Bill S.2527

FILED ON: 12/15/2023

SENATE . . . . . . . . . . . . . . No. 2527

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 relative to assisted living and basic health 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. Section 1 of chapter 19D of the General Laws, as appearing in the 2022 Official Edition, is hereby amended by inserting after the definition of “Assisted living residence” or “Residence,” the following definitions:-

“Authorized medical professional”, an advanced practice registered nurse with prescriptive authority, a physician assistant or a physician, who has been granted authority by the resident to issue care orders for the resident.

“Basic health services”, certain services provided at an appropriately certified residence by staff qualified to provide such care or a qualified third party in accordance with a care order issued by an authorized medical professional. Such services shall include: (1) injections; (2) the application or replacement of simple non-sterile dressings; (3) the management of oxygen on a regular and continuing basis; (4) assistance with sample collection and the completion of any home diagnostic test, such as warfarin, INR testing and glucose testing, provided such home diagnostic test or monitoring is approved by the FDA for home use; or (5) application of ointments or drops.

“Care Order”, a written order for basic health services issued by an authorized medical professional.

SECTION 2. Said section 1 of said chapter 19D is hereby further amended by striking out the definition of “Elderly Housing”.

SECTION 3. Said section 1 of said chapter 19D is hereby further amended by striking the definition of “skilled nursing care” and inserting in place thereof the following definition:-

"Skilled nursing care", the skilled services described in 130 CMR 456.409 or any successor regulation.

SECTION 4. Section 2 of said chapter 19D of the General Laws, as appearing in the 2022 Official Edition, is hereby amended by striking out clauses (v) and (vi) and inserting in place thereof the following 2 clauses:-

(v) provide services to residents in accordance with service plans developed through a process by which staff of the residence discuss the service plan and the needs of the resident with the resident and their representative or designee, and the resident’s authorized medical professional if that resident is receiving basic health services, in such a way that the consequences of a decision, including any inherent risk, are understood by all parties and reviewed periodically in conjunction with the service plan, taking into account changes in the resident's status and the ability of the residence to respond accordingly, and as set forth in section 12;

(vi) coordinate and provide personal services, basic health services, and other services required under service plans as set forth in section 12;

SECTION 5. Said chapter 19D, as so appearing, is hereby further amended by striking out section 3 and inserting in place thereof the following section:-

Section 3. (a) No person shall advertise, operate or maintain an assisted living residence without the certification required under this chapter; provided, however, that the provisions of this chapter shall not apply to such entities for the original facilities and services for which said entities were originally licensed or organized to provide. Assisted living residences may be sponsored by the following entities:

(1) convalescent homes, licensed nursing homes, licensed rest homes, charitable homes for the aged or intermediate care facilities for persons with an intellectual disability licensed pursuant to section 71 of chapter 111;

(2) hospices licensed pursuant to the provisions of section 57D of chapter 111;

(3) facilities providing continuing care to residents as defined by section 76 of chapter;

(4) congregate housing authorized by section 39 of chapter 121B or participants in the department’s congregate housing program;

(5) group homes or supported living programs operating under contract with the department of mental health, the rehabilitation commission or the department of developmental services; or

(6) housing operated for only those duly ordained priests, or for the of the religious orders of the Roman Catholic church in their own locations, buildings, residences or headquarters to provide care, shelter, treatment and medical assistance for any of the said duly ordained priests or members of the said religious order.

(b) The provisions of this chapter shall not apply to any residential premises available for lease by elderly or disabled individuals, which is financed or subsidized in whole or in part by local, state or federal housing programs established primarily to develop or operate housing or both rather than to provide housing and personal services in combination; provided, that such premises are not currently licensed under chapter 111.

SECTION 6. Said chapter 19D of the General Laws is hereby further amended by striking out section 4 and inserting in place thereof the following section:-

Section 4. (a) The department shall issue for a term of 2 years, and shall renew for like terms, a certification, subject to corrective action, modification, suspension, or revocation by it for cause, to any person whom it reasonably determines to meet the regulatory requirements promulgated by the department in accordance with this chapter. Such certification shall not be transferable or assignable and shall be issued only to the person and for the premises named in the application. Such certification shall indicate whether the residence has been approved to provide basic health services. The department shall issue a certificate, which shall be posted by the residence in a conspicuous place on the approved premises.

