Amendment #1 to H.3929

HOUSE . . . . . . . No. 4178

The Commonwealth of Massachusetts
______________________________________

HOUSE OF REPRESENTATIVES, November 14, 2023.

The committee on Ways and Means, to whom was referred the Bill to improve quality and oversight of long-term care (House, No. 3929), reports recommending that the same ought to pass with an amendment substituting therefor the accompanying bill (House, No. 4178).

For the committee,

AARON MICHLEWITZ.

FILED ON: 11/14/2023

HOUSE . . . . . . . . . . . . . . . No. 4178

The Commonwealth of Massachusetts

_______________

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

_______________

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 10 of the General Laws is hereby amended by inserting after section 35SSS the following section:-

SECTION 35TTT. (a) There shall be established and set up on the books of the commonwealth a separate fund known as the Long-Term Care Workforce and Capital Fund. The fund shall be administered by the secretary of health and human services in consultation with the advisory committee established pursuant to subsection (c). The secretary may use amounts credited to the fund to pay for: (i) the administration of the capital loan program pursuant to subsection (e); and (ii) the workforce training programs pursuant to subsection (d), including the: (A) program costs, tuition, books and fees related to the cost of education and training for participants in the programs; (B) costs related to obtaining an applicable license, including, but not limited to, examination and licensing fees; (C) stipends for program participants; and (D) stipends for childcare and transportation for program participants.

(b) The fund shall consist of: (i) any revenues or other financing sources directed to the fund by appropriation; (ii) 50 per cent of any amount recovered by the commonwealth and credited thereto in connection with civil actions brought pursuant to section 72K of chapter 111; (iii) bond revenues or other money authorized by the general court and specifically designated to be credited to the fund; (iv) any income derived from the investment of amounts credited to the fund or repayment of loans from the fund; (v) funds from public or private sources, including, but not limited to, gifts, federal or private grants, donations, rebates and settlements received by the commonwealth that are specifically designated to be credited to the fund; and (vi) all other amounts credited or transferred into the fund from any other source. The executive office of health and human services shall seek to maximize fund revenues through federal money, matching funds and grants. Any unexpended balances in the fund at the end of the fiscal year shall not revert to the General Fund and shall be available for expenditures in subsequent fiscal years. Any fiscal year-end balance in the fund shall be excluded from the calculation of the consolidated net surplus pursuant to section 5C of chapter 29. The fund shall not be subject to appropriation.

(c) There shall be an advisory committee that shall consist of the following members: the assistant secretary for MassHealth, or their designee, who shall serve as chair; the secretary of labor and workforce development, or their designee; the commissioner of public health, or their designee; and 2 persons to be appointed by the governor, 1 of whom shall be a representative of the Massachusetts Senior Care Association, Inc. and 1 of whom shall be a representative of Local 1199 Service Employees International Union.

(d) The secretary of health and human services, in consultation with the advisory committee, shall establish, and the executive office of health and human services shall administer, workforce training grant programs to:

(i) train new certified nurses’ aides to work in licensed long-term care facilities;

(ii) advance the skills of certified nurses’ aides, home health aides, homemakers and other entry-level workers in long-term care facilities to improve quality of care and improve worker access to and participation in a career pathway to become a licensed practical nurse; and

(iii) provide long-term care supervisory and leadership training, which shall consist of evidence-based supervisory training for the purposes of improving staff satisfaction, retaining staff and reducing staff turnover.

(e) The secretary of health and human services, in consultation with the advisory committee, shall establish a no interest or forgivable capital loan program for skilled nursing facilities to:

(i) support the development of specialized care units, including, but not limited to: (A) infectious disease isolation; (B) dementia special care; (C) degenerative neurological units; (D) geriatric psychiatry; (E) traumatic brain injury; (F) in-house dialysis treatment; (G) behavioral health and substance use disorder; and (H) bariatric patient care;

(ii) enable facilities to offset the costs of pay-go capital; and

(iii) support innovative projects, including, but not limited to: (A) converting of sections within skilled nursing facilities into affordable housing, veterans housing or assisted living units to accommodate individual needs of residents; (B) converting multi-bed rooms to single occupancy to enhance privacy and dignity; and (C) establishing voluntary skilled nursing facility reconfigurations, including, but not limited to, providing financial incentives to reduce capacity and balance supply and demand based on regional needs.

(f) Annually, not later than December 1, the secretary of health and human services shall report on the activities of the fund to the clerks of the house of representatives and the senate and to the house and senate committees on ways and means. The report shall include: (i) an accounting of expenditures made from the fund with a description of the authorized purpose of each expenditure; (ii) an accounting of amounts credited to the fund; and (iii) any unexpended balance remaining in the fund.

