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Frustrated Expectations or Hell Hath No Fury

10/31/2015

There are a lot of things on the Orchid homepage currently about unconscionability from:

Dr. Tom Insel, outgoing head of the National Institute Mental Health
Dr. Mary Bassett, Commissioner of NYC Department of Health & Mental Hygiene
Etc.

Sometimes people don't view disability and especially mental illness as a Civil Rights issue AND it is.

Maybe in some ways Colorado is Oklahoma in the 1940s when it comes to mental health.

In any case there are a lot of very, very smart people in the Hickenlooper Administration that could make a very, very big difference if they were really given the chance.

But fury barely covers how I feel about an Administration that so fails to substantively communicate or implement such basic legal requests as:

waitlists for housing & Assertive Community Treatment moving at a reasonable pace; &
a reasonable plan to bring housing & ACT to scale to meet the need.

How is that failure not unconscionable?

1940s Oklahoma -- OU President George Lynn Cross surprisingly exceeds expectations by going out of his way to support the qualifications of Black law school applicant Ada Sipuel Fisher privately and in the press.

2014/2015 Colorado -- The Hickenlooper Administration surprisingly doesn't meet what were thought to be pretty low bar expectations for communication and compliance with the law, specifically the Americans with Disabilities Act and the Olmstead decision as it relates to people with mental illness.
One of the reasons I'm so mad is I didn't expect the Hickenlooper Administration to be such jerks about this. Honestly, I'm not looking for the Hickenlooper Administration to support our lawsuit as much as to stop the silliness & just address the issues and comply with the law & if they do have real objections let's hear 'em!

ACT --

10/23/2015

In the Mental Health Community, unlike the DD Community -- we've never had a wait list, AND that is certainly NOT because we don't need one.
The State of Denial we've been living in -- well, it is really hard on individuals AND it should be devastating for any legal claims on the part of the State that it is complying with Olmstead.
AND that is certainly true when it comes to Assertive Community Treatment -- the State maintains no waitlist for this important service and has no reasonable plan to bring to scale to meet the need -- this while there are 5700 people with mental illness in the Department of Corrections.
Do all of those people need ACT, probably not, does Colorado have an objective means of determining who does -- hardly.
One place to look might be New York
http://bi.omh.ny.gov/act/characteristics?p=high-utilization-summary
Our mental health system is a mess, and the current overseers didn't create it, -- But Colorado clearly isn't complying with Olmstead, and one doesn't know whether to laugh or cry or both, when the State apologists do their pathetic best.
AND that probably goes for me too -- by the time I get my ducks in a row and get this Complaint filed -- a lot more time is going to pass.
I'm listening to Miley Cyrus on SNL sing "I had a Dream But What Does It Mean."

2010 DOJ/Delaware Findings Letter

Within their service array, Delaware’s existing community system is already providing services such as Assertive Community Treatment programs (“ACT”) and scattered site supported housing that are essential to achieving the requirements of Olmstead.

Thus, in most respects, what is needed is not new to the system, but rather a phasing out of dated models to be consistent with appropriate practices and bringing to scale those community programs that are already providing effective integrating services.

Accordingly, providing community services
individuals in or at risk of entering DPC would work only a reasonable modification of the State's program.  Olmstead, at 603.

The State already provides to individuals in the community services of the type the individuals in or at risk of entering the hospitals would need to live successfully in the community.

Funded services include supported housing, crisis stabilization, substance abuse treatment, supported employment, peer support, mental health mobile crisis, transportation, psycho-social rehabilitation and more. But those services are inadequate to meet the needs of those individuals.

We found existing community services to be inadequate and not available in sufficient supply to enable individuals who are currently inappropriately segregated in DPC to be discharged from that setting into the community and provided appropriate services there.

As a direct result of Delaware’s actions and inactions, state-funded community health service providers fail to provide adequate community services necessary to avoid needless institutionalization.

For example, case managers’ case loads have risen dramatically, rendering this core service unable to provide needed attention to each client.

ACT teams have been reduced or diluted. Currently, there are no ACT teams specializing in co-occurring disorders for mentally ill persons with specialized needs.

In addition, we found an inadequate crisis system, with too few mobile crisis teams and crisis stabilization programs spread out
geographically throughout the State. The result is that individuals in crisis are now seen in DPC and local emergency rooms.

There is also a shortage of residential services for individuals with mental illness, including an inadequate supply of integrated, permanent supported housing.

Other core community mental health programs are inadequate. Only some of the regional mental health centers operate residential programs and some of these have reduced services.

Inadequate resources has limited mobile crisis and diversion programs. The result is that many individuals with severe mental illness are provided with insufficient supports to remain in the community and find themselves institutionalized or at risk of institutionalization.

Moreover, a state cannot prove this affirmative defense unless it can show that is has developed and is implementing a comprehensive and effective plan to move individuals with disabilities into the community, with any individuals waiting for services moving at a reasonable pace. Olmstead, 527 U.S. at 584; Frederick L. v. Dept. of Public Welfare, 422 F.3d 151 (3rd Cir. 2005)

(“[A] comprehensive working plan is a necessary component of a successful ‘fundamental alteration’ defense.”); Pa. Prot. and Advocacy, Inc. v. Dept. of Public Welfare, 402 F.3d 374, 381 (3rd Cir. 2005)

If Certification or Incarceration is Really Treatment Failure--What Leads To That?

10/17/2015

Certification or for that matter Incarceration is Really Treatment Failure.

But what does that have to do with seeking a Declaratory Judgment on the State's responsibility to provide Assertive Community Treatment & Housing? It's All of A Piece!

