Justice Department: Nebraska unnecessarily institutionalizes people with mental illness

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Editor’s note: This story has been updated to include response from the state and reaction from a state senator with a background in mental health care.

LINCOLN — The U.S. Department of Justice concluded Tuesday that Nebraska unnecessarily institutionalizes adults with serious mental illness in violation of their civil rights.

The Justice Department said Nebraskans are being segregated in assisted living and day program facilities, in violation of the Americans with Disabilities Act and the U.S. Supreme Court’s 1999 decision in Olmstead v. L.C. The department interviewed affected Nebraskans, agency heads and others after beginning an investigation June 25, 2021, following multiple complaints.

Meanwhile, the Nebraska Department of Health and Human Services expressed disappointment in federal assessment, pointing to work it said has been done to improve services. 

‘Dead-end road towards institutionalization’

In a letter to Gov. Jim Pillen, Assistant Attorney General Kristen Clarke of the department’s Civil Rights Division said the department wants to “work cooperatively” to resolve the findings. This includes entering settlement negotiations and an agreement to remedy the identified violations.

If Nebraska does not negotiate, or if the talks fail, the federal government said it could take appropriate action, which could include legal action, to remedy the violations.

Clarke said in a statement that people with mental health disabilities are “far too often” institutionalized when they could succeed and thrive in the community. 

“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,” Clarke said.

DHHS reviewing allegations

DHHS leadership agreed to cooperate with the Justice Department based on the existing circumstances at the time the investigation began, a news release states, with leaders collaborating to enhance community-saved services statewide.

“Governor Pillen and DHHS are committed to ensuring Nebraskans receive the highest level of behavioral health services,” the DHHS release states.

The agency pointed to recent steps to do so, such as last year when the Legislature created Certified Community Behavioral Health Clinics. The clinics must serve anyone who requests care for mental health or substance use, regardless of ability to pay, place of residence or age.

A second step forward, DHHS said, is the development and implementation of better assessment, tracking and referral systems for disability accommodations.

“Pointedly, the DOJ concedes that the programs desired by the federal government already exist in Nebraska today,” DHHS said. “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.”

Agency officials are reviewing the allegations and will consult with the Nebraska Attorney General’s Office for next steps.

Justice Department offers remedies

The ADA requires states to make services for people with disabilities available in the most integrated setting appropriate to their individual needs, such as their homes and workplaces.

The letter to Pillen states Nebraska already offers various services — though many have limited access — and says the state could remedy its violations “without fundamentally altering its behavioral health service system.” 

Those remedies include:

• Expanding access to existing community-based services.

• Ensuring sufficient provider capacity.

• Identifying people with serious mental illnesses in segregated facilities who might be open to living and working in the community.

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

‘The time is now’ to comply with ADA

Dianne DeLair, legal services director of Disability Rights Nebraska, said that in the 25 years since the Olmstead ruling, Nebraska still lacks a working Olmstead Plan with a “concrete commitment” that the state can provide adequate support and services.

“This new Department of Justice letter of findings gives hope to every Nebraskan with a mental health disability who has been isolated and segregated,” DeLair said in a statement.

Tania Diaz, CEO of Disability Rights Nebraska, said all Nebraskans with disabilities should be able to join the workforce, pursue an education, volunteer and participate in the community free from discrimination.

“Twenty-five years has been long enough to wait,” Diaz said. “The time is now for the State of Nebraska to comply with the Americans with Disabilities Act.”

The U.S. Department of Justice previously scheduled town halls in Omaha, Lincoln, Kearney and Scottsbluff for Tuesday and Wednesday of this week, prior to releasing the Tuesday report. More information is available here.

More behavioral health funds needed

State Sen. John Fredrickson of Omaha, a mental health professional who attended the Tuesday town hall in Omaha, said the report will not come as a surprise to industry providers or Nebraskans impacted by severe mental illness as it “underscores what we’ve always known.”

“There is a lack of infrastructure and support available in our state as it relates to behavioral health and mental health,” he said.

For example, he said, lawmakers this year diverted $15 million in state aid for behavioral health services to the Lincoln Regional Center, where workers have faced violent incidents. 

Fredrickson tried to retain $12 million in the state’s mental health care fund but his effort fell short, 16-23.

“If there’s an issue with deploying the funds or getting the funds out or spending the funds, then that’s a separate conversation,” Fredrickson said. “The answer to that is not throwing the baby out with the bathwater. It’s finding out what are the bottlenecks because the funds are very clearly needed.”

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