The Americans with Disabilities Act in the Criminal Justice System (DOJ)

This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

DEENA FOX:  Hello, everyone. We'll get started and folks may continue to trickle in. But excited to use this time to share with you from attorneys within the Department of Justice, Civil Rights Division about some of the work we're doing, using the Americans with Disabilities Act in the context of the criminal justice system. So I am Deena Fox I'm a Deputy Chief in Special Litigation Section of the Civil Rights Division and I'm a very short white woman with brown hair back in a bun.

VICTORIA THOMAS: I'm Victoria Thomas. I'm Latino woman. I'm medium height, brown hair and today I'm wearing all white blazer.

JEAN ZACHARIASIEWCZ: I'm Jean Zachariasiewcz. I'm a Trial Attorney with Deena in the Special Litigation Section.
I am a white woman, medium height I am not good at dressing like a lawyer I have a bright pink blazer on.

DEENA FOX: Love it. What we'll do today is take you through some examples of different types of work that our division has done across different sections we're representing the Special Litigation and the Disabilities Rights Section in a variety of cases that will give you some examples how we have used the ADA in these contexts.

We'll talk about, 3 primary types of cases. We are going to talk about cases involving police departments, law enforcement agencies, cases using Olmstead Integration Mandate to expand the availability of the services in communities at large and cases in the adult corrections system. So just I think this will be familiar to folks, but as some stage setting with regard to the basic ADA requirements that we are enforcing in all of these different areas. We are enforcing the prohibition by state and local governments under Title II to discriminate in services programs and activities on the basis of disability.  

We are enforcing the requirement that services be provided in the most integrated setting appropriate to an individual.  And the requirement specific to correctional settings related to effective communication accessibility, housing integration and access to services programs and activities. And so we're going to start with number of cases related to our work in the area of law enforcement and policing and jean is going to take us through the first set of cases there.

JEAN ZACHARIASIEWCZ: So I work in special litigation in the police practices group and I wanted to talk today about what I think is the arc of how we addressed disability in some of our cases. So if you want to go to the first slide. I think over the last decade, the breadth of our claims in police cases has changed in pattern and practice investigations that lead to consistent decrees.  And how we address police response to behavioral health disability then crisis, has often changed.   So I chose 3 cases we have a lot more but there isn't time to talk about all of them today.

I am going to start with our case in Albuquerque we had to change the title of this slide it was at first ADA and the police and then we realized that is wrong because we didn't have an ADA claim there. This was an investigation that commenced in November 2012. We released what we called findings letters so establishing the results of our investigation and the pattern and practice we uncovered that was released in April 2014. The could be sent decree was filed in November of that year, we're in the eighth year of that consent decree now.   The only claim brought in Albuquerque is the Fourth Amendment excessive force claim. In our findings we quote "APD's policy training and supervision are insufficient to ensure officers encountering people with mental illness or in distress do so in a manner that respects their rights is safe for all involved" how officers interacted with behavioral mental health disabilities was folded in our Fourth Amendment claim.

And the remedy for that was really focused on trying to change the police and how the police interact with people in crisis. So what the department had to do better, rather than looking more broadly what maybe the city has to do better. So it required having behavioral health training for all officers, 40 hours of basic crisis intervention training for all patrol officers out in the field, having CIT crisis intervention trained certified responders, it created a crisis intervention unit that had enhanced CIT officers and then, crisis intervention detectives whose jobs, job was to sort of identify people in the community, who were most at risk of having violent encounter with the police due to mental health behavioral issues trying to work with them so the encounters did not happen. It would be able to respond to mental health crisis calls and maintain contact with the individuals.  

It required a civilian crisis outreach team housed in the crisis intervention unit these are all focused only the department. Only thing that is outside of the department in this area, that the consent decree required was the creation of mental health response advisory in the community, to identify solutions in the intervention for improve outcomes. There is a requirement for 20 hours of behavioral health training for telecommunicators in the 8 years since that decree of its own accord, Albuquerque started a community safety it is a cabinet level, third department of the first responders they have fire police and the community safety.  And it is supposed to respond to 911 calls for mental health substance abuse and homelessness in issues.

They're working towards 24/7 availability but I think, Albuquerque demonstrates how the landscape around the issue has changed since the consent decree because the city has gone ahead and established something not only required because everyone I think has started to recognize, that rather than just focusing on trying to make the police better at interacting with people, we should just try to divert from the police in the first place when possible.  Can we go to the next slide? The next case I'll talk about fittingly for where we are today is the Baltimore police department. In Baltimore, there were a lot more allegations than just excessive force that were investigated.   Unconstitutional or unlawful investigatory stops subpoenas and arrests, discriminatory policing on the basis of race, first amendment violations, and then, excessive force but, that had both the Fourth Amendment and ADA claim for the excessive force.

