Bill S.1952

SENATE DOCKET, NO. 2339 FILED ON: 1/20/2023

SENATE . . . . . . . . . . . . . . No. 1952

By Mr. Tarr, a petition (accompanied by bill, Senate, No. 1952) of Bruce E. Tarr and James B. Eldridge for legislation to improve long-term care staffing and dignity for caregivers through training, tuition reimbursements, tax credits and other programs. Revenue.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act to improve long-term care staffing and dignity for caregivers.

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. Chapter 23 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after section 9U the following 2 sections:-

Section 9V. The executive office of labor and workforce development, through the Commonwealth Corporation, shall establish a grant program for nursing facility supervisory and leadership training. The program shall include, but not be limited to, covering the cost of nursing facility worker participation in evidence-based supervisory training for the express purpose of improving staff satisfaction, retaining staff and reducing turnover.

Section 9W. The Commonwealth Corporation shall, subject to appropriation, establish an extended care career ladder grant program, consistent with section 410 of chapter 159 of the acts of 2000. The Commonwealth Corporation shall make grants available for certified nurses' aides, home health aides, homemakers, personal care attendants, and other entry-level workers in long-term care. The grants may include English language training, training in other languages and adult basic education programs to improve quality of care and improve direct care worker access to and participation in career ladder training. The length of such grants shall not exceed a period of 3 years. The Commonwealth Corporation shall submit quarterly reports to the house and senate committees on ways and means on said grant program including, but not limited to, the number of grants awarded, the amount of each grant, a description of the career ladder programs, changes in care-giving and workplace practices that have occurred and their impact on quality of care and worker retention and the certificates, degrees or professional status attained by each participating employee. The administrative and program-management costs for the implementation of said grant program shall not exceed 4 per cent of the amount of the grant program, including funding for technical assistance and evaluation.

SECTION 2. Chapter 111 of the General Laws, as so appearing, is hereby amended by inserting after section 4O the following section:-

Section 4P. The department shall, subject to appropriation, establish a tuition reimbursement program for certified nursing assistant training. The department shall reimburse for the costs of certified nursing assistant training or competency, provided that: (i) the costs have been incurred for an approved certified nursing assistant training program; (ii) the costs have been actually paid by the certified nursing assistant from their own personal funds; and (iii) individuals have begun employment as a certified nursing assistant in a licensed nursing facility within 12 months of completing the training program, including passing the competency testing.

SECTION 3.. Section 6 of Chapter 62 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after subsection (t) the following new subsection:- (u)(1) As used in this subsection, the following words shall have the following meanings unless the context clearly requires otherwise:

"Activities of daily living", everyday functions and activities, which individuals usually do without help, including, but not limited to, bathing, continence, dressing, eating, toileting and transferring.

"Eligible family member", an individual who (1) is at least 18 years of age during a taxable year, (2) requires assistance with at least one activity of daily living and (3) qualifies as a dependent, spouse, parent or other relation by blood or marriage, including an in-law, grandparent, grandchild, stepparent, aunt, uncle, niece or nephew of the family caregiver.

“Evaluation year”, the year in which an evaluation of the tax credit is to be complete. The evaluation year shall be every 5 years after the effective date of this subsection.

"Family caregiver", an individual who is a resident taxpayer for the taxable year and had eligible expenditures, as described in paragraph (3) of this subsection, with respect to 1 or more eligible family members during the taxable year. In the case of a joint return, the term includes the individual and the individual's spouse. The family caregiver claiming the credit must have a Massachusetts adjusted gross income of less than $75,000 for an individual and $150,000 for a couple and incur uncompensated expenses directly related to the care of an eligible family member who is an adult.

(2) A taxpayer who is a family caregiver is eligible to receive for a taxable year is equal to a refundable credit against the taxes imposed by this chapter. The credit shall be equal to 100 per cent of the eligible expenditures incurred by the taxpayer during the taxable year, with a maximum allowable credit of $1,500.

