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Olmstead: Law & Economics, Lack of Integrity, Olmstead Statutes

7/31/2017

I don't think that the Hickenlooper Administration is any worse than most other states when it comes to resistance to a Comprehensive, Effectively Working Olmstead Plan with Measurable Goals.
   I have been pretty ferocious in my disappointment with the Hickenlooper Administration-- BUT, of course, I thought this Administration could do this AND clearly they can't without a Court Order, a Statute or both.
The way the Olmstead decision is constructed has led to some very unfortunate unintended consequences nationally and in Colorado.
   The Comprehensive Olmstead Plan is actually the State's Possible Defense against an ADA [Americans with Disabilities Act]/Olmstead Action] for failing to provide sufficient housing and services for people with disabilities to prevent unnecessary institutionalization of people with disabilities or the great risk of institutionalization that is inherent in homelessness.
   Well, so States are beating down the door to formulate these Comprehensive Olmstead Plans with Measurable Goals, right? I think that is what the US Supreme Court and subsequent Courts thought they would do.
   The reality is not so much. While there are Olmstead Actions and some of them are successful -- they tend to be incredibly expensive. We did do an unsuccessful dry run at an MI Olmstead Case and found out what we were up against and we were funded on fumes.
   Bazelon had actually advised us we should anticipate $100,000 in costs, we were probably lucky if we had $100.
   So Olmstead really isn't working out for the Disability Community the way the US Supreme Court had intended. States are very well aware of the Law & Economics principles involved in Olmstead and exploit those with the purpose of resisting doing Comprehensive, Effectively Working Olmstead Plans with Measurable Goals.
   For that reason some legal experts have been advising statutory  authorization for Olmstead Plans. Nebraska has enacted just such legislation.
   The truth is no state, including Colorado, has brought housing or services to scale to meet the needs of people with disabilities to prevent unnecessary institutionalization or great risk of institutionalization that is inherent in homelessness.
   Further, Colorado does not have waitlists moving at a reasonable pace. In Colorado's case, Colorado doesn't have waitlists where it should and in some cases that is such an embarrassing topic for the State it can't even respond to questions for a period of over 2 years.
   There are so many good things Colorado has done with respect to Community Living that are worthy of praise, but at this point the lack of integrity on Olmstead no longer continues to surprise.

CO Community Living Plan
Some in the Disability Community Have Complained that:

The State promised to have an Advisory Committee to go along with CO Community Living Plan, which the State never did;
The State promised the Plan would to modifiable on on-going basis -- which it was not

& Of Course We Have Greatly Complained the CO Plan is NOT Comprehensive & is TOO VAGUE & DOES NOT HAVE MEASURABLE GOALS AS REQUIRED BY LAW.

In Dec. 2016 we were told by the Gov. Office there would be an Olmstead Compliance Work Group 
The July 31, 2017 meeting on Community Living Initiatives -- no state official made any mention of Olmstead
It is this kind of lack of integrity that is pretty par for the course in our dealings with the State on Olmstead.
I think the State has a lot of concerns about complying with the Law, they are afraid to say those concerns openly and honestly publicly and it really leads the State to stonewalling, stringing people along, and behaving in ways that just make dealing with this issue in an honest, straight forward way almost impossible.
AND the fact of the matter is the Hickenlooper Administration's passive aggressive behavior on Olmstead was going on before Trump and the Healthcare debate at the Federal level.

Implicit Bias: If the State Can Do a "Behavioral Health/Criminal Justice Plan" that should come close to complying with Olmstead -- CO Can Do An Olmstead Plan

