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DOJ: South Dakota Violating Disabilities Act with Excessive Use of Nursing Homes, Lack of Home-Based Care

David Novstrup's chair, SD Senate
Senator Novstrup, where were you on this issue?

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.


  1. Rorschach 2016-05-03 08:18

    Department of Justice to the rescue again. Wasn’t it DOJ that came up with some funding to reduce Marty Jackley’s backlog of rape kit testing? South Dakota is a “ward of the state” incapable of solving its own problems without the action of its guardian – Uncle Sam.

  2. caheidelberger Post author | 2016-05-03 09:10

    Ror, help me think this through. Home-based and community-based care would save money, not to mention put thousands of South Dakotans in an emotionally healthier situation. Yet the state restricts the use of Medicaid funds for such services and promotes a higher utilization rate of nursing homes than most states. What would motivate those policy choices? Is there a money trail to follow? Who makes money off this deal? Who runs the nursing homes? Who would want to discourage home-based care?

  3. Tim 2016-05-03 09:41

    I would think the nursing homes are the winners in that equation.

  4. leslie 2016-05-03 12:51

    nursing homes in bed w/ SDGOP to fleece medicaid in SD? DOJ letter smacks state institutionalization of elders as violation of civil rights.

    daugaard is learning when denying Medicaid to 55,000 residents, trying to pass the ball off blaming IHS, there are consequences for those 30-90 annual deaths.

    there’s this, his EB5 fails, his DOE/GEAR UP fail, his PE SLA trust appeal, and his administration’s slap down of the HARNEY NAME CHANGE. duagaard is reaping what he has sown.

    Meanwhile his partisan support for GOP politics sends jackley down rabbit hole after rabbit hole. this is what results from being a small red manipulated state.

  5. Roger Elgersma 2016-05-03 16:45

    Some of these old people are of the ‘greatest generation’ of which my parents are a part of. They grew up in the Great Depression, balanced their budget when there was no food stamps and now the government wants them to go broke fast paying thousands per month to a rest home rather than give them a little help to stay at home where they want to be and could balance their budget. What a way to disgust those old people. It is getting so that not only do the youth not respect government anymore but the old ones are souring on government as well.

    So this state forces them to live in a rest home to get help and limits rest home construction to keep the money flowing full speed, could not think of more government regulation and that in a state that is against government involvement. As they say on the farm, it makes sense like nipples on a boar.

  6. Jenny 2016-05-03 21:55

    Those are good questions Cory. I would think SD being such a rural state might be part of the problem in that there might be a lack of home health agencies in small dying towns. Nursing homes in small towns could also be utilizing Medicaid aggressively to keep their facility open.
    Did you see the stat that says SD spends 83% of it long term care budget on nursing homes and that is far above the national average.
    For SD priding itself on being a conservative state they sure aren’t trying to save money by using more cost effective options.

    Of course the feds are going to investigate with those outliers.

  7. Nathan 2016-05-06 13:50

    Having actually read the DoJ report, and visited different SD nursing homes, the press release was worded horribly. SD has a population of roughly 850,000 people, that’s 30,000 less than the city of Detroit. The report says, out of the roughly 6,000 nursing home residents, only 600 some residents are under the age of 75.

    SD has seen a spike in alcohol related dementia in the last 5 years. Meaning some of those under 75 people are in the same situation as 80 year olds.

    As far as it being cheaper for in home care, this seems to be true, but in order to provide that care, you need to have a huge pool of qualified people to work in people’s homes. And someone needs to explain how this is possible, when several of the towns have under 1500 people living in them.

    As far as the native American population goes. In order to provide in home care, you need to have a viable home. And several homes on our reservations, don’t have running water or working heat systems. Native Americans are constantly talking about how their families prefer to care for their own, but alot of time that means several aging people taking care of their families of 10 and 20 people. Perhaps some of the tribal gambling money should be used to build community health services.

    With such a sparse population, spaced over the prairie and farm land, it makes it more difficult to provide in home care, as compared to big cities. Covering 10 city blocks is easier than caring for people living 100s of miles apart.

    And if we only have 600 some under 75, how is it right to say SD is denying 1000s of people care?

