SENATE DOCKET, NO. 1244 FILED ON: 1/19/2023
SENATE . . . . . . . . . . . . . . No. 379
The Commonwealth of Massachusetts
Patricia D. Jehlen
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act to improve quality and oversight of long-term care.
Patricia D. Jehlen
Thomas M. Stanley
Joanne M. Comerford
Hampshire, Franklin and Worcester
Jack Patrick Lewis
Susannah M. Whipps
James K. Hawkins
David Paul Linsky
Rodney M. Elliott
Michael O. Moore
James C. Arena-DeRosa
Michael D. Brady
Second Plymouth and Norfolk
James B. Eldridge
Middlesex and Worcester
Anne M. Gobi
Worcester and Hampshire
David Henry Argosky LeBoeuf
Mark C. Montigny
Second Bristol and Plymouth
Paul W. Mark
Berkshire, Hampden, Franklin and Hampshire
Jacob R. Oliveira
Hampden, Hampshire and Worcester
Patrick M. O'Connor
First Plymouth and Norfolk
Rita A. Mendes
Sal N. DiDomenico
Middlesex and Suffolk
SENATE DOCKET, NO. 1244 FILED ON: 1/19/2023
SENATE . . . . . . . . . . . . . . No. 379
By Ms. Jehlen, a petition (accompanied by bill, Senate, No. 379) of Patricia D. Jehlen, Thomas M. Stanley, Joanne M. Comerford, Jack Patrick Lewis and other members of the General Court for legislation to improve quality and oversight of long-term care. Elder Affairs.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 4780 OF 2021-2022.]
The Commonwealth of Massachusetts
In the One Hundred and Ninety-Third General Court
An Act to improve quality and oversight of long-term care.
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 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. Each grant may include 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. Chapter 111 of the General Laws is hereby further amended by striking out section 71 and inserting in place thereof the following section:-
Section 71. (a) For purposes of this section and sections 71A½ to 73, inclusive, the following terms shall have the following meanings unless the context or subject matter clearly requires otherwise:
“Applicant”, any person who applies to the department for a license to establish or maintain and operate a long-term care facility.
“Charitable home for the aged”, any institution, however named, conducted for charitable purposes and maintained for the purpose of providing a retirement home for elderly persons and which may provide nursing care within the home for its residents.
“Convalescent or nursing home or skilled nursing facility”, any institution, however named, whether conducted for charity or profit, which is advertised, announced or maintained for the express or implied purpose of caring for four or more persons admitted thereto for the purpose of nursing or convalescent care.
“Infirmary maintained in a town”, an infirmary, which until now the department of transitional assistance has been directed to visit by section 7 of chapter 121.
“Intermediate care facility for persons with an intellectual disability”, any institution, however named, whether conducted for charity or profit, which: (i) is advertised, announced or maintained for the purpose of providing rehabilitative services and active treatment to persons with an intellectual disability or persons with related conditions, as defined in regulations promulgated pursuant to Title XIX of the federal Social Security Act (P.L. 89–97); (ii) is not both owned and operated by a state agency; and (iii) makes application to the department for a license for the purpose of participating in the federal program established by said Title XIX.
“License”, an initial or renewal license to establish or maintain and operate a long-term care facility issued by the department.
“Licensee”, a person to whom a license to establish or maintain and operate a long-term care facility has been issued by the department.
“Long-term care facility”, a charitable home for the aged, convalescent or nursing home, skilled nursing facility, infirmary maintained in a town, intermediate care facility for persons with an intellectual disability or rest home.
“Owner”, any person with an ownership interest of 5 per cent or more, or with a controlling interest in an applicant, potential transferee or the real property on which a long-term care facility is located; provided, that the real property owner is related to the applicant or potential transferee as defined in Section 413.17(b) of Title 42 of the Code of Federal Regulations.
“Person”, an individual, trust, estate, partnership, association, company or corporation.
