October 15, 2002

by Loree Cook-Daniels

New York Governor George Pataki is under fire from his Democratic opponent H. Carl McCall and is facing a Justice Department investigation over an October 6, 2002 New York Times report that as many as 1,000 mentally ill adults are being kept in locked nursing home wards without sufficient treatment or oversight.

It is unclear precisely what level of the Pataki administration approved the special units in 1996, although all agree that the proposal did not go through the New York legislature (which is now planning hearings and its own investigation) or a public comment period. Pataki administration officials still have not released a list or even the precise number of units that are operating, although the State Office of Mental Health estimated that at least a dozen such units exist.

A primary issue in the controversy is whether or not these facilities are “locked” units which keep residents from venturing outside. Several officials claim the units are not locked but merely “secured,” and that residents who are deemed stable enough may go outside when they wish. Not so, said all of the staff, residents, and family members the New York Times interviewed. All said that since elevators can be activated only by a key, since the fire door exits are all alarmed, and since staff have been instructed to let residents outside only when accompanied by staff, the units are, in practice, locked units and, as such, should require a special license (which apparently none of the units has).

Also at issue is whether the units are psychiatric facilities. Officials contend that the facilities do provide “a therapeutic environment” where psychiatrists visit twice a week and a social worker is present daily. Activities calendars in units the Times visited, however, showed few activities beyond meals, smoking breaks, and “recreation.”

In addition, because the units are not licensed as psychiatric facilities, residents do not have the legal protections guaranteed to those committed to psychiatric facilities: the right to a lawyer, and the right to a hearing to contest being committed. Officials claim these rights are unnecessary because the residents are there voluntarily. However, residents and staff dispute this, as well.

The residents have NOT been deemed a danger to themselves or others, which is the typical standard someone must meet to be kept against their will in a locked psychiatric facility. The State Office of Mental Health, which is responsible for discharging people from state psychiatric hospitals to the units, “has chosen not to take a role in overseeing them or ensuring that residents receive proper care,” the Times alleges.

The units are overseen by the usual nursing home regulatory and inspection agencies. However, it is unclear how the units fit with federal regulations requiring that states screen potential nursing home residents to ensure that they are being appropriately placed there. The Centers for Medicare and Medicaid Services (CMS) issued a statement in response to the controversy indicating that it did not intend to investigate the units.

The U.S. Justice Department, however, has launched an investigation into whether the units violate the Civil Rights of Institutionalized Persons Act or the Americans with Disabilities Act. Also investigating the units are two New York legal groups with authority to investigate allegations of mistreatment of people with disabilities, Disability Advocates and New York Lawyers for the Public Interest. None of the advocacy groups the Times contacted had been aware of the units’ existence before reporters called.

Apparently the units were the brainchild of Benjamin Landa, whom the Times characterized as “one of the city’s most prominent nursing home operators…[and] a major contributor to Governor Pataki’s campaign.” Pataki appointed Landa to the State Public Health Council, which, the Times says, “is essentially an arm of the State Health Department that helps regulate hospitals and nursing homes.” Four of Landa’s nursing homes have the special units, with a total census of 200 beds.

The Times pointed out that while residents in state psychiatric hospitals cost the state $120,000 per year, nursing home costs are lower and are split between the state and the federal government. Cost to the state of residents of these nursing home units is estimated to be about $20,000 a year, resulting in an annual savings of $100,000 per resident per year. State officials deny that finances have anything to do with the decision to create the nursing home units. Beds in the state psychiatric system are down from 9,000 when Governor Pataki took office in 1995 to 4,300 now.

Unlike a similar controversy in Illinois in 1998, it appears that because the New York units are separate and “secured” and because the psychiatric residents are NOT considered violent, no issues have been raised about the safety of other residents residing in these nursing homes.