Category: Olmstead

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.

WHAT WE WANT FROM THE BIDEN ADMINISTRATION

1/21/2021

The Most Obvious --- Disability Housing as COVID Economic Stimulus and Infrastructure

Translational Research & Medicine for better means of keeping informed
- Medical Disciplines addressing Cognitive Disability and
- Criminal Justice which is often serving as the Disability Provider of Last Resort

We would submit that "NOT KNOWING" or "KNOWING ENOUGH TO KNOW THIS IS MORE COMPLICATED THAN WE THOUGHT" ----
- is LEGALLY SIGNIFICANT

We'd like to see the new US Department of Justice team incorporate the 2011 DOJ Statement on Title II of the Americans with Disabilities Act and Olmstead into the Code of Federal Regulations

We need COMPREHENSIVE admini-strative technical assistance to the States on Complying with Olmstead.

The Feds, the States and the Disability Community need to have some FRANK DISCUSSIONS regarding how States are going to meet their OLMSTEAD OBLIGATIONS for:
- Supportive Housing,
- Community Placements, and
- Services at the High End of the Continuum of Care

Scattered Site Supportive Housing is often considered the Gold Standard in integrated disability housing and services.

Having said that, there are at least some people with disabilities who are homeless or incarcerated who would prefer a "Supportive Housing Community" or Congregate Living Situation over homelessness or incarceration.

BRINGING STATES TO OLMSTEAD COMPLIANCE --- CO CaSE In POINT

9/17/2020

Colorado is an interesting case in point with regard to treatment of Cognitive Disability and People who are Homeless and/or in the Criminal Justice System.

Prior to Covid, Colorado was one of the top economies in the Country. Colorado politicians love to tout that as they failed to comply with Olmstead.
Because of our economy, Colorado is a lot less sympathetic than some poor states.
Coloradans are of two minds when it comes to gun control --- BUT both sides have significant problems:
- Gun control is NOT a SUBSTITUTE for the MAJOR INVESTMENTS in Housing, Intensive Services and Placements that this State Needs and that are Legally Required for people with cognitive disabilities.
- Things can be pretty out of control in this country when it comes to Guns & Behavior. Further, Mental Health Professionals don't have a perfect handle on it --- and we haven't made the necessary investments in Translational Research & Medicine to deal with this.
Colorado has been sued A LOT when it comes to its Mental Health Programs ---- for good reasons. Further, Colorado and a lot of States are primed for Olmstead Lawsuits --- IF ADVOCATES CAN GET THE RESOURCES --- That's a big if.
- Further, suing during Covid maybe isn't the best strategy.
- Of course, nobody is against doing this the EASY WAY -- let's just all work together.
Colorado SEEMS to have a fair amount of RESISTANCE to Olmstead Compliance even under Polis --- WE NEED FEDERAL LEADERSHIP
There are a lot of states out there and people with cognitive disabilities and their families need FEDERAL LEADERSHIP to overcome obstacles to State Olmstead Compliance.

It would be ridiculous not to acknowledge the unprecedented challenges of Olmstead Compliance during a time of Covid.

The problem is we're more than 20 years out from Olmstead --- and conditions are NEVER PERFECT.

Olmstead and the ADA (Americans with Disabilities Act) are very much about what is "REASONABLE."

What has been "UNREASONABLE" about State attempts at Olmstead Compliance --- they have failed to have:

Measurable Goals
Reasonable Time Frames, and
Funding to Support the Plan

We NEED to have those components to State Olmstead On-going Planning.

What is "REASONABLE" in terms of

Measurable Goals
Time Frames, or
Funding

Can change based on a lot of factors.

BUT JUST NOT taking the trouble to make those reasonable:

Measurable Goals
Time Frames
& Funding to the Support Plan (even if that is extended because of Covid -- and there should be on-going and modifiable planning)

Is Clear NON-COMPLIANCE.

THE CRYING NEED FOR STATE OF THE ART MEDICINE, HUMILITY & OPEN DIALOGUE

9/14/2020

BEYOND PRO-PSYCHIATRY & ANTI-PSYCHIATRY

  People are so STRESSED by the COMPETITIVE NATURE of the SOCIETY as well as ECONOMIC & POLITICAL PRESSURES --- they can't really do a GOOD JOB.