“Potential transferee”, a person who submits to the department a “notice of intent to acquire” the facility operations of a currently operating long-term care facility.
“Rest home”, any institution, however named, which is advertised, announced or maintained for the express or implied purpose of providing care incident to old age to four or more persons who are ambulatory and who need supervision.
“Transfer of facility operations”, a transfer of the operations of a currently operating long-term care facility from the current licensee of the long-term care facility to a potential transferee, pending licensure, pursuant to a written “transfer of operations” agreement.
(b) To each applicant it deems suitable and responsible to establish or maintain and operate a long-term care facility and which meets all other requirements for long-term care facility licensure, the department shall issue for a term of 2 years, and shall renew for like terms, a license, subject to the restrictions set forth in this section or revocation by it for cause; provided, however, that each long-term care facility shall be inspected at least once a year.
The department shall not issue license to establish or maintain an intermediate care facility for persons with an intellectual disability unless the department determines that there is a need for such facility at the designated location; provided, however, that in the case of a facility previously licensed as an intermediate care facility for persons with an intellectual disability in which there is a change in ownership, no such determination shall be required; and provided further, that in the case of a facility previously licensed as an intermediate care facility for persons with an intellectual disability in which there is a change in location, such determination shall be limited to consideration of the suitability of the new location.
In the case of the transfer of facility operations of a long-term care facility, a potential transferee shall submit a “notice of intent to acquire” to the department at least 90 days prior to the proposed transfer date. The notice of intent to acquire shall be on a form supplied by the department and shall be deemed complete upon submission of all information which the department requires on the notice of intent form and is reasonably necessary to carry out the purposes of this section. In the case of the transfer of facility operations, a potential transferee shall provide notice to the current staff of the facility, and shall provide notice of the potential transferee’s plans regarding retaining the facility workforce and recognizing any current collective bargaining agreements to the labor organizations that represents the facility’s workforce at the time the potential transferee submits a “notice of intent to acquire”.
No license shall be issued to an applicant or potential transferee unless the department makes a determination that the applicant or potential transferee is responsible and suitable for licensure.
For purposes of this section, the department’s determination of responsibility and suitability shall be limited to the following factors:
(i) the civil litigation history of the applicant or potential transferee, including litigation related to the operation of a long-term care facility, such as quality of care, safety of residents or staff, employment and labor issues, fraud, unfair or deceptive business practices and landlord/tenant issues; and the criminal history of the applicant or the potential transferee, including their respective owners, which may include pending or settled litigation or other court proceedings in the commonwealth and in other states including federal jurisdiction. Any information related to criminal or civil litigation obtained by the department pursuant to this section shall be confidential and exempt from disclosure under clause Twenty-sixth of section 7 of chapter 4 and chapter 66;
(ii) the financial capacity of the applicant or potential transferee, including their respective owners, to establish or maintain and operate a long-term care facility, which may include any recorded liens and unpaid fees or taxes in the commonwealth and in other states;
(iii) the history of the applicant or potential transferee, including their respective owners, in providing long-term care in the commonwealth, measured by compliance with applicable statutes and regulations governing the operation of long-term care facilities; and
(iv) the history of the applicant or potential transferee, including their respective owners, in providing long-term care in states other than the commonwealth, if any, measured by compliance with the applicable statutes and regulations governing the operation of long-term care facilities in said states.
With respect to potential transferees, upon determination by the department that a potential transferee is responsible and suitable for licensure, the potential transferee may file an application for a license. In the case of a potential transfer of facility operations, the filing of an application for a license shall have the effect of a license until the department takes final action on such application.
If the department determines that an applicant or potential transferee is not suitable and responsible, the department’s determination shall take effect on the date of the department’s notice. In such cases and upon the filing of a written request, the department shall afford the applicant or potential transferee an adjudicatory hearing pursuant to chapter 30A.
During the pendency of such appeal, the applicant or potential transferee shall not operate the facility as a licensee, or, without prior approval of the department, manage such facility.
