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

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 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 

2019 

Aug 

2019 

Sep 

2019 

Oct 

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 

2019 

Aug 2019 Sep 

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 Sep 2019 Oct 2019 

Combined 157

Tier 1 N/A 1 0 0 0

Tier 2 N/A 168 169 152 145

 

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 

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 

June 1, 2019 7 days 56 days 21 days 28 days

January 1, 2020 7 days 49 days 21 days 28 days

July 1, 2020 7 days 42 days 14 days 21 days

January 1, 2021 7 days 35 days 14 days 21 days

July 1, 2021 7 days 28 days 14 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 

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

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. §§ 27-60-

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. 

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 42-

46 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:

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Inpatient Restorations 

 

 

Outpatient Restorations 

 

Baseline (past 6 months) 

 

Recent 6-month average: 69% Recent 6-month average: 31%

December 1, 2019 goal 

 

69% reduced by 10% = 62% 31% increased by 10% = 34%

June 1, 2020 goal 62% reduced by 10% = 56% 34% increased by 10% = 37%

Note: All percentages rounded to nearest 1%.

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.

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