A lawsuit filed by disabled nursing home residents, who said they suffered bedsores, infections and traumatic isolation as a result of Maryland’s failure to inspect facilities and address a backlog of complaints, has moved ahead after a federal judge in Baltimore rejected the state’s motion to dismiss the case.

“Deficiencies in the quality of care and protection of resident rights at these facilities have caused, and placed plaintiffs at risk of, pressure ulcers, skin infections, falls, psychosocial harm and other medical complications,” U.S. District Judge Matthew J. Maddox wrote.

Faced with a class action complaint filed by five residents, lawyers for the Maryland Department of Health (MDH) had argued that claims of a connection between alleged lax oversight and the harms suffered by the plaintiffs are “entirely abstract” and not “concrete.”

But Maddox found otherwise in an order issued last week.

When the complaint was filed in May 2024, the most recent legally mandated survey conducted at any of the facilities was in November 2022, the judge noted, and at one facility no survey had been done since November 2020.

“Maryland is one of only four states in the country that has failed to conduct annual surveys in over 70% of its nursing facilities,” Maddox wrote, noting that more than 100 of its 225 Medicaid- and Medicare-participating nursing facilities went without a survey in the four years before the lawsuit was filed.

The suit, Maddox says, “plausibly alleges” that MDH would have “discovered and redressed the violations”  if it had “complied with its statutory obligations to conduct annual surveys, promptly investigate complaints and take enforcement action.”

The judge also granted class certification in the case.

The complaint was filed on behalf of approximately 9,000 residents at Maryland nursing facilities who have disabilities with mobility impairment.

Ordered to Comply with ADA

An attorney in the case, brought by the nonprofit advocacy group Justice in Aging as well as the Public Justice Center and Arnold & Porter, said she was “really excited that the theory of the case was validated.”

“This shows that when the state comes in and does surveys in nursing facilities, it has to ensure that people with disabilities and who have mobility impairments are fully benefiting from the service – and as much as those without mobility impairments,” said Regan Bailey, director of litigation at Justice in Aging.

“When they don’t go into the nursing facilities and conditions are left to deteriorate, or they don’t respond to complaints, poor conditions continue, and people with mobility impairments are uniquely harmed,” Bailey continued.

“They may not be able to, for example, get up and get the nurse to assist them with something, or, you know, get up and go to the bathroom.”

Maddox ordered the state to comply with the Americans with Disabilities Act (ADA) in administering its nursing facility oversight functions.

The lawsuit asked the court to assume jurisdiction and require the MDH to conduct annual surveys on a 12-month cycle and and complete related enforcement activities.

“The state has a lot of tools at their discretion, and I think the court works through those tools as well,” Bailey said, pointing to fines and sanctions, including placing a facility in receivership.

Backlog Persists

MDH officials, contacted by The Brew, have not yet provided a response to the judge’s decision.

Health officials recently asserted that the state is making progress on reducing its years-long backlog of nursing home inspections.

But advocates remain concerned that inspections at some facilities are still more than four years behind schedule, leaving residents susceptible to unsafe living conditions.

“Without inspections, we simply have no idea how these folks are living, and in what conditions they are living,” Bruce Hartung, president of the Maryland Continuing Care Residents’ Association, told Maryland Matters.

Lawmakers in Annapolis took aim at the backlog, passing Senate Bill 376 that requires MDH to provide quarterly reports to the legislature on its progress toward full inspections.

But even when inspections are conducted, appropriate enforcement does not always follow, an expert told The Brew after reviewing the case of a 75-year-old Baltimore man who was pushed down by an nursing home aide in 2022 and eventually died.

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“Jeopardy and harm are only cited in 4% to 6% of deficiencies, and everything else is ‘no harm.’ How can that be?” Toby S. Edelman, senior policy attorney with the Center for Medicare Advocacy, said. “Think what happened to this man, and they called it ‘no harm’?”

Humiliation and Bedsores

In their lawsuit against MDH and its then-secretary Laura Herrera Scott, the plaintiffs describe the harms they suffered while in the care of these state-regulated facilities.

Irene Connor, for instance, entered a rehabilitation facility after she fell in her apartment and was injured. Incontinent and a wheelchair user, she allegedly waited hours for staff to respond to her call bell.

“She has at times been provided with a fresh incontinence brief placed over the soiled one,” according to the suit, which says that the facility where she resides was last inspected by the state in 2022.

“She experiences a loss of dignity and humiliation” with this poor care, the suit says.

In the case Michael Nevin, the state’s alleged failure to inspect goes back to 2020.

Diagnosed with quadriplegia, Nevin has been confined to his bed in a shared room since March 2023 because the facility failed to provide him with the transition and mobility assistance his care plan requires, according to the lawsuit.

Richard Hollman, whose facility had not been inspected since 2022, developed bed sores from not moving frequently enough, the suit said. And Herman Dressel, whose facility had also not been inspected for two years, hit his head when a staff member tried to move him alone.

In a statement released by her attorneys, Plaintiff Connor hailed the judge’s decision.

“The residents at my nursing facility need each unit fully staffed, better communication between residents and staff members, and more accountability for staff when residents receive poor care,” she said. “I hope that the court’s decision will lead to more oversight from the state to ensure these things happen.”