(b) Upon applying for initial certification or certification renewal, an applicant shall pay the department a fee based on the number of units at the assisted living residence. Said fee for initial application and renewal shall be established by the secretary of administration and finance pursuant to the provisions of section 3B of chapter 7; provided, however, that a minimum fee shall be established notwithstanding the number of units at the residence; and provided further, that said fees are sufficient to support the entire cost of the department’s administration of this chapter. Monies collected from said fee may be appropriated for the purpose of supporting said administration.

(c) Notwithstanding subsection (b), no fees, including minimum fees, for initial certification or certification renewal shall be due from any provider for assisted living units created under the HUD Assisted Living Conversion Program.

(d) If an application for renewal is filed at least 30 days before the stated expiration date of the certification, such certification shall not expire on such date but the assisted living residence shall be deemed to be certified until such time as the department may notify the sponsor that the application for renewal has been denied.

(e) Each applicant for initial certification shall file with the department an operating plan that includes the following information:

(1) the number of units for which certification is sought and the number of residents per unit;

(2) the location of resident units, common spaces and egresses by floor;

(3) the base fee to be charged for each such unit;

(4) the services to be offered, including basic health services if the assisted living residence intends to seek certification to offer such services, and arrangements for providing such services, including linkages with hospital and nursing facilities if any;

(5) the number of staff to be employed in the operation of said residence;

(6) such other information as the department may reasonably require or the applicant may choose to provide as affirmative evidence of ability to comply with the regulations and provisions of this chapter.

(f) Residences may opt to seek certification by the department to provide basic health services; provided, that they offer all such services defined by this chapter; and provided further, that residences offering basic health services shall in no way restrict resident choice in the delivery of said services by third party providers. A residence may not provide basic health services without including in its operating plan for department approval a detailed description of:

(1) its proposed administrative and operational structure to ensure the safe and effective provision of basic health services and meet the needs of its residents, including but not limited to steps taken to provide adequate support and training to licensed practical nurses and registered nurses who shall provide such care;

(2) how it intends to comply with the requirements established under this chapter and the regulations promulgated thereunder, which shall, at a minimum, include: (i) qualifications and training for staff; and (ii) effective policies and procedures to ensure the availability of adequate supplies necessary for the safe provision of basic health services and the safe administration and secure storage of medications.

The residence shall submit a revised operating plan to the department in the event of a change in the scope of basic health services offered to residents.

(g) Applicants and sponsors shall file all material change to the assisted living residence’s operating plans prior to the change’s effective date and as may otherwise be required by the department. A sponsor shall file annually, on a date established by and on a form prescribed by the department, a statement and a professional opinion prepared by a certified public account or comparable reviewer indicating whether the assisted living residence is in sound fiscal condition and is maintaining sufficient cash flow and reserves to meet the requirements of the service plans established for its residents.

(h) Each applicant for initial certification and each sponsor applying for renewal of certification shall disclose the name and address of each officer, director and trustee, and the names and addresses of limited partners or shareholders with more than 5 per cent interest in the assisted living residence. The applicant or the sponsor shall furnish assurances that none of such individuals 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 an assisted living residence; and the applicant shall list, for each such individual, all multifamily housing or health care facilities or providers in the commonwealth or in other states in which she or he has been or is an officer, director, trustee, or general partner.

(i) With respect to an applicant or sponsor who has or has had within the previous 5 years before the date of such application an interest in an entity licensed under chapter 111, or a medical provider licensed under other applicable state statutes, or a home health agency certified under Title XVIII of the Social Security Act, as amended, the applicant shall furnish evidence from the department of public health that such facility or agency has substantially met applicable criteria for licensure or certification and, if applicable, has corrected all cited deficiencies without delicensure or decertification being imposed. The department may in its discretion deny certification to any applicant hereunder who has directly or indirectly had an ownership interest in an entity licensed under chapter 111, or a medical provider licensed under other applicable state statutes, or a home health agency certified under Title XVIII of the Social Security Act, as amended, that

(i) has been the subject of a patient care receivership action;

(ii) has ceased to operate such an entity as a result of: (1) a settlement agreement arising from a decertification action; (2) a settlement agreement in lieu of a patient care receivership; or (3) a delicensure action or involuntary termination of participation in either the medical assistance program or the medicare program;

(iii) has been the subject of a substantiated case of patient abuse or neglect involving material failure to provide adequate protection or services for the resident in order to prevent such abuse or neglect; or

(iv) has over the course of its operation been cited for repeated, serious and willful violations of rules and regulations governing the operation of said health care facility that indicate a disregard for resident safety and an inability to responsibly operate an assisted living residence.