  8. caheidelberger Post author | 2016-05-06 15:41

    Having actually read the DOJ report before writing this blog post, Nathan, I’m trying to figure out what part of the report you feel is inaccurate. In what way is South Dakota not violating the ADA, as the DOJ found? Do you dispute the existence of the people they talked to and found do not need to be in nursing homes?

    And help me out: how is it easier to find people to work in nursing homes than in home- or community-based care? Are nursing home staff less qualified? Are they cheaper labor? How is sparse population a unique problem for home- and community-based care and not for staffing nursing homes?

    As for the 1000s, DOJ appears to include elderly and younger in that group.

  9. leslie 2016-05-06 17:39

    daugaard just dedicated improvements including a new theater at Custer State Park. it would not have been possible but for financial contributions of the Leona Helmsley Trust, whatever that is, but the Queen of Mean, as she is apparently known, has this etched on her family headstone:

    “We don’t pay taxes. Only the little people pay taxes.”

    Maybe she didn’t mean that, or maybe Daugaard should have taken better care of GRAMMA rather than letting the nursing homes prematurely getting their hooks into her cash that she did pay taxes on, or maybe this theater IS A LOT LIKE PE SLA, sacred place, and safe haven for bison if necessary.

    maybe i’ll read abit more about ms. Helmsley and her family and their headstone to be absolutely certain of all the following regarding daugaard’s GFP’s new big deal, serves us all, or explains why CSP’s director would oppose the Harney Peak name change, which is not in the park, nor custer county. Perhaps it is not clear to him that visitors come to SD to see Indians, not a State Park with undoubtedly beautiful granite, buffs that will pitch your Harley in the air, elk that don’t wanna be in a mere state park for greener grass in the adjoining national cave park, and donkeys that will eat anything from your hand as you sit in your SUV smoking a cig.

  10. leslie 2016-05-06 18:16

    In 1989, Helmsley was charged with numerous counts of tax evasion and fraud for trying to bill work done on her private mansion as a business expense.

    Helmsley was sentenced to 16 years in prison, a term that was reduced significantly after her appeal, leading to a year and a half in federal prison.

    rather than taking care of GRAMMA in SD, it appears daugaard built a theater in Custer State Park, rather than shutting down the famous Black Hills Play House, (like Rounds did, kinda like cruz shut the government down), but daugaard used Helmsley’s money. we hope no tax liens follow it to Custer County. :)

    Read more:

    now she has plaque in SD.

  11. Nathan 2016-05-06 19:24

    Is it hard to understand the difference in having a nursing home in a city such as Brookings, that has a population of young able bodied people that can be cna certified, and work in a nursing home in Brookings where people from all over the county can be assisted, compared to finding the same qualified people, to work in home health care settings, in towns that have populations ranging from 100 to 1000 people? As far as 1000s. They said in the report that total nursing home numbers in SD are around 6000 annually, with 600 below the age 75. If you accept the amount of dementia that has started occurring due to alcohol, the actual number of people utilizing nursing homes for non normal aging issues, has to be fewer than 600, which isn’t 1000s,right?

    What it really comes down to are resources offered by private businesses. Even if state and federal funds are being used, private businesses supply the workers and actually deliver the services. With our overall lack of population, there is a decreased profit motive for these services to be provided. The state has 2 state run facilities that care for the disabled. Redfield and HSC. And both of these places only have limited beds.
    When the DoJ is talking about in home care, and the waiver systems, those are still private run businesses that get assistance from the government, but are not solely run by the government.

  12. leslie 2016-05-06 22:57

    Nathan, I have read your posts several times today but do not understand what points if any your are making. I have not read the actual report as you have.

  13. Nathan 2016-05-07 02:41

    Leslie, I have issue with the fact the news release said thousands wrongly in nursing facilities. Basically, I don’t think SD or any other low population state should be expected to provide the same services as states with millions of residents, living in condensed urban areas.

    Obama himself said he understood the differences between gun laws in urban areas compared to rural communities. The care of the disabled should be looked at under the same lenses.

    When the article says thousands wrongly placed in nursing homes, I guess I take offense to it. It seems wrong to hold SD, a mostly rural state to the same standards as densely populated communities, that have huge pools of people to work in the in home care industry. And unless you think nursing homes are horrible and shouldn’t be utilized, asking us to provide the same services that metropolitan areas provide, is ridiculous.

