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Here’s the story:

The first priority now, of course, is taking care of all the people affected by this, showing support, being there for those who need it. Everyone able to offer that moral or material support should do so.

Our second priority is making sure that it never happens again, or happens with far less frequency. We shouldn’t fall into the habit of thinking of this as “an isolated incident,” and treat it the way we might treat a natural disaster, as if it just happens from time to time, and merits mourning but no changes in how we frame our shared existence. Rep. Rhonda Fields, who of course lost her own son to violence, was just on 9-News reminding us that we have to work to ensure that this DOESN’T happen, that we are not a society in the grip of random violence.

And the obvious way for us to stop being such a violent society is for us to stop being such a violent society, in thoughts, in beliefs, in ideology, in how some of us fetishize instruments of destruction, and in actions.

There will be those who insist that it is “wrong” to use this as a catalyst for discussing the underlying social problems involved, but if we don’t draw attention to them in the moments when their consequences explode upon us, then they are more easily minimized by those so inclined in times when their consequences are more remote from our thoughts.

Kyle Clark on 9-News just suggested that we all say or do something nice for someone today so that that ripples out and creates a more caring and mutually supportive society, and Kyle Dyer added that we should do so every day. They’re right; we make our culture and our society through our thoughts and actions. But we shouldn’t live dual lives, one defined by trying to be nice to those around us, and another defined by callousness and a lack of compassion in how we arrange our shared existence.

We need to work to become a different kind of society, a society that believes it’s important to reduce the levels of violence that we suffer, a society that is defined more by how much we care about and support one another than by how much we fear and loathe one another, a society that believes in BEING a society more than it believes in some moral imperative of mutual indifference. We all, as members of a society that participates in the creation of the culture in which we live, share some portion of responsibility for every event of this nature that occurs, either for what we’ve done to cultivate such a violent culture, or for what we’ve failed to do to cultivate something more rational and humane.

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Accessing Intensive Mental Health Services (AIMS) for Children Report:

The Co-Occurring Disorder Dilemma

Written by Steve Harvey, Esq., J.D., M.A.,

Funded by a University of Colorado Law School Judicial Fellowship

Executive Summary:

This paper addresses the widely reported but poorly documented problems in the coordination of Medicaid services for children and adolescents with co-occurring conditions with behavioral implications, including mental illnesses, developmental disabilities, autism spectrum disorder, traumatic brain injury, and fetal alcohol syndrome.

Even though the behavioral services and treatments appropriate for these conditions are often identical, the structure of Colorado’s Medicaid program is such that families must qualify for help from different providers, using different eligibility criteria, often based on an arbitrary assessment of which behavioral problems are attributable to which diagnoses. The consensus among professionals in the field is that there is no diagnostic or clinical basis for this distinction. It is an administrative artifact that leads to onerous difficulties for already overburdened families seeking services, and the potential denial of services to children who are both eligible for them and would benefit from them.

There appears to be widespread recognition of this problem among professionals and other stakeholders in the Colorado behavioral health and developmental disabilities communities. Families experiencing such obstacles most frequently report that they occur through informal denials, rather than a formal Notice of Action (NOA) that can be appealed or aggrieved.

It is the recommendation of this report that the state conduct a comprehensive study to determine the extent of the problem, what best practices should be implemented, and, if appropriate, what changes can be made to better coordinate and integrate related behavioral health services.

Table of Contents

Section One: Introduction……………………………3

Statement of the Problem…….……………………..3

Basic Overview of Colorado Medicaid and Behavioral Health Services…….4

Section Two: Statement of the Goals of the Project………………6

Section Three: Anecdotal Evidence……………………………………6

Case Study One…………………………………………………….7

Case Study Two…………………………………………………….9

Case Study Three………………………………………………..10

Anecdotal Evidence of Informal Denials (or “Non-Denial Denials”)…11

Section Four: BHO Formal Denials Data……………….12

Section Five: An Analysis of Relevant Issues…………14

Section Six: An Example of a Program That Works Well (Intercept Center)…..22

Section Seven: Possible Solutions and Recommendations………23

An Overview of Policy Goals……………………………23

A Survey of Specific Solutions………………………26



Section One: Introduction.

Statement of the Problem.

This report addresses a widely recognized but poorly documented gap in the provision of mental health services to children and adolescents1 on Medicaid who have co-occurring conditions with behavioral implications (which I will refer to throughout the report as the “Co-Occurring Disorder Dilemma”). Children who exhibit behavioral problems consistent with a covered mental health diagnosis, who also have such co-occurring conditions as developmental disabilities (DD), autism spectrum disorder (ASD), traumatic brain injuries (TBI), or fetal alcohol syndrome, are sometimes, perhaps frequently, formally or informally denied the mental health services to which they would otherwise be entitled.

My primary task, initially, was to determine the frequency and causes of the Co-Occurring Disorder Dilemma, and whether it required a system-wide solution. Some of the reports received by those who informed me of this problem indicated excessive administrative barriers. Some indicated poorly trained in-take personnel and misinformation given to applicants as a result. In the course of researching and compiling the report, some of the underlying dynamics of the problem became clearer, and some strategies for improving access to covered Medicaid mental health services for multiple diagnosis children and adolescents began to emerge. These strategies, as discussed in detail in Section Seven below, involve identifying the different kinds of obstacles to access involved, how they interact, and the different kinds of institutional reforms that can address them.

Cases coming to the attention of advocates and attorneys, and discussions with advocates, attorneys, providers and parents who have dealt with similar problems raised concerns that this might be a chronic, critical structural problem in the Colorado Medicaid program. In order to assess how prevalent this problem was, I simultaneously sought out quantitative data and anecdotal evidence. As discussed in the Methodology section at the end of this report, the research involved talking with stakeholders, reviewing documents, and requesting data, which was then sorted, distilled, assembled, and compiled to form this report.

The most critical conclusion that can be drawn from the evidence assembled is that some families, already burdened in extraordinary ways with children whose behavioral problems are onerous and overwhelming (often accepting this responsibility voluntarily by adopting children that others would not), are left without recourse, without assistance, and often with only desperation and frustration. They encounter a system that, to them, seems to be comprised of walls without doors. The evidence also demonstrates that this is not necessary. It is not dictated by limited resources but rather by limited imagination and resolve. Significantly superior outcomes are well within reach, outcomes more conducive to the individual and family welfare of those most directly impacted, and to our collective fiscal, economic, and social well-being.

This report examines one set of systemic problems in how we manage and provide mental health services to Medicaid-eligible children and adolescents. Nothing in this report is intended as an indictment of any individual or any particular organization, even when a critical eye is cast at the institution they represent or the incentives they are confronted with. The goal is to create systems that ensure optimal performance (including ensuring that the system most effectively selects and incentivizes the individuals within it), regardless of the particular individuals occupying particular positions at any particular time. The purpose of this report, then, is to help inform actions dedicated to realizing institutional reforms that reduce or eliminate the Co-Occurring Disorder Dilemma.

Basic Overview of Colorado Medicaid and Behavioral Health Services.

Medicaid is a federal program administered by the states that opt to participate in it (which all 50 states do), and funded jointly by federal and state governments. The Early Prevention, Screening, Diagnosis and Treatment (EPSDT) program is “Medicaid for children.” It eliminates the distinction between mandatory services (those that states must provide) and optional services (those that states may provide but don’t have to), obligating states to provide all medically necessary mandatory and optional services for all child and adolescent Medicaid clients. It also mandates a series of screening, diagnostic, and treatment protocols to ensure a higher lever of intervention and care for children on Medicaid.

Colorado Medicaid, in compliance with federal law, is overseen by a single agency, the Colorado Department of Health Care Policy and Financing (HCPF). This agency is completely separate from the Colorado Department of Human Services (CDHS), and the Colorado Division of Behavioral Health (CDBH) within CDHS.

HCPF contracts with five regional Behavioral Health Organizations (BHOs) to manage the provision of behavioral health (i.e., mental health and substance abuse) services covered by Medicaid. The BHOs are paid a “capitated” rate, determined by the number of people on Medicaid in their region, their eligibility category, and the historical trends concerning costs per person. The services themselves are provided by Community Mental Health Centers (CMHCs) and provider networks that contract with the BHOs. This managed behavioral health care system is often referred to as “Capitated Medicaid.”

The five BHOs, seventeen CMHCs, and five specialty clinics are members of an umbrella nonprofit organization called The Colorado Behavioral Healthcare Council (CBHC). CBHC represents the interests of these members.

The BHOs are contractually obligated to manage the provision of medically necessary covered services (as outlined in Exhibit E of the state’s contract with the BHOs), that carry one of the covered procedure codes listed in Exhibit F of the contract, for one of the covered mental health diagnoses listed in Exhibit D of the contract, by a provider credentialed to provide that procedure for that diagnosis (as outlined in Exhibit O of the contract).2

Diagnoses, services, and procedures not listed in Exhibits D, E, and F of the state’s contract with the BHOs, but otherwise covered by Medicaid, are considered “medical” services, and are administered separately through a system by which providers bill the state for each procedure or service according to a predetermined billing schedule. This is called “fee-for-service” Medicaid. The four major co-occurring diagnoses (DD, ASD, TBI, and Fetal Alcohol Syndrome), and most services commonly associated with them that are covered by Medicaid, are covered under the fee-for-service system.

Twenty geographically defined Community Centered Boards (CCBs) are responsible for meeting the needs of individuals with developmental disabilities and developmental delays. Various advocacy organizations, advisory councils and committees, comprised of various kinds of stakeholders (including service providers, government agency officials, managed care CEOs/EDs, advocates, and “consumers”), intersect with and overlap the formal structure described above.

Section Two: Statement of the Goals of the Project.

The original purpose of this project was to look beyond the anecdotal evidence to determine the scope, intensity, causes, costs, and possible solutions of The Co-Occurring Disorder Dilemma. But research quickly revealed that a fundamental aspect of the dilemma is the degree to which relevant data is either not collected or not aggregated and analyzed, leaving little information other than anecdotal evidence available for consideration.

Due to the relative lack of data, the project has evolved. Anecdotal evidence of the nature of the problem remained an integral component. But, rather than attempting to quantify it, emphasis shifted to an analysis of the underlying dynamics and issues involved. This analysis helps to frame consideration of the range of possible solutions, including programs currently in existence that do a better than average job of attending to the needs of multiple diagnosis children. Denials data generously provided by the Behavioral Health Organizations (BHOs) are also summarized and discussed.

This report does not address several related issues. Among them are deficiencies in funding, deficiencies in covered diagnoses and treatments, deficiencies in the availability of providers or facilities, or hospital denials of in-patient care to multiply diagnosed children in crisis. It does, however, touch upon the issue of the adequacy of training for providers and in-take personnel, since this is a crucial component of The Co-Occurring Disorder Dilemma.

Section Three: Anecdotal Evidence

Among the parents, advocates, program directors, and service providers that I interviewed, there is a widespread and deeply felt perception of a serious and pervasive problem that needs to be addressed. At a stakeholder meeting held by the Colorado Department of Human Services (CDHS), there was repeated discussion of what I am now calling the Co-Occurring Disorder Dilemma by various stakeholders and a murmur of acknowledgement by other attendees whenever it was mentioned. While popular perception of a phenomenon does not prove its existence, popular perception by professionals of a problem relating to their profession is at least suggestive and warrants due attention.

