U.S. District Court - District of Colorado

District of Colorado (Denver)

CIVIL DOCKET FOR CASE #: 1:11-cv-02285-NYW

Center for Legal Advocacy v. Marshall et al Assigned to: Magistrate Judge Nina Y. Wang Referred to: Magistrate Judge Michael E. Hegarty (Settlement) Cause: 42:1983 Civil Rights Act

Date Filed: 08/31/2011 Date Terminated: 07/29/2016 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Special Master

Groundswell Services, Inc.

Special Master
Neil Gowensmith Dr., of Groundswell Services, Inc.

Special Master
Daniel Murrie 434-284-2541 Dr., of Groundswell Services, Inc.

Plaintiff
Center for Legal Advocacy doing business as Legal Center for People with Disabilities and Older People, The

represented by Caleb Durling Fox Rothschild LLP-Denver 1225 17th Street Suite 2200 Denver, CO 80202-5516 303-292-1200 Fax: 303-292-1300 Email: cdurling@foxrothschild.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellie Lockwood Snell & Wilmer LLP-Denver 1200 17th Street One Tabor Center Suite 1900 Denver, CO 80202 303-634-2000 Email: elockwood@swlaw.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Iris Eytan Eytan Nielsen LLC 3200 Cherry Creek South Drive Suite 720 Denver, CO 80209 720-440-8155 Fax: 720-440-8156 Email: iris@eytan-nielsen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer LaVonne Purrington Disability Law Colorado 455 Sherman Street Suite 130 Denver, CO 80203 303-722-0300 Fax: 303-722-0720 Email: jpurrington@disabilitylawco.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcus James Lock Law of the Rockies 525 North Main Street Gunnison, CO 81230 970-641-1903 Fax: 970-641-1943 Email: mlock@lawoftherockies.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Philip Scalo Snell & Wilmer, LLP-Denver 1200 17th Street One Tabor Center Suite 1900 Denver, CO 80202 303-634-2000 Fax: 303-634-2020 Email: tscalo@swlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason M. Lynch Davis Graham & Stubbs LLP-Denver 1550 17th Street Suite 500 Denver, CO 80202 303-892-7406 Fax: 303-893-1379 Email: jason.lynch@dgslaw.com TERMINATED: 06/19/2018
Mark Joseph Ivandick Disability Law Colorado 455 Sherman Street Suite 130 Denver, CO 80203 303-722-0300 Fax: 303-722-0720 Email: mivandick@disabilitylawco.org ATTORNEY TO BE NOTICED
Shannon Wells Stevenson Davis Graham & Stubbs, LLP-Denver 1550 17th Street Suite 500 Denver, CO 80202 303-892-9400 Fax: 303-893-1379 Email: shannon.stevenson@dgslaw.com TERMINATED: 06/19/2018

V.
Defendant
Jill Marshall in her ofﬁcial capacity as Chief Executive Ofﬁcer of the Colorado Mental Health Institute at Pueblo

represented by Ann Houston Pogue Colorado Attorney General's Ofﬁce Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720-508-6591 Fax: 720-508-6041 Email: ann.pogue@coag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Richelson

Colorado Attorney General's OfﬁceDept. of Law Department of Law 1300 Broadway Denver, CO 80203 720-508-6181 Fax: 720-508-6041 Email: sarah.richelson@coag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alicia R. Calderon Loveland City Attorney's Ofﬁce 500 East 3rd Street Suite 330 Loveland, CO 80537 970-962-2545 Fax: 970-962-2900 Email: alicia.calderon@cityoﬂoveland.org TERMINATED: 08/17/2018
Elizabeth Joan McCarthy Colorado Attorney General's Ofﬁce Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720-508-6139 Fax: 720-508-6041 Email: libbie.mccarthy@coag.gov TERMINATED: 04/08/2019
Lauren Kelsey Peach Colorado Department of Law Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720-508-6149 Fax: 720-508-6041 Email: lauren.peach@coag.gov TERMINATED: 10/26/2018
Tanya Elisabeth Wheeler Colorado Attorney General's Ofﬁce Ralph L. Carr Colorado Judicial Center 1300 Broadway

Defendant
Michelle Barnes in her ofﬁcial capacity as Executive Director of the Colorado Department of Human Services

Denver, CO 80203 720-508-6151 Fax: 720-508-6041 Email: tanja.wheeler@coag.gov TERMINATED: 03/04/2020
represented by Ann Houston Pogue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Richelson Colorado Attorney General's OfﬁceDept.of Law 1300 Broadway 10th Floor Denver, CO 80203 720-508-6181 Fax: 720-508-6041 Email: sarah.richelson@coag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Joan McCarthy (See above for address) TERMINATED: 04/08/2019
Tanya Elisabeth Wheeler (See above for address) TERMINATED: 03/04/2020

Defendant
Teresa A. Bernal in her ofﬁcial capacity as Interim Superintendent of the Colorado Mental Health Institute at Pueblo TERMINATED: 08/09/2018

represented by Alicia R. Calderon (See above for address) TERMINATED: 08/09/2018
Elizabeth Joan McCarthy (See above for address) TERMINATED: 08/09/2018
Lauren Kelsey Peach (See above for address) TERMINATED: 08/09/2018

Tanya Elisabeth Wheeler (See above for address) TERMINATED: 08/09/2018

Defendant
Jerene Petersen in her ofﬁcial capacity as Executive Director of the Colorado Department of Human Services TERMINATED: 02/14/2019

represented by Alicia R. Calderon (See above for address) TERMINATED: 08/17/2018
Ann Houston Pogue (See above for address)
Elizabeth Joan McCarthy (See above for address) TERMINATED: 04/08/2019
Lauren Kelsey Peach (See above for address) TERMINATED: 10/26/2018
Sarah Richelson (See above for address)
Tanya Elisabeth Wheeler (See above for address) TERMINATED: 03/04/2020

Date Filed 08/31/2011
09/02/2011 09/02/2011

# Docket Text
1 COMPLAINT against Teresa A. Bernal, Reggie Bicha ( Filing fee $ 350, Receipt Number 040870) Summons Issued, ﬁled by Center for Legal Advocacy. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(sah, ) (Entered: 09/01/2011)
2 SUMMONS Returned Executed by Center for Legal Advocacy. Teresa A. Bernal served on 8/31/2011, answer due 9/21/2011. (Lynch, Jason) (Entered: 09/02/2011)
3 SUMMONS Returned Executed by Center for Legal Advocacy. Reggie Bicha served on 8/31/2011, answer due 9/21/2011. (Lynch, Jason) (Entered: 09/02/2011)

09/06/2011 09/07/2011 09/12/2011 09/12/2011 09/20/2011 09/23/2011
09/28/2011 09/28/2011
09/28/2011 10/06/2011

4 MEMORANDUM RETURNING CASE for reassignment by Senior Circuit Judge Ebel. (sah, ) (Entered: 09/06/2011)
5 LETTER REASSIGNING CASE. Case reassigned to Judge Marcia S. Krieger for all further proceedings. Judge David M. Ebel no longer assigned to the case. (sah, ) (Entered: 09/07/2011)
6 NOTICE of Entry of Appearance by Caleb Durling on behalf of Center for Legal Advocacy (Durling, Caleb) (Entered: 09/12/2011)
7 NOTICE of Entry of Appearance by Iris Eytan on behalf of All Plaintiffs (Eytan, Iris) (Entered: 09/12/2011)
8 MOTION for Extension of Time to File Responsive Pleading Re: 1 Complaint by Defendants Teresa A. Bernal, Reggie Bicha. (Attachments: # 1 Proposed Order (PDF Only))(Calderon, Alicia) Modiﬁed on 9/21/2011 to add linkage (wjc, ). (Entered: 09/20/2011)
9 ORDER granting 8 Motion for Extension of Time to ﬁle Responsive Pleading ﬁled by all Defendants. Extension granted up to and including September 28, 2011. by Judge Marcia S. Krieger on 9/23/11. TEXT ONLY ENTRY - NO DOCUMENT ATTACHED(msksec, ) (Entered: 09/23/2011)
10 ORDER OF REFERENCE TO MAGISTRATE JUDGE: REFERRING CASE to Magistrate Judge Boyd N. Boland by Judge Marcia S. Krieger on 9/28/11. (msksec, ) (Entered: 09/28/2011)
11 ORDER REGARDING CUSTODY OF EXHIBITS AND DEPOSITIONS USED IN EVIDENTIARY HEARINGS AND TRIALS: Any exhibits and depositions used during evidentiary hearings or trials, counsel for the parties shall retrieve the originals of such exhibits and depositions from the Court following the evidentiary hearing or trial, and shall retain same for 60 days beyond the later of the time to appeal or conclusion of any appellate proceedings. The Court will retain its copy of the exhibits for the same time period after which the documents will be destroyed. by Judge Marcia S. Krieger on 9/28/11. (mskcd) (Entered: 09/28/2011)
12 MOTION to Dismiss for Lack of Jurisdiction by Defendants Teresa A. Bernal, Reggie Bicha. (Attachments: # 1 memorandum in support) (Smith, Tanya) (Entered: 09/28/2011)
13 ORDER : Scheduling Conference set for 11/14/2011 01:30 PM in Courtroom A 401 before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 10/6/11. (bnbcd, ) (Entered: 10/06/2011)

10/14/2011 10/31/2011 11/07/2011 11/07/2011 11/10/2011
11/14/2011 11/14/2011 11/14/2011
11/14/2011 11/15/2011 11/17/2011

14 RESPONSE to 12 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Plaintiff Center for Legal Advocacy. (Lynch, Jason) (Entered: 10/14/2011)
15 REPLY to Response to 12 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Defendants Teresa A. Bernal, Reggie Bicha. (Calderon, Alicia) (Entered: 10/31/2011)
16 NOTICE Of Attorney's Change Of Firm And E-Mail Address by Plaintiff Center for Legal Advocacy (Lock, Marcus) (Entered: 11/07/2011)
17 Proposed Scheduling Order by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Attachment 1 - Stipulated Protective Order)(Lynch, Jason) (Entered: 11/07/2011)
18 WITHDRAWN - MOTION to Expedite Motion for Speedy Hearing Under FRCP 57 by Plaintiff Center for Legal Advocacy. (Lynch, Jason) Modiﬁed on 2/6/2012 to add text Withdrawn pursuant to Order dated 02/03/2012 (wjc, ). (Entered: 11/10/2011)
19 PROTECTIVE ORDER: by Magistrate Judge Boyd N. Boland on 11/14/11. (bnbcd, ) (Entered: 11/14/2011)
20 First MOTION to Stay by Defendants Teresa A. Bernal, Reggie Bicha. (Calderon, Alicia) (Entered: 11/14/2011)
21 MINUTE ENTRY for proceedings held before Magistrate Judge Boyd N. Boland: Scheduling Conference held on 11/14/2011. Discovery due by 5/14/2012. Dispositive Motions due by 5/14/2012. (FTR: G.Mattei) (bnbcd, ) (Entered: 11/14/2011)
22 SCHEDULING ORDER: by Magistrate Judge Boyd N. Boland on 11/14/11. (bnbcd, ) (Entered: 11/14/2011)
23 TRIAL PREPARATION ORDER - CIVIL by Judge Marcia S. Krieger on 11/15/11. (msksec, ) (Entered: 11/15/2011)
24 Unopposed MOTION for Referral to Magistrate Judge for Settlement Conference by Defendants Teresa A. Bernal, Reggie Bicha. (Smith, Tanya) (Entered: 11/17/2011)

11/21/2011
11/22/2011 11/22/2011 11/28/2011 12/01/2011 12/05/2011 12/05/2011 12/21/2011 12/22/2011 01/05/2012 01/05/2012

25 ORDER granting 24 Unopposed Motion for Referral to Magistrate Judge for Settlement Conference. This matter is referred to Magistrate Judge Boland whose authority is limited to conducting a settlement conference in an expeditious time frame. No authorization is given for multiple conferences or "related procedures" as such are not deﬁned. by Judge Marcia S. Krieger on 11/21/11. Text Only Entry(msksec, ) (Entered: 11/21/2011)
26 ORDER : Settlement Conference set for 12/7/2011 10:00 AM before Magistrate Judge Boyd N. Boland. Joint Status Report due 12/01/2011, by Magistrate Judge Boyd N. Boland on 11/22/11. (bnbcd, ) Modiﬁed on 11/23/2011 to add text re: Status Report (wjc, ). (Entered: 11/22/2011)
27 Utility Setting/Resetting Deadlines/Hearings: Joint Status Report due by 12/1/2011 pursuant to 26 Order dated 11/22/2011. Text Only Entry (wjc, ) (Entered: 11/23/2011)
28 MINUTE ORDER Settlement Conference reset for 1/5/2012 03:00 PM before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 11/28/11. (gmssl, ) (Entered: 11/28/2011)
29 Joint STATUS REPORT by Plaintiff Center for Legal Advocacy. (Lynch, Jason) (Entered: 12/01/2011)
30 RESPONSE to 18 MOTION to Expedite Motion for Speedy Hearing Under FRCP 57 ﬁled by Defendants Teresa A. Bernal, Reggie Bicha. (Smith, Tanya) (Entered: 12/05/2011)
31 RESPONSE to 20 First MOTION to Stay ﬁled by Plaintiff Center for Legal Advocacy. (Lynch, Jason) (Entered: 12/05/2011)
32 NOTICE of Withdrawal of 18 Plaintiff's MOTION for Speedy Hearing by Plaintiff Center for Legal Advocacy (Lynch, Jason) Modiﬁed on 12/22/2011 to edit text to clarify title of document (wjc, ). (Entered: 12/21/2011)
33 REPLY to Response to 20 First MOTION to Stay ﬁled by Defendants Teresa A. Bernal, Reggie Bicha. (Smith, Tanya) (Entered: 12/22/2011)
34 MINUTE ENTRY for proceedings held before Magistrate Judge Boyd N. Boland: Settlement Conference held on 1/5/2012. No settlement was reached as to any claims. (bnbcd, ) (Entered: 01/06/2012)
35 ORDER : Supplemental Settlement Conference set for 1/30/2012 10:00 AM before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 1/5/12. (bnbcd, ) (Entered: 01/06/2012)

01/30/2012 01/30/2012 02/03/2012
02/06/2012 02/06/2012 02/17/2012 02/17/2012 02/21/2012 02/21/2012

36 MINUTE ENTRY for proceedings held before Magistrate Judge Boyd N. Boland: Supplemental Settlement negotiations held on 1/30/2012. (bnbcd, ) (Entered: 01/30/2012)
37 ORDER : Second Supplemental Settlement Conference set for 2/27/2012 10:00 AM before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 1/30/12. (bnbcd, ) (Entered: 01/30/2012)
38 ORDER WITHDRAWING MOTION: In view of the ﬁling of the 32 Notice (Other) ﬁled by Center for Legal Advocacy, the Court WITHDRAWS the 18 MOTION to Expedite Motion for Speedy Hearing Under FRCP 57 ﬁled by Center for Legal Advocacy. Counsel is advised to ﬁle a motion to withdraw when withdrawing any/all motions in the future as the ﬁling of a notice does not alert the Court that a party is requesting action. by Judge Marcia S. Krieger on 2/3/12. Text Only Entry (msksec, ) (Entered: 02/03/2012)
39 MEMORANDUM regarding 12 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Reggie Bicha, Teresa A. Bernal. Motions referred to Magistrate Judge Boyd N. Boland by Judge Marcia S. Krieger on 2/6/12. Text Only Entry (msksec, ) (Entered: 02/06/2012)
40 MEMORANDUM regarding 20 First MOTION to Stay ﬁled by Reggie Bicha, Teresa A. Bernal. Motions referred to Magistrate Judge Boyd N. Boland by Judge Marcia S. Krieger on 2/6/12. Text Only Entry (msksec, ) (Entered: 02/06/2012)
41 Joint MOTION for Referral TO CONSENT TO THE EXERCISE OF JURISDICTION BY MAGISTRATE JUDGE BOLAND by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Proposed Order (PDF Only))(Lynch, Jason) (Entered: 02/17/2012)
42 Stipulated MOTION to Amend/Correct/Modify 22 Scheduling Order by Defendants Teresa A. Bernal, Reggie Bicha. (Attachments: # 1 Proposed Order (PDF Only))(Smith, Tanya) (Entered: 02/17/2012)
43 MEMORANDUM regarding 42 Stipulated MOTION to Amend/Correct/ Modify 22 Scheduling Order ﬁled by Reggie Bicha, Teresa A. Bernal. Motions referred to Magistrate Judge Boyd N. Boland by Judge Marcia S. Krieger on 2/21/12. Text Only Entry (msksec, ) (Entered: 02/21/2012)
44 ORDER OF REFERENCE Pursuant to 28 U.S.C. 636(c) Upon Consent to Jurisdiction of Magistrate Judge, by Judge Marcia S. Krieger on 02/21/2012. (wjc, ) (Entered: 02/21/2012)

02/21/2012
02/22/2012
02/27/2012 02/27/2012 03/23/2012 04/04/2012 04/09/2012 04/09/2012 10/28/2015
11/05/2015 11/11/2015

45 CASE REASSIGNED pursuant to 44 Order on Consent to Jurisdiction of Magistrate Judge. This case is reassigned to Magistrate Judge Boyd N. Boland. All future pleadings should be designated as 11-cv-02285-BNB. Text Only Entry. (wjc, ) (Entered: 02/21/2012)
46 MINUTE ORDER granting 42 Stipulated Motion to Modify Scheduling Order. Discovery due by 7/13/2012. Dispositive Motions due by 8/10/2012, by Magistrate Judge Boyd N. Boland on 02/22/2012.(wjc, ) (Entered: 02/22/2012)
47 ORDER : denying without prejudice 20 Motion to Stay, by Magistrate Judge Boyd N. Boland on 2/27/12.(bnbcd, ) (Entered: 02/27/2012)
48 MINUTE ORDER : Settlement Conference set for 4/6/2012 12:00 Noon before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 2/27/12. (bnbcd, ) (Entered: 02/27/2012)
49 Joint STATUS REPORT by Plaintiff Center for Legal Advocacy. (Lynch, Jason) (Entered: 03/23/2012)
50 Joint STATUS REPORT by Plaintiff Center for Legal Advocacy. (Lynch, Jason) (Entered: 04/04/2012)
51 Joint MOTION to Dismiss UNDER FED. R. CIV. P. 41(a)(2) by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1, # 2 Proposed Order (PDF Only))(Lynch, Jason) (Entered: 04/09/2012)
52 ORDER OF DISMISSAL UNDER FED. R. CIV. P 41(a)(2) re: 51 Joint Motion to Dismiss Under Fed. R. Civ. P 41(a)(2). By Magistrate Judge Boyd N. Boland on 4/9/12.(mnfsl, ) (Entered: 04/09/2012)
53 MOTION to Reopen Case for Enforcement of Settlement Agreement by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1, # 2 Envelope 2, # 3 Exhibit 3, # 4 Exhibit 4 (Part 1), # 5 Exhibit 4 (Part 2), # 6 Exhibit 4 (Part 3), # 7 Exhibit 4 (Part 4), # 8 Exhibit 5) (Lockwood, Ellie) (Entered: 10/28/2015)
54 NOTICE of Change of Address/Contact Information and Change of Firm for Caleb Durling by Caleb Durling (Durling, Caleb) (Entered: 11/05/2015)
55 NOTICE of Change of Address/Contact Information and Change of Firm by Jason M. Lynch (Lynch, Jason) (Entered: 11/11/2015)

11/18/2015 11/18/2015
11/19/2015 12/07/2015
12/14/2015 12/14/2015 12/18/2015

56 NOTICE of Entry of Appearance and Notice of Substitution of Counsel by Elizabeth Joan McCarthy on behalf of All Defendants Attorney Elizabeth Joan McCarthy added to party Teresa A. Bernal(pty:dft), Attorney Elizabeth Joan McCarthy added to party Reggie Bicha(pty:dft) (McCarthy, Elizabeth) (Entered: 11/18/2015)
57 RESPONSE to 53 MOTION to Reopen Case for Enforcement of Settlement Agreement ﬁled by Defendants Teresa A. Bernal, Reggie Bicha. (Attachments: # 1 Exhibit CLA v Bicha et al Year One and Two Reports, # 2 Exhibit Afﬁdavit of M. Vargas, # 3 Exhibit Afﬁdavit of D. Foster, # 4 Exhibit Afﬁdavit of R. Hale, # 5 Exhibit Afﬁdavit of S. Schoenmakers, # 6 Exhibit Afﬁdavit of T. Bernal, # 7 Exhibit Afﬁdavit of P. Fox)(Wheeler, Tanya) (Entered: 11/18/2015)
58 CASE REASSIGNED. This case is reassigned to Magistrate Judge Nina Y. Wang. All future pleadings should be designated as 11-cv-02285NYW. (Text Only Entry) (agarc, ) (Entered: 11/19/2015)
59 REPLY to Response to 53 MOTION to Reopen Case for Enforcement of Settlement Agreement ﬁled by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Ex A to Declaration, # 3 Exhibit Ex B to Declaration, # 4 Exhibit Ex C to Declaration, # 5 Exhibit Ex D to Declaration, # 6 Exhibit Ex E to Declaration, # 7 Exhibit Ex F to Declaration, # 8 Exhibit Ex G to Declaration) (Durling, Caleb) (Entered: 12/07/2015)
60 NOTICE of Change of Address/Contact Information by Tanya Elisabeth Wheeler (Wheeler, Tanya) (Entered: 12/14/2015)
61 ERRATA re 59 Reply to Response to Motion, to Reopen Action for Enforcement of Settlement Agreement by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit Ex A to Notice of Errata)(Durling, Caleb) (Entered: 12/14/2015)
62 ORDER GRANTING MOTION TO REOPEN ACTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT by Magistrate Judge Nina Y. Wang on 12/18/5. The Motion to Reopen Action for Enforcement of Settlement Agreement 53 is GRANTED, insofar as it seeks to reopen the case to allow the court to consider whether the Settlement Agreement has been breached and whether to order enforcement; and This matter is set for a Status Conference on December 29, 2015 at 10:00 a.m. to discuss Plaintiff's request for discovery and an evidentiary hearing. On or before December 27, 2015, the Parties will ﬁle a Joint Status Report addressing Plaintiff's requested discovery and a proposed scope and procedure for hearing.(bsimm, ) (Entered: 12/18/2015)

12/23/2015 12/29/2015
02/17/2016 02/17/2016
04/18/2016 04/18/2016 05/24/2016 05/25/2016 06/20/2016

63 Joint STATUS REPORT of the Parties (Including Defendants Bicha and Hale) by Plaintiff Center for Legal Advocacy. (Lynch, Jason) (Entered: 12/23/2015)
64 COURTROOM MINUTES/MINUTE ORDER for Status Conference held on 12/29/2015 before Magistrate Judge Nina Y. Wang. Service of formal discovery due 1/8/2016. Responses to formal discovery due 2/5/2016. Any additional documents not disclosed during formal discovery due 2/22/2016. Stipulated facts due 2/29/2016. Trial briefs, exhibit lists, exhibits, and witness lists due 3/10/2016. A two-day Evidentiary Hearing is set to begin on March 17, 2016, at 11:00 a.m. and will continue, as needed, on March 18, 2016 at 9:00 a.m. in Courtroom C-204 before Magistrate Judge Nina Y. Wang. FTR: Courtroom C-204. (bsimm, ) (Entered: 12/29/2015)
65 Joint MOTION to Continue the March 17-18, 2016 Hearing and Related Deadlines by Plaintiff Center for Legal Advocacy. (Durling, Caleb) (Entered: 02/17/2016)
66 ORDER granting 65 Motion to Continue. The Evidentiary Hearing previously set for 03/17-03/18/2016 is CONTINUED and the associated deadlines are VACATED. The Parties are directed to ﬁle a Status Report by 4/18/2016 as to the status of mediation. At that time, if in the status report the Parties report that they have not reached a resolution, the court will reset the Evidentiary Hearing and accompanying pre-hearing deadlines. By Magistrate Judge Nina Y. Wang on 02/17/2016. Text Only Entry (nywlc2) (Entered: 02/17/2016)
67 Joint STATUS REPORT by Plaintiff Center for Legal Advocacy. (Lockwood, Ellie) (Entered: 04/18/2016)
68 MINUTE ORDER re: 67 Status Report ﬁled by Center for Legal Advocacy. All dates remain stayed. Counsel shall ﬁle a Joint Status Report on or before 5/24/2016. By Magistrate Judge Nina Y. Wang on 4/18/16. Text Only Entry (nywlc1) (Entered: 04/18/2016)
69 Joint STATUS REPORT by Plaintiff Center for Legal Advocacy. (Lockwood, Ellie) (Entered: 05/24/2016)
70 MINUTE ORDER re: 69 Status Report ﬁled by Center for Legal Advocacy. All dates remain stayed. Counsel shall ﬁle a Joint Status Report on or before 06/20/2016. By Magistrate Judge Nina Y. Wang on 05/25/2016. Text Only Entry (nywlc2) (Entered: 05/25/2016)
71 Joint STATUS REPORT by Defendants Teresa A. Bernal, Reggie Bicha. (McCarthy, Elizabeth) (Entered: 06/20/2016)

06/21/2016 06/22/2016 06/30/2016
07/12/2016 07/19/2016 07/21/2016 07/28/2016 07/28/2016 07/29/2016

72 MINUTE ORDER. A Status Conference is set for 6/30/2016 at 02:00 PM in Courtroom C204 before Magistrate Judge Nina Y. Wang. By Magistrate Judge Nina Y. Wang on 06/21/2016. Text Only Entry (nywlc2) (Entered: 06/21/2016)
73 NOTICE of Entry of Appearance of Counsel by Lauren Kelsey Peach on behalf of Reggie BichaAttorney Lauren Kelsey Peach added to party Reggie Bicha(pty:dft) (Peach, Lauren) (Entered: 06/22/2016)
74 COURTROOM MINUTES/MINUTE ORDER for Status Conference held on 6/30/2016 before Magistrate Judge Nina Y. Wang. A Status Conference is set for 7/29/2016 10:30 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. Should the Parties believe that resolution of this matter is not imminent, the Parties should be prepared to discuss the scheduling of this matter at the further Status Conference. FTR: Courtroom C-204. (bsimm, ) (Entered: 06/30/2016)
75 NOTICE of Change of Address/Contact Information Firm Change by Ellie Lockwood (Lockwood, Ellie) (Entered: 07/12/2016)
76 MINUTE ORDER. Due to a conﬂict on the court's calendar, the Status Conference set for 7/29/2016 will now take place at 09:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. By Magistrate Judge Nina Y. Wang on 07/19/2016. Text Only Entry (nywlc2) (Entered: 07/19/2016)
77 NOTICE by Magistrate Judge Nina Y. Wang on 7/21/16. The Practice Standards of Magistrate Judge Nina Y. Wang are now located on the internet at: http://www.cod.uscourts.gov/JudicialOfﬁcers/ ArticleIMagistrateJudges/HonNinaYWang.aspx Text Only Entry (bsimm, ) (Entered: 07/21/2016)
78 Joint MOTION to Dismiss under FED. R. CIV.P.41(a)(2) by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Appendix Appendix 1 to Joint Motion to Dismiss, # 2 Appendix Appendix 2 to Joint Motion to Dismiss, # 3 Proposed Order (PDF Only) Proposed Order re Joint Motion to Dismiss)(Eytan, Iris) (Entered: 07/28/2016)
79 MINUTE ORDER. In light of 78 Joint Motion to Dismiss, the Status Conference previously set for 7/29/2016 is VACATED. By Magistrate Judge Nina Y. Wang on 07/28/2016. Text Only Entry (nywlc2) (Entered: 07/28/2016)
80 ORDER of Dismissal Under Fed. R. Civ. P. 41(a)(2) by Magistrate Judge Nina Y. Wang on 07/29/16.(nmarb, ) (Entered: 07/29/2016)

08/25/2016 06/13/2018 06/14/2018
06/19/2018 06/19/2018 06/19/2018
06/21/2018 07/09/2018 07/09/2018

81 SUPPLEMENT/AMENDMENT to 78 Joint MOTION to Dismiss under FED. R. CIV.P.41(a)(2) Appendix 2 by Defendants Teresa A. Bernal, Reggie Bicha. (Peach, Lauren) (Entered: 08/25/2016)
82 Unopposed MOTION to Reopen Case for Enforcement of Settlement Agreement by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1)(Lockwood, Ellie) (Entered: 06/13/2018)
83 MINUTE ORDER by Magistrate Judge Nina Y. Wang on 6/14/18 GRANTING IN PART and RESERVING IN PART 82 Plaintiff's Unopposed Motion to Reopen Action for Enforcement of Settlement Agreement. Joint Status Report due by 7/2/2018. Status Conference set for 7/5/2018 10:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. (nmarb, ) (Entered: 06/14/2018)
84 NOTICE of Entry of Appearance by Timothy Philip Scalo on behalf of Center for Legal AdvocacyAttorney Timothy Philip Scalo added to party Center for Legal Advocacy(pty:pla) (Scalo, Timothy) (Entered: 06/19/2018)
85 MOTION to Withdraw as Attorney of Record of Jason M. Lynch by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Proposed Order (PDF Only))(Stevenson, Shannon) (Entered: 06/19/2018)
86 ORDER granting 85 Motion to Withdraw as Attorney. Attorney Jason M. Lynch is granted leave to withdraw as counsel for Plaintiff, and shall be removed from electronic service in this matter. Furthermore, counsel are reminded that all future motions must comply with the requirements of D.C.COLO.LAttyR 5(b), as future noncompliance may result in this court striking the motion without substantive consideration. The Parties are also reminded that future ﬁlings must contain the correct caption. By Magistrate Judge Nina Y. Wang on 6/19/2018. Text Only Entry (nywlc2, ) (Entered: 06/19/2018)
87 MINUTE ORDER resetting Status Conference for 7/12/2018 03:00 PM in Courtroom C204 before Magistrate Judge Nina Y. Wang. The Parties' Joint Status Report is now due 7/9/2018. By Magistrate Judge Nina Y. Wang on 6/21/2018. Text Only Entry (nywlc2, ) (Entered: 06/21/2018)
88 Joint STATUS REPORT by Plaintiff Center for Legal Advocacy. (Lockwood, Ellie) (Entered: 07/09/2018)
89 NOTICE of Change of Address/Contact Information and Change of Firm by Caleb Durling (Durling, Caleb) (Entered: 07/09/2018)

07/12/2018 07/24/2018 07/24/2018 07/31/2018 08/09/2018 08/09/2018
08/15/2018

90 COURTROOM MINUTES/MINUTE ORDER for Status Conference held on 7/12/2018 before Magistrate Judge Nina Y. Wang. Oral Argument is set for 9/28/2018 10:00 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang for two-hours. Each party will be granted 30 minutes of argument. No live testimony is anticipated. FTR: Courtroom C-204. (bwilk, ) (Entered: 07/13/2018)
91 Unopposed MOTION to Clarify re 90 Status Conference,, Set/Reset Deadlines/Hearings, by Defendants Teresa A. Bernal, Reggie Bicha. (Wheeler, Tanya) (Entered: 07/24/2018)
92 ORDER granting 91 Motion to Clarify. The deadlines set by the July 12, 2018 Minute Order 90 will govern the pre-hearing deadlines to ensure that the court has sufﬁcient time to prepare for the September 28, 2018 hearing, and to allow for a ruling as expeditiously as possible thereafter. By Magistrate Judge Nina Y. Wang on 7/24/2018. Text Only Entry (nywlc2, ) (Entered: 07/24/2018)
93 NOTICE of Entry of Appearance by Jennifer LaVonne Purrington on behalf of Center for Legal AdvocacyAttorney Jennifer LaVonne Purrington added to party Center for Legal Advocacy(pty:pla) (Purrington, Jennifer) (Entered: 07/31/2018)
94 Joint MOTION for Leave to File Excess Pages in Motion for Summary Judgment by Plaintiff Center for Legal Advocacy. (Scalo, Timothy) (Entered: 08/09/2018)
95 ORDER granting 94 Motion for Leave to File Excess Pages. The Parties are granted leave to ﬁle cross-motions for summary judgment not to exceed twenty-ﬁve (25) pages. Furthermore, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Clerk of the Court is DIRECTED to REMOVE Defendant Teresa A. Bernal and to SUBSTITUTE Defendant JILL MARSHALL,in her ofﬁcial capacity as Chief Executive Ofﬁcerof the Colorado Mental Health Institute at Pueblo. By Magistrate Judge Nina Y. Wang on 8/9/2018. Text Only Entry (nywlc2, ) (Entered: 08/09/2018)
96 MOTION for Summary Judgment to Enforce Settlement Agreement by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Lockwood, Ellie) (Entered: 08/15/2018)

08/15/2018
08/16/2018 08/16/2018 08/17/2018 09/05/2018
09/05/2018 09/12/2018 09/17/2018

97 MOTION for Summary Judgment by Defendants Reggie Bicha, Jill Marshall. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit A-3, # 4 Exhibit A-4, # 5 Exhibit A-5, # 6 Exhibit A-6, # 7 Exhibit A-7, # 8 Exhibit A-8, # 9 Exhibit A-9, # 10 Exhibit A-10, # 11 Exhibit A-11, # 12 Exhibit A-12, # 13 Exhibit A-13, # 14 Exhibit A-14, # 15 Exhibit A-15, # 16 Exhibit A-16, # 17 Exhibit A-17, # 18 Exhibit A-18, # 19 Exhibit A-19, # 20 Exhibit A-20, # 21 Exhibit A-21, # 22 Exhibit A-22, # 23 Exhibit A-23, # 24 Exhibit A-24, # 25 Exhibit A-25, # 26 Exhibit A-26, # 27 Exhibit A-27, # 28 Exhibit A-28, # 29 Exhibit A-29, # 30 Exhibit B)(Wheeler, Tanya) (Entered: 08/15/2018)
98 MINUTE ORDER denying as moot the remaining portion of 82 Motion to Reopen Case in light of Plaintiff's 96 Motion for Summary Judgment to Enforce Settlement Agreement. By Magistrate Judge Nina Y. Wang on 8/16/2018. Text Only Entry (nywlc2, ) (Entered: 08/16/2018)
99 MOTION to Withdraw by Defendants Reggie Bicha, Jill Marshall. (Wheeler, Tanya) (Entered: 08/16/2018)
100 ORDER granting 99 Motion to Withdraw. Attorney Alicia R. Calderon is granted leave to withdraw as counsel for Defendants, and shall be removed from electronic service in this matter. By Magistrate Judge Nina Y. Wang on 8/17/2018. Text Only Entry (nywlc2, ) (Entered: 08/17/2018)
101 RESPONSE to 97 MOTION for Summary Judgment Plaintiff's Combined Response in Opposition to Defendants' Motion for Summary Judgment and Reply in Support of Plaintiff's Motion for Summary Judgment to Enforce Settlement Agreement ﬁled by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 9)(Durling, Caleb) (Entered: 09/05/2018)
102 RESPONSE to 96 MOTION for Summary Judgment to Enforce Settlement Agreement ﬁled by Defendants Reggie Bicha, Jill Marshall. (Attachments: # 1 Exhibit Exhibit C, # 2 Exhibit Exhibit D)(Wheeler, Tanya) (Entered: 09/05/2018)
103 NOTICE re 101 Response to Motion, 96 MOTION for Summary Judgment to Enforce Settlement Agreement of Errata by Plaintiff Center for Legal Advocacy (Lockwood, Ellie) (Entered: 09/12/2018)
104 STATEMENT of Undisputed Facts by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1 - Joint Exhibit List)(Durling, Caleb) (Entered: 09/17/2018)

09/28/2018
09/28/2018 09/28/2018
10/12/2018 10/19/2018 10/25/2018 10/26/2018 10/29/2018

105 Exhibits in Support by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19)(Lockwood, Ellie) (Entered: 09/28/2018)
106 RESTRICTED DOCUMENT - Level 1: by Plaintiff Center for Legal Advocacy.. (Attachments: # 1 Exhibit 19)(Lockwood, Ellie) (Entered: 09/28/2018)
107 COURTROOM MINUTES/MINUTE ORDER for Oral Argument Hearing held on 9/28/2018 before Magistrate Judge Nina Y. Wang. Plaintiff's Motion for Summary Judgment to Enforce Settlement Agreement 96 is TAKEN UNDER ADVISEMENT. Defendants' Motion for Summary Judgment 97 is TAKEN UNDER ADVISEMENT. The oral motion is GRANTED. Exhibit No.'s 18 [97-18] and 19 [97-19] are RESTRICTED from the public docket. FTR: Courtroom A-502. (bwilk, ) (Entered: 09/28/2018)
108 NOTICE of Supplemental Authorities by Plaintiff Center for Legal Advocacy (Attachments: # 1 Exhibit 1)(Lockwood, Ellie) (Entered: 10/12/2018)
109 RESPONSE to Plaintiff's October 12, 2018 Filing by Defendant Reggie Bicha. (Wheeler, Tanya) (Entered: 10/19/2018)
110 Joint MOTION to Withdraw Counsel by Defendants Reggie Bicha, Jill Marshall. (Wheeler, Tanya) (Entered: 10/25/2018)
111 ORDER granting 110 Motion to Withdraw. Attorney Lauren Peach is granted leave to withdraw as counsel for Defendants in this matter, and shall be removed from electronic service in this matter. By Magistrate Judge Nina Y. Wang on 10/26/2018. Text Only Entry (nywlc2, ) (Entered: 10/26/2018)
112 NOTICE of Entry of Appearance by Sarah Richelson on behalf of Reggie Bicha, Jill MarshallAttorney Sarah Richelson added to party Reggie Bicha(pty:dft), Attorney Sarah Richelson added to party Jill Marshall(pty:dft) (Richelson, Sarah) (Entered: 10/29/2018)

11/09/2018
11/29/2018 11/30/2018
12/03/2018 12/06/2018 12/13/2018 12/14/2018 12/14/2018 12/14/2018 12/17/2018

113 MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 11/9/2018. Plaintiff's Motion for Summary Judgment 96 is GRANTED IN PART and DENIED IN PART; Defendants' Motion for Summary Judgment 97 is DENIED; and A Status Conference is SET for 11/30/2018 09:00 AM to discuss any discovery and to set an evidentiary hearing... (bwilk, ) (Entered: 11/09/2018)
114 NOTICE of Entry of Appearance by Ann Houston Pogue on behalf of Reggie Bicha, Jill MarshallAttorney Ann Houston Pogue added to party Reggie Bicha(pty:dft), Attorney Ann Houston Pogue added to party Jill Marshall(pty:dft) (Pogue, Ann) (Entered: 11/29/2018)
115 COURTROOM MINUTES/MINUTE ORDER for Status Conference held on 11/30/2018 before Magistrate Judge Nina Y. Wang. Plaintiff shall ﬁle a written motion for appointment of a Special Master on or before 12/6/2018. Defendants shall reply on before 12/13/2018. A ﬁve-day Evidentiary Hearing is set to begin 3/18/2019 09:00 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. FTR: Courtroom A-502. (bwilk, ) (Entered: 12/03/2018)
116 MINUTE ORDER regarding discovery by Magistrate Judge Nina Y. Wang on 12/3/2018. (nywlc2, ) (Entered: 12/03/2018)
117 MOTION to Appoint Special Master by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (Lockwood, Ellie) (Entered: 12/06/2018)
118 RESPONSE to 117 MOTION to Appoint Special Master ﬁled by Defendants Reggie Bicha, Jill Marshall. (Attachments: # 1 Exhibit A) (Wheeler, Tanya) (Entered: 12/13/2018)
119 MOTION for Extension of Time to File Defendants' Plan for Compliance by Defendants Reggie Bicha, Jill Marshall. (Wheeler, Tanya) (Entered: 12/14/2018)
120 ORDER granting 119 Motion for Extension of Time to File. Defendants' plan for compliance due on or before 12/17/2018. By Magistrate Judge Nina Y. Wang on 12/14/2018. Text Only Entry (nywlc2, ) (Entered: 12/14/2018)
121 Joint STATUS REPORT by Plaintiff Center for Legal Advocacy. (Lockwood, Ellie) (Entered: 12/14/2018)
122 NOTICE of Filing by Defendants Teresa A. Bernal, Reggie Bicha (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2)(Wheeler, Tanya) (Entered: 12/18/2018)

12/18/2018
12/18/2018 12/18/2018
12/19/2018 12/19/2018 12/19/2018 12/19/2018 12/28/2018

123 ORDER ON MOTION FOR APPOINTMENT OF SPECIAL MASTER by Magistrate Judge Nina Y. Wang on 12/18/2018. Plaintiff's Motion for Appointment of Special Master 117 is GRANTED; No later than December 19, 2018, Drs. Neil Gowensmith and Daniel Murrie shall SUBMIT to the court afﬁdavits concerning whether there is any ground for disqualiﬁcation under 28 U.S.C. § 455; No later than December 19, 2018, the Parties will FILE any objections to the summary of the duties of the Special Master as attached as Ex. 1 to this Order; and A separate, written Order pursuant to Rule 53 of the Federal Rules of Civil Procedure will follow. (Attachments: # 1 Exhibit Proposal for Special Master Duties)(nywlc2, ) (Entered: 12/18/2018)
124 NOTICE of Approval of Scope of Special Master by Plaintiff Center for Legal Advocacy (Lockwood, Ellie) (Entered: 12/18/2018)
125 COURTROOM MINUTES/MINUTE ORDER for telephonic Status Conference held on 12/18/2018 before Magistrate Judge Nina Y. Wang. The court will extend the pre-hearing deadlines as follows:Deadline for all document production on or before 2/1/2019; All written discovery completed on or before 2/1/2019;All depositions completed on or before 2/15/2019; Expert witness disclosures no later than 2/22/2019; Exchange of deposition designations, hearing witnesses, and exhibit lists due 3/4/2019; Counter-designations and stipulations/objections to hearing exhibits due 3/11/2019; Order of Proof due 3/15, 2019; and Each party must produce by 3/4/2019 any document not produced pursuant to a discovery request that it intends to use at the hearing. FTR: Courtroom A-502. (bwilk, ) (Entered: 12/18/2018)
126 AFFIDAVIT of Neil Gowensmith by Plaintiff Center for Legal Advocacy. (Eytan, Iris) (Entered: 12/19/2018)
127 AFFIDAVIT of Daniel Murrie by Plaintiff Center for Legal Advocacy. (Eytan, Iris) (Entered: 12/19/2018)
128 NOTICE re 122 Notice (Other) Notice of Errata by Defendants Reggie Bicha, Jill Marshall (Attachments: # 1 Exhibit A-2)(Wheeler, Tanya) (Entered: 12/19/2018)
129 NOTICE re 123 Order on Motion to Appoint Special Master,, Defendants' Response to Scope of Duties of Special Master by Defendants Reggie Bicha, Jill Marshall (Wheeler, Tanya) (Entered: 12/19/2018)
130 ORDER APPOINTING SPECIAL MASTER by Magistrate Judge Nina Y. Wang on 12/28/2018. (nywlc2, ) (Entered: 12/28/2018)

01/03/2019
01/04/2019 01/04/2019 01/04/2019
01/11/2019 01/11/2019

131 MINUTE ORDER setting Telephonic Status Conference for tomorrow, 1/4/2019 10:00 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. Counsel for the Parties and the Special Master shall jointly contact chambers on one telephone line at 303.335.2600 at the designated time. The court intends to discuss (1) the initiation of work by the Special Master and (2) holiday cards received by the court from CMHIP residents By Magistrate Judge Nina Y. Wang on 1/3/2019. Text Only Entry (nywlc2, ) (Entered: 01/03/2019)
132 NOTICE of Filing of Defendants' Amended Comprehensive Plan for Compliance by Defendants Reggie Bicha, Jill Marshall (Attachments: # 1 Exhibit A, # 2 Exhibit A-1)(Wheeler, Tanya) (Entered: 01/04/2019)
133 Utility Setting/Resetting Deadlines/Hearings: Text Only Entry Telephonic Status Conference set for 1/18/2019 11:00 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang, with Joint Status Report due 1/16/2019 per 116 Minute Order. (nywlc2, ) (Entered: 01/04/2019)
134 COURTROOM MINUTES/MINUTE ORDER for Telephonic Status Conference held on 1/4/2019 before Magistrate Judge Nina Y. Wang. The Parties consent, and the Order of Appointment is AMENDED to expressly provide for ex parte communication between the Special Master and the court. On or before 1/11/2019, parties shall ﬁle a proposed amendment to the Order of Appointment regarding ex parte communication between the Special Master and Parties in this case. Defendants will ﬁle an Amended Plan for Compliance that incorporates the Notice of Errata 128 into the Plan for Compliance 122 no later 1/11/2019. The ﬁrst report from the Special Masters addressing the Amended Plan for Compliance is due on or before 1/28/2019. FTR: Courtroom A-502. (bwilk, ) (Entered: 01/04/2019)
135 NOTICE of Substitution of Defendant by Defendant Jill Marshall (Wheeler, Tanya) (Entered: 01/11/2019)
136 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 135 Notice (Other) ﬁled by attorney Ann Pogue.The s/signature did not match the ﬁlers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take - future documents must be ﬁled pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (nmarb, ) (Entered: 01/11/2019)

01/11/2019 01/11/2019
01/16/2019 01/18/2019
01/18/2019

137 Joint MOTION to Amend/Correct/Modify Proposed Amendment to Order Appointing Special Master Regarding Ex Parte Communications Between Parties and Special Master by Defendant Jill Marshall. (Wheeler, Tanya) (Entered: 01/11/2019)
138 ORDER granting 137 Motion to Amend/Correct/Modify. The Order Appointing Special Master 130 is hereby amended to include the following language: Each of the parties is permitted to communicate with the Special Master ex parte, and the Special Master is permitted to communicate with each of the parties ex parte. Any ex parte communications between or among the parties and the Special Master, however, will not be conﬁdential. Additionally, given the Notice of Substitution of Party 135 , the Clerk of the Court is DIRECTED to remove Reggie Bicha as Defendant in this matter to be replaced with JERENE PETERSEN, In her ofﬁcial capacity as Acting Executive Director of the Colorado Department of Human Services. By Magistrate Judge Nina Y. Wang on 1/11/2019. Text Only Entry (nywlc2, ) (Entered: 01/11/2019)
139 Joint STATUS REPORT by Defendants Jill Marshall, Jerene Petersen. (Attachments: # 1 Exhibit Plaintiff's First Set of Discovery Requests To Defendants dated December 7, 2018, # 2 Exhibit Plaintiff's First Set of Discovery Requests To Defendants dated December 14, 2018)(Wheeler, Tanya) (Entered: 01/16/2019)
140 COURTROOM MINUTES/MINUTE ORDER for Status Conference held before Magistrate Judge Nina Y. Wang on 1/18/2019. ORDERED: Defendants will begin production no later than January 23, 2019, and will produce documents on a daily rolling basis, each business day. Deadline for document production REMAINS SET for February 1, 2019. Deadline for written discovery is RE-SET to February 11, 2019. Deposition deadline is RE-SET to March 1, 2019. Expert designation deadline is RE-SET to March 6, 2019. Outstanding documents to be used at the upcoming March 18, 2019 hearing shall be produced no later than March 6, 2019. All other deadlines REMAIN SET as previously scheduled. This matter is set for further Status Conference on February 6, 2019, at 2:00 p.m. A status report, to include any issues to be discussed with the Court and discovery updates, is due on or before February 4, 2019. FTR: Courtroom A502. (lrobe) (Entered: 01/22/2019)
141 RESTRICTED DOCUMENT - Level 1. Cards and envelopes re 140 Courtroom Minutes. (lrobe) (Main Document 141 replaced on 2/1/2019) (bwilk, ). (Entered: 01/22/2019)

01/28/2019 01/28/2019 01/28/2019
01/28/2019 01/28/2019 01/29/2019

142 MINUTE ORDER : Pursuant to the parties' telephonic contact with chambers, a telephonic discovery dispute conference is SET for Wednesday, 1/30/2019 at 01:00 PM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. By Magistrate Judge Nina Y. Wang on 1.28.2019. Text Only Entry (nywlc1, ) (Entered: 01/28/2019)
143 MINUTE ORDER: Due to an unavoidable conﬂict with the court's calendar, the Status Conference set for 2/6/2019 is hereby VACATED. The Parties shall jointly contact chambers on one telephone line at 303.335.2600 to discuss their availability and the resetting of this Status Conference for the week of February 4, 2019. By Magistrate Judge Nina Y. Wang on 1/28/2019. Text Only Entry (nywlc2, ) (Entered: 01/28/2019)
144 MINUTE ORDER : Pursuant to the parties' joint telephonic contact with Chambers pursuant to the court's order dated January 28th 143 , the Status Conference previously set for 2/6/2019 is RESET for 2/7/2019 01:00 PM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. Unfortunately, the call terminated unexpectedly. To answer the pending question on release of the special master's report, the court is in the process of reviewing the Report and will docket it on the court's docket when appropriate. By Magistrate Judge Nina Y. Wang on 1.28.2019. Text Only Entry (nywlc1, ) (Entered: 01/28/2019)
145 MINUTE ORDER : The Status Conference set for 2/7/2019 is RESET IN TIME ONLY for 2:00 PM on 2/7/2019 in Courtroom A 502 before Magistrate Judge Nina Y. Wang. By Magistrate Judge Nina Y. Wang on 1.28.2019. Text Only Entry (nywlc1, ) (Entered: 01/28/2019)
146 Groundswell Review of CDHS Plan by Special Masters Neil Gowensmith, Daniel Murrie. (bwilk, ) Modiﬁed on 2/5/2019 to UNRESTRICT pursuant to 152 Minute Order. (nmarb, ). (Entered: 01/29/2019)
147 LETTER ﬁled by non-party Allison Sherry re: 146 Restricted Document - Level 1. (bwilk, ) (Entered: 01/30/2019)

01/30/2019
01/31/2019 01/31/2019 01/31/2019 02/05/2019 02/05/2019 02/12/2019 02/14/2019

148 COURTROOM MINUTES/MINUTE ORDER for Discovery Hearing held on 1/30/2019 before Magistrate Judge Nina Y. Wang. Any motion to restrict the Groundswell Review of CDHS Plan 146 shall be ﬁled on or before 2/11/2019. Parties shall ﬁle a motion under D.C.Colo.LCivR 16.6 formally requesting any Alternative Dispute Resolution. Parties shall ﬁle a proposed Consent Decree or a Joint Status Report on or before 3/15/2019. The Status Conference set for 2/7/2019 is VACATED. The ﬁve-day Evidentiary Hearing currently set for 3/18/2019, is VACATED and RESET to 6/3/2019 09:00 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. FTR: Courtroom A-502. (bwilk, ) (Entered: 01/31/2019)
149 Joint MOTION for Referral to a U.S. Magistrate Judge for Settlement Purposes by Defendants Jill Marshall, Jerene Petersen. (Wheeler, Tanya) (Entered: 01/31/2019)
150 MINUTE ORDER by Magistrate Judge Nina Y. Wang on 1/31/2019. The Stipulated Motion for Settlement Conference 149 is GRANTED; and The Clerk of the Court is directed to draw this case to another Magistrate Judge who shall set and preside over a settlement conference. (bwilk, ) (Entered: 02/01/2019)
153 ORDER REFERRING CASE Randomly for Settlement Purposes only, to Magistrate Judge Hegarty, pursuant to 150 Minute Order, by Magistrate Judge Nina Y. Wang on 02/08/19. Text Only Entry (nmarb, ) (Entered: 02/08/2019)
151 NOTICE re 146 Restricted Document - Level 1 by Defendants Jill Marshall, Jerene Petersen (Wheeler, Tanya) (Entered: 02/05/2019)
152 MINUTE ORDER re: 151 Notice (Other) ﬁled by Jerene Petersen, Jill Marshall. Given Defendants' representations that do not intend to seek continued restriction over the Special Masters' Report 146 , the Clerk of the Court is hereby DIRECTED to UNRESTRICT 146 . By Magistrate Judge Nina Y. Wang on 2/5/2019. Text Only Entry (nywlc2, ) (Entered: 02/05/2019)
154 MINUTE ORDER re: 153 Order Referring Case to Early Neutral Evalution by Magistrate Judge Nina Y. Wang on 2/12/2019. Settlement Conference set for 3/1/2019 10:00 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (tsher, ) (Entered: 02/12/2019)
155 NOTICE of Substitution of Defendant Jerene Petersen by Defendants Jill Marshall, Jerene Petersen (Wheeler, Tanya) (Entered: 02/14/2019)

02/14/2019
02/22/2019 02/28/2019 03/14/2019 03/15/2019 03/17/2019
03/21/2019 03/27/2019

156 MINUTE ORDER re: 155 Notice (Other) ﬁled by Jerene Petersen, Jill Marshall. The Clerk of the Court is hereby ORDERED to amend the caption of this action to reﬂect the termination of Defendant Jerene Petersen, the addition of Defendant Michelle Barnes in her ofﬁcial capacity as ExecutiveDirector of the Colorado Department of Human Services, and the modiﬁcation of Defendant Jill Marshall in her ofﬁcial capacity as Chief Executive Ofﬁcer of the Colorado Mental Health Institute at Pueblo. By Magistrate Judge Nina Y. Wang on 2/14/2019. Text Only Entry (nywlc2, ) (Entered: 02/14/2019)
157 STATUS REPORT dated 2/22/2019 by Special Masters Neil Gowensmith, Daniel Murrie. (bwilk, ) (Entered: 02/25/2019)
158 NOTICE of Filing of Defendants' February 28, 2019 Report Regarding the Amended Comprehensive Plan for Compliance by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit Defendants February 28, 2019 Report Regarding the Amended Comprehensive Plan for Compliance)(Wheeler, Tanya) (Entered: 02/28/2019)
159 MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty. Settlement Conference held on 3/14/2019. FTR: Hegarty (A501). (tsher, ) (Entered: 03/14/2019)
160 Joint MOTION for Order to Approval and Entry of Consent Decree by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1) (Lockwood, Ellie) (Entered: 03/15/2019)
161 MINUTE ORDER : Before the court is the parties' Joint Motion for Entry and Approval of a Consent Decree 160 which the parties agreed to following settlement discussions. A Telephonic Status Conference is set for 3/21/2019 at 10:00 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang to discuss the proposed Consent Decree and entry thereof. The parties are to call 303.335.2600 at the designated time to participate. By Magistrate Judge Nina Y. Wang on 3.17.2019. Text Only Entry (nywlc1, ) (Entered: 03/17/2019)
162 COURTROOM MINUTES/MINUTE ORDER for Telephonic Status Conference held on 3/21/2019 before Magistrate Judge Nina Y. Wang. A further Telephonic Status Conference is set for 4/17/2019 02:00 PM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. FTR: Courtroom A-502. (bwilk, ) (Entered: 03/22/2019)
163 Joint MOTION for Order to Approval and Entry of Consent Decree by Plaintiff Center for Legal Advocacy. (Attachments: # 1 Exhibit 1) (Lockwood, Ellie) (Entered: 03/27/2019)

03/28/2019
04/02/2019
04/02/2019 04/08/2019 04/08/2019 04/08/2019 04/08/2019

164 UNRESTRICTED RESTRICTED DOCUMENT - Level 1: by Special Masters Neil Gowensmith, Groundswell Services, Inc., Daniel Murrie. First Groundswell Services Report by Special Masters Dr. Neil Gowensmith and Dr. Daniel Murrie Pursuant to Consent Decree. This docket entry has a provisional level 1 restriction which will expire at 4/11/19 unless a Motion to Restrict is ﬁled by one of the parties. (nmarb, ) Modiﬁed on 4/16/2019 to UNRESTRICT pursuant to 171 Minute Order. (nmarb, ). (Entered: 03/29/2019)
165 CONSENT DECREE as modiﬁed by underlined text in paragraphs 38(c) and 59(b), entered by Magistrate Judge Nina Y. Wang on April 2, 2019. Upon entry of this Consent Decree by the Court, this Consent Decree shall constitute the ﬁnal judgment between and among the Plaintiff and Defendants. The Court enters this judgment as a ﬁnal judgment under Federal Rules of Civil Procedure 54 and 58 that is fully enforceable by all plenary powers of the Court. (bwilk, ) (Entered: 04/02/2019)
166 Pursuant to Consent Decree 165 , the Joint Motion for Approval and Entry of Consent Decree 160 , and the Joint Motion for Approval and Entry of Revised Consent Decree 163 , are GRANTED. Text Only Entry (bwilk, ) (Entered: 04/02/2019)
167 Joint MOTION to Withdraw as Attorney by Defendants Michelle Barnes, Jill Marshall. (Pogue, Ann) (Entered: 04/08/2019)
168 ORDER granting 167 Motion to Withdraw as Attorney. Attorney Elizabeth Joan McCarthy is granted leave to withdraw as counsel for Defendants and shall be removed from electronic service in this matter. By Magistrate Judge Nina Y. Wang on 4/8/2019. Text Only Entry (nywlc2, ) (Entered: 04/08/2019)
169 NOTICE of Filing of Defendants' April 8, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Monthly Compliance Plan Report)(Pogue, Ann) (Entered: 04/08/2019)
170 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 167 Joint MOTION to Withdraw as Attorney ﬁled by attorney Elizabeth Joan McCarthy.The s/signature did not match the ﬁlers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take - future documents must be ﬁled pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (nmarb, ) (Entered: 04/09/2019)

04/16/2019
05/07/2019 06/07/2019 07/08/2019 08/07/2019 08/28/2019 09/09/2019 10/07/2019 11/07/2019

171 MINUTE ORDER re: 164 Restricted Document - Level 1, ﬁled by Daniel Murrie, Groundswell Services, Inc., Neil Gowensmith. Having not received a Motion to Restrict by the 4/11/2019 deadline, the Clerk of the Court is DIRECTED to UNRESTRICT 164 . By Magistrate Judge Nina Y. Wang on 4/16/2019. Text Only Entry (nywlc2, ) (Entered: 04/16/2019)
172 NOTICE of Filing of Defendants' May 7, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Richelson, Sarah) (Entered: 05/07/2019)
173 NOTICE of Filing Of Defendants' June 7, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit Special Master Compliance Plan)(Richelson, Sarah) (Entered: 06/07/2019)
174 NOTICE of Filing of Defendants' July 8, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Richelson, Sarah) (Entered: 07/08/2019)
175 NOTICE of Filing of Defendants' August 7, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Richelson, Sarah) (Entered: 08/07/2019)
176 SPECIAL MASTER QUARTERLY REPORT by Special Masters Neil Gowensmith, and Daniel Murrie, of Groundswell Services, Inc. (bwilk, ) (Entered: 08/29/2019)
177 NOTICE of Filing of Defendants' September 9, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report) (Richelson, Sarah) (Entered: 09/09/2019)
178 NOTICE of Filing of Defendants' October 7, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Pogue, Ann) (Entered: 10/07/2019)
179 NOTICE of Filing of Defendants' November 7, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report) (Richelson, Sarah) (Entered: 11/07/2019)

11/27/2019 12/09/2019 01/07/2020 01/13/2020 01/13/2020 01/13/2020
01/14/2020 02/07/2020 03/02/2020 03/03/2020 03/03/2020

180 SPECIAL MASTER QUARTERLY REPORT by Special Masters Neil Gowensmith, and Daniel Murrie, of Groundswell Services, Inc. on 11/27/2019. (bwilk, ) (Entered: 12/05/2019)
181 NOTICE of Filing of Defendants' December 9, 2019 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report) (Richelson, Sarah) (Entered: 12/09/2019)
182 NOTICE of Filing Of Defendants' January 7, 2020 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit Special Master Compliance Plan)(Richelson, Sarah) (Entered: 01/07/2020)
183 LETTER to the Court re: CMHIP by non-party Rob Patterson. (nmarb, ) (Entered: 01/13/2020)
184 MOTION for Order for copies, by non-party Rob Allen Patterson. (nmarb, ) (Entered: 01/13/2020)
185 ORDER denying 184 Motion for Order by Magistrate Judge Nina Y. Wang on 1/13/2020. A copy of this Order shall be sent to Rob A. Patterson, P.O. Box 16700, Golden, CO 80402. Text Only Entry(nywlc2, ) Copy sent to Rob. A. Patterson on 1/14/20. (nmarb, ). (Entered: 01/13/2020)
186 CERTIFICATE of Service by Mail by Clerk of Court re 185 Order on Motion for Order, to Rob A. Patterson, PO Box 16700, Golden, CO 80402. Text Only Entry (bwilk, ) (Entered: 01/14/2020)
187 NOTICE by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit Special Master Compliance Plan)(Richelson, Sarah) (Entered: 02/07/2020)
188 NOTICE Long-Term Comprehensive and Cohesive Competency Plan by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit Long-Term Comprehensive and Cohesive Competency Plan)(Richelson, Sarah) (Entered: 03/02/2020)
189 SPECIAL MASTERS' QUARTERLY REPORT by Special Masters Neil Gowensmith, Daniel Murrie, dated 2/28/20. (nmarb, ) (Entered: 03/03/2020)
190 MOTION to Withdraw as Attorney by Defendants Michelle Barnes, Jill Marshall. (Wheeler, Tanya) (Entered: 03/03/2020)

03/04/2020 03/09/2020 04/07/2020 05/07/2020 05/27/2020
05/27/2020 06/05/2020 06/08/2020 07/06/2020

191 ORDER granting 190 Motion to Withdraw as Attorney by Magistrate Judge Nina Y. Wang on 3/4/2020. Attorney Tanya Elisabeth Wheeler terminated. Text Only Entry(nywlc1, ) (Entered: 03/04/2020)
192 NOTICE of Filing of Defendants' March 9, 2020 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Pogue, Ann) (Entered: 03/09/2020)
193 NOTICE of Filing of Defendants' April 7, 2020 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Richelson, Sarah) (Entered: 04/07/2020)
194 NOTICE of Filing of Defendants' May 7, 2020 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Richelson, Sarah) (Entered: 05/07/2020)
195 MINUTE ORDER: by Magistrate Judge Wang on 5/27/20. This matter is before the court sua sponte based on circumstances triggered by the novel coronavirus and the steps taken by the State of Colorado and the respective localities to attempt to mitigate its spread, including but not limited to, through detention facilities. Based on information provided by the Special Master, this court ﬁnds good cause to extend the deadline for the provision of the Quarterly Report. Accordingly, IT IS ORDERED that the Quarterly Report is DUE no later than June 5, 2020. Nothing in this Order may be construed as amending the Consent Decree 165 . Text Only Entry (nmarb, ) Modiﬁed on 5/27/2020 to enter correct name of judge. (nmarb, ). (Entered: 05/27/2020)
196 Utility Setting/Resetting Deadlines/Hearings: Text Only Entry (Status) Quarterly Report due by 6/5/2020. (nmarb, ) (Entered: 05/27/2020)
197 SPECIAL MASTERS' QUARTERLY REPORT by Special Masters Neil Gowensmith, Daniel Murrie, Groundswell Services, Inc. dated 6/5/2020. (bwilk, ) (Entered: 06/08/2020)
198 NOTICE of Filing of Defendants' June 8, 2020 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Richelson, Sarah) (Entered: 06/08/2020)
200 SPECIAL MASTERS' UPDATE by Special Masters Neil Gowensmith, Daniel Murrie, Groundswell Services, Inc. dated 7/6/2020. Updating 197 regarding COVID-19. (bwilk, ) (Entered: 07/10/2020)

07/07/2020 08/07/2020

199 NOTICE of Filing of Defendants' July 7, 2020 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Richelson, Sarah) (Entered: 07/07/2020)
201 NOTICE of Filing of Defendants' August 7, 2020 Monthly Compliance Plan Report by Defendants Michelle Barnes, Jill Marshall (Attachments: # 1 Exhibit A - Monthly Compliance Plan Report)(Pogue, Ann) (Entered: 08/07/2020)

 
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 Case 1:11-cv-02285-NYW Document 62 Filed 12/18/15 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02285-NYW CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO,
Plaintiff, v. REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; and RONALD B. HALE, in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo,
Defendants. _____________________________________________________________________________
ORDER GRANTING MOTION TO REOPEN ACTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT ______________________________________________________________________________ Magistrate Judge Nina Y. Wang
This matter is before the court on the Motion to Reopen Action for Enforcement of Settlement Agreement [#53, filed on November 18, 2015] pursuant to 28 U.S.C. § 636(c), the Order of Reference for all purposes dated February 21, 2012 [#44], and the Reassignment dated November 19, 2015 [#58]. The court has reviewed the Parties’ briefing [#57, #59], the Settlement Agreement [#53-1], the entire case file including the court’s Order of Dismissal [#52], and the applicable case law. There is no dispute between the Parties that this court retains jurisdiction to enforce the Settlement Agreement. [#57 at 7]. Nevertheless, Defendants contend that this court should decline to re-open the case because they are not in violation of the Settlement Agreement or it should only be re-opened for the purposes of formal mediation. [#57]. Respectfully, Defendants’ position puts the cart before the horse.

Case 1:11-cv-02285-NYW Document 62 Filed 12/18/15 USDC Colorado Page 2 of 2

The only question that is ripe before the court on the Motion to Reopen is whether this case should be re-opened to consider Plaintiff’s allegation that the Settlement Agreement has been breached. In light of Defendants’ concession that errors in reporting did, in fact, occur repeatedly [#57 at 11], and Plaintiff’s articulated concern regarding mentally-ill detainees, this court finds that it is appropriate for this case to the re-opened. Accordingly, IT IS ORDERED that:
(1) The Motion to Reopen Action for Enforcement of Settlement Agreement [#53] is GRANTED, insofar as it seeks to reopen the case to allow the court to consider whether the Settlement Agreement has been breached and whether to order enforcement; and
(2) This matter is set for a Status Conference on December 29, 2015 at 10:00 a.m. to discuss Plaintiff’s request for discovery and an evidentiary hearing. On or before December 27, 2015, the Parties will meet and confer about and file a Joint Status Report addressing Plaintiff’s requested discovery and a proposed scope and procedure for hearing.

DATED: December 18, 2015

BY THE COURT:
s/ Nina Y. Wang Nina Y. Wang United States Magistrate Judge

 
 Case 1:11-cv-02285-NYW Document 83 Filed 06/14/18 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02285-NYW
CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO,
Plaintiff,
v.
REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; and RONALD B. HALE, in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo,
Defendants.
MINUTE ORDER RE-OPENING CASE
Entered By Magistrate Judge Nina Y. Wang
This matter comes before the court on the Unopposed Motion to Reopen Action for Enforcement of Settlement Agreement (the “Motion”) [#82, filed June 13, 2018]. The undersigned Magistrate Judge considers the Motion pursuant to 28 U.S.C. § 636(c), the Order of Reference for all purposes dated February 21, 2012 [#44], and the Reassignment dated November 19, 2015 [#58].
Plaintiff Center for Legal Advocacy d/b/a Disability Law Colorado filed a similar motion on October 28, 2015, [#53], which the court granted insofar as it found good cause to reopen this matter to allow the court to consider whether the Settlement Agreement had been breached. See [#62]. Although the Parties ultimately resolved the previous dispute, see [#80], the court finds reopening this matter warranted under the circumstances, as it appears that the Parties agree to reopen this matter, but disagree as to whether Defendants have breached the Settlement Agreement. See [#82 at 2].
Accordingly, IT IS ORDERED that:
(1) Plaintiff’s Unopposed Motion to Reopen Action for Enforcement of Settlement Agreement [#82] is GRANTED IN PART, insofar as it seeks to reopen the case to allow the court to consider whether the Settlement Agreement has been breached and whether to order enforcement, and RESERVED IN PART as to whether Defendants have, in fact, breached the Settlement Agreement; and
(2) This matter is set for a Status Conference on July 5, 2018 at 10:00 a.m. to discuss Plaintiff’s request for discovery and an evidentiary hearing. On or before July 2, 2018, the Parties will meet and confer and file a Joint Status Report

Case 1:11-cv-02285-NYW Document 83 Filed 06/14/18 USDC Colorado Page 2 of 2 addressing Plaintiff’s requested discovery and a proposed scope and procedure for an evidentiary hearing.
DATED: June 14, 2018
2

 
 Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 1 of 29
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02285-NYW CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO,
Plaintiff, v. REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; and JILL MARSHALL, in her official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo,
Defendants.
MEMORANDUM OPINION AND ORDER Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiff Center for Legal Advocacy d/b/a Disability Law Colorado’s (“DLC” or “Plaintiff”) Motion for Summary Judgment to Enforce Settlement (“Motion” or “Motion for Summary Judgment”) [#96] and Defendants Reggie Bicha and Jill Marshall’s (collectively, “Defendants” or “Department”) Motion for Summary Judgment (or “Motion”) [#97]. The Motions are before the undersigned pursuant to the Order of Reference dated February 21, 2012 [#44], the Order of Reassignment dated November 19, 2015 [#58], 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. The court retained ancillary jurisdiction to consider the issues raised in the Parties’ Motions for Summary Judgment, because the Parties’ consented to this court retaining jurisdiction to enforce the terms of the 2016 Settlement Agreement and the court fully incorporated the terms of the 2016 Settlement Agreement in its Order of Dismissal under Rule 41(a)(2) of the Federal Rules of Civil Procedure. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994). Accordingly, having reviewed the Motions and associated briefing, and the evidence and comments offered at the

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 2 of 29
September 28, 2018 Motions Hearing, the court GRANTS IN PART and DENIES IN PART Plaintiff’s Motion for Summary Judgment; DENIES Defendants’ Motion for Summary Judgment; and SETS this action for a Status Conference.
BACKGROUND The court draws the following facts from the record before it, including the Parties’ Joint Statement of Undisputed Facts. [#104]. 1. The Department is required to provide competency evaluations for any defendant when the issue of competency to stand trial is raised. See Colo. Rev. Stat. § 16-8.5-101, et seq. 2. The Department is required to provide restoration services for any defendant found by the court to be incompetent to proceed. See id. at §§ 16-8.5-101, et seq., 27-60-105. 3. In 2007, there were contempt citations issued in Denver District Court related to pretrial detainees waiting extended periods of time in Denver County Jail. See, e.g., Am. Contempt Citation, People v. Zuniga, No. 06CR999 (Colo. Dist. Ct. Jan. 3, 2007); Contempt Citation, People v. Kirkwood, No. 06CR5797 (Colo. Dist. Ct. Jan. 3, 2007); Am. Contempt Citation, People v. Sims, No. 05CR2272 (Colo. Dist. Ct. Jan. 3, 2007) (collectively [#105-1]). In 2006, Denver District Court Judge Egelhoff appointed special counsel to litigate contempt citations against the Executive Director of the Colorado Department of Human Services and the Superintendent of the Colorado Mental Health Institute at Pueblo (“CMHIP”). In those instances, pretrial detainees were sitting in jail for many months awaiting transport to CMHIP for competency evaluations. The contempt citations and orders were resolved through a settlement agreement. The agreement required CMHIP to offer admission to pretrial detainees within 28 days of a court order requiring in-patient competency evaluations or restorative treatment, and to maintain a quarterly average of 24 days for both categories.
2

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 3 of 29
4. Some period after that settlement agreement expired, the Department and CMHIP did not transport pretrial detainees to CMHIP for competency evaluation or restoration treatment within 28 days after they were ready for admission.
5. Plaintiff initially commenced this matter on August 31, 2011. [#1]. The complaint alleged that Defendants failed to timely admit pretrial detainees in jails across Colorado into CMHIP, the State’s only forensic mental health hospital charged with providing court-ordered evaluations and accepting custody of pretrial detainees for restorative treatment, for competency evaluations, and restorative treatment for those determined to be incompetent to stand trial. Id. The complaint alleged this failure created unconstitutional delays to provide competency evaluations and treatment for up to 80 pretrial detainees for as long as six months. Id.
6. In 2012, the parties entered into settlement negotiations to resolve issues related to the length of the time individuals were waiting to receive competency evaluations and restoration services.
7. After settlement negotiations mediated by former Magistrate Judge Boyd N. Boland, and post-mediation negotiations, the parties reached the 2012 Agreement resolving the case.
8. The 2012 Agreement put into place timeframes for the Department to: 1) complete outpatient (in-jail) competency evaluations; 2) offer admission for inpatient competency evaluations; and 3) offer admission for inpatient restoration services. [#51-1; #105-15].
9. The 2012 Agreement included a provision called Special Circumstances, which “recognizes that to some extent the Department’s ability to perform its statutory obligations and its obligations under [the 2012 Agreement] is based on factors beyond the Department’s control.”
10. The 2012 Agreement defines Departmental Special Circumstances (“DSC”) as: circumstances beyond the control of the Department which impact the [Department’s] ability to comply with the timeframes set forth in Paragraph
3

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 4 of 29
2. This could mean an unanticipated spike in referrals, a substantial and material decrease in the Hospital’s budget, or another sentinel event impacting clinical decisions system wide. These examples are provided for illustration only. [DSC] is a flexible concept, due to the unique and often unforeseen nature of these events. 11. The 2012 Agreement states that: if [DSC] is invoked and then agreed upon by the parties, the timeframe requirements of Paragraph 2 shall be suspended as to all Pretrial Detainees affected by the invoked [DSC] for a period of six months from the date of the Department’s invocation.
12. The 2012 Agreement states that: if the timeframe requirements of Paragraph 2 of [the 2012 Agreement] are temporarily suspended pursuant to the provisions of Paragraph 6(c), the duration of [the 2012 Agreement] shall be extended for a period equal to the length of time of the suspension of the timeframe requirements…[and] then the Department will receive only a reduction in the duration for the number of months it was in compliance for the year.
13. The 2012 Agreement states that “upon the first anniversary of the full execution of [the 2012 Agreement] and if the Department has fully complied with the terms of [the 2012 Agreement],” the duration of the 2012 Agreement would be reduced by one year.
14. Both parties certified that they fully and carefully reviewed the 2012 Agreement and consulted with their respective attorneys regarding the legal effect and meaning of the 2012 Agreement and all terms and conditions thereof.
15. The 2012 agreement was incorporated by reference in the Court’s Order of Dismissal on April 9, 2012 under Fed. R. Civ. P. 41(a)(2). [#52].
16. In August 2015, the Department invoked DSC. 17. In October 2015, the Plaintiff moved to reopen the matter for enforcement of the 2012 agreement, in part because it disputed DSC. [#53]. 18. After two days of mediation, engaging in subsequent settlement negotiations, and
4

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 5 of 29
exchanging multiple drafts, the parties entered into an Amended and Restated Settlement Agreement (“Settlement Agreement” or “2016 Agreement”) [#78-1] resolving the case.
19. The Settlement Agreement is the product of over three months and hundreds of hours of work by both parties. The current 2016 Settlement Agreement was filed with the Court on July 28, 2016. [#78-1; #105-17].
20. This Court retained jurisdiction to enforce the Settlement Agreement. [#78 at ¶¶ 3, 4; #105-16]. Under the 2016 Settlement Agreement, the Department is required to offer admission to pretrial detainees to the hospital for restorative treatment or inpatient competency evaluations no later than 28 days after the pretrial detainee is ready for admission. [#105-16 at ¶ 2(a)]. The Department also must maintain a monthly average of 24 days or less for both types of offers of admission. See id.
21. The 2016 Agreement includes a provision called Special Circumstances, which recognizes that “to some extent the Department’s ability to perform its statutory obligations and its obligations under [the Agreement] are based on factors beyond its control.”
22. The 2016 Agreement defines DSC as: circumstances beyond the control of the Department which impact the Department’s ability to comply with the timeframes set forth in Paragraph 2. This could mean an unanticipated spike in referrals, a national or statewide disaster impacting admissions decisions system wide. These examples are provided for illustration only. [DSC] is a flexible concept, due to the unique and often unforeseen nature of these events.
23. The 2016 Agreement states that: upon the invocation of [DSC], the timeframe requirements of Paragraph 2 shall be automatically suspended for six months, unless the Department notifies [Disability Law Colorado] that a shorter period of time is sufficient to resolve [DSC], commencing with the month in which the Notice of [DSC] is transmitted to [Disability Law Colorado].
24. The 2016 Agreement states that:
5

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 6 of 29
if the timeframe requirements of Paragraph 2 of [the Agreement] are temporarily suspended pursuant to the provisions of Paragraph 6(c), the duration of [the Agreement] shall be extended for a period equal to the length of time of the suspension of the timeframe requirements. 25. This language reflects a modification from the 2012 Agreement. Id. 26. The 2016 Agreement states that: the term of the Agreement shall be reduced by three months for each of the number of months of certified timeliness compliance for the prior calendar year…[and] the term of the Agreement shall be increased by three months for each month during the prior calendar year that the Department was not in full compliance with the timeliness requirements of [the Agreement]. 27. Both parties certified that they fully and carefully reviewed the 2016 Agreement and consulted with their respective attorneys regarding the legal effect and meaning of the 2016 Agreement and all terms and conditions thereof. 28. The 2016 Settlement Agreement states that [t]he Hospital may invoke Individual Special Circumstances more than once for the same Pretrial Detainee, but it must follow the notification and conferral procedures in Paragraph 6(b) each time it seeks to invoke Individual Special Circumstances. [#105-15 at ¶ 6(b)(ii)]. The Settlement Agreement does not contain a similar provision for DSC. [Id. at ¶ 6(c)]. 29. In June 2017, the Department invoked DSC based on “an unanticipated spike in court-ordered referrals for inpatient competency evaluation and restoration treatment services.” [#105-2 at 1]. 30. In December 2017, the Department invoked DSC. [#105-3]. That DSC notice was based on the fact that “the sustained increase in the number of court orders for inpatient competency restoration treatment had outpaced the Department’s capacity and was beyond its control.” See [id. at 1–2].
6

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 7 of 29

31. The December 2017 DSC invocation, the validity of which Plaintiff disputes,

would have expired on June 22, 2018. Id.

