Office ofthe Assis1a111 Anorney General

U.S. Department of Justice Civil Rights Division
Woshi11g1011, D.C. 20530
DEC 2 1 2016 


Governor John Bel Edwards Office of the Governor State of Louisiana Post Office Box 94004 Baton Rouge, Louisiana 70804
Re: United States' Investigation, Pursuant to the Americans with Disabilities Act, of Louisiana's Use ofNursing Facilities to Serve People with Mental Health Disabilities
Dear Governor Edwards:
We write to report the Department of Justice' s findings from its investigation into Louisiana's delivery of services to people with serious mental illness who reside in nursing facilities across the State. Our investigation assessed the State's compliance with Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., which requires that individuals with disabilities receive services in the most integrated setting appropriate to their needs. The Department of Justice is authorized to seek a remedy for violations of Title II of the ADA. 42 U.S.C. §§ 12133-12134; 28 C.F.R. §§ 35 .170-174, 190(e). This letter provides notice of the State's failure to comply with the ADA and the minimum steps it needs to take in order to meet its obligations under the law.
We would like to thank the State for the assistance and cooperation extended to the Department of Justice thus far and to acknowledge the courtesy and professionalism of all of the State officials and counsel involved in this matter to date. We appreciate that the State provided us with helpful documents and information in response to our written requests.
I. SUMMARY OF FINDINGS
We conclude that Louisiana violates the ADA by unnecessarily relying on nursing facilities to serve people with serious mental illness, rather than providing services in the most

