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Once again, we have witnessed vast disparities in our criminal justice system. The death of George Floyd and many others before him have highlighted the racial injustices that has long plagued our nation.

This needs to end.

You may be asking how this is a disability issue.

The answer is simple.

People with disabilities are black, people of color, indigenous people, immigrants, detainees, refugees, members of the LGBT community and every religious group. We are interconnected.

Disability Rights Montana stands with those demanding justice. We believe that ALL people, including those who face oppression by systemic racism, are entitled to equal access to the opportunities and safety afforded to ALL members of our society.

We reject hate. We demand change.

As Desmond Tutu wisely said, “If you are neutral in situations of injustice, you have chosen the side of the oppressor.”

DRM is willing to be part of a broader conversation with all stakeholders to find solutions.

DRM is committed to continue our work to reform the criminal justice system through advocacy and legislation to the benefit of ALL.

In response to the Covid-19 emergency, MT DPHHS has submitted a series of amendments to Montana’s Medicaid waivers to help lessen the impact of the situation upon providers and those who receive their services. The most recent of these was an Appendix K request which included various requests for alterations to the way that Medicaid waiver services are provided. This included all three disability waivers in our system: the Big Sky Home and Community Based Waiver (“Big Sky”), the Montana Behavioral Health Severe Disabling Mental Illness Home and Community Based Waiver (“SDMI”) and the Montana Home and Community Based Waiver for Individuals with Developmental Disabilities (“0208″). We were given the opportunity to comment on the wavier application prior to submittal, and many of our recommendations were adopted.

The federal government approved the request on April 30, 2020. Significant changes are as follows:

• Waives prior authorization limits on the following services:
  • 0208 waiver – respite;
  • Big Sky waiver – companion, respite, personal assistance services and non-medical transportation;
  • SDMI waiver – homemaker chore services
• Permits the following services to be delivered in a participant’s home environment or alternative provider or community setting:
  • 0208 waiver – day supports and activities, retirement services, supported employment-follow along support and individual employment support, personal care, companion, personal supports, homemaker, residential habilitation;
  • Big Sky waiver – adult day health, day habilitation, supported living; and
  • SDMI waiver – adult day health services.

It also allows services to be provided in these additional settings: the private home of the participant or a family member of the participant; a provider owned or controlled or extended family home; the private home of a direct care provider; community center or designated community gathering center; hotel/paid lodging; newly rented room; other residential setting; or telework settings.

• Approves reimbursing “legally responsible persons” as caregivers for services that already allow a relative or legal guardian to provide. These are:
  • 0208 – day supports and activities, homemaker, residential habilitation, respite, companion services, personal care, personal supports, retirement services, specialized child care for medically fragile children, supported employment-follow along support, supported employment- co-worker support, supported employment- individual employment support, supported employment- small group employment;
  • Big Sky – day habilitation;
  • SDMI – personal assistant attendant, specially trained attendant.

• Expands provider pool by allowing any enrolled waiver provider to work in all three waivers.
• Temporarily extends deadlines for all training requirements for 60 days from the original due date.  However, all direct care staff should continue to receive training on the participant’s plan of care for whom they are providing support. Training on the plan of care must consist of basic health and safety support needs for that individual. Providers must continue to ensure that direct care staff are able to demonstrate competency in the skills and techniques necessary to perform their assigned tasks under the participant’s plan of care.
• Expands provider types for specialized equipment and supplies to purchase items from nontraditional vendors who have necessary items in stock when supply or cost impacts occur due to COVID 19 on a case by case basis.
• Suspends periodic licensing and quality reviews of provider agencies throughout the duration of the pandemic. Allow provider flexibility in daytime staffing levels as long as care quality is retained.
• Temporarily modifies processes for initial level of care for waiver eligibility to allow evaluations to be conducted via telephone or other interactive electronic communication.
• Allows for payment of services to support a participant when temporarily institutionalized in a nursing facility, swing bed, critical access hospital or acute care hospital for a COVID 19-related illness. This is for providing additional supports for communication, behavior and/or extensive personal supports and such services that are not covered in such settings:
  • 0208 – residential habilitation, day supports and activities, retirement services, personal supports, companion, adult foster;
  • SDMI – specially trained attendant, life coach.

