Shown below is an Associated Press article on a lawsuit which was filed in Alabama about ten days ago, using the ADA and Olmstead.

I thought you might like to know about this lawsuit.

J. Elbert Peters
1701 Jeannette Circle
Huntsville, AL 35816
256-859-3186
jepeters65@aol.com

Lawsuit seeks to block Alabama's new assisted-living rules

By BILL POOVEY
The Associated Press
12/28/00 1:24 AM

MONTGOMERY, Ala. (AP) -- Two Pickens County women asked a federal judge to block Alabama's new rules for assisted-living homes, contending they shouldn't be forced to move just because they can no longer manage their own medications.

A lawsuit on behalf of Vera M. Walker, 92, and Madie E. Brown, 82, both residents at the Sansing Country Home near Carrollton, says the new rules violate the federal Americans With Disabilities Act.

The lawsuit, filed Thursday, has been assigned to U.S. District Judge Harold Albritton.

Rick Harris, state director of health provider standards, and Tommy McDougal, director of the Assisted Living Association of Alabama, both declined comment, saying they had not seen the lawsuit.

Many residents at Alabama's more than 300 assisted-living homes have advanced Alzheimer's disease or other dementia, in violation of old rules that the state health officer, Dr. Don Williamson, has said his agency could not enforce.

The rule changes create "specialty care" assisted-living homes, with minimum personnel training requirements and facilities designed to prevent residents from wandering away. Assisted-living residents who cannot understand how to manage their own medications must be promptly transferred to the "specialty care" homes, which are more costly.

Rule changes approved by the state health board took effect on a temporary basis Nov. 6 and coincide with proposed licensing restrictions for the "specialty care" homes.

A public hearing on permanent rule changes is set Jan. 17.

Ira B. Colvin of Reform, an attorney for the two assisted-living residents, said the state's rule changes violate the Americans With Disabilities Act because residents who cannot manage their own medications are being unfairly forced to move into restrictive institutions, in some cases far away from their relatives.

"The effect would be to restrict and further isolate the resident and that's where we say the conflict is," Colvin said. "We acknowledge that residents do need to be protected. However, within each county there is already a Department of Human Resources that protects the elderly from abuse.

"Sansing has never had a problem," Colvin said. "There are about 270 of these 16-bed facilities in the state. They have had very few problems."

The lawsuit says that Walker, a resident of Sansing for one year, suffers the effects of a stroke and is afflicted with anemia, angina, congestive heart failure, gout and sporadic bouts of depression.

Walker requires assistance with bathing, dressing, grooming, oral hygiene and with her medication, but "is able to function and thrive in the assisted-living facility atmosphere and has done so since her admission," the suit says.

Brown has Alzheimer's, osteoporosis, diabetes and a speech impairment. While requiring assistance with bathing, dressing, grooming, oral hygiene, medication, and blood glucose testing, the suit says. She "is able to function and thrive in the assisted-living facility atmosphere and has done so since admission" seven years ago, according to the lawsuit.

Tammy Kent, the owner and operator of the 16-resident home, said that unless the state rule changes are blocked, Walker and Brown "will have to be discharged and will have to go to a nursing home."

She said some residents at other assisted living homes have already been moved to nursing homes, which provide skilled medical care but are about twice as costly.

Kent said Walker and Brown should not be forced to move. She said her home has a nurse who helps them with their medications.

"Now it would be illegal for my nurse to give them medicine unless they could take it for themselves anyway," Kent said.

Gov. Don Siegelman has pushed the changes. His administration first proposed classifying the specialty-care homes as intermediate care facilities in the state health plan and giving the state Certificate of Need Review Board control over which homes get licenses.

Siegelman's chief of staff, Paul Hamrick, said Wednesday that the administration wants seniors who need institutionalized health care to be accessible to their families, but not at the expense of putting those who have dementia at risk of "abuse or even death because they are not provided with an adequate level of health care."

McDougal has supported the rule changes dealing with the care of residents but opposes classifying the new specialty care homes as intermediate care facilities.

Siegelman contends that new controls would harness an industry that is fraught with reports of resident abuse and neglect.

The governor has also said the certificate-of-need process would allow the Medicaid agency to eventually provide financial assistance to eligible assisted-living residents, as is the case with nursing home patients.

At least two assisted-living residents with Alzheimer's disease who left their homes without permission died in accidents this year. State inspectors reported numerous cases of residents being abused and neglected, in many cases at unlicensed homes.