They have also had to erect a lot of BOUNDARIES to SURVIVE emotionally and economically.

   That's true in LAW --- It's true in Mental Health. It's true in most of American Society.

With most JOBS -- the GOAL should really be to WORK OURSELVES OUT OF A JOB -- GET TO THE ROOT CAUSE OF THE PROBLEM --- and move on to the NEXT.

  We're not in danger of running out of problems.

I recently came across an Initiative of the American Psychiatric Association --- I was excited --- I thought it was going to be about getting on top of the latest science.

This new APA Initiative was about marketing and expanding one's business. I just wanted to cry . . .

In fairness, the APA does have Educational Initiatives -- BUT they seem so far behind and propriety in their RESISTANCE to acknowledging that the DSM 5 is not only OUT OF DATE --- IT'S DANGEROUS.

PROVING that the Mental Health Profession isn't really on top of it -- isn't really that hard, BUT THAT'S JUST THE TIP OF THE ICEBERG --- talk about COLD COMFORT.

There's A LOT OF HEAVY LIFTING HERE:

Modern Societies and increasingly developing societies have an increased incidence of autoimmune disease and depression, and likely other psychiatric disorders as well.
These psychiatric disorders involve multiple complex systems of the body, including not only the Brain, but also the Immune System, the Endocrine System and the Microbiome.
The FACTORS that can impact these systems of the body are LEGION.
How these FACTORS play out is HIGHLY INDIVIDUAL and demands PRECISION MEDICINE of the HIGHEST ORDER.

Even if the APA and Psychiatric Establishment got up to speed -- TODAY -- there's so much work to done and so much DAMAGE to be undone, especially in the Criminal Justice System.

A lot of "getting up to speed" is recognizing how COMPLICATED this really is --- and How some of our toss off "personality disorders" have done so much damage.

We can't change the past, BUT we can work in the PRESENT to REMEDY as much as we can.

We NEED NOW:

A Public Health Approach to Criminal Justice -- Olmstead Planning could help get us there; and
Major Investments in Translational Research & Medicine, involving:
- National Research Institutions
- University Research & Teaching Hospitals, and
- Clinicians

New York University, Clinical and Translational Science Institute

Finnish Mental Health Approach: "Open Dialogue"

Integrating BIOLOGY and the FULL SPECTRUM of ENVIRONMENT

Those Soft Concerns like Environment, and Soft Treatments do have Biomarkers.

Understanding the COMPLEX DYNAMICS we're faced with:

BIOLOGIES WE WERE NOT EXPECTING:
- a Human Being and other animals that are NOT individuals the way we thought, but ECO-SYSTEMS and can't function well without a healthy and diverse MICROBIOME;
- an immune system that controls "social behavior" -- who would've THUNK IT.
COMPLEX ENVIRONMENTS: we're tethered to our Social Environments in very COMPLEX ways, including BIOLOGICAL WAYS with BIOMARKERS
NOT HAVING ALL THE INFORMATION WE NEED: To really understand what is working and not working for people, we must have OPEN DIALOGUE
THE MAJORITY. The Majority often thinks what it is doing is working because it is working for the "MAJORITY" --- if it's not working for the INDIVIDUAL PERSON [microbiome and all] --- it's not working.

State Governments: "Even though we know about those laws, still we don't comply with them" ---paraphrasing REO Speedwagon

5/3/2020

There are a lot of things that people with cognitive disabilities need and HOUSING is right up there.

We really need HUD to condition any money to States on COMPLIANCE WITH OLMSTEAD.

Specifically, that means:

Measurable Goals
Reasonable Time Frames
& Funding to Support the Plan

To bring Housing to SCALE for people who disabilities who are:

institutionalized
being released from incarceration
homeless
or otherwise at great risk of institutionalization.

REO Speedwagon 2010 -- about 30 years after "Keep on Loving You" (1980):
"And though I know all about those men
Still I don't remember"

This is pretty off the wall reference -- but whenever I think of Olmstead Compliance in this country -- this is what I think of.