SECTION 7. Said chapter 19D is hereby further amended by striking out section 5 and inserting in place thereof the following section:-

Section 5. (a) The department or its authorized designee, shall make or cause to be made at least a biennial review of all assisted living residences. Said authorized designees shall not be sponsors of assisted living residences, and may include, but shall not be limited to, a non-profit agency, 1 or more home care corporations as defined in clause (c) of section 4 of chapter 19A, a combination of such home care corporations as determined by the department or a separate state agency. A review shall also be conducted prior to the issuance of the sponsor's initial certification, and may be conducted at any time the department has probable cause to believe that an assisted living residence is in violation of a regulation or provision of this chapter. The purpose of such reviews shall be to determine whether the assisted living residence is in compliance with the provisions of this chapter and the department's regulations. A review shall include an inspection of every part of the common areas of the assisted living residence and the living quarters of any resident, but only with the resident's prior consent, and an examination of the operating plan and any resident's service plan and written progress reports, but only with the resident’s consent. Said review shall also include resident satisfaction surveys. An inspector shall have authority to interview the sponsor, manager, staff and residents. Interviews with residents shall be confidential and conducted privately.

(b) The department or its authorized designee shall make or cause to be made at least an annual review of all assisted living residences certified to provide basic health services. Such reviews shall be conducted to determine whether the residence is in compliance with the provisions of this chapter and the department’s regulations concerning the provision of basic health services. Such a review shall include an inspection of records associated with the provision of basic health services, a review of staff qualifications and the residence’s operating plan. An inspector shall have authority to interview the sponsor, manager, staff and residents. Interviews with residents shall be confidential and conducted privately.

(c) Whenever an annual or biennial review is conducted, the department shall prepare a written report summarizing all pertinent information obtained during the review and shall not disclose confidential, or privileged information obtained in connection with such review. If the department finds that the applicant or the sponsor is in compliance with this chapter and applicable regulations, a copy of the report shall be mailed to the applicant or the sponsor within 10 days after the review of the assisted living residence. If the department finds that the applicant or the sponsor is not in compliance with this chapter or regulations, a copy of the report shall be delivered to the sponsor together with a notice describing such noncompliance with particularity within 10 days after completion of the review of the assisted living residence. The applicant or the sponsor shall have the right to submit a written response to such notice within 10 days after receipt thereof. The department shall establish an administrative procedure by regulation for resolving disputes regarding findings prior to final departmental action. All completed reports, responses and notices of final action may be made available to the public at the department during business hours together with the responses of the applicants or the sponsors thereto.

SECTION 8. Said chapter 19D is hereby further amended by striking out section 6 and inserting in place thereof the following section:-

Section 6. (a) If the department determines a sponsor or applicant has failed or refused to comply with requirements established under this chapter or the regulations promulgated thereunder, the department may:

(1)deny an application for recertification;

(2)modify, suspend or revoke a certification; or

(3)issue a fine of not more than $500 for each day of such failure or refusal to comply.

(b) Notice of denial, revocation, suspension or modification and the sponsor's or applicant's right to an adjudicatory proceeding shall be governed by the provisions of chapter 30A.

SECTION 9. Section 8 of chapter 19D of the General Laws, as appearing in the 2022 Official Edition, is hereby amended by inserting after the word “residence”, in line 14, the following words:- ; provided that, making such a referral shall be a violation of chapter 93A.

SECTION 10. Section 10 of said chapter 19D, as so appearing, is hereby amended by striking out subsections (b) through (d), inclusive and inserting in place thereof the following 8 subsections:-

(b) The sponsor of the assisted living residence may provide or arrange for the provision of additional services, including the following:

(1) Barber/beauty services, sundries for personal consumption and other amenities.

(2) Local transportation for medical and recreational purposes.

(3) Assistance with and supervision of instrumental activities of daily living.

(4) Assistance to residents with accessing telehealth services.

(5) For all residents whose service plans so specify, basic health services by personnel meeting standards for professional qualifications and training set forth in the regulations.

