Browse questions and answers below on topics affecting treatment courts during the COVID-19 pandemic.
In March 2020, Carolyn Hardin, chief of training and research for NADCP, and Nora Sydow, principal court management consultant for the National Center for State Courts, presented a webinar to discuss treatment courts and COVID-19. Watch the webinar.
Below, NADCP staff summarize the webinar and answer follow-up questions from webinar participants on topics ranging from the legal implications of shelter-in-place orders to best practices for providing treatment, including remote treatment, while these orders are in place.
Shelter-in-place orders are designed to protect the public from the contagious and potentially deadly novel coronavirus (COVID-19). Treatment courts that issue directives requiring participants to participate in program activities, such as appearing in court, appearing at the probation office, or reporting to a drug testing laboratory, in contradiction of emergency directives issued by the federal Centers for Disease Control (CDC) and state and local and governmental agencies, face potential legal liability.
Criminal justice agencies that have denied medical treatment have been found to be in violation of the Americans with Disabilities Act, the Rehabilitation Act, the Eighth Amendment and due process protections. See Estelle v. Gamble, 429 U.S. 97 (1976) in which the U.S. Supreme Court held that “Denial of medical care may result in physical torture or lingering death or in less serious cases, needless pain and suffering for no penological purpose.” See also Pesce v. Coppinger, 2018 U.S. Dist. Lexis 199547 (D. Mass. Nov. 26, 2018), where the federal court in Massachusetts ruled that a jail’s policy to deny methadone access is sufficient to establish deliberate indifference to a sufficiently serious medical condition and violates the Eighth Amendment prohibition against cruel and unusual punishment. Supreme court rules in many states have either closed or severely restricted court business. Judges violating these rules could face disciplinary actions.
Ordering treatment court participants to engage in activities that are prohibited by COVID-19 governmental mandates is likely to be seen as denying medical treatment, under the reasoning in the above cases.
In summary, treatment courts should follow the recommendations of the CDC and state and local governmental directives. We are not epidemiological professionals. During these uncertain times, treatment court professionals should not be placing participants, team members, and their families at risk of contracting COVID-19. Treatment courts that fail to follow these guidelines do so at their own peril.
Is verbal consent for release of information okay during this time? Does a signature need to be obtained for a release of information in order to share treatment information?
The Substance Abuse and Mental Health Services Administration (SAMHSA) issued specific guidance in response to the coronavirus pandemic, stating that 42 CFR Part 2 (the Substance Abuse Confidentiality Regulations) permits verbal consent, instead of written consent, during a “bona fide medical emergency.” The guidance further states that treatment providers are the ones to determine whether a bona fide emergency exists for purposes of providing needed treatment. Read SAMHSA’s response.
The federal Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced that it will exercise its “enforcement discretion” and waive potential HIPAA penalties for violations related to remote health or telehealth during the coronavirus crisis. It applies widely to FaceTime, Skype, and other conferencing platforms. Read the HHS notice.
What are some best practices for protecting the privacy of our clients when conducting treatment or check-ins virtually?
Here is some practical advice for dealing with this issue:
- All group participants should understand and commit to ensuring that no one other than group members can hear or see the virtual group. Group members should be required to sign (or indicate through email, text, or verbally) something committing to this.
- All group participants must agree in writing (or through email or text or verbally) to participate in the virtual group—understanding that we can’t guarantee that non-group members aren’t listening. We are relying on group members to act with integrity and protect the privacy of the group—even if it means using their phones to join the group from their cars or outside where family members can’t hear.
- If any group participant is not comfortable being a part of a virtual group because of the inability to verify who’s listening, that member should be excused from participating without penalty and an alternative should be employed, such as providing virtual individual sessions supplemented with attendance at virtual anonymous support groups.
- Group participants who are especially concerned about privacy should be given the option to join calls with voice instead of video. Video calls are far better and much more useful for therapy, but it may be an option for those who are especially concerned.
- Only first names should be used during virtual sessions.
While there are plenty of platforms for working with clients virtually, Zoom offers some extra guidance on keeping sessions private and free from unwanted participants. Read the guidance from Zoom.
What are some suggestions for handling those participants who are considered AWOL and requesting bench warrants? It is difficult to know whether the participant has actually absconded from the program or is not reporting due to the current uncertainty about being told to stay home.
Judges may consider the following questions before issuing a warrant:
- Has the participant moved from the reported residence without letting the team members know where he or she is living?
- Is the participant responding to phone calls?
- Is the participant working or caring for children and family members?
