A Cambridge nursing home is among 33 homes that won a settlement from the state making it easier for them to continue housing as many as four residents in a room. The agreement came in a lawsuit from nursing homes challenging a pandemic-linked rules change limiting occupancy to two beds per room.
Research has indicated that the incidence of respiratory disease outbreaks, including Covid-19 infections, rises when the number of nursing home residents sharing a room increases. The state Department of Public Health said it adopted the rule, which was to be effective April 30, 2022, to limit the spread of infectious diseases among residents. The nursing homes made several legal arguments against the regulation, including that it took operators’ property, illegally pre-empted federal law, and exceeded the state agency’s authority.
Cambridge Rehabilitation & Nursing Center, an 83-bed home on Dana St., had previously sought an exemption from the two-bed limit. Its request was denied, it said in a filing in the suit. But the state health department didn’t enforce the deadline against any nursing homes because of an injunction while the legal process in the lawsuit continued. The two sides reached a settlement and agreed to dismiss the suit on June 2.
Nursing homes can now be exempted if they meet any five of eight requirements; they can choose which ones they want to use. The state health department knows of 126 nursing homes that have some rooms with more than two beds, spokeswoman Ann Scales said. Eighty-four had requested waivers of the limit before the court settlement, of which eight obtained an exemption, she said. After the agreement, 16 facilities asked for a waiver. The department “has just begun to review waiver requests” and hasn’t completed the process for any as of now, Scales said. Nursing homes have until next April to apply for a waiver.
Dignity Alliance Massachusetts, a coalition of groups advocating for older adults, disabled people, and related organizations, condemned the settlement. The coalition said “the failure to eliminate multi-bedded rooms inflicts a profound, daily toll on the fundamental human rights, privacy, and dignity of residents.”
The organization called for the state to require nursing homes to meet all eight requirements named in the settlement, not five, to get an exemption. Facilities should also meet the state’s minimum nursing home staffing requirement of 3.58 hours per resident-day for the previous six months, Dignity Alliance said.
Higher operating costs cited
Cambridge Rehabilitation & Nursing Center had said in a court filing that it would have to take 14 beds “out of service” if it was required to house all its residents in rooms with no more than two beds. The nursing home, which is owned by a for-profit company based in New York, said it would lose $1.2 million a year and lay off 12 employees. The nursing home said it served many Cambridge residents and was one of the few to accept homeless people.
A message left for the nursing home’s administrator, asking how many rooms it had with more than two beds and whether it had obtained an exemption after the settlement, was not returned. Alvin Kim, administrator of the 141-bed Sancta Maria Nursing Facility on Concord Ave., said Sancta Maria had eliminated rooms with more than two beds “years ago,” because “it’s better for residents.”
The administrator of Neville Center at Fresh Pond, a 112-bed home with ties to city agencies, did not return a message asking if the facility had rooms with more than two beds. The marketing office for the nursing home’s management company, Landmark Management Solutions, also didn’t respond.
The state health department’s public records office was asked for records of any exemption requests made by the three Cambridge nursing homes – Cambridge Rehabilitation, Sancta Maria and Neville Center. The office did not respond by the 10-business-day legal deadline. The department was ordered to answer after CambridgeDay appealed. It said it had no records of exemption requests from any of the three Cambridge nursing homes after the 2022 deadline for eliminating rooms with more than two beds.
The eight requirements that now apply include: a least one bathroom per room with more than two beds; no infection control violations scored F in the last six months; minimum square feet and distance between beds; a quality score of at least 113 out of 132, no “dignity deficiencies” in the last six months scored F, at least three stars in its Medicare rating; and at least 90 percent of staff vaccinated against influenza.
Cambridge Rehabilitation & Nursing Center has four stars in Medicare and would appear to meet most and perhaps all of the eight requirements. But according to Dignity Alliance, the nursing home provided 3.5 hours of nursing care per resident per day, below the state-required level of 3.58 hours.
Dignity Alliance has written to state public health commissioner Robbie Goldstein expressing “our profound disappointment and deep concern” about the settlement. Evidence for housing residents in less crowded one and two-person rooms has gotten stronger during the four years of court proceedings over the lawsuit, the group said in its June 28 letter.
The letter to Goldstein said the public health department’s original rule made it clear that “waivers were to provide temporary flexibility while facilities moved steadily toward a safer and more resident-centered standard of care.” Now, the new exemption policy to which the state agreed “appears to permit continued operation of three- and four-person rooms through waivers that may be granted without a clear, enforceable path toward eventual compliance,” Dignity Alliance said.
The organization said the state should require nursing homes to meet all eight requirements, not five of its choice, in order to obtain a waiver. Nursing homes should also be required to meet the state’s minimum staffing standard of 3.58 hours of nursing care per resident per day, the group said.
Cambridge Rehabilitation & Nursing Center’s staffing was just under that level – 3.5 nursing hours per resident per day – in the most recent statistics kept by Medicare. The nursing home exceeded the state standard of 0.508 hours of care per day provided by a registered nurse; it provided 0.907 hours, according to Medicare.
Dignity Alliance asked Goldstein to require nursing homes obtaining waivers to “post prominently” that information in the facility as well as “the basis for waiver approval, and, at least quarterly, progress toward compliance with the regulation.”
The department should also publish on its website a list of nursing homes with exemptions, the basis for the waivers, and advancement toward compliance, the group said in its letter to the commissioner. The Department of Public Health did not immediately respond to a request for comment.
The nursing home’s owner, Personal Healthcare, operates 16 nursing homes across New York state and facilities in Everett and Medford in Massachusetts, in addition to the Cambridge nursing home. The Medford and Everett nursing homes also joined the lawsuit.
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