They found that there was excessive force under both of the Fourth Amendment and the ADA. Under the ADA it was finding that officers failed to deescalate and often escalated situations with people in crisis. And it noted that officers didn't request officers trained in handling crisis events or mobile crisis team but instead would handcuff and detain people in crisis or experiencing effects of a behavioral health disability and often end up using force against those people. And so you can see on the screen, um, I'll read here, that in our findings released in 2016, we wrote by routinely using unreasonable force against individuals with mental health disabilities, BPD officers repeatedly failed to make reasonable modifications necessary to avoid discrimination and violation of the ADA.

So it is couching the use of force against people in response to their disability as a failure to accommodate. In the consent decree for the first time ever, the Department of Justice required that the city do a gap assessment in its behavioral health service system. And it -- I think this demonstrates a recognition that avoiding these kinds of ADA violations and these kinds of terrible outcomes for people with disabilities, starts upstream of the police interaction itself.   You need to try to end it earlier and to send it somewhere else if you want to avoid bad interactions with the police. Um, consent decree noted that in this gap assessment alternative responses should be considered, like mobile crisis teams but it didn't require those. The gap analysis was published in December 2019, city has developed a gap analysis implementation plan that is aimed at reducing unnecessary encounters with people in crisis.

And the city implemented a 911 diversion pilot with a crisis line in 2021.  And they're like Albuquerque to expand cries toys 24/7 availability and meet national standards in the area. There's a focus in the Baltimore consent decree on better training and policies for dispatch. So again, starting upstream when the police arrive, how can we train dispatch to better eye the kind of call that could be diverted and to let police know in advance, that we think this is a crisis call if police need to be called. We think that behavioral health might be an issue, police are better prepared that CIT officers can be sent instead. Or maybe there could be a co-response with the mobile crisis team. Again, it is a stated goal in the consent decree to limit police involvement in crisis where appropriate. So that's a change from Albuquerque. How can we make the interactions better, we're trying to limit the interaction when we can.

It did go into the training requirements for the CIT trained officer it's is less focused on that, than previously. Finally there's a requirement that the Baltimore police department collect analyze and report data on suspected behavioral disability or crisis status of individuals who do have law enforcement interaction you see this a lot in our consent decree you're seeing this in police departments around the country. It is a lot of focus on data collection and analysis, because you can't, you can't identify the problem and the magnitude, if you're not collecting the data to do so. That is whether you're talking about, discriminatory stop searches and arrests or, interactions with people in crisis. So the more data we have and the more you then use the data it is not enough to just collect it you have to actually look at it. You can start to develop solutions and understand, where the problem is and, how you might be able to fix it.

Um and the final case, I'll talk about is Louisville, which you probably heard about because we released our findings March 8, 2023 I was able to use this slide I'm glad they released it. We weren't sure. I had alternative just in case. So in Louisville, like Baltimore there were a bunch of claims being investigated and which we made findings discriminatory policing begin, first amendment. But then Fourth Amendment, and then, again under the ADA but it is not just about force in Louisville, which is where we sort of landed previously with our ADA claims. Louisville is the first time of Department of Justice found unnecessary police responses during the behavioral health episodes violates the ADA. So, sending the police period, when another alternative available response could go instead, violates the ADA it's a failure to accommodate.  

And you can see it in our findings report, I have it on the screen and I'll read it here -- "While some call a necessitate a primary law enforcement response because the violence or threats of violence, thousands of calls per year, could be safely and more effectively resolved through a response by the behavioral health professionals". The finding letter in Louisville also identifies that the failure to have appropriate procedures and training and in the 911 call center as contribute to go discrimination.  So it is also really looking at, what happens in dispatch, upstream of the police interaction again as being discriminatory too, if calls are not appropriately diverted. In Louisville, we challenged the premise head on that police should be the default first responders for behavioral health calls, much of the country they are, even many places in Montgomery County you can have a variety of other resources available, if they are not used the police still end up being the default.

And in Louisville it discusses not just how police are not always the right response, burst how it is often ineffective and harmful response so that is another aspect of the ADA violation.  And I'll note, I don't think this would be surprising to anyone that these kind of ADA claims are ones that often we find ourselves in step with the department about because police often don't want to be responding to those calls either.   That's not what most people signed up to do as law enforcement officers. They often I think don't feel equipped to do it well. And, so, it is a place where we often can find agreement that it would be better to have somebody else do this. So the Louisville report also tied the lack of behavioral health response to the criminalization of mental health because often those police interactions then lead to an arrest the arrest leads to incarceration the cycle continues.

