HOUSE DOCKET, NO. 3573        FILED ON: 1/20/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2889

The Commonwealth of Massachusetts

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PRESENTED BY:

Denise C. Garlick

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act strengthening home care services.

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PETITION OF:

HOUSE DOCKET, NO. 3573        FILED ON: 1/20/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2889

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act strengthening home care services.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. The General Laws are hereby amended by inserting after chapter 19D the following chapter:-

CHAPTER 19E.

HOME CARE AND HOME HEALTH SERVICES.

Section 1. The purpose of this chapter is to ensure consistent, high quality home care services and home health services by licensing home care agencies; by professionalizing the care workforce; and by providing information and assistance to clients and their caregivers who use or could benefit from home care or home health services.

When used in this chapter, unless the context otherwise requires, the following terms shall have the following meanings:

“Activities of daily living” or “ADLs”, fundamental personal care tasks that are performed as part of an individual’s routine of self-care including, but not limited to, the ability to bathe, dress, undress, eat, toilet, transfer in and out of a bed or chair, move while in bed, and ambulate inside the home.

“Change in ownership”, shall include, but not be limited to, the transfers of interests relative to (1) in the case of a for-profit entity, a change in the identity of the majority of the owners of a home care agency, or of majority share ownership in the case of a corporation; or (2) in the case of a non-profit entity, changes in the corporate membership or trustees as the executive office determines will constitute a shift in control of a home care agency. A transfer of ownership shall also be deemed to have occurred when foreclosure proceedings have been instituted by a mortgagee in possession.

“Client”, the person who receives home care services or home health services at their place of residence.

“Direct care agency”, “home care agency”, or “agency”, an entity, however organized, whether conducted for profit or not for profit, which is owned, operated, maintained, or advertised for the purpose of providing home care services or home health services to clients at their place of residence. Entities that, for a fee, match clients with individuals who provide home care services or home health services, including entities that provide that matching service through an online platform, shall be considered direct care agencies for the purposes of this chapter.

“Direct care services”, home care services or home health services as defined in this chapter. These services do not include services provided by a personal care attendant in the commonwealth’s personal care attendant program as defined in 130 CMR 422.000 or services provided under the MassHealth adult foster care program as defined in 101 CMR 351.00.

“Home care worker and home health aide registry” or “registry”, the registry established in section 4 of this chapter.

“Direct care worker”, a home care worker or home health aide as defined in this chapter.

“Executive office”, the executive office of health and human services.

“Home care services”, shall include, but are not limited to, assistance with activities of daily living, housekeeping, personal laundry, companionship and chore services provided to a client at their place of residence. Home care services do not include services provided by a personal care attendant in the commonwealth’s personal care attendant program as defined in 130 CMR 422.000 or services provided under the MassHealth adult foster care program as defined in 101 CMR 351.00.

“Home care worker”, a person who provides home care services at a client’s place of residence and who has met the training requirements of the homemaker and personal care standards issued by the executive office of elder affairs.

“Home health aide”, a person who provides home health services at a client’s place of residence and who has met the home health aide training requirements set forth in the federal Medicare conditions of participation for home health agencies at 42 CFR Part 484.80.

“Home health services”, shall include, but are not limited to, services provided to a client at their place of residence according to a plan of treatment for illness or infirmity prescribed by a physician licensed to practice medicine, a licensed advanced practice nurse, or a licensed physician assistant. Such services include part time and intermittent nursing services and other therapeutic services such as physical therapy, occupational therapy, speech therapy, medical social services, or support of such services as provided by a home health aide. Home health services do not include services provided by a personal care attendant in the commonwealth’s personal care attendant program as defined in 130 CMR 422.000 or services provided under the MassHealth adult foster care program as defined in 101 CMR 351.00.

“PHCAST” or “Personal and Home Care Aide State Training”, a grant awarded to Massachusetts by the Health Resources and Services Administration (HRSA) under Section 5507 of the federal Patient Protection and Affordable Care Act.

“Secretary”, the secretary of the executive office of health and human services and their designees.

