Federal probe alleges Nebraska discriminates in services for people who have mental illnesses (2024)

LINCOLN — Federal officials allege Nebraska is violating the Americans with Disabilities Act by unnecessarily segregating people with serious mental illnesses in assisted-living facilities and day programs.

The U.S. Department of Justice sent a letter to Gov. Jim Pillen Tuesday listing the findings of a three-year federal probe of Nebraska’s mental health system and threatening a possible lawsuit.

The letter, signed by Kristen Clarke, assistant attorney general for the DOJ’s civil rights division, expressed hope that Nebraska would agree to make changes, but said the department “may take appropriate action — including filing a lawsuit” — if the state does not negotiate or an agreement cannot be reached.

“Far too often, people with mental health disabilities are institutionalized when they could succeed and thrive in the community,” she said. “It’s time to bring an end to the days of funneling people with disabilities down a dead-end road towards institutionalization and unemployment when they could succeed if provided pathways towards independence and dignity.”

The investigation found that Nebraska’s mental health system relies too much on “mini-institutions,” particularly assisted living facilities, where people with serious mental illnesses are grouped together, supervised by paid staff, and have little contact with people without disabilities.

Residents often leave the homes only for medical appointments, group visits to grocery and convenience stores or to participate in day programs, which often operate under the same organizational umbrella, the investigation said. The day programs provide no path to employment and may offer little beyond supervision and activities such as crafts.

According to the letter, about 5,000 Nebraskans with serious mental illnesses live in facilities, many in state-licensed assisted living facilities. At least 19 assisted living facilities primarily house people with serious mental illnesses, with capacity ranging from 10 residents to nearly 250. There are 22 Medicaid- and state-funded day programs for those people.

Nebraska officials pushed back on the federal findings. In a statement, the state Department of Health and Human Services expressed “disappointment with allegations issued by the Biden administration.”

The department said Nebraska previously agreed to cooperate with the federal officials “based on circ*mstances that existed within the department at that time.” It said the Pillen administration has worked to enhance community-based services.

“DHHS intends to resolve this matter as expeditiously as possible, and in a manner consistent with law and the best interests of the people of Nebraska,” the statement said. “(The department) continues to review the DOJ allegations issued today and will consult with the Nebraska Attorney General’s Office regarding next steps.”

What’s the basis of the allegations?

At issue is whether Nebraska complies with the Americans with Disabilities Act, passed in 1990, and a 1999 U.S. Supreme Court ruling in Olmstead v. L.C., which require that people with disabilities to be served in the most integrated setting.

The federal investigation found Nebraska has the kinds of supportive services that could help people with serious mental illnesses live independently, manage their mental health symptoms, build relationships and find and keep jobs.

But the letter said those services are more limited in number and location than facility options. For example, there are only three Assertive Community Treatment teams and six community-based supported employment programs.

In addition, the letter said Nebraska severely limits access to those services by using restrictive authorization criteria and by not having the workforce needed to provide the services. The state also fails to ensure that Medicaid managed care organizations and regional services connect people to services in integrated settings and makes it difficult for providers to navigate the payment and authorization system so they can serve people with serious mental illness.

Payment structures also favor facilities, the letter said. Nebraska pays $438 a month to assisted living facilities to house people on Social Security disability programs but contributes only $5 a month toward independent housing.

“By increasing its investment in community-based services for Nebraskans with (serious mental illnesses), the state can help these individuals become engaged and vibrant members of their communities,” said Susan Lehr, U.S. attorney for Nebraska.

Problems in the past

Assisted living facilities serving primarily people with serious mental illnesses have been criticized in the past for substandard living conditions and for abuse, neglect and mismanagement.

In 2018, the death of a veteran at a troubled facility in Palmer, Nebraska, prompted the creation of a legislative oversight committee. The woman died following three days of uncontrollable vomiting and diarrhea that was left untreated. That facility closed after state officials revoked its license.

But several remain open, including a Lincoln facility described that year by a volunteer advocate for a man with mental illness. At a legislative hearing, the advocate told of finding filthy stairs that reeked of urine, a shared bathroom with a toilet black with grime, and a room that lacked window coverings, bedsheets, blankets or pillows.

Nebraska, like many states, curtailed the use of state psychiatric hospitals for the care of people with serious mental illnesses but did not follow through with creating the services needed to help people transition to successful community living.

As a result, people often end up in jails, homeless shelters and other inappropriate places. People with serious mental illnesses have also had struggles with law enforcement, including Zachary Bear Heels’ fatal encounter with Omaha police in 2017. Bear Heels, who was experiencing a mental health crisis, died after being shocked with a stun gun.

On Tuesday, more than 50 people showed up for a town hall meeting in Lincoln to talk with federal attorneys involved with the Nebraska investigation. Participants shared first-hand accounts of problems within Nebraska’s mental health system, particularly the gaps in services and funding. Information gathered at the meeting and others will help the federal attorneys propose potential remedies to the state. People can still comment by emailing Nicole Zeitler, DOJ trial attorney, at: nicole.zeitler@usdoj.gov.