Each applicant, potential transferee and licensee shall keep all information provided to the department current. After the applicant, potential transferee or licensee becomes aware of any change to information related to information it provided or is required to provide to the department, such person shall submit to the department written notice of the changes as soon as practicable and without unreasonable delay. Changes include, but are not limited to, changes in financial status, such as filing for bankruptcy, any default under a lending agreement or under a lease, the appointment of a receiver or the recording of any lien. Failure to provide timely notice of such change may be subject to the remedies or sanctions available to the department under sections 71 to 73, inclusive.
An applicant, potential transferee or licensee and their respective owners shall be in compliance with all applicable federal, state and local laws, rules and regulations.
Prior to engaging a company to manage the long-term care facility, hereinafter a “management company”, a licensee shall notify the department in writing of the proposed management company’s name, contact information and any other information on the management company and its personnel that may be reasonably requested by the department. The licensee shall memorialize any such engagement in a written agreement with the management company. Such written agreement shall include a requirement that the management company and its personnel comply with all applicable federal, state and local laws, regulations and rules. Promptly after the effective date of any such agreement, the licensee shall provide to the department a copy of the valid, fully executed agreement. Any payment terms included in the agreement shall be confidential and exempt from disclosure under clause Twenty-sixth of section 7 of chapter 4 and chapter 66.
The department shall not issue a license unless the authorities in charge of the long-term care facility first submit to the department, with respect to each building occupied by residents: (i) a certificate of inspection of the egresses, the means of preventing the spread of fire and apparatus for extinguishing fire, issued by an inspector of the office of public safety and inspections of the division of professional licensure; provided, however, that with respect to convalescent or nursing homes only, the division of health care quality of the department of public health shall have sole authority to inspect for and issue such certificate; and (ii) a certificate of inspection issued by the head of the local fire department certifying compliance with the local ordinances.
Any applicant who is aggrieved, on the basis of a written disapproval of a certificate of inspection by the head of the local fire department or by the office of public safety and inspections of the division of professional licensure, may, within 30 days from such disapproval, appeal in writing to the division of professional licensure. With respect to certificates of inspection that the division of health care quality of the department of public health has the sole authority to issue, an applicant may, within 30 days from disapproval of a certificate of inspection, appeal in writing to the department of public health only. Failure to either approve or disapprove within 30 days after a written request by an applicant shall be deemed a disapproval.
If the division of professional licensure or, where applicable, the department of public health approves the issuance of a certificate of inspection, it shall forthwith be issued by the agency that failed to approve. If said department disapproves, the applicant may appeal therefrom to the superior court. Failure of said department to either approve or disapprove the issuance of a certificate of inspection within 30 days after receipt of an appeal shall be deemed a disapproval. The department shall not issue a license until issuance of an approved certificate of inspection, as required in this section.
Nothing in this section or in sections 72 or 73 shall be construed to revoke, supersede or otherwise affect any laws, ordinances, by-laws, rules or regulations relating to building, zoning, registration or maintenance of a long-term care facility.
(c) For cause, the department may limit, restrict, suspend or revoke a license. Grounds for cause on which the department may take such action shall include: (i) substantial or sustained failure to provide adequate care to residents; (ii) substantial or sustained failure to maintain compliance with applicable statutes, rules and regulations; (iii) or the lack of financial capacity to maintain and operate a long-term care facility. Limits or restrictions include requiring a facility to limit new admissions. Suspension of a license includes suspending the license during a pending license revocation action, or suspending the license to permit the licensee a period of time, not shorter than 60 days, to wind down operations, and discharge and transfer, if applicable, all residents.
The department may, when public necessity and convenience require, or to prevent undue hardship to an applicant or licensee, under such rules and regulations as it may adopt, grant a temporary provisional or probationary license under this section; provided, however, that no such license shall be for a term exceeding 1 year.