And finally Louisville also calls out CIT as insufficient. So we have gone from Albuquerque complete focus on CIT how to enhance it, to Louisville saying "Given the conduct of officers who received behavioral health training and participate in LPD CIT program, it has been ineffective in preventing discrimination of people with behavioral health disabilities" it is not effective, they're training them and saying they're CIT certified and leave it at that, there needs to be standards ongoing training there has -- you have to be looking at the data, to see if those people, are doing a good job. And if not, figure out why.

DEENA FOX: Also depends on what other resources are available and making an individualized assessment of each interaction when there's a call coming in, what is the specific evidence of need in response to this particular call?  And does this call, need a mobile crisis response?  Does this call need a CIT-trained officer or co-responders there are a variety of models out there, making sure to the extent that there's -- there are individualized assessments and people are making reasonable modifications in response to the specific information, that they're learning about the needs of the individuals.

 JEAN ZACHARIASIEWCZ: What Deena just said is 100 percent right goes back to the response of dispatch training.  And really looking at your dispatch policies and what you're requiring there.  And dispatch is another area that tends to be under funded and overworked.  And so, we really try to focus on that as well, because the more you can make that a better job to have, and one that people can sustain the easier it is to require more and to help people get better that the kind of diversion. And I will just end with Louisville on noting that what Deena just said about the variety of accommodations that are possible, is one of the things that we highlight in Louisville and I think, we know -- as everyone in this room knows there's no one size fits all solution when it comes to modifications and accommodations.  And we notice that, we know that with police departments as well.

And, how to do this. It depends on the department, where it is located, what the resources are.  And the specific call at issue. But there needs to be an attempt to find the right modifications given all that context, to address different types of calls and hopefully with the sort of least law enforcement involved response problems I believe, I want to quickly note we have ongoing investigation in Kentucky as well with the Commonwealth, to determine, whether there's a failure to provide community based mental health services to people in Louisville that leads to unnecessary psychiatric facility admissions. We recently opened a new investigation in Oklahoma that is sort of combines what we did in Louisville, with what we're doing at the state level in Kentucky.  And it is an investigation of the state of Oklahoma, Oklahoma City and the city police department to exam whether Oklahoma fails to provide community-based mental health services, to people in Oklahoma county, which then leads to unnecessary psych at facility and police interactions.

I think the breadth of the Oklahoma investigation, allows the department to assess all of these different aspects of a crisis response system, in one investigation. Instead of taking things piecemeal. Those are so intertwined at this point, the more you can look at it broadly and holistically you can try to develop solutions that address very broad problems. So if you are in a context where police are responding to behavioral health calls and dropping people off at crisis centers or hospitals, and/or arresting them if you're going to be able to look at all these institutions in one investigation you can really understand how they're all connected and how there could be a connected solutions for problems that run through all of them.  And so that's where I'm going to end with police and turn it over to I think Victoria.

VICTORIA THOMAS: Hi everyone. So, I forgot to mention earlier I'm Victoria Thomas I'm a Trial Attorney in the disabilities rights section I'll going to be talking about our work in the arena including a case many of you are already heard about this morning, in another session LeRoux v. Montgomery County.  The Department of Justice filed a Statement of Interest in the case and just for people who weren't in this morning's session, this is a case, LeRoux v. Montgomery County a black men with a mental health disabilities was shot by a police in a McDonald's the McDonald's told the 911 operator the man was acting crazy he would not pay or move his car from the drive threw. But instead of sending a mental health crisis team or police officers trained to provide mental health reasonable modification an hour after the 911 call, a regular police officer responded issued conflicting commands to Mr. LeRoux didn't respond and eventually additional police arrived and we know the end of the story.

The police shot Mr. LeRoux when he sat up alleging he was moving towards the gun on the seat beside him.   So we filed a Statement of Interest, based on our interest in the proper interpretation of Title II, about, 911 dispatch services and law enforcement interactions, next slide. So Montgomery County moved to dismiss the amended complaint that they argued Mr. LeRoux was not a qualified individual with a disability. That the police lacked knowledge of his disability or his need for modification and that the police didn't need to take additional steps zoo to exigent circumstances. Next slide 6789. So the good news, on March 20th the Court denied the motion to dismiss. Our state of interest addressed county's claim that Mr. LeRoux been diagnosed with several mental health disabilities, schizophrenia, met the low bar to establish he had a disability under the ADA. It addressed standard for whether the county knew he had a disability.

