Pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, the Civil Rights Division of the U.S. Department of Justice ("DOJ") conducted an investigation of conditions at the Ft. Bayard Medical Center ("Ft. Bayard"), a public nursing home facility in southwest New Mexico, operated by the state in an old military facility. The investigation resulted in a May 1, 2006, findings letter being sent by DOJ to the governor. The letter stated that in July and October 2005, the DOJ conducted an investigation of the facility pursuant to CRIPA authority. The investigation relied upon site visits by DOJ personnel and consulting experts, reviews of medical records and facility documents setting out procedures, policies, and practices, and interviews of Ft. Bayard administrators, professionals, staff, and residents.
The letter noted that earlier, when concluding the first of the on-site visits, the DOJ expressed to state personnel "deep concerns" concerns about the life-threatening conditions at the facility. These prompted the Chief of the DOJ Civil Rights Division's Special Litigation Section to send a July 25, 2005 letter to counsel for the State of New Mexico. That letter memorialized the concerns and documented the nursing home's inadequate medical care and dangerous psychotropic medication usage, requesting that the State take immediate remedial action to address the most serious deficiencies. By the time of the second on-site visit, according to the May 2006, findings letter, the State had taken several steps to begin to remedy the deficiencies that had been identified.
Significant deficiencies remained, however, such that the findings letter advised the state that residents of Ft. Bayard suffered significant harm and risk of harm from (1) the facility's inadequate medical and nursing care services; (2) improper and dangerous psychotropic medication practices; (3) failure to provide adequate safety; (4) inadequate nutritional and hydration services; and (5) inadequate restorative care and specialized rehabilitation services. Additionally, the investigation found that the state failed to provide services to certain Ft. Bayard residents in the most integrated setting, as required by the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq.
In every medical record reviewed, the DOJ consultants found substantial departures from the generally accepted standards in nursing home care. In nearly every record reviewed where psychotropic medication was prescribed, there were often multiple failings, including: the absence of a diagnosis justifying the use of the medication; the absence of behavioral indications warranting the administration of the medication; the absence of any evidence that non-medication interventions were tried and/or considered and found ineffective; the absence of monitoring of the medication's efficacy; the absence of side-effect monitoring; the absence of appropriate response to medication side-effects; and the absence of informed consent for the use of the medication. Relatedly, DOJ found that medications were also prescribed in excessive dosages.
The letter set out specific examples of deaths, pain, and suffering resulting from the many deficient practices at Ft. Bayard. Additionally, the investigation noted a possibility that Ft. Bayard staff may have allowed residents to suffer needless pain while staff members took (or sold) pain medication intended for residents. Residents were often at risk from falls, yet few had sufficient fall prevention planning provided for them. Others would repeatedly become combative with other residents or staff without adequate interventions from staff to ameliorate the harm or risk of harm. The environment itself at Ft. Bayard was unsuited for usage as a nursing home, according to the findings letter. The DOJ also found that Ft. Bayard's nutritional and hydration services substantially departed from generally accepted professional standards of care and that the nursing home offered grossly substandard activity programs for its residents. While most residents were appropriately placed in a nursing home and their reintegration in the community would be inappropriate, those able to and who could benefit from community residence were deprived of that option by Ft. Bayard's inadequacies in assessing and planning for such transitions, as well as by the state's few non-nursing home resources for such persons.
The DOJ findings letter proposed what it termed as "minimal" remedial actions to remedy the deficiencies, invited the state to address the issues, and alerted the state to the possibility of a CRIPA lawsuit brought by the United States to compel remedial action.
The DOJ's letter described a cooperative approach with the state during the course of the investigation. This atmosphere evidently continued during ensuing negotiations, because the state and the DOJ soon entered into a settlement agreement obligating the state to improve a wide range of policies and practices at Ft. Bayard. The settlement contained substantive provisions addressing (1) timely assessments and care planning, (2) safe and appropriate psychotropic medication usage, (3) improved and appropriate pain management practices, and disciplinary reporting of employee diversion of residents' medications, (4) adequate protection of residents from harm from neglect, abuse, and assaults, (5) fall prevention, (6) appropriate nutrition and hydration services, and aspiration prevention, (7) activities program improvements, (8) improvements in environmental aspects of the facility, particularly increasing privacy, (9) treatment in the most integrated setting appropriate to individualized needs, and (10) compliance with applicable federal laws and implementing regulations, including Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395i-3 et seq.; Title XIX of the Social Security Act, 42 U.S.C. §§ 1396r et seq.; Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12132 et seq.; and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
The settlement allowed for DOJ and its consultants to retain access to Ft Bayard, its residents, and documents and records, for monitoring and technical assistance purposes. The state had to implement the changes called for in the settlement document which, by its terms, expired in two years.
Attorneys for the state and DOJ signed and filed the agreement on or about May 14-16, 2007, in the U.S. District Court for the District of New Mexico and, at the same time, the United States filed its complaint against the state and the state official responsible for the operation of Ft. Bayard. The CRIPA-based complaint sought declaratory and injunctive relief, citing the deficiencies at the facility and alleging that the defendants' conduct violated residents' federal constitutional, statutory, and regulatory rights, including those due process protections provided by the Fourteenth Amendment, and the statutory protections provided by Social Security Act, the ADA, and the Rehabilitation Act (and implementing regulations).
On Jan. 28, 2008, the parties jointly moved to partially dismiss the settlement agreement. In the motion, the DOJ stated that after a number of visits, it was satisfied that the facility was in compliance with the Environment and Most Integrated Setting sections of the settlement agreement. The other aspects of the settlement agreement were not affected by the motion. The Court (Judge William P. Johnson) granted the motion on Feb. 5.
On Oct. 8, 2008, Judge Johnson granted a joint motion to extend the effective date of the settlement agreement until Nov. 2011. The Court also required that the defendants submit to the DOJ plans of correction setting forth the tasks and timetables for the state to come into compliance with all the settlement agreement provisions.
On Oct. 11, 2009, Judge Johnson accepted the parties joint corrective action plan outlining timetables for implementing the settlement agreement.
On Oct. 17, 2011, Judge Johnson granted the parties' joint motion to dismiss the complaint. The parties agreed that the facility was in substantial compliance with the settlement agreement. Mike Fagan - 06/23/2008
Andrew Junker - 11/03/2014