June 07 2007 - Mass. brain-injured sue to live in community
A brain-injured man confined to a residential institution in Worcester is a plaintiff in a class action lawsuit that charges the state with denying more than 2,000 such people access to community settings that could help them improve the quality of their lives.
In a lawsuit similar to the Rosie D. v. Romney “stuck kids” case that addressed the state’s failure to place institutionalized mentally ill patients into residential facilities, the state is accused of violating the Americans with Disabilities Act and other federal laws by institutionalizing people with brain injuries.
The lawsuit calls for the state to place every “stuck” brain-injured person into a community setting within five years.
“Currently there are approximately 8,200 individuals with brain injuries residing in nursing and rehabilitation facilities in Massachusetts. At least a quarter of these individuals are able to, and would like to, live in integrated community settings,” said Richard Johnston, a partner with the Boston law firm of Wilmer Cutler Pickering Hale and Dorr LLP. “The commonwealth, however, has failed to develop community alternatives to institutional confinement for persons with brain injuries. Consequently, trapped in institutions, these individuals are forced to experience regression, deterioration, isolation and segregation.”
Glen Jones, 57, who since 1990 has lived at the Worcester Skilled Care Center, is one of four named plaintiffs. A resident of Haverhill, he has been confined to institutional settings for 21 years since a motor vehicle accident left him in a coma for three weeks.
His family has repeatedly applied to the one existing state-funded program for people with traumatic brain injury, but alleges that Mr. Jones did not receive the services necessary for his release into the general population because efforts to identify existing residential programs were unsuccessful. Before his accident, Mr. Jones was a business owner and auto mechanic.
Mr. Johnston said the state’s position violates U.S. Supreme Court precedent and the Medicaid Act.
Wilmer Culter Pickering Hale and Dorr filed the suit in U.S. District Court in Springfield, along with the Northampton-based Center for Public Representation, which won the Rosie D. case. The suit was filed on behalf of four people and the Brain Injury Association of Massachusetts.
The defendants are Gov. Deval L. Patrick; Dr. JudyAnn Bigby, secretary of the Executive Office of Health and Human Services; Leslie A. Kirwan, secretary of the Executive Office of Administration and Finance; Thomas Dehner, acting director of MassHealth; and Elmer C. Bartels, commissioner of the Massachusetts Rehabilitation Commission.
Dr. Bigby said Massachusetts’ Medicaid program covers numerous community-based medical services for the brain-injured that other states don’t provide, including therapy and adult day health. She said the state’s brain injury program serves more than 900 people and receives $16 million in state funds.
The Patrick administration also is seeking federal money to increase community-based services to people with disabilities, including the brain-injured, she said.
Steven Schwartz, a lawyer for the Center for Public Representation, criticized the Romney administration for failing to address the issue, and he said the Patrick administration “left us no choice but to file this lawsuit. We sincerely wish it had been otherwise, since it may now take a lengthy and expensive legal battle to ensure that persons with brain injuries who are confined in segregated institutions will finally have a chance to live ordinary lives in the community.”
The state’s inability to create adequate programs for people with brain injuries, he said, stands in stark contrast to its comprehensive system of community services for the mentally retarded and people with psychiatric disabilities.
As a result, he said, more than 8,000 people live in institutions such as nursing facilities, while just 200 get community residential services. Meanwhile, he said, the state has refused to apply for federal funding to help pay for the transitioning of such people from institutions into the community. He contrasted that with New Jersey, which will receive $30 million over five years to help create community supports for its nursing facility residents.
According to the lawsuit, the state-funded Brain Injury Statewide Specialized Community Services program is underfunded, forcing applicants to wait for years without receiving necessary services.
Cathy Hutchinson of Attleboro, the lead plaintiff in Hutchinson v. Patrick, said in a written statement that she has spent the last 11 years living in a nursing home after suffering a stroke in her home that left her a mute quadriplegic.
She cited the stress of living far from her family and friends and without therapies that could improve her condition.
“There are no state-funded services for me because of how my injury occurred, and this is ridiculous and cruel to me and my family,” she said in her statement. The lawsuit alleges that the state only provides community residential services to people who have suffered a traumatic brain injury that is not the result of a medical condition such as a stroke.
According to the lawsuit, even some of the institutionalized are not receiving necessary services, including assistance with personal care; speech, occupational and physical therapy; medical and nursing services; vocational training or day rehabilitation programs; medical equipment, transportation; and integrated social and recreational activities.
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