D.C. Village Nursing Home Investigative Findings Letter
The Honorable Sharon Pratt Kelly
Mayor of the District of Columbia
Office of the Mayor
One Judiciary Square
441 4th Street, NW
Washington, DC 20001
Re: D.C. Village Nursing Home
Dear Mayor Kelly:
On August 20, 1990, we notified the Mayor of the District of Columbia,
the Corporation Counsel for the District of Columbia, and the Administrator
of D.C. Village ("DCV"), of our intention to investigate allegations of
unconstitutional conditions at DCV pursuant to the Civil Rights of Institutionalized
Persons Act ("CRIPA"), 42 U.S.C. § 1997 et seq. In January
1991, we completed an investigative tour of the facility with two expert
consultants. On August 19, 1991, we informed the then Mayor and other District
officials that we had reasonable cause to believe that persons residing
in or confined to DCV were being subjected to conditions that deprived
them of rights, privileges, and immunities secured by the Constitution
of the United States. Youngberg v. Romeo, 457 U.S. 307 (1982).
Attorneys from the District's Office of the Corporation Counsel, and
the District's Department of Human Services indicated that remedial measures
would be implemented at DCV to correct any constitutional deficiencies.
To ensure that the necessary remedial action had been or would be undertaken,
in April 1992, we conducted a follow-up investigation at DCV with four
expert consultants. Unfortunately, we found that constitutional deficiencies
persisted at DCV. On October 22, 1992, we informed the Office of the Corporation
Counsel that the persons residing in or confined to DCV continued to be
subjected to conditions that deprived them of their constitutional rights.
Again, the District's counsel indicated that steps had been or would be
undertaken to correct any problems.
On April 6, 1994, we notified the Office of the Corporation Counsel
of our intention to conduct a follow-up investigative tour to assess current
conditions at DCV. On June 6-7, 1994, we conducted our tour of the facility
accompanied by four expert consultants: Rebecca Elon, M.D., a geriatric
physician, Blaine Greenwald, M.D., a geriatric psychiatrist, Richard Amado,
Ph.D., a psychologist, and Mary Ellen Anderson, R.N. Consistent with statutory
requirements, we are now writing to advise you of our findings. We regret
to advise you that our investigative tour revealed that the residents at
DCV are continuing to be subjected to conditions that deprive them of their
constitutional and statutory rights.
DCV is organized, staffed, funded and licensed as a nursing home to
care for elderly persons. Nonetheless, the District has inappropriately
placed at the facility a disparate group of individuals including children,
persons with mental illness, and persons with developmental disabilities,
including mental retardation, simply because other parts of the District's
care system lack available space and services to provide necessary care.
Thus, the District has asked DCV to function as an acute and chronic care
psychiatric treatment facility and as a developmental center even though
DCV is not equipped to provide the specialized treatment and training required
for its mentally ill and mentally retarded populations.
As a result, DCV is not meeting the needs of its residents. In addition
to providing inadequate care and services to its mentally ill and mentally
retarded residents, DCV provides inadequate medical and nursing services
to all its residents. DCV is unable to provide even adequate nursing home
services to its geriatric population. All this has produced a host of serious
problems including needless suffering and risk of harm, an excessive number
of hospitalizations, and an unusually large number of deaths due to aspiration.
The District must reorganize DCV to permit the facility to fulfill its
lawful purpose, i.e., to provide nursing home and related services to the
elderly. The District should place all children and individuals with mental
illness or mental retardation in appropriate community based facilities
and programs. Were these residents to be appropriately placed in care facilities
designed and staffed to meet their specialized needs, the chances that
they would receive appropriate training and treatment would be dramatically
increased. Nonetheless, to the extent that mentally ill and mentally retarded
individuals are confined at DCV, the District is required to provide them
with adequate psychiatric care and/or training. Youngberg, 457 U.S.
307; Preadmission Screening and Annual Review of Mentally Ill and Mentally
Retarded Individuals ("PASSAR") 42 C.F.R. § 483.100 et seq.
All residents of state operated institutional facilities, including
nursing homes, have a fundamental Fourteenth Amendment due process right
to adequate food, clothing, shelter, medical care, reasonably safe conditions,
and training. Youngberg, 457 U.S. 307. As such, this right entitles
residents to such care and training as to protect each residents' liberty
interests and permit each resident an opportunity to function as independently
as is reasonably possible. Individuals with disabilities have a right to
programs to teach adaptive behaviors, self-help skills, communication,
social skills, and skills necessary to enhance independence. See,
e.g., United States v. Tennessee, No. 92-2062, slip.
op. (W.D. Tenn. Feb. 17, 1994); Thomas S. by Brooks v. Flaherty,
699 F. Supp. 1178 (W.D.N.C. 1988). See also 42 C.F.R. §
483.440 (Each institutionalized client is entitled to a continuous and
aggressive active treatment program that is directed towards the "acquisition
of the behaviors necessary for the client to function with as much self
determination and independence as possible.").