With respect to an order to limit, restrict or suspend a license, within 7 days of receipt of the written order, the licensee may file a written request with the department for administrative reconsideration of the order or any portion thereof.
Upon a written request by a licensee who is aggrieved by the revocation of a license or the adoption of a probationary license, or by an applicant who is aggrieved by the refusal of the department to renew a license, the commissioner and the council shall hold a public hearing, after due notice, and thereafter they may modify, affirm or reverse the action of the department; provided, however, that the department may not refuse to renew and may not revoke the license of a long-term care facility until after a hearing before a hearings officer, and any such applicant so aggrieved shall have all the rights provided in chapter 30A with respect to adjudicatory proceedings.
In no case shall the revocation of such a license take effect in less than 30 days after written notification by the department to the licensee.
The fee for a license to establish or maintain or operate a long-term care facility shall be determined annually by the commissioner of administration pursuant to the provision of section 3B of chapter 7, and the license shall not be transferable or assignable and shall be issued only for the premises named in the application.
Nursing institutions licensed by the department of mental health, or the department of developmental services for persons with intellectual disabilities shall not be licensed or inspected by the department of public health. The inspections herein provided shall be in addition to any other inspections required by law.
(d) In the case of the new construction of, or major addition, alteration or repair to, any facility subject to this section, preliminary architectural plans and specifications and final architectural plans and specifications shall be submitted to a qualified person designated by the commissioner. Written approval of the final architectural plans and specifications shall be obtained from said person prior to said new construction, or major addition, alteration or repair.
Notwithstanding any of the foregoing provisions of this section, the department shall not issue a license to establish or maintain and operate a long-term care facility unless the applicant for such license submits to the department a certificate that each building to be occupied by patients of such convalescent or nursing home or skilled nursing facility meets the construction standards of the state building code, and is of at least type 1–B fireproof construction; provided, however, that this paragraph shall not apply in the instance of a transfer of facility operations of a convalescent or nursing home or skilled nursing facility whose license had not been revoked as of the time of such transfer; and provided, further, that a public medical institution as defined under section 2 of chapter 118E, which meets the construction standards as defined herein, shall not be denied a license as a nursing home under this section because it was not of new construction and designed for the purpose of operating a convalescent or nursing home or skilled nursing facility at the time of application for a license to operate a nursing home. An intermediate care facility for persons with an intellectual disability shall be required to meet the construction standards established for such facilities by Title XIX of the Social Security Act (P.L. 89–97) and any regulations promulgated pursuant thereto, and by regulations promulgated by the department.
(e) Every applicant for a license and every potential transferee shall provide on or with its application or notice of intent to acquire a sworn statement of the names and addresses of any owner as defined in this section. In this section, the phrase ‘‘person with an ownership or control interest’’ shall have the definition set forth in 42 USC § 1320a–3 of the Social Security Act and in regulations promulgated hereunder by the department.
The department shall notify the secretary of elder affairs forthwith of the pendency of any proceeding of any public hearing or of any action to be taken under this section relating to any convalescent or nursing home, rest home, infirmary maintained in a town or charitable home for the aged. The department shall notify the commissioner of mental health forthwith of the pendency of any proceeding, public hearing or of any action to be taken under this section relating to any intermediate care facility for persons with an intellectual disability.
SECTION 4. Section 72 of said chapter 111 of the General Laws, as so appearing, is hereby amended by adding the following four paragraphs:-
The department shall establish regulations for the operation of small house nursing homes, herein defined as 1 or more units of a nursing home designed and modeled as a private home including residential kitchen and living area. Newly constructed small house nursing homes shall house no more than 14 individuals per unit, in resident rooms that accommodate not more than 2 residents per room, which are shared only at the request of a resident to accommodate a spouse, partner, family member or friend. All resident rooms shall contain a full private and accessible bathroom.