integrated setting appropriate to their needs. The State’s systemic failure to provide appropriate community services also places individuals who currently live in the community at serious risk of unnecessary institutionalization in nursing facilities.
Approximately 4,000 people with serious mental illness are currently institutionalized in costly Louisiana nursing facilities where they are isolated and segregated from their families, friends, and communities. On average, these individuals are younger and have fewer physical care needs than the broader nursing facility population. They often spend years in nursing facilities that provide minimal mental health services and apart from paid staff, they rarely interact with people who do not have disabilities. The State has failed to ensure that many nursing facility residents with serious mental illness were offered community-based services as an alternative to nursing facilities. Moreover, through its nursing facility admissions process, the State has approved and facilitated their admission to nursing facilities. These individuals live in more than 250 nursing facilities across Louisiana, but individuals with serious mental illness are frequently admitted to at least eight facilities that are well known placements for people with serious mental illness; and they predominantly house people with serious mental illness.
Most of these individuals could be appropriately served in their own homes and communities if they had the mental and physical healthcare services that Louisiana already provides to thousands of people who have similar needs. Serving individuals in the community is also consistent with Louisiana State law, which requires that individuals with disabilities be served in the least restrictive setting in their own communities. LA. REV. STAT. ANN. § 28:476. Nonetheless, the State continues to fund costly nursing facility placements when people could be served in their communities. The contributing factors to these systemic failures include:
• The State does not identify people with serious mental illness prior to nursing facility admission and divert them into effective, community-based alternatives;
• The State does not identify individuals with serious mental illness currently in nursing facilities, inform them about available options, and provide them with effective transition planning and the community services they need to successfully live in the community; and
• The State does not have a sufficient supply of community-based supports to serve people with serious mental illness who wish to transition from nursing facilities or who are at serious risk of placement in a nursing facility. Furthermore, the State does not make the existing supply of community-based supports adequately available to these individuals.
Louisiana’s unnecessary reliance on nursing facilities violates the civil rights of people with serious mental illness. By contrast, community integration will permit the State to support these individuals in settings appropriate to their needs and in a cost-effective manner.
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II. INVESTIGATION
On October 6, 2014, the Department of Justice notified the State of Louisiana that it was opening an ADA investigation into whether the State unnecessarily uses nursing facilities to serve individuals with serious mental illness. Our investigation focused on (1) whether these individuals in Louisiana nursing facilities are appropriate for community-based alternatives; (2) whether they oppose receiving mental and physical health supports in the community; and (3) whether placing them in appropriate, community-based services constitutes a reasonable modification to the State’s service system.
During our investigation, we visited numerous nursing facilities across the State, including rural and urban facilities, small and large facilities, and facilities with varying numbers of people with serious mental illness. During our site visits, we and our expert interviewed nursing facility staff members and residents. We also interviewed staff members at community mental health programs, day programs, State psychiatric hospitals,1 and private hospitals, as well as officials with Louisiana’s regional mental health authorities. We met with leadership from the Department of Health in person and via telephone. We also interviewed individuals with serious mental illness who receive mental health services in the community.
In addition to these visits and interviews, we reviewed the documents and information provided by the State, reviewed publically available data and reports, and considered the opinions of a wide range of individuals knowledgeable about the State’s mental health system.
III. LOUISIANA’S PUBLIC MENTAL HEALTH SYSTEM
Louisiana’s public mental health system delivers Medicaid- and State-funded services to people with mental illness who meet medical and financial eligibility. The State provides these services through nursing facilities, hospitals, and community-based providers.
A. Louisiana Uses Nursing Facilities to House People with Serious Mental Illness.
Louisiana has 258 nursing facilities that provide Medicaid-funded services. At any given time, roughly 25,000 Medicaid recipients live in these facilities, which, when compared to other states, house some of the largest numbers of Medicaid recipients on average. Louisiana’s percentage of Medicaid certified nursing facilities with 100 beds or more is higher than any other state. And people younger than age 70, many of whom have serious mental illness, make up a sizable and growing percentage of these facilities’ residents. In 2013, roughly 33% of the nursing facility population was under age 70, up from 22% in 1999.2 Moreover, a 2014 AARP
1 State psychiatric hospitals will hereinafter be referred to as “State Hospitals.”
2 We note that our investigation did not review the State’s compliance with the ADA with respect to people in nursing facilities who have disabilities other than serious mental illness. We
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report concluded that about a quarter of all Louisiana nursing facility residents have low-care nursing needs, a higher ratio than all but two other states.3 Individuals with serious mental illness live in nearly all of Louisiana’s 258 nursing facilities, which also house people with agerelated disabilities. Many live in facilities that are well known for housing individuals with serious mental illness, including the State facilities at Villa Feliciana and at least seven for-profit nursing facilities around the State.
Despite the passage of two federal laws to prevent this type of segregation,4 nationally, Louisiana continues to have one of the highest percentages of nursing facility residents with serious mental illness. According to the State, at least 3,856 individuals with serious mental illness—or 14.5% of Louisiana nursing facility residents—lived in Louisiana nursing facilities in October 2014 and roughly the same number continue to live in these facilities as of February 2016.5 The additional cost to the State of serving individuals with mental illness in nursing facilities instead of the community can be as high as $7,000 or more per person, per year. And while the State provides community-based services to 20,000 individuals with serious mental illness, it is approving nursing facility admissions for these individuals at a rate of about 1,000 per year. These are individuals without dementia who may also have medical conditions or physical disabilities, such as diabetes, renal disease, and mobility impairments, which are typically accommodated outside of nursing facilities. On average, people with serious mental illness in Louisiana’s nursing facilities tend to be younger than the overall nursing facility population and have less intensive support needs. They are institutionalized in nursing facilities
recognize, however, that some of the systemic failures we identified in this investigation could contribute to the unnecessary institutionalization of people with other types of disabilities. We encourage the State to examine the way these issues impact people with other disabilities and how it can more broadly prevent unnecessary institutionalization.
3 Susan C. Reinhard, et al., AARP, Raising Expectations: A State Scorecard on LongTerm Services and Supports for Older Adults, People with Physical Disabilities and Family Caregivers, 88 (2014).
4 See Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.; Nursing Home Reform Act of 1987, 42 U.S.C. § 1396r.
5 For purposes of this letter, we adopted the methodology used by the State to estimate the number of people with serious mental illness in Louisiana’s nursing facilities. As the State did, we excluded individuals with dementia-related diagnoses from the estimate; but we recognize that some individuals with serious mental illness may be misdiagnosed as having dementia. Furthermore, these numbers reflect only Medicaid beneficiaries with serious mental illness. Because of this and other limitations of the information captured by the nursing facility assessments underlying these data, this estimate may be a conservative approximation of the number of people with serious mental illness in Louisiana’s nursing facilities.
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by reason of their mental illness and may spend many years of their lives there. At least 73% have been institutionalized for more than a year.
Just like persons without disabilities, these individuals have their own unique needs, stories, and goals, but many share a common desire: to live a life of their choosing. One woman with serious mental illness experienced a crisis after the death of a family member, leading to her nursing facility admission. Four years later and still in her fifties, she remained in the nursing facility, despite needing minimal physical and psychiatric care. She longed to go home saying, “I would like to be normal, complete, whole again—like I used to be.” Another woman in her fifties lived with her siblings before coming to the nursing facility, but her siblings decided that they could no longer assist her on their own. In an interview, the woman, who loves to sing, shared her hopes of returning to her hometown and living in an apartment. With appropriate services in place, both of these women could transition from the nursing facility to the community.
Many people with serious mental illness come to Louisiana’s nursing facilities from private psychiatric hospitals, where they are typically admitted for acute care following a mental or physical health crisis. Others come from State Hospitals, or they are admitted to nursing facilities shortly after leaving State Hospitals. One man’s journey into the nursing facility began when he had a mental health crisis a few years ago and repeatedly called 911 about his blood pressure. Instead of connecting him to community treatment services, he was charged with abusing 911, sent to jail, and then admitted to a State Hospital. The State Hospital eventually discharged him to a nursing facility that primarily houses people with serious mental illness. The State approved a six-month stay. Six years later, the man, who is in his sixties, remains in the same nursing facility, even though he wants to return to the community and could do so with proper physical and psychiatric supports. This man’s story is not unique. In addition to the individuals who are discharged from private hospitals, between 2010 and 2014, State Hospitals discharged 153 people with serious mental illness directly into nursing facilities, including some who were discharged as part of its 2011 hospital downsizing effort.
B. Although Louisiana Redesigned its Mental Health Service System to Provide More Community-Based Services to People with Serious Mental Illness, Services Are Still Inadequate.
Louisiana’s mental health system has historically relied on high-cost, institutional care to serve its citizens with serious mental illness. This unnecessary reliance has had a detrimental effect on the availability of community-based mental health services, both in terms of the adequacy of funding for services and the numbers of individuals with serious mental illness who have access to care.
The State has, for many years, recognized its reliance on institutional care at the expense of its community-based system. In 2006, a State-commissioned report stated, “By all accounts—
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governmental, legislative, judicial, provider, advocacy, consumer, and family member—the availability, accessibility, and quality of treatment and services for Louisianans with mental health conditions are woefully inadequate, and in far too many circumstances, simply nonexistent.”6 The State again acknowledged in 2011:
Over the last two decades, Louisiana has remained dependent on psychiatric hospital levels of care . . . . While other states were re-organizing their funding approach and moving to a greater proportion of high intensity community based programs, Louisiana continued to have greater fiscal resources directed toward inpatient care.7
Similarly, in 2012, the Secretary of the Department of Health and Hospitals8 stated, “[T]oo many of our resources are invested in large public institutions. This is not the best model of care for our residents or our taxpayers.”9 The State also identified the solution: “[When] using community-based services like Assertive Community Treatment (ACT) teams, evidence has shown that lengths of stay in inpatient settings will shorten and recidivism rates will improve. Over time, this will decrease demand on more acute inpatient services, which will improve the [S]tate’s capacity to treat the seriously mentally ill.”10
Recognizing the urgent need to develop quality, community-based services across the State, the Louisiana Department of Health has worked to redesign its mental health system, to reduce reliance on State Hospitals, and increase access to community-based services. The State consolidated mental health and substance use disorder services in the Office of Behavioral Health and in the ten regional mental health agencies known as local governing entities,11 closed
6 Behavioral Health Policy Collaborative & Technical Assistance Collaborative, A Roadmap for Change: Bringing the Hope of Recovery to Louisianans with Mental Health Conditions, at v (June 2006).
7 Louisiana Office of Behavioral Health, FY 2012 Combined Behavioral Health Assessment and Plan Block Grant Application, at 29 (Sept. 1, 2011).
8 The Louisiana Department of Health was known as the Department of Health and Hospitals until 2016.
9 Louisiana Department of Health and Hospitals, DHH Outlines Plan to Establish Sustainable Behavioral Health Care Services for Louisiana Residents (Aug. 14, 2012), http://new.dhh.louisiana.gov/index.cfm/newsroom/detail/2571.
10 Id.
11 The local governing entities are independent organizations that locally administer the State’s behavioral healthcare system. They offer a core set of services for people with behavioral
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one of its three State Hospitals, and downsized the other two. In 2011, the State began investing in community-based services and moving toward a statewide system of community-based care, rather than only having pockets of evidence-based practices available to people with serious mental illness.
Louisiana has also tried to use managed care to reduce its reliance on institutions and improve access to community-based mental health services. In 2012, the State consolidated public behavioral health services under a single managed care entity, Magellan Healthcare, Inc. The State then changed course and in December 2015 transitioned all public behavioral health services to Healthy Louisiana, the State’s existing network of Medicaid managed care organizations, with the intention of integrating physical and behavioral health services under the new plan.
Initially, Louisiana intended to include nursing facilities under the umbrella of managed care. As the State explained in a 2013 concept paper, it was influenced by the “consistent suggestion that benefits coordinated through the [long-term service system managed care organization] should be comprehensive and avoid carve-outs, particularly as it related to behavioral health.”12 Advocates for community-based services supported the move, arguing that more nursing facility residents would be transitioned into community-based services by managed care organizations when those services proved to be less expensive than institutionalization. However, the State has not yet solicited proposals to move long-term services and supports into managed care and nursing facilities, therefore, remain exempt.
While the State has taken steps in recent years to develop its community system, its work is far from complete, and the State recognizes that the availability of community-based mental health services is insufficient. It acknowledged last year: “Services to adults are a critical area of need in the [Office of Behavioral Health] system, as prevalence estimates indicate that only a small proportion of the need is being met by existing [Office of Behavioral Health] services.”13 The Substance Abuse and Mental Health Services Administration reports that the percentage of
health disabilities. Each entity’s budget includes State general funds, self-generated funds, and interagency transfers to support programs and services. Beyond the core services provided, entities offer more or fewer services, depending upon their budgets and the needs of their communities.
12 Louisiana Department of Health and Hospitals, Transforming Louisiana’s Long Term Care Supports and Services System, at 6 (Aug. 30, 2013).
13 Louisiana Office of Behavioral Health, FY 2016 Combined Behavioral Health Assessment and Plan (Draft), at 55 (July 29, 2015).
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Louisianans using mental health services in the community per 1,000 people is less than half the national average.14
C. Louisiana Offers Community-Based Services, Including Assertive Community Treatment, Mobile Crisis Services, Peer Supports, Permanent Supported Housing, and Primary Healthcare.
Louisiana’s existing community-based services are currently inadequate to meet the needs of individuals with mental illness who are in nursing facilities or at risk of entering nursing facilities; however, they include the kinds of appropriate, community-based mental health services necessary for individuals with serious mental illness to live in the community. These services include Assertive Community Treatment, Mobile Crisis services, and peer supports. These are critical, evidence-based practices that can be tailored to the needs of each individual and help them avoid costly, unnecessary, and repeated institutionalization.
1. Assertive Community Treatment
Assertive Community Treatment is a community-based service that provides intensive mental health services to individuals with the highest mental health needs and enables service recipients to transition from institutions and live in the community. Assertive Community Treatment teams in Louisiana are designed to address every aspect of an individual’s needs, including medication management, therapy, crisis intervention, social support, employment, substance use disorder treatment, and housing. The service is provided by a multidisciplinary team of professionals, including, but not limited to, a licensed mental health professional, housing specialist, employment specialist, substance abuse service provider, nurse, peer support specialist, and psychiatrist. The team is available at all hours, and its members are the primary providers of recovery-oriented services for the individual in the community.
As the State acknowledges in its behavioral health services manual, individuals who have experienced multiple hospitalizations can be successfully served in the community with the assistance of an Assertive Community Treatment team.15 As of July 2015, there were 14 teams serving only 1,150 people, which is insufficient capacity to serve the needs of individuals with serious mental illness who are currently confined to nursing facilities. Assertive Community Treatment can make all the difference for individuals with a history of institutional placements. One Louisiana woman who had previously been institutionalized in a State Hospital explained the value of her Assertive Community Treatment team in contrast to institutional living:
14 Substance Abuse and Mental Health Administration, Center for Mental Health Services, Louisiana 2013 Uniform Reporting System Mental Health Data Results at 1.
15 Louisiana Department of Health and Hospitals, Louisiana Behavioral Health Partnership (LBHP) Service Definitions Manual, Version 9, at 118-19 (July 2014).
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Who wants to be told what to do so much? Who wants to be away from their mother, father, and children? Who wants to be in a place where there are no hugs, no kisses—a place where you can’t enjoy momma’s cooking? When you’re in an institution, it’s like someone took you there and then keeps you in this place where it’s aggravating, and it’s disgusting. You can’t take a bath and a shower when you want to. You can’t walk outside when you want to. I need freedom, money, transportation, and I’ve got a lot of those necessities and more because of [my Assertive Community Treatment provider].
2. Community Psychiatric Support and Treatment
Community Psychiatric Support and Treatment and Psychosocial Rehabilitation are two Louisiana Medicaid services that provide individualized mental health supports of varying intensity. Community Psychiatric Support and Treatment is a face-to-face intervention that can take place in community settings and includes supportive counseling, behavioral management and analysis, assistance with identifying crisis triggers, development of crisis management plans, and assistance in restoring the individual’s fullest possible integration in the community. Psychosocial Rehabilitation helps people regain independent living and interpersonal skills. While less intensive than Assertive Community Treatment, if implemented in an individualized manner consistent with the person’s needs, the combination of Community Psychiatric Support and Treatment and Psychosocial Rehabilitation can be used to provide support similar to the intensive case management services available in other states. In July 2015, 4,845 Louisianans were receiving Community Psychiatric Support and Treatment, and 3,419 people were receiving Psychosocial Rehabilitation.
3. Mobile Crisis Services
Louisiana offers limited crisis prevention and intervention services, which include Mobile Crisis and toll-free crisis lines. Mobile Crisis is an evidence-based intervention designed to provide support to individuals in crisis at their homes and in other community locations. Where available, Mobile Crisis teams in Louisiana provide on-site support to help people remain in their homes and avoid inappropriate institutionalization. A 24-hour crisis telephone line is available statewide. A non-crisis line, staffed by peers in recovery, is also available from 5 a.m. until 10 p.m., seven days per week. Some of the local governing entities provide crisis hotlines or contract with third party providers to offer crisis services after hours, on weekends, and on holidays; and some use staff members to substitute when third party providers are temporarily unavailable.
4. Permanent Supported Housing
Permanent Supported Housing is an evidence-based practice for successfully supporting individuals with serious mental illness in the community. It includes integrated, communitybased housing with tenancy rights, coupled with individualized services and supports that are
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necessary to help the individual maintain housing. Permanent Supported Housing promotes mental health recovery by enabling individuals to avoid the inherent stress of housing instability. It helps individuals achieve maximum independence, positive health benefits, and an overall higher quality of life. Permanent Supported Housing is also a cost-effective service that reduces expensive hospitalizations, institutionalization, incarceration, and emergency room visits.
Louisiana’s Permanent Supported Housing Program was established in the wake of Hurricanes Katrina and Rita, and is concentrated in the areas most affected by the hurricanes. As a result, there is limited availability of Permanent Supported Housing elsewhere in the State, and there is a long waitlist. The goals of the program are the prevention and reduction of institutionalization and homelessness for people with disabilities, and it supports approximately 2,700 households. Eighty-five percent of current Permanent Supported Housing homes have at least one member with a mental illness, some of whom moved directly into the program from institutions. Some of the local governing entities also operate housing programs through third party contracts that provide various housing alternatives and housing supports.
5. Community-Based Primary Healthcare Services
For individuals with serious mental illness who have physical disabilities or chronic health conditions, Louisiana has programs that provide additional supports, such as personal care services, home health, and nursing services, all of which are overseen by the Office of Aging and Adult Services. People with mental illness have higher rates of chronic health conditions than the general population. If these conditions are not properly managed, they often worsen and contribute to the fact that on average, people with serious mental illness die 25 years earlier than those without serious mental illness. Therefore, the need for integrated mental and physical healthcare is critical for people with serious mental illness. Integrating physical and mental healthcare by, for example, embedding primary care providers in mental health centers and coordinating all necessary care through case management has proven successful in reducing hospitalization and adverse outcomes. Accordingly, the State has acknowledged that better coordination of services “increases access to a more complete and effective array of behavioral health services and supports, improves quality of care and outcomes, and reduces repeat emergency room visits, hospitalizations, out-of-home placements, and other institutionalizations.”16
The State’s most comprehensive package of community-based services for individuals with physical disabilities is the Community Choices Waiver Program, which offers priority access to people in nursing facilities. This program provides services for people over age 65 and
16 Louisiana Office of Behavioral Health, FY 2016 Combined Behavioral Health Assessment and Plan (Draft), at 8 (July 29, 2015).
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people with physical disabilities as a lower cost alternative to nursing facility care. Depending on each recipient’s level of need, he or she is provided funding to create an individual, community-based service package. The program contains an array of services to help the individual avoid institutionalization, including support coordination, nursing and skilled therapy, home modifications and assistive technologies, and personal care services. Those found eligible for the program wait an average of 4.35 years for services, and almost 36,000 people are on the program’s waitlist. The program is limited to serving 5,303 people at a time; yet at the end of fiscal year 2014, the State had only 4,185 people in it.
In addition to the Community Choices Waiver Program, which is only available to a limited number of people, personal care services and home health services are available to all Medicaid-eligible individuals who need them. Personal care services assist with activities such as grooming, eating, and toileting, as well as laundry, meal preparation, shopping, and medication oversight. Medicaid-eligible individuals can receive up to 32 hours per week of personal care services,17 while individuals who need more than 32 hours per week may be eligible for the Community Choices Waiver. The State also offers home health services, including diagnosis and treatment of illness or injury by a registered or licensed professional nurse, and assistance with activities of daily living, which are provided by an aide. Individuals in the program may receive up to 50 home health visits per year by a skilled nurse or aide.
IV. FINDINGS
Nearly 4,000 Louisianans with serious mental illness are confined in costly nursing facilities even though many of them can and want to live in the community and the State system can be reasonably modified to offer placement in the community. We therefore conclude that the State fails to provide services to individuals with serious mental illness in the most integrated settings appropriate to their needs, as required by the ADA.
A. Title II of the ADA Requires States to Serve Individuals with Disabilities in the Most Integrated Setting Appropriate.
Congress enacted the ADA in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). For these reasons, Congress prohibited discrimination against individuals with disabilities by public entities when it provided that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of
17 Twenty-three thousand Louisianans received personal care services through this program in fiscal year 2014.
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the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Accordingly, the “ADA is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner which shunts them aside, hides, and ignores them.” Helen L. v. DiDario, 46 F.3d 325, 335 (3d Cir. 1995).
One form of discrimination prohibited by Title II of the ADA is violation of the “integration mandate.” 28 C.F.R. § 35.130(d); see also 42 U.S.C. § 12101(a)(2), (b)(1). That is, under the ADA, public entities are required to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). An integrated setting is one that “enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. Pt. 35, App. B, 690 (2015).
In Olmstead v. L.C., the Supreme Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. 527 U.S. 581, 607. In so holding, the Court explained that unnecessary institutional placement “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600.
The ADA’s integration mandate applies both to people who are currently institutionalized and to people who are at serious risk of institutionalization. Steimel v. Wernert, 823 F.3d 902, 913 (7th Cir. 2016); Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v. Delia, 709 F.3d 307, 321-22 (4th Cir. 2013); M.R. v. Dreyfus, 663 F.3d 1100, 1115-18 (9th Cir. 2011), opinion amended and superseded on denial of reh’g, 697 F.3d 706 (9th Cir. 2012). As the Tenth Circuit reasoned, the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003); see also Pitts v. Greenstein, No. 10-635-JJB-SR, 2011 WL 1897552, *3 (M.D. La. May 18, 2011) (unpublished) (“A State’s program violates the ADA’s integration mandate if it creates the risk of segregation; neither present nor inevitable segregation is required.”). A State’s failure to provide community services may create a risk of institutionalization. Pashby, 709 F.3d at 322; see also Peter B. v. Sanford, No. 6:10-767-JMCBHH, 2010 WL 5912259, at *6 (D.S.C. Nov. 24, 2010) (unpublished) ( “[A] State’s failure to provide services to a qualified person in a community-based setting as opposed to a nursing home or institution presents a violation of Title II of the ADA”).
B. Nursing Facilities Are Segregated, Institutional Settings.
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It is well established that nursing facilities are segregated settings. Day v. District of Columbia, 894 F. Supp. 2d 1, 22-23 (D.D.C. 2012); Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999). “The ADA was passed, in part, to combat discrimination against individuals with disabilities, including discrimination in the form of unnecessary segregation of those with disabilities in nursing homes and other institutions.” Joseph S. v. Hogan, 561 F. Supp. 2d 280, 285 (E.D.N.Y. 2008) (denying motion to dismiss in case involving plaintiffs with mental illness who were institutionalized in nursing facilities); accord Day, 894 F. Supp. 2d at 22-23; Conn. Office of Prot. & Advocacy for Persons with Disabilities v. State of Conn., 706 F. Supp. 2d 266, 276-77 (D. Conn. 2010); Peter B., 2010 WL 5912259, at *6.
Nursing facilities in Louisiana are typically institutional in nature, as evidenced by the physical environment, the lack of privacy and autonomy, and the lack of integrated, adult activities for the residents. Louisiana’s nursing facilities congregate an average of 130 people with disabilities in a setting where they receive all of their services on-site in a way that forecloses the opportunity to interact with people who do not have disabilities or are not paid staff. Most facilities have long hallways and locked exits, and some also have locked gates around the exterior of the building. Paging systems, loud televisions in the common areas, and the sounds of other residents create a steady stream of audible interruption at most facilities. When asked about life in the nursing facility, a male resident in his thirties who loves music and has serious mental illness said he sleeps most of the day, explaining, “I don’t want to see what environment I’m in. It’s depressing.”
Louisiana nursing facilities, as is common elsewhere, afford almost no privacy to residents, other than providing minimal storage spaces like a small closet in their bedrooms. Furthermore, most nursing facilities use security cameras to monitor residents’ movements through the facility. While the cameras do not monitor the relatively small bedrooms, even in there, residents still have little privacy, because staff members often come in and out of rooms after a perfunctory knock on the door. Privacy in the bedroom is also drastically diminished by the fact that residents usually share the space with as many as three other roommates. At one facility, which had numerous available rooms and was only 60% full on average, residents were crowded into rooms with as many as three assigned roommates.
Many aspects of nursing facility life are characterized by segregation from the broader community and a lack of autonomy. For example, residents have no access to a kitchen where they can prepare their own food, and they are rarely permitted to do their own laundry. Residents must also submit to regimented mealtimes, and they are rarely allowed to administer their own medications. Almost all residents see on-site doctors and psychiatrists. Some nursing facilities effectively prevent residents from moving about at will by locking exits after certain hours, requiring visitors and residents to sign in and out, prohibiting residents from leaving the facility unaccompanied, and using alarmed doors locked with key codes, even when these types of restrictions are not necessary. Nursing facilities also maintain control over the residents’ money for their personal needs, which is usually less than $40 of their state and federal benefits;
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and if residents want access to it, they must go to a staff member to get it. As one female resident explained, “When you’re at a place like this, you have to fall in line. You do what they tell you to do . . . They say ‘jump,’ you jump.” In describing the nursing facility, one man said “it feels like you’re doing prison time,” and a female resident similarly said she feels “like a prisoner.”
The activities we observed in Louisiana’s nursing facilities were limited, repetitive, and conducted on nursing facility property, rather than in the community. Weekly events include activities like bingo, arts and crafts, and singing karaoke. For example, a 60-year-old man said his nursing facility hosts “auctions” with play money in which the residents can bid for used clothing. With the lack of meaningful engagement, some residents said they were often bored, and they reported spending their days passing the time by watching television, sleeping, or smoking.
Some nursing facilities take residents on organized trips to nearby shopping centers or restaurants; but such outings are limited, rigidly scheduled, and contribute little to community integration. Residents often travel as a group in the facility’s bus or van, and the number of individuals attending the outings may be limited to however many people can fit in the vehicle. A nurse at one facility explained that when residents go on outings, all staff members wear tshirts bearing the name of the nursing facility so that people in the community will know where the group is from.
Although nursing facilities across Louisiana demonstrate these institutional, segregated qualities, our investigation found that these qualities were particularly acute in at least eight nursing facilities serving large populations of people with serious mental illness. These facilities are well-known in local communities as placements for people with serious mental illness and particularly stigmatizing for the people living at the facilities. As a staff member at one of these facilities explained, “A lot of people in the community don’t think we’re a nursing facility. . . . People think we’re a psychiatric facility.” The State appears to view these facilities similarly: Approximately 65% of people discharged from State psychiatric hospitals into nursing facilities went to these particular facilities. Some of these facilities advertise locked “behavior units,” which isolate individuals with serious mental illness in one part of the building. One nursing facility openly states on its website that the only substantive admission criteria for its “behavior unit” is that residents must be 40 years or older; able to pay with Medicaid, Medicare, or privately; and have a “[p]sychiatric diagnosis[,] with or without medical diagnosis.”
Given the foregoing, we conclude that Louisiana nursing facilities are institutional settings that segregate individuals with serious mental illness away from their homes and communities.
C. Nursing Facility Residents with Serious Mental Illness Are Appropriate for Community Placement and Do Not Oppose it.
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Our investigation revealed that a significant number of nursing facility residents with serious mental illness throughout Louisiana are appropriate for community placement and want to live in the community. After interviewing nursing facility residents across the State and reviewing their medical records, our expert concluded that many Louisianans with serious mental illness who are in nursing facilities could be served in the community with the help of the physical and mental health services and supports that already exist in Louisiana’s service system. For example, a man in his thirties who had previously worked and lived independently now spends his days alone in his room listening to the radio. He wants to go home, and according to our expert, he could be served in the community with integrated physical and mental healthcare, including a low level of direct support. A woman in her fifties came to a nursing facility in 2012 after she was hospitalized for one month. She described herself as desperate to return home so that she can work, take part in meaningful recreational activities, and spend time with people her age. In fact, her goals are realistic. Our expert found that with appropriate community-based services, including Permanent Supported Housing, she could live in the community.
There are individuals who live in the community and receive appropriate care, and they have the same mental health disabilities and needs as those in the nursing facilities. One such man who is being served by an Assertive Community Treatment team said that, prior to receiving community services, he was hospitalized and jailed. However, with the assistance of his Assertive Community Treatment team, he now lives in his own apartment that he “loves.” Various team members support him in the community with services like therapy and medication management and help him with basic needs like shopping and laundry. Another man currently served by an Assertive Community Treatment team previously experienced severe depression, homelessness, and incarceration. He attempted suicide and became estranged from his daughter. But with the help of his team, he now has a part-time job and rents an apartment. He is also in daily communication with his daughter, who now calls him “Dad,” rather than using his first name.
While many nursing facility residents with serious mental illness have low-care physical needs, our expert also concluded that those nursing facility residents with serious mental illness who do have chronic health concerns may also be served in the community with the appropriate and properly coordinated mental and physical health services. For example, we met with a nursing facility resident who had a history of mental illness in addition to obesity and a leg amputation. Our expert found that he could transition to his own home with a combination of basic mental and physical health services, including personal care services, medication management, and dietary support.
In our investigation, we encountered the common misconception that individuals with serious mental illness are particularly inappropriate for community-based treatment if they have chronic illnesses and physical disabilities. However, that perception is undermined by Louisiana’s own success with serving, in the community, nursing facility-eligible individuals with physical disabilities. There were 4,185 people with chronic health needs and physical
15