- Is the participant attending treatment or staying in touch with his or her treatment provider?
- Has the participant engaged in criminal activity? For example, has the participant been arrested for a new charge?
- Is the participant engaging in behaviors that threaten public safety?
- Does law enforcement risk possible exposure to the virus in the process of serving a warrant/incarceration?
Issuing a warrant is not recommended just because the participant has relapsed, especially when treatment court team members have maintained contact. In areas with shelter-in-place orders, the participant may stay in touch through phone calls, Skype, or some other electronic means.
Remember, there are collateral consequences associated with arrest and custody. Courts are operating at reduced capacity. As a result, the participant may be in custody for a period of time before he or she sees the judge. As always, judges should balance the need to apprehend the participant against the cost of incarceration, such as loss of Medicaid, leaving children without a caregiver, loss of housing, and perhaps most importantly, loss of hope.
Those with low cognitive levels are having difficulty understanding stay-at-home orders and may not have the ability to easily understand internet or virtual Narcotics Anonymous meetings or other virtual means of staying in touch. Do you have any suggestions for successful creative approaches?
Explaining stay-at-home orders to participants with disabilities, particularly those with intellectual disabilities or developmental delays, or with brain disorders such as traumatic brain injury (TBI), can be challenging. Here are some suggestions for explaining stay-at-home tactics and social distancing without isolation:
- Encourage the use of support networks that are available, such as mentors and sponsors. Enlist them to help with virtual support groups as well. If technology is an issue, social contact, even telephone contact, can be enough. Telephone recovery support is a common practice in peer-based recovery support services and translates well in times where safety is the priority. SAMHSA has a national helpline to help individuals find services: 1-800-662-HELP (4357).
- When talking to participants with cognitive difficulties, it is crucial to provide them the information they need without talking down to them or sensationalizing the situation. It is also essential to break down the situation in steps that can be understood:
- Start by explaining the COVID-19 virus.
- Explain how it is transmitted and what steps to take to prevent transmission.
- Finally, explain the importance of social distancing.
After every explanation, have the participant explain it back to you. If his or her interpretation seems confusing or the participant doesn’t seem invested in the account, re-explain in a different way.
- Using multimedia to communicate can be useful, as not all participants are going to have the same learning style or cognitive ability. Simple analogies, storyboards, or pictures could be used in a way that the participants can understand.
- Use motivational interviewing and discuss how the participant can better adapt to the stay-at-home situation. Help him or her develop safety plans to alleviate the stress and boredom that can occur. Remember, if participants can come up with a plan on their own that fits their lifestyle and status, that is going to be better for them and make it more likely that they will follow the plan.
Wayne State University offers several tools, including videos and glossaries, to use when explaining the COVID-19 pandemic to at-risk populations.
What should be done for participants who cannot complete the work requirement due to stay-at-home orders? Should they still be able to advance for that week if they perform all requirements that they are able to?
Obviously, participants can never be held accountable if circumstances beyond their control cause them to be unable to complete a requirement. One possible way to address this is to allow the individual to advance if he or she has accomplished all other requirements, but with the caveat that this will be reviewed once the pandemic orders are lifted and employment becomes accessible once again.
It’s worth noting that participants who are complying with the stay-at-home orders should be given tremendous praise for following structure (which they are often not accustomed to doing). This shows that they are not being defiant of authority figures and are displaying positive moral values. Like all aspects of treatment court, positive reinforcement is key to overall behavior modification.
What policies are in place for people who are currently incarcerated on a 60-day probation violation but need to be seen and have a determination made during the stay-at-home period?
Ultimately, participants facing possible revocation of probation are entitled to constitutional due process protections. Some jurisdictions may consider probation violation hearings an essential function, especially when the participant is in custody. It is recommended that treatment courts address probation violation hearings in accordance with local court rule and/or the state’s supreme court orders. The court may consider holding the hearing through video arraignment equipment that is available in many jurisdictions.
How are other jurisdictions handling releases from jail and prison—nonviolent offenders, misdemeanants, etc.? What about the treatment court population, which may be highly likely to use substances and be homeless?
During this pandemic, courts, community corrections, and case managers should provide reentry support to clients, including ensuring available housing and reconnecting clients to virtual treatment sessions, sober support groups and needed social services.
Is there any consensus on drug court participants who are in jail? Jails are particularly vulnerable to the outbreak, yet many of our judges are finding the clients to be a danger to themselves. Should they be released?
