Categorized | Family Care, Pushback

What COVID Has Taught Us About Long Term Care

Falls, COVID

A nursing facility is a quick referral. But in the middle of a COVID pandemic, we learned it could be a risky referral.

By Al Norman

Twenty-one years ago, a settlement was reached in a class action lawsuit brought by Loretta Rolland and six other individuals against the Commonwealth of Massachusetts on behalf of nearly 2,000 people with intellectual and developmental disabilities in nursing facilities.

The so-called Rolland settlement required the Commonwealth of Massachusetts to de-institutionalize and provide community placement to 1,100 people and give them specialized services and active treatment while they remained in a nursing facility. After years of state foot-dragging, the court was forced to issue standards for active treatment, appoint a court monitor and approve a detailed monitoring protocol.

The disabled plaintiffs charged that they were unnecessarily admitted to, and were inappropriately confined in, a nursing facility — despite their preference to live in the community.

Each plaintiff said they had not been provided with minimally adequate training, habilitation and support services in the most integrated setting consistent with their individual needs, in accordance with federal law, including the Americans With Disabilities Act, the Medicaid Act and other statutes.

Social Security, ageist, nursing, COVIDDuring the case, the court noted that the Department of Mental Retardation regulations established goals for residential supports and services including: “the opportunity to exercise individual choice, participate in and contribute to the community, develop and sustain varied and meaningful relationships, and acquire skills that increase self-reliance pursuant to an individualized service plan; and, of course, the assurance of personal health. safety, and economic security.”

The court said the Rolland settlement would require DMR to “increase the number of service coordinators for class members and reduce individual caseloads so that coordinators can more actively engage with class members.” The court also pointed out that federal law requires the Commonwealth to consider community placement and, as part of an annual review process, to determine whether “[t]he individual’s total needs are such that his or her needs can be met in an appropriate community setting.”

Loretta Rolland first filed her case in 1993. Twenty-seven years later, we need a similar Rolland class action lawsuit — but this time on behalf of elderly/disabled people who are not being allowed to live in “the least restrictive setting appropriate to their needs.” That phrase comes from MassHealth (Medicaid) law that I wrote in 2006. It was modeled on a 1999 U.S. Supreme Court ruling known as Olmstead v L.C., in which the Supreme Court held that “unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act.”

The Court held that states must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.”

In America, we value our independence. Yet in Massachusetts today, elders and people with disabilities are pushed along a conveyor belt that moves them quickly from Emergency Room admission, to in-patient hospital status, to a “rehab” facility, otherwise known as a nursing home. This can happen in a matter of days or less. Hospitals are under pressure to move people “quicker and sicker” if they no longer require a “medical level of care.”

A nursing facility is a quick referral. But in the middle of a COVID pandemic, we learned it could be a risky referral. In the Massachusetts county I live in, of the 67 COVID deaths through mid-September, 55 (82 percent) were residents of local nursing facilities. That’s a rate 28 percent higher than the state level of 64 percent  COVID deaths in nursing facilities.

By law elders have a civil right to remain living in the least restrictive setting, and they should be assessed for the most integrated setting possible before they are discharged from a hospital. Each elder needs to have a community care coordinator who can work across all other settings to make sure their choice to return home works for them.

They should be able to negotiate with hospital and nursing facility discharge planners, and have a low enough caseload to assemble the dozens of services needed to remain in the community: transportation, personal care workers, medications, medical equipment, access to specialists, etc. I have seen first-hand how far away we are from that goal. I’m convinced we need another Rolland class action lawsuit to force the Commonwealth to give elders and the disabled the care they want —at home. This is one lesson from the COVID Pandemic worth learning before the next pandemic arrives.

Al Norman worked in the statewide elder home care field for 38 years. He lives in Greenfield, MA.

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