disabilities on the Community Choices Waiver at the end of 2014 and about 23,000 individuals receive Medicaid personal care services. Louisiana also had relative success with its Money Follows the Person program, which provides access to enhanced federal funding to transition individuals from nursing facilities to the community. The State used the program to transition 910 nursing facility residents with physical disabilities—but not primarily mental illness—into the community over a five-year period.
The misperception that people with serious mental illness are inappropriate for home- and community-based treatment is especially prevalent among nursing facility staff members, who operate from a nearly uniform assumption that institutionalization is the best option for residents with serious mental illness. Furthermore, staff members often have little familiarity with community-based services that are available for Louisianans with serious mental illness. For example, staff members at one facility said that when residents request a discharge and need community-based mental health services, the facility summons a psychiatrist to persuade the person to reconsider, because staff members do not believe such services are available. The administrator at a different nursing facility said, “We don’t know what a lot of the alternatives are to our facilities because that’s not what we do—the people that we take care of usually can’t stay in their homes or be in the community.” The director of social services at another facility said that when residents want to return to the community, she does not help them if she believes they will need assistance with activities of daily living or medication administration. In fact, however, the very obstacles identified by these staff members can often be overcome with the services and supports Louisiana can provide in the community.
In addition to being appropriate for the community, most of the residents we spoke with expressed their desire to return home to their communities, while others were open to exploring the idea of transitioning to the community if appropriate services were available. For example, a nursing facility resident in his sixties said he wants to leave so intensely that it makes him want to cry. A nursing facility resident in his forties said he wants to work and that “it would mean everything to me to be able to leave and have my own place.” And another nursing facility resident in his forties said he wants to live independently and explained, “I would try to find an apartment to stay in if I could. I’d like to move somewhere so I can take care of my own self.” He also noted that although he sometimes experiences symptoms of a mental illness, “I’m a human too.”
As a consequence of the foregoing, people who could and want to be served in community settings—if they had access to appropriate supports in the community—are instead languishing in institutions that do little to help them return to community life.
D. Lack of Sufficient Capacity in Existing Community-Based Services and Supports Leads to Needless Nursing Facility Admissions.
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Community-based services, including Assertive Community Treatment, Community Psychiatric Support and Treatment, Permanent Supported Housing, peer support, supported employment, and community crisis services, are essential services for people with serious mental illness in the community. While Louisiana has recognized the critical importance of evidencebased mental health services and included them in its service array, it has fallen short in developing sufficient capacity to meet the needs of individuals with serious mental illness in nursing facilities or who are at serious risk of entering nursing facilities.
One particularly important area where the State has fallen short on service capacity is with its Permanent Supported Housing program. The State acknowledges that the program is a “critical component” of community integration for people with serious mental illness and is making some efforts to expand the program so that it provides housing statewide;18 however, its capacity is woefully inadequate. Due to the program’s lengthy waitlist and application process, demand outstrips supply and individuals needlessly wait in nursing facilities for Permanent Supported Housing. At least 3,400 people throughout the State need Permanent Supported Housing, and according to the State, because these individuals do not have it, they are institutionalized, living in transitional housing, or homeless. The State recognized a “great need” to expand the Permanent Supported Housing program, particularly in the northern areas of Louisiana,19 and our investigation confirmed this to be the case. For example, one nursing facility administrator explained that a resident wanted to stay close to his elderly parents, but Permanent Supported Housing was not an option in the area where his parents lived, so he remained in the nursing facility, rather than returning to the community. Similarly, a hospital staff member in northwest Louisiana reported that, because there is neither housing nor support services available in her area, she has sent people to nursing facilities with the State’s assistance. As one of the nursing facility administrators explained, “Some residents could make it in the community and take care of themselves, but you still have to have somewhere for them to go.”
The State has also fallen short in developing other critical evidence-based practices like supported employment, Mobile Crisis services, and Assertive Community Treatment. While the State recognizes the importance of supported employment services to promote recovery of individuals with serious mental illness, it has done little to implement a coordinated statewide program of evidence-based supported employment. Only 10% of adult mental health service recipients in the State (including those with and without serious mental illness) are employed in competitive, full-time jobs.
18 Louisiana Office of Behavioral Health, FY 2014 Combined Behavioral Health Assessment and Plan Block Grant Application, at 9 (Sep. 1, 2013).
19 Id. at 58, 108.
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The lack of crisis services is also a particular problem. The State has rightly acknowledged that “[i]ncreasing alternatives by creating a crisis response network may . . . prevent the unnecessary or inappropriate long-term institutionalization of persons . . . [with] serious mental illness.”20 The State lacks both availability and consistency in the practice and delivery of crisis services, as evidenced by the fact that only 21 out of 64 parishes offer Mobile Crisis for adults. Providers across the State told us that, when people with serious mental illness are in crisis, they are frequently taken to jails. Assertive Community Treatment is also an essential service that is both understaffed and underfunded. Multiple community providers told us about the need for and lack of Assertive Community Treatment resources in their community. Critically for this population, Louisiana currently lacks an effective system of coordinated and integrated physical and mental healthcare necessary to provide for individuals with serious mental illness who may need more oversight of their medical, mental health, dietary, and rehabilitative services. The fragmentation of care across different providers and services leads to poor outcomes for individuals with serious mental illness, including institutionalization and premature death.
These gaps in mental health services place individuals with serious mental illness at serious risk of admission to nursing facilities and prevent their successful transition to the community. As one nursing facility staff member explained to us, residents are eager to return home, and “[i]f [Louisiana] had good home- and community-based services, it could work, but it’s not there.” Staff members at another nursing facility described a middle-aged resident who called two days after his discharge and asked that someone come get him because the State did not provide the necessary services to assist him with medication management or meal preparation. After being discharged without the necessary psychiatric and personal care supports in place, the man was eventually admitted to a private psychiatric hospital after a suicide attempt. The hospital then discharged him back into the same nursing facility.
The lack of community-based services has similarly delayed transitions from the State Hospital. One State Hospital staff member reported that the biggest obstacle to transition is a lack of resources to match the needs of the person. She nevertheless recalled a former hospital resident who had high needs but who is now living in the community, socially engaged, and thriving after receiving the proper supports. She concluded, “I wish [Louisiana] had more community services available so [we] could do more discharges like that.”
E. Louisiana Does Not Divert Individuals with Serious Mental Illness from Unnecessary Nursing Facility Placement.
20 Louisiana Department of Health and Hospitals, A Roadmap for Change: Bringing the Hope of Recovery to Louisianans with Mental Health Conditions, at 46 (June 2006).
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Inadequate capacity in existing services is the primary reason why individuals with serious mental illness are unnecessarily institutionalized in nursing facilities; however, the problem is exacerbated by the State’s failure to identify individuals with serious mental illness who are referred for nursing facility admission and promptly connect them with communitybased physical and mental health services. Many individuals with serious mental illness are transferred to nursing facilities directly from private psychiatric hospitals or State Hospitals following a physical or mental health crisis, yet most could receive the kinds of communitybased services that Louisiana knows how to provide, if these services were made available.
One of the most important tools to divert people from nursing facilities is the Preadmission Screening and Resident Review process, known as PASRR. Congress enacted PASRR as part of the Nursing Home Reform Act of 1987, which “was passed specifically to end the practice of inappropriately institutionalizing individuals with mental illness . . . in nursing homes.” Joseph S. v. Hogan, 561 F. Supp. 2d 280, 285 (E.D.N.Y. 2008). An effective PASRR process identifies individuals with mental illness, intellectual and developmental disabilities, or related conditions and determines how those individuals’ needs can be met in the community.21 See 42 U.S.C. § 1396r(e)(7)(A)(i),(G); 42 C.F.R. §§ 483.128(a); 483.130(l); 483.132(a)(1),(2); 483.134(b)(3),(5),(6); Preadmission Screening and Resident Review (PASRR), http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/DeliverySystems/Institutional-Care/Preadmission-Screening-and-Resident-Review-PASRR.html.
Under PASRR, states must follow “stringent procedures” in implementing a two-level screening and evaluation process prior to nursing facility admission, with limited exceptions.22 Hogan, 561 F. Supp. at 285; see also 42 U.S.C. § 1396r(e)(7)(A)(i); 42 C.F.R. §§ 483.104, 483.106, 483.128(a), 483.132(a). The PASRR Level I screen should identify any individual who might have a mental illness or an intellectual disability. 42 C.F.R. § 483.128(a). If the PASRR Level I screen indicates that the individual may have a mental illness, an intellectual disability, or a related condition, the State must apply the more rigorous PASRR Level II evaluation, which is designed to determine (a) whether an individual’s needs can be met in the community; or (b) whether, and what, specialized services can be provided in a nursing facility that will meet
21 Consistent with federal law, 42 C.F.R. § 483.102, et seq., Louisiana regulations also mandate that a PASRR screening and evaluation must “be performed for all individuals seeking admission to a Medicaid-certified nursing facility, regardless of the source of payment for the nursing facility services or the individual’s known diagnoses.” La. Admin. Code tit. 50, pt. II, § 501, 50 LA ADC Pt II, § 501.
22 PASRR regulations permit the State to exempt individuals from the evaluation process when they are discharged from a hospital and are expected to be in a nursing facility for less than 30 days. 42 C.F.R. §§ 483.106(b)(2). In order to prevent inappropriate transfers from psychiatric hospitals, however, states can elect to disregard the hospital exemption and require full PASRR evaluations for all individuals with serious mental illness.
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the individual’s needs. 42 C.F.R. §§ 483.132(a)(1),(2); 483.134(b)(5). The PASRR Level II evaluation requires a “functional assessment of the individual’s ability to engage in activities of daily living and the level of support that would be needed to assist the individual to perform these activities while living in the community.” 42 C.F.R. § 483.134(b)(5). The assessment “must determine whether this level of support can be provided to the individual in an alternative community setting or whether the level of support needed is such that [nursing facility] placement is required.” Id. Essentially, every PASRR Level II evaluation should provide a plan for receiving services in the home and community, regardless of the perceived availability of services.23
In the 2015 PASRR National Report, the federally-funded PASRR Technical Assistance Center stated, “PASRR requires that individuals with [serious mental illness] . . . not be admitted to Medicaid‐certified nursing facilities . . . until a full assessment is made, community alternatives are identified, and person‐centered services are recommended to meet the individual’s medical and PASRR disability‐related needs.” The report describes the failure to use PASRR to connect individuals to community alternatives as “both a civil rights violation and a personal tragedy” for those who are inappropriately placed in institutional settings. The report concludes, “PASRR is not merely an administrative step in the nursing home admission process—a series of boxes to be checked. On the contrary, PASRR affects lives.”
Unfortunately, Louisiana’s PASRR program does little to prevent the unnecessary institutionalization of individuals with serious mental illness in nursing facilities; rather, it helps facilitate their admission. In 2007, after finding a nursing facility approval rate of 85% in a fivestate survey, the United States Department of Health and Human Services’ Office of Inspector General reported that “the PASRR process does not appear to be used as a tool to systematically consider alternative placements to nursing facilities.”24 At an 86% approval rate, Louisiana is unfortunately no exception. According to the State, between fiscal years 2010 and 2014, it conducted 6,142 Level II PASRR determinations for people who were suspected of having mental illness. Of those individuals, the Office of Behavioral Health referred 4,595 (75%) for indefinite nursing facility placement and an additional 697 (11%) for temporary nursing facility placement. Only 14% were referred to community-based services.
PASRR Level II evaluations must involve the participation of the individual and be comprehensive, individualized, and conducted by independent assessors. 42 U.S.C. § (e)(7)(F);
23 In furtherance of their obligations under the ADA, states should use these plans to identify gaps in services on a case-by-case basis and by collating the data and using it to drive the development of evidence-based, cost-effective community supports and services.
24 Department of Health and Human Services, Office of Inspector General, Department of Health and Human Services, Preadmission Screening and Resident Review for Younger Nursing Facility Residents with Serious Mental Illness, 28 (January 2007).
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42 C.F.R. §§ 483.128, 483.130, 483.134. Louisiana’s PASRR Level II evaluations, and thus determinations, fall far short of these requirements, and these shortcomings contribute directly to the State’s failure to divert individuals with serious mental illness from unnecessary nursing facility placements.
Many of the 6,142 PASRR determinations between 2010 and 2014 were based almost exclusively on paperwork from hospitals seeking to discharge patients to other locations.25 A mere 25 individuals out of 6,142 received an in-person evaluation by an entity other than the one referring the person to the nursing facility.26 Although Level II evaluations and determinations should involve rigorous consideration of whether an individual’s needs can be met in the community, in Louisiana this rarely appears to be the case.
The regulations require comprehensive assessment of the individual’s history and current supports, as well as functional assessments of the full range of activities of daily living, including grooming, self-care, managing finances, nutrition, medication management, and the supports needed to provide the necessary level of care in the community. 42 C.F.R. § 483.134(b). Louisiana’s PASRR Level II determinations show that the State frequently admits individuals with serious mental illness to nursing facilities or extends their stay without meaningful analysis of whether and how individuals’ needs can be met in the community.
The local governing entities, the mental health authorities who could provide or arrange for community services, appear to have no involvement in the screening or diversion process for individuals with mental health needs. Compounding this problem, several nursing facility administrators readily concede that much of their business comes from individuals with serious mental illness who are given no other place to go by the State. Moreover, these facilities admit individuals with temporary Medicaid and/or PASRR nursing facility approvals and then
25 The State may contract with qualified staff at referring entities to conduct PASRR evaluations as long as the entity has no direct or indirect relationship with a nursing facility and has negotiated a payment rate for the evaluation. PASRR Technical Assistance Center, Can Hospitals Perform Level II Evaluations?, (June 11, 2014), http://www.pasrrassist.org/resources/level-ii-personnel/can-hospitals-perform-level-iievaluations.
26 As of February 2016, if the Office of Behavioral Health determines that a further faceto-face PASRR Level II evaluation is warranted, hospitals are required to refer the individual to his or her managed care organization. Department of Health and Hospitals, Bayou Health Informational Bulletin 16-4, 1 (Feb. 24, 2016). Louisiana’s nursing facilities are not under managed care; therefore, there is little incentive for its managed care organizations to avoid nursing facility placements and create meaningful opportunities for community-based services.
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repeatedly file extension paperwork with the State27 until a temporary approval becomes a longterm placement, which effectively precludes a meaningful opportunity to access community services.28
Louisiana has failed to build an effective diversion system, resulting in the unnecessary institutionalization of individuals with serious mental illness. This is likely reflected not only in the nursing facility population, but also in the State’s homeless population (1,168 homeless individuals with serious mental illness) and unnecessary incarceration. The State must properly identify qualified people with serious mental illness who are not receiving appropriate services in the community and connect them with services in the most integrated settings appropriate to their needs. It must also identify people with serious mental illness who are referred for admission to nursing facilities; promptly arrange for appropriate community-based services; and for those few who must be admitted to nursing facilities, immediately begin planning to discharge those individuals into appropriate services in the community.
F. Louisiana Fails to Transition Nursing Facility Residents with Serious Mental Illness into the Community.
Louisiana lacks an effective system to identify individuals with serious mental illness in nursing facilities who could be served in the community with appropriate supports. It does not regularly educate and inform individuals about their community-based options, and it does not plan for and implement transitions for individuals admitted to nursing facilities. As a result, once individuals with serious mental illness are admitted into nursing facilities, it is difficult for them to return to their communities, particularly after they have lost their housing and natural supports. As one community provider said, “Once someone goes to a nursing facility, we typically never see them again.”
After facilitating admission to a nursing facility, neither the Office of Behavioral Health nor the local governing entities have much ongoing contact or involvement with individuals with serious mental illness who are in nursing facilities. More particularly, the State has minimal involvement in planning for these individuals’ transition to the community. To the extent that transition planning does occur, it falls on the nursing facilities, which have neither the expertise
27 To the extent that Louisiana is making PASRR Level II determinations based upon evaluations and medical records created by the nursing facility or its contractor, this runs afoul of PASRR, which prohibits a “nursing facility or an entity that has a direct or indirect relationship with a nursing facility” from completing Level II evaluations. See 42 C.F.R. § 483.106(e)(3).
28 PASRR separately requires that, if an individual must be admitted to the nursing facility, the State must ensure that the person receives any needed specialized services for mental health, in order to ameliorate the symptoms that “necessitated institutionalization” in the first place. 42 C.F.R. § 483.120. But our investigation revealed that when Louisiana refers individuals with serious mental illness to nursing facilities, many receive minimal specialized mental health services and little assistance to return to the community promptly.
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in navigating the community mental health system nor the incentive to facilitate transitions to the community.
Failure to ensure that individuals who do transition out of nursing facilities have the necessary community-based services can result in significant harm and preventable hospital and nursing facility admissions. For example, a woman in her early fifties who lived in a nursing facility was eventually identified for transition back to the community but was discharged with only a segregated day program to meet her psychiatric needs. Shortly thereafter, the nursing facility received a call from a private psychiatric hospital requesting her readmission because she had been hospitalized following a mental health crisis.
The State’s failure to take responsibility for transitioning individuals with serious mental illness to the community, and the unsuccessful transitions that result, often lead nursing facility staff members to conclude that services do not exist in the community to support this population. Consequently, nursing facility staff members sometimes discourage people from leaving or do not respond to their requests for assistance to leave. One man in his early fifties would very much like to move out after ten years in the nursing facility, but his plan of care actually prohibits discharge discussions during quarterly reviews. A woman in her fifties said she prefers to live in an efficiency apartment where she would not need a wheelchair to get around, but she knows that no one is actively looking for a place for her. Her plan of care stated, “[The resident] desires to return to the community, but appropriate placement must be found when she is medically stable enough to care for herself.” Her discharge plan, however, said, “[The] resident has no other place to go at this time.” Our expert found that, like many other nursing facility residents we interviewed, both of these people could be served in the community with the appropriate services and supports.
The State is also not effectively using the PASRR Level II process to identify people who were admitted to the nursing facility but have subsequently become good candidates for transition. Upon observing a “significant change in the resident’s physical or mental condition,” nursing facilities must send a referral to the State for a new independent evaluation and eligibility determination. 42 U.S.C. § 1396r(e)(7)(B)(iii). Therefore, a significant improvement of the original conditions that brought the person to the nursing facility should trigger a new PASRR evaluation. However, even in instances where residents’ medical conditions improved, we found that PASRR evaluations were often missing from nursing facility resident records or were not done at all. We also found that people with serious mental illness transfer between nursing facilities when their needs change, yet they nonetheless escape detection by the State’s PASRR system.
Although PASRR does not require reevaluation for a transfer between nursing facilities, a transfer based on or required by behavioral changes (either positive or negative) should trigger a PASRR Level II reevaluation and provide an opportunity to consider whether the individual’s needs might be better addressed with evidence-based community mental health services. See 42
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U.S.C. § 1396r(e)(7)(B)(iii); 42 C.F.R. § 483.106(b)(4). The State does not do so, thereby missing another chance to connect individuals with essential community-based services.29
The State’s efforts to prevent lengthy nursing facility stays and identify individuals appropriate for transition have fallen short. For example, Louisiana offers general webinar and video trainings on the PASRR process and discharge planning for nursing facilities. The State has also begun doing time-limited authorizations of nursing facility placement for individuals with serious mental illness. The lack of sufficient community-based services and the State’s failure to facilitate individuals’ return to the community ensure that people often remain past the initial authorization period on State-granted extensions.
The State identifies individuals in nursing facilities for transition through its “level of care initiative,” but to the degree the initiative is intended to systemically identify people with serious mental illness who are appropriate for the community, it is misguided and results in poorly implemented transitions. The initiative identifies residents for potential discharge if their physical needs do not qualify for nursing facility care. It does not, however, identify all nursing facility residents with serious mental illness who want, and could be served with, appropriate services and supports in the community. Whether individuals with serious mental illness are eligible for institutional care has little bearing on whether they can be served in an integrated setting. And many individuals with serious mental illness who live in Louisiana nursing facilities qualify for nursing facility level of care, but can nonetheless be served in the community with appropriate services and supports.
When individuals are identified for discharge, they are often released with woefully insufficient community services and supports. The State’s involvement in, and oversight of, the transition process typically consists of sending notices to nursing facilities and to the resident, informing the nursing facility that it must discharge the resident, and stating that it will cut off Medicaid funding for the resident if he or she remains. As of November 2014, the State’s level of care initiative identified 624 nursing facility residents with serious mental illness who no longer qualified for a nursing facility. The State cannot account for what happened to many of these individuals following discharge. The State is aware that about ten of these individuals returned to the same nursing facility where they previously lived, and ten others are known to have accessed community-based services of some kind. These data typify the State’s hands-off approach to transition planning, implementation, and oversight. Without comprehensive discharge plans and transition services, many of the individuals discharged through the level of care initiative are at risk of re-institutionalization.
29 The State misses another opportunity to identify individuals for transition by failing to accurately track individuals with PASRR evaluations through the nursing facility assessment data.
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One nursing facility administrator expressed his concern that the clock was ticking down for 15 residents who had been identified for discharge as a result of the State’s level of care initiative. His staff members were struggling to connect residents with proper services, particularly housing, before the State-imposed deadlines expired. In fact, some nursing facilities report that when they contact the State to ask where residents are supposed to go after discharge, they are told to send them to homeless shelters.
Louisiana also participates in the Money Follows the Person program, which provides access to enhanced federal funding to transition individuals from nursing facilities to the community. However, the program has not significantly benefited people with serious mental illness, because the State has made no particular effort to use this program to transition them from nursing facilities. The Office of Behavioral Health is not a participating agency in the program, and individuals with serious mental illness are not a target population. This program has helped people who have physical disabilities, intellectual disabilities, or traumatic brain injury, and also have co-occurring mental health diagnoses. However, it is not designed to serve individuals whose primary need is for intensive mental health services provided through the Office of Behavioral Health.
Finally, the State also fails to effectively use Section Q of the Minimum Data Set30 to identify individuals interested in transitioning back to the community. All Medicaid-funded nursing facilities are required to use Section Q to make referrals for community-based living from nursing facilities. Section Q is a survey which, “if followed correctly, gives the resident a direct voice in expressing preference and gives the facility means to assist residents in locating and transitioning to the most integrated setting.”31 Accordingly, when a resident responds to the Section Q survey and indicates that he or she is interested in returning to the community, the nursing facility is required by the State to make a referral to the Local Contact Agency. However, less than 14% of the 137 individuals whom nursing facilities recorded as expressing
30 The Minimum Data Set is a comprehensive assessment of all nursing facility residents’ functional capabilities and needs. Section Q of the Minimum Data Set requires nursing facilities to ask residents if they wish to speak to someone about returning to the community and thereafter be referred to the State’s designated Local Contact Agency. The Minimum Data Set also allows states to introduce optional questions to gather data points not otherwise included in the assessment. Nursing facilities are responsible for administering this assessment on a regular basis. States can examine Minimum Data Set data to identify individuals with particular characteristics that may suggest they are appropriate for and do not oppose community placement, and these include individuals who respond positively to Section Q’s inquiry about community living.
31 United States Department of Health and Human Services’ Office for Civil Rights, Guidance and Resources for Long Term Care Facilities: Using the Minimum Data Set to Facilitate Opportunities to Live in the Most Integrated Setting, 1 (May 20, 2016).
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interest in returning to the community in 2014 were even referred to the Local Contact Agency, and only two were actually discharged with community services. Indeed, of the nursing facilities that identified people who were interested in speaking with someone about community services, more than 80% failed to refer any of those individuals to Local Contact Agencies.32
Our investigation further found that the State’s MDS Section Q data significantly underestimates the number of individuals who want to leave nursing facilities. This is likely due to the fact that Louisiana nursing facilities have vastly different methods for recording and using Section Q surveys. For example, some nursing facilities never record “yes” answers, even when there are individuals at such facilities who state that they are eager to return to the community. At one facility, we learned that staff members are actually trained to record an answer of “no” on Section Q, regardless of the resident’s wishes, if the staff member does not believe the resident can leave.
The State does not have an effective system of identification, diversion, or transition of individuals with serious mental illness from nursing facilities to appropriate community-based settings. Instead, it often places individuals with serious mental illness in segregated nursing facilities, solely relies on nursing facilities to discharge residents, and fails to ensure that individuals with serious mental illness transition to the most integrated setting appropriate to their needs.
G. Louisiana Can Reasonably Modify its Mental Health System to Serve People with Serious Mental Illness in Integrated Settings.
The Louisiana Office of Behavioral Health has stated: “It is our conviction, that the community where the person chooses to live and work is an appropriate place to provide treatment, supports, and services.”33 Accordingly, the Office of Behavioral Health’s mission is “to lead the effort to build and provide a comprehensive, integrated, person-centered system of prevention and treatment services that promote recovery and resilience for all citizens of Louisiana.”34 As the State has acknowledged: “Individuals with serious mental illnesses and addictive disorders often have co-occurring chronic medical problems. Therefore, it is important
32 The situation has not substantially improved since 2014. The nursing assessment data reveals that as of February 2016, approximately 240 people expressed interest in learning about community services sometime in the preceding year, but only a quarter were referred to Local Contact Agencies.
33 Louisiana Department of Health and Hospitals (Division of Planning and Budget), A Five Year Strategic Plan (FY 2014-2015 through FY 2018-2019), 154 (July 1, 2013).
34 Id.
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to enhance a collaborative network of primary health care providers within the total system of care.”35 These goals align with Louisiana State law, which provides that “persons with mental or physical disabilities are entitled to live in the least restrictive environment in their own community and in normal residential surroundings and should not be excluded therefrom because of their disabilities.” LA. REV. STAT. ANN. § 28:476.
Within the State’s mental health service array, Louisiana already provides many of the services and supports that are essential to helping people with serious mental illness live in their homes and communities, including Permanent Supported Housing, Assertive Community Treatment, Community Psychiatric Support and Treatment, Mobile Crisis services, and peer support. While these services are insufficient to meet demand, the State can redirect money it is currently spending on 24-hour nursing facility placements to fund services that help individuals with serious mental illness transition back to or remain in their own homes.
The State may also save money in doing so. For example, State data indicates it results in a reduction in Medicaid costs for people in the program. More generally, when compared to the estimated annual cost of roughly $22,000 in State funding for a full year of nursing facility services,36 community services for an individual with serious mental illness can generally be provided for $15,000 to $20,000 a year in State costs, even if the person requires the most intensive assistance from an Assertive Community Treatment team, a personal care attendant, and Permanent Supported Housing. This would save the State up to 30% of its nursing facility cost. Moreover, as our expert found, although many Louisianans with serious mental illness would initially need more intensive services upon transition into the community, those needs would likely decrease over time, thus further reducing the costs.
The State’s system for identification, diversion, and transition planning can be strengthened to ensure that people with serious mental illness are placed in appropriate community settings, rather than institutionalized in nursing facilities. Many of the necessary steps forward for the State are already part of the State’s obligations under PASRR, which require the State to identify people with serious mental illness, ensure that accurate evaluations are conducted independently, and connect them to community-based services. 42 U.S.C. § 1396r(e)(7)(B)(i); 42 C.F.R. §§ 483.128(a), (f); 483.130(l); 483.132(a),(b); 483.134(b)(5). Moreover, the State already has mechanisms in place to conduct PASRR evaluations and identify individuals with serious mental illness who should be served in the community. The State can strengthen these mechanisms, for example, by involving the local governing entities in Level II
35 Louisiana Office of Behavioral Health, FY 2012 Combined Behavioral Health Assessment and Plan Block Grant Application, at 64 (Sept. 1, 2011).
36 The total Medicaid cost of a full year in a nursing facility is approximately $59,000 in Louisiana, but the State pays only 38% of that amount—approximately $22,000—and the federal government pays the remainder.
27