Other than such perceptions, the principal evidence for the existence of the Co-Occurring Disorder Dilemma is comprised of the personal stories of those parents of multiple diagnosis children who have encountered it. A few of those stories are recounted below.

Case Study One.

C (child) was placed in P’s (parent’s) home when C was 6, having suffered severe abuse in his birth home. His birth family, for instance, had tried to “cure” his Tourette Syndrome by pouring caustic chemicals down his throat.

C had a low IQ and was at times very violent, flying into uncontrollable rages. In one instance, he broke both the hands of his disabled adoptive father and cut his (the father’s) face with broken shards of glass. He also frequently tried to hurt himself. When not suffering such an episode, however, he had a completely different personality, and would be overcome with remorse. This was a heavy burden for P and her husband, who undertook this responsibility that few others are willing to.

Despite this pattern of behavior, and his mental health diagnoses of mood disorder, PTSD, and OCD, his BHO never authorized residential services for C, even after episodes of extreme violence. The BHO said he wouldn’t benefit from behavioral health services, that his behavioral problems were a result of his developmental disability rather than his mental illness, and that the behavioral issues were the responsibility of the Community Centered Boards (which address developmental delay issues) rather than of the BHOs.

On three occasions, once for six weeks, P managed to access the Neuro-psychiatric Special Care (NSC) in-patient and day treatment services at Children’s Hospital, an excellent but overburdened treatment program for children with dual (or multiple) mental health and developmental disability diagnoses. NSC bills as a psychiatric treatment center under capitated Medicaid (requiring a mental illness diagnosis, as C had, and a BHO determination that the behavioral problems for which treatment is being sought is a result of the mental illness, as P had to advocate for). C had received medical services related to a suicide attempt, and, due to the bifurcated billing discussed below, could not access mental health services at the same time. While in the NSC center, follow-up surgery was required, but to get it, P would have had to have C discharged from the NSC unit and readmitted on the medical side, causing C to lose his place in the NSC unit and be placed on a six month waiting list to get back in.

According to P, her BHO had told her that since C was adopted, C was social service’s responsibility, but this is only true in dependency and neglect cases. When C was 12, social services placed him in the category of “at-risk youth” or “child out of control of parents,” adding their interventions to the burdens that P was facing. Thus one of the perennial problems of bringing in social services arose: P faced a threatened dependency and neglect determination. Having adopted a child with developmental disability and mental illness diagnoses, seriously abused in infancy, showing signs of PTSD and Reactive Detachment Disorder, desperately seeking appropriate care for this child, P found herself under a cloud of presumed suspicion.

During the course of this years-long ordeal, P had to use the emergency room as an alternative to the residential care that C needed, as is frequently reported in such cases. On one occasion, she had to wait in the emergency room until a bed opened up for C, bringing her husband and plugging his ventilator into a wall socket in the emergency room, and not going to the bathroom (which would have been considered “abandonment” of the child). After all that, C was not admitted because the BHO was called and refused to cover the expense.

As numerous service providers, advocates, and family members have noted, only the most tenacious parents, who advocate relentlessly for their children, generally succeed in cutting through these kinds of obstacles. For instance, it was a threat by P to file an American with Disabilities Act (ADA) Section 504 complaint that first got the BHO to the table after continually refusing to provide mental health services.

As a result of P’s tenacity, some progress was made on the DD (fee-for-service) side. C was placed on the wait list for the children’s extensive support (CES) waiver. The CES waiver is for DD children who need 24 hour line-of-sight care, and provides about $30,000 of services, in-home behavioral support and respite care. P’s CCB used local money for people on the wait list and provided in-home behavioral support. Eventually, the Colorado Cross Disability Coalition (CCDC) got everyone at the table to kick in something for in-home care, and talked about creating a virtual residential treatment center in the home. (C passed away due to complications related to his pre-adoption abuse before this could be implemented.)

Case Study Two.

Q (parent) adopted D (child) when D was two weeks old. There were immediate neurological symptoms. D was originally diagnosed with attachment disorder. Therapy helped a little.

D was later diagnosed with Schizophrenia, “mood disorder with psychotic features,” and ASD, and received a year of day treatment. Q believes that the behavioral issues need to be treated regardless of the diagnostic labels attached to them, but relies on the mental illness diagnoses to access necessary and appropriate mental health treatments for D.

Despite the Schizophrenia diagnosis, Q’s BHO refused to provide behavioral treatments appropriate to D’s mental illness diagnosis, stating that the BHO doesn’t provide services for Autism. Subsequently, Q used D’s Schizophrenia diagnosis to obtain treatment, without disclosing that D also had ASD.

Q insists that the mere mention of the word “autism” provokes a negative response by BHOs and CMHCs. “You can almost hear the screeching of the brakes at the other end of the line.” But Q argues, as do many others (including clinicians), that Autism disrupts communication and social skills, resulting in behavioral symptoms that can be treated in the same way that behavioral symptoms associated with mental illnesses can be treated. However, Colorado Medicaid distinguishes between behavioral problems that are a result of Autism (or other developmental disabilities), and identical behavioral problems that are a result of a mental illness.

Q noted one of the most oft-cited disconnects resulting from this artificial distinction (discussed in more detail below): That Applied Behavioral Analysis (ABA) is an autism-specific treatment that has a behavioral health billing code. This means that ABA can only be accessed if the patient has a mental illness diagnosis, despite the fact that Autism (for which ABA is considered the standard of care) is categorized as a medical diagnosis. Q discussed (as did many other providers and advocates in my conversations with them) the need this imposes on parents and providers to rely on creative coding and labeling to navigate the system.

Q reiterated another frequently repeated observation: That it’s hard to imagine someone who isn’t a professional advocate, or otherwise thoroughly versed in the intricacies of the system, navigating the system. Q observed that there are three systems that have to deal with and pay for children’s maladaptive behaviors: Education, Health Care, and Juvenile Justice. Each wants to shift the burden to the others. And since Juvenile Justice is the only one that can’t deny services, too many children in need of behavioral health services end up in the Juvenile Justice system.

Case Study Three.

E (child), who is diagnosed with psychotic disorder, autism, and mood disorder, has long suffered from explosive tantrums, auditory and visual hallucinations (sometimes “advising” him to act violently), anger, obsessive behaviors, volatile mood swings, and other symptoms. E is a teen-age male, who, like C in Case Study One, poses a risk to self and others. At home, E is often aggressive and demanding, damaging property, having difficulty with personal hygiene, and in general lacking independent living skills. R (parent) was particularly concerned for the safety of a much younger sibling also living in the home.

Despite these symptoms, as in the case of C described in Case Study One, the parent and other adults who have had contact with E describe him as “a sweet kid.” They perceive the symptoms of his mental illness to be distinct from his essential character as a human being.

E was placed in a succession of out-of-classroom programs by the school district, from kindergarten onward. He has relied on outpatient therapy and medication nearly all his life. He was hospitalized several times due to his behaviors at home. The BHO refused to pay for his last hospitalization, claiming that it was not due to a covered diagnosis.

R (parent) originally sought day treatment for E, in which E could receive both mental health and educational services, which had previously proven very useful. The BHO denied day treatment for E, insisting that in-home treatment was more appropriate and less costly. E’s doctors were adamant that E needed day treatment, that it was a medical necessity. The BHO insisted that the behavioral issues were due to E’s developmental disability rather than a covered mental illness (despite the ample mental illness diagnoses), and that day treatment “wouldn’t do him any good,” despite the fact that it had done him good in the past, and that his doctors adamantly recommended it for him.

In the course of negotiations on this matter, the BHO tried to place responsibility for E’s mental health care on the school district, insisting that it was a problem for Special Education to deal with. Eventually litigation was threatened, and the BHO made some concessions to avoid it, reversing its decision regarding day treatment, but authorizing it for an insufficient length of time. R continued to struggle with the BHO over the provision of appropriate and necessary mental health services for E.

R agreed to try in-home therapy, but it has not been very successful. Due to the continuing threat to the safety of E himself and others in the household, E’s psychiatrist and his clinician both recommended residential care for E, stating that “out of home placement in a residential setting is strongly indicated . . . [T]his level of care has the potential to improve [E’s] psychiatric status and his functioning. [E] has responded best to a structured, supportive, therapeutic setting.”3 Despite these strong recommendations, the BHO refused residential care, stating that “[E’s] psychotic symptoms would not be expected to benefit from or require residential treatment level of care.”

R appealed the BHO’s decision, and received several independent evaluations confirming the need for residential care for E. In the light of this overwhelming evidence contradicting the BHO’s refusal of services, an Administrative Law Judge recently reversed the BHO’s decision to refuse residential services to E, ordering that the services be provided.

Anecdotal Evidence of Informal Denials (or “Non-Denial Denials”).

Almost all of the parents I interviewed reported similar experiences of receiving “informal denials,” either prior to, or in place of, formal ones (known as a “Notice of Action,” or NOA), which are necessary to initiate a grievance or appeal. In one particularly revealing incident, a CMHC had accidentally sent the parent the evaluating physician’s confirmation that the child had a covered mental health diagnosis and was eligible for services. But the CMHC then informally denied that child services, neglecting to send a letter of denial. Another parent reported that her CMHC refused mental health services to her child with a mental illness, who had suffered a brain injury sometime after receiving his mental illness diagnosis, because “we don’t treat medical conditions here” (implying that since a brain injury is a medical condition, all behavioral problems will be attributed to it, despite the fact that the bipolar diagnosis predated the brain injury). A BHO official confirmed this decision, showing this parent the contract, in which it is stated that the BHO is not responsible for medical problems. No Notice of Action was issued.

One parent spoke of the confusing forms, the inflexibility of in-take policies and procedures, how when laryngitis made it impossible for her to participate in a scheduled telephone call, she was kicked back to the beginning of the entire process of applying for access to services. She was not provided with information about respite care when she inquired into it. This parent, too, stated that she is not able to access services for her child if she mentions that the child has a developmental disability as well as a mental illness, without an NOA ever being issued.

Several parents, most advocates, and even many providers indicated that such informal denials occur with great frequency at various stages in the process, from intake to post-evaluation. Reports include clients being told by in-take personnel that violent behaviors by the child preclude eligibility for Medicaid covered mental health services, that such behaviors are a matter for the police and not for mental health care providers, or that network providers would have to be used but receiving outdated provider lists with disconnected numbers or otherwise inaccessible or non-existent providers. Clients (particularly adoptive parents) have also reported being inappropriately referred to social services for conditions that are Medicaid’s and not social services’ responsibility to address.

Section Four: BHO Formal Denials Data

According to the data provided to me by CBHC and the five BHOs, out of a total of 58,115 child and adolescent clients served (all children and adolescents served through the BHOs, according to Brian Turner of CBHC not just those on Medicaid or those with multiple diagnoses), there were 54 denials based on Co-Occurring Disorders (almost half by one BHO) issued by all five BHOs to no more than 49 individuals (not all BHOs indicated when multiple denials were issued to the same person) over an 18 month period. This data does not suggest a high rate of such formal denials, but three things should be born in mind: 1) We have not been provided with the relevant denominator, which is the total number of multiple-diagnosis Medicaid eligible children served, to determine what portion of those children are denied services due to their co-occurring conditions; 2) most of the personal stories related to me don’t involve the issuance of NOAs (and thus are not included in this data) but do result in denials of services, raising the question of the prevalence of “informal denials;” and 3) this is self-reported data by the BHOs that cannot be verified, and is not subject to any independent oversight.