(3) Expenditures eligible to be claimed for the tax credit include the costs associated with: (i) the improvement or alteration to the family caregiver's primary residence to permit the eligible family member to remain mobile, safe, and independent; (ii) the purchase or lease of equipment that is necessary to assist an eligible family member in 2 carrying out one or more activities of daily living; and (iii) other goods, services or supports that assist the family caregiver in providing care to an eligible family member, such as expenditures related to hiring a home care aide or personal care attendant, respite care, adult day health, transportation, legal and financial services and assistive technology.

(4) No taxpayer shall be entitled to claim a tax credit under this subsection for the same eligible expenditures claimed by another taxpayer. The total amount of tax credits claimed by family caregivers shall not exceed $1,500 for the same eligible family member. If two or more family caregivers claim tax credits for the same eligible family member, the total of which exceeds $1,500, the total amount of the credit allowed shall be allocated in amounts proportionate to each eligible taxpayer’s share of the total amount of the eligible expenditures for the eligible family member.

(5) A taxpayer may not claim a tax credit under this section for expenses incurred in carrying out general household maintenance activities, including painting, plumbing, electrical repairs or exterior maintenance, provided, however, that home modifications to accommodate that person receiving care and such expenses must be directly related to assisting the family caregiver in providing care to an eligible family member are allowable.

(6) The commissioner of the department of revenue shall promulgate rules and regulations relative to the administration and enforcement of this subsection.

(7) The commissioner shall annually, not later than September 1, file a report with the house and senate committees on ways and means, the chairs of the joint committee on revenue and the chairs of the joint committee on elder affairs identifying, by community, the total amount of tax credits claimed and the total number of tax filers who received the tax credit for the preceding fiscal year.

(8) On or before May 31 of the year before the evaluation year, there shall be established a committee entitled the Caregiver Tax Credit Evaluation Committee to conduct a review of the tax credit. The committee shall be comprised of 7 members: 2 of whom shall be appointed by the secretary of the executive office of health and human services; 2 of whom shall be appointed by the secretary of the executive office of elder affairs; 1 of whom shall be appointed by the secretary of the executive office for administration and finance; 1 of whom shall be appointed by the president of the senate; and 1 of whom shall be appointed by the speaker of the house of representatives.

The committee shall::

(1) examine the purpose for which the tax credit was established;

(2) determine whether the original intent of the tax credit is still appropriate;

(3) examine whether the tax credit is meeting its objectives;

(4) examine whether the purposes of the tax credit could be more efficiently and effectively carried out through alternative methods; and

(5) calculate the costs of providing the tax credit, including the administrative cost and lost revenues to the commonwealth as well as any estimated saving to the Commonwealth by helping the person to avoid nursing home care. The committee shall file a report of its findings with the senate and house clerks and with the governor, which shall include a recommendation as to whether the tax credit should be continued, with or without changes, or be terminated. The report shall be accompanied by any legislation that is needed to accomplish the recommendations of the report. The report shall be filed no later than 3 December 31 of the evaluation year.

SECTION 4. Section 9 of chapter 118E of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by inserting in line 16, after the words "requirements of Title XIX;", the following words:- provided further, that spouses shall be permitted to serve as caregivers in the adult foster care and personal care attendant programs.

SECTION 5. Notwithstanding any general or special law to the contrary, the executive office of health and human services, in consultation with the department of elder affairs and the office of Medicaid, shall develop metrics, standards, and procedures that trigger emergency long-term care provider rates of payment that include hazard pay wage add-ons for employees of home health agencies, personal care agencies, and home care agencies that shall be implemented in response to any COVID19 resurgence, statewide public health emergency, severe statewide weather emergency, or other statewide emergency incident. The executive office of health and human services shall also develop standard, comprehensive, timely and publicly accessible processes for provider reporting and state audits of the use of emergency rate increases for wage increases.

