By Elizabeth A. Richter
Over eight years later, with the submission to Federal District Court of an historic agreement dated April 11, 2014, it looks as though the State of Connecticut is going to do just that.
But it didn't happen overnight! In 2006, the Office of Protection and Advocacy supported by the Bazelon Center and the pro bono assistance of the New York law firm Stroock, Stroock & Lavan launched its federal lawsuit against The Connecticut Department of Social Services, the Connecticut Department of Mental Health and Addiction Services, the Connecticut Department of Public health as well as the nursing homes West Rock, Bidwell, and Chelsea Place. Since that time, West Rock has closed its doors.
This lawsuit has been going on for an extraordinarily long time. I am aware that the Office of Protection and Advocacy was gearing up to launch this lawsuit as early as 2005, and now we are almost halfway through 2014. The case includes at least 200 plaintiffs in its class action suit, but the outcome will ultimately affect thousands of Connecticut citizens with serious mental illness who are now or who at one time or another may end up in a nursing home.
From the time that it was filed, the State attempted to have the case dismissed, but failed in the attempt when the Federal Court ruled against it in 2010. From that time onward the case remained in litigation limbo as the parties obtained stay after stay while they conducted arms length, often hostile negotiations to resolve the matter.
What has been most striking about this lawsuit is the fact that essentially, for eight years, what has been involved here is one part of the State of Connecticut (the Office of Protection and Advocacy) fighting another part of the State of Connecticut (DSS, DMHAS) costing thousands of dollars in legal fees, apparently without any visible results, until very recently.
Yet financially speaking, getting people out of nursing homes only makes sense. While the cost of housing someone in a nursing home is approximately $60,000 per year, it costs only $22,500 per year to maintain an individual in an apartment in the community.
Among nursing home residents, you have many elderly, disabled, as well as persons with serious mental health disabilities. The State of Connecticut is well aware that with the baby boomers expanding the population of elderly in our State, maintaining our elderly primarily in nursing homes is simply not feasible in the long run.
Thus, during the time that this case has been going on the State of Connecticut has developed a Strategic “Rebalancing” Plan to save millions of dollars by shifting residents from nursing homes back into their homes and communities where they can live with supports. Such residents who have been transitioned out of nursing homes thus far have included elderly persons and the physically disabled.
As the Court recognized in this recent agreement, it should also include those with serious mental health issues.
The State of Connecticut has been implementing this program since 2007 with the support of millions of dollars from federal programs such as “Money Follows the Person” enacted in 2005 as part of the Deficit Reduction Act.
Housing people with mental health disabilities in their communities is the law. In the 1999 case Olmstead v. L.C., the U.S. Supreme Court determined that the States are required to provide services for those with mental illness in the most integrated setting possible.
This decision was based upon the integration mandate of the Americans with Disabilities Act, a 1990 statute which Attorney Michael Allen has equated with the “Emancipation Proclamation” for people with mental health disabilities.
In addition, in 2010 the Department of Justice filed an amicus brief in support of the Connecticut Office of Protection and Advocacy. And finally, that same year, in a similar lawsuit, the State of Illinois lost its bid to maintain mental health clients in nursing homes in violation of the Olmstead Act.
So has there been any progress up to this point? Recently, I called the Connecticut Department of Mental Health and Addiction services and asked them straightforwardly: has there been a reduction in the number of persons with mental health diagnoses in nursing homes since 2006 when the OPA lawsuit was filed. They told me that they no longer collect that kind of information.
However, according to the online journal “Heath Affairs”, in a recent study, Connecticut was estimated to have the highest rate of people with mental illness in nursing homes in the nation.
Yet there are signs of hope. In 2010, when Illinois lost its lawsuit, nursing homes implemented a scare tactic campaign to discourage people with mental health disabilities from returning to their communities. As a result, only 45 people actually decided to return to the community.
In contrast, spokesperson Laurel Reagan of the Department of Mental Health and Addiction Services has stated clearly that the Department is prepared to support people in their transition into the community from nursing homes, no matter how severe the difficulty.
In addition, the proposed settlement includes specific safeguards to prevent the use of any kinds of scare tactics which might hinder nursing home residents with mental illness from taking advantage of the new opportunity they have to live in the community. While residents with serious mental health issues will have the right to choose whether or not to take advantage of their new opportunity to live in the community, nursing homes will be required to educate nursing home residents regarding what is involved in living in the community, and also regarding what supports will be available to them once they are placed in the their new homes. In addition, even if residents reject the option of living in the community, nursing homes will still be required to remind residents that the option is available and that they are encouraged to take advantage of it.
In addition, a remedial expert, Mr. Kevin Martone, M.S.W., will be hired to monitor the progress of transitioning nursing home residents with mental illness back into the community. Mr. Martone, a native of New Jersey and a graduate of Rutgers University has extensive experience in this area. He is currently Executive Director of the Technical Assistance Collaborative in Boston, MA. Mr. Martone will submit reports regarding the progress of the state agencies when it comes to returning residents to their communities. Further, he will identify barriers to getting the job done and provide recommendations for overcoming those barriers.
Of course, there is a caution in this situation. It makes sense that folks who recall some of the more disastrous results of the deinstitutionalization of psychiatric patients during the 60s and 70s may be justifiably alarmed by the thought of another round.
We know that many people with mental health issues are currently in jail simply because they did not have the kinds of community supports to which they are entitled under Olmstead. Thus, if we are going to get people out of the nursing homes, we must ensure that they receive legitimate community supports. From the plans that I saw detailed in the Settlement agreement, this kind of support will be in place.
Attorney Michael Allen is no longer in the case. He left the Bazelon Center a few years ago and is now working in private practice. When I spoke to him, he repeated his original point that the State of Connecticut must abide by Olmstead and allow people with mental health diagnoses to live in their communities.
Right now, as negotiations continue, the lead attorney Nancy Alisberg has repeated this sentiment. A considerable amount of financial resources, all manner of preparations have been put into place to do just that. So it is very exciting that on the verge of the upcoming Easter season, the season of hope, and anticipation of new life, that during the Passover when we recall the Israelites release from Egypt and the beginning of their journey back to The Promised Land, it looks as though nursing homes will follow through and return residents to homes in their communities to begin their new lives. This is only fitting.
One down note is that, under this agreement, Members of the class will not receive financial remuneration for their pain and suffering which they endured while being held illegally in nursing homes. The Defendants will only pay $1,300,000 in attorney's fees. which I don't imagine will begin to cover the costs of conducting the lawsuit. But the benefits that will emerge for residents and to their families are incalculable.
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