When he wasn’t trying unsuccessfully to undermine the minimum wage or block teacher pay raises, the man I seek to replace in the Legislature, Senator David Novstrup, spent his time in Pierre pushing feel-good legislation to study elder abuse and expand government power to punish people who harm old folks.
Meanwhile, Senator Novstrup ignored the state-sanctioned abuse of thousands of elderly and disabled South Dakotans.
Yesterday, the U.S. Department of Justice announced that South Dakota is violating Title II of the Americans with Disabilities Act by forcing thousands of South Dakotans into nursing homes instead of providing home-based and community-based care options.
According to the DOJ Civil Rights Division’s letter and findings released yesterday, the department notified the state of this investigation on August 11, 2014. DOJ says South Dakota has spent an inordinate amount of its Medicaid dollars on nursing home care that unnecessarily deny individuals with disabilities the “supports and services in the most integrated setting appropriate to their needs” that the ADA, as interpreted in the U.S. Supreme Court’s 1999 Olmstead decision, requires.
DOJ finds one South Dakotan who says his hospital not only placed him in a nursing home without consulting him, but also called his landlord to cancel his lease. Other interviewees talked about nursing home staff causing “induced helplessness” by forbidding them from engaging in activities like opening cans or putting on their own shoes, the kinds of activities residents could practice to work toward living on their own at home again.
Taking individuals with disabilities out of their homes and communities is particularly hard on American Indian residents:
Institutionalization poses unique challenges in Native American culture. Stakeholders from tribal communities told us that it is particularly important in Native American cultures to be able to remain in one’s own home. Elders play an important role in their families and communities, and forcing them to leave damages this relationship. In addition, the restriction on hiring family members to provide personal care may pose a particular challenge for Native Americans. According to stakeholders in Native American communities, hiring outsiders to care for relatives is seen as a family failure, and lack of cultural competence poses a challenge when an outsider comes into the home [Vanita Gupta, Principal Deputy Assistant Attorney General, letter and findings to State of South Dakota on “United States’ Investigation, Pursuant to the Americans with Disabilities Act, of South Dakota’s Use of Nursing Facilities to Serve Individuals with Disabilities,” Department of Justice: Office of Civil Rights, 2016.05.02, p. 31].
Not only does this “unnecessary segregation” violate disabled individuals’ civil rights, but it also “wastes the State’s fiscal resources.” DOJ notes studies, including results of South Dakota’s own task forces on the topic, that show that caring for individuals with disabilities in their homes and communities instead of in permanent institutional settings can save big money. One underused and overly restricted state program for home-based care, the Home Services Waiver, could cut the cost of caring for some individuals by almost three-fourths:
By the State’s own admission, “[p]roviding services under the [Home Services] Waiver are proven to be cost-effective.” Nursing facility stays in South Dakota cost an average of roughly $38,000 annually in Medicaid spending per person. In contrast, the average cost for Medicaid services for a person through the Home Services Waiver program is roughly $10,800, and only 32 of the people receiving services through the Home Services Waiver” [link added; Gupta DOJ, 2016.05.02, p. 32].
The report doesn’t give exact numbers, but if we’re talking potential savings of $27,000 multiplied by “thousands” of residents, and if, as DOJ, there are other cost savings and federal funding that the state has declined to apply for, then we’re easily talking about savings of $30 million or more, certainly enough for South Dakota to take action without needing any new revenue, and possibly enough to cover more than half of the cost of expanding Medicaid for other low-income South Dakotans.
Governor Dennis Daugaard responds by saying the state recognizes it has shortcomings in providing home- and community-based care but that we are making progress:
“In South Dakota, we have undertaken a number of initiatives to allow more individuals to live independent lives,” Gov. Daugaard said. “Just in the last few years, we have expanded health care recruitment programs for rural communities; promoted employing people with disabilities; implemented a Money Follows the Person program; and increased provider rates for community-based services. Though I recognize we still have areas to improve upon, South Dakota has been making headway” [Governor Dennis Daugaard, press release, 2016.05.02].
South Dakota has not been making headway in providing home- and community-based care. The state’s own task force report says so. The state had Abt Associates study long-term care in South Dakota in 2007 and update that report last year. Abt’s 2015 update said, “Since the prior report, we do not see evidence of perceptible shifts in availability of home and community based services in South Dakota: adult day facilities, senior centers, nutrition programs, homemaker services, and in home service clients all remain at similar, relatively low levels.”
South Dakota has actually cut services and declined to seek available help from the feds. Consider the example of the brain-injury treatment program in Irene:
Many individuals are segregated in South Dakota’s nursing facilities because they require care or assistance due to mental illnesses, intellectual and developmental disabilities, and traumatic brain injuries. Some of these people are further segregated based on their specific disability in designated nursing facilities or units. Many of these individuals can receive services in integrated settings.
For example, in 2008, the Department of Social Services, in conjunction with a private nursing facility, opened a nursing facility unit in Irene, South Dakota, to provide specialized care for individuals with traumatic brain injuries. This traumatic brain injury unit was created to allow several South Dakotans to return home to the State, having previously only been able to access adequate care elsewhere. But the State has not developed alternative, community-based services for South Dakotans who require services due to traumatic brain injuries. Rather, it has cut services that once existed and has declined to pursue federal funding that could help create a home- and community-based services program for people with brain injuries. Instead, the State funds the placement of approximately 80 people with traumatic brain injuries in the Irene facility and other nursing facilities across South Dakota [Gupta/DOJ, 2016.05.02, p. 14].
We aren’t making headway; the Irene example suggests we’ve gone backwards on keeping South Dakotans out of nursing homes. The Department of Justice has determined that’s abuse of individuals with disabilities, elderly or young. How Senator Novstrup and our various task forces on aging and long-term care missed that escapes me.
DOJ says we’d better stop missing it. The May 2 letter says the State has been cooperative so far, and they expect we can come to an “amicable and cooperative” solution to help thousands of South Dakotans escape unnecessary nursing home placement and enjoy more independent lives in their homes and communities. But “in the unexpected event that we are unable to reach a resolution regarding our concerns, the Attorney General may initiate a lawsuit pursuant to the ADA….”
Strange that it takes the Department of Justice to tell us to implement a solution that would enhance the quality of life for thousands of South Dakotans, particularly for our Lakota neighbors, and save the state money.