The facts disclosed during the course of our investigation supporting
our findings of unlawful and unconstitutional conditions at DCV are set
I. MEDICAL CARE IS INADEQUATE.
DCV is failing to ensure that DCV residents receive adequate preventive,
chronic, routine, acute, and emergency medical care in accordance with
generally accepted standards of care.
The most pressing medical concern at DCV is that the medical staff routinely
fails to assess and respond in a timely and appropriate fashion to individuals
with aspiration pneumonia or risk of aspiration, dysphagia or swallowing
difficulties, and decreased oral intake. As a result of this inadequate
care, many DCV residents have died. A shockingly high number of DCV residents
have died due to some form of aspiration, pneumonia or feeding dysfunction.
Since June 1, 1992, at a minimum, 19 individuals are listed as having died
at least in part due to "aspiration"; at least 18 others have died due
to some form of "pneumonia" (which could be related to aspiration). Many
of these and other individuals have died in part because of a "feeding
dysfunction." Many current DCV residents have been needlessly subjected
to prolonged suffering and discomfort punctuated by repeated hospitalizations
merely because the medical staff at DCV has been unable to adequately assess
or respond to the residents' aspiration risk or dysphagia. The DCV staff
has failed and is failing to determine what specialized medical services
are required for these residents and to ensure that such services are timely
obtained whenever necessary. The DCV primary physicians also fail to ensure
adequate continuity of care for these residents with outside hospitals
when hospitalized and with outside medical consultants when furnished with
a specialty consult.
Generally, the medical staff at DCV is failing to provide the residents
with adequate medical assessment, diagnosis, treatment and monitoring of
their conditions in keeping with generally accepted standards of medical
care. For example, DCV primary care physicians fail to conduct comprehensive
evaluations of all residents for whom they are responsible. Even though
a medical treatment plan is urgently needed for each resident, DCV fails
to provide each resident with an adequate, individualized medical plan
of care. Our consultants could find no integrated medical plan of care
in any DCV resident's chart. The medical staff is also failing to respond
to changes in an individual's medical condition in a timely and appropriate
fashion. Finally, the DCV medical staff inadequately monitors the effectiveness
of medications prescribed. DCV medical records lack sufficient information
to justify orders for medications or changes in medication. The absence
of such data undermines the ability to evaluate the efficacy of medication
treatment. As a result, residents may continue to receive medications that
are not effective and do not resolve their medical condition. This also
unnecessarily exposes these individuals to the risks of medication side
DCV is failing to provide adequate and appropriate routine, chronic,
and emergency seizure management to all epileptic individuals at DCV in
accordance with accepted professional standards of care. Individuals prone
to seizures need regular and periodic medical review of their condition
and care. However, at DCV, there is grossly deficient medical practice
in this respect. DCV fails to provide individuals with epilepsy with a
comprehensive neurological assessment of their condition; and there is
no apparent neurology follow-up of residents with epilepsy either by a
DCV physician or by an outside consultant neurologist. As a result, it
is not clear whether many DCV residents still need to be taking anticonvulsant
DCV fails to provide adequate staffing to meet residents' medical needs.
As we first indicated to you in our 1991 findings letter, DCV does not
have the expertise, and is simply not equipped to provide the specialized
medical care and treatment required for its mentally ill and mentally retarded
populations. To make matters worse, DCV fails to provide its medical staff
with needed staff development and continuing medical educational opportunities
that would help enable them to meet these needs. On our most recent visit,
staff at the facility complained to us that there were endemic staff shortages
at DCV. With respect to physician staffing levels, for example, Dr. Allin,
a psychiatrist at DCV, has been pressed into duty as a surrogate internist
because of staff shortages. Dr. Allin is trained as a psychiatrist, not
as a primary care physician, so the individuals under his care are not
being afforded the needed services of a general care medical doctor. In
addition, there is a trend at DCV to hire contract physicians who, at least
initially, will be largely unfamiliar with the needs of the DCV residents
they are to care for. This is already a problem at DCV given the large
number of contract/ agency nursing staff employed at the facility. In short,
the current DCV staff is quantitatively inadequate and qualitatively deficient
to deal with the complex medical needs of the DCV population.
DCV violates generally accepted practice by failing to maintain adequate
and appropriate medical records with proper documentation. Interdisciplinary
team notes in the individual residents' charts are grossly inadequate;
meaningful progress notes are either absent or inadequate as physicians
do not consistently make notes in the individuals' charts when appropriate;
and medical forms in the charts are not up-to-date and often have inexplicably
not been updated for months or even years. In short, DCV lacks a recordkeeping
system that is sufficient to provide accurate, relevant and timely information
upon which professional decisions may be based regarding the necessary
care for residents. As we first indicated in 1991, inadequate recordkeeping
practices have compromised DCV's ability to provide adequate care to its
There are many other specific deficiencies in the provision of medical
care and services at DCV including the DCV medical quality assurance system.