Public entity like Montgomery County has a duty to provide reasonable accommodations when the need is obvious, arguably it was, to survive a motion to dismiss the Plaintiff only needed to plausibly allegation that the need for modification should have been apparent to Montgomery County base upon his behavior. Mr. LeRoux was not required to ask for a modification, instead the County had a duty to find out if a modification was needed when his behavior investigate suggested he might need a modification. In bringing a Title II claim, Mr. LeRoux's estate and parents needed to allegation a plausible modification. So here, any ideas what the 911 dispatcher or police could have done instead of what they did? Anyone?

AUDIENCE MEMBER: Send a social worker.

>> VICTORIA THOMAS: Send someone with some mental health training right. So the Plaintiffs here you know, allegation several possible things that the county could have done differently to meet Mr. LeRoux's needs so finally Montgomery County argued these are exigent circumstances the hour between the 911 call and when the first police officer and additional officers when the first police officer showed up all the other police officers showed up they shot him, those were exigent circumstances. But even if they were, and I will leave it to you to decide whether you agree these were exigent circumstances the ADA still applies and Montgomery County still had an obligation to make a reasonable modification, exigency impacts the reasonableness, right. 

The more exigent the circumstance, maybe the higher the standard to establish that the modification was reasonable, but the requirement that the county make if you could allegation modification that would be reasonable under the circumstances, the county still has to make it.
So, the Court denied the motion to dismiss finding that Mr. LeRoux's estate and family plead he did have a disability that Montgomery County knew about his disability and need for modification, exigency does not excuse the need to provide accommodations the Plaintiff's plausibility is the modifications that could have been provided.

>> DEENA FOX: Shout out to our colleagues in room who brought the case on behalf of the family. Ok. So, those are some examples of how the department has taken cases and investigations looking specifically at law enforcement and now we're going to shift into some context where the focus of the case is not exclusively on the law enforcement system where there is some overlap with either -- with the criminal justice system.   So, for these cases the focus or at least the partial focus of the investigation or matter is on enforcement of the Integration Mandate in Title II but there is a broader theme around the criminal justice work also at play.

So first I'll share a little bit about findings letter that results to the Alameda county relates both to the more traditional Olmstead claim around the services for people with serious mental illness and unnecessary institutionalization in state hospitals and sub-acute mental health facilities as well as an investigation of the jail the local jail.  And so these two separate but connected you know two sides of the investigation, came together in part because of the frequent cycling of people in both systems both experiencing frequent hospitalizations and also experiencing criminal justice contact and being held at that same jail.

And so through the course of that investigation we found that the county failed to provide services to qualified individuals with mental health disabilities in the most integrated setting and instead that hundreds of people were at any time being held in their psychiatric hospital and these other sub-acute facilities.   Some of them for stays of years in these sub-acute facilities.  And that others were continuing to be at risk of entering into these facilities because of the lack of community based services.

To look at the jail, the county fails to provide adequate housing in the jail, denies them mental health services and equal access to programming, both in the jail and transition services because of their mental health classification. And we also found that the jurisdiction could make reasonable modifications to provide the necessary community-based services and modify and was required to provide the mental health services in the jail both under their constitutional obligations and under the Americans with Disabilities Act. And so looking at the -- these two pieces of the system, similar to the work that is being done in Oklahoma, investigation that jean talked about, thinking about there's a group of people who are experiencing contacts with the criminal justice system and we're trying to figure out ok, what are all of the points at which they're likely to be subjected to unnecessary institutionalization?  

What are the points at which they're likely to have unnecessary contacts with the criminal justice system and what are the, necessary remedies that would be able to resolve and prevent some of those institutionalizations and unnecessary law enforcement contacts, looking across the jail for the remedies there and the mental health system and trying to identify points within the mental health system services that would be needed in the community, to prevent people from being unnecessarily hospitalized and also services and supports that would prevent contact with law enforcement as well as services within the jail and transition services that will, enable people who are coming out of that system to avoid another cycle of hospitalizations and law enforcement contact. That case is currently the parties have -- in discussions to hopefully resolve the findings there.

VICTORIA THOMAS: I'll talk about a letter of findings that we issued to the state of Maine recently about children with the behavioral health needs and shout outs there are team members in the room who worked on it. So the letter of findings concluded that the state of Maine violated Title II of the ADA by unnecessarily segregating children with behavioral health needs in 3 very fun settings psychiatric hospitals, residential treatment facilities and juvenile detention facility a jail. So we found that the state's juvenile detention center long creek is a segregated setting under the ADA.   We found that children are routinely incarcerated expressly for the purpose of receiving behavioral health care in the jail due to insufficient services in the community. Guess how many children, what percentage of the children in Long Creek have a behavioral health disability?

AUDIENCE MEMBER: 100?

VICTORIA THOMAS: I heard some nice high guesses, more than 80 percent have multiple behavioral health disabilities. So the data we were able to get access to is possible that 200 percent have 1 behavioral health disability, 80 percent had two or more. Maine's state law requires that when children are detained to await trial or serve their sentence, guess where the best place, Maine state law says they should serve their sentence or await trial?  No. Not the jail. Where should children be?

AUDIENCE MEMBER:  Home.

VICTORIA THOMAS: Home!  Home. That, when a child is accused of a crime or found guilty of a crime, that the goal is to prevent them from committing further crimes if you can do that by providing services at home with their family that the best place for children is at home, that they should be rehabilitated not punished by being placed in jail if there's any alternative. And what we found was that, if behavioral health services were available to children in the community, that children with behavioral health needs could await trial or serve their sentences at home with their families with services, in Maine that's what happens to children without disabilities.  

They await trial and serve their sentence at home and they maybe have a probation officer maybe have some sort of services to help them avoid whatever it was that got them involved in the juvenile justice system but the lack of behavioral health services in community meant that children with behavioral health disabilities had to sit in jail. Which is not the best place for children. Maine and other entities have released multiple public reports that Maine's current system relies upon the juvenile distention facility as a de facto psychiatric facility because of the lack of community options for children. So, the letter of findings what we do in our letters we not only say what the state is doing wrong, we tell them how they can fix it. So we listed barriers that prevent children from accessing services at home.

So for example, we found that Maine's crisis hot line if a family member or member of the community calls the mental health crisis hot line to get a child some help that the crisis hot line was often telling people we don't have anyone to send, call the police. Or take the child to the emergency room.   As we all know police are not equipped to provide mental health services they're not behavioral health professionals when police show up to a child in crisis they turn to the tools they do have, arrest. And that's one of the ways that children in Maine who are in a behavioral health crisis land in the jail. So now we've issued our letter of findings we are obligated to engage in settlement negotiation was the state to see if we can reach voluntary resolution.

AUDIENCE MEMBER:  Are you taking questions now or later?

DEENA FOX: We're planning to save questions until the end we have one more section that's shorter than the two, we'll be -- we'll be ready for questions soon. Ok. And now we're going to turn to the final section which is some examples of the work we're doing to enforce the ADA in correctional facilities.

VICTORIA THOMAS: I'll tell you quickly so we can get to questions because that's my favorite part about a consent decree with the Minnesota Department of Corrections in September 2022, we issued a letter of finding that the Minnesota Department of Corrections denied incarcerated individuals with disabilities equal access to their GED. So what the Minnesota Department of Corrections was doing was, it wasn't telling incarcerated individuals with disabilities, that they had the option to get reasonable modifications didn't give them a way to apply for a GED exam accommodations and then failed to give them reasonable modifications like extended test time and breaks.

I don't know if you're ware, there are incarcerated individuals who have the opportunity to get their education while in jail and to work from jail and generally getting a credential like a GED is the way to get the highest paying jobs while you're incarcerated. Being denied these accommodation both meant individuals with disabilities in the jail were not able to get this credential they weren't able to work these higher paying jobs if they wanted to. Our letter of findings found that departments of correction are required to provide reasonable modification when they know a reasonably should know the person has a disability and needs a modification even if the person hasn't asked for a modification.

Here, the correctional facility had people's IEPs they knew that these were individuals with disabilities who had reasonable modifications for education in the past but they still didn't provide them access to those and incarcerated individuals often don't have access to the internet or other resources so there's no way short of the correctional facility telling people you have the right to a reasonable modification, do you need one? People had no other way to access that. So the Court entered the Consent Decree on March 7, 2023. It has been officially entered as an order requires the Minnesota Department of Corrections to revise the policy and procedures, train personnel conduct a corrective action review to determine appropriate relief, pay over $78,000 in damages to a grieved individuals and provide regular report to go DOJ and hire an agency-wide ADA Compliance Officer.

So you can see on screen a picture of the Philadelphia inquirer, of a woman sitting in front the courthouse, I'll tell you a little bit about the current lawsuit against the unified judicial system of Pennsylvania. This is a case about individuals who use opioid, use medication for opioid use disorder the woman in the picture is Sonya Moey was a complainant ordered by a court to stop taking her physician-prescribed medication for opioid use disorder. She knew and her doctor told her if she stopped taking the medication she may relapse, start using again and die. But if she refused to get off the medication, she could she would be in violation of the Court order could be sent to jail. So she got off her medication went through serious withdrawal and her life was at risk she could have relapsed.  And she wasn't the only person in the situation.

We allegation these policies are hatching in six counties in Pennsylvania and at least one other person was subjected to a court order and when they stopped their medication had to be hospitalized for over a month. So the current status is that Pennsylvania has moved to dismiss and we filed our opposition on July 1st, the state argued in the motion to dismiss the United States lacks authority to sue under Title II of the ADA that the Court system can't be held responsible for the actions of the individual Courts, so the complaint doesn't plead the U.S. had sought to achieve voluntary compliance and the claim based upon an order issued by one county is untimely.  And we're waiting to see what happens.

DEENA FOX: So the last case I want to share a little bit about is actually going take us right back to the beginning Jean talked about the use of the Fourth Amendment and the work we've done under the constitution in the law enforcement context we also use the constitution to enforce people's rights in jails and prisons so the point that I want to make here is there are a variety of tool that's are available to us, when we're seeking to remedy these violations of law in the criminal justice context. There can be value in using multiple tools.  There could be value in making strategic choices about what tools will work best in a particular suggestion. In Cumberland County the department made findings that the county had failed to ensure that people with opioid use disorders and those who are experiencing withdrawal receive the medication assisted treatment that they needed while they were in the local jail.

There have been seven suicides at this facility both before and during the investigation. The facts uncovered they have reasonable cause believe the jail was indifferent to the risk much suicide evidence by the fact that then ensuring that these people had access to the medication treatment which is the accepted standard of care didn't provide the medication as medically indicated and by the failure to provide people with constitution tally adequate mental health care generally. So in that findings report, we proposed a number of remedial measures we're currently working towards resolution, among the remedial measures were purposed in the case, ensuring treatment is immediately provided to someone who is suicidal or psychotic as soon as the conditions become known to the facility ensuring timely access to mental health professionals when someone is exhibiting symptoms of mental health needs and ensuring that medication assisted treatment is immediately prided to people who have been identified on intake as having an opioid use disorder.

And then also, assisting them with their discharge and transfer planning services to those people who are receiving this kind of care in the facility among others. So I encourage you to take a look at that, it is of interest there's a lot more there in the findings. But just an example of other ways to attack these same issues using the legal tools that we have. Before we open it to questions, quick plug for the new ADA.gov web site and you can also get to some of the old stuff if you liked the old version I'm still getting used to the change you can go to the -- to the old version is still available online it includes our cases up through 2020.

And then that is under the archive. You can also go to the web site of the Special Litigation Section and Disability Rights Section, which have case listings for the current cases typically include the document findings letters and Consent Decrees if you're looking to see what the positions we've taken in these different matters are. I will keep our contact information up here while we open it up to questions because we, we could not provide the slides because there was still so much moving, moving targets, so we didn't share the slides with everyone but while we address the questions we can leave this up in case you want to take down our information. We'll open it up now?

Question and Answer Section


VICTORIA THOMAS: There was someone who said they had a question -- we should start with you.

AUDIENCE MEMBER: I just wondered if your recommendations are like asks, ways to expand their access to Medicaid I mean I guess I wonder how, like how high level your policy recommendations are to give people access to the mental health care because a lot of the solutions I would imagine are legislative but...

VICTORIA THOMAS: So specifically in Maine.

AUDIENCE MEMBER: Yes.

VICTORIA THOMAS:  -- um so what we found in Maine was that between Medicaid and state behavioral health services there's the full range of services would enable children to remain in the community but that a lot of children and families don't have chance for the services, for the fact that no one has taught them how to apply for the services.   We are making clear we're not talking about children who are found eligible in Medicaid in our adult cases we do the same thing. We say if they're currently eligible or they, you know, they would be eligible if anyone helped them apply.

AUDIENCE MEMBER: Yes.  Ok.

DEENA FOX: Not just necessarily eligible for Medicaid services, often times states and local governments provide services to people who are not accessing Medicaid and as long that is a state provided service then you know, we would say we need to provide that service in the most integrated setting appropriate you need to make sure that people actually have access to that service to avoid the unnecessary institutionalization, sometimes there's a mix of Medicaid paid services and other state funded services and we're not telling them how to pay for it.   We can give them, information about how they could maximize their state's benefits if that's useful as we're in negotiations around a remedy. But ultimately it is the state's call how it is paid for, but if they're providing a service, you know we're going to require that they offer it in a less integrated setting.

AUDIENCE MEMBER: Great. Thank you.