Regulations for small house nursing homes shall, to the extent practicable, prohibit the use of institutional features, including but not limited to nursing stations, medication carts, room numbers and wall-mounted licenses or certificates that could appropriately be accessed through other means.
Regulations for construction and physical plant standards should be based on the smaller size and limited number of residents served in small house nursing homes in comparison with traditional nursing facility units. In addition to development of construction and physical plant standards that support small house nursing homes, regulations shall support a staffing model small house nursing homes that allow for a universal worker approach to resident care that is organized to support and empower all staff to respond to the needs and desires of residents including cooking and meal preparation, and provides for consistent staff in each small house.
The executive office of health and human services shall develop an add-on to rates of payment for nursing facilities that develop small house nursing homes and meet criteria established by the executive office.
SECTION 5. Said chapter 111 is hereby further amended by striking out section 72E and inserting in place thereof the following section:-
Section 72E. The department shall, after every inspection by its agent made under authority of section 72, give the licensee of the inspected long-term care facility notice in writing of every violation of the applicable statutes, rules and regulations of the department found upon said inspection. With respect to the date by which the licensee shall remedy or correct each violation, hereinafter the “correct by date”, the department in such notice shall specify a reasonable time, not more than 60 days after receipt thereof, by which time the licensee shall remedy or correct each violation cited therein or, in the case of any violation which in the opinion of the department is not reasonably capable of correction within 60 days, the department shall require only that the licensee submit a written plan for the timely correction of the violation in a reasonable manner. The department may modify any nonconforming plan upon notice in writing to the licensee.
Absent good faith efforts to remedy or correct, failure to remedy or correct a cited violation by the agreed upon correct by date shall be cause to pursue or impose the remedies or sanctions available to it under sections 71 to 73, inclusive, unless the licensee shall demonstrate to the satisfaction of the department or the court, as the case may be, that such failure was not due to any neglect of its duty and occurred despite an attempt in good faith to make correction by the agreed upon correct by date. The department may pursue or impose any remedy or sanction or combination of remedies or sanctions available to it under said sections 71 to 73, inclusive. An aggrieved licensee may pursue the remedies available to it under said sections 71 to 73, inclusive.
In addition, if the licensee fails to maintain substantial or sustained compliance with applicable statutes, rules and regulations, in addition to imposing any of the other remedies or sanctions available to it, the department may require the licensee to engage, at the licensee’s own expense, a temporary manager to assist the licensee with bringing the facility into substantial compliance and with sustaining such compliance. Such manager shall be subject to the department’s approval, provided that such approval not be unreasonably withheld. Any such engagement of a temporary manager shall be for a period of not less than 3 months and shall be pursuant to a written agreement between the licensee and the management company. A copy of such agreement shall be provided by the licensee to the department promptly after execution. Any payment terms included in the agreement shall be confidential and exempt from disclosure under clause twenty-sixth of section 7 of chapter 4 and chapter 66.
Nothing in this section shall be construed to prohibit the department from enforcing a statute, rule or regulation, administratively or in court, without first affording formal opportunity to make correction under this section, where, in the opinion of the department, the violation of such statute, rule or regulation jeopardizes the health or safety of residents or the public or seriously limits the capacity of a licensee to provide adequate care, or where the violation of such statute, rule or regulation is the second such violation occurring during a period of 12 full months.
SECTION 6. Section 72K of said chapter 111 of the General Laws, as so appearing, is hereby amended by striking out subsection (b) and inserting in place thereof the following 2 subsections:-
(b) The attorney general may file a civil action against a person who commits abuse, mistreatment or neglect of a patient or resident or who misappropriates patient or resident property or against a person who wantonly or recklessly permits or causes another to commit abuse, mistreatment or neglect of a patient or resident or who misappropriates patient or resident property. The civil penalty for such abuse, mistreatment, neglect or misappropriation shall not exceed: $25,000 if no bodily injury results; $50,000 if bodily injury results; $100,000 if sexual assault or serious bodily injury results; and $250,000 if death results. Section 60B of chapter 231 shall not apply to an action brought by the attorney general pursuant to this section. Nothing in this section shall preclude the filing of any action brought by the attorney general or a private party pursuant to chapter 93A or any action by the department pursuant to this chapter.