In this regard, the staff fails to ensure that ordered services are actually
rendered and that ordered medications are actually given to residents.
II. NURSING CARE IS INADEQUATE.
DCV is failing to ensure that its residents receive adequate nursing
care, and that DCV nurses perform their responsibilities in keeping with
accepted professional standards of care by adequately identifying health
care problems, notifying physicians of health care problems, monitoring
and intervening to ameliorate such problems, and keeping appropriate records
of residents' health care status.
One of the most urgent problems at DCV is the facility's failure to
provide each individual with adequate and appropriate nutritional management
in accordance with accepted standards of care. This failure has placed
many DCV residents at risk of aspirating which is an extremely dangerous,
life-threatening situation. DCV is failing to identify, assess and diagnose
each individual who has a nutritional management problem, including difficulty
swallowing, chewing, or retaining, assimilating or eliminating food and/or
liquids. DCV is failing to ensure that residents are not fed improperly
or while improperly positioned in a wheelchair. The DCV staff does not
provide adequate medical and nursing care services with respect to those
individuals with dysphagia and other eating disorders. DCV has failed to
develop screening indicators to identify individuals who are aspirating,
are at risk of aspirating, and/or who have symptoms of gastroesophageal
reflux. DCV is failing to provide comprehensive, interdisciplinary evaluations
and diagnoses for these individuals and is failing to identify medical,
dietary, feeding and positioning needs of each such individual. Even for
those individuals so identified, DCV fails to regularly monitor the progress
of the DCV residents at risk of aspirating and to take whatever assessment,
diagnostic, treatment, or supervision steps are necessary to ameliorate
the individual's risk.
The nursing assessments at DCV are inadequate and are not in keeping
with accepted professional practices. DCV fails to conduct adequate comprehensive
nursing assessments with quarterly updates of the nursing care needs of
the DCV residents. DCV also fails to develop and implement adequate and
appropriate comprehensive nursing care plans to address each resident's
health care needs in accordance with accepted professional practices. DCV
also fails to develop and implement an appropriate nursing care plan to
address any acute condition. Moreover, nursing staff should routinely monitor
each individual's current condition and review treatment needs. However,
DCV fails to routinely perform on-going monitoring of serious medical conditions,
and to undertake such basic procedures as taking vital signs and monitoring
other individualized health status information. For example, the DCV nursing
staff routinely fails to monitor individual weights and respond to individual
nutritional needs in a timely fashion. DCV needs an adequate quality assurance
system to ensure that proper care and monitoring are being provided to
The current nursing staff is inadequate to meet the needs of the DCV
residents. The clientele at DCV have very complex medical and nursing needs
with many individuals having unique bathing and/or toileting needs. Consequently,
a sufficient nursing presence is crucial to their adequate care. The existing
nursing staff has been forced to operate in a perpetual "crisis mode."
As a result, nursing and medical care have greatly suffered. Nursing ratios
must be increased generally to ensure the provision of basic nursing care,
adequate supervision and therapeutic interaction for each resident.
There is currently a staffing problem given the widespread and common
use of agency/contract nurses at DCV. Current nursing vacancies are not
being filled, and according to the DCV Director of Nursing, agency/contract
nursing staff now approaches fifty percent of total shift coverage within
the facility. This is an extraordinarily high use of outside nurses and
it is unacceptable. Such widespread use of agency/contract nurses presents
serious risks to the health and safety of the DCV residents because the
individual members of the contract staff often do not even know the names
and identities of the residents to whom they are providing care and nursing
services. As such, the current practice at DCV is neither clinically appropriate
nor a safe means of providing nursing care to the DCV residents.
The DCV nursing staff needs to be inserviced to ensure that they have
been provided with the appropriate training to care for the diverse and
challenging DCV population. DCV nurses, especially the contract nurses,
are in urgent need of appropriate inservice training on the specialized
needs of the DCV population, especially those with mental illness and those
with mental retardation.
There are other nursing deficiencies at DCV. For example, there is evidence
of an excessive number of medication errors at DCV. The facility lacks
adequate nursing protocols for certain problematic yet recurring conditions
among the DCV residents: eating and swallowing disorders; non-ambulatory
residents; residents with seizure disorders; residents with serious behavioral
problems; residents with dementia and/or mental illness; residents with
mental retardation; and residents prone to confusion, falling, bedwetting,
etc. Nursing care rendered to immobile residents is inadequate. At DCV,
they are bathed only every three days, they are provided with irregular
and inadequate range of motion exercises, and they are not turned frequently
enough, thus exposing them to the risk of decubiti. In addition, physical
management is insufficient to meet the residents' needs.
There are also a number of basic care deficiencies at DCV. For example,
the facility fails to provide adequate pest control throughout the institution.
Our consultants frequently observed ants at DCV on our most recent tour.
