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	

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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).	

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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.

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Neil	Gowensmith,	Ph.D.

President,	Groundswell	Services	Inc.	

neil.gowensmith@gmail.com

Daniel	Murrie,	Ph.D.

danielmurrie@me.com

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