  14. mike from iowa 2016-05-07 06:18

    Nathan-using your thesis shouldn’t South Dakotans have less equal rights than high population areas? Less civil rights?

  15. caheidelberger Post author | 2016-05-07 07:37

    So Nathan denies the existence of the residents DOJ identified who don’t need nursing home care, who are illegally removed from the least restrictive environment by South Dakota’s inability to provide care that allows those residents to stay in their homes and communities. Hmmm….

    Nathan, what I don’t understand is how you contend we can find qualified people in Brookings to staff a nursing home but can’t find qualified people in Brookings to provide home-based care. Are those qualifications different? DOJ and the state say that home-based care can be provided at less cost. DOJ and the state say more federal funding is available to cover such care. DOJ recognizes the sparsity issue, but DOJ says we can solve some of this problem by changing our policies, which currently discourage home- and community-based care.

    So what are you trying to establish: that there is no problem? that South Dakota really is fully complying with the ADA? that South Dakota cannot comply with the ADA?

  16. leslie 2016-05-07 09:04

    skimming the doj letter cc’ed to daugaard’s atty jim seward, on pp. 19 and 23 ” thousands” of residents institutionalized are mentioned, and elsewhere $136 million in Medicaid funding is spent on institutionalizing our residents versus $26 million for in-home care. has the nursing home industry cut a fat hog w/ republican state administrators and it has taken doj to come in and mandate significant changes? your offense about a press release may or not be grounded.

    the state institutionalizes thousands of residents in its penal system too. the state refuses to serve 55,000 residents with Medicaid expansion. just because a democratic federal doj slaps a red state administration for abuse of systems doesn’t mean it might be appropriate.

  17. leslie 2016-05-07 09:06

    might “not” be….

  18. Nathan 2016-05-07 16:02

    As it stands, yes SD is in violation of the ADA. And no I’m not for SD violating anyone’s civil rights. But I’m not a fan of people working in offices, not actually having to provide care/services, mandating how said services are to be provided. And the Feds do this all the time.

    When the feds create bills for our country they typically are very broad and don’t necessarily take in account varying demographics.

    Perhaps I should have gave some personal background when I initially commented.

    I have been a mental health CNA for 17 years. My mother has been a home health provider for 42 years. Both my moms and my employer’s have seen a decrease in people willing to get into the health care industry. It takes unwavering compassion and dedication to provide care for the disabled. It is often a thankless job.

    The letter / report given to the governor never actually gave a number of people out of the 6,000, that are wrongly being held in, inpatient settings. Unless I missed it.

    In 17 years, I’ve met maybe 5 nursing home residents that were glad they were in a nursing home. No one wants to have their independence taken from them. But SD also has one pretty basic motto that spans throughout the entire state. People living independently in our state must not be a danger to themselves or others. In the case that someone can’t live safely, our current system evaluates the safety, looks at a person’s living situation, and then places people based on this.

    Now if you are a resident of Sioux Falls, and need someone to come and provide in home assistance, there are plenty of options for you. But to think that a city of let’s say 200 people are going to have all the options as a city of 200,000, is frankly ludicrous.

    So let’s say the state complies and shifts the money from inpatient care facilities to more in home care, through the wavier system. Which means less assistance to nursing homes. So what happens to the people in said nursing homes that need long term inpatient care? You are for nursing homes closing? And I’ll say it again, having access to a waiver, isn’t actually access to care.

    As far as my Brookings comment. You must have missed the bit where I said all over the county. Finding in home care workers for the city of Brookings shouldn’t be much more difficult than finding nursing home staff, (which is actually pretty difficult,) but finding qualified people to drive 100 miles from Brookings to provide care is more difficult. My grandparents lived in a community of 170 people. The closest hospital was a 2 hr drive. And due to it being a farming town, not really anyone to provide in home care. Before they passed away both of them lived in a small assisted living facility, a half an hour from where there house was. They were provided great care. Now did they still ask to go home? Yes. Was it hard to tell them that they couldn’t because of the level of care they needed? Yes. But were they able to live out happy remainders of there lives? A huge YES.

    Again I want people to remain independent for as long as they can. And perhaps the state can change the budget to allow for more money to be allocated for in home care. And perhaps, the simple act of allotting more funds will encourage businesses/hospitals to create more home health care agencies. I guess we will have to wait and see.