Treatment court judges cannot hold participants in jail for their own good. Federal and state appellate courts have held that holding individuals in jail to prevent possible use or overdose is not constitutional.
Please pay attention to this principle. Preventive detention is unconstitutional. Courts cannot jail participants while waiting for a treatment bed date without basic due process protections. (Due process rights are the same as those governing probation violations.)
Legal challenges can be brought pursuant to the following:
- The Sixth Amendment provides the right to a speedy and public trial. Arrested persons cannot be detained for extended periods without a trial.
- The Eighth Amendment allows for reasonable bail and prohibits cruel and unusual punishment.
- The Fourteenth Amendment guarantees due process of law.
- Jail is not treatment.
- There is no evidence that preventive detention reduces crime, provides treatment for substance use disorders, or instills fear.
The Seventh Circuit Court of Appeals reviewed whether a treatment court had violated participants’ due process rights by holding participants for lengthy periods of time without due process. “Unfortunately, the drug treatment court in Clark County was not one of the success stories. Under the stewardship of Judge Jerome Jacobi, the court ran roughshod over the rights of participants who frequently languished in jail for weeks and even months without justification. The jail stays imposed for noncompliance [and awaiting placement in treatment facilities] were arbitrary and issued without due process.” Hoffman v. Knoebel, 894 F.3d 836 (7th Cir. 2018). The court was shut down and the judge was removed from office.
The National Institute of Corrections (NIC) offers a wealth of information about current management and response to COVID-19. Read the NIC’s guidance.
The Centers for Disease Control and Prevention offers additional guidance on the management of offenders during this pandemic. Read the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.
We are having issues with individuals in our jails that are screened and require inpatient-level treatment not being released to their treatment centers and the jails wanting to release into the community because they are typically "nonviolent offenders." What are some options or ways to protect this section of clients that are ready to seek treatment but will need extensive oversight?
Since each level of need differs and is unique from individual to individual, a suggested approach when expressing concern for a particular detainee’s release and discharge plan is to convey the concern to the appropriate party. Frequently, the relevant party is a social worker, discharge planner, or correctional case manager employed in the jail setting. You want to ensure that this person understands your concern and request that a case management plan be developed that addresses both treatment and monitoring upon release. If the detainee is on probation or pretrial supervision, it is also suitable to contact probation or pretrial officers to share your concern. If necessary, you may be able to assist in connecting these officers with jail discharge staff.
In addition, provide overdose education, including naloxone, upon discharge into the community. SAMHSA recommends ready access to naloxone for those considered at risk for overdose. This includes those who have recently been released from incarceration. For information on where to access naloxone and overdose prevention in your state, contact your state’s opioid treatment authority.
Any ideas for transporting clients from a jail facility to the program? Specifically, for creating an exit protocol that includes screening for symptoms of COVID-19 when facilities are not currently requiring this upon release to the community?
This would be a protocol established by the jail in consultation with the state’s department of health and sheriff’s department or other law enforcement. Because this situation is evolving, you should contact your local jail facility, law enforcement agency, or department of health regarding the procedures they are likely to implement under these conditions.
We have people in jail waiting to be admitted to our treatment court program. We don't want to leave them in jail with the risk to their health, but we are concerned with letting them out when services are not as rigorous as usual. What should we do?
Jail should not be used in place of community treatment, nor should it be used to keep someone safe from what others speculate could potentially happen to them. It is a violation of a participant’s due process rights to hold them in jail for what is perceived to be their own good.
Do you recommend home detention for juvenile drug court participants? That way we can put more liability on the parents to ensure that they keep their kids home.
Juvenile treatment court programs should not use home detention as a blanket response to COVID-19 merely due to a reduction in court oversight and “eyes on” supervision during this pandemic. Courts must follow their detention statutes when using home detention. If a court elects to use home detention during this pandemic, the program must be prepared to handle violations in a universally safe and precautionary manner.
What are some suggestions to help or treat participants with severe and persistent mental health diagnoses when isolation can lead to increased psychosis symptoms and suicidal ideation?
This is a question that is best addressed with the client’s individual therapist or treating provider, as each individual’s treatment plan and circumstances will vary. With that said, an option is to have to peer recovery services or client advocates reach out with regular telephone recovery support.
What are best practices for mental health court, which obviously has unique challenges with its participants?
Continue following state and local guidelines for the safety of the participant and community, while supporting the needs of the participants as you are able.
Should we distribute naloxone kits to those at highest risk of opioid overdose?
Unequivocally yes. For questions about how to obtain naloxone, contact your state’s opioid treatment authority.