(c) Notwithstanding section 5 of chapter 260, the attorney general may file a civil action only within four years next after an offense is committed.
SECTION 7. Said chapter 111 of the General Laws is hereby further amended by inserting after section 72BB the following 3 sections:-
Section 72CC. (a) For purposes of this section, the following terms shall, unless the context clearly requires otherwise, have the following meanings:
“Cohorting”, the practice of grouping patients who are or are not colonized or infected with the same organism in order to confine their care to one area and prevent contact with other patients.
“Endemic level”, the usual level of given disease in a geographic area.
“Isolating”, the process of separating persons colonized or infected with a communicable disease from those who are not colonized or infected with a communicable disease.
“Outbreak”, any unusual occurrence of disease or any disease above background or endemic levels.
“Long-term care facility”, a charitable home for the aged, convalescent or nursing home or skilled nursing facility, an infirmary maintained in a town, an intermediate care facility for persons with an intellectual disability or a rest home.
(b) Notwithstanding any general or special law to the contrary, the department shall require long-term care facilities to develop an outbreak response plan which shall be customized to the facility. Each facility’s plan shall include, but not be limited to:
(1) a protocol for isolating and cohorting infected and at-risk patients in the event of an outbreak of a contagious disease until the cessation of the outbreak;
(2) clear policies for the notification of residents, residents’ families, visitors, and staff in the event of an outbreak of a contagious disease at a facility;
(3) information on the availability of laboratory testing, protocols for assessing whether facility visitors are colonized or infected with a communicable disease, protocols to require those staff who are colonized or infected with a communicable disease to not present at the facility for work duties and processes for implementing evidence-based outbreak response measures;
(4) policies to conduct routine monitoring of residents and staff to quickly identify signs of a communicable disease that could develop into an outbreak; and
(5) policies for reporting outbreaks to public health officials in accordance with applicable laws and regulations.
(c) (1) In addition to the requirements set forth in subsection (b), the department shall require long-term care facilities to include in their outbreak response plan, written policies to meet staffing, training and facility demands during an infectious disease outbreak and to successfully implement the outbreak response plan, including either employing on a full-time or part-time basis, or contracting with on a consultative basis, the following individuals:
(a) an individual certified by the Certification Board of Infection Control & Epidemiology, Inc.; or
(b) a physician who has completed an infectious disease fellowship.
(2) The department shall verify that the outbreak response plans submitted by long-term care facilities are in compliance with the requirements of subsection (b) and with the requirements of paragraph (1) of this subsection.
(d) (1) Each long-term care facility that submits an outbreak response plan to the department pursuant to subsection (c) shall review the plan on an annual basis.
(2) If a long-term care facility makes any material changes to its outbreak response plan, the facility shall submit to the department an updated outbreak response plan within 30 days. The department shall, upon receiving an updated outbreak response plan, verify that the plan is compliant with the requirements of subsections (b) and (c).
(e) The department shall promulgate regulations necessary to implement this section.
Section 72DD. The department, through its division of health care facility licensure and certification, shall establish and implement a prescribed process and program for providing training and education to long term care providers licensed by the department under section 72. The training and education programs may include: infection prevention and control; development, implementation, adherence and review of comprehensive resident care plans; falls prevention; procedures to ensure timely notification of changes in a resident’s condition to the resident’s primary care physician; the prevention of abuse and neglect; development and implementation of a program to minimize the danger of workplace violence to employees; and review of the survey and inspection process. The department shall consult with the industry trade associations, before requiring any new regulatory guidance, regulation, interpretation, program letter or memorandum or any other materials used in surveyor training to survey licensed providers.
