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Colorado court filing disputes accusation that state unlawfully detains the disabled in nursing homes

Gazette - 12/7/2023

Dec. 4—The state of Colorado late last week pushed back against the federal government, disputing the allegations by the U.S. Department of Justice that the state discriminates against disabled people by forcing them to languish in nursing homes rather than receiving available care at home.

On Sept. 29, the Civil Rights Division filed a sweeping lawsuit against the state, alleging that Colorado violates the Americans with Disabilities Act by failing to adequately help eligible disabled people transition out of nursing homes.

Federal lawsuit: Colorado unlawfully detains the disabled in nursing homes

In that lawsuit, the federal government accused Colorado of inefficiency and repeated delays in coordinating the available Medicaid-funded services so disabled people can leave restrictive settings.

But on Friday, the Colorado attorney general's office filed a 31-page rebuttal, not only accusing the U.S. Department of Justice of being overly vague and lacking specific examples, but also disputing the core of the federal government's case.

"Colorado has a comprehensive and effective working plan for adequately serving Colorado Medicaid members in the community," the state argued.

The state further said that the federal allegations fail to spell out specific remedies and that, in fact, a large-scale and expensive overhaul of current transition services for disabled people could fundamentally alter Colorado's community-based Medicaid program and put other recipients at risk.

Colorado officials also disputed the federal government assertion that nursing home care paid for by the state was on average nearly three times more expensive than community-based care. The state said in its response there are times when nursing home care is less expensive, depending on the needs of the client.

It did acknowledge, however, "some services can be provided to some individuals in their homes, and whether this is true is highly dependent on the type of service and the needs and preferences of each individual person."

The back-and-forth legal wrangling is the latest in an ongoing fight that dates back to 2016.

It was then that Disability Law Colorado forwarded multiple complaints to the Department of Justice accusing Colorado of violating the Americans with Disabilities Act., said Meghan Baker, a lawyer and facilities team leader for the Denver-based protection and advocacy group.

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The 1990 Americans with Disabilities Act is a civil rights law that prohibits discrimination based on disability. In 1999, the U.S. Supreme Court further defined that protection in a ruling that said states were required to accommodate, when possible, the transition of people with intellectual disabilities out of institutional settings and provide community-based care if they wanted it.

Acting on the Disability Law Colorado complaints that included both intellectual and physical disabilities, the Department of Justice launched an investigation in 2017. More than three years later, in March 2022, the federal government wrote to Colorado Gov. Jared Polis that it had found the state was violating the law.

The letter said unnecessary confinement in restrictive nursing homes, when other community or home-based-options were available, was "common in Colorado."

State officials pledged to make corrections and accelerate Colorado's ongoing transition programs. Over the course of the next year, Colorado officials and Justice Department attorneys met numerous times to negotiate a settlement of the federal government's findings, according to a recent legal filing.

But those negotiations stalled and the lawsuit against the state was filed Sept. 29. At this point the federal government is demanding Colorado ensure more disabled individuals can receive services in home-based settings.

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The state has countered that it is already providing those services and also in court filings has suggested that further negotiation with federal authorities could resolve the matter.

The Denver Gazette wrote about the issue on Nov. 22, highlighting the harrowing plight of one woman who tried for months to leave a nursing home and return to her apartment. She said she was told repeatedly she needed to wait a bit longer while state services were being coordinated.

When she finally left the nursing home in July, believing that her home health care was finally in place, it was not, The Gazette's story showed. She claimed that, as a result, she was left alone in her apartment for two days with no food, no assistance, trapped in her wheelchair soaked in urine and feces until her son found her.

In Colorado, federal Medicaid money for disabled people is administered by the Colorado Department of Health Care Policy & Financing, paying for the transition services that are supposed to help move people out of nursing homes and return to less restrictive settings.

Previously, that agency said it was "disappointed" in the federal allegations and that Colorado had a "deep commitment to building a system that ensures people with disabilities have the option to live and receive care in the community."

In response to the latest filing, Marc Williams, a spokesperson for HCPF, said in an emailed statement on Monday that the agency "will reserve further comment until after the case is resolved."

Baker, the lawyer at Disability Law Colorado, said in a statement her organization was "grateful" to Department of Justice for filing suit against the state, adding she found it unfortunate that legal action was even necessary because Colorado "had not made these issues more of a priority."

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