Feds sue Colorado over segregation of people with disabilities in nursing homes

DENVER (CN) — Colorado continues to violate the rights of people with physical disabilities by unnecessarily segregating them in nursing facilities, according to a federal lawsuit filed by the U.S. Department of Justice on Friday, which estimates as many as 1,100 Coloradans may be better placed in their homes.

“Far too often, people with physical disabilities — including older adults — are institutionalized in nursing facilities when they could live in their own homes,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division in a statement.

The federal government sent Colorado Governor Jared Polis a letter in 2022 following a yearslong investigation. Beginning in November 2018, investigators reviewed state documents, and interviewed patients as well as their families and staff in nursing facilities, county social services, community service providers and advocates.

Roughly 9,000 Coloradans currently live in nursing facilities, including people with disabilities who were unnecessarily diverted instead of being supported in their own homes.

The Legislature passed a bill this year providing $100 million to facilitate more community placement for people with disabilities. On Thursday the Colorado Department of Health Care Policy & Financing received a further $43 million grant from the federal government to support people with disabilities. In an announcement, the state agency highlighted access to housing as a key barrier keeping people with disabilities in nursing facilities. The agency also estimated 81% people receiving long-term care in Colorado are currently living in the community.

Two thousand individuals housed in assisted living facilities died during the Covid-19 pandemic, underscoring potential risks for residents.

“As the Covid-19 pandemic made clear, segregating people with disabilities in nursing facilities also makes them uniquely vulnerable to easily transmissible infections, loneliness, and extreme loss of liberty,” the Justice Department says in its 21-page lawsuit.

Colorado receives federal Medicaid funding for long-term services and support — like nursing care, medication management and therapy — as well as helping people with activities of daily living including personal hygiene, using the restroom and eating.

While many of these services can be provided in people’s own homes, the feds contend Colorado pushes people with disabilities into nursing facilities more often than necessary.

In efforts to eliminate discrimination against disabled people, the Americans with Disabilities Act of 1990 bans states from segregating people with disabilities without good reason. States are encouraged to integrate services and allow people with disabilities remain a part of their community.

Colorado’s funding mechanism also creates greater incentives for nursing facilities which receive automatic annual rate adjustments while community-based service providers do not. The Justice Department argues it is cheaper to house people in the community, with the average annual cost for home care running $30,401, nearly a third of the cost to live in a facility.

The feds want a judge to declare Colorado has violated the ADA and to require the state to take new steps to eliminate future discrimination.

The Colorado Attorney General’s Office declined to comment on the litigation. A spokesperson for the Colorado Department of Health Care Policy and Financing called the lawsuit “disappointing” considering how much progress the agency has made.

“Despite the DOJ’s claims, for decades Colorado has maintained a deep commitment to continue building a system that ensures people with disabilities have the option to live and receive their care in the community," said Marc Williams, a spokesperson for the department via email.

The case has been assigned to U.S. Magistrate Judge Scott Varholak in the District of Colorado.

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