Additionally, Next Naloxone is a project that works to provide communities with access to naloxone through resourcing, training, and distribution. See what’s available in your area through Next Naloxone.
Are there some practical ideas for timely sanctions for violations if community service, work crew, and similar options are not available?
Treatment courts should not expect participants to engage in activities that are prohibited. The court may consider modifying community service or work crew assignments so that the participant does not need to leave his or her residence.
The jail does not want treatment court participants who are sanctioned going into their jail and out a few days later. How do we keep the individuals on target during the crisis?
Generally, now and in normal operations, relying on jail to change and maintain behavior change is a disservice to the participants.
The science and research are clear:
- Punishment changes behavior only so long as the punishment’s contingency is in place.
- Jail does not teach the skills necessary to obtain and maintain recovery.
- Jail is not treatment.
- Jail is disruptive of the forward incremental progress the participant is making.
- Jail reinforces that the participant is a “failure and cannot maintain recovery.”
- Jail reintroduces the participant to criminal associates.
For more, review Volume I, Section 4, of NADCP’s Adult Drug Court Best Practice Standards. Read the standards.
What are some incentives that can be given to reward good or compliant behavior?
The following are some ideas:
- Verbal approval, praise
- Certificate signed by the judge that commends the participant for
- Staying in touch
- Completing homework
- Doing some extra work study online
- Helping others
- Working as an essential employee (for those participants who hold this type of job)
- Checking in with the participant by phone to encourage and offer support (not judges)
- Computer check-in: Just listening and caring is an incentive
- Gift certificate (emailed or mailed)
Is it recommended that we not admit new participants if treatment options are currently limited to nonexistent in our local community?
As with any referral to treatment court, the team should review the risk/need and treatment recommendations for the client. Depending on the current needs of the client, teams may then decide if the current structure and operations of treatment can best match and support the needs of the client.
Is there a specific platform being used by peer support to provide support meetings and check-in volunteer support meetings?
Several organizations and agencies have compiled lists of virtual recovery resources:
My drug court judge is calling drug court participants and probationers in an effort to ascertain their well-being and to reinforce the court's concern for the participants and their recovery. Is this advisable?
By: Hon. William Meyer (ret.), NDCI senior judicial fellow
Such ex parte contact is probably problematic and in violation of the American Bar Association's Model Code of Judicial Conduct.
As observed in The Drug Court Judicial Benchbook (§10.9 NDCI 2017 update, page 205):
The judge may show concern about a participant's progress in recovery even to the point of celebrating a participant's success - but the judge must extend the same quality of engagement and concern to each participant. Such engagement must be in the context of judicial proceedings. In one case, a judge was sanctioned for meeting privately and individually (sometimes at their homes) with probationers. The judge justified a portion of his conduct on his sincere concern for the welfare of addicts and their progress. The Nebraska Supreme Court was unpersuaded and found that the judge's conduct constituted a violation of [American Bar Association's Model Code of Judicial Conduct] Canon 1 (uphold integrity and independence of judiciary) and Canon 2, in that the judge failed to act in a manner that promotes public confidence in the impartiality of the judiciary. See In re Jones, 581 N.W.2d 876, 876 (Neb. 1998).
More recently, the Oregon Supreme Court suspended a veterans treatment court judge for three years for ex parte contacts and a lack of candor. See In re Day, 362 Or. 547, 636, 413 P.3d 907 (2018).
Although the conduct of the judges calling their drug court participants during a time when the court is not able to hold sessions is exponentially less egregious than the cumulative and repeated behavior of judges Jones and Day, it nonetheless violates the ex parte strictures of the Model Code of Judicial Conduct, particularly Rule 3.9(A) (prohibiting ex parte communications). I would recommend that the judges cease this behavior or get an opinion from their judicial ethics regulatory authority approving such conduct.
How should we support our participants if or when they get a government stimulus check?
Treatment courts should include budget management with participants that includes educating them on how to set up a bank account, create a budget, and build a long-range plan for the money. Help them understand that recovery is the key, not a temporary fling with some newfound cash.
We have a few participants who are being kicked out of sober living due to rule infractions rather than substance use. During these times when court evictions are suspended and mortgages are not being defaulted on, do you have any suggestions as to what we can say or do to prevent these people from being kicked out?
Abstinence from substances is, of course, a distal (long-term) goal, whereas following standards of sober living should be proximal (more accessible to attain in the short term). Your concern should be why your participants are not following the rules of the sober living environment. Simple things such as missed appointments, breaking curfew, and not following the rules of a sober living home could be indications of “lack of structure” and possible relapse warning signs.
Moreover, recovery housing often operates outside of the traditional treatment and supportive housing systems. This often results in inconsistencies in policies and procedures. Many states have enacted both recovery housing standards and resident rights. Therefore, these homes could be subject to tenant, federal Fair Housing, and Americans with Disabilities Act regulations. It is best to explore the situation with your state and local authorities to determine whether the resident’s rights have been violated.
Can you expand on technology sites to use with clients? What actual resources do you suggest?
There are no platforms that are better or worse to use than others. Looking at guidance from the HHS and other federal agencies, most platforms familiar to providers are acceptable, safe, and legal to use under HIPAA during this time.
From HHS guidance:
Covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype, to provide telehealth without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency. Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.
Under this Notice, however, Facebook Live, Twitch, TikTok, and similar video communication applications are public facing, and should not be used in the provision of telehealth by covered health care providers.
Covered health care providers that seek additional privacy protections for telehealth while using video communication products should provide such services through technology vendors that are HIPAA compliant and will enter into HIPAA business associate agreements (BAAs) in connection with the provision of their video communication products. The list below includes some vendors that represent that they provide HIPAA-compliant video communication products and that they will enter into a HIPAA BAA.
- Skype for Business / Microsoft Teams
- Zoom for Healthcare
- Google G-Suite Hangouts
- Cisco Webex Meetings / Webex Teams
- Amazon Chime
- Spruce Health Care Messenger
If our treatment provider is still open, are we able to send our participants there for screening?
That is dependent on state and local restrictions and the treatment provider’s policy and practices at this time. Many providers have implemented processes to engage with clients through telehealth services. It is best to connect with your local providers to determine how best to meet your clients’ needs during this unprecedented time.
What are the pros and cons of referring or transferring clients to providers using telehealth therapy? Do the benefits of maintaining connection to treatment outweigh the costs of transferring and possibly starting a new program?
We know there is a significant body of research supporting better outcomes for clients in treatment when they have a positive alliance with their providers. That said, we are in unprecedented times where a transfer may be necessary. As with all therapeutic relationships, it is important for the provider to create an alliance with the client by reaching an agreement on goals and tasks.
If treatment is being conducted remotely, what therapeutic adjustments do you recommend?
First and foremost, know the rules and regulations regarding telehealth services for the clinical practice. Under the current circumstances, many state and local regulations, including payer options, have been adjusted to allow for quick expansion of and access to telehealth services.
Second, allow for flexibility. For many, this is already a trying and chaotic time, so be aware of barriers and complications to this level of service, including lack of privacy, responsibility to care for others, and/or lack of access to adequate technology.
What are the pros and cons of courts referring to providers offering telehealth?
Telehealth can offer improved accessibility and efficiency of service, resulting in improved outcomes. The disadvantages include equipment and technology needs, as well as costs associated with the service.
Prior to the COVID-19 pandemic, policies and standards for telehealth had not been streamlined, making it difficult for clinicians and providers to implement telehealth. Under the current circumstances, many state and local regulations, including payer options, have been adjusted to allow for quick expansion of and access to telehealth services.
Should we not require medical verification during this time for missed court or appointments?
Because state and jurisdictional requirements vary at this time, it is important to continue to monitor and follow the recommendations of your state and local authorities.
What suggestions do you have for ensuring medication compliance by mental health court clients?
Under the present guidelines in most states and localities, you cannot ensure medication compliance, so routine and normal practices that you would typically implement are not applicable during the current crisis.
A list of suggestions, both short and long term, is available through the publication Treatment Courts and COVID-19: What to Consider During a Pandemic.
How do we balance the pandemic with the opioid crisis? How should we respond to opiate-positive tests in stay-at-home states?
Courts should monitor SAMHSA’s “Guidance for OTPs” on its Coronavirus (COVID-19) site.
How do you handle sign-in sheets for group in telehealth settings?
Each treatment provider will have its own policy concerning how sign-in sheets are completed in a telehealth modality. The underlying principle should be that all group participants must agree in writing (or through email or text or verbally) to participate in the virtual group.
The information provided herein is informational only and is not intended to be a substitute for professional legal or medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. The appearance of external hyperlinks does not constitute endorsement by NADCP of the linked websites, or the information, products, or services contained therein. NADCP does not exercise any editorial control over the information you may find at these locations, nor does NADCP make any representation of their accuracy or completeness. Please contact those websites with any questions.
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