Avoid unnecessary institutionalization in nursing homes.
January 27, 2023 by Alex Green and Bill Henning
EVERY DAY, thousands of Massachusetts residents with disabilities are admitted to segregated nursing facilities, be it to recover from medical procedures, to receive respite and care because they’re homeless, or because of a lack supportive services that are needed to remain at home and in their communities. While many eventually leave, thousands do not, even though they want to. As a class action lawsuit filed in October alleges, the determining factor between who stays and who goes often is a matter of race and class.
It will be up to an incoming Healey administration—as well as Attorney General Andrea Campbell—to decide whether to fight this case. But as much as everyone loves the imaginary Hollywood spectacle of a big courtroom battle over legal rights, the best move is to negotiate and settle this lawsuit.
The plaintiffs in this case are six of the roughly 20,000 people currently living in nursing facilities in Massachusetts on the Commonwealth’s Medicaid program, called MassHealth. They include Lorraine Simpson, a homeless woman who was refused housing in Worcester County, and John Simmons, a man with mental illness who has languished in an Everett nursing home for three years.
What they share is something we have both seen; one of us as someone who was once briefly institutionalized in a psychiatric facility and got out, and the other as someone who fights to get people out of institutions. They are Black, poor, and without friends and family nearby who can help them.
As a result, perhaps thankfully, they are entitled to federally-funded care through MassHealth. This comes with an expectation that the rights of individuals protected under the Medicaid Act and the landmark Americans with Disabilities Act will be respected. Within that context, the federal government’s position is clear, and guided by the Supreme Court’s 1999 Olmstead case, which said that individuals have a right to live in “the most integrated setting.” Significantly, the Commonwealth’s failure to comply with these laws also is the subject of an ongoing investigation by the US Department of Justice.
Taken together, the intent of the legal landscape is clear. It was created as part of the movement against the historical discrimination against people with disabilities, including their unnecessary institutionalization in nursing facilities. This is why the Center for Public Representation and a coalition of legal partners initiated this case with the straightforward goal of allowing people with disabilities to live in the community rather than be forced into an institution just to get basic health care.
Whatever the impasse that led the state to contest the allegations in this suit, Gov. Maura Healey and Attorney General Campbell have the ability, and the obligation, to negotiate a settlement instead of continuing down the path of litigation. The reasons abound. During the campaign for governor, Maura Healey strongly supported community-based services for persons with disabilities that enable people to live in their homes instead of in facilities. And through her own prosecution of nursing facilities, she has expressed concern about the potential for abuse within this system. Similarly, Campbell has been a fierce and outspoken critic of the ways in which incarceration is used against BIPOC communities—and certainly many nursing home residents have labeled themselves inmates.
But more broadly, the state has already shown that it is possible to serve people with disabilities in integrated settings instead of unnecessarily institutionalizing them in nursing facilities. The Rolland and Hutchinson class action suits against the Commonwealth that were settled years ago successfully led to the release of 3,000 people with intellectual disabilities and brain injuries from nursing facilities and the provision of needed care in new community homes. In those cases, the state was able to design a program that met their needs, that saved money, and that complied with the law.
Perhaps most of all, the timing is right. Sadly, COVID is still with us, and people in facilities are always at inordinate risk of infection and death, as has so tragically occurred since 2020. Providing services and supports in integrated settings in the community is sound public health policy. And the chance to start fresh also should not be ignored. An incoming administration has one opportunity to make a first introduction to communities that it values. This is an opportunity for Healey and Campbell to do just that.
Negotiating a pathway out for many of the 20,000 Bay Staters would send a powerful signal to one of the most marginalized populations—people with disabilities in nursing facilities, many of whom are from communities of color. It would also build trust with community partners who excel at coming up with creative solutions to these very challenges. And it could quickly end the ongoing US Department of Justice investigation of federal law violations.
This approach is not just advisable, it is necessary, because protracted litigation is expensive to the taxpayers, would force the six plaintiffs – and thousands of others like them – to remain in nursing facilities for years, and even could risk the critical gains of the past 30 years, given the current Supreme Court.
Moments of opportunity such as this one do not last long. The details of a negotiated settlement require time to develop. But the incoming administration should signal early on that they want to negotiate, not litigate, this case. They can then do the work to resolve this lawsuit in ways that are constructive for the very people they have sought higher office to defend.
Alex Green teaches at the Harvard Kennedy School and is a visiting fellow at the Harvard Law School Project on Disability. Alex was an early supporter of Dignity Alliance MA. Bill Henning is executive director of the Boston Center for Independent Living. Bill is a co-founder and a leader with Dignity Alliance MA.
Read more about Dignity Alliance MA support for this lawsuit.