AUDIENCE MEMBER: Hi. Thank you so much for your talk. I'm Jalen. I kind have a two part question, one is related to the Consent Decree the other is related to this data. I thought it was really interesting with the Consent Decrees holding the police accountable in the different states I was wondering does holding the police accountable always have to implicate train for their involvement I know you all were saying the data shows police tend to not want to be involved at all, the community reports prefer non-co-responder or no police interaction. That is one question I was curious about, how is that reconciled in Consent Decrees?  The other one is little more general, just what data gaps you have seen, that are missing that would be really useful to inform the work that you all do?

JEAN ZACHARIASIEWCZ: In terms of the consent decrees I would say, each one is different and it is sort of going along with what Deena was saying.  That you have to figure out, what a reasonable modification is or what an appropriate remedy is for the context you're faced with. So I think there's also a recognition there's a range of possible responses that depend upon the situation. I think in most places I don't think there's anywhere where there's a weapon involved a community is only going to send a non-law enforcement response on their own.
That might happen someday, but I don't think we're there.

And so usually, you need to have like in Louisville, it says, a lot of these interactions could have been resolved by a mobile crisis team.   Or a co-responder.  Or an appropriately trained CIT officer. It notes there's no Consent Decree in Louisville. But what the findings note is that we have seen a lot of situations that could have been resolved in a different way they don't necessarily mandate what would have been the best way.  But it just notes there are other ways of doing this, that the current way, is not working.

And I think, you also need to leave room in Consent Decrees for the landscape to continue to change to some decree.  So a lot of it is, is more about goals and it doesn't always set out very specifically, what exactly you need. So like in Baltimore, the gap assessment gives the community the opportunity to figure out what are the gaps how do we want to fill them. It depends on the Consent Decree and the community involved and what is available and appropriate for that community. And I forgot the second part of the question, sorry.

DEENA FOX: What data do we need. There's so many things to be helpful that's too big of a question for me at the moment. I think some of what my understanding of what some of the teams looking at the law enforcement matters are seeking is more information at the call, at the intake period around what kinds of calls are coming in, making sure that things are coded in some jurisdictions now they are including when they, when a call taker takes the call, there are different codes they can include, some jurisdictions have a code to indicate mental health response needed some don't, some are under inclusive what goes into the bucket of mental health response and many other thing like loitering, other codes that may be used that are actually possible indicators of a mental health need as well are not being coded that way.

I think there's a lot of work that may be done as we go forward thinking about 988 which is the new version of the suicide prevention hot line which is hopefully going to be better integrated with ability to dispatch mobile crisis and better integrated with 911 systems I think there's a lot of possibility as we go into the Era where there's a much greater focus I think nationally on thinking about the all the crisis resources that are needed in order to divert people appropriately to the kinds of support that will actually address their needs.
And I can't wait to see what happens with that.

JEAN ZACHARIASIEWCZ: One small complication a lot of places are still working through is how you appropriately in the face of statutes like HIPAA share information related to mental health with law enforcement or what should they have access to and in what manner?  And I don't know the answer to that I'm not, but there's different ways of trying to figure it out, and who should know what, and sometimes you saw some of that with co-responder model there's a co-responder who has access to certain information that the police don't have access to most people don't think the police should have access to. It help when someone involved knows more about what is going on. There's that kind of data too, that people are still figuring out.

AUDIENCE MEMBER: Thank you so much.   

DEENA FOX:  Sorry we cut you off. I'll defer to Eve.

AUDIENCE MEMBER: That's ok. First I want to thank you all. This is work that desperately needs to get done.
(Applause)

DEENA FOX: A lot of people, including people have done it previously I began working on the law enforcement guidance with Eve, you know, ten years ago.


 AUDIENCE MEMBER: Right.  And I hope that the next time that you give a talk on the incarcerated part, that Minnesota is joined with 7 or 8 other slides going beyond GED it is terrible problem. But I was curious kind of the data question here, do you have ways of knowing what the Albuquerque which is now nine years old has that worked?  Are there things that you're able to identify that didn't work?  And why so if you continue to refine and adapt your Consent Decrees, you -- got a body of knowledge of things that seem like they would be a good idea but don't actually work things like that?

JEAN ZACHARIASIEWCZ: So in Albuquerque in all of our Consent Decrees I haven't been around nearly long enough to say that with authority. We require a lot of data collection. So that police departments need to get better systems for data collection and then, for auditing that data. So in Albuquerque the use of force is down the number of interactions, how the department addresses force when used it decides if it's in policy, not in policy, like discipline there's data in all of that all of those systems have gotten better.