PASRR evaluations and by providing transition planning for people with serious mental illness, just as the State already does for individuals with intellectual and developmental disabilities. In addition, through its level of care initiative, it has shown itself capable of using available data to identify at least some portion of the nursing facility population that can live in the community.
Given the array of mental health services in Louisiana, the existence of funds that could be directed to community-based settings, and the State’s ability to build upon existing processes for diversion and transition, Louisiana can reasonably modify its service system to provide mental health services in the most integrated setting appropriate.
V. RECOMMENDED REMEDIAL MEASURES
The State should promptly implement remedial measures to protect the civil rights of individuals with serious mental illness in, or at serious risk of entering, nursing facilities and to remedy the deficiencies discussed above, taking into account the needs and preferences of each individual with serious mental illness. These remedial measures should include the following:
• The State must improve the capacity of evidence-based community mental health services such as Assertive Community Treatment, Community Psychiatric Support and Treatment, peer support services, supportive employment, Mobile Crisis services, and Permanent Supported Housing. The State should ensure coordination between local government entities and community mental health providers and hospitals, law enforcement, homeless shelters, and jails to avoid unnecessary institutionalization and criminal justice involvement.
• The State must ensure the availability of sufficient home-based medical services and supports, including personal care assistance, home health, and nursing to meet both the needs of individuals with serious mental illness who want to transition to the community from nursing facilities and individuals who are at serious risk of nursing facility admission.
• The State must ensure that necessary physical and mental health services are delivered in an integrated, coordinated fashion.
• The State must develop an effective system of identifying and diverting individuals with serious mental illness from nursing facility placement. To implement an effective process, the State should, at a minimum: o Identify people with serious mental illness who are referred for admission to nursing facilities; o Ensure that individuals with serious mental illness requesting admission are evaluated by an independent evaluator who is familiar with the available community-based services; and o Promptly arrange for necessary behavioral and primary healthcare services in the community where appropriate.
28

• The State must develop an effective system of identifying and diverting 
 individuals with serious mental illness from nursing facility placement. To 
 implement an effective process, the State should, at a minimum: 
 o Identify people with serious mental illness who are referred for admission to nursing facilities; o Ensure that individuals with serious mental illness requesting admission are evaluated by an independent evaluator who is familiar with the available community-based services; and o Promptly arrange for necessary behavioral and primary healthcare services in the community where appropriate.
• The State must develop a functioning PASRR system that includes comprehensive and meaningful independent assessments and community service planning for all individuals with serious mental illness referred to nursing facilities.
• The State must implement effective, person-centered transition planning for all 
 individuals with serious mental illness institutionalized or at risk of 
 institutionalization in a nursing facility. 

• The State must provide quality services in sufficient amount to ensure individuals with serious mental illness receive the services necessary to avoid institutionalization and are integrated in the community.
We are obligated to advise you that if the State declines to enter into negotiations or if our negotiations are unsuccessful, the United States may take appropriate action, including initiating a lawsuit, to ensure the State's compliance with the ADA. However, we would prefer to resolve this matter by continuing to work cooperatively with the State and we are confident that we will be able to do so.
We will contact you soon to discuss the issues referenced in this letter and to set a date and time to meet in person to discuss a remedial framework in which to address any outstanding concerns. Please note that the letter is a public document that will be posted on the Civil Rights Division's website. If you have any questions, please feel free to contact Steven H. Rosenbaum, Chief of the Civil Rights Division's Special Litigation Section, at (202) 616-3244.
Sincerely,
~ 

Vanita Gupta Principal Deputy Assistant Attorney General
29 


cc: Stephanie A. Finley United States Attorney Western District of Louisiana J. Walter Green United States Attorney Middle District of Louisiana Kenneth Allen Polite, Jr. United States Attorney Eastern District of Louisiana Jeff Landry Attorney General of Louisiana James E. Hussey, M.D. Assistant Secretary/Medical Director Office of Behavioral Health
30

 
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U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:18-cv-00608-JWD-EWD

The United States of America v. The State of Louisiana Date Filed: 06/06/2018

Assigned to: Judge John W. deGravelles

Date Terminated: 06/07/2018

Referred to: Magistrate Judge Erin Wilder-Doomes Jury Demand: None

Cause: Americans with Disabilities Act

Nature of Suit: 446 Civil Rights:

Americans with Disabilities - Other

Jurisdiction: U.S. Government

Plaintiff

Date Filed

# Docket Text

06/06/2018 1

COMPLAINT against State of Louisiana, filed by United States. (Attachments: # 1 Attachment Civil Cover Sheet)(Gaupp, John) (Entered: 06/06/2018)

06/06/2018

2 Joint MOTION to Dismiss by United States. (Attachments: # 1 Exhibit A: Agreement to Resolve)(Gaupp, John) (Entered: 06/06/2018)

06/06/2018

3 NOTICE of Appearance by United States (Gaupp, John) (Entered: 06/06/2018)

06/07/2018 4

ORDER granting 2 Joint Motion to Dismiss. This matter is DISMISSED WITHOUT PREJUDICE, subject to retention of jurisdiction and reinstatement upon the United States motion for the purpose of resolving any claim that Defendant materially breached any provision of the Agreement, pursuant to Paragraph 127 of the Agreement. Each party shall bear its own costs. Signed by Judge John W. deGravelles on 6/7/2018. (LLH) (Entered: 06/07/2018)

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3:18-cv-00608-JWDEWD 0.10
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 Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

_________________________________________

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

)

THE STATE OF LOUISIANA,

)

)

Defendant.

