May 2, 2016; New York Times

The Justice Department has released a scathing report on South Dakota’s use of nursing homes to unnecessarily warehouse thousands of patients with manageable disabilities in highly restrictive group homes. The practice, it says, is discriminatory.

The department’s findings letter includes the following:

  • Thousands of people who need long-term care have no choice but a nursing facility because South Dakota does not adequately arrange for community-based services or identify residents appropriate for transition.
  • Many people who rely on state services do not know that they could choose community-based services instead of a nursing facility because the state has not informed them of or offered them these services.
  • South Dakota spends more than 80 percent of its long-term services budget on nursing facilities but could rebalance these funds to prioritize home- and community-based services.
  • Most residents have physical disabilities, chronic illnesses, or cognitive disabilities and need some assistance with some day-to-day tasks, rehabilitative therapy, or nursing services that the state can provide in community-based settings rather than in institutions.
  • People with similar needs to those living in South Dakota’s nursing facilities successfully receive services at home in other states, and even in South Dakota. The state already offers many of the services people will need to live in their own homes and can increase community capacity and address service limitations to ensure all individuals can choose these services instead of nursing facility placement.
  • People with disabilities living in rural and frontier areas of the state, including those living on reservations, have particular difficulty accessing services in their homes and communities.

The investigation is one of fifty opened by the Obama administration to support the civil rights of people with disabilities. Settlements have been reached with eight states. One of these ended in a suit challenging Florida’s placement of children with disabilities in nursing homes. With its report Monday, the Justice Department signaled that it might also sue South Dakota.

There are an estimated 250,000 people needlessly living in nursing homes, but the federal government says that the initiative has resulted in more than 53,000 people leaving institutions or avoiding them altogether.

“There has been as much of a revolution in enforcing disability rights since 2009 as there has been for any other group in the county,” said Talley Wells, a disability lawyer with the Atlanta Legal Aid Society.

A 1999 Supreme Court decision, Olmstead v. L.C., holds that unless a nursing home is medically necessary, people have a right under the Americans With Disabilities Act to receive care without being segregated from society. Disability advocates liken the ruling to Brown v. Board of Education, but the measure requires enforcement, and a new body of civil rights law is indeed emerging. Rhode Island and Oregon, for instance, have ended their sheltered workshop systems that kept people with developmental disabilities segregated in adult day programs, and the DOJ is pursing cases in West Virginia and Indiana.

In fact, in-home care is often cheaper than nursing home care. “What we’re seeing now is the feds’ involvement, and the courts’,” said Debra Miller, director of health policy for the Council of State Governments. “States are all looking to move in this direction. It’s just a question of how fast you can go.”

Dennis Daugaard, South Dakota’s governor and former CEO of the nonprofit Children’s Home Society, said rural communities face special challenges. “Ideally, we want elderly residents and people with disabilities to be able to stay in their communities and receive the services they need without going to a nursing home,” Mr. Daugaard said in a statement. “That can be a challenge for a state like ours, which is made up of rural communities.” Still, the DOJ says they are not moving fast enough and that the availability of nursing home beds may be slowing the process.

Wells contends that the legal approaches being taken are both shaping and reflecting public opinions. A few years ago, when the Justice Department began aggressively taking on state governments, “you could just feel this movement.”

“It’s what all of us would want for our family members,” Wells said. “When we need that level of service, do we want that in our homes or do we want that in an institution?”

NPQ has been covering the activities of disability advocates on this issue for the last two years.—Ruth McCambridge