SECTION 6. Notwithstanding any general or special law to the contrary, the executive office of health and human services, in consultation with all appropriate state agencies and all relevant public stakeholders, shall develop and implement a mandatory infection control and public health training program that all new and incumbent direct care employees of home health agencies and home care agencies shall complete as a condition of employment. The executive office shall establish contracts with labor-management training funds, community colleges, and other entities capable of conducting the training program and shall ensure the training program is implemented in a manner that is coordinated with the work of other state agencies and public and private entities involved in health care workforce training, recruitment, and retention.

SECTION 7. Notwithstanding any general or special law to the contrary, the executive office of health and human services shall establish an online personal protective equipment exchange for the purpose of identifying, aggregating, and making available for private purchase and procurement necessary personal protective equipment to be utilized by long-term care workers, including, but not limited to, personal care attendants and all employees of nursing facilities, resident care facilities, assisted living residences, adult day programs, home health agencies, and home care agencies in the Commonwealth. The executive office shall: (i) identify and offer qualified private wholesalers, manufacturers, and suppliers the opportunity to participate on the exchange; (ii) ensure that the personal protective equipment offered on the exchange complies with all federal and state requirements and specifications; and (iii) establish and implement a 2 comprehensive process to receive, negotiate, and finalize competitive pricing to be offered for the personal protective equipment placed on the exchange. 2 All sales of the personal protective equipment from the exchange shall be private transactions by and between the private purchaser and private seller. The executive office shall operate the exchange and therefore facilitate such transactions but shall have no legal responsibility to offer payment for or the delivery of the personal protective equipment. The executive office may establish processes to subsidize or to discount the cost of personal protective equipment that is purchased through the exchange for certain purchasers. In developing the exchange, the executive office shall establish a stakeholder group, which shall be comprised of representatives from 1199SEIU, the Massachusetts Senior Care Association, the Massachusetts Assisted Living Association, Leading Age of Massachusetts, the Hospice Federation of Massachusetts, the Home Care Alliance of Massachusetts, manufacturers and suppliers of personal protective equipment, and other stakeholders that the executive office deem necessary to organize and establish the exchange.

SECTION 8. Notwithstanding any general or special law to the contrary, the executive office of health and human services, in consultation with the department of elder affairs and the office of Medicaid, shall develop and implement new standards and practices that use the worker contact information included in the Massachusetts Home Care Worker Registry established in Chapter 139 of the Acts of 2017 to ensure robust communication with the home care agency workforce during a state public health emergency or other state emergencies. Such communication shall include, but not be limited to, informing the home care agency workforce about any new provider rates designated for hazard pay, the availability of and standards for mandatory infection control trainings, and procedures for accessing personal protective equipment from any state-run online exchange.

SECTION 9. The personal protective equipment exchange established in Section 3 shall be implemented not later than 90 days after the effective date of this act

SECTION 10... Chapter 111 of the Massachusetts General Laws, as so appearing, is hereby amended by adding the following new section:- For the purposes of this section the following words shall, unless the context clearly requires otherwise, have the following meanings:

"Health Care Workforce", personnel employed by or contracted to work at a skilled nursing facility that influence the delivery of quality care to residents, including but not limited to registered nurses, licensed practical nurses, certified nursing assistants, unlicensed assistive personnel, service, maintenance, clerical, and all other health care workers.

