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Lawsuits challenge nursing home placements

September 1, 2006
by MICHAEL LEVIN-EPSTEIN
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Advocates argue that nursing homes are rarely the most appropriate setting for people with mental illnesses

For decades, healthcare policy wonks have debated whether adults with mental illnesses should be housed in nursing homes. Then, in 1999, the Supreme Court ruled in Olmstead v. L.C. and E.W. that under the Americans with Disabilities Act (ADA), states can be required to place individuals with mental disabilities in community settings rather than institutions.

The key issues in placement, according to the Court, are:

  • Do treatment professionals think that community placement is appropriate for an individual?

  • Does the individual oppose transfer to a less restrictive setting?

  • Can placement be reasonably accommodated, taking into account a state's resources and the needs of others with mental disabilities?

Not surprisingly, the Court's ruling did not end the policy debate. And now, as the result of three lawsuits filed in federal courts, the controversy is heating up again.

In the first lawsuit, filed in August 2005, the American Civil Liberties Union of Illinois, along with the Bazelon Center for Mental Health Law, the organization Equip for Equality, and the law firm Kirkland and Ellis, alleged that four mentally ill residents of nursing homes were being needlessly segregated and inappropriately “warehoused” in violation of federal law. The ACLU is seeking class-action status for the plaintiffs against nursing homes that are institutions for mental diseases (IMDs), according to lead attorney Benjamin Wolf.

“Many, if not all, of the persons at these facilities could be served in more integrated settings in the community,” Wolf asserts. “However, as a country we have been slow to make those accommodations for individuals with mental illnesses.”

In February 2006, another lawsuit accused the state of Connecticut of forcing psychiatric patients into nursing homes when community living would provide more suitable alternatives. Connecticut Lt. Gov. Kevin Sullivan is championing efforts to make sure that individuals with mental illnesses are placed in community-based care rather than nursing homes. Nursing home beds are far more costly than home or community care, Sullivan notes. The situation that prompted the lawsuit is “wrong as a matter of law and as a matter of smart public policy,” he says. “Nursing homes do not provide effective care and recovery for the nongeriatric mental health patients who are trapped there.” And it shouldn't take a lawsuit to make Connecticut do the “right thing,” Sullivan adds.

The third suit was filed in March 2006, claiming that New York State officials violated the ADA by transferring mentally ill patients from state psychiatric hospitals into locked nursing home units.

Each lawsuit has different details, but they all involve seeking more appropriate placement for individuals with mental illnesses, says Jennifer Mathis, the Bazelon Center's deputy legal director. “Nursing homes are not designed to serve that population. They're set up to serve people with more intensive healthcare needs,” she says. For the most part, Mathis explains, people with mental illnesses do not fall into that category. “These are not people who are walking around with IVs,” she notes. Mathis asserts that these individuals generally are capable of being in the community and living normal lives, but instead they are being institutionalized, sometimes in locked nursing home units. “It appears that states are moving backwards rather than forward in warehousing people,” she concludes.

“Inconsistent data” make it impossible to determine accurately the number of mentally ill individuals states are housing in nursing homes, according to a recent report from the Department of Health and Human Services's Office of Inspector General, but as many as 20% of residents in such facilities might have some form of mental disorder. What is clear is that many states are not doing enough to identify, screen, or treat younger adults (ages 22 to 64) with mental illnesses in nursing facilities, the OIG reports. Access to mental health services within nursing facilities also appears to be a problem, with as many as half of nursing homes unable to provide adequate psychiatric consultation.

It adds up to a tragic situation, says Linda Rosenberg, president and CEO of the National Council for Community Behavioral Healthcare. “To be sent to a nursing home is especially sad when it's avoidable,” Rosenberg says. “Nursing home care is very expensive, and if even a portion of those funds were directed to rent and individualized support, people with mental illness currently in nursing homes could live in the community.” Rosenberg adds that “States must be pressed into taking advantage of increasing Medicaid flexibility, and create community-based services as alternatives to inappropriate and unnecessary use of nursing homes.”

The federal government (through the Deficit Reduction Act) recently offered states such flexibility. The Centers for Medicare and Medicaid Services’ “Money Follows the Person” program invites states to apply for federal matching funds to implement initiatives that move people out of institutional settings, such as nursing homes, and into the community.

Inappropriate placement of mentally ill patients should be avoided whenever possible, agrees nursing home CEO Melvin Siegel, chairman of the legislative committee of the Illinois Nursing Home Administrators Association. However, economic issues, the limited availability of facilities, and the lack of community acceptance of people with mental illnesses often leave no choice but to place such individuals in nursing homes, he explains.

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