action -- FURTHER -- State Officials very rarely engage in an in-depth discussion of TIMELY SOLUTIONS TO VIOLATIONS OF FEDERAL CIVIL RIGHTS LAW -- they just try to keep you talking and hope you don't realize they are stringing you along.

WE NEED HCPF to PUT FAIR HOUSING COMPLIANCE as that relates to CASE MANAGERS & PROVIDERS and themselves as the GIVER of REASONABLE ACCOMMODATIONS on a FAST TRACK.

THIS IS NOT DISCRETIONARY. Denver Metro Fair Housing and or Civil Rights Education and Enforcement Center could provide Education as could the Division of Housing in the CO Dept. of Local Affairs.

If necessary we will seek outside litigators to investigate and pursue this matter further.

"Policy" Issues

So here the State does have a lot of discretion.

By Amy Sherald

We want to clarify that the specifics we want to engage in are STATE ACTIONS NEEDED for COMPLIANCE WITH THE LAW.

Most advocates don't have the resources to be terribly unrealistic and are more than willing to go along with "Reasonable Compliance Plans."

Maybe you really can't get low level resolution of systemic violations of Federal Disability Civil Rights Law @ the Executive Agency Level.

THE NEED FOR FEDERAL LEADERSHIP TO ADDRESS UNCERTIFIED "GRAVELY DISABLED" -- THE ANSWER IS NOT CERTIFICATION

7/29/2019

So all of this has a great deal to do with:

folks with cognitive disabilities that have mental illness
brain injury
substance issues, and
developmental disabilities

AND

are homeless or @ great risk of homelessness
involved with CHILD WELFARE
involved with and or @ great risk of involvement with the Criminal Justice System

WestWord did a story recently on how "insanity" isn't just a plea for murderers anymore. The ax murderer or Aurora Theater shooter is who we often think of as the person with mental illness in the Criminal Justice System.

There are thousands of people with MI & Brain Injury & Substance Issues in the Criminal Justice System while Incompetent to Proceed and Insanity are strictly construed.

CO Medicaid Providers & the CO Dept. of Health Care Policy and Financing have no idea how @ risk these folks are, even as Medicaid's own providers are pursuing harassment charges.

Further, most Medicaid folks are not familiar with the TONE of JUDGES towards people with disabilities, MOST IMPORTANTLY in the JUDGE's SENTENCING.

All those THOUSANDS of people with cognitive disabilities didn't go to prison by accident. AND every little prior builds on itself.

We've got to get really honest about what it takes to keep people with cognitive disabilities out of the Criminal Justice System.

So the conservative Treatment Advocacy Center as well as the Mental Illness Policy Organization have been big proponents of certification and assisted outpatient certification -- which Colorado has.
Further, Colorado state officials have in the past backed amendments to Colorado's certification statutes broadening the definition of "gravely disabled." This has been supported by a number of Colorado organizations including Mental Health Colorado and NAMI Colorado.
Similar actions have been taken in other states.

Certification statutes are State Statutes.

On the other hand, the following are Federal Statutes:

The Medicaid Act, including Medicaid Network Adequacy
Section 504 of the Rehabilitation Act [reasonable accommodations]
The Americans with Disabilities Act [including Olmstead and "reasonable accommodations of policy, practice & procedure"]
The Federal Fair Housing Act [reasonable accommodations]
Mental Health Parity & Addiction Equity Act of 2008

Further, broad concepts such as "reasonable accommodations" and "parity" require an enormous amount of guidance.

We favor highly detailed but flexible Federal data-driven templates for States to comply with, and state ability to request data-driven modifications of such detailed templates if not contrary to law .

It is a lot easier to work off something -- than to create it out of whole-cloth.

A HUGE, COMPLICATED issue is FAIR HOUSING as it relates to Medicaid State Agencies, Medicaid Providers and people with cognitive disabilities.

Colorado & Most States are NOT complying with:

Olmstead (1999) -- most States are very aware of Olmstead, or
The Federal Fair Housing Act (1968); Amendments (1988)

[CO's Dept. of Health Care Policy & Financing is NOT familiar with the Federal Fair Housing Act even though it directly impacts their agency, placement providers, case managers and consumers -- Further, a lot of this does relate to the INFORMATION OVERLOAD that is stressing the entire society.]

So there are a lot of things going on with regard to these issues. Resources being a HUGE issue.

Nobody knows better than we do that accommodations can take resources, especially in light of the fact we recently had a situation figuratively "blow up" on us when we didn't have the resources to make the accommodations needed for an individual.

There are a lot of practical aspects to this that need to be worked through -- Technical Assistance Centers could really help with that. We don't need to re-invent the wheel in 50 States -- but we do need to give States the opportunity to make data-driven modifications if not contrary to the law.

Gravely Disabled

Ethics & The Current System

7/27/2019

When we think about problems with the Mental Health System 2 Common issues that come up are:

Civil Commitment Statutes, and
HIPAA

Neither of these issues really gets to the root cause of most problems.

If there are sufficient:

housing
placements,
services, and
reasonable accommodations --

The rest is largely moot. When there aren't -- providers, family members and attorneys have a lot of hard choices to make.

We've learned the hard way how difficult it is to make the decision to file a petition for court-ordered evaluation even when the grounds may exist -- time, resources, unnecessary further upset, etc.

We've talked some on this page about what the goal is -- and not mistaking the "means" as the end. The goal is NOT certification.

The goal is adequate placements and services and avoidance of homelessness and criminal justice involvement.

That is not cut and dry. AND most importantly, are we going to do more harm than good?

That is the difficult problem many providers, family members and attorneys are faced with.

