Orchid's CO ADVOCACY ----- Olmstead 2021

At Least Part of Homelessness is a STATE OLMSTEAD ISSUE

Channel 9 News

Denver Ordinance 303: Camping ban ordinance fails
This question on the Denver ballot asked voters whether additional measures should be added to the city’s unauthorized camping ban.

When we see LOCAL and NATIONAL Media Reports on Homelessness --- it is generally presented as a MUNICIPAL ISSUE.

For those people who are Homeless due to COGNITIVE DISABILITY (or other DISABILITY) --- that is a STATE OLMSTEAD ISSUE.

Homelessness is not INSTITUTIONALIZATION BUT Homelessness is LEGALLY RECOGNIZED as a SITUATION putting one at "GREAT RISK of INSTITUTIONALIZATION" and subject to the protection of the AMERICANS with DISABILITIES ACT and the OLMSTEAD DECISION.

What is that FEDERAL PROTECTION supposed to require?  A COMPREHENSIVE and EFFECTIVELY WORKING STATE PLAN with:
  • Measurable Goals
  • Reasonable Time Frames, and
  • Funding to Support the Plan 

 olmstead Planning --- Seemingly a BIG Step Forward

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Val's Take -- Aug. 15, 2021:  Polis Administration refers us to Josh Winkler --- with regard to an Olmstead Planning Bill.

Josh is  Disability Funding Committee Coordinator and Policy Advisor to the Lt. Governor at State of Colorado.

See more about Josh.  

I've known Josh for many years and his video below under the pseudonym "Crippieboy" was one of the 1st videos we posted when we started "Orchid" about 8 years.

He is a long time member of ADAPT and Board Co-Chair of the Colorado Cross Disability Coalition as well as an engineer and business owner .

Let's just say we know Josh GETS OLMSTEAD.

In previous discussions with the Polis Administration, we think we are on the same page with regard to:
  • The need for on-going Olmstead Planning that can span State Administrations;
  • The need to collect DATA and make any plan DATA-DRIVEN. 
  • The need for MEAURABLE GOALS.
  • The need for MODIFIABILITY of the PLAN.
  • The need to include both the voices and needs of people with disabilities who are HOMELESS and/or JUSTICE INVOLVED along with the DIVERSE VOICES in the Disability Community that need INCLUSION for any State Olmstead Plan.

In New York, Law Enforcement did DEMAND to be part of State Olmstead Planning -- we think it would be a good idea to include:
  • Law Enforcement
  • Victims Rights Groups (Victims Groups have indicated they know Significant Criminal Justice Reform is coming and by and large they support it AND they want to be included)
  • Various Representatives from the Criminal Justice System 
  • Jails and Prisons are the largest institutions for people with Cognitive Disability --- a lot of interests are going to want a seat at the TABLE and/or an ability to REVIEW and COMMENT on the SUBSTANCE in an INTERACTIVE PROCESS.

CRIMINAL  JUSTICE  &  OLMSTEAD
  • With respect to COMMUNITY LIVING & JAILS & PRISONS --- we're generally talking about the DUTY of the STATE to provide Supportive Housing, Intensive Services, etc. to people with disabilities who are AT GREAT RISK of RE-INSTITUTIONALIZATION.
    • ​Under current law, early release is NOT REQUIRED.

CRIMINAL JUSTICE, OLMSTEAD & HARM REDUCTION
  • There are varying levels of LIVING IN THE COMMUNITY with jails and prisons at the bottom of that.
  • Generally, Olmstead analysis has just asked whether something was an "INSTITUTION" or not .  There is a HUGE NEED for HARM REDUCTION in CRIMINAL JUSTICE.
  • PLACEMENTS even SECURE PLACEMENT might be appropriate in a small minority of cases.​
 PBS NewsHour :  In Colorado law enforcement are on the front lines of the mental health crisis.

New York Olmstead Plan

The State of Colorado has contracted with the Colorado Health Institute (CHI) to do some "Olmstead" Research among other things.

CHI is looking at the Court-Ordered Minnesota Plan we have championed.  They are also looking at the New York Olmstead Plan among others.