7/30/2017

I think Implicit bias is one of those things that is so insidious because it is unconscious on the part of the people [which is most of us] perpetrating it.
   On the other hand, for those on the receiving end, it is anything but unconscious.
For most of my life, I never felt that I had experienced implicit bias.
   I had clients who definitely felt that they experienced it, and extreme forms of it in the Criminal Justice System, and that did take a toll on their mental health.
   That is why I have placed resources on the Orchid A-Z Index regarding the effects of racial discrimination on mental health, and really any kind of discrimination.
So I have not experienced that kind of extreme discrimination or implicit bias.
   But what I have experienced over the past few years is making a suggestion, making an argument -- having it rejected as totally impossible or just not responded to --- then sometime later having the very same idea proposed by somebody else held up as "brilliant -- we've got to do this."
   In fairness, there are a lot of reasons for that -- the other person is not asserting legal rights and lawsuits BUT the State was ignoring our requests without that anyway.
   Right now we are in a really interesting place with the Equitas Foundation that can do a lot of things and has a lot of clout because they have money and they want to put it to very good use.
The thing is people with disabilities don't have the same clout with the Hickenlooper Administration -- which isn't to say the Administration doesn't do a lot of good things, and people with disabilities don't have some clout -- they do.
   The Hickenlooper Administration
occassionally has integrity problems, [and occassionally, most of us do] -- and by definition implicit bias is not conscious..
   But when you can have a Behavioral Health/Criminal Justice Plan with the Administration giving Hosannas to the Equitas Foundation and that Plan is going to come very close to complying with Olmstead -- & the Hickenlooper Administration just can't commit to an Olmstead Plan ----
    That is what Implicit Bias looks like.

The State Of Colorado Needs An Olmstead Plan-- And Anything Less Than Full Compliance With the Law Is Beneath the Dignity of the State

7/29/2017

The document to the right is out of California -- is is not an Olmstead Plan but it is an Olmstead Advisory Committee Legislative Watch List to monitor legislation both favorable and deterimental to Olmstead implementation.

States still have to have the Comprehensive, Effectively Working Olmstead Plan with Measurable Goals --

And we don't vote on that or get a sense of people's opinions -- that Olmstead Plan is Colorado's potential legal defense to its failure to provide sufficient housing and services to prevent unnecessary institutionalization (including incarceration) and homelessness of people with disabilities.

Is there really any argument that there are people with disabilities who are institutionalized (including incarceration) and homeless in this State of Colorado because of lack of housing or services -- NOT according to the State's own officials and numbers.

We want to work with the State and we are not interested in being unreasonable -- AND the State of Colorado has got to comply with the LAW -- anything less is beneath the dignity of the State.

Hickenlooper Administration Complexity: Lack of Integrity Is Part of It

7/28/2017

It is really hard to integrate complexity when it comes to people or for that matter institutions, we generally view people and institutions as good or bad.
The reality is pretty messy for almost everybody, including the Hickenlooper Administration.

For Us, after all the Good Works, the Hickenlooper Administration represents serious lack of integrity:

Death of Christopher Lopez @ San Carlos Prison and the Almost Equally Disturbing Aftermath of How it was Initially Covered Up
The corrupt or at the very least improper handling of the mental health crisis contracts removing them from the selected and nationally recognized vendor for recovery services to be given to the mental health centers that people were greatly dissatisfied with.
The DOC employee whistleblower settlement in which it was alleged DOC was inflating its compliance with the mental health administrative segregation statutory ban.
Our works on mental health Olmstead issues over the past 2 1/2 years were met with unbelievable stonewalling, including the State refusing to answer whether it would create a waitlist for Assertive Community Treatment.
The handling of the staffing crisis @ the Colorado Mental Health Institute @ Pueblo with abusive staffing practices.
In December 2016 the State reached out to us, and said they were going to create an "Olmstead Compliance Work Group" -- Well, that has morphed into "Community Living Initiatives" -- and there now seems to be no interest in complying with the Law.

We're Reaching Out to Our Friends in the Community To Identify Legislators Who Might Consider Olmstead Plan Legislation

7/27/2017

  * The Americans with Disabilities Act & Olmstead are CIVIL RIGHTS LAWS -- they are often NOT treated like that -- they are often treated as kind of optional -- to do when it is convenient.

  * BUT enforcement for people with disabilities can be very expensive and time consuming.

   * We would love to be successful this first year with legislation, maybe we won't be.

   * BUT we have to continue to work for an easily enforceable burden on the State for a Comprehensive, Effectively Working Olmstead Plan with Measurable Goals -- History has shown that without a Court Order or Statute many States are unlikely to Comply.

   * Currently, the Hickenlooper Administration is refusing to have a Comprehensive, Effectively Working Olmstead Plan with Measureable Goals.

