Judge tosses class-ac­tion suit by D.C. nurs­ing-home res­i­dents

Plain­tiffs sought re­lief for com­mu­nity-based ser­vices and hous­ing

The Washington Post - - METRO - BY MICHAEL ALI­SON CHAN­DLER

A U.S. dis­trict judge this week dis­missed a class-ac­tion law­suit that al­leged that the Dis­trict failed to com­ply with a fed­eral man­date to move el­i­gi­ble and in­ter­ested Med­i­caid re­cip­i­ents out of nurs­ing homes and into the com­mu­nity.

U.S. Dis­trict Judge Ellen Se­gal Hu­velle ruled that a sin­gle in­junc­tion could not rem­edy the prob­lems ex­pe­ri­enced by the el­derly and dis­abled nurs­ing home res­i­dents be­cause bar­ri­ers to mov­ing them back into the com­mu­nity ex­tended be­yond the sys­tem’s short­falls with tran­si­tion ser­vices.

Prin­ci­ple among them: a lack of af­ford­able and ac­ces­si­ble hous­ing in the Dis­trict. Other bar­ri­ers in­cluded few wheel­chair-ac­ces­si­ble units, and, for some res­i­dents, poor credit his­tory or crim­i­nal records that made it harder to se­cure hous­ing.

“The Dis­trict has lit­tle to be proud of re­gard­ing its his­toric in­abil­ity to com­ply with Olm­stead’s in­te­gra­tion man­date,” said Hu­velle in her 91-page rul­ing, re­fer­ring to a U.S. Supreme Court de­ci­sion that pub­lic en­ti­ties must pro­vide com­mu­nity-based ser­vices to peo­ple with dis­abil­i­ties when­ever pos­si­ble, and that keep­ing them in­sti­tu­tion­al­ized is a form of dis­crim­i­na­tion.

“How­ever, plain­tiffs have failed to demon­strate the ex­is­tence of a con­crete, sys­temic fail­ure that en­ti­tles them to class­wide re­lief,” she said.

An ad­vo­cate for the plain­tiffs said they were still try­ing to un­der­stand the judge’s rul­ing Wed­nes­day af­ter­noon.

“We are in­cred­i­bly dis­ap­pointed,” said Kelly Bagby, an at­tor­ney with AARP Foun­da­tion who rep­re­sents the plain­tiffs.

She said she fun­da­men­tally dis­agreed with the rul­ing and that one so­lu­tion — a bet­ter sys­tem of tran­si­tion ser­vices to help the dis­abled nurs­ing home res­i­dents — would have reme­died the plain­tiffs’ com­mon com­plaint.

Clau­dia Schlos­berg, state Med­i­caid di­rec­tor for the Dis­trict, said in a state­ment Wed­nes­day that the Dis­trict’s Med­i­caid pro­gram is ded­i­cated to pro­vid­ing qual­i­fied res­i­dents with dis­abil­i­ties “ac­cess to ser­vices and sup­ports in the most in­te­grated set­ting ap­pro­pri­ate to their needs.”

“We know, how­ever, that some in­di­vid­u­als who wish to tran­si­tion back to the com­mu­nity are still liv­ing in nurs­ing homes,” the state­ment read. “As the Court rec­og­nized, there are in­di­vid­u­al­ized bar­ri­ers that pre­vent these in­di­vid­u­als from be­ing able to tran­si­tion out of the nurs­ing home and into the com­mu­nity. Hous­ing is one of the most com­mon bar­ri­ers. We are fully com­mit­ted to the prin­ci­ples of the Olm­stead de­ci­sion and will con­tinue our ef­forts to in­crease ac­cess to long term care ser­vices and sup­ports in the com­mu­nity.”

The suit was filed in 2010 by Univer­sity Le­gal Ser­vices, AARP Foun­da­tion Lit­i­ga­tion and the pri­vate law firm of Arent Fox. In 2013, the plain­tiffs were cer­ti­fied as a class, a des­ig­na­tion that was ap­pealed by the Dis­trict.

Thurs­day’s rul­ing came ex­actly one year af­ter the case went to trial.

The plain­tiffs were nurs­ing home res­i­dents in the Dis­trict

who re­ceive Med­i­caid and are en­ti­tled to in-home care.

Fed­er­ally and state-funded waivers for Med­i­caid re­cip­i­ents who are el­derly or have phys­i­cal dis­abil­i­ties al­low peo­ple to re­ceive up to 16 hours a day of in-home ser­vices and case man­age­ment if they need help with at least two ac­tiv­i­ties of daily liv­ing such as bathing, eat­ing or dress­ing. If they need 24-hour care, they can get an ad­di­tional eight hours through the D.C. Med­i­caid Per­sonal Care As­sis­tance pro­gram.

Sur­veys con­sis­tently show that older peo­ple pre­fer to stay in their homes for as long as they can. Serv­ing peo­ple at home is also sig­nif­i­cantly more cost-ef­fec­tive, ad­vo­cates say.

The plain­tiffs’ com­plaint al­leged that be­tween 500 and 2,900 peo­ple with dis­abil­i­ties in the Dis­trict are “un­nec­es­sar­ily in­sti­tu­tion­al­ized in nurs­ing fa­cil­i­ties, seg­re­gated and iso­lated from their fam­i­lies and friends” and that “these in­di­vid­u­als des­per­ately want to re­turn to their com­mu­ni­ties.”

Le­gal records show just a small num­ber of nurs­ing home pa­tients were moved suc­cess­fully back into the com­mu­nity each year, in­clud­ing only a frac­tion of those who were ac­cepted into a fed­eral pro­gram that helps Med­i­caid re­cip­i­ents move out of nurs­ing homes and re­ceive ser­vices in the com­mu­nity.

But the Dis­trict al­leged and, the judge agreed, that the lack of avail­able, af­ford­able and ac­ces­si­ble hous­ing was a ma­jor bar­rier to serv­ing these res­i­dents in the com­mu­nity.

More than 80 per­cent of nurs­ing fa­cil­ity res­i­dents who wanted to move to the com­mu­nity needed pub­licly funded or sub­si­dized hous­ing, court records say. Wait­ing lists are ex­ceed­ingly long, and the avail­abil­ity of wheel­chair ac­ces­si­ble units is even more lim­ited.

Court doc­u­ments noted that peo­ple with pri­vate hous­ing were able to tran­si­tion much more quickly than those who needed to se­cure sub­si­dized hous­ing.

Plain­tiffs ar­gued in court that the city should be re­spon­si­ble for help­ing res­i­dents to se­cure hous­ing. In re­sponse to the judge’s rul­ing on Wed­nes­day, Bagby noted that un­nec­es­sar­ily lengthy nurs­ing home stays, due to poor tran­si­tion ser­vices, were part of the problem be­cause they ex­ac­er­bated plain­tiffs’ hous­ing prob­lems.

“These are peo­ple who are on Med­i­caid and have been in­sti­tu­tion­al­ized. Of course they don’t have pri­vate hous­ing.”

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