To underscore these points, one BHO reports only 8 denials for 6 individuals during the 18 month period under consideration, though one of the CMHCs affiliated with it has a widespread and intensely felt reputation among the mental health advocates and providers I talked with for overzealous denials of services, particularly to multiple diagnosis children. (One professional, in no way affiliated with that CMHC, told me that the medical director of that CMHC has explicitly stated that he considers any behavioral problem that occurs in a child with a developmental disability to be by definition a neurological rather than a mental health problem, and thus never the result of a covered diagnosis, despite the protocol developed to ensure that such blanket denials of mental health services to children with developmental disabilities are not public policy.) Conversely, another BHO which includes a program with a stellar reputation for ensuring that multiple diagnosis children receive appropriate services, reports 11 denials of services, and gave by far the most complete and detailed information for each case of all five BHOs.

While the 54 formal denials of services to those children with co-occurring conditions, representing less than one thousandth of the total number of child and adolescent clients served, may not seem like an alarmingly high rate of occurrence, it is nevertheless a heavy burden for the families involved, and may represent a pattern of treatment toward a particular subclass of clients. Furthermore, this data gives us no insight into how many families were informally denied services, by being turned away before any official request for services was recorded.

Section Five: An Analysis of Relevant Issues

There are clearly numerous human, social, fiscal, and economic costs implicated in the failure to address this problem. The human costs borne by the individuals and families directly impacted are enormous, and well-represented by the anecdotal evidence reported above. The social costs include increased prevalence of socially maladaptive behaviors that can at times become violent or criminal in nature. The fiscal costs are typical of those borne by society when we are “penny wise and pound foolish,” failing to invest in proactive policies that reduce far larger and more cumbersome reactive costs. One simple and obvious example is the overreliance on expensive emergency room care for chronic conditions when less expensive and more effective appropriate preventative treatment is recommended. The economic costs include reduced productivity and an increased burden on our juvenile justice and criminal justice systems due to the failure to proactively address this and related problems.

In order to avoid these numerous and onerous costs, we need to meet the challenge of resolving The Co-Occurring Disorder Dilemma. The major interrelated structural problems that need to be addressed and rectified are:

1. The bifurcation of capitated Medicaid for mental health problems, and fee-for-service Medicaid for “medical” problems (which include co-occurring conditions such as developmental disabilities, ASD, TBI, and fetal alcohol syndrome), despite the fact that this distinction often segregates identical behavioral problems requiring identical treatments, distinguished only by the context in which they occur.

2. The distinction made between identical behavioral symptoms according to the presence or absence of diagnostically and clinically independent co-occurring conditions.

3. The need to align covered diagnoses (i.e., diagnoses that are covered under either fee-for-service “medical” Medicaid or capitated “behavioral” Medicaid) with covered treatments in the same silo (i.e., treatments that carry a billing code that falls into either fee-for-service or capitated Medicaid, matching the silo of the covered diagnosis). This is exacerbated by possibly overly-restrictive authorization of providers, even though clinical best practices require a more fluid matching of treatment, diagnosis, and provider according to particular confluences of circumstances.

4. The insufficient cross-training of mental health care providers in issues specific to people suffering from co-occurring conditions (particularly DD and ASD).

5. Insufficient integration of services and coordination of service providers.

6. Insufficient assistance to clients trying to navigate the confusing and convoluted behavioral health care system.

7. Insufficient tracking and oversight of formal denials of services by independent contractors paid a set fee to manage the provision of mental health care services under Medicaid.

8. Non-existent tracking and oversight of the apparently more pervasive informal denials, such as clients potentially eligible for services being told on the phone or at the front desk that they are not.

9. Insufficient training of in-take personnel, leading to an increased frequency in the occurrence of informal denials.

Structural problems 1-5, above, can be categorized as “siloing” problems. “Siloing” refers to a separation and lack of coordination among interrelated services, agencies, and procedures. Siloing is widely understood among those involved in publicly provided human services to be a fundamental structural problem, obstructing the efficient and effective delivery of services. Siloing clearly is a major factor contributing to the difficulties facing families of multiple diagnosis children and adolescents.

The first type of siloing listed above is the administrative lynchpin of the problem. Diagnostically and clinically identical maladaptive behaviors can fall into one of two administratively distinct categories: Fee-for-service “medical” Medicaid, or capitated “behavioral health” Medicaid. The latter include behaviors deemed to be caused by a diagnosed mental health disorder, and thus the responsibility of the BHOs and their provider networks to cover. The former include behaviors that are deemed to be caused by any of various co-occurring conditions (Autism Spectrum Disorder, Developmental Disability, Traumatic Brain Injury, Fetal Alcohol Syndrome), and thus the responsibility of fee-for-service Medicaid to cover.

The second, closely related, example of siloing implicated in the Co-Occurring Disorder Dilemma is the segregation of exhibited behavioral problems into those associated with a mental illness, and those associated with some other co-occurring condition. According to Dr. Judy Reaven, a child psychologist with JFK Partners at the University of Colorado School of Medicine, there is no diagnostic or clinical justification for this distinction. There is general agreement with this view among other clinicians I spoke with, such as Cory Robinson, Director of JFK Partners, and Dr. Marianne Wamboldt, Chair of the Department of Psychiatry and Behavioral Sciences at Children’s Hospital. All three agree that this is the prevailing view among clinicians.

Dr. Reaven emphasizes that there is no basis for distinguishing behavioral problems manifested by a child (or adult) with a developmental disability and behavioral problems that are symptomatic of a mental illness. Neither in terms of what we know about underlying causes, nor in terms of the efficacy of standard treatments, does such a distinction have any justification. Since there appears to be no medical basis for making such a distinction, it is an administrative artifact which serves as an obstacle to the implementation of clinical best practices, and facilitates the denial of mental health services to those who both need them and, by law, are entitled to them.

In Dr. Reaven’s words:

Related to the artificial distinction between “behavior” that is symptomatic of DD vs. a mental health condition, is that clinicians are asked to independently treat “mental illness,” and “autism or other DD” knowing full well that diagnostic complexity exists in most of the patients we see. It is nearly impossible to identify the specific symptoms that are only ASD vs. symptoms that are only mental illness. Finally – best practice would suggest that clinicians consider the whole child, as knowledge of the whole child must inform the specific treatment and modifications necessary for enhanced efficacy of the intervention. Not allowing clinicians to even acknowledge the complexity of patient’s presentation in many cases can lead to a superficiality of treatment.

Related to this is a phenomenon known as “diagnostic overshadowing” (coined by Steven Reiss in 1983), a tendency to disregard the diagnostic indicators if behaviors can be attributed to a developmental disability instead of to the mental illness diagnosis consistent with the behaviors, even though the presence or absence of the developmental disability is generally not diagnostically relevant. Again, in Dr. Reaven’s words:

Diagnostic overshadowing refers to the tendency to attribute behavioral challenges and mental health symptoms in an individual with DD or ASD, solely to the developmental disability or ASD, rather than assign an additional mental health diagnosis, even if the symptom presentation are all consistent with such a diagnosis; in other words, mental health symptoms are “overshadowed” by the DD/ASD and as a result are not appropriately identified or treated.

While co-occurring conditions can be clinically relevant, just as any number of other contextual factors can be, their presence does not generally imply that the use of standard mental health treatments and therapies will be ineffective, only that such treatments need to be adapted appropriately to the needs of the individual child, as is always the case. So, for instance, if a child has a developmental disability that affects his or her ability to communicate verbally, this is a factor that must be taken into account, not a factor which renders irrelevant the child’s mental health treatment needs.

According to the 2011 Ombudsman’s Report, BHOs do (and are contractually authorized, perhaps required, to do) precisely what Dr. Reaven described above as impossible and irrelevant to do: differentiate between similar behaviors as in some cases an artifact of a developmental disability and in other cases an artifact of a mental illness. According to the report, regardless of the diagnoses that exist, there is “a reluctance on the part of plans to approve treatment services for behaviors that may be caused by a medical diagnosis (autism or traumatic brain injury) which are then exacerbated by mental health conditions, or vice versa” (emphasis added). The key phrase above is “may be,” because, while the BHOs are contractually empowered to make such distinctions, they are rarely diagnostically or clinically justifiable.

Marceil Case of the Colorado Department of Health Care Policy and Financing (HCPF), the state agency which oversees Colorado Medicaid, stated at one point, in an interview with me, that if the BHOs determine that there is a mental illness diagnosis, then the BHOs are responsible for covering behaviors that are associated with that diagnosis, regardless of whether the client has a co-occurring developmental disability. The ambiguity of this statement sheds some hazy light on the nature of the problem, because the determination to provide or deny services hinges on whether the BHOs determine that the behavior meets the higher threshold of being caused by the diagnosis, rather than the more clinically meaningful threshold of being consistent with the diagnosis.

In fact, BHOs are authorized (perhaps required) to deny services for behaviors “associated with” a covered mental health diagnosis, if the BHO asserts that the behaviors are the result of a co-occurring condition rather than of the covered mental illness. Given that making such determinations reduces costs incurred by the BHOs, that such determinations can be and are at times made in opposition to clinical recommendations, and that such determinations are not automatically reviewed, it is economically axiomatic that such determinations are likely to be made excessively.

But even were the clinically more relevant criterion relied on, that any behavior requiring treatment that is “consistent with a covered mental health diagnosis” be covered, it still would leave open a large loophole through which services can be denied: It is left to the BHO’s discretion to determine whether such a mental health diagnosis actually pertains, a determination not bound even by what their own CMHCs or independent mental health providers may say. Therefore, the BHOs are free to claim that a behavioral problem exhibited by a child with a developmental disability is the result of the developmental disability rather than of a mental illness, even if that child has been clinically diagnosed with a mental illness, and even if they were obligated to provide services for anyone they deem to have a covered diagnosis (which is not currently the case). In practice, the BHO has complete discretionary power to determine whether the child has or does not have a covered mental health diagnosis. And, again, such determinations are not subject to automatic review.

In other words, the BHOs have complete discretionary authority to determine, independently of clinical recommendations, both whether a client exhibiting behaviors consistent with a covered mental health diagnosis actually has that diagnosis, and whether, if so, the exhibited behaviors are the result of that diagnosis. (The decisions can be appealed by the client, but the nature of the problem at hand is, in part, that there are so many obstacles strewn in the paths of clients. There is such a maze of bureaucratic hoops to jump through, that already overburdened parents and guardians seeking behavioral health services for their multiple-diagnosis children find themselves forced to become assertive self-advocates. As a result, they must either dedicate considerable time and effort that they can ill-afford, or fail to obtain services to which they are entitled.)

The third type of siloing listed above requires that only therapies that carry a billing code associated with one or the other of the two administrative silos (capitated or fee-for-service) are administered only for diagnoses that are covered under that same administrative silo. In other words, a therapy coded as a behavioral health treatment cannot be used for a diagnosis whose billing code is fee-for-service, even if that therapy is the standard of care for that diagnosis. This administrative requirement obstructs rather than facilitates clinical best practices: Appropriate and covered therapies should be provided for appropriate and covered diagnoses, by any qualified and competent service provider.

The consequences of failing to allow any covered therapy to be provided by any authorized and qualified behavioral health provider for any covered diagnosis is to effectively deny covered services for covered diagnoses to eligible recipients; to reduce the quality of care to many of those who do receive services; and to force frustrated providers to work around these arbitrary obstacles by making a mockery of the labels that impose them in the first place.