The process, training, and education shall include, but not be limited to, the following:
(i) annual training for long term care facilities on the licensure and certification process. This training shall include, but not be limited to, the department’s interpretation of the general laws, rules, regulations, procedures and policies concerning the licensure and certification process for such long-term care facilities;
(ii) biannual training of long-term care providers on the most frequently cited deficiencies, identified deficiency trends, both state and federal, and best practices to ensure resident quality of care; and
(iii) training of long-term care providers and the department survey inspectors jointly on the department's new expectations. Trainings shall be interactive, with the sharing of information and recommendations between long term care facilities and the department on issues and topics.
Section 72EE. (a) For the purposes of this section, the following terms shall, unless the context clearly requires otherwise, have the following meanings:
“Religious and recreational activities”, any religious, social or recreational activity that is consistent with the resident’s preferences and choosing, regardless of whether the activity is coordinated, offered, provided or sponsored by facility staff or by an outside activities provider.
“Resident”, a person who resides in a long-term care facility.
“Long-term care facility”, a charitable home for the aged, convalescent or nursing home or skilled nursing facility, an infirmary maintained in a town, an intermediate care facility for persons with an intellectual disability or a rest home.
(b) The department shall promulgate regulations necessary to encourage and enable residents of a long-term care facility to engage in in-person, face-to-face, verbal or auditory-based contact, communications and religious and recreational activities with others except when such in-person contact, communication or activities are prohibited, restricted or limited, as otherwise permitted by federal or state statute, rule or regulation. Said regulations shall include specific protocols and procedures to provide for residents of the facility who have disabilities that impede their ability to communicate, including, but not limited to, residents who are blind, deaf, have Alzheimer’s disease or other related dementias and residents who have developmental disabilities.
(c) The department may distribute civil monetary penalty funds, as approved by the federal Centers for Medicare and Medicaid Services, and any other available federal and state funds, upon request, to facilities for communicative technologies and accessories needed for the purposes of this section.
SECTION 8. Said chapter 111 is hereby further amended by striking out section 73 and inserting in place thereof the following section:-
Section 73. Whoever advertises, announces, establishes or maintains, or is concerned in establishing or maintaining a long-term care facility, or is engaged in any such business, without a license granted under section 71, or whoever being licensed under said section 71 violates any provision of sections 71 to 73, inclusive, shall for a first offense be punished by a fine of not more than $1,000, and for a subsequent offense by a fine of not more than $2,000 or by imprisonment for not more than two years.
Whoever violates any rule or regulation established under sections 71, 72 and 72C shall be punished by a fine, not to exceed $22,320, as the department may establish unless the department determines a higher amount is permitted pursuant to 42 CFR 488.438. If any person violates any such rule or regulation by allowing a condition to exist which may be corrected or remedied, the department shall order such person, in writing, to correct or remedy such condition, and if such person fails or refuses to comply with such order by the agreed upon correct by date, as defined in section 72E, each day after the agreed upon correct by date during which such failure or refusal to comply continues shall constitute a separate offense. A failure to pay the fine imposed by this section shall be a violation of this section.
SECTION 9. Section 14A of chapter 118E of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by adding the following paragraph:-
On a per resident basis, MassHealth shall reimburse nursing home facilities for up to and including 20 medical leave-of-absence days and shall reimburse the facilities for up to and including 10 nonmedical leave-of-absence days per year for MassHealth recipients; provided, that medical leave-of-absence days shall include an observation stay in a hospital in excess of 24 hours. No nursing home shall reassign a patient's bed during a leave of absence that is eligible for reimbursement.
