Dignity Alliance Massachusetts is seeking expertise regarding:
RIVER TERRACE OPERATOR, LLC, et al.
vs.
COMMONWEALTH OF MASSACHUSETTS, et al.
Superior Court, Suffolk County, Civil Action No. 228CV1024
Dignity Alliance is seeking expert witnesses who can testify for the merits of limiting the number of residents per room and is also seeking any research that may have been conducted which strengthens the state’s case.
The discovery period also provides an opportunity for advocates on behalf of nursing home residents to require nursing homes to provide information that they have heretofore been reluctant to provide relative to their operations, staffing, financing, etc. To the degree that this case could reveal information about the business model of the nursing home industry, and could result in improvements in resident care and quality of life, this case could accomplish much of what legislative bodies, heavily lobbied by a well-financed nursing home industry, have been unable or unwilling to provide. It’s an important opportunity for advocates to win significant, even transformational reform of the long-term care industry in Massachusetts.
Background:
Two years ago, the Massachusetts Department of Public Health revised state regulations for skilled nursing facilities, primarily intended to address some of the problems experienced by the COVID-19 Pandemic. While the pandemic was the impetus for improvements, they were clearly long overdue.
At the public input stage, then newly formed Dignity Alliance, under the expert leadership of Paul Lanzikos and Arlene Germain, provided testimony in support of the improvements, and strongly suggested that the state should go further in regulating nursing homes.
One of the changes in the regulations was to require nursing homes to have no more than two residents per room to minimize the spread of infections and to provide more privacy to the residents. Dignity Alliance applauded this change, but urged single room occupancy to increase both protection from infection spread and greater privacy. However, the state final regulations stuck with the limit of two residents per room, and gave current nursing homes more than a year to come into compliance. If a nursing home could demonstrate legitimate hardship even with the year’s grace period, DPH had the authority to grant waivers.
Most of the Commonwealth’s nursing homes sought to comply with the regulations, but some, who had not previously raised objections during the regulatory development stage waited and in May, 2022, filed a complaint in Suffolk Superior Court that the new regulations should not be imposed for a variety of reasons – such as that DPH exceeded its authority, that they violated the contracts clause of the federal constitution, that they constituted a taking of property under both federal and state constitutions, that they pre-empted Medicaid legal requirements, etc. The Commonwealth, through the Attorney General, moved to dismiss the complaints. After more than six months of motions back and forth, claims and counter-claims, the judge decided not to dismiss the complaints, without prejudice, meaning the state could seek dismissal in the future, but ordered that the case proceed with testimony and evidence on the basic facts of the complaint. Until the matter is decided in court, the complaining nursing homes are not obligated to comply with the two-resident limits, and for all practical purposes, the DPH will not enforce the regulation.
Dignity Alliance supports the state in implementing the limitation and plans to work to assist the Attorney General’s Office in preparing for the court review of the merits of the state’s position.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
ORDER
DPH’s motion to dismiss is ALLOWED on Count Il to the extent it is based on a facial challenge, but DENIED on Count Il to the extent it is based on ultra vires grounds; Count Ill (Contracts Clause Claim), Count IV, V and VI (Taking Claim), and Count I (Pre-Emption Claim). DPH’s request for declaratory relief is DENIED WITHOUT PREJUDICE.
The Scheduling Order (Docket No. 20) as follows:
- Phase I fact discovery shall be completed by April 3, 2023.
- Plaintiffs shall make the required expert disclosures by April 14, 2023.
- Defendants shall make the required expert disclosures by May 12, 2023.
- Plaintiffs shall make the required expert disclosures by May 19, 2023.
- Defendants shall make the required expert disclosures by May 26, 2023.
- All expert deposition shall be completed by June 23, 2023.
- The scheduling conference shall be held on June l, 2023 at 2 PM.
If you have any expertise / knowledge which would be relevant and helpful in favorably resolving this matter, please contact Richard Moore, who is coordinating Dignity Alliance’s involvement in this matter: rmoore8743@charter.net.