Section 2. (a) No person or entity shall own, operate, maintain, or advertise a direct care agency in the commonwealth without a license obtained under this chapter. The executive office shall promulgate regulations for the licensure of direct care agencies, and shall issue a license to any person or entity that it determines to meet the requirements established in this chapter and those regulations. Two years after the effective date of this chapter, all direct care agencies operating in the commonwealth shall hold a license or a provisional license obtained under this chapter.

Upon applying for a license, license renewal, or provisional license, an applicant shall pay the executive office a fee. Fees for license, license renewal, and provisional license applications shall be determined by the secretary of administration under section 3B of chapter 7. Fees collected under this section shall be credited to the Home Care Improvement Trust established by section 2WWWW of chapter 29.

A license obtained under this section shall not be transferable or assignable and shall be issued only to the person or the entity named in the application. The license shall be posted in a conspicuous place on the agency’s premises and on its print materials, advertising, and online publications. The secretary shall design and make available a seal that may be used by the agency with, or in place of, the license on print materials, advertising, and online publications.

Licenses shall be valid for a term of 2 years, but shall be subject to revocation for cause as defined by the executive office in regulations. The executive office shall promulgate regulations for the renewal of direct care agency licenses, provided that the standards and requirements for renewal of a direct care agency license shall be the same as those for initial licensure.

The secretary may issue a provisional license to a direct care agency for a term of 1 year from the date on which regulations for this chapter are promulgated, provided that agencies eligible for provisional licensure shall be limited to i) direct care agencies providing home care services that held a current approval from the executive office of elder affairs to participate in the commonwealth’s home care program on the effective date of this chapter; and ii) direct care agencies providing home health services that held valid certification from the federal Centers for Medicare and Medicaid Services under 42 CFR Part 484.80 on the effective date of this chapter. Provisional licenses shall not be renewed, and may be revoked by the secretary for cause. An agency operating under a provisional license shall not provide direct care services beyond the expiration date of the provisional license unless that agency has obtained a full license under this chapter.

(b) An applicant for an initial license shall file an application with the secretary which shall include, but not be limited to, the following requirements:

(1) documentation that the agency meets the requirements and standards for certification by the federal Centers for Medicare and Medicaid Services as defined in 42 CFR Part 484.80, provided that the agency is applying for a license to provide home health services;

(2) documentation that the agency meets the requirements and standards to participate in the commonwealth’s home care program as issued by the executive office of elder affairs under section 4B of chapter 19A, provided that the agency is applying to provide home care services;

(3) the legal name of the entity and all other names used by it;

(4) contact information for the entity, including proposed name, address, telephone, email address, and federal employer identification number, the type of license or licenses applied for, and the proposed opening date;

(5) articles of incorporation, articles of organization, any partnership agreements, and other organizing documents required by the secretary of the commonwealth to conduct business in Massachusetts, and by-laws or equivalent documents that govern the rights, duties and capital contributions of the business entity;

(6) a copy of any management or franchise agreements that set forth the financial, administrative, and other responsibilities of each party;

(7) the names and addresses of the chief executive, officers, directors, and trustees, and the names and addresses of limited partners or shareholders with more than a ten percent interest in the agency. For each individual, the applicant shall list: name, contact information, all direct care agencies, nursing homes or health care facilities or providers in the commonwealth or in other states in which that person has been or is a chief executive, officer, director, trustee, or general partner. The applicant shall disclose whether any such individual has ever been found in violation of any local, state or federal statute, regulation, ordinance, or other law by reason of that individual's relationship to a direct care agency;

(8) a description of the agency’s payroll process which shall include reporting of employment wages to the appropriate government agency, the collection and payment of state and federal withholding payroll taxes and all other state and federal payroll taxes to the appropriate government agencies;

(9) the agency’s proposed geographical service area, including the names of municipalities it plans to serve;

(10) the services to be offered and arrangements for providing such services;

(11) the fee schedule for services;

(12) the number of staff to be employed by job title, the pay range for each job title, and the benefit package for employees;

(13) the agency’s written policy and procedure to accept, investigate, and respond to client complaints;

(14) proof of a surety bond, or other insurance establishing third party liability, that provides protection for clients, covers potential wage theft claims, litigation expenses, and other potential liabilities that may be incurred by direct care agencies, and meets or exceeds minimum standards established by the secretary;

(15) proof of a workers’ compensation policy that covers the agency’s employees;

(16) proof that the agency requires independent contractors it uses for the provision of home care services or home health services to carry their own liability and workers’ compensation insurance.