On some units, there was a foul odor akin to a urine smell. Finally, some
residents expressed concerns about missing and ill-fitting clothes, as
well as unappetizing foods.
III. PSYCHIATRIC CARE IS INADEQUATE.
The District is failing to provide DCV residents with adequate and appropriate
psychiatric care and mental health services in accordance with accepted
professional standards to residents who need such services.
DCV has an insufficient number of psychiatric staff to provide adequate
care and training to meet generally accepted professional standards. In
our 1991 letter, we notified you that one of the most glaring personnel
deficiencies was the shortage of staff with specialized training in the
care and treatment of mental illness. We indicated that the current DCV
staff was inadequate to deal with the complex psychiatric and medical needs
of the DCV population. Unfortunately, this is still true today. Even the
staff at the facility complained to us on our most recent visit that there
were endemic staff shortages at DCV and that this directly compromised
the provision of psychiatric care and treatment. A recent example of the
negative impact of the staffing shortage at DCV is the recent forced closure
of Unit 3B which primarily served residents with mental illness. The staff
is largely unfamiliar with the residents' individual psychiatric needs.
This is especially true of the contract/agency staff at DCV. Because of
the unavailability of trained and supervised professional and direct care
staff, DCV both overuses and dangerously misuses chemical restraints on
A psychiatrist working at a facility like DCV should not be responsible
for the primary medical care of any resident. However, at DCV, Dr. Allin,
a psychiatrist, has recently been pressed into service as a surrogate internist
because of staff shortages. As a result, there is no qualified psychiatrist
working at DCV who is responsible solely for the coordination of mental
health services at the facility. Ever since Dr. Allin has been saddled
with inappropriate primary care responsibilities, there has been a marked
decrease in the quality of psychiatric care rendered at DCV. Serving as
a primary care physician has kept Dr. Allin from providing psychiatric
services to any residents outside of those on his caseload, and has greatly
impaired his ability to tend to the psychiatric needs of his own patients.
It is generally accepted that individuals with mental illness, like
those at DCV, are to be provided with adequate psychiatric assessment,
diagnosis, treatment and monitoring of their condition. Specifically, they
are to be afforded an initial comprehensive psychiatric assessment, a carefully
considered psychiatric differential diagnosis based on DSM-IV criteria
and objective behavioral data, a psychiatric treatment plan that is integrated
with the individual's medical plan of care and with the individual's behavioral
treatment programming, adequate psychiatric monitoring that includes quarterly
updates of the psychiatric treatment plan, and at least a monthly psychotropic
drug review to monitor drug efficacy, dosing and side effects. However,
DCV does not afford this to its residents.
DCV is not providing its residents with a comprehensive psychiatric
assessment including adequate behavioral data and with a functional analysis
of the individual's behavior where appropriate. DCV also conducts no cognitive
examinations or dementia work-ups of its residents. DCV is not providing
its mentally ill residents with an integrated differential diagnosis and
treatment plan which is signed by the psychiatrist. It is generally accepted
in the field that a proper DSM-IV diagnosis be formulated and recorded
before any institutionalized resident is provided psychotropic medication.
However, the DCV medical staff is not familiar with and does not appropriately
employ the DSM-IV criteria or terminology in formulating psychiatric diagnoses.
Many DCV residents have been placed on psychotropic medications without
adequate documentation. This violates generally accepted practice.
With respect to psychiatric treatment at DCV, there is no effort made
to integrate psychiatric care for the residents in a multidisciplinary
fashion. Psychiatric notes are not integrated with the individual's overall
medical plan of care or with behavioral treatment programs. Our consultant
could not find a single integrated medical/ psychiatric/ psychosocial plan
in any DCV resident's chart. It is generally accepted that prior to prescribing
psychotropic medication for individuals with behavior problems, a facility
is to specify that alternative
non-pharmacological treatments have been systematically attempted and
that they have been ineffective. However, this is not done at DCV. As we
first indicated in our 1991 letter, DCV is failing to adequately integrate
the use of psychotropic medication with behavioral programming. At DCV,
there is no organized use of psychotropic medication in a carefully considered
plan of care, and there is no rationale provided when medication dosages
are changed. There is also no consistent correlation between medication
order changes and progress note documentation of such changes. All this
does not comport with accepted standards in the field. As a result, integrated
psychiatric treatment plans are urgently needed for the DCV residents to
ensure that programming options are exhausted before medications are perhaps
Psychotropic medications are often used incorrectly at DCV. For example,
medication dosing does not always conform to geropsychiatric standards,
dosing of antidepressants is inadequate or not properly titrated, depression
is poorly documented (if at all), and there is widespread usage of PRN
medication at DCV. There are also many individuals with the medication
side effect of tardive dyskinesia ("TD") living at DCV. Yet, anticholinergic
medications are improperly prescribed for TD, even though these agents
will, in fact, worsen TD. The DCV physicians are confusing TD and extrapyramidal
symptoms. This indicates a lack of basic neuro-chemical/ neuro-pharmacological
understanding among medical providers at DCV and highlights the need for
inservice training in psychopharmacology and geriatric psychopharmacology.