See our TAKE on the New York Olmstead Plan below.
Val's Take  
  • It doesn't have Measurable Goals or Reasonable Time Frames BUT most State Plans don't, including Colorado's.
​
  • The New York Plan does have some excellent "IDEAS" as does Colorado's 2014 Community Living Plan and 2018 Update.

  • One of the areas that New York addressed in 2013, that was not addressed in CO's 2014 Plan was CRIMINAL JUSTICE.
  ​
New York's 2013 Olmstead Report

See Page 24 for the Criminal Justice Section.​
 

Val's Take
  • One of the things we need to do is EXPAND our notion of COGNITIVE DISABILITY and the Criminal Justice System.
    • ​The primary Cognitive Disability in Criminal Justice may be Brain Injury.
    • Much important work on Brain Injury and Criminal Justice has been done in Colorado and Denver.
 
  • Additionally, one is often talking about :
    • ​​ADHD
    • sometimes Autism, and
    • Substance Issues which are often related to a DIY attempt to deal with developmental difference, trauma or brain injury.
 
  • Colorado has Assisted Outpatient or Outpatient Certification and it hasn't resolved our Mental Health Crisis.
    • ​One of the reasons for that is the resources in the Community do not address the SCALE of intensive mental health needs.
    • There is an opportunity to provide supported employment as well as "doing therapies" that people want:
      • ​Equine Therapy
      • Dog Training
      • Music
      • ​Etc.

New York's Academy for Justice-Informed Practice is excellent.
  • We would recommend expanding that to cognitive disability generally.

Cognitive Disability is UBIQUITOUS in Criminal Justice, but so are UNEXPECTED STRENGTHS.

New York like most states doesn't give a lot of numbers or measurable goals --- they provide STRATEGIES.

OLMSTEAD REQUIRES MORE THAN THAT.

Nowhere is that more daunting than CRIMINAL JUSTICE.

A BIG STEP IS GETTING THE DATA.


​
New York's Medicaid Redesign Team (MRT)
Using State Medicaid Dollars To Fund Supportive Housing (2018)
F. Criminal Justice

The Olmstead Cabinet examined two criminal justice issues concerning people with disabilities and the Olmstead mandate.

First, the cabinet sought to assure that people with disabilities who leave correctional facilities are able to access needed community-based services.

Second, the cabinet reviewed current state policies to assure that people with disabilities are not unnecessarily incarcerated for minor offenses that are a result of their disability.

Under Medicaid redesign, New York has enhanced its ability to voluntarily engage people with significant behavioral health needs in services and provide strong follow-up upon discharge from institutional settings.

For the limited number of people who do not voluntarily access services, the New York Secure Ammunition and Firearms Enforcement (SAFE) Act strengthened assisted outpatient treatment.

OMH works closely with the Department of Corrections and Community Supervision to implement robust statewide policies for screening people in prisons for mental illness, provide mental health services in prisons, and facilitate reentry from prisons to the community.

OMH also offers in-reach services to link prisoners with community-based services and employs pre-release coordinators in prisons throughout the state.

​These coordinators link mentally ill prisoners with appropriate services in the community and assist, where appropriate, in applying for entitlements such as Medicaid and SSI/SSDI.

County-based services for mentally ill jail inmates are supplemented with state funding through the Medication Grant Program to pay for psychotropic medications for released inmates while their Medicaid application is pending.

In addition, OMH provides over $4 million annually to support transition programming in local jails.

The majority of services to divert people with disabilities from the criminal justice system and transition mentally ill inmates back into the community, however, are administered at a local level.

These local services include law enforcement, courts, jails, and community supervision.

Examples of pre-arrest diversion programs that exist across the state are crisis intervention teams, emotionally disturbed people response teams, and mobile crisis teams.

In addition, there are currently 28 mental health courts throughout the state, and the Mental Health Connections program shares current mental health court resources with counties that do not have an established mental health court.

A number of recent reforms will further support the diversion of people with disabilities from the criminal justice system and facilitate reentry from the criminal justice system.

Notably, OMH has significantly increased the number of supported housing units for parolees with serious mental illness.

It also has partnered with the Center for Urban Community Services (CUCS) to develop the Reentry Coordination System in New York City, which operates as a forensic single point of entry for services, including housing, intensive case management, assertive community treatment, and outpatient clinic services.