(c) Each licensed direct care agency shall be subject to the following conditions:

(1) the agency shall only hire or employ, on a paid, unpaid, temporary or permanent basis, a direct care worker whose name appears in the registry established by this chapter, but may hire or employ a worker whose name does not appear in the registry if the agency intends on training that worker to the standards that would permit them to register in the registry, and the agency does not permit that worker to provide direct care services to clients until that worker is registered;

(2) the agency shall operate an office at a physical location in the commonwealth;

(3) the agency shall conduct criminal offender record information (CORI) checks in compliance with sections 172 and 172C of chapter 6, and 101 CMR 15.00. The agency shall only employ direct care workers who have been subject to a background check that includes fingerprint-based checks of the state and national criminal history databases. The secretary shall promulgate rules and regulations for the implementation of this paragraph, including, but not limited to, policies and procedures for the approval or denial of applicants based upon information obtained through background checks, notification of agencies and prospective employees of background check results, and appeals of background check results by prospective employees;

(4) the agency shall verify each employee’s eligibility to work in the United States;

(5) the agency shall verify that all employees who transport clients have auto insurance and a driving license; and shall check the employee’s driving record for a minimum of the previous five years;

(6) the agency shall ensure that each direct care worker fulfills training requirements as determined by the executive office, which shall include, for home care workers, the homemaker and personal care standards issued by the executive office of elder affairs; and, for home health aides, the home health aide training requirements set forth in the federal Medicare conditions of participation for home health agencies at 42 CFR Part 484.80. The agency shall provide its employees with training that is culturally and linguistically competent for the employee and for the provision of services to the client. The employee shall receive full compensation for the training time. Agencies shall notify the registry, in a form to be prescribed by the secretary, of training completed by a direct care worker for the purposes of complying with this paragraph. Such training shall be valid for the purposes of employment at any direct care agency in the commonwealth;

(7) the agency shall submit an annual cost report to the executive office that includes, but is not limited to, a full accounting of annual costs for supplies, labor, administration and other operations. The executive office shall issue a standardized form for cost reporting;

(8) the agency shall submit an annual data report to the executive office that includes, but is not limited to, aggregate information about its employees, clients, and services. The executive office shall issue a standardized form for this report; and

(9) the agency shall comply with and distribute to its employees and clients the Massachusetts home care clients’ bill of rights, as follows:

Each client shall be entitled to the following rights, none of which shall be abridged or violated by an agency or its employees:

(i) the right to treatment and services without discrimination based on race, age, religion, national origin, sex, gender identity, sexual orientation, disability, diagnosis or source of payment;

(ii) the right to be given a written notice, prior to the initiation of services, of these client rights and any related policies and procedures established by the agency;

(iii) the right to be informed in writing of services available from the agency; the names and professional status of personnel providing and responsible for care; the frequency of home visits to be provided; and the agency's daytime and emergency telephone numbers;

(iv) the right to receive the services of a translator or interpreter to facilitate communication between the client and home care workers or home health aides;

(v) the right to participate in the planning of the services to be provided to the client;

(vi) the right to refuse services that an agency provides and to be informed of available options, including the option of no services and of the possible benefits and risks of each option;

(vii) the right to complete information about the financial arrangements among the client, the agency and any third parties;

(viii) the right to express grievances to an agency's staff and governing authority regarding care and services without fear of reprisal, and to receive an answer to those grievances within a reasonable time;

(ix) the right to privacy, including maintaining the confidentiality of the client’s health and service plan records; and the right to approve or refuse, in writing, the release of any records to any individual outside the agency, except as required by law or third-party payment contract;

(x) the right to be assured of respect for the client’s personal property; and,

(xi) the right to join with other clients or individuals to work for improvements in client care.

