Legal Considerations and the Co-Responder Model

On May 25, 2022, President Biden issued Executive Order 14074, titled “Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety”. This article examines this decision through the lens of legal considerations and the co-responder model.

May 2023 D.O.J. Guidance

The Order directed the Attorney General and the Secretary of Health & Human Services to issue guidance on best practices for State, Tribal, and local officials in responding to and interacting with persons with behavioral health or other disabilities.

The guidance pursuant to this Order was published in May 2023 and titled “Department of Justice (D.O.J.) and Department of Health & Human Services Guidance for Emergency Responses to People with Behavioral Health or Other Disabilities.”

This Executive Order came in the wake of the national 2020 social unrest due to the unfair treatment of racial minorities and persons with behavioral health disabilities. Since 2020, many federal agencies, including the Health & Human Services Department’s Substance Abuse and Mental Health Services Administration (SAMHSA), have emphasized the need for cohesive guidance on law enforcement interaction with people in a mental health crisis.

This need comes from the unfortunate truth that individuals suffering from their mental health are more likely to have police interactions and more likely to be arrested than persons without mental health disabilities. While representing only a tiny fraction of the entire population, individuals with disabilities may account for 30 to 50 percent of incidents of police use of force. This disparity requires attention from federal, state, and local agencies.

Legal Background

The Americans with Disabilities Act (ADA), specifically Title II of this legislation, prohibits public entities from discriminating against individuals with disabilities, excluding them from participation in the entity’s “services, programs, or activities,” or denying benefits to these individuals based on a disability. The Act defines “public entities” as state and local emergency response systems and law enforcement agencies. These prohibitions are couched under the protection of “equal opportunity.”

Equal opportunity requires that people with behavioral health disabilities receive a health response in circumstances where similarly situated others would also receive a health response. For example, if a 911 dispatch center would send only an ambulance to respond to a person experiencing a heart attack, equal opportunity would entail dispatching a similar health-focused response in similar circumstances involving a person with a behavioral health disability.

In addition to the prohibition against overt discrimination against individuals with disabilities, public entities are also required by the ADA to affirmatively make “reasonable modifications” to their services, programs, or activities when necessary to avoid discrimination. Public entities are required to do so unless they can demonstrate that making the recommended modifications would “fundamentally alter the nature” of the service, program, or activity being offered.

The U.S. Supreme Court subsequently interpreted Title II of the ADA in Olmstead v. L.C. to include an “integration mandate.” The primary holding of this decision was the prohibition of unjustified institutionalization of individuals with disabilities. However, the decision also required that community-based services be made available to individuals with disabilities when “(a) such services are appropriate; (b) the affected people do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity.”

The May 2023 guidance offers a reminder to state and local agencies that public entities may violate the integration mandate if they lack sufficient community-based crisis services to prevent needless institutionalization (jailing) of people with disabilities. These community-based crisis services must include options for both emergency and longer-term care.

One method of complying with the integration mandate for emergency situations is using a “Co-Responder Model.”

Analyzing the Co-Responder Model as a “Reasonable Modification”

The 2023 D.O.J. guidance highlighted several available “reasonable modification” options for jurisdictions to adjust their standard emergency response systems to afford equal opportunity to people with disabilities. One method, in jurisdictions where the resources are available, is sending a mobile crisis team to respond in appropriate circumstances when a call involves a person with a behavioral health disability and there is no need for a law enforcement response.

It is important to note that the D.O.J. guidance does consider that jurisdictions vary widely in the amount of available resources. The most cost-effective method of complying with the “reasonable modification” requirement may be to train a sufficient portion of the law enforcement agency with appropriate crisis management training. Typically, this involves the officer going through CIT training. Crisis Intervention Team (CIT) Training is 40 hours of specialized training for uniformed law enforcement officers responding to calls involving mental health crises.

Another “reasonable modification” some jurisdictions adopt is the “Co-Responder Model.” The “Co-Responder Model” is a method of policing whereby both a law enforcement officer and a mental health worker respond to emergency calls as a unified team, ideally in the same vehicle or at the same time. In many locations, this definition has evolved to include Fire/EMS.

The mental health worker may be a peer support specialist or a trained mental health clinician. The “Co-Responder Model” is intended to give law enforcement agencies a different option for both initial response and final resolution of emergency calls involving an individual with a disability.

Specifics of how this model operates vary widely between jurisdictions. Most have structured the program so that an officer and paired mental health worker will ride together for their shift. Legal considerations on the co-responder model vary, some jurisdictions use them as “first on scene,” while others use them as an additional resource after initial contact. Some jurisdictions have used these teams city or county-wide, while others focus on high-call volume areas.

The “Co-Responder Model” was first utilized by the Los Angeles County Sheriff’s Department in 1991. This Model has since gained widespread approval and has been developed to support veterans and individuals suffering from homelessness, as well as providing support to those in mental health crisis.

Co-Responder Models are now being used in communities across the country, with some showing very positive results. After implementing this model, Johnson County, Kansas, showed reductions in repeat calls for service for the same individual and an increase in officers’ self-reported capacity to respond to individuals experiencing a mental health crisis. Elsewhere, first responders reported that co-response teams allow police departments to reduce time spent on scene and more efficiently respond to additional calls.

Strict Legal Considerations against the Co-Responder Model

The May 2023 D.O.J. guidance does a lot to define the scope of equal opportunity protections for individuals with disabilities and outline best practices for public entities to follow in interacting with persons with disabilities. However, some in the legal community feel the federal government must go further.

The D.O.J. offers broad leeway for jurisdictions to comply with federal disability rights. Perhaps the strongest statement from the guidance is that “Jurisdictions should not assume that the proper response to a crisis is always to send law enforcement, but instead should assess reasonable modifications to their usual practices where appropriate to afford equal opportunity to people with behavioral health and other disabilities.”

Several in the legal community, including the Bazelon Center for Mental Health (BCMH) and the Vera Institute of Justice, are urging the federal government to issue stricter requirements for state and local agencies in interacting with individuals suffering with their mental health.

These groups do not fully support using a “co-responder model” as they see it as still too reliant on law enforcement. In favor of this contention, BCMH relies on SAMHSA crisis care guidelines, which note that “even the mere presence of police can escalate crisis situations.”

BCMH argues that there is not enough evidence that co-responder models ultimately reduce the risk of physical harm to individuals with disabilities. BCMH claims co-responder models are built on the assumption that most behavioral health-related calls pose a high safety risk. Still, this assumption varies from community to community, and many have implemented unarmed crisis teams.

One main criticism against the D.O.J. guidance is that it is not backed up by significant financial investment to ensure that local jurisdictions can comply with this guidance. The D.O.J. acknowledges that most jurisdictions across the country are likely unable to fund a 24-hour mobile crisis team or keep mental health professionals on call 24/7. However, the guidance does nothing further to support financially struggling districts. Many communities are urging the federal government to expand grant awards for co-responder and mobile mental health crisis teams to put them in compliance.

In navigating the complexities of emergency response systems and ensuring equal opportunity for individuals with disabilities, the May 2023 D.O.J. guidance represents a significant step forward. By emphasizing the need for reasonable modifications and highlighting approaches like the Co-Responder Model, it acknowledges the importance of tailored responses to crisis situations. However, as legal experts and advocacy groups assert, there remains room for improvement. Stricter requirements and increased financial support are essential to address the diverse needs of communities and ensure effective implementation of these principles nationwide. As legal considerations on initiatives, like the co-responder model, continue to evolve the goal remains clear: to foster safer, more inclusive environments where everyone receives the support and care they deserve in times of crisis.