SECTION 2. Chapter 111 of the General Laws is hereby 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 words shall, unless the context clearly requires otherwise, have the following meanings:

“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.

“Cohorting”, the practice of grouping patients who: (i) are colonized or infected with the same organism in order to confine their care to 1 area and prevent contact with other patients; or (ii) are not colonized or infected with the same organism in order to confine their care to 1 area and prevent contact with other patients.

“Convalescent or nursing home”, any institution, however named, including a skilled nursing facility, whether conducted for profit or not for profit, which is advertised, announced or maintained for the express or implied purpose of caring for 4 or more persons admitted thereto for the purpose of nursing or convalescent care.

“Correct by date”, the date by which a licensee shall remedy or correct any violation discovered after an inspection by the department pursuant to section 72E.

“Endemic level”, the usual level of a given disease in a geographic area.

“Intermediate care facility for persons with an intellectual disability”, any institution, however named, that: (i) is conducted for charity or not for profit; (ii) 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, Public Law 89-97; (iii) is not both owned and operated by a state agency; and (iv) makes application to the department for a license for the purpose of participating in the federal program established by said Title XIX.

“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.

“License”, an initial or renewal license issued by the department and which permits the licensee to establish or maintain and operate a long-term care facility.

“Licensee”, a person permitted to establish or maintain and operate a long-term care facility through a license.

“Long-term care facility”, a charitable home for the aged, convalescent or nursing home, skilled nursing facility, intermediate care facility for persons with an intellectual disability or rest home.

“Long-term care services”, include: (i) long-term resident, nursing, convalescent or rehabilitative care; (ii) supervision and care incident to old age for ambulatory persons; or (iii) retirement home care for elderly persons.

“Management company”, an organization engaged by a licensee to manage the operations at a long-term care facility.

“Outbreak”, any unusual occurrence of disease or any disease above endemic levels.

“Owner”, any person with an ownership interest of not less than 5 per cent, or with a controlling interest in an applicant, licensee, potential transferee or the real property on which a long-term care facility is located.

“Person”, an individual, trust, partnership, association, corporation or other form of business association.

“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.

“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”, an individual who resides in a 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 4 or more persons who are ambulatory and who do not require a specific level of nursing care or other medically related services on a routine basis.

“Skilled nursing facility”, any institution, however named, whether conducted for profit or not for profit, which is certified by the federal Centers for Medicare and Medicaid Services for the purpose of providing continuous skilled nursing care and rehabilitative services for 4 or more persons.

“Small house nursing home”, 1 or more units of a convalescent or nursing home designed and modeled as a residential home including a central living space, kitchen, dining area, living area and outdoor space.

“Transfer of facility operations”, a transfer of the operations of a long-term care facility from a licensee to a potential transferee.

(b)(1) The department shall issue for a term of 2 years, and shall renew for like terms, a license, subject to the restrictions in this section, to each applicant the department deems responsible and suitable to establish or maintain and operate a long-term care facility and which meets all other requirements for long-term care facility licensure pursuant to this chapter. A license issued pursuant to this section shall not be transferable or assignable and shall be issued only for the premises named in the application.

(2) Each long-term care facility shall be subject to not less than 1 periodic, resident-centered inspection per year for the purpose of gathering information about the quality of services furnished in the long-term care facility to determine compliance with applicable state and federal requirements.

(3) The department may, when public necessity and convenience require, or to prevent undue hardship to an applicant or licensee, pursuant to such rules and regulations as it may adopt, grant a temporary provisional or probationary license pursuant to this section; provided, however, that no such license shall be for a term exceeding 1 year.

(4) The fee for a license to establish or maintain and operate a long-term care facility shall be determined annually by the secretary of administration and finance pursuant to section 3B of chapter 7.

(c) The department shall not issue a 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 a 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 or transfer of operations, 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.

(d)(1) 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 not less than 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 the department requires on said form. The potential transferee shall be deemed responsible and suitable upon the expiration of the 90-day period, or upon the expiration of said period as extended, if the department fails to notify said potential transferee in writing of its decision within the 90-day period or within the expiration of the extension period, whichever is applicable.

(2) A potential transferee shall, concurrently with the submission of an intent to acquire, provide notice to the current staff of the facility, and to any labor organization that represents the facility’s staff at the time the notice of intent to acquire is submitted, of the potential transferee’s plans to retain or not retain the facility staff and to recognize and bargain with any labor organizations currently representing the facility staff.

(3) 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 temporary provisional or probationary license until the department takes final action on such application.

(4) Upon an approved transfer of facility operations, the department shall not reduce the number of beds it originally approved in granting a license, unless a reduction in the number of beds is in the interest of public health, welfare or safety.

