DOJ puts Louisiana on notice

A U.S. Department of Justice investigation has determined that privately-owned nursing homes throughout Louisiana – including some in the Bayou Region – are used as costly warehouses for people with mental illnesses, flouting federal law that mandate less restrictive settings.

Findings of flagrant violations of the Americans with Disabilities Act were communicated in a 30-page letter to Gov. John Bel Edwards, signed by Principal Assistant Attorney General Vanita Gupta, which estimates that as many as 4,000 patients are affected. Advocates for people with mental illnesses familiar with the two-year-long investigation have identified at least four nursing homes in the Bayou Region where such intakes are common. They identified others, including one in Lake Charles and another in Pineville, where the bulk of business is housing of the mentally ill rather than the elderly and physically infirm.

Approximately 4,000 people, according to the DOJ, are institutionalized in costly nursing homes where they are isolated and segregated from families, friends, and communities. Many spend years in nursing homes that provide minimal services related to mental health.

“We conclude that Louisiana violates the ADA by unnecessarily relying on nursing facilities to serve people with serious mental illness, rather than providing services in the most integrated setting appropriate to their needs,” the letter states. “The State’s systemic failure to provide appropriate community services also places individuals who currently live in the community at serious risk of unnecessary institutionalization in nursing facilities.”

Interviews with current or former nursing home employees in Houma regarding aspects of the report resulted in disclosure of an instance where a veteran suffering from PTSD but with no other known malady, who was under 60 years of age, lived in a nursing home with no referral to any alternative.

The DOJ report alleges that:

• Louisiana does not identify people with serious mental illness prior to nursing facility admission and divert them into effective, community-based alternatives;

• The state does not identify individuals with serious mental illness currently in nursing facilities, inform them about available options, and provide them with effective transition planning and the community services they need to successfully live in the community; and

• The state does not have a sufficient supply of community-based supports to serve people with serious mental illness who wish to transition from nursing facilities or who are at serious risk of placement in a nursing facility.

“Louisiana’s unnecessary reliance on nursing facilities violates the civil rights of people with serious mental illness. By contrast, community integration will permit the state to support these individuals in settings appropriate to their needs and in a cost-effective manner,” the letter states.

Officials at the Louisiana Department of Health and Hospitals contacted by The Times were unable to immediately supply detailed information requested for this story, but are in the process of compiling date they said should be ready next week. They indicated a desire for cooperation with the DOJ.

“Creating a full continuum of care that includes both inpatient care and home and community-based care for people with mental illnesses has been a long-standing challenge in Louisiana that has spanned multiple administrations,” said DHH spokeswoman Samantha Faulkner. “We will review the Department of Justice’s recommendations and will work with stakeholders and legislators to determine the best path forward.”

Resources for people with mental illnesses, including subsidized housing and interface with caseworkers do exist – START Corporation in Houma is one example – but they are part of a patchwork that varies from community to community. Advocates and Justice Department officials have indicated that long-standing federal law makes clear that it is the responsibility of states to supply such less-restrictive options, that they are a requirement and not a luxury.

“Most of these individuals could be appropriately served in their own homes and communities if they had the mental and physical healthcare services that Louisiana already provides to thousands of people who have similar needs,” the DOJ alleges, noting that state law also requires such placements.

Advocates say part of the problem is that private nursing homes have no incentive to help residents seek alternatives.

Mark Berger, Executive Director of the Louisiana Nursing Home Association, said he had not yet reviewed the data used to support the DOJ claims, and so his comments were limited.

“It is important to note that nursing facility residents are voluntarily admitted and are free to leave the facility except in the rare case of a court order,” Berger said. “Nursing facilities are and will continue to be an integral part of the continuum of care. The Louisiana Nursing Home Association is eager to assist the department in finding viable solutions to improve the care for persons with serious mental illnesses.”

The DOJ’s focus on Louisiana is part of an ongoing push by the DOJ to enforce compliance by the states. Similar circumstances in other states have resulted in litigation and court orders. The letter makes clear that Louisiana is no exception.

State officials were unable to answer specific questions related to the letter, including general inquiries about populations of people with mental illnesses who are not seniors living in nursing homes, or processes for moving people from psychiatric hospitals into nursing homes.

The Times was supplied with a list of local nursing homes whose populations include people with serious mental illnesses. Calls to their administrators for discussion of the practice were not returned. Actual mistreatment has not been alleged, only ADA violations due to the state’s practices and protocols.

Berger’s statement begs a question, which is how federal authorities could find so many instances, according to their report, of people improperly confined, when in most cases they are free to go.

Advocates for mentally ill people say reality is different from theory in that regard.

Ron Lospennato, co-director of legal services at The Advocacy Center of Louisiana in New Orleans, which champions the rights of disabled people with a special focus on nursing home residents in particular, said he is well aware of the problems cited in the DOJ letter.

“We have been concerned for years about the fact that large numbers of people end up in nursing homes, where they do not get appropriate treatment for mental illnesses and opportunity for living in the community which they should have,” Lospennato said.

Patterns of unnecessary and illegal placements in nursing homes as part of a state’s protocol are nothing new to Lewis Bossing, Senior Staff Attorney at the Judge David L. Bazelon Center for Mental Health Law in Washington D.C., one of the nation’s most respected advocacy organizations.

“States are responsible for systems in which people who could be served in the community are instead being served in institutions,” said Bossing, who has litigated major cases involving such placements. “Nursing homes are institutional settings. Life inside them is regimented. Where there is a system where people are being served by privately owned and operated institutions receiving Medicaid funded services from the state, that is a violation of the ADA … We have told the states many times it would be much cheaper for you to provide these kinds of services in the community. You can get Medicaid federal dollars for those services.”

In Louisiana, patients are often referred to nursing homes after short stays in psychiatric hospitals or emergency psychiatric hospital visits. Once placed in the nursing home – even though they are not dangers to themselves or others – the patients are relegated to long, long stays because there is no one to tell them that they can go, and how to connect with the services that will help them find independent housing, according to advocates familiar with the problem locally.

Bossing and other advocates with nationwide perspectives say that how a state manages mental health issues for people from the time a crisis is first reported makes a major difference in outcomes. States that have developed plans after costly litigation have made great progress with mobile crisis centers and other aspects of wrap-around care that doesn’t have nursing homes in the equation.

“Something we have worked toward in our advocacy is that people with serious mental illnesses who are in these nursing home settings can live in their own homes, in their apartments, with the right kind of support,” Bossing said.

Advocates and state officials are in agreement that the DOJ has put Louisiana on notice that its practices could end up being evaluated by a judge, if steps are not taken toward change.

“We are obligated to advise you that if the state declines to enter into negotiations or if our negotiations are unsuccessful, the United States may take appropriate action, including initiating a lawsuit, to ensure the State’s compliance with the ADA,” the DOJ letter says. “However, we would prefer to resolve this matter by continuing to work cooperatively with the State and we are confident that we will be able to do so.”

Department of JusticeCOURTESY