Category: US Department Of Justice Olmstead Guidance

OLMSTEAD & DISABILITY HOUSING

1/22/2021

AT LEAST TODAY -- OLMSTEAD GETS TO HOUSING WHERE PARITY & MEDICAID NETWORK ADEQUACY DON'T

A lot of people might ask --- isn't the timing off in trying to push Olmstead during a pandemic?

My response is this may be the BEST TIME --- since the financial pressure on a State may be less, in fact a lot less --- than it would normally be.

And that really allows States to focus on "THE BONES OF THE HOUSE" ---- "THE BONES OF OLMSTEAD."

In a lot of ways, "The Bones of Olmstead" are:

Measurable Goals
Reasonable Time Frames and
Funding to Support the Plan

To bring:

Supported Housing
Home & Community Based Service (HCBS) waivers
Crisis Services
Assertive Community Treatment (ACT) teams
Case Management
Respite
Personal Care Services
Peer Support Services, and
Supported Employment

TO SCALE TO MEET THE NEED.
Colorado and most states are providing pretty much all of the services listed above --- but far below scale and it's costing states a lot of money to provide what they are providing.

Olmstead provides a LEGALLY REQUIRED FRAMEWORK to deal with some difficult issues. Some very difficult issues.

Olmstead provides a level of accountability and breadth that is certainly beyond the Ad Hoc Stakeholder Group and because Olmstead gets to HOUSING -- it is beyond Parity and Medicaid Network Adequacy as well.

Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.
7. May the ADA and Olmstead require states to provide additional services, or services to additional individuals, than are provided for in their Medicaid programs?

A: A state’s obligations under the ADA are independent from the requirements of the Medicaid program.

Providing services beyond what a state currently provides under Medicaid may not cause a fundamental alteration, and the ADA may require states to provide those services, under certain circumstances.

For example, the fact that a state is permitted to “cap” the number of individuals it serves in a particular waiver program under the Medicaid Act does not exempt the state from serving additional people in the community to comply with the ADA or other laws.

15. What types of remedies address violations of the ADA’s integration mandate?

Olmstead remedies should include, depending on the population at issue: supported housing, Home and Community Based Services (“HCBS”) waivers,crisis services, Assertive Community Treatment (“ACT”) teams, case management, respite, personal care services, peer support services, and supported employment.
Our understanding is that Colorado State Government and the Behavioral Health Task Force are making an enhanced commitment to Parity.

When it comes to Olmstead, we would like to see Colorado put in "THE BONES of the HOUSE" for a Housing Olmstead Plan that gets to:

Supportive Housing, and
Accessible Housing

for People with Disabilities who are Institutionalized or at Great Risk of Institutionalization.

THE VA AND MEDICAID COGNITIVE DISABILITY

1/20/2021

[P.S. OLMSTEAD ISN'T LIMITED TO MEDICAID]

In 2021, a lot of Americans have someone in their family or know someone or are someone with:

Mental Illness
Brain Injury
Substance Issues
ADHD, and/or
Autism

Some or all of those issues are also seen in the military.
When we think about the budget for the VA or Medicaid Services for people with cognitive disability --- IT'S HUGE and it's often not adequate.
Ultimately, Research is going to be the answer.

Meanwhile . . .
We need some re-allocation of financial and human resources.

We need a huge investment in Translational Research & Medicine
- This is an issue for Medicine across the board but it is a huge, ethical and moral issue in cognitive disability
- This is an issue for Criminal Justice which in the US and many countries is the Cognitive Disability Provider of Last Resort

We must get HONEST about the NEED and bring housing, placements and services to SCALE.

Whether we want to call it "DEFUNDING THE POLICE" or "RE-ALLOCATING THE POLICE" those LAW ENFORCEMENT ROLES are in need of MAJOR TRANSFORMATION.

US Department of Justice

13. What must a public entity show to establish a fundamental alteration defense based on an Olmstead plan?

A: A public entity raising a fundamental alteration defense based on an Olmstead plan must show that it has developed a comprehensive, effectively working Olmstead plan that meets the standards described above, and that it is implementing the plan.

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.

CO Medicaid's Challenge to "Uncover" & Meet the True Need for Assertive Community Treatment Under Parity -- NOW

3/12/2018

So what is the "Cover-Up" we're railing against now?
We're focused on the Insufficiency & Lack of Parity within Medicaid Mental Health Services generally and in Colorado specifically [although a lot of the criticisms could apply to other states as well].
First of all -- WE ALL WANT TO LOOK GOOD -- the State wants to look good, I want to look good, everybody I know wants to look good.
When people, or organizations, or governmental sub-divisions -- start not exactly telling the truth about something -- well, it's pretty easy to get into CROSS EXAMINATION MODE (especially in our society) -- to ferret out, uncover, reveal THE TRUTH.
IDEALLY, we make it safe enough that people can tell the TRUTH.
This becomes exceedingly problematic where safety is concerned.
AND Safety gets implicated A LOT where the Criminal Justice System is concerned -- whether its judges, prosecutors, defense attorneys, individuals, service providers, State actors responsible for ensuring adequate:

bed space
housing;
and services, often intensive services.