Housing: A Conundrum for the States, A Nightmare for People with Mental Illness

2016: MLK Marade in Denver -- "Why is Michael Marshall Dead?"

Will We Ever Get Beyond the Hickenlooper Jive Talkin' on Olmstead?Inquiring Minds Want To Know

3/18/2018

Our March 16, 2018 E-mail to the Governor's Office

Thanks for your e-mail. I really get the sense that the Administration is not prepared to get down to brass-tacks on Olmstead Planning and do whatever can be done on:
• Measurable Goals
• Reasonable Time Frames
• & Funding to Support the Plan

There is nothing wrong with providing “information” and “answering questions”—BUT we’re beyond that at least in some respects.

We want that information provision and question answering to take place in the context of a commitment to use this for an inclusive Olmstead Plan with:
• Measurable Goals
• Reasonable Time Frames
• & Funding to Support the Plan

I think this Administration would generate enormous goodwill if they could make a commitment to do what the Law requires, namely an Inclusive, Comprehensive, Effectively-Working Olmstead Plan with:

• Measurable Goals
• Reasonable Time Frames
• & Funding to Support the Plan

We want to hear that the State is going to do more than information dissemination and answering questions.

It doesn’t look like the State is there yet, and this Administration is coming to a close.

Jack Canfield is co-author of the "Chicken Soup for the Soul" series.

We Appreciate the State Reaching Out To Us --- But We Got Pretty Disgusted When We Realized It Wasn't To Address Our Specific Olmstead Concerns -- BUT JUST ANOTHER PR MOVE

3/16/2018

We will be asking the Hickenlooper Administration to forward us all information regarding Housing & Services for the Community that they think we and others should be aware of.
With respect to the telephone conference with the State on March 29, Bob Lawhead, Policy Advisor for the Colorado Developmental Disabilities Council and Dr. Lacey Berumen, former Executive Director of NAMI and on the NAMI National Board, would like to participate in the telephone conference with the State.
I know for those of us who have delved into the critical requirements of Olmstead --one of the nuggets of gold was "Measurable" or "Numeric" goals -- and going along with that "Reasonable Time Frames" and "Funding to Support the Plan."
It appears to me that the Hickenlooper Administration is signally that they are not prepared to do much else other than tell us they have done good things. Compliance with the Law, namely Olmstead, does not appear to be on the agenda.
If we weren't 4 years into trying to get the Hickenlooper Administration to comply with Olmstead, we wouldn't be so disgusted -- but we are disgusted, angry, exhausted, and sad.
There are still some things the Hickenlooper Administration could do. One of them would be bring together an INCLUSIVE group of Stakeholders & Focus Groups to go about the business of:

Answering their data questions for purposes of "Measurable Goals," "Reasonable Time Frames," and Funding Strategies,
And put that on a State website.

We're Not Just Reaching A "Tipping Point" on the Provision of Integrated Housing & Services, We're Reaching A "Tipping Point" In Our Scientific Understanding of Many "Invisible" & "Cognitive Disabilities" --- & That Is Going To Revolutionize Our Society

3/15/2018

It's kinda FUNNY actually, that all the research that is coming out about our GUT & Microbiome could REVOLUTIONIZE our society -- but we think it will -- and like BOILING WATER -- the research and insights are coming FASTER & FASTER.
There are people who for thousands of years have understood that HUMAN BEHAVIOR is pretty complex, and maybe we should reserve judgment on our fellow human beings -- at the same time we do have to have Safety.
Some of our greatest Spiritual Leaders have voiced those views. Additionally, many Spiritual Traditions have a very strong component of "Social Justice."
When the World Health Organization says the best way to promote "Social Justice" is to ensure the "Social Determinants of Health" --- It sounds good. Can we quantify it? We have and --
We're on the cusp of REALLY being able to QUANTIFY it -- by looking at the individual's gut microbiome, among other things.
WE'RE STARTING TO BRING IT ALL TOGETHER:

The NEED for Individualized Medicine [understanding that INDIVIDUAL'S DNA, environment, etc.] -- Micro Approaches;
The Importance of our Social Environments to our Overall Physical & Mental Health -- Macro Approaches;
The Impact of "Social Stress" on our Gut & Microbiome
That the Gut & Microbiome Drive Auto-Immune Disease
That "Mental Illness" is often a complicated interaction of the Gut-Immune-Brain Axis.

