Justice Department bolsters suit by California nursing home residents.

Nursing home residents who sued the city and county of San Francisco for not providing community-based long-term-care services received support from a U.S. Department of Justice (DOJ) investigation that concluded "a significant number of ... residents are unnecessarily isolated in the nursing home."

The DOJ sent a "findings" letter to the city attorney of San Francisco in April, stating that the city and county are violating the antidiscrimination provisions of Title II of the Americans with Disabilities Act (ADA) at Laguna Honda Hospital (LHH), a publicly run 1,200-bed nursing home. The facility "does not meet generally accepted professional standards," provides inadequate assessments at admission, doesn't identify means of or barriers to achieving community placement, and doesn't know what community programs currently exist, according to the letter.

"The city continues to be in violation of the ADA and continues to fail to ensure that LHH residents are being served in the most integrated setting appropriate to meet their needs," wrote Assistant Attorney General Ralph Boyd Jr. to City Attorney Dennis Herrera. In other words, people who need assistance with housing, support services, personalized assistance, and health care should have those needs met with as little variation from routine home life as possible.

The residents of LHH--which provides long-term care, hospice services, and rehabilitation--filed a class action in federal court against the city and county in 2000, alleging that they are warehoused and isolated from the community and seeking access to long-term-care services based in the community. (Davis v. Cal. Health & Human Servs., No. 4:00CV02532 (N.D. Cal. filed July 13, 2000).)

The LHH residents range in age from 20 to over 100; 21 percent of them are under 55. They have a wide variety of physical and mental disabilities. Expert consultants reviewed 115 cases for the DOJ and identified 52 residents who could live in the community with the current supports and services available.

But, according to the department's letter, these and other patients are not receiving community services because of inadequate assessments of patients on arrival and poor discharge planning, as well as the insufficient capacity of local service groups to meet the needs of residents who could be moved into the community. The letter made 10 specific recommendations to revise the assessment process, 14 to revise the discharge-planning process, and 8 to improve community support and services.

While the hospital staff was "helpful," the city and hospital "failed or refused to provide us with critical information we requested," Boyd wrote.

He said the attorney general could file a suit "to correct deficiencies," but noted that the department would rather work cooperatively to remedy the situation.

Meanwhile, the residents' suit is proceeding. In January, the state asked the court to dismiss the class action on the grounds that some individual defendants are not liable, including the heads of the defendant agencies: the California Health and Human Services Agency, Department of Health Services, Department of Social Services, Department of Developmental Services, Department of Mental Health, and Department of Aging.

The court, however, allowed the case to go forward, finding that under the Eleventh Amendment, "a suit against a state official in her official capacity is an appropriate means to vindicate federal constitutional and statutory rights." Trial is set for April 12, 2004.

The plaintiffs maintain that they could live independently with home health care or assistance with the activities of daily life--such as bathing and dressing--if those services were available to them outside the facility. They are represented by lawyers from a coalition of disability-rights organizations that are also involved in other, similar suits seeking to uphold a 1999 U.S. Supreme Court ruling.

In Olmstead v. L.C., the Court found that institutionalizing people with disabilities whose needs could be met with home and community-based care violates the ADA and constitutes discrimination. (527 U.S. 581 (1999).)

The Davis plaintiffs "have the right to services and to receive those services in the most integrated setting possible," said lead attorney Kim Swain of Protection and Advocacy, Inc., of Sacramento, California. The city and county "need better assessments of whether residents are eligible for community services. They need to offer people a real choice on how they get services, and shift resources from institutions to the community."

The plaintiffs claim discrimination under the ADA, [section] 504 of the Rehabilitation Act of 1973, and the Nursing Home Reform Act (NHRA), a 1987 amendment to Medicaid.

The Laguna Honda residents say eligible people are not told about alternatives to institutional care. They want the defendants to assess and identify the long-term care needs of those in the community, use existing community alternatives for long-term care, and develop new ones.

The NHRA requires institutions like hospitals and nursing homes to inform patients and residents about services available in noninstitutional settings and to identify the types of services disabled people need to remain in or return to the community, when possible. The ADA requires public entities to run programs in the most integrated setting possible.

The plaintiffs also allege that the city has directed Medicaid and other funds to rebuild the hospital rather than spend money on home- or community-based care, and that this action shows a de facto bias toward institutional care.

"They could use the money more efficiently to serve a larger group of people and give them the choice to live in their own homes in the community," said Swain. "Right now it costs well over $100,000 to serve one person per year. And rebuilding is very expensive. It will take over $400 million."

The DOJ stated that plans to rebuild at that cost are "misguided" and that the city should instead use some of the money for community services. It reported Laguna Honda operating costs of $347 per bed per day--and a revenue shortfall of $117 per bed per day.

"Remedying the ADA violation does not preclude San Francisco from rebuilding some portion of Laguna Honda for residents who would be appropriately served in a skilled nursing facility.... However, there does not appear to be any documented need for the city to rebuild all 1,200 beds," Boyd wrote.