So the ultimate answer is not Civil Commitment Statutes that providers, family members and even attorneys may feel could make the situation worse.

But providers, family members, attorneys and the communities need VIABLE alternatives. Right now we don't have too many alternatives. That is why so many people rotate in and out of the Criminal Justice System despite being on Medicaid and often dumped by their providers.

HCPF [Colorado's Dept. of Health Care Policy & Financing] has not sufficiently addressed this.

Trying to reform Colorado's crappy mental health System---The first step is recognizing the problem(s)

9/16/2018

It was really Mental Health America's report ranking Colorado 48th in Child Mental Health Care that is in large measure spurring the current reform efforts in State Government.
Data is really critical for reform in modern society, anecdotal reports are often not enough and individuals and advocates often don't have access to the information that is needed -- and sometimes that's because the State isn't collecting it.
We were really pleased to see some of the questions on OBH's Roadmap to Reform Children's Mental Health.
While people can certainly play with the numbers, our experience is that fair-minded data collection CALMS THINGS DOWN A LOT.
Then one can really get down to creative problem solving and there are generally pretty complicated reasons for problems.
Being able to agree that:

There is a problem, and
We need to solve it

really saves enormous time and energy right there.
It looks like that is happening in Children's Mental Health with a collaborative approach among OBH, HCPF [CO Dept. of Health Care Policy & Financing] and stakeholders.
The same needs to happen in Adult Mental Health. That's where we think a Tiered System could transform our dangerously inadequate system of intensive mental health services.

“The State of Mental Health in America” report. 

OBH's Questionnaire on the Roadmap to Reform Children’s Mental Health -- Deadline Sept. 19, 2018

https://mailchi.mp/state.co.us/provide-feedback-on-the-roadmap-to-reform-childrens-mental-health?e=cfc778e7cc

The Colorado Health Institute is another option for State Government and Stakeholders when it comes to non-partisan data collection and analysis.
https://www.coloradohealthinstitute.org/research/behavioral-health-colorado

Mental Health Parity & Assertive Community Treatment: CMS Guidance, Reasonable Medical Necessity, Quality & Quantity, CMS & SAMHSA, HCPF & OBH

2/9/2018

Mental Health financing in this Country is pretty convoluted and there are divided responsibilities -- BUT the BIG KAHUNA IS MEDICAID, health insurance, for funding of Community Mental Health Treatment.
Further, MEDICAID is an ENTITLEMENT and CMS has issued guidance on MENTAL HEALTH PARITY.
Even further page 36 of CMS' Mental Health Parity Toolkit references "Assertive Community Treatment" and "reasonable medical necessity" as the appropriate standard.
"Fidelity" to the Assertive Community Treatment Model is important and "Prioritizing" relevant populations is important -- BUT we gotta get REAL and move beyond "Prioritization" and make this an ENTITLEMENT under MEDICAID where "REASONABLY MEDICALLY NECESSARY"
Colorado's Department of Health Care Policy & Financing (HCPF) & Office of Behavioral Health (OBH) are in some senses a State reflection of the National division of the Centers for Medicare and Medicaid Services (CMS) and the Substance Abuse and Mental Health Services Administration (SAMHSA).
National advocacy groups such as the Mental Illness Policy Organization and the Treatment Advocacy Center have demonized SAMHSA we think quite unfairly, especially given the reality that it is CMS that funds most of the community mental health treatment in this country.
Well, Parity has the potential to address the INSANE CONSEQUENCES that D.J. Jaffe and the Mental Illness Policy Organization, the Treatment Advocacy Center, and the rest of us are so concerned about. BUT NOT through SAMHSA -- through MEDICAID.

Response From CO Medicaid Director Gretchen Hammer

The Behavioral Health Organizations are able to make a medical necessity determination for ACT, like all other BHO services. Their requirements for medical necessity determinations are in their contracts. The specific language is:

2.2.10. The Contractor may place appropriate limits on a service:
2.2.10.1. On the basis of criteria applied under the Medicaid State Plan, such as medical necessity.
2.2.10.1.1. All medical necessity determinations must utilize the medical necessity criteria defined in 10 CCR 2505-10 8.076.

The rule was recently updated by the Medical Services Board, the rule making authority for the Department. One can find the current rule on the Secretary of State website.

Orchid's Take: Most States employing a "reasonable medical necessity" determination for ACT specifically define it in Statute or regulation -- not under a general definition of reasonable medical necessity. That may be too vague and many providers likely need additional guidance.

What Colorado is really lacking is a definition for "reasonable medical necessity" for ACT.

AND How does that affect CAPITATION RATES?

There have been all kinds of "insane" incentives for Medicaid Community Mental Health to cost shift their neediest patients to the streets and the jails.
If those Community Mental Health Centers are not adequately reimbursed for Assertive Community Treatment -- one can be sure they are NOT going to be doing it.
Well, what does that mean: LOTS of People with Mental Illness in:

Prisons
Jails
the Streets
Nursing Homes, and
Mental Institutes

Val's Blog

SEPT 4 MEETING WITH HCPF: LAW, POLICY & DISCRETION

THE NEED FOR FEDERAL LEADERSHIP TO ADDRESS UNCERTIFIED "GRAVELY DISABLED" -- THE ANSWER IS NOT CERTIFICATION

Ethics & The Current System

Trying to reform Colorado's crappy mental health System---The first step is recognizing the problem(s)

Mental Health Parity & Assertive Community Treatment: CMS Guidance, Reasonable Medical Necessity, Quality & Quantity, CMS & SAMHSA, HCPF & OBH

Author

Archives

Categories