32. The Department’s invocation of DSC in both June 2017 and December 2017

complied with the 2016 Agreement’s notice requirements.

33. In June 2018, the Department did not invoke DSC.

34. The Department has not complied with the Settlement Agreement timeframes

concerning inpatient restoration treatment since June 2017.

35. The Department has complied with the Settlement Agreement timeframes

concerning outpatient competency evaluations since July 2015.

36. The Department has complied with the Settlement Agreement timeframes

concerning inpatient competency evaluations since May 2018.

37. The June 2018 “Best Referrals Per Month” report [#105-8] accurately states the

number of orders for competency evaluation and restoration treatment services received by the

Department from January 2017 through July 2018.

38. Chart 1 details the timelines since June 2017 for restorative treatment at CMHIP or a

second facility in Arapahoe County, known as RISE, as calculated by the Department.

Month
June 2017 July 2017 August 2017 September 2017 October 2017 November 2017 December 2017

Chart 1

Number of Pretrial
Detainees on Report A
Waiting 28+ Days 3 33 73 90 114 133 147

Average Wait Time
23.5 27.2 39.5 46.7 59.4 67.2 66.4

Longest Wait Time
29 45 56 68 88 87 129

7

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 8 of 29

January 2018

165

69.8

129

February 2018

175

72.6

114

March 2018

203

93.6

133

April 2018

195

82.4

136

May 2018

200

91.7

144

June 2018

189

94.6

144

July 2018

175

81.7

149

August 2018

170

81.1

149

[#105-9]. In each month from July 2017 through present, Defendants have failed to maintain a

24-day monthly average for inpatient restorative treatment.

39. Chart 2 details the timelines since June 2017 for inpatient competency evaluations

at CMHIP or a second facility in Arapahoe County, known as RISE, as calculated by the

Department.

Month June 2017 July 2017 August 2017 September 2017 October 2017 November 2017 December 2017 January 2018 February 2018 March 2018 April 2018 May 2018 June 2018 July 2018 August 2018
[#105-10].

Chart 2

Number of Pretrial Detainees on
Report B Waiting 28+ Days
0 17 24 29 39 40 28 28 27 13 0 1 0 0 0

Average Wait Time 17.2 26.7 34.6 32.4 51.7 59.8 60.6 60.3 68.5 16.5 6.8 11.2 14.4 9.4 14.4

Longest Wait Time
27 44 51 62 77 80 86 95 111 77 13 49 22 22 18

Total Number
of Referrals
51 45 53 63 68 72 50 51 46 54 12 22 10 17 24

8

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 9 of 29

40. Chart 3 details the timelines since June 2017 for outpatient competency evaluations

conducted by CMHIP, as calculated by the Department.

Month June 2017 July 2017 August 2017 September 2017 October 2017 November 2017 December 2017 January 2018 February 2018 March 2018 April 2018 May 2018 June 2018 July 2018 August 2018
[#105-11].

Chart 3

Number of Pretrial Detainees on Report C
Waiting 30+ Days
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Average Wait Time 15.4 20.6 20.6 20.0 20.7 19.3 20.6 20.3 20.9 21.3 20.8 22.9 21.8 20.3 20.9

Longest Wait Time
28 30 30 30 29 27 29 29 29 29 29 29 29 29 30

Total Number of Referrals
149 137 145 150 156 152 155 155 149 151 142 134 144 145 169

41. Chart 4 contains the monthly totals of new evaluations and restorations, as

calculated by the Department.

Fiscal Year
June 2016 July 2016 August 2016 September 2016 October 2016 November 2016 December 2016 January 2017 February 2017 March 2017 April 2017

Chart 4
In Patient Competency Evaluations
25 21 32 25 28 23 24 27 28 27 29

9

In Patient Restorations
45 47 46 53 43 72 48 58 58 54 74

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 10 of 29

May 2017

26

84

June 2017

37

73

July 2017

23

64

August 2017

31

77

September 2017

31

67

October 2017

28

66

November 2017

19

76

December 2017

14

69

January 2018

20

77

February 2018

18

79

March 2018

30

66

April 2018

10

64

May 2018

22

74

June 2018

11

76

July 2018

15

67

August 2018

22

90

[#105-8; #105-12].

42. Chart 5 shows the number of referrals for in-patient evaluation and restoration for

each fiscal year from 2005 through 2017 and the percentage of change on an annual basis.

Fiscal Year
2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18
[#105-13].

In Patient Competency Evaluations 115 144 184 238 275 276 287 355 378 415 326 327 257

Chart 5
% Change
25.2% 27.8% 29.3% 15.5% 0.4% 3.9% 23.7% 6.4% 9.7% -21.4% 0.3% -21.41%

In Patient Restorations
167 224 219 170 212 213 269 274 342 462 550 711 849

% Change
34.1% -2.2% -22.4% 24.7% 0.5% 26.3% 1.9% 24.8% 35.1% 19.0% 29.3% 19.41%

43. From July 2017 to July 2018, Defendants received 15 orders to show cause related to

competency and restoration services at CMHIP and 44 orders for immediate placement at CMHIP.

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[#105-5 (CORA Response)]. 44. In July 2018, Judge Jones of the Denver District Court issued an order requiring
the Department to admit a pretrial detainee who had been in jail waiting for restorative treatment for months. [#105-6 (Judge Jones order)].
45. In another case, Judge Brody of the Denver District Court issued an order to show cause and contempt citation against Defendants. [#105-7 (Judge Brody order)]. Judge Brody vacated the show cause order and contempt citation against Defendants on August 24, 2018.
46. [#105-4] is comprised of true and correct copies of 15 letters which the Department sent to state district court judges in April 2018 requesting that the judge convert the order for the defendant referenced in the letter to receive inpatient restoration to an order for outpatient restoration services.
LEGAL STANDARD Pursuant to Rule 56, the court may grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). It is the movant’s burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). And though the court will “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant[,]” Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016), the nonmovant must point to
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competent summary judgment evidence, see Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004), and may not rely on “mere reargument of his case or a denial of an opponent’s allegation[,]” see 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998).
And when, as here, the parties file cross-motions for summary judgment, the court considers each separately—the denial of one does not require the grant of another. Buell Cabinet v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). Rather, the court may enter summary judgment only if the moving party carries its burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Reed v. Bennett, 312 F.3d 1190, 1194–95 (10th Cir. 2002).
ANALYSIS As currently postured by the Motions for Summary Judgment, the Parties stipulated to four issues for the court’s consideration: 1. Whether the Settlement Agreement between the parties grants Defendants the right to
invoke “Departmental Special Circumstances” consecutively, without limitations; 2. Whether Defendants breached the Settlement Agreement or whether the Defendants
were in non-compliance with the Settlement Agreement timeframes, when they re-invoked “Departmental Special Circumstances” in December 2017, claiming it can consecutively invoke Departmental Special Circumstances; 3. Whether Defendants breached the Settlement Agreement or whether the Defendants were in non-compliance with the Settlement Agreement timeframes, on June 21, 2018 when they did not invoke “Department Special Circumstances”; and 4. If the Court finds Defendants either breached the Settlement Agreement or were in noncompliance with the Settlement Agreement timeframes, the remedies that the Court should impose. See [#88 at 2]. These issues present contract interpretation and breach of contract questions, requiring the court to apply state contract law in addressing the “construction of a purported
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settlement agreement[.]” Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013) (brackets and internal quotation marks omitted).
In Colorado, to recover for an alleged breach of contract a plaintiff must prove: (1) the existence of a contract; (2) the plaintiff’s performance of its contractual obligations or its justification(s) for non-performance; (3) the defendant’s failure to perform; and (4) the plaintiff’s damages. See Xtreme Coil Drilling Corp. v. Encana Oil & Gas (USA), Inc., 958 F. Supp. 2d 1238, 1243 (D. Colo. 2013) (citing W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992)). For purposes of issues 1 and 2, “[t]he interpretation of a contract under Colorado law is a legal question.” Grant v. Pharmacia & Upjohn Co., 314 F.3d 488, 491 (10th Cir. 2002) (citing Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo. 1990)) (further citation omitted). It is therefore appropriate at summary judgment for the court to interpret the terms of the 2016 Settlement Agreement. See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Fed. Ins. Co., 213 F. Supp. 3d 1333, 1340 (D. Colo. 2016) (applying Colorado law). But “[o]nce the terms of the agreement have been identified, the fact finder must determine whether the party accused of breaching has performed its obligations under the contract. Whether a party has performed its obligations under a contract or breached is a question of fact.” Lake Durango Water Co. v. Pub. Utilities Comm’n of State of Colorado, 67 P.3d 12, 21 (Colo. 2003) (emphasis added).
With this framework in mind, the court turns to the issues presented by the Parties. I. Departmental Special Circumstances
Per the 2016 Settlement Agreement, Defendants agreed to certain timeframes for admissions for restorative treatment and the performance of competency evaluations. See [#78-1 at ¶ 2]. These timeframes include admission “no later than 28 days after the Pretrial Detainee is Ready for Admission, [i.e., when CMHIP receives the court order for admission and collateral
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materials],” and a monthly average of “24 days or less for both types of Offers of Admission.” [Id.
at ¶ 2(a)]. There is no dispute between the Parties, or before this court, that Defendants have not
complied with the timeframes concerning inpatient restoration treatment since June 2017, though
complying with the timeframes concerning outpatient competency evaluations since July 2015,
see [#104 at ¶¶ 34–35], and have only come into compliance with the timeframes concerning
inpatient competency evaluations beginning in May 2018, see [id. at ¶ 36]. But the parties
recognized that factors beyond Defendants’ control might interfere with their ability to meet these
required timeframes, so the 2016 Settlement Agreement provides for two categories of special
circumstances that temporarily suspend the required timeframes. See [#78-1 at ¶ 6].
Relevant here, DSC
Means circumstances beyond the control of the Department which impact the Department’s ability to comply with the timeframes set forth in Paragraph 2. This could mean an unanticipated spike in referrals, a national or statewide disaster impacting admissions decisions system wide. These examples are provided for illustration only. [DSC] is a flexible concept, due to the unique and often unforeseen nature of these events.
[#78-1 at ¶ 6(a)(ii)]. When invoking DSC, the Department
shall notify DLC. . ., and . . . the Department shall provide a detailed explanation of the basis for invoking [DSC], a plan to remedy the [DSC], and the projected timeframe for resolution. The period of [DSC] shall commence on the date that the Notice . . . is transmitted to DLC. Upon invocation of [DSC], the timeframe requirements of Paragraph 2 shall be automatically suspended for six months, unless the Department notifies DLC that a shorter time period is sufficient . . ., commencing with the month in which the Notice . . . is transmitted to DLC. . . . If DLC decides to challenge the invocation of [DSC], it may do so by filing a motion to reopen the Action to seek enforcement of this Agreement. . . .
[Id. at ¶ 6(c)].
A. Consecutive Invocations
To answer the first issue presented by the Parties, the court “‘must examine [the 2016
Settlement Agreement’s] terms and attempt to determine the intent of the parties.’” Level 3
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Commc’ns, LLC v. Liebert Corp., 535 F.3d 1146, 1154 (10th Cir. 2008) (quoting East Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co., 109 P.3d 969, 973 (Colo. 2005)). In deciphering the parties’ intent, “the instrument’s language must be examined and construed in harmony with the plain and generally accepted meaning of the words used.” Leprino Foods Co. v. Factory Mut. Ins. Co., 653 F.3d 1121, 1127 (10th Cir. 2011) (internal quotation marks omitted) (applying Colorado law). “When a contractual term unambiguously resolves the parties’ dispute, the interpreting court’s task is over” because the court is to enforce a written contract pursuant to its clear terms. See Stroh Ranch Dev., LLC v. Cherry Creek S. Metro. Dist. No. 2, 935 F. Supp. 2d 1052, 1060 (D. Colo. 2013) (quotation marks omitted) (applying Colorado law). If, however, the contractual terms are ambiguous, i.e., susceptible to more than one reasonable interpretation, the court may consider extraneous evidence to determine the parties’ intent; but the mere difference of opinion regarding the interpretation of a term does not itself create an ambiguity. See Running Foxes Petroleum, Inc. v. Nighthawk Prod. LLC, 175 F. Supp. 3d 1279, 1279, 1287 (D. Colo. 2016) (citing Ad Two, Inc. v. City & Cty. of Denver, 9 P.3d 373, 376–77 (Colo. 2000)).
All agree that the language of Paragraph 6(a)(ii) is clear: upon proper Notice, the Department may invoke DSC, thereby suspending the required timeframes of Paragraph 2(a) for up to 6 months beginning with the month in which the Department transmits Notice. Equally as clear is the absence of any language within the provisions themselves qualifying the Department’s ability to invoke DSC. The Parties offer opposing interpretations of what this silence means. Plaintiff contends that this silence prohibits Defendants from invoking DSC “consecutively, without limitations” (though clarifying at the Motions Hearing that Defendant could invoke DSC more than once, non-consecutively after coming into compliance with the Agreement following a prior invocation of DSC) because doing so would foster infinite suspensions of the relevant
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timeframes, rendering the 2016 Settlement Agreement a “dead letter.” Defendants counter that because the plain language of the 2016 Settlement Agreement does not prohibit consecutive invocations of DSC, the court should not and cannot supply a term neither party bargained for. Despite the court’s concern that consecutive invocations of DSC could simply result in infinite extensions, I respectfully agree with Defendants.
As mentioned, “[t]o determine the meaning of a contract, courts are guided by the general rules of contract construction and should seek to give effect to all provisions so that none will be rendered meaningless.” Chandler-McPhail v. Duffey, 194 P.3d 434, 437 (Colo. App. 2008). That is, “the meaning of a contract is found by examination of the entire instrument and not by viewing clauses or phrases in isolation” so as to harmonize all provisions. Fed. Deposit Ins. Corp. v. Fisher, 292 P.3d 934, 937 (Colo. 2013) (brackets and internal quotation marks omitted). But courts “should neither rewrite the agreement nor limit its effect by a strained construction” when its terms are clear, SOLIDFX, LLC v. Jeppesen Sanderson, Inc., 841 F.3d 827, 833 (10th Cir. 2016) (internal quotation marks omitted) (applying Colorado law), because “it is not the business of the courts to draft a better contract for the parties than they did for themselves[,]” id. at 836. Indeed, contracts between “competent parties, voluntarily and fairly made, should be enforceable according to the terms to which they freely commit themselves[,]” including “mutually bargained-for duties and risks.” Ravenstar, LLC v. One Ski Hill Place, LLC, 401 P.3d 552, 555 (Colo. 2017) (internal quotation marks omitted).
Plaintiff offers several reasons as to why the 2016 Settlement Agreement limits the Department’s ability to invoke DSC consecutively. First, consecutive invocation of DSC would render meaningless the timeframes prescribed by Paragraph 2 because the Department could “serially re-invoke DSC every six months in perpetuity and never come back into compliance.”
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[#96 at 7]; see also [#101 at 9–10]. Second, and relatedly, consecutive invocation of DSC “would eliminate the three-month extension provision” contained in Paragraph 4(b) that extends the term of the 2016 Settlement Agreement three months for every one month of noncompliance in the prior calendar year. See [#96 at 7; #101 at 10]. While these are troubling possibilities that the court noted at the Motions Hearing, the 2016 Settlement Agreement provides mechanisms to protect the timeframes in Paragraph 2 and the extensions to the 2016 Settlement Agreement’s lifespan in Paragraph 4(b). Most notably, the 2016 Settlement Agreement unequivocally provides Plaintiff the right “to challenge the invocation of [DSC] . . . by filing a motion to reopen the Action to seek enforcement of this Agreement.” [#78-1 at ¶ 6(c)]. This is exactly what Plaintiff did here. And while Defendants dispute whether the stipulated issues between the Parties encompass this point, Plaintiff indeed challenges whether unanticipated spikes in referrals is a sufficient basis for invoking DSC.
Third, Plaintiff argues that consecutive invocation of DSC would be at odds with the provision concerning Individual Special Circumstances that “expressly permit[s] successive invocations of Individual Special Circumstances”; because DSC omits this same language, Plaintiff argues that the court cannot reasonably interpret DSC to allow for consecutive invocation. [#96 at 7–8; #101 at 9–10]. While it is correct that the court must not read provisions in isolation and must harmonize all provisions, I find that these two provisions cover distinct performance obligations, defined by discrete circumstances—one directed at the macro-level consideration of the Department and the other directed at the micro-level consideration of an individual. [#102 at 8]. That is, accepting Plaintiff’s interpretation would insert a qualification on DSC that the 2016 Settlement Agreement does not expressly provide. See Magnetic Copy Servs., Inc. v. Seismic Specialists, Inc., 805 P.2d 1161, 1164 (Colo. App. 1990) (“The contract does not state that
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[defendant]’s performance was conditioned upon any set of circumstances. Furthermore, the contract does not state or imply that providing 3,000 tapes within a year is merely a goal or objective. Hence, we will not read the contract as so stating.”). Had Plaintiff sought to further restrict the manner by which the Department could invoke DSC it “could have and should have done so expressly.” Feerer v. Amoco Prod. Co., 242 F.3d 1259, 1264 (10th Cir. 2001) (holding under New Mexico law that nothing in the settlement agreement supported the defendants’ position on reallocating costs to the plaintiffs where no such provision allowed for this and this did not appear to be the parties’ intent).1
Moreover, Plaintiff’s argument runs counter to its clarification at the Motions Hearing that Defendants could invoke DSC more than once during the lifespan of the 2016 Settlement Agreement but only after coming into compliance with Paragraph 2 following a prior invocation of DSC. But this interpretation of DSC does not necessarily follow from the plain language of Individual Special Circumstances that allows the Department to invoke “more than once for the same Pretrial Detainee”, see [#78-1 at ¶ 6(b)(ii)], which Plaintiff interprets as allowing consecutive invocation. Indeed, if the Parties’ intent was to allow for multiple invocations of both Individual Special Circumstances and DSC, then the absence of the same language in the DSC provision has no effect on that understanding. And the absence of explicit language limiting the invocation of DSC counsels against an interpretation that limits the Department’s ability in this regard based on Plaintiff’s interpretation of Individual Special Circumstances.
1 In the realm of statutory interpretation, it is axiomatic that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Oklahoma, 693 F.3d 1303, 1309 (10th Cir. 2012). But it is far from clear that the same is true of contractual interpretation, especially where, as here, the omission of certain language would qualify conduct that the 2016 Settlement Agreement does not explicitly restrict. See Magnetic Copy Servs., Inc., 805 P.2d at 1164.
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Finally, Plaintiff argues that at the least, permitting consecutive invocation of DSC would breach Defendants’ duty of good faith and fair dealing. [#96 at 8; #101 at 10]. “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” See RESTATEMENT (SECOND) OF CONTRACTS § 205. In Colorado, this duty exists “to effectuate the intentions of the parties or to honor their reasonable expectations[,]” and may be invoked “when the manner of performance under a specific contract term allows for discretion on the part of either party[,]” i.e., one party has the power to set or control the terms of performance after formation. See City of Golden v. Parker, 138 P.3d 285, 292 (Colo. 2006) (internal citations and quotation marks omitted). The 2016 Settlement Agreement, specifically Paragraph 2, does not provide discretion to Defendants as to their performance obligations; nor does it appear that Defendants could dictate their performance obligations after formation. Further, the duty of good faith and fair dealing, if raised as to the Department’s ability to invoke DSC, cannot “contradict terms or conditions for which a party has bargained.” Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995). As discussed above, Plaintiff’s interpretation of Paragraphs 6(a)(ii) and 6(c) as limiting the Department’s ability to invoke DSC consecutively interjects a new substantive term into the 2016 Settlement Agreement that would “vary or contradict the contract’s express provisions.” United States for use & benefit of Fisher Sand & Gravel Co. v. Kirkland Constr., LLP, 76 F. Supp. 3d 1199, 1215 (D. Colo. 2014) (applying Colorado law). Thus, to the extent that Plaintiff contends that the second, consecutive invocation of DSC breached the implied covenant of good faith and fair dealing [#96 at 8], this court respectfully disagrees.
To conclude, Plaintiff asks this court to read into the 2016 Settlement Agreement a restriction on the Department’s ability to invoke DSC consecutively—a restriction the Agreement does not express. Because I find the terms of the 2016 Settlement Agreement clear and
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unambiguous, I conclude that a reasonable interpretation of Paragraphs 6(a)(ii) and 6(c) permits Defendants to invoke DSC consecutively. This conclusion, however, does not completely resolve the matter before the court. Indeed, even the Parties framed the first issue as “[w]hether the Settlement Agreement between the parties grants Defendants the right to invoke ‘Departmental Special Circumstances’ consecutively, without limitations.” Based on the arguments in the papers, the Parties appear to approach the qualifier of “without limitations” as a numeric one. But far more salient to this court is that the issue clearly underlying the original action, the 2016 Settlement Agreement, and this action is a non-numeric one. This court has already concluded that Defendants can invoke DSC consecutively, but it does not conclude that Defendants’ ability to invoke DSC consecutively is without limitations. The 2016 Settlement Agreement expressly limits the invocation of DSC to “circumstances beyond the control of the Department which impact the Department’s ability to comply with the timeframes set forth in Paragraph 2.” [#78-1 at ¶ 6(a)(ii)].
B. Limitations on the Invocation of DSC As posed, the second issue presented to the court is: Whether Defendants breached the Settlement Agreement or whether the Defendants were in non-compliance with the Settlement Agreement timeframes, when they re-invoked “Departmental Special Circumstances” in December 2017, claiming it can consecutively invoke Departmental Special Circumstances. It is clear to this court that the central issue of dispute, and the question that is far harder to answer, is whether Defendants rightfully invoked DSC in June 2017 and then extended it in December 2017 even if the Agreement allowed Defendants to invoke DSC consecutively. Put another way, were there “circumstances beyond the control of the Department which impact the Department’s ability to comply with the timeframes set forth in [the Settlement Agreement]?” See [#78-1 at ¶ 6(a)(ii)]. At oral argument, counsel for Defendants argued that this substantive issue was not before the court, as the only basis for breach argued by Plaintiff was the consecutive invocation of
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DSC. But in Plaintiff’s Motion for Summary Judgment it clearly argues that the invocations of DSC “did not satisfy the basic DSC requirements.” [#96 at 9]. And Defendants argued, in Response, that their invocations of DSC were proper, because they were substantively “outside the control of the Department.” [#102 at 12–15]. And upon Reply, Plaintiff continues to challenge whether the DSC invocation was justified under the standard set forth in the 2016 Settlement Agreement. [#101 at 10–11]. Even if the Parties did not expressly articulate this issue as one of the four presented to the court for resolution, all Parties clearly had notice and argued the issue. Furthermore, Rule 56(f) of the Federal Rules of Civil Procedure contemplates that a court may render a determination as to summary judgment independent of the Parties’ motions. Fed. R. Civ. P. 56(f). And the 2016 Settlement Agreement clearly contemplates that Plaintiff may substantively challenge the invocation of DSC. [#78-1 at ¶ 6(c)].
But the issue of whether the Department properly invoked DSC, first in June 2017 and then again in December 2017, is not undisputed. Rather, it is rife with disputes of material fact, and no discovery on these issues has occurred. Plaintiff contends that the basis of Defendants’ invocation—the lack of capacity caused by an increase in referrals—“is wholly within the Department’s control.” [#96 at 9]. And it insists that “the Department’s failure to maintain adequate facilities to keep up with the pace of referrals is a problem that has plagued timely admission of pretrial detainees to CMHIP for decades.” [Id.]. Indeed, Plaintiff suggests that the demand for the Department’s mental health evaluations, including both the inpatient restorations and evaluations, shows that monthly totals have dropped, rather than increased, in the time period at issue. [Id. at 10].
For their part, Defendants argue that the invocation of DSC complies with the terms of the 2016 Settlement Agreement. [#102 at 11–13]. They insist that an unanticipated spike in
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court-ordered referrals for inpatient competency and restoration treatment services caused it to
invoke DSC, and that those spikes in demand are out of its control. [Id.]. But Defendants never
explain, and rather simply assume, that the increase in court-ordered restoration services and
evaluations necessarily renders the Department unable to comply with the timeframes set forth in
the 2016 Settlement Agreement. [#102 at 14–15]. And contrary to Defendants’ contention that
DLC “does not dispute whether the Department had the resources to manage the elevated volume
of orders when it invoked DSC in December 2017,” [id. at 14], DLC does appear to dispute that
very conclusion in addition to challenging whether the Department has adequately planned for
such foreseeable increases. [#101 at 11]. This material dispute of fact precludes summary
judgment in any party’s favor as to whether Defendants have breached the 2016 Settlement Agreement by their invocations of DSC in June and December 2017.2
C. Failure to Invoke DSC
The third issue raised by the Parties is whether Defendants are in breach of the Settlement
Agreement as of June 22, 2018, when the Department continued its noncompliance with the
2 The court is keenly aware that the separation of powers doctrine counsels against a court’s review of an executive agency’s exercise of powers properly within its own sphere. See, e.g., Kort v. Hufnagel, 729 P.2d 370 (Colo. 1986) (en banc). And the court is generally wary of passing over the manner by which an agency allocates it limited resources, seeks funding from the Legislature, and explores alternatives to address budgetary shortfalls. Here, however, that review appears intertwined with the contractual provisions that require the Department to invoke DSC based only on “circumstances beyond the control of the Department which impact the Department’s ability to comply with the timeframes.” To determine whether a circumstance is “beyond the control of the Department which impacts its ability to comply with the timeframe,” the court cannot look only at whether the triggering event is beyond the control of the Department, but must consider the totality of the circumstances, including the Department’s actions or inactions to address trends in demand for mental health evaluations and restoration services. For instance, the court would not consider a spike in the number of court-ordered services as a circumstance “outside the control of the Department which impacts the Department’s ability to comply with the timeframes,” if the facts demonstrate the Department was aware of the increasing trend in demand for mental health evaluations and restoration services but failed to take reasonable steps to address the rising needs.
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timeframes contemplated by the 2016 Settlement Agreement but did not invoke DSC. Plaintiff argues that the Department may not simply choose not to comply with the timeframes of the 2016 Settlement Agreement without cause. [#101 at 11]. Defendants argue that their failure to satisfy the timeframes does not require the invocation of DSC, does not amount to breach, and simply results in the increased duration of the 2016 Settlement Agreement by three months for each month that the Department is not in full compliance. [#97 at 21 (citing #78-1 at ¶ 4(b))]. Plaintiff contends that Defendants’ interpretation of the 2016 Settlement Agreement is “absurd.” [#101 at 11–12]. As urged by Defendants, this court’s inquiry begins and end by applying the plain language of the Agreement. [#97 at 21].
In applying the general principles of contract law, this court finds that the issue of whether Defendants breached the 2016 Settlement Agreement is distinct from the remedies available to address such breach. To prevail on summary judgment as to breach, Plaintiff must demonstrate that there is no genuine issue of material fact that: (1) a contract exists; (2) plaintiff performed its contractual obligations or its non-performance was justified; (3) the defendant failed to perform; and (4) the plaintiff suffered damages.
First, there is no material factual dispute that a contract exists, i.e., the 2016 Settlement Agreement. Second, I respectfully disagree with Defendants that DLC has not demonstrated that it has performed its duties under the Agreement because it “refuses to comply with those contract terms” that suspend the timeframe obligations when the Department invokes DSC. [#97 at 18– 19]. There is no contractual term that DLC simply has to accept the Department’s invocation of DSC and thereby “comply” with the extensions of time to the overall Agreement. Indeed, as pointed out by Plaintiff, the 2016 Settlement Agreement specifically reserves and contemplates that DLC may challenge the Department’s invocation of DSC if the Parties are unable to reach a
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resolution as to any disagreement. [#78-1 at ¶ 6(c)]. And even without that term, the court finds no law, either statutory or common law, which suggests that a plaintiff’s good faith allegations of contractual breach somehow transforms into a failure to perform its contractual obligations that then obviates its ability to prove breach. Therefore, I conclude that there is no material dispute that DLC has performed its contractual obligation under the 2016 Settlement Agreement.
Third, the court considers whether Defendants failed to perform under the 2016 Settlement Agreement as of June 2018. Defendants argue that “for the same reasons discussed above, the Department’s inability to meet the Agreement’s timeframes in June 2018 does not amount to breach.” [#97 at 21]. I respectfully disagree. As an initial matter, due to the factual disputes as discussed above, the court cannot conclude at this juncture that Defendants’ invocation of DSC in either or both June and December 2017 was proper under the 2016 Settlement Agreement. See supra, pp. 20–22. Therefore, the issue of breach has not been resolved in Defendants’ favor. Equally as significant, the 2016 Settlement Agreement does not contemplate that Defendants can simply ignore the timeframes to which they agreed without breaching the Agreement. The contract is clear that a proper invocation of DSC temporarily suspends the timeframe requirements of Paragraph 2 of the Agreement, thereby precluding a finding of breach based on failure to satisfy the timeframe requirements. [#78-1 at ¶ 4(c)]. But nothing in the Agreement suggests that the Department can simply decline to comply with the timeframes to which it is contractually bound in Paragraph 2 with the only consequence being the extension of the Agreement’s duration for three months. [#97 at 21]. If that were the case, there would be no need for Defendants to ever invoke DSC or justify the Department’s inability to comply with the timeframes to which it knowingly and voluntarily agreed. [#78-1 at ¶ 15].
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The Parties agree that the Department has complied with the timeframes concerning inpatient competency evaluations since May 2018. [#104 at ¶ 36]. The Parties further agree that the Department has complied with the timeframes concerning outpatient competency evaluations since July 2015. [Id. at ¶ 35]. But there is no dispute that since June 2017, Defendants have failed to maintain a 24-day monthly average for inpatient restorative treatment. [Id. at ¶¶ 34, 38]. And there is also no dispute that the Department did not invoke DSC as of June 2018. [Id. at ¶ 33]. Finally, Defendants identify no other provision of the 2016 Settlement Agreement or other circumstance that excuses them from maintaining a 24-day monthly average for inpatient restorative treatment. Therefore, this court concludes that the undisputed facts before it establish that Defendants have failed to perform under the 2016 Settlement Agreement as of June 2018 given their failure to maintain a 24-day monthly average for inpatent restorative treatment.
Finally, the court considers whether DLC suffered damages. Defendants do not argue that the individuals who DLC represents have not suffered damages. Plaintiff argues that Defendants have “violated the constitutional rights of everyone of these detainees by their failure to timely admit and treat them,” [#101 at 2], and provides examples of the harms suffered by these individuals. Therefore, this court concludes that there is no genuine issue of material fact that DLC has suffered damages, and that as of June 2018, Defendants are in breach of the 2016 Settlement Agreement. II. Appropriate Remedies
Having found breach, this court turns to the fourth issue identified by the Parties: the remedies that the court should impose. Defendants argue that the sole remedy for their breach of the timeframes for inpatient restoration is “the extension of the Agreement by three months for each month during the prior calendar year that the Department was not in full compliance with the
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timeliness requirement of this Agreement.” [#78-1 at ¶ 4(b)]. Plaintiff argues that the extension of the 2016 Settlement Agreement is not the exclusive remedy for Defendants’ breach of contract because the contract does not explicitly limit relief to this exclusive remedy. [#101 at 12]. In addition, Plaintiff urges this court to order immediate compliance upon pain of contempt and attorney’s fees and costs. [#101 at 13–15].
A. Specific Performance To the extent that Defendants argue that the only remedy available to Plaintiff is the extension of the 2016 Settlement Agreement under Paragraph 4(c), this court respectfully rejects that argument. It is clear that under Colorado law, specific performance is an equitable remedy for breach of contract. Wheat Ridge Urban Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737, 740 (Colo. 2007) (citing Setchell v. Dellacroce, 169 Colo. 212, 216, 454 P.2d 804, 806 (1969)). Here, Defendants do not raise any sovereign immunity concerns about the court’s authority to order specific performance of the 2016 Settlement Agreement against a state agency, and in fact it appears expressly waived by Defendants’ agreement that DLC may seek enforcement of the Agreement. [#78-1 at ¶ 6(c)]. In addition, while the extension of the contract by three months for each month the Department is out of compliance is a remedy, it is not the exclusive relief that Plaintiff may seek. The contract does not limit Plaintiff’s ability to enforce the 2016 Settlement Agreement only as to enforcing the extension of its duration; indeed, the court declines to read such a limitation into the 2016 Settlement Agreement when the Parties have failed to expressly contract for it. But while the court finds that injunctive relief is appropriate to bring Defendants into compliance with the timeframe requirements for inpatient restoration of 28 days for any individual and a 24-day monthly average, it is not clear based on the record before the court that an order
26

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 27 of 29
mandating immediate compliance is feasible or just. The court notes that it is troubled by the fact that the Department has not complied with the timeframes concerning inpatient restoration treatment for almost eighteen months. [#104 at ¶¶34–37]. But the vast majority of the time at issue, i.e., June 2017 to June 2018, is covered by the Department’s invocation of DSC—the propriety of which is vigorously contested and yet resolved. And whether the Department’s invocation of DSC was proper weighs heavily in the court’s consideration of what injunctive relief is necessary and what time Defendants would be provided to come into compliance.3
Therefore, while the court finds Defendants in breach of the 2016 Settlement Agreement for their failure to meet the timeframes for inpatient restoration services after June 2018, it declines to enter an order for injunctive relief at this time. Instead, the court ORDERS that the Parties be prepared to address an expedited schedule on the issue of whether DSC was properly invoked in June 2017 and December 2017 at the forthcoming Status Conference with the understanding that this court is inclined to permit Defendants no more than six months (and perhaps far less) from the date of any Order disposing of the issue to come back into compliance.
B. Attorney’s Fees and Costs Plaintiff also seeks attorney’s fees and costs associated with reopening of this action and the enforcement of the 2016 Settlement Agreement under 42 U.S.C. §§ 1983 and 1988. [#96 at
3 The court nevertheless notes that the 2016 Settlement Agreement contemplates that even in the case of a proper invocation of DSC, Defendants are required to “provide a detailed explanation of the basis for invoking Departmental Special Circumstances, a plan to remedy the Departmental Special Circumstance, and the projected timeframe for resolution.” [#78-1 at ¶ 6(c)]. Defendants’ Notices of Invocation of Department Special Circumstances do not identify a projected timeframe for resolution. [#96-2; #96-3]. And based on the record before the court, it is not clear that the Department has, in any substantive and meaningful way, “provided regular updates agreed upon by the Parties concerning the multi-facted strategies outlined” in the December 2017 Notice. [#963 at 8]. Indeed, the lack of invocation of DSC in June 2018 coupled with the lack of a timeframe for remediation to address the extended timeframes for inpatient restoration suggests that a court-imposed deadline may be necessary to break the inertia of the circumstances.
27

Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 28 of 29
15]. But these Motions do not arise arise under those civil rights statutes, because the claim at issue now is a state contract claim reserved to the court by its own Order retaining jurisdiction. [#52 at ¶ 4; #80 at ¶ 4]. The 2016 Settlement Agreement also has no separate provision that contemplates attorney’s fees and costs in conjunction with a motion to enforce. See generally [#78-1].
Colorado applies the “American Rule,” which requires each party in a lawsuit to bear its own legal expenses and, “thus, in the absence of an express statute, court rule, or contractual provision to the contrary, attorney fees generally are not recoverable by the prevailing party in a contract or tort action.” First Citizens Bank & Tr. Co. v. Stewart Title Guar. Co., 320 P.3d 406, 413 (Colo. App. 2014). A narrow exception to the American Rule allows a trial court to award attorney’s fees when a party’s opponent acts in bad faith, vexatiously, wantonly, or for oppressive reasons. See United states v. McCall, 235 F.3d 1211, 1216 (10th Cir. 2000). Here there has been no finding of bad faith to date to justify the award of attorney’s fees. Accordingly, I find that a ruling on attorney’s fees and costs is premature, and I defer ruling on any request for attorney’s fees and the appropriate amount of any such fees until the court completes its adjudication of the enforcement of the 2016 Settlement Agreement.
CONCLUSION For the reasons set forth herein, the court hereby ORDERS that: (1) Plaintiff’s Motion for Summary Judgment [#96] is GRANTED IN PART and
DENIED IN PART; (2) Defendants’ Motion for Summary Judgment [#97] is DENIED; and (3) A Status Conference is SET for November 30, 2018 at 9:00 a.m. to discuss any
discovery and to set an evidentiary hearing on the issue of whether the DSC was
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Case 1:11-cv-02285-NYW Document 113 Filed 11/09/18 USDC Colorado Page 29 of 29

properly invoked in June 2017 and December 2017, so that the court can rule upon a forthcoming motion to enforce and to determine the appropriate scope and terms of an injunction going forward to address the Department’s performance of inpatient restoration services.

DATED: November 9, 2018

BY THE COURT:

______________________ Nina Y. Wang United States Magistrate Judge

29

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02285-NYW CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO,
Plaintiff, v. REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; and JILL MARSHALL, in her official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo,
Defendants.
ORDER ON MOTION FOR APPOINTMENT OF SPECIAL MASTER Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiff Center for Legal Advocacy d/b/a Disability Law Colorado’s (“DLC” or “Plaintiff”) Motion for Appointment of Special Master (or “Motion”), filed December 6, 2018. See [#117]. The Motion is before the undersigned pursuant to the Order of Reference dated February 21, 2012 [#44], the Order of Reassignment dated November 19, 2015 [#58], 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. The court retained ancillary jurisdiction over this civil action pursuant to Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994). Accordingly, having reviewed the Motion, associated briefing, and applicable case law, the court GRANTS the Motion for Appointment of Special Master.
BACKGROUND The court has discussed the background of this matter in its Memorandum Opinion and Order on the Parties’ Cross-Motions for Summary Judgment, see [#113], and discusses it here only as it pertains to the instant Motion. On November 9, 2018, the court granted in part and denied in part DLC’s Motion for Summary Judgment, denied Defendants Reggie Bicha and Jill Marshall’s

(collectively, “Defendants” or “the Department”) Motion for Summary Judgment, and set a Status Conference for November 30, 2018 to discuss discovery and an evidentiary hearing regarding the Department’s invocation of Department Special Circumstances (“DSC”) in June and December 2017. See generally [#113]. At the November 30, 2018 Status Conference, Plaintiff proposed that the court consider appointing a special master, and this court discussed a discovery schedule1 in contemplation of a five-day evidentiary hearing to commence on March 18, 2019. See [#115].
DLC filed the instant Motion on December 6, 2018, requesting that the court appoint a Special Master to assist the Parties and the court. See [#117 at 2-5]. Plaintiff proposes appointment of “Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie,” who “have tremendous, relevant experience.” [Id. at 7]. DLC further contends that the Department should bear the costs of a Special Master because it “had already agreed in the 2016 Settlement Agreement to pay for Dr. Dvoskin [who was initially selected to act as an independent consult to assist with Defendants’ compliance efforts]” and because this court has determined the Department to be in breach of the 2016 Settlement Agreement. See [id. at 7-8]. Finally, DLC requests that the duration of appointment last “for the duration of the Amended Settlement Agreement” or “[a]t a minimum, . . . until such time that the Department returns to compliance and the Court enters final judgment against Defendants for their breaches of the Amended Settlement Agreement.” [Id. at 8].
Defendants filed a Response on December 13, 2018. See [#118]. Defendants agree that appointment of a Special Master will serve the interests of the Parties and the court. See [id. at 1]. Further, Defendants agree to the appointment of Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie, and agree to bear the costs of such appointment, “provided the
1 The court issued a separate Minute Order outlining the scope of discovery ahead of the evidentiary hearing. See [#116].
2

duties of the Independent Consultant are stayed as proposed in Plaintiff’s Exhibit 8 and Defendants’ Exhibit A, and the duties and duration of the special master are adopted as outlined in Exhibit A.” [Id. at 2]. Defendants also request that the duration of the appointment last until Defendants have “maintained compliance with the Settlement Agreement timeframes concerning inpatient competency restoration services for three months,” with the potential for a longer duration upon DLC’s showing of good cause. See [id. at 2-3].
LEGAL STANDARD Rule 53 of the Federal Rules of Civil Procedure provides the court with the authority to appoint a special master under certain circumstances. See Fed. R. Civ. P. 53(a), (b); accord BartlettCollins Co. v. Surinam Nav. Co., 381 F.2d 546, 550 (10th Cir. 1967) (explaining that “reference to a Master shall be the exception and not the rule”). And “‘a federal district court has the inherent power to supply itself with [a special master] for the administration of justice when deemed by it essential.’” United States v. State of Conn., 931 F. Supp. 974, 984 (D. Conn. 1996) (quoting Ruiz v. Estelle, 679 F.2d 1115, 1161 n.240 (5th Cir. 1982). “The use of masters is ‘to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause,’ and not to displace the court.” La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957) (quoting Ex Parte Peterson, 253 U.S. 300 (1920)). See also WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2601 (1995) (the appointment of a master is for the purpose of assisting the court to obtain facts).
ANALYSIS As mentioned, the Parties agree that appointment of a Special Master in this matter serves their interests as well as the court’s. The Parties further agree to the appointment of Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie, and that Defendants will bear
3

the costs of appointment. Thus, the court agrees that a Special Master is warranted, and therefore GRANTS the Motion.
During the Status Conference held before the court on December 18, 2018, it appeared that despite the difference in language in the Parties’ respective proposals regarding the scope of the Special Master’s duties, compare [#117 at 5-6; #117-8] with [#118-1], the Parties do, in fact, agree that the Special Master will have authority to review the entire competency system as implicated by the Settlement Agreement, i.e., inpatient and outpatient competency evaluations and restorative treatment. See [#78-1 at 2]. The Parties, however, disagree as to the duration of the Special Master’s appointment. Thus, this Order will not and cannot serve as an Order Appointing a Master because Rule 53(b) requires such an Order to contain, inter alia, “the master’s duties, including any investigation or enforcement duties, and any limits on the master’s authority under Rule 53(c).” Fed. R. Civ. P. 53(b)(2)(B). And Rule 53 further limits the court’s ability to issue an Order Appointing a Master to only after the Special Master “files an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. § 455,” which has not yet been completed. Fed. R. Civ. P. 53(b)(3)(A).
Nevertheless, to facilitate the appointment of the Special Master the court ORDERS that no later than December 19, 2018, Drs. Neil Gowensmith and Daniel Murrie shall submit to the court affidavits concerning “whether there is any ground for disqualification under 28 U.S.C. § 455.” In addition, the court has attached a revised summary of the duties of the Special Master reflecting its understanding of the agreed-upon scope by the Parties. To the extent that the Parties object to the scope as reflected by the summary, they will file their respective objections no later than December 19, 2018. The court will then issue a separate, written Order Appointing a Master and determining the length of such appointment.
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CONCLUSION For the reasons set forth herein, the court hereby ORDERS that: (1) Plaintiff’s Motion for Appointment of Special Master [#117] is GRANTED; (2) No later than December 19, 2018, Drs. Neil Gowensmith and Daniel Murrie shall
SUBMIT to the court affidavits concerning “whether there is any ground for disqualification under 28 U.S.C. § 455;” (3) No later than December 19, 2018, the Parties will FILE any objections to the summary of the duties of the Special Master as attached as Ex. 1 to this Order; and (4) A separate, written Order pursuant to Rule 53 of the Federal Rules of Civil Procedure will follow.

DATED: December 18, 2018

BY THE COURT:

______________________ Nina Y. Wang United States Magistrate Judge

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02285-NYW CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO,
Plaintiff, v. REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; and JILL MARSHALL, in her official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo,
Defendants.
ORDER APPOINTING SPECIAL MASTER Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiff Center for Legal Advocacy d/b/a Disability Law Colorado’s (“DLC” or “Plaintiff”) Motion for Appointment of Special Master (or “Motion”) [#117] and the Order on Motion for Appointment of Special Master [#123]. On December 18, 2018, the undersigned granted the Plaintiff’s Motion for Appointment of Special Master and advised the Parties that a separate, written Order appointing the Special Master would follow. See [#123 at 4-5]. Having reviewed the affidavits of Drs. Neil Gowensmith and Daniel Murrie and finding no grounds for disqualification under 28 U.S.C. § 455, the Parties’ submissions regarding the duties of the Special Master, and the entire docket, and pursuant to the court’s authority under Rule 53 of the Federal Rules of Civil Procedure, the court hereby APPOINTS Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie as Special Master in this matter as set forth below.

FINDINGS OF FACT AND CONCLUSION OF LAW REGARDING THE NEED FOR A SPECIAL MASTER
The court hereby incorporates its factual findings and conclusions of law as reflected in its Memorandum Opinion and Order dated November 9, 2018. [#113]. In particular, the court finds as follows:
1. Since at least 2007, the Colorado Department of Human Services (“the Department”) and the Colorado Mental Health Institute at Pueblo (“CMHIP”) have been subject to contempt citations issued in the Denver District Court relating to the extended period of wait times for pretrial detainees to access competency evaluations.
2. Those 2007 contempt citations were resolved through litigation involving a special counsel appointed by Denver District Court Judge Egelhoff, and resulted in a settlement agreement that required CMHIP to offer admission to pretrial detainees within 28 days of a court order requiring in-patient competency evaluations or restorative treatment, and to maintain a quarterly average of 24 days for both categories.
3. Sometime after the expiration of this first settlement agreement, the Department and CMHIP did not transport pretrial detainees to CMHIP for competency evaluation or restoration treatment within 28 days after they were ready for admission, prompting this action.
4. Plaintiff alleged that Defendants failed to timely admit pretrial detainees in jails across Colorado into CMHIP, the State’s only forensic mental health hospital charged with providing court-ordered evaluations and accepting custody of pretrial detainees for restorative treatment, for competency evaluations, and restorative treatment for those determined to be incompetent to stand trial. [#1]. The complaint alleged this failure created unconstitutional delays
2

to provide competency evaluations and treatment for up to 80 pretrial detainees for as long as six months. [Id.].
5. The Parties settled this action first in 2012, with an agreement (“2012 Agreement”) that required the Department to: 1) complete outpatient (in-jail) competency evaluations; 2) offer admission for inpatient competency evaluations; and 3) offer admission for inpatient restoration services in a certain timeframe. [#51-1; #105-15]. Under the 2012 Agreement, the Department was required to complete all out-patient evaluations of a pretrial detainee no later than 30 days after CMHIP’s receipt of a court order directing the evaluation and receipt of collateral materials. [#51-1 at ¶ 2(b)]. The Department was also required to admit pretrial detainees to CMHIP no later than 28 days after such detainee is ready for admission and maintain a monthly average of 24 days or less for admissions for restorative treatment and in-patient competency evaluations. [Id. at ¶ 2(a)].
6. The 2012 Agreement included a provision called Special Circumstances, which “recognizes that to some extent the Department’s ability to perform its statutory obligations and its obligations under [the 2012 Agreement] is based on factors beyond the Department’s control.”
7. In August 2015, the Department invoked DSC. 8. In October 2015, the Plaintiff moved to reopen the matter for enforcement of the 2012 agreement, in part because it disputed the invocation of DSC. [#53]. 9. The Parties were able to resolve this 2015 dispute through an Amended and Restated Settlement Agreement (“Settlement Agreement” or “2016 Agreement”) [#78-1]. The 2016 Agreement was effective as of July 28, 2016. [Id. at ¶ 9, 22-23]. 10. The term of the 2016 Agreement extended until July 31, 2021, unless modified by other provisions arising from the Department’s adherence or lack of adherence to the timeframes
3

set forth in the 2016 Agreement. [#78-1 at ¶ 4(a)]. The Parties agreed that the 2016 Agreement would not be modified to terminate prior to January 1, 2019 – approximately 29 months after its effective date.
11. This Court retained jurisdiction to enforce the Settlement Agreement. [#78 at ¶¶ 3, 4; #105-16]. Under the 2016 Settlement Agreement, the Department is required to offer admission to pretrial detainees to the hospital for restorative treatment or inpatient competency evaluations no later than 28 days after the pretrial detainee is ready for admission. [#105-16 at ¶ 2(a)]. The Department also must maintain a monthly average of 24 days or less for both types of offers of admission. See [id.].
12. The 2016 Agreement includes a provision called Special Circumstances, which recognizes that “to some extent the Department’s ability to perform its statutory obligations and its obligations under [the Settlement Agreement] are based on factors beyond its control.”
13. In June and December 2017, the Department invoked DSC. [#105-2; #105-3]. The Parties dispute whether these invocations of DSC are proper.
14. In June 2018, the Department did not invoke DSC. 15. The Department has not complied with the Settlement Agreement timeframes concerning inpatient restoration treatment since June 2017 and remains out of compliance. 16. The Department has complied with the Settlement Agreement timeframes concerning outpatient competency evaluations since July 2015. 17. The Department has complied with the Settlement Agreement timeframes concerning inpatient competency evaluations since May 2018. 18. Chart 1 details the timelines since June 2017 for restorative treatment at CMHIP or a second facility in Arapahoe County, known as RISE, as calculated by the Department.
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Chart 1

Month
June 2017 July 2017 August 2017 September 2017 October 2017 November 2017 December 2017 January 2018 February 2018 March 2018 April 2018 May 2018 June 2018 July 2018 August 2018

Number of Pretrial
Detainees on Report A
Waiting 28+ Days 3 33 73 90 114 133 147 165 175 203 195 200 189 175 170

Average Wait Time
23.5 27.2 39.5 46.7 59.4 67.2 66.4 69.8 72.6 93.6 82.4 91.7 94.6 81.7 81.1

Longest Wait Time
29 45 56 68 88 87 129 129 114 133 136 144 144 149 149

[#105-9]. In each month from July 2017 through present, Defendants have failed to maintain a

24-day monthly average for inpatient restorative treatment.

19. This court found Defendants in breach of the 2016 Agreement as of June 2018 when

it did not invoke DSC but continued to fail to comply with the timeframe requirements for inpatient

restoration services. As of August 2018, the average wait time for inpatient restoration services

was almost four times the amount of time contemplated by the 2016 Agreement.

20. On December 17, 2018, pursuant to court order, Defendants submitted a

“Comprehensive Plan for Compliance,” [#122; #122-1; #122-2; #122-3] that was then subject to

errata filed on December 19, 2018. [#128]. According to the Comprehensive Plan for Compliance,

as of December 17, 2018, 69 pretrial detainees are waiting more than 28 days for inpatient

restoration services. [#128 at 2].

5

21. Defendants have represented that they believe in good faith that the Department
can resume compliance with the 2016 Agreement timeframes for inpatient competency restoration
services in May 2019. [#122-1 at 30; #128, #128-1].
22. Defendants further represent that a new unit of CMHIP with an additional 24 beds
will come online in August 2020, and needs no further funding. [#122-1 at 31].
23. Defendants also represent that they are attempting to increase further bed capacity,
but that those proposals require additional funding that has not been secured from the Colorado
General Assembly.
APPOINTMENT
A. Special Master Duties:
1) Review the Department’s Plan [#122-1; #128] to increase timeliness of performance of competency services, including inpatient and outpatient competency evaluations and restorative treatment (“competency services”).
2) Recommend a plan for the Department’s consideration that proposes methods for addressing short- and long- term compliance with the timeframes for competency services that may ultimately be adopted in whole or in part as part of the court’s injunctive relief to address the ongoing breach of the Amended and Restated Settlement Agreement (“Settlement Agreement”).1
3) Develop a system of data collection, review, and analysis of Departmental data and continued monitoring related to competency services, to include monthly reporting by the Department to the Special Master, and monthly reporting by the Special Master analyzing such data and making recommendations to the Court based on such data.
1 Defendants request that this duty and the one set forth in Paragraph 8 be modified by “provided that the interpretation of such duties does not violate the separation of powers doctrine.” As the court noted in its prior Memorandum Opinion and Order, the very terms of the Amended Settlement Agreement and the Defendants’ breach of such agreement has necessarily altered the application of the doctrine. [#113 at 22 n.2]. Accordingly, while the court remains mindful of its authority and basis for subject matter jurisdiction, Kort v. Hufnagel, 729 P. 2d 270 (Colo. 1986) (en banc), the court clearly retains jurisdiction to enforce the Amended Settlement Agreement and provide relief for the breach thereunder. In addition, the Special Master’s duties are limited to a recommendation for a plan for the Department’s consideration that may ultimately be adopted as part of the court’s injunctive relief, and therefore the duties of the Special Master do not implicate the separation of powers doctrine.
6

4) Identify actual areas within the statewide system which have caused, are causing, or may cause non-compliance with the timeframe requirements of the Settlement Agreement concerning competency services.
5) Make recommendations to the Department for improved performance in the timely delivery of competency services.
6) Assist the Department in designing and implementing a plan to address compliance with the Settlement Agreement timeframes concerning inpatient competency restoration treatment, support the Department’s implementation of its plan, and monitor the Department’s compliance with such Settlement Agreement during the duration of the Appointment.
7) Survey the Department’s efforts to attain compliance with the Settlement Agreement’s timeframe requirements concerning competency services and report to the Court and parties on the progress towards reaching compliance on those timeframes on a monthly basis, including documenting which efforts require action or approval by third-parties.
8) Assist the court in fashioning and evaluating compliance with any injunctive relief ordered by the court.
9) The Department shall report monthly to the Special Master, the Court, and the Plaintiff on the status of the waitlist, the progress toward reaching the goal, and what impediments, if any, exist.
10) Make other recommendations to the Court and the parties on how to improve delivery of competency services for the purpose of effectuating compliance with the Settlement Agreement timelines concerning competency restoration services, including how to audit the State’s performance.
11) Submit reports to the Court and parties, as defined in the court’s Rule 53 Order
B. Duties and Reporting:
In order for the Special Master to make such recommendations to the Court and the Department as specified above, the Department shall provide information the Special Master seeks for the purpose of carrying out his or her specific duties and obligations identified in this document.
As part of his or her duties, the Special Master shall provide the Court and the Parties with status reports every other month for the first six months (starting thirty days after receiving the Department’s report identified in number 3 above), and then quarterly thereafter. Such reports shall address the Department’s compliance with the timeframe requirements of the Settlement Agreement concerning competency services, and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department’s compliance with the Settlement Agreement timeframes concerning competency services. The Special Master’s report shall include, but not be limited to, reporting on
7

the number of Pretrial Detainees ordered to receive competency services and admission and/or evaluation timeframes for those Pretrial Detainees, an assessment of the Department’s operations, systems, and admissions practices and policies relating to the Department’s ability to comply with the Settlement Agreement timeframes concerning provision of competency services, and guidance to the Department for improvement and increasing efficiencies in these areas.
The Special Master shall have reasonable access to all records that the Department determines are reasonably related to the Settlement Agreement timeframes concerning competency services or the Department’s ability to meet and comply with the proposed Plan [#122-1]. The Special Master shall be able to request the Department organize the data in a format which is necessary for the Special Master’s efficient review. As a component of his or her reporting, the Special Master may select a sample of Pretrial Detainees from the Department’s monthly reporting and audit the timeliness by the Department of that sample’s Offered Admission dates for competency evaluations or restoration treatment. The Special Master shall include its findings of any such audit in his or her reports, and those reports shall be provided to the parties and filed with the Court, with any private or confidential information redacted from the public filing.
The Special Master shall have the right to confer and subcontract with additional experts (but not allow double billing), as he or she determines in the exercise of his or her professional judgment would be helpful to the Court or the Parties, including for preparation of additional reports, studies, or research.
C. Visitation and Access:
The Special Master shall have the authority and responsibility to visit and access Colorado facilities, confer with stakeholders in the criminal justice and mental health systems, review documents, staff procedures, patient records, access to budget and resources available and funding streams related to the Department’s duties under the Settlement Agreement and competency evaluations and restorative treatment, generally. Neither the Special Master nor the Parties shall publicly disclose information obtained by the Special Master pursuant to this paragraph, which would otherwise be privileged or confidential, without consent of all Parties and/or order of the court.
D. Compensation:
As a result of the Department’s ongoing breach of the Settlement Agreement since June 2018, and as an interim remedy to the breach, the Special Master’s invoices must be submitted to the Court for payment by the Department.
While the Special Master is appointed, the Independent Consultant’s duties are stayed, alleviating the Department of paying two individuals. The Department shall compensate the Special Master and his or her staff at his or her standard rates. The Department shall reimburse all reasonable expenses of the Special Master and Special Master’s staff consistent with the State’s government rates, procurement guidelines, and Department policy, including for travel and accommodations.
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E. Duration:
The Special Master shall be engaged and paid for by the Department until the Department comes into compliance with the Settlement Agreement timeframes concerning inpatient competency restoration services and maintains such compliance for a continuous period of 18 months. The Parties may file motions with the court to alter the duration of the Special Master’s engagement (either terminate or extend the services of the Special Master), upon good cause shown.
CONCLUSION
Consistent with the directives set forth herein, this Order hereby APPOINTS Groundswell
Services and its team of Drs. Neil Gowensmith and Daniel Murrie as Special Master in this matter.

