Nine Massachusetts long-term care facilities have received a temporary injunction against regulations that would eliminate three- and four-bed rooms. The state had announced the bed reductions in September, 2020 to improve infection control in nursing homes, which were devastated by COVID-19 early in the pandemic.
In a complaint filed Wednesday in Suffolk Superior Court, the long-term care facilities said the regulations will take 152 beds out of service, requiring the transfer or discharge of at least 90 residents within 45 days and resulting in the layoff of more than 100 employees.
All told, the organizations said they stood to lose close to $16 million in annual revenue as a result of the new density requirements, which were finalized last year and became effective on April 30.
“The commonwealth is potentially endangering the lives of the most vulnerable elderly in the state by implementing a bed reduction regulation for long term care facilities without any plan or process in place for avoiding the abrupt eviction of hundreds of patients,” said Judy Rakowsky, a spokeswoman for the Access to Care Coalition of Massachusetts, which represents organizations affected by the regulations.
In their lawsuit, the organizations are seeking a permanent injunction against the regulations or compensation for lost revenue.
The injunction prevents the state from requiring seven of the nine facilities in the suit to discharge patients as a result of the regulation, in addition to others who might join the lawsuit, said attorney Howard Sollins, who represents the Access to Care Coalition. The other two, Chicopee Rehabilitation and Nursing Center and Fitchburg Rehabilitation and Nursing Center, did not have occupied beds in these room arrangements. The seven others that brought the lawsuit are: River Terrace Rehabilitation and Healthcare Center, Brookside Rehabilitation and Healthcare Center, Cedar View Rehabilitation and Healthcare Center, Chestnut Woods Rehabilitation and Healthcare Center, Leominster Rehabilitation and Nursing Center, Webster Park Rehabilitation and Healthcare Center and Wachusett Rehabilitation and Nursing Center.
The sides will be due back in court June 1.
The regulations came after nursing homes and long-term care facilities were the nexus of much of the state’s early pandemic outbreak. In 2021, updated state data showed that one in seven Massachusetts nursing home residents had died of COVID.
In September 2020, Gov. Charlie Baker’s administration announced new reforms and funding for nursing homes, which included requirements to eliminate three- and four-bed rooms to improve infection control standards and resident quality of life. On its website, the Massachusetts Senior Care Association said there was a “glide path of over one year for planning purposes” to allow facilities to reconfigure rooms.
Nursing facilities enrolled as MassHealth providers soon received more instruction, with MassHealth issuing a bulletin in October 2020 to nursing facilities to decrease the number of residents per room in an effort to protect against the spread of COVID-19. At the time, facilities with more than two licensed beds or residents per room had to attest that they were taking immediate steps to reduce the numbers, both limiting new admissions, reconfiguring room assignments, and providing information to residents about their home-based or other community-based options.
In the complaint, the facilities said they had filed reports with MassHealth, describing how they couldn’t reduce density and still maintain access for underserved residents.
The proposed regulations also prompted outcry in public hearings, with groups taking issue with the bed reduction rules. As a result, the Department said nursing homes would have until April 30, 2022, instead of January 2022, to de-densify their rooms. The new regulations were issued by the Department of Public Health in April 2021.
According to the complaint, the state issued guidance to facilities on how they could request waivers if the density rules would cause “undue hardship,” so long as it didn’t affect resident health.
All nine of the organizations submitted hardship waiver requests and then additional information at the request of the state, but were told on April 30 that the waivers were denied, the complaint said.
Despite the infectious disease goals of the regulations, the organizations said the reduced bed capacity will have an “insignificant impact” at curbing the spread of COVID, saying there are now other infection control measures, vaccines for residents, vaccine mandates for staff, and treatments.
“These negative impacts are for nothing,” the organizations said in the complaint.