CDHS Invokes Departmental Special Circumstances

Denver (Dec. 22, 2017) – Due to a sustained increase in the number of court orders for competency restoration services, the Colorado Department of Human Services (CDHS) today notified Disability Law Colorado (DLC) that it is invoking Departmental Special Circumstances as defined in a settlement agreement between the two organizations. The Department received correspondence from DLC today as well, alleging that the Department is in breach of the settlement agreement, with which the Department disagrees.

The volume of court orders for inpatient competency evaluation or restoration treatment is outpacing Department capacity at an unabating rate, negatively impacting CDHS’s ability to offer admission for competency evaluations and restoration treatment at the Colorado Mental Health Institute at Pueblo (CMHIP) within the time frames of the settlement agreement.

“The number of people that courts are referring to CMHIP is outpacing our capacity at a rate that shows no signs of slowing. The Department is enacting a multi-faceted strategy to address this issue, but no efforts by CDHS alone can curb the inflow of court orders to the degree that is required,” said Robert Werthwein, Director of the Office of Behavioral Health, which oversees CMHIP.

This situation is not related to recent staffing issues at CMHIP, which have been stabilized. The 449-bed hospital is in good standing with federal regulators, and scheduling changes have addressed staffing concerns in a sustainable way. Certain classified nursing positions have received wage increases, and Gov. John Hickenlooper’s FY 2018-19 budget includes wage increases for all direct care staff. The 2016 settlement stems from a federal lawsuit concerning the length of time that pretrial detainees were waiting to be admitted to CMHIP for competency evaluations or competency restoration treatment.

The settlement agreement between CDHS and DLC requires CMHIP to offer admission to pretrial detainees who are being held in jail and ordered to receive either an inpatient competency evaluation or inpatient competency restoration within 28 days of the pretrial detainee being ready for admission. A
competency evaluation determines whether a defendant is mentally competent to participate in his or her own defense. Restoration treatment is mental health care and treatment to restore a pretrial detainee to competency. CDHS and DLC also agreed that CDHS may suspend the time frames for offering admission, when circumstances beyond the control of CDHS impact CDHS’s ability to comply with the time frames identified in the agreement. Departmental Special Circumstances is a flexible concept, due to the unique and often unforeseen nature of these events. By invoking Departmental Special Circumstances, the settlement time frames are automatically suspended until June 22, 2018.

In June 2017, CDHS invoked Departmental Special Circumstances, due to an unanticipated spike in court orders for competency evaluation and restoration treatment. CDHS’s invocation of Departmental Special Circumstances suspended the settlement time frames for six months.

CDHS notified DLC on March 31 of concerns with the increasing volume of referrals and again raised the concern on May 8. In May and June 2017, the Department experienced an unanticipated spike in the number of court orders for inpatient competency evaluation and restoration treatment services and
simultaneously experienced a decrease in the number of discharges. The unabated increase in restorations, completion of which takes significantly longer, has reduced the number of beds available to accommodate new referrals. The average length of stay for a pretrial detainee receiving restoration
treatment at the CMHIP in FY2016-17 was 141.2 days (compared to 38.9 days for a competency evaluation). This results in fewer beds available to meet the demand caused by inpatient orders. Over the last six months, CDHS has worked to devise strategies that would enable CDHS to timely offer
admission to all pretrial detainees.

  • In September, the Joint Budget Committee provided CDHS with emergency supplemental funds necessary to begin providing outpatient competency restoration services. CDHS is currently procuring a vendor to provide statewide outpatient competency restoration services, and anticipates that the system will be operational by May 2018. Until then, CDHS is contracting with vendors through single case agreements to provide outpatient competency restoration services on a case-by-case basis, and has set aside some of the FY2017-18 appropriation to accomplish this. The Governor’s proposed 2018-19 budget provides annualized funding for CDHS to continue providing outpatient competency restoration services.
  • The proposed budget also provides funding to hire an additional eight forensic evaluators to meet the increased demand for competency evaluations.
  • CDHS requested funding to enable it to purchase psychiatric beds from other non-CDHS facilities with inpatient psychiatric services. This proposal will better enable CDHS to continue to provide timely restoration services during periods of excessive bed demand.
  • The Governor’s FY2018-19 budget includes funding for further expansion of the state’s jail-based competency evaluation and restoration programs by providing ongoing funding for:
    • 28 beds in FY2017-18; and
    • An additional 34 beds beginning in FY2018-19.
  • CDHS is also working to expand capacity at CMHIP by moving adolescent patients from their current unit to the Sol Vista building, which is better designed to meet their needs. The move will increase the hospital’s capacity by an additional 20 beds, which CDHS expects will be available for use by March 2018.
  • The JBC awarded CDHS funds to create an additional 20-bed unit at CMHIP, which is projected to open by July 1, 2020.

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View/print a PDF of the press release.

View/print a PDF of the Notice of Invocation.