Our consultant concluded that the DCV primary care doctors are not adequately
trained in the field of psychiatry. (1)
It is generally accepted that the monitoring of an individual's progress
on a given psychiatric treatment should include the collection of appropriate
objective and behavioral data so as to ensure that the individual is receiving
benefit from the treatment. However, at DCV, the staff fails to collect
and provide behavioral data to the physician or psychiatrist for evaluation
of the particular treatment. In fact, at DCV, there is no evidence of follow-up
by the psychiatrist or primary care physician regarding a resident's progress
on a given psychiatric treatment.
As we first indicated in 1991, the facility's monitoring of psychoactive
medications departs from accepted medical practice and fails to protect
residents from serious risks of harm. Because of the dearth of behavioral
and other data collected at DCV, the physician or psychiatrist is limited
in his ability to determine whether a particular medication regimen has
been successful or not, and whether it should be adjusted or withdrawn.
This produces the risk of undue chemical restraint. Psychotropic medications
used without continual justification by objective, accurate, individualized
behavioral data constitute restraint for behavioral control purposes. In
addition, necessary evaluations of medications are not made at DCV, nor
is there evidence of attempts at "drug holidays" or at gradual reduction
after extended usage at the same dosage. Once DCV achieves stabilization
of acute behavioral symptoms through medication, the staff no longer provides
dynamic treatment; the treatment becomes static.
In addition, side effects of psychotropic medications are inadequately
and improperly monitored at DCV. We first notified you in 1991 that DCV
residents are not adequately monitored for drug side effects. For example,
there currently is no regular review of prescribed psychotropic medications
to integrate side effects with symptoms; DCV does not take postural blood
pressure ratings on residents; and our consultant found that AIMS scores
in residents' charts appeared to be perfunctory and did not correlate with
his own observations.
IV. PSYCHOLOGICAL SERVICES ARE INADEQUATE.
The District is failing to provide the residents of DCV with that level
of minimally adequate individualized behavioral programming to ensure and
protect the DCV residents' liberty interests in personal safety and freedom
from undue or unreasonable restraint.
Individuals living in an institution like DCV must be protected from
physical injury and psychological harm stemming from behavior problems.
An individualized behavioral treatment program, devised and implemented
according to currently accepted professional standards, can reduce and
eliminate these maladaptive behaviors. However, the behavioral treatment
programs currently utilized at DCV substantially depart from accepted professional
standards. DCV fails to provide an adequate array of comprehensive individualized
training programs developed by qualified professionals consistent with
accepted professional standards to reduce or eliminate risks to personal
safety, unreasonable use of bodily restraints, prevent regression, and
facilitate the growth, development, and independence of every DCV resident.
Our consultant psychologist found that DCV residents are being subjected
to harm and unreasonable risk of injury due to major deficiencies in the
assessment of residents and in the development, implementation and monitoring
of resident behavioral programs. As a result, the District is failing to
provide reasonably safe conditions and to ensure the reasonable safety
and personal security of the DCV residents.
All behavioral programs must be based upon an adequate assessment of
resident need, including the need to develop programs to address maladaptive
behaviors. DCV residents have evidenced quite a range of maladaptive behaviors,
including self-injurious behavior, pica, including ingesting feces and
drinking from the toilet, and aggression. At every stage of the assessment,
analysis and treatment of an individual's behavioral problems, DCV is failing
to meet accepted professional practices. The inadequacies in the development
and implementation of behavioral programs at DCV have deprived the residents
of effective treatment for their maladaptive behaviors and violated their
Residents demonstrating self-injurious, physically abusive or other
destructive behaviors are not being provided appropriate training to reduce
or eliminate such behaviors. The limited behavior programs that are provided
are not data based and thereby fail to meet professional standards. DCV
lacks a facility-wide behavioral observation system that is used by all
staff. Absent appropriate data, DCV staff cannot evaluate whether behavior
programs are effective.
The District is engaging in the use of chemical restraints by failing
to ensure that psychotropic medications are prescribed and administered
to DCV residents in keeping with accepted professional standards, and are
not used in lieu of treatment, or for the convenience of staff. For those
dually diagnosed individuals who need both behavioral programming and medication
for their mental illness, it is extremely important that the two treatments
are integrated properly. Accurate and reliable behavioral data is particularly
important when behavioral programs are combined with pharmacological treatment.
In addition, written programs must show that the psychologist and physician
have discussed the probable consequences of the combined treatments. However,
at DCV, the level of integration of behavioral and pharmacological interventions
is minimal. DCV fails to provide adequate behavioral programming for residents
taking psychotropic medication. The programming that does exist, moreover,
is not integrated with the use of psychotropic medication.
