Seven Massachusetts individuals with disabilities residing in nursing facilities have brought a class action lawsuit against the Commonwealth of Massachusetts for failure to provide community residential services and supports necessary for them to be able to move from such facilities in violation of both the Americans with Disabilities (ADA) and Medicaid (MassHealth) Acts. Further, they claim such failures disproportionately impact people of color. They are joined in their suit by the Massachusetts Senior Action Council, a statewide, grassroots, senior-led organization that empowers its members to use their own voices to address key public policy and community issues that affect their health and well-being.
The lead plaintiff in the case, John Simmons, Mass. Senior Action Council, et al. v. Charles Baker (as Governor) et al. (U.S. Dist. Ct. Mass. Civil Action No. 22-11715), is John Simmons, a Black man with a medical and psychiatric disability who has unwillingly spent the past three years in a nursing facility in Everett. Five of the other plaintiffs are represented by their guardian, Sara Spooner of Spooner Guardianship Services in Auburn.
The defendants, in addition to Governor Baker, include the executive offices of Health and Human Services, Administration and Finance and Elder Affairs, as well as MassHealth. (Lois Clark, the lead plaintiff in the seminal U.S. Supreme Court case holding that restricting people with disabilities to institutions recently passed away. For more information on Home and Community Based Waivers under Medicaid, Justice in Aging and Caring Across Generations have prepared a fact sheet which you can access here.)
Nursing Facilities are Dangerous and Overly Restrictive
The complaint alleges that by being confined in nursing facilities, especially during the height of the Covid-19 pandemic, puts the plaintiffs and the members of the class at serious risk:
Nursing facilities are segregated residential settings. Unnecessary segregation in
nursing facilities is also dangerous. Living in segregated facilities has been linked to accelerated
mental, emotional, and physical decline. Further, over the past two and a half years during the
COVID-19 pandemic, persons with disabilities in nursing facilities have suffered unique
deprivations, including a serious risk of harm and death, and for a significant time were deprived
of almost all contact with loved ones and friends. They died at an alarming rate: one in every
seven residents of nursing facilities in Massachusetts succumbed in the COVID-19 pandemic,
which is one of the highest mortality rates in the country. At one point, nearly 66% of all deaths
in Massachusetts involved persons with disabilities who lived in nursing facilities and other segregated long-term care facilities.
Even without these risks, life in nursing facilities is greatly limited:
There is little, if any, privacy for persons with disabilities in nursing facilities.
Individuals often share rooms with other people whom they did not know previously and with
whom they did not choose to live. They often cannot even close the doors to their own rooms.
Meals are provided based upon a schedule dictated by the institution. People with
disabilities have little choice about what and when to eat. Food selection rarely reflects the
ethnic or racial diversity of the people with disabilities in nursing facilities.
Nursing facilities are stark environments where residents have a minimal number
of personal possessions that usually cannot be secured. People with disabilities in nursing facilities have little, if any, choice regarding when to wake, sleep, shower, how to spend their
days, and if and when to leave the facility for “outings.”
And Unduly Impact People of Color
The complaint alleges that these risks and hardships of living in nursing facilities unequally affect people of color. In addition, even within these institutions people of color are treated worse than white residents:
The hardships of institutionalization are most acutely felt by people of color, who
fare poorly in nursing facilities compared to white residents. For example, Black residents
experience increased physical restraints, indwelling catheters, and psychotropic medications as
compared to white residents. Similarly, they are more likely to have untreated or undertreated pain.
They claim that the services providing in nursing facilities could be provided in the community and cite successful deinstitutionalization lawsuits by Massachusetts residents with intellectual and developmental disabilities and acquired brain injuries. Finally, the suit asks for further relief for individuals with serious mental illness in the form of an injunction requiring MassHealth to comply with federal requirements regarding pre-admission screening and provision of appropriate treatment while they are living in nursing facilities.
Real People, Real Damage
The plaintiffs are:
- John Simmons, “a 73-year-old Black man with pulmonary emphysema, HIV, and a major depressive disorder. He uses a wheelchair for mobility, but can at times walk with a walker or cane.” He has resided at The Rehabilitation & Nursing Center at Everett since March 11, 2019.
- David Marsters, “a 72-year-old white man who was born with a developmental disability. In 2020, he received a new diagnosis of a high-functioning form of autism spectrum disorder. He is an outgoing, affable person who likes playing guitar, listening to music, rooting for the Philadelphia Phillies baseball team, and collecting baseball caps and hockey jerseys.” He was admitted to the Behavioral Unit at Hillcrest Commons Nursing & Rehabilitation in October 2016.
- Lorraine Simpson, “a 63-year-old Black woman with anxiety, depression, hypertension, and diabetes. She is alert, friendly, pleasant. and enjoys talking to people. She is remarkably independent and mobile, and she actively engages with visitors and staff at the nursing facility.” She was admitted to Hermitage Healthcare in Worcester on May 6, 2021.
- Sherri Currin, “a 54-year-old white woman who has multiple sclerosis who also has SMI and a substance use disorder (SUD). She was admitted to the Marlborough Hills Rehabilitation and Health Care Center from Clinton Hospital on March 23, 2022.”
- Carole Chojnacki, “a 67-year-old white woman who has been diagnosed with mental illness, chronic obstructive pulmonary disease, type 2 diabetes, chronic kidney disease, and difficulty walking. She was admitted to The Rehabilitation and Nursing Center at Everett on April 4, 2022, following a psychiatric hospitalization.”
- Richard Caouette, “a 63-year-old white man with epilepsy, Type 2 diabetes, and SMI. He was admitted to the Bear Mountain facility in Worcester on June 30, 2020, after receiving psychiatric care at UMASS Memorial Hospital. Previously, he resided at a nursing facility in Southbridge, Massachusetts since November 2019.”
- Donald Grant, “a 63-year-old white man with diabetes, respiratory disease, and pulmonary issues. He uses a wheelchair for mobility.” He “was admitted to Worcester Rehabilitation and Health Care Center on May 29, 2021, following inpatient acute medical care and an evaluation for hyperglycemia. He still resides in that facility.”
The plaintiffs are represented by the law firm of Foley Hoag.