(d) A direct care agency shall notify the executive office 45 days prior to a material change in information provided in its most license, license renewal, or provisional license application. If a material change is not reasonably foreseeable, the agency shall notify the executive office of the change within 2 business days.

(e) Upon sale, assignment, lease, change of ownership or other transfer of control of a direct care agency, the new owner of the agency shall obtain a license from the secretary prior to operating, maintaining, or advertising the agency; or offering or providing home care services or home health services.

Section 3. A direct care agency shall notify the executive office at least 45 days prior to the closing of the agency or the discontinuance of any essential service it provides. The executive office shall, by regulation, define “essential service” for the purposes of this section. The direct care agency shall notify its clients, employees and referral sources of the closing or discontinuation and shall publish a legal notice of the closing in local media. The direct care agency’s notice to clients shall include the names and contact information of other direct care agencies in the area.

Section 4. (a) The executive office shall establish and maintain a registry of individuals employed as direct care workers by direct care agencies, to be known as the Massachusetts home care worker and home health aide registry. Each person employed as a direct care worker by a direct care agency shall be registered in the registry as soon as practicable, but no later than 2 years after the effective date of this chapter.

The registry shall include, but not be limited to, the following information concerning each direct care worker: (1) full legal name; (2) an assigned unique identification number; (3) date of birth; (4) gender; (5) current home address; (6) language abilities; (7) the full legal name of each employer for whom the direct care worker works; (8) direct care employment history and job titles; (9) direct care worker training level; (10) a list of direct care trainings and certifications completed by the direct care worker; and, (11) any findings of abuse, neglect, or misappropriation of property by the direct care worker and related documentation as entered in the state’s registry for certified nurse aides under section 72J of chapter 111.

The executive office shall make information in the registry available on a public website, provided that the secretary shall determine the categories of information that are publicly displayed on the website.

Each direct care agency shall submit and update the registry information at least once per month for each direct care worker it employs. No charges shall be imposed on any direct care worker for costs related to the registry.

Upon request, the information in the registry, including personal contact information, shall be available to the public. The executive office shall maintain a record of persons who access or obtain information from the registry by request.

(b) The executive office shall facilitate and promote a public education program to promote the registry, the value of hiring registered direct care workers through licensed agencies, and recommended best practices for individuals seeking and using home care and home health services.

Section 5. The executive office shall publish an annual report on the home care and home health industry in Massachusetts which shall include, but not be limited to, aggregate data from the annual cost reports and the annual data reports required in subsection (c) of section 2 of this chapter.

Section 6. The office of the attorney general may investigate any home care agency; and may require that any such agency produce documents, answer interrogatories and provide testimony under oath. Nothing in this section shall limit the authority of the attorney general to regulate home care agencies or to protect consumers under any other law.

Section 7. The executive office shall promulgate regulations, rules, forms, and notifications as are necessary to implement the provisions of this chapter, provided that the executive office shall minimize any duplication of information reporting that may be required of home care agencies.

SECTION 2. Chapter 29 of the General Laws is hereby amended by inserting after section 2VVVV the following section:-

Section 2WWWW. There shall be a Home Care Improvement Trust Fund. The secretary of health and human services shall administer the fund and shall make expenditures from the fund for costs associated with (i) licensing direct care agencies under Chapter 19E; (ii) establishing and operating the registry under said chapter; (iii) conducting the public education program established by said chapter; and (iv) workforce training for home care workers and home health aides. There shall be credited to the fund all fees received by the secretary under section 2 of said chapter, and any appropriations, bond proceeds or other monies authorized by the general court and specifically designated to be credited thereto, and additional funds, including federal grants or loans or private donations made available to the secretary for this purpose. Amounts credited to the fund shall not be subject to further appropriation and money remaining in the fund at the close of a fiscal year shall not revert to the General Fund and shall be available for expenditure in subsequent fiscal years.

SECTION 3. Section 72J of chapter 111, as appearing in the 2014 official edition, is hereby amended by inserting after the first paragraph the following paragraph:-

For the purposes of this section, the meaning of homemaker shall include home care worker as defined in chapter 19E.