)

__________________________________________)

COMPLAINT Civil Action No: 3:18-cv-608

INTRODUCTION

1. The United States brings this action to enforce the rights of adults with serious mental illness to receive services in the most integrated setting appropriate to their needs. The State of Louisiana administers and funds its programs and services for adults with serious mental illness in a manner that results in their unnecessary institutionalization in public and private nursing facilities, and places them at serious risk of such institutionalization, in violation of Title II of the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. §§ 12131-12134, and its implementing regulations. 2. Life for residents of nursing facilities is highly regimented, with little autonomy to make choices in daily life. Residents are isolated from the larger community and have limited opportunities to interact with individuals without disabilities. Nursing facilities are not integrated settings. 3. Integrated and appropriate services for adults with serious mental illness exist within the State’s publicly funded services. The State could reasonably modify its systems to provide

Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 2 of 11
adequate community-based services to those adults with serious mental illness who are inappropriately institutionalized, or at serious risk of institutionalization, in nursing facilities.
JURISDICTION AND VENUE 4. This Court has jurisdiction over this action under Title II of the ADA, 42 U.S.C. § 12133, and 28 U.S.C. §§ 1331, 1345. The Court may grant the relief sought in this action pursuant to 28 U.S.C. §§ 2201-2202; 28 C.F.R. §§ 35.170-174, 190(e). 5. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), given that a substantial part of the acts and omissions giving rise to this action occurred in the Middle District of Louisiana.
PARTIES 6. Plaintiff is the United States of America. The Attorney General brings this civil action to seek remedies for violations of Title II of the ADA. See 42 U.S.C. §§ 12133-12134; 28 C.F.R. §§ 35.170-174, 190(e). 7. Defendant, State of Louisiana, is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131(1), and is therefore subject to Title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, 28 C.F.R. pt. 35. The State is responsible for ensuring that State programs and services conform to the ADA. Louisiana administers and funds services for adults with serious mental illness through the Louisiana Department of Health. 8. The Louisiana Department of Health (LDH) manages the State’s Medicaid program, which includes coverage of behavioral health services to Medicaid-enrolled adults with serious mental illness. LDH is responsible for regulating, overseeing, and providing funding for community-based behavioral health services, including permanent supported housing.
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9. LDH also regulates, oversees, and provides funding for home and community-based services for adults with physical health needs, including the Community Choices Waiver, and Long-Term Personal Care Services (LT-PCS).
FACTUAL ALLEGATIONS A. Individuals with Serious Mental Illness Are Persons with Disabilities Protected by the
ADA. 10. Individuals with serious mental illness admitted to or at serious risk of institutionalization in nursing facilities have illnesses such as schizophrenia, bipolar disorder, or major depression that substantially limit one or more major life activities, including personal care, working, concentrating, thinking, and sleeping. They are persons with disabilities as defined by the ADA. 11. People with serious mental illness in nursing facilities in the State and those at serious risk of entry into those facilities are similar to people with serious mental illness who receive services in the community. They have similar diagnoses and needs as people who live successfully in more independent community-based settings with the types of supports and services that currently exist in the State’s community behavioral health system. The great majority of these individuals are qualified to receive mental health services in the community in integrated settings, and do not object to receiving services in those settings. B. Nursing Facilities Are Segregated, Institutional Settings. 12. Louisiana’s nursing facilities are segregated, institutional settings, where residents are unable to interact with people without disabilities to the fullest extent possible. People confined to those nursing facilities lack meaningful opportunities to choose roommates, friends, living arrangements, daily schedule, or even food and mealtimes. They lack meaningful choices for work or other ways to spend their days. Many facilities in the State have locked exits, and some
3

Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 4 of 11
also have locked gates around the building exterior. They are largely isolated from the larger community. C. Thousands of Louisianans with Serious Mental Illness Are Needlessly Entering and
Living in Nursing Facilities. 13. Individuals with serious mental illness live in nearly all of Louisiana’s 258 Medicaidfunded nursing facilities. At least eight facilities, including the State-run Villa Feliciana in Jackson, Louisiana, are known to “specialize” in taking individuals with serious mental illness. Nationally, Louisiana has one of the highest percentages of nursing facility residents with serious mental illness, with at least 3,800 individuals, or 14.5% of all residents reported in 2016. Residents with serious mental illness tend to be among the younger nursing facility residents with the fewest care needs. 14. About 1,000 Louisianans with serious mental illness enter nursing facilities each year, often directly from hospitals. They often enter nursing facilities after years of repeated hospitalizations for psychiatric crisis, homelessness, untreated substance use disorders, and incarcerations. Once institutionalized in nursing facilities, some face long-term commitments to locked “behavioral” units; others are admitted on a temporary placement that becomes longterm, effectively precluding the opportunity to return to a home in the community. 15. Individuals with serious mental illness in nursing facilities in Louisiana who express a desire to leave the facility and return to their own communities routinely receive little or no assistance to do so. One resident woman in her fifties experienced a psychiatric crisis after the death of a family member and ended up in a nursing facility. Four years later, she is still in the facility, though she is desperate to return home, spend time with people her own age, find work, and enjoy community life again. Seventy-three percent of people with serious mental illness
4

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placed in nursing facilities stay in those facilities for longer than a year, and both providers and resigned residents expect that they will stay for the rest of their lives. 16. Louisiana has long recognized that it unnecessarily relies on institutions at the expense of its community-based system and fails to provide sufficient services to enable adults with mental illness to live in the community. 17. In 2011, the State acknowledged that over the past two decades, it “has remained dependent on psychiatric hospital levels of care. . . . While other states were re-organizing their funding approach and moving to a greater proportion of high intensity community based programs, Louisiana continued to have greater fiscal resources directed toward inpatient care.” Louisiana Office of Behavioral Health, FY 2012 Combined Behavioral Health Assessment and Plan Block Grant Application, at 29 (Sept. 1, 2011). 18. Community-based services for adults with behavioral health needs already exist within Louisiana’s behavioral health system, including psychiatric services, intensive case management, Community Psychiatric Support and Treatment (CPST), Psychosocial Rehabilitation (PSR), crisis services, peer support services, Assertive Community Treatment, supported employment, substance use disorder treatment, and permanent supported housing. These services are not available uniformly throughout the State’s system. Even where available, they are not available in sufficient quantities to meet the need. 19. Home and community-based services including personal care, home health, and nursing services can support many adults with co-occurring mental and physical health care needs. Louisiana’s Community Choices Waiver, providing the most comprehensive package of nursing, home health, and personal care services, serves fewer than 5,000 people. The waiver has a
5

Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 6 of 11
waitlist of 36,000 people. Louisiana’s less-intensive Long-Term Personal Care Services (LTPCS) program serves 23,000 people. 20. Insufficient in-home supports for both behavioral and physical health needs directly contribute to nursing facility confinement for many individuals who may need only limited inhome support services in order to remain in their own homes. 21. Louisiana operates a substantial permanent supported housing program. The program assists some people in transitioning from nursing facilities but does not have sufficient supported housing or transition staff available to meet the needs of individuals with serious mental illness who remain institutionalized. Many individuals with serious mental illness who would like to transition from nursing facilities are never even referred to the entity designated to manage transitions. D. Louisiana’s Administration of Its Service System Has Caused Unnecessary Segregation
of Individuals with Serious Mental Illness in Nursing Facilities and Placed Others At Serious Risk of Unnecessary Institutionalization. 22. LDH administers Healthy Louisiana (the State’s Medicaid program), the Office of Behavioral Health, and the Office of Adult and Aging Services. Through these programs, the State determines what services will be provided, where services will be available, how services will be funded, who will be eligible for services, how service quality will be evaluated, and what providers are permitted to offer the services. 23. LDH, through its Office of Adult and Aging Services and its Office of Behavioral Health, oversees the Preadmission Screening and Resident Review (PASRR) program, pursuant to the Social Security Act, 42 U.S.C. § 1396r. Congress enacted PASRR as part of the Nursing Home Reform Act of 1987, “specifically to end the practice of inappropriately institutionalizing individuals with mental illness . . . in nursing homes.” Joseph S. v. Hogan, 561 F. Supp. 2d 280, 285 (E.D.N.Y. 2008).
6

Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 7 of 11
24. The State has not implemented an effective screening and evaluation process to divert qualified individuals away from nursing facility admission and to connect them to appropriate community-based services, as required by law. Louisiana has an 86% nursing facility approval rate for people with serious mental illness. Many people with serious mental illness are never offered community-based services as an alternative to a nursing facility placement. 25. Evidence-based practices like Assertive Community Treatment (ACT), permanent supported housing, mobile crisis services, supported employment, and peer support reduce the need for institutional care. Individuals with serious mental illness living in the community may need one or more of these community-based services at any given time to avoid unnecessary hospitalization. Yet the State fails to provide sufficient community-based behavioral health services, leaving thousands of people with no viable alternative to entering a nursing facility to obtain needed support. 26. People with serious mental illness are also forced into nursing facilities when they cannot access home and community-based services like personal care, home health, and nursing, such as when they need help with housekeeping, meal preparation, and grocery shopping and none is available. 27. Most nursing facilities have neither the expertise nor the incentive to conduct effective transition planning for people with serious mental illness. Transitions occur infrequently, and may be short-lived because of the failure to connect individuals to effective and appropriate community-based services. 28. Without effective diversion and transition systems, Louisiana will continue to unnecessarily institutionalize individuals with serious mental illness who could appropriately be served in the community.
7

Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 8 of 11
E. The State Can Provide Services in Integrated Settings by Reasonably Modifying Its Community-Based Services Systems.
29. The State can make reasonable modifications to its community-based services system to serve in integrated community settings people with serious mental illness who are currently confined to or at serious risk of entry into nursing facilities. 30. The types of services needed to support people with serious mental illness in communitybased settings already exist in Louisiana’s community-based service systems. 31. Reasonable modifications include expansion of the capacity to provide existing services, reallocation of funds from institutional settings, and maximization of federal Medicaid funding. F. The Department of Justice Investigation 32. The United States received a complaint of discrimination about Louisiana’s overuse of nursing facilities to provide services to people with serious mental illness in 2014. Following an investigation under Title II of the ADA, the United States notified the Governor of its conclusion that the State fails to provide services to adults with mental illness in the most integrated setting appropriate to their needs as required by the ADA. Letter from United States Department of Justice, Civil Rights Division to Governor John Bel Edwards (December 21, 2016). The letter provided the State notice of its failure to comply with the ADA, and identified the steps necessary for the State to meet its obligations pursuant to federal law. 33. All conditions precedent to the filing of this Complaint have been satisfied.
8

Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 9 of 11
VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT 42 U.S.C. §§ 12131-12134
34. The allegations of Paragraphs 1 through 33 of this Complaint are hereby re-alleged and incorporated by reference. 35. Defendant, State of Louisiana, is a public entity subject to Title II of the ADA, 42 U.S.C. § 12131(1). 36. The State violates the ADA by administering the State’s public health system in a manner that denies qualified adults with serious mental illness the benefits of the State’s services, programs, or activities in the most integrated setting appropriate to their needs, and by failing to reasonably modify the State’s service system to avoid discrimination against adults with mental health disabilities. 42 U.S.C. § 12132; 28 C.F.R. 35.130. 37. The State’s actions constitute discrimination in violation of Title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations at 28 C.F.R. pt. 35.
PRAYER FOR RELIEF The United States of America prays that the Court:
A. Grant judgment in favor of the United States on its Complaint and declare that the Defendant has violated Title II of the ADA, 42 U.S.C. §§ 12131 - 12134;
B. Enjoin Defendant from: 1. discriminating against adults with serious mental illness in Louisiana by failing to provide services, programs, or activities in the most integrated setting appropriate to their needs; and
9

Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 10 of 11

2. failing to provide appropriate, integrated community services, programs, or activities

to adults with serious mental illness in Louisiana so as to avoid placing these

individuals at serious risk of institutional.ization in nursing facilities; and

C. Order such other appropriate relief as the interests ofjustice may re�uire.

it{,{"'"

,f' '

This day of ....J vvJ .(.. , 2018

+I

BRANDON J, FREMIN United States Attorney Middle District of Louisiana
Isl John J. G�upp
JOHN J. GAUPP, LBN 14976 Assistant United States Attorney 777 Florida Street, Suite 208 Baton Rouge, Louisiana 70801 Telephone: (225) 389-0443 Fax: (225) 389-0685 E-mail: john.gaupp@usdoj.gov

JOHNM.GORE Acting Assistant Attorney General Civil Rights Division
A�
STEVEN H. ROSENBAUM Chief, Special Litigation Section
MARY R. BOHAN Deputy Chief C. ADRIENNE MALLINSON NH Bar No. 17126 Trial Attorney Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - PHB Washington, DC 20530 Telephone: (202) 353- 11 42 Fax: (202) 514-0212 .adriermc.malli11son@usdoj.gov

lO

Case 3:18-cv-00608-JWD-EWD Document 1 06/06/18 Page 11 of 11
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Complaint was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the court’s electronic filing system and via email. Baton Rouge, Louisiana, this 6th day of June, 2018.
/s/ John J. Gaupp
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Case 3:18-cv-00608-JWD-EWD Document 1-1 06/06/18 Page 1 of 1

