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| Tara Kunkel |
In the spring of 2020, as a result of public health measures designed to slow the community spread of COVID-19, judicially led diversion programs throughout the U.S. implemented remote court hearings and virtual treatment services.
"Judicially led diversion programs" is an umbrella term that encompasses drug courts, opioid courts and recovery-oriented compliance dockets. While these models differ in design, they share the common features of early intervention, ongoing supervision, consistent judicial oversight, and a nonadversarial team-based approach with an emphasis on providing substance use treatment and recovery support services.
COVID-19-era changes show that the digital divide is a real thing and a one-size-fits-all approach is not the answer.
Court users are a complex customer base with different needs and varying perspectives on how they want the courts to meet those needs. We must figure out how to incorporate their voices into the decisions we make about accessing courts and services.
In collaboration with the National Center for State Courts and Wayne State University, my firm recently conducted a large-scale, national examination of virtual practices. We initiated the study in fall 2020, six months after virtual services became common practice in judicially led diversion programs around the U.S.
The goal of the evaluation team was to understand the experiences of both program practitioners and program participants with this new way of doing business.
Getting the perspective of program practitioners — including judges, program coordinators, treatment providers, case managers and community supervision officers — also helps give insight into how well the process is working for the members of the public who use the programs.
The results from the preliminary study indicated that about half of the court team members indicated high support for continuing to hold virtual court hearings.[1]
Practitioners who preferred virtual court hearings often highlighted the benefits they saw for program participants. One respondent noted:
Virtual appearances make it possible to allow participants a shred of normalcy in their lives as we help them achieve their goals. If they are scheduled to work on a regular court day, being able to call in on a break means they can still appear and work.
Another benefit is specific to rural communities, where the growth in virtual services extends the number of available treatment providers beyond the geographic boundaries of the community.
Similar to the preferences expressed about court hearings, nearly half of the treatment staff indicated a high level of support for continuing virtual treatment.
Treatment staff tended to focus on the flexibility of having options for different program participants. For example, one clinician noted:
For some of our client population, we have seen increased engagement, attendance, and progress with virtual treatment. Other clients did not respond well to telehealth and started to disengage. They had to be shifted back to in-person services.
More than 75% of the court team members felt there were barriers for program participants. Access to technology, access to Wi-Fi/internet and technology skill level were among the barriers reported for program participants.
This led to a split between those who support continuing virtual services after the pandemic and those who don't. That is, the judges, court staff and treatment providers who believed participants faced obstacles when accessing virtual services were less likely to support continuing virtual programming than those who did not perceive these obstacles.
The concern of these professionals highlights the importance of ensuring court users have a role in that conversation and that we don't overestimate or underestimate the needs of the customer base.
Beginning in March 2021, the evaluation team set out to listen to the voices of participants enrolled in judicially led programs through an online survey.
Preliminary results show that overall, most participants want virtual options to continue as a part of the court and treatment process, with roughly half of those surveyed expressing support for an entirely virtual process.
The results also suggest fewer challenges in accessing remote services than the court teams perceived. For example, 89.8% of those surveyed reported having a reliable internet connection to participate in services virtually, 92.4% indicated they have the necessary equipment to participate in services virtually, and 90.3% said they are comfortable using technology to participate in services virtually.
As one participant noted, "It is rather difficult for those of us out in the boonies because our phone service is kind of sketchy sometimes. But I think it is so much better virtually. I'm still trying to get used to it, but I think it will only get better with time."
By connecting with and paying attention to participants like this, program leaders can address reported challenges. Potential barriers may include lack of available internet-enabled devices or phones, unstable internet and insufficient data to cover court and treatment sessions.
To address these barriers, many courts are establishing so-called Zoom rooms in the courthouse, where participants without devices or internet access can connect virtually. Treatment providers are creating similar virtual access points at their locations.
While this practice would not necessarily need to continue post-pandemic, it highlights the ability to adjust to changing circumstances. In addition, some court programs have opted to purchase phones for those that do not have their own phone and/or sufficient data plans.
Court staff working in judicially led programs are also ensuring that new participants know how to connect to virtual sessions.
During the COVID-19 pandemic, other barriers to the delivery of telehealth have been removed as well. The Centers for Medicare & Medicaid Services implemented temporary measures under the public health emergency declaration.
This includes expanding the types of services covered (including many behavioral health services), making reimbursement rates for telehealth services equivalent to face-to-face office and outpatient visits, and eliminating the video requirement for certain evaluation and management services, allowing for audio-only telephone communication.
Some states have also waived the Medicaid requirement that a patient see a provider in person before using telehealth. Many private insurers are allowing similar or greater flexibility.
Instituting these types of changes permanently would create the kind of accommodations many participants need to be successful in their programs.
As courts reimagine the way they function, they should strive to reach and assist the highest possible number of people.
Further research is necessary to understand the long-term implications of virtual participation on program outcomes. However, if judicially led diversion programs are able to elicit similar outcomes through virtual services to what they do in person, this will expand access and facilitate additional connections to treatment services.
What is most important is listening to the voices of program participants. Perceptions about program participants giving all negative feedback or being unwilling to provide feedback at all are incorrect according to the current research.
Practitioners involved in judicially led diversion programs can significantly enhance their success by seeking input from those participating in their programs, evaluating their program's strengths and weaknesses, embracing how technology can increase access and efficiency, and evolving to meet the needs of their communities.
Tara Kunkel is founder and executive director at Rulo Strategies LLC.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.ncsc.org/__data/assets/pdf_file/0008/60101/Adoption-of-Virtual-Services-in-Judicially-Led-Diversion-Programs.pdf.