Massachusetts faces suit over COVID-era nursing home crowding rules

dr Charles Brubaker, 99, a COVID-19 patient who was admitted after injuring his hip while isolating at home, is attended by registered nurse (RN) Annie Voegele, who started nursing in September of 2020, inside his isolation room at the Providence Mission Hospital in Mission Viejo, California, U.S. April 12, 2022. REUTERS/Shannon Stapleton

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  • Rules require no more than two beds per room in skilled nursing facilities
  • Nursing homes say patient care threatened

(Reuters) – Nine nursing home operators have sued Massachusetts over regulations against housing more than two people in a room, which were adopted around the height of the COVID-19 pandemic and took effect May 1.

Judge Kenneth Salinger of Suffolk Superior Court on Thursday entered a preliminary injunction barring the state from trying to make the nursing homes discharge any patients involuntarily to comply with the rules while the lawsuit is pending. The state did not object to the injunction.

Tracy Miner of Miner Siddall, a lawyer for the nursing homes, called the injunction a “a victory for our clients and their residents who do not want to be displaced.”

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Massachusetts’ Department of Public Health and its parent agency, the Executive Office of Health and Human Services, were both named as defendants in the May 11 lawsuit. They did not immediately respond to requests for comment.

The state’s Department of Public Health in April 2021 issued so-called de-densification regulations requiring that, from May 2022 on, long-term care homes would have no more than two beds per room. The regulations give nursing homes 45 days to comply.

The regulations did not cite a purpose for the change, but they followed public outcry over a COVID outbreak that killed 84 people at Holyoke Soldiers’ Home, a state-run facility for veterans. The outbreak resulted in criminal chargeswhich were later dismissedand a $56 million settlement with the state.

The nursing homes said in their lawsuit that the regulations no longer made sense as a COVID control measure, since a large majority of nursing home residents have now received vaccines and boosters. They said that the regulations would cost them, collectively, about $16 million per year, threaten their ability to operate and force disruptive changes for residents with dementia and other health conditions.

Currently, according to the lawsuit, many residents are in three or four bed rooms.

“Many residents have lived together in multi-bedded rooms for a long period of time, have become close friends, and help each other through difficult times,” they said.

President Joe Biden in February announced at initiative to improve nursing home care, including phasing out three- and four-bedrooms and promoting single occupancy rooms, although details of that initiative have not been revealed.

The case is River Terrace Operator LLC et al v. The Commonwealth of Massachusetts et al, Suffolk Superior Court, no. 2284CV01024.

For plaintiffs: Howard Sollins of Baker, Donelson, Bearman, Caldwell & Berkowitz, Tracy Miner of Miner Siddall and others

For the state: not available

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Brendan Pierson

Thomson Reuters

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.

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