So Orchid Advocacy is pretty much focused on the State actors but of course they are inter-connected to all the other players, actors, individuals. What we want the State Actors to do in bringing:

Bed Space;
Housing
Services, often intensive services

TO SCALE or to have A COMPREHENSIVE, EFFECTIVELY WORKING PLAN TO BRING THE ABOVE TO SCALE to meet the needs of people with disabilities, often invisible disabilities, who are homeless, incarcerated or otherwise institutionalized is required by the LAW but it is also REALLY DIFFICULT -- that's why we're not doing it.
We do CRINGE when there is a significantly less than transparent and honest discussion and acknowledgement of the past and current difficulties to bring ACT to SCALE in Colorado.

Let's talk about Assertive Community Treatment in Colorado & Nationally:

Prior to "Federal Parity Legislation," the US Department of Justice relied on the Americans with Disabilities Act and the 1999 Olmstead Decision to FORCE States to provide more Assertive Community Treatment to people with disabilities who were institutionalized or at great risk of institutionalization.
In a New Hampshire Olmstead case, DOJ required the State of New Hampshire which is 1/3 the population of Colorado -- to provide significantly more Assertive Community Treatment as Colorado was providing at the time.
Colorado has historically considered ACT a "alternative service" under Medicaid in which there was no entitlement to the Service.
Further, a significant percentage of the ACT that Colorado does provide is not through Medicaid but through the Office of Behavioral Health. Well, why is that important -- Medicaid is an ENTITLEMENT [unless of course its an "alternative service in which case it's not an entitlement] so a lot of the rights that attach to most Medicaid Services have historically NOT attached to the provision of ACT in Colorado.
Additionally, the State of Colorado through the Dept. of Health Care Policy & Financing refused to respond to or answer a question we posed 2 & 1/2 years ago as to whether the state had an objection to a WAITLIST for ACT.
Currently, it appears --although we need to double-check-- that Colorado maybe now facially complying with Parity-- saying well, providers can seek reimbursement for ACT under the general "reasonable medical necessity" standard of Medicaid.
Why wouldn't that be enough? Well, the answer to that brings in not only:

*The Administrative & Economic Realities of ACT
*The HUGE historical resistance by Colorado State Gov't to provide full funding of this service--- we can't ignore HISTORICAL DISCRIMINATION.
*AND just the HUGE NEED to PLAN for what may be thousands of additional people with mental illness:
----who are in the Criminal Justice System
----nursing homes
----homeless
----in the Mental Health Institutes

Most States that have really been serious about this have included specific eligibility by Statute and/or regulation so that everyone is on the same page, and people who should be included aren't inadvertently left out due to vagueness.

Specifically such eligibility criteria often include along with a "mental Illness":

Criminal Justice Involvement
History of Hospitalization or Institutionalization; and
Homelessness

Colorado is moving in the right direction -- It needs to move much more to make ACT a SUBSTANTIVE REALITY FOR THE POTENTIALLY THOUSANDS OF ADDITIONAL PEOPLE WHO MAY MEET REASONABLE MEDICAL NECESSITY CRITERIA.

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

Assertive Community Treatment & Flexible Assertive Community Treatment in Norway and the Need for Colorado to Comply with Parity and Ultimately Olmstead

2/7/2018

Assertive Community Treatment is often a component of US Department of Justice Olmstead Settlement Agreements addressing Mental Health.

Colorado has some Assertive Community Treatment and they've been working to increase it.

Despite these efforts, Assertive Community Treatment is STILL not available to all where "reasonably medically necessary."

Well Colorado's failure to provide ACT where "reasonably medically necessary" is a BIG PROBLEM for A LOT of reasons:

It violates mental health parity under the Mental Health Parity & Addiction Equity Act of 2008 and subsequent CMS (Centers for Medicare & Medicaid Services) Guidance;
Failure to provide or plan to provide adequate Community Mental Health Services for those at great risk of institutionalization or homeless violates the 1999 US Supreme Court Olmstead decision, subsequent caselaw, and US Department of Justice Guidance on Olmstead and Title II of the Americans with Disabilities Act.
Failure to provide adequate intensive Community Mental Health Services including ACT is HORRIBLE Policy and Short-Sighted, leading to more homelessness and incarceration of people with mental illness. The World Health Organization has specifically called out such short-sightedness when it comes to mental health policy.