SECTION 4. The executive office shall determine the feasibility of creating a single registry that combines all entries from the certified nurse aide registry established under section 72J of chapter 111 of the General Laws, and the registry established in section 4 of chapter 19E of the General Laws. The executive office shall report its findings to the clerks of the house of representatives and the senate, and the house and senate chairs of the joint committee on elder affairs within 1 year after the effective date of this Act.

SECTION 5. Said chapter 111, as so appearing, is hereby further amended by striking out sections 25L and 25M, and inserting in place thereof the following sections:-

Section 25L. (a) There shall be in the department a health care workforce center to improve access to health and behavioral, substance use disorder and mental health care services, and home care and home health services. The center, in consultation with the health care workforce advisory council established by section 25M and the secretary of labor and workforce development, shall: (1) coordinate the department's health care workforce activities with other state agencies and public and private entities involved in health care workforce training, recruitment and retention, including with the activities of the Health Care Workforce Transformation Fund; (2) monitor trends in access to primary care providers, and nurse practitioners and physician assistants practicing as primary care providers, behavioral, substance use disorder and mental health providers, other physician and nursing providers, and home care and home health services, through activities including (i) reviewing existing data and collection of new data as needed to assess the capacity of the health care and behavioral, substance use disorder and mental health care, and home care and home health workforce to serve patients, including patients with disabilities whose disabilities may include but are not limited to intellectual and developmental disabilities and dementia, including patient access and regional disparities in access to physicians, nurses, physician assistants, and behavioral, substance use disorder and mental health care professionals, and home care and home health professionals, and to examine physician, nursing and physician assistant, behavioral, substance use disorder and mental health professionals’, and home care and home health professionals' satisfaction; (ii) reviewing existing laws, regulations, policies, contracting or reimbursement practices, and other factors that influence recruitment and retention of physicians, nurses, physician assistants, behavioral, substance use disorder and mental health professionals, and home care and home health professionals; (iii) projecting the ability of the workforce to meet the needs of patients over time; (iv) identifying strategies currently being employed to address workforce needs, shortages, recruitment and retention; (v) studying the capacity of public and private medical, nursing, physician assistant, behavioral, substance use disorder and mental health professional schools, and home care worker and home health aide training programs in the commonwealth to expand the supply of primary care physicians and nurse practitioners and physician assistants practicing as primary care providers and licensed behavioral, substance use disorder and mental health professionals, and home care and home health professionals; (3) establish criteria to identify underserved areas in the commonwealth for administering the loan repayment program established under section 25N and for determining statewide target areas for health care provider placement based on the level of access; and (4) address health care workforce shortages, including shortages in home care and home health services, through the following activities, including: (i) coordinating state and federal loan repayment and incentive programs for health care providers; (ii) providing assistance and support to communities, physician groups, community health centers, community hospitals, and home care and home health training entities in developing cost-effective and comprehensive recruitment and retention initiatives; (iii) maximizing all sources of public and private funds for recruitment initiatives; (iv) designing pilot programs and making regulatory and legislative proposals to address workforce needs, shortages, recruitment and retention; and (v) making short-term and long-term programmatic and policy recommendations to improve workforce performance, address identified workforce shortages and recruit and retain physicians, nurses, physician assistants and behavioral, substance use disorder and mental health professionals, and home care and home health professionals.

(b) The center shall maintain ongoing communication and coordination with the health disparities council, established by section 16O of chapter 6A.

(c) The center shall establish a home care worker and home health aide training and workforce improvement program. The program shall (i) develop and implement strategies to increase the number of individuals who are employed as home care workers and home health aides; (ii) develop and implement innovative curricula, courses, programs, and modes of delivering training and education to home care workers and home health aides; (iii) develop and implement strategies for increasing the availability of training for home care workers and home health aides in community-based organizations, including, but not limited to, community development corporations, regional workforce agencies, faith-based organizations, labor-management partnerships, and other partnerships among eligible applicants in community-based settings; (iv) establish guidelines and standards for stackable module training credentials for home care and home health workers that may be earned by workers as a part of a direct care worker career pathway; and (v) develop and implement training for individuals that will assist them in meeting the prerequisites for participating in Personal and Home Care Aide State Training, as defined in section 1 of chapter 19E.

