A group of nursing home residents can press their lawsuit against the Maryland Health Department over lapsed nursing home inspections, and the case can proceed as a class-action suit, a federal judge has ruled.
Those findings came after U.S. District Judge Matthew J. Maddox denied the department’s request to dismiss the case.
In that April 22 ruling, Maddox approved “class certification” for nursing home residents “who have disabilities and mobility impairment, and who live in nursing facilities” overseen by the Department of Health. Some 9,000 Marylanders fit that description and will be represented as the case continues, according to Justice in Aging, one of the advocacy groups leading the lawsuit.
“At this early stage of the litigation, the Court finds the facts alleged in the Complaint sufficient to draw a chain of causation between MDH’s oversight and enforcement failures and Plaintiffs’ particularized and unique injuries and risks as mobility-impaired residents of nursing facilities,” according to Maddox’s opinion. “Defendants’ motion to dismiss the Complaint … shall be denied.”
Attorneys representing five nursing home residents filed the complaint in the U.S. District Court for Maryland last May against the Health Department and its then-secretary, Laura Herrera Scott. The lawsuit alleges that the state’s failure to conduct annual nursing home inspections, as required, has led to substandard care for residents of those facilities.
“It’s a very positive step that we survived the motion to dismiss and provided sufficient evidence to the court for class certification,” said Liam McGivern, an attorney at Justice in Aging, while noting that there is still a long court process ahead.
The complaint asks the court to force the department to conduct nursing home surveys on the federally required 12-month schedule and ensure that complaints issued against nursing homes are answered in a reasonable time frame. It also asks for attorney’s fees and any other relief deemed appropriate by the court.
With its motion to dismiss rejected, the department has until May 20 to respond to the complaint. A department spokeperson did not respond to a request for comment Wednesday.
Maddox’s ruling comes at a time when the health department is actively working through a years-old backlog of nursing home inspections. The department said it is making progress, with more than half of the state’s 220 nursing homes receiving an annual inspection within the last 16 months.
But with some facilities being more than four years overdue for an inspection, advocates fear that some Maryland seniors may be languishing in unsafe living conditions while the state plays catch-up.
“They’re still woefully behind,” McGivern said. “When complaints are not timely investigated, it often means that they’ll never be meaningfully investigated … The backlog is so bad when the state finally gets around to investigating a complaint months or years later, they’re not really able to adequately conduct that investigation — records are lost, residents have moved on, staff have moved on, the facility has changed ownership”
The initial court complaint outlines some nursing home residents’ troubling experiences in their facilities, some of which had not been inspected by the health department for four years. The plaintiffs have mobility-related disabilities and rely on nursing staff for moving around the facility, eating and personal hygiene. The lawsuit alleges that residents were often left unattended for extended periods, leaving them isolated from community events or sometimes left in soiled clothing for hours, among other concerns outlined in the lawsuit.
“When the state does not go in to survey and make sure that nursing facilities are doing what they’re supposed to be doing, that falls most harshly on people with mobility impairment – and so, discriminates against them within the meaning of the ADA [Americans with Disabilities Act],” McGivern said. “They have no way to remedy, for example, their call not being answered or the facility not helping them leave their beds, leaving them confined and isolated in their room.”
In the time that has passed since the initial court filing, one plaintiff has died, a 75-year-old identified by the pseudonym “Herman Dressel.” The complaint said Dressel had mobility limitations that required staff assistance bathing, dressing and getting in and out of bed. But as with other plaintiffs in the case, he did not receive the daily support to help him move about the day and receive the incontinence care that was expected for his services.
McGivern noted they are not claiming that his March 30 death “is the result of any lack of oversight,” but should be a reminder of the vulnerable people who are at the center of the lawsuit.
“Often times, it seems that the issues that arise in a nursing facility are in the shadows,” he said. “There’s not any light shown on them and a lot of that has to do with the fragility of some people in nursing facilities who aren’t able to raise these issues for themselves and who unfortunately often times die while waiting on the state to investigate their claims, or that complaint. That is quite common, I’m afraid.”
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