NOT EVERYBODY NEEDS ASSERTIVE COMMUNITY TREATMENT, BUT ACCESS TO THAT TREATMENT HAS TO BE BASED ON "REASONABLE MEDICAL NECESSITY."

Both the US and Europe have suffered under what Europeans have termed "incompetent" mental health policy after de-institutionalization.

Well, we are decades out from de-institutionalization @ this point. Further, the US went WAY FURTHER than most European Countries in criminalizing mental illness.

The West has had incompetent mental health policies and that includes the US and the State of Colorado.

The Hickenlooper Administration, MIXED BAG that it is, has done great work so long as its their idea --- BUT ask them to comply with the LAW -- say PARITY or OLMSTEAD, and there is PASSIVE RESISTANCE like nobody's business.

Maybe we could just say it's the Hickenlooper Administration's idea to offer Assertive Community Treatment where "reasonably medically necessary" -- AND they might do it.

We certainly wouldn't have a problem giving them a lot of credit for it, AND they would DESERVE IT.

Congressional Research Service: Jan. 19, 2018: Prevalence of Mental Illness in the US

Additional analyses of NSC-R data were conducted to determine the 12-month prevalence of mental illness at three levels of severity: serious,19 moderate,20 or mild.21

Among the 26.2% of adults identified with a mental disorder in the analysis, serious disorders (22.3% among adults with a disorder) were less common than moderate disorders (37.3%) or mild disorders (40.4%).

The estimated 12-month prevalence of serious mental illness among all adults was 5.8%.

https://fas.org/sgp/crs/misc/R43047.pdf

ACT and Flexible ACT in the Netherlands . . .

The two models are outlined below.

ACT for the most severely ill patients ACT provides multi-disciplinary care with shared caseloads for the 20% group of most severely ill patients with SMI.

When a patient under the care of an ACT team stabilizes, he or she proceeds to a lighter form of care such as case management, provided by ‘step-down’ teams.

There are now 35 ACT teams in the Netherlands.

Flexible ACT for all SMI patients Flexible ACT provides multi-disciplinary care for the whole group (100%) of SMI patients in a particular region (50,000 inhabitants).

Continuity of care is provided for these patients. If necessary (in the event of an imminent crisis recurring psychosis, threat of readmission) a Flexible ACT team can provide full ACT care by switching to shared caseload and intensive outreach.

After the crisis a step-down procedure takes place within the same team, which ensures more continuity. Because the area covered is smaller, the team is better able to support social inclusion for these patients.

The teams collaborate extensively with social partners for that purpose.

There are now about 300 Flexible ACT teams in the Netherlands.

Prevalence of Severe Mental Illness & Co-Occurring Substance Abuse in Europe

A European survey estimated the annual prevalence of severe mental illness in two European catchment areas found that approximately 2 in 1000 persons suffered severe mental illness (Ruggeri, Leese et al. 2000).

The majority of people with severe mental illness have schizophrenia and many experience severely impaired functional disability. According to the World Health Organization’s (WHO) World Health Report “New understanding, new hope” from 2001, schizophrenia is the eighth leading cause of disability-adjusted life years (DALYs) worldwide for people between 15-44 years.

DALY is a measure of overall disease burden describing the impact of a health problem as measured by financial cost, mortality, morbidity, or other indicator.

DALYs are the number of years lost due to ill health, disability or early death. Many people with severe mental illness also suffer co-occurring substance use problems. The lifetime prevalence of alcohol abuse or dependence in the general adult population ranges from 13.5% to 22.7% (Regier, Farmer et al. 1990, Kringlen, Torgersen et al. 2001) while 3.4% to 6.1% of the adult population has a lifetime prevalence of drug abuse or dependence (Regier, Farmer et al. 1990, Kringlen, Torgersen et al. 2001).

Amongst persons with schizophrenia, the reported lifetime prevalence of any substance abuse or dependence, ranges from 47% to 60% (Regier, Farmer et al. 1990, Fioritti, Ferri et al. 1997, Fowler, Carr et al. 1998). Current prevalence ranges from 27% to 41% (Fowler, Carr et al. 1998, Ecker, Aubry et al. 2012).

p. 12
https://www.duo.uio.no/bitstream/handle/10852/58886/PhD-Hanne-K-Clausen-2017.pdf?sequence=5

Val's Blog

OLMSTEAD & DISABILITY HOUSING

AT LEAST TODAY -- OLMSTEAD GETS TO HOUSING WHERE PARITY & MEDICAID NETWORK ADEQUACY DON'T

THE VA AND MEDICAID COGNITIVE DISABILITY

CO Medicaid's Challenge to "Uncover" & Meet the True Need for Assertive Community Treatment Under Parity -- NOW

Assertive Community Treatment & Flexible Assertive Community Treatment in Norway and the Need for Colorado to Comply with Parity and Ultimately Olmstead

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