 
 Case 3:18-cv-00608-JWD-EWD Document 2-1 06/06/18 Page 1 of 30
AGREEMENT TO RESOLVE DEPARTMENT OF JUSTICE INVESTIGATION
I. INTRODUCTION
1. This matter involves the services, programs, and activities for adults with serious mental illness (“SMI”) available through the public mental health and long-term care systems of the State of Louisiana (the “State”). 2. In 2014, the United States initiated an investigation of the State of Louisiana’s mental health service system to assess compliance with Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134. 3. On December 21, 2016, the United States issued its findings and conclusions in a letter to the State of Louisiana, concluding that the State unnecessarily relies on nursing facilities to serve adults with serious mental illness instead of serving them in the most integrated setting appropriate to their needs as required by the ADA. 4. The State and the United States (“the Parties”) are committed to achieving compliance with Title II of the ADA. The ADA requires that the State’s services to individuals with mental illness be provided in the most integrated setting appropriate to their needs. This Agreement has the following goals: (1) divert individuals with serious mental illness away from inappropriate nursing facility placements by requiring comprehensive evaluations and services designed to enable them to live in community-based settings; and (2) identify people with serious mental illness who have been admitted to nursing facilities but are able to and would like to transition to the community, and provide them with transition and discharge planning and community-based services sufficient to meet their needs. With this Agreement, the Parties intend to achieve the goals of serving individuals with serious mental illness in the most integrated setting appropriate to their needs, to honor the principles of self-determination and choice, and to provide quality services in integrated settings to achieve these goals. 5. In order to resolve the issues pending between the Parties regarding adults with serious mental illness living in nursing facilities, without the expense, risks, delays, and uncertainties of litigation, the Parties agree to the terms of this Agreement as stated below. This Agreement resolves the United States’ investigation of the State’s alleged unnecessary institutionalization of individuals with serious mental illness in nursing facilities.
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6. This Agreement will become effective on the date upon which it is signed by the Parties and filed with the Court.
II. DEFINITIONS 7. Case Manager is an individual with experience in coordinating or providing communitybased services and person-centered planning to members of the Target Population, as defined in Section III. Case Managers must be trained and knowledgeable about the resources, supports, services, and opportunities available in the State and be independent of Community-Based Service providers who may provide direct services to their assigned clients, and of nursing facilities. 8. Community-Based Services are person-centered services delivered in an integrated and coordinated manner to members of the Target Population provided as necessary to support individuals to live in the community and avoid unnecessary institutionalization. 9. Community Provider is an individual or entity who provides Community-Based Services, paid in whole or in part by the State, or through a managed care arrangement, to a member of the Target Population. 10. Integrated Day Activities allow individuals within the Target Population to engage in mainstream, community-based recreational, social, educational, cultural, work, volunteer, and training activities at times and frequencies and with persons of their choosing, and to interact to the fullest extent possible with non-disabled peers. 11. LGEs are Local Governing Entities, which are created as special districts and which, through their boards, direct the operation and management of community-based programs and services relative to public health, mental health, developmental disabilities, and substance abuse services in each of ten regions. 12. LDH is the Louisiana Department of Health. 13. Medicaid Managed Care Organization (MCO) is a private entity that contracts with LDH to provide core benefits and services to Louisiana Medicaid MCO program enrollees in exchange for a monthly prepaid capitated amount. The entity is regulated by the Louisiana Department of Insurance with respect to licensure and financial solvency, pursuant to La. R.S. 22:1016; with respect to its products and services offered pursuant to the Louisiana Medicaid Program, it is solely regulated by the LDH. 14. OAAS is the Louisiana Office of Aging and Adult Services. 15. OBH is the Louisiana Office of Behavioral Health.
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16. Permanent Supportive Housing is integrated, permanent, affordable housing with tenancy rights and flexible, non-mandatory supports and services that enable the individual to live in the community and avoid unnecessary institutionalization and/or homelessness. 17. Person-centered planning is a Medicaid-mandated process driven by the individual that identifies supports and services that are necessary to meet the individual’s needs in the most integrated setting. The individual directs the process to the maximum extent possible and is provided sufficient information and support to make informed choices and decisions. The process is timely and occurs at times and locations convenient to the individual; reflects the cultural and linguistic considerations of the individual; provides information in plain language and in a manner that is accessible to individuals within the Target Population; and includes strategies for resolving conflict or disagreement that arises in the planning process. 18. Recovery is a process of change through which individuals improve their health and wellness, live self-directed lives, and strive to reach their full potential. 19. Serious Mental Illness (“SMI”) is a major mental disorder as described in 42 CFR 483 Subpart C (i)-(iii). Application of this definition should also take into consideration the current Diagnostic and Statistical Manual of Mental Disorders (DSM) definitions such as Schizophrenia Spectrum Disorders, other Psychotic Disorders, Bipolar Related Disorders, Depressive Disorders, Anxiety Disorders, Personality Disorders, Trauma Related Disorders or other major mental disorders that result in functional limitations in major life activities, including within the 6 months prior to nursing facility application, are not a primary diagnosis of dementia or co-occurring with a primary diagnosis of dementia, and are not episodic or situational. 20. Subject Matter Expert is an individual chosen by the Parties with expertise in administration and financing of states’ mental and physical health services and substance use treatment programs. This individual will provide technical assistance to the State as set forth in the Agreement. 21. Supported Employment is an evidence-based practice that helps individuals with SMI participate as fully as possible in the competitive labor market. It includes job development, job finding, job carving, job customization, co-worker and peer supports, self-employment supports, re-employment supports, time management training, benefits counseling, job coaching, transportation, workplace accommodations, assistive technology assistance, and specialized onthe-job training.
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22. Tenancy Supports enable individuals to obtain, maintain, and remain in housing, including, but not limited to assistance as needed with: searching for and securing appropriate, accessible housing; meeting with landlords to discuss rental concerns; completing the application process for housing; negotiating a lease; requesting needed reasonable accommodations and modifications; arranging for home modifications prior to move-in and in response to changing needs over time; the moving process; meeting the obligations of tenancy; and interfacing with landlords and neighbors. Tenancy Supports will be flexible and available as needed and desired, but will not be mandated as a condition of tenancy. 23. Transition Services are the non-recurring short-term services and supports necessary to enable a member of the Target Population to transition to a community setting from a nursing facility, including payments for moving expenses such as security deposits, essential furnishings, and fees or deposits for utilities; health and safety measures such as pest or allergen control or cleaning prior to occupancy; timely application and assurance of receipt of benefits including, but not limited to Social Security, Medicaid, Medicare, Temporary Assistance to Needy Families, and the Supplemental Nutrition Assistance Program, and assistance with appeal of benefit denials and connecting individuals with nonprofit Louisiana legal services agencies; and working with the SSI/SSDI Outreach, Access, and Recovery (SOAR) program.
III. TARGET POPULATION 24. The Target Population comprises (a) Medicaid-eligible individuals over age 18 with SMI currently residing in nursing facilities; (b) individuals over age 18 with SMI who are referred for a Pre-Admission Screening and Resident Review (PASRR) Level II evaluation of nursing facility placement during the course of this Agreement, or have been referred within two years prior to the effective date of this Agreement; and (c) excludes those individuals with co-occurring SMI and dementia, where dementia is the primary diagnosis. 25. Members of the Target Population shall be identified through the Level II process of the Pre-Admission Screening and Resident Review (PASRR), 42 C.F.R. 483.100-138. LDH shall perform additional analysis of the assessment information contained in the Minimum Data Set (MDS) of information reported to the Centers for Medicare and Medicaid Services (CMS), to identify individuals who may have required a Level II screen but did not receive one. 26. The State will develop and maintain a Target Population priority list of individuals who meet the criteria described in paragraphs 24 and 25.
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27. People in the State who have SMI but are not in the Target Population may request services described in Section VI of this Agreement or, with their informed consent, may be referred for such services by a provider, family member, guardian, advocate, officer of the court, or State agency staff. Once LDH receives a request or referral, the person with SMI will be referred for services in accordance with the State’s eligibility and priority requirements, and provided notice of the State’s eligibility determination and their right to appeal that determination.
IV. DIVERSION AND PRE-ADMISSION SCREENING A. Diversion 28. Diversion is a set of activities that occur before an individual is admitted to a nursing facility, which seek to provide an appropriate alternative placement to a nursing facility and meet the individual’s needs in the most integrated setting. 29. The State shall develop and implement a plan for a diversion system that has the capability to promptly identify individuals in the Target Population seeking admission to nursing facilities and provide intervention and services to prevent unnecessary institutionalization. The State's plan shall include, but not be limited to, development of services identified in Section VI, below. 30. Currently, approximately 80% of admissions of persons with SMI to Louisiana nursing homes are from hospitals. LDH will therefore develop and implement an evidence-based system that seeks to divert persons with SMI from the avoidable hospitalizations that place them at risk for subsequent nursing facility admission. 31. LDH shall also implement improvements to its existing processes for screening individuals prior to approving nursing facility placement. 32. The State will ensure that all individuals applying for nursing facility services are provided with information about community options. B. Screening and Evaluation 33. All screenings and evaluations shall begin with the presumption that individuals can live in community-based residences. For any individual for whom a nursing facility placement is contemplated, the PASRR Level I screening will be conducted by a qualified professional prior to nursing facility admission to determine whether the individual may have a mental illness. To improve identification of persons with mental illness through the PASRR Level I screening, LDH shall develop and implement standardized training and require that all personnel who complete any part of the Level I screening, excepting physicians, receive this training.
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34. For each individual identified through the Level I screen, LDH will promptly provide a comprehensive PASRR Level II evaluation that complies with federal requirements. It shall be conducted by an evaluator independent of the proposed nursing facility and the State. This evaluation will confirm whether the individual has SMI and will detail with specificity the services and supports necessary to live successfully in the community. It shall address options for where the individual might live in the community. LDH shall provide additional training to ensure that PASRR Level II evaluators are familiar with the complete array of home and community-based services available to provide and maintain community-integration, and shall revise Level II forms to include more extensive and detailed information regarding services in the community. 35. LDH shall refer all persons screened as having suspected SMI but also suspected of having a primary diagnosis of dementia, including Alzheimer’s disease or a related disorder, for PASRR Level II evaluation, including those aged 65 or older. LDH shall strengthen documentation requirements used to establish a primary diagnosis of dementia relative to the PASRR screening process. For individuals without sufficient documentation to establish the validity of a primary dementia diagnosis, LDH shall provide an additional professional evaluation to ensure appropriate diagnosis and differentiation. The evaluation shall rule out external causes of the symptoms of dementia such as overmedication and neglect. Individuals with a primary diagnosis of dementia shall be provided with information regarding community-based service options, but shall not be included within the Target Population for the purposes of this Agreement. 36. LDH will implement changes to its Level of Care determination process to assure that individuals meeting on a temporary pathway eligibility for nursing facility services receive only temporary approval and must reapply for a continued stay. Within 18 months of the execution of this agreement, LDH will eliminate the behavioral pathway as an eligibility pathway for new admissions to nursing facilities. 37. LDH, following approval of a Level II determination that in accordance with 42 CFR 483.132(a)(1) includes assessment of whether the individual’s total needs are such that they can be met in an appropriate community setting, will initially approve nursing facility stays for no more than 90 days (or 100 days for persons approved for convalescent care by LDH) for an individual in the Target Population. If nursing facility admission for a limited period of time is approved by LDH, the approval shall specify the intended duration of the nursing facility admission, the reasons the individual should be in a nursing facility for that duration, the need for
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specialized behavioral health services, and the barriers that prevent the individual from receiving community-based services at that time. 38. For the Target Population, LDH shall require that the MDS responses used to establish level of care for stays beyond 90 days (or 100 days for persons approved for convalescent care by LDH), be verified by a qualified party unaffiliated with the nursing facility. 39. In addition, LDH will ensure that each individual with SMI who has been admitted to a nursing facility receives a new PASRR Level II evaluation conducted by a qualified professional independent of the nursing facility and the State annually, and upon knowledge of any significant change in the resident’s physical or mental condition, to determine whether the individual’s needs can be met in a community-based setting. Examples of significant change that can occur subsequent to nursing facility admission include, but are not limited to: improvements or declines in physical or mental health; behavioral incidents triggering facility transfers or other change in an individual’s living conditions; changes in mental health diagnosis or in dosage or type of psychotropic medication; and requests for community placement.
V. TRANSITION AND RAPID REINTEGRATION A. Comprehensive Transition Planning 40. LDH will offer comprehensive transition planning services to all individuals in the Target Population who are admitted to a nursing facility in Louisiana. LDH’s approach to transition planning shall address two distinct situations: (1) the need to identify and transition members of the Target Population already in nursing facilities at the effective date of this agreement, and (2) the need to identify and transition members of the Target Population admitted to nursing facilities after the effective date of this agreement. 41. If the State becomes aware of an individual in a nursing facility who should have received a PASRR Level II evaluation, but did not, the State will refer the individual to the Level II authority for evaluation. 42. LDH shall form transition teams composed of transition coordinators from the LDH Office of Aging and Adult Services, the LDH Office of Behavioral Health, and the LDH Office for Citizens with Developmental Disabilities. The relative number of transition coordinators hired or otherwise provided by each of these LDH offices will be based upon an analysis of the characteristics of the Target Population residing in Louisiana nursing facilities as well as trends in nursing facility admissions relative to the Target Population. This approach builds upon the State’s
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experiences and success within its existing Money Follows the Person program which transitions roughly 300 people per year from nursing facilities. The addition of OBH transition coordinators to the State’s existing transition framework is to assure that the comprehensive transition plan fully identifies and addresses behavioral health needs. OBH transition coordinators shall facilitate medically necessary community behavioral health services for members of the Target Population whose behavioral health services are covered under Medicaid. Similarly, OAAS transition coordinators shall assess, plan for, and facilitate access to home and community-based services (HCBS) overseen by OAAS, such as long-term personal care services (LTPCS), Community Choices Waivers, and Permanent Supportive Housing. OCDD transition coordinators shall provide this same assistance for members of the Target Population who have a co-occurring developmental disability. 43. LDH’s transition teams as described in paragraph 42 above shall be responsible for developing an Individualized Transition Plan (ITP) for each member of the Target Population who is residing in a nursing facility. The ITP shall address the service needs identified through the PASRR Level II process as well as additional needs identified by transition team members. 44. Transition planning will begin with the presumption that with sufficient services and supports, individuals can live in the community. Transition planning will be developed and implemented through a person-centered planning process in which the individual has a primary role, and based on principles of self-determination and recovery. LDH shall ensure that the transition planning process includes opportunities for individuals to visit community settings. 45. The process of transition planning shall begin within three working days of admission to a nursing facility, and shall be an interactive process in which plans are updated to reflect changes in the individual’s status and/or goals and in the strategies or resources identified to achieve those goals. The State shall assign a transition coordinator who shall initiate contact with the individual within three working days of admission. A face-to-face meeting shall occur within 14 calendar days of admission for new admissions. The Implementation Plans described in Section X shall specify timeframes for transition planning for members of the Target Population residing in nursing facilities as of the Effective Date. 46. The transition plans will accurately reflect and include: (a) the individual’s strengths, preferences, needs, and desired outcomes; (b) a list of the services and supports the individual currently receives; (c) a description of how the services and supports the individual currently
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receives will be provided in the community; (d) any other specific supports and services that would allow the individual to transition successfully back to his or her home and to avoid unnecessary readmission to an institutionalized setting, regardless of whether those services are currently available; (e) Case Management services consistent with Section V.E. of this Agreement; (f) the specific Community Provider(s) who will provide the identified supports and services, and the needed frequency and intensity of services and supports; (g) resources that the individual will call on if she or he experiences crisis in the community; and (h) the date the transition will occur, as well as the timeframes for completion of needed steps to effect the transition. 47. The transition teams shall interface with case managers for each transitioning individual to assure that all services necessary to transition the individual are provided at the appropriate time and that all persons transitioned have a community plan of care in place with necessary services authorized at the point of transition to the community. 48. The Implementation Plan, described in Section X, shall define the process for assigning case management responsibility to support individuals in the Target Population. 49. Transition teams and the LDH managerial staff who oversee their work will also conduct post-transition follow-up to assure that services in the community are initiated and delivered to individuals in a fashion that accomplishes the goals of the transition plan. 50. Members of the Target Population who will lose Medicaid financial eligibility upon transition to the community shall be referred for services through safety net behavioral health providers such as the LGEs and Federally Qualified Health Care providers. 51. For members of the Target Population who are eligible to remain in the nursing facility and choose to do so, LDH will document the steps taken to identify and address barriers to community living, and document efforts to ensure that the individual’s decision is meaningful and informed. This same procedure will also apply for members who choose to move to a setting that is not community based. 52. To assist the State in determining whether Target Population members are offered the most integrated placement appropriate to their needs, the Subject Matter Expert (“Expert”) will review all transition plans that identify an assisted living facility, personal care home, group home, supervised living house or apartment, rooming house, or psychiatric facility as the individual’s residence, for the first two years of this Agreement. Thereafter, the State and the Expert will determine the appropriate scope of review as part of the State’s quality assurance efforts.
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53. LDH will develop procedures for addressing safety and choice for members of the Target Population who lack decision-making capacity. B. Outreach and Transition for Target Population Members in Nursing Facilities 54. Within dates to be specified in the Implementation Plan, LDH will analyze MDS data to identify members of the Target Population residing in nursing facilities. LDH will begin outreach to these individuals according to timeframes to be specified in the Implementation Plan. Outreach shall consist of face-to-face assessment of the individuals by one or more members of the transition team using a process and protocols to be agreed upon by LDH and the United States. 55. Based upon information gained as a result of outreach, as well as other information available to LDH, LDH may develop a plan to prioritize individuals for transition based upon such factors as location or concentration of members of the Target Population in certain facilities or regions, likelihood of successful transition as measured by MDS-based tools, individual access to housing or availability of housing in the area in which the person wishes to reside, and other factors. The goal of such prioritization will be to effect multiple successful transitions within two years of the effective date, on a schedule specified in the Implementation Plan, and to incorporate lessons learned into the State’s practices. 56. LDH will transition members of the Target Population according to timelines agreed upon by LDH and the United States and set forth in the Implementation Plan. 57. Members of the Target Population will be transitioned back to their previous community living situations whenever viable, or to another community living situation, according to the timeframes set forth in the Individual Transition Plan. C. Transition Support Committee 58. LDH will create a Transition Support Committee to assist in addressing and overcoming barriers to transition for individual members of the Target Population when those barriers cannot be successfully overcome by transition team members working with service providers, the individual, and the individual’s informal supports. The Transition Support Committee will include personnel from OAAS and OBH, and ad hoc representation as needed to address particular barriers in individual cases as well as systemic barriers affecting multiple members of the Target Population. Additional members with experience and expertise in how to successfully resolve barriers to discharge may include OCDD, Assertive Community Treatment team members, Permanent Supportive Housing staff and/or providers, community physical and home health