SECTION 10. Said chapter 118E of the General Laws is further amended by adding the following section:-
Section 80. For the purpose of ensuring a living wage for nursing facility direct care staff, MassHealth shall enact regulations regarding standard payments from MassHealth to nursing facilities that establish a living wage for direct care staff of licensed nursing homes, including, but not limited to, certified nurse aides and housekeeping, laundry, dietary, plant operations and clerical staff. Such regulations shall ensure that such standard payments shall reimburse nursing facilities for the costs of paying a living wage, associated payroll benefits and related employee costs. MassHealth shall, subject to appropriation, adjust such payments with an inflation adjustment consistent with the annual unadjusted Skilled Nursing Facility Market Basket Update, as established by the Centers for Medicare & Medicaid Services in 42 C.F.R. § 413.337. MassHealth shall adopt all additional regulations and procedures necessary to carry out this section, provided, that such regulations shall include permissible use standards mandating that facilities shall expend these supplemental payments exclusively on direct care staff expenses, which shall be further defined in such regulations but that shall not include spending on temporary nursing staff, management staff or nursing facility administrators. Such additional regulations and procedures shall include: (i) mandated facility interim reporting to the executive office of health and human services on the ways in which the facility expects to spend; and (ii) mandated facility final reporting on the expenditure of payments received under this section, including audits and provisions that reconcile such expenditure reporting with the Direct Care Cost Quotient regulations. MassHealth shall submit to the house and senate committees on ways and means a report containing an analysis of funds expended under this program.
SECTION 11. (a) Notwithstanding any special or general law to the contrary, the center for health information and analysis, in consultation with MassHealth, the department of elder affairs, the department of public health and the health policy commission shall annually conduct an examination of cost trends and financial performance among nursing facilities, as defined by 957 CMR 7.02. The information shall be analyzed on an institution-specific and industry-wide basis. The examination shall also aggregate information collected on multiple skilled nursing facilities that are owned and operated by a single individual, trust, estate, partnership, association, company or corporation with an ownership interest of 5 per cent or more in the facilities’ operating license, management company, or associated real estate. The examination and report shall include, but not be limited to the collection and analysis of the following: (i) gross and net patient service revenues; (ii) other sources of operating and non-operating revenue; (iii) trends in relative price, payer mix, case mix, utilization and length of stay dating back to 2010; (iv) affiliations with other health care providers, including, but not limited to, preferred clinical relationships and partnerships; (v) categories of costs, including, but not limited to, general and administrative costs, nursing and other labor costs and salaries, building costs, capital costs and other operating costs; (vi) total spending on direct patient care as a percent of total operating expenses; (vii) operating and total margin; (viii) occupancy rates; and (ix) other relevant measures of financial performance and service delivery. These measures should distinguish long-term residents from short-stay residents where possible. The report and any policy recommendations shall be filed with the clerks of the house of representatives and the senate, the house of representatives and senate committees on ways and means and the joint committee on elder affairs no later than 6 months after the passage of this act.
(b) To determine affiliations between nursing facilities and other health care providers as required, the center for health information and analysis shall utilize ownership information submitted to the department of public health as part of the long-term care facility licensure determination process set forth in section 71 of chapter 111 of the General Laws. The department of public health shall provide such records as necessary for the provision of this section.
SECTION 12. Notwithstanding any general or special law to the contrary, the health policy commission shall conduct an analysis and issue a report on nursing personnel in long-term care facilities. The study shall consider the hours of care per resident per day required to prevent a substandard quality of care as defined by 42 CFR 488.301 and ensure sufficient staffing levels necessary to meet resident nursing care needs based on acuity, resident assessments, care plans, census and other relevant factors. This study shall also consider the effect of such staffing requirements on the long-term care industry including cost impact on long-term care facilities, satisfaction of the workforce and quality of care for residents.
The health policy commission shall submit to the clerks of the house of representatives and the senate, the house and senate committees on ways and means, the joint committee on healthcare financing and the joint committee on elder affairs the report, including any recommendations derived from the study within 180 days of the effective date of this act.
SECTION 13. Pursuant to section 72CC of section 111 of the General Laws, each long-term care facility shall submit its outbreak response plan to the department within 180 days of the effective date of this act.