Lois Curtis, one of the original plaintiffs in the 1999 US Supreme Olmstead case holding that unnecessary institutionalization of people with disabilities amounted to discrimination under Title II of the Americans with Disabilities Act (ADA)

Olmstead Compliance & Enforcement Has Been Hugely Problematic Over the Past 18 years -- You Can't Keep Doing The Same Thing & Expect Different Results

7/27/2017

Well we'll tick off what we believe to be the major factors in the really disastrous problems in Olmstead enforcement:

The original 1999 Olmstead decision gave some guidance for States and people with disabilities -- but it has taken a lot of time to flesh that out through: caselaw, US Dept. of Justice Findings Letters, official guidance, etc.
Unfortunately, States -- including Colorado -- routinely ignore ADA/Olmstead caselaw, DOJ Findings Letters, official guidance, etc.
While the Supreme Court seemed to offer a compromise to both States and people with disabilities in the form of a Comprehensive, Effectively Working Olmstead Plan which might serve as a defense to the State against an ADA/Olmstead action -- a whole lot of States including Colorado could not be more resistant.
The Community Living Plan that Colorado did have -- didn't do anything -- it didn't have measurable goals and it didn't have a plan to bring housing and services to scale to meet the needs of people with disabilities to prevent unnecessary institutionalization or homelessness.
The burden has to be on the State, NOT on people with disabilities to prove that the State is in Compliance with Olmstead or has a Comprehensive, Effectively Working Plan with Measureable Goals.
There may be a lot of ways to do this, but probably the most realistic is through state legislation.

Many Disability Advocates Believe Olmstead Laws are the Wave of the Future as State Governors Continue to Fail Us

7/27/2017

After the Supreme Court’s Olmstead decision in 1999, Disability Rights Nebraska began to urge the state to develop an “Olmstead Plan”. For 17 years, our efforts to gain traction on the issue with the Governor’s office, the Department of Health and Human Services, and the Legislature were to no avail.

Last year, Senator Kathy Campbell approached Disability Rights Nebraska with an opportunity to develop the initial language for an Olmstead Plan bill. Senior Staff Attorney Dianne DeLair and Disability Rights Nebraska’s Public Policy Team cooperated with Senator Campbell’s office to produce the final version of LB 1033.

The bill became law on April 18, 2016. The law requires the Nebraska Department of Health & Human Services to “develop a comprehensive, effective working plan for placing qualified persons with disabilities in the most integrated community-based service settings…”

Additionally, LB 1033 created a stakeholder advisory committee to assist in the Olmstead plan’s development.

Nebraska's Olmstead Bill Passes

Rule of Law: Trump Aggressive Defiance of a lot of Laws or Colorado Passive Aggressive Defiance of Olmstead

7/26/2017

Well, none of us have seen anything like Trump before, and that includes certainly berating his own Attorney General for following the Rule of Law and recusing himself from the Russia investigation, I don't know if we are quite at grounds for impeachment yet -- BUT we're getting there.

   With respect to the Hickenlooper Administration they are nothing if not polite, cordial, and passive aggressive when it comes to Olmstead.

   We're really coming up on year 3 of our Olmstead efforts and when I asked a direct question of a top official in the Governor's Office about whether the State had any intention of complying with Olmstead and developing a Comprehensive, Effectively Working Olmstead Plan -- the person responded { paraphrasing]:

"Thanks for reaching out. We're working hard."

   Hmmmm. . . .

   The fact is Colorado is NOT complying with Olmstead or the Americans with Disabilities Act. Unlike Trump, the Hickenlooper Administration has done some good works and is substantially more likable -- BUT the Hickenlooper Administration hasn't reached substantial compliance with Olmstead or the Americans with Disabilities Act.

   In some ways, the Hickenlooper Administration's defiance of the Rule of Law is even more frightening than Trump's.

2016 DOJ Findings Letter to Louisiana Re: Use of Nursing Homes for People with Mental Health Disabilities

7/25/2017

Well, surprise surprise -- nursing homes really aren't the most integrated setting under the Americans with Disabilities Act for most people with Mental Health Disabilities.
   Here, Louisiana had 4,000 people with mental health disabilities in nursing homes. In the first quarter of 2017, Colorado had over 2,200, according to the CMS website.
https://www.cms.gov/Research-Statistics-Data-and-Systems/Computer-Data-and-Systems/Minimum-Data-Set-3-0-Public-Reports/Minimum-Data-Set-3-0-Frequency-Report.html#
   From our perspective Colorado has really tried to address this issue, but it has really stalled out because of it's discriminatory Medicaid mental health benefit that does NOT prioritize the most intensive community mental health treatments such as assertive community treatment (the supposed gold standard) nor make it available to all where reasonably medically necessary.