DATED: December 28, 2018

BY THE COURT:

______________________ Nina Y. Wang United States Magistrate Judge

9

 
 Case 1:11-cv-02285-NYW Document 165 Filed 04/02/19 USDC Colorado Page 1 of 47
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-CV-02285-NYW CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO,
Plaintiff, v. MICHELLE BARNES, in her official capacity as Executive Director of the Colorado Department of Human Services, and JILL MARSHALL, in her official capacity as Chief Executive Officer of the Colorado Mental Health Institute at Pueblo,
Defendants.
CONSENT DECREE

Case 1:11-cv-02285-NYW Document 165 Filed 04/02/19 USDC Colorado Page 2 of 47

TABLE OF CONTENTS

Page

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE CONSENT DECREE. ..................................................................................................... 1
II. PARTIES, PURPOSE, INTENT ..................................................................................... 4 III. JURISDICTION, VENUE, AND STANDING ................................................................. 8 IV. PARTIES BOUND AND INTERPRETATION OF THIS AGREEMENT .................... 8 V. DEFINITIONS ................................................................................................................ 9 VI. TIMEFRAMES................................................................................................................ 14
32. Recent Compliance with Timeframes ............................................................... 14 33. Timeframes ........................................................................................................ 14
(a) Admission of Pretrial Detainees for Inpatient Competency Evaluations and Restoration Treatment ................................................. 14 (b) Performance of Jail Competency Evaluations ....................................... 14 34. Interim Jail Mental Health Treatment ................................................................ 15 35. Release of Pretrial Detainees for Community-Based Restoration Treatment ........................................................................................................... 15 36. Transportation of Pretrial Detainees .................................................................. 16 37. Daily Fines for Non-Compliance with Timeframes .......................................... 16 38. Notification of Non-Compliance with Timeframes ........................................... 16 VII. ADDITIONAL REQUIRED ACTION FOR SUSTAINABLE LONG-TERM COMPLIANCE ............................................................................................................. 17 39. Civil Bed Freeze ................................................................................................ 17 40. Comprehensive and Cohesive Plan ................................................................... 18 41. Increase Community Restoration Services ........................................................ 18 42. Additional Department Hires ............................................................................. 19 (a) Forensic Support Team .......................................................................... 20 (b) Data Management Team ........................................................................ 21 43. Develop and Implement a Triage System ..........................................................21 44. Legislative Actions .............................................................................................21

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Case 1:11-cv-02285-NYW Document 165 Filed 04/02/19 USDC Colorado Page 3 of 47
TABLE OF CONTENTS (continued) Page
VIII. SPECIAL MASTER AND REPORTING OBLIGATIONS ..........................................22 45. Selection of a Special Master .............................................................................22 46. Special Master Duties and Reporting .................................................................22 (a) Special Master Duties .............................................................................22 (b) Special Master Reporting .......................................................................24 47. Visitation and Access .........................................................................................25 48. Compensation .....................................................................................................26 49. Resignation or Replacement of Special Master .................................................26 50. Duration of Engagement ....................................................................................26
IX. REPORTING AND MEETING OBLIGATIONS. ........................................................26 51. Compliance Plan Reports ...................................................................................26 52. Monthly Data Reports ........................................................................................27 53. Monthly Cumulative Information Report ...........................................................28 54. Timing of Reports ..............................................................................................29 55. Distribution of Monthly Reports ........................................................................29 56. Meetings .............................................................................................................29
X. SPECIAL CIRCUMSTANCES ......................................................................................30 57. Special Circumstances ........................................................................................30 (a) Special Circumstances Defined ..............................................................30 (b) Effect of Invocation of Individual Special Circumstances .....................31 (c) Effect of Invocation of Departmental Special Circumstances ...............32 (d) Effect on Reporting Requirements .........................................................33
XI. DURATION ...................................................................................................................33 58. Duration and Certification ..................................................................................33
XII. DISPUTE RESOLUTION AND REMEDIES ...............................................................34 59. Dispute Resolution .............................................................................................34 (a) Dispute Resolution Generally ................................................................34 (b) Dispute Resolution for Non-Contempt Proceedings ..............................34
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TABLE OF CONTENTS (continued) Page
(c) Dispute Resolution for Contempt Proceedings ......................................35 60. Remedies for Non-Contempt Violations of the Consent Decree ........................35
(a) Timeframe Violations .............................................................................35 (b) Material Violations .................................................................................35 (c) Liquidated Damages ...............................................................................35 (d) Non-Timeframe Violations Adjudicated by Contempt ..........................36 XIII. MISCELLANEOUS PROVISIONS ..............................................................................36 61. Effective Date of the Consent Decree ................................................................36 62. Remedies by Pretrial Detainees Not Precluded ..................................................36 63. Contempt Actions Against Other Agencies, Non-Complying Sheriff’s Offices, District Attorney’s Offices, and Defense Counsel Not Precluded .......36 64. Complete Consent Decree; Modification; and Waiver ......................................37 65. Attorney’s Fees and Costs ..................................................................................37 66. Written Notice ....................................................................................................38 XIV. RESERVATION OF JURISDICTION AND ENFORCEMENT ..................................39 XV. FINAL JUDGMENT ......................................................................................................40 TABLE 1: TIMEFRAMES AND FINES FOR COMPETENCY SERVICES. ........................41
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THIS MATTER comes before the Court pursuant to the Parties’ Joint Motion for Approval and Entry of Consent Decree.
THE PARTIES, by and through their respective counsel, have jointly stipulated to all facts set forth herein and agreed to entry of a consent decree to resolve this Lawsuit under the terms and conditions set forth herein.
THE COURT, having reviewed the Parties’ Joint Motion for Approval and Entry of Consent Decree and being fully advised in the matters contained therein, hereby FINDS that good cause exists for approval and entry of the Consent Decree as follows: I. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE
CONSENT DECREE 1. On August 31, 2011, Plaintiff, the Center for Legal Advocacy, d/b/a Disability Law Colorado (“DLC”) commenced this action (the “Lawsuit”) against Defendants Reggie Bicha, in his official capacity as Executive Director of the Colorado Department of Human Services, and Teresa Bernal, in her official capacity as Interim Superintendent of the Colorado Mental Health Institute at Pueblo (“CMHIP”), challenging Defendants’ alleged failure to comply with the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which requires Defendants to timely provide competency evaluations and restoration treatment to pretrial detainees in Colorado jails. 2. The Colorado Department of Human Services (the “Department”) has a statutory obligation under C.R.S. §§ 16-8.5-101 et seq. (2018) to provide competency evaluations for persons charged with criminal offenses when the issue of competency is raised, and to provide restoration treatment for persons found incompetent to proceed.
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3. The Parties settled the Lawsuit pursuant to a Settlement Agreement executed on April 6, 2012 (the “2012 Settlement Agreement”), which was incorporated into the Order of Dismissal entered by the District Court in the Lawsuit. Dkt. 52.
4. The 2012 Settlement Agreement included a provision called Special Circumstances, which recognized that to some extent the Department’s ability to perform its statutory obligations and its obligations under the 2012 Settlement Agreement is based on factors beyond the Department’s control. Dkt. 51-1.
5. The Department invoked Departmental Special Circumstances on August 3, 2015, citing: (1) the dramatic increase in court referrals for evaluations and treatment; and (2) unprecedented staffing shortages at CMHIP. DLC disputed the Department’s invocation and filed a motion to reopen the litigation for enforcement of the 2012 Settlement Agreement, which this Court granted. Dkt. 62. After the Parties conducted settlement negotiations, they entered into an Amended and Restated Settlement Agreement which was filed with the Court on July 28, 2016 (the “2016 Settlement Agreement”). Dkt. 78.
6. Another dispute has arisen between the Parties. The Department invoked Departmental Special Circumstances for the second time on June 22, 2017, citing in support an unanticipated spike in court-ordered referrals for inpatient competency evaluations and restorations. On December 22, 2017, the day the Department’s June 22, 2017 invocation was set to expire, the Department invoked Departmental Special Circumstances for a third time, citing a sustained increase in the number of court-ordered referrals for inpatient competency evaluations and restorations. DLC disputed the Department’s second and third invocations as improper under the terms of the 2016 Settlement Agreement. Defendants’ present inability to comply with the timeframes required by the 2016 Settlement Agreement has created a lengthy waitlist of pretrial
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detainees, some of whom have been forced to wait in jail for more than 150 days for a competency evaluation or restoration treatment.
7. DLC moved to reopen the action for enforcement of the 2016 Settlement Agreement on June 13, 2018 (Dkt. 82), and this Court entered an order reopening that matter on June 14, 2018. Dkt. 83.
8. The parties filed cross-motions for summary judgment (Dkts. 96 and 97) and this Court held a September 28, 2018 hearing on them. This Court issued an order on November 9, 2018 granting in part and denying in part DLC’s motion for summary judgment and denying Defendants’ motion for summary judgment. Dkt. 113. This Court held that: (1) the 2016 Settlement Agreement permits Defendants to invoke Departmental Special Circumstances consecutively; and (2) the Defendants have been in breach of the 2016 Settlement Agreement’s timeframes for inpatient restorations since June 2018. Id. The Court found that in each month from July 2017 through the present, Defendants have failed to maintain a 24-day monthly average for inpatient restoration treatment. The Court reserved ruling on whether Defendants breached the 2016 Settlement Agreement by their invocations of Departmental Special Circumstances in June 2017 and December 2017 and whether the Defendants acted in bad faith.
9. The Court set this matter for a five-day evidentiary hearing to commence on March 18, 2019 on whether Defendants properly invoked Departmental Special Circumstances in June 2017 and December 2017, so the Court can rule upon a forthcoming motion by DLC to enforce and to determine the appropriate scope and terms of an injunction going forward to address the Department’s performance of inpatient restoration services. Dkt. 113.
10. After setting the case for hearing and commencing discovery, this Court granted DLC’s motion for appointment of a Special Master. Dkts. 117 & 123. On December 28, 2018, the
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Court appointed Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie as Special Master in this matter. Dkt. 130. Their duties, duration, and scope are outlined in the Order Appointing Special Master. Dkt. 130.
11. On January 28, 2019, pursuant to the Court’s order, the Special Master submitted a report with a Review of the Department’s Plan for Compliance and provided recommendations regarding the Plan. Dkt. 146.
12. On January 30, 2019, the Parties notified the Court that they agreed to mediate a resolution. The Court stayed discovery production, and the March 18, 2019 hearing was reset to commence on June 3, 2019, in the event mediation was unsuccessful. The Court set a March 15, 2019 deadline to produce a signed Consent Decree or to file a joint status report if the Parties cannot reach an agreement.
13. This Consent Decree resolves the Lawsuit. This Consent Decree is being entered in order to ensure that pretrial detainees obtain timely competency evaluation and restoration services, while both avoiding harming other persons with mental or developmental disabilities in the Department’s care and avoiding protracted, costly and uncertain litigation. The terms of that resolution are embodied in this Consent Decree.
NOW, THEREFORE, with the consent of the Parties to this Decree, it is hereby ORDERED, ADJUDGED, AND DECREED that: II. PARTIES, PURPOSE, INTENT
14. DLC is an independent nonprofit corporation headquartered in Denver, Colorado. DLC was designated in 1977 by Governor Richard Lamm as Colorado’s protection and advocacy system (“P&A System”) to protect and advocate for the rights of persons with mental illness and developmental disabilities under the Developmental Disabilities Assistance and Bill of Rights Act. 42 U.S.C. §§ 15041-45. Since 1986, DLC has received federal grants on an annual basis, and has
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established and administered a P&A System in Colorado for individuals with mental illness pursuant to 42 U.S.C. §§ 10803 and 10805 of the Protection and Advocacy for Individuals with Mental Illness Act (the “PAIMI Act”). Since 1986, DLC has been and is currently the eligible P&A System for individuals with mental illness in Colorado as defined at 42 U.S.C. § 10802(2).
15. DLC has a governing board of directors which is composed of members who broadly represent and who are knowledgeable about the needs of individuals with mental illness. DLC’s board of directors includes members who have received or are receiving mental health services or who have family members who have received or are receiving mental health services.
16. DLC’s constituents include individuals with mental illness, who have been abused, neglected and/or suffered civil rights violations. DLC has established a PAIMI Advisory Council, over sixty percent (60%) of whose members themselves have received or are receiving mental health services or have family who have received or are receiving mental health services. The PAIMI Advisory Council advises the P&A System on the policies and priorities designed to protect and advocate for the rights of individuals with mental illness. The Chair of DLC’s PAIMI Advisory Council, who is also a member of DLC’s board of directors, has a family member who has received and is receiving mental health services.
17. Together, DLC’s board of directors and PAIMI Advisory Council have developed the annual priorities and objectives of the P&A System for individuals with mental illness. DLC’s PAIMI Program Priorities and objectives state that DLC will monitor facilities, including jails, and investigate reports/complaints of abuse, neglect and rights violations, and take action to remedy any abuse, neglect and/or civil rights violations. When the rights of its constituents are violated, DLC is authorized by statute to pursue legal remedies on their behalf, such as through litigation. 42 U.S.C. § 10805(a)(1)(A)(B) & (C). To the extent DLC expends its resources to protect the rights
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of its constituents in county jails waiting for competency evaluations or restoration treatment, its resources are diverted away from assisting other constituents.
18. DLC has established a public opinion survey for constituents and interested persons, such as family members, to comment on DLC’s priorities and objectives and a grievance procedure for clients or prospective clients, which allows its constituents with mental illness and family members of such individuals to assure them that DLC and the PAIMI Program are operating in compliance with the provisions of the PAIMI Act.
19. DLC’s constituents who are detained and charged with crimes are hindered from asserting their own constitutional rights. Obstacles they face include the imminent mootness of individual claims as they are likely to be admitted to CMHIP for restoration treatment during the pendency of any case they might bring. In addition, pretrial detainees who are presumed or determined to be incompetent to proceed are often impaired and unable to direct or participate in litigation on their own behalf.
20. Defendant Michelle Barnes is sued in her official capacity as the Executive Director of the Colorado Department of Human Services. As relevant here, the Department is responsible under Colorado law for the operation of CMHIP and the provision of competency evaluations and restoration treatment. Forensic Services within the Department’s Office of Behavioral Health provides court-ordered competency evaluations.
21. Defendant Jill Marshall is sued in her official capacity as the Chief Executive Officer of CMHIP. As relevant here, CMHIP currently is the state’s principal forensic mental health hospital that accepts custody of pretrial detainees for competency evaluations and restoration treatment.
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22. This Consent Decree will require the Department to ensure that thousands of future pretrial detainees will not be forced to wait in jail for months before receiving their court-ordered competency evaluations and restoration treatment in violation of their constitutional rights; at the same time, the Department will avoid negatively impacting other persons with mental health or developmental disabilities or juveniles in their care. In doing so, the Department will be required to implement concrete reforms that will allow for long-term compliance with this Consent Decree. The Parties believe that with the guidance of the Court and the Special Master (to be discussed infra) the Department will be able to:
(a) Develop a comprehensive, cohesive approach to planning to maintain compliance with this Consent Decree.
(b) Adhere to the admission timeframes for pretrial detainees, and at the same time avoid causing harm to and/or displacement to other people with mental or developmental disabilities in their care.
(c) Maximize the use of competency services in the community, by funding, developing, recruiting, and supporting a variety of community services. Dkt. 146.
(d) Create a team that will develop a centralized, data-driven system that captures, analyzes, and disseminates data in a reliable and meaningful manner to inform decisions and planning. Id.
(e) Develop and implement a triage system that considers clinical needs to assign individualized services. Id.
(f) Implement state-wide uniform standards for competency evaluators and evaluations and conduct rigorous training for forensic evaluators and restoration providers to ensure evaluations are of high quality. Id.
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(g) Prepare budget requests and propose and support legislation which are calculated to meet the terms of the Consent Decree and take all necessary next steps and exert good faith efforts to obtain adequate funding from the Colorado General Assembly. III. JURISDICTION, VENUE, AND STANDING 23. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) because it arises under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. This Court also has jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. 24. Venue is appropriate in this Court under 28 U.S.C. § 1391(b)(2) because the events giving rise to this Complaint occurred in this District. 25. DLC has standing in the Lawsuit to assert due process claims on behalf of its constituents, persons within the State of Colorado with a mental illness and/or intellectual disability who have been charged with a criminal offense, ordered to receive a competency evaluation or restoration treatment, and who await the provision of that treatment in Colorado jails. IV. PARTIES BOUND AND INTERPRETATION OF THIS AGREEMENT 26. In entering this Consent Decree, Defendants do not admit any violation of law. This Consent Decree shall not be interpreted in any court, administrative, or other proceeding as evidence of Defendants’ liability. 27. The parties agree that the right to timely competency services implicates rights secured and protected by the Fourteenth Amendment of the United States Constitution, Article 1, and 42 U.S.C. §1983. 28. This Consent Decree is legally binding and judicially enforceable. This Consent Decree shall be applicable to and binding upon the parties, their officers, agents and employees, and their successors and assigns.
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29. Until the Consent Decree is terminated, the parties hereby consent to the Court’s continuing supervision in this matter, until further order of the Court, and to its authority to interpret the provisions of this Agreement, to review and adopt plans necessary to implementation of its terms, to modify its terms as may be needed to effect its purposes, and to take appropriate actions within its equitable powers to ensure its enforcement and the fulfillment of its terms and purposes.
30. The terms of this Consent Decree shall be interpreted consistent with its overall purposes and principles. V. DEFINITIONS
31. The following terms shall have the meanings set forth below (the definitions to be applicable to both the singular and the plural forms of each term defined if both forms of such term are used in this Consent Decree):
(a) “Arrest Date” means the day, month, and year a Pretrial Detainee was arrested for the case in which competency has been raised.
(b) “Collateral Materials” means the relevant police incident reports and the charging documents, either the criminal information or indictment.
(c) “Community-Based Competency Evaluation” means a Competency Evaluation of a Community-Based Service Recipient that is ordered to be performed out of custody and in conjunction with a community-based mental health center or community organization.
(d) “Community-Based Restoration Treatment” means Restoration Treatment of a Community-Based Service Recipient that is ordered to be performed out of custody and in conjunction with a community-based mental health center or community organization.
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(e) “Community-Based Services Recipient” means a defendant who has been ordered to receive a Community-Based Competency Evaluation or Restoration Treatment.
(f) “Competency Evaluation” means a court-ordered evaluation for competency to proceed, administered by the Department, and the accompanying report prepared by the Department and more fully described in C.R.S. §§ 16-8.5-103, 105.
(g) “Competency Services” means Competency Evaluations and Restoration Treatment.
(h) “Competency Services Recipient” means a Pretrial Detainee or a Community-Based Services Recipient.
(i) “Competent to Proceed” means that a court has ordered that a defendant in a criminal case does not have a mental disability or developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense or prevents the defendant from having a rational and factual understanding of the criminal proceedings. C.R.S. § 16-8.5-101(4).
(j) “County Jail” means a jail or detention facility which houses a Pretrial Detainee. County Jail does not include a behavioral health unit located within a county jail (e.g., RISE).
(k) “Court Order” means a written order, issued by a court, and signed by a judge that directs the transfer of custody of a Pretrial Detainee to the Department.
(l) “Court Liaison” means a person who is hired by the Colorado Judicial Branch’s State Court Administrator’s Office as a dedicated behavioral health court liaison in each state judicial district, pursuant to C.R.S. §§ 16-11.9-203, 204, who facilitates
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communication and collaboration between judicial and behavioral health systems, and keeps judges, district attorneys, and defense attorneys informed about the availability of community-based behavioral health services.
(m) “Days Waiting” means the number of days elapsed between the Ready for Admission date and the Offered Admission date.
(n) “Department” means the Colorado Department of Human Services. Any reference to the Department includes the Office of Behavioral Health and the Hospital, which are divisions of the Department and do not have independent authority or obligations under Title 16, Article 8.5, C.R.S.
(o) “Department Plan” mean the Department’s comprehensive description of its efforts to achieve long-term compliance with this Consent Decree by providing timely competency services without undermining the broader system of mental health care.
(p) “Evaluator Signed Date” means the date the Jail Competency Evaluation is signed by the evaluator after having been completed.
(q) “Hold and Wait Evaluation” means an in-custody evaluation of a Pretrial Detainee that is conducted in another facility, after transport by the sheriff of the commitment county to the alternative facility. For example, a sheriff in a county in which there are no evaluation services may transport the Pretrial Detainee to the nearest county where these services are available, wait for the evaluator to complete the interview and examination, and return the Pretrial Detainee to the jail in the county of commitment.
(r) “Hospital” means the Colorado Mental Health Institute at Fort Logan (CMHIFL) or Colorado Mental Health Institute at Pueblo (CMHIP).
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(s) “Inpatient Competency Evaluation” means a Competency Evaluation of a Pretrial Detainee that is ordered to be performed at the Hospital or in a separate locked facility that is established for the purpose of providing Inpatient Competency Evaluations and Restoration Treatment. This includes Competency Evaluations conducted at the RISE program or a similar program located on a dedicated behavioral health unit at a county jail.
(t) “Inpatient Restoration Treatment” means the Restoration Treatment of a Pretrial Detainee that is performed at the Hospital or at a separate locked facility that provides comprehensive Restoration Treatment to the Pretrial Detainee. This includes Restoration Treatment that is provided at the RISE program or a similar program located on a dedicated behavioral health unit at a county jail.
(u) “Interim Jail Mental Health Treatment” means mental health treatment of a Pretrial Detainee that is performed in the County Jail where the Pretrial Detainee is held while the Pretrial Detainee awaits Community-Based or Inpatient Restoration Treatment per Court Order consistent with the timeframes in the Consent Decree.
(v) “Jail Competency Evaluation” means a Competency Evaluation performed in the County Jail where the Pretrial Detainee is being held.
(w) “Medically Cleared” means that a Pretrial Detainee is, in the opinion of the Department’s medical staff, appropriate for Inpatient Competency Evaluation or Inpatient Restoration Treatment.
(x) “Offered Admission Date” means the date the Department offers the Pretrial Detainee admission for Inpatient Restoration Treatment or Inpatient Competency Evaluation. Before the Department offers admission to a Pretrial Detainee, the following three criteria must be satisfied: (1) the Department has an open bed for the Pretrial Detainee
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at the location for the Inpatient Evaluation or Inpatient Restoration Treatment; (2) the location for Inpatient Evaluation or Inpatient Restoration Treatment is ready to receive the Pretrial Detainee for admission; and (3) the Department notifies the County Jail of the same.
(y) “Pretrial Detainee” means a person who is being held in the custody of a County Jail and whom a court has ordered to undergo Competency Services. Persons serving a sentence in the Department of Corrections and juveniles are excluded from this Consent Decree.
(z) “Ready for Admission Date” means the date on which the Department has received the Court Order for Competency Services and, in the case of Competency Evaluations or Restoration Treatment when the Competency Evaluation was not conducted by the Department, the Department has also received the Collateral Materials.
(aa) “Restoration Treatment” means mental health care and treatment provided for the purpose of restoring a Competency Services Recipient.
(bb) “Settlement Payment” has the meaning set forth in Part XIII. (cc) “Special Master” means Court-appointed Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie (Dkt. 130), or any successor appointee whose duties and authority are set forth in Dkt. 130 and in this Consent Decree. (dd) “Tier 1” means a Pretrial Detainee who has been ordered to receive Inpatient Restoration Treatment and whom a competency evaluator has determined either: (1) appears to have a mental health disorder and, as a result of such mental health disorder, appears to be a danger to others or to himself or herself, or appears to be gravely disabled
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or (2) has a mental health disorder, and as a result of either (1) or (2), delaying hospitalization beyond seven days would cause harm to the Pretrial Detainee or others.
(ee) “Tier 2” means a Pretrial Detainee who has been ordered to receive Inpatient Restoration Treatment and who does not meet Tier 1 criteria. VI. TIMEFRAMES 32. Recent Compliance with Timeframes. The Department has been out of compliance with the 2016 Settlement Agreement Timeframes to provide timely restoration services since June 2017. The Department has complied with the required timeframes to provide competency evaluations since May 2018 but was out of compliance for those timeframes from June 2017 to April 2018. Dkt. 113 ¶ 39 & Chart 2. 33. Timeframes
(a) Admission of Pretrial Detainees for Inpatient Competency Evaluations and Restoration Treatment. The Department shall Offer Admission to Pretrial Detainees to the Hospital for Inpatient Restoration Treatment or Inpatient Competency Evaluations pursuant to the attached table (Table 1). Compliance with this measure shall be calculated based on the number of Days Waiting for each Pretrial Detainee.
(b) Performance of Jail Competency Evaluations. The Department shall complete all Jail Competency Evaluations of a Pretrial Detainee pursuant to the attached table (Table 1), after the Department’s receipt of a Court Order directing the evaluation and receipt of Collateral Materials. This timeframe requirement shall apply to the following counties: Adams, Alamosa, Arapahoe, Boulder, Broomfield, Crowley, Custer, Denver, Douglas, El Paso, Elbert, Fremont, Huerfano, Jefferson, Larimer, Mesa, Otero, Pueblo, Teller, and Weld. Counties not specifically identified are counties that use the “Hold and Wait” court ordered process. Counties utilizing the Hold and Wait Evaluation process will
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be offered a meeting date within 30 days of the Department’s receipt of the Court Order and Collateral Materials, and the evaluation will be completed within 30 days of the meeting. Beginning January 1, 2020, counties utilizing the Hold and Wait Evaluation process will be offered a meeting date within 30 days of the Department’s receipt of the Court Order and Collateral Materials, and the evaluation will be completed within 14 days of the meeting. 34. Interim Jail Mental Health Treatment. If the court does not release the Pretrial Detainee to Community-Based Restoration Treatment and the Pretrial Detainee is awaiting receipt of Inpatient Restoration Treatment, the Department shall work with the County Jails to develop a program to assist in the provision of coordinated services for individuals in accordance with C.R.S. §§ 27-60-105 et seq. to screen, treat, assess, and monitor for triage purposes Pretrial Detainees in the least restrictive setting possible. This paragraph does not toll or otherwise modify the Department’s obligation to Offer Admission to the Pretrial Detainees for Inpatient Restoration Treatment. Interim Jail Mental Health Treatment shall not replace or be used as a substitute for Inpatient Restoration Treatment but does not preclude the Department from providing Restoration Treatment. A member of the Forensic Support Team shall report to the Court Liaison every 10 days concerning the clinical status and progress towards competency of the Pretrial Detainee. 35. Release of Pretrial Detainees for Community-Based Restoration Treatment. If the court releases the Pretrial Detainee on bond to commence Community-Based Restoration Treatment, the Department shall coordinate with the Court Liaison to develop a discharge plan (in a format approved by the Special Master) within seven days of the order to all parties involved in the Community-Based Services Recipient’s case, and the Court Liaison and community-based provider.
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36. Transportation of Pretrial Detainees. If a Pretrial Detainee is transported to the Hospital for an Inpatient Competency Evaluation and the Department or a medical professional opines that the Pretrial Detainee is incompetent and the provisions of C.R.S. § 27-65-125 have been met, the Department shall not transport the Pretrial Detainee back to his/her originating jail.
37. Daily Fines for Non-Compliance with Timeframes. Beginning on June 1, 2019, through the conclusion of the Consent Decree, the Department agrees to comply with timeframes and fines as set forth in the attached table (Table 1). Such fines shall be capped on a June 1 to May 31 timeframe at $10,000,000, indexed for inflation yearly pursuant to the CPI-U. The liquidated damages for material violations as set forth in Paragraph 60(c) shall not be counted toward this cap.
38. Notification of Non-Compliance with Timeframes. The Department shall notify the Special Master and DLC weekly regarding any non-compliance with timeframes.
(a) Only one notice per Pretrial Detainee shall be provided and should include: (i) The name of the Pretrial Detainee; (ii) The Pretrial Detainee’s location; (iii) The Pretrial Detainee’s charges based on information available to
the Department; (iv) The Pretrial Detainee’s bond amount based on information available
to the Department; (v) Whether a forensic assessment has been made on whether
restoration in the community is appropriate; (vi) Whether the Pretrial Detainee has previously been found
incompetent;
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(vii) What efforts are being made to provide timely Competency Services to the Pretrial Detainee, including communications with the court, Court Liaisons, and community mental health providers; (b) The Department shall accompany its Monthly Data Report (see Paragraph 52) with a separate “Fines Report” which will include the names of the Pretrial Detainees for whom the Department has accrued a fine during the preceding month, the number of days each Pretrial Detainee waited in the County Jails past the timeframes for compliance, and the total fines owed by the Department for the preceding month. (c) The Department shall pay the total fines owed on the date the Fines Report is submitted to the Special Master to be deposited in an interest-bearing account created for the purpose of funding non-Department services for persons with mental illness. The account will be managed by a third-party agreed upon by the parties; the parties will identify and agree to said third-party no later than December 31, 2019. Decisions concerning payments out of the account will be made by a committee consisting of a representative from the Plaintiff, a representative from the Department, and the Special Master. Any disputes regarding the fines or third-party account manager shall be handled through the dispute resolution process identified in Paragraph 59. VII. ADDITIONAL REQUIRED ACTION FOR SUSTAINABLE LONG-TERM COMPLIANCE 39. Civil Bed Freeze. The Department’s 2018 Plan included an effort to freeze civil admissions to its beds to devote Hospital beds to perform Inpatient Restoration Treatment services. On February 7, 2019, the Department agreed to stop this practice. The Department will continue to leave the state’s civil and juvenile beds allocated as of the execution of this Consent Decree for civil and juvenile psychiatric admissions and will not freeze or convert those beds to provide competency services for Pretrial Detainees, unless the Department receives prior agreement from
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the Special Master to use unutilized beds for such purposes. This strategy to facilitate compliance with the Consent Decree shall only be re-implemented in the future upon agreement of the Special Master.
40. Comprehensive and Cohesive Plan. The Special Master’s first recommendation was to revise the Department’s 2018 Plan into a more comprehensive and cohesive plan. Dkt. 146. By or about January 2020, the Department will produce an initial plan resulting from a long-term visioning process with DLC, the Special Master, and stakeholders that will consolidate disparate pieces of the Department’s current plan, along with legislative initiatives, in a cohesive package for courts, administrators, service providers, and legislators to consider. As referenced in the Special Master’s Recommendation Number 7, the 2020 Plan will highlight the methods to prioritize quality amid quantity and time pressures. Dkt. 146 at 42. On an annual basis thereafter, the Department will review and revise the plan as appropriate based upon data provided by the Department.
41. Increase Community Restoration Services. The Parties agree that the Department is responsible for directly providing or contracting with individuals or agencies to provide Competency Services. The Parties agree that County Jails are not the best place for Pretrial Detainees to wait for treatment or receive treatment. The Parties agree that it is in the best interests of some Pretrial Detainees to receive Competency Services in the community, as those Pretrial Detainees will avoid unnecessary institutionalization and will receive treatment in the least restrictive environment. Additionally, the movement of appropriate Pretrial Detainees to the community will lessen the need for more Hospital beds and hiring additional qualified staff by the Department. The Parties agree that increased community restoration is a key component to comply with the timeframes in this Consent Decree as to Competency Services. The Special Master’s
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Recommendation Number 2 is for the Department to “[r]educe emphasis on inpatient beds and increase emphasis on community services.” Dkt. 146 at 17. The Special Master’s Recommendation Number 3 is to “[f]urther prioritize outpatient competence restoration.” Dkt. 146 at 23. As a result, the Department shall:
(a) Implement a coordinated wide-scale outpatient (community-based) competency restoration (OCR) system. This system shall be integrated and submitted with the “Comprehensive and Cohesive Plan” referenced in Paragraph 40 herein. This plan shall be approved by the Special Master.
(b) The Department may utilize private hospital beds to meet the needs of Pretrial Detainees meeting C.R.S. § 27-65-105(a) civil commitment criteria and with prioritization to Pretrial Detainees already residing within the same geographic location. The Department shall create a plan to implement this subsection (b) to be approved by the Special Master.
(c) The Department currently estimates that 10-20% of Pretrial Detainees admitted for inpatient restoration do not need hospital-level care. Dkt. 146 at 29. The Department will make best efforts to reduce inpatient restoration hospitalizations by 10% and increase community restorations by 10% in six-month increments beginning June 1, 2019. The baseline for the preceding sentence will be determined by the Special Master by June 1, 2019, utilizing data provided by the Department. On June 1, 2020, the Special Master will establish a modification of this guideline based upon a survey of the data collection and implementation of the Department’s Plan. 42. Additional Department Hires. By June 1, 2019, the Department shall submit a plan to the Special Master and DLC to hire the following positions by August 1, 2019. The
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Department’s plans and job descriptions shall be guided by the recommendations of the Special Master and the January 28, 2019 Special Report. See Dkt. 146.
(a) Forensic Support Team. The Forensic Support Team will be formalized to follow the Special Master’s Recommendation Number 6. Dkt. 146. The team will include a full-time Supervising Coordinator who is familiar with the Department’s duties and obligations herein, as well as the Department’s and Hospital’s processes and procedures in providing services to Pretrial Detainees, and whose responsibilities will include to: (1) interface with the Colorado Department of Health Care Policy and Financing (HCPF) regarding persons ordered to be evaluated for competency and those determined to be incompetent; (2) confer with the Special Master; (3) focus on budget and cost of inpatient versus outpatient care; (4) work directly with Office of Behavioral Health staff to assist in reducing the waitlist and meeting the timeframes of the Consent Decree; and (5) interface with the Court Liaisons or representatives funded by the judiciary to interface with the courts, Department, and community mental health centers. The Supervising Coordinator will work directly with the Special Master to ensure the Department’s compliance with the terms of this Consent Decree and to assist with other issues involving Pretrial Detainees on an individual or system-wide basis to increase the Department’s performance with providing timely Competency Services. In addition, the Forensic Support Team will include an effective number of coordinators (to be approved by the Special Master) responsible for each judicial district who can provide a centralized structure for stakeholders to immediately access detailed information about programs, clients, and settings and can complement the Court Liaison Program.
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(b) Data Management Team. The Data Management Team will be formalized in a plan on the schedule identified in Paragraph 42 to follow the Special Master’s Recommendation Number 5. Dkt. 146. This team will be dedicated and designed to specifically assist with implementation of the Department’s Plan by collecting specific data on which the Department will base its projections and recommendations, calculate inpatient bed space, assess community restoration capacity, and determine financial estimates. The team will be comprised of at least three full-time employees dedicated to collecting and analyzing data affecting the competency system. The Special Master shall approve of the type of employees that shall be hired to comprise the Data Management Team. 43. Develop and Implement a Triage System. The Special Master’s Recommendation Number 4 recognizes a need for the Department to prioritize a triage approach over traditional waitlist approaches. Dkt. 146 at 27. Therefore, by June 1, 2019, the Department shall develop and implement a triage system to screen each Pretrial Detainee and make recommendations to the committing court as to the most clinically appropriate level of care to restore the Pretrial Detainee to competency. The Department shall seek suggestions from the Special Master on the development of a triage system, and two weeks prior to the implementation of the triage system it shall be approved by the Special Master. The Department shall continue to fine-tune the triage system with the assistance of the Special Master and shall include the progress of the triage system in its annual submission of the Department Plan. 44. Legislative Actions. The Parties agree that they will not propose, sponsor, or support any legislation that would violate the terms of this Consent Decree. The Department will provide DLC and the Special Master with all budget requests and proposed legislation affecting
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this Consent Decree when they are sent to the Colorado General Assembly. The Special Master shall provide its opinion and recommendations on the proposed legislation and how it could impact the short- or long-term compliance with the Consent Decree. A copy of the final budget approved by the Colorado General Assembly shall be sent to the Special Master and DLC immediately following approval of the budget. VIII. SPECIAL MASTER AND REPORTING OBLIGATIONS
45. Selection of a Special Master. The Court has appointed Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie as the Special Master. Dkt. 130.
46. Special Master Duties and Reporting. The Special Master’s duties have been set forth by the Court in its Order appointing the Special Master and are fully incorporated and amended as set forth in this Consent Decree. Dkt. 113 at 6-7 §§ A(1)-(11); id. at 7-8 § B.
(a) Special Master Duties: (i) Review and approve of the Department’s Plans to increase
timeliness of performance of Competency Services. (ii) Recommend plans for the Department’s consideration that propose
methods for addressing short- and long-term compliance with the timeframes for Competency Services that may ultimately be adopted in whole or in part as part of the Court’s injunctive relief to address the ongoing breach of the Amended and Restated Settlement Agreement, and compliance with the Consent Decree.
(iii) Develop a system of data collection, review, and analysis of Departmental data and continued monitoring related to Competency Services, to include reporting by the Department to the Special Master (timing identified below) and reporting by the Special Master (timing identified below) analyzing such data and making recommendations to the Court and the Parties based on such data.
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(iv) Identify actual areas within the statewide system which have caused, are causing, or may cause non-compliance with the timeframe requirements of the Consent Decree concerning delivery of Competency Services.
(v) Make recommendations to the Department for improved performance in the timely delivery of Competency Services.
(vi) Assist and approve the Department’s design of a plan to address compliance with the Consent Decree timeframes concerning delivery of Competency Services, support the Department’s implementation of its plan, and monitor the Department’s compliance with all terms of the Consent Decree during the duration of the Appointment.
(vii) Survey the Department’s efforts to attain compliance with the Consent Decree’s timeframe requirements concerning delivery of Competency Services and report to the Court and Parties (timing identified below) on the progress towards reaching compliance on those timeframes on a monthly basis, including documenting which efforts require action or approval by third parties.
(viii) Assist the Court in fashioning and evaluating compliance with any future sanctions or injunctive relief ordered by the Court.
(ix) Make other recommendations to the Court and the Parties on how to improve delivery of Competency Services for the purpose of effectuating compliance with the Consent Decree timelines concerning delivery of Competency Services, including how to audit the Department’s performance.
(x) Approve of the Department’s planning and implementation of Section VII above.
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(xi) Submit reports to the Court and the Parties, as defined in Dkt. 130, the timing identified below. (b) Special Master Reporting: In order for the Special Master to make such recommendations to the Court and the Department as specified above, the Department shall provide all information the Special Master seeks for the purpose of carrying out its specific duties and obligations or which are reasonably related to this Consent Decree.
(i) As part of the duties, the Special Master shall provide the Court and the Parties with status reports every other month for the first six months, and then quarterly thereafter. The Special Master’s status report was submitted on January 28, 2019. Dkt. 146. The next report shall be submitted to the Court and the Parties on March 28, 2019, and then May 28, 2019, and then quarterly thereafter. Such reports shall address the Department’s compliance with the timeframe requirements of the Consent Decree concerning Competency Services and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department’s compliance with the Consent Decree timeframes concerning Competency Services.
(ii) The Special Master’s report shall include, but is not limited to, reporting on the number of Pretrial Detainees ordered to receive Competency Services, an assessment of the Department’s operations, systems, and admissions practices and policies relating to the Department’s ability to comply with the Consent Decree timeframes, and guidance to the Department for improvement and increasing efficiencies in these areas.
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(iii) The Special Master shall have reasonable access to, and the Department shall provide the Special Master with, all records that the Special Master requests within a reasonable timeframe from the date of such request. The Special Master shall be able to request the Department organize the data in a format which is necessary for the Special Master’s efficient review. As a component of its reporting, the Special Master may select a sample of Pretrial Detainees from the Department’s monthly reporting and audit the timeliness by the Department of that sample’s Offered Admission dates for Competency Services. The Special Master shall include its findings of any such audit in its reports, and those reports shall be provided to the Parties and filed with the Court, with any private or confidential information redacted from the public filing. This Consent Decree meets the By Law exception to HIPAA’s confidentiality mandates for the exchange of health care records and information.
(iv) The Special Master shall have the right to confer and subcontract with additional experts (but not allow double billing), as it determines in the exercise of its professional judgment would be helpful to the Court or the Parties, including for preparation of additional reports, studies, or research.
(v) The Special Master’s report shall include the Department’s responses to the Special Master’s recommendations, at the Special Master’s discretion. 47. Visitation and Access. The Special Master shall have the general authority and responsibility to: visit and access Colorado facilities; confer with stakeholders in the criminal justice and mental health systems; review documents, staff procedures, and records of individuals
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who are subject to this Consent Decree; and access budget and resources available, and funding streams related to, the Department’s duties under the Consent Decree and Competency Services. Neither the Special Master nor the Parties shall publicly disclose information obtained by the Special Master pursuant to this paragraph, which would otherwise be privileged or confidential, without consent of all the Parties and/or order of the Court.
48. Compensation. For the duration of this Consent Decree, the Special Master’s invoices must be submitted to the Court for payment by the Department. The Department shall compensate the Special Master and its staff at the Special Master’s standard rates. The Department shall reimburse all reasonable expenses of the Special Master and its staff consistent with the State’s government rates, procurement guidelines, and Department policy, including for travel and accommodations.
49. Resignation or Replacement of Special Master. In the event the Special Master resigns or otherwise becomes unavailable, the Parties shall attempt to agree on a successor Special Master with relevant experience and shall jointly present the candidate to the Court for appointment. If the Parties are unable to agree, the Parties will submit a joint list of candidates to the Court for selection and appointment by the Court. If either Party has a concern with the Special Master, it may bring a motion before the Court under Federal Rule of Civil Procedure 53.
50. Duration of Engagement. The Special Master shall be engaged and paid for by the Department for the duration of the Consent Decree. IX. REPORTING AND MEETING OBLIGATIONS
51. Compliance Plan Reports. The Department will provide monthly reports to DLC and the Special Master in compliance with the Order for Special Master. Dkt. 113 at A. 9. The first report was produced on February 28, 2019. The Parties agree that the reports shall be due seven days after the first of every month commencing April 1, 2019, or on the next business day if the
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seventh day of the month falls on a weekend or holiday. The Special Master and the Parties will agree on the content and organization of those reports, which will include an update on all the aspects of compliance included in Sections VI and VII, as well as an update on the recommendations of the Special Master and the Department’s efforts and responses to those recommendations.
52. Monthly Data Reports. (a) In an organized format approved by the Special Master, as long as this
Consent Decree remains in force, the Department’s monthly data reports will identify: (i) The Competency Services Recipient for whom a Court Order for
Restoration Treatment, Competency Evaluation, or Collateral Materials has been received by the Department (even if no other data is available during that month) to include:
(1) The name of the referred Competency Services Recipient; (2) The Competency Services Recipient’s CMHIP Patient ID
number, if applicable; (3) The county or counties referring the Competency Services
Recipient; (4) The case number(s) of the criminal case(s) in which the
Court Order was issued; (5) The date of the Competency Services Recipient’s arrest and
bond amount, as shown in the Department’s records; (6) The date of the Court Order; (7) The type and location of Competency Services ordered; (8) The date the Court Order was received by the Hospital; (9) The date that the Department learned that the Court Order
was vacated or converted to another type of evaluation or restoration process;
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(10) The date the Collateral Materials were received by the Department;
(11) The Evaluator Signed Date; (12) The defense attorney’s name if shown in the Department’s
records; (13) The criminal charges filed against the Competency Services
Recipient as shown in the Department’s records; (14) The Ready for Admission date; (15) The Offered Admission date; (16) The Hospital’s Offered Admission deadline for that specific
Pretrial Detainee, based on the Ready for Admission date; (17) The date of admission; (18) The type of Competency Service; (19) The location of the Competency Service; (20) The number of Days Waiting for each Pretrial Detainee; (21) The number of days between the Ready for Admission Date
and the date of the monthly report for each Pretrial Detainee awaiting admission; (ii) A list of Pretrial Detainees for whom the Department has invoked Individual Special Circumstances and its reasons for doing so; and (iii) If there is a wait list or backlog for Competency Services, a list of the Pretrial Detainees waiting the longest to the shortest number of days. (b) The content and categories of the Monthly Report may be subject to change as programs are established or upon request from the Special Master. 53. Monthly Cumulative Information Report. The Department will generate another report monthly that will include cumulative information designed to allow the Special Master and DLC to monitor the historic areas that have caused delayed admissions in the past. Specifically,
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the Department has cited dramatic increases in referrals and unprecedented staffing shortages. The Special Master also believes a lack of community restoration services has contributed to delayed admissions. In a format accepted by the Special Master, and possibly integrated into the Monthly Compliance Report, this report will include the following information: (1) the number of referrals for Competency Services each month, including the type and location for each; (2) the number of staff employed each month by category (nursing positions, security positions, mental health professionals, etc.) and how many vacancies remain in each staffing category; (3) the number of temporary staff and the number of security staff employed each month; and (4) the number of Pretrial Detainees identified for Community-Based Restoration Treatment and the movement of those Pretrial Detainees into the community. The Special Master shall also assist the Department at their request in developing reporting protocols, Competency Services Recipient data, and formats for updating the parties on Consent Decree activities.
54. Timing of Reports. The first report under this Consent Decree shall be made on April 8, 2019. Thereafter, monthly reports shall be provided on the seventh day of each month following the reporting month or on the next business day if the seventh day of the month falls on a weekend or holiday.
55. Distribution of Monthly Reports. The monthly report shall be provided to DLC and the Special Master in Microsoft Access format and PDF format, unless another format is agreed upon in writing by the Parties and the Special Master.
56. Meetings. The Special Master shall convene and chair meetings and disseminate a written summary of each meeting. The summary shall include action steps and agreements of the parties including timeframes for follow-up activities. During the first year after the Effective Date, meetings shall be held monthly, and quarterly thereafter, but may be scheduled at greater intervals
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at the Special Master’s discretion. The Parties shall treat the meetings as a serious opportunity to raise concerns or potential barriers with the system of institutions involved in achieving or maintaining full compliance with the Consent Decree. Each Party shall designate appropriate senior representatives, based on the agenda for each meeting, to participate in the meetings so that meaningful discussion can occur, and may include outside stakeholders, as appropriate based on the agenda. The first monthly meeting shall be scheduled for a mutually agreeable date in April 2019. X. SPECIAL CIRCUMSTANCES
57. Special Circumstances. To some extent, the Department’s ability to perform its statutory obligations and its obligations under this Consent Decree may be based on factors beyond its control. As a result, and subject to the terms and conditions of this Paragraph, the timeframe requirements of this Consent Decree may be temporarily suspended in the following circumstances:
(a) Special Circumstances Defined. The Department may invoke, under this Paragraph 57, two categories of Special Circumstances:
(i) “Individual Special Circumstances” means a situation that delays the Offer of Admission to a Pretrial Detainee, where the circumstances are not within the control of the Department. Individual Special Circumstances is a flexible concept. These situations may include, for example and without limitation, the following: (1) requests by a court, County Jail, defense counsel, or the Department that admission be delayed because additional information or testing required for the evaluation is outstanding; (2) a court has ordered a Hold and Wait Evaluation, and the sheriff must transport the Pretrial Detainee to the nearest county where there are services available; (3) the Pretrial Detainee is not Medically Cleared for admission
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due to illness or other non-psychiatric medical need, but not a need that can be satisfied by a plan for a reasonable accommodation; or (4) when the Pretrial Detainee is approaching the deadline for transfer to an inpatient facility, restoration to competency is imminent, and treatment providers responsible for the Pretrial Detainee’s care determine that transfer is not clinically appropriate. Upon resolution of the Individual Special Circumstance, the Pretrial Detainee must be Offered Admission for Competency Services immediately but no longer than three days, unless in derogation of a Tier 1 need, in which case the Pretrial Detainee will be offered the next available bed.
(ii) “Departmental Special Circumstances” means circumstances the Department could not reasonably foresee, prepare for, address through advanced planning, and that are beyond the control of the Department, which impact the Department’s ability to comply with this Consent Decree. The failure or refusal of the Colorado General Assembly (or any other funding source) to adequately fund the Department’s operations, programs, or plan shall not be considered a Departmental Special Circumstance. In order to invoke this paragraph, the Department would first need to obtain consent from DLC or seek relief and have such relief granted under the dispute resolution paragraph outlined below. (b) Effect of Invocation of Individual Special Circumstances. DLC and the Special Master will review the reporting of Individual Special Circumstances. If DLC questions the Department’s invocation of Individual Special Circumstances, the Parties will confer to review the reasons for invocation of Individual Special Circumstances and to determine issues for resolution. Additionally, the Department may proactively seek
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confirmation that an event qualifies as an Individual Special Circumstance by contacting a representative of DLC or the Special Master in advance of formal reporting of the event. If the Department believes Individual Special Circumstances have become a systemic issue, it will follow the Departmental Special Circumstances procedure below. The Parties shall use good faith efforts to try and resolve any disputes concerning the invocation of Individual Special Circumstances. However, if the Parties do not reach an agreement through good faith efforts at resolution, the Parties will follow the dispute resolution process described in Section XII.
(i) If the Parties agree to the invocation of Individual Special Circumstances for a particular Pretrial Detainee, the timeframe requirements of this Consent Decree shall be suspended as to that individual Pretrial Detainee for a period to be determined by the Special Master.
(ii) The Department may invoke Individual Special Circumstances more than once for the same Pretrial Detainee, but it must follow the notification and conferral procedures in Paragraph 57(b) each time it seeks to invoke Individual Special Circumstances. (c) Effect of Invocation of Departmental Special Circumstances. If the Department determines that Departmental Special Circumstances exist, it shall notify the Court, the Special Master, and DLC in writing, and in such notification, the Department shall provide a detailed explanation of the basis for invoking Departmental Special Circumstances, a plan to remedy the Departmental Special Circumstances, and the projected timeframe for resolution. The period of Departmental Special Circumstances shall commence on the date that the Notice of Departmental Special Circumstances is
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provided to the Court. Upon the invocation of Departmental Special Circumstances, the timeframe requirements of this Consent Decree shall be automatically suspended for six months, unless the Department notifies DLC that a shorter time is sufficient to resolve Departmental Special Circumstances, commencing with the month in which the Notice of Departmental Special Circumstances is provided to the Court. The Department shall provide written notice to DLC of its intent to terminate Departmental Special Circumstances. Upon DLC’s receipt of a Notice of Departmental Special Circumstances, it may request supporting documentation for the Department’s notice, and the Parties shall confer to review the reasons for invocation of Departmental Special Circumstances, to resolve questions that the Special Master or DLC may have about the circumstances that triggered the notice, and to assess whether the Parties are able to resolve any disagreement concerning invocation of Departmental Special Circumstances. If DLC decides to challenge the invocation of Departmental Special Circumstances, it may do so by following the dispute resolution procedure identified in Section XII. The Department is prohibited from invoking Departmental Special Circumstances consecutively. The Department cannot invoke Departmental Special Circumstances any sooner than June 1, 2021.
(d) Effect on Reporting Requirements. A Notice of Departmental Special Circumstances shall not affect the Department’s reporting obligations under this Consent Decree. In addition to such reporting obligations, the Department will provide a monthly written status report to DLC and the Special Master on its plans and progress to remedy Departmental Special Circumstances. XI. DURATION 58. Duration and Certification. The terms and provisions of this Consent Decree shall remain in force until December 1, 2025, except that a sustained period of two years of compliance
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by the Department with all terms of this Consent Decree, including the strictest timeframes identified herein, as certified by the Special Master, shall result in termination of this Consent Decree. In the event the Department complies with all terms of this Consent Decree and the strictest timeframes for one year, while concurrently reducing Tier 2 timeframes to 21 days for that one year period, such compliance shall result in termination of this Consent Decree. XII. DISPUTE RESOLUTION AND REMEDIES
59. Dispute Resolution. (a) Dispute Resolution Generally. Any dispute concerning the interpretation or
implementation of this Consent Decree, other than those for which DLC seeks the remedy of contempt, shall first be submitted to the Special Master, who shall attempt to informally mediate and resolve the dispute. The Special Master may make use of such informal dispute resolution processes as it deems necessary, which may include, but are not limited to, informal suggestions or recommendations and compulsory conferences of the Parties.
(b) Dispute Resolution for Non-Contempt Proceedings. If informal attempts fail to resolve the matters identified in the preceding paragraph, or if the Special Master believes the Department has materially violated this Consent Decree or has in some other manner acted in bad faith, the Special Master or any Party may submit a written request to Judge Hegarty (or, in the event he is no longer serving as a magistrate judge in this District, a magistrate judge successor or someone mutually agreed upon by the parties) for an evidentiary hearing, requesting specific relief and a decision. A copy of this request shall be served upon opposing counsel and the Special Master. Judge Hegarty shall determine whether the dispute requires an evidentiary hearing, and, if so, schedule such hearing at the convenience of the Parties. Judge Hegarty shall file a written decision supported by written findings of fact and may impose any relief permitted by this Consent Decree. This includes,
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but is not limited to, attorney’s fees. Judge Hegarty’s decision shall become final and binding upon the Parties.
(c) Dispute Resolution for Contempt Proceedings. In the event that DLC believes the Department’s violation of this Consent Decree warrants contempt, DLC shall first attempt mediation through Judge Hegarty, who will conduct the proceeding on an expedited basis. Upon a finding by Judge Hegarty that the matter cannot be mediated, DLC may file a Motion for Order to Show Cause on the matter in controversy with this Court. 60. Remedies for Non-Contempt Violations of the Consent Decree.
(a) Timeframe Violations. The Parties agree that, in addition to the fines set forth in Paragraph 37 and the penalties set forth in Paragraph 60(b), DLC shall be entitled to seek its attorney’s fees and costs for pursuing such violations. In no event, however, shall the Department be subject to contempt strictly for violations of the timeframes for the delivery of Competency Services, except that sustained and/or egregious violations of those timeframes may constitute a material violation of this Consent Decree.
(b) Material Violations. Upon a finding of a material violation, Judge Hegarty may order immediate enforcement of the agreement, order injunctive relief, impose liquidated damages (as detailed below), attorney’s fees, or fashion any other relief deemed appropriate for the Department’s violation of this Consent Decree.
(c) Liquidated Damages. The Parties further agree that if Judge Hegarty finds a material violation of this Consent Decree, the damages sustained by the Pretrial Detainees because of such violation would be difficult, if not impossible, to ascertain. The Parties agree to provide for damages rather than a penalty and agree that in addition to other remedies available to DLC, Judge Hegarty can award liquidated damages of up to $10,000
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a day for each day Judge Hegarty determines the violation to have occurred and continuing until the violation is remedied.
(d) Non-Timeframe Violations Adjudicated by Contempt. Nothing set forth herein is intended to, or in any way shall, limit the Court’s power to enforce the Department’s compliance with this Consent Decree through contempt (except for a violation of the timeframes, which the parties have agreed is not subject to contempt). In such proceedings, the Court shall have all powers afforded by law to remedy the contempt and/or punish the Department for violation of this Consent Decree. XIII. MISCELLANEOUS PROVISIONS 61. Effective Date of the Consent Decree. This Consent Decree shall become effective on the date of the Court’s entry. 62. Remedies by Pretrial Detainees Not Precluded. Nothing in this Consent Decree limits a Pretrial Detainee, or his or her counsel, from bringing other court action, such as contempt of court proceedings, if the circumstances warrant such action. However, the provisions of this Consent Decree are intended to be enforced solely by the United States District Court for the District of Colorado. In any court action brought by a Pretrial Detainee for contempt of court, the Department retains all defenses to such action, including but not limited to those attending C.R.C.P. 107. Nevertheless, the Parties agree that the terms of this Consent Decree are not binding or enforceable as to individual Pretrial Detainees, because they are not parties to this Lawsuit. 63. Contempt Actions Against Other Agencies, Non-Complying Sheriff’s Offices, District Attorney’s Offices, and Defense Counsel Not Precluded . Nothing in this Consent Decree precludes any court from issuing contempt citations to sheriffs for failing to comply with orders to transport Pretrial Detainees to or from the Hospital, district attorneys for violating timelines
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ordered by courts to provide Collateral Materials, or defense attorneys who fail to comply with orders related to Competency Services.
64. Complete Consent Decree; Modification; and Waiver. This Consent Decree constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, representations, warranties, and understandings of the Parties. This Consent Decree replaces and supersedes the Amended and Restated Settlement Agreement executed by the Parties on July 28, 2016 in its entirety. No supplement, modification, or amendment of this Consent Decree shall be binding unless entered by the Court.
65. Attorney’s Fees and Costs. Part of the effect of this Consent Decree is to settle the specific matters outlined or referenced in this Consent Decree as to the Parties up to the date the Consent Decree is finalized. Accordingly, the Colorado State Office of Risk Management shall pay DLC’s counsel the lump sum amount of $654,177.50 (the dollar amount is contingent upon the State Claims Board’s approval of this amount on March 26, 2019) in full and final settlement of all costs and fees, including attorney’s fees, incurred by DLC’s counsel starting on June 1, 2017, up to and including the date this Consent Decree is finalized and signed by all Parties hereto (the “Settlement Payment”). When the final amount is approved by the State Claims Board, DLC’s counsel shall enter a separately filed binding agreement related to the Settlement Payment, which agreement shall be on the then-current, Controller-approved standard settlement agreement. The Settlement Payment shall be paid to Eytan Nielsen LLC as follows: A warrant in the amount of $654,177.50 (or in the dollar amount approved by the State Claims board on March 26, 2019) will be made payable to Eytan Nielsen LLC. The warrant will be delivered to Eytan Nielsen LLC within 30 days from March 26, 2019, or as soon after March 26, 2019 as practicable. Prior to delivery of the warrant, the Controller-approved settlement document will be signed by all Parties and the
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Controller. No withholding for payment of federal, state or local taxes will occur respecting any

warrant issued pursuant to this Consent Decree other than those required by federal or state law or

rules governing the Controller. Eytan Nielsen LLC will complete, execute and provide an original

of I.R.S. form W-9 in conjunction with submitting the signed Consent Decree as an initial step in

completing the arrangements described here. A Form 1099 will be issued to Eytan Nielsen LLC

on the Settlement Payment. The Settlement Payment made hereunder shall not be designated as

wages, salary or back pay, except to the extent required by federal or state law or by rules

governing the Controller, but is instead made in compromise of all claims arising from or related

to the subject matter of this Consent Decree for those matters up to and including the date this

Consent Decree is fully executed and entered by the Court.

66. Written Notice. Any notice or other communication required or permitted under

this Consent Decree shall be in writing and shall be deemed to have been duly given when

(1) mailed by United States registered or certified mail, return receipt requested, (2) mailed by

overnight express mail or other nationally recognized overnight or same-day delivery service,

(3) sent as a PDF attachment to electronic mail, or (4) delivered in person, to the Parties at the

following addresses:

If DLC, to:

Disability Law Colorado 455 Sherman Street, #130 Denver, Colorado 80203

Attention:

Mark Ivandick mivandick@disabilitylawco.org

Jennifer Purrington jpurrington@disabilitylawco.org

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With a copy to:

Iris Eytan, Esq. EYTAN NIELSEN LLC 3200 Cherry Creek South Drive Denver, CO 80209 iris@eytan-nielsen.com

If the Department, to:

Department of Human Services 1575 Sherman Street Denver, Colorado 80203

Attention:

Michelle Barnes michelle.barnes@state.co.us

If the Hospital, to:

Colorado Mental Health Institute at Pueblo 1600 West 24th Street
Pueblo, Colorado 81003

Attention:

Jill Marshall, M.P.H. jill.marshall@state.co.us

With a copy to:

Office of the Attorney General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 6th Floor
Denver, CO 80203

Attention:

Tanja Wheeler tanja.wheeler@coag.gov

Ann Pogue ann.pogue@coag.gov

Sarah Richelson sarah.richelson@coag.gov

A Party may change the names or address where notice is to be given by providing notice

to the other Parties of such change in accordance with this Paragraph.

XIV. RESERVATION OF JURISDICTION AND ENFORCEMENT

67. The Court hereby retains jurisdiction over this Consent Decree.

68. The Court hereby also retains jurisdiction to enforce the terms of this Consent

Decree, upon Final Approval, until the Consent Decree is terminated and for 60 days after the

Department provides the final monthly report.

39

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69. Nothing in this Consent Decree requires or permits the Department to violate a court order.
70. Minor or transitory mistakes shall not be considered a violation of this Consent Decree. XV. FINAL JUDGMENT
Based on the pleadings, counsels’ stipulation of facts, and representations of counsel for both parties, the Court does find: The facts alleged in Paragraphs 1 through 13 warrant the Court’s approval of this Consent Decree.
Upon entry of this Consent Decree by the Court, this Consent Decree shall constitute the final judgment between and among the Plaintiff and Defendants. The Court enters this judgment as a final judgment under Federal Rules of Civil Procedure 54 and 58 that is fully enforceable by all plenary powers of the Court.
IT IS SO ORDERED, this 2nd day of April, 2019.

Hon. Nina Y. Wang United States Magistrate Judge

APPROVED FOR ENTRY:

/s/Mark Ivandick Center for Legal Advocacy, d/b/a Disability Law Colorado Name: Mark Ivandick Title: Managing Attorney Dated: March 27, 2019

/s/Michelle Barnes Colorado Department of Human Services Name: Michelle Barnes Title: Executive Director, in her official capacity Dated: March 27, 2019

/s/Jill Marshall Colorado Mental Health Institute at Pueblo Name: Jill Marshall Title: Chief Executive Officer, in her official capacity Dated: March 27, 2019

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TABLE 1: Timeframes and Fines for Competency Services

Deadlines

Tier 1: Maximum Timeframes to Offer Admission for Inpatient Restoration and Corresponding Fines

Tier 2: Maximum Timeframes to Offer Admission for Inpatient Restoration and Corresponding Fines

Maximum Timeframes to Offer Admission for Inpatient Competency Evaluations and Corresponding Fines

Maximum Timeframes to Complete Jail Competency Evaluations and Corresponding Fines

June 1, 2019 January 1, 2020

7 days

56 days

21 days

28 days

Fines: $500 per day for each Pretrial Detainee waiting more than 7 days
7 days

Assess for admission every 10 days
Fines: $100 per day for each Pretrial Detainee waiting 29-56 days, $500 per day for each Pretrial Detainee waiting more than 56 days 49 days

Fines: $100 per day for each Pretrial Detainee waiting more than 21 days
21 days

Fines: $100 per day for each Pretrial Detainee waiting more than 28 days
28 days

Fines: $500 per day for each Pretrial Detainee waiting more than 7 days

Assess for admission every 10 days
Fines: $100 per day for each Pretrial Detainee waiting 29-49 days, $500 per day for each Pretrial Detainee waiting more than 49 days

Fines: $100 per day for each Pretrial Detainee waiting more than 21 days

Fines: $100 per day for each Pretrial Detainee waiting more than 28 days

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Deadlines

Tier 1: Maximum Timeframes to Offer Admission for Inpatient Restoration and Corresponding Fines

Tier 2: Maximum Timeframes to Offer Admission for Inpatient Restoration and Corresponding Fines

Maximum Timeframes to Offer Admission for Inpatient Competency Evaluations and Corresponding Fines

Maximum Timeframes to Complete Jail Competency Evaluations and Corresponding Fines

July 1, 2020

7 days

42 days

14 days

21 days

January 1, 2021

Fines: $500 per day for each Pretrial Detainee waiting more than 7 days
7 days

Assess for admission every 10 days
Fines: $100 per day for each Pretrial Detainee waiting 29-42 days, $500 per day for each Pretrial Detainee waiting more than 42 days 35 days

Fines: $100 per day for each Pretrial Detainee waiting more than 14 days
14 days

Fines: $100 per day for each Pretrial Detainee waiting more than 21 days
21 days

Fines: $500 per day for each Pretrial Detainee waiting more than 7 days

Assess for admission every 10 days
Fines: $100 per day for each Pretrial Detainee waiting 29-35 days, $500 per day for each Pretrial Detainee waiting more than 35 days

Fines: $100 per day for each Pretrial Detainee waiting more than 14 days

Fines: $100 per day for each Pretrial Detainee waiting more than 21 days

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Deadlines July 1, 2021

Tier 1: Maximum Timeframes to Offer Admission for Inpatient Restoration and Corresponding Fines

Tier 2: Maximum Timeframes to Offer Admission for Inpatient Restoration and Corresponding Fines

Maximum Timeframes to Offer Admission for Inpatient Competency Evaluations and Corresponding Fines

Maximum Timeframes to Complete Jail Competency Evaluations and Corresponding Fines

7 days

28 days

14 days

21 days

Fines: $500 per day for each Pretrial Detainee waiting more than 7 days

Assess for admission every 10 days
Fines: $500 per day for each Pretrial Detainee waiting more than 28 days

Fines: $100 per day for each Pretrial Detainee waiting more than 14 days

Fines: $100 per day for each Pretrial Detainee waiting more than 21 days

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January 28, 2019
The Honorable Judge Nina Wang United States Magistrate Judge District of Colorado Alfred A. Arraj United States Courthouse 901 19th Street Denver, CO 80294

Re: Civil Action No. 11-cv-02285-NYW

This report serves as our response to the first duty listed in your court order dated December 28, 2018, appointing us to serve as Special Masters. Specifically, we have reviewed the Colorado Department of Human Services (CDHS) document titled, “Comprehensive Plan for Compliance” (hereafter, “CDHS Plan”),1 which describes the efforts of CDHS to improve timely performance of competency services, and thereby comply with the timelines delineated in the 2016 Settlement Agreement (hereafter, “Settlement Agreement”). We have prepared feedback and recommendations regarding the Plan, presented below.

1 I.e., the plan initially submitted to the federal court (in response to a court order pursuant to case 1:11-cv-02285-NYW) on December 18, 2018, by the Colorado Department of Human Services and then revised and resubmitted on January 4, 2019.

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SOURCES OF INFORMATION
In preparing our feedback to the CDHS Plan, we considered a variety of collateral records in addition to the Plan itself. We also conducted interviews with CDHS leadership and staff, staff at Disability Law Colorado (DLC), and many other stakeholders. Specifically, these sources include:
Interviews and Facility Visits Facility visits:
1. Colorado Mental Health Institute at Pueblo (CMHIP), January 24, 2019 2. Colorado Mental Health Institute at Fort Logan, (CMHIFL), January 25, 2019
Interviews with CDHS leadership and staff: 1. Jill Marshall, Chief Executive Officer for the Colorado Mental Health Institute at Pueblo (CMHIP), telephone interview on January 14, 2019, and meeting on January 24, 2019 2. Robert Werthwein, Ph.D., Director of the Office of Behavioral Health, telephone interview on January 14, 2019, and meeting on January 24, 2019 3. Michael Tessean, Deputy Director for the Office of Behavioral Health, telephone interview on January 16, 2019, and meeting on January 25, 2019 4. Al Singleton, M.D., Chief of Medical Staff at CMHIP, meeting on January 24, 2019 5. Richard Pounds, M.D., Medical Staff President at CMHIP, meeting on January 24, 2019 6. Victoria Gallegos, Chief Operating Officer at CMHIP, meeting on January 24, 2019 7. Bill Martinez, Director of Forensic Community Based Services, meeting on January 24, 2019 8. David Polunas, M.S.W., Chief Executive Officer for the Colorado Mental Health Institute at Fort Logan (CMHI-FL), meeting on January 25, 2019 9. Lisa Lucas, M.D., Psychiatrist at CMHIFL, meeting on January 25, 2019 10. Danielle, Weitenhiller, Psy.D., Chief of Forensics at CMHIFL, meeting on January 25, 2019 11. Rick Martinez, M.D., Director of Forensic Psychiatry for the Office of Behavioral Health, meeting on January 25, 2019 12. Kathryn Davis, Program Director of Outpatient Restoration Forensic Services, telephone interview on January 21, 2019 13. Thomas Gray, Ph.D., Director of Training for the Court Services Department, telephone interview on January 21, 2019

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14. Katie McLoughlin, Chief Legal Director for the Colorado Department of Human Services, telephone interview on January 22, 2019
Interviews with other stakeholders: 15. Karen Galin, Ph.D., Vice President of Behavioral Health at Wellpath Recovery Solutions, telephone interview on January 14, 2019 16. Iris Eytan of Eytan Neilsen LLC, telephone interview on January 14, 2019, and meeting on January 23, 2019 17. Doug Wilson, Former Head of the Colorado Public Defenders Office, telephone interview on January 14, 2019 18. Mark Ivandick, Alison Butler, and Jennifer Purrington of Disability Law Colorado, telephone interview on January 16, 2019, and meeting on January 23, 2019 19. Patrick Fox, M.D., Medical Director of Behavioral Health at Colorado Community Health Alliance, telephone interview on January 16, 2019 20. Adrienne Green, Denver District Attorney, telephone interview on January 21, 2019 21. Jennifer Turner, Colorado Supreme Court, telephone interview on January 22, 2019
Collateral Records Reviewed
Colorado documents reviewed: Documents received in duplicate from more than one source are cited only once
1. Colorado Office of Behavioral Health Needs Analysis – Current Status, Strategic Positioning, and Future Planning, from the Western Interstate Commission for Higher Education (WICHE) Mental Health Program, dated April 2015
2. Colorado Revised Statutes Annotated, Title 27, Article 60 (C.R.S.A. § 27-60-105), effective August 9, 2017
3. Email correspondence from Mark Ivandick of Disability Law Colorado to Tanya Wheeler, First Assistant Attorney General, regarding request for a report on compliance, dated September 13, 2017
4. Internal Working Document by C-Stat for the Office of Behavioral Health, dated December 2018
5. C-Stat Summary Report prepared by Performance Management of the Colorado Department of Human Services, dated October through December 2018

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6. Staff Budget Briefing, FY 2019-20, for the Department of Human Services (Office of Behavioral Health), prepared by Carolyn Kampman, dated December 11, 2018
7. Case 1:11-cv-02285-NYW documents & exhibits: a. Exhibit A: Plan submitted by Colorado Department of Human Services, filed December 17, 2018 b. Exhibit A-1 & A-2: Inpatient bed capacity across facilities in Colorado, filed December 17, 2018 c. Notice of Errata, submitted by defendants Reggie Bicha and Jill Marshall, filed on December 19, 2018 d. Exhibit A: Corrected plan submitted by Colorado Department of Human Services, filed January 4, 2019 (aka “CDHS Plan”) e. Exhibit A-1 & A-2: Corrected inpatient bed capacity across facilities in Colorado, amended January 4, 2019
8. Notice of Filing of Defendant’s Amended Comprehensive Plan for Compliance, dated January 9, 2019
9. Colorado Mental Health Institute at Pueblo “Huddle”: Presentation slides including information about outpatient and inpatient competency restoration waitlists, referral rates, and future strategies, dated January 4, 2019
10. Letter to Phil Weiser, Attorney General for Colorado; Natalie Hanlon Leh, Chief Deputy Attorney General; Tanja Wheeler, First Assistant Attorney General; Libbie McCarthy, Deputy Attorney General; Sarah Richelson, Deputy Attorney General; and Ann Pogue, Deputy Attorney General from Iris Eytan, Caleb Durling, Ellie Lockwood, and Tim Scalo Re: DLC v. DHS Director, et al. 11 CV 02285 – NYW, dated January 8, 2019
11. Transcription of testimony from Robert Werthwein, Ph.D., to the Capital Development Committee (CDC), dated January 8, 2019
12. Transcription of testimony from Robert Werthwein, Ph.D., to the Capital Development Committee (CDC), dated January 10, 2019
13. Community Risk v. Mental Health Need Matrix, received from Patrick Fox, M.D., on January 16, 2019
14. Letter to Phil Weiser, Attorney General for Colorado; Natalie Hanlon Leh, Chief Deputy Attorney General; Tanja Wheeler, First Assistant Attorney General; Libbie McCarthy, Deputy Attorney General; Sarah Richelson, Deputy Attorney General; and Ann Pogue, Deputy Attorney General from Iris Eytan, Caleb Durling, Ellie Lockwood, and Tim Scalo Re: DLC v. DHS Interim Director Jerene Peterson, et al. 11 CV 02285 NYW, dated January 25, 2019

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15. Documents received from Libby McCarthy on January 9, 2019 (comments from Ms. McCarthy are included in the parenthetical clauses for each document): a. Settlement Agreement in Case 1:11-cv-02285-NYW, filed July 28, 2016 b. House Bill 16-1410, regarding where competency evaluations should occur (became law in 2016) c. Senate Bill 17-207, ending the use of jails for emergency holds and expanding the crisis response system (became law in 2017) d. Senate Bill 18-249, creating the pre-plea diversion pilot project (became law in 2018) e. Senate Bill 18-250, creating the Jail Based Behavioral Health Services program (became law in 2018) f. Senate Bill 18-251, creating the Behavioral Health Court Liaison Program (became law in 2018) g. Senate Bill 18-252, a bill that proposed overhauling the competency restoration process in Colorado (bill failed by filibuster on last day of legislative session) h. Information from CDHS regarding the Stakeholder Meeting and Project Smart i. Document submitted to Hickenlooper’s administration by DLC lobbyist, titled Statewide Strategic Outlook and Plan for Competency Restoration in Colorado j. Letter from Mental Health Colorado, dated January 4, 2019
16. Documents received from Katie McLoughlin, Chief Legal Director of Colorado Department of Human Services, on January 22, 2019: a. Competency Judicial Outline Draft, undated b. Competency Legislation Judicial Draft, dated January 2, 2019 c. Competency Legislation Prevention Outline, dated January 14, 2019 d. Competency Prevention Draft, undated e. Letter to Governor-elect Polis, Chief Justice Coats, Speaker Becker, and President Garcia, written by Moe Keller, Director of Advocacy at Mental Health Colorado, dated January 4, 2019
17. Documents received from Alison Butler of Disability Law Colorado: a. Detailed chart of the competency restoration process in Colorado and suggested solutions, undated b. Competency Restoration in Colorado Fact Sheet, undated c. Statewide Strategic Outlook and Plan for Competency Restoration in Colorado, undated

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Other sources reviewed: 1. Description of “Forensic Support Team” position, specific to the Philadelphia Department of Prisons, undated 2. Description of “Region-IV Jail Team,” a collaborative effort between the Community Services Boards (CSBs) in Health Planning Region–IV, Central State Hospital (CSH), and several jails in the region of Virginia, undated 3. Description of “Boundary Spanner” Position, specific to Eastern State Hospital in Virginia, dated January 2016 4. CS/CB/SB 604: Mental Health Services in the Criminal Justice System, 2016 Appropriations; Judiciary; Diaz de la Portilla (Fla. 2016). 5. Miami-Dade County 11th Judicial Circuit Criminal Mental Health Project Criminal Justice/Mental Health Statistics and Project Outcomes, dated June 8, 2016, retrieved from https://www.equitasproject.org/wp-content/uploads/2018/05/CMHP-DataCriminal-Mental-Health-Project-06082016.pdf 6. “Decriminalizing mental illness – The Miami Model,” written by John Iglehart for the New England Journal of Medicine, dated May 5, 2016 7. “Criminal mental health program in Miami-Dade seen as a model for the nation,” written by D. Chang for the Miami Herald, dated May 21, 2016, retrieved from https://www.miamiherald.com/news/health-care/article79004057.html 8. Settlement Agreement in Case 2:15-cv-00645-RJS-BCW between the Utah Department of Human Services and the Disability Law Center, filed June 12, 2017 9. “Forensic Patients in State Psychiatric Hospitals: 1999-2016 (Assessment #10),” report for the National Association of State Mental Health Program Directors Research Institute (NASMHPD), published August 2017 10. “Alternatives to Inpatient Competency Restoration Programs: Jail-based Competency Restoration Programs,” report for the National Association of State Mental Health Program Directors Research Institute (NRI), published October 31, 2018 11. “Alternatives to Inpatient Competency Restoration Programs: Community-Based Competency Restoration Programs,” report for the National Association of State Mental Health Program Directors Research Institute (NRI), published October 31, 2018 12. Eleventh Judicial Criminal Mental Health Project Program Summary, dated October 2018, retrieved from https://www.equitasproject.org/wpcontent/uploads/2019/01/Program-Description-2018_Miami-Model.pdf

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Introduction and Orientation
Before providing feedback or recommendations regarding the CHDS Plan, it is important to explicitly acknowledge our perspective, values, and potential biases. First, our goal is to respond to the CDHS Plan in light of empirical research and well-established best practices. When these sources are not available, we rely primarily on our experience—which includes state forensic administration, consultation to other forensic mental health systems, and direct experience providing forensic evaluation, treatment, and consultation—as well as our understanding of emerging best practices. Of course, our perspective will inevitably be shaped by particular value judgments. The most salient of these value judgments, we believe, involve values that are largely shared by all parties involved in this Settlement Agreement (notwithstanding disagreements about how best to honor these values). Specifically, we believe states have some responsibility to provide high quality mental health services even to those who cannot afford them, that these services should be provided in the least restrictive effective setting, that individuals need not incur criminal charges to receive these services, and that these services should be provided in a manner that improves the safety and well-being of clients2, stewards state financial resources, and respects the dignity of each individual. We believe—and trust all parties involved in the Settlement Agreement believe—that most mental health services are best delivered in a broad system of care, beginning in the community, rather than solely in inpatient psychiatric hospitals.
Second, we read the CDHS Plan with the understanding that the authors designed the plan explicitly to bring Colorado practice into compliance with the Settlement Agreement. As CDHS leadership repeatedly acknowledged to us, a plan to come promptly into compliance with the
2 Throughout this report, the term “client” will generally be used to denote a person with mental illness who is eligible for court-ordered, community mental health, and/or CDHS systems of care. “Patient” will generally refer to clients who are admitted to an inpatient hospital. “Class member” will be used to refer specifically to those individuals operationally defined in the 2016 Settlement Agreement. “Defendant” will refer to individuals charged with a crime and (in reference to this report specifically) engaged in pre-trial court-ordered services, such as competency evaluations or competency restoration. At times, given the overlap across these classifications, terms may be used interchangeably.

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Settlement Agreement is not the same as a comprehensive plan to improve Colorado’s civil and forensic mental health services. The former is, of course, more constrained by time and narrower in focus. The latter may require more time and will always require a broader focus. While we are sympathetic to the challenges CDHS faces in pursuing punctual compliance, we also want to explicitly acknowledge one of our primary values that shapes our review of the plan: Consistent, long-term compliance with the Settlement Agreement can only occur by improving the broader system of mental health care. Any steps to attain compliance that undermine a broader system of care—even if they “succeed” in the short term—tend to exacerbate the problem, or create new problems, in the long term. Our bias in reviewing this plan is to favor strategies that help foster a broader, integrated system of care conducive to long-term compliance and to disfavor strategies that undermine other mental health services. Why? Because a state mental health system—like a home plumbing system—is necessarily interconnected. Hasty efforts to reduce pressure in one pipe may create more pressure in others, resulting in new breakdowns, and even more difficult and expensive repairs in the future.3
Therefore, we review the CDHS Plan recognizing that it is an effort to achieve compliance as promptly as possible. But we provide feedback in the interests of achieving long-term compliance, rather than fleeting compliance or compliance that risks creating other crises. Of course, many of the CDHS efforts to promptly attain compliance are also conducive to longterm compliance; however, where hasty efforts at short-term compliance would undermine long-term compliance, we prioritize the long term. With these caveats emphasized, we present our feedback regarding the CHDS Plan.
3 Many stakeholders we interviewed used the colloquialism “robbing Peter to pay Paul” when describing their concerns about certain aspects of the CHDS Plan. To be clear, we do not necessarily object to moving resources from one part of the mental health system to another; there are instances when moving resources is necessary to steward limited resources and “triage” services to areas of greatest need. Our concern is proposing apparent “solutions” to the competency crisis that harm other mental health services, because harming other mental health services inevitably exacerbates the competency crisis, and may create other crises, in the long term.

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Overview
Overall, the CDHS Plan has many strengths, as well as many opportunities for further improvement. Our report does not attempt to address every strength and weakness, nor does it respond to every item in the CDHS Plan. We chose not to address the individual proposals in the CDHS Plan’s “Future Plan for Compliance” section in a point-by-point basis, as this approach begets a scattered and reactive approach instead of encouraging a comprehensive, cohesive, proactive reflection. If asked, we can certainly do so. Rather, we present the broad issues we consider most important. Our task at this point is not to develop a plan for CDHS, but rather to review their recently-submitted plan and offer feedback. Nevertheless, we have added to each of our broad recommendations some discrete, recommended action items, as well as some examples from others states, for illustrative purposes.

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Recommendation 1: Make the CDHS “Comprehensive Plan” more comprehensive and cohesive
Many experts have compared the public mental health system to a hydraulic system. Pressures on the entrances and exits to the system are felt system-wide. For example, increased referrals for services at the front end inevitably build pressure in the service components of the system. To reduce that pressure, exit points must exist. The reverse is also true—simply closing the front door does not eliminate existing pressure. Instead, it just diverts pressure to other potential entrances. This is why a comprehensive and cohesive plan is crucial. Nothing happens in isolation. Altering discrete components of a system always influences the pressure in other areas. A comprehensive and cohesive plan addresses the entire hydraulic system so that input pressures are well understood and release mechanisms work in concert to avoid unintended pressures in other areas. A primary example is the balance between forensic and civil mental health systems. As civil capacity decreases to make room for forensic referrals, front-end care is likely to suffer for people without criminal charges—likely incentivizing criminal justice pathways to access services.
We expect CDHS leadership is familiar with these principles. But the CDHS Plan must better account for these principles with a more comprehensive and cohesive approach. Many states and jurisdictions have detailed planning documents that guide their public mental health system. These plans provide context for the challenges faced, describe work and initiatives to date (incorporating detailed data and outcomes), analyze the effectiveness of system components, describe interrelation among components, identify existing gaps, estimate future needs, anticipate future gaps, and delineate future plans that flow from the prior sections. These plans typically include a continuum of planning measures, from broad vision and mission statements down to targeted, specific interventions. Effective plans like this are comprehensive, and they are cohesive. We recognize that the CDHS Plan does not claim to be one of these comprehensive plans that guides the entire public mental health system, but rather a “Comprehensive Plan” to attain compliance with the Settlement Agreement.