(e) Every applicant for a license shall provide on or with its application, and every potential transferee shall provide on or with its notice of intent to acquire, a sworn statement of the names and addresses of any owner of the applicant or the potential transferee.

(f) No license shall be issued to an applicant or potential transferee prior to a determination by the department that the applicant or potential transferee is responsible and suitable pursuant to subsection (g).

(g) For the purposes of this section, the department’s determination of responsibility and suitability shall include, but shall not be limited to, the following factors:

(1) the criminal history of the applicant or the potential transferee, including its respective owners and management companies, and, to the extent possible, the civil litigation history of the applicant or potential transferee, including its respective owners and contracted management companies, 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; provided, that such criminal and civil litigation history may include pending or other court proceedings in the commonwealth and in any other state or 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;

(2) the financial capacity of the applicant or potential transferee, including its respective owners and management companies, to establish or maintain and operate a long-term care facility; provided, that financial capacity may include, but shall not be limited to, recorded liens or unpaid fees or taxes in the commonwealth or in other states;

(3) the history of the applicant or potential transferee, including its respective owners and management companies, in providing quality long-term care in the commonwealth as measured by compliance with applicable quality measures, statutes and regulations governing the operation of long-term care facilities; and

(4) the history of the applicant or potential transferee, including its respective owners and management companies, in providing quality long-term care in states other than the commonwealth, if any, as measured by compliance with the applicable quality measures, statutes and regulations governing the operation of long-term care facilities in said states.

(h)(1) If the department determines that an applicant or potential transferee is not responsible and suitable, the department’s determination shall take effect on the date of the department’s notice to the applicant or potential transferee. 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.

(2) During the pendency of an adjudicatory hearing, the applicant or potential transferee shall not operate the facility as a licensee, nor, without prior approval of the department, manage such facility.

(i) Each applicant, potential transferee and licensee shall maintain current records of all information provided to the department. After the applicant, potential transferee or licensee becomes aware of any change related to information it has provided or is required to provide to the department, such person shall submit to the department written notice of the change as soon as practicable and without unreasonable delay; provided, that any change in financial status shall be provided to the department and shall include, but shall not be limited to, 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 shall be subject to the remedies or sanctions available to the department pursuant to this chapter.

(j) An applicant, potential transferee or licensee and its respective owners and management companies shall comply with all applicable federal, state and local laws, rules and regulations.

(k)(1) Prior to entering into a contract with a management company, an applicant, potential transferee or licensee shall notify and receive a determination from the department that the management company is responsible and suitable to manage a long-term care facility.

(2) In its notification to the department and to inform the department’s review, the applicant, potential transferee or licensee shall provide the proposed management company’s name, contact information and any other information on the proposed management company and its personnel that may be reasonably requested by the department, including, but not limited to, information required pursuant to subsection (g). Upon a determination by the department that the proposed management company is responsible and suitable to manage a long-term care facility, the applicant, potential transferee or licensee may engage said company to manage the long-term care facility.

(3) The applicant, potential transferee or 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 applicant, potential transferee or 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.

(4) If the department determines that a management company is not responsible and suitable, the department’s determination shall take effect on the date of the department’s notice to the applicant, potential transferee or licensee. In such cases and upon the filing of a written request, the department shall afford the applicant, potential transferee, licensee or management company an adjudicatory hearing pursuant to chapter 30A.

(l) The department shall not reduce the number of beds it originally approved in granting a license for a convalescent or nursing home or rest home upon the transfer of facility operations of said convalescent or nursing home or rest home from 1 licensee to another, unless a reduction in the number of beds is in the interest of public health, welfare or safety.

(m)(1) The department shall not issue a license unless the applicant first submits 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 within the division of professional licensure; and (ii) a certificate of inspection issued by the head of the local fire department certifying compliance with local ordinances; provided, however, that for convalescent or nursing homes, the division of health care quality within the department shall have sole authority to inspect and issue a certificate required pursuant to clause (i) of this paragraph.

(2) 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. Failure to either approve or disapprove within 30 days after a written request by an applicant shall be deemed a disapproval. With respect to certificates of inspection issued to convalescent or nursing homes by the division of health care quality within the department, an applicant may, within 30 days from disapproval of a certificate of inspection, appeal in writing to the department. Failure to either approve or disapprove within 30 days after a written request by an applicant shall be deemed a disapproval.

(3) If the division of professional licensure or, where applicable, the department approves the issuance of a certificate of inspection after an appeal, the certificate shall be issued by the issuing agency. If the division of professional licensure or, where applicable, the department does not approve the issuance of a certificate of inspection, the applicant may appeal to the superior court. Failure of said division or 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 pursuant to paragraph (1).

(4) Nothