Thirty-one nursing home providers have cleared a major hurdle in their efforts to block a state rule limiting capacity to two beds per room.
Attorney Howard Sollins called a Massachusetts judge’s refusal to dismiss the case a victory and noted that attempts to de-densify occupancy could create access issues.
“This is a win not just for the plaintiffs, but for the affected residents, people who are in need of care, families and care providers who work at these facilities,” Sollins told the Boston Business Journal Thursday.
The issue dates to April 2021, amid the heart of the COVID-19 crisis, when the state Department of Health issued a new rule prohibiting more than two nursing home residents from sharing a room.
While private rooms have been linked with better infection control and a White House nursing home reform package includes a push for rooms with fewer patients, providers argue there is little financial support to help them redesign current rooms or build new ones. The alternative is to reduce census and, accordingly, revenues.
In the lawsuit in Suffolk Superior Court, nine nursing homes sued the state on the grounds that they would have to discharge patients and break contracts with existing residents to meet the law’s requirements. A judge granted a temporary injunction, preventing the rule from going into effect in May 2022. A motion by the state to dismiss the case was denied in late December.
The Business Journal reported that 22 additional facilities have joined the original plaintiffs. Altogether, they have estimated the two-bed rule would take 585 beds out of service and cost the provider group around $54 million annually.
Although the state did not link its law to the pandemic, Sollins and the plaintiffs have argued that it inspired the regulation. With changes in COVID recognition, responses and treatments, he argued that providers are better positioned to continue serving multiple patients in existing shared rooms.
Still, some nursing homes are moving to comply with the rule.
Royal Wayland Nursing Home, about an hour outside of Boston, in late December submitted state determination-of-need paperwork to pursue a 22-bed, $8.3 million addition and infrastructure changes “to comply with state de-densification requirements.”