Bill S.391

SENATE DOCKET, NO. 2134 FILED ON: 1/20/2023

SENATE . . . . . . . . . . . . . . No. 391

By Mr. Montigny, a petition (accompanied by bill, Senate, No. 391) of Mark C. Montigny, Jack Patrick Lewis, Paul A. Schmid, III, Patricia D. Jehlen and others for legislation to provide transparency and accountability of nursing home ownership. Elder Affairs.

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 providing transparency and accountability of nursing home ownership.

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 111 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out section 71 and inserting in place thereof the following section:-

Section 71. For purposes of this section and sections 71A ½ to 73, 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 hitherto the department of public welfare 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 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); which is not both owned and operated by a state agency; and which 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, a convalescent or nursing home, an infirmary maintained in a town, an intermediate care facility for persons with an intellectual disability or a rest home.

“Owner”, any person owning 5 per cent or more of, with an ownership interest of 5 per cent or more of, or with a controlling interest in an applicant, potential transferee or the real property on which a long-term care facility is located.

“Person”, an individual, a 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.

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 two 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 convalescent or nursing home and each intermediate care facility for persons with an intellectual disability shall be inspected at least once a year.

No license shall be issued to establish or maintain an intermediate care facility for persons with an intellectual disability, unless there is a determination by the department 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 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.

No license shall be issued to an applicant and no potential transferee may submit an application for a license 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 criminal or civil history of the applicant or the potential transferee, including their respective owners, which shall include certification by the department of criminal justice information services and which may include a review of any pending or settled litigation or other court proceedings in the commonwealth and in other states;

(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, the applicant or potential transferee shall upon the filing of a written request with the department be afforded 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. Promptly 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. Changes include, but are not limited to, changes in financial status, such as filing for bankruptcy, any default under a lending agreement or lease, the appointment of a receiver or the recording of any lien.

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 a licensee shall notify the department in writing of the name of and provide contact information for the proposed management company and any other information on the management company and its personnel that may be reasonably requested by the department. Any such engagement must be pursuant to a written agreement between the licensee and the management company. Such written agreement shall include a requirement that the management company and its personnel shall 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.

With respect to a license issued as a result of a transfer of operations, the department shall not reduce the number of beds that were on the license held by the former licensee, unless the public safety requires it.

No license shall be issued hereunder unless there shall be first submitted to the department by the authorities in charge of the long-term care facility with respect to each building occupied by residents (1) 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 (2) 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. No license shall be issued by the department until issuance of an approved certificate of inspection, as required in this section.

Nothing in this section or in section 72 or 73 of this chapter 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.

For cause, the department may limit, restrict, suspend or revoke the license. Grounds for cause on which the department may take such action shall include failure or inability to provide adequate care to residents, failure to maintain substantial compliance with applicable statutes, rules and regulations or 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 one 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. Failure of the department to grant, deny or otherwise act upon any such written request within seven days of its receipt of such a request shall be deemed a denial of the request.

Upon a written request by a licensee who is aggrieved by the revocation of a 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 under 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.

In the case of new construction, or major addition, alteration, or repair with respect 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, no license to establish or maintain and operate a long-term care facility shall be issued by the department 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.

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 person who owns or has an ownership or control interest in the applicant or potential transferee or in the real property on which the long-term care facility is located. As used herein, the phrase ''person with an ownership or control interest'' shall have the definition set forth in 42 USC Sec. 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 2. Said chapter 111, as so appearing, 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 of this chapter, 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 through 73 of this chapter 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 through 73. An aggrieved licensee may pursue the remedies available to it under such sections.

In addition, if the licensee fails to maintain substantial 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 is subject to the department’s approval, such approval not to be unreasonably withheld. Any such engagement of a temporary manager would be for a period of not less than 6 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.

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.”; and

SECTION 3. Said chapter 111, as so appearing, 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 of this chapter, or whoever being licensed under said section 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.

Notwithstanding the above paragraph, whoever violates any rule or regulation made pursuant to sections 71, 71C, 72, or 72C shall be punished by such fine not to exceed $23,989, 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 him, 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. Fines collected pursuant to this paragraph shall be deposited into the Long-Term Care Facility Quality Improvement Fund established pursuant to section 2UUUU of chapter 29 and shall not revert to the General Fund. A failure to pay the fine imposed by this section shall be a violation of this section.

Name:	District/Address:
Mark C. Montigny	Second Bristol and Plymouth
Jack Patrick Lewis	7th Middlesex	1/31/2023
Paul A. Schmid III	8th Bristol	3/2/2023
Patricia D. Jehlen	Second Middlesex	3/2/2023
Christopher Hendricks	11th Bristol	3/2/2023