They collect a lot of data in the crisis intervention unit, to track people, how many interactions there are, they tried to develop systems to share data with the community safety and to have patrol to be able to access some of what crisis intervention unit knows so if a patrol officer ends up on the scene they can look that person up I don't think those always work seamlessly, there's been a lot of efforts to that I think it is always -- the need to figure out -- why, how something worked it is a combination of -- personalities and, now data to sort of the change overtime. This is a lot of focus on, collecting the data and analyzing it. To the extent -- I am not sure how -- how that is effected our future decrees you guys may be able to speak to that.

DEENA FOX: Every time, we have a new matter across different subject areas we talked about, we're reflecting what looked and lessons learned from the other time you can see that in the fact that jean presented the arc of how the cases evolved this is important to keep at the forefront is some because some seems like a good idea, you don't know how it will play out, we are always try we typically have monitors or reporting system that it is how thing actually worked and -- to use that information, to help guide both that work in that jurisdiction as we go forward and are also thinking about how we might want to structure I can think of settlement that I just proposed in a -- in a manner that we modified you know the way we were thinking about it, because of our experiences of the other cases.

AUDIENCE MEMBER:  Yes.
DEENA FOX: Maybe one -- ok.   One, two, three and then we're get done.


AUDIENCE MEMBER: Last point -- consider making more of data public, scholars and other people looking at the data, something we're trying to do -- also, because -- the data is under Consent Decrees there's a lot of people studying the criminal justice system, mental health system, that could benefit from this to help us understand what works and doesn't work.   The other point to question is the I was thinking about the Maine remedy you know what about, what do you do when they say we don't have, there's no psychiatrists in the 500 miles which are true a lot of places in Maine, in California a lot of counties there's no mental health services, we are doing the best you can, there's a nationwide shortage there's things we're hearing all the time what do you do?

DEENA FOX: The data pizza lot of the data is included in the monitoring reports that are public documents.   So, um, some of that is already public. But, it is a good point, it be useful to have other people see data, a lot of that is out there.   On the challenges I think, provider shortage is one that we are thinking about a lot, how do you, how do you counter that?  I think, strategies relating to building work force, strategies around using peers as a -- bigger piece of the system, building up the peer work force strategies around telehealth, that have become much more well used through the experience of the pandemic are all ones that we are you know, using talking about thinking about. But, we're all ears if you have additional ideas.

AUDIENCE MEMBER: Hi, first thanks for your presentation. You talked about Cumberland County jail the letter of findings, the jail is indifferent to the people with opioid use disorder, would not surprise me 90 percent of the jails across the United States are similar.
I'm wondering what criteria do you use to open the investigation more response to the Plaintiff's counsel request for a Statement of Interest for other you know jails whether it is any kind of deliberated difference they may have.

DEENA FOX: First off this is a great opportunity for me to give a plug that we love hearing from people about potential matters so please do reach out to us with your complaints and with ideas, either subject matter or specific case related as to our corrections practice within the Special Litigation Section I'm actually not in charge of deciding that. We do have a few managers and I'll whole practice group of attorneys who are the primary folks on the corrections work and they have a set of priorities that they establish every year there is a team that, that screens the complaints but we're always interested in opportunities for statements of interest. We have a pretty limited number of people to do all of these investigations.

So it is not something that we can do in all of the cases when they would be warranted but we certainly would love to hear if there are other matters that we should be bringing and also if there are opportunities for us to have targeted involvement that is another great way for us to be involved. So definitely don't hesitate to reach out.

AUDIENCE MEMBER: Thank you so much for the presentation. I'm Jacob, staff attorney at prison law office in Berkeley, California. I was really interested to hearing about the using the AD getting police officers as much as possible upstream, further downstream and I'm curious for your perspectives about the potentially using the ADA as incarcerated remedy there was an article that came up in the Law Journal talking about use of reasonable modification standard as a way of having alternative to detention for people who are pretrial detention or going to immigration proceedings on the theory that the act of being incarcerated with a disability itself sort of exacerbates difficulties in accessing criminal immigration proceedings that is sort of being one of --

I imagine the number of ideas of using the ADA as a way of having people not be locked up, this case pretrial but, I know there are other ideas out there, just curious if you all have ideas about how to potentially use the ADA to you know people who are further downstream they have already been arrested they're somewhere in that space between the pretrial and post-conviction any ideas for the future?

DEENA FOX: We have ideas percolating I don't think we have anything to share but I would love to hear any ideas that folks have we're very obviously, as you can see from the presentation, these are issues that are on the minds of the people within the Civil Rights Division we're looking for opportunities to use the tools that we have to continue to expand the work so -- share any articles and ideas our way.
With that, I think we'll close and appreciate all of your attention and the work that you all are doing and hope that you'll send other matters our way going forward!

(Applause)