On May 17, 2007, Medicaid-eligible individuals with acquired brain injuries qualifying for long-term care services in nursing or rehabilitation facilities and the Brain Injury Association of Massachusetts filed this class-action lawsuit in the U.S. District Court for the District of Massachusetts, on behalf of themselves and others similarly situated. The plaintiffs sued Massachusetts under Title II of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12132 et seq.), Section 504 of the Rehabilitation Act (29 U.S.C. § 794(a)), and the Social Security Act (42 U.S.C. § 1396a(a)(8), (a)(10)(A)). Represented by the Center for Public Representation and private counsel, the plaintiffs sought to enjoin Massachusetts to comply with the ADA, Rehabilitation Act, and Social Security Act by offering services and programs for individuals with acquired brain injuries in integrated community settings.

Specifically, the plaintiffs alleged that Massachusetts had illegally discriminated against them on the basis of disability. They cited the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999), which held that the ADA forbids the unnecessary institutionalization of individuals with disabilities, and mandates that their rehabilitative and medical needs be provided in a manner that enables individuals with disabilities to be independent and integrated members of the community. The plaintiffs alleged that at least a quarter of the more than 8,000 individuals with traumatic brain injuries living in nursing homes or rehabilitation facilities in Massachusetts would be able to and would prefer to reside in an integrated community setting, provided they received appropriate aids and support. The plaintiffs alleged that in the absence of these services, they were unlawfully denied their personal liberty, freedom of association, and meaningful access to community life.

On September 26, 2007, the court certified the class.

On May 30, 2008, the parties entered a court-approved settlement agreement. Under the settlement, Massachusetts agreed that within six months of the effective date of the settlement it would issue a proposal to the Centers for Medicare and Medicaid Services to establish a Medicaid Home and Community-Based Services (HCBS) (§1915(c) of the Social Security Act) waiver program that would enable individuals with traumatic brain injuries the option of a community-placed living situation. Initially this program would offer 300 such waivers. Individuals receiving the waivers would participate in developing their own Individualized Service Plan with an interdisciplinary team and would receive services appropriate to their level of need. Waiver recipients would have the option of living with family, where applicable, or of living in the most integrated setting appropriate to their needs, e.g., their own apartment or home, or in a group home.

Massachusetts reserved the right to deny waivers to any person whose annual costs of care to Medicaid from residential habilitation and other waiver services, plus Title XIX state plan services, would exceed $164,131, and also to deny waivers to any person whose annual Medicaid waiver costs, exclusive of Title XIX and residential costs, would likely exceed $87,919. The settlement limited the total cost of the waiver program, inclusive of all Medicaid and state-funded expenditures for the participants, to $15,000,000. In order to stay within this cap, the state reserved the right to take corrective actions, such as reducing the number of waivers available. Massachusetts also agreed to implement an education and outreach program in order to educate individuals with acquired traumatic brain injuries about the program.

On June 2, 2009, the plaintiffs filed a motion seeking reasonable attorneys' fees and costs under the fee shifting provisions of the ADA, which allow a "prevailing party" plaintiff to recover expenses from a defendant. 42 U.S.C. § 12205. Massachusetts objected, arguing that the court-approved class action settlement, which expressly was not a court-ordered consent decree, was insufficient to establish the plaintiffs as the prevailing party. The court granted the plaintiffs' motion, ordering the State to pay $750,000 in attorneys' fees. 683 F. Supp. 2d 121. Massachusetts appealed. On February 17, 2011, the First Circuit Court of Appeals (Selya, J.) affirmed the lower court’s decision. 636 F.3d 1.

On June 19, 2013, the parties agreed to a new settlement agreement that would replace the original agreement, which the state was unable to fully implement because it could not secure federal grant funding for community-based services, leaving thousands of individuals with brain injuries languishing in facilities across the state. Under the Amended Agreement, the state would use another federal grant project, the Money Follows the Person (MFP) Demonstration, as well as other waiver programs, to provide residential and non-residential supports for up to 1,174 Medicaid-eligible people with brain injuries who were in long-term rehabilitation facilities and nursing homes.

On July 11, 2013, the district court (Judge Michael A. Ponsor) issued final approval of the amended settlement agreement. The court retained jurisdiction over the case. The agreement was to last for six years.

On June 27, 2014, Judge Ponsor revised a Protective Order originally granted on August 27, 2007, adjusting and broadening the scope of protected health information (PHI) for class members and their guardians.

No substantive docket entries were made during the remainder of the six-year term, which ended on July 1, 2019, so the case is presumably now closed.

Alex Colbert-Taylor - 06/06/2013
Jessica Kincaid - 03/17/2016
Lauren Latterell Powell - 01/01/2018
Elizabeth Helpling - 11/23/2019


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