Brian Tallant, the program director at Intercept Center (a joint program between Aurora Mental Health Center and Aurora Public Schools discussed below), offers the following example of this problem:

Best practices for the treatment of Autism is a combination of Applied Behavioral Analysis (ABA), speech/language therapy and occupational therapy. ABA is considered a behavioral health service, and typically has a behavioral health CPT (Current Procedural Terminology) code that corresponds to that service. Speech/language therapy, as well as occupational therapy, are medical services and have corresponding medical CPT codes. Capitated (Behavioral Health) Medicaid has a list of covered psychiatric diagnoses, but excludes Autism as a neurological or medical condition, and therefore ABA interventions are not authorized based on the diagnosis of Autism. If a clinician provides ABA services under the diagnosis of Autism, and tries to bill medical fee-for-service Medicaid for ABA services, using behavioral health CPT codes, it is often rejected as being a “behavioral health” service, which should be covered by Capitated Medicaid. So you see how a child with Autism is caught between a system that excludes their behavioral treatment either by diagnosis (Capitated Medicaid), or by service code (medical fee-for-service Medicaid).

Brian Tallant describes how the provider is also caught up in the siloing of particular treatments for a particular diagnosis:

[T]he problem mostly rests with Applied Behavior Analysis (ABA), or other “behavioral” services, that are provided by a professional that has more of a behavioral health training and/or certification. These professionals can provide services that are best described by behavioral health service codes (ICD-9 codes), when they are authorized and approved for treatment of a covered diagnosis under capitated Medicaid. If a person has a medical diagnosis (excluded mental health diagnosis), such as autism or TBI, the behavioral therapist does not have medical ICD-9 codes that allow for billing under fee-for-service Medicaid. Behavioral services codes are rejected by fee-for-service Medicaid as being “behavioral health” services, even though they are qualified to provide those services, and they are treating a medical condition.

While this may be little more than a restatement of the problem of having to align covered diagnoses and covered treatments under a single silo, it draws attention to the fact that a provider fully qualified to provide the treatment that represents best practices for a given diagnosis may be prohibited from providing that treatment, simply as a result of how the treatment is coded.

The fourth and fifth types of siloing listed above involve the siloing of expertise, both by a lack of cross-training of service providers, and a lack of coordination among service providers. Due to a lack of cross-training, clinical assessments are made by service providers who may not understand the relationships between, for instance, developmental disabilities and mental illnesses, and thus make diagnostic and clinical judgments that are only partially informed. Due to the lack of coordination among service providers, clients seeking services in one silo may not be directed to services appropriate for them offered in another. This siloing of expertise exacerbates the interacting dysfunction of the first three administrative forms of siloing by reproducing and reinforcing it at the level of service provision.

The final four structural problems listed above are not siloing problems, but are rather problems in assistance to clients and oversight of managed care providers. They interact with the five siloing problems by leaving clients to fend for themselves in a system posing numerous obstacles to their ability to access appropriate services.

Many parents of multiple diagnosis children who are also knowledgeable advocates for the interests of multiple diagnosis children note that no one who is not a trained advocate could possibly hope to navigate this convoluted and obstruction-strewn system effectively. The anecdotal evidence is rife with stories of parents being misinformed, misdirected, and given a general run-around, while dealing with the other onerous burdens of raising developmentally disabled and mentally ill children. Clearly, this nightmarish maze that such parents must try to negotiate, against obstacles both intentional and unintentional, is a major part of the problem with how this system functions…, or fails to.

This bureaucratic labyrinth, which serves interests other than those of the clients who need to access the system, is left largely unchallenged due to a lack of administrative resolve and oversight. No state agency or advocacy organization is tracking formal denials of mental health services other than the independent (two nonprofit and three for-profit) contractors that have a financial incentive to deny them. No state agency or advocacy organization is extracting and analyzing information about the reasons given for denials in cases that are aggrieved or appealed. No state agency or advocacy organization is attempting to systematically track or assess the apparently far larger problem of informal denials, in which applicants are obstructed from accessing services to which they are entitled in ways that do not result in a formal Notice of Action (NOA). The first step to remedying the Co-Occurring Disorder Dilemma is to rectify this glaring lack of data collection and administrative oversight, and the enabling lack of sustained, focused advocacy insisting on such data collection and oversight.

Clearly, the imposition of new administrative burdens is not to be taken lightly. But the glaring deficiency in this case suggests that perhaps the current distribution of administrative burdens is not optimally targeted.

Section Six: An Example of a Program That Works Well

Intercept Center

Intercept Center is a joint program of Aurora Mental Health Center and Aurora Public schools, established in 1995, to accommodate the educational and behavioral health needs of Medicaid-eligible children from ages 5 to 21 with both a covered mental health diagnosis and a developmental disability. Aurora Public Schools provides the building, special education teachers, paraprofessionals, instructional materials, and itinerant special education staff and services, while Aurora Mental Health Center provides the mental health treatment services and personnel. Aurora Mental Health Center and Aurora Public Schools are currently putting together a Memorandum of Understanding to more fully formalize this joint venture.

Intercept Center operates as both a school and a day treatment center, with students receiving both their educational and behavioral health treatment needs in one location and under the auspices of one program. Intercept Center also functions as an intensive services outpatient clinic for multiply diagnosed children in the Aurora area. The relative success of Intercept Center in reducing or eliminating the gap in services encountered by many multiple diagnosis children on Medicaid is due, in large part, to the training of the mental health service providers there, and the assertive coordination with other facilities and programs to accommodate needs that fall beyond the parameters of the services that Intercept Center provides.

The success of such a program requires the willingness of the overarching Behavioral Health Organization (in this case, BHI), to permit a more rather than less inclusive determination of eligibility for services, and the stewardship of a program director (in this case, Brian Tallant) committed to ensuring that applicants receive any and all services to which they are entitled, whether under the auspices of this program, or through another service provider more appropriate to that particular child’s needs. Unfortunately, under our current overarching system, the satisfaction of these two necessary conditions is the exception rather than the rule.

While Intercept Center does not currently bill fee-for-service Medicaid to provide (“medical”) services that are not covered under capitation (“mental health services”), it does coordinate with providers who do. Aurora Mental Health Center is contemplating expanding the Intercept Center program to provide behavioral services that are covered under fee-for-service Medicaid, as well as the behavioral services that are covered under capitated Medicaid.

Intercept Center does not provide residential services, but has a close relationship with Smith Agency, which is a child placement agency for foster care, and the provider of Serenity Group Homes and Serenity Learning Center. Intercept identifies children who need residential treatment, informs parents of the procedures to go through and of the various options available to them. In one case, Intercept assisted foster parents in expanding their business into a group home, which they wouldn’t have been able to do without Intercept’s support and guidance. Intercept Center providers also go into Residential Child Care Facilities (RCCFs), which serve children with developmental disabilities, to provide certain mental health services on-site (particularly, capitated Medicaid-covered individual and group therapies), but children in RCCFs must come to Intercept Center for medication to be administered.

Intercept Center is evidence of the fact that it is possible to design and implement a relatively well-functioning model under the auspices of Colorado’s current Mental Health Medicaid system, but also, in its exceptionalness, of the fact that such models are not the inevitable by-product of that system. To the extent that we continue to operate within current parameters, one immediate goal is to ensure that the Intercept Center model is replicated as widely as possible. To the extent that we change those parameters, one intermediate goal is to ensure that the lessons of Intercept Center inform systemic and mandatory changes.

Section Seven: Possible Solutions and Recommendations

An Overview of Policy Goals

The principal recommendation of this report is that the relevant governmental agencies systematically research and remedy The Co-Occurring Disorder Dilemma, with persistent resolve and unflagging determination. Since this has not yet happened, and there is no evidence of it spontaneously occurring, the secondary recommendation is that all relevant advocacy groups place sustained, informed pressure on those governmental agencies and office holders to do so. The State of Colorado needs to commission a comprehensive study, incorporating data that either currently does not exist or cannot be accessed, and, based on that study, design and implement an affirmative plan to rectify the obstacles to access to mental health services faced by children and adolescents with co-occurring conditions.

The state has a number of options for addressing and rectifying the major interrelated structural problems listed in section five, above. We need to design and implement a set of policies which:

1. Eliminates the effect of bifurcation of Medicaid into capitated and fee-for-service enclaves, either by (ideally) eliminating the bifurcation itself or (more practically) perforating the wall between them sufficiently that it ceases to obstruct the diagnostically and clinically appropriate and necessary provision of services.

2. Eliminates the effect of administrative (diagnostically and clinically unjustifiable) segregation of identical behavioral problems according to whether they are administratively deemed to be the result of a mental health diagnosis or some co-occurring condition.

3. Eliminates the need to align providers, diagnoses, and treatments under one or the other of the two Medicaid silos described in numbers 1 and 2, above. This primarily involves eliminating the need to provide only behavioral therapies and treatments with a billing code that corresponds to the silo (either fee-for-service or capitated) that the behaviorally related diagnosis is covered under. A more flexible system is needed to ensure that any covered treatment for any covered diagnosis can be provided by any competent and qualified behavioral health service provider.

4. Ensures that behavioral health providers are appropriately cross-trained to know how to effectively diagnose and treat co-occurring developmental disabilities and mental illnesses.

5. Ensures the integration and coordination of services and service providers.

6. Ensures the shifting of the burden for navigating the complex and confusing behavioral health care system away from overwhelmed clients often poorly equipped to take on such a challenge, and onto designated and adequately trained personnel within the system itself.

7. Ensures comprehensive tracking and analysis of denials of services by responsible governmental agencies, and the exercise of adequate oversight of the BHOs contracted to manage the provision of covered services to those who are entitled to them. (The bureaucratic burden of doing so must be taken into account, and a careful cost-benefit analysis pursued, but it is clear that we currently have a sub-optimal level of such tracking and analysis in place, essentially “leaving the fox in charge of the henhouse.”)

8. Ensures a dedicated investigation and rectification of informal procedures by which services may be denied without any formal request for services ever being recorded, and thus no formal denial ever being issued.

9. Ensures that in-take personnel and other gate-keepers are adequately trained to record and follow up on all requests for services, to turn no one away on the basis of any peremptory assumption that clients seeking services are not entitled to services.

The structural factors and associated policy goals listed above fall into three categories: Gateway Problems (6-9), Service Provision Problems (4-5), and Underlying Structural Problems (1-3). The Gateway Problems are problems at the point of interface between clients and the mental health care system. They involve insufficient oversight of the formal and informal ways in which clients are refused services (7 and 8, respectively), and insufficient guidance and inaccurate information provided to clients seeking services (6 and 9, respectively). The Service Provision Problems are problems that affect access to services by dispersing rather than consolidating service provider expertise. They involve insufficient expertise regarding multiple diagnosis issues within individual service providers (4), and insufficient coordination of expertise among service providers (5). The Underlying Structural Problems are problems embedded in the administrative structure of Colorado Medicaid. They involve, collectively, an incongruence between the administrative structure for the delivery of mental health services, and the clinical reality of the delivery of mental health services.

Specific strategies for addressing the Co-Occurring Disorder Dilemma involve addressing specific combinations of the above policy goals for specific purposes. For instance, as Intercept Center’s success illustrates, by addressing the Service Provision Problems and one Gateway Problem -numbers 4, 5, and 9- local programs can dramatically reduce the Co-Occurring Disorder Dilemma on their own initiative (and with the support of their BHO). By concentrating and coordinating expertise in both mental illness and developmental disabilities, and ensuring that there is an open gateway to that consolidated expertise, a local program can distinguish itself even in the context of the other six unresolved structural problems.