So all that is pretty HEADY stuff -- back down to REALITY---
The 1000-Person Segregated Housing Project for Homeless People proposed by the Colorado Coalition for the Homeless.
First, if any of us had done a fraction of the GOOD that the Colorado Coalition for the Homeless has done -- WE WOULD ALL BE SAINTS.
The Colorado Coalition for the Homeless is just operating in a very difficult reality and trying to make it better. And that's probably true for everybody, including Lakewood officials, residents, and the Hickenlooper Administration.
Part of Gov. Hickenlooper's success as a politician is that he recognizes it is very difficult to get anything done without strong public support -- certainly in the political arena.
Colorado has a growing homeless population unlike most states -- and there are a lot of reasons for that, and not all people who are homeless in the State have:

"mental illness"
brain injury
developmental disabilities, and/or
substance issues

BUT many of them do.
And it is really in everyone's interests to do legally required Americans with Disabilities Act-US Supreme Court mandated Olmstead Inclusive Planning when we don't have sufficient Integrated Housing & Services to prevent unnecessary institutionalization, including incarceration, or the great risk of institutionalization inherent in homelessness.
We just bet if there was enough support for this -- even with the limited time remaining in the Hickenlooper Administration -- they would try to begin Inclusive Olmstead Planning to bring Integrated Housing & Services to Scale to Meet the Need for People with Disabilities.
Including in that process:

People with Disabilities
Law Enforcement
Residents & Homeowners
CO Counties
CO Municipalities
Family Members
Concerned Coloradans
Maybe even CU Researchers
Other Academic Researchers
The CU National Behavioral Health Innovation Center
Etc.

It's not just Lakewood and Jefferson County that are facing a homeless problem -- Denver, Pueblo, Ft. Collins, and many others are as well.
AND that homeless problem is often at least in part an "INVISIBLE DISABILITY" problem.
Colorado has the opportunity to LEAD the nation in addressing that.

Gov. Hickenlooper says among other things: "We're going to concentrate on finishing strong."

Social Determinants of health

New Science Is Amazing & It Has Huge Moral Implications -- NOW

Social Determinants of Health, Social Stress, the Gut & Microbiome & -- Mental Illness

The Colorado Coalition for the Homeless' 1,000 Person Segregated Housing Project in Lakewood: Where's that State Olmstead Housing Plan for People with Disabilities?

3/14/2018

There's a lot of mumbling and grumbling under our breath in the disability community regarding the Colorado Coalition for the Homeless' 1,000 person segregated Housing Project in Lakewood.
While the mayor of Lakewood may have stumbled upon an opportune and convenient objection to the project -- namely, that it is "segregated" not "integrated" --- the fact of the matter is he appears to be right.
But what is a Colorado Coalition for the Homeless to do when the State has largely abdicated its duties under Olmstead and the Americans with Disabilities Act to provide a Comprehensive and Effectively Working Housing Plan for people with disabilities that has:

Measureable Goals;
Reasonable Time Frames
& Funding for the Plan

as required by US Department of Justice Guidelines and Federal Caselaw.
So this is a real problem and its really hurting people.
Now the Hicklooper Administration is nice and their hearts are basically in the right place -- they've supported Marijuana Tax Money for Affordable Housing.
BUT they have resisted doing what needs to be done -- An Olmstead Plan that deals with Housing and includes:

Measurable Goals
Reasonable Time Frames
& Funding to Support the Plan

It sure would be nice if local government officials would support the development of such a Plan @ the State level.

Westword
A Massive Complex in Lakewood Could House 1,000 Homeless
http://www.westword.com/news/colorado-coalition-for-the-homelesss-lakewood-complex-could-house-homeless-10040918

The Integration Mandate of the Americans with Disabilities Act

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

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