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Nevertheless, even this relatively narrow goal will be better served in the long run by a more comprehensive and cohesive approach.
Regarding a comprehensive approach:
The CDHS Plan covers a variety of areas that relate to the Settlement Agreement and the competency restoration process. The CHDS Plan rightly recognizes that there is no single solution or intervention to the problem and that substantial work across multiple areas, settings, and professional jurisdictions is necessary for a sustainable solution. The CDHS Plan touches on many of those areas, albeit with varying detail and emphasis. Some sections of the plan are quite detailed and data-informed; others are far less so. The bulk of the CDHS Plan focuses on two major sections: (a) Department Efforts in 2017 and 2018 and (b) Future Plan for Compliance. The first section is the longest and describes the following efforts:
1. Mental Health Institute bed expansion and reallocation 2. Staffing 3. Expansion of jail-based restoration 4. Contracts with private hospitals 5. Community-based restoration 6. Improved efficiencies at CMHIP 7. Educating judiciary, district attorneys, and public defenders 8. Legislative efforts 9. Partnerships and collaborations
The second section (“Future Plan”) is briefer and is organized into the following sections: 1. Short-term solutions not requiring new appropriations a. Increasing inpatient bed capacity b. Reducing length of stay for inpatient restoration 2. Long-term solutions not requiring further funding 3. Long-term solutions requiring appropriations
In our view, this CDHS Plan clearly reveals substantial efforts to address problems in the competency service system. We affirm those efforts. A comprehensive and coordinated response is not easy, particularly amid additional pressures from litigation, legislative scrutiny,

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and media attention. During our interviews, CDHS staff demonstrated clear dedication to serving persons with mental illness and improving the system; our suggestions for improvement should not be considered a critique of dedicated CDHS staff.
However, despite these strengths we observed, the current CDHS Plan has several gaps. These will be detailed in later sections of this report, but include the following:
1. A comprehensive, cohesive approach to planning (currently described in this section) 2. A comprehensive vision for increasing capacity that prioritizes community-based
resources as highly as inpatient beds 3. A comprehensive approach to community-based outpatient competency restoration 4. A triage system that considers clinical and criminogenic needs to assign individualized
services 5. A data-driven system that captures, analyzes, and disseminates data in a reliable and
meaningful manner to inform decisions and planning 6. A centralized structure for stakeholders to immediately access detailed information
about programs, clients, and settings 7. A plan for prioritizing service quality even amid urgency
Toward a cohesive approach:
An effective, actionable plan must not only be comprehensive, but also integrated and cohesive. As in a good mental health treatment plan, component parts should flow naturally from an overarching vision, moving toward a primary goal and complementing one another as pieces become more detailed. In this way, all stakeholders can easily understand how components are related, and understand the rationale for plans and decisions. Staff in every setting should be able to understand how their roles complement other system components and how they fit into the broader picture.
The CDHS Plan is not cohesive. Generally, the plan comes across as scattershot, with multiple proposals and initiatives (including good ones) listed consecutively, but untethered to a unified, cohesive vision. In this way, the CDHS Plan reads as piecemeal and reactionary rather than cohesive and proactive. The CDHS plan rarely cross-references components, thereby failing to take advantage of many potential opportunities for integrating good services (e.g., how might

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the innovative Bridges court liaison program complement outpatient competency restoration?), and failing to address important cross-sectional implications of interventions (e.g., how might a freeze on civil admissions affect other parts of the system?). Again, no piece of the system operates in isolation. Yet the CDHS Plan reads more like a list of isolated interventions than a cohesive network of complementary, interrelated services.
Also indicative of this lack of cohesion, several proposals are listed with substantially different levels of detail. We suspect this reflects the Department’s somewhat urgent, disjointed approach to attaining compliance with the Settlement Agreement. There is little uniformity within the written CDHS Plan, leaving one skeptical about the uniformity in planning, implementing, and managing competency-related programs. There is no unifying vision or mission articulated, again making the various sections read as separate and isolated endeavors.
To be clear, the lack of cohesive vision of the CDHS Plan stood in stark contrast to the cohesive vision expressed by most CDHS personnel whom we interviewed. Almost all CDHS personnel were able to describe their vision for an effective system in well-informed, often poignant ways. Staff generally described an ideal system in which Colorado citizens with serious mental illness would have reliable options for effective outpatient and inpatient care, whether forensic or civil. However, most employees also lamented the current state of services and conveyed pessimism about key aspects of the CDHS Plan (as detailed further in subsequent sections). In short, CDHS staff is eager to appreciate and support a comprehensive, cohesive vision for public mental health care. But the CDHS Plan—at least as currently articulated—does not link steps to any broader vision.
Recommendations regarding a comprehensive and cohesive plan:
Once again, we acknowledge the CDHS Plan did not purport to be a comprehensive plan for broad system improvement, but rather a plan for rapid compliance with the Settlement Agreement. Even the CDHS administrators acknowledged ambivalence about the long-term effects of the plan. Most acknowledged the CDHS Plan as less than ideal, emphasizing that they had few options to reach compliance quickly. Nevertheless, the apparent lack of cohesion in

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the CDHS Plan is a substantial weakness, and leaves CDHS less likely to attain or maintain meaningful compliance in the long term. We encourage CDHS to revise the plan in a manner that is truly comprehensive and cohesive.
Fortunately, CDHS is not the first to struggle with this challenge. Many states and jurisdictions have developed comprehensive and cohesive plans to create meaningful, lasting system change. These effective plans incorporate empirical evidence, best practices from the field, and promising practices from other jurisdictions. They generate meaningful data and use it to refine existing plans. Many states generate proposals for statutory change, integrated with policy changes, quality improvement, and reasonable fiscal notes so that legislative requests can be well-received by lawmakers. Updated roles and expectations with partner agencies are clear and well-integrated with other plan components. The relationships between policy and direct care (and vice versa) are sensible and clearly articulated. Finally, effective plans estimate future needs, addressing sustainability and long-term impact.
The time is ripe for such a comprehensive, cohesive plan in Colorado. The competency crisis is escalating, but Colorado stakeholders have been working on these problems for several years. Momentum remains high. Many pilot programs and recent initiatives are starting to show early promise. In addition, several current drafts of potential legislation are underway. We understand that the pending lawsuit may open new paths for agreed-upon plans, and that the new state administration may provide new opportunities for legislative change and funding. We encourage leaders at CDHS and DLC to engage in a long-term visioning process that will consolidate disparate pieces of the plan, along with emerging initiatives, into a comprehensive, cohesive omnibus package for courts, administrators, service providers, and legislators to consider.
There are several examples of effective long-term plans developed in other jurisdictions. None are a “magic pill” that has entirely solved waitlist challenges or all public mental health dilemmas. But all have generated meaningful changes in policy, practice, and statute.

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EXAMPLE: Florida
Miami-Dade County has a higher proportion of serious mental illness among residents than other large counties in the United States, but the state of Florida recently ranked 48th in statefunded mental health services nationally. In 2000, Miami-Dade Judge Steve Leifman launched the Eleventh Judicial Circuit Criminal Mental Health Project (CMHP), which included an intensive planning process and ultimately culminated in several sweeping changes for mental health and criminal justice in Florida.4 For example, the Miami-Dade Forensic Alternative Center (MD-FAC) Program was implemented in 2009 to divert individuals adjudicated as incompetent to proceed or not guilty by reason of insanity away from forensic hospitals to community-based treatment. Coordination among county and state mental health agencies and law enforcement led the county to create a diversion drop-off center to serve as an alternative to jail. Participants receive a range of services, including competency restoration (if indicated), crisis stabilization, community living skills, community monitoring, and assistance with access to entitlement benefits and other means of economic self-sufficiency. For those restored to competency, individuals are not returned to jail but remain in the community, unlike many other hospital-based competency restoration programs.4,5 By 2016, approximately 400 individuals were diverted from jails and inpatient facilities to communitybased services. The average recidivism rate among both misdemeanor and felony participants drastically decreased, as did overall costs and lengths of stays.4,5 Due to the program’s
4 “Decriminalizing mental illness – The Miami Model,” written by John Iglehart for the New England Journal of Medicine, dated May 5, 2016 5 Eleventh Judicial Criminal Mental Health Project Program Summary, dated October 2018, retrieved from https://www.equitasproject.org/wp-content/uploads/2019/01/ProgramDescription-2018_Miami-Model.pdf

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success, it became a state-wide model in 2016, per Florida Senate Bill 604.6 The visioning and planning process was key to this coordinated rollout of sweeping changes across Florida.
EXAMPLE: Washington Washington state long struggled with lengthy waitlists for competency-related services and subsequently faced a federal lawsuit. In 2014-15, Groundswell Services completed a broad forensic systems review and helped prepare a long-term plan for the state. The plan included a process to gather stakeholder input, review inpatient and outpatient data, estimate future trends and service needs, identify systems gaps, and develop interventions based on national best practices and local needs. The process culminated in an actionable plan that led to significant improvements in infrastructure, policies, procedures, and statutes. Changes included creating a central administrative office for forensic mental health, establishing more than a dozen new state forensic evaluator positions, developing satellite offices for forensic evaluation, changing statutes regarding competency to proceed, and obtaining funding for both secure outpatient and community-based competency restoration programs. Although many changes are still ongoing, the master plan has served as the cornerstone for coordinating proposals and initiatives in a unified manner.
6 CS/CB/SB 604: Mental Health Services in the Criminal Justice System, 2016 Appropriations; Judiciary; Diaz de la Portilla (Fla. 2016).

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Recommendation 2: Reduce emphasis on inpatient beds and increase emphasis on community
services
The CHDS Plan discusses several efforts to secure more inpatient beds for competence restoration services. These include building new beds, reallocating existing beds at the Mental Health Institutes, and contracting with private hospitals.7 Some of these approaches are reasonable, necessary, and even overdue. There is no doubt that Colorado has far too few inpatient psychiatric hospital beds. Indeed, the 2015 WICHE Report8 was clear in conveying that Colorado had far too few civil beds for the population in 2014, and that the need for civil beds (let alone forensic beds) would increase with each year. Colorado’s general population, including those with psychiatric illness, has certainly continued to increase substantially since 2015.
We also support several of the proposals in the CDHS Plan regarding inpatient hospital development. These include legislative funding requests to expand and/or develop units for competency restoration patients at both CMHIP and CMHIFL. After visiting CMHIP and seeing the double-bunked patient rooms proposed in the Plan, we offer our tentative support for this development (understanding that more analysis may be necessary, and that careful planning for the pairing of “roommates” is essential). This is also crucial at CMHIFL, where multiple patients sharing rooms appears to be the norm; the transition to a forensic population will
7 At the time of this report, CHDS has removed from their Plan the proposal to repurpose the Ridgeview facility as an adult facility focused primarily on competency restoration. We therefore do not address this proposal in our review. 8 “WICHE Report” is the abbreviated title that stakeholders have used to describe the document “Colorado Office of Behavioral Health Needs Analysis—Current Status, Strategic Positions, and Future Planning” prepared by the Western Interstate Commission for Higher Education Mental Health Program (WICHE), in partnership with the National Association of State Mental Health Program Directors Research Institute (NRI) and Advocates for Human Potential (AHP).

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require a careful reassessment of this policy to ensure safety and reasonable accommodations. We were struck by the optimism and willingness of CMHIFL leadership to transition to forensic patients, given that their culture and physical campus are both oriented to civil patients. Although we support, in theory, the renovation of some units at CMHIFL to house forensic patients, we urge CDHS leaders to engage in a comprehensive and cohesive planning process before forensic patients are admitted there. Finally, we also support other initiatives described in the CDHS plan, such as identifying improvements to efficiencies and encouraging treatment plans to highlight competency restoration barriers and progress. Clearly inpatient forensic bed space is an essential part of the competency restoration process in Colorado.
While we support some of these efforts to secure more inpatient beds, we emphasize that securing more inpatient beds is not the primary solution to the competency crisis. As many stakeholders have quipped, “You can’t build your way out of this problem.” Bed-building (and even bed-renting)—among the slowest and most expensive strategies—can never keep pace with the increasing need for need for inpatient competence restoration services. Furthermore, such an expensive approach inevitably diverts funding from more efficient and affordable strategies in the community, thereby increasing the number of defendants who require inpatient restoration. Securing some number of additional beds does appear necessary, but securing beds must remain only one step in a viable plan for long-term compliance.
Regarding the plan to “freeze” civil beds:
A key component of the CDHS Plan involves “freezing” civil admissions in order to devote state hospital beds to competence restoration services. Not surprisingly, this has been the most contentious issue among the stakeholders we interviewed and in the public documents we reviewed. Indeed, even CDHS staff and leadership have lamented the “civil bed freeze” as an undesirable, drastic measure to gain prompt compliance with the Settlement Agreement. Virtually all stakeholders we interviewed, as well as third-party reviewers such as WICHE, agreed that Colorado already struggles with a shortage of beds for civil psychiatric patients and

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that this shortage already causes significant problems. Decreasing civil inpatient capacity only exacerbates this shortage.
Even amid a desperate need for additional competence restoration beds, meeting this need with civil beds is not a viable, long-term strategy. Much like a family in a financial crisis tempted to pay monthly bills with a high-interest credit card, the strategy may seem the only option to meet desperate needs in the short term. But with each month, the short-term “solution” exacerbates the underlying problem and eventually exhausts all resources, creating a more desperate crisis. In our view, sacrificing inpatient civil psychiatric services to meet competence restoration needs is a similarly expensive, short-term “solution” that actually exacerbates the underlying problems.
To be clear, there are also important philosophical and humanitarian reasons to protect the last remaining components of public, inpatient civil psychiatric services in Colorado. Several stakeholders—particularly long-term staff at the CMHI facilities—described these in compelling terms. But even the most utilitarian analysis leads to the same conclusion: Ending civil admissions to expand inpatient competence restoration has the perverse effect of incentivizing criminal charges among those who need psychiatric treatment. When competence restoration is the only route to inpatient psychiatric treatment for people with psychiatric illness and scant resources, those people become much more likely to receive criminal charges. This well-known phenomenon—sometimes labeled “the criminalization of mental illness”—is a primary cause of the current competency crisis nationwide, but it will also be an inevitable consequence of the Colorado competency crisis if civil beds are “frozen.” Eliminating civil psychiatric services only increases the underlying competency crisis.
We strongly encourage CDHS to abandon the “civil bed freeze” and any other strategies that drastically curtail civil psychiatric services. Though these may appear to be some of the only routes to punctual compliance with the Settlement Agreement, we anticipate they will exacerbate the competency crisis and so make long-term, sustained compliance far less likely.

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Regarding efforts to rent beds in private hospitals:
The CDHS Plan mentions pursuing contracts with private hospitals to treat “low-risk” defendants or “to receive some of the Department’s civil patients, in turn increasing inpatient capacity” at the state hospitals. Private hospital beds may be a perfectly reasonable choice for civil patients, and such a placement may help increase forensic capacity at the CMHI facilities. But private hospitals—particularly several private hospitals with small capacities (3 or 5 beds)— are poor choices for competence restoration. Providing consistent staffing and restoration services to incompetent defendants seems unlikely if the population is scattered across private hospitals. CDHS oversight of their status and progress will be inevitably compromised.
We encourage CDHS to maintain consistent care over those receiving inpatient competence restoration, rather than “spreading them thin” across the private hospital system, where it will inevitably be much harder to maintain quality control and consistent services. Rely on private hospitals for what they do best: providing acute care for civil psychiatric patients.
Recommendations regarding inpatient beds and community resources:
All stakeholders and leaders have acknowledged that CDHS “cannot build its way out” of the competency crisis by building inpatient beds, but rather that CDHS requires a continuum of care, particularly community resources. How, then, does CDHS best utilize beds as well as community resources? The CDHS Plan, in our view, requires a better strategy to direct those (and only those) who truly require inpatient care into inpatient restoration, and those suitable for various community-based interventions into those interventions. Such a strategy must be part of a comprehensive, cohesive plan (see Recommendation #1) and requires a thoughtful triage approach (see Recommendation #3). Combining these with strong data collection and data-based planning (see Recommendation #5) would allow CDHS to provide much more rigorous estimates regarding inpatient bed needs and community resource capacity. As CDHS leadership and all stakeholders have acknowledged, the solution is not deciding between

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inpatient beds or community resources, but providing inpatient beds and community resources, while using thoughtful guidelines to determine who requires which.
EXAMPLE: Arizona
Approximately 20 years ago, Maricopa County, Arizona, faced substantial challenges assisting Persons in Crisis (PICs) with mental health concerns. Law enforcement officers were picking up PICs and had nowhere to take them. Their only option was to utilize emergency departments (EDs) in hospitals at a cost of about $2500 per ambulance pickup and evaluation. Then the PIC would either stay in a medical bed for 3-5 days and be released back to the community, or—more often than not—get released back to the community within a few hours of evaluation with no structure for continued care. This inevitably led to a revolving door system of care, because the system was geared to only attend to the crisis event as opposed to the continuing needs of a person with mental illness. Furthermore, when an officer made the transport to the ED, the officer would often have to wait in excess of three hours for the PIC to be evaluated, only to eventually be told that the person was not being admitted. As officers became frustrated with a broken system, it became much easier for the officer to arrest and detain the PIC as opposed to spending hours with the PIC in an ED where they rarely received effective care. Increased criminalization of the mentally ill led to an increased burden on the courts as they were now being overloaded with individuals with severe mental illness who then required evaluations for adjudicative competency and criminal responsibility.
Significant system change began with officers who worked for the Phoenix Police Department but understood larger systems issues. They developed Crisis Intervention Teams (CITs) to train law enforcement officers to interact more effectively with PICs, as well as build collaborative relationships between systems. Through their efforts, ultimately the state assisted in funding stand-alone psychiatric drop-off facilities for law enforcement and other first responders.
Twenty years later, in present-day Maricopa County, the following protocol is in place for assisting a PIC:

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1. A PIC (or an individual assisting a PIC, such a law enforcement officer) contacts the 24-7 crisis center hotline for help (the crisis center receives approximately 21,000 calls per month);
2. Approximately 90% of those calls are de-escalated on the phone with no need for additional follow-up;
3. Of the remaining 2000 calls per month, crisis mobile (2-person) teams physically respond to de-escalate in the community;
4. Crisis mobile teams are able to stabilize approximately 72% of PICs in the community;
5. PICs who cannot be stabilized in the community are taken to an Urgent Psychiatric Center stand-alone facility (i.e., not part of a hospital) by crisis mobile teams (approximately 560 people/month);
6. Law enforcement officers can also request the assistance of a mobile crisis team or bring PICs directly to one of the urgent psychiatric stand-alone facilities.
As compared with a multi-hour wait time at an ED, law enforcement officers now enjoy a wait time of between one and seven minutes at three drop-off facilities in Maricopa County.
The urgent psychiatric facilities each have approximately 50 dedicated recliner chairs to assist someone in detox or psychiatric crisis for up to 24 hours. As the 24-hour time limit approaches, PICs are further triaged to determinate if they could be stabilized by a shortterm inpatient stay at the urgent care facility (i.e., 7-10 days) or if they need to be transferred to a state psychiatric hospital. Individuals with criminal justice involvement are typically transferred to a state hospital in order to receive forensic evaluation and restoration services.
Upon release from any of these levels of care, PICs are linked with intensive case management, behavioral health homes, and other services to help manage individuals with severe mental illness in the community.
Of course, the Arizona model is not perfect for every state, but it serves as an illustration of a comprehensive plan to match people with the level of care appropriate to their needs, reserving inpatient admissions for those who most need them, and offering a continuum of community-based services for those who do not.

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Recommendation 3: Further prioritize outpatient competence restoration
A key example of prioritizing community services over inpatient services—and a key strength of the CDHS Plan—is the emphasis on increasing “outpatient” competence restoration, both in the community and in the jail. Nearly every state that has improved competency services has included outpatient restoration as a key component of their plan. As of recent reviews, at least 16 states use some form of outpatient restoration services, and several have comprehensive state-wide outpatient restoration services.9
We affirm the CDHS efforts to pilot outpatient competence restoration services (OCR)10, and expand OCR upon preliminary evidence of success. Indeed, our interviews with Kathryn Davis (Program Director of Outpatient Restoration Services) suggests even broader (or soon-to-be broader) implementation of OCR than is detailed in the CDHS Plan. Similarly, the RISE program is a particular strength of recent CDHS efforts. It appears11 to provide necessary restoration services in a jail unit while separating the restoration program from general jail population, thereby mitigating many of the common concerns about jail-based restoration. We therefore
9 “Lookin’ for beds in all the wrong places: Outpatient competency restoration as a promising approach
to modern challenges,” by Gowensmith, Frost, Speelman, and Therson (2016), Journal of Psychology, Public Policy, and Law, 22, 293-305. This article summarizes results of a nationwide survey of state forensic mental health directors regarding their state’s statutory authority for, and implementation of, formal outpatient competence restoration programs.
10 We recognize that CDHS uses the term “outpatient competence restoration” to include both community-based and jail-based settings. The larger literature generally restricts the term to community-based settings. In this report, the terms “outpatient competence restoration” and “OCR” will be refer only to community-based restoration.
11 In our role as court monitor, we anticipate site visits in the near future to better learn the details of particular CDHS initiatives. Given the tight timeline to construct this report responding to the CDHS Plan, and our priority on other site visits and interviews (listed earlier in this report), we have not yet visited RISE or community-based competence restoration programs. Our impressions are based on information we have read in the CDHS Plan or heard in collateral interviews.

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tentatively support the CDHS Plan’s proposal to expand RISE in a new county correctional facility, but only if the same parameters of the current RISE program are kept intact. In our view, these steps toward state-wide OCR services are a crucial step toward better allocation of resources and long-term compliance with the Settlement Agreement, provided they are implemented with strong quality control (see Recommendation #7). Indeed, subsequent to legislative action (SB 17-012), the Department has the responsibility and authority to widely expand these services. Therefore, we encourage CDHS to go even further in implementing outpatient competence restoration.
Although CDHS has mentioned some concerns about expanding OCR, these seem largely surmountable. For example, during interviews with the Department, we heard several concerns that judges did not order OCR often enough, that many CMHCs did not want to provide OCR, and so forth. Likewise, the CDHS plan mentions the following:
While a court’s ability to order a defendant inpatient for a competency evaluation is somewhat limited by statute, there is no similar limitation concerning orders for inpatient competency restoration…. And so, an overwhelming majority of defendants ordered to receive competency restoration services are required to do so on an inpatient basis at …CMHIP.
This challenge reveals at least two opportunities for intervention: First, statutory changes are rarely easy, but some states have indeed changed statute to prioritize outpatient restoration. Second, judges’ tendency to order inpatient restoration is not immutable. Departments (comparable to CDHS) in other states have initiated state-wide interventions to educate the judiciary, essentially teaching judges to prioritize outpatient restoration as the default option, and order inpatient restoration only when necessary. In short, most of these perceived barriers to OCR can be addressed with a comprehensive statewide plan. Wide-scale implementation of OCR works best with a comprehensive “roll out” that not only launches services, but explicitly changes policy, educates judges, and educates evaluators.
Finally, CDHS reported that judges express an understandable wariness about OCR due to the risks (e.g., violence, failure to appear, substance abuse relapse) that some defendants pose

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when released to the community. We recommend a triage approach to assessing these risks (Recommendation #4), but we also recommend that CDHS consider making better use of some of their existing resources to manage these risks. For example, CDHS appears to have a welldeveloped Forensic Community Based Services (FCBS) with well-established procedures for managing not-guilty-by-reason-of-insanity (NGRI) acquittees who are on conditional release in the community. We see no reason that this program—with its ideal staffing ratio, wellestablished procedures, and established expertise—could not be extended or modified to provide supervision and case management for defendants engaged in outpatient competence restoration. This would be a step towards making OCR more viable for more defendants and more palatable to the courts, and it would also be a step towards making the CDHS services more comprehensive and cohesive (see Recommendation #1). As best we can tell,12 FCBS represents a “hidden gem:” a good CDHS service that is currently operating in isolation, but could be expanded and better integrated to help address the current competency crisis.
Recommendations regarding outpatient (community-based) competency restoration:
CDHS need not implement OCR exactly the way other states have (each state has unique needs), but they could benefit from a planned, comprehensive, wide-scale “roll out” of interconnected OCR services. This kind of wide-scale implementation certainly does not preclude pilot projects; indeed, pilot projects are often crucial to inform and develop more wide-scale efforts. But, ultimately, the CDHS Plan to attain compliance with the Settlement Agreement should rely on comprehensive and cohesive efforts (see Recommendation #1) to implement wide-scale OCR, in a manner that ensures high-quality services (see
12 Again, we could not conduct a comprehensive visit or review of FCBS while we were prioritizing other site visits and interviews in order to complete this report on a tight timeline. Our impressions are therefore based primarily on our interview with FCBS Director Bill Martinez, and favorable comments from other stakeholders. We cannot be sure the FCBS can aid OCR in the way we hypothesize above, but we certainly consider this a promising possibility. It serves as another way CDHS could better integrate (make cohesive) some of the strong resources they already offer.

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Recommendation #7). Again, we affirm the CDHS efforts to develop OCR, and encourage them to forge ahead in thoughtfully implementing wide-scale, high-quality OCR.
Virginia’s approach to launching OCR is a good example of a coordinated, comprehensive, and successful “roll out” of OCR that encouraged statewide implementation and uniform services.
EXAMPLE: Virginia
When Virginia faced waitlists for inpatient competency restoration services, they implemented a comprehensive plan to “roll out” outpatient restoration services for defendants who could be restored to competence outside of a hospital. Of course, doing so required educating all stakeholders as well as changing the longstanding practice of relying solely on inpatient restoration. Among the coordinated steps by the Virginia Department of Behavioral Health and Developmental Services (DBHDS) were the following:
1. Virginia changed statute to specify that OCR was the default restoration approach. Judges were instructed to order outpatient restoration unless there was clinical need for inpatient services.
2. Virginia DBHDS held coordinated trainings for judges, educating them on the new statute and the OCR system.
3. Virginia changed the statute governing competence evaluations to direct evaluators, when they opined a defendant was not competent, to offer a clinical recommendation for inpatient or outpatient restoration.
4. Virginia DBHDS, as part of its training program for evaluators, educated them to offer the recommendation regarding inpatient versus outpatient restoration.
5. Virginia DBHDS developed a series of jail-based restoration programs. 6. Virginia DBHDS contracted with all community mental health centers to include OCR
among the community services each clinic provided and to include forensic-savvy staff who were able to provide OCR. 7. Virginia DBHDS contracted with the University of Virginia to develop restoration curriculum and train all restoration providers to provide high-quality restoration services. Identical trainings and curriculum throughout the state ensured that restoration services were uniform across the state. 8. After implementation, Virginia continued to monitor OCR services (including restoration rates, quality measures, etc.).

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Recommendation 4: Prioritize a triage approach over traditional waitlist approach
All defendants have a constitutional right to face their charges and assist counsel with adequate understanding. Stated differently, all defendants have a due process right to be competent, and therefore incompetent defendants have a right to competence restoration services. However, not all defendants require exactly the same treatment for restoration. Defendants may be incompetent for different reasons; some require inpatient psychiatric care and some do not.
Modern, best-practice competency services systems function, in some ways, like a hospital emergency room. Those with the most acute treatment needs receive priority access to more intensive interventions, whereas those with less urgent needs may receive less immediate and less intensive services. Likewise, more acutely ill defendants will receive clinical restoration services more quickly than more stable defendants. This service delivery is not equitable in the strictest sense, but it bests allocates limited resources and prioritizes those with greatest needs in a way that best reduces suffering and clinical decompensation.
Compare the modern model above with traditional competency services systems that function more like the Department of Motor Vehicles. Defendants, regardless of need, “take a ticket” and receive service (usually the same service) in the order they appear. This model may have been accepted in an era that prioritized inpatient care and enjoyed ample bed space. But this model is increasingly untenable and undesirable in an era that prioritizes community-based care and has scarce inpatient beds available. The triage model is also inconsistent with more modern approaches to matching level of service with level of need (including both clinical and criminogenic needs).

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Regarding the current CDHS competency services system:
The current CDHS competency services system is not entirely a traditional, “take a ticket” system. Admirably, CDHS now manages a greater variety of competence restoration settings and resources, ranging from inpatient hospitals to jail-based placements to community-based settings. This places Colorado among the more modern, best-practice states that support a continuum of restoration options. Again, we affirm the options for outpatient restorations in the CDHS Plan.
However, there is still considerable delay in Colorado for many defendants to access any of those restoration options. One reason for the delay is that courts receive little case-specific information when ordering competence restoration. Currently, CDHS does not routinely provide courts with clinical information that could influence court-ordered restoration placement decisions. Indeed, it appears that the only current way for incompetent defendants with acute treatment needs to “jump the line” is with a show-cause order from the court. However, it is not clear to us whether all defendants with a show-cause order are indeed in need of urgent treatment, or whether all defendants in urgent need of treatment receive such an order. In short, the show-cause orders are not necessarily a reliable means for prioritizing admissions. CDHS requires a better, more consistent strategy for identifying which defendants warrant which restoration services.
Moreover, CDHS leaders have been clear for several years that not all court-ordered admissions to CMHIP warrant inpatient hospitalization. Criteria for inpatient admission can vary and may not always equate to the strictest “imminent danger” criterion. However, current CDHS administrators have, they reported, very recently identified a preliminary set of clinical hospital-level criteria with which to compare to the clinical acuity of incoming patients (see Recommendation #5). Although preliminary, administrators recently estimated that approximately 10-20% of people adjudicated incompetent and ordered to inpatient restoration

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do not meet hospital-level clinical criteria (that is, they do not warrant hospitalization).13 Of course, sending defendants to hospital-level care when unwarranted reduces inpatient space available to those who truly need it. Even a 10% difference (i.e., admitting 10% more for inpatient restoration than truly warrant inpatient care) can result in significant delays for those who legitimately require inpatient hospitalization.
Regarding clinical eligibility versus legal suitability:
Typically, two main variables are at play when determining restoration placement: clinical eligibility and legal suitability. These two concepts operate largely independently of one another. First, incompetent defendants have a continuum of clinical needs, ranging from those who are reasonably stable to those who are acutely, severely psychotic and warrant immediate inpatient treatment. These needs determine “clinical eligibility,” in that different clinical needs require different levels of clinical care. Second, defendants vary according to their criminal charges and risk management needs, ranging from misdemeanants and non-violent defendants to the most serious of violent felony offenders. Courts must also therefore determine the “legal suitability” of placements; the defense, prosecution, and judges must weigh various placement options from a risk management / public safety perspective.
Some defendants may be clinically appropriate for community restoration but not legally suitable. Conversely, some may be legally suitable for the community, but clinically require inpatient care. But there are many times both variables align for the same placement.
13 We encourage CDHS to develop more formal criteria for determining which incompetent defendants truly warrant inpatient care, and then use these criteria to analyze admissions. The clinical criteria used for these estimates were not shared with us, so we cannot comment on the accuracy of the 10-20% estimate that CDHS recently offered. Furthermore, of the few CDHS representatives that had attempted any formal estimates of this issue, they provided different figures (and those asked to provide informal estimates provided even more divergent figures). However, identifying and sharing the criteria for inpatient treatment is an important quality-management procedure that can help inform decisionmaking and related priorities (e.g., educating courts, prioritizing earlier assessment and triage, etc.). We discuss this issue further in Recommendation #5.

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Assessment of both clinical eligibility and legal suitability are essential to adequately inform optimal restoration placement.
Regarding the role of triage:
The CDHS Plan is largely silent on the issue of triage. Monthly reports and other data sources do not appear to address clinical needs or underlying basis for incompetence (e.g., acute psychosis, intellectual disabilities, etc.). The CDHS Plan could do much more to incorporate a triage approach to competence restoration services, tailoring the right service to the right defendant. Many states and jurisdictions employ a triage system to quickly assess clinical eligibility and legal suitability to nimbly and rapidly provide placement decisions for incompetent defendants.
Whereas a strength of the CDHS Plan is that it includes a continuum of services, a weakness of the CDHS Plan is that there is no mechanism to provide the court with a timely assessment of clinical and criminogenic needs that will help the court make placement decisions. Historically, there has been no mechanism for providing such information in a timely manner. However, recent initiatives—such as the 29 “Bridges court liaison” positions recently created across all 22 jurisdictions through SB 018-251—now make a triage approach more viable than ever. Additional CDHS positions could supplement these liaison positions by tying clinicians to various courts to provide quick competence screening or clinical screening, advising the court on placement options.
For example, imagine a model with the following components: 1. Each court has a neutral liaison (see SB 018-251) who can assess a defendant’s
criminogenic needs. This liaison has access to risk-related information such as criminal histories, criminogenic factors (e.g., housing placements, employment, education), and previous failures on community release. The liaison provides this information to the court at the time of the competency hearing.

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2. Forensic evaluators, in addition to assessing competence, also assess each defendant on specific clinical criteria for inpatient care. Evaluators provide an opinion on competence and, for those defendants they opine are incompetent, a recommendation regarding level of clinical care.
3. When the court adjudicates a defendant incompetent, the court considers both risk (and criminogenic needs) and clinical suitability.
4. Courts coordinate with a court liaison and/or forensic coordinator (see Recommendation #6) to determine if outpatient restoration is an immediately viable option. If so, the defendant is ordered to outpatient restoration immediately.
5. For those not clinically eligible or legally suitable for outpatient restoration, the court sends both sets of recommendations to CDHS OBH administration upon finding the defendant incompetent.
6. OBH administration prioritizes inpatient admissions for those that meet applicable clinical and risk management criteria.
7. For those defendants not suitable for outpatient restoration, but also not meeting the highest levels of clinical acuity, mental health personnel provide assertive assessment and treatment in the jail until inpatient admission occurs (still adhering to appropriate maximum timeframes still in place).
Caveat:
We consider a triage model like this ideal, but it cannot be implemented hastily (see Recommendation #7 regarding quality control). Currently, there is no statutory guidance or CDHS guidance for forensic evaluators offering opinions about clinical criteria (indeed, no such criteria appear to currently exist). Well-informed opinions require collateral information review that is not routinely accessible to the evaluator in a timely fashion. Lastly, formulating riskrelated opinions take time, both at the assessment and writing stages, which runs counter to the current pressure to complete competence evaluations in a timely manner. Finally, we do not advocate for court services evaluators to opine on criminogenic risk or related placement

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decisions; the above issues are only more pronounced in such circumstances. Any changes to evaluator duties (and delineating duties for new court liaisons) will take careful, thoughtful planning.
Recommendations regarding a triage approach:
We strongly encourage CDHS to develop a triage system to provide the court with clinical eligibility and legal suitability information at the time of the competency hearing. Within such a triage system, clinicians must still assess and treat the individuals assertively. Those who do not receive immediate inpatient treatment still require treatment and monitoring. If a defendant appears to become competent while awaiting transfer to an inpatient facility, a process for quickly providing that information to the court is critical. More importantly, if defendants show signs of increasing clinical acuity, they must be prioritized for inpatient transfer. Of course, reasonable maximum timeframes must still apply to all defendants waiting in jail who have been ordered to competence restoration, regardless of their levels of clinical stability.
EXAMPLE: Virginia
The Region-IV Jail Team: The Region-IV Jail Team in Virginia employs a comprehensive approach that involves identification, treatment, and management of persons with mental illness in a jail setting. The jail team is unique because it partners with multiple agencies, including a maximum-security state hospital, several local jails, and community mental health centers within a particular region of central Virginia. The team is designed to divert offenders (when clinically appropriate) from inpatient competence restoration and is comprised of a forensic psychologist, restoration counselors, a jail diversion coordinator, and an administrative assistant. The team works collaboratively with Central State Hospital (CSH) to identify defendants who are on the forensic waitlist and assess if they are appropriate for restoration services in the jail. Conversely, defendants who are more acutely ill and in need of inpatient restoration are identified early and scheduled for rapid admission to the state facility. The courts in the region can also order jailbased restoration directly. For individuals returning to the jail following inpatient restoration services, the jail team provides a critical role in maintaining competence while the defendant awaits a disposition in their case, and, if needed, will advocate for earlier court dates to reduce

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the likelihood of decompensation in the jail. The jail diversion coordinator’s main function is to close the gaps for persons with mental illness who are reentering the community. The coordinator will follow the individual for 30-60 days post-release to aid in continuity of care from the jail back to the community, a critical time for those needing service linkage to multiple agencies to address multiple needs. The Region-IV Jail Team is unique in that it closes the gaps between the state facility, the jails, the courts, and the community, following the defendant at all points across these interwoven systems.
Eastern State Hospital: Forensic and civil orders for treatment in eastern Virginia rose steadily over the last several years, leading to at-census or over-census bed use at Eastern State Hospital (ESH), with no plan to allocate additional beds. This catchment area has the largest number of forensic admissions of any in the state, serving 67 different court jurisdictions (six of which have mental health dockets and/or courts), all of which create additional layers of complexity to coordinate services across all of these systems. Further, Hampton Roads Regional Jail, coined by the Daily Press “by default, Virginia’s largest mental hospital” is in this catchment area.
The constant flow of pretrial and emergency admissions prompted a careful examination of their inpatient restoration system. In January 2016, the Department of Behavioral Health and Developmental Services (DBHDS), Eastern State Hospital (ESH), and Central State Hospital (CSH) developed a position to screen and assess persons in Hampton Roads Regional Jail (HRRJ) ordered to inpatient restoration. The position triaged clinically fragile inmates for rapid admission to the state facilities, advocated for their medical needs in the jails, and aided in coordinated reentry planning with our local community mental health centers. Management and oversight flows through the pretrial forensic coordinator at ESH. The approach is that of a boundary spanner communicating directly with the jails, medical staff, local community services boards, and the state facilities to provide a continuum of care for vulnerable individuals that crosses institutional boundaries.

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Recommendation 5:
Make better use of data
The CDHS Plan lacks adequate, specific data on which to base its projections and recommendations. The Plan rarely mentions source material or calculations for projecting service needs, raising doubts about the accuracy of some of those projections. The same is true for calculations of inpatient bed space, CMHC capacity, financial estimates, and other key considerations. Several areas of the plan include no data whatsoever. Moreover, little is written about the need for data, leaving us to wonder what role data plays in planning. Of course, in a period of crisis, CDHS may rightly prioritize service delivery over data collection. But data collection and management are crucial to planning and delivering services.
As alluded to previously, an ideal CDHS Plan would have included well-researched estimates of the proportion of CMHIP patients who actually met admission criteria and warranted inpatient treatment versus the proportion of patients ordered to receive inpatient restoration even though they did not truly require inpatient treatment. These data are a starting point to inform basic planning questions (e.g., How many inpatient beds do we truly need? How many individuals would be appropriate for outpatient restoration?). But when we asked CDHS personnel about such data or estimates, we received widely discrepant estimates. Fortunately, one CDHS staff appeared to track such data (Dr. Victoria Gallegos of CMHIP).14 Separately, CDHS leadership reported that they had also, very recently (within the last month), begun considering similar questions and offered a somewhat different estimate. Unfortunately, these efforts did not appear to be coordinated, and the estimate from leadership appeared to reflect a very recent exercise. These empirical questions should have been part of the problem-solving
14 Dr. Victoria Gallegos of CMHIP seemed to maintain important hospital data, and was the only CDHS leader we interviewed who was able to consistently answer questions with specific data. She was able to understand, share, and explain that data well during our brief interview. Our impression is that CDHS could go much further in making use of her data collection, management, and expertise.

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process for years. Such basic data are crucial to an effective plan, and it is necessary to inform questions about inpatient bed needs, community resource capacity, and the best strategies to serve the population of incompetent defendants across the continuum of care.
Currently, the potential for a truly data-informed system at CDHS remains unrealized. During some interviews with CDHS staff and other stakeholders, we were encouraged to hear that programs were collecting some form of data. During other interviews, we were concerned that CDHS staff or leadership could not provide basic (even estimated) data, such as census estimates or estimated patient populations in various settings. On the one hand, many people we interviewed seemed to recognize, at least in principle, the importance of tracking data. On the other hand, many people we interviewed seemed to lack a fluency with CDHS data or understand how such data could be useful to inform decisions and services. This underscored our concern that data was not meaningfully incorporated into the important work of CDHS employees, such that staff and units may be operating in ignorance about key elements of their work.
Given the minimal data in the CDHS Plan and the relatively few data-specific answers during our interviews, we continue to have many unanswered questions about the role and use of data in CDHS. The origins of most CDHS data are unclear. The process of data collection is also unclear. Beyond the data from Dr. Gallegos at CMHIP, we cannot determine, for example, how particular data come into the CDHS office, who manages them, or who analyzes them. It is critical to have clear processes for data collection, identified channels for data transmission, clearly reported data, and dedicated personnel for data management in order to develop and maintain a data-driven system.
Regarding the accuracy of CDHS data:
Beyond the concerns about gaps in data, there are some credible concerns about the accuracy of some CDHS data that does exist. Disability Law Colorado (DLC) staff reported that much of the data they received from CDHS in 2015 were revealed as inaccurate when they called jails,

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hospitals, or families or otherwise checked on the status of individuals. That inaccuracy led to the reopening of the previous settlement agreement and has continued to be a divisive issue since. It led to a great deal of lingering mistrust between DLC and CDHS. Improving accuracy in future data reports will be essential to repair trust and to accurately informing policy and service delivery.
Recommendations regarding a data-informed system:
Beyond specific concerns about data gaps and data accuracy, our primary recommendation is for CDHS to better prioritize the role of data in their routine operations and planning. Some areas for better data collection and data-driven recommendations include the following:
• Court services (e.g., referral sources, defendant demographics, evaluation information, base rates of opinions, time frames or causes for delays)
• Short-term and long-term bed projections (based on population, age, service needs, the 2015 WICHE study, and other sources)
• Financial costs of each outpatient and inpatient program • Operational variables and outcomes of Bridges court liaison program • Restoration time frames across different types of patients and settings
The above are just some examples, and many other areas need data-driven and data-informed policies. The need for effective data collection, management, and dissemination appeared pervasive across CDHS.15 Fortunately, the inception of several new programs (e.g., outpatient restoration, Bridges, etc.) provides an excellent opportunity to begin data collection with each. Effective data-driven systems help employees experience data as critically important, easy to use, and directly meaningful to their work. We recommend stronger efforts from CDHS to create
15 Again, an important exception was Dr. Gallegos’s data collection at CMHIP. However, it was not clear to us whether CDHS leadership or CMHIP operational staff was benefitting from these data.

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meaningful, effective, and transparent data collection, management, and dissemination policies, procedures, and infrastructure.
Though a thorough recommendation for data management and data-based planning is far beyond the scope of this report, we provide a case example below. Our perspective is that the CDHS Plan could be greatly enhanced with more detailed data, and that ongoing compliance efforts will require better data tracking and greater transparency with that data.
EXAMPLE: Hawaii
One example of data-driven planning comes from the state of Hawaii’s Adult Mental Health Division. The Courts and Corrections branch is responsible for court-ordered evaluations of competence, sanity, and need for hospitalization. The state of Hawaii has experienced the same dramatic rise in competence evaluations from 2008 to present that Colorado and most other states have experienced. In 2010, the branch created a data system to collect information regarding referral sources, demographic data, and forensic opinions. The data were intended to better inform administrators about trends in referrals and outcomes. Branch clerical staff maintained a database of referral information, evaluators completed brief data sheets for each evaluation, and administrators created a system to analyze data across a variety of variables.
These data were useful in many ways. Courtrooms and counties with high rates of referrals but low rates of incompetence findings were targeted for judicial training and education. Base rates of competence and sanity opinions were collected to compare departmental rates against national norms, as well as to identify and educate evaluators that strayed significantly from expected ranges of base rate findings. Finally, comparisons of opinions on multiple-evaluator cases as well as the creation of a peer-reviewed report quality improvement system allowed for a better understanding of variables that lowered evaluation reliability, validity, and quality— setting the stage for specific training emphases at annual evaluator trainings. Implementing this data-focused procedure was fairly simple for evaluators and clerical staff alike; in the modern age, handheld technology and portable computers make it even easier to code brief fields of data almost immediately.
Again, this example is meant to be illustrative, not prescriptive. Some pieces may fit for CDSH, some may not. The intention is to encourage CDHS leadership to consider how a richer data system can impact and improve efficiency, planning, and client outcomes.

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Recommendation 6:
Create a central system of easily-accessible information for stakeholders
Many stakeholders described practical difficulties that arise because CDHS lacks a centralized point of contact to provide immediate information about specific individuals and programs. Stakeholders conveyed that they do not know whom to contact (or how to contact) the appropriate CDHS personnel with emergent questions that could inform decision making and treatment planning. Likewise, our understanding of the CDHS Plan is that it lacks any central mechanism to obtain data on a particular defendant receiving restoration services.
Several states and jurisdictions employ these types of centralized positions or provide an accessible access point for obtaining this information. At times, the access point is a specialized department or office in the forensic services branch. In other systems, specific positions are used for this function; they are often called forensic coordinators, boundary spanners, forensic liaisons, or forensic network specialists. Regardless of the name of the office or personnel, the goal is essentially the same: provide an easy and consistent access point for approved stakeholders to obtain current information about forensic clients and programs.
In our interviews, stakeholders were often frustrated by the lack of current information about forensic clients and programs. For example, attorneys reported difficulty knowing about their client’s progress through competence restoration, the status of competence evaluations, current competence restoration placements, or the possibility of openings in specific community-based forensic programs. Likewise, clinical workers and CDHS line staff reported difficulty understanding treatment and placement options, accessing legal documents, or knowing dates of upcoming court hearings. This lack of information slows the forensic process unnecessarily—court hearings are delayed or reset, patients stay in unnecessarily restrictive placements (or county jails) when alternative placements may be available, and so on.
Forensic coordinators (to use one of the many position titles mentioned above) alleviate this inefficiency. They know where each client is at all times—which housing placement, which

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clinical program, which jail, which hospital, and so on. They have contact information for the relevant professionals surrounding the client’s care—psychiatrist, case manager, housing provider, court clerk, restoration provider, etc. They have copies of relevant court orders and treatment plans. At times they provide limited treatment services (such as psycho-education or some components of competence restoration). And they retain permanent assignment to these cases as long as any forensic involvement continues, regardless of housing placement, rehospitalization, or rearrest.
This type of structure provides several benefits. Primarily, it serves as an important liaison for the forensic client’s network. The coordinator receives and provides updates with all of the client’s stakeholders, allowing updated information to flow to everyone invested in that client’s success. The coordinator can also provide updated information to the court regarding community-based placement options or program availability. Also, if problems emerge with a client, the coordinator can work among systems to arrange for adjustments to placement or supervision. Finally, by being permanently assigned to specific clients, the coordinator can provide historical clinical and risk information to the ever-changing cast of providers, officers, attorneys, and other stakeholders that surround that client.
The information must of course be governed by privacy and confidentiality laws, and policies and procedures must be clear about who can obtain what information. It is also important to note the difference between these types of positions or offices versus the newly-created court liaisons through the Bridges program (the two types of positions may appear similar at first glance). The court liaisons are employed by the judiciary and appear to be primarily focused on providing courts preliminary information about criminogenic risks and readiness for placement on bond. They provide criminogenic, non-clinical screening for courts to manage early decision making. While clearly important, these positions are not clinical; as such, they are unlikely to have up-to-the-minute information related to clients’ clinical services and programs. However, the forensic coordinator can provide an analogous service in the mental health system. As the court liaison is to the judicial system, the forensic coordinator is to the mental health system.

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In addition, the court liaisons are unlikely to follow cases or clients after initial decisions are made. Coordinators, on the other hand, will follow cases throughout their journey through the forensic mental health system. For these reasons, these types of positions are best housed within the jurisdiction of CDHS.
Recommendations regarding access to a central repository for forensic information:
There is no single “right” model for this type of infrastructure. Some jurisdictions use boundary spanners in administrative roles only, while others use them to provide specific clinical services. Some house this information in a central office, while some utilize a network of coordinators. Finally, some coordinate with law enforcement and jails to provide additional options for liaison and coordination. We offer these ideas not to prescribe a specific approach, but rather to (a) enhance the early promise and potential impact of the Bridges court liaison program and (b) to respond to several requests from stakeholders for such a system. We recommend that CDHS consider how such an initiative could complement the Bridges liaison program in providing immediate and current information to stakeholders across the clinical service provision spectrum.
EXAMPLE: Pennsylvania
The Forensic Support Team (FST) was established to work within the Philadelphia Department of Prisons (PDP) and support individuals who have been found incompetent to stand trial, are in jail, and await care at Norristown State Hospital (NSH). The goal of the FST is to increase the movement of individuals from PDP to NSH or a community service provider. In order to do so, the FST engages, evaluates, provides recommendations about, and supports individuals deemed incompetent to stand trial. To achieve this goal, FST works closely with the PDP, NSH, the Philadelphia District Attorney’s Office, the Defender Association of Philadelphia, the City’s Department of Behavioral Health and Intellectual Disabilities, and various community behavioral health providers. The FST is a six-person team comprised of one supervisor, one data and research assistant, one certified peer specialist, and three navigators.

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EXAMPLE: Hawaii
In 2005, a network of community forensic psychologists was created to provide resources to community mental health centers and the courts. These statewide positions are called forensic coordinators. Forensic coordinators’ responsibilities include the following:
§ Monitoring individuals on post-insanity acquittal conditional release, § Facilitating access to community-based competence restoration, § Updating and gathering information from mental health professionals and any
supervisory officers from the court, § Providing trainings to CMHC staff, § Facilitating inpatient discharges, § Adjusting community treatment plans as necessary to maintain clients’ community
tenure, § Maintaining databases of their interactions and outcomes, and § Maintaining up-to-date information about all forensic clients statewide (e.g., contact
information for housing, treatment, supervision, etc.).
Forensic coordinators follow their caseloads for as long as their clients maintain any forensic encumbrance (i.e., inpatient, outpatient, jail). This system allows for all stakeholders to have immediate access to experts who know and understand court-ordered mandates, clinical criteria, current status, and histories for all forensically-encumbered individuals statewide.

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Recommendation 7:
Prioritize quality, even amid quantity and time pressures
Lawsuits and settlement agreements are intended to spur rapid action. But rapid action sometimes prioritizes speed over quality. We affirm that the CDHS Plan reflects an effort to increase speed of service and meet goals within prescribed timeframes. We also affirm particular quality control efforts that were implied in the Plan. For example, the Plan mentions CDHS efforts to offer training to new competence restoration providers.
However, during collateral interviews, we also heard concerns that efforts to initiate or accelerate services sometimes led to hasty service and poor quality. For example, some interviewees mentioned a decrease in the quality of competence evaluations prepared under new quotas and “bonus” procedures. Others mentioned a lapse in various clinical services due to increased pressures. One of us was contacted by a newly contracted competence restoration provider who reported no knowledge or expertise in providing restoration services. The CDHS Plan proposes that court service evaluators should include more specific information about barriers to competence, and to utilize a dictation service to increase the speed of their report writing; we affirm both initiatives but only so far as the requisite time and training is allotted for both to occur competently. The competency services described throughout the CDHS Plan and our review are highly specialized services, which require hiring expert staff and/or training staff to a level of expertise. Implementing state-wide services requires statewide, shared standards and training to ensure uniform services. The CDHS Plan provides little detail regarding whether and how new or expanding services will be accompanied by efforts to ensure those services are of high quality.
Relevant to service quality, of course, is sufficiency of staffing. The CDHS Plan does emphasize efforts to increase staff and salaries, particularly at CMHIP, which we affirm as a crucial step. During our visit to CMHIP, it was clear that hiring, retention, and salary increase efforts were appreciated. But it was also clear that facilities remained short-staffed and morale remained

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quite low. Interviewees described many concerns about the quality of hiring processes, such as lengthy delays causing them to lose qualified candidates. At times this has resulted in other disciplines “filling in” for vacant positions (the lack of psychiatrists and psychologists in both hospitals is a vivid example, forcing nurse practitioners, social workers, and licensed counselors to perform duties assigned to other disciplines).
CDHS leadership has emphasized many of the barriers to hiring and staffing. For example, they need to hire specialized clinicians (e.g., forensic evaluators), psychiatrists can earn more in the private sector, Pueblo is not the most desirable urban location, and so forth. In our view, many of these barriers are surmountable. After all, all states have similar needs, and many states staff facilities in locations far less desirable than Denver or Pueblo. Salary increases are an important step, but there are other important strategies as well. Psychiatrist Dr. Martinez, who directs the forensic psychiatry fellowship affiliated with OBH, described his disappointment that graduating forensic psychiatry fellows opt not to work for CDHS in lieu of other employment opportunities. He described several inexpensive strategies—particularly establishing formal academic affiliation for CMHI-based psychiatrists with the University of Colorado—that could help recruit and retain the most competent and desirable candidates.
Other quality improvement efforts not only attract desirable, conscientious candidates, but also improve the work force already present. For example, several states include rigorous trainings for forensic evaluators and restoration providers – even when their parent mental health departments are in the midst of lengthy litigation, escalating referrals, and media pressures.
EXAMPLES: Virginia, Massachusetts, Florida, Oregon, and others • Decades ago, Virginia developed a partnership with the University of Virginia to provide
rigorous training in forensic evaluation. Even today, newly hired evaluators must complete a one-week training that addresses competence, sanity, report writing, expert testimony, and other skills crucial for forensic clinicians. Over the years, these collaborations have expanded and the state/university partnership has offered training

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to restoration counselors. The state now also maintains an oversight program, such that every court-ordered evaluation is reviewed by a state administrator who monitors quality and helps support or remediate evaluators whose work quality does not meet expectations.
• Massachusetts developed a similar training program. Massachusetts training and oversight program went even further in that new evaluators are mentored for one year and must submit repeated work samples for review. Ultimately, they are certified as a “Designated Forensic Psychologist.” Florida also provides evaluator training through a state/university partnership.
• More recently, Oregon established a forensic certification system in 2012 by House Bill 3100. The system not only educated new evaluators, but was designed to have a strong auditing function, so that certified evaluators would have their work reviewed, be provided corrective feedback, and—if necessary—have their certification withdrawn. Evaluators attain conditional, temporary, or full certification over time but are also required to attend a multi-day training every two years to maintain their certification status. It should be noted that this process was created even in the shadow of Oregon Advocacy Center v. Mink, a class action lawsuit predicated on competence-related waitlists and challenges identical to those that Colorado is facing.
In short, many states provide rigorous training and oversight to address the quality of evaluations and related services. These training and monitoring programs tend to be inexpensive and far more affordable than the costs that follow poor evaluations or other poor forensic services.
Recommendations regarding quality improvement and maintenance:
Even when facing significant pressure to initiate or accelerate services, we recommend that CDHS maintain a focus on quality. Interventions that enlist new staff or new collaborators should include a mechanism to ensure they are well-trained and well-qualified. New types of services should include quality control plans.

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Conclusions
As detailed above, we affirm many strengths in the CDHS Plan, the services CDHS provides, and (in particular) the strengths among the CDHS staff we interviewed. However, we also encourage CDHS to make better use of some of their resources, better integrate their services, and thoughtfully implement some additional services. Even amid their significant pressures, these services should be implemented with strict quality control, cohesively, and in the service of a broader comprehensive mission. We welcome all parties involved in the Settlement Agreement to contact us with questions about our review and recommendations. We thank you for the opportunity to assist the court in this manner.
Neil Gowensmith, Ph.D. President, Groundswell Services Inc.
Daniel Murrie, Ph.D.

 
 Case 1:11-cv-02285-NYW Document 82 Filed 06/13/18 USDC Colorado Page 1 of 22
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-CV-02285-NYW
CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO,
Plaintiff, v.
REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services, and RONALD B. HALE, in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo,
Defendants.
UNOPPOSED MOTION TO REOPEN ACTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT
Plaintiff, Center for Legal Advocacy, d/b/a Disability Law Colorado (“DLC”), respectfully moves the Court to reopen this action for enforcement of the settlement agreement between Plaintiff and Defendants Reggie Bicha, in his official capacity as Executive Director of
1
the Colorado Department of Human Services (the “Department”) and Ronald B. Hale, in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo
1
Ronald Hale has been replaced by Chief Executive Officer Jill Marshall, a caption change which the parties will make once the case is reopened. Upon reopening, Plaintiffs will add Dr. Robert Werthwein, Director of the Office of Behavioral Health, who is also responsible for the contractual and constitutional violations at issue.

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(“CMHIP”). This motion is deemed unopposed pursuant to the terms of the parties’ Amended and Restated Settlement Agreement ¶ 6(c) (Dkt. 78-1) (the “Settlement Agreement”).
Certification pursuant to D.C.Colo.LCivR 7.1 Counsel for Plaintiff and Defendants have communicated since June 2017 about the issues raised in this motion. These conferrals have included numerous letters, emails, phone calls, at least five multi-hour in-person meetings, a full-day stakeholder meeting and a follow-up half day settlement meeting. However, the parties have been unable to resolve what DLC believes constitute egregious breaches of the Settlement Agreement that settled this action twice previously. While this motion is deemed unopposed pursuant to the parties’ Settlement Agreement, Defendants have advised DLC that they do oppose the relief sought herein and they also oppose reopening to the extent the motion goes beyond challenging the Department’s invocation of departmental special circumstances.
INTRODUCTION 1. Despite consenting to two court-approved settlement agreements with DLC, the State of Colorado, through the Department of Human Services and cabinet-level officials, continues to disregard the constitutional rights of some of the most vulnerable members of our community—individuals who suffer from severe mental illness—by failing to provide timely competency examinations and restorative treatment. Through inaction, the State continues to unlawfully jail presumed innocent people solely because they suffer from mental illness. This situation is unconstitutional, unconscionable, and unacceptable. 2. The State claims that it lacks sufficient capacity to meet the needs of this helpless population, but ignores that it is statutorily charged with providing these mental health services and must timely do so to comport with due process. There should be no excuses, particularly
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after ten years of largely empty promises to fix the problem and address foreseeable increases in referrals. Rather than partner with and fund community mental health treatment centers or initiate and support legislative changes to remedy the current situation, the State has unconstitutionally used county jails as its own private self-storage to house the mentally ill. County jails are ill-equipped to provide the necessary mental health care and treatment to these individuals and lengthy stays further jeopardize their health and welfare.
3. Many pretrial detainees who are suffering from serious mental illness are being held in jail due to an arrest on minor offenses, but they cannot afford the most minimal bail to be released from jail as they wait resolution of their cases. A natural and desperate consequence of the extraordinary length of jail stays that are occurring in breach of the Settlement Agreement is that there is no place to keep detainees safe from themselves and other inmates while in jail except to lock them away in solitary confinement or “lock down.” Solitary confinement is far from therapeutic, and most of the time it is contraindicated for an individual who is experiencing psychosis or delusions. In some cases, while being physically restrained or forcibly taken to isolation, detainees may flail or intentionally hit the corrections officers who are trying to move them, resulting in felony assault charges being added to the list of criminal charges facing the detainee.
4. Recent studies show that there are more inmates suffering from serious mental illness housed in Colorado’s jails than at CMHIP. Currently, there are close to 300 individuals or 2000 individuals per year languishing in county jails in limbo. They are presumed, or have been determined by a judge, to lack the ability to proceed in their criminal cases, yet they remain locked up for an indefinite period of time waiting for the State to provide its competency examination or restoration services. The State is obligated under the terms of the Settlement
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Agreement to admit these individuals for examination or restorative treatment at CMHIP within 28 days. Some of these individuals have been waiting for more than 100 days. For those found incompetent and waiting for treatment at CMHIP, their wait can amount to five months from the date they were arrested. The wait times bear no relationship to the offenses these individuals have been charged with, which are often low-level and non-violent misdemeanor charges stemming from their mental illnesses. The result of these lengthy, unconstitutional delays is a vicious cycle. The longer the State makes these individuals wait for evaluation and restorative services, the more exacerbated their mental illnesses become, thereby leading to longer restorative timeframes and a higher likelihood that these individuals will be deemed permanently incompetent. In many cases, the wait times exceed the amount of time (if any) these presumptively innocent individuals would have served if they had pled guilty.
5. For DLC, Colorado’s federally-charged protection and advocacy system for people with disabilities, this is more than just a numbers game. Not only do the current delays violate the timeframes Defendants twice agreed to in the settlement agreements, they also are in violation of the United States Constitution. These individuals have the right to be treated with dignity and respect. For the pretrial detainees warehoused in Colorado’s jails, Defendants’ unconstitutional and unconscionable delays providing competency evaluations and restorative treatment are the result of ineptitude, a tragic pattern of institutional indifference, or both.
6. In the Settlement Agreement, Defendants agreed to timelines for handling inpatient competency evaluations and restorative treatment at CMHIP. Specifically, Defendants are required to offer admission to such persons within 28 days from when they are deemed ready for admission. Defendants are also required to maintain a monthly “days waiting” average of 24
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days. The purpose of these timeframes is to ensure timely evaluation and treatment of the mentally incompetent and to prevent the very circumstances that exist today.
7. If, however, the Department’s ability to meet the timeframes under the Settlement Agreement was impacted by a special circumstance outside of its control that is unforeseen or unanticipated, then the Department could invoke “Departmental Special Circumstances” to temporarily suspend the timeframe requirements of the Settlement Agreement for no longer than six months to allow the Department sufficient time to return to compliance.
8. Unfortunately, Defendants have made little effort to comply with the timeframes they reaffirmed only two years ago, and have instead abused Departmental Special Circumstances to excuse their conduct. Initially, the Department invoked Departmental Special Circumstances in June 2017. The Department re-invoked it in December 2017, on the day that it would have been in further breach, claiming it can consecutively invoke Departmental Special Circumstances for the same problem.
9. The problem with Defendants’ invocation of Departmental Special Circumstances is that: (1) Defendants cannot invoke Departmental Special Circumstances based on circumstances that are within their control and have persisted for more than a decade and by definition are not unanticipated or unforeseen; and (2) even if Defendants’ initial invocation in June 2017 was well-grounded (which it was not), they could not re-invoke Departmental Special Circumstances six months later in December 2017 for the same alleged reason. Under that logic, Defendants could re-invoke Departmental Special Circumstances every six months and never have to return to compliance. Allowing Defendants to misuse the Settlement Agreement by placing the timelines on hold for a year or more (or forever) eviscerates the agreement’s purpose
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to protect the constitutional rights of the mentally ill by requiring timely evaluation and treatment.
10. DLC did not come to this Court without exhausting all other options first. It has spent a year negotiating with the State. In late February 2018, DLC and Defendants held a stakeholder meeting lasting an entire day. The parties, prosecutors, public defenders, mental health practitioners, judges, state court administrators, and the legislative budget liaison participated to find solutions. At the stakeholder meeting, the State left DLC with the impression that it was negotiating in good faith and looking for long-term solutions.
11. The larger stakeholder group discussed proposed legislation that parties could accept and help solve the problem. The Defendants assured DLC it would support and pursue legislation that would help pretrial detainees and address the long jail wait times. The Defendants introduced a bill (SB-252) that would have reduced the number of pretrial detainees taking up beds at CMHIP and the jails. DLC supported SB-252 as proposed (as well as three other bills to help with the jail waits, all of which passed). The Defendants then revised the bill to add a provision that would have allowed them to keep pretrial detainees found incompetent locked down in jails for up to five months while providing some undefined type of jail-based restorative services—services which Colorado’s county jails are ill-equipped to provide and to date have never provided.
12. Jail-based restoration is unconstitutional. The Department’s former Chief Medical Officer (who resigned partway through the legislative process) had previously stated in similar jail wait litigation in Washington that such lengthy jail restoration was improper. The parties’ Independent Consultant submitted his report from similar jail wait litigation in
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Pennsylvania and his affidavit from parallel litigation in Louisiana which stated the same, and advised the Defendants of his opinion that unchecked and lengthy jail restoration is improper.
13. Nevertheless, the Department pushed for SB 18-252, claiming it was the only way to resolve this lawsuit and the State’s decade of constitutional violations. Had the bill been enacted, it would have lacked any meaningful protections for the thousands of mentally ill Colorado pretrial detainees who would have been subjected to the statute. The bill only failed when Colorado State Senator Irene Aguilar filibustered.
14. The Defendants’ continued inability to reduce wait times and willful disregard for the constitutional rights of this most vulnerable population shows that the State is unwilling, unable, or does not care to provide the constitutionally-mandated services for which it is solely responsible. As a result, after a year of conferral with the State, DLC seeks the aid of this Court to reopen the matter and enforce the Settlement Agreement (a role the Court expressly reserved for itself in the Dismissal Order), and permit the underlying claims to move forward based on the State’s continuing constitutional violations.
PROCEDURAL BACKGROUND 15. DLC initially commenced this matter on August 31, 2011. Dkt. 1. The complaint alleged that Defendants failed to timely admit pre-trial detainees in jails across Colorado into CMHIP, the State’s only forensic mental health facility, for competency evaluations and restorative treatment for those determined to be incompetent to stand trial. Id. This failure created unconstitutional delays to provide competency evaluations and treatment for up to 80 pretrial detainees, for as long as six months. Id. 16. The parties participated in several settlement conferences with now-retired Magistrate Judge Boland, which produced the first settlement agreement. Dkt. 51-1. The
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agreement was incorporated by reference in the Court’s Order of Dismissal on April 9, 2012 under Fed. R. Civ. P. 41(a)(2). Dkt. 52.
17. In July and August 2015, Plaintiff learned that Defendants had breached the Settlement Agreement, including by falsifying data in the monthly report, and moved to reopen the matter for enforcement of the agreement. Dkt. 53. After the matter was reopened by the Court (Dkt. 62), the parties engaged in mediation and again resolved the matter through the current Settlement Agreement, which was filed with the Court on July 28, 2016. Dkt. 78-1. This Court retained jurisdiction to enforce the Settlement Agreement. Id. ¶¶ 3, 4.
18. Less than one year later, Defendants again failed to meet the timeframes set forth in the parties’ Settlement Agreement. Declaration of Jennifer Purrington, attached as Exhibit 1, at Ex. A (6/22/2017 Notice of Invocation of DSC). As a result, on June 22, 2017, Defendants invoked Departmental Special Circumstances under the Settlement Agreement. Id. Defendants claimed that they could not comply with the Settlement Agreement timeframes due to “an unanticipated spike in court-ordered referrals for inpatient competency evaluation and restoration treatment services.” Id. at 1.
19. Under the Settlement Agreement, the Department’s invocation of Departmental Special Circumstances results in an automatic suspension of the evaluation and restoration timeframes for up to six months. Dkt. 78-1 ¶ 6(c). The Settlement Agreement, however, does not afford the Department any additional time to return to compliance if it remains unable to meet the timeframes set forth in the agreement after expiration of the six-month suspension period. See id.
20. On December 22, 2017—the day the Department’s six-month suspension period was set to expire—the Department sent DLC another notice of invocation of Departmental
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Special Circumstances. Purrington Decl., Ex. B (Dec. 22, 2017 Notice). In that notice, the Department claimed Departmental Special Circumstances due to an “unabated” and “sustained increase” in court orders for evaluation and restoration as the reason why the Department remained unable to comply with the evaluation and restoration timeframes set forth in the Settlement Agreement. See id. at 1-2.
21. It is undisputed that Defendants are out of compliance with the timeframes set forth in the Settlement Agreement. In his September 2017 report, the Independent Consultant charged with overseeing the Defendants’ compliance with the Settlement Agreement concludes that “currently the State is clearly failing to meet the deadlines contained in the Settlement Agreement.” Purrington Decl., at Ex. C at 4 (9/4/2017 Report of Independent Consultant).
ARGUMENT A. This Matter Should Be Reopened for Enforcement of the Settlement Agreement.
22. This motion is deemed unopposed pursuant to the Settlement Agreement. Dkt. 78-1, ¶ 6(c). The agreement states that if “DLC decides to challenge the invocation of Departmental Special Circumstances, it may do so by filing a motion to reopen the Action to seek enforcement of this Agreement. The Department agrees that it will not oppose a motion to reopen the Action challenging the invocation of Departmental Special Circumstances and DLC may designate any such motion as ‘unopposed.’” Id.
23. During the pendency of this action, the Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 2201-02, and 42 U.S.C. § 1983. Dkt. 80.
24. Upon dismissal of the matter, both originally and after the matter was reopened and resettled in 2016, the parties agreed that “the Court shall retain continuing jurisdiction over the settlement and enforcement of the Settlement Agreement for the duration of the agreement
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plus 60 days following the delivery of the final report made by Defendants under the Agreement.” Dkt. 52 ¶ 4; Dkt. 80 ¶ 4. The Court also retained continuing jurisdiction over the settlement and enforcement of the Settlement Agreement until after the conclusion of the term of the agreement under the authority of Kokkenen v. Guardian Life Insurance Co., 511 U.S. 375, 381-82 (1994), and Bell v. Board of County Commissioners, 451 F.3d 1097, 1103 (10th Cir. 2006). Dkt. 52 at 1; Dkt. 80 at 1.
25. The Settlement Agreement approved by the Court and incorporated in its dismissal order entered on July 29, 2016 remains in effect today and has not been modified or amended by mutual written agreement or waiver.
26. It is settled that the Court may reopen a case and retain jurisdiction over the implementation and enforcement of a settlement agreement when, as here, its dismissal order expressly states that it will maintain continuing jurisdiction. Kokkonen, 511 U.S. at 381-83.
27. Because the State cannot meet its obligations under the Settlement Agreement and has resorted to improperly invoking Departmental Special Circumstances to cover its failings, the Court should find good cause pursuant to D.C.COLO.LCivR 41.2 to reopen the matter to enforce the Settlement Agreement, without prejudice to prosecution of the underlying claims for the State’s continuing constitutional violations. B. Defendants Have Failed to Meet the Requirements for Conducting Competency
Evaluations and Restorative Treatment under the Express Terms of the Settlement Agreement. 28. The keystone of the Settlement Agreement is timeframes within which the Defendants are obligated to conduct competency evaluations and restorative treatment. See Dkt. 78-1 ¶ 2. Under the Settlement Agreement, the Department is required to admit all pretrial detainees to CMHIP for in-patient restorative treatment and competency evaluations within 28
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days of the pretrial detainees being deemed ready for admission. Id. at ¶ 2(a). The Department

also must maintain a monthly average of 24 days or fewer for all detainees for both competency

examinations and restorative treatment. See id.

29. The below chart details the Defendants’ failure to meet the Settlement Agreement

timelines since June 2017 for restorative treatment at CMHIP or its second facility in Arapahoe

County.

Month
June 2017 July 2017 August 2017 September 2017 October 2017 November 2017 December 2017 January 2018 February 2018 March 2018 April 2018 May 2018 Purrington Decl., ¶ 11.

Detainees on Wait List, 28+
Days 3 19 87 104 120 144
170 177 193 221 213 206

Average Wait Time
23.93 28.12 37.35 47.26 58.17 66.46 67.14 72.84 74.51 90.24 87.34 93.98

Longest Wait Time
29 45 56 68 88 87 129 129 114 133 136 142

30. Since June 2017, Defendants have failed to admit all pretrial detainees within 28

days of their ready for admission date and failed to maintain a monthly average of 24 days.

31. Based upon recent reports, wait times for pretrial detainees to be admitted to

CMHIP for restorative treatment have exceeded 100 days. The March 2018 data showed 221

detainees out of compliance for restoration, with the longest waiting 133 days. The April 2018

data are no better. A total of 213 detainees were out of compliance for restoration, with the

longest waiting 136 days. And in May 2018, there were 206 detainees out of compliance for

restoration, with the longest detainee having to wait 142 days in jail.

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32. The monthly averages for inpatient evaluation and restoration are nearly quadruple the 24-day average required by the Settlement Agreement. According to the March 2018 data, the average wait time for restoration was 90.2 days, 87.3 days in April 2018, and 94 days in May 2018. The State claims it will not be back in compliance until July 2019. By that point, it would have been in breach of the Settlement Agreement for 24 consecutive months.
33. It is estimated that 25-30% of pretrial detainees listed in the Department’s reports are individuals being held in jail as a result of an arrest on a petty, misdemeanor, non-violent, or drug offense. Tragically, the length of their detention while waiting for an evaluation or treatment exceeds the jail sentence they likely would have received if they had pled guilty on the day they were arrested. Many of these pretrial detainees are seriously mentally ill and in danger of harming themselves or others, and are victimized by other detainees as they wait for a humane environment to be evaluated and treated. See Purrington Decl., ¶ 12.
34. The Department’s abysmal effort in 2017 is part of an accelerating trend of failing to stay in compliance with the Settlement Agreement and the United States Constitution. In 2015, Defendants were unable to comply with the Settlement Agreement for ten of the twelve months. Id. at ¶ 13. In 2016, they were out of compliance for five out of twelve months. Id. In 2017, Defendants were out of compliance for the last seven months of the year. Id. It appears the Defendants will not be back in compliance until July 2019. The result will be a five-year period in which they have spent more time out of compliance than in compliance. C. Defendants Are in Breach of the Settlement Agreement through Their Improper
Invocation of Departmental Special Circumstances. 35. The Settlement Agreement recognizes “that to some extent the Department’s ability to perform its statutory obligations and its obligations under th[e] Agreement is based on factors beyond its control.” Dkt. 78-1 ¶ 6. To account for this, the parties built into the
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Settlement Agreement a mechanism that allows the Department to temporarily suspend the timeframe requirements of the Agreement through invocation of “Special Circumstances.” Id.
36. At-issue here is the Department’s attempt to invoke “Departmental Special Circumstances” pursuant to Paragraph 6(a)(ii) of the Agreement. The Settlement Agreement defines Departmental Special Circumstances as “circumstances beyond the control of the Department which impact the Department’s ability to comply with the timeframes set forth in Paragraph 2. Id. at ¶ 6(a)(ii). “This could mean an unanticipated spike in referrals, a national or statewide disaster impacting admissions decisions system wide,” or some other “unique” or “unforeseen” circumstance. Id. (emphasis added). Critically, the circumstance must be “beyond the control of the Department.” Id. (emphasis added).
(1) Defendants have improperly claimed Departmental Special Circumstances for circumstances within their control and which have persisted for decades.
37. In June 2017, the Department invoked Departmental Special Circumstances on the alleged basis that it “has experienced an unanticipated spike in court-ordered referrals for inpatient competency evaluation and restoration treatment services.” See Purrington Decl., Ex. A at 1; but see id. at 3 (claiming “[a] steady increase in the number of orders for inpatient restoration treatment,” rather than an unanticipated spike). The Department claims, in that letter, that the increase in referrals, combined with “a decrease in the number of discharges,” has “result[ed] in fewer beds available to meet the demand.” Id. at 3.
38. The Department’s December 2017 letter arguing for a second invocation of Departmental Special Circumstances states the same basis as the June 2017 notice: “the sustained increase in the number of court orders for inpatient competency restoration treatment has outpaced the Department’s capacity and is beyond its control.” Purrington Decl., Ex. B at 2.
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39. Departmental Special Circumstances invocations must satisfy two requirements.

First, the basis for invocation of Departmental Special Circumstances must be something

“outside the control of the Department.” Dkt. 78-1 at ¶ 6. In addition, that basis must be

something “unique” or “unforeseen.” Id. at ¶ 6(c).

40. The Department fails to meet either requirement. First, the Department’s recent

attempts to invoke Departmental Special Circumstances do not qualify under the express

definition of Departmental Special Circumstances because the basis for the Department’s

invocation—lack of capacity caused by an increase in referrals—is wholly within the

Department’s control.

41. Notably, the Department’s failure to maintain adequate facilities to keep up with

the pace of referrals is a problem that has plagued timely admission of pretrial detainees to

CMHIP for decades. See Dkt. 53 at ¶¶ 39-58; see also Dkt. 53-8 at ¶¶ 8-25. It, thus, cannot be

considered a “statewide disaster,” or otherwise “unique” or “unforeseen.”

42. In any event, the State’s own data shows their invocation is based on a false

premise. Below are the monthly totals of new evaluations and restorations.

Fiscal Year
June 2016 July 2016 August 2016 September 2016 October 2016 November 2016 December 2016 January 2017 February 2017 March 2017 April 2017 May 2017 June 2017 July 2017

In Patient Competency Evaluations 25 21 32 25 28 23 24 27 28 27 29 26 37 22
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In Patient Restorations
45 47 46 53 43 72 48 58 58 54 75 84 73 66

Case 1:11-cv-02285-NYW Document 82 Filed 06/13/18 USDC Colorado Page 15 of 22

August 2017

31

76

September 2017

30

66

October 2017

25

66

November 2017

19

76

December 2017

14

68

January 2018

19

77

February 2018

17

78

March 2018

30

65

April 2018

9

71

Purrington Decl., ¶ 14.

43. The data indicates that there has been no unabated increase. Evaluations have

increased and decreased but remained relatively flat over the last two years. As for restorations,

there was some increase leading into the spring of 2017 when they peaked at 84, but they have

since decreased back to a lower level.

44. The annual data for the last ten years further discredits the Defendants’ claim of

an unanticipated spike. The below table (based on information provided by Defendants to DLC)

shows the number of referrals for in-patient evaluation and restoration for each fiscal year from

2005 through 2017 and the percentage of change on an annual basis.

Fiscal Year

In Patient

Competency

Evaluations

2005-06

115

2006-07

144

2007-08

184

2008-09

238

2009-10

275

2010-11

276

2011-12

287

2012-13

355

2013-14

378

2014-15

415

2015-16

326

2016-17

327

Purrington Decl., ¶ 15.

% Change
25.2% 27.8% 29.3% 15.5% 0.4% 3.9% 23.7% 6.4% 9.7% -21.4% 0.3%

In Patient Restorations
167 224 219 170 212 213 268 274 342 462 550 711

% Change
34.1% -2.2% -22.4% 24.7% 0.5% 25.8% 2.2% 24.8% 35.1% 19.0% 29.3%

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45. The long-term data shows that evaluations have stabilized nearly 20% below the level they reached in 2014-15 (when the Department complied for most of the fiscal year). It is true there was a 29% increase in restorations in 2016-17, but the Department has seen six increases of at least 24% in restorations in the last ten years. When the Department has had five 24% or more increases in a short period of time, the sixth one cannot credibly be claimed to be “unanticipated.” At that point, the Department should be preparing for increases of that size most years and its failure to budget and plan for that is a failure within its control.
46. In sum, the State faces an increasing demand on its system. But the increase has been a trend for the last decade and thus cannot be characterized as unanticipated. The Agreement does not give the Defendants a pass from their constitutional duties for an increase, but only for an unanticipated one that is outside its control. There was nothing unforeseen and unique about the Department’s lack of capacity to handle the 2017 increases in demand for restorations and the Department’s own data undercuts its claimed increase. What is different is the State’s utter failure since June 2017 to respond and react to it.
47. Regardless, states across the country have been held accountable through court rulings and consent decrees in similar litigation. The State’s defense that more persons with mental illness have been filling up jails is not a new phenomenon. In 2015, an increase was predictable in reviewing the data regarding the number of persons with serious mental illness entering jails and prisons. The State failed to mitigate this situation, work with the Independent Consultant in any meaningful way, or set up contracts and forge relationships with other public and private agencies to assist in outpatient restoration.
48. Beneath the bluster, the State admits they are violating the constitutional rights of thousands of Coloradans stuck on the waiting list. At DLC’s suggestion, the State sent letters to
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judges and attorneys involved in 15 cases since April 2018. Purrington Decl., Ex. D. In the letters, the State admits that it is holding pretrial detainees in jail for months whom it concedes would be better served in the community. Sadly, the effort has not been as successful as it could have been because the State has failed to partner with community mental health centers—for example, the letters fail to provide a judge any direction on what resources exist in the court’s community if the detainee were to be released.
(2) Defendants have improperly invoked Departmental Special Circumstances consecutively to suspend the timeframe requirements of the Settlement Agreement in perpetuity.
49. On December 22, 2017, the day on which the Department’s June invocation of Departmental Special Circumstances was set to expire, Defendants provided DLC with a second notice of invocation of Departmental Special Circumstances. Purrington Decl. at Ex. B. The basis for Defendants’ second invocation was the same it previously provided six months earlier. See id. at 2.
50. The Settlement Agreement does not allow the State to consecutively invoke Departmental Special Circumstances to extend the automatic six-month suspension period for up to another six months. Dkt. 78-1 at ¶ 6(c).
51. Allowing the Department to re-invoke Departmental Special Circumstances the day the prior invocation ended, as it claimed to do on December 22, 2017, would render the timeframes set forth in the Settlement Agreement meaningless. Summit Bank & Tr. v. Am. Modern Home Ins. Co., 71 F. Supp. 3d 1168, 1171 (D. Colo. 2014) (“The review of the contract must strive to give effect to all provisions so that none is rendered meaningless.”). Such an interpretation would render the maximum six-month timeframe for Departmental Special Circumstances a nullity. Under this logic, the State could serially re-invoke Departmental
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Special Circumstances every six months in perpetuity and never need to come back into compliance. It also would eliminate the three-month penalty provision found in the Settlement Agreement, which increases the term of the agreement by three months for each month in a given calendar year that the Department is unable to meet the timeframes set forth in Paragraph 2 of the agreement. See Dkt. 78-1 at ¶ 4(b).
52. While the Settlement Agreement does permit the State to invoke Individual Special Circumstances (a separate “time out” provision limited to one specific person) more than once so long as it follows the procedures set forth in the agreement, it is silent with respect to the invocation of Departmental Special Circumstances. See id. at ¶ 6(b)(ii). DLC agreed to allow multiple invocations for individuals through the inclusion of express language in the agreement, but it did not agree to the same procedure for departmental special circumstances. Compare id. at ¶ 6(b), with id. at ¶ 6(c).
53. The Defendants’ consecutive invocation of Departmental Special Circumstances constitutes a breach of the Settlement Agreement and a breach of the implied covenant of good faith and fair dealing, at best. See Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995) (explaining that “every contract contains an implied duty of good faith and fair dealing” to “effectuate the intentions of the parties or to honor their reasonable expectations”). At worst, it is a willful and intentional breach of the agreement and demonstrates the State’s continuous and deliberate indifference to the due process rights of Colorado’s mentally ill. The Court should reopen this case and explore the claims emanating from this bad-faith conduct by Defendants.
(3) The Independent Consultant 54. As part of the Settlement Agreement, the parties agreed to have an Independent Consultant monitor the State’s compliance with the settlement timeframes and assist the State to
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avoid this constitutional problem for a third time. The Independent Consultant has been ineffective, and in this crisis has still not reviewed the data, nor completed the quarterly report due in April 2018, which would identify areas of non-compliance and provide expert recommendations to get back into compliance. Once again, DLC is left to attempt to monitor the State, without full information.
CONCLUSION 55. It is undeniable that the system is (and has been for decades) in a state of disrepair. But the reason for the disrepair is not outside the Department’s control or due to unique, unanticipated or special circumstances. Rather, it is wholly due to Defendants’ ineptitude, lack of vision, and continuous and willful disregard for the health and well-being of the very people they are statutorily tasked with helping: the mentally ill. 56. DLC is at a loss. It has engaged in negotiations and litigation with Defendants for seven years to no avail. The Independent Consultant has been ineffective. The Defendants have spent more time in the last four years out of compliance with the Settlement Agreement than they have spent meeting the timeframes they agreed to abide by in good faith. DLC seeks this Court’s assistance to protect and preserve the constitutional rights of these individuals and to enforce the Settlement Agreement.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and enter an order:
a. reopening this action to conduct proceedings to enforce the Settlement Agreement, including permitting limited, expedited discovery and setting an evidentiary hearing;
b. reopening this action to permit the underlying claims for the State’s continuing constitutional violations, including holding a preliminary injunction regarding the - 19 -

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State’s continuing constitutional violations and the appropriate sanctions for those continuing violations; c. declaring that Defendants breached the Settlement Agreement; d. directing Defendants to eliminate the wait list by August 1, 2018, or sooner, and notifying Defendants that their failure to do so could result in a finding of contempt, including associated fines or penalties; e. directing Defendants to comply with the deadlines set out in the Settlement Agreement for all referrals made on and after August 1, 2018 and notifying Defendants that their failure to do so could result in a finding of contempt, including associated fines and/or penalties; f. appointing an independent court monitor to oversee and scrutinize Defendants’ future performance under the Settlement Agreement; g. extending the Amended Settlement Agreement by three months for each month Defendants failed to comply with the timeframes in the Settlement Agreement; h. awarding Plaintiff its reasonable costs and attorneys’ fees associated with the preparation and filing of this motion and the conduct of any further proceedings; and i. granting such other or further relief against Defendants as the Court deems just and proper.
///
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DATED: June 13, 2018.

Respectfully submitted, s/ Iris Eytan Iris Eytan EYTAN NIELSEN LLC 3200 Cherry Creek South Drive Denver, CO 80209 Telephone: 720.440.8155 Facsimile: 720.440.8156 Email: iris@eytan-nielsen.com
s/ Caleb Durling Caleb Durling ROLLIN BRASWELL FISHER LLC 8350 East Crescent Pkwy., Suite 100 Greenwood Village, Colorado 80111 Telephone: 303-945-7415 Facsimile: 303-974-7468 Email: cdurling@rbf.law
Attorneys for Plaintiff Center for Legal Advocacy, d/b/a Disability Law Colorado

s/ Mark J. Ivandick Mark J. Ivandick Jennifer Purrington DISABILITY LAW COLORADO 455 Sherman St., Ste. 130 Denver, CO 80203 Telephone: 303.722.0300 Facsimile: 303.722.0720 Email: mivandick@disabilitylawco.org
s/ Ellie Lockwood Ellie Lockwood SNELL AND WILMER LLP 1200 Seventeenth Street, Suite 1900 Denver, CO 80202 Telephone: 303-634-2000 Facsimile: 303-634-2020 Email: elockwood@swlaw.com

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on June 13, 2018, a true and correct copy of this MOTION TO REOPEN ACTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT was electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses:

Tanja E. Wheeler Lauren Peach Libbie McCarthy First Assistant Attorney General Colorado Department of Law State Services Section Ralph L. Carr Colorado Judicial Center 1300 Broadway, 6th Floor Denver, CO 80203 Ph: 720-508-6151 Fax: 720-508-6041 tanja.wheeler@coag.gov Lauren.Peach@coag.gov Libbie.McCarthy@coag.gov
Counsel for Defendants

/s/Sandy Braverman Sandy Braverman

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 Case 1:11-cv-02285-NYW Document 1 Filed 08/31/11 USDC Colorado Page 1 of 26
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. __________ CENTER FOR LEGAL ADVOCACY, d/b/a THE LEGAL CENTER FOR PEOPLE WITH DISABILITIES AND OLDER PEOPLE,
Plaintiff, v. REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services, and TERESA A. BERNAL, in her official capacity as Interim Superintendent of the Colorado Mental Health Institute at Pueblo,
Defendants.
COMPLAINT
Plaintiff, the Center for Legal Advocacy, d/b/a The Legal Center for People with Disabilities and Older People (the “Legal Center”), for its Complaint alleges as follows:
INTRODUCTION 1. Presumptively innocent men and women are languishing in Colorado’s jails awaiting court-ordered mental health evaluations and restorative treatment. These individuals, who have been charged with but not convicted of crimes, have constitutionally protected liberty interests in promptly receiving such evaluations and treatment while not being confined any longer than necessary. Colorado state officials are failing to timely conduct competency evaluations and admit into the state psychiatric hospital individuals found not competent to stand trial, creating delays for treatment that last as long as six months. These unjustifiable delays
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violate the United States Constitution by depriving individuals unable to protect themselves of their due process rights, and they strain the resources of local sheriffs unable to treat these mentally ill detainees.
PARTIES 2. The Legal Center files this Complaint against Reggie Bicha, in his official capacity as Executive Director of the Colorado Department of Human Services (the “Department”), and Teresa A. Bernal, in her official capacity as Interim Superintendent of the Colorado Mental Health Institute at Pueblo (“CMHIP”). 3. The Legal Center is an independent non-profit corporation headquartered in Denver, Colorado. The Legal Center was designated in 1977 by Governor Richard Lamm as Colorado’s protection and advocacy system (“P&A System”) to protect and advocate for the rights of persons with mental illness and developmental disabilities under the Developmental Disabilities Assistance and Bill of Rights Act. 42 U.S.C. §§ 15041-45. Since 1986, the Legal Center has received federal grants on an annual basis, and has established and administered a P&A System in Colorado for individuals with mental illness pursuant to 42 U.S.C. §§ 10803 and 10805 of the Protection and Advocacy for Individuals with Mental Illness Act, (“PAIMI Act”). Since 1986, the Legal Center has been and is currently the eligible P&A System for individuals with mental illness in Colorado as defined at 42 U.S.C. § 10802(2). 4. The Legal Center has a governing board of directors which is composed of members who broadly represent and who are knowledgeable about the needs of individuals with mental illness. The Legal Center’s board of directors includes members who have received or are receiving mental health services or who have family members who have received or are receiving mental health services.
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5. The Legal Center’s constituents include individuals with mental illness. The Legal Center has established a PAIMI Advisory Council, over sixty percent (60%) of whose members themselves have received or are receiving mental health services or have family who have received or are receiving mental health services. The PAIMI Advisory Council advises the P&A System on the policies and priorities designed to protect and advocate for the rights of individuals with mental illness. The Chair of the Legal Center’s PAIMI Advisory Council, who is also a member of the Legal Center’s board of directors, has a family member who has received and is receiving mental health services.
6. Together, the Legal Center’s board of directors and PAIMI Advisory Council have developed the annual priorities and objectives of the P&A System for individuals with mental illness. The Legal Center’s first PAIMI Program Priority states that the Legal Center will monitor facilities, including jails, and investigate complaints of abuse, neglect and rights violations. When the rights of its constituents—incapacitated individuals with mental illness— are violated, the Legal Center is authorized by statute to pursue legal remedies on their behalf, such as through this lawsuit. 42 U.S.C. § 10805(a)(1)(B) & (C). To the extent the Legal Center expends its resources to protect the rights of its constituents in county jails waiting for competency evaluations or restorative treatment, its resources are diverted away from other priorities of its constituents.
7. The Legal Center has established a grievance procedure for clients or prospective clients which allows its constituents with mental illness and family members of such individuals to assure them that the Legal Center and the PAIMI Program are operating in compliance with the provisions of the PAIMI Act.
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8. The Legal Center’s constituents who are detained and charged with crimes are hindered from asserting their own rights. Obstacles they face include the imminent mootness of individual claims as individuals are likely to be admitted to CMHIP for restorative treatment during the pendency of any case they might bring. In addition, pretrial detainees who suffer from mental illness are often impaired and unable to direct or participate in litigation on their own behalf.
9. Defendant Reggie Bicha is sued in his official capacity as the Executive Director of the Colorado Department of Human Services. The Department is responsible under Colorado law for the operation of CMHIP and the provision of mental health evaluations and treatment for persons with mental illness found incompetent to proceed to trial.
10. Defendant Teresa A. Bernal is sued in her official capacity as the Interim Superintendent of CMHIP. CMHIP is the only state forensic mental hospital charged with providing court-ordered evaluations and accepting custody of pretrial detainees for restorative treatment.
JURISDICTION AND VENUE 11. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) because it arises under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. This Court also has jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. 12. Venue is appropriate in this Court under 28 U.S.C. § 1391(b)(2) because the events giving rise to this Complaint occurred in this district.
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ALLEGATIONS A. Colorado’s System to Evaluate the Competency of Criminal Defendants
13. Pretrial detainees are presumptively innocent because they have only been charged with, but not convicted of, crimes. They are constitutionally entitled to speedy trials, but Colorado’s speedy trial statute excludes time spent to evaluate a detainee’s competency and to provide restorative treatment from the computation of time within which a detainee must be brought to trial under the speedy trial statute. Colo. Rev. Stat. § 18-1-405(6).
14. Under the federal constitution and under Colorado law, the State cannot subject incompetent defendants to trial. A defendant is incompetent if, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense. Questions of a defendant’s competency can be raised by the trial judge, prosecution, or defense.
15. Once the question of a defendant’s competency to proceed has been raised, “the court may make a preliminary finding of competency or incompetency, which shall be a final determination unless a party to the case objects within ten days after the court’s preliminary finding.” Id. at 16-8.5-103(1). When a party objects to the preliminary finding or “the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department and that the department prepare a court-ordered report.” Id. at -103(2). The “department” that is required to conduct the competency evaluation and prepare the competency report is the Colorado Department of Human Services. Id. at -101(8). Then, a party may request a hearing or a second evaluation within ten days from when the report is received. Id. at -103(3). “If neither party requests a hearing or a
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second evaluation within the applicable time frame, the court shall enter a final determination, based on the information then available to the court, whether the defendant is or is not competent to proceed.” Id. at -103(5).
16. The location of competency evaluations is determined by the trial court. Defendants eligible for bond may be released on bond for the evaluation, or the court may commit the defendant to the custody of the Department for the evaluation or order that it be conducted in the jail where the defendant is being detained. Id. at -105(1)(a). A written report of the evaluation must be prepared and delivered to the clerk of the court that ordered it. The report must include the name of each physician, psychologist, or other expert who examined the defendant; a description of the nature, content, extent, and results of the evaluation and any tests conducted; a diagnosis and prognosis of the defendant’s mental disability or developmental disability; and an opinion as to whether the defendant is competent to proceed. Id. at -105(5).
17. When a court orders a defendant committed to the custody of the Department for a competency evaluation, that evaluation is conducted by CMHIP at its psychiatric hospital in Pueblo. If the court orders the competency evaluation to take place in the jail where the defendant is detained, CMHIP hires contract evaluators to complete the evaluation.
18. After receiving the competency evaluation, the court makes a final determination whether the detainee is competent to proceed to trial. Id. at -103(5). If the final determination is that the defendant is not competent to proceed, the court may release the defendant on bond on the condition that he obtain treatment or habilitation services. Id. at -111(2)(a). If the court determines that the defendant is not eligible for release on bond, the court may commit the defendant to the custody of the Department for restorative treatment. Id. at -111(2)(b). Once the
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defendant has been restored to competency, the defendant is returned to the custody of the county jail for the resumption of criminal proceedings against the defendant. Id.
19. While a defendant is committed for restorative treatment, the court is required to review the defendant’s case at least every three months “with regard to the probability that the defendant will eventually be restored to competency and with regard to the justification for continued commitment or confinement.” Id. at -116(2). A defendant is entitled to credit for any time spent in confinement for restorative treatment against any term of imprisonment imposed after restoration to competency, and a defendant may not be confined for restorative treatment for a period in excess of the maximum term of confinement that could be imposed for the offense with which the defendant is charged. Id. at -116(1). B. The Competency Evaluation System Is Plagued by Chronic Delays, Trapping
Pretrial Detainees Who Are Presumed Innocent in Procedural Limbo 20. Pretrial detainees in many, if not all, of Colorado’s jails are experiencing severe delays—some as long as six months—in receiving court-ordered competency evaluations and, for those determined not competent to proceed, for admission to CMHIP for restorative treatment. In some cases, the delays for evaluation and admission for restorative treatment have resulted in confinement of pretrial detainees for periods longer than they otherwise would have been confined for the alleged offense. 21. CMHIP currently maintains a wait list of pretrial detainees that have been ordered to receive restorative treatment at CMHIP and that it has not admitted. There are more than 50 people on the wait list, and there are numerous detainees with serious mental illness who are waiting four, five, and even six months for admission to CHIP after they have been ordered to
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receive restorative treatment. See Affidavit of Colorado State Public Defender Douglas K. Wilson, attached hereto as Exhibit A.
22. For example, the Colorado Public Defender currently represents Client L.E. L.E. was detained in the Boulder County Jail. On December 30, 2010, the Judge D. Archuleta, of the Boulder County District Court, ordered that L.E. be evaluated to determine his competency to proceed to trial. L.E.’s evaluation occurred on January 28, 2011 at the Boulder County Jail, and the written report of L.E.’s evaluation was filed with the court on February 7, 2011. On February 14, 2011, the court entered its determination that L.E. was not competent to proceed and that L.E. be transported to CMHIP for treatment and restoration. L.E. was not transported to CMHIP until July 15, 2011, more than five months after the court ordered that he receive restorative treatment.
23. The Colorado Public Defender represents Client T.M. On or about January 18, 2011, Judge T. Quammen of the Weld County District Court ordered that T.M. be evaluated to determine T.M.’s competency to stand trial. T.M.’s evaluation occurred on February 1, 2011 at the Weld County Jail and the written report of T.M.’s evaluation was filed with the court on February 14, 2011. On February 17, 2011, the court made its determination that T.M., who has a history of schizophrenia, is not competent to stand trial and ordered that T.M. be transported to CMHIP for treatment and restoration. T.M. was admitted to CMHIP on August 15, 2011, six months following the court’s order that he be admitted to CMHIP for restorative treatment.
24. The Colorado Public Defender represents Client P.E. On January 31, 2011, Judge E. Rinaldi, of the Adams County District Court, ordered that P.E. be evaluated to determine P.E.’s competency to stand trial. P.E.’s evaluation occurred on March 23, 2011 at the Adams County Jail, and the written report of P.E.’s evaluation was filed with the court on April 11,
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2011. On April 29, 2011, the court made its determination that P.E. is not competent to stand trial and ordered that P.E. be transported to CMHIP for treatment and restoration. P.E. had not been transported to CMHIP by June 10, 2011, on which date the court held a review hearing and entered a second order that P.E. be transferred to CMHIP for treatment and restoration. While detained in the Adams County Jail, P.E. has been charged with additional offenses allegedly committed while in jail. P.E. was admitted to CMHIP on July 13, 2011, two-and-a-half months following the court’s order that he be admitted to CMHIP for restorative treatment.
25. The Colorado Public Defender represents Client R.J. On March 21, 2011, Judge J. Romeo, of the Adams County District Court, ordered that R.J. be evaluated to determine R.J.’s competency to stand trial. The Department did not conduct R.J.’s evaluation until June 30, 2011 at the Adams County Jail. The written report of R.J.’s evaluation was filed with the court on July 5, 2011. On July 26, 2011, the court made its determination that R.J. is not competent to stand trial and ordered that R.J. be transported to CMHIP for treatment and restoration. On July 26, 2011, R.J’s attorney requested that R.J. be released on bond given the wait times for restoration. The court, however, denied the request. While awaiting transfer to CMHIP, R.J. has been charged with an additional offense allegedly committed while in jail. As of the date of this Complaint, more than five months following the order to evaluate R.J. for competency, and more than a month following the court’s transportation order, R.J. remains in custody at the Adams County Jail and has not received any restorative treatment.
26. The Colorado Public Defender represents Client S.R. On April 28, 2011, Judge R. Lowrey, of the El Paso County District Court, ordered that S.R. be evaluated to determine S.R.’s competency to stand trial. S.R.’s evaluation occurred on June 13, 2011 at the El Paso County Jail and the written report of S.R.’s evaluation was filed with the court on July 1, 2011.
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On July 7, 2011, the court made its determination that S.R. is not competent to stand trial and ordered that S.R. be transported to CMHIP for treatment and restoration. On July 28, 2011, Lori Carter, Observations/Admissions Administrator for the Institute of Forensic Psychiatry at CMHIP notified S.R.’s Deputy Public Defender, that S.R. would not be transported to CMHIP for at least seven weeks because there were 55 people ahead of S.R. on CMHIP’s waiting list. As of the date of this Complaint, almost two months following the court’s order that he be admitted to CMHIP, S.R. remains in custody at the El Paso County Jail and has not received any restorative treatment.
27. Numerous other pretrial detainees have experienced or are currently experiencing similarly severe delays in receiving competency evaluations or in being admitted to CMHIP for treatment and restoration.
28. Data from a county sheriff’s office further demonstrates that delays for evaluation and admission for restorative treatment are severe and growing. See Affidavit of Arapahoe County Sheriff J. Grayson Robinson, attached hereto as Exhibit B. The Arapahoe County Sheriff, who oversees the Arapahoe County Detention Facility, has witnessed the following delays in 2010 and 2011. In 2010, an average of 43 days elapsed between a court order for a competency evaluation and the provision of the evaluation in jail. In 2011, the average has increased to 51.6 days. In one instance in 2011, it took 58 days—more than eight weeks—for a detainee to receive a court-ordered competency evaluation.
29. The Arapahoe County Sheriff has also seen increases in delays for admission to CMHIP after a finding of incompetency. In 2010, an average of 26.25 days elapsed between a court order for commitment of an incompetent detainee to CMHIP and admission to CMHIP. In
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2011, the average has increased to 32.5 days. In one instance in 2011, it took 48 days—almost

seven weeks—for a detainee to be admitted into CMHIP.

30. Statistics from the Arapahoe County Sheriff’s Office are set forth in the table

below.

Arapahoe County Detention Facility Statistics

Average days from courtordered evaluation to conduct of evaluation in jail.

2010 43

2011 51.6

Average days from courtordered evaluation to

31.9

54.5

evaluation at CMHIP.

Average days from courtordered commitment of

26.25

32.5

incompetent detainees to

CMHIP and admission to

CMHIP.

C. The Delays Cause Detainees Severe Harm, Violate Their Constitutional Rights, and Impose Significant Burdens on Jails and Sheriff Departments 31. In late 2006, approximately 85 pretrial detainees all over the State of Colorado
were experiencing significant delays, up to six months, waiting for evaluation and transport to CMHIP. In one instance, Judge M. Egelhoff of the Denver District Court, found the Department and CMHIP in contempt of his orders for competency evaluations or commitment for restorative treatment of three individuals. As a result of the contempt citations, and further proceedings, the Department and CMHIP entered into a settlement agreement with Special Counsel, which required them to admit pretrial detainees to CMHIP within 24 days of receipt of a court order for
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evaluation or commitment. This settlement agreement was commonly known as the “Zuniga” agreement. The settlement agreement expired in June 2009 when CMHIP’s new 200-bed forensic facility was open for admission. Unfortunately, this new facility was not enough to curb the dire and growing violation of constitutional rights suffered by those once again waiting for months for admission to CMHIP for evaluation and treatment. Beginning in January 2010, pretrial detainees were once again waiting for significant periods to obtain evaluations and/or be transported to CMHIP for restorative treatment.
32. Pretrial detainees who wait months for evaluation and/or restorative treatment suffer serious harm. Jails can provide medication management for people willing to take medications, but cannot administer medication involuntarily, except in a life-threatening emergency. The psychological condition and behavior of incompetent detainees often deteriorates rapidly when they do not receive necessary treatment.
33. None of the jails in Colorado are able to provide treatment designed to restore a person found incompetent to proceed. As a result, detainees who suffer from mental illness are unpredictable and disruptive, taking up valuable resources needed for the care of other inmates.
34. The jails’ only system for controlling inmates is through disciplinary control, which is behavior driven. Such a system is ineffective and harmful for persons with mental illness. Unlike the county jails, CMHIP has the capacity to treat a person’s mental illness. Each of the CMHIP units housing persons found incompetent to proceed is staffed by a full-time psychiatrist, psychologist, mental health nurses, social workers, mental health technicians, and even a recreational counselor.
35. In addition to assessment, medication evaluation and management, and individual and group psychotherapy, CMHIP provides legal skills training one to three times per week to
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assist patients in learning about the law, pleas, and returning to court. This treatment is designed to enable a person to regain fitness to participate in criminal proceedings.
36. Pretrial detainees with mental illness are a population that has a high suicide risk, and psychosis can be an emergency requiring immediate treatment.
37. Depriving persons with mental illness who are incompetent to proceed with the necessary restorative treatment increases the likelihood that their condition will deteriorate and they will suffer unduly. The delays also hamper efforts to provide effective representation regarding their criminal prosecution.
38. Although the jails have the capacity to transport detainees to CMHIP more quickly, detainees cannot be transported until CMHIP agrees to admit them upon arrival. If the jails transport detainees before receiving notice from CMHIP that it will admit them, CMHIP will refuse their admission.
39. While pretrial detainees are in jail, they do not receive care giving them a realistic opportunity of becoming competent to stand trial. This failure of the Defendants to evaluate and admit the pretrial detainees in a timely manner violates their due process rights.
40. The resources of Sheriffs’ departments around Colorado are strained by the delays in evaluating pretrial detainees and admitting those not competent to proceed to CMHIP. For example, the average cost per day to house an inmate in the Arapahoe County Detention Facility is $68.30. The average cost per day to house a detainee suffering from mental illness can be double that amount. Sheriffs’ departments are incurring this increased cost more often than they should because of the Defendants’ failure to promptly evaluate and admit detainees.
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CAUSE OF ACTION (42 U.S.C. § 1983 for violation of the Due Process Clause
of the Fourteenth Amendment) 41. Plaintiff realleges each allegation above as if fully set forth herein. 42. Defendants, in their official capacities, act under color of Colorado law when they provide, or fail to provide, detainees with timely court-ordered competency evaluations and timely restorative mental health treatment. 43. Defendants Bicha and Bernal, in their official capacities, have failed to provide prompt competency evaluations and prompt admission to CMHIP of detainees determined to be incompetent. 44. There is an actual, present, and justiciable controversy between Plaintiff and Defendants over the severe delays caused by Defendants in providing court-ordered competency evaluations and in admitting pretrial detainees to CMHIP for court-ordered treatment and restoration. 45. Due process requires that the nature and duration of confinement bear reasonable relation to the purpose for which an individual is confined. 46. Once a defendant is found unable to aid and assist in his own defense, the only lawful purpose for confinement is to treat the person in order to return them to competency. 47. Individuals found not competent to aid and assist in their defense have a constitutional right to such individualized treatment as will give them a reasonable opportunity to be cured or to improve their mental condition. 48. Colorado’s county jails do not have the structure, mission, expertise or resources to provide the restorative mental health treatment required by detainees who have been found not competent to proceed to trial. There is no legitimate state interest in keeping pretrial detainees
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with mental illness incarcerated in county jails for weeks or months and depriving them of timely

evaluations and restorative treatment.

49. “The United States Supreme Court has recognized that an individual has a liberty

interest in being free from incarceration absent a criminal conviction.” Or. Advocacy Ctr. v.

Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (quoting Oviatt ex rel. Waugh v. Pearce, 954 F.2d

1470, 1474 (9th Cir. 1992)). “Because incapacitated criminal defendants have not been

convicted of any crime, they have an interest in freedom from incarceration. They also have a

liberty interest in receiving restorative treatment.” Id.

50. Defendants actions and inactions result in confinement of pretrial detainees with

mental illness that violates the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution.

51. Plaintiff is entitled to a declaratory judgment from this Court under 28 U.S.C. §§

2201-02 and Fed. R. Civ. P. 57 that (1) the current delays in Colorado for competency

evaluations and admission to CMHIP of incompetent detainees violate the Due Process Clause of

the Fourteenth Amendment, (2) competency evaluations must be completed and submitted to the

court ordering them no later than 7 days after the court’s order, or within such other time that this

Court determines comports with the Due Process Clause of the Fourteenth Amendment, and (3)

detainees found not competent to proceed to trial be admitted by CMHIP for restorative

treatment no later than 7 days following the court’s determination of incompetency, or within

such other time that this Court determines comports with the Due Process Clause of the

Fourteenth Amendment. See Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003)

(holding that state hospital must admit mentally incapacitated criminal defendants within 7 days

of judicial finding of incapacitation).

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PRAYER FOR RELIEF WHEREFORE Plaintiff Legal Center prays for relief as follows: a. A judgment declaring (1) that the current delays in Colorado for competency evaluations and admission to CMHIP for restorative treatment of incompetent detainees violate the Due Process Clause of the Fourteenth Amendment; (2) that competency evaluations must be completed and submitted to the court ordering them no later than 7 days after the court’s order, or within such other time that this Court determines comports with the Due Process Clause of the Fourteenth Amendment; and (3) that detainees found not competent to proceed to trial be admitted by CMHIP for restorative treatment no later than 7 days following the court’s determination of incompetency, or within such other time that this Court determines comports with the Due Process Clause of the Fourteenth Amendment; b. A preliminary and permanent injunction requiring Defendants (1) to complete court-ordered competency evaluations within 7 days of the court’s order, or within such other time that this Court determines comports with the Due Process Clause of the Fourteenth Amendment; and (2) to transport to and accept for restorative treatment at CMHIP detainees found not competent to proceed to trial within 7 days of the court’s order, or within such other time that the Court determines comports with the Due Process Clause of the Fourteenth Amendment; c. An award of Plaintiffs’ reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988; and d. Such other and further relief as the Court may deem just and proper.
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DATED: August 31, 2011

Respectfully submitted,
/s/ Jason M. Lynch
Iris Eytan Jason M. Lynch Caleb Durling REILLY POZNER LLP 1900 Sixteenth Street, Suite 1700 Denver, CO 80202 (303) 893-6100 ieytan@rplaw.com jlynch@rplaw.com cdurling@rplaw.com
/s/ Marcus Lock
Marcus Lock BRATTON HILL WILDERSON & LOCK LLC 525 North Main Street Gunnison, CO 81230 (970) 641-1903 MLock@BrattonHill.com
Chester R. Chapman Mark J. Ivandick THE LEGAL CENTER FOR PEOPLE WITH
DISABILITIES 455 Sherman St., Suite 130 Denver, CO 80203 (303) 722-0300 rchapman@thelegalcenter.org mivandick@thelegalcenter.org
Attorneys for Plaintiff Legal Center

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EXHIBIT A

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EXHIBIT B

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 Case 1:11-cv-02285-NYW Document 53 Filed 10/28/15 USDC Colorado Page 1 of 23
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-CV-02285-BNB
CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO,
Plaintiff, v.
REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services, and RONALD B. HALE, in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo,
Defendants.
MOTION TO REOPEN ACTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT
Plaintiff, Center for Legal Advocacy (DLC), d.b.a. Disability Law Colorado respectfully moves the Court to reopen this action for enforcement of the settlement agreement between Plaintiff and Defendants. In support of this Motion, Disability Law Colorado (“DLC”) states as follows:
Certification pursuant to D.C.Colo.LCivR 7.1 Counsel for Plaintiff and Defendants have had substantial dialogue beginning in July 2015 about the matters raised in this motion. That conferral has included numerous letters, emails,

Case 1:11-cv-02285-NYW Document 53 Filed 10/28/15 USDC Colorado Page 2 of 23
phone calls, and face-to-face meetings, but the parties have been unable to resolve what DLC believes are breaches of the agreement that settled this action. On October 23, 2015, Defendants informed Plaintiffs that they oppose the relief sought herein.
INTRODUCTION 1. Plaintiff filed a complaint on August 31, 2011, against Defendants, Reggie Bicha, Executive Director of the Colorado Department of Human Services and Teresa A. Bernal, Interim Superintendent of the Colorado Mental Health Institute at Pueblo (“CMHIP”) in their official capacities. (Doc. 1.) The complaint alleged that these Colorado Officials failed to timely admit pre-trial detainees in jails across the State of Colorado into CMHIP, the State’s only forensic mental health facility, for competency evaluations and restorative treatment for those determined to be incompetent to stand trial. This failure created unconstitutional delays to provide competency evaluations and treatment for up to eighty pretrial detainees, for as long as six months. As a result, presumptively innocent pretrial detainees were languishing in Colorado’s jails in violation of their due process rights under the Fourteenth Amendment of the United States Constitution. Colorado was denying people with serious mental illness their constitutionally protected liberty interest in freedom from incarceration absent a criminal conviction. 2. The parties participated in several settlement conferences with Magistrate Judge Boyd N. Boland, which produced a Settlement Agreement. (Doc. 51-1, attached hereto as Exhibit 1.) The Agreement was incorporated by reference in the Court’s Order of Dismissal under Fed. R. Civ. P. 41(a)(2) (the “Dismissal Order”). (Doc. No. 52, attached hereto as Exhibit 2.)
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3. As set forth below, Defendants have breached the Settlement Agreement and DLC seeks the aid of this Court to enforce the Agreement, a role the Court expressly reserved for itself in the Dismissal Order.
4. The current situation is tragic and disturbing. There are an estimated 100 people locked up in jails across the State of Colorado waiting for court-ordered competency examinations or for restorative treatment. They are waiting in jail for competency evaluations and treatment for far longer than the 28 days permitted for admission to CMHIP for inpatient competency evaluations or admission for restorative treatment and 30 days for outpatient competency evaluations (evaluations in jails).
5. Many of these people who are suffering from serious mental illness are being held in jail due to an arrest on minor offenses, but they cannot afford the most minimal bail to be released from jail as they wait resolution of their cases. As a result of the lengthy wait times to be admitted to CMHIP for medication, competency evaluation, and restoration, they often stay in jails waiting for admission to CMHIP longer than, while presumptively innocent, the offered plea bargain would have afforded them if they had plead guilty on arrest, or in some cases, if they even served the entire sentence on the top charge.
6. One example of this involves the case of J.L. On May 2, 2015, J.L. was arrested and charged with relatively minor offenses of verbal harassment and misdemeanor menacing. While out on a personal recognizance bond, he was arrested and charged with a misdemeanor violation of a protection order in Elbert County. J.L. was housed in a county jail of a rural county. J.L. is severely mentally ill and went off his schizophrenia medications shortly before the events giving rise to his charges. (See Affidavit of Douglas K. Wilson, attached hereto as Exhibit 3.)
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7. J.L.'s attorney, and deputy public defender, raised competency on June 18, 2015. On July 24, 2015 the Elbert County Court received the outpatient competency report. On August 12, 2015, J.L. was found incompetent and ordered to be committed to CMHIP for treatment and restoration. Since then, CMHIP has kept pushing his anticipated admittance date back, from October to November and now December. His anticipated admission date now is early December, 2015. J.L's father (who is one of the victims) has been in constant contact with J.L's attorney and is worried about how debilitating a long county jail stint will be for J.L. because of his schizophrenia. J.L. has been without medication for so long and is so delusional that if provided a personal recognizance bond without support from a community mental health provider, his mental illness will land him derelict on the streets or he will pick up new charges and end up back in jail. On or about October 1, J.L. was moved from the Elbert County jail to Douglas County jail due to the availability of a mental health unit in the Douglas County Jail. (See id. ¶ 4(e)). As of this date, J.L., who was found incompetent to proceed, has been waiting to be admitted to CMHIP for 90 days—well beyond the 28 day timeframe agreed upon by the Defendants in the Settlement Agreement.
8. J.L. and all of the others currently awaiting competency evaluations or restoration treatment are stranded between Colorado’s criminal justice and mental health systems, and because of their mental illness, many of them cannot comprehend the nature of the criminal proceedings, or assist counsel to defend against the criminal accusations, in accordance with C.R.S. § 16-8.5-102. These people have a constitutional right to care and treatment to stop the symptoms of their mental illness from interfering with their ability to comprehend the nature of why they have been arrested and how to assist in their defense. In the last six months, courts
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have ordered immediate transport to CMHIP for these individuals, understanding that these people need to be in a therapeutic environment and around mental health professionals that will assist them with the burdens of their illness, suicidal thoughts and actions. But, as of now, CMHIP is refusing to admit these individuals in a timely manner, denying them of the help they need.
9. The cases of N.C. and S.D. exemplify this tragic situation. N.C. was arrested in Boulder, Colorado in early September 2015 on low level felony offenses. He was extremely suicidal on arrest, which included bringing razor blades into the jail upon arrest for the purpose of committing suicide. N.C. swallowed the razor blades while in the jail, and once the court was informed of his mental illness and risk to commit suicide, it ordered in September that N.C. be transported to the hospital for a competency examination. But CMHIP indicated it would not be admitting N.C. until February 2016. Since that time, N.C. attempted to commit suicide by hanging himself in his cell. Adding a Kafkaesque element to N.C.’s situation, he was charged with introducing contraband (razors) into the jail. (Plaintiff can provide testimonial and documentary evidence supporting this account at a hearing on this motion.)
10. S.D. was charged and arrested in Arapahoe County on a Boulder warrant on June 26, 2015 for allegedly driving under restraint in Boulder County Jail. He was advised in Boulder County of the charges against him on June 29, 2015. He was provided a plea bargain to plead guilty to a 3 point ticket and the case would be dismissed with no jail. However, after S.D. was arrested he was unable to appear in court because he was experiencing serious symptoms of his mental illness. After seeing the state he was in, his lawyer requested that S.D. be evaluated for competency in the jail (an outpatient evaluation) and the court ordered it on July 2, 2015. S.D.
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then sat in the Boulder County Jail for another two-and-a-half months without receiving an evaluation. Because of his severe illness, S.D. refused to bathe, was covered in his own feces, his cell was covered in feces, and he refused to speak or respond to questions in English or Spanish. S.D. has no known family or friends. His lawyer indicates that he was one of the most severely ill clients she has ever seen. On September 14, 2015, after waiting more than 90 days for a competency examination, with no confirmed date of examination in sight, S.D.'s lawyer was finally capable of convincing the deputy district attorney to dismiss the case, and S.D. was taken by ambulance or sheriff to a psychiatric hospital and put on a mental health hold. (See Ex. 3 ¶ 4(a).)
11. A natural and desperate consequence to the extraordinary length of jail stays that are occurring in breach of the agreement is that there is no place to keep detainees safe from themselves or other inmates while in jail except to lock them away in solitary confinement or “lock down.” Solitary confinement is not therapeutic, and most of the time it is contraindicated for an individual who is experiencing psychosis or delusions. In some cases, while being physically restrained, or being forcibly taken to isolation, detainees may flail or intentionally hit the corrections officers who are trying to move them, resulting in felony assault charges being added to the list of criminal charges facing the detainee.
12. The cases of C.R. and J.E. exemplify this terrible circumstance. C.R. was charged with minor crimes all as a result of conduct related to his untreated mental illness. The court determined C.R. to be incompetent, and on July 8, 2015, an Adams County Judge ordered that he be committed to CMHIP for restorative treatment. C.R. was not transported to CMHIP until September 11, 2015, more than two months later. In that time, his attorney reported that
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Adams County jail records reflected that C.R. was getting taunted because he was concerned he would be raped, and this perseveration about rape is alleged to be a part of his mental illness. Eventually, this taunting caused C.R. to get into an altercation with the inmate and C.R. was disciplined and given three days of solitary confinement. This caused him to become severely suicidal and traumatized him. Again, he got into an altercation with his new cellmate who tried to kick him out of his bunk. He was disciplined again with three days in solitary confinement. This caused additional delusions and psychosis. C.R. refused mental health medication, and he cannot be forcibly medicated in the jail, so C.R. was left untreated and very ill.
13. C.R. was finally transported on September 11, 2015, more than 90 days past the agreed upon timeline for C.R.’s admission to CMHIP. At CMHIP, where he was provided with mental health medication, C.R. was “restored” to competency in seven days and returned back to Adams County Jail. But, that medication is not available to C.R. at the jail. When he returned to the jail, the district attorney offered him a misdemeanor plea and immediate release, and instead of another four month wait for a second competency evaluation in the jail, where he is left unmedicated, C.R. is declining to challenge the finding that he was competent. (C.R.’s counsel contacted Ms. Eytan in early July 2015 who told counsel of CMHIP’s delay. However, Ms. Eytan indicated she would investigate, but all the settlement reports indicated that CMHIP was meeting all timelines and C.R.’s delay must be related to some administrative issue. It was the investigation of this case that caused the revelation that CMHIP was in fact manufacturing data to make it appear as if it were complying with the Agreement. Plaintiff can provide testimonial and documentary evidence supporting this account at a hearing on this motion.)
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14. J.E. was charged with misdemeanors of resisting arrest, harassment, and reckless endangerment. After an order for an evaluation issued on July 30, 2015, J.E. was found incompetent to proceed on August 20, 2015 and ordered to be transferred to CMHIP. While waiting in Larimer County Jail for admission to CMHIP for restoration to competency, J.E. was charged with a felony assault. The victim of the alleged assault was a corrections officer that was trying to subdue J.E. And, upon information and belief, the true cause of this alleged assault is a result of her untreated schizophrenia. J.E. is not to be transferred to restoration until December 29, 2015, more than 120 days past the date on which J.E. was ordered transferred to CMHIP. And, when or if J.E. returns to court restored to competency she will have to defend not only against misdemeanor offenses, but new felony assault charges picked up while she was awaiting mental health treatment. It is likely that five months in jail would be longer than any plea bargain she would have been offered upon arrest in July. (Plaintiff can provide testimonial and documentary evidence supporting this account at a hearing on this motion.).
15. As described more fully below, DLC did not immediately learn of the crisis building in Colorado’s jails because the monthly reporting the Department was required to make under the Settlement Agreement was false and misleading, and did not accurately report the status of all pretrial detainees referred for competency evaluations and restorative treatment.
16. The first report under the Settlement Agreement was the July 2012 report due September 1, 2012. The August 2012 Report was due on October 1st and so on, such that the reports run one month behind. (See Declaration of Jennifer L. Purrington ¶ 2, attached hereto as Exhibit 4.) Early on in the reporting process DLC’s Staff Attorney, Jennifer L. Purrington, audited several entries in the monthly settlement reports and determined that the information
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and data being reported by the Department was accurate. Thereafter, DLC relied exclusively on the information and data provided by the Department in determining compliance with the Settlement Agreement deadlines. (Id. ¶ 5.)
17. All original monthly reports provided to DLC up through June 2015 showed that the “days waiting,” “averages,” and “out-patient” evaluation times were within the terms of the Settlement Agreement other than requests for special circumstances which were granted. (Id. ¶ 7.)
18. From the inception of the Settlement Agreement through mid-July 2015, DLC did not receive any reports or complaints from or on behalf of inmates alleging excessive delays in the admissions process. (Id. ¶ 6.)
19. But in mid- July 2015, DLC began receiving reports and complaints from public defenders, private attorneys, family members, and a judge that inmates were not being admitted to CMHIP for evaluation and restoration within the settlement deadlines and in some cases it was taking months for inmates to be admitted to CMHIP. (Id. ¶ 6.) DLC later learned that reporting provided by the Defendants was false and misleading. (Id. ¶¶ 18-20, 25.)
ARGUMENT A. This Court Is Authorized to Reopen this Action to Enforce the Settlement
Agreement, and Good Cause Exists to Do So 20. During the pendency of this action, the Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 2201-02, and pursuant to 42 U.S.C. § 1983. (Ex. 2 ¶ 1.) 21. The Dismissal Order states, “The Parties shall comply with the terms of their Settlement Agreement entered into on April 6, 2012, a copy of which is attached hereto and incorporated by reference as if fully set forth herein.” (Id. ¶ 3.) The Dismissal Order also
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retained continuing jurisdiction over the settlement and enforcement of the Settlement Agreement until after the conclusion of the term of the agreement under the authority of Kokkenen v. Guardian Life Insurance Co., 511 U.S. 375, 381-82 (1994) and Bell v. Board of County Commissioners, 451 F.3d 1097, 1103 (10th Cir. 2006). (Id. ¶ 5.)
22. The Agreement continues in effect and has not been modified or amended by mutual written agreement or waiver.
23. A district court may reopen a case and retain jurisdiction over the implementation and enforcement of a settlement agreement when, as here, its dismissal order expressly states that it will maintain continuing jurisdiction. Kokkonen, 511 U.S. at 381-83; see also Mitchell v. Estrada, No. 03-cv-00387, 2012 WL 2919604, at *2 (D. Colo. 2012).
24. As illustrated by the circumstances described in the Introduction to this Motion, and as further explained below, there is good cause to reopen this action to permit DLC to enforce the terms of the Settlement Agreement. Without such enforcement, many presumptively innocent pretrial detainees in Colorado will languish in jail, in dangerous and debilitating conditions, waiting for competency evaluations and restorative treatment, for periods far longer than is permitted under the United States Constitution. B. Defendants Failed to Meet the Requirements for Conducting Competency
Evaluations and Restorative Treatment under the Express Terms of the Settlement Agreement 25. The keystone of the Settlement Agreement is a timeframe within which the Defendants are obligated to conduct competency evaluations and restorative treatment. The Settlement Agreement requires Defendants to admit pretrial detainees to CMHIP for in-patient restorative treatment and competency evaluations no later than 28 days after the pretrial
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detainees’ “Ready for Admission Date,” with such date defined as, “the date on which the hospital has received the Court Order for admission to the Hospital, and, in the case of a courtordered Competency Evaluation, the Collateral Materials required for the evaluation must be received by the Hospital for a Pretrial Detainee to be ‘Ready for Admission.’” (Ex. 1 §§ 1(p), 2.) The Settlement Agreement also requires CMHIP to maintain a “Monthly Average of 24 days or less for all admissions within a calendar month.” (Id. § 1(l).) Defendants have breached the Settlement Agreement by failing to admit pretrial detainees within 28 days of their ready for admission date and by failing to maintain a “Monthly Average” of 24 days.
26. The July 2015 monthly Monitoring Report shows that Defendants failed to meet the 28-day admissions deadline in all but three cases out of 103. In addition to the data provided below, the August data recently received from CMHIP shows that the Defendants again failed to meet the 28-day admissions deadline in all but two cases out of 148 within the August report. (See Ex. 4, pp. 6-12, Tables 1A & 1B.) The average for May 2015, using the audited report, was 27.35 days. The average for June 2015, using the audited report, was 43.57. The average for July was 48.18 and the average for August was 58.87. In each of those months, Defendants were in breach of the 24-day monthly average required by the Settlement Agreement.
27. Based upon reports provided in September 2015, wait times for pretrial detainees to be admitted to CMHIP for competency evaluations or restorative treatment have grown to around 100 days. Individuals waiting for restorative treatment waited up to ninety days for their evaluation, and then another ninety days for transport to treatment, resulting in an up to sixmonth delay before they receive constitutionally required restorative treatment.
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28. The Settlement Agreement also imposes time frames for the completion of outpatient competency evaluations in the county jails instead of at CMHIP. The Agreement requires that “[t]he Department shall complete all Out-Patient Evaluations of a Pretrial Detainee no later than 30 days after the Hospital’s receipt of a Court Order directing the evaluation and receipt of Collateral Materials.” (Ex. 1 § 2(b).) It has been recently reported that the Department is in breach of the Settlement Agreement by failing to complete outpatient evaluations within thirty days, some of which have taken up to one hundred days to complete. (See Ex. 3 ¶ 4(b).)
29. It is estimated that 25% of pretrial detainees listed in the Department’s reports are individuals being held in jail as a result of an arrest on petty or misdemeanor offenses. Tragically, the length of their detention while waiting for an evaluation or treatment exceeds what jail sentence they likely would have received if they had pled guilty on the day they were arrested. Many of these pretrial detainees are seriously mentally ill, psychotic, in danger of harming themselves or others, and are victimized by other detainees as they wait for a humane environment to be evaluated and treated. (See id. ¶¶ 2-4.) C. Defendants Also Breached the Settlement Agreement by Providing Plaintiffs’
Counsel, the Pro-Bono Monitors, with False and Misleading Monthly Monitoring Reports 30. The Settlement Agreement requires Defendants to submit monthly monitoring reports to DLC setting forth dates and data that reflect, among other things, the “Days Waiting” the “Ready for Admission” date; and the “Offered Admission” date for pretrial detainees. (Ex. 1, § 3(a)-(c).) The Plaintiff has reviewed these reports and reconciled the data on a pro bono basis for the last two-and-a-half years.
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31. Defendants have breached the Settlement Agreement by submitting monthly monitoring reports containing materially inaccurate and false dates and data. Audited reports recently provided by the Defendants to DLC, after DLC confronted the Department, show that inaccurate data has been provided to DLC as early as March 2015, with six instances in March, one in April, twenty-two in May, and sixty-four in June. (See Ex. 4 ¶ 18.). Currently DLC has determined that Defendants provided them with incorrect data in four separate reports. (See id. ¶¶ 18-26.) DLC relied on the Department’s inaccurate monthly reports to determine compliance with the Settlement Agreement. (Id. ¶ 5.)
32. DLC believes that Defendants have been in breach of the Settlement Agreement for months preceding mid-July 2015, the time when DLC first became aware that a problem existed with timely performance under the Settlement Agreement. DLC believes that Defendants have been in breach of the Settlement Agreement from at least March 2015. (See id., ¶ 25.) D. Defendants Took Unilateral Action Detrimentally Slowing Admissions, Creating a
Wait List, and Violating Hundreds of Individuals’ Constitutional Rights 33. In late July 2015, DLC learned of a pretrial detainee whose attorney claimed had waited more than sixty days to obtain restorative treatment at CMHIP. DLC received similar reports around that time, consisting of desperate calls for help and complaints from inmates’ family members, public defenders, a county jail and a county court judge exposing that CMHIP was taking months in some cases to admit pretrial detainees for competency evaluations and restorative mental health treatment. One source told DLC that the Department had issued an internal directive limiting admissions to no more than one per day. (See Declaration of Mark J., Ivandick ¶ 3, attached hereto as Exhibit 5.)
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34. It was evident the data the Defendants had been providing DLC with was false and misleading, and the information regarding the directive limiting admissions was deeply concerning. Upon learning this information, Plaintiffs contacted counsel for the Defendants on July 31, 2015. (See Ex. 4, ¶¶ 25-26; Ex. 5, ¶ 3.)
35. After tiresome inquiries, Defendants finally disclosed an email to Plaintiff in September 2015 that proved Defendants issued a written directive to limit patient admissions to no more than one admission per day starting on June 2, 2015. (See Ex. 5 ¶ 3.) Plaintiff was never notified of that policy change at the time it was implemented, or later on July 28, 2015, when Superintendent Hale denied its existence, which is disturbing in light of the fact that such a policy could only have the effect of causing the Department to fail to comply with the Settlement Agreement. The unilateral directive limiting admissions caused a wait list to grow to more than 70 inmates waiting for admission to CMHIP for competency evaluations and restorative treatment.
36. Defendants’ unilateral action in developing a policy that delayed admissions, without consulting Plaintiff, denying that such a policy existed, and by submitting monthly reports containing false and misleading data and then invoking Departmental Special Circumstances, is a breach of their duties of good faith and fair dealing under the Settlement Agreement. See Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995) (explaining that “every contract contains an implied duty of good faith and fair dealing” to “effectuate the intentions of the parties or to honor their reasonable expectations”).
37. At first, DLC did not detect the Department’s violation of the Settlement Agreement because the growing problem initially was hidden by the Department in the false and
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misleading monthly reports. It was only through reports and complaints from families of detainees, the lawyers representing them, and a judge’s report that DLC learned of the collapse of the Department’s compliance with the Settlement Agreement. By now, the waiting list for competency evaluations has grown to approximately 100 detainees.
38. Plaintiff has used good faith efforts to try and resolve the dispute concerning the Defendants invocation of Departmental Special Circumstances; however, these efforts have failed to resolve the defendants’ breach of the Settlement Agreement and therefore Plaintiff is seeking judicial enforcement of the settlement agreement. (See Ex 1. ¶ 6(c).) E. Defendants Have Improperly Invoked “Departmental Special Circumstances” to
Justify Their Breaches of the Settlement Agreement 39. On August 3, 2015, months after missing admission deadlines and submitting misleading monthly reports to Plaintiff, the Defendants invoked “Departmental Special Circumstances” citing circumstances beyond the control of the Department which impact CMHIP’s ability to comply with the admission timeframes set by the Settlement Agreement. (See Ex. 4 ¶ 10.) The Department also requested the invocation of “Departmental Special Circumstances” be applied retroactively to June 30, 2015. Essentially, the Department claims it can no longer meet the admissions timeframes because of two factors; (1) a dramatic increase in the number of referrals for evaluations and treatment, and (2) unprecedented staffing shortages at CMHIP. 40. On August 20, 2015, the parties conferenced and reviewed the reasons for invoking “Departmental Special Circumstances” discussing various issues and options related to solving the looming problem. Plaintiffs being unaware of the severity of the problem, the cause, and the resources available, indicated that they were relying on the Department’s expertise in
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operating a mental health system and the Department was asked to develop a “short-term” “quick and innovative solution” to address the crisis at hand. (Ex. 5 ¶ 6.) The goal: to clear the wait list and return to the admission time frames of the Settlement Agreement.
41. Additionally at the August 20th meeting, in anticipation of evaluating the Department’s Proposal, Plaintiffs requested the corrected monthly reports from March 2015 forward, as well as a copy of the current wait list and documentation of the alleged June 2015 directive to only admit one patient a day. Defendants agreed to provide the Plaintiff with these items. (Id. ¶ 7.)
42. On September 3, 2015, the Department submitted its Proposal to cure its breach of the Settlement Agreement. The Proposal did not offer a “short-term” “quick and innovative solution” to address the crisis at hand. (See Ex. D to the Purrington Declaration, Ex. 4.) Therefore, Plaintiff found the Department’s Proposal to be ineffective to address the crisis it created, or allowed to develop. (See Ex. E to the Purrington Declaration, Ex. 4.)
43. The current and historical staffing problems at CMHIP were discussed. Significantly, Plaintiff rejected that this crisis was the result of a “Departmental Special Circumstance.” It was, rather, a failure to tend to the historical and systemic issues affecting the mental health system in Colorado, and a failure to work with and fund the community mental health system. Indeed, Defendants have been aware of the systemic issues causing the problem of delayed admissions for at least the last twenty years. (Id. ¶ 8-9.)
44. Neiberger v. Hawkins, Civil Case No. 99-B-1120 (MJW), was filed in this court in 1999 against the Colorado Department of Human Services and CMHIP’s superintendent, Robert Hawkins, by a group of patients committed to CMHIP for care and treatment after being found
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not guilty by reason of insanity. The third amended complaint alleged that these patients’ constitutional rights were being violated for among other claims, a continued pattern of substandard care, as a result of Defendants’ failure to secure the financial and human resources necessary to provide minimally adequate care. Specifically, Defendants were accused of operating CMHIP’s forensic institute at staffing levels below the levels necessary to provide minimally adequate care to its patients. The Plaintiffs requested relief including a request that the Court mandate the Defendants to immediately take the steps necessary to reduce dangerous understaffing. (Id. ¶ 10.)
45. The Neiberger plaintiffs filed a motion for a preliminary injunction supported by evidence alleging, among other things, that for the prior eight years, CMHIP had been understaffed. That understaffing has been a persistent problem since at least 1994. In 1994, a situational analysis was reviewed at an executive retreat that stated CMHIP was understaffed by at least 80 positions of which 25-30 positions were nursing positions. The understaffing pattern continued and was documented by the state agency, the Health Care Financing Administration, (HCFA), responsible for funding operations at CMHIP. In 1996, HCFA surveyors found understaffing at CMHIP citing 26 nursing vacancies. (Id. ¶ 11.)
46. In fiscal years 2000 and 2001 the Joint Accreditation of Hospitals Commission (JAHCO) threatened to de-certify CMHIP due to inadequate staffing. Despite serious understaffing, the Neiberger defendants did not request funds from the legislature for the immediate increases in staffing necessary to meet the minimum staffing levels. (Id. ¶ 12.)
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47. In 2002, Neiberger settled and Defendants agreed to fill vacant staff positions with permanent employees and committed to maintaining future staffing ratios at levels to avoid understaffing. (Id. ¶ 13.)
48. By late 2006, however, there were approximately 85 pretrial detainees in county jails across Colorado, who were experiencing significant wait times, some as long as six months, to be admitted to CMHIP for competency evaluations and restorative mental health treatment. (Id. ¶ 14.)
49. Denver District Court Judge M. Egelhoff issued a show cause order in the cases People v. Zuniga, 06CR999, People v. Kirkwood, 06CR5797, and People v. Sims, 05CR2277. Judge Egelhoff then found the Colorado Department of Human Services, (CDHS) and CMHIP in contempt of his orders to admit three inmates to CMHIP for competency evaluations and restorative mental health treatment. (Ex. 5 ¶ 15.)
50. Judge Egelhoff appointed special counsel (undersigned counsel among them) to prosecute the contempt citations, and the Department and CMHIP claimed staff shortages and lack of bed space as the principle reason for the delays in admitting pretrial detainees. Settlement conferences in those cases produced a global settlement agreement for all of the pre-trial detainees on the wait-list, known as the “Zuniga agreement.” The Zuniga agreement required CMHIP to admit pretrial detainees from across the state within 24 days of receipt of a court order for evaluation or restorative treatment. (Id. ¶ 16.)
51. The Zuniga agreement expired in June 2009, which by design coincided with the opening of the 200-plus bed Hawkin’s High Security Forensics Institute (HSFI) on the CMHIP
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campus. The parties and mediator was assured that the HSFI would solve the admissions problems in the future, thus a June 2009 expiration date. (Id. ¶ 17.)
52. With the opening of the HSFI and over the next year or so, CMHIP experienced significant stresses on its operations and staffing. The economic downturn created high state deficits and the need for budget cuts and hiring freezes, as well as administrative staff furloughs. The long-standing challenges in recruiting mental health staff remained as a significant impediment to CMHIP’s ability to timely admit pretrial detainees for evaluation and treatment. In addition, the number of court-ordered referrals continued to increase. (Id. ¶ 18.)
53. After three patient deaths at CMHIP, CDHS hired a group of nationally recognized mental health consultants to complete a thorough review of CMHIP’s operations. The consultants’ report delivered in November 2010 found that CMHIP was significantly understaffed by as much as 20%, which translated to approximately 50 nursing staff, with psychiatric staffing falling below the agreed upon levels of the most recent lawsuit, the Neiberger case. Requests for relief in hiring emergency staffing by way of locum tenens have been denied, thereby resulting in additional stress on CMHIP’s operations. (Id. ¶ 19.)
54. The consultants found that CMHIP’s understaffing appears to be related to, among other things, inadequate funding and recommended that CDHS should advocate for increased funding for staffing at CMHIP as a priority with the Colorado legislature. (Id. ¶ 20.)
55. Staffing shortages, underfunding by the legislature, a long-standing pattern of increases in forensic referrals and the Zuniga agreement requirements that pushed CMHIP for faster admissions to the HSFI (24 days from court order to admission) combined once again to slow admissions of pretrial detainees below constitutional standards. (Id. ¶ 21.)
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56. After receiving the consultants’ report, Plaintiff began monitoring CMHIP’s recruitment efforts and its progress in obtaining funding from the legislature to hire approximately 54 nursing positions. But in April 2011, Defendants received a supplemental budget increase for only 21.5 additional nursing staff. (Id. ¶¶ 22-23.)
57. In June 2011, Interim Superintendent Bernal, in response to a recent survey by the Centers for Medicare and Medicaid Services that noted staffing and patient acuity as areas of concern, informed staff that obtaining additional funding to increase staffing would be unlikely due to the distressed budget. She also noted there were pressures from the community to admit patients from the jails as the wait list from the jails was then over 70 with the longest wait of over 80 days. (Id. ¶ 24.)
58. With no end in sight to the understaffing problem, resulting in the development of yet another wait list resulting in unconstitutional delays in admissions and out-patient evaluations, Plaintiffs filed the Complaint in this action on August 31, 2011, which in turn led to the Settlement Agreement at issue. (Id. ¶ 25.)
59. It is undeniable that the system has collapsed. But, it also undeniable that the reason for the collapse is not due to unanticipated or special circumstances. From the perspective of the pretrial detainees in Colorado’s jails, the unconstitutional and unconscionable delay in the provision of competency evaluations is the result of a tragic pattern of institutional indifference.
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WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and enter an order:
a. reopening this action to conduct proceedings to enforce the Settlement Agreement;
b. setting an evidentiary hearing on Defendants’ performance under the Settlement Agreement;
c. finding that the Defendants breached the Settlement Agreement as alleged herein;
d. directing Defendants to eliminate the wait list by February 3, 2016, or sooner;
e. directing Defendants to comply with the deadlines set out in the Settlement Agreement for all referrals made on and after December 1, 2015;
f. appointing an independent monitor, acceptable to Plaintiff, with real-time access to necessary information to monitor Defendants’ performance under the Settlement Agreement;
g. awarding Plaintiff its reasonable costs and attorneys’ fees associated with the preparation and filing of this motion and the conduct of any further proceedings; and
h. granting such other or further relief against Defendants as the Court deems just and proper.
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Dated this 28th day of October, 2015. Respectfully submitted,

/s/ Jason M. Lynch Jason M. Lynch DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 Telephone: 303.892.9400 Facsimile: 303.893.1379 Email: jason.lynch@dgslaw.com
/s/ Iris Eytan Iris Eytan EYTAN NIELSEN LLC 3200 Cherry Creek South Drive Denver, CO 80209 Telephone: 720.440.8155 Facsimile: 720.440.8156 Email: iris@eytan-nielsen.com

/s/ Mark J. Ivandick Mark J. Ivandick DISABILITY LAW COLORADO 455 Sherman St., Ste. 130 Denver, CO 80203 Telephone: 303.722.0300 Facsimile: 303.722.0720 Email: mivandick@disabilitylawco.org
/s/ Ellie Lockwood Ellie Lockwood REILLY POZNER LLP 1900 Sixteenth Street, Suite 1700 Denver, CO 80202 Telephone: 303.893-6100 Facsimile: 303-893-6110 Email: elockwood@rplaw.com

Attorneys for Plaintiff Disability Law Colorado

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 28th day of October, 2015, a true and correct copy of this MOTION TO REOPEN ACTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT was electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses: Tanya Smith, Esq. Office of the Attorney General 1525 Sherman Street, 6th Floor Denver, CO 80203 Tanya.smith@state.co.us
/s/ Janie Cohen
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 Case 1:11-cv-02285-NYW Document 164 Filed 03/28/19 USDC Colorado Page 1 of 5

March 28, 2019

Re: Civil Action No. 11-cv-02285-NYW

The Honorable Judge Nina Wang United States Magistrate Judge District of Colorado Alfred A. Arraj United States Courthouse 901 19th Street Denver, CO 80294

Judge Wang,
This report serves as our first required status report as designated by the recent Consent Decree dated March 15, 2019 addressing Case No. 1:11-cv-02285-NYW. As you know, we submitted our first report in response to your original court order on February 22, 2019. Since then, the parties of collaboratively drafted a Consent Decree dated March 15, 2019, which designates March 28, 2019 as the date of our first report. Therefore, we are submitting this report as both a review of our original report, and an update of intervening events. In both the original court order, and in the more recent Consent Decree, our reporting duty requires us to review updated data, monitor progress, and provide recommendations to the Colorado Department of Human Services (CDHS) to support their efforts to improve the timeliness and quality of competence-related services.
Since our appointment on January 2, 2019, there have been tremendous developments in this litigation. In December 2018, CDHS submitted to the Court a plan to attain compliance with the Settlement Agreement by June 2019; this plan was updated on January 4, 2019. As mandated by your court order, our first task was to review that plan and submit our report by January 28, 2019. We did so. Shortly thereafter, the Parties agreed to enter mediation. That mediation spanned several days of early March 2019. As you know, the result was a Consent Decree dated March 15, 2019. In our view, the process and outcome of the mediation were remarkably successful; both parties collaborated and compromised, leading to a Consent Decree that details ambitious, but

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attainable, plans and timelines for CDHS to improve competency-related services and the broader system of care in which they provide these services.
As you know, we submitted our first report mandated by your court order on February 22, 2019. The time since that report was devoted to the mediated Consent Decree. Thus, in this first post-Consent-Decree report, we summarize our work since January 2, 2019, and we provide a preliminary analysis of the limited CDHS data we have received since February 2019. We anticipate that, going forward, most of our reports will focus more heavily on data and actionable items designated in the Consent Decree. Moreover, given the current legislative session, this report will also discuss pending drafted legislation that bears directly on the competency-services system in Colorado (subsequent reports will less likely address such legislation).
Work since appointment on January 2, 2019 First, we submitted our review of the CDHS Plan to attain compliance with the settlement agreement. Our review of their Plan was also based on our review of many parts of the competency system, interviews with key stakeholders, site visits, data analysis, and incorporation of best practices and promising practices from other jurisdictions. Our report outlined six key areas for improvement in the CDHS competency system: creating a comprehensive and cohesive plan, emphasizing community-based services, prioritizing outpatient competence restoration, incorporating a triage system, improving data collection and analysis, and developing a central system of easily-accessible information for stakeholders.
Soon after the submission of that report, the Parties agreed to enter mediation. As you know, this mediation spanned several days in early March of 2019, and led to a draft Consent Decree, dated March 15, 2019, that details tasks and timelines for CDHS to improve delivery of competency-related services. One (or both) of us were present throughout the mediation. We were consistently impressed by both parties’ apparent efforts to collaborate and compromise. We are optimistic that the plan detailed in the Consent Decree is attainable if CDHDS makes continued, proactive effort.
You have read the Consent Decree; we will not detail its contents here. We consider the mediation, and the Consent Decree it produced, a tremendous step towards solving the competency-related crisis in Colorado. Since completing the draft Consent Decree, we have worked with the parties in several ways that were either prescribed in the Consent Decree, or closely aligned with goals in the Consent Decree.
These tasks have included:
• Drafted 2019 legislation: We have reviewed multiple legislative drafts of competence-related legislation, and we have reviewed summary sheets of major issues that various parties are interested in bringing to the 2019 legislative session. We have provided our comments and analysis to each party drafting

Groundswell Services, Inc.

Status Report 3/28/2019 2

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legislation. It seems clear to us that substantive competence-related legislation is being prepared for the 2019 session, some with broad consensus. However, drafted language to date is still preliminary. In some areas, drafted legislation is inconsistent with sections of the Consent Decree. These inconsistencies must be rectified. The sweeping legislation underway must complement, not contradict, the Consent Decree.
In addition to statutory change, it seems very likely that additional budgetary requests will be made to support new programs and their new positions. We have reviewed this legislation and the corresponding JBC budget requests with a focus on ways they are consistent with and supportive of CDHS efforts to meet the goals detailed in the Consent Decree.
• Drafted Budgetary Requests: We have reviewed draft requests to the JBC for funding that will support the steps and goals detailed in the Consent Decree.
• Weekly Meetings with CDHS: As of March 22, we began weekly meetings with CDHS to discuss steps towards meeting the goals detailed in the Consent Decree, and address barriers to those goals. We have also scheduled additional on-site meetings to address these goals, and we have scheduled the monthly meetings (with leadership from both parties) that the Consent Decree prescribes.
Analysis of CDHS monthly data The Consent Decree (like the earlier court order appointing us as Special Master) requires that we submit an analysis of CDHS data and make recommendations based on that data. We address this requirement, in this current report, with a substantial caveat:
Current data are incomplete. We have now received monthly reports from CDHS for three months to date (December 2018, January 2019, and March 2019). We presented our general responses to December and January data in our earlier (February 22, 2019) report. Generally, the data provided in the monthly reports is sparse, but now that the mediation and Consent Decree are complete, we will work with CDHS to present data in the most useful and complete format (indeed, CDHS has emphasized their willingness to modify and expand their data reports). For example, we have asked CDHDS to present data detailing and the time defendants spend in each stage of competency-related services (i.e., awaiting evaluation, awaiting restoration services, receiving restoration services, etc), and we understand they are working towards presenting these data in subsequent reports.
Notwithstanding this substantial caveat, we summarize below the available data (which reports monthly totals of evaluation and restoration orders, both inpatient and outpatient).

Groundswell Services, Inc.

Status Report 3/28/2019 3

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Regarding the number of evaluations ordered overall (204), there is some variation in the last 12 months, ranging from 178 to 225 competency evaluations per month, but no discernable trend towards increased referrals for evaluations. However, February 2019 saw a substantial increase in the number of inpatient competency evaluations ordered (29, the highest number in the past year) by courts statewide, and a slight decrease in the number of outpatient competency evaluations ordered (175, which is among the lower monthly rates).
Regarding restoration, February 2019 saw little change in the numbers of cases ordered for restoration overall, as compared to recent months. A total of 128 defendants were ordered to restoration in February 2019, as compared to 139 in January and 116 in December 2018. There remains much variation in the monthly number of defendants ordered to restoration, ranging from 84 to 139 during the past 12 months.
However, the number of defendants (92) ordered to inpatient restoration in February 2019 represents the greatest number to date (i.e., since October 2017, the earliest data we have available). Meanwhile, the 36 individuals referred for outpatient community restoration in February 2019 is a substantial decrease from the four prior months, though it is roughly similar to the average for the past year.
We are reluctant to draw strong conclusions from the February 2019 increase in inpatient restoration orders, given limitations to the available data, and the dangers of drawing strong conclusions from any one-month deviation. Nevertheless, this recent increase demonstrates—at a minimum—that the interventions prescribed in the Consent Decree are crucial and time-sensitive.
Regarding potential explanations for this February increase, CDHS staff mentioned during our first weekly meeting that judges continue to issue show-cause orders, perhaps even more frequently than they have in the past, to facilitate more prompt inpatient restoration. We encouraged CDHS to begin rapid and assertive efforts to educate judges about the Consent Decree—particularly the “two-tier” system and triage efforts that prioritize inpatient restoration for those who need it most (and, relatedly, the ways in which show-cause orders can actually undermine triage efforts to prioritize those who need inpatient services most promptly). In short, it will be crucial for CDHS to widely educate the courts and other stakeholders regarding the changes detailed in the consent decree.
Again, we anticipate that future reports will review further CDHS data as they begin sharing it with us. In the meantime, we encourage you to contact us with any questions or requests. We appreciate the opportunity to serve the court, and the state of Colorado, in this important matter.

Groundswell Services, Inc.

Status Report 3/28/2019 4

Case 1:11-cv-02285-NYW Document 164 Filed 03/28/19 USDC Colorado Page 5 of 5
Neil Gowensmith, Ph.D. President, Groundswell Services Inc. neil.gowensmith@gmail.com
Daniel Murrie, Ph.D. danielmurrie@me.com

Groundswell Services, Inc.

Status Report 3/28/2019 5

 
 Case 1:11-cv-02285-NYW Document 176 Filed 08/28/19 USDC Colorado Page 1 of 34
SPECIAL MASTER REPORT to JUDGE WANG Submitted August 28, 2019
CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO, Plaintiff, v. MICHELLE BARNES,
in her official capacity as Executive Director of the Colorado Department of Human Services, and JILL MARSHALL,
in her official capacity as Chief Executive Officer of the Colorado Mental Health Institute at Pueblo, Defendants.

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Page 2

August 28, 2019

Re: Civil Action No. 11-cv-02285-NYW

The Honorable Judge Nina Wang United States Magistrate Judge District of Colorado Alfred A. Arraj United States Courthouse 901 19th Street Denver, CO 80294
Judge Wang,
This report serves as our August 28, 2019 status report mandated by the Consent Decree filed March 15, 2019 pursuant to Case No. 1:11-cv-02285-NYW. As you know, the Consent Decree (following your earlier court order) requires us to monitor progress and provide recommendations for improvement to the Colorado Department of Human Services (CDHS). Specifically, the Consent Decree (p.24) indicates,
(i) As part of the duties, the Special Master shall provide the Court and the Parties with status reports every other month for the first six months, and then quarterly thereafter. The Special Master’s status report was submitted on January 28, 2019. Dkt. 146. The next report shall be submitted to the Court and the Parties on March 28, 2019, and then May 28, 2019, and then quarterly thereafter. Such reports shall address the Department’s compliance with the timeframe requirements of the Consent Decree concerning Competency Services and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department’s compliance with the Consent Decree timeframes concerning Competency Services.
(ii) The Special Master’s report shall include, but is not limited to, reporting on the number of Pretrial Detainees ordered to receive Competency Services, an assessment of the Department’s operations, systems, and admissions practices and policies relating to the Department’s ability to comply with the Consent Decree timeframes, and guidance to the Department for improvement and increasing efficiencies in these areas.
Since our appointment as Special Master on January 2, 2019, the parties entered into mediation, resulting in the Consent Decree filed March 15, 2019. This Consent Decree prescribed a variety of steps the Department must take to improve the competency assessment and restoration system in Colorado, and eventually attain compliance with all time frames and deadlines mandated in the Consent Decree. The Department has initiated many of these steps, demonstrating meaningful progress, in ways we detail through the remainder of this report. In particular, this report will focus on developments since our prior quarterly report, which was submitted May 28, 2019.

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Page 3
TABLE OF CONTENTS
INTRODUCTION .............................................................................................................................. 4
KEY METRICS FOR PROGRESS: COMPLIANCE WITH TIME FRAME REQUIREMENTS.................................6 KEY METRIC: COMPETENCE EVALUATION TIME FRAMES...................................................................7 KEY METRIC: COMPETENCE RESTORATION TIME FRAMES.................................................................8 KEY METRIC: THE WAITLIST FOR COMPETENCE RESTORATION SERVICES........................................11
CONSENT DECREE SECTION VI UPDATES......................................................................................12
ADMISSION OF PRETRIAL DETAINEES FOR INPATIENT COMPETENCY EVALUATIONS AND RESTORATION TREATMENT ........................................................................................................................................... 12
Wait Times for Inpatient Evaluation .................................................................................................. 13 Wait Times for Inpatient Restoration ................................................................................................ 15 PERFORMANCE OF JAIL COMPETENCY EVALUATIONS .......................................................................... 19 INTERIM JAIL MENTAL HEALTH TREATMENT ......................................................................................... 21 RELEASE OF PRETRIAL DETAINEES FOR COMMUNITY-BASED RESTORATION TREATMENT...................23 TRANSPORTATION OF PRETRIAL DETAINEES ......................................................................................... 24 NOTIFICATION OF NON-COMPLIANCE WITH TIME FRAMES..................................................................25
CONSENT DECREE SECTION VII UPDATES.....................................................................................26
CIVIL BED FREEZE ................................................................................................................................... 26 COMPREHENSIVE AND COHESIVE PLAN ................................................................................................ 27 INCREASE COMMUNITY RESTORATION SERVICES ................................................................................. 30
CONCLUSION ................................................................................................................................ 34

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INTRODUCTION
The Consent Decree filed March 15, 2019 prescribed a variety of steps the Department must take, and timelines it must meet, to improve the competency assessment and restoration system in Colorado. Since the Consent Decree was filed in March, the Department has begun taking many of these steps (detailed through the remainder of this report), in ways that we consider generally responsive, and in ways that appear to recognize the gravity and complexity of the challenges they face.
Nevertheless, the Department’s important planning and action steps thus far have not yet caused significant changes to the waiting list, or waiting times, of the defendants ordered to receive competency-related services. As you’ll see in the next section, these important markers of progress have changed little since the implementation of the Consent Decree. We are not yet alarmed by this; many of the key interventions prescribed in the Consent Decree began only recently. For example, the triage system began June 1, 2019, and the Forensic Support Team (FST) has only very recently hired staff and begun training. Whereas the Department’s progress preceding our May 28th report was largely organizing and planning key interventions, their progress since our May 28th report has been largely launching these key interventions. In particular, significant steps since our last report include:
• Enacting the Triage system, a key compromise from the Consent Decree, which requires the Department to rapidly (i.e., within 7 days) admit for competence restoration the most acutely ill defendants (“Tier 1”) and less rapidly admit those who less urgently need hospitalization (“Tier 2”).
• Admitting these Tier 1 defendants for inpatient restoration in a prompt manner, consistent with the requirements of the Consent Decree.
• Hiring new, well-qualified staff for key leadership roles, i.e., the Forensic Services Director and the Forensic Services Support Team Director.1
• Launching the Forensic Support Team (FST), another key component of the Consent Decree. The FST will ensure monitoring and treatment for those incompetent-toproceed (ITP) defendants in jail awaiting hospitalization, as well as those ITP defendants ordered to community-based restoration.
• Developing a draft of a “comprehensive and cohesive plan” for competency services in Colorado, and sharing this draft plan beyond the Department.
1 We support the position descriptions and the two individuals hired for these two positions.

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• Dramatically improving data systems, analysis, and reporting of competency-related information.
• Implementing enhanced competency evaluation reports, consistent with mandates from the Consent Decree and SB19-223. These reports now include more in-depth information regarding competency of the defendant as well as opinions on placement for restoration (inpatient vs. community-based restoration) and urgency of clinical need (Tier 1 vs. Tier 2).
• Opening 18 new beds for competency restoration at the Boulder County Jail’s RISE program. This program replicates the RISE program at Arapahoe County Jail.
• Disseminating a request for proposals for sheriff’s departments across Colorado to request funding for enhanced mental health services for defendants awaiting competency services in local county jails. This funding was provided by SB19-223.
We have not expected the planning and launch of these interventions to have substantial effect on CDHS competency-related timelines immediately. However, we do expect these interventions should yield some progress towards meeting key time frame requirements and reducing waitlists by our next reporting period.
Since the Department has just launched several key interventions, some of the primary challenges (i.e., the areas for closest scrutiny and support) we identified in our prior quarterly report still remain:
• Better educating the court and the bar about the triage system and other new interventions, so that they will act in ways that support (rather than undermine) the triage system and the broader goals of admitting the most acutely ill defendants most rapidly. These educational efforts will need to be prompt and assertive in order to help courts understand and support new procedures and less often issue “show cause” orders that compromise CDHS goals of triaging by greatest clinical need. Although the Department has described some dissemination efforts, we consider further dissemination efforts crucial in the very near future.
• Ensuring adequate training and reliability among evaluators as learn to include triage opinions and restoration placement recommendations in their competence evaluation reports. Furthermore, these changes for evaluators require attention to their morale and engagement. Generally, the evaluators have been frustrated with the ways changes have been implemented, and it will remain crucial to enlist their engagement in these changes and improve collaborative relationships with the Department leadership.

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We also anticipate the following new challenges:
• Using the newly launched Forensic Support Team to assist and support defendants found incompetent to proceed (ITP) who are either in jail awaiting transfer to Colorado Mental Health Institute at Pueblo (CMHIP) or in the community receiving community-based restoration treatment. As the Department knows, the first several months after launching any new initiative will require significant monitoring, revision, and changes as unanticipated challenges inevitably arise.
• Accelerating restoration services for defendants designated Tier 2. Whereas the Department has been remarkably prompt in hospitalizing the Tier 1 patients, full adherence to the Consent Decree will require improving timely service to Tier 2 defendants as well.
Overall, we continue to affirm the Department’s efforts to enact the changes prescribed in the Consent Decree. As detailed throughout the report, there remain several significant challenges, and room for improvement in certain areas. But, broadly, the Department’s efforts to comply with the Consent Decree have been well-conceived, and usually well-executed.
We begin by addressing the Department’s compliance with time frame requirements, because this is the primary focus of the Consent Decree (and the focus that the Consent Decree prescribes for these quarterly reports). Indeed, we consider these time frames our “key metrics” — or primary markers of progress — that we review in each quarterly report. However, we then expand to address the other interventions prescribed by the Consent Decree because progress in these interventions will likely contribute to progress in achieving the overall goal of compliance with time frame requirements.
KEY METRICS FOR PROGRESS: COMPLIANCE WITH TIME FRAME REQUIREMENTS
As prescribed in the Consent Decree, a primary focus of our quarterly reports must be the Department’s compliance with time frame requirements:
(i) As part of the duties, the Special Master shall provide the Court and the Parties with status reports ... Such reports shall address the Department’s compliance with the timeframe requirements of the Consent Decree concerning Competency Services and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department’s compliance with the Consent Decree timeframes concerning Competency Services. (Consent Decree p.24)
(ii) The Special Master’s report shall include, but is not limited to, reporting on the number of Pretrial Detainees ordered to receive Competency Services, an assessment of the Department’s operations, systems, and admissions practices and policies relating to the Department’s ability to comply with the Consent Decree timeframes, and guidance to the Department for improvement and increasing efficiencies in these areas.

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Page 7
Therefore, a primary focus of our review is the Department’s progress in meeting the time frames delineated in the Consent Decree. This includes both time frames for competence evaluation and for competence restoration. We anticipate that these will be the key metrics to demonstrate progress over the next few years, so they are our starting point in the report, as well as a primary focus. Of course, performance in meeting these time frames depends greatly on enacting the other steps prescribed in the Consent Decree, so we review those steps in subsequent sections of the report.

KEY METRIC: COMPETENCE EVALUATION TIME FRAMES
As summarized in the table below, the Department has been meeting the timelines for competence evaluation that the Consent Decree prescribed beginning June 2019. Indeed, the Department was meeting these evaluation time frames even before June 2019.

Wait Times for Competence Evaluation Services2

June 2019 Average Wait

July 2019 Average Wait

Jail-based

Competency

21.8

23.7

Evaluations

Inpatient

Competency

11.2

14.4

Evaluations

June 2019 Requirement
28 days
21 days

January 2020 Requirement
8 days
21 days

Generally, timely competence evaluation has been a relative strength of the Department. Well before the recent Consent Decree, they followed the national trend of de-centralizing evaluations, moving them from solely an inpatient service to a localized service in the community. During recent history, their evaluations have almost always met the prescribed time frames. Quite recently, they appeared at risk of failing to meet these time frames, due to a shortage of evaluators (some permanently left positions, while others were on temporary leave). But rapid hiring and contracting of evaluators seems to have averted significant delays,3 and the Department appears likely to meet evaluation time frames in the next month. However, as

2 Data from July 2019 is the most recent data available from CDHS.
3 According to the CDHS representatives with whom we have spoken about this. Ultimately, the August 2019 Monthly Compliance Report (due September 7, 2019) will reveal evaluation timelines for the month of August.

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Page 8
detailed later in the report (addressing Consent Decree paragraph 33), we anticipate they will need to take additional steps over the next year to maintain their compliance, particularly when the prescribed time frames decrease in July 2020. But overall, the Department has performed well with respect to competence evaluation time frames.
KEY METRIC: COMPETENCE RESTORATION TIME FRAMES
In contrast to their prompt evaluation services, the Department has consistently failed to provide prompt restoration services. Over the past six months preceding our last report, defendants who were admitted for inpatient restoration treatment at CMHIP or RISE waited, on average, 71 days.4 Of course, this figure included all defendants referred for restoration, without distinction between those more, versus less, acute needs. Since that last quarterly report, however, a key change prescribed in the Consent Decree came into effect on June 1, 2019. The Consent Decree prescribed a new triage system5 designed to prioritize the defendants with the most acute clinical needs (“Tier 1”) over those with less acute clinical needs (“Tier 2”). Tier 1 defendants must receive services within 7 days of the competency hearing, whereas Tier 2 defendants need not receive services for 56 days (with Tier 2 deadlines shortening in the future). Overall, recent CDHS monthly reports describe excellent adherence to the 7-day deadline for defendants whom the court has designated as Tier 1 (i.e., average wait times well under 7 days).6 However, wait times for Tier 2 defendants still far exceed the time frames prescribed in the Consent Decree (i.e., average wait times exceeding 80 days, approximately one month beyond the required 56 days).
4 Average waiting period November 2018 – April 2019, as calculated from data provided by the Department (see p.7 of their Monthly report filed May 7, 2019). 5 See Consent Decree paragraph 43. 6 According to Special Master Compliance Plan report July 2019 p.10 (submitted August 7, 2019).

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Summary statistics are presented below:

Average Wait Times for Inpatient Competence Restoration Services

June 2019

July 2019

June 2019 Requirement

Tier 1

1

4.4

7 days

Tier 2

80.8

93.6

56 days

January 2020 Requirement
7 days
49 days

However, each of these summary statistics requires more discussion. First, the figures for Tier 1 defendants reflect only Tier 1 defendants as defined in the Consent Decree, that is, defendants whom the court has designated as Tier 1 and ordered to the hospital. This represents only a fraction of the number of defendants whom CDHS evaluators have recommended as Tier 1 (for example, the June figure is based on two defendants and the July figure is based on 7 defendants) because many of their cases are resolved before the court enters an order designating them as Tier 1.
Specifically, CDHS7 explained that since the implementation of the triage system on June 1, there have been 53 unique individuals whom the Court Services evaluators have opined as Tier 1 (as of August 23). Of those 53, most (37) were admitted to CMHIP, usually well before the court ordered admission. For one defendant whom an evaluator recommended Tier 1 status, jail medical staff conveyed he was stabilized and the Court did not enter an order for hospitalization (he remained in jail). Another individual was ordered to outpatient restoration services, and one individual was stabilized to the point he did not require hospitalization. For the remaining, CDHS is reportedly awaiting a court order (as of their last update).
In many respects, this summary bodes well for CDHS efforts to implement the triage system. According to CDHS administrators and data management personnel, the vast majority of defendants whom evaluators designate as Tier 1 are admitted to the hospital promptly (i.e., well within seven days), and often even before the Court designates them as Tier 1 and orders admission. For those that have not, CDHS has offered what appear to be plausible explanations.
Frankly, it is difficult at this stage to understand these few exceptions or the circumstances surrounding them. Once the Forensic Support Team (FST; see later in this report) launches later this month, the FST will have close oversight of these defendants. But in this brief interim period (i.e., after the launch of the Triage system but before the launch of FST), there has been little

7 According to email from CDHS staff Stephanie Sollie to Special Masters dated August 23, 2019.

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mechanism for close oversight of these situations. Consequently, we have requested CDHS to provide an individualized accounting of each person opined by evaluators as Tier 1 (i.e., dates of admission for those that were admitted and a detailed description of the remainder). We view this Tier 1 population as the heart of the Consent Decree — those defendants who are identified most urgently needing hospital-level care — and we must ensure that their needs are met in ways consistent with the letter and spirit of the Consent Decree. We look forward to reviewing CDHS’s detailed account of each Tier 1 defendant’s pathway, and reporting this information to you in our next quarterly report to the Court.
Regarding Tier 2 defendants, progress has been limited. Average wait times still far exceed the time limits in the Consent Decree, just as they did for all defendants in prior months. Thus, the Tier 1 figures suggest that the Triage System serves the purpose for which it was designed: i.e., prioritizing the most acutely ill defendants and moving them into the hospital rapidly. However, the Tier 2 figures reveal that CDHS continues to struggle with some of the primary challenges that prompted the Consent Decree: i.e., responding to the volume of defendants referred for inpatient restoration, and admitting them into the hospital within a reasonable time frame.

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KEY METRIC: THE WAITLIST FOR COMPETENCE RESTORATION SERVICES
Beyond the wait times for restoration services (and progress towards the time frame requirements of the Consent Decree), another key metric for gauging the Department’s progress is the waiting list for competence restoration services. In the months preceding our prior report, the waitlist averaged around 150 to 160 defendants.8 But again, with the initiation of the Triage system on June 1, we must consider the waitlist according to Tier status. Central to the Triage system is an acknowledgement that some incompetent defendants are so acutely ill that they require treatment almost immediately (Tier 1, who require treatment within 7 days), whereas others can safely await treatment (Tier 2, who can wait several weeks).

Number of Defendants on Waiting List for Inpatient Restoration9

March 2019

April 2019

May 2019

Combined Tier 1 Tier 2

153.29 N/A N/A

158.63 N/A N/A

159.96 N/A N/A

June 2019 N/A 6 182

July 2019 N/A 8 168

8 At present, the Department provides waitlist data as daily figures, so the monthly figures in the table reflect averaged daily figures.
9 According to Special Master Compliance Plan report July 2019 p.10 (submitted August 7, 2019)

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CONSENT DECREE SECTION VI UPDATES
ADMISSION OF PRETRIAL DETAINEES10 FOR INPATIENT COMPETENCY EVALUATIONS AND RESTORATION TREATMENT
33. (a) Admission of Pretrial Detainees for Inpatient Competency Evaluations and Restoration Treatment. The Department shall Offer Admission to Pretrial Detainees to the Hospital for Inpatient Restoration Treatment or Inpatient Competency Evaluations pursuant to the attached table (Table 1). Compliance with this measure shall be calculated based on the number of Days Waiting for each Pretrial Detainee.
The Consent Decree prescribes the following time frames for admitting defendants to inpatient competence restoration and for performing competence evaluations (whether inpatient or in jail).11 Admission time frames become progressively shorter at each six-month increment. Evaluation time frames are reduced in July 2020.

Deadlines
June 1, 2019 January 1, 2020 July 1, 2020 January 1, 2021 July 1, 2021

Tier 1: Maximum Time to Offer Admission for Inpatient Restoration

Tier 2: Maximum Time to Offer Admission for Inpatient Restoration

Maximum Time to Offer Admission
for Inpatient Competency Evaluations

Maximum time to Complete Jail Competency Evaluations

7 days 7 days 7 days 7 days 7 days

56 days 49 days 42 days 35 days 28 days

21 days 21 days 14 days 14 days 14 days

28 days 28 days 21 days 21 days 21 days

10 “Pretrial Detainee” means a person who is being held in the custody of a County Jail and whom a court has ordered to undergo Competency Services. Persons serving a sentence in the Department of Corrections and juveniles are excluded from this Consent Decree.
11 Fine amounts are tied to delays beyond each of the time frames listed. However, these fines are discussed elsewhere in this report.

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As summarized earlier in this report (“Key Metrics”), the Department generally meets June 1 time frames for competency evaluations, and even meets the time frame for admitting Tier 1 defendants to restoration. But they far exceed the time frames for Tier 2 admissions to competency restoration.
Wait Times for Inpatient Evaluation
As detailed below, the Department has been quite successful in timely admission for inpatient competence evaluations (versus restoration):

Recent Wait Times for Inpatient Evaluation

Month

Number admitted to CHMIP for inpatient
evaluation

Jul 19

18

Jun 19

14

May 19

12

Apr 19

18

Mar 19

18

Feb 19

13

Average

15.5

Average days waited prior to admission to
CMHIP or RISE
14.4 11.2 11.7 12.6 16.4 13.3 13.2

People who waited more than 28 days
0 0 0 0 1 0 .17

Over the past six months, 15.5 people per month, on average, were admitted for an inpatient evaluation at CMHIP. The average wait time for admission to CMHIP for inpatient competency evaluation was 13.2 days (almost 4 days fewer than the 6-month average we reported in the prior quarterly report). The Department regularly met its goal of admitting all people ordered for inpatient evaluation within 28 days. Indeed, the average wait prior to admission has generally decreased over the past year. Overall then, the Department has consistently met the time frames for inpatient competence evaluation.
According to CDHS reports, only a fraction of those defendants ordered for inpatient evaluation actually met the strict criteria for involuntary hospitalization (C.R.S. § 27-65-105).12 Specifically,

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CDHS reported that during the past 5 months, only about 1 in 5 admissions for inpatient evaluation met that strict “27-65” criteria.13 Certainly some defendants warrant hospitalization even if they do not meet the strict criteria, so more analysis is needed to determine just how many of these referrals urgently needed hospitalization (even if they did not meet strict criteria for civil commitment).
At the time of our last Quarterly report, there appeared to be an increase in admissions for inpatient evaluation, perhaps reflecting increasing court efforts to “fast track” defendants for admission at the evaluation stage, in an effort to bypass lengthy delays at the restoration stage (i.e., following a finding of incompetence in a jail-based evaluation). However, this trend has not continued. That is, admissions of inpatient evaluations have held generally steady, rather than continued their rapid increase. Therefore, although CMHIP should always make efforts to minimize inappropriate admissions at the evaluation stage, we are no longer as concerned that courts are ordering inordinate inpatient evaluations to “workaround” delays in admission for restoration. We anticipate that as CDHS disseminates information about the triage system to courts and counsel, fewer “workarounds” will occur.
12 C.R.S. § 27-65-105: (1) Emergency procedure may be invoked under either one of the following two conditions: (a)(I) When any person appears to have a mental health disorder and, as a result of such mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then an intervening professional, as specified in subsection (1)(a)(II) of this section, upon probable cause and with such assistance as may be required, may take the person into custody, or cause the person to be taken into custody, and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation… (b) Upon an affidavit sworn to or affirmed before a judge that relates sufficient facts to establish that a person appears to have a mental health disorder and, as a result of the mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, the court may order the person described in the affidavit to be taken into custody and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation. 13 From the August 7, 2019 CDHS Monthly Compliance Plan Report (p. 17).

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Wait Times for Inpatient Restoration
Compared to the timely inpatient competence evaluations, there are far more concerns regarding inpatient restoration at CMHIP. Over the past few years, wait times consistently exceeded the 30-day time frames mandated by an earlier Settlement Agreement. However, the required time frames changed significantly as of June 1, 2019, per the Consent Decree. The maximum time frame for many defendants (those labeled as Tier 2) waiting in jails has been extended to 56 days. The time frame for defendants with the most urgent clinical needs (those labeled Tier 1) will be only 7 days.

Recent Wait Times for Inpatient Restoration14

Month

Number of people admitted to CHMIP for inpatient restoration
Tier 1 Tier 2

Average days waited for admission to CMHIP inpatient restoration Tier 1 Tier 2

People who waited more

than the max days for

admission to CMHIP

inpatient restoration

Tier 1

Tier 2

Jul 19

6

59

4.4

93.6

1

*

Jun 19

2

44

1

80.8

0

*

May 19

57

106.6

56

Apr 19

51

59.1

39

Mar 19

41

61.6

32

Feb 19

54

65.6

43

* CDHS has not provided in their monthly report the number of Tier 2 individuals who waited more than the maximum allowable days for admission to CMHIP for inpatient restoration. (Perhaps because 56 days had not passed between the start of the triage system and their August 7, 2019 report). We have requested these data.

14 According to Special Master Compliance Plan report July 2019 p.9-10 (submitted August 7, 2019).

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As the table reveals, most of the defendants now designated as Tier 2 wait much longer than the required 56 days before admission. In June and July, a total of 103 Tier 2 individuals were admitted to CMHIP, with their days waited prior to admission averaging 88.1 days. However, the much smaller group of patients designated as Tier 1 were admitted rapidly, consistent with the mandates of the Consent Decree. In June and July, a total of 8 Tier 1 individuals were admitted to CMHIP, with their days waited prior to admission averaging 3.55 days.
In many ways, these Tier 1 numbers are commendable. As mentioned previously, we view the Tier 1 individuals as the highest priority for the Consent Decree and the CDHS competency system. We are pleased that those whom CDHS categorized as Tier 1 were admitted rapidly (on average). However, confusion remains regarding the discrepancy between the numbers of individuals opined by evaluators as Tier 1 in June and July (40 in total)15 and the numbers admitted. CDHS has explained that many of these individuals were subsequently admitted in August, that some had orders vacated, and that some were awaiting decisions from court. However, the discrepancy seems unexpectedly large; we have asked CDHS to track each of these Tier 1 individuals and provide specific information regarding each person’s location, dates of transfer, updated legal status, and other information.
The Tier 2 timelines are more problematic. Tier 2 individuals are mandated to CMHIP, but with less urgency. To date, CMHIP has been able to nimbly create space for Tier 1 individuals, inevitably by prioritizing them over Tier 2 individuals. However, Tier 2 individuals must also be admitted within certain time frames. The only options for reducing their wait times are to create space for them in CMHIP (by reducing restoration lengths of stay or creating new beds) or to transfer them to community-based treatment (if they are appropriate for such treatment). In short, while Tier 1 individuals must be prioritized for admission (thereby treating those who need it most), successful compliance with the Consent Decree must also reduce Tier 2 time frames; such compliance will demonstrate that CDHS’ competency system has created adequate capacity for all levels of competency restoration.
In our last Quarterly Report, we identified several pending developments that would greatly influence the Department’s capacity to reduce these wait times for inpatient restoration. Fortunately, most of these developed in ways conducive to meeting the requirements of the Consent Decree, though a few challenges remain. For example,
• First, all parties recognized that the launch of the Triage System would be pivotal to the Department’s success, and that many (then unknown) aspects of the triage decisions would influence the Department’s ability to comply with the timelines in the Consent Decree. In particular, all were concerned that a very high proportion of Tier 1 designations might make it nearly impossible to admit such defendants in the required time frame (7 days). But preliminary data suggests that evaluators designated roughly
15 Information taken from August 7, 2019 CDHS Monthly Compliance Report, p.16.

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one-third of defendants as Tier 1, a proportion that has proven manageable for the Department. Indeed, the Department reports that most of these were admitted for inpatient restoration even before the Court ordered admission. More broadly, this suggests the new Triage procedures have been successful in making meaningful distinctions among defendants, and identifying those at highest need.
• Second, the Boulder County Jail’s RISE program — which opened as scheduled in June — provided another option for inpatient-like restoration service. These 18 new beds reduced the pressure on the CMHIP inpatient restoration waitlist and (though calculations are impossible given the new triage policy separating Tier 1 and Tier 2 waitlists) likely decreased wait times for some defendants. Although the exact impact of the RISE beds cannot be precisely determined (amid other simultaneous changes in the complex CDHS competency system), 18 new beds are beneficial.
• On the other hand, the Department continued to struggle with “show cause” orders from judges ordering defendants into inpatient restoration before their standing on the waitlist would warrant, thereby bypassing other defendants who have been waiting longer, and contributing to overall delays. All parties anticipated that these orders would decrease, given efforts by CDHS and DLC to educate the bar and the courts on these risks. However, the Department reports that the number of show cause orders has remained roughly consistent, and (because of their unpredictable nature) actually pose more challenges to CMHIP admissions than the Tier 1 urgent admissions. We continue to recommend an aggressive “marketing” campaign to educate the judiciary about the new triage system and discourage use of show cause orders.
At least two other emerging factors should influence inpatient restoration waitlists:
• First, the Department is launching the Forensic Support Team (FST) near the end of August. Mandated by the Consent Decree, the FST consists of 18 mental health positions (1 director, 2 supervisory “Coordinator” positions, and 15 “Forensic Navigator” positions), providing coverage to all of Colorado’s judicial districts. This team, dedicated exclusively to persons receiving competency services, is responsible for monitoring defendants awaiting transfer to CMHIP for inpatient competency restoration while in jail, coordinating jail-to-community based restoration treatment discharges, monitoring care and restoration progress for defendants in community-based restoration treatment, supporting their community tenure, and providing a centralized and consistent point of contact for competency-related stakeholders.
The FST will be operational later than the August 1 date mandated in the Consent Decree. This is disappointing. But other than this delay, we have been impressed with most aspects of the FST development. The Department has hired a strong FST leader and has begun carefully detailing the ways in which the FST will supplement and coordinate

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with the Bridges Program liaisons16 (who are employed by the courts, rather than the Department). The Department created a comprehensive two-week orientation for the FST Navigators, including coordination with the Bridges liaisons. Indeed, these complementary services appear to be developing solid lines of communications and procedures for collaboration, to deliver complementary services that minimize redundancy or gaps in responsibilities.
We anticipate that the FST will help fine-tune the Triage System. For example, when a Tier 2 defendant becomes acutely ill, the FST can facilitate transition to Tier 1 status. Likewise, when a Tier 2 defendant improves, FST may facilitate transition to CommunityBased Restoration Treatment (CBRT). The latter circumstance is especially important in ultimately reducing the waitlist for competency restoration. Similarly, we anticipate that as FST proves reliable to Courts, Courts will become increasingly comfortable recommending certain types of defendants for CBRT (as described next).
• Finally, the impending policy of including placement recommendations (i.e., inpatient vs. outpatient restoration) in evaluator reports may influence waitlists. Optimally, as community-based restoration treatment options become increasingly available, along with a stronger support system (through the relatively new Bridges liaisons and the entirely new FST) for defendants in outpatient restoration, evaluators and courts will be increasingly comfortable prioritizing community-based restoration treatment (CBRT) over inpatient restoration at CMHIP. This should reduce substantially the number of defendants waiting for inpatient restoration. Again, this will require evaluators who consistently and reliably offer well-informed placement opinions. It will also require a proactive Bridges and FST system, and available slots among CBRT providers (all discussed later in this report).
16 The Statewide Behavioral Health Court Liaison Program (or “Bridges Program”) is a recentlyimplemented program operated by the Colorado State Court Administrator pursuant to SB18-251. It created 27 mental health positions, placed in each of Colorado’s judicial districts, for the purpose of facilitating communication and collaboration among judicial, health care, and behavioral health systems. Liaisons are primarily dedicated to working with competency-related cases and defendants.

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PERFORMANCE OF JAIL COMPETENCY EVALUATIONS
33. (b) Performance of Jail Competency Evaluations. The Department shall complete all Jail Competency Evaluations of a Pretrial Detainee pursuant to the attached table (Table 1), after the Department’s receipt of a Court Order directing the evaluation and receipt of Collateral Materials. This timeframe requirement shall apply to the following counties: Adams, Alamosa, Arapahoe, Boulder, Broomfield, Crowley, Custer, Denver, Douglas, El Paso, Elbert, Fremont, Huerfano, Jefferson, Larimer, Mesa, Otero, Pueblo, Teller, and Weld. Counties not specifically identified are counties that use the “Hold and Wait” court ordered process. Counties utilizing the Hold and Wait Evaluation process will be offered a meeting date within 30 days of the Department’s receipt of the Court Order and Collateral Materials, and the evaluation will be completed within 30 days of the meeting. Beginning January 1, 2020, counties utilizing the Hold and Wait Evaluation process will be offered a meeting date within 30 days of the Department’s receipt of the Court Order and Collateral Materials, and the evaluation will be completed within 14 days of the meeting.
During this past quarter, the mandated time limit for a jail-based evaluation decreased from 30 to 28 days, per the Consent Decree. According to data they provided, the Department still achieved almost perfect compliance with this time frame.17 The exceptions were brief, and they could be reasonably categorized as Individual Special Circumstances. Our understanding is that the Department faced some challenges due to periods in which they were short-staffed (some evaluators left their positions, while others were on temporary leave), but they ultimately met the timelines. Prior to this period, the Department had maintained perfect compliance with the previous 30-day time frame for many months. The Department has also taken strides to hire additional contracted evaluators in the community, pursue increased pay in order to recruit and retain high quality evaluators, and proceed with creating new evaluator positions in early 2020.
As in our prior Quarterly Report, we continue to commend the Department’s timely completion of jail-based evaluations, but also encourage them to consider several developments that may make it more challenging to maintain this success in the future. We are confident the Department can continue providing timely jail-based evaluations, particularly if they plan well for the following:
• The recent “close call” in which the Department came close to missing more jail-based evaluation deadlines, and averted problems by rapidly contracting with new evaluators, demonstrates their commitment to meeting deadlines. But the incident also demonstrates that compliance can be precarious without a steady, sufficient workforce. In the past, the Department has sometimes been in a position of providing hasty responses to unanticipated challenges. We encourage the Department to carefully anticipate workforce challenges and needs (e.g., compensation and retention) well in advance of crises.
17 Data taken from the August 7, 2019 CDHS Monthly Compliance Plan Report covering July (pp. 20).

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• One challenge in maintaining a strong workforce of evaluators involves morale. In general, CDHS evaluators have expressed frustration with the ways in which CDHS administration implemented the recent changes in evaluations that were mandated by the Consent Decree and SB19-223. Evaluators have complained that implementation has been hasty, ill-defined, and neglected evaluator expertise. In many respects, we are sympathetic to the evaluators’ frustrations. We are urging CDHS to better enlist evaluator expertise. After an initial meeting between evaluator supervisors and CDHS upper administration, we are more optimistic about a path forward in which CDHS better enlists evaluators in these systematic changes.
• On July 1, 2020, the new time frame for jail-based evaluations will decrease to 21 days. The Department must produce data well in advance of this change to determine how many additional evaluators they will need to hire in order to meet this shortened deadline. Their analysis should occur soon enough to adjust the budget and secure funding to hire these additional positions. Our understanding is that the Department has been preparing a “time study” of evaluator workloads and time required. They have recently opted to pursue a consultant to conduct the time study; we encourage them to proceed as soon as possible.
• Also, as the time frames change, workloads must be reasonable. We have not reviewed data on the number of evaluations assigned to a 1.0 FTE Court Services evaluator; again, we will do so in the future. We raise this issue for three reasons:
o The upcoming 2020 time frames. It may be unreasonable to expect evaluators to complete evaluations 25% sooner without a review of appropriate workloads and/or without hiring additional evaluators. Workloads will almost certainly need to be adjusted as these new time frames are implemented.
o New required content. The Consent Decree and SB19-223 both require that evaluators include additional content in their evaluation reports. Evaluators have already raised concerns that these new demands will require more time.
o Involvement in training and setting policy. We strongly encourage CDHS to solicit input from the Court Services evaluator team in terms of trainings and policy. The branch has special expertise in forensic evaluations and forensic standards; CDHS administration should capitalize on this knowledge when developing training materials, quality assurance standards, workload expectations, and other evaluation matters.
Finally, with respect to competence evaluations, we completed a preliminary quality review of sample competence evaluation reports (i.e., one report from each CDHS evaluator). Generally, our impressions were positive. Though there was some room for improvement (which we addressed in feedback) the reports generally reflected good professional practice, and revealed no gross problems.

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INTERIM JAIL MENTAL HEALTH TREATMENT18
34. Interim Jail Mental Health Treatment. If the court does not release the Pretrial Detainee to Community-Based Restoration Treatment and the Pretrial Detainee is awaiting receipt of Inpatient Restoration Treatment, the Department shall work with the County Jails to develop a program to assist in the provision of coordinated services for individuals in accordance with C.R.S. §§ 27-60-105 et seq. to screen, treat, assess, and monitor for triage purposes Pretrial Detainees in the least restrictive setting possible. This paragraph does not toll or otherwise modify the Department’s obligation to Offer Admission to the Pretrial Detainees for Inpatient Restoration Treatment. Interim Jail Mental Health Treatment shall not replace or be used as a substitute for Inpatient Restoration Treatment but does not preclude the Department from providing Restoration Treatment. A member of the Forensic Support Team shall report to the Court Liaison every 10 days concerning the clinical status and progress towards competency of the Pretrial Detainee.
The Department is required to partner with county jails to develop a program of coordinated services for individuals receiving competency-related services. These services are currently managed statewide through the Jail-Based Behavioral Services program (JBBS) and are funded by the approximately $2.5 million per year recently appropriated by SB19-223.
Essentially, the Department utilizes JBBS as a hub for coordinating subcontracted services across Colorado. These subcontracted providers are now asked to provide adequate mental health services to inmates involved with competency-related services. Interim mental health treatment for defendants receiving competency-related services is critical. It lies at the heart of the long litigation and conflict between the Disability Law Center (DLC) and the Department. DLC and its constituents have long argued that county jail conditions — and insufficient mental health services — cause harm to incarcerated incompetent defendants as they wait in jail for transfer to CMHIP. If services were substantially improved, however, this concern could be assuaged. The goal of Interim Mental Health Treatment is to do just that — screen, monitor, assess, and treat those receiving competency-related services in county jails so that they remain physically safe and clinically stable until their transfer to competency restoration services.
However, the structure of JBBS creates some challenges. Because the JBBS-subcontracted providers differ across counties and jurisdictions, no two providers are alike. Services differ. Some providers have strong connections with local and private inpatient hospitalization facilities, while others have weaker ties. Workforce and qualifications also differ among providers. This poses some challenges for CDHS; while individualized services are enhanced given the local nature of the providers within JBBS, uniformity and leverage across providers are more difficult.
18 “Interim Jail Mental Health Treatment” means mental health treatment of a Pretrial Detainee that is performed in the County Jail where the Pretrial Detainee is held while the Pretrial Detainee awaits Community-Based or Inpatient Restoration Treatment per Court Order consistent with the time frames in the Consent Decree. It is NOT a proxy or substitute for competency restoration services.

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This challenge is currently embodied in the Department’s push to encourage JBBS providers to expand jail mental health services to competency-related defendants. Since our last quarterly report, CDHS has made considerable progress in a number of areas regarding JBBS and enhanced mental health services for competency-involved inmates; however, challenges remain.
Two significant positive developments have occurred since our last quarterly report. First, the Department hired Jagruti Shah as the new Forensic Services Director. This is particularly helpful for the Interim Jail Mental Health requirement, because Ms. Shah’s former position oversaw JBBS and all related contracts. Her promotion ensures that a working knowledge of JBBS will be well-represented in the highest levels of the Department’s forensic mental health administration. Secondly, the Department put out a call to expand contracts to all current JBBScontracted providers to expand existing mental health services to competency-involved inmates in July 2019.
However, responses so far illustrate the challenges of relying on a system built of subcontractors. To date, CDHS has received responses from six providers. Two contractors requested funding, two declined funding, and two stated that there are still considering a response. This is the definition of a “mixed bag.” While we are pleased that two county providers will be seeking funding, we are somewhat disappointed that the response rate has been so lukewarm. Such is the reality of relying upon a network of contracted providers.
In conversations with Ms. Shah, she has stated that this has been a typical pattern for most providers with previous initiatives. She remains optimistic that several other providers will submit proposals, and she maintains that she is in close contact with counties who have yet to submit responses. We rely on Ms. Shah’s experience and expertise in this area, and tentatively defer to her optimism as it is based on years of experience with these providers in similar contexts. However, Interim Jail Mental Health Treatment is a key focus in the Consent Decree, and if many providers continue to decline funding, the Department must find alternate ways to meet the needs of those inmates receiving competency services in county jails.
Therefore, we have requested the Department to provide a list of all JBBS providers and a list of those who are seeking funding. We will also ask to review the requests for funding. We want to ensure that the mental health services at each county jail adequately address the individualized clinical needs of each person receiving competency-related services.19 To be fair, some providers who legitimately decline funding may already be able to offer a sufficient continuum of services. However, we are reluctant to assume this to be true for all providers that decline funding – or even those that request funding. We therefore will more carefully monitor the quality of the proposed service plans before our next quarterly report, and we plan to follow up with in-person visits afterward.
19 This service continuum and its associated decision-making processes are detailed in our May 2019 quarterly report.

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RELEASE OF PRETRIAL DETAINEES FOR COMMUNITY-BASED RESTORATION TREATMENT20
35. Release of Pretrial Detainees for Community-Based Restoration Treatment. If the court releases the Pretrial Detainee on bond to commence Community-Based Restoration Treatment, the Department shall coordinate with the Court Liaison to develop a discharge plan (in a format approved by the Special Master) within seven days of the order to all parties involved in the Community-Based Services Recipient’s case, and the Court Liaison and community-based provider.
The Department has made further progress on the requirement to develop discharge plans for persons identified as appropriate for Community-Based Restoration Treatment (CBRT). However, important work remains. In the quarter preceding our prior report, the Department solicited drafted discharge plans from the Bridges Program and compared them with their own CMHIP and CMHIFL discharge plans. They also reviewed other policies and procedures from Bridges.
Ultimately, it became clear that the Bridges Program and the new Forensic Support Team (FST) must work together to facilitate discharge and share responsibilities. The teams will be relying on similar (partially, but not entirely, overlapping) bodies of information. Thus, a crucial task over the past quarter has been for the Department and the Bridges team to communicate in planning services, so that they can ultimately collaborate in a way that minimizes redundancies and gaps. The Department recently developed a “responsibility matrix” to delineate responsibilities for the FST and the Department, particularly as they relate to the Bridges Team. This was not implemented on July 1, as scheduled, because the Forensic Support Team was not hired until recently, and begins work near the end of August.
As the FST launches, it will be crucial that they work collaboratively with the Bridges court liaisons. Thus far, the leadership of each service has met to plan collaboratively, and the FST training has incorporated the Bridges team. They have scheduled additional meetings (including some in which we will be involved) for broad planning, and for collaborative problem-solving as the FST program becomes operational. Given these collaborative efforts surrounding the FST launch, we are optimistic that FST and Bridges will jointly work to care for defendants involved in the competency services, and facilitate transitions to the community as appropriate. As the FST launches at the end of this month, we continue to request the specific documents, policies, and protocols that FST will use to facilitate services and transitions between levels of care.
20 “Community-Based Restoration Treatment” means Restoration Treatment of a Community-Based Recipient that is ordered to be performed out of custody and in conjunction with a community-based mental health center or community organization.

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TRANSPORTATION OF PRETRIAL DETAINEES
36. Transportation of Pretrial Detainees. If a Pretrial Detainee is transported to the Hospital for an Inpatient Competency Evaluation and the Department or a medical professional opines that the Pretrial Detainee is incompetent and the provisions of C.R.S. § 27-65-125 have been met, the Department shall not transport the Pretrial Detainee back to his/her originating jail.
Over the past quarter, a total of 44 defendants were admitted to CMHIP for an inpatient competency evaluation, of whom only 12 met C.R.S. § 27-65-125 criteria, according to hospital staff.21 None of these defendants who met civil commitment criteria were returned to a local jail.22
As mentioned in our prior quarterly report, the recent SB19-223 includes language that could allow CMHIP to keep a defendant ordered for inpatient evaluation at CMHIP from the time that the evaluator opines him or her incompetent to proceed (rather than requiring C.R.S. § 27-65125 criteria be met, or that the originating court adjudicates the defendant as incompetent). This is now found in C.R.S. § 16-8.5-105 (IV-b-5) and reads as follows:
When the court orders an inpatient evaluation, the court shall advise the defendant that restoration services may commence immediately if the evaluation concludes that the defendant is incompetent to proceed, unless either party objects at the time of the advisement, or within 72 hours after the receipt of the written evaluation submitted to the court.
This is a significant change in the law that will require CMHIP and Department administrators to determine policies and procedures governing the decision-making in these circumstances. At times, CMHIP may need to balance these incompetent individuals already in the hospital and in need of hospital-level care with those Tier 1 or Tier 2 defendants in county jails approaching their deadlines for admission. We recommend that the decisions among these individuals be made primarily on clinical grounds, but we also understand the need to admit individuals who have been waiting in county jails for extended periods of time. We anticipate further discussion discussion with the Department around their plans for these situations.
21 According to the July Special Master Compliance Report (p.24), submitted by CDHS on August 7, 2019. 22 See the Department’s monthly report (p. 16) filed May 7, 2019.

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NOTIFICATION OF NON-COMPLIANCE WITH TIME FRAMES
38. Notification of Non-Compliance with Timeframes. The Department shall notify the Special Master and DLC weekly regarding any non-compliance with timeframes. (a) Only one notice per Pretrial Detainee shall be provided and should include: (i) The name of the Pretrial Detainee; (ii) The Pretrial Detainee’s location; (iii) The Pretrial Detainee’s charges based on information available to the Department; (iv) The Pretrial Detainee’s bond amount based on information available to the Department; (v) Whether a forensic assessment has been made on whether restoration in the community is appropriate; (vi) Whether the Pretrial Detainee has previously been found incompetent; (vii) What efforts are being made to provide timely Competency Services to the Pretrial Detainee, including communications with the court, Court Liaisons, and community mental health providers;  (b) The Department shall accompany its Monthly Data Report (see Paragraph 52) with a separate “Fines Report” which will include the names of the Pretrial Detainees for whom the Department has accrued a fine during the preceding month, the number of days each Pretrial Detainee waited in the County Jails past the timeframes for compliance, and the total fines owed by the Department for the preceding month. (c) The Department shall pay the total fines owed on the date the Fines Report is submitted to the Special Master to be deposited in a trust account created for the purpose of funding non-Department mental health services. The account will be managed by a court-appointed administrator. Decisions concerning payments out of the account will be made by a committee consisting of a representative from the Plaintiff, a representative from the Department, and the Special Master. Any disputes regarding the fines shall be handled through the dispute resolution process identified in Paragraph 59.
The Department has indeed consistently provided notification of non-compliance of time frames on a weekly basis, as required by the Consent Decree (since June 1, 2019). Likewise, the Department has completed a “Fines Report,” as prescribed by the Consent Decree. Finally, as prescribed by the Consent Decree, the Department has indeed paid these fines into a trust account (managed by Cordes & Company, LLP).
Regarding the use of these fines, a small committee comprising Department administration (Worthwein, Scofidio), a representative from the Plaintiff (i.e., Disability Law Colorado leader, Ivandick), and the Special Masters has begun meeting. Thus far, the committee has explored how funds from the fines will be collected, managed, and distributed (including the need for an identified, formal procedure for reviewing available funds, interested vendors, and outcomes of expenditures). But this committee has not formalized or finalized these procedures. The committee has also held discussions about priorities for funding (i.e., services beyond those which the Department is responsible for delivering, that will nevertheless serve those likely to be involved in the competency system and will likely reduce waitlists and wait times). As of now, over $1 million in fines have been collected, so it will be important to finalize procedures in the relatively near future, in order to make use of those fines in the fairly near future.

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CONSENT DECREE SECTION VII UPDATES
CIVIL BED FREEZE
39. Civil Bed Freeze. The Department’s 2018 Plan included an effort to freeze civil admissions to its beds to devote Hospital beds to perform Inpatient Restoration Treatment services. On February 7, 2019, the Department agreed to stop this practice. The Department will continue to leave the state’s civil and juvenile beds allocated as of the execution of this Consent Decree for civil and juvenile psychiatric admissions and will not freeze or convert those beds to provide competency services for Pretrial Detainees, unless the Department receives prior agreement from the Special Master to use unutilized beds for such purposes. This strategy to facilitate compliance with the Consent Decree shall only be re-implemented in the future upon agreement of the Special Master.
The Department continues to report that they have removed the “civil bed freeze” as mandated by the Consent Decree. That is, they have not re-purposed the civil beds at CMHIFL for competence restoration, as they had once proposed. Per our request, the Department continues to provide a census report on the CMHIFL patients in their monthly report. As of their most recent report, the CMHIFL population includes a total of 90 patients, 85 of whom were civil patients. Although five patients have a forensic status, the Department has explained these special circumstances to the Plaintiff and the Special Master, and provided reasonable justification in the monthly report. All parties have agreed these reflect reasonable exceptions.
During monthly multi-party meetings, the Department has discussed any potential changes to the use of any CMHIFL beds (e.g., allocating a few new beds at CMHIFL to accommodate inpatient competence evaluations, not restoration, which may reduce the need to transport Denver-area defendants to CMHIP for inpatient evaluation). Generally, the Plaintiffs and Special Masters have agreed with the minor changes they have proposed, because these tend to reflect efficient steps that better serve the Departments’ consumers.
For the foreseeable future, the Department will continue to wrestle with the reality that too few civil beds exist in Colorado. One of the Consent Decree’s indirect goals is to increase civil capacity through the reduced need for forensic beds; the Department will need to continue to monitor this trend and the outcomes of relevant initiatives in the Consent Decree to determine the ongoing and future needs for civil beds.

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COMPREHENSIVE AND COHESIVE PLAN
40. Comprehensive and Cohesive Plan. The Special Master’s first recommendation was to revise the Department’s 2018 Plan into a more comprehensive and cohesive plan. Dkt. 146. By or about January 2020, the Department will produce an initial plan resulting from a long-term visioning process with DLC, the Special Master, and stakeholders that will consolidate disparate pieces of the Department’s current plan, along with legislative initiatives, in a cohesive package for courts, administrators, service providers, and legislators to consider. As referenced in the Special Master’s Recommendation Number 7, the 2020 Plan will highlight the methods to prioritize quality amid quantity and time pressures. Dkt. 146 at 42. On an annual basis thereafter, the Department will review and revise the plan as appropriate based upon data provided by the Department.
The Department continues to move closer to developing a comprehensive, cohesive plan. The final plan is due to be submitted in January 2020. As we detailed in our last quarterly report, the Department has taken substantial steps to:
1. Coordinate and align policies and services within a long-term vision for competencyrelated services, and
2. Ensure that their emerging plan is supported by, and integrated with, statutory improvements and efforts from other stakeholders regarding competency services. Indeed, they have shared the preliminary plan with the Governor’s Blueprint Task Force subcommittee that is addressing competence-related issues.
The Department has continued developing the plan through the efforts detailed in our previous quarterly report (i.e., various internal meetings, specific coordination initiatives, participation in the Governor’s blueprint taskforce committee, etc.). We affirm these efforts and encourage them to continue.
Along with these important accomplishments, we see the following as important, remaining next steps towards a “Comprehensive, Cohesive Plan” for the Department to take in the near future:
• Write the plan. The final, written plan is due in January 2020, though it will be important to share drafts with us and other stakeholders before then. The written plan should include an articulation of the larger vision for competency services in Colorado, along with specific goals. It should also include descriptions of the components of the competency services system, policies and protocols, a glossary, desired outcomes, and visual representations of the entire system (described below) and the smaller component parts.
• Create a visual representation of the new competency services system. This should be a 1-2 page representation of how the different components are integrated and interconnected. It should be tailored to a lay audience, so that stakeholders outside the Department can see the system, see where they fit into the system, and understand the context for their functions and roles in the system.

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• Educating all stakeholders, both within and outside of the Department. A comprehensive system cannot be cohesive if employees do not understand how they fit into the larger plan, and a cohesive system cannot be comprehensive if external stakeholders are not aligned with the vision and mission of the system. It is important for Department employees to understand the changing system in which they work. While important for all employees, some particular sets of employees will need special attention:
o Court Services evaluators: They will soon be asked to opine on issues they have never before been asked to address (triage priority, inpatient vs. outpatient placement, and legislatively-mandated details about their cases). This is the most significant change in Court Services since the transition to conducting jail-based evaluations many years ago. Evaluators must understand the new system in which they work — how their opinions will affect clinical care, triage priority, and so on. A large system of care will soon surround ITP defendants. Without knowledge of this system (or a proper understanding of their role in it), evaluators may resort to overly conservative, risk aversive decisions.
o CMHIP staff: The makeup of the hospital continues to change to a disproportionately forensic population. The hospital is accredited as an acutecare facility. Long-time staff may be frustrated by this gradual change. Long-term care is at times being supplanted by shorter-term restoration efforts. Continued efforts to maintain morale and help CMHIP personnel see their critical role in addressing important clinical functions for ITP defendants are important.
o CMHIFL staff: Even more so, the exclusively civil Ft. Logan hospital is slated to begin admitting forensic patients in the coming year. This will be a substantial shift for hospital administrators and the personnel working in those units alike. Cross-training from CMHIP and dedicated planning to that transition will be critical.
o New positions (Forensic Support Team, Data Management): These new positions were created exclusively for the new competency services system. Data positions need to understand the larger system so that data can best be collected and analyzed. Perhaps more than any other positions, the Forensic Support Team (FST) positions must understand how they fit into the continuum of competency services so that they can reliably and accurately monitor clinical status, competency progress, and options for placement. In addition, the FST positions will at times need to act as buffers against stakeholder pressures to hospitalize CBRT participants, attend to crises, and provide a voice of expertise and reason during court proceedings. A thorough knowledge of the system is imperative.

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• Coordinating with NASMHPD and other resources. The Forensic Services Director must reach out and utilize the network of national professionals in the National Association for State Mental Health Program Directors (NASMHPD), particularly the Forensic Division, the American Psychology-Law Society, and other organizations. Colorado can learn lessons from other state administrators about how similar programs have been successfully launched and implemented, how to maintain evaluator morale, how to evaluate evaluator and programmatic outcomes, and so on. The forensic leaders at the Department should have the resources to attend national meetings of these organizations and become involved in ways that help the Department.
• Refine legislative bills. Inevitably, SB19-222 and SB19-223 will require adjustment as they are implemented. The Department must collect outcome data for each bill and begin making drafted adjustments to both bills in late 2019 / early 2020.
• Refine workloads and expectations within new programs. Analogously, the new Department programs (triage, CBRT, data team) will require careful monitoring of outcomes so that necessary adjustments can be made. Adjustments might include revised workloads for Court Service evaluators, jurisdictions for FST Navigators, contracts for CBRT providers, intensity of JBBS services for defendants at various stages of the competency process, and so on. Additional positions may be needed over time (Court Service evaluators, for example). In short, the Department is launching many promising initiatives; all of these are new and complicated enough that they will inevitably require close observation and fine-tuning.

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INCREASE COMMUNITY RESTORATION SERVICES
41. (a) Implement a coordinated wide-scale outpatient (community-based) competency restoration (OCR) system. This system shall be integrated and submitted with the “Comprehensive and Cohesive Plan” referenced in Paragraph 40 herein. This plan shall be approved by the Special Master.
As in our past quarterly report, the Department continues to make progress in developing a wide-scale outpatient, community-based restoration treatment program (CBRT). Their formal CBRT program began in March of 2018, and referrals for outpatient restoration have tended to hover around 34 defendants per month for the past several months (though June referrals dropped to an unusual low of 29). Although we hope to see these referrals — in particular, the proportion of defendants referred for CBRT (detailed in 41(c) below) — increase further, we perceive the Department taking meaningful steps towards further CBRT:
• The Department has increasingly established contracts with the community mental health centers (nearly all of them, at this point) to provide CBRT.
• The Department increasingly considers and describes outpatient restoration the default approach for restoration, unless there is clear reason for inpatient restoration. Simply shifting the “default setting” (particularly as evaluators and judges understand it) will help to increase community-based restoration, and decrease unnecessary inpatient admissions.
• Part of SB19-223 allocated an additional $2.26 million to support community services consistent with competence restoration goals (and, as we understand it, with a substantial portion of that funding earmarked exclusively for competency-related services).
• The Department has allocated $500,000 to Mental Health Center of Denver (MHCD) and Denver Pre-trial Services to establish a pilot program that bolsters case management, treatment, and supervision in order to expand CBRT in the Denver metro area. Though a pilot program, this type of targeted intervention in such a high-need area may be sufficient, even by itself, to influence waiting list and wait time figures for the state. The Department reports that they expect to finalize the contract late in August 2019.
Along with these important accomplishments, we see the following as important, remaining next steps for the Department to take in the near future:
• Consistently increase the number, and percentage, of incompetent defendants to CBRT (see discussion of 41c below).

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• Continue educating evaluators, the defense bar, and the courts that CBRT is available, and should be considered the default option.
• Further train evaluators, who must soon include recommendations for restoration location (inpatient or outpatient) in the conclusion of any report that opines a defendant is not competent. Evaluators will need to better understand the CBRT system, and become reliable with one another (i.e., offering similar opinions in similar cases) in recommending CBRT versus inpatient restoration.
• Provide to the Special Masters requested data on CBRT process and outcomes. Such data will be important for quality assurance, improving services, and further planning.
41. (b) The Department may utilize private hospital beds to meet the needs of Pretrial Detainees meeting C.R.S. § 27-65-105(a) civil commitment criteria and with prioritization to Pretrial Detainees already residing within the same geographic location. The Department shall create a plan to implement this subsection (b) to be approved by the Special Master.
At this point, the Department has explored contracts for private hospital beds, but does not seem to consider this an urgent priority relative to other tasks. We agree that private hospital beds are unlikely to be a primary part of improving the waitlist. Rather, we believe they may play a small role, such as the following examples:
• Serving as a local site for defendants receiving outpatient restoration services — when they decompensate either in jail or in the community and warrant more intensive clinical care — to receive local services rapidly (rather than await transfer to CMHIP).
• Serving as additional inpatient restoration sites, akin to providing additional CMHIP beds in various locations around Colorado.
Again, we consider use of private hospital beds one of many plausible, minor supportive strategies that may augment the much broader improvements in the Department’s system of competency-related services. But we see this strategy as far less urgent (and far less likely to make a broad impact) than the other steps they are pursuing, detailed throughout this report.
41. (c) The Department currently estimates that 10-20% of Pretrial Detainees admitted for inpatient restoration do not need hospital-level care. Dkt. 146 at 29. The Department will make best efforts to reduce inpatient restoration hospitalizations by 10% and increase community restorations by 10% in six-month increments beginning June 1, 2019. The baseline for the preceding sentence will be determined by the Special Master by June 1, 2019, utilizing data provided by the Department. On June 1, 2020, the Special Master will establish a modification of this guideline based upon a survey of the data collection and implementation of the Department’s Plan.

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Prior to our last quarterly report, we used the most recent six-month period of available data (i.e., Nov 2018 – April 2019) to set the “baseline” for future performance goals. We also recommend using proportional metrics when pursuing goals that are fundamentally proportional in nature (i.e., a 10% increase in community-based restoration and a 10% decrease in inpatient restoration). In other words, while the Department may not have full control over the actual number of referrals, they have greater control over the proportion of referrals they direct to outpatient versus inpatient restoration. Therefore, we chose to set the baseline figures, and establish subsequent performance goals, based on proportions instead of raw numbers. Thus, calculating target goals for restoration based on these percentages of individuals referred to inpatient versus outpatient services yields the following goals:

Inpatient Restorations

Outpatient Restorations

Baseline (past 6 months)

Recent 6-month average: 69%

December 1, 2019 goal

69% reduced by 10% = 62%

June 1, 2020 goal

62% reduced by 10% = 56%

Note: All percentages rounded to nearest 1%.

Recent 6-month average: 31% 31% increased by 10% = 34% 34% increased by 10% = 37%

Therefore, the December 1, 2019 performance goal to reduce inpatient restoration by 10% and increase outpatient restoration by 10% should yield no more than 62% of defendants referred for inpatient restoration and no less than 34% of defendants referred for outpatient (community-based) restoration.
As of this quarter (i.e., preceding August 28, 2019), the portion of defendants referred to CBRT has averaged 28.8%, which was lower than the prior period.23 Indeed, the Department had maintained 34% (their December 2019 goal) for a few months prior to the last quarterly report, but inpatient referrals inexplicably decreased in May (27%) and June (26%) of 2019. The Department could identify no clear reason for this decrease, but this decrease suggests they may require more concentrated efforts to increase CBRT referrals among all defendants for whom they are appropriate.
We are hopeful that the following interventions (already underway) will help the Department comply with Paragraph 41 of the Consent Decree by increasing outpatient restoration to 34%, on average, for the period spanning June 1, 2019 through December 1, 2019. Specifically, we

23 According to the July Special Master Compliance Report (p.31-32), submitted by CDHS on August 7, 2019.

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recommend: • Further efforts to educate evaluators, the bar, and the judiciary about CBRT, particularly the ways in which the newly launched FST can support CBRT efforts. • Launching the FST with special attention to supporting CBRT in all instances when the defendants are an appropriate fit for outpatient restoration.

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CONCLUSION
As detailed throughout this report, we perceive the Department has made significant and meaningful progress in enacting the elements prescribed in the Consent Decree. Indeed, key interventions prescribed by the Consent Decree (e.g., the triage system, the Forensic Support Team) have launched during this reporting period. At present, these have not significantly changed the overall key metrics such as the waiting list or waiting times for restoration services, but they do reveal that the Department is generally responding promptly to those identified as Tier 1. Put simply, the most acutely ill defendants — those whose welfare was a primary focus in the current legislation and Consent Decree — do seem to be receiving more prompt treatment upon launch of the Triage System. We have requested the Department provide even more detail on this population in the coming months, and we hope to see continued, prompt service to them. At the same time, it will be important for the Department to begin accelerating inpatient restoration treatment for Tier 2 defendants, whose needs may be less urgent, but nevertheless important. We will continue to work with the Department on these (and other) matters, and we encourage you to contact us with any questions or requests. We appreciate the opportunity to serve the court, and the state of Colorado, in these important efforts.
Neil Gowensmith, Ph.D. President, Groundswell Services Inc.
Daniel Murrie, Ph.D.

 
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SPECIAL MASTER REPORT to JUDGE WANG Submitted November 27, 2019
CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO, Plaintiff, v. MICHELLE BARNES,
in her official capacity as Executive Director of the Colorado Department of Human Services, and JILL MARSHALL,
in her official capacity as Chief Executive Officer of the Colorado Mental Health Institute at Pueblo, Defendants.

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November 27, 2019
The Honorable Judge Nina Wang United States Magistrate Judge District of Colorado Alfred A. Arraj United States Courthouse 901 19th Street Denver, CO 80294

Page 2 Re: Civil Action No. 11-cv-02285-NYW

Judge Wang,
This report serves as our November 28, 2019 status report mandated by the Consent Decree filed March 15, 2019 pursuant to Case No. 1:11-cv-02285-NYW. As you know, the Consent Decree (following your earlier court order) requires us to monitor progress and provide recommendations for improvement to the Colorado Department of Human Services (CDHS). Specifically, the Consent Decree (p.24) indicates,
(i) As part of the duties, the Special Master shall provide the Court and the Parties with status reports every other month for the first six months, and then quarterly thereafter. The Special Master’s status report was submitted on January 28, 2019. Dkt. 146. The next report shall be submitted to the Court and the Parties on March 28, 2019, and then May 28, 2019, and then quarterly thereafter. Such reports shall address the Department’s compliance with the timeframe requirements of the Consent Decree concerning Competency Services and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department’s compliance with the Consent Decree timeframes concerning Competency Services.
(ii) The Special Master’s report shall include, but is not limited to, reporting on the number of Pretrial Detainees ordered to receive Competency Services, an assessment of the Department’s operations, systems, and admissions practices and policies relating to the Department’s ability to comply with the Consent Decree timeframes, and guidance to the Department for improvement and increasing efficiencies in these areas.
Since our appointment as Special Master on January 2, 2019, the parties entered into mediation, resulting in the Consent Decree filed March 15, 2019. This Consent Decree prescribed a variety of steps the Department must take to improve the competency assessment and restoration system in Colorado, and eventually attain compliance with all time frames and deadlines mandated in the Consent Decree. The Department has initiated many of these steps, demonstrating meaningful progress, in ways we detail through the remainder of this report. In particular, this report will focus on developments since our prior quarterly report, which was submitted August 28, 2019.

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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................... 4 KEY METRICS FOR PROGRESS: COMPLIANCE WITH TIME FRAME REQUIREMENTS................................8 KEY METRIC: COMPETENCE EVALUATION TIME FRAMES ................................................................9 KEY METRIC: COMPETENCE RESTORATION TIME FRAMES.............................................................10 KEY METRIC: THE WAITLIST FOR COMPETENCE RESTORATION SERVICES ...................................... 12
CONSENT DECREE SECTION VI UPDATES ...................................................................................13 ADMISSION OF PRETRIAL DETAINEES FOR INPATIENT COMPETENCY EVALUATIONS AND RESTORATION TREATMENT ...................................................................................................................................... 13 Wait Times for Inpatient Evaluation .............................................................................................. 14 Wait Times for Inpatient Restoration.............................................................................................16 PERFORMANCE OF JAIL COMPETENCY EVALUATIONS........................................................................18 INTERIM JAIL MENTAL HEALTH TREATMENT......................................................................................21 RELEASE OF PRETRIAL DETAINEES FOR COMMUNITY-BASED RESTORATION TREATMENT .................. 23 TRANSPORTATION OF PRETRIAL DETAINEES ...................................................................................... 26 NOTIFICATION OF NON-COMPLIANCE WITH TIME FRAMES ............................................................... 27
CONSENT DECREE SECTION VII UPDATES ..................................................................................29 CIVIL BED FREEZE............................................................................................................................... 29 COMPREHENSIVE AND COHESIVE PLAN ............................................................................................. 30 INCREASE COMMUNITY RESTORATION SERVICES .............................................................................. 32
CONCLUSION ............................................................................................................................36

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INTRODUCTION
The Consent Decree filed March 15, 2019 prescribed a variety of steps the Department must take, and timelines it must meet, to improve the competency assessment and restoration system in Colorado. After the Consent Decree was filed in March, the Department began taking many of these steps (detailed through the remainder of this report) in ways that we consider generally responsive, and in ways that appear to recognize the gravity and complexity of the challenges they face.
Broadly speaking, we consider three goals of the Consent Decree to be primary: a) Reducing the overall number of people on the waitlist for competence restoration services, b) Reducing the wait times for people on the waitlist, particularly people with the most acute psychiatric illness, and c) Reducing harm to people on the waitlist.
Progress on the first goal has been quite modest, but slight improvements are apparent, particularly over the last month. Progress on the second goal has been much more substantial, though solely for people with the most acute psychiatric illness. Similarly, progress on the third goal has been mixed. The ability to quickly hospitalize those who are most ill has undoubtedly reduced the overall scope of human suffering, though there was one suicide among this group (described further, below), and those with less acute illness tend to wait in the hospital longer. This report details progress on these three primary markers as well as other key developments.
Progress: Key developments include the launch of several new initiatives. Whereas our prior reports addressed the Department’s planning and implementation, we are now beginning to see the outcomes of those new initiatives the Consent Decree prescribed. Specifically, the Department has:
• Maintained an active Triage system, a key compromise from the Consent Decree, which requires the Department to rapidly (i.e., within 7 days) admit for competence restoration the most acutely ill defendants (“Tier 1”) and less rapidly admit those who less urgently need hospitalization (“Tier 2”).
• Admitted these Tier 1 defendants for inpatient restoration in a prompt manner, consistent with the requirements of the Consent Decree. This is the most significant improvement to the competency system in several years, and the Department has maintained near-perfect compliance with these ambitious seven-day requirements.
• Launched the Forensic Support Team (FST), another key component of the Consent Decree. The FST has just begun monitoring incompetent-to-proceed (ITP) defendants in jail awaiting hospitalization, and has intervened well in several crisis and emergency

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situations. The presence of a team to monitor the defendants on the waitlist is a significant improvement over last year, when the Department had no such service, and a fundamental change to the Colorado competency system.
• Coordinated a draft of the Department’s “comprehensive and cohesive plan” for competency services in Colorado with the Governor’s task force on competency-related issues.
• Maintained and expanded data systems, analysis, and reporting of competency-related information.
• Implemented enhanced competency evaluation reports, consistent with mandates from the Consent Decree and SB19-223. These reports now include more in-depth information regarding competency of the defendant as well as opinions on placement for restoration (inpatient vs. community-based restoration) and urgency of clinical need (Tier 1 vs. Tier 2). A large training event for evaluators, led by a national expert, further aided Department evaluators in these goals.
• Opened 18 new beds for competency restoration at the Boulder County Jail’s RISE program. This program replicates the RISE program at Arapahoe County Jail.
• Opened new contracted beds at one private hospital in the metro area, for a total of five new beds (with an additional three in the near future).
• Finally, via the Fines Committee prescribed by the Consent Decree (p.17), the Department, Disability Law Colorado (DLC), and the Special Master have collaborated with the Colorado Coalition for the Homeless to fund Fusion Studios, which will provide housing in the community to many competency-involved individuals over the next five years, beginning by January 2020.
As anticipated in our last report, these developments have yielded some progress towards meeting key time frame requirements. In short, defendants opined to be Tier 1 are now admitted to CMHIP promptly, within the Consent Decree’s 7-day timeframe. However, the overall size of the waitlist remains only slightly lower than in March 2019, and the wait for Tier 2 defendants has decreased only slightly.
Challenges: The Department has also experienced significant setbacks and challenges. Recently, one defendant on the waitlist for hospitalization committed suicide before she was transferred to the hospital. There were also two suicides among individuals involved in competence-restoration services in the community (though these do not fall directly within the scope of the Consent Decree). These incidents, and other developments, underscore some of the current challenges for the Department, including:

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• Using the newly launched Forensic Support Team (FST) to aid defendants found incompetent to proceed (ITP) who are either in jail awaiting transfer to Colorado Mental Health Institute at Pueblo (CMHIP) or in the community receiving community-based restoration treatment. The FST launched in earnest somewhat behind schedule, and continues to clarify its role vis-a-vis the complementary Court-operated Bridges Court Liaison program and clarify its role with defendants in the community. As the Department knows, the first several months after launching any new initiative will require significant monitoring, revision, and changes as unanticipated challenges inevitably arise.
• Accelerating restoration services for defendants designated Tier 2. Whereas the Department has been remarkably prompt in hospitalizing the Tier 1 patients, full adherence to the Consent Decree will require improving timely service to Tier 2 defendants as well.
• Appropriately responding to the recent suicides among competence-involved individuals, and learning from these incidents to prevent others.1 Frankly, suicides (and other human suffering among defendants in the competency system) are exactly the type of outcome the Consent Decree attempts to minimize. Though not all the factors surrounding these incidents are under Department control, the Department must learn from these incidents to prevent similar situations.
• Ensuring that sheriff’s departments and county jails are better prepared to provide enhanced mental health services for defendants awaiting competency services in local county jails. This funding was provided by SB19-223; while the response to requests for proposals has been largely unanimous, the scope and breadth of services varies widely – such that some counties may still be operating with inadequate in-jail mental health services. Lessons from the recent in-jail suicide should shape future Department collaborations with the jails.
Beyond these emerging challenges, some of the primary challenges (i.e., the areas for closest scrutiny and support) we identified in our prior quarterly report remain:
• Better educating the court and the bar about the triage system and other new interventions, so that they will act in ways that support the triage system and the broader
1 Our discussion of these recent suicides is limited in detail, because we are still awaiting crucial information about the incidents. To be clear, our impression is that the Department has responded rapidly and appears generally responsive to our requests for information. But the incident involved jailbased mental health services from a contracted mental health care provider, and we do not have full or prompt access to information from that source. We have requested all relevant records relating to both the in-jail suicide and the in-community suicides and we anticipate further discussion of these in our subsequent report. We may also decide to submit a separate confidential report, if indicated.

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goals of admitting the most acutely ill defendants most rapidly. These educational efforts will need to be prompt and assertive in order to help courts understand and support new procedures and less often issue “show cause” orders that compromise CDHS goals of triaging by greatest clinical need. Although the Department has described some dissemination efforts, further dissemination efforts remain crucial in the very near future.
• Ensuring adequate training and reliability among evaluators as they learn to include triage opinions and restoration placement recommendations in their competence evaluation reports. As we have discussed with the Department, the initial training efforts were inadequate and delayed. Consequently, evaluators have been deeply frustrated and morale has been strained. More recently, we have taken a more active role with evaluators. The Department has made changes to evaluator leadership and has better engaged evaluators and supervisors. Morale and progress seems to be improving.
• Monitoring both the FST and the Community-Based Restoration Treatment (CBRT) systems. These systems (especially the FST) are relatively new programs, and both appear to be experiencing some understandable identity confusion and growing pains. Both have experienced suicide either directly or indirectly, neither have a functioning data collection or analysis system in operation, and both experience role confusion from outside stakeholders. We therefore devoted more space to these two programs in this quarterly report than in previous reports; potential problem areas and suggested recommendations are discussed in their respective sections.
Overall, we continue to affirm the Department’s efforts to enact the changes prescribed in the Consent Decree. Their efforts to comply with the Consent Decree have been well-conceived and usually well-executed. However, the recent suicides require significant attention: identifying root causes and lessons learned, then making necessary changes immediately. We remain encouraged by: the triage system, improving morale of Court Services evaluators, CBRT service availability, and the increased role of the FST. But it remains crucial to address some of the more persistent problems: long waitlists for Tier 2 individuals, poor leverage with interim jail mental health services, looming shortages of Court Services evaluators, poor data management in certain areas, and lingering role confusion with the Bridges program.
We begin by addressing the Department’s compliance with time frame requirements, because this is the primary focus of the Consent Decree (and the focus that the Consent Decree prescribes for these quarterly reports). Indeed, we consider these time frames our “key metrics” — or primary markers of progress — that we review in each quarterly report. However, we then expand to address the other interventions prescribed by the Consent Decree because progress in these interventions will likely contribute to progress in achieving the overall goal of compliance with time frame requirements.

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KEY METRICS FOR PROGRESS: COMPLIANCE WITH TIME FRAME REQUIREMENTS
As prescribed in the Consent Decree, a primary focus of these quarterly reports must be the Department’s compliance with time frame requirements:
(i) As part of the duties, the Special Master shall provide the Court and the Parties with status reports ... Such reports shall address the Department’s compliance with the timeframe requirements of the Consent Decree concerning Competency Services and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department’s compliance with the Consent Decree timeframes concerning Competency Services. (Consent Decree p.24)
(ii) The Special Master’s report shall include, but is not limited to, reporting on the number of Pretrial Detainees ordered to receive Competency Services, an assessment of the Department’s operations, systems, and admissions practices and policies relating to the Department’s ability to comply with the Consent Decree timeframes, and guidance to the Department for improvement and increasing efficiencies in these areas.
Therefore, a primary focus of our review is the Department’s progress in meeting the time frames delineated in the Consent Decree. This includes both time frames for competence evaluation and for competence restoration. We anticipate that these will be the key metrics to demonstrate progress over the next few years, so they are our starting point in the report, as well as a primary focus. Of course, performance in meeting these time frames depends greatly on enacting the other steps prescribed in the Consent Decree, so subsequent sections of the report review those steps in greater detail.

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KEY METRIC: COMPETENCE EVALUATION TIME FRAMES
As summarized in the table below, the Department has been meeting the timelines for competence evaluation that the Consent Decree prescribed beginning June 2019. Indeed, the Department was meeting these evaluation time frames even before June 2019.

Average Wait Times for Competence Evaluation Services2

Jun-Jul Aug 2019 2019

Sep Oct 2019 2019

June 2019 Requirement

January 2020 Requirement

Jail-based Competency Evaluations

22.8 22.3 21.3 23.7*

28 days

28 days

Inpatient Competency Evaluations

12.8

20* 12.7 20.8*

21 days

21 days

* = at least one defendant waited longer than max time frame for the evaluation

Generally, timely competence evaluation has been a relative strength of the Department. Well before the recent Consent Decree, they followed the national trend of de-centralizing evaluations, moving them from solely an inpatient service to a localized service in the community. During recent history, their evaluations have almost always met the prescribed time frames. Recently, however, their success in meeting these time frames appears more tenuous, as they lack an adequate workforce of evaluators and (as of the most recent data from this week) they appear close to missing some evaluation deadlines. This vulnerability underscores the need to rapidly recruit and retain good forensic evaluators (discussed later in this report). Similarly, we anticipate the Department will need to take additional steps over the next year to maintain their compliance, particularly when the prescribed time frames decrease to 21 days in July 2020.

Overall, the Department has performed well with respect to competence evaluation time frames over the past year, but will need to aggressively and rapidly improve the evaluator workforce to maintain this compliance.

2 Data from October 2019 is the most recent data available from CDHS. Average wait times for Jun-Jul 2019 reflect a reasonable approximation of the average wait times; exact sample sizes were not used to calculate a precise average.

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KEY METRIC: COMPETENCE RESTORATION TIME FRAMES
In contrast to their prompt evaluation services, the Department has consistently failed to provide prompt restoration services. In the months before the Triage system launched, defendants who were admitted for inpatient restoration treatment at CMHIP or RISE waited, on average, 71 days.3 Of course, this figure included all defendants referred for restoration, without distinction between those with more, versus less, acute needs. Since then, however, the Department launched on June 1, 2019 the Consent-Decree-mandated triage system,4 designed to prioritize the defendants with the most acute clinical needs (“Tier 1”) over those with less acute clinical needs (“Tier 2”). Tier 1 defendants must receive services within 7 days of the competency hearing, whereas Tier 2 defendants need not receive services for 56 days (with Tier 2 deadlines shortening in the future).
Overall, recent CDHS monthly reports describe excellent adherence to the 7-day deadline for defendants whom the court has designated as Tier 1 (i.e., average wait times well under 7 days).5 However, wait times for Tier 2 defendants still far exceed the time frames prescribed in the Consent Decree (i.e., average wait times exceeding 80 days, well beyond the required 56 days).

Average Wait Times for Inpatient Competence Restoration Services6

Jun-Jul Aug 2019 Sep

2019

2019

Oct 2019

June 2019 Requirement

January 2020 Requirement

Tier 1

3.64*

3.2

5.2

3.7

7 days

7 days

Tier 2

87.2**

80.8** 99.8** 94.5**

56 days

49 days

* = at least one defendant waited longer than maximum time frame for restoration services
** = most defendants waited longer than maximum time frame for restoration services

However, each of these summary statistics requires more discussion. First, the figures for Tier 1 defendants reflect only Tier 1 defendants as defined in the Consent Decree; that is, defendants whom the court has designated as Tier 1 and ordered to the hospital. This represents only a

3 Average waiting period November 2018 – April 2019, as calculated from data provided by the Department (see p.7 of their Monthly report filed May 7, 2019).
4 See Consent Decree paragraph 43.
5 According to Special Master Compliance Plan report October 2019 p.10 (submitted November 7, 2019).
6 Average wait times for Tier 2 defendants reflect a reasonable approximation of the average wait times; exact sample sizes were not used to calculate a precise average.

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fraction of the number of defendants whom CDHS evaluators have recommended as Tier 1 (for example, the June figure is based on two defendants and the July figure is based on 7 defendants) because some are admitted to CMHIP or have charges dismissed before the court enters an order designating them as Tier 1.
An initial process review: Shortly after the launch of the triage system, we conducted individualized reviews of the first 53 cases in which Court Services evaluators opined defendants as Tier 1 to ensure that each of these defendants were indeed admitted as required within the Consent Decree time frames. As written in our August 2019 report:
We view this Tier 1 population as the heart of the Consent Decree — those defendants who are identified most urgently needing hospital-level care — and we must ensure that their needs are met in ways consistent with the letter and spirit of the Consent Decree. We look forward to reviewing CDHS’s detailed account of each Tier 1 defendant’s pathway, and reporting this information to you in our next quarterly report to the Court.
As a result of this initial review, we are confident that each defendant opined Tier 1 and ordered by the court to inpatient restoration within 7 days of their adjudication was indeed admitted to CMHIP within that time frame.
To date, the Department reports that a total of 83 individuals have been opined as Tier 1 by Court Services Evaluators and admitted to CMHIP via the Consent Decree criteria. Of these, 81 were admitted within the 7-day maximum time frame. In many respects, this summary bodes well for CDHS efforts to implement the triage system. According to CDHS administrators and data management personnel, the vast majority of defendants whom evaluators designate as Tier 1 are admitted to the hospital promptly (i.e., well within seven days), and often even before the Court designates them as Tier 1 and orders admission. For those that have not, CDHS has offered what appear to be plausible explanations.
Regarding Tier 2 defendants, progress has been limited. Average wait times still far exceed the time limits in the Consent Decree, just as they did for all defendants in prior months. Tier 2 defendants have typically waited between 81 and 100 days between August and October 2019, when the maximum time frame for that time period was 56 days. Thus, the Tier 1 figures suggest that the Triage System serves the purpose for which it was designed: prioritizing the most acutely ill defendants and moving them into the hospital rapidly. However, the Tier 2 figures reveal that CDHS continues to struggle with some of the primary challenges that prompted the Consent Decree: responding to the volume of defendants referred for inpatient restoration, and admitting them into the hospital within a reasonable time frame.
Overall, Tier 1 admissions occur on time, while Tier 2 admissions still far exceed maximum admission time frames.

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KEY METRIC: THE WAITLIST FOR COMPETENCE RESTORATION SERVICES
Beyond the wait times for restoration services (and progress towards the time frame requirements of the Consent Decree), another key metric for gauging the Department’s progress is the waiting list for competence restoration services. In the months preceding launch of the Triage system, the waitlist averaged around 150 to 180 defendants.7 But again, with the initiation of the Triage system on June 1, we must consider the waitlist according to Tier status. Central to the Triage system is an acknowledgement that some incompetent defendants are so acutely ill that they require treatment almost immediately (Tier 1, who require treatment within 7 days), whereas others can safely await treatment (Tier 2, who can wait several weeks).

Number of Defendants on Waiting List for Inpatient Restoration8

March 2019

July 2019

Aug 2019

Combined

157

Tier 1

N/A

1

0

Tier 2

N/A

168

169

Sep 2019
0 152

Oct 2019
0 145

The number of persons on the waitlist is still quite high. This number is driven largely by the number of court orders that OBH receives, but can be decreased by the availability of inpatient restoration beds and alternative restoration settings. The number has fluctuated since March 2019, but overall has decreased slightly since then.
Overall, there has been a slight, but meaningful, decrease in the number of individuals on the waitlist for restoration services over the past quarter. This decrease appears genuinely attributable to Department interventions and not simply to a decrease in referrals.

7 At present, the Department provides waitlist data as daily figures, so the monthly figures in the table reflect averaged daily figures.
8 According to the Department’s Special Master Compliance Plan report October 2019 p.10 (submitted November 7, 2019).

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CONSENT DECREE SECTION VI UPDATES
ADMISSION OF PRETRIAL DETAINEES9 FOR INPATIENT COMPETENCY EVALUATIONS AND RESTORATION TREATMENT
33. (a) Admission of Pretrial Detainees for Inpatient Competency Evaluations and Restoration Treatment. The Department shall Offer Admission to Pretrial Detainees to the Hospital for Inpatient Restoration Treatment or Inpatient Competency Evaluations pursuant to the attached table (Table 1). Compliance with this measure shall be calculated based on the number of Days Waiting for each Pretrial Detainee.
The Consent Decree prescribes the following time frames for admitting defendants to inpatient competence restoration and for performing competence evaluations (whether inpatient or in jail).10 Admission time frames become progressively shorter at each six-month increment. Evaluation time frames are reduced in July 2020.

Deadlines
June 1, 2019 January 1, 2020 July 1, 2020 January 1, 2021 July 1, 2021

Tier 1: Maximum Time to Offer Admission for Inpatient Restoration

Tier 2: Maximum Time to Offer Admission for Inpatient Restoration

Maximum Time to Offer Admission
for Inpatient Competency Evaluations

Maximum time to Complete Jail Competency Evaluations

7 days 7 days 7 days 7 days 7 days

56 days 49 days 42 days 35 days 28 days

21 days 21 days 14 days 14 days 14 days

28 days 28 days 21 days 21 days 21 days

As summarized earlier in this report (“Key Metrics”), the Department generally meets June 1 time frames for competency evaluations, and even meets the time frame for admitting Tier 1 defendants to restoration. But they far exceed the time frames for Tier 2 admissions to competency restoration.

9 “Pretrial Detainee” means a person who is being held in the custody of a County Jail and whom a court has ordered to undergo Competency Services. Persons serving a sentence in the Department of Corrections and juveniles are excluded from this Consent Decree.

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Wait Times for Inpatient Evaluation
As detailed below, the Department has been quite successful in timely admission for inpatient competence evaluations (versus restoration):

Recent Wait Times for Inpatient Evaluation

Month

Number admitted to CHMIP for inpatient
evaluation

Average days waited prior to admission to
CMHIP or RISE

People who waited more than 28 days

Oct 2019

5

20.8*

2

Sep 2019

2

12.7

0

Aug 2019

9

20.0

1

May - Jul 2019 average

14.7

12.3

0

March 2019 total

18

16.4

1

* = at least one defendant waited longer than max time frame for inpatient evaluation services

Over the past three months, an average of 5.3 people per month were admitted for an inpatient evaluation at CMHIP (compared to a 14.7 average for the previous quarter). The average wait time for admission to CMHIP for inpatient competency evaluation was 17.8 days (more than 5 days longer than the average for the previous quarter). Although the number of admissions was much lower than the previous quarter, the wait time is longer and more people have waited longer than the maximum 28-day time frame. The reason for this discrepancy is unclear, but likely relates to Department efforts to admit Tier 1 patients for restoration within the 7-day timeframe (which inevitably causes longer waits for other admissions). Although the Department has continued to handle most of these inpatient evaluations as “same-day” evaluations, which do not require full admission and multi-day stay (thereby reserving hospital beds for those who need them more), the waits are increasing. This is in contrast to the previous quarter, which showed a shorter wait time and no persons waiting more than 28 days. Overall then, the Department did not consistently meet the time frames for inpatient competence evaluation.

10 Fine amounts are tied to delays beyond each of the time frames listed. However, these fines are discussed elsewhere in this report.

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According to CDHS reports, only a fraction of those defendants ordered for inpatient evaluation actually met the strict criteria for involuntary hospitalization (C.R.S. § 27-65-105).11 Specifically, CDHS reported that during the past 3 months, 50% of admissions for inpatient evaluation met that strict “27-65” criteria for involuntary hospitalization.12 This contrasts with the earlier 20% rate, calculated when more defendants were sent to CMHIP for inpatient evaluation. In most respects, this is a positive trend: fewer defendants are sent for inpatient evaluation, and of that smaller group more meet inpatient admission criteria. That is, those ordered to the hospital were more likely to be those who met criteria for hospitalization. On the other hand, the average wait time for admission is longer than before, and more people are waiting more than 28 days before admission, a problem that becomes even more important if those delayed are those patients who meet “27-65” criteria and likely need prompt hospitalization.
11 C.R.S. § 27-65-105: (1) Emergency procedure may be invoked under either one of the following two conditions: (a)(I) When any person appears to have a mental health disorder and, as a result of such mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then an intervening professional, as specified in subsection (1)(a)(II) of this section, upon probable cause and with such assistance as may be required, may take the person into custody, or cause the person to be taken into custody, and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation… (b) Upon an affidavit sworn to or affirmed before a judge that relates sufficient facts to establish that a person appears to have a mental health disorder and, as a result of the mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, the court may order the person described in the affidavit to be taken into custody and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation. 12 From the November 7, 2019 CDHS Monthly Compliance Plan Report (p.17).

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Wait Times for Inpatient Restoration
Compared to the timely inpatient evaluations, there are far more concerns regarding inpatient restoration at CMHIP. Over the past few years, wait times consistently exceeded the 30-day time frames mandated by an earlier Settlement Agreement. However, the required time frames changed as of June 1, 2019, per the Consent Decree. The maximum time frame for many defendants (those labeled as Tier 2) waiting in jails has been extended to 56 days. The time frame for defendants with the most urgent clinical needs (those labeled Tier 1) is now only 7 days.

Recent Wait Times for Inpatient Restoration13

Month

Number of people admitted to CMHIP for inpatient restoration
Tier 1 Tier 2

Average days waited for admission to CMHIP inpatient restoration Tier 1 Tier 2

People who waited more

than the max days for

admission to CMHIP

inpatient restoration

Tier 1

Tier 2

Oct 19

18

62

3.7

94.5

0

*

Sep 19

14

65

5.2

99.8

0

*

Aug 19

24

39

3.2

80.8

0

*

Jun - Jul 19

10.5

51

3.64

87.2

1

*

Mar 19

41

61.6

32

* CDHS has not provided in their monthly report the number of Tier 2 individuals who waited more than the maximum allowable days for admission to CMHIP for restoration. We have requested these data.

As the table reveals, most of the defendants now designated as Tier 2 wait much longer than the required 56 days before admission. For example, in October, a total of 62 Tier 2 individuals were admitted to CMHIP, with their waiting time for admission averaging 94.5 days. However, the much smaller group of patients designated as Tier 1 were admitted rapidly, consistent with the mandates of the Consent Decree. In October, a total of 18 Tier 1 individuals were admitted to CMHIP, with their days waited prior to admission averaging 3.7 days. To date, a total of 83 individuals designated as Tier 1 have been admitted within 7 days of being adjudicated as ITP.14

As noted in our last quarterly report, the Department’s rapid response to those identified as Tier 1 is remarkable. In many ways, the Tier 1 individuals are the highest priority for the Consent Decree and the CDHS competency system. We are pleased that those whom CDHS categorized as Tier 1 were admitted rapidly.

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However, the progress towards meeting Tier 2 timelines remains problematic. Tier 2 individuals are mandated to CMHIP, but with less urgency. CMHIP has continued to nimbly create space for Tier 1 individuals, inevitably by prioritizing them over Tier 2 individuals. However, Tier 2 individuals must also be admitted within certain time frames. The only options for reducing their wait times are to create space for them in CMHIP (by reducing restoration lengths of stay or creating new beds) or to transfer them to community-based treatment (if they are appropriate for community treatment). In short, while Tier 1 individuals must be prioritized for admission (thereby treating those who need it most), successful compliance with the Consent Decree must also reduce Tier 2 time frames; such compliance will demonstrate that CDHS’ competency system has created adequate capacity for all levels of competency restoration.
13 According to the Department’s Special Master Compliance Plan report October 2019 p.9-10 (submitted November 7, 2019). 14 Some Tier 1 individuals admitted to CMHIP are not reflected in the table due to timing of admissions (primarily persons admitted in early November).

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PERFORMANCE OF JAIL COMPETENCY EVALUATIONS
33. (b) Performance of Jail Competency Evaluations. The Department shall complete all Jail Competency Evaluations of a Pretrial Detainee pursuant to the attached table (Table 1), after the Department’s receipt of a Court Order directing the evaluation and receipt of Collateral Materials. This timeframe requirement shall apply to the following counties: Adams, Alamosa, Arapahoe, Boulder, Broomfield, Crowley, Custer, Denver, Douglas, El Paso, Elbert, Fremont, Huerfano, Jefferson, Larimer, Mesa, Otero, Pueblo, Teller, and Weld. Counties not specifically identified are counties that use the “Hold and Wait” court ordered process. Counties utilizing the Hold and Wait Evaluation process will be offered a meeting date within 30 days of the Department’s receipt of the Court Order and Collateral Materials, and the evaluation will be completed within 30 days of the meeting. Beginning January 1, 2020, counties utilizing the Hold and Wait Evaluation process will be offered a meeting date within 30 days of the Department’s receipt of the Court Order and Collateral Materials, and the evaluation will be completed within 14 days of the meeting.
The mandated time limit for a jail-based evaluation is now 28 days, per the Consent Decree. According to data they provided, the Department once again achieved almost perfect compliance with this time frame.15
While we affirm their success in meeting these timelines, we also have growing concerns about how they have met the timelines, and whether they will be able to continue to do so. Specifically,
• Evaluation referrals are beginning to exceed the capacity of the current workforce, and the Department is for the first time in recent history likely to fail to meet evaluation time frames.
• Indeed, meeting the time frames in the manner they have been appears unsustainable. Our recent review of sample reports and monthly workloads among evaluators has made it clear that the Department’s success in meeting timelines has been possible by greatly over-relying on one particularly prolific evaluator. This evaluator (who is also employed in another role in a CDHS facility) contracts to complete a grossly disproportionate number of evaluations, even compared to the full-time employee evaluators, and his reports are of disproportionately poor quality. While we understand the apparent benefit that this contractor provides (in terms of raw numbers and meeting deadlines) we believe the risks of this arrangement far outweigh the benefits. We have emphasized to the Department that this evaluator should be completing far fewer evaluations of far higher quality. It will be crucial to replace this arrangement with one that relies on reasonable workloads and demands higher quality.16
15 Data taken from the November 7, 2019 CDHS Monthly Compliance Plan Report covering October (p.20).

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• Another challenge in maintaining a strong workforce of evaluators involves morale (as we discussed in our prior report). In general, CDHS evaluators have expressed frustration with the ways in which CDHS administration implemented the recent changes in evaluations that were mandated by the Consent Decree and SB19-223. Evaluators complained that implementation has been hasty, ill-defined, and neglected evaluator expertise. In many respects, we are sympathetic to the evaluators’ frustrations. We are pleased to report that the Department has (albeit belatedly), begun to better enlist evaluator expertise and support supervisors in training roles. These significant changes seem to have improved morale, but the relationship between administration and evaluators has been tenuous. Continued repair to this relationship will be crucial to recruiting and retaining the type of evaluator workforce that the Department will need to maintain compliance with evaluation time frames.
• To their credit, the Department recognizes that their capacity to meet these evaluation timelines is tenuous and will require rapid efforts to recruit new employees and contractors. They have begun to explore evaluator pay and recruitment strategies in other states. Unfortunately, their past recruitment efforts have appeared only marginally successful. When we interviewed a sample of evaluators who have undergone (or withdrawn from) the Department’s hiring process, it became clear that the process was marked by lengthy delays, mixed-messages, and other process flaws that greatly discourage the qualified evaluators they would most like to recruit. Some of these flaws are described as “bureaucracy” or “bureaucratic delays,” and appear located more in CDHS Human Resources or other departments than in the clinical leadership, but some were clearly within the control of clinical leadership. It will be crucial for the clinical leadership to address all of these barriers to hiring in order to recruit a sufficient workforce for timely evaluations.
• In particular, on July 1, 2020, the new time frame for jail-based evaluations will decrease to 21 days. The Department must produce data well in advance of this change to determine how many additional evaluators they will need to hire in order to meet this shortened deadline. Their analysis should occur soon enough to adjust the budget and secure funding to hire these additional positions (again, we are encouraged to see they have recently begun exploring evaluator salaries in other states). Our understanding is that the Department has been planning (for many months) a “time study” of evaluator workloads and time required, but we encourage them to proceed as soon as possible. Data from the past week suggests that the Department may be missing some evaluation deadlines for the first time in many months, so prompt efforts to assess and increase the capacity of their workforce will be crucial.
16 To be clear, our ongoing reviews of reports from CDHS full-time Court Services evaluators continues to confirm our impressions that the quality of reports among full-time evaluators is generally quite strong. The poor quality reports from this prolific evaluator are a clear outlier.

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Overall, we affirm the Department for their generally consistent compliance with evaluation time frames. However, the more we have investigated the evaluation workforce and services, the more it becomes clear that their compliance with this timeframe is tenuous. This compliance is unlikely to be sustainable without aggressive improvements to the workforce.

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INTERIM JAIL MENTAL HEALTH TREATMENT17
34. Interim Jail Mental Health Treatment. If the court does not release the Pretrial Detainee to Community-Based Restoration Treatment and the Pretrial Detainee is awaiting receipt of Inpatient Restoration Treatment, the Department shall work with the County Jails to develop a program to assist in the provision of coordinated services for individuals in accordance with C.R.S. §§ 27-60105 et seq. to screen, treat, assess, and monitor for triage purposes Pretrial Detainees in the least restrictive setting possible. This paragraph does not toll or otherwise modify the Department’s obligation to Offer Admission to the Pretrial Detainees for Inpatient Restoration Treatment. Interim Jail Mental Health Treatment shall not replace or be used as a substitute for Inpatient Restoration Treatment but does not preclude the Department from providing Restoration Treatment. A member of the Forensic Support Team shall report to the Court Liaison every 10 days concerning the clinical status and progress towards competency of the Pretrial Detainee.
As we have discussed in prior reports, the Department is required to partner with county jails to develop a program of coordinated services for individuals receiving competency-related services. These services are currently managed statewide through the Jail-Based Behavioral Services program (JBBS) and are funded approximately $2.5 million per year by the recently appropriated by SB19-223. Essentially, the Department utilizes JBBS as a hub for coordinating subcontracted services across Colorado. These subcontracted providers are now asked to provide adequate mental health services to inmates involved with competency-related services. Interim mental health treatment is critical to screen, monitor, assess, and treat those receiving competencyrelated services in county jails so that they remain physically safe and clinically stable until their transfer to competency restoration services.
However, the structure of JBBS creates some challenges. Because the JBBS-subcontracted providers differ across counties and jurisdictions, no two providers are alike, and their services differ. Some providers have strong connections with local and private inpatient hospitalization facilities, while others have weaker ties. Workforce and qualifications also differ among providers. This poses some challenges for CDHS; while individualized services are enhanced given the local nature of the providers within JBBS, uniformity and leverage across providers are more difficult.
Since our last quarterly report, all but one county have expressed interest in receiving funding for enhanced mental health services. These good developments result from direct, individualized outreach from Ms. Shah and Dr. Werthwein (OBH Director) to the few remaining sheriff’s offices. Further, OBH prepared a document that lists the scope of OBH-contracted
17 “Interim Jail Mental Health Treatment” means mental health treatment of a Pretrial Detainee that is performed in the County Jail where the Pretrial Detainee is held while the Pretrial Detainee awaits Community-Based or Inpatient Restoration Treatment per Court Order consistent with the time frames in the Consent Decree. It is NOT a proxy or substitute for competency restoration services.

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services within each county jail statewide; a review of this document is similarly encouraging in that nearly all county jails are providing OBH-supported enhanced mental health services (or are in contract negotiations to do so).
However, significant challenges remain. These contracts with county jails embody a wide variety of depth and breadth of services. There is little uniformity among the contracts. Moreover, OBH has very little leverage over these services aside from the contract. Quality of services, frequency of communication, and fidelity to expectations are rather loosely assured without a stringent contracting and quality management oversight. Unfortunately, OBH has few resources to provide this oversight, so in reality the actual mental health services available in county jails could be inadequate. OBH has proposed to develop an “inter-agency agreement” which would allow for more oversight and more flexibility in service changes, rather than utilizing individual contracts; although supported by both DLC and the Special Masters, such an agreement will not be ready before March 2020.
Many of these concerns about quality, frequency, and intensity of mental health services are highlighted by the recent suicide in Pitkin County Jail. At least based on initial investigation, there appear to be substantial concerns about the response to the deceased’s mental health needs from both the Pitkin County sheriff’s office and their third-party mental health provider. These concerns only heighten the need to ensure quality and adequacy of mental health services and responses in county jails. We have appreciated and supported the Department’s response since that incident, but are somewhat dismayed at what appears to be a patchwork approach to jails’ mental health services across the state. We understand that without statutory change, OBH has little ability to truly enforce certain standards in county jail mental health services. Nevertheless, OBH is ultimately responsible for the quality and adequacy of interim jail mental health treatment and must use any available leverage to ensure that these defendants are receiving necessary services.

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RELEASE OF PRETRIAL DETAINEES FOR COMMUNITY-BASED RESTORATION TREATMENT18
35. Release of Pretrial Detainees for Community-Based Restoration Treatment. If the court releases the Pretrial Detainee on bond to commence Community-Based Restoration Treatment, the Department shall coordinate with the Court Liaison to develop a discharge plan (in a format approved by the Special Master) within seven days of the order to all parties involved in the Community-Based Services Recipient’s case, and the Court Liaison and community-based provider.
The Department has made further progress on the requirement to develop discharge plans for persons identified as appropriate for Community-Based Restoration Treatment (CBRT). Progress is clear — and important work remains — in three areas:
1. Pilot project in CMHIP: CMHIP has identified between 5-10 patients currently treated at CMHIP that could potentially transition to CBRT in the near future. While still unrestored, their improved clinical status and minimal public safety concerns make them more appropriate for release to CBRT, rather than staying at CMHIP. We affirm the Department taking this initiative and fully support the transition when appropriate. To date, however, no such transitions have occurred. CMHIP administrators have begun actively working on these cases; we anticipate that at least a few currently incompetent defendants will transition from CMHIP to CBRT before our next quarterly report, and that this type of “step down” approach may be one way to decrease length of stay in the hospital and allow for more rapid admissions from the waitlist.
2. Impact of the Forensic Support Team (FST): As detailed in our January 2019 response to the Department’s plan for compliance, we envisioned multiple roles for the FST. Primarily, the FST was meant to monitor clinical and restoration progress for incompetent defendants in county jails awaiting transfer to CMHIP. Secondarily, three other roles were described: monitoring and coordinating cases in CBRT, facilitating transfers from jail to CBRT when appropriate, and serving as the point of contact for caseloads regardless of restoration location.
To date, OBH has focused on the first role but has given less attention to the other roles. FST navigators have spent most of their time working with cases either in jails or in CMHIP. FST navigators have monitored clinical status and restoration progress for those in jails awaiting transfer to CMHIP — primarily defendants who have been categorized as Tier 2. Navigators have also worked with CMHIP to begin facilitating transfer of incompetent defendants to CBRT, though (as detailed above) no such transfers have yet
18 “Community-Based Restoration Treatment” means Restoration Treatment of a Community-Based Recipient that is ordered to be performed out of custody and in conjunction with a community-based mental health center or community organization.

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occurred. Navigators have also reportedly been effective in securing emergency holds, emergency transfers, and engaging in other crisis responses for a handful of cases. We affirm this important work.
However, we must also note our concerns about the FST. First, the launch and implementation of the FST was slow. The navigators were hired in August, yet they had not uniformly begun formal monitoring of jail-based defendants until November. We appreciate the Department’s careful on-boarding of the team; their initial two-week training was thorough, comprehensive, and reasonably paced. However, implementation of the team since then seemed unnecessarily delayed. The Department described barriers such as lack of computers and other resources as reasons for the slow implementation, but the reality is that many incarcerated defendants needed OBH monitoring during the implementation period. We are pleased that the team of navigators has now begun their required frequency of contacts as mandated by the Consent Decree, and we are beginning to hear positive accounts of their work as a result.
Second, we have some concerns about the allocation of FST navigator responsibilities. Navigators are working almost exclusively with in-jail defendants, which leaves no opportunity to attend to defendants transitioning to the community for CBRT. We agree that the priority for navigators must be those defendants who remain in custody. Those defendants are, as a group, most at risk for crisis. The Consent Decree mandates that navigators monitor these in-jail defendants at least once every ten days for clinical status and restoration progress; this monitoring addresses our third overarching goal of reducing harm to those on the waitlist. However, other goals of the Consent Decree are to reduce the number of persons on the waitlist and reduce the time spent on the waitlist. These goals are supported by facilitating transitions to CBRT and enhancing CBRT services. Navigators should play critical roles in both. Navigators should identify Tier 2 defendants who have clinically stabilized while in jail and actively work with stakeholders to transition them to CBRT services. Perhaps more importantly, navigators should be the Department’s “face” of restoration in the community — a visible expert in the restoration system who serves as the OBH point of contact whenever needs are identified. By serving as the Department’s restoration experts in the community, navigators increase restoration success, troubleshoot problems, address crisis situations, enhance community tenure, and help skeptical judges trust the Department’s community-based restoration services.
The Department has, in general, agreed to these broad roles for navigators, but maintains that current workloads and staffing ratios preclude much community engagement by the FST navigators. Acknowledging that initial staff workload projections were probably inadequate, we will: 1) more explicitly describe our vision for the community role for FST navigators, and 2) work with the Department to request funding to support such a team.

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We are also keenly aware that all reports of FST navigators to date have been anecdotal in nature. There is no data dissemination system yet in place. We have offered expertise in data collection, analysis, and dissemination given our first-hand experience with such programs and their data systems in other states, yet OBH has been slow in operationalizing such a data system for the FST. We strongly encourage the development of a data-driven system for the FST.
Finally, we acknowledge the impact of the Pitkin County suicide on the FST. Since that suicide, the FST was mandated to meet with every in-custody defendant statewide within three days of the announcement. This has occurred, which we again affirm as critically important progress. Additionally, OBH has created a decision tree for how often subsequent contacts must be face-to-face versus by telephone with treatment and/or jail providers. Certain circumstances merit face-to-face visits; these criteria were tentatively affirmed by DLC. A formal document outlining this drafted plan is forthcoming, the Department reports. We will provide our feedback to OBH and report on progress in our next quarterly report; we anticipate that such a document could easily lend itself to some data collection (e.g., timeliness of monitoring of in-custody defendants by FST navigators, if such monitoring is telephonic or face-to-face, what if any outcomes result from these contacts, clinical status and restoration progress, etc.).
3. Coordination with the Bridges program: The State Court began their Bridges program in 2018, using “court-liaisons” to help address the needs of persons with mental illness in criminal court settings. While most of their cases involve competency, Bridges liaisons are not uniformly assigned to all competency cases. But, ideally the FST and Bridges program act in a complementary manner to address the needs of persons needing competency-related services.
As mentioned in our previous quarterly report, the Bridges Program and FST must work together to facilitate discharge and share responsibilities for competency-related cases. They both rely on similar (partially, but not entirely, overlapping) bodies of information. Thus, the Department and the Bridges team have been actively working to coordinate services, so that they can ultimately collaborate in a way that minimizes redundancies and gaps. We recognize that two similar, relatively new programs will inevitably face role confusion and “start up” challenges. Overall, we are pleased with the progress thus far in this communication and collaboration. FST and Bridges representatives have jointly produced documents that outline responsibilities of each program; while some inaccuracies and areas of confusion seem to persist, their interaction has been fruitful in both tone and outcome. Additionally, Bridges liaisons and supervisors have identified and communicated gaps and problems to OBH and to us; this allows us to follow up on specific problems for which we may have otherwise been unaware. Some of these situations are quite dire — suicides of persons in competency-related services — so we are quite grateful for this information from Bridges representatives, and encourage even more open communication between Bridges and OBH.

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TRANSPORTATION OF PRETRIAL DETAINEES
36. Transportation of Pretrial Detainees. If a Pretrial Detainee is transported to the Hospital for an Inpatient Competency Evaluation and the Department or a medical professional opines that the Pretrial Detainee is incompetent and the provisions of C.R.S. § 27-65-125 have been met, the Department shall not transport the Pretrial Detainee back to his/her originating jail. Over the past quarter, a total of 16 defendants were admitted to CMHIP for an inpatient competency evaluation, of whom only eight met C.R.S. § 27-65-125 criteria, according to hospital staff.19 None of these defendants who met civil commitment criteria were returned to a local jail.20
As mentioned in previous quarterly reports, SB19-223 included language that allows CMHIP to keep defendants ordered for inpatient evaluation at CMHIP from the time that the evaluator opines them incompetent to proceed (rather than requiring C.R.S. § 27-65-125 criteria be met, or that the originating court adjudicates the defendant as incompetent). This is now found in C.R.S. § 16-8.5-105 (IV-b-5) and reads as follows:
When the court orders an inpatient evaluation, the court shall advise the defendant that restoration services may commence immediately if the evaluation concludes that the defendant is incompetent to proceed, unless either party objects at the time of the advisement, or within 72 hours after the receipt of the written evaluation submitted to the court.
Policies and procedures governing the decision-making in these circumstances are still in development. At times, CMHIP may need to balance these incompetent individuals already in the hospital and in need of hospital-level care with those Tier 1 or Tier 2 defendants in county jails approaching their deadlines for admission. To date, decisions among these individuals have been made primarily on clinical grounds, but we also understand the need to admit individuals who have been waiting in county jails for extended periods of time. Discussions among OBH and DLC have been amiable and productive in these challenging situations.
19 According to the October Special Master Compliance Report (p.24), submitted by CDHS on November 7, 2019. 20 See the Department’s monthly report (p.16) filed November 7, 2019.

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NOTIFICATION OF NON-COMPLIANCE WITH TIME FRAMES
38. Notification of Non-Compliance with Timeframes. The Department shall notify the Special Master and DLC weekly regarding any non-compliance with timeframes. (a) Only one notice per Pretrial Detainee shall be provided and should include: (i) The name of the Pretrial Detainee; (ii) The Pretrial Detainee’s location; (iii) The Pretrial Detainee’s charges based on information available to the Department; (iv) The Pretrial Detainee’s bond amount based on information available to the Department; (v) Whether a forensic assessment has been made on whether restoration in the community is appropriate; (vi) Whether the Pretrial Detainee has previously been found incompetent; (vii) What efforts are being made to provide timely Competency Services to the Pretrial Detainee, including communications with the court, Court Liaisons, and community mental health providers;  (b) The Department shall accompany its Monthly Data Report (see Paragraph 52) with a separate “Fines Report” which will include the names of the Pretrial Detainees for whom the Department has accrued a fine during the preceding month, the number of days each Pretrial Detainee waited in the County Jails past the timeframes for compliance, and the total fines owed by the Department for the preceding month. (c) The Department shall pay the total fines owed on the date the Fines Report is submitted to the Special Master to be deposited in a trust account created for the purpose of funding non-Department mental health services. The account will be managed by a court-appointed administrator. Decisions concerning payments out of the account will be made by a committee consisting of a representative from the Plaintiff, a representative from the Department, and the Special Master. Any disputes regarding the fines shall be handled through the dispute resolution process identified in Paragraph 59.
The Department has continued to provide reliable notification of non-compliance of time frames on a weekly basis, as required by the Consent Decree (since June 1, 2019). Likewise, the Department has completed a “Fines Report,” as prescribed by the Consent Decree. Finally, as prescribed by the Consent Decree, the Department has been paying these fines into a trust account (managed by Cordes & Company, LLP).
The funds from these fines are already going to good use. A small committee comprising Department administration (Worthwein, Scofidio), a representative from the Plaintiff (i.e., Disability Law Colorado leader, Ivandick), and the Special Masters has met regularly for several months to address use of these fines. The broad goal is to use the funds in ways that help those involved in the mental health and criminal justice systems (i.e., those who are, or are likely to become, involved in competency-related services), and to reduce Colorado’s “competency crisis,” by providing new services of interventions that do not already fall within the Department’s responsibilities. In other words, funds from the fines should supplement and not replace existing services.
The first opportunity to use these funds for prompt services emerged through a collaboration with the Colorado Coalition for the Homeless (CCH), which was renovating a hotel to create Fusion Studios, which comprise 182 single-unit residences for homeless individuals. Because CCH has a strong record of fiscal responsibility and successful housing interventions, the Department explored a collaboration to dedicate new residences to those involved in the

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competency system, particularly defendants who could be eligible for community-based competence restoration if they had access to housing (a lack of housing is a common barrier to outpatient restoration treatment). Ultimately, in an arrangement finalized on October 2, 2019, the Fines Committee contributed $3.5 million to the Fusion Studio project, in exchange for 28 dedicated residences for competence-involved individuals whom the Department refers, over the next five years. Because the project involved renovations to an existing hotel (rather than new construction) this housing will become available at a remarkably rapid pace; the Department should be able to refer occupants in December, and will target those who are ready to transition out of the hospital and continue restoration services in the community.
Though the Fines Committee has not finalized the next funding priorities, the Committee is investigating a pilot test of a “competency docket” or “competency calendar” in a Colorado District. We have researched and consulted with other jurisdictions around the country, and it is clear competency-specific dockets offer a number of advantages to courts and defendants, and tend to expedite competency-related procedures in ways would help defendants and the Department waitlists. Furthermore, Judges in Colorado’s 18th Judicial District are highly motivated to establish a competency docket. This initiative would use a fairly small fraction of the fines funds; the District does not anticipate any funding requests for the judges or clerks, but would like court-based clinicians to aid in the processes. The planning is still underway; we anticipate this will be our next high priority for funding, and likely make a significant contribution to expediting competency-related services in this District (and likely beyond, to the extent this serves as a model for other Districts to replicate).

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CONSENT DECREE SECTION VII UPDATES
CIVIL BED FREEZE
39. Civil Bed Freeze. The Department’s 2018 Plan included an effort to freeze civil admissions to its beds to devote Hospital beds to perform Inpatient Restoration Treatment services. On February 7, 2019, the Department agreed to stop this practice. The Department will continue to leave the state’s civil and juvenile beds allocated as of the execution of this Consent Decree for civil and juvenile psychiatric admissions and will not freeze or convert those beds to provide competency services for Pretrial Detainees, unless the Department receives prior agreement from the Special Master to use unutilized beds for such purposes. This strategy to facilitate compliance with the Consent Decree shall only be re-implemented in the future upon agreement of the Special Master.
The Department continues to report that they have removed the “civil bed freeze” as mandated by the Consent Decree. That is, they have not re-purposed the civil beds at CMHIFL for competence restoration, as they had once proposed. Per our request, the Department continues to provide a census report on the CMHIFL patients in their monthly report. As of their most recent report, the CMHIFL population included a total of 94 patients, 90 of whom were civil patients. Although four patients had a forensic status, the Department has explained these special circumstances to the Plaintiff and the Special Master, and provided reasonable justification in the monthly report. All parties have agreed these reflect reasonable exceptions. Most recently, all Parties agreed to allow CMHIFL to serve as a setting for certain one-day competency evaluations, provided that the defendant does not require admission.
During monthly multi-party meetings, the Department has discussed any potential changes to the use of any CMHIFL beds (e.g., allocating a few new beds at CMHIFL to accommodate inpatient competence evaluations — not restoration — which may reduce the need to transport Denver-area defendants to CMHIP for inpatient evaluation). Generally, the Plaintiffs and Special Masters have agreed with the minor changes they have proposed, because these tend to reflect efficient steps that better serve the Departments’ consumers.
For the foreseeable future, the Department will continue to wrestle with the reality that too few civil beds exist in Colorado. A potential, albeit indirect, benefit of the Consent Decree may be to increase civil capacity through the reduced need for forensic beds; the Department will need to continue to monitor this trend and the outcomes of Consent Decree initiatives to determine the ongoing and future needs for civil beds.

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COMPREHENSIVE AND COHESIVE PLAN
40. Comprehensive and Cohesive Plan. The Special Master’s first recommendation was to revise the Department’s 2018 Plan into a more comprehensive and cohesive plan. Dkt. 146. By or about January 2020, the Department will produce an initial plan resulting from a long-term visioning process with DLC, the Special Master, and stakeholders that will consolidate disparate pieces of the Department’s current plan, along with legislative initiatives, in a cohesive package for courts, administrators, service providers, and legislators to consider. As referenced in the Special Master’s Recommendation Number 7, the 2020 Plan will highlight the methods to prioritize quality amid quantity and time pressures. Dkt. 146 at 42. On an annual basis thereafter, the Department will review and revise the plan as appropriate based upon data provided by the Department.
The Department continues to move closer to developing a comprehensive, cohesive plan. The final plan is due to be submitted in January 2020. As we detailed in our last quarterly report, the Department has taken substantial steps to:
1. Coordinate and align policies and services within a long-term vision for competencyrelated services, and
2. Ensure that their emerging plan is supported by, and integrated with, statutory improvements and efforts from other stakeholders regarding competency services. Indeed, they have shared the preliminary plan with the Governor’s Blueprint Task Force subcommittee that is addressing competence-related issues.
The Department has continued developing the plan through the efforts detailed in our previous quarterly report (i.e., various internal meetings, specific coordination initiatives, participation in the Governor’s blueprint taskforce committee, etc.). We affirm these efforts and encourage them to continue.
Along with these important accomplishments, we see the following as important, remaining next steps towards a “Comprehensive, Cohesive Plan” for the Department to take in the near future:
• Write the plan. The final, written plan is due in January 2020, though it will be important to share drafts with us and other stakeholders before then. The written plan should include an articulation of the larger vision for competency services in Colorado, along with specific goals. It should also include descriptions of the components of the competency services system, policies and protocols, a glossary, desired outcomes, and visual representations of the entire system (described below) and the smaller component parts.
• Create a visual representation of the new competency services system. This should be a 1-2 page representation of how the different components are integrated and interconnected. It should be tailored to a lay audience, so that stakeholders outside the Department can see the system, see where they fit into the system, and understand the context for their functions and roles in the system.

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• Educating all stakeholders, both within and outside of the Department. As we have emphasized in prior reports and in discussions with the Department, it is crucial for Department employees and stakeholders to understand the changing system in which they work. It will be important to continue educating evaluators, hospital staff, the bar, and the judiciary about recent and emerging changes.
• Plan for 2020 legislative session. Inevitably, SB19-222 and SB19-223 will require adjustment as they are implemented. The Department must collect outcome data for each bill and begin making drafted adjustments to both bills in late 2019 / early 2020. Furthermore, the Department should continue their recent exploration of other potential legislation that may improve competency services and better address the population of individuals likely to be involved in the competency system. To date, potential legislation includes increasing OBH oversight regarding jail-based mental health services, decreasing competency mandates for lowest-level offenders, and adjusting competency reevaluation time frames.
• Refine workloads and expectations within new programs. Analogously, the new Department programs (triage, CBRT, data team) will require careful monitoring of outcomes so that necessary adjustments can be made. Adjustments might include revised workloads for Court Service evaluators, jurisdictions for FST Navigators, contracts for CBRT providers, intensity of JBBS services for defendants at various stages of the competency process, and so on. Additional positions will almost certainly be needed over time (i.e., more Court Service evaluators and FST community navigators). In short, the Department is launching many promising initiatives; all of these are new and complicated enough that they will inevitably require close observation and fine-tuning.

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INCREASE COMMUNITY RESTORATION SERVICES
41. (a) Implement a coordinated wide-scale outpatient (community-based) competency restoration (OCR) system. This system shall be integrated and submitted with the “Comprehensive and Cohesive Plan” referenced in Paragraph 40 herein. This plan shall be approved by the Special Master.
As in our past quarterly report, the Department continues to progress in developing a wide-scale outpatient, community-based restoration treatment program (CBRT). Their formal CBRT program began in March of 2018, and referrals for outpatient restoration have ranged from 4246 defendants per month during the past quarter (an increase from the prior quarter). Although we hope to see these referrals — in particular, the proportion of defendants referred for CBRT (detailed in 41(c) below) — continue to increase, we perceive the Department maintaining meaningful steps towards further CBRT:
• The Department has increasingly established contracts with the community mental health centers (nearly all of them, at this point) to provide CBRT.
• The Department increasingly considers and describes outpatient restoration the default approach for restoration, unless there is clear reason for inpatient restoration. Simply shifting the “default setting” (particularly as evaluators and judges understand it) will help to increase community-based restoration, and decrease unnecessary inpatient admissions.
• Pilot project in Denver County: The Department has allocated $500,000 to Mental Health Center of Denver (MHCD) and Denver Pre-trial Services to establish a pilot program that bolsters case management, treatment, and supervision in order to expand CBRT in the Denver metro area. Though a pilot program, this type of targeted intervention in such a high-need area may be sufficient, even by itself, to influence waiting list and wait time figures for the state. The Department reports that the project began a “soft launch” two weeks ago with three referrals through Denver District Court. They are waiting to see if those three referrals are accepted by the court’s pre-trial services branch; more referrals are expected to begin next week and will expand to the Denver County Court. We anticipate this pilot will be an important demonstration project for CBRT.
Along with these important accomplishments, we see the following as important, remaining next steps for the Department to take in the near future. Unfortunately, these recommendations remain virtually unchanged from our last quarterly report, emphasizing the need for attention:
• Continue educating evaluators, the defense bar, and the courts that CBRT is available, and should be considered the default option.

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• Further train evaluators, who must soon include recommendations for restoration location (inpatient or outpatient) in the conclusion of any report that opines a defendant is not competent. Evaluators will need to better understand the CBRT system, and become reliable with one another (i.e., offering similar opinions in similar cases) in recommending CBRT versus inpatient restoration.
• Provide to the Special Masters requested data on CBRT process and outcomes. Such data will be important for quality assurance, improving services, and further planning.
41. (b) The Department may utilize private hospital beds to meet the needs of Pretrial Detainees meeting C.R.S. § 27-65-105(a) civil commitment criteria and with prioritization to Pretrial Detainees already residing within the same geographic location. The Department shall create a plan to implement this subsection (b) to be approved by the Special Master.
The Department has contracted with a local hospital to provide five inpatient beds for shortterm competency related services. These beds are currently filled. OBH is close to finalizing a contract with an additional private hospital in the Denver metro area for three additional beds.
41. (c) The Department currently estimates that 10-20% of Pretrial Detainees admitted for inpatient restoration do not need hospital-level care. Dkt. 146 at 29. The Department will make best efforts to reduce inpatient restoration hospitalizations by 10% and increase community restorations by 10% in six-month increments beginning June 1, 2019. The baseline for the preceding sentence will be determined by the Special Master by June 1, 2019, utilizing data provided by the Department. On June 1, 2020, the Special Master will establish a modification of this guideline based upon a survey of the data collection and implementation of the Department’s Plan.
As prescribed in the Consent Decree, we established a Baseline for improvement, by calculating the most recent six-month period of available data (i.e., Nov 2018 – April 2019) prior to the June 1, 2019 deadline. We also recommend using proportional metrics when pursuing goals that are fundamentally proportional in nature (i.e., a 10% increase in community-based restoration and a 10% decrease in inpatient restoration). In other words, while the Department may not have full control over the actual number of referrals, they have greater control over the proportion of referrals they direct to outpatient versus inpatient restoration. Therefore, we chose to set the baseline figures, and establish subsequent performance goals, based on proportions instead of raw numbers. Thus, calculating target goals for restoration based on these percentages of individuals referred to inpatient versus outpatient services yields the following goals:

Case 1:11-cv-02285-NYW Document 180 Filed 11/27/19 USDC Colorado Page 34 of 36 Page 34

Inpatient Restorations

Outpatient Restorations

Baseline (past 6 months)

Recent 6-month average: 69%

December 1, 2019 goal

69% reduced by 10% = 62%

June 1, 2020 goal

62% reduced by 10% = 56%

Note: All percentages rounded to nearest 1%.

Recent 6-month average: 31% 31% increased by 10% = 34% 34% increased by 10% = 37%

Therefore, the December 1, 2019 performance goal to reduce inpatient restoration by 10% and increase outpatient restoration by 10% should yield no more than 62% of defendants referred for inpatient restoration and no less than 34% of defendants referred for outpatient (community-based) restoration.
As of this quarter (i.e., preceding November 28, 2019), the portion of defendants referred to CBRT has averaged 32.2%, which was an improvement over the last quarter.21 Indeed, the Department has met (or nearly met) the 34% proportion for several individual months. The goal is to reach 34% as a six-month average by December 2019. We anticipate they will meet, or come quite close to meeting, this goal if their current trend continues.
We are hopeful that the Department will be very close to compliance with Paragraph 41 of the Consent Decree by increasing outpatient restoration to 34%, on average, for the period spanning June 1, 2019 through December 1, 2019. Aside from a few months of lower referral percentages, most months were well within the 34% mark. We continue to view this aspirational goal as largely reasonable. However, we must mention a caveat to this goal in light of recent events. We were alerted to two completed suicides and at least two successful interventions of suicidal individuals, all of whom were involved in CBRT services within the past several months. Clearly these situations must be taken seriously. We have requested all relevant records and documentation for each of these situations so that we can properly investigate and understand the context for each. In addition, we have requested death and suicide rates for CBRT participants overall, so we can compare these rates against normative rates for all OBH clients.
Regardless of normative rates, however, no suicide is ever tolerable. OBH must ensure that referrals for the CBRT system are appropriate and well-informed; court services evaluators, FST navigators, and CMHIP discharge planners must all be thoroughly informed about the CBRT system, its resources, and the persons best served by it. Additionally, CBRT services must be robust and nimble enough to identify persons in crisis and manage their emergency needs quickly and effectively. Without the aforementioned requested records, we cannot comment on

21 This has increased from the 28.8% six-month average at the time of our prior quarterly report.

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either of these two components in this report. We will have more information for our next quarterly report.
However, at a minimum, we strongly encourage the Department to self-assess which participants are appropriately positioned for success in the CBRT system, and only refer those types of persons to the program. If that referral rate is ultimately less than 34% of the total number found ITP, we support lowering the aspirational goal accordingly. We aim to place the maximum number of appropriate persons in CBRT, but are not wedded to a predetermined rate if that rate cannot safely manage all persons within it.
Also, we reinforce the need for OBH to provide outcome data on CBRT. We have requested this outcome data for several months and have met with CBRT administrators multiple times during the past six months to develop outcome variables. Although OBH has many concurrent data requests, we continue to strongly request empirical outcome data for CBRT (and the FST, as mentioned earlier).

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CONCLUSION
As detailed throughout this report, we perceive the Department has made significant and meaningful progress in enacting changes prescribed in the Consent Decree. Indeed, several key interventions prescribed by the Consent Decree (e.g., the triage system, the Forensic Support Team) have become fully operational during this reporting period. These have begun to significantly change the overall key metrics, in that the Department is generally responding promptly to those identified as Tier 1. Put simply, the most acutely ill defendants — those whose welfare was a primary focus in the current legislation and Consent Decree — do seem to be receiving more prompt treatment upon launch of the Triage System. More subtle improvements are also clear, as the overall wait list has decreased slightly in the past quarter. On the other hand, it remains for the Department to begin accelerating inpatient restoration treatment for Tier 2 defendants, whose needs may be less urgent, but nevertheless important. And of course, recent suicides raise serious questions about services and quality assurance mechanisms in certain areas. We will continue to work with the Department on these and related matters, and we encourage you to contact us with any questions or requests. We appreciate the opportunity to serve the court, and the state of Colorado, in these important efforts.
Neil Gowensmith, Ph.D. President, Groundswell Services Inc.
Daniel Murrie, Ph.D.

 
 Case 1:11-cv-02285-NYW

Document 189

Filed 03/03/20

USDC Colorado Page 1 of 41
FILED UNITED STATES DISTRICT COURT
DENVER, COLORADO
1:56 pm, Mar 03, 2020
JEFFREY P. COLWELL, CLERK



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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 4 of 41
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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 5 of 41
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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 6 of 41
 M 
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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 7 of 41

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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 8 of 41

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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 11 of 41

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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 12 of 41
 HI 
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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 13 of 41

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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 14 of 41

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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 29 of 41
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Case 1:11-cv-02285-NYW Document 189 Filed 03/03/20 USDC Colorado Page 30 of 41

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 Case 1:11-cv-02285-NYW Document 197 Filed 06/05/20 USDC Colorado Page 1 of 41
SPECIAL MASTER REPORT to JUDGE WANG Submitted June 5, 2020
CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO, Plaintiff, v. MICHELLE BARNES,
in her official capacity as Executive Director of the Colorado Department of Human Services, and JILL MARSHALL,
in her official capacity as Chief Executive Officer of the Colorado Mental Health Institute at Pueblo, Defendants.

Case 1:11-cv-02285-NYW Document 197 Filed 06/05/20 USDC Colorado Page 2 of 41

June 5, 2020
The Honorable Judge Nina Wang United States Magistrate Judge District of Colorado Alfred A. Arraj United States Courthouse 901 19th Street Denver, CO 80294

Page 2 Re: Civil Action No. 11-cv-02285-NYW

Judge Wang,
This report serves as our May 28, 2020 status report1 mandated by the Consent Decree that was filed March 15, 2019 pursuant to Case No. 1:11-cv-02285-NYW. As you know, the Consent Decree (following your earlier court order) requires us to monitor progress and provide recommendations for improvement to the Colorado Department of Human Services (CDHS; hereafter the Department) as they attempt to improve competency-related services to criminal defendants with psychiatric illness. Specifically, the Consent Decree (p.24) indicates,
(i) As part of the duties, the Special Master shall provide the Court and the Parties with status reports every other month for the first six months, and then quarterly thereafter. The Special Master’s status report was submitted on January 28, 2019. Dkt. 146. The next report shall be submitted to the Court and the Parties on March 28, 2019, and then May 28, 2019, and then quarterly thereafter. Such reports shall address the Department’s compliance with the timeframe requirements of the Consent Decree concerning Competency Services and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department’s compliance with the Consent Decree timeframes concerning Competency Services.
(ii) The Special Master’s report shall include, but is not limited to, reporting on the number of Pretrial Detainees ordered to receive Competency Services, an assessment of the Department’s operations, systems, and admissions practices and policies relating to the Department’s ability to comply with the Consent Decree timeframes, and guidance to the Department for improvement and increasing efficiencies in these areas.
As you know, the Consent Decree filed March 15, 2019 prescribed a variety of steps the Department must take to improve the competency assessment and restoration system in Colorado, and eventually attain compliance with all time frames and deadlines mandated in the Consent Decree. The Department has initiated many of these steps, demonstrating meaningful

1 Per prior agreement with the court, we are submitting the May 28 report one week later, on June 5, so that we are able to further discuss an arrangement the parties were negotiating during the final days of May and initial days of June (i.e., an agreement about how to handle fines that accrue solely due to COVID-related delays).

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progress, in ways we detail through the remainder of this report. In particular, this report will focus on developments since our prior quarterly report, which was submitted February 28, 2020. As you know, these past three months have been remarkable for the worldwide COVID-19 pandemic, so this report focuses on the pandemic’s impact on the functions prescribed in the Consent Decree, and the Department’s efforts to respond to the challenges COVID-19 has brought.

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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................... 5 KEY METRICS FOR PROGRESS: COMPLIANCE WITH TIME FRAME REQUIREMENTS................................9 KEY METRIC: COMPETENCE EVALUATION TIME FRAMES .............................................................. 10 KEY METRIC: COMPETENCE RESTORATION TIME FRAMES.............................................................12 KEY METRIC: THE WAITLIST FOR COMPETENCE RESTORATION SERVICES ...................................... 14
CONSENT DECREE SECTION VI UPDATES ...................................................................................16 ADMISSION OF PRETRIAL DETAINEES FOR INPATIENT COMPETENCY EVALUATIONS AND RESTORATION TREATMENT ...................................................................................................................................... 16 Wait Times for Inpatient Evaluation .............................................................................................. 17 Wait Times for Inpatient Restoration.............................................................................................19 PERFORMANCE OF JAIL COMPETENCY EVALUATIONS........................................................................21 INTERIM JAIL MENTAL HEALTH TREATMENT......................................................................................23 RELEASE OF PRETRIAL DETAINEES FOR COMMUNITY-BASED RESTORATION TREATMENT .................. 26 TRANSPORTATION OF PRETRIAL DETAINEES ...................................................................................... 30 NOTIFICATION OF NON-COMPLIANCE WITH TIME FRAMES ............................................................... 31
CONSENT DECREE SECTION VII UPDATES ..................................................................................34 CIVIL BED FREEZE............................................................................................................................... 34 COMPREHENSIVE AND COHESIVE PLAN ............................................................................................. 35 INCREASE COMMUNITY RESTORATION SERVICES .............................................................................. 36
CONCLUSION ............................................................................................................................41

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INTRODUCTION
As you know, the Consent Decree that was filed March 15, 2019 prescribed many steps the Department must take, and timelines it must meet, to improve the competency assessment and restoration system in Colorado. After the Consent Decree was filed in March 2019, the Department began taking many of these steps (detailed throughout this report) in ways that we consider generally responsive, and in ways that appear to recognize the gravity and complexity of the challenges they face. The Consent Decree has now been in effect for more than one year. Planning and implementation phases are generally complete, and we have had the opportunity to observe the launch and early stages of the new initiatives the Consent Decree prescribed.
Broadly speaking, we consider three goals of these initiatives, and the Consent Decree overall, as primary:
a) Reducing the overall number of people on the waitlist for competence restoration services,
b) Reducing the wait times for people on the waitlist, particularly people with the most acute psychiatric illness, and
c) Reducing harm (by providing care) to people on the waitlist.
Progress on the first goal is clear; there has been a steady and meaningful decrease in the waitlist over the past six months. Progress on the second goal has been substantial, though only for people with the most acute psychiatric illness; those with less urgent needs continue to experience delays that are decreasing, but still excessive. Finally, progress towards the third goal has been improving. The Department has provided prompt care by hospitalizing those who are most ill, and providing services to those waiting longer in the jails. This report details progress on these three primary markers as well as other key developments. However, our discussion of the past quarter will differ considerably from prior reports, because this quarter has been so greatly influenced by the global COVID-19 pandemic.
Overview of Progress this Quarter amid the COVID-19 Pandemic:
Like almost everything else in the Spring of 2020, the Department’s work this quarter has been dramatically altered by the COVID-19 pandemic. When we submitted our quarterly report at the end of February, there was little appreciation in the United States for the impending impact of the COVID-19 virus. However, by mid-March, it was clear the virus would likely cause a global pandemic with substantial impact on almost every aspect of public life, including the criminal justice system and public mental health services. Within just a few more weeks — near the end of March — it was clear that the virus was impacting all of the Department’s services, and particularly people identified in the Consent Decree (i.e., those awaiting or receiving competency services).
Indeed, competency services may have been particularly vulnerable to the impact of the COVID19 pandemic because they lie at the intersection of multiple systems — the courts, jails, and the

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Department — each of which has been attempting to reduce human contact in order to slow the spread of the COVID-19 virus. Though the Department has control over their own services, they have less influence over the other systems in which competency-involved individuals reside, so many of the Department’s functions have been fluid: for example, changing in response to the changing policies and practices of courts and jails. Primary examples of the COVID impact on Department services include:
Competency Evaluations: Many jails have forbidden all visits from external professionals, including the Department’s forensic evaluators, causing delays in evaluations. Fortunately, with some jails, the Department has established arrangements (and even provided the necessary technology) to conduct evaluations via video-conference, an approach that is sometimes less-than-optimal (under typical circumstances), but under current circumstances is far preferable to further delays. With other jails, the Department has developed alternate procedures, sometimes involving noncontact visits and other more socially-distant, protected approaches in order to continue conducting competency evaluations.
Mental Health Services for those Awaiting Competency-restoration Services: Fortunately, the Forensic Support Team (FST) and their Forensic Navigators — mandated by the Consent Decree to monitor defendants in jail awaiting competency restoration services — had fully launched a few months before the pandemic began. These early months allowed them to develop procedures and relationships with the jails before many jails closed to visitors in response to COVID. Once many jails closed to visitors, the FST had little opportunity to monitor defendants face-to-face. Instead, they quickly developed procedures to check on defendants using telephone communication with jail Mental Health staff. The FST (and even CMHIP) worked with jail staff to respond to defendants with acute psychiatric needs, sometimes arranging for transfer to a private psychiatric hospital or to CMHIP. The Department reports these efforts have been successful; there is little evidence to suggest severe problem or crises among defendants waiting in jails. But we acknowledge that the reduced face-to-face contacts by FST, and the increased reliance on jail staff, leave us concerned about the potential to overlook some defendants who remain symptomatic or suffering in more subtle ways.
Inpatient Competency Restoration Services: Amid the public-safety precautions that limit human contact, defendants found incompetent to stand trial and ordered to inpatient restoration services tend to move more slowly into those inpatient services. CMHIP has begun following something like an emerging best practice, admitting defendants in cohorts that essentially separate them into groups, and monitoring them for 14 days before admitting them into broader hospital population. They have created “safe zones” or quarantine strategies that greatly reduce the possibility of a newly-admitted defendant infecting others. This strategy appears generally successful, in that infection rates at CMHIP have remained very low since the onset of the pandemic. Discharges from CMHIP have also slowed, because courts are holding fewer hearings, and many jails and other facilities are declining (or delaying) to accept defendants transferring from the hospitals, as part of their own efforts to reduce infection risks. Not surprisingly then, recent data reveal that admissions and

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discharge numbers were far below typical rates. Obviously, these decreased rates yield poorer performance on some of the key metrics prescribed in the Consent Decree, including the metrics by which the Department incurs fines.
Fines: With certain Department functions greatly altered or slowed by COVID-19, the Department is incurring fines (i.e., the Consent-Decree mandated fines for exceeding prescribed time limits) to a greater degree than in prior months. This has raised questions about how to handle these fines. All parties (i.e., the Department, Disability Law Colorado, and Special Master) agree conceptually that the Department should not be penalized for delays caused solely by COVID-19. Although COVID-19 is, conceptually, a “Special Circumstance” as defined in the Consent Decree, the Consent Decree precludes invoking Departmental Special Circumstances until a later date. Thus, all parties have been considering a potential agreement wherein the Department commits to paying fines they would have incurred absent COVID-19, but need not pay additional fines that appear solely due to COVID-19. Recently, the Department has provided DLC with an estimate (including an independent estimate by a statistician otherwise uninvolved in the Consent Decree matters) of the fines they would have incurred absent COVID (roughly $2 million), and has proposed an agreement in which they pay that fine amount and any additional fines they may incur for delays in jail-based evaluations.2 As we finalize this report, DLC is considering this proposal and crafting a response. Thus, we cannot yet describe a resolution among the parties regarding fines for the coming year, but we are hopeful a negotiated resolution is forthcoming. We have reviewed the estimated fines amount and the statistical model underlying those projected figures, and we believe both are generally reasonable. We have also appreciated the candor and careful consideration of “checks and balances” to ensure that the Department will maintain diligent work regardless of fines. We are optimistic that an agreement will be reached and that more formal mediation can be avoided; however, if formal mediation or proceedings become necessary, we will inform you immediately.
To be clear, the challenges of the COVID-19 pandemic could be worse. Though the pandemic has inevitably slowed many Department functions and created new barriers, the pandemic has also slowed some of the demands on the Department. Perhaps most obviously, law enforcement has made fewer arrests, and court operations have slowed, leaving fewer court orders for competence evaluation or restoration. This is reflected in the current number of Pretrial Detainees on the waitlist as we finalize this report (71), far lower than any month since the Consent Decree took effect. Of course, these decreased court orders are not enough to offset the other challenges and delays the Department faces, but all parties are grateful that
2 The proposed agreement relates only to fines for inpatient evaluation and restoration, not jail-based evaluations. Although the Consent Decree precludes invoking Departmental Special Circumstances at this time, the Department can invoke Individual Special Circumstances for particular defendants. Thus, when particular defendants in jail cannot be evaluated in a timely manner because of COVID-attributable delays (e.g., when a jail forbids visits by evaluators and does not allow an option for evaluations via video) the Department can invoke Individual Special Circumstances.

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there are fewer defendants entering the competency system, amid the other challenges of serving defendants in the COVID-19 era.
Special Master Roles: Amid the changes prompted by COVID-19, we have had to modify the way we perform our Special Master duties as well. Obviously, travel and on-site meetings are temporarily suspended. We hold the monthly two-party meetings via videoconference. We increased the frequency of our meetings with the Department, adding a mid-week telephone update every week, in addition to our weekly Friday meetings with Department leadership. Though certain strategies and initiatives had to pause or change approaches, our primary goal has been to ensure monitoring for the most acutely-ill defendants, and facilitating a rapid response for them.
Looking Forward: As Colorado has eased some of the public safety restrictions that attempted to slow the spread of COVID-19, some of the factors that have caused delays may be changing. For example, some jails may resume allowing face-to-face visits from evaluators (with proper safety precautions). On the other hand, certain procedures will remain as the “new normal.” For example, CMHIP will likely need to continue hospital admissions on a 14-day cohort basis to limit the impact of any infection among newly admitted patients, and this process may remain necessary for the foreseeable future.
Other challenges are clearly on the horizon: as courts resume more regular operations the volume of competency evaluation and restoration orders will substantially increase. Furthermore, some form of COVID-19 resurgence (a “second wave” or “second peak”) is likely, according to many experts. Thus, we urge the Department to prepare for the increased volume of orders for competency services, and the possibility of a COVID-19 resurgence. For the latter, it may be easier to re-instate recently developed protocols than it was to create them the first time, but proper contingency planning will be important regardless.
As summarized above, the COVID-19 pandemic has brought broad and dramatic changes, but the Department continues to pursue the goals prescribed in the Consent Decree. As in every quarterly report, we review next the Department’s compliance with time frame requirements, because this is the primary focus of the Consent Decree (and the focus that the Consent Decree prescribes for our quarterly reports). We consider these time frames our “key metrics” — or primary markers of progress — that we review in each quarterly report. Obviously, many of these metrics have been directly influenced by COVID-19, and its consequent procedural changes necessary for public safety. We discuss each of these in their respective sections below.

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KEY METRICS FOR PROGRESS: COMPLIANCE WITH TIME FRAME REQUIREMENTS
As prescribed in the Consent Decree, a primary focus of these quarterly reports must be the Department’s compliance with time frame requirements:
(i) As part of the duties, the Special Master shall provide the Court and the Parties with status reports ... Such reports shall address the Department’s compliance with the timeframe requirements of the Consent Decree concerning Competency Services and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department’s compliance with the Consent Decree timeframes concerning Competency Services. (Consent Decree p.24)
(ii) The Special Master’s report shall include, but is not limited to, reporting on the number of Pretrial Detainees ordered to receive Competency Services, an assessment of the Department’s operations, systems, and admissions practices and policies relating to the Department’s ability to comply with the Consent Decree timeframes, and guidance to the Department for improvement and increasing efficiencies in these areas.
Therefore, a primary focus of our review is the Department’s progress in meeting the time frames delineated in the Consent Decree. This includes both time frames for competence evaluation and for competence restoration. These will be the key metrics to gauge progress over the next few years, so they are our starting point in the report, as well as a primary focus. Of course, performance in meeting these time frames depends greatly on enacting the other steps prescribed in the Consent Decree, so subsequent sections of the report review those steps in greater detail.

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KEY METRIC: COMPETENCE EVALUATION TIME FRAMES
As summarized in the table below, the Department has historically met evaluation time frames, even well before June 2019 and even through the first several months of the Consent Decree. However, during the prior quarter (i.e., early 2019), the Department began failing to meet these time frames for the first time in many months and they continued to struggle during this quarter.

Average Wait Times for Competence Evaluation Services3

Nov - Jan Feb 2019/20 2020

Mar Apr 2020 2020

January 2020 Requirement

July 2020 Requirement

Jail-based Competency Evaluations

28.6* 28.9* 28.4* 24.9*

28 days

21 days

Inpatient Competency Evaluations

12.6* 14.7 12.1* 20.2*

21 days

14 days

* = at least one defendant waited longer than max time frame for the evaluation

Historically, timely competence evaluation was a relative strength of the Department. Well before the recent Consent Decree, they followed the national trend of de-centralizing evaluations, moving them from solely an inpatient service to a localized service in the community. During 2018, their evaluations almost always met the prescribed time frames. In 2019, however, their performance deteriorated substantially. Apparently due to insufficient planning, recruitment, and hiring, the evaluator workforce was insufficient to meet the need for timely evaluations. This trend has continued into early 2020. In February through April, 27% of jail-based evaluations exceeded the 28-day time frame. Also, inpatient evaluations have historically been completed well within maximum time frames, but in February through April, 11% were late.

As we described in our prior report, their delays in late 2019 and early 2020 reflect the confluence of several factors. Some involved a failure to develop an adequate workforce, and some involved taking appropriate steps (which carried some short-term consequences) to improve the workforce. The Department has made changes to the leadership of Court Services (the unit responsible for evaluations) and, although belatedly, taken some significant steps to improve the workforce. Indeed, this quarter witnessed some substantial improvements (i.e.,

3 According to the Department’s Special Master Compliance Plan report April 2020 p.15 and p.23, submitted May 7, 2020.

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hiring new evaluators and contractors, increasing incentive pay) that we suspect would have demonstrated much clearer progress in this key metric, were it not for some delays attributable to COVID-19 counterbalancing those improvements. As detailed in later sections, we affirm many of these steps, as well as the Department’s (specifically Court Services) efforts to continue timely evaluations in light of COVID-19 challenges.
Historically, the Department had performed well with respect to competence evaluation time frames, but the past two quarters witnessed substantial delays and noncompliance. The original delays were attributable to failures in planning and workforce development, but also some overdue workforce improvements. This quarter has witnessed further substantial improvements (i.e., hiring new evaluators and leadership, incentive pay for conducting “overload” evaluations). But, at the same time, delays attributable to COVID-19 have slowed evaluations and prevented the recent improvements from changing key metrics in ways we believe they otherwise would have. Further, the drop in the number of evaluations ordered by courts was substantial, and yet the Department was still unable to complete timely evaluations in 27% of cases. We affirm the Department’s recent success in recruiting new full-time and contracted evaluators to meet evaluation needs. We also affirm their efforts to continue evaluations amid COVID-19 challenges, and encourage continued, creative work to promptly complete these evaluations. We urge them to continue developing robust evaluation staffing and procedures in order to be ready for the shortened timeframes that will take effect in July 2020.

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KEY METRIC: COMPETENCE RESTORATION TIME FRAMES
The Department has consistently failed to provide prompt restoration services; indeed, this was a primary reason for the litigation leading to the Consent Decree. In the months preceding the Triage system, defendants who were admitted for inpatient restoration treatment at CMHIP or RISE waited, on average, 71 days.4 Of course, this figure included all defendants referred for restoration, without distinction between those with more, versus less, acute needs. Since then, the Department launched on June 1, 2019 the Consent-Decree-mandated triage system,5 designed to prioritize the defendants with the most acute clinical needs (“Tier 1”) over those with less acute clinical needs (“Tier 2”). Currently, Tier 1 defendants must receive services within 7 days of the competency hearing, whereas Tier 2 defendants need not receive services for 49 days (per the January 2020 change in timeframe requirements).
Overall, the Department continues excellent adherence to the 7-day deadline for defendants designated as Tier 1. The wait times for Tier 2 defendants still exceed the time frames prescribed in the Consent Decree (i.e., average wait times exceeding 72 days this quarter, well beyond the required 49 days), though recent data show improvements over prior quarters. Whereas April reveals longer waits than March (due to impact the COVID-19), this COVIDinfluenced figure is better than prior quarters.

Average Wait Times for Inpatient Competence Restoration Services6

Nov – Jan Feb 2019/20 2020

Mar 2020

Apr 2020

January 2020 Requirement

July 2020 Requirement

Tier 1

2.47

1.6

3.6* 10.3*

7 days

7 days

Tier 2

97.87** 80.2** 63.8** 72.0**

49 days

42 days

* = at least one defendant waited longer than maximum time frame for restoration services
** = most defendants waited longer than maximum time frame for restoration services

As in prior reports, each of these summary statistics requires clarification. First, the figures for Tier 1 defendants reflect only Tier 1 defendants as defined in the Consent Decree; that is, defendants whom the court has designated as Tier 1 and ordered to the hospital.

4 Average waiting period November 2018 - April 2019, as calculated from data provided by the Department (see p.7 of their Monthly report filed May 7, 2019).
5 See Consent Decree paragraph 43.
6 Average wait times for Tier 2 defendants reflect a reasonable approximation of the average wait times; exact sample sizes were not used to calculate a precise average.

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To date, the Department reports that a total of 164 individuals have been opined as Tier 1 by Court Services Evaluators and admitted to CMHIP via the Consent Decree criteria. Of these, 160 were admitted within the 7-day maximum time frame. This bodes well for the triage system. The vast majority of defendants whom evaluators designate as Tier 1 are admitted to the hospital promptly (i.e., well within seven days), and often even before the Court designates them as Tier 1 and orders admission. For those that have not, CDHS has offered what appear to be plausible explanations.
Regarding Tier 2 defendants, progress has been much slower. Average wait times still far exceed the time limits in the Consent Decree, just as they did for all defendants in prior months. Tier 2 defendants have waited an average of 72 days between February and April 2020, exceeding the required 49-day limit. Thus, the Tier 1 figures suggest that the Triage System serves the purpose for which it was designed: prioritizing the most acutely ill defendants and moving them into the hospital rapidly. However, the Tier 2 figures reveal that CDHS continues to struggle with some of the primary challenges that prompted the Consent Decree: responding to the volume of defendants referred for inpatient restoration, and admitting them into the hospital within a reasonable time frame. Fortunately, we see improvements in the Tier 2 metric over prior months, even with some delays attributable to COVID-19.
Overall, Tier 1 admissions occur on time. Tier 2 admissions still far exceed maximum admission time frames, though the past quarters have witnessed some small-but-meaningful improvement. The most recent months revealed further improvements (i.e., they exceed the wait times, but to a lesser degree), even amid the COVID-19 pandemic. Future months will reveal if these improvements reflect sustained progress, or if they are more attributable to COVID-related decreases in new persons placed on the waitlist.

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KEY METRIC: THE WAITLIST FOR COMPETENCE RESTORATION SERVICES
Beyond the wait times for restoration services (and progress towards the time frame requirements of the Consent Decree), another key metric for gauging the Department’s progress is the wait list for competence restoration services. That is, the Consent Decree is designed to reduce wait times, but also reduce the number of defendants waiting. In the months preceding launch of the Triage system, the waitlist averaged around 150 to 180 defendants.7 But again, with the initiation of the Triage system on June 1, we must consider the waitlist according to Tier status. Central to the Triage system is an acknowledgement that some incompetent defendants are so acutely ill that they require treatment almost immediately (Tier 1, who require treatment within 7 days), whereas others can safely await treatment (Tier 2, who can wait several weeks).

Number of Defendants on Waiting List for Inpatient Restoration8

March 2019

Jan 2020

Feb 2020

Combined

157

Tier 1

N/A

1

2

Tier 2

N/A

112

115

Mar 2020
3 124

Apr 2020
1 110

Over the past quarters, the Department made meaningful progress in reducing the waitlist. Waitlist figures far exceeded 150 in the Summer of 2019, and they decreased below 150 during the Fall of 2019. Although the number of individuals on the waitlist remains high in absolute terms (110 in April), this figure has decreased steadily over the past several months and is now 71 on the date of this report (June 4), by far the lowest point in more than one year. Generally, the decrease cannot be explained solely by decreased referrals for evaluation or restoration (which vary substantially month-to-month), but rather appears attributable to Department efforts. To be clear, the current low-point (71 on June 4) certainly does reflect the decreased arrests and court orders for competency services in light of COVID-19 slowing the justice system. It remains unclear whether the waitlist will remain this low beyond the peak impacts of COVID19, or whether the Department will experience rapidly increased orders for restoration (potentially prompting increases in the waitlist) as COVID-19 restrictions ease.

7 At present, the Department provides waitlist data as daily figures, so the monthly figures in the table reflect averaged daily figures.
8 According to the Department’s Special Master Compliance Plan report April 2020, submitted May 7, 2020.

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Overall, there has been a meaningful decrease in the number of individuals on the waitlist for restoration services over the past quarter. Overall, this decrease is not simply due to a decrease in referrals. Rather, much of the decrease appears genuinely attributable to Department interventions. The waitlist is currently at a historic low (i.e., below 80 defendants waiting, at the time of this report), though it may increase again depending on the ways in which courts respond to easing COVID-19-related restrictions and delays.

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CONSENT DECREE SECTION VI UPDATES
ADMISSION OF PRETRIAL DETAINEES9 FOR INPATIENT COMPETENCY EVALUATIONS AND RESTORATION TREATMENT
33. (a) Admission of Pretrial Detainees for Inpatient Competency Evaluations and Restoration Treatment. The Department shall Offer Admission to Pretrial Detainees to the Hospital for Inpatient Restoration Treatment or Inpatient Competency Evaluations pursuant to the attached table (Table 1). Compliance with this measure shall be calculated based on the number of Days Waiting for each Pretrial Detainee.
The Consent Decree prescribes the following time frames for admitting defendants to inpatient competence restoration and for performing competence evaluations (whether inpatient or in jail).10 Admission time frames shorten every six months, with the next reduction in July 2020.

Deadlines
June 1, 2019 January 1, 2020 July 1, 2020 January 1, 2021 July 1, 2021

Tier 1: Maximum Time to Offer Admission for Inpatient Restoration
7 days
7 days
7 days
7 days
7 days

Tier 2: Maximum Time to Offer Admission for Inpatient Restoration
56 days
49 days
42 days
35 days
28 days

Maximum Time to Offer Admission for
Inpatient Competency Evaluations

Maximum time to Complete Jail Competency Evaluations

21 days

28 days

21 days

28 days

14 days

21 days

14 days

21 days

14 days

21 days

As summarized earlier (“Key Metrics”), the Department meets the time frame for admitting Tier 1 defendants to restoration and for evaluating defendants in inpatient settings. But they far exceed the time frames for Tier 2 admissions to competency restoration. Evaluations in jail, for the first time in years, began exceeding the mandated time frames in early 2019. Evaluations have continued to lag given COVID-19 delays, though recent improvements suggest they should soon return to schedule.

9 “Pretrial Detainee” means a person who is being held in the custody of a County Jail and whom a court has ordered to undergo Competency Services. Persons serving a sentence in the Department of Corrections and juveniles are excluded from this Consent Decree.
10 Fine amounts are tied to delays beyond each of the time frames listed. However, these fines are discussed elsewhere in this report.

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Wait Times for Inpatient Evaluation
As detailed below, the Department has been quite successful in timely admission for inpatient competence evaluations (versus restoration):

Recent Wait Times for Inpatient Evaluation

Month

Number admitted to CHMIP for inpatient
evaluation

Average days waited prior to admission to
CMHIP or RISE

People who waited more than 21 days

Apr 2020

1

28*

1

Mar 2020

2

12.1*

1

Feb 2020

8

14.7

0

Nov 2019 - Jan 2020

7.0

12.9

0

average

March 2019 total

18

16.4

1

* = at least one defendant waited longer than max time frame for inpatient evaluation services

Over the past three months, an average of 3.7 people per month were admitted for an inpatient evaluation at CMHIP (compared to an average of 7 people for the previous quarter, and a 5.3 average for the November 2019 – January 2020). The average wait time for admission to CMHIP for inpatient competency evaluation was 15.4 days (about 2 days longer than the average for the previous quarter). The Department remained in compliance with the 21-day maximum timeframe for most defendants, although some defendants waited longer. Unfortunately, it appears that the length of time to be admitted for inpatient evaluation increased during this past quarter, even though fewer individuals were referred. This contradicts the trend of decreasing wait times for inpatient evaluations over the past several months. As best we can tell, this recent change results from delays in admissions (e.g., medical screenings and quarantine) due to the effects of COVID-19.

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The maximum admission timeframe will decrease to 14 days in July 2020, and the Department may have difficulty meeting that standard in some cases. While the average timeframe for admission has decreased from historical averages, we believe that delays will continue to occur in some cases due to transportation problems, medical screening delays, and the potential increase in numbers as courts seek to place defendants into inpatient care quickly (at least as the COVID-19 pandemic persists). We will monitor this closely.
We also continue to monitor the clinical appropriateness of those court-ordered admissions. That is, we track how many of the defendants ordered for inpatient evaluation actually met the strict criteria for involuntary hospitalization (C.R.S. § 27-65-105).11 CDHS reported that during the past 3 months, only 27.3% of admissions for inpatient evaluation met that strict “27-65” criteria for involuntary hospitalization.12 This contrasts with a 71% rate during the most recent quarter. In other words, the past year showed an increase in the percentage of defendants ordered for inpatient evaluations who actually met civil commitment criteria (suggesting appropriate use of the inpatient mechanism), but this quarter showed a substantial decrease. The reason is unclear, but results solely from the month of February (in which only one of eight admitted people met civil commitment criteria). We will monitor this carefully over the next quarter to determine if February was an outlier from the previous 12 months, or if it indicates a burgeoning trend of “inappropriate” court-ordered referrals for admission (to the extent the latter is true, we speculate that it may reflect judges’ efforts to ensure prompt admission during the COVID crisis). We believed that solid progress had been made in this area, but February’s numbers provide a potential indicator of re-emerging challenges.
During the past quarter, wait times for inpatient evaluation admissions were longer than reported in previous months, even though the numbers of admissions decreased substantially. The proportion of persons meeting involuntary hospitalization criteria also decreased. While COVID-19 is likely to be a primary reason for this regress, we will monitor these trends and consider potential interventions with CDHS and referral courts.
11 C.R.S. § 27-65-105: (1) Emergency procedure may be invoked under either one of the following two conditions: (a)(I) When any person appears to have a mental health disorder and, as a result of such mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then an intervening professional, as specified in subsection (1)(a)(II) of this section, upon probable cause and with such assistance as may be required, may take the person into custody, or cause the person to be taken into custody, and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation… (b) Upon an affidavit sworn to or affirmed before a judge that relates sufficient facts to establish that a person appears to have a mental health disorder and, as a result of the mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, the court may order the person described in the affidavit to be taken into custody and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation.
12 From the May 7, 2020 CDHS Monthly Compliance Plan Report (p.18).

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Wait Times for Inpatient Restoration
Compared to the timely inpatient evaluations, there are far more concerns regarding inpatient restoration at CMHIP. Over the past few years, wait times consistently exceeded the 30-day time frames mandated by an earlier Settlement Agreement. However, the required time frames changed as of June 1, 2019, per the Consent Decree. As of January 1, 2020, the Consent Decree reduced this maximum timeframe to 49 days. The time frame for defendants with the most urgent clinical needs (those labeled Tier 1) remains at 7 days.

Recent Wait Times for Inpatient Restoration13

Month

Number of people admitted to CMHIP for inpatient restoration

Average days waited for admission to CMHIP inpatient restoration

People who waited more than the max days for admission to CMHIP inpatient restoration

Tier 1 Tier 2

Tier 1 Tier 2

Tier 1

Tier 2

Apr 20

3

27

10.3

72.0

1

77

Mar 20

16

17

3.6

63.8

1

63

Feb 20

10

24

1.6

80.2

0

46

Previous Quarter

17.3

39.7

Monthly Average

(Nov 19 - Jan 20)

2.47

97.9

0

*

March 19

44

58.2

31

(before tier

distinctions)

* CDHS did not provide sufficient data in their Nov 2019 – January 2020 monthly reports to allow for the calculation of the number of Tier 2 individuals who waited more than the maximum allowable days for admission to CMHIP for restoration.

As the table reveals, most of the defendants designated as Tier 2 still wait much longer than the required 49 days before admission (though their wait times are decreasing). More generally, this quarter is remarkable for the general decrease in inpatient restoration admissions compared to the prior quarter. March admissions (33) and April admissions (30) were substantially lower than the average from the prior quarter (i.e., 57 in late 2019), a decrease that is almost certainly attributable to COVID-19.

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As noted in our last quarterly report, the Department’s continued, rapid response to those identified as Tier 1 is commendable. In many ways, the Tier 1 individuals are the highest priority for the Consent Decree and the CDHS competency system. Those whom CDHS categorized as Tier 1 — usually those who most need urgent treatment — continue to be admitted rapidly.
However, as previously reported, the progress towards meeting Tier 2 timelines remains slow. Tier 2 individuals are mandated to CMHIP less urgently, but still within certain time frames. The Department reduced the number of persons on the waitlist and shortened their wait times, but needs additional steps that create space for Tier 2 defendants. The additional inpatient space at CMHIP has helped considerably, in that each of the new beds can accommodate several defendants per year. Increased hospital capacity is expected in late 2020 as the L2 unit opens with 24 new beds. Departmental models estimate that the waitlist may indeed be largely manageable and in compliance before the end of 2020 (aside from COVID-19 related delays), but the L2 unit should provide an extra measure of assurance for the reduction of the waitlist. Still, work is needed in terms of diversion and outpatient treatment to sustain these gains. In short, while Tier 1 individuals must be prioritized for admission (thereby treating those who need it most), successful compliance with the Consent Decree must also reduce Tier 2 time frames; such compliance will demonstrate that the CDHS competency system has created adequate capacity for all levels of competency-restoration needs.
Emerging Efforts: As we reported in the prior quarter, CMHIP initiated a “Fast Track” project to accelerate the scheduling of some competency restoration evaluations. Although defendants are typically evaluated at 90-day intervals, defendants do not naturally gain the capacities necessary for competence at tidy 90-day intervals; many may be competent well before (or shortly after) these court-set dates. Thus, the “Fast Track” effort seeks to identify defendants who are stabilizing in advance of their previously-scheduled post-restoration competency evaluation. In these cases, evaluators are notified to conduct the evaluation soon, so that if the evaluator renders an opinion that the defendant has been restored, the case can be returned to court in advance of their previously scheduled hearing (sometimes weeks to months in the future) and bed turnover can occur. To date, the Department reports that 17 of 20 defendants referred to the “Fast Track” have been opined as competent sooner than their scheduled 90-day evaluation date, returning them to jail sooner (to await their hearings) and thus sooner opening their hospital beds for other restoration patients. The has saved CMHIP a total of 135 bed days. This type of practical intervention has become common in some other states, and is a simple yet effective strategy to reduce unnecessary length of stay.
13 According to the Department’s Special Master Compliance Plan report April 2020 p.8-10 (submitted May 7, 2020).

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PERFORMANCE OF JAIL COMPETENCY EVALUATIONS
33. (b) Performance of Jail Competency Evaluations. The Department shall complete all Jail Competency Evaluations of a Pretrial Detainee pursuant to the attached table (Table 1), after the Department’s receipt of a Court Order directing the evaluation and receipt of Collateral Materials. This timeframe requirement shall apply to the following counties: Adams, Alamosa, Arapahoe, Boulder, Broomfield, Crowley, Custer, Denver, Douglas, El Paso, Elbert, Fremont, Huerfano, Jefferson, Larimer, Mesa, Otero, Pueblo, Teller, and Weld. Counties not specifically identified are counties that use the “Hold and Wait” court ordered process. Counties utilizing the Hold and Wait Evaluation process will be offered a meeting date within 30 days of the Department’s receipt of the Court Order and Collateral Materials, and the evaluation will be completed within 30 days of the meeting. Beginning January 1, 2020, counties utilizing the Hold and Wait Evaluation process will be offered a meeting date within 30 days of the Department’s receipt of the Court Order and Collateral Materials, and the evaluation will be completed within 14 days of the meeting.
The mandated time limit for a jail-based evaluation is now 28 days, per the Consent Decree, and will decrease to 21 days during the next quarter (i.e., July 1, 2020). As mentioned earlier in this quarterly report (see Key Metrics: Competence Evaluation Time Frames) the Department has historically met this timeframe on a consistent basis, until around November 2019.
Recent Struggles: Despite the historic strengths of their evaluation services, around November 2019 it was becoming clear that the Department’s workforce of evaluators was not sufficient to meet the volume of referrals in a punctual manner. Many jail-based evaluations then exceeded the 28day time frame in December (37%) and January (46%), as we described in our prior quarterly report. Thus, the prior quarter witnessed a tremendous setback in services that had been a historical strength for the Department. As we detailed in that report, we believe the failure resulted from a confluence of several factors. First, leadership in Court Services had apparently failed to anticipate workforce needs or prepare for some foreseeable changes in staffing (e.g., maternity leave, evaluator departure). Second, some of the factors contributing to those delays were, in fact, quite positive in that they reflected long-overdue improvements to Court Services. For example, the Department stopped over-relying on a single contracted evaluator to perform a grossly disproportionate share of evaluations
Recent Improvements: Fortunately, during the past two quarters, the Department has taken significant steps to address the workforce shortage that contributed to these evaluation delays. The Department hired a new Court Services Director, Amanda Edwards, who began working on April 13. She has a strong background in the state court system and is well-suited for the organizational aspects of the job. The Department has hired new evaluators — both full-time employees and contractors — so the evaluator workforce has grown substantially. At the time of this report, Court Services has 36 full-time evaluators and 29 contract evaluators. The Department has also increased incentive pay, such that full-time evaluators more often complete overload evaluations beyond their monthly quotas. In short, the workforce has increased in ways that should greatly reduce delays. Indeed, our estimates suggest that the size of this workforce should be ample to reduce the

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backlog of jail-based evaluations and even reduce the backlog in community-based evaluations (though we acknowledge the latter is not a focus of the Consent Decree).
Beyond numbers, the quality and morale of the workforce has improved. The clinical leadership tasks for Court Services now fall to a forensic psychologist. Further, she is supported by a team of clinical supervisors, now organized as a “training faculty,” that makes much better use of inhouse clinical expertise. This training faculty provided a large-scale training on May 15 to all Court Services evaluators (including those newly hired). This primarily addressed the new policies and procedures prompted by the Consent Decree and recent legislation (i.e., requirements that evaluators provide an opinion on defendant triage and placement), so these procedures are now much more solidified, such that evaluators better understand their new duties and can perform them in a more reliable manner.
Recent Status: Despite substantial improvements, the Department struggled this quarter with these jail-based evaluations. Court orders for jail-based competency evaluations decreased dramatically after February (117), into March (70) and April (61), as arrests and court proceedings slowed due to COVID-19. But it became quite difficult, in many jurisdictions, for evaluators to meet with defendants, because most jails prohibited all visits. The Department worked fairly rapidly to develop procedures for conducting evaluations via videoconference, and for conducting safer evaluations in person. But adjusting to the COVID-19 safety precautions in jails nevertheless slowed evaluations for a period of time. Indeed, a few jails still prohibit all visits and have not facilitated evaluations via video-conference, creating unavoidable evaluation delays for defendants in those jails (the Department will identify these cases as Individual Special Circumstances, per the Consent Decree). Ultimately, the number of defendants awaiting a competency evaluation in jail (“the waitlist”) has continued to decrease. But unfortunately, roughly one-fourth of the jail-based evaluations still exceed the required wait limits (i.e., 28%, 26%, and 29% of defendants have waited longer than the required 28 days in the months of February, March, and April, respectively).
We perceive that these continued delays reflect some lingering impact of the prior delays and backlog (attributable largely to an insufficient workforce, which the Department could have controlled), and reflect some impact of recent COVID-19 challenges (which the Department cannot control). We affirm the Department’s success in increasing their workforce and their recent efforts to rapidly develop alternate approaches to jail-based evaluations (particularly via video-conference). We anticipate that both of these will reduce delays in jail-based evaluations. But we also emphasize that the delays are not yet resolved, and the timelines will reduce further (in July 2020), requiring continued, vigorous approaches to timely evaluations.

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INTERIM JAIL MENTAL HEALTH TREATMENT14
34. Interim Jail Mental Health Treatment. If the court does not release the Pretrial Detainee to Community-Based Restoration Treatment and the Pretrial Detainee is awaiting receipt of Inpatient Restoration Treatment, the Department shall work with the County Jails to develop a program to assist in the provision of coordinated services for individuals in accordance with C.R.S. §§ 27-60105 et seq. to screen, treat, assess, and monitor for triage purposes Pretrial Detainees in the least restrictive setting possible. This paragraph does not toll or otherwise modify the Department’s obligation to Offer Admission to the Pretrial Detainees for Inpatient Restoration Treatment. Interim Jail Mental Health Treatment shall not replace or be used as a substitute for Inpatient Restoration Treatment but does not preclude the Department from providing Restoration Treatment. A member of the Forensic Support Team shall report to the Court Liaison every 10 days concerning the clinical status and progress towards competency of the Pretrial Detainee.
As we have discussed in prior reports, the Department is required to partner with county jails to develop a program of coordinated services for individuals involved in competency matters. These services are currently managed statewide through the Jail-Based Behavioral Services program (JBBS) and are funded approximately $2.5 million per year by the recently appropriated by SB19-223. Essentially, the Department utilizes JBBS as a hub for coordinating subcontracted services across Colorado. These subcontracted providers are now asked to provide adequate mental health services to inmates involved in competency matters. Interim mental health treatment is critical to screen, monitor, assess, and treat those receiving competency-related services in county jails so that they remain physically safe and clinically stable until their transfer to competency restoration services.
Our previous quarterly reports have described the intermittent success that the Department has had in securing and enhancing JBBS services in various county jails across the state. They made progress in most jurisdictions, though some jurisdictions were not receptive to additional funding (usually because they were not receptive to the additional reporting requirements and oversight). All parties were aware of these challenges and planned additional steps, such as a new data collection strategy and an audit of JBBS mental health services with support from DLC.
However, these plans were set aside amid the COVID-19 pandemic response during this past quarter. No real progress was made on previous plans for data collection or the fines-supported audit. Instead, interim jail mental health services were focused on mitigating the impact of COVID-19 in local jails.
The Department worked with jail mental health staff in a number of ways to manage the impact of COVID-19 during the past quarter. Admissions to CMHIP slowed considerably as courts halted
14 “Interim Jail Mental Health Treatment” means mental health treatment of a Pretrial Detainee that is performed in the County Jail where the Pretrial Detainee is held while the Pretrial Detainee awaits Community-Based or Inpatient Restoration Treatment per Court Order consistent with the time frames in the Consent Decree. It is NOT a proxy or substitute for competency restoration services.

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many competency-related hearings and as transportation of defendants became increasingly difficult. In addition, enhanced medical screenings became necessary to avoid bringing persons infected with the virus to CMHIP; however, many incompetent defendants refused the screenings due to their symptoms of acute mental illness (e.g., paranoia). Additionally, capacity for new admissions became increasingly difficult because discharges were often untenable when local jails refused return admissions. All in all, many people on the waitlist remained in local jails as options for admission decreased amid the many consequences of COVID-19. Of course, this increased the strain on JBBS services, especially as face-to-face patient access for JBBS mental health providers diminished as the pandemic response intensified.
The Department responded to this challenge in several ways. First, the Forensic Support Team (FST) navigators continued to meet and communicate with pretrial detainees and their multidisciplinary teams throughout the pandemic crisis. Eventually, communication was limited to phone and video-conferencing. However, throughout the crisis, the available evidence suggested that the FST was identifying persons in most acute need and working with CMHIP and JBBS to enhance mental health services and facilitate discharges to hospitals when necessary. The true impact of COVID-19 on pretrial detainees will not be known until regular face-to-face access resumes, but we are tentatively satisfied that crises were identified and mitigated even in the midst of the COVID-related restrictions.
Second, CMHIP created a consultation team to work with JBBS staff in managing acute crises and facilitating discharges when possible. This included extending involuntary medication order authority to CMHIP psychiatry in those cases where JBBS staff was unavailable to handle involuntary medications.
To be sure, admissions and discharges slowed significantly during the height of the crisis (midMarch through early May). However, with stronger safety protocols now in place throughout many systems and locations, admissions and discharges are beginning to increase to pre-COVID levels. FST Navigators are still prevented from face-to-face access with pretrial detainees as of this writing, but we predict they will resume face-to-face access within the coming next few weeks (barring an increase in COVID-19 infections). Access will likely be determined on a jail-byjail basis. Nonetheless, we believe that JBBS services will begin to slowly return to pre-COVID levels, such that more and more treatment options and individual contacts will resume over time. In short, although the impact of COVID-19 on JBBS services was substantial, it appears that for the most part that the Department worked effectively with JBBS providers to address the most critical and acute needs while preventing the most serious types of mental health tragedies. Still, the impact of COVID-19, and true ability of the Department and JBBS to mitigate its impacts, will not be entirely clear until access to jails resumes and patient care returns to preCOVID levels.
Efforts to mitigate the effects of COVID-19 from CMHIP Beyond CMHIP’s work with jails, the Department has taken substantial steps to mitigate the spread and impact of the COVID-19 pandemic. First, CMHIP and CMHIFL implemented strict precautions to prevent and mitigate the spread of the virus; CMHIP was especially vigilant given

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the historically high volume of traffic from daily admissions and discharges. Specifically, we affirm Jill Marshall’s successful efforts to mitigate COVID-19 at CMHIP. Many other forensic hospitals around the country were not so successful.
In addition, the Department repurposed units and buildings at CMHIP to allow for the quarantine of new admissions. This mitigated potential spread of COVID-19 for new admissions. Admissions occurred via weekly cohorts of new patients; eventually as the virus became more manageable, cohorts were brought in more frequently. This innovative and flexible approach allowed for the admission of the sickest individuals without compromising the safety of the hospital population; we again affirm these impressive efforts.

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RELEASE OF PRETRIAL DETAINEES FOR COMMUNITY-BASED RESTORATION TREATMENT15
35. Release of Pretrial Detainees for Community-Based Restoration Treatment. If the court releases the Pretrial Detainee on bond to commence Community-Based Restoration Treatment, the Department shall coordinate with the Court Liaison to develop a discharge plan (in a format approved by the Special Master) within seven days of the order to all parties involved in the Community-Based Services Recipient’s case, and the Court Liaison and community-based provider.
The Department has made further progress on the requirement to develop discharge plans for persons identified as appropriate for Outpatient Competence Restoration programming (OCRP), even in the midst of the COVID-19 pandemic. Of course, priorities shifted during this last quarter, and discharges from CMHIP and jails were greatly reduced as movement across the system slowed to a halt. However, work continued in four main areas:
1. Transition efforts at CMHIP: CMHIP continued to target Restoration Housing (formerly labeled Fusion Studios) and the “fast-track” program as primary outlets for some patients. In short, while still unrestored, these patients have shown clinical improvements and minimal public safety concerns, making them appropriate for transition from CMHIP to Outpatient Competence Restoration programming (OCRP). After a slow start, referrals and placements at Restoration Housing are increasing. At the time of this writing, the Forensic Support Team (FST) has coordinated 69 completed referrals for Restoration Housing, and 15 individuals have been placed there. A total of 13 slots still remain; FST is optimistic that those beds will be filled within the next several weeks. Although fiscal agreements were reached in December, the opening of the housing placement was not fully executed until early March — hence the delay in filling those slots.
2. Impact of the Forensic Support Team (FST): The FST team has historically focused on addressing cases involving incompetent defendants either in jails or in CMHIP. FST Navigators have monitored clinical status and restoration progress for those in jails awaiting transfer to CMHIP — primarily defendants who have been categorized as Tier 2. Navigators have also worked with CMHIP to begin facilitating transfer of incompetent defendants to OCRP. Navigators have also been effective in securing emergency holds, emergency transfers, and engaging in other crisis responses for a handful of cases. We affirm this important work. Since January, the FST has logged more than 7800 contacts, coordinated 153 referrals to outpatient settings, and intervened in 144 crisis situations, according to FST records. They are currently assigned to 128 individuals in jails across
15 “Community-Based Restoration Treatment” means Restoration Treatment of a Community-Based Recipient that is ordered to be performed out of custody and in conjunction with a community-based mental health center or community organization.

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Colorado, and monitor 368 additional clients in hospitals and community settings around the state.
However, COVID-19 changed the work of the FST Navigators in stark ways. County jails eventually stopped allowing Navigators to enter their facilities, making face-to-face visits impossible. Navigators were forced to rely upon telephone and video-conferencing to check in with the Pretrial Detainees and their multi-disciplinary teams at those jails. Of course, this limited the quality of available information in many cases.
We affirm the FST in finding alternative ways to communicate critical information. In many ways, the FST became the primary “eyes and ears” of the Department for Pretrial Detainees who would have otherwise had little to no contact with the outside world amid the COVID-19 pandemic. The work of the Navigators shifted to primarily crisis work: identifying and mitigating the most acute mental health crises. In April 2020 alone, the FST reported coordinating care for 146 clients in jails across Colorado. They reported 72 direct contacts with Pretrial Detainees by telephone, and an additional 1,136 collateral contacts with their jail-based treatment teams. Further, FST Navigators coordinated crisis responses and/or transfers to CMHIP for 24 defendants in April. Essentially, the FST became the primary source of information and intervention with these detainees, and we believe they were responsible for identifying and mitigating the most acute mental health crises faced by Pretrial Detainees statewide. The FST Director reports this important work was possible due to building trusted relationships among FST Navigators and other stakeholders (Bridges Liaisons, jail mental health staff, CMHIP personnel) during the past six months, and we affirm the positive outcomes these relationships yielded.
FST’s work was not limited to crisis mitigation for Pretrial Detainees. In addition, Navigators worked to facilitate transfers and placements to various settings affiliated with OBH’s outpatient competency restoration program (OCRP). Although we maintain that the FST would ideally include some Navigators placed in the community (to provide support and crisis management for persons in the OCRP), we understand that the priority for the entire team must currently be working with Pretrial Detainees in local county jails.16 In response to our repeated calls for more community support for OCRP participants, the Department has coordinated crisis and case management services with the State of Colorado’s Transition Specialist Program and the “Momentum” Program. To date, FST has referred a total of 62 persons to the Momentum Program. Referrals are
16 While we understand the realities of Navigator capacity, we maintain that Navigators should be the Department’s “face” of restoration in the community — visible experts in the restoration system who serve as the OBH point of contact whenever needs are identified. By serving as the Department’s restoration experts in the community, Navigators increase restoration success, troubleshoot problems, address crisis situations, enhance community tenure, and help skeptical judges trust the Department’s outpatient restoration services. We will advocate for this change further as the waitlist decreases and the relative demand for services shifts from jails to communities.

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about evenly split between defendants in jail and defendants at CMHIP who are ready for community transition to OCRP. Only twelve people have been accepted and assigned to the program so far; the others are in some stage of review.
As mentioned previously, FST Navigators also coordinated the transition of 18 Pretrial Detainees into Restoration Housing. In addition, the FST is working with a local Colorado veteran’s program to secure additional releases and community supports for veteran Pretrial Detainees, and work continues in transitioning appropriate Denver Pretrial Detainees to the Community-Based Enhanced Restoration program (to be discussed below). The FST reports that these combined efforts have resulted in “saving” 1097 jail bed days since January 1, 2020. This is a remarkable change as compared to the time before the implementation of the Consent Decree, and we affirm those efforts. However, to our knowledge no Tier 2 individuals have actually been moved from Tier 2 to the community. This was an important role envisioned by the Consent Decree; we look forward to seeing those transfers beginning within the next quarter.
A significant improvement this quarter involves the FST’s data collection and dissemination capabilities. Data is reported monthly across a number of metrics: inperson contacts, multi-disciplinary contacts, housing and other outpatient referrals (including the stages for each referral), and the number of jail bed days “saved” through early discharge. We are encouraged by this data collection, analysis, and dissemination.
Finally, the Parties agreed to the FST policy and protocol document that oversees the frequency of contact expected by FST Navigators. In general, the schedule (pre-COVID) is to see Detainees in person every other week, with alternating weeks requiring a remote check-in with the jail mental health staff. Certain conditions will increase the frequency to weekly in-person contact (i.e., situations that could put the Detainee in more acute crisis). We are encouraged by the development of this document and the collaborative spirit between the Parties in revising and ultimately adopting it.17
3. Coordination with the Bridges program: As mentioned in previous quarterly reports, the Bridges Program and FST must work together to facilitate discharge and share responsibilities for competency-related cases. They both rely on similar (partially, but not entirely, overlapping) bodies of information. Thus, the Department and the Bridges team have been actively working to coordinate services, so that they can ultimately collaborate in a way that minimizes redundancies and gaps.
The primary development was the adoption of the long-awaited signed Memorandum of Agreement (MoA) between the two agencies; it allows for data and information sharing to occur between FST Navigators and Bridges Liaisons. The MoA has already improved
17 Of course, COVID-19 prevented the FST Navigators from performing in-person visits in March. Those visits are just now resuming at the time of this writing.

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the ability of both agencies to facilitate discharges and/or transitions of Tier 2 individuals out of jails and into community placements when appropriate, as well as to coordinate court hearings and “behind-the-scenes” linkages that are critical to moving defendants more nimbly to appropriate options for care and service. We are also encouraged by the increased trust and accountability between FST and Bridges. In reviewing the six-month anniversary of the launch of the FST, it is clear that both programs have clarified their unique roles, shared expectations, communication, and collaboration.
Still, the FST Director reports that because liaisons are most often not assigned to incompetent defendants, expediating discharges and holding necessary court hearings is often difficult. So although the two programs appear to have made progress in sharing information and understanding roles and expectations of each other, the lack of Bridges liaisons assigned to incompetent defendants has caused a barrier in transitioning Tier 2 individuals to the community. The FST reports that liaisons are assigned to 35% more competency-related cases since January 1 as a result of this coordination and referral system, but many defendants remain without an assigned liaison. Budget cuts to the Bridges program seem inevitable in this legislative session, which will only exacerbate these gaps.
4. CBER (Community-Based Enhanced Restoration): The CBER program is a pilot program based in Denver that provides enhanced mental health and case management services to a community-based restoration program. OBH is funding the program and has contracted Mental Health Center of Denver to provide the wraparound and restoration services. Participants are drawn from metro-area county jails; Tier 2 individuals are targeted for inclusion. To date, ten individuals have been placed into the program, with more individuals identified as clinically eligible and legally suitable. OBH administrators have dedicated enough funding for a total of 30 participants at any one time. COVID-19 slowed referrals to the program, but we have urged OBH to address the low numbers of participants in the program. While we value the good attempts at filling the available slots, if the program is not close to capacity by the time the current contract ends in November 2020, we may encourage the Department to reallocate funds to other populations.

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TRANSPORTATION OF PRETRIAL DETAINEES
36. Transportation of Pretrial Detainees. If a Pretrial Detainee is transported to the Hospital for an Inpatient Competency Evaluation and the Department or a medical professional opines that the Pretrial Detainee is incompetent and the provisions of C.R.S. § 27-65-125 have been met, the Department shall not transport the Pretrial Detainee back to his/her originating jail. Over the past quarter, a total of 11 defendants were admitted to CMHIP for an inpatient competency evaluation, of whom 3 met C.R.S. § 27-65-125 criteria, according to hospital staff.18 None of these defendants who met civil commitment criteria were returned to a local jail.19
As mentioned in previous quarterly reports, SB19-223 included language that allows CMHIP to keep defendants ordered for inpatient evaluation at CMHIP from the time that the evaluator opines them incompetent to proceed (rather than requiring C.R.S. § 27-65-125 criteria be met, or that the originating court adjudicates the defendant as incompetent). This is now found in C.R.S. § 16-8.5-105 (IV-b-5) and reads as follows:
When the court orders an inpatient evaluation, the court shall advise the defendant that restoration services may commence immediately if the evaluation concludes that the defendant is incompetent to proceed, unless either party objects at the time of the advisement, or within 72 hours after the receipt of the written evaluation submitted to the court.
Policies and procedures governing the decision-making in these circumstances are still in development. At times, CMHIP may need to balance these incompetent individuals already in the hospital and in need of hospital-level care with those Tier 1 or Tier 2 defendants in county jails approaching their deadlines for admission. To date, decisions among these individuals have been made primarily on clinical grounds, but we also understand the need to admit individuals who have been waiting in county jails for extended periods of time. Discussions between OBH and DLC have been amiable and productive in these challenging situations.
18 According to the April Special Master Compliance Report (p.28), submitted by CDHS on May 7, 2020. 19 According to the April Special Master Compliance Report (p.28), submitted by CDHS on May 7, 2020.

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NOTIFICATION OF NON-COMPLIANCE WITH TIME FRAMES
38. Notification of Non-Compliance with Timeframes. The Department shall notify the Special Master and DLC weekly regarding any non-compliance with timeframes. (a) Only one notice per Pretrial Detainee shall be provided and should include: (i) The name of the Pretrial Detainee; (ii) The Pretrial Detainee’s location; (iii) The Pretrial Detainee’s charges based on information available to the Department; (iv) The Pretrial Detainee’s bond amount based on information available to the Department; (v) Whether a forensic assessment has been made on whether restoration in the community is appropriate; (vi) Whether the Pretrial Detainee has previously been found incompetent; (vii) What efforts are being made to provide timely Competency Services to the Pretrial Detainee, including communications with the court, Court Liaisons, and community mental health providers;  (b) The Department shall accompany its Monthly Data Report (see Paragraph 52) with a separate “Fines Report” which will include the names of the Pretrial Detainees for whom the Department has accrued a fine during the preceding month, the number of days each Pretrial Detainee waited in the County Jails past the timeframes for compliance, and the total fines owed by the Department for the preceding month. (c) The Department shall pay the total fines owed on the date the Fines Report is submitted to the Special Master to be deposited in a trust account created for the purpose of funding non-Department mental health services. The account will be managed by a court-appointed administrator. Decisions concerning payments out of the account will be made by a committee consisting of a representative from the Plaintiff, a representative from the Department, and the Special Master. Any disputes regarding the fines shall be handled through the dispute resolution process identified in Paragraph 59.
The Department has continued to provide reliable notification of non-compliance of time frames on a weekly basis, as required by the Consent Decree (since June 1, 2019). Likewise, the Department has completed a “Fines Report,” as prescribed by the Consent Decree. Finally, as prescribed by the Consent Decree, the Department has been paying these fines into a trust account (managed by Cordes & Company, LLP).
The funds from these fines are already going to good use. A small committee comprising Department administration (Werthwein, Shah), a representative from the Plaintiff (i.e., Disability Law Colorado leader, Ivandick), and the Special Master, have all met regularly for the past year to address use of these fines. The broad goal is to use the funds in ways that help those involved in the mental health and criminal justice systems (i.e., those who are, or are likely to become, involved in competency-related services), and to reduce Colorado’s “competency crisis,” by providing new services or interventions that do not already fall within the Department’s responsibilities. In other words, funds from the fines should supplement and not replace existing services.
As previously reported, the first opportunity to use these funds for prompt services emerged when the Colorado Coalition for the Homeless (CCH) renovated a hotel to create Fusion Studios, which comprise 182 single-unit residences for homeless individuals. In October 2019, the Fines Committee contributed $3.5 million to the “Restoration Housing” project (within Fusion Studios), in exchange for 28 dedicated residences for competence-involved individuals whom the Department refers, over the next five years. Currently, 18 of those units have been filled by

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persons receiving competency services (the Department has made 69 referrals in total). The Department’s FST continues to identify and refer potential candidates for the Restoration Housing project. Despite a slow start, we expect the Housing should be approaching capacity in the near future (though COVID-19 has furthered delays).
Progress was continuing on other fines-funded projects — a competency court, an audit of jailbased behavioral services, a detailed data analysis of OBH competency services, improved OCRP competency curriculum, and a case manager for Restoration Housing — but the COVID-19 pandemic decreased the prioritization of these projects in lieu of other more time-sensitive ones focused on alleviating the impact of the pandemic on competency-involved individuals. These projects will likely resume once the effects of the pandemic decrease. We remain most keenly interested in the competency court project; focused stakeholder meetings had occurred in February and March to begin early visioning and planning for the competency court, but upon the start of the COVID-19 pandemic, all involved judges decided to pause their efforts.
However, other projects have been approved for funding by the Fines Committee. These include:
• CREST program (COVID-19 Response Services Taskforce): This project provides $1.5 million dollars to the Colorado Coalition for the Homeless to provide emergency and interim housing for 25 incarcerated individuals in the competency system. Housing will be provided for up to two years, and assertive case management and other services will be afforded to participants. A CREST advocate position will also be created to advocate for the release of these individuals at court and to monitor their progress in both transition and in the community. This position will likely be based in Mental Health Colorado. The project is slated to start as soon as the Advocate position is hired; tentatively we project an early July start for the program.
• Private hospital contracts: A total of $830,000 will add 21 beds at two local private hospitals for competency-involved individuals in need of emergency services. These will be short-term beds. As discussed earlier, CMHIP operates on a cohort-based admissions system due to the pandemic, and this funding will allow for more flexibility for people who need urgent, inpatient mental health care.
• Technology for ITP defendants: Cell phones and other required devices will be provided to persons in need of competency evaluations or restoration in the community. To date, COVID-19 has precluded in-person evaluations and restoration sessions, yet many defendants do not have adequate access to video-enabled technology. Therefore, participation from some defendants has been difficult, if not impossible. A total of $24,500 will be used to purchase phones and 3-month service packages to allow these individuals to more easily participate in evaluation and restoration services (thereby avoiding further delays).

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• Bridges Liaison program: As discussed earlier, the Bridges Liaison program will almost certainly receive significant cuts to staff and services in the next fiscal year. They have requested consideration for fines-funding to supplement the expected budget shortfalls attributable to the effects of COVID. These requests are preliminary and informal at this time, and certain provisions may preclude fines money from being used in this manner. However, given the mission of the Bridges Liaison program and their positive impact on competency-related individuals across Colorado, the Fines Committee will give due consideration to any formal request from the Bridges program.

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CONSENT DECREE SECTION VII UPDATES
CIVIL BED FREEZE
39. Civil Bed Freeze. The Department’s 2018 Plan included an effort to freeze civil admissions to its beds to devote Hospital beds to perform Inpatient Restoration Treatment services. On February 7, 2019, the Department agreed to stop this practice. The Department will continue to leave the state’s civil and juvenile beds allocated as of the execution of this Consent Decree for civil and juvenile psychiatric admissions and will not freeze or convert those beds to provide competency services for Pretrial Detainees, unless the Department receives prior agreement from the Special Master to use unutilized beds for such purposes. This strategy to facilitate compliance with the Consent Decree shall only be re-implemented in the future upon agreement of the Special Master.
The Department continues to report that they have removed the “civil bed freeze” as mandated by the Consent Decree. That is, they have not re-purposed the civil beds at CMHIFL for competence restoration, as they had once proposed. Per our request, the Department continues to provide a census report on the CMHIFL patients in their monthly report. As of their most recent report, the CMHIFL population included a total of 78 patients, 73 of whom were civil patients.
During monthly multi-party meetings, the Department has discussed any potential changes to the use of any CMHIFL beds (e.g., allocating a few new beds at CMHIFL to accommodate inpatient competence evaluations — not restoration — which may reduce the need to transport Denver-area defendants to CMHIP for inpatient evaluation). Generally, the Plaintiffs and Special Masters have agreed with the minor changes they have proposed, because these tend to reflect efficient steps that better serve the Departments’ consumers.
For the foreseeable future, the Department will continue to wrestle with the reality that too few civil beds exist in Colorado. A potential, albeit indirect, benefit of the Consent Decree may be to increase civil capacity through the reduced need for forensic beds; the Department will need to continue to monitor this trend and the outcomes of Consent Decree initiatives to determine the ongoing and future needs for civil beds.
Unfortunately, the fiscal impact of COVID-19 may result in significant cuts to the Department’s civil inpatient bed capacity. Though budget negotiations continue at the time of this writing, it appears that some CMHIFL civil units may be closed. This would reduce the already insufficient inpatient civil capacity (fewer than 100 beds for a state population of more than 6 million people), which will likely indirectly lead to more forensic admissions. As often happens, persons in need of hospitalization will come into contact with the court if civil capacity is insufficient. We will work with OBH to monitor this, and will work with both parties to mitigate and manage the impact of reduced civil capacity should the proposed budget cuts materialize.

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COMPREHENSIVE AND COHESIVE PLAN
40. Comprehensive and Cohesive Plan. The Special Master’s first recommendation was to revise the Department’s 2018 Plan into a more comprehensive and cohesive plan. Dkt. 146. By or about January 2020, the Department will produce an initial plan resulting from a long-term visioning process with DLC, the Special Master, and stakeholders that will consolidate disparate pieces of the Department’s current plan, along with legislative initiatives, in a cohesive package for courts, administrators, service providers, and legislators to consider. As referenced in the Special Master’s Recommendation Number 7, the 2020 Plan will highlight the methods to prioritize quality amid quantity and time pressures. Dkt. 146 at 42. On an annual basis thereafter, the Department will review and revise the plan as appropriate based upon data provided by the Department.
The Department finalized a comprehensive, cohesive plan on February 27, 2020. As we detailed in prior quarterly reports, the Department met routinely with stakeholders, and coordinated their work with the Governor’s Blueprint Task Force subcommittee that is addressing competence-related issues. Crucially, the Department has conceptualized competency-related services in a far broader way than they had in their December 2018 report. They detailed much of their progress to date, and remaining goals, all of which reflect a much more comprehensive, multi-faceted approached to the competency crisis, as compared to their earlier efforts.
Parties were progressing on legislation for the 2020 legislative session prior to the COVID-19 pandemic outbreak. The primary piece of legislation from CDHS proposed to lower some time frames regarding restoration evaluations, ultimately making it easier to find a defendant permanently incompetent to proceed (“unrestorable”). We found this change to be minor but important, and we believed it would make the restoration process clearer and more efficient. The legislation had support from a broad array of stakeholders. Other draft legislation (increasing the pool of qualified evaluators, decreasing competency mandates for misdemeanants, increasing OBH oversight over jail-based mental health services, among others) was tabled for this session.

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INCREASE COMMUNITY RESTORATION SERVICES
41. (a) Implement a coordinated wide-scale outpatient (community-based) competency restoration (OCR) system. This system shall be integrated and submitted with the “Comprehensive and Cohesive Plan” referenced in Paragraph 40 herein. This plan shall be approved by the Special Master.
As reflected in past quarterly reports, the Department continues developing a wide-scale outpatient competence restoration treatment program (OCRP). Their formal OCRP program began in March of 2018, and referrals for outpatient restoration ranged from 28 to 37 defendants per month during the past quarter (a smaller range, and a smaller number, than the prior quarter). A total of 433 individuals are currently participating in OCRP, and we are pleased to report there is no waitlist for OCRP services. We commend the Department on its ability to build sufficient outpatient restoration capacity.
At this point, OCRP has reached its two-year anniversary, and Colorado has one of only two states offering state-wide OCRP services. Almost all counties and community mental health centers (CMHCs) across Colorado now offer some form of OCRP. There are 54 contracts in place around the state. Only one CMHC is refusing to offer OCRP in Colorado, and only two counties remain without viable OCRP options (Gilpin and Clear Creek counties; see graphic below, copied from the April 2020 Monthly Compliance Report):

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The Department continues to pursue contracts and services for those few areas in which services are not yet available. Additionally, we recommend that OBH begin shifting focus to ensuring quality among their current providers. As was mentioned in our previous quarterly report, this is accomplished by first developing and utilizing a robust data collection and analysis plan. The Department to date has only released aggregate data covering July 2019 – May 2020. Ultimately, we would strongly prefer to receive outcomes and data in the Monthly Compliance Report as monthly data allows for more robust analysis and intervention.
Still, we appreciate receiving the aggregate data, and we are encouraged that the data shows generally encouraging outcomes. Although restoration rates are low (28%), we believe that other data provides important and encouraging context for those restoration rates. In addition to facilitating restoration, OCR also provides a release valve for stretched inpatient beds, lowers costs, and enhances recovery and community linkages. Speaking more broadly, if an incompetent defendant is diverted from inpatient restoration and maintains successful community tenure, lower restoration rates may indeed be more palatable to the host of stakeholders involved (including public citizens). In this spirit, we have included two categories reported to date (death and revocation / return to CMHIP) as “negative” outcomes.20 These two categories account for 20% of all outcomes. Alternatively, “positive” outcomes include being restored, having the case dismissed (typically due to Jackson-determined timeframes), being found unrestorable, and having services stopped for other mutually agreeable reasons; in the aggregate data reported so far, these account for 80% of outcomes. These initial outcomes are promising, though restoration rates are undeniably low. We look forward to working with the Department to refine programming and service delivery to increase restoration rates.
Secondly, as mentioned in our previous quarterly report, we encourage the Department to develop specialized OCRP programs — “centers of restoration excellence.” While there are some commonalities across defendants, there are also distinct groups with similar barriers to competence. Special populations (defendants with intellectual disabilities, traumatic brain injuries or other cognitive disabilities, sexual offense charges, or juvenile defendants) have needs that differentiate them from other groups. Some providers may specialize in one or more of these specialty areas (and some may be more or less skilled with certain groups of defendants), which would optimize restoration efforts in much the same way specialty courts address specific niches in criminal law. Such specialized providers would also make referrals and communication more efficient. In the wake of COVID-19, such specialization of services understandably became a lower priority. However, we encourage the Department to revisit this as the impact of COVID19 becomes more manageable.
20 These two components are not the only negative outcomes possible. Arrest rates, termination, absconding, and other outcomes could reasonable be considered as negative outcomes. However, the Department to date has not reported these outcomes. We will continue to press for these variables (and potentially others) to be tracked and reported.

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Another positive development this quarter involves the “Placement Committee,” a team of expert advisors mandated by SB19-223. This committee defined clinical criteria that Court Services evaluators will use to determine if an incompetent defendant merits inpatient or community-based restoration treatment. Beginning in July 2020, statute will require evaluators to offer these placement opinions. The committee solicited input from Court Services evaluators and other experts from mental health, the judiciary, and other professions to develop placement criteria and decision points. Overall, the most encouraging outcome of the Placement Committee was agreement that community-based restoration should be viewed as the default option for restoration. Stakeholders, and the resultant placement policy, identified special criteria and thresholds that would merit inpatient placement; however, defendants who do not meet these criteria or thresholds will be recommended for outpatient restoration. We affirm the work of OBH’s Dr. Torres and Ms. Shah for their leadership in this committee, and final placement policy. We are also encouraged that the placement criteria were highlighted for dedicated training to all evaluators at the Court Services May 2020 evaluator training session.
41. (b) The Department may utilize private hospital beds to meet the needs of Pretrial Detainees meeting C.R.S. § 27-65-105(a) civil commitment criteria and with prioritization to Pretrial Detainees already residing within the same geographic location. The Department shall create a plan to implement this subsection (b) to be approved by the Special Master.
The Department has now contracted with local hospitals to provide 13 inpatient beds for shortterm competency-related services. These beds are currently filled. New contracts are being developed with two metro-area hospitals (Peakview and Denver Health) for an additional 21 short-term psychiatric beds. These beds will be prioritized for competency-related services and funded by Consent Decree fines. All parties agreed to the increase in private hospital beds. The Department has responded well to our January 2019 recommendation to assertively develop community options rather than rely on simply procuring more inpatient beds. Because of this progress, the rise in privately-contracted beds seems appropriate (and can be an essential resource in some cases). Private hospital beds may be an especially viable resource for female Pretrial Detainees, because females tend to face longer waits for inpatient services at CMHIP. In addition, if budget cuts to OBH include cutting civil units or capacity, these beds may become necessary to manage the already-stretched inpatient civil capacity for the state.
41. (c) The Department currently estimates that 10-20% of Pretrial Detainees admitted for inpatient restoration do not need hospital-level care. Dkt. 146 at 29. The Department will make best efforts to reduce inpatient restoration hospitalizations by 10% and increase community restorations by 10% in six-month increments beginning June 1, 2019. The baseline for the preceding sentence will be determined by the Special Master by June 1, 2019, utilizing data provided by the Department. On June 1, 2020, the Special Master will establish a modification of this guideline based upon a survey of the data collection and implementation of the Department’s Plan.
As prescribed in the Consent Decree, we established a Baseline for improvement by calculating a six-month period of available data (i.e., Nov 2018 - April 2019) prior to the June 1, 2019 deadline. We also recommended using proportional metrics when pursuing goals that are fundamentally proportional in nature (i.e., a 10% increase in community-based restoration and a 10% decrease in inpatient restoration). In other words, while the Department may not have full control over

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the actual number of referrals, they have greater control over the proportion of referrals they direct to outpatient versus inpatient restoration. Therefore, we chose to set the baseline figures, and establish subsequent performance goals, based on proportions instead of raw numbers. The following proportional goals were generated as a result of this approach:

Inpatient Restorations

Outpatient Restorations

Initial baseline

Nov 2018 – April 2019: 69%

December 1, 2019 goal

69% reduced by 10% = 62%

December 1, 2019 numbers

June 1 – Dec 1, 2019 = 62%

June 1, 2020 goal

62% reduced by 10% = 56%

Recent progress (past 6 months)

Aug 1, 2019 – Feb 1, 2020: 66%

Note: All percentages rounded to nearest 1%.

Nov 2018 – April 2019: 31% 31% increased by 10% = 34% June 1 – Dec 1, 2019 = 34% 34% increased by 10% = 37% Aug 1, 2019 – Feb 1, 2020: 34%

Although the Department met their goal to increase OCRP referrals by 10% in the six months after May 2019, increasing the OCRP proportion from 31% to 34%, those gains have stagnated. The Department will almost certainly NOT meet the Consent Decree mandate of an additional 10% shift in referrals between inpatient and outpatient restoration by June 1, 2020 (in which a total of 37% of all restoration orders should be referred to OCRP). The Department’s past five months show a total of 32.1% of restoration orders being referred to OCRP.
Four of the most recent five months show OCRP referral rates of lower than 32%. Due to these recent dips in OCRP orders, we doubt that the Department will be able to attain compliance with Paragraph 41 of the Consent Decree by increasing outpatient restoration to 37%, on average, for the period spanning December 1, 2019 through June 1, 2020. However, even with the recent dips, the 33% rate of adults ordered to OCRP during the past twelve months is higher than the rate in the six months surrounding implementation of the Consent Decree (28%).
We continue to view the 37% aspirational goal as largely reasonable. However, we believe the goal is worth revisiting for two reasons. First, as we discussed in our February 2020 report, it is more important to maximize the number of appropriate referrals than it is to hit an artificiallydriven number. In other words, we aim to place the maximum number of appropriate persons in OCRP, but are not wedded to a predetermined rate if it exceeds the actual number of defendants appropriate for OCRP. We have broached this subject with both parties, and both are amenable to a marginally smaller percentage goal if indeed all appropriate OCRP referrals are made. We will continue to monitor the rate; we believe it can certainly increase with continued judicial education, coordination with the Bridges program, onboarding of new OCRP

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providers, and clearer guidelines for Court Services evaluators.
Second, we have begun to realize a conceptual weakness in how both referral rates and the subsequent aspirational goals are determined. As it currently stands, the rates are calculated by dividing the number of OCRP referrals by the total number of persons ordered to restoration, regardless of where that evaluation occurred. However, the resultant referral rate is likely composed largely of persons ordered to OCRP whose competency evaluations were completed while on bond. In other words, persons ordered to OCRP are most likely pulled from the pool of persons already living in the community — not those in jails. Likewise, these individuals are typically not recommended for inpatient restoration. In sum, the overall rate of OCRP restoration referrals appears to include people who would likely never have been referred to the state hospital in the first place. Of course, this is not what this section of the Consent Decree was meant to address. We consider this an oversight in mediation, which failed to consider this nuance.
Fortunately, the Consent Decree requires a modification of the base rates around June 1, 2020:
41. (c) The Department currently estimates that 10-20% of Pretrial Detainees admitted for inpatient restoration do not need hospital-level care. Dkt. 146 at 29. The Department will make best efforts to reduce inpatient restoration hospitalizations by 10% and increase community restorations by 10% in six-month increments beginning June 1, 2019. The baseline for the preceding sentence will be determined by the Special Master by June 1, 2019, utilizing data provided by the Department. On June 1, 2020, the Special Master will establish a modification of this guideline based upon a survey of the data collection and implementation of the Department’s Plan.
We have asked OBH to provide us with the numbers of persons found ITP in jails who are referred to OCRP (i.e., excluding those referred to OCRP after on-bond evaluations). We believe this is the population that the Consent Decree was designed to address, and that a revision of the calculation of OCRP referrals rates (and concordant calculation of inpatient referral rates) is likely necessary. All parties have agreed that, given the demands caused by the current pandemic, these revised calculations can occur shortly after the June 1 prescribed deadlines.
Finally, we again reinforce the need for OBH to provide outcome data on OCRP. We have received one basic report of OCRP outcomes to date. While helpful, more regular reporting and more sophisticated data analyses are critically needed. We sent a request of OCRP data elements to OBH and discussed them in mid-February 2020. COVID-19 pre-empted OBH’s ability to pull this data in the midst of other priorities. However, as the impact of COVID-19 becomes more manageable, we have again requested this data. Although OBH has many concurrent data requests, we continue to strongly request empirical outcome data for OCRP.

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CONCLUSION
As detailed throughout this report, we perceive the Department has made significant and meaningful progress in enacting changes prescribed in the Consent Decree. Indeed, several key interventions prescribed by the Consent Decree (e.g., the triage system, the Forensic Support Team) have become fully operational during this reporting period. These have begun to significantly change the overall key metrics, in that the Department is generally responding promptly to those identified as Tier 1. Put simply, the most acutely ill defendants — those whose welfare was a primary focus in the current legislation and Consent Decree — do seem to be receiving more prompt treatment upon launch of the Triage System. Other improvements are also clear, as the overall wait list has decreased meaningfully in the past quarter, and is lower than at any point in recent history. Amid the challenges posed by the COVID-19 pandemic, the Department has generally responded rapidly and well, minimizing infections in their facilities, and seeking ways to provide care for defendants in jail.
Looking forward, we anticipate continuing challenges attributable to COVID-19 (e.g., careful cohort admissions will need to continue at CMHIP), including the potential for a resurgence of COVID-19 infections. We also anticipate increased orders for competency-related services as courts resume more normal operations, and as jail-based evaluations can increase. Even facing these challenges, it remains important for the Department to further accelerate inpatient restoration treatment for Tier 2 defendants, and further the reductions to the waitlist. We will continue to work with the Department on these and related matters, and we encourage you to contact us with any questions or requests. We appreciate the opportunity to serve the court, and the state of Colorado, in these important efforts.
Neil Gowensmith, Ph.D. President, Groundswell Services Inc.
Daniel Murrie, Ph.D.

 
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July 6, 2020
The Honorable Judge Nina Wang United States Magistrate Judge District of Colorado Alfred A. Arraj United States Courthouse 901 19th Street Denver, CO 80294

Re: Civil Action No. 11-cv-02285-NYW

Judge Wang,
As you may recall from our May 2020 Quarterly Report and our email correspondence of May 26-27, we had been working with CDHDS OBH and Disability Law Colorado to reach some form of agreement regarding the fines that would accumulate amid the COVID-19 pandemic. Specifically, you may recall that all parties (including DLC and Special Master) agreed that COVID-19 represents a special, unforeseeable circumstance, but also agreed that the Consent Decree explicitly forbids formally invoking Departmental Special Circumstances until a later date. Therefore, the parties were engaged in ongoing discussions about how to handle the fines that will inevitably result from COVID-attributable delays. On the one hand, all parties agree that the Department should not be fined for delays that are solely, truly caused only by COVID. On the other hand, all parties want to ensure that the COVID pandemic does not absolve the Department from any duties for the timely service they can provide, or relieve them from any sanctions (fines) they should rightly face for non-COVID delays.
As we discussed in the weeks preceding our May report, OBH proposed the best solution was to agree upon a fines amount that the Department would have incurred this year were it not for COVID. Next, OBH provided estimates (i.e., their own, and a “second opinion,” similar estimate from a statistician who was not employed by OBH) that they would have likely accumulated roughly $2 million in fines absent the COVID-19 pandemic. They proposed that OBH agree to this fines amount for the following year, rather than attempt to estimate the fines on a monthly basis, which would require invoking Individual Special Circumstances (ISC) for each defendant whose movement was hindered by precautions or procedures necessitated by the COVID-19 pandemic. From the perspective of OBH, this negotiated agreement would have been much

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more efficient than invoking ISC for individual cases, because the latter would require considerable effort from OBH, and considerable effort from DLC to review.
At the time of our correspondence with you in late May, it seemed likely that DLC would accept this proposal from the Department. However, DLC ultimately (around mid-June) declined this proposal from the Department. Absent an agreement, OBH has defaulted back to an approach in which they will invoke ISC on every individual case whose progress has been slowed by the COVID pandemic response. This includes, for example, defendants who cannot be evaluated promptly because jails forbade external evaluators and did not allow for video-conferenced evaluations, and defendants who were found incompetent but could not be promptly transitioned to the hospital because of delays necessary for safety (such as admitting defendants in cohorts to monitor for infection). DLC’s stated rationale for preferring the invocation of ISC on individual cases was to ensure that OBH could provide specific information about each defendant’s status: what the barriers to transfer have been, what efforts OBH has made to move them, and what options remain. DLC believes that transparent communication and individualized attention to the waitlist will continue to force OBH to make concerted efforts for persons in need of competency services.
We have monitored this negotiation attempt since mid-June, and we discussed it in our first two-party monthly meeting held at the end of June. (We intentionally delayed updating you, because we wanted to have some sense of how this process would work, and whether the parties would return to negotiation; they have not). Overall, it is clear the process of invoking ISC requires considerable work by OBH staff. We anticipate this approach may, ultimately, result in fewer fines paid by OBH (as compared to the proposed agreement of $2.5 million). Nevertheless, DLC appears generally satisfied with the approach, and reportedly appreciates the individualized attention and documentation the process requires. Thus, it appears that parties will continue with this plan (i.e., invoking ISC on many defendants) as the response to delays caused by the COVID pandemic.
Frankly, we had some concerns that this process—in which OBH proposed and agreement and DLC ultimately declined—reflected a setback. There were ways in which it suggested a reluctance to collaborate for an agreement, and ongoing DLC distrust of OBH (which may be reasonable in light of more distant history). We were concerned this may suggest a regression to a less collaborative and collegial tone, even after such significant progress and collaboration over the past year. However, as of our late-June two-party meeting, the tone between the two parties remained constructive and collaborative. In short, we were relieved that—even though they failed to reach an agreement—both parties returned to the table with a constructive approach, remaining eager to collaborate for the good of class members. Though concerned that this lack of resolution may have created a setback, we are generally encouraged that much of the progress in collaboration seems to remain.
Regarding broader updates in the era of the COVID pandemic, we see good news and bad news. Our greatest concern is that waiting times for Tier 1 defendants (those who most urgently need hospitalization) have increased, and the Department is not consistently meeting the 7-day

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deadlines that they had previously been meeting so consistently. On the other hand, there has been tremendous (and greater-than-expected) progress in reducing the overall number of people on the waitlist. Indeed, the waitlist has reached record lows, and appears roughly half the size it was before the COVID pandemic. Apparently, the reduction in arrests and incarcerations caused by the pandemic has provided some relief in the pace of evaluation and restoration orders. The Department has used this opportunity to make progress in some ways, even if progress in other ways is limited by COVID-related safety precautions. The most recent Monthly Compliance report (July 7, 2020) reports that the numbers of court orders for competency evaluations are on the rise, and that they will likely approach pre-COVID levels within the next month or so; if so, we anticipate that waitlist numbers will rise accordingly. We will provide much more detailed updates on their progress in our next Quarterly Report, due in late August.
We will continue to work with the Department on these and related matters, and we encourage you to contact us with any questions or requests. As always, we appreciate the opportunity to serve the court, and the state of Colorado, in these important efforts.
Neil Gowensmith, Ph.D. President, Groundswell Services Inc.
Daniel Murrie, Ph.D.