Numbers 4, 5, and 9 can be addressed proactively, by any BHO or CMHC that chooses to take the initiative. Thus, significant local improvement in the provision of services to multiply diagnosed children can be accomplished even in the absence of statewide public policy changes. However, a sustainable and reliable statewide paradigm shift will almost certainly require overarching public policy refinements. And even such relatively successful local programs as Intercept are limited in the degree to which they can effectively address the Co-Occurring Disorder Dilemma by a lack of facilitating statewide policies.

The remaining Gateway Problems and related policy goals, 6-8, suggest a second strategic avenue comprised of direct advocacy for immediate and easily implemented administrative reforms. These do not require any major structural changes, simply superficial changes in policy that, for instance, provide clients seeking services with personnel competent to guide and inform them, and implement more diligent administrative oversight of the mental health managed care system.

Finally, the far-reaching statewide administrative structural changes conducive to eliminating or reducing the Co-Occurring Disorder Dilemma are summarized in numbers 1, 2, and 3, above. These would require significant legislative and administrative action, and are thus higher hurdles to clear. Progress on Underlying Structural Problems neither requires nor is a requirement of progress on either Gateway or Service Provision Problems. Long-term structural strategic goals and short-term immediately ameliorative strategic goals can be pursued independently and simultaneously.

A recommended comprehensive strategy for those who choose to act on this report, therefore, is to seek immediate widespread, either centrally directed or CMHC by CMHC, implementation of 4, 5, and 9, while simultaneously working toward both the superficial administrative policy changes suggested in numbers 6, 7, and 8, and the eventual implementation of long-term policy goals 1, 2, and 3.

A Survey of Specific Solutions

This section briefly examines examples of three different kinds of approaches to addressing The Co-Occurring Disorder Dilemma: 1) a broadly applicable and assertive social institutional approach (Medical-Legal Partnership), 2) a managed care-level administrative approach (Expanded BHO Contract), and 3) a flexible and accommodating provider-level administrative approach (The Medical Home Model). These three approaches are not mutually exclusive; they can be combined in part or in whole to form a comprehensive strategy for addressing The Co-Occurring Disorder Dilemma.

Medical-Legal Partnership: Medical-Legal Partnerships (MLPs) involve integrating lawyers into the health care team available to clients, to address the non-medical factors affecting their health. As The National Center for Medical-Legal Partnership (NCMLP) puts it:

Medical-legal partnership (MLP) is a new patient care model that aims to improve the health and well-being of vulnerable individuals, children and families by integrating legal assistance into the medical setting. MLPs address social determinants of health and seek to eliminate barriers to healthcare in order to help vulnerable populations meet their basic needs and stay healthy.4

One form of MLP is the inclusion of lawyers on a health care provider team to address exacerbating conditions that health care providers are neither qualified nor empowered to address, such as mold-infested housing aggravating the condition of an asthmatic child, or lack of food and heat creating health risks that cannot be resolved through medical treatments alone. In a sense, this is another reduction of “siloing,” such that the various kinds of circumstances that combine to create or exacerbate medical problems can be addressed in tandem with the medical treatment itself.

More generally, a Medical-Legal Partnership is the combination of advocacy and medical treatment, so that patients’ rights are protected in service to the provision of adequate health care that is not divorced from the broader social institutional context in which it occurs. As the above quote from the NCMLP website illustrates, such legal advocacy integrated into the “medical setting” could serve a vital role in placing sustained pressure on Colorado Medicaid’s administrative apparatus to address and resolve the structural defects that result in The Co-Occurring Disorder Dilemma. More broadly, the establishment of Medical-Legal Partnerships throughout Colorado’s health care system would provide institutionally integrated patient advocacy to address all such problems as they arise.

In the present context, a Medical-Legal Partnership would involve an alliance of behavioral health care providers and legal advocates working together to ensure that their clients receive the full range of behavioral health care services to which they are legally entitled, and to ensure that the services received are accessible, coordinated, and appropriate.

Expanded BHO Contract: One possible solution to the difficulties faced by families of multiple diagnosis children, favored by the Colorado Behavioral Healthcare Council (CBHC, the umbrella organization for the BHOs), would be to expand the state’s contract with the BHOs to include in their mandate responsibility and compensation for providing all covered services for all covered behaviorally related diagnoses, whether currently categorized as mental illness or in some other way (such as a by-product of a developmental disability). Another, similar solution would involve authorizing and equipping BHOs and CMHCs to provide all behavioral services, some covered by capitated Medicaid, and some charged to fee-for-service Medicaid, according to their billing codes. These solutions would address some of the factors contributing to the current systemic deficiency, but would leave many of the other contributing factors intact. As such, they are, at best, partial solutions.

Some advocates are concerned that these solutions would merely perpetuate the problem in a new guise, since the BHOs, intended as cost reducing intermediaries, are incentivized to deny services whenever possible. This may be a legitimate concern, but, when coupled with the Medical-Legal Partnership approach described above, the added vigilance thus provided might help to mitigate and counterbalance any overzealousness to deny services on the BHOs’ and CMHCs’ part. This combination might be a robust way to institutionalize, as a permanent feature of the Medicaid behavioral health landscape, a vehicle for negotiating the inherent tension between efficiency (i.e., cost-cutting) and protection of patients’ rights.

Medical Home Model: The Medical Home Model (sometimes called “patient-centered medical home,” or PCMH) involves a centrally coordinated, continuous and comprehensive system of care led by a primary care physician. Intercept Center (described above) incorporates some elements of the Medical Home Model, in which the program director coordinates with other service providers to deliver coordinated and comprehensive care (and educational services) to children in the program. As discussed above, using Intercept Center as an example, the Medical Home Model is most adept at addressing issues 4, 5, and 9 (cross-training of service providers, coordination and integration of services, and better assistance to clients in navigating the system). The Medical Home Model is often considered the best way to keep children with mental illnesses, developmental disabilities, and Autism Spectrum Disorder in the least restrictive environment, and provided with the most comprehensive and appropriate treatment plan.

In the context of reducing the effects of siloing in Colorado Medicaid’s delivery of behavioral health services, the Medical Home is a potentially essential partner to higher level solutions. If, for example, the BHOs’ contract were to be broadened to include management of care for all behaviorally related conditions, the Medical Home would be the ideal vehicle for coordinating and integrating that care. Thus, in one possible integration of these three approaches, the Medical-Legal Partnership could hold the BHOs accountable, while the Medical Home could implement their comprehensive mandate on the ground.


A combination of inherent financial incentives, excessive discretionary power by independent contractors, inadequate oversight, inadequately trained personnel, and inadequate availability of mandatory services helps to produce the gap in services experienced by children and adolescents with multiple mental health and developmental disability (or other “medical”) diagnoses. An administrative structure comprised of siloing in multiple, interacting ways (in terms of diagnoses, treatments, providers, and billing) obstructs rather than facilitates the coordination of services. And a lack of resolve among responsible agencies has left this problem largely unaddressed.

Previous attempts to close this and related gaps have proven insufficient. Protocols for clients with co-occurring DD and MI diagnoses, and co-occurring TBI and MI diagnoses, have done little to solve the problem. The Child Mental Health Treatment Act (CMHTA, or “HB 1116”), designed to provide access to residential treatment services without recourse to Social Services (which generally requires a Dependency and Neglect action, exposing parents to the risk of losing custody of their children in order to access vital services), has too often simply been disregarded or misunderstood. General awareness of the Co-Occurring Disorder Dilemma is widespread among advocates, affected clients, and individual service providers, but sustained pressure to resolve it has not yet been applied.

This difficulty in accessing necessary services, sometimes essential to the safety of the affected child and others in the child’s household, imposes an onerous burden on families already overburdened with the challenges of caring for children with multiple mental health and developmental problems. Solutions exist and can be implemented, ranging from the local and partial to the systemic and far-reaching. It is incumbent on all stakeholders to do their part to ensure that these solutions are implemented.


The research for this report consists primarily of meetings and conversations with 1) parents who have had difficulties accessing mental health services for their multiple diagnosis children; 2) professional advocates for those with mental illnesses and developmental disabilities (frequently also parents of mentally ill or developmentally disabled children); 3) the executive director of an advocacy organization for adoptive families (adoptive families being disproportionately impacted by this problem); 4) Mental Health program directors and service providers; and 5) governmental agency officials and contractors.

Among the governmental agency officials, nonprofit executive directors, advocates and service providers I interviewed, met with, or corresponded with in the course of researching this issue are Marceil Case (HCPF Mental Health Specialist), George DelGrosso (Executive Director of CMHC), Brian Turner (CMHC), Janine Vincent (Ombudsman for Colorado Medicaid Managed Care), Julie Reiskin (Executive Director of Colorado Cross-Disabilities Coalition), Mary Ann Harvey (Executive Director of The Legal Center), Pat Doyle (Rights Advocate at The Legal Center), Deborah Cave (Executive Director of Colorado Coalition of Adoptive Families), KimNichelle Rivera (Outreach/Research Coordinator for Empower Colorado), Judy Reaven (Clinical Psychologist and Director of the Autism and Developmental Disabilities Clinic at JFK Partners, an interdepartmental program of Pediatrics and Psychiatry at University of Colorado School of Medicine), Cordelia Robinson (Director of JFK Partners), Betty Lehman (then Executive Director, Autism Society of Colorado), Marianne Wamboldt (Chair of the Department of Psychiatry and Behavioral Sciences at Children’s Hospital), Brian Tallant (Program Director, Intercept Center, Aurora Mental Health Center), and Sarah McNamee (Early Intervention Service Provider, LCSW).

Among the documents I reviewed while preparing this report are the BHO Contract with the State of Colorado; the Ombudsman’s reports for 2009-2011; the written criteria for BHOs to follow in the treatment of co-occurring mental health diagnoses and traumatic brain injuries; the written criteria for BHOs to follow in the treatment of co-occurring mental health diagnoses and developmental disabilities; a 2009 Primer on the mental health safety net published by the Colorado Health Institute; a 2011 updated report by The Mental Health Funders Collaborative on “The Status of Mental Health Care in Colorado;” a 2004 Urban Institute report on “Access to Children’s Mental Health Services under Medicaid and SCHIP;” a 2008 Department of Health and Human Services Inspector General “Review of Colorado Medicaid Mental Health Capitation and Managed Care Program;” a 2009 DBH and WICHE Mental Health Program “Population in Need” study; a 2008 report commissioned by HCPF on “Colorado’s Medicaid Mental Health Services Program: Issues & Future Direction;” “The Maze,” a 2009 report by Colorado Covering Kids and Families on barriers to access to Medicaid and CHP+ faced by eligible children and families, with a recommendation for streamlined access; some working papers on the clinical issues involved; and various provider and advocacy group newsletters.

Requests for both qualitative and quantitative data regarding the Co-Occurring Disorder Dilemma were made to the Colorado Department of Health Care Policy and Financing (HCPF, the single agency which oversees the Colorado Medicaid program), the Colorado Ombudsman for Medicaid Managed Care, various advocacy groups, and the five Behavioral Health Organizations.

With the exception of the five Behavioral Health Organizations (BHOs) themselves, no one was able to provide any hard data on the prevalence of The Co-Occurring Disorder Dilemma. The various advocacy groups contacted were unable to provide any relevant data other than the shared impression that The Co-Occurring Disorder Dilemma is a pervasive problem. HCPF, in response to a CORA request, provided raw grievance and appeals reports which contained no information relevant to the issue at hand. The Ombudsman did not follow up on an offer to send me relevant data.