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providers, representatives of agencies responsible for benefits determinations, Adult Protective Services staff, LGEs, and certified peer specialists. A list of such ad hoc members shall be approved by the Expert. D. Post-Discharge Community Case Management 59. Ongoing case-management in the community shall be provided to members of the Target Population for a minimum of twelve months following discharge from the nursing facility. 60. The Implementation Plan shall describe LDH’s plan to ensure case management services are provided to the Target Population. Case management services shall provide consistency, and continuity, both pre- and post-transition. Services will be of sufficient intensity to ensure case managers are able to identify and coordinate services and supports to help prevent reinstitutionalization and assist the individual to maintain community placement. This will include assuring access to all medically necessary services covered under the State’s Medicaid program, including but not limited to assistance with activities of daily living (ADLs) and instrumental activities of daily living (IADLs), behavioral and physical health services, substance use disorder services, integrated day activities such as supported employment and education, and community connections. LDH shall ensure capacity to provide face to face engagement with individuals in the Target Population, through case management and/or through the appropriate behavioral health provider. 61. The case manager will assure that each member of the Target Population receiving Medicaid services has a person-centered plan that will assist the individual in achieving outcomes that promote individual’s social, professional, and educational growth and independence in the most integrated settings. E. Tracking 62. By the date specified in the Implementation Plan, LDH will develop and implement a system to identify and monitor individuals in the Target Population who remain in Louisiana Medicaid after their transition from a nursing facility in order to: ensure health and safety in the community; assess whether supports identified in the individual’s discharge plan are in place and achieving the goals of integration; identify any gaps in care; and address proactively any such gaps to reduce the risk of readmission or other negative outcomes. The monitoring system shall include both face to face meetings with individuals in the Target Population and tracking by service utilization and other data.
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VI. COMMUNITY SUPPORT SERVICES A. Crisis System 63. LDH will develop and implement a plan for its crisis services system. LDH will ensure a crisis service system that provides timely and accessible services and supports to individuals with SMI experiencing a behavioral health crisis within their local community. The services shall include a mobile crisis response capacity, crisis intervention services, and crisis telephone lines, consistent with the principles outlined below. Crisis services shall be provided in the most integrated setting appropriate (including at the individual’s residence whenever practicable), consistent with community-based crisis plans developed for individuals receiving services, or in a manner that develops such a plan as a result of a crisis situation, to prevent unnecessary hospitalization, incarceration, or institutionalization. 64. LDH will ensure that the Target Population has access to a toll-free crisis hotline in each community 24 hours a day, 7 days a week, staffed by qualified providers, with sufficient capacity to preclude the use of answering machines, third-party answering services, and voicemail. Crisis hotline staff will try to resolve the crisis over the phone, and if needed will provide assistance in accessing face-to-face intervention, arranging an urgent outpatient appointment, providing phone consultation with a Licensed Mental Health Practitioner if a higher level of clinical skill is needed, or connecting the caller with peer support services. 65. LDH will, through the Implementation Plan, ensure that a face-to-face, mobile crisis response capacity is available statewide before termination of this agreement. Mobile crisis response shall have the capacity to respond to a crisis at the location in the community where the crisis arises with an average response time of one hour in urban areas and two hours in rural areas, 24 hours a day, seven days a week. Mobile crisis response will have the capacity to support resolution of the crisis in the most integrated setting, including arranging urgent outpatient appointments with local providers, and providing ongoing support services for up to 15 days after the initial call. 66. LDH will, through the Implementation Plan, ensure that a crisis receiving system is developed statewide with capacity to provide community-based de-escalation and recovery services to individuals experiencing crisis. The State shall conduct a gap analysis and develop crisis receiving system components in community-based settings designed to serve as home-like alternatives to institutional care, such as walk-in centers and crisis or peer respite apartments, or
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other evidence-based practices. LDH shall discourage co-locating in an institutional setting any new crisis receiving services developed during the term of this Agreement. Crisis or peer respite apartments developed through the Implementation Plan will have no more than two beds per apartment, with peer staff on site and licensed clinical staff on call 24 hours per day, seven days per week. 67. LDH is working to address the State’s opioid crisis and other co-occurring substance use disorders affecting the Target Population. As part of this effort, LDH shall ensure statewide network adequacy of detoxification, rehabilitation, and intensive outpatient substance use disorder (SUD) recovery services. SUD services shall have sufficient capacity to accept walk-ins and referrals for the Target Population from crisis services, emergency services, and law enforcement personnel. With the technical assistance and approval of the Expert, the State shall develop policies, procedures, and core competencies for substance use recovery, rehabilitation, and detoxification service providers. 68. LDH will collaboratively work with law enforcement, dispatch call centers, and emergency services personnel to develop policies and protocols for responding to mental health crises in the community and will support development and training of Crisis Intervention Teams and other initiatives that increase the competency of officers and emergency services personnel when engaging individuals with mental illness or substance use disorders. 69. The State shall develop policies, procedures, and core competencies for crisis services providers, which shall be developed with the technical assistance and approval of the Expert prior to implementation. The State shall also develop quality assurance measures for all Providers of community-based crisis services, including, at a minimum, tracking response times, and dispositions at the time of crisis and at post-crisis intervals of 7 and 30 days. The State shall consult with the Expert in selecting its quality assurance measures for providers of community crisis services. B. Assertive Community Treatment 70. The State will expand Assertive Community Treatment (“ACT”) services to ensure network adequacy and to meet the needs of the Target Population. 71. Members of the Target Population who require the highest intensity of support will be provided with evidence-based ACT services if medically necessary. The State shall review its
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level of care or eligibility criteria for ACT services to remove any barriers to access identified by the State or the Expert resulting in inadequate access for the Target Population. 72. ACT teams will operate with high fidelity to nationally-recognized standards, developed with the technical assistance and approval of the Expert. C. Intensive Community Support Services (ICSS) 73. In Louisiana, ICSS are provided through a variety of community-based mental health rehabilitation services as described below. Managed Care Organizations (MCOs) manage Medicaid reimbursable services for the treatment of mental health and substance use disorders. LDH shall monitor the MCOs, LGEs, and Medicaid provider network to ensure the number and quality of community mental health service providers are sufficient to enable individuals in the Target Population to transition to and live in the community with needed Community-Based Services. LDH will take into account rates and billing structure for Community-Based Services to ensure that all members of the Target Population have access to ICSS of sufficient intensity to support their transition, recovery, and maintenance in the community. 74. LDH will continue to provide services comparable to the following services currently provided: (a) Community Psychiatric Support and Treatment (CPST) services are goal-directed supports and solution-focused interventions intended to achieve identified goals or objectives as set forth in the individual's individualized treatment plan; (b) Psychosocial rehabilitation (PSR) services are designed to assist the individual with compensating for or eliminating functional deficits and interpersonal and environmental barriers associated with his or her mental illness. The intent of PSR is to restore the fullest possible integration of the individual as an active and productive member of his or her family and community with the least amount of ongoing professional intervention; and (c) Crisis intervention (CI) services are provided to a person who is experiencing a psychiatric crisis and are designed to interrupt and ameliorate a crisis experience, via a preliminary assessment, immediate crisis resolution and de-escalation, and referral and linkage to appropriate community services to avoid more restrictive levels of treatment. 75. LDH will seek necessary waivers and/or CMS approvals to ensure that individuals in the Target Population identified as needing assistance with activities of daily living (ADLs) and instrumental activities of daily living (IADLs) are provided with services sufficient to meet their needs.
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76. LDH, in partnership with stakeholders, will review and recommend improvements to existing provisions governing the fundamental, personal, and treatment rights of individuals receiving community-based mental health services. 77. Staff for each of the services in VI A-C shall include credentialed peer support specialists as defined by LDH. D. Integrated Day Activities 78. The State will develop and implement a plan to ensure that all individuals in the Target Population have access to an array of day activities in integrated settings. Integrated Day activities shall include access to supported employment and rehabilitation services, which may include but are not limited to competitive work, community volunteer activities, community learning, recreational opportunities, and other non-congregate, integrated day activities. These activities shall: (a) offer integrated opportunities for people to work or to develop academic or functional skills; (b) provide individuals with opportunities to make connections in the community; and (c) be provided with high fidelity to evidence-based models. The Implementation Plan will provide for development of supported employment services in the amount, duration, and intensity necessary to give members of the Target Population the opportunity to seek and maintain competitive employment in integrated community settings consistent with their individual, personcentered plans. E. Peer Support Services 79. LDH shall ensure certified Peer Support Specialists will continue to be incorporated into its rehabilitation services, CPST, PSR, CI, ACT, Crisis Services, Residential Supports, Integrated Day, SUD Recovery, and Supported Employment systems. Peer support services will be provided with the frequency necessary to meet the needs and goals of the individual’s person-centered plan. LDH shall ensure peer support services are available to all individuals with SMI transitioning from nursing facilities, both prior to and after transition to the community. F. Housing and Tenancy Supports 80. The State will develop a plan to provide access to affordable, community-integrated housing for members of the Target Population. This includes but is not limited to expansion of the State’s current Permanent Supportive Housing Program, which includes use of housing opportunities under the State’s current 811 Project Rental Assistance (PRA) demonstration. Housing services will ensure that members of the Target Population can, like Louisianans without
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disabilities, live in their own homes, either alone, with family members, or with their choice of roommates. 81. In the Implementation Plan, the State shall set annual targets for creation of additional housing units and rental subsidies to be made available to members of the Target Population, for a combined total of 1,000 additional units and rental subsidies before termination of the Agreement. Once targets are achieved, the State shall maintain the availability of units and/or subsidies at the achieved target level for the term of this Agreement. Mechanisms to accomplish these targets shall be specified in the State’s Implementation Plan, and include, but are not limited to, the following: (a) the State shall use some portion of the existing capacity in its current Permanent Supportive Housing program to house members of the Target Population through the institutional preference that prioritizes access to PSH units for persons in institutions; (b) the State shall use tenant-based vouchers in conjunction with Tenancy Supports offered through the Louisiana Permanent Supportive Housing Program to create supported housing opportunities for members of the Target Population; a portion of 125 existing vouchers shall be used for members of the Target Population; (c) through its statutory relationship with Public Housing Authorities, the State may seek to make available additional tenant-based vouchers for the Target Population; (d) the State, through the Louisiana Housing Corporation (LHC), shall continue to use existing incentives in the Low Income Housing Tax Credit (LIHTC) Qualified Allocation Plan (QAP) to create new units for the State’s Permanent Supportive Housing Program; (e) the State shall additionally establish state-funded short or long term rental subsidies as needed to meet the requirements of this agreement. Within 18 months of the execution of this agreement, the State shall establish a minimum of 100 State-funded short-term rental subsidies to assist with initial transitions. 82. Consistent with the State’s current Permanent Supportive Housing Program: (a) tenancy supports shall be voluntary; refusal of tenancy supports shall not be grounds for denial of participation in the Permanent Supportive Housing Program or eviction; (b) individuals shall not be rejected categorically for participation in Louisiana Permanent Supportive Housing due to medical needs, physical or mental disabilities, criminal justice involvement, or substance use history; and (c) in order to satisfy the requirements of this Section E, housing shall be community integrated and scattered site. For purposes of this Agreement, to be considered scattered site housing, no more than two units or 25% of the total number of units in a building, whichever is
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greater, may be occupied by individuals with a disability referred by or provided supports through the State’s permanent supportive housing program or individuals who are identified members of the Target Population under this Agreement. For purposes of this Agreement, and consistent with provisions of the State’s existing permanent supported housing program, community-integrated housing shall not include licensed or unlicensed personal care, boarding, or “room and board” homes, provider-run group homes, or assisted living facilities. It may include monitored in-home care provided to individuals in the Target Population eligible for Medicaid waiver services. 83. The State shall employ Tenancy Supports Managers (TSMs) sufficient to conduct landlord outreach, provide tenancy supports when Medicaid enrolled providers are unable to do so, provide technical assistance and support to landlords and/or tenancy supports providers during the leasing process, and address crises that pose a risk to continued tenancy. TSMs shall have demonstrated experience finding and securing integrated housing and providing Tenancy Supports to individuals with mental illness. The State shall take steps to assure the preservation of existing housing for members of the Target Population when a member of the Target Population is admitted to a hospital or nursing facility, or is known to be incarcerated in connection with a mental health crisis or behavioral incident. 84. The State shall seek funding to cover such expenses as security deposits and other necessities for making a new home. The State shall use HOME Tenancy Based Rental Assistance for security and utility deposits for members of the Target Population. G. Medicaid Authority for Provision of Services to the Target Population 85. LDH may seek federal approval of an 1115 or other Medicaid waiver to provide comprehensive services to the Target Population. LDH shall ensure its Medicaid rates are adequate to achieve and sustain sufficient provider capacity to provide HCBS and mental health services to the Target Population.
VII. OUTREACH, INREACH, AND PROVIDER EDUCATION AND TRAINING A. Outreach 86. LDH shall conduct broad stakeholder outreach to create awareness of the provisions of this Agreement and actions taken by LDH to accomplish the goals of the agreement. Such outreach may include, but shall not be limited to, existing forums such as meetings of the Developmental Disabilities Council, Behavioral Health Advisory Council and regularly scheduled meetings between LDH, provider associations, and advocacy groups. LDH will conduct outreach
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specifically to individuals currently receiving mental health services for the purpose of sharing this information and collecting feedback on the service array. 87. Within six months of execution of this Agreement, LDH will develop and implement a strategy for ongoing communication with community providers, nursing facilities, and hospitals on issues related to implementation of this Agreement. This strategy will include engaging community providers, nursing facilities and hospitals so that LDH learns about challenges encountered in the implementation of this Agreement and can engage the providers in addressing such challenges. This will, when needed, include the provision of technical assistance related to State policies and procedures that affect compliance with the Agreement. 88. LDH will incorporate into its plan for pre-admission diversion (Section IV.C.) any targeted outreach and education needed to successfully implement that plan, including outreach to law enforcement, corrections and courts. B. In-Reach 89. Within six months of execution of the Agreement, LDH will develop a plan for ongoing in-reach to every member of the Target Population residing in a nursing facility, regular presentations in the community in addition to onsite at nursing facilities, and inclusion of peers from the Target Population in in-reach efforts. In-reach will explain LDH’s commitment to serving people with disabilities in the most integrated setting; provide information about Community-Based Services and supports that can be alternatives to nursing facility placement; provide information about the benefits of transitioning from a nursing facility; respond to questions or concerns from members of the Target Population residing in a nursing facility and their families about transition; and actively support the informed decision-making of individuals in the Target Population. C. Provider Training 90. Training for services provided pursuant to this Agreement will be designed and implemented to ensure that Community Providers have the skills and knowledge necessary to deliver quality Community-Based Services consistent with this Agreement. 91. With the technical assistance and approval of the Expert, LDH will establish a mandatory training policy, qualifications, and curriculum for Community Providers. The curriculum will include initial training and continuing training and coaching for Community Providers.
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92. The curriculum will emphasize person-centered service delivery, community integration, and cultural competency. The curriculum will incorporate the provisions of this Agreement where applicable. LDH will seek input from individuals receiving services regarding the training curriculum and will include such individuals in the training where appropriate.
VIII. QUALITY ASSURANCE AND CONTINUOUS IMPROVEMENT 93. Community-Based Services will be of sufficient quality to ensure individuals in the Target Population can successfully live in, transition to, and remain in the community, and help individuals achieve positive outcomes, including avoidance of harms, stable community living, and increased integration, independence, and self-determination in all life domains (e.g., community living, employment, education, recreation, healthcare, and relationships). 94. Accordingly, by December 2019, the State will develop and implement a quality assurance system consistent with the terms of this Section. 95. For individuals in the Target Population receiving services under this Agreement, the State’s quality assurance and critical incident management system will identify and take steps to reduce risks of harm; and ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings, consistent with principles of self-determination. The State will collect and evaluate data; and use the evaluation of data to identify and respond to trends to ensure continuous quality improvement. 96. The State will require that professional Community Providers implement critical incident management and quality improvement processes that enable them to identify service gaps and to timely identify, address, and remediate harms, assess the effectiveness of corrective or remedial actions, and reduce risk of recurrent harm. The State will require that MCOs implement critical incident management and quality improvement processes that enable them to identify and address service gaps and to timely identify, address, and remediate harms, assess the effectiveness of corrective or remedial actions, and reduce risk of recurrent harm. 97. The State will establish reporting and investigation protocols for significant incidents, including mortalities. The protocols will require a mortality review of deaths of individuals in the Target Population in specified circumstances, including any unexplained death, any death within 60 days of discharge from a Nursing Facility, and any death in which abuse, neglect, or exploitation is suspected. Mortality reviews will be conducted by multidisciplinary teams, and will have at least one member who is neither an employee of nor contracted with OAAS, OBH, the LGEs,