(d) The center shall annually submit a report, not later than March 1, to the governor, the health disparities council, established by section 16O of chapter 6A; and the general court, by filing the same with the clerk of the house of representatives, the clerk of the senate, the joint committee on labor and workforce development, the joint committee on health care financing, the joint committee on public health, and the joint committee on elder affairs. The report shall include: (1) data on patient access and regional disparities in access to physicians, by specialty and sub-specialty, and nurses, physician assistants, behavioral, substance use disorder and mental health professionals, and home care and home health professionals; (2) data on factors influencing recruitment and retention of physicians, nurses, physician assistants, and behavioral, substance use disorder and mental health professionals, and home care and home health professionals; (3) short and long-term projections of physician, nurse, physician assistant and behavioral, substance use disorder and mental health professionals, and home care and home health professionals supply and demand; (4) strategies being employed by the council or other entities to address workforce needs, shortages, recruitment and retention; (5) recommendations for designing, implementing and improving programs or policies to address workforce needs, shortages, recruitment and retention; and (6) proposals for statutory or regulatory changes to address workforce needs, shortages, recruitment and retention.

Section 25M. (a) There shall be a healthcare workforce advisory council within, but not subject to the control of, the health care provider workforce center established by section 25L. The council shall advise the center on the capacity of the healthcare workforce to provide timely, effective, culturally competent, quality physician, nursing, physician assistant, behavioral, substance use disorder and mental health services, and home care and home health services.

(b) The council shall consist of: 22 members to be appointed by the governor: 1 of whom shall be a representative of the Massachusetts Extended Care Federation; 1 of whom shall be a physician with a primary care specialty designation who practices in a rural area; 1 of whom shall be a physician with a primary care specialty who practices in an urban area; 1 of whom shall be a physician with a medical subspecialty; 1 of whom shall be an advanced practice nurse, authorized under section 80B of said chapter 112, who practices in a rural area; 1 of whom shall be an advanced practice nurse, authorized under said section BOB of said chapter 112, who practices in an urban area; 1 of whom shall be a representative of the Massachusetts Organization of Nurse Executives; 1 of whom shall be a representative of the Massachusetts Academy of Family Physicians; 1 of whom shall be a representative of the Massachusetts Workforce Board Association; 1 of whom shall be a representative of the Massachusetts League of Community Health Centers, Inc.; 1 of whom shall be a representative of the Massachusetts Medical Society; 1 of whom shall be a representative of the Massachusetts Nurses Association; 1 of whom shall be a representative of the Massachusetts Association of Registered Nurses; 1 of whom shall be a representative of the Massachusetts Hospital Association, Inc.; 1 of whom shall be a representative from the Massachusetts Association of Physician Assistants; 1 of whom shall be a representative of the Massachusetts Chiropractic Society; 1 of whom shall be a representative of Health Care For All, Inc.; 1 of whom shall be a behavioral, substance use disorder and mental health professional; 1 of whom shall be a representative of the Home Care Aide Council; 1 of whom shall be a representative of the Home Care Alliance of Massachusetts; 1 of whom shall be a representative of the Service Employees International Union Local 1199; and 1 of whom shall be appointed by the governor at the governor's discretion. Members of the council shall be appointed for terms of 3 years or until a successor is appointed. Members shall be eligible to be reappointed and shall serve without compensation, but may be reimbursed for actual and necessary expenses reasonably incurred in the performance of their duties. Vacancies of unexpired terms shall be filled within 60 days by the appropriate appointing authority.

The council shall meet at least bimonthly, at other times as determined by its rules and when requested by any 8 members.

(c) The council shall advise the center on: (1) trends in access to primary care and physician subspecialties, nursing, physician assistant and behavioral, substance use disorder and mental health services, and home care and home health services; (2) the development and administration of the loan repayment program, established under section 25N, including criteria to identify underserved areas in the commonwealth; and (3) solutions to address identified health care workforces shortages; and (iv) the center's annual report to the general court.