With the assistance of George DelGrosso and Brian Turner of the Colorado Behavioral Healthcare Council (CBHC), four of the five BHOs contracted by the state as managed care providers for Colorado Medicaid supplied me with data summarizing the reasons for all of their formal denials, resulting in a Notice of Action (NOA), over the last fiscal year and the first half of the current fiscal year, to child and adolescent Medicaid clients with multiple diagnoses. (Access Behavioral Care, the fifth, provided only the raw number of denials -25- for the 18 month period reported on, and no other information. I was assured that this was due to technical difficulties and not a desire to withhold the information. The CEO of ABC, Rob Bremer, conveyed his willingness, through Brian Turner of CBHC, to work with me one-on-one to fill in that information if I so desired.)

1 For the remainder of the paper, “child” and “children” includes infants through adolescents, until age 21.

2 For the BHO contract and exhibits, see

3 Quotes are taken from the ALJ decision reversing the BHO’s denial of residential services.


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I had an epiphany during a panel discussion of Lobato v. State of Colorado (the Colorado district court holding that the Colorado public school system violates the state constitutional requirement that the state provide “a thorough and uniform” public education system, and that vastly increased funding would be necessary to be in compliance with the state constitution) at the annual policy summit of CLLARO/CLF (Colorado Latino Leadership, Advocacy and Research Organization/Colorado Latino Forum): A constitution is unenforceable in a state that allows direct democracy, or what I call “government by plebiscite” (usually in the form of the initiative process, through which the polity can directly amend the constitution or pass legislation, entirely circumventing the state legislature), and therefore such direct democracy is ultimately incompatible with both constitutionalism and the rule of law.

The panel consisted of Lisa Calderon (the mother of one of the plaintiffs), James Eklund (an attorney for the state), Prof. Kelly Hupfeld (UC Denver Assistant Dean of the School of Public Affairs) and Liane Morrison (Executive Director of GreatEducation Colorado). Two of the panelists (Lisa Calderon and Liane Morrison) were advocates of and in agreement with the Lobato decision; one (Kelly Hupfeld) was academically fascinated by and apparently somewhat favorable toward the decision; and one (James Eklund) had the thankless and clearly not entirely heartfelt task of presenting the state’s opposition to the decision to an audience of progressives overwhelmingly on the other side.

The discussion revolved around the familiar issues of quality of education, deficiencies in funding, the constraining constitutional provisions of TABOR and the Gallagher amendment (which constrain Colorado state government taxing and spending power, and require the state to submit any proposed tax increases to the electorate for approval), and the question of whether the court overstepped its bounds and addressed what is properly “a political question” and therefore not within the competence of the court to address (a separation of powers issue). For the record, I’ll state that I’m agnostic regarding the central legal question involved in the decision (i.e., whether it was the court’s role to quantify in dollars what constitutes “thorough and uniform,” or whether that is a political question to be addressed by the state legislature), but wholeheartedly agree with the decision as a matter of public policy, and am glad to see it as a potential catalyst for much needed systemic change.

(As an aside, non-lawyers aren’t always familiar with, or interested in, the distinction between legal analysis, on the one hand, and social/political/economic public policy analysis, on the other. But this distinction is a vital one to constitutional government and the rule of law, and I think we’d be well-served to make it a more commonly understood aspect of our social institutional landscape, a goal, ironically, that could be more effectively met through a better-funded and designed public education system.)

Of the facets of Lobato directly discussed, the reference to TABOR and Gallagher comes the closest to identifying what I think is really the most essential issue implicated by this decision, though it was raised in too superficial and limited a way to identify that issue clearly. Some might take exception with this claim, arguing that the deficiency in school funding and subsequently in quality is the central issue, but I am not talking about the obvious and fairly easy to understand political ideological battle between those who, on the one hand, recognize that we have underfunded and underperforming schools, and those who, on the other, believe that less government is always better government (the latter delusion being one I address at length and in depth is a series of essays hyperlinked to in the fourth box at Catalogue of Selected Posts). Rather, I’m talking about the subtler and more structurally fundamental question of whether the rule of law and governmental accountability can exist in the absence of a government to be held accountable.

Though TABOR and Gallagher don’t eliminate government entirely, they do diminish its role sufficiently to raise this question, because compliance with the court order to dramatically increase public school funding is, in reality, virtually impossible for the government to accomplish without the electorate agreeing to it, and if there is no concise and identifiable population of people (e.g., the state legislature) that can be held legally accountable for refusing to obey the court order, how can the court order possibly be enforced? And if a court order mandating governmental compliance with the state constitution can’t be enforced, how can the state constitution be said to exist as a legally relevant and effective document? In other words, in circumstances when direct democracy makes the enforcement of court orders mandating constitutional compliance impossible, direct democracy is incompatible with constitutionalism and the rule of law!

Certainly, there are subtleties and complications involved in this analysis. Courts never have troops to enforce their orders, and I may be exaggerating to some extent the distinction between a state legislature choosing to ignore a court order and a populace choosing to ignore a court order. But, while the distinction may be less stark than I have made it, I think it still exists, and is still critically relevant: A state legislature consists of a very limited number of identifiable individuals who can be held directly responsible for violating a court order, while an entire electorate is comprised of a large population of ultimately anonymous individuals who can not be held directly responsible for defying a court order.

Many, perhaps most, court orders directed against governments require state expenditures to be carried out. Desegregation in the Civil Rights era certainly did, for example. Those who hold the purse strings are those who can be held responsible for either complying with or disobeying such court orders. If the purse strings are held too diffusely to hold anyone responsible, then such court orders are essentially meaningless, and therefore so are the laws they serve.

One can argue that while direct democracy is incompatible with a bill of rights which protects the rights of individuals from the vagaries of power, including the rights of minorities from the democratic power of majorities, it is not incompatible with a constitution, since a constitution need not include a bill of rights. A constitution might say, instead, that as long as majorities exercise their power according to a prescribed law, which is ultimately up to those same majorities to interpret, then the rule of law has been adhered to. But this is a sham rule of law, only marginally better than the “rule of law” created on the spot by the whims of a ruthless dictator (since even dictators hold power in part by dispensing favors to supporters who form with the dictator a ruling faction, and the tyranny of the majority is nothing more than such a faction that is at least one person –though never necessarily more than one person– larger than half the population).

In other words, such a “constitution” is merely a ruthless dictatorship of a bare majority over all others, always subject to the caprice of that majority, regardless of how that maj0rity might choose to exercise it. If such a majority decided to interpret its constitution to permit the execution on sight of everyone with green eyes, then that would be within the law as defined by this “constitutional” society. A law which protects only those who wield power, whether they are few or many, is no law at all, but rather naked tyranny.

In reality, constitutions not only protect minorities from majorities, but also majorities from themselves, since it is often the case that foolish fanaticisms, sometimes entirely organic and sometimes fabricated or fanned by and for a minority with resources to influence popular opinion, inform mass decisions that are self-destructive. A majority mobilizing its genius through a process of careful reflection and contemplation to guide and channel its future passions (i.e., by drafting a constitution) is likely to fare better than a majority which simply surrenders to its own ephemeral whims.

This argument is related to the argument by the plaintiffs in Kerr v. State of Colorado, a challenge to the constitutionality of TABOR under the U.S. Constitution, which “requires all states to have a Republican Form of Government embodied in a representative democracy” ( In the complaint, the plaintiffs reference Federalist #10 (by James Madison), which states:

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

But the observation in this essay goes beyond that of Madison: Not only does representative (as opposed to direct) democracy temper passions and protect minorities from majorities, but it is ultimately indispensable to the very existence of the rule of law!

“The Father of the U.S. Constitution” understood the defects of direct democracy, and condemned those who advocated for it. A careful analysis of the effects of direct democracy demonstrate that it is fundamentally incompatible with the existence of an effective constitution and the rule of law. Ironically, once again, it’s precisely those who arrogate to themselves the mantle of defenders of the Constitution who are the ones against whom it must be defended.

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(The following is a series of post on the Denver Post comment board for a recent tangentially related column by Tina Griego. The column, and the entire exchange of comments, can be found at This column brings to mind SB 126, Colorado ASSET. The students that Tina profiles here are similar to many that I encountered as an ELA (English Language Acquisition) social studies teacher in Denver Public Schools several years ago, most of whom were undocumented immigrants.

SB 126 has no fiscal note (it costs taxpayers nothing; in fact, it brings in revenue for our state universities). We offer kids a path to productivity rather than to desperation and criminality, the latter choice having a much different fiscal and social note for us to pay.

To highlight the inhumanity of our current attitudes toward undocumented immigrants (people whose only crime, like humans throughout history, was to migrate from destitution toward opportunity), I could go into the horror stories I encountered while doing a legal internship with Rocky Mountain Immigrant Advocacy Network and, briefly, with a private immigration lawyer, stories like that of a detainee in Park County who lost limbs due to a staff infection and inadequate conditions and treatment, or of a young diabetic deprived of his insulin by clueless guards while his mother was frantic and helpless over the fact that they were in effect killing her child just for having been taken across the border as a baby. There are others, as bad or worse, and it’s tempting to tell them, but my experience as an ELA teacher is more directly relevant.

Teaching ELA is an unbelievable experience. These are great kids. Most good teachers love their students, but there’s an extra innocence and sweetness about so many ELA students, that connection is really amplified, in both directions. I felt ready to do anything I could to help my ELA kids over the hurdles they’re facing. A few of them were among the very best students anywhere, in every way, the kinds of kids that excel both in terms of commitment and in terms of just plain good nature. Several of my ELA students, whose faces I can still see as I type this, were kids who I felt then, and feel now, simply deserved a chance to succeed in life. And, given that chance, they would pay back the society that provided it a thousand fold.

Tina Griego is right: These children, many of whom are the product of people who found there way here to give their children greater opportunities in life, offer us hope for the future. We, in turn, need to refrain from depriving them, and us, of that hope.

dlprobert wrote: It costs the taxpayers the money that is discounted giving illegals in-state tuition. It costs the schools those funds!! Don’t say it costs us nothing, how dare you!!
No, it brings revenue into the schools. In-state tuition, minus the public subsidy that other state residents receive (which is how the bill is drafted), brings in more revenue to the schools than is spent on the students who are paying it. Since in almost all cases they wouldn’t have been able to pay out-of-state tuition, there is no “opportunity cost” of not having charged them the higher amount. This is simply an economic fact.
dlprobert wrote: All of those horror stories you mention could be avoided, had they stayed in their home country an applied to come here legally, waited their turn, like real LEGAL immigrants do. We, the TAX-PAYING AMERICAN CITIZENS, are tired of the coddling of illegals. We want current immigration laws enforced!! We don’t need any new rules!
1) The waiting list for current citizens of Latin American countries is upward of 20 years, even with a close relative. There is no “turn” to be waited. The real alternaitve is between migrating toward opportunity, or not migrating toward opportunity. Humans, all through history, have migrated toward opportunity, the lines drawn in the sand by past conquests and wars notwithstanding.