For those individuals on psychotropic medication, it is generally accepted
that the treatment monitoring process is to involve continual reevaluation
of the individual's existing behavior management program to determine whether
it is appropriate and effective and whether the programs or interventions
need to be developed or modified to address the resident's target behaviors
so as to reduce or eliminate the need for psychotropic medication. However,
DCV employs inadequate procedures for monitoring the effectiveness of behavioral
programs and/or medications prescribed.
The District is failing to ensure that DCV residents are free from undue
or unreasonable restraint. DCV fails to provide professionally developed
individualized training programs that are sufficient to ensure that residents
are not subjected to unwarranted and unreasonable restraints. For example,
instead of programming, DCV routinely uses mitts to control the maladaptive
behaviors of certain residents. The DCV staff consistently fails to identify
and eliminate circumstances which provoke problematic behaviors in residents,
particularly those who are mentally retarded. As a result, the staff intervention
invariably focuses on restraint to control maladaptive or aggressive behavior,
without resort to other recognized therapy methods. Physical and chemical
restraints are both overused and dangerously misused by DCV staff on residents
because of the lack of essential training programs.
Not all residents with behavior problems are being provided with a comprehensive
interdisciplinary evaluation to determine the individual's need for training.
As mentioned, there is no adequate behavior data collection system in place
at DCV. For individuals with problem behaviors, DCV is failing to provide
them with adequate functional analyses.
The District is also failing to provide DCV residents with that level
of individualized training necessary to enhance functioning, and facilitate
growth, development, and independence. In the absence of such programs,
residents do not develop the skills necessary to exercise any degree of
independence and they remain totally dependent on staff to meet all their
DCV residents' functional capabilities are deteriorating because of
inadequate interaction, stimulation and treatment. Our consultants observed
that the residents typically sit around all day with nothing to do. Often
this occurs while individual staff are in the room watching television.
As a result, training programs at DCV are not implemented, revised or updated.
In talking with staff on the units, it was not clear at all to our consultant
that the residents who were supposed to be getting programming were actually
getting it. Individual staff on the units were, for the most part, completely
unfamiliar with the individuals' programming needs. In fact, the programming
books that they are to use are located at a location far from the actual
living units. Further, the training programs as written, focus on activities
for the staff to do for the resident instead of for the resident to complete
him or herself. This does not comport with generally accepted practices.
The communication programs in place at DCV are inadequate in that they
do not teach the residents to express their needs and wants. Activity programs
and level of staff interaction are not adequate to even ensure maintenance
of existing functional levels. Currently, activities of daily living and
assistance with eating are considered activity therapy and are used to
justify very limited provision of occupational and physical therapy.
We noticed a recurring problem at DCV in that there was a shortage or
absence of needed adaptive equipment. For example, the speech therapist
regularly noted that adaptive spoons or adaptive cups were not available
for use with the residents. Even though this occurred repeatedly, DCV took
no steps to remedy or even reference the problem in a quarterly or monthly
As we indicated in 1991, inadequate recordkeeping practices have compromised
DCV's ability to provide behavioral treatment and training to its residents.
DCV lacks a recordkeeping system sufficient to provide accurate, relevant
and timely behavioral data upon which professional decisions may be based
regarding the programming for its residents. The absence of such data undermines
the ability to assess an individual's progress on a given treatment plan
and the interaction of drugs and behavioral intervention.
DCV does not provide adequate psychology service hours to its residents.
As we indicated in 1991, the most glaring personnel deficiency is the shortage
of staff with specialized training. The current DCV staff is inadequate
to deal with the complex psychiatric and psychological needs of the DCV
population. Physical and chemical restraints are both overused and dangerously
misused by DCV staff on residents because of the unavailability of trained
and supervised professional and direct care staff.
V. FEDERAL STATUTORY VIOLATIONS
Based upon our tours, we believe that the District is not in full compliance
with a number of federal statutes and regulations. For example, the District
is not meeting the PASSAR requirements pursuant to 42 C.F.R. § 483.100
et seq. (1994). For those mentally retarded and mentally
ill individuals confined at DCV, the District must provide them with adequate
and appropriate specialized services. For those with mental illness, this
includes, for example, the continuous and aggressive implementation of
an individualized plan of care that, among other things, works toward reducing
the resident's behavioral symptoms and improving his or her level of independent
functioning. For those individuals with mental retardation, it entails,
for example, the aggressive and consistent implementation of a program
that works to enable the individual to acquire behaviors necessary for
the individual to function with as much self-determination and independence
as possible. However, the District fails to adequately provide and implement
these services for its mentally ill and mentally retarded residents confined
The District is also failing to meet the requirements of the Americans
with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et
seq., and the regulations promulgated pursuant thereto; and Section
504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. §
794 et seq., and the regulations promulgated pursuant thereto
with respect to many individuals, especially children and other individuals
whose primary diagnosis is mental disability -- individuals with mental
illness or developmental disabilities. DCV is an isolated, self-contained
environment which necessarily separates its residents with disabilities
from the rest of society. As a result, the facility fails to provide its
residents treatment in an environment that permits contacts with society
and its mainstream social institutions, demands independent functioning
and permits the exercise of judgment and contact with family members. The
District must provide its residents with disabilities an opportunity to
participate in or benefit from aids, benefits and services equal to that
afforded to others outside the institution; more specifically, to those
provided to other individuals with disabilities in the District's well
established community-based programs. The residents are entitled to aids,
benefits and services that are as effective in affording them the equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as those served in community-based
programs. By confining residents with disabilities at DCV, the District
is failing to provide such services in the least separate, most integrated
setting as required by the ADA and Section 504.
