Court Approves Joint Motion to Dismiss, Commending Parties for System Reforms Achieved on Behalf of Individuals with Acquired Brain Injuries in Nursing Facilities

September 27, 2021

On September 27, 2021, Judge Michael Ponsor approved the Joint Motion for Dismissal in Hutchinson v. Patrick, finding the defendants to be in substantial compliance with the 2013 Amended Settlement Agreement.  This Order concludes a 14-year class action lawsuit which dramatically expanded outreach, transition planning, and home and community-based services for individuals with Acquired Brain Injuries (ABI) in Massachusetts.

In a hearing on September 21, 2021, Judge Ponsor recognized the “very positive and constructive efforts” of the parties in implementing the 2013 Amended Settlement Agreement, and well as the many ways in which access to integrated home and community-based services has benefited class members, their families, friends, and communities. At the conclusion of the hearing, the Court poignantly commented: “Congratulations. We do so many things that damage people in court. It is an honor to be associated with such an important and collaborative effort that has benefitted so many people.” 

Filed in 2007 by the Center for Public Representation and the law firm of Wilmer Hale, this litigation was brought by five individual plaintiffs, representing Medicaid-eligible adults over the age of 22 with Acquired Brain Injury or ABI, and two organizational plaintiffs – The Stavros Center for Independent Living and the Brain Injury Association of Massachusetts.  At that time, individuals with ABI were languishing in long term rehabilitation and nursing facilities, without appropriate rehabilitative treatment, and separated from their families and communities due to the absence of integrated alternatives. 

Since implementation of the 2008 and 2013 Settlement Agreements, more than 1,300 individuals with ABI have seen their lives changed for the better. 

Plaintiff Ray Puchalski loved nature and his family and friends in Millers Falls.  After being hit by a drunk driver, he spent years institutionalized in a facility across the state, with little access to the outside world.  Through his courage, and the persistence of his partner and guardian, he transitioned to a residential program near his home in Western Massachusetts.  He could once again spend time with people he loved and visit the places he treasured.  In the final years of his life, he discovered a love of photography and found opportunities to volunteer in his community.

In 2007 lead Plaintiff Cathy Hutchinson described her experience of a brain stem stroke and subsequent nursing home placement as akin to “being a prisoner for a crime I didn’t commit.” Although Cathy passed away in 2020, she spent the last 10 years of her life living in a home, in the community of her choice.  She had access to therapies and community activities, and many more opportunities to spend time with friends and family, including her beloved grandchildren.  She even traveled to Washington, D.C. as part of the Champions for Change program, and was recognized by President Obama for her advocacy on behalf of individuals with disabilities in Massachusetts. 

Integral to the success of the Settlement Agreement was its informed choice process.  As described in the Joint Memorandum in Support of Dismissal, this process was designed to identify class members in facilities, including those who may have concerns or reservations about community living, and to provide them with individualized information about their service options.  Key strategies included facility in-reach and in-person meetings, access to a network of peers and families willing to share their experiences with community transition, and opportunities to visit and explore community settings.  Once these enhanced measures were put into place, waiver applications increased dramatically, demonstrating the degree to which home and community-based services are necessary, preferred, and capable of supporting individuals with brain injuries and other related conditions in the community. 

The Plaintiffs anticipate that there will be a continuing need for expanded home and community-based services for individuals with brain injury in the future.  In recognition of this fact, the Defendants have renewed the four waivers developed pursuant to the Agreement, and the joint filing expresses their intention to maintain and expand these programs in the future.  The Defendants also plan to continue the informed choice process for Hutchinson class members after the litigation is dismissed. In its Order approving the Joint Motion, the Court noted the Commonwealth’s commitment to continuing to “improve and expand the community services for persons suffering ABI even beyond the framework of the Agreement.” 

Acknowledging these steps, and the importance of continuing to provide integrated services in the community, the Court observed that as long as brain injuries occur, there will be need for services like those created in the Hutchinson case.