BIA-MA, CPR and WilmerHale Help Nearly 1200 People with Brain Injuries in Massachusetts
Nearly 1200 institutionalized people with brain injuries will have the opportunity to move out of nursing facilities and into community residences over the next six years under a proposed agreement negotiated by state officials and attorneys for the plaintiffs.
US District Court Judge Michael A. Ponsor gave preliminarily approval late Thursday to a proposed Amended Settlement Agreement in the longstanding class action lawsuit, Hutchinson v. Patrick, and scheduled a fairness hearing on July 11, 2013.
Steven Schwartz, of the Center for Public Representation, co-counsel for the plaintiff class, said, “This new agreement will realize the goals of this lawsuit: to ensure that persons with brain injuries finally have the opportunity to live normal lives in the community, with the assistance of friends, neighbors and support programs. It will be a whole new day for people with disabilities in the Commonwealth.”
“This agreement provides individuals with acquired brain injuries the opportunity to transition from institutional care to community-based services,” said Secretary of Health and Human Services John Polanowicz. “This is consistent with the Administration’s Community First agenda and will allow more people to live and thrive in the community settings of their choice -- close to their families and support systems. This agreement will continue our commitment to best serve clients in the spirit of the Americans with Disabilities Act.”
The Amended Agreement will replace a 2008 agreement which the state was unable to fully implement because it could not secure federal grant funding for community-based services, leaving thousands of individuals with brain injuries languishing in facilities across the Commonwealth.
Under the Amended Agreement, the state will use another federal grant project, the Money Follows the Person (MFP) Demonstration, as well as other waiver programs, to provide residential and non-residential supports for up to 1174 Medicaid-eligible people with brain injuries who are now in long-term rehabilitation facilities and nursing homes. The MFP project has enabled approximately 35,000 people with chronic conditions and disabilities to transition from facilities to community settings across the country.
CPR, along with WilmerHale, filed the lawsuit in 2007 on behalf of five individuals, the Brain Injury Association of Massachusetts (BIA-MA) and the Stavros Center for Independent Living. The complaint charged that the Commonwealth violated the ADA by failing to provide adequate community services to thousands of people with brain injuries in rehabilitative and nursing facilities across the state.
The majority of people with brain injuries spend weeks or months in acute care hospitals and rehabilitative facilities. Once acute treatment ends, individuals often need ongoing services and supports, including assistance with mobility, personal care and other activities of daily living. However, due to limitations on community-based services, many brain injury survivors have no choice but to be admitted to nursing and long term rehabilitation facilities to have their basic needs met.
During the past year, state officials and the plaintiffs engaged in intensive negotiations and formal mediation to revise the original agreement. The plaintiffs were prepared to resume litigation, if a settlement could not be reached. WilmerHale co-counsel Richard Johnston cited the Commonwealth’s efforts in coming up with an alternative solution. “The plaintiffs are appreciative that after the initial, anticipated federal funding proved unavailable, the Commonwealth negotiated earnestly and in good faith to find and agree upon an alternative framework to provide community-based services for the class.”
The Amended Agreement will expand the existing home and community-based service system for people with brain injuries, allowing eligible class members to receive services in the most integrated setting appropriate to their needs – including their own apartments, family homes, shared living arrangements or group homes. In addition, the state must meet annual benchmarks for increasing waiver slots, and implement an extensive education and outreach initiative to ensure class members and their families know about the opportunities afforded under MFP and its waiver programs.
Approximately 200 class members have moved out of facilities since the 2008 agreement, including two named plaintiffs, Catherine Hutchinson and Raymond Puchalski. Hutchinson, who became a mute quadriplegic as a result of a brain-stem stroke in 1996, spent more than a decade at the Middleboro Skilled Care Center. She is now living in a community program in Taunton. “I'm now able to contribute to the community and be part of society again. I will be forever grateful to have this opportunity to participate again,” she emailed Friday.
Puchalski, 64, who spent years at the Kindred/Goddard Hospital’s neurobehavioral unit in Stoughton, now lives in a community residence in Western Massachusetts. His partner and guardian, Nickie Chandler, calls 2013 “Ray’s best year yet.”
“He’s so fortunate. In the institution he was not really living, only breathing. Now if anyone could hear the excitement in Ray's voice, they would have no doubt that his life is full and joyful again. He makes notes throughout the day so that he doesn't forget to share everything … the concert that he attended in a park surrounded by beautiful flowers, his new haircut, the progress in the garden, all the birds at the bird feeder,” said Chandler. “I pray that others will have the opportunity he had to reinvent himself and restart his life in the community.”
The timing of the Amended Agreement, and the pending resolution of the lawsuit, is particularly poignant for Arlene Korab, who is stepping down this month as executive director of BIA-MA after 30 years of service. “This is one of the best going away gifts I can leave for the many survivors who have been languishing needlessly in nursing homes. I wish them many happy times ahead in their new homes.”