2) Illegal immigrants pay more in taxes for fewer pay-backs than citizens and legal residents, on average. This is another economic fact.

dlprobert wrote:That is what this TAX-PAYING AMERICAN CITIZEN would like to see, not the same old blather your keep throwing at us about how unjust America treats illegals (it’s obviously not bad enough, they keep coming).
My “blather” about a commitment to humanity rather than a mere self-serving antagonism to it is “blather” more of us should be “throwing” at each other, far more often and consistently.
dlprobert wrote: Then let them wait 20 years…their other countrymen did!
Really? Do you know the history of North American migration and demographics, not to mention American immigration law? First of all, Texas and most of the American West and Southwest belonged to Mexico before it belonged to the United States, until the latter prosecuted a series of opportunistic wars and anexations in order to acquire it. A large portion of the Hispanic population of this part of the country is descended from those who resided here before it became a part of the United States; in other words, the border crossed them. The words “colorado, arizona, california, nevada, los angeles, San Diego, San Francisco, Santa Barbara, las vegas…” are all Spanish for a reason. (And the iconic American Cowboy is actually of Latin American derivation.)

More recently, we have utilized various immigration policies to bring in cheap labor when it served our purposes, and try to remove it when it didn’t, frequently dividing and disrupting families in the process. We created the flow of people from south of the border, cultivated it, trying to turn it on and off like a spigot at our convenience, another source of chattel for our exploitation.

Most of that population is predominantly indigenous in its ancestry, descendents of the Indians belonging to that larger population we conquered and displaced, and to a large extent simply massacred, to acquire the wealth we now enjoy (a fact that Hitler cited with admiration, as a justification for his own policy of “lebensraum”). That wealth, produced on stolen land, was produced for centuries with the assistance of imported and abused human chattel from Africa.

You’ll notice, also, that I had said that even those with close relatives have waiting times of over 20 years; those without close relatives can’t immigrate, period. And for those who are lucky enough to have a 20-some year waiting period, their main purpose, that of providing their children with better opportunities, is undermined by the wait, since those children will be adults, and will have to get in line themselves at that point!

America has many admirable qualities, and has, at times, strived to be a gift to humanity. But we are also burdened with our fair share of horrible acts of violence against others, and those you disparage now are both descended from our earlier victims, and are in many ways just the latest incarnation of the disposable labor we have so long cultivated and exploited.

dlprobert wrote: We have no more room in our budget for any more! I’m sorry, but the US can only handle so many immigrants. That is why we have immigration in the first place!
Actual economic analyses, rather than arbitrary claims in service to blind inhumanity, tells a different story. Most analyses hover around the conclusion that illegal immigration is an economic wash nationally, though the geographical distribution of costs and benefits is uneven. Undocumented immigrants pay taxes, and are denied some of the services they pay for. They solve a fundamental demographic problem in America (the worker-to-retiree ratio), perform some jobs that there really are not American workers willing or able to do (primarily in the agricultural sector), keep consumer prices low and perform a vital function in our overall economy. This debate, which we have had throughout our history, has never been about our capacity to absorb newcomers; it has always been about the bigotry and xenophobia of those who are already here.
dlprobert wrote:Illegals cost the state of Colorado over $1.5B annually….that’s a fact.
No, it’s not a fact. Those who have ever done any honest work in the field acknowledge first that we have no firm numbers, for a variety of reasons. Second, the range of conclusions tends toward zero. Third, you’ve obviously cherry picked a number that some propagandist generated for your convenience. It has absolutely no basis in reality.
dlprobert wrote: The money they earn is sent to their real home countries! In fact, the reason El Presidente came here cryin to Obama was, if we started enforcing our immigration laws, the loss of billions to the Mexican economy!
They send a significant portion of their earnings to their home countries, where their wives and children and parents are struggling to survive, while they live spartan lives working long hours here generating wealth in our economy. Improving those foreign economies is also good for our own, in a variety of ways, but, more importantly, it is good for humanity, which is the responsibility of all human beings, even the exceedingly fortunate ones who live in the world’s wealthiest nations.

In your orgy of belligerence, you’re anxious to impose a lose-lose scenario on all of us, hurting ourselves in order to punish others for daring to do what humans have done throughout human history. Let’s focus on what my original post was all about: Providing undocumented teenagers with a chance to succeed in our society. The alternative is not, as you imagine, deporting them: The costs of doing so, even ignoring the astonishing inhumanity of it, are far, far greater than any estimation of the costs of not doing so.

The real question is how to manage the costs of a 12 million strong undocumented population in America. You have a choice between pushing them into destitution, even those who are most capable and dedicated to success, breeding predators rather than contributing members of society, or, more intelligently, offering roads for success, by which we all benefit.

There are those in America, as in many other times and places, that are lost in a fog of ignorance and belligerence, viewing the world through a lens of neatly separate nations and races, of “us” and “them” defined along a variety of dimensions. Such people are the authors of genocides, of enslavements, of brutal conquests and exploitations and oppressions. Then there are others, also in many times and places, who recognize that humanity is undivided except by the lines in our own imaginations, that we share a fate, an on-going endeavor, and fare better when we face it with reason and mutual goodwill rather than with irrational belligerence and hatred.

It’s time for people to start choosing which of those groups they wish to belong to with more wisdom and compassion than many here are doing now.

dlprobert wrote: You said…it was war…and to the victor go the spoils!
Thank you for being so transparent about your orientation. You are steeped in the notion of violently despoiling others in service to yourself and your tribe; I am steeped in the notion of thriving, cooperatively, in service to humanity.

dlprobert wrote: I choose to be anti-illegal immigrant, like a majority of TAXPAYING AMERICAN CITIZENS are!

And I choose to be a reasonable person of goodwill, as all of us can and should choose to be.

dlprobert wrote: Look Steve, I am really not trying to be an a__

Fair enough. Then let’s have an informative discussion about all relevant considerations and factors.

First, it’s important to note that this conversation didn’t begin as a blanket defense of “illegal immigration.” My personal view, for a variety of reasons, is that the more open the borders (here and elsewhere), the better. This is beneficial to humanity on several levels: It leads to greater global wealth (by removing barriers to the free flow of the factors of production); it increases global distributional justice (by openning up opportunities to earn a larger piece of the pie for those currently with smaller pieces); it creates more cross-cutting ties among nations and peoples, thus preparing us to better deal with our proliferating global rather than national problems and challenges; it reduces the increasing disparity between the wealthy enclaves in the world and the impoverished mass of humanity, almost entirely by raising up those who are somewhat poorer rather than by bringing down those who are somewhat richer, which is not only more humane, but also helps avert a future that is otherwise guaranteed to be full of horrible violence aimed against those rich enclaves, which will be increasingly unable to stem the tide of humanity demanding global structural changes.

But one doesn’t have to agree with this view to agree that we have a practical problem concerning how to assimilate (or remove) the 12 million or so undocumented residents of this country. Removal, as I’ve already pointed out, is simply too expensive (even ignoring the inhumanity of it). By any calculation, the costs far, far, far exceed the benefits. Fiscally and economically, it is simply completely impractical. Added to that is the fact that you would witness something akin to the Nazi round-up of Jews in 1930s and 40s Germany if that were the path we choose to go down. We would, indeed, become a global villain, and would be historically remembered as such.

That’s what happens when people think primarily in terms of “nations” rather than in terms of “humanity.” The Germans of that epoch, you might recall, justified their actions by recourse to nationalism; they were concerned with the welfare of the German people, and with ridding Germany of a foreign element that they considered a burden on their national welfare. It was irrational of them; they couldn’t have been more wrong. And it is irrational of us; we couldn’t be more wrong today.

The reality is that we have a deep historical link to the people you misidentify as mere invaders. About a third of our contiguous territory was a part of Mexico before it was a part of the United States. Many Hispanic residents of that third are descendents of people whom the border crossed rather than of people who crossed the border. We have purposefully exploited the porous border to the south to our benefit, and have created a population that we consider inferior and disposable. “Legally” or “illegally,” they are a part of our nation and our society, and we have a moral oligation to them.

More importantly, for the purposes of this conversation, our own self-interest depends on assimilating those undocumented people. If we want to improve our control of the flow, so be it. But the notion that we should control it by punishing those who are here in order to make our country less attractive to those who aren’t is sheer folly, both because it turns us into something we should not be striving to be, and because it breeds an angry, rebellious, opportunity deprived shadow population that will only, as a result, impose a real cost and burden on our nation, rather than the imaginary one of today.

dlprobert wrote: America cannot continue with it’s handouts to people that are not in this country legally

The notion that those who come here illegally are greater recipients of “hand-outs” than other members of this society is not only mistaken, it is backwards. Yes, some social services (e.g., public education and emergency room treatment) are not withheld from undocumented residents of this country, but most are. They cannot collect on social welfare and economic security programs (e.g., medicaid, unemployment, welfare, social security, etc.). As a result, unlike American citizens and legal permanent residents, if they’re not working, they simply leave. There’s no point in being here, paying for a higher cost of living while receiving no income. So they are virtually all employed, always paying sales taxes and usually paying income taxes (since they generally need to use fake social security numbers to work) for programs that they can’t collect on. They make a vital contribution to the economy, which is why the labor market places such a strong demand on them.

dlprobert wrote: but it’s still ILLEGAL

There is legality, and there is morality, and there is reality. It was once illegal for a slave to escape from his or her master in this country, or for anyone, in any part of the country, to harbor such an escaped slave. In the name of that law, slave owners could send out slave hunters into non-slave states to recapture escaped slaves, and, abusing that law, those slave hunters often captured free African Americans living in free states and sold them into slavery in the south. Legality clearly is not the final word on “right” and “wrong.” So, those of us who recognize moral defects in current laws have a moral obligation to struggle to change those laws in order to cure those defects.

Beyond legality and morality, there is reality. The reality is that humans have always migrated away from destitution and toward opportunity, regardless of the nature or legal status of the invitation they may or may not have received. Jews ended up in Germany as a result of a diaspora, not a German invitation; does that justify the Holocaust?

We create our nations, give them geographic definition, and create laws by which to govern them, but we do not dictate the underlying dynamics of human existence. We live in a world of far greater global interdependence than nationalists would like to admit, in which the plight of others is and will be our own, and violently so tomorrow if we do not recognize it as morally so today.

dlprobert wrote: Those that won’t even try to assimilate…I have a real issue with that. I’m a veteran and when I went to a foreign country, I made it a point to learn the basics of the native language, not only to get along, but to also fit in.

Good for you. You are the exception among Americans, but not among those of other countries. I’ve lived and traveled abroad for over eight years of my adult life (including two stationed in Germany with the U.S. Army, and over two living in Mexico). I’ve known ex-pat Americans, and travelers and tourists, as well as those of other nations, and we are by far the most disrespectful, imperialistic sods out there. Many Americans abroad not only don’t know the language of the country they are in, but are downright offended when citizens of other countries, in their own countries, don’t know English. “The Ugly American” is a term that evolved in light of this dynamic.

As a veteran, I’m sure you recall the phrases “back in the world” and “going back to the world.” That’s how American service members refer to the United States, denegrating other countries (including European allies) by implying that they aren’t even a part of “the world.” America is the whole world in this formulation; other places are unreal, inferior, less worthy of recognition or acknowledgement. So, let’s not decry the imagined cultural insensitivity of those who come to this country and continue to speak their native language (or continue to speak the language established here before we forcefully anexed this region).

And, lets’ be honest: While some first-generation Hispanics who reside here don’t know much English, the impression that that is the  norm is reinforced by selective perception. Most learn more than “the basics” of English. I detect a bit of an attribution and confirmation bias in your above characterization: You didn’t claim fluency; might it be that your “basics” of those other languages, of which you’re so proud, represents a comparable level of language proficiency to the failure to learn English you detect in others?