(c) The sponsor may arrange for, but may not use assisted living residence staff for, unless such staff is licensed, the provision of basic health services or ancillary services for health-related care, such as physician, pharmacist, restorative therapies, podiatry, hospice or home health.

(d) No personnel of an assisted living residence shall control or manage the funds or property of an assisted living resident. If the resident is unable to manage their funds or property, money management and other financial arrangements should be made with an independent party.

(e) A residence certified to provide basic health services may provide, or arrange for the provision of, basic health services for assisted living residents, and shall administer such care and services in accordance with the requirements set forth within this chapter and regulations promulgated thereunder. A residence certified to provide basic health services may advertise, market and otherwise promote such services and inform all residents of the option to have such services provided by qualified third parties procured directly by the resident.

(f) The residence shall disclose to each resident the fees associated with provision of basic health services within the assisted living residence’s residency agreement and shall review such fees with the resident upon implementation and any revision to a service plan that includes provision of basic health services. The residence shall notify residents of any changes in fees in advance and in a timely manner. Residents who receive basic health services shall receive an additional service plan review on a quarterly basis. Residents shall have the opportunity to discontinue receiving basic health services from the residence upon written notice to the residence and shall not be charged a cancellation fee or a fee for services not provided due to discontinuation of the services.

(g) The department, in consultation with the department of public health, shall promulgate regulations governing the application, criteria for approval or disapproval of such application, and ongoing oversight of residences that elect to offer basic health services authorized in this section. The department may impose an annual fee on participating assisted living residences to pay for oversight of basic health services.

(h) To ensure patient safety and clinical competence in the application of subsections (e) to (g), inclusive, the department and the department of public health shall establish operating plan requirements for residences that opt to provide basic health services including a requirement that when a residence is offering basic health services to 1 or more residents, staff shall have access to a licensed practical nurse or registered nurse for consultation at all times and the nurse shall not be required to be on the premises. The department shall make available electronic copies of the required components of operating plans on the department’s website. The department shall conduct annual compliance reviews on the documentation created and maintained by assisted living residences for any assisted living resident who received basic health services within the previous 12-month period.

(i) No residence shall offer or provide basic health services without first being certified by the department. Any residence found to be in violation of this subsection shall be subject to a civil penalty of not more than $1,000 per day assessable by the superior court.

SECTION 11. Section 11 of said chapter 19D, as so appearing, is hereby amended by striking out, in lines 1 through 5, inclusive, the words: “No assisted living residence shall admit any resident who requires twenty-four hour skilled nursing supervision. No assisted living residence shall provide, or admit or retain any resident in need of skilled nursing care unless all of the following are the case” and inserting in its place the following words:- No assisted living residence shall admit any resident who requires 24-hour skilled nursing with the exception of residents who elect to receive basic health services, either from residences that are certified to provide such services, or from qualified third parties. No assisted living residence shall provide, or admit or retain any resident in need of skilled nursing care, with the exception of residents who elect to receive basic health services, unless all of the following are the case.

SECTION 12. Section 15 of said chapter 19D, as so appearing, is hereby amended by striking out subsection (c) and inserting in place thereof the following subsection:-

(c) No assisted living residence shall discharge, discipline, discriminate or otherwise retaliate against an employee of such residence who, in good faith, files a complaint with or provides information to the department. No assisted living residence shall discriminate or retaliate against a resident, party or entity who, in good faith, files a complaint with or provides information to the department. Any assisted living residence in violation of this section shall be liable to the person so retaliated against by a civil action for up to treble damages, costs and attorney’s fees.

SECTION 13. Said chapter 19D of the General Laws, as appearing in the 2020 Official Edition, is hereby further amended by adding the following section:-

Section 19. The department shall promulgate regulations necessary to implement the requirements of this chapter. Such regulations shall include the establishment of standards concerning the education, training and experience of the manager and residence staff, including the service coordinator.

SECTION 14. Notwithstanding any general or special law to the contrary, the executive office shall report to the house and senate committees on ways and means, not later than 90 days after the effective date of this act, on the availability of a waiver and, if applicable, the estimated net state cost of a waiver that would allow individuals qualifying for Medicaid and at risk of entering a nursing home to reside in a certified assisted living residence. The executive office of health and human services may request a waiver from the federal Centers for Medicare and Medicaid Services to allow individuals qualifying for Medicaid and at risk of entering a nursing home to reside in a certified assisted living residence.