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MCOs, and Community Providers. The reporting and investigation protocols for significant incident and mortality reviews shall be developed with the technical assistance and approval of the Expert. 98. On a regular basis, and as needed based on adverse outcomes or data, the State will assess provider and MCO services, the amount, intensity, and availability of such services, and quality assurance processes, and will take corrective actions where appropriate to ensure sufficient quality, amount, and accessibility of services provided pursuant to this Agreement. 99. The State will collect and analyze consistent, reliable data to improve the availability, accessibility, and quality of services to achieve positive outcomes for individuals in the Target Population. The State will create protocols on collection and analysis of data to drive improvement in services, which shall be developed with the technical assistance and approval of the Expert prior to implementation. Data elements shall measure the following areas: (a) referral to, admission and readmission to, diversion from, and length of stay in, nursing facilities; (b) person-centered planning, transition planning, and transitions from nursing facilities; (c) safety and freedom from harm (e.g., neglect and abuse, exploitation, injuries, critical incidents, and death; timely reporting, investigation, and resolution of incidents); (d) physical and mental health and wellbeing, and incidence of health crises (e.g., frequent use of crisis services, admissions to emergency rooms or hospitals, admissions to nursing facilities, or admissions to residential treatment facilities); (e) stability (e.g., maintenance of chosen living arrangement, change in providers, work or other day activity stability); (f) choice and self-determination (e.g., service plans are developed through person-centered planning process, choice of services and providers, individualized goals, selfdirection of services); (g) community inclusion (e.g., community activities, integrated day and employment outcomes, integrated living options, relationships with non-paid individuals); (h) provider capacity (e.g., adherence to provider qualifications and requirements, access to services, sufficiency of provider types); (i) barriers to serving individuals in more integrated settings, including the barriers documented and any involvement of the Transition Support Committee as required by Section V.D.; and (j) access to and utilization of Community-Based Services. 100. The State will use all data collected under this Agreement to: (a) identify trends, patterns, strengths, and problems at the individual, provider, and systemic levels, including, but not limited to, screening and diversion from nursing facility admission, quality of services, service gaps, geographic and timely accessibility of services, individuals with significant or complex needs,
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physical accessibility, and the discharge and transition planning process; (b) develop and implement preventative, corrective, and improvement strategies to address identified problems and build on successes and positive outcomes; and (c) track the efficacy of preventative, corrective, and improvement strategies and revise strategies as needed. 101. At least annually, the State will report publicly, through new or existing mechanisms, on the data collected pursuant to this Section, and on the availability and quality of Community-Based Services (including the number of people served in each type of Community-Based Service described in this Agreement) and gaps in services, and will include plans for improvement. 102. The State will ensure that all relevant State agencies serving individuals in the Target Population have access to the data collected under this Agreement. 103. Beginning no later than the fourth year following the Effective Date, the State will, with the technical assistance of the Expert, begin to adopt and implement an assessment methodology so that the State will be able to continue to assess the quality and sufficiency of Community-Based Services and the processes required in this Agreement, following the Termination of this Agreement. The State will demonstrate that it has developed this capacity prior to the Termination of this Agreement.
IX. SUBJECT MATTER EXPERT A. Selection of the Subject Matter Expert 104. The Parties agree that John O’Brien shall be the Subject Matter Expert (“Expert”) retained by the State to provide technical assistance. 105. In the event the Expert resigns or the Parties agree to replace the Expert, the Parties will meet and confer within ten (10) days to agree upon a replacement. B. Expert Responsibilities 106. The Expert will provide technical assistance to help LDH comply with its obligations under the Agreement. The Parties will cooperate fully with the Expert. The Expert will also analyze and report on data reflecting LDH’s progress in complying with all sections of this Agreement. Where the Expert’s review and approval is required under a term of this Agreement, the Expert shall not withhold approval if the State’s proposal is consistent with the goals and terms of this Agreement. 107. The Expert and the United States will have full access to persons, employees, residences, facilities, buildings, programs, services, documents, data, records, materials, and things that are necessary to assess LDH’s progress and implementation efforts with this Agreement. Access will
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include departmental or individual medical and other records. The United States and/or the Expert will provide reasonable notice of any visit or inspection. Advance notice will not be required if the Expert or the United States has a reasonable belief that a member of the Target Population faces a risk of serious harm. Access is not intended, and will not be construed, as a waiver, in litigation with third parties, of any applicable statutory or common law privilege associated with information disclosed to the Expert or the United States under this provision. 108. In addition to reviewing and analyzing data, the Expert will assess the quality and sufficiency of Community-Based Services, by reviewing a representative sample of individuals in the Target Population. 109. At least every six months, the Expert will draft and submit to the Parties a comprehensive public report on LDH’s compliance including recommendations, if any, to facilitate or sustain compliance. The LDH shall post these reports on its website. 110. The Expert will provide LDH with technical assistance relating to any aspect of this Agreement. 111. In completing his or her responsibilities the Expert may: (a) hire staff and consultants as necessary to assist in carrying out the Expert’s duties and responsibilities; (b) require written reports and data from LDH concerning compliance; (c) testify in enforcement proceedings regarding any matter relating to the implementation, enforcement, or dissolution of the Agreement, including, but not limited to, the Expert’s observations, findings, and recommendations in this matter. 112. The Expert, and any staff or consultants retained by the Expert, will not: (a) be liable for any claim, lawsuit, or demand arising out of their activities under this Agreement (this paragraph does not apply to any proceeding for payment under contracts into which they have entered in connection with their work under the Agreement; any such proceeding shall take place solely before this Court.); (b) be subject to formal discovery in any litigation involving the services or provisions reviewed in this Agreement, including, but not limited to, deposition(s), request(s) for documents, and request(s) for admissions, interrogatories, or other disclosure; (c) testify in any other litigation or proceeding with regard to any act or omission of LDH or any of the LDH’s agents, representatives, or employees related to this Agreement, nor testify regarding any matter or subject that he or she may have learned as a result of his or her performance under this
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Agreement, nor serve as a non-testifying expert regarding any matter or subject that he or she may have learned as a result of his or her performance under this Agreement. C. Expert’s Budget 113. Within 60 days of the Effective Date of this Agreement, the Expert will prepare a proposed budget for the first year under the Agreement, consistent with the Expert’s duties pursuant to Section IX.B. The Expert shall annually submit to the Parties a proposed budget for the duration of this Agreement. 114. At any time, the Expert may submit to the Parties a proposed revision to the approved budget, along with any explanation of the reason for the proposed revision. The State shall not unreasonably withhold approval of the Expert’s proposed or revised budgets. D. Reimbursement and Payment 115. The cost of the Expert, including the cost of any staff or consultants to the Expert, will be borne by LDH, but the Expert and the Expert’s staff or consultants are not agents of LDH. All reasonable expenses incurred by the Expert or any of the Expert’s staff in the course of the performance of the duties of the Expert will be reimbursed by LDH consistent with the agreedupon budget. 116. The Expert will submit monthly statements to LDH, detailing all expenses the Expert incurred during the prior month, consistent with the annual budget and any revisions authorized pursuant to Paragraph 114. 117. The Expert will not enter into any additional contract with LDH while serving as the Expert. If the Expert resigns from his or her position as Expert, the former Expert may not enter any contract with LDH or the United States on a matter related to this Agreement without the written consent of the other Party while this Agreement remains in effect. LDH will not otherwise employ, retain, or be affiliated with the Expert, or professionals retained by the Expert while this Agreement is in effect, and for a period of at least one year from the date this Agreement terminates, unless the United States gives its written consent to waive this prohibition.
X. IMPLEMENTATION 118. Within 30 days of the Effective Date of this Agreement, LDH will designate an Integration Coordinator to coordinate compliance with this Agreement and to serve as a point of contact for the Parties and the Expert.
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119. LDH will take steps to begin implementing this Agreement immediately. LDH may implement selected provisions of this Agreement on a rolling basis. This rolling implementation is intended to allow the State to maintain flexibility, account for and adapt to challenges encountered, and build upon successes during implementation. A. Implementation Plan 120. LDH will create an Implementation Plan that describes the actions it will take to fulfill its obligations under this Agreement. The Parties contemplate that implementation will be accomplished in phases as outlined in the Implementation Plan. 121. The initial Implementation Plan will primarily focus on implementation of the obligations for the first eighteen months of the Agreement. In the initial Implementation Plan, LDH shall develop the initial eighteen-month Schedule, in which LDH shall: (a) develop and deliver training to LDH staff and providers concerning the provisions of this Agreement, and LDH’s commitment to ending unnecessary institutionalization of people in the Target Population, consistent with Olmstead principles; (b) identify nursing facility residents in the Target Population who have the fewest barriers to transition and begin to transition those residents to the community using transition planning and community-based services in accordance with the provisions of this Agreement; (c) conduct a gap analysis that identifies gaps in services and proposes goals and timeframes to remedy gaps in services; (d) assess Medicaid services, rates, managed care contracts, and billing structures to identify barriers to the provision of community-based services for the Target Population; (e) identify and implement incentives through Medicaid waiver, managed care, and provider contracts to increase use of community-based services and reduce reliance on institutional long-term care for the Target Population; (f) establish annual targets for diversion and transition of Target Population members to successful placements in the community. For purposes of setting these targets, successful placements are defined as those in which the individual is able to avoid re-institutionalization (not including nursing facility admissions of 30 days or less), incarceration, or homelessness for a period of one year; (f) establish annual targets and strategies for decreasing referrals for individuals with SMI to nursing facilities; (g) assign agency and division responsibility for achieving goals identified in the initial Implementation Plan; (h) establish collaborative problem-solving among State and local government agencies and entities.
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122. The State shall seek input from and collaborate with the Louisiana Housing Corporation, and any relevant state, regional or local entities, such as public housing authorities, and LGEs in developing the Implementation Plan. 123. Early on and throughout the planning and implementation process, LDH will engage with stakeholders including Community Providers, members of the Target Population and their families and advocates, healthcare providers, and the Advocacy Center (the State’s designated Protection and Advocacy organization) to identify their goals, concerns, and recommendations regarding implementation of this Agreement. 124. LDH will consult with the United States and the Expert on an ongoing basis in developing its Implementation Plan. The initial Implementation Plan will be provided to the United States and to the Expert no more than 100 days after the Effective Date of this Agreement. The United States and the Expert will provide comments regarding the Implementation Plan within thirty days of receipt. LDH will timely revise its Implementation Plan to address comments from the United States and the Expert; the Parties and the Expert will meet and consult as necessary. The Implementation Plan must be approved by the Expert. 125. Eighteen months after the Effective Date of the Agreement, LDH shall set forth a second Schedule that establishes annual goals and targets for achieving the outcomes specified in this Agreement and in the Implementation Plan. Thereafter, LDH, in conjunction with the United States and the Expert, may supplement the Implementation Plan to focus on and provide additional detail regarding implementation activities in the coming years. LDH shall address in its supplements to the Implementation Plan any areas of non-compliance or other recommendations identified by the Expert in his or her reports. Supplements and Schedules to the Implementation Plan will become enforceable provisions of this Agreement. 126. The State will make the Implementation Plan publicly available, including by posting the Plan, and its Schedules and supplements, on the LDH website.
XI. ENFORCEMENT AND TERMINATION 127. The United States will file a Complaint in the District Court for the Middle District of Louisiana, based upon the findings in its letter to the Governor dated December 21, 2016. The Parties agree simultaneously to file this Agreement as an exhibit to a joint motion to dismiss the United States’ Complaint, pursuant to Fed. R. Civ. P. 41(a)(2), subject to reinstatement upon the United States’ motion for the purpose of resolving a claim that the State materially breached any
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provision of the Agreement. The motion to dismiss the Complaint shall request that the Court retain jurisdiction to resolve any dispute under the Agreement. 128. Should the United States move to restore the Complaint to the active docket of the Court for purposes of resolution of a claim of breach, the State consents to and agrees not to contest the United States’ motion to restore, and consents to and agrees not to contest the exercise of personal jurisdiction over the State by the Court. 129. If the Action is reinstated, LDH expressly agrees not to count the time during which this Agreement is in place, or use the terms or existence of this Agreement, to plead, argue or otherwise raise any defenses under theories of claim preclusion, issue preclusion, statute of limitations, estoppel, laches, or similar defenses. 130. Before moving to restore the Complaint to the active docket, the United States shall provide LDH notice of any asserted breach in writing. For conditions or practices that pose an immediate and serious threat to the life, health or safety of individuals in the Target Population, LDH shall have 7 days from the date of mailing to cure the default. For all other conditions or practices, LDH shall have up to 60 days from the date of mailing to cure the default. The Notice shall be sent as outlined in the Notifications section of this Agreement. 131. In the event the United States reinstates the Action and the court finds a material breach of the Agreement, the United States may seek the following: 1) an order mandating specific performance of any term or provision in this Agreement; or 2) an order entering this Agreement as an order of the Court and enforceable by the Court; and 3) any additional relief that may be authorized by law or equity. 132. This Agreement shall terminate in five years, if the Parties agree that the State has attained substantial compliance with all provisions and maintained that compliance for a period of one year. 133. The State may seek termination of any subset of provisions that together relate to development of a community-based service. The burden shall be on the State to demonstrate that it has attained and maintained its substantial compliance as to that subset. 134. In any dispute regarding compliance with any provision of this Agreement, the State will bear the burden of demonstrating that it is in substantial compliance. 135. The Parties agree to work collaboratively to achieve the purpose of this Agreement. In the event of any dispute over the language, requirements or construction of this Agreement, the Parties agree to meet and confer in an effort to achieve a mutually agreeable resolution.
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136. Nothing in this Agreement is intended to override the right of an individual in the Target Population to refuse offered services. 137. The Parties intend to allow LDH to leverage the funding of the services listed herein to the fullest extent permitted by available federal, State, and private funding. Nothing in this Agreement will preclude LDH from seeking authority from CMS for approval of coverage of Medicaid services under a different name than that used in this Agreement, provided LDH can demonstrate that the coverage for such services is otherwise legally permitted. In the event that the definitions and terms used in this Agreement create any barrier to using funding from any federal, State, or private source, the Parties agree to work collaboratively to maximize LDH’s ability to access such funding. 138. Parties have signed this agreement in good faith and the State shall take all appropriate measures to seek and secure funding necessary to implement the terms of the Agreement. In the event that the State concludes than an annual appropriation is insufficient to meet the numerical and percentage targets and time frames set forth in this Agreement and the Implementation Plan, the following shall occur: (a) The State shall notify the United States in writing within the first three months of the State’s fiscal year. In that writing, the State shall identify the amount of funds available, describe in detail the plan for expenditure of the available funds to continue implementation of the Implementation Plan and Agreement at a reasonable pace, and specify the resulting impact on the numerical and percentage targets and time frames set forth in the Implementation Plan and the Agreement. If the State does not provide the requisite notice set forth in this paragraph, then the State may not assert insufficiency of funding by the Governor or Legislature as a defense to any allegation of breach during the particular fiscal year at issue. The United States shall at all times have access to all data and documents regarding the costs and savings associated with implementation of the Agreement and the state’s assertions regarding the insufficiency of funds and any proposed altered targets and time frames. (b) The Parties shall meet and confer within 20 business days of this notification to discuss the amount of funds available and the plan for expenditure of these funds to continue implementation of the Agreement at a reasonable pace and the resulting effect on the numerical and percentage targets and time frames set forth in the Implementation Plan and Agreement. Before that meeting, the State shall provide all additional underlying documents it is relying on to support its assertion of insufficiency of funds and any proposed altered targets and time frames. (c) If the Parties cannot reach agreement on a
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revised plan for continued implementation of the Agreement at a reasonable pace, the United States may move to restore the Complaint to the active docket for the purposes of litigating a claim for breach, or, may withdraw its consent to this Agreement, which would render the Agreement null and void. 139. This Agreement will constitute the entire integrated agreement of the Parties. 140. Any modification of this Agreement, other than modifications to time periods governed by Section XI of this Agreement, will be executed in writing by the Parties before becoming effective. 141. LDH will coordinate with or enter into Memoranda of Understanding with all appropriate State agencies in order for LDH to comply with provisions of this Agreement. 142. The United States and LDH will each bear the cost of their own fees and expenses incurred in connection with this case. 143. All services mentioned or described in this agreement are subject to reasonableness standards and nothing herein shall be interpreted to mean that the provision of services are unlimited in amount, duration or scope.
XII. GENERAL PROVISIONS 144. The Agreement is binding on all successors, assignees, employees, agents, contractors, and all others working for or on behalf of LDH to implement the terms of this Agreement. 145. LDH will not retaliate against any person because that person has filed or may file a complaint, provided assistance or information, or participated in any other manner in the United States’ investigation or the Expert’s activities related to this Agreement. LDH will timely and thoroughly investigate any allegations of retaliation in violation of this Agreement and take any necessary corrective actions identified through such investigations. 146. LDH will take all necessary measures to ensure that members of the Target Population are not pressured to choose nursing facility services or pressured not to consider or choose Community Based Services, and are not subjected to retaliation in any form by nursing facilities, hospitals, Providers, or LDH staff for seeking alternatives to nursing facilities. 147. Failure by any Party to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein will not be construed as a waiver, including of its right to enforce other deadlines and provisions of this Agreement. 148. The Parties will promptly notify each other of any court or administrative challenge to this Agreement or any portion thereof.
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149. The Parties represent and acknowledge this Agreement is the result of extensive, thorough, and good faith negotiations. The Parties further represent and acknowledge that the terms of this Agreement have been voluntarily accepted, after consultation with counsel, for the purpose of making a full and final compromise and settlement of the allegations set forth in the Department of Justice’s Complaint and letter of findings under the ADA dated December 21, 2016. Each Party to this Agreement represents and warrants that the person who has signed this Agreement on behalf of a Party is duly authorized to enter into this Agreement and to bind that Party to the terms and conditions of this Agreement. 150. Nothing in this Agreement will be construed as an acknowledgement, an admission, or evidence of liability of the State under the Constitution of the United States or federal or state law, and this Agreement may not be used as evidence of liability in this or any other civil or criminal proceeding. 151. This Agreement may be executed in counterparts, each of which will be deemed an original, and the counterparts will together constitute one and the same Agreement, notwithstanding that each Party is not a signatory to the original or the same counterpart. 152. The performance of this Agreement will begin immediately upon the Effective Date. 153. LDH will maintain sufficient records and data to document that the requirements of this Agreement are being properly implemented and will make such records available to the Expert and the United States for inspection and copying on a reasonable basis. Such action is not intended, and will not be construed, as a waiver, in litigation with third parties, of any applicable statutory or common law privilege associated with such information. Other than to carry out the express functions as set forth herein, both the United States and the Expert will hold such information in strict confidence to the greatest extent possible. 154. “Notice” under this Agreement will be provided by overnight courier to the signatories below or their successors:

FOR THE UNITED STATES:

JOHN M. GORE Acting Assistant Attorney General Civil Rights Division

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