Further, we are concerned that the District may not be providing its
school-aged residents with an appropriate education in accordance with
the requirements of the Individuals with Disabilities Education Act ("IDEA"),
20 U.S.C. § 1400 et seq. The DCV children are not being
served in the least restrictive environment. Confined at the facility,
they are necessarily denied adequate involvement and interaction with other
school-aged children contrary to the IDEA.
In addition to the above statutory and regulatory violations, we note
the many historical violations, cited by the Health Care Financing Administration,
of the Medical Assistance Program (Medicaid) established under Title XIX
of the Social Security Act, 42 U.S.C. § 1396r et seq.,
and the regulations promulgated pursuant thereto, and of the Health Insurance
Program for the Aged and Disabled (Medicare) established under Title XVIII
of the Social Security Act, 42 U.S.C. § 1395i et seq.,
and the regulations promulgated pursuant thereto.
VI. MINIMAL REMEDIAL MEASURES
In addition to the remedial measures specified in our letter dated August
19, 1991, the following additional measures, at a minimum, need to be implemented
at DCV in order to protect the rights of residents and other individuals
with disabilities currently confined there.
1. Facility Reorganization
a. Steps must be taken to ensure that the facility is operated as a
nursing home consistent with currently accepted professional standards
of care by, inter alia, placing all inappropriately placed
individuals, i.e., children and other individuals with a primary diagnosis
of mental illness or mental retardation, in appropriate community based
programs and facilities. Priority in placement should be given to children.
No further children shall be admitted to the facility. All services developed
to serve these individuals will be provided in the least separate or most
b. All residents of DCV with mental disabilities should be professionally
evaluated to determine the residential, day program, medical and other
services needed to serve them in the community. Such programs should be
established within a reasonable period of time and the residents placed
in them. All placements should be monitored consistent with professionally
based quality assurance standards and no person shall be placed in any
program which cannot fully meet their needs.
c. All school-aged children should be evaluated to determine their individual
needs with respect to educational services, related services and auxiliary
aids to permit them to be placed and receive appropriate educational services
in the least restrictive environment.
d. To the extent that children and other individuals with disabilities
remain at DCV for any period of time, services must be enhanced to meet
their specialized needs, including requirements for adequate treatment
2. Medical Care
The District shall ensure that DCV residents receive adequate preventive,
chronic, routine, acute, and emergency medical care in accordance with
generally accepted standards of care. To this end, DCV primary care physicians
a. Conduct comprehensive evaluations of all residents for whom they
b. Determine what specialized medical services are required for the
residents for whom they are responsible and ensure that such services are
timely obtained whenever necessary to evaluate or treat the individual's
c. Ensure that each individual has an integrated medical plan of care
to address any chronic medical problem;
d. Ensure that each individual's medical status and progress in response
to the individual's medical plan of care is fully and adequately reviewed.
DCV shall provide adequate medical care for those individuals at risk
of aspirating. To this end, DCV shall:
a. Identify individuals who are at risk of aspirating;
b. Take any appropriate medical steps to ameliorate the individual's
aspiration risk and develop and implement an individualized feeding and
positioning plan for each individual identified as at risk of serious illness,
injury, or death due to aspiration;
c. Develop and implement a system to regularly monitor the progress
of the DCV residents who are at risk of aspirating to ensure that the staff
is continually taking whatever assessment, diagnostic, supervision and
treatment steps are necessary to ameliorate the individual's risk.
The District shall provide adequate and appropriate routine, chronic,
and emergency seizure management to all individuals with epilepsy at DCV
in accordance with accepted professional standards of care.
3. Nursing Care
The District shall ensure that residents receive adequate nursing care,
and that DCV nurses perform their responsibilities in keeping with accepted
professional standards of care by adequately identifying health care problems,
notifying physicians of health care problems, monitoring and intervening
to ameliorate such problems, and keeping appropriate records of residents'
health care status. To this end, DCV nurses shall:
a. Conduct adequate, comprehensive assessments;
b. Develop and implement adequate and appropriate comprehensive nursing
care plans to address each resident's health care needs;
c. Routinely perform on-going monitoring of serious medical conditions,
including such basic procedures as taking vital signs and measuring weights;
d. Develop and implement a system for recording important information
about a resident's status to monitor changes;
e. Ensure that all DCV residents receive adequate and appropriate food,
shelter, and clothing.