  19. mike from iowa 2016-05-07 17:24

    Maybe in home care workers need to unionize.

  20. Nathan 2016-05-07 18:49

    Mike from Iowa, sadly it seems SD is many times more against unions than Iowa. And therefore it is increasingly difficult unionize. But a union would have little effect. The issue isn’t the way in home care professionals are treated. Its the lack of businesses that offer employment as an in home provider.

    There are roughly 70 assisted living/nursing home placements in SD. And most of them are basic semi medical facilities. Meaning some have nurses and CNAs and most rely on the local hospitals and clinics for physicians.

    Some states have several specialized tx facilities, ranging from brain and spine injury, blind and deaf, as well as PTSD facilities. SD has some of these services, mostly in Sioux falls, available to people but around 650,000 of our residents don’t have current specialized service providers in their town.

    Hopefully, SD state government will address this issue. But we will have to wait and see.

  21. caheidelberger Post author | 2016-05-08 22:26

    Nathan, I appreciate the distance/commute point as a distinguishing factor in recruiting and retaining home-care workers versus nursing home staff. The DOJ report does not count, much less identify the actual hometown, of each resident suffering under an ADA violation. If the majority of them are from tiny towns where no care is available, then sure, DOJ could be barking up the wrong tree. Maybe they missed that distance factor in figuring out the cost of providing that home-based care.

    But as it stands, wherever those patients are, DOJ says we can provide home-based care more cheaply than the current nursing home care. That tells me that we have some financial wiggle room to offer incentives for those home-based workers.

  22. mike from iowa 2016-05-09 07:27

    Iowa is a right to work state (since 1947). We also don’t have straight wingnut rulers.

  23. Nathan 2016-05-09 14:01

    Interesting poll provided by today. Their research ranks SD as the top place in the country to grow old. They say that SD’s nursing home care and in home care costs are the lowest in the nation. This data supports the theory that the reason the DoJ focused their scrutiny on SD was perhaps due to the fact that SD has declined the Medicare expansion assistance from the government. In an attempt to show SD in a bad light.

    I’d like to think this is not the case, but this theory has been suggested by a few of my friends, during my discussions of the DoJ report.

  24. caheidelberger Post author | 2016-05-09 19:52

    Ah, Nathan, so that’s the angle! Retribution for resistance to Medicaid expansion! Interesting… has DOJ investigated any other Medicaid-expansion-balking states for ADA violations in their elder care systems?

  25. Nathan 2016-05-13 14:34

    Leslie, do think there might be a connection between the cost of nursing home care and SD’s low state wide cost of living?

  26. mike from iowa 2016-05-13 15:15

    Good article,leslie.

  27. Nathan 2016-05-13 15:41

    This is my final post on this matter. I am a strong believer in the idea of what’s best for the most. This discussion is similar to discussions I’ve had with friends over the abuse of welfare programs.

    Do people abuse/take advantage of welfare programs? Yes. But to hold the opinion that the whole system is crooked or a failure because 20 to 30 percent of people utilizing it are abusing it, is basically telling the 70 to 80 percent that aren’t abusing it, that they don’t deserve the aid.

    If money is taken from nursing homes, reallocated to help the smaller number of disabled currently in nursing homes, then there will be less money to support the growing non disabled, typical geriatric residents that rely solely on SD’s nursing home care.

    This has been a nice discussion. Good tidings to you all.

  28. caheidelberger Post author | 2016-05-13 17:01

    Thank you for your ideas, Nathan. I agree we should do the most good for the most people with the resources we have available. But the DOJ seems to lay out two contentions:

    1. We can provide more appropriate care for more people at lower cost.

    2. Whatever the cost, we are violating ADA and have to do something different. Either we bring our health care offerings into compliance, or we convince Congress that our focus on nursing home provides the most utility and that we have to revise the ADA to allow us to continue business as usual.

  29. leslie 2016-05-13 19:12

    Washington State, for example, has found that its costs for one nursing home resident would pay for home care for seven people. Alabama calculated that it cost the state about $25,000 a year less, per person, to offer care at home. id.

    I think Alabama is rated to be cheaper to live in, in the top ten, than SD which does not fall into that top ten.

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