"Skilled Nursing Facility" shall mean a Level 1, Level 2, or Level 3 long term care facility as defined in Massachusetts standard operations of long-term care facility regulations (105 CMR 150). (a) Notwithstanding any special or general law to the contrary, each skilled nursing facility shall establish and develop a health care workforce care planning committee within 90 days of the effective date of this act. The membership of the planning committee shall include at least one nurse, one certified nurse assistant, and one representative for each labor organization representing bargaining units at the facility. The membership of the planning committee shall include no more than the same number of management representatives relative to the number of appointed members of the health care workforce. (b) The committee shall participate in at least one meeting of labor management committee training. Such training shall be provided by an outside training vendor with demonstrated experience in labormanagement training. The training vendor shall be selected by majority vote of the planning committee and the facility shall pay for costs of this training. 2 (c) Each facility’s health care workforce planning committee shall develop, implement, monitor and regularly adjust a comprehensive care team plan that accounts for each unit or other skilled nursing facility division in which direct patient care is provided. The care team plan shall be developed to ensure that the assigned health care workforce members are sufficient to ensure a safe working environment and to provide quality care to the facility’s residents. Further, the care team plan shall account for all anticipated variables that can influence a facility’s delivery of quality patient care. The care team plan shall include account for (i) the numbers and skill mix of needed health care workforce members to be assigned to residents, (ii) anticipated resident census, (iii) the time needed 2 to complete expected care tasks, (iv) the need for specialized equipment and technology, (v) the physical environment of the facility; and (vi) the necessity of ensuring a safe working environment. (d) As a condition of licensure, each skilled nursing facility shall submit the care team plan developed under subsection (b) and (c) to the department of public health on at least an annual basis. Such submission shall include a certification from each member of the health care workforce planning committee that the care team plan submitted accurately represents the consensus decisions of the facility’s planning committee. (e) The department of public health shall develop rules and regulations as needed to implement this section.

SECTION 11.: Notwithstanding any general or special law, rule or regulation to the contrary, the Department of Public Health shall amend the regulations governing “Nursing Services” and the standard operations of long-term care facilities (105 CMR 150.007). Such amendments shall establish enhanced operational standards for Level 1, 2, and 3 facilities mandating that, on and after October 1, 2022, compliance with sufficient staffing standards must include the provision of a minimum number of hours of care per resident per day (PPD) of 4.0 hours, of which at least 3.5 hours must be care provided to the resident by a certified nursing assistant.

SECTION 12. SECTION 1. (a) The following terms, as used in this section, shall, unless the context requires otherwise, have the following meanings:-

“Consumer”, means a person receiving home care services from a home care worker employed by a home care agency or from a personal care attendant.

“Home care agency”, an entity or organization, however organized and whether conducted for profit or not for profit, that is owned, operated, maintained or advertised for the purpose of providing home care services in residential settings for compensation, provided, however, that home care agency shall not include an entity operated by either the federal government or the commonwealth providing home care services; an entity that limits its business exclusively to the provision of house cleaning services; an aging service access points or ASAP entity as defined in section 4B of chapter 19A; a hospice program licensed under section 57D of chapter 111; or an adult foster care program regulated under 130 CMR 408.

“Home care services”, supportive services provided to an individual in his or her residence to enable that individual to remain in his or her residence safely and comfortably, including, but not limited to, assistance with activities of daily living, homemaker services, housekeeping, personal laundry, personal care and companionship, provided, however, that home care services shall not include hospice services provided by an entity subject to licensure under section 57D of chapter 111, the home health services provided by an entity subject to licensure under section 51K of chapter 111, 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”, means an individual employed by a home care agency who provides home care services to a consumer in the consumer’s residence.

“Personal Care Attendant”, means an individual who provides consumer-directed personal care services to a consumer in the consumer’s residence, including, but not limited to, a person providing such services as defined under section 70 of chapter 118E.

(b) The executive office of health and human services, in consultation with the home care worker and consumer abuse stakeholder advisory committee, mass health, the department of elder affairs, the department of public health, and the personal care attendant workforce council, shall adopt minimum standards and procedures for addressing abusive treatment and bullying of Massachusetts home care workers, personal care attendants and consumers. Such standards and procedures shall address physical, verbal and mental abuse either of or from individual clients or consumers as well as any abusive treatment or bullying from consumer surrogates, family members, other caregivers and any others present in the consumers’ household when the home care worker is providing care services. Such standards and procedures shall promote appropriate worker and consumer training and supports, and a safe and healthy work environment for home care workers, while recognizing the privacy rights of home care clients and consumers, the role of PCA consumer employers and that home care consumers/clients may have a disruptive behavioral disorder underlying abuse behavior.

(c) There shall be a Home Care Worker and Consumer Abuse Stakeholder Advisory Committee that shall meet, study, and make recommendations to the Executive Office of Health and Human Services relative to standards and procedures for addressing abusive treatment and bullying of home care workers, personal care attendants and consumers.

The advisory committee shall consist of the following 15 members: the secretary of health and human services or a designee who shall serve as chair; the assistant secretary for MassHealth or a designee; the secretary of elder affairs or a designee; the commissioner of public health or a designee; the chairs of the joint committee on elder affairs or their designees; the chairs of the joint committee on children, families, and disabilities, and 9 persons to be appointed by the governor, 1 of whom shall be a personal care attendant, 1 of whom shall be a home care agency direct care worker, 1 of whom shall be a consumer of pca services who shall be a member of the pca workforce council, 1 of whom shall be a consumer of home care agency services, 1 of whom shall be a representative of the Massachusetts statewide independent living council, 1 of whom shall be a representative of the disability Law center, 1 of whom shall be a representative of the Massachusetts home care, 1 of whom shall be a representative of the Massachusetts home care aide council and 1 of whom shall be a representative of the Massachusetts division of 1199SEIU-UHE. The members of the advisory committee shall serve without compensation.

The advisory committee shall meet at least monthly in the first six months after passage of this Act to develop initial findings and recommendations. The advisory committee shall submit a report containing initial findings and recommendations, including drafts of proposed legislation or regulatory changes to carry out its recommendations, by filing the same with the clerks of the senate and house of representatives, the joint committee on elder affairs and the joint committee on public health not later than six months following the passage of this Act. The advisory committee shall continue to meet quarterly thereafter and until the advisory committee votes to dissolve itself.

(d) The home care worker and consumer abuse stakeholder advisory committee shall study and make findings and recommendations relative to the development and implementation of minimum standards and procedures for addressing abusive treatment and bullying of Massachusetts home care workers, personal care attendants and consumers. The advisory committee’s study, findings and recommendations shall include, but not be limited to, each of the following matters:

1) Reporting and debriefing: best practices for standards and procedures for home care workers and their consumers/clients experiencing abusive treatment, bullying or neglect to report such abuse to their employers and/or appropriate state entities, including the Personal Care Attendant Workforce Council and/or MassHealth for PCAs, without retaliation and while retaining the right to report any criminal activity to law enforcement. Such standards shall include, but not be limited to, best practices for a debriefing process for affected workers and consumers following violent acts.

2) Tracking and record retention: Best practices for standards and procedures for the Executive Office of Health and Human Services to track and monitor reports of both worker abuse and reports of consumer abuse or neglect.

3) Informing workers: Best practices for standards and procedures that would require employers of home care workers or other appropriate state entities, including the Personal Care Attendant Workforce Council and/or MassHealth for PCAs, to regularly inform home care workers of patterns of consumer/client worker abuse or bullying that indicates a potentially unsafe working environment. Such standards and procedures shall respect home care client/consumer privacy while prioritizing worker safety and while ensuring continuity of care.

4) Training and employer policies: Best practices for standards and procedures for the Executive Office of Health and Human Services, in consultation with home care employers and other stakeholders, to develop and implement home care worker and consumer orientations and other trainings on worker abuse and bullying, escalation cycles and effective de-escalation techniques, culturally competent and peer-to-peer trainings and strategies to prevent physical harm with hands-on practice or role play. Best practices for home care employers to implement additional internal plans and procedures to reduce workplace violence and abuse, offer resources to employees for coping with the effects of violence and develop labor-management workplace safety committees.

SECTION 13. Section 1 of chapter 151B of the General Laws is hereby amended in line 21 by inserting after the word “thereof” the following words:-

and shall also include an employer of a personal care attendant as defined under section 70 of chapter 118e of the General Laws including individual consumers of a personal care attendant

SECTION 14. Section 3 of this act shall apply to taxable years beginning on or after January 1 next following the date of enactment.

Name:	District/Address:
Bruce E. Tarr	First Essex and Middlesex
James B. Eldridge	Middlesex and Worcester	3/6/2023