Wednesday Feature: Massachusetts Nursing Home Residents Set to Transition to Community Living with $1 Billion Settlement

Happy Hump Day! Last week, the Lieutenant Governor of Massachusetts, Kim Driscoll, announced the settlement of a class action lawsuit filed against the state by six disabled nursing home residents. The suit was filed in 2022 alleging that the state underfunded community-based care options, trapping them in nursing homes despite their wishes to return to community settings, such as Assisted Living. The settlement text is here: Marsters Settlement Agreement

There is a touch of irony to this suit that I caught concurrent with my post on Monday regarding the Medicaid Access final rule.  The rule, aside from desiring to assure HCBS payments are primarily spent on direct caregivers (80%), is part of an initiative to expand Medicaid HCBS/waiver slots.  Typically, as many as 20% of slots are used by older adults and/or disabled individuals to purchase Assisted Living services vs. nursing home care. This case’s core is the argument that if the state spent more money directly on HCBS programming, certain eligible residents would not be forced to reside in nursing homes.

 The terms of the settlement call for the state invest $1 billion over the next eight years in housing programs to help certain nursing home residents (Medicaid) move into community-based care. This effort also creates rental vouchers for persons with disabilities, as well as for the development of new care settings (non-institutional). Residents will be able to transition to a setting (Assisted Living) with 24/7 supervision and support, to their own home or with a family member at the family member’s home, or a public housing setting, with home health/home care supports provided. What is not clear at this point, is how many existing nursing home residents, applicable to the class, could actually transition to Assisted Living.

The Massachusetts Office of Health and Human Services spends more than $5.8 billion annually through MassHealth and HCBS waivers on long-term services and supports, including personal care, home health and adult day programs (per the State).

A representative from the Massachusetts Senior Care Association, stated that the provisions in the agreement likely would not lead to a significant flow of nursing home residents into assisted living residences. For that kind of movement to occur, Massachusetts would need to join other states that have extended the Frail Elder Waiver to include assisted living.  

Below is a summary of the current Massachusetts Frail Elder Waiver program and what it covers (courtesy of the American Council on Aging – )

The Frail Elder Waiver (FEW) provides a wide variety of home and community-based services (HCBS) for elderly Massachusetts residents who are at risk of being institutionalized (being placed in a nursing home). Long-term services and supports received are specific to the needs and circumstances of the program participant. For example, in-home personal care assistance, homemaker services, a personal emergency response system, and a medication dispensing system might be approved for a senior who lives alone to promote independent living. In contrast, a program participant living with an informal family caregiver might be eligible for respite care, such as adult day care. Specific to persons with Alzheimer’s disease or a related dementia, a program participant may be eligible to receive a home-based wandering response system.

Program participants can receive services in their home, the home of a relative or caregiver, an adult foster care home, or in congregate housing (shared living). Services cannot be provided in institutional or residential settings, such as nursing home facilities, assisted living residences, or rest homes (similar to assisted living), with the exclusion of short-term respite care.



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