There are basically two ways to see the world: In terms of “us” v. “them,” or in terms of humanity. We will all benefit in the long run, enormously, the more we gravitate toward the latter orientation and leave the former one on the dust heap of history, where it belongs.

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La “confluencia colorado” es una confluencia de culturas, de sueños y esperanzas. Es una confluencia de esfuerzos, todos ayudándose los unos a los otros. O así se espera. Es la confluencia de gente, de pueblos, de valores, de ideas. Es la confluencia de humanidad.

Quiero animar a los lectores (y escritores) hispanos a participar en este “blog,” o en español o inglés (o ambos idiomas). El nombre de nuestro estado es un nombre español, como todos ustedes saben. Refiere al color del Río Colorado, por el hierro en las rocas y, por la erosión, en el río también. El símbolo mas conocido del oeste, una parte grande de la mitología estadounidense -el vaquero- es mas hispano que norteamericano en sus orígenes, incluyendo el monte, el sombrero, y el pistolero. Debemos una deuda cultural a los hispanos que dominaron este hemisferio desde la conquista, y aún la sangre y las culturas de los conquistados está incorporada en las culturas hispanas, con tradiciones antiguas e indígenas.

La historia de nuestro continente y de nuestro país es una historia tanto de los hispanos (y gente indígena) que vivieron aqui antes de los gringos, como de los ingleses y otros europeos. La ciudad de San Agustino (St. Augustine) en Florida (establecido por los españoles en 1588) y Santa Fe, Nuevo México (1610) son entre nuestras primeras ciudades (ambas mas viejas que Plymouth Rock, establecido en 1620, y San Agustino es mas antigua que Jamestown, la primera colonia inglesa, establecida en 1607).

Los Estados Unidos nunca ha sido un país sin influencia hispana. Aún en sus raises mas profundas, es un país en gran parte hispano. Como dicen los hispanos del oeste frecuentemente, “la frontera nos ha cruzado.” La gente y el gobierno de los estados unidos se apoderaron de esta tercera parte del terreno del país por medio de una historia de mentiras y oportunismo. Los colonizadores estadounidenses los cuales colonizaron a Texas temprano en siglo XIX prometieron obedecer las leyes Mexicanas, pero después decidieron que preferían tener sus esclavos y su propia religión (ambos prohibidos por las leyes Mexicanas de esa época). La guerra de independencia de Texas, seguida por la anexion a los estados unidos, era un robo de terreno. Y la guerra Mexico-Americano siguiendo esa por un década era otro robo de terreno mucho mas grande.

Así es la historia: No es para quejarse ni para recuperar el terreno que debemos reconocer en la historia, sino para entender la relación histórica entre las culturas que constituyen a nuestro país, incluyendo las injusticias históricas. Porque el método de los conservadores aquí en este país y este estado es identificar a algunos grupos de personas como menos miembros de nuestra sociedad, como si pertenecieran a este terreno menos que los gringos. Y en muchas maneras, es completemente al revés.

Tenemos muchos desafíos en este país y este estado, no solamente la intolerancia en contra de los hispanos. Es mi deseo que todos nosotros, toda gente razonable y de buena voluntad, trabajen juntos como un pueblo, como una sociedad, mejorando la calidad de la vida para todos, y para todos nuestros niños y nietos y bisnietos. Por eso, los invito a todos ustedes que lean esto para juntarse conmigo en mi proyecto, que se llama “las políticas de razón y buena voluntad” (A Proposal: The Politics of Reason and Goodwill). En cualquier idioma, tenemos que recordar que la meta de nuestros esfuerzos como miembros de una sociedad debe ser alimentar y facilitar a “la audacia de la esperanza.” En cualquier idioma, que siempre entonemos “¡si se puede!”

Un error de la izquierda estadounidense siempre ha sido dividir nuestros esfuerzos entre varios intereses, sin reconocer y desarrollar la unidad del movimiento, la idea sencilla en su centro: Vivimos juntos en este mundo, una humanidad. Somos interdependientes, los unos con los otros, y todos con la naturaleza. El desafío de ser un ser humano, un miembro de una sociedad, un miembro de humanidad, es trabajar juntos como gente razonable y de buena voluntad, intentando mejorar nuestra existencia compartida. Así todos ganan.

Si se puede.

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Senator Bennet constantly impresses me with his understanding of nuances, with his awareness of social systemic complexity, and with his reluctance to reduce things to simplicities that they are not. In one speech in a small venue, for instance, I was struck by the simple phrase “…create a context in which it is more probable rather than less probable….” Rather than typical political bluster, feeding the audience whatever it wants to hear, he went to the trouble of capturing some of the complexity and nuance of governing. Rather than speak in absolutes, he spoke in deference to reality, and did so in a way which clearly engaged his audience.

Many (including me) were bewildered by Governor Ritter’s appointment of Michael, then DPS Superintendent, with a very thin political resume, to the Senate seat that was vacated when Ken Salazar was appointed by President Obama to be Secretary of the Interior. There is speculation, possibly accurate, that there were negotiations involving the president himself, who wanted to make sure that an effective and politically durable replacement for Salazar was chosen before making the Salazar appointment, and took an active hand in choosing Michael. That would only be a further recommendation of Michael’s talents, if President Obama had had any hand in his selection. But Governor Ritter tells a different story, which struck me as certainly at least somewhat accurate: That he (Gov. Ritter) had asked sitting senators, and others in positions to know, what qualities made for a successful U.S. Senator, and then compared the profile thus constructed with the list of people he was considering, concluding that Michael Bennet most closely matched the description.

But it hasn’t been an easy journey for Michael, despite having been appointed. He was wrongly cast by opponents, to the extent that opponents were able to make it stick, as someone in the pocket of big money interests. His votes in the senate, taken as a whole, don’t support that allegation, and most of the evidence used to support it is disingenuous. His rate-swap investment deal as DPS superintendent, for instance, which some use as fodder, was, according to the best informed accounts I’ve read, actually a good financial move, and preserved DPS’s long-term financial health better than any alternative would have.

In the Democratic primary, Andrew Romanoff (whom I also like and respect) made a (political) virtue out of necessity, and emphasized his refusal to take PAC money. To many, that was, and is, an admirable position to take. To me, it is based on a classic kind of logical fallacy, called a “levels of analysis error”. What is desirable on one level is not necessarily facilitated, and can in fact be undermined, by pursuing it on another, pretending that the world is simply the sum of such actions.

Most of us probably agree, for instance, that world peace is a laudable goal, that carefully implemented multilateral disarmament could certainly contribute to that end, and that we should support candidates who demonstrate an effective commitment to these understandings (as Michael does of campaign finance reform). But most of us probably also agree that an American policy of unilateral disarmament would neither serve these laudable ends, nor lead to a happy outcome for the American people.

Similarly, most of us probably agree that the role of money in politics is horrible, that campaign finance reform is a highly desired end, and that we should support candidates who demonstrate an effective commitment to these understandings. But we should also realize that unilateral campaign-finance disarmament in the domestic political competition between two broad visions for our country (conservative and liberal) suffers from the same defects as unilateral military disarmament does in the geopolitical and military strife among nations. It does not serve the desired end, and does not bode well for the camp that attempts it.

I use this example not to fight an old fight, but to illustrate what I consider the necessary combination of integrity and intelligence, a commitment to serve the public good, even when it means not yielding to the demand to make empty and counterproductive political gestures that undermine one’s ability to do so. Michael stayed on message during the primary, and stayed focused on the necessity of balancing political reality with idealistic goals. That’s not easy to do.

I’ve listened to Michael many times, and he never panders to his audience, never says what he thinks they want to hear at the expense of truths he knows they don’t want to hear. Sure, he couches hard truths in the most palatable way possible; that’s part of the skill set his job requires. But he isn’t willing to compromise the truth to win support. That takes integrity. It is abundantly clear to me that Michael isn’t running for office for personal glory; he’s running because he’s a very bright and talented guy who wants to do what he can to improve the world we live in and the quality of our lives.

But what separates Senator Bennet from the many other very intelligent and capable people who would like to be a U.S. Senator (none of whom are in the race against him) is a talent that the very best and most successful elected officials have, usually as a natural trait (though it doesn’t matter whether it is learned or inherent, as long as it is authentic), that many others, even with immense charisma and public speaking skills often lack: His ability to put anyone he is talking with at ease, to make them feel that they are in the company of someone who is just a humble, reasonable, well-intentioned person trying to work together with all others to get the job done. Bill Clinton was famous for that skill. President Obama is well known for having that skill. And Michael Bennet has that skill.

Not all politicians do. And it’s value isn’t just (or primarily) that you win over the electorate that way; it’s value is that you win over other politicians and captains of industry and agency heads and leaders of non-profits and activists and all and sundry others at the nexus of political decision making that way. It’s value is that that is the trait that makes someone effective in the inner-political arena, where decision-making occurs. It’s value is that those who have that quality are the ones who can get the job done.

In our few brief one-on-one interactions, I have always been impressed with Michael’s personal aura of humble, good-natured affability. Some might say, “sure, all politicians play that role,” but most of those who are playing it rather than are it, deeply and sincerely, with more concern for the welfare of others than for their own self-glorification, betray their actual priorities in various small ways. Some of them are wonderful people, with a very real commitment to the public interest, but if their ego is bigger than that commitment, you can usually tell, especially in one-on-one conversations. There are a few, and they are the best and most successful, whose special talent is to make each person they are talking to feel like the sole focus of their attention. Michael has that talent, and it is a talent that makes him the right person for the job.

I supported Michael in the Democratic primary against a very charismatic, very popular, very talented, and very deeply loved leader of the Colorado Democratic Party, the former Speaker of the Colorado House of Representatives, and someone, to his immense credit, who had generated deep and passionate loyalty among those who had worked with him and knew him. I didn’t make that choice because I thought Michael’s opponent was deficient, or would support an agenda that I opposed (I thought neither), but rather because, as impressive as his opponent was, Michael was more so.

As you might imagine, I support Michael with an incalculably greater sense of urgency against his Republican opponent, Ken Buck, a torch-bearer of Tea Party fanaticism, a person who is rapidly making a name for himself as a political chamelion of convenience by trying to back-pedal from the extreme (and clearly sincerely held) positions that won him the primary (in a contest of extremism with Jane Norton, who could not hope to keep up).

For the positive reasons of Michael Bennet’s formidable talents and qualities, and the negative reasons of who he is running against, we need to get out there, talk to our friends and neighbors, and ensure that Michael Bennet continues in his role as our junior U.S. Senator from Colorado.

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An article in the business section of today’s Denver Post titled “Colorado’s Economic Recovery Lags Behind Rest of the Nation” (, using only unemployment numbers as its measure of economic recovery, provided only the following comparison between Colorado and national unemployment rates:

Nationally, the seasonally adjusted jobless rate was 9.6 percent in August, up from 9.5 percent in June 2009. In Colorado, it was 8 percent in July, down from 8.6 percent in June 2009.
Huh? The only titles that can be generated by that statistic are “Colorado’s recovery remains ahead of the rest of the nation,” or “Colorado, though better off than the rest of the nation, still mired in high unemployment.” So, does this bizarre mismatch between the article’s title (and narrative position) and what it’s only statistical comparison actually indicates a product of the Post’s conservative agenda (exploiting the reality-inverting meme that our economic woes are the Democrats’ fault), or just incredibly sloppy journalism? Who knows.
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