Long Story Long -- A Cautionary Tale

The first case I got after leaving the DA's Office in Oklahoma County was a Juvenile case of Robbery with Firearms and Shooting with Intent to Kill.
After going over the ramifications of the charges with my young 16-year-old Black client, I advised that the DA's Office was willing to let us stipulate as a juvenile. Well, he couldn't do it because he hadn't done it -- No Way, No How.
Well the DA filed a petition to certify to stand trial as an adult -- and my guy was certified. He was transferred from the Juvenile Detention Facility to the Oklahoma County Jail.
I went to see my client and who should I run into but his mother -- both his mother and grandfather had been arrested on drug charges.
Well, this time when I met with my young client there were tears in his eyes and he wouldn't tell me what had happened. I tried and tried over the course of time to get him to tell me what had happened, and he never would.
Well at this point the deal from the DA was 25 to do. I wasn't going to plead my young guy to 25 to do AND I didn't really relish the idea of going to jury trial on this since the entire summer had been full of journalistic diatribes about how we needed to get tough on juvenile crime.
In Oklahoma there is something called the "Blind Plea" -- you don't have a plea agreement with the DA's Office and you're throwing yourself on the mercy of the Court which orders a pre-sentence investigation report prior to sentencing.
So my guy did end up pleading guilty to Robbery with Firearms and pleading nolo contendere to Shooting with Intent to Kill.
Now I may have done some forum shopping for this, and lo and behold I got a pretty good judge AND what do you know my guy gets a 5yr Deferred Sentence and 90 days of RID (Regimented Inmate Discipline). Yahoo!!!!!!!
Well RID would have killed me and my soul, but my guy LOVED IT -- I mean really LOVED IT -- he was really sorry to see it end.
Now I forgot to add that the Judge put on the sentencing papers that if he got in trouble again, he should get 45 years.
I think you can kind of figure out where this is going--- in a couple of years he did get in trouble again, and it wasn't failing to report to his probation officer.
My concern with that case has always been that my guy needed a lot of structure and support for the next 10 to 15 years at least --- AND he THRIVED when he had structure and support. But we can't seem to ever do that.

These little 90 day, 180 day , even 1 or 2 year treatment programs have their place AND they DON"T get to the crux of the issue when people may need significant support for the foreseeable future, and institutionalization is inappropriate or could be avoided with these supports.
Assertive Community Treatment is an evidenced-based treatment that is more expensive than just handing somebody a pill, and in the right circumstance it is also a hell of a lot more effective.
Let's be clear, the vast majority of people do not need and would not be appropriate for Assertive Community Treatment -- and for those who are -- it can mean the difference between the jail, the prison, the nursing home, the mental institute, and homelessness.
Of course, all this needs to be paired with housing to be effective.
When we don't do that AND we haven't been, we put thousands of people with "mental illness" or "behavioral issues" in prison and have a lot of what are from my perspective pretty ridiculous discussions about how we can word-smith the civil commitment laws.
If we will listen to people, they often tell us what they need, and we may be surprised just as I was with my young client so long ago who so enjoyed Regimented Inmate Discipline.
People are individuals, and we need to treat them that way. AND that means talking to people in jails and prisons with mental illness about what they want and need.

"You fail to get people better if the system that is supporting you is flawed. . .

"We try to start with what the individual's goals are and it is very effective, especially if you really listen."

-----Dr. Kathleen McGarvey
ACT Psychiatrist, British Columbia

"We also just strongly believe that people shouldn't have to jump through a million different hoops to get the support they need."

--- Barbara Baumgartner, MSW
ACT Asst. Team Leader

Oppression is Still Oppression Even When Done With Politeness

10/10/2015

All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.

Thomas Jefferson

The State has never bothered to substantively challenge any of our claims. They have stonewalled and engaged in bad faith tactics.
From our perspective, this is a really horrible government that could care less that it is oppressing the rights of thousands of vulnerable people with severe mental illness who find themselves in prisons, jails, nursing homes, mental institutes, and homeless.
That is not to say that the Hickenlooper administration isn't willing to do good things -- just on its own terms -- not the dictates of the Olmstead decision and subsequent relevant and applicable provisions of US Department of Justice Findings Letters and Settlement Agreements and other relevant law.
But that is a BIG PROBLEM, because Hickenlooper swore to uphold the law -- & he's NOT doing it & that is having disastrous consequences for people with severe mental illness in this state.
Perhaps one of the most problematic oppressors, is the one who doesn't recognize he's oppressing thousands of people with mental illness in his own state.
Gov. Hickenlooper, I mean you.

Piercing the Political Veil, Declaratory Relief and Community Mental Health

10/3/2015

Despite local and national media reports ad nauseam regarding the dismal state of community mental health care, policymakers nationally and in Colorado are having a hard time acknowledging the enormity of the problem -- or at least allocating funds to address it.
That's not to say Colorado policymakers aren't doing anything to address the problem AND it is not near enough to comply with the law.
We have asked the State to get back to us by Tues. Oct., 6, 2015 with regard to the following:

1.       Waiting lists for intensive treatments including ACT (assertive community treatment) moving at a reasonable pace;

2.       Waiting lists for housing for those who qualify for HCBS – moving at a reasonable pace

3.       A “reasonable” plan to bring housing & ACT to scale for those who qualify for the CMHS HCBS waiver, including people who are homeless and being released from jails and prisons.

We do think those provisions are very ripe for declaratory relief.

Federal Rule of Civil Procedure 57

Rule 57. Declaratory Judgment These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. §2201. Rules 38 and 39 govern a demand for a jury trial. The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. The court may order a speedy hearing of a declaratory-judgment action.

Val's Blog

Frustrated Expectations or Hell Hath No Fury

ACT --

If Certification or Incarceration is Really Treatment Failure--What Leads To That?

Oppression is Still Oppression Even When Done With Politeness

Piercing the Political Veil, Declaratory Relief and Community Mental Health

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