The US Justice Department has found that South Dakota is in violation of the Americans with Disabilities Act.
In a letter sent to Gov. Dennis Daugaard on Tuesday, the department says the state illegally funnels people with disabilities into nursing homes instead of providing them with community or home-based care.
The investigation is part of a push by the Obama administration to enforce a 1999 Supreme Court ruling, Olmstead vs L.C. In the ruling, the court said that people with disabilities are free to live in their homes and should not be compelled to reside in a nursing homes unless it’s medically necessary.
South Dakota spends only 17 percent of its Medicaid budget on community or home-based care — the rest goes to institutions. Tim Neyhart is the executive director of South Dakota Advocacy Services, which has a mandate from the state's governor to provide protection and advocacy for people with disabilities. He argues that geography and history are at the heart of the issue.
“We have great distances between places and people, and there are times when people in parts of our state are a long ways from their support systems,” he says. “Sometimes the default is to have them go to nursing homes in order to meet their immediate needs. Once they’re in a nursing home, having them get out has proven to be somewhat difficult. Once you’re in a nursing home for a couple months, it’s pretty easy to lose your place to live; to lose your belongings; to lose your job.”
Neyhart says that it’s often family members or guardians who want to push a disabled person into a nursing home, even though the law says that home or community-based care should be the first option. But other reasons do exist.
“Often times it’s a medical need that will drive a person to a nursing home,” he says. “They go to a hospital and have a significant operation and need a rehabilitation period, and then go into a nursing home for those supports, and that’s how a lot of those stories begin.”
To complicate matters, Neyhart says many disabled people in South Dakota don’t realize that the Olmstead decision gives them the option to stay in their homes.
“You have to remember that a lot of these decisions are made when a person is at their weakest — after an operation or when they’re ill,” he says. “Not only do people not understand [Olmstead] as well as they should, but there’s no one there to really help them explain it at the moment that they would really need that information.”
A high percentage of the nursing home residents cited in the Justice Department report have “low care needs” — they’re people who need assistance cooking or help with personal hygiene, for example.
“This suggests that many of the individuals in South Dakota nursing facilities are able to live in the community with appropriate, and perhaps minimal, supports,” the department says.
Neyhart says that it’s discrimination to make a person with disabilities live in a nursing home when they don’t really need to.
“Often times they’re not asked, or it’s not done based on their direction, so we as a protection and advocacy organization are very concerned about those kinds of decisions,” he adds.