SECTION 1.  Notwithstanding any general or special law to the contrary, but consistent with Sections 255 and 256 of Chapter 149 of the Acts of 2004, the executive office of health and human services shall, within 45 days of the effective date of this act, apply to the federal Centers for Medicare and Medicaid Services for a waiver from the provisions of 42 U.S.C. Sec. 1396b(w)(3)(B) for the nursing facility user fee created by section 25 of chapter 118 of the General Laws, to mitigate the impact of the user fee on nursing facilities that: (1)  Are established as not-for-profit entities; (2) have 100 or fewer licensed beds; (3) were established and licensed in Massachusetts prior to the enactment of the Health Insurance for the Aged Act, Pub. L. 89-97, Title I, 79 Stat. 290, and the Medicaid Act, Pub. L. 89-97, Title I, Sec. 121(a), 79 Stat. 343, on July 30, 1965; (4) are located in Berkshire County; and (5) are not participating in the Medicaid program. 

                  SECTION 2. The form of such a waiver application shall meet the requirements for automatic approval by the federal Centers for Medicare and Medicaid Services pursuant to 42 U.S.C. Sec. 1396b(w)(3)(E), including (1) that the net impact of the nursing facility user fee with the waiver remains generally redistributive in nature, as provided in 42 C.F.R. Sec. 433.68(e)(1)(ii), and (2) that the amount of the nursing facility user fee with the waiver remains not directly correlated to payments for items or services, and therefore meets the hold harmless requirements provided in 42 C.F.R. Sec. 433.68(f). 

                  SECTION 3. In the waiver application, patient days from nursing facilities not described in the first paragraph above that must be exempted from the nursing facility user fee in order for the waiver application to meet the requirements for automatic approval by the Centers for Medicare and Medicaid Services shall be taken from a not-for-profit nursing facility located in Berkshire County.