In addition, OMH has collaborated with the New York City Department
of Health and Mental Hygiene and with CUCS to establish the Academy for Justice-Informed Practice to cross-train mental health and criminal justice practitioners on best practices for working with justice-involved, mental health service recipients.

The Division of Criminal Justice Services (DCJS) oversees the operation of 19 county reentry task forces and provides $3 million annually through performance-based contracts with localities to support the reentry of people returning from state prisons. DCJS also provides specialized training to police officers to address the needs of people with mental illness.​

DCJS was recently awarded a grant from the Bureau of Justice Assistance to provide training and technical assistance to up to 10 localities with high crime rates and high per member per month Medicaid spending to address the needs of people with serious mental illness in the criminal justice system and coordinate with community-based treatment and supports.

Using the Sequential Intercept Model, DCJS will work collaboratively with OMH to assist localities in conducting countywide mapping of mental health and criminal justice resources for planning purposes.

DCJS  and OMH also will provide training and technical assistance to identify local service gaps and develop strategies to address unmet need at each interception point.

These strategies will help counties address the needs of people with serious mental illness involved in the criminal justice system and connect them to community-based treatment and supports, which is expected to decrease crime rates and the burden on local jails while improving mental health outcomes for the people served. Initial outcome measures for this initiative will seek to identify probationers screened for mental illness, probationers supervised through the joint probation/mental health case management model, probationers with mental illness successfully completing probation supervision, the number of jail admissions screened for mental illness, and the number of police officers completing crisis intervention training.

There are many good ideas in the 2018 Update.

The aren't any measurable goals, reasonable time frames or real accountability.

Orchid's 2021 Colorado Cognitive Disability Report recommends that with respect to PRIORITY SETTING:  SUPPORTIVE HOUSING needs to be at the top of the list.

[CMHS --- Colorado's Community Mental Health Supports waiver is in need of a MAJOR REVAMP--- and it would make sense for that to come as part of Olmstead Planning & Re-Design.] 

The 2014 Colorado Community Living Plan does not mention Justice-Involved people with disabilities ----- Criminal Justice is in the 2018 Update and there seems to be interest and willingness to carry that forward.

​Data Collection is in the 2018 Update and it is ESSENTIAL for MEASURABLE GOALS and REASONABLE TIME FRAMES.

Also mentioned in the 2018 Update was the need for an ON-GOING OLMSTEAD PROCESS rather than AD HOC EFFORTS.   There seems to be support for that in the Polis Administration.

A big break-through --- and questions about process

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Image Credit: Illumina
​
  • Stakeholders seem THRILLED with the State's News AND Stakeholders are already asking ---
    • ​WHAT'S THE PROCESS?
  • What might help? 
    • C-STAT in Colorado
    • CMS 2015 Guidance on "Housing Related Activities" AND
    • The possibility of a Medicaid Waiver to FUND OLMSTEAD DATA COLLECTION
Another BIG STEP Towards Olmstead "Measurable Goals"

May 6, 2021

Val, 

I’m delighted to let you know that we will update our Olmstead plan to strengthen the State’s measurable goals. 

Please know that this process will take significant time and will depend a great deal on resources. 

We are excited to engage in this process, using the report you worked on in 2018 as a starting point. 

We will plan to keep you updated on the State’s progress as we work through this, including ways we will engage you and other stakeholders to inform the plan.  

Thank you for your advocacy, 

Best, 

Katie  
Katie McLoughlin
Chief Legal Director
Colorado Department of Human Services

Polis administration Close to saying "Yes" on -------

Olmstead measurable goals?


Val's Take
  • This is as close as any Colorado Administration has gotten to positively addressing "Measurable Goals" --- and it may be one of the few States to do so voluntarily.
  • Further,  the State does have a lot of DISCRETION with regard to the "PROCESS" to modify the State's Community Living Plan or Olmstead Plan so long as it complies with certain BROAD PRINCIPLES --- one of them being "MEASURABLE GOALS."
 