• Adds or increases retainer payments for providers of services identified as habilitation services that include a component of personal care and/or personal care. Retainer payments shall be available when the participant is hospitalized or otherwise unavailable to participate in habilitative services for the duration of COVID 19 related absences. The retainer time limit will not exceed the lesser of 30 consecutive days or the number of days for which the state authorizes a payment for “bed hold” in nursing facilities. The services included are:
  • 0208 waiver – assisted living, companion services, day supports and activities, personal care services, residential habilitation, retirement services, supported employment follow along support, supported employment individual employment support, supported employment-small group employment;
  • Big Sky waiver – residential habilitation, post-acute rehabilitation services, supported living, adult day health, day habilitation, personal care services, private duty nursing;
  • SDMI waiver – residential habilitation, personal care services, specially trained attendant, private duty nursing.

Today we filed an emergency petition with ACLU of Montana to ask the Montana Supreme Court to protect prisoners with disabilities by reducing the number of people who are now in or who will enter Montana’s jails and prisons. The ACLU of Montana, together with the Beck, Amsden and Stalpes law firm filed the petition on behalf of Disability Rights Montana.

The novel coronavirus that causes COVID-19 is spreading exponentially across the country and the state. According to the petition, the Montana Supreme Court has the power to immediately reduce the number of incarcerated people in Montana in these extraordinary circumstances. Doing so would mitigate the mortal harm to incarcerated people with disabilities while also protecting other incarcerated people from undue harm, public health, and public safety.

According to public health experts, the two most important ways to prevent the spread of the highly-fatal COVID-19 are social distancing and frequent handwashing. For people in Montana’s prisons and jails, complying with those methods is virtually impossible. An estimated 32 percent of prisoners and 40 percent of those in jail report having at least one disability. These disabilities make them particularly susceptible to COVID-19. Further, when the outbreak reaches Montana correctional facilities, it is likely that care rationing programs that discriminate against prisoners with disabilities will be implemented, such as has already occurred in Washington State.

Also at higher risk of infection are the medical and correctional staff who come and go between correction facilities and their homes, potentially spilling the outbreak into communities across the state.

“With a virus this contagious and this lethal, the state has an obligation to act immediately,” said Bernadette Franks-Ongoy, executive director of Disability Rights Montana. “Without swift action, the ripple effect of an outbreak in correctional facilities will endanger everyone, hitting people with disabilities especially hard. Reducing the number of people in prisons and jails is consistent with the recommendations of public health experts and will save lives.”

The petition argues that subjecting non-dangerous prisoners with disabilities to the inevitable outbreak of COVID-19 amounts to deliberate indifference to prisoners’ health and safety and also violates the Eighth Amendment to the U.S. Constitution as well as the Montana Constitution.

The petition asks the Montana Supreme Court to reduce the number of people currently in custody — by reducing both those detained before trial  (currently about 60 percent of Montana’s jail population) and those already sentenced — and by taking fewer people into custody in the first place.

As of March 31, Montana had 198 confirmed COVID-19 cases, two of which are correctional officers at the Yellowstone County Detention Center. According to the petition, many of Montana’s prisons and jails are overcrowded, making it virtually impossible to control the inevitable spread of the virus in those facilities without reducing the number of incarcerated people.

“We’ve long been concerned about Montana’s overcrowded correctional facilities,” said Caitlin Borgmann, executive director of the ACLU of Montana. “This public health emergency serves as an important reminder about the dangers of overpopulated prisons and jails. If the state doesn’t act now to reduce incarceration levels, lives will be lost.”

The Montana Supreme Court has already recognized the threat of COVID-19 and issued a number of orders designed to slow the spread of the disease. Furthermore, Chief Justice McGrath has noted that it is “only a matter of time” before the virus spreads in Montana’s correctional facilities.

States across the country are taking similar steps to slow the spread of COVID-19. At least fifteen state and local court systems have already taken steps to limit incarceration during this crisis.

This petition to the Montana Supreme Court follows a letter that, the ACLU of Montana, Disability Rights Montana and other organizations sent to Governor Bullock, the Montana Department of Corrections, and other stakeholders across the state, imploring them to reduce the population of incarcerated individuals. While the state and some counties have made some changes, those efforts are simply inadequate to address the inevitable spread of COVID-19 in prisons and jails across the state.

“This is a dire emergency,” said Justin Stalpes, attorney at Beck, Amsden and Stalpes. “The response cannot be patchwork – the only thing that will stop, or at least slow, the risk of a COVID-19 outbreak in correctional facilities and communities is a swift and uniform state-wide response. Lives are at stake – we cannot afford to wait another minute.”

READ THE FULL PETITION