Mental Health Profession Gross Incompetence Is A Significant Cost Driver

7/23/2017

As long as I can remember, I've needed to breathe through my mouth to get enough oxygen.
My aunt who was an artist drew a beautiful picture of me when I was about 13 with my mouth hanging open. I was so embarrassed, she wasn't trying to embarrass me, she was trying to flatter me.
   After that, I just tried to remember to smile or close my mouth when I could.

There are SO MANY FACTORS when it comes to mental health and some go in and out of clinical and popular fashion.
   But for the individual needing accurate diagnosis/diagnoses and treatment/s it is quite daunting.
   That probably means that it is quite daunting for the clinician as well.
   I first went to a mental health professional when I was 10 and really didn't go to another one until my 30s. At 10, everything was blamed on my mother. A couple of times, I've sought out help thinking I might be depressed. Nothing really came of any of that, including medication.
Then I had a Bipolar Manic Psychotic Episode in my mid-40s -- well that got people's attention, including mine. Well, we seemed to get that under control but things still didn't seem right -- so I ended up self- diagnosing myself with ADHD -- that got confirmed.
   Well things still didn't seem to be right -- I recognized that sleep apnea was an issue for me.
   Far from needing simplistic & outdated diagnostic manuals such as the DSM 5, mental health is in desperate need of sophisticated integrated physical and mental health differential diagnostic tools that incorporate the latest science.
Mental Health the profession is grossly incompetent and it is one of the reasons mental health is driving costs in Colorado, nationally, and around the world.
   Those are pretty tough words and they are not meant for individuals as much as the profession itself.
    We're putting a lot of faith in RDoC [the Research Domain Criteria Program of the National Institute of Mental Health] -- but there are things that could be done right now by an enterprising software company to make things so much more efficient, effective -- and ultimately cheaper than what they are now on an integrated health basis.

Science Up

The Science Up page includes comments by former National Institute of Mental Health Director Thomas Insel, opining that the Mental Health Profession has NOT reached the same level of competence as other areas of medicine, specifically the same level of standardization and quality.

bphope.com

Sleep Apnea Linked With Bipolar Disorder

Recent research has presented a possible link between bipolar disorder and instances of sleep apnea.

May 1, 2017, TAINAN, Taiwan—Sleep apnea, or frequent halts in breathing while asleep, has been linked with bipolar disorder in a new study.

Taiwanese researchers looked at more than 5,000 people with sleep apnea and more than 27,000 people who did not have the condition.

They found that people with sleep apnea were two to three times more likely to get a bipolar disorder diagnosis as compared to people without sleep apnea.

The authors said their findings indicate that health professionals should carefully monitor the psychological health of individuals with sleep apnea.

The study, which appeared in the journal Sleep and Breathing, was entitled “Sleep apnea is associated with an increased risk of mood disorders: a population-based cohort study.”

Source: http://link.springer.com/article/10.1007/s11325-016-1389-x

One might say of the above, "Golly gee whiz, we're just finding this out."

Okay, but we've known for a long time that we don't know it all, and that's NOT stopping us from misusing the little knowledge or knowledge we think we have in a Criminal Justice context to justify punishment in certain circumstances.

{& as always we have to have safety, but that's different than punishment]

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Val's Blog

Olmstead: Law & Economics, Lack of Integrity, Olmstead Statutes

Implicit Bias: If the State Can Do a "Behavioral Health/Criminal Justice Plan" that should come close to complying with Olmstead -- CO Can Do An Olmstead Plan

The State Of Colorado Needs An Olmstead Plan-- And Anything Less Than Full Compliance With the Law Is Beneath the Dignity of the State

Hickenlooper Administration Complexity: Lack of Integrity Is Part of It

We're Reaching Out to Our Friends in the Community To Identify Legislators Who Might Consider Olmstead Plan Legislation

Olmstead Compliance & Enforcement Has Been Hugely Problematic Over the Past 18 years -- You Can't Keep Doing The Same Thing & Expect Different Results

Many Disability Advocates Believe Olmstead Laws are the Wave of the Future as State Governors Continue to Fail Us

Rule of Law: Trump Aggressive Defiance of a lot of Laws or Colorado Passive Aggressive Defiance of Olmstead

2016 DOJ Findings Letter to Louisiana Re: Use of Nursing Homes for People with Mental Health Disabilities

Mental Health Profession Gross Incompetence Is A Significant Cost Driver

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