  • Based on another conversation with a high ranking State Official --- there does seem to be another encouraging sign from the Polis Administration,  ----
    • We seem to be on the SAME PAGE with regard to an ON-GOING PROCESS and regular MODIFICATION of the OLMSTEAD PLAN, probably on a yearly basis.
 
  • ​An On-Going Process and Clear Understandings regarding "MODIFIABILITY" are important to both PEOPLE WITH DISABILITIES and STATE GOVERNMENTS across the country.
 
  • One of the things that has HAMPERED COMPREHENSIVE and EFFECTIVE OLMSTEAD PLANNING ---- is the ONE-OFF SOVIET STYLE PLANS that State's produced initially --- if they produced anything at all.
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Katie McLoughlin, Legal Counsel for the Colorado Department of Human Services
April 20, 2021
​
​Thank you for raising these important issues for us.  Because of your advocacy, we as a State are actively discussing our Olmstead Plan and possible modifications to it. 

Please understand that any process to modify the plan must be approved at the highest levels, including by cabinet members. 

For this reason, I cannot offer you a substantive response today. 

But I can update you over the next few weeks to let you know where we are on your request to include measurable goals in the Olmstead Plan.

Please know that we are working actively and diligently on this issue.

Colorado State Government Uptown Funk:
​
​They won't just give you those "MEASURABLE GOALS" --- don't believe me, just watch.


​Where We Are At with the Polis Administration & Olmstead Compliance & Next Steps.
  • For those who haven't guessed --- MEASURABLE GOALS are a big issue and basic compliance measures that are on the ADA.gov website.
  • We need to get to somebody in the Polis Administration who will either:
    • ​AGREE to provide Measurable Goals, etc. OR
    • PROVIDE A DETAILED LEGAL EXPLANATION IN WRITING AS TO WHY THE STATE THINKS THEY DON'T HAVE TO.
 
  • From our perspective, we have State Administrations that ABUSE THEIR POWER -- because they can get away with it.
    • ​If the State really has a legitimate legal objection, let's see it in detail.
    • But don't just jerk people around because you can.

THE STATE HAS ASKED FOR MORE TIME TO RESPOND TO OUR REQUEST FOR OLMSTEAD "MEASURABLE GOALS."   

WE'VE ASKED THAT THEY RESPOND BY AN EXTENDED DEADLINE OF APRIL 20, 2021.

[Just to be clear, Stakeholders have been asking for OLMSTEAD "MEASURABLE GOALS" for approximately 5 years and the requirement for "MEASURABLE GOALS" is contained in 2011 US Department of Justice Olmstead Guidance as well as caselaw.]


EVADE, EVADE, EVADE

Laws sometimes protect disfavored people -- & it can be very hard to get politicians to comply with those laws -- oath or no oath
​

Val's Take
  • I think the easiest thing for Colorado State Government would be for us just to sue them.
  • And at some point they are probably going to get their wish.
  • By and large, officials are protected by LEGAL IMMUNITY --- they are generally not personally on the legal hook.
  • Further, the lawsuit gets politicians off the POLITICAL HOOK -- THE COURT MADE US DO IT  -- in successful cases.
  • But for individuals, families and advocacy organizations, these legal actions tend to be TIME & RESOURCE INTENSIVE -- exactly the things that are in short supply in the Disability Community.
  • Can it be done -- yeah it can be done --- and usually after it is done (it's not guaranteed)--- the victors whether the US Department of Justice or Large Law Firms doing pro bono work or Disability Legal Rights Organizations ---- are trying to get that VICTORY to be a "TEMPLATE FOR THE NATION."
  • Except other States are generally not going along with that.​ ​
  • This is why we have become such proponents of Federal Administrative Enforcement --- which seems like the LOGICAL ANSWER -- but it may take a long time for that to happen.
  • In the meantime, we're looking to break this down in SMALL BITES --- At the top of our list is MEASURABLE GOALS. 
"Mumbai Police ​Give Hilarious Twist To 'Uptown Funk' To Raise COVID-19 Awareness"  --- RepublicWorld.com
What We Want To Do:
  • We want to work with the State to NARROW THE ISSUES
  • If we could get those issues resolved that would be great.
  • In the alternative, some type of SUMMARY LEGAL ACTION.

"MEETING with STATE OFFICIALS" in our experience is NOT THE SAME THING as SUBSTANTIVELY NARROWING THE ISSUES.

​On Sat. March 27, 2021, I submitted a request to the State:

"So I have tried to be as clear as I could be with regard to why I believe Colorado is in NON-COMPLIANCE with Olmstead.

"If Colorado State Government is not going to provide Measurable Goals or doesn't think it has a legal obligation to do that:
I and other stakeholders need a legal explanation for that position in writing.

"Olmstead actually provides a lot of FLEXIBILITY to States --- and the protections for the Disability Community are largely PROCESS PROTECTIONS --- but even there --- there is a lot of FLEXIBILITY for States..

"That's why MEASURABLE GOALS are really non-negotiable -- but if the State has a good faith belief that they don't have to provide MEASURABLE GOALS we want to see a legal explanation in writing.

"I'm requesting that this be provided on or before Wednesday, April 7, 2021.

"Thanks for your time and consideration,

Val "

Some Venting

And Our NEXT steps if colorado won't comply with olmstead


Val's Take
  • In 2016, we filed an ill-fated class action against the State involving inmates, represented by 7 named class members with mental illness, many who were homeless when not incarcerated.
  • I really underestimated the OPPOSITION we were going to be up against.
  • ​The LEGAL TEAM out of the Colorado Attorney General's Office at that time was TWICE and almost THREE TIMES the Trump Legal Team for his SECOND IMPEACHMENT
 
  • ​Now, I would maintain politicos can't maintain their oaths of office and fight complying with FEDERAL LAW ----- BUT WHOSE GOING TO DO ANYTHING ABOUT IT.
 
  • I'm not talking about a PRINCIPLED, SUBSTANTIVE OBJECTION or OBJECTIONS -- we're just talking about a STATE that acts like a BULLY because they can.
 
  • "BUT WE'RE SO POLITE" --- and they are.
​
  • On top of the HIGH CLASS BULLYING, there were the PROMISES that were never delivered upon.
​
Department of Justice ADA Responsibilities:
ADA Mediation Program​
We note the Hickenlooper Administration back in 2016 REFUSED to MEDIATE. 
The point I want to make is the OPPOSITION to complying with Olmstead that most people with disabilities face is across the political spectrum.

Now that OPPOSITION is rarely openly stated and BIG TIME STATE PR MACHINES are happy to tell you how much States have done for people with disabilities --- which States have ----

BUT ITS ON THEIR TERMS and it doesn't include Complying with Olmstead.

NOW would we be doing all this IF ---- there were an ABUNDANCE of HOUSING, PLACEMENTS & INTENSIVE SERVICES ---- and maybe some Olmstead I's hadn't been dotted or T's crossed.

​NO WE WOULDN"T be doing all this if that were the case.

Further, Colorado's Behavioral Health Task Force doesn't satisfy Olmstead.

Would love to introduce Colorado State Government to FEDERAL JUDGE DONOVAN FRANK in Minnesota who was beside himself in frustration as Minnesota brought one plan to him after another  that failed to include MEASURABLE GOALS --- he threatened to SANCTION the STATE.

Ultimately, Minnesota got on the FEDERAL LAW COMPLIANCE TRAIN --- we'd like to see Colorado and other states do so as well.

OUR NEXT STEPS
  • Work with the State of Colorado to resolve Olmstead Compliance Issues
  • If that is unsuccessful --- suggest MEDIATION
  • If that is unsuccessful -- request Disability Law Colorado & the Colorado Lawyers Committee investigate.

State Rulers and Fed. Disability Civil Rights Law


Val's Take
  • The fact is I'm happy and I think members of the Disability Community in Colorado and states around the Country are happy to answer questions on Olmstead from State Officials.
  • Ideally, the Feds would provide an Olmstead Technical Assistance Center that could be a resource to States.
  • THIS IS 2021.  
  • Millions of people with disabilities in this country don't have adequate Housing, Placements or Intensive Services.
  • We'd like to see CMS and HUD require states to certify that states are in compliance with Olmstead or in the alternative have a comprehensive and effectively working plan with measurable goals, reasonable time frames and funding to support the plan.
  • Wouldn't it be LOVERLY if COLORADO could voluntarily comply with Olmstead --- there are THOUSANDS of COLORADANS with DISABILITIES THAT WANT TO LIVE THAT FANTASY.
Pentatonix cover Lorde's Royals

Olmstead Specific Measurable Goals

Where did they come from? 
Subsequent interpretative caselaw & US Dept. of Justice guidance


Val's Take
  • "Olmstead" is Olmstead v. L.C. -- the 1999 US Supreme Court case that is often referred to as the disability community's Brown v. Board of Education.
  • In Olmstead, the US Supreme Court advised States could avoid similar lawsuits if they had "comprehensive, effectively working plans" to provide for people with disabilities in the community.
  • Additionally, the US  Supreme Court advised that States should include WAITLISTS MOVING AT A REASONABLE PACE
    • ​Why don't we have WAITLISTS MOVING AT A REASONABLE PACE IN COLORADO?
​
  • After the Olmstead decision --- the question was raised -- What does a "comprehensive and effectively working plan" --- MEAN?
    • ​One can understand why people would ask that question because the Olmstead Plans of most States were VAGUE and provided little to no accountability.
      • Colorado's Community Living Plan of a previous administration --- was just this side of WORTHLESS and seemed to make little, practical difference in the lives of Coloradans with Disabilities

[The generally unspoken but sometimes spoken defense of most states is "We're Doing GOOD Things" --- therefore we don't have to have an Olmstead Plan with measurable goals or otherwise.

That is the CURRENT MIGHT MAKES RIGHT "LAW" that many people with disabilities are living under ---

BUT it is NOT the LAW of the United States of America.]
National Association of Mental Health Program Directors
Olmstead Risk Assessment and Planning Checklist (2015) 
See Page 26 & 27:  An Olmstead Plan Must Have Concrete, Specific Measurable Goals --- cites cases
12. What is an Olmstead Plan?

A: An Olmstead plan is a public entity’s plan for implementing its obligation to provide individuals with disabilities opportunities to live, work, and be served in integrated settings. 

A comprehensive, effectively working 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, which may come from reallocating existing service dollars. 

The plan should include commitments for each group of persons who are unnecessarily segregated, such as individuals residing in facilities for individuals with developmental disabilities, psychiatric hospitals, nursing homes and board and care homes, or individuals spending their days in sheltered workshops or segregated day programs. 

To be effective, the plan must have demonstrated success in actually moving individuals to integrated settings in accordance with the 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. 

State's Information Gathering Google Meeting on Olmstead

Val's Take

The State reached out to me based on Orchid's 2021 Colorado Cognitive Disability Report which I sent to a number of state officials.

The report was heavily focused on Olmstead, while prioritizing Supportive as well as Accessible Housing.

Over 18 State Officials had been invited to the meeting called by the State.

The meeting was primarily for the benefit of State Officials to gather information, get clarification regarding my concerns.

​The State to get back to me in approximately 3 weeks or about Wed. March 10, 2020.
Selected Olmstead References

US v. Georgia (2010) --- US Department of Justice Olmstead Settlement Agreement (see below)
  • This is a particularly important Settlement Agreement which DOJ intended as a Template for the Nation.  That hasn't happened yet, and it needs to.
  • "For individuals with mental illness, the agreement provides that Georgia will serve in the community 9,000 individuals with serious and persistent mental illness who are currently served in State Hospitals; frequently readmitted to State Hospitals; frequently seen in emergency rooms; chronically homeless and/or being released from jails or prisons."​

2.     Minnesota Olmstead Homepage
Concerns
  • CO State Failure to Comply with Olmstead in General
    • ​No Comprehensive, Effectively Working State Plan
      • ​No Measurable Goals
      • Reasonable Time Frames &
      • Funding to Support the Plan
  • ​Failure to Address the Needs of People with Disabilities who are Justice Involved
  • Willingness to prioritize Supportive as well as Accessible Housing and Intensive Services to get:
    • Measurable Goals, Reasonable Time Frames & Funding to Support the Plan
    • That still means including the needs of people with disabilities who are Justice Involved.
US v. Georgia (2010) --- Summary & Relevant Links
Citizen Kane (1941) --- Love On Your Own Terms