The District shall provide each individual at DCV with adequate and
appropriate nutritional management in accordance with accepted standards
of care. To this end, DCV shall:
a. Identify each individual who has a nutritional management problem,
including dysphagia, difficulty swallowing, chewing, or retaining, food
b. Have an interdisciplinary team of oral motor specialists comprehensively
assess each such individual to identify the causes for the nutritional
c. Take necessary medical steps to ameliorate the problem;
d. Develop and implement a system to regularly monitor the progress
of the DCV residents with nutritional management difficulties to ensure
that staff is continually taking whatever assessment, diagnostic, supervision
and treatment steps are necessary to ameliorate the individual's difficulties.
The District shall provide each individual at DCV with adequate and
appropriate physical management in accordance with accepted standards of
4. Psychiatric Care
The District shall provide adequate and appropriate routine and emergency
psychiatric and mental health services in accordance with accepted professional
standards to residents who need such services. Psychotropic medication
shall only be used in accordance with accepted professional standards and
shall not be used as punishment, in lieu of a training program, for behavior
control, in lieu of a psychiatric or neuropsychiatric diagnosis, or for
the convenience of staff. DCV shall:
a. Conduct a comprehensive assessment of each DCV resident receiving
b. Develop an overall treatment plan for each resident with a diagnosis
of mental illness with a description of clear, objective and measurable
short-term, intermediate and long range goals and objectives for each resident
including time frames for the achievement of each, and provide on-going
monitoring of the treatment;
c. Document that, prior to using the psychotropic medication for behavior
modification, other, less restrictive techniques have been systematically
tried as part of a training program and have been demonstrated to be ineffective.
DCV must develop and implement an adequate system for detecting, reporting,
and responding to any drug-induced side effects of psychotropic medication.
5. Psychological Services
The District shall provide an adequate array of comprehensive individualized
training programs at DCV developed by qualified professionals consistent
with accepted professional standards to reduce or eliminate risks to personal
safety, unreasonable use of bodily restraints, prevent regression, and
facilitate the growth, development, and independence of every DCV resident.
To this end, DCV shall:
a. Conduct a comprehensive interdisciplinary evaluation of each DCV
resident with special needs to determine the individual's need for training;
b. Develop and implement a professionally based, individually appropriate
data collection system to measure relevant information about maladaptive
behaviors and the conditions under which they occur, including, where appropriate,
the frequency, intensity, and duration of the behaviors;
c. Have a qualified professional develop and implement a professionally
based, individualized training program for each resident and provide each
individual with an adequate number of hours of training.
The District shall ensure that bodily restraints, including emergency
restraints and time out, are used only pursuant to accepted professional
standards and that they are never used as punishment, in lieu of training
programs, or for the convenience of staff.
6. Recordkeeping and Staffing
The District shall establish and maintain an adequate record for each
individual that comports with accepted professional standards that shall
include current information with respect to his/her care, medical treatment,
and training and shall require staff to utilize such records in making
care, medical treatment and training decisions.
The District shall ensure that a sufficient number of professional and
non-professional staff are employed to fully meet the needs of the DCV
Pursuant to CRIPA, the Attorney General may initiate a lawsuit to correct
deficiencies at an institution or otherwise to protect the rights of its
residents 49 days after appropriate officials have been advised of the
relevant violations of law. 42 U.S.C. § 1997b(a)(1). Therefore, we
anticipate hearing from you as soon as possible but no later than 49 days
after the date of this letter with any response you may have taken or intend
to take to implement each of the remedies described above. If you do not
respond within the stated time period, we will consider initiating an action
against your jurisdiction to remedy the unconstitutional and unlawful conditions
we have identified. In your response, please address your willingness to
enter into a judicially enforceable agreement to memorialize any agreement
we may subsequently reach regarding this matter.
We look forward to working with you to resolve this matter in a reasonable
and practical manner. If you or your staff has any questions, please feel
free to contact Richard Farano at 202-307-3116, or David Deutsch at 202-514-6270.
Deval L. Patrick
Assistant Attorney General
Civil Rights Division
cc: Melvin Bolden, Esq.
Assistant Deputy Corporation Counsel
Office of the Corporation Counsel
Government of the District of Columbia
T. Britt Reynolds, Esq.
Department of Human Services
Government of the District of Columbia
Ms. Alberta Brasfield
D.C. Village Nursing Home
The Honorable Eric H. Holder, Jr.
United States Attorney
District of Columbia
1. DCV provides virtually no inservice training on
mental health issues for its medical care staff, nursing staff or other
direct care staff. As a result, psychiatric care at DCV has suffered on
every level. A continuing education program in mental health issues and
practices needs to be developed for the medical, psychiatric, nursing and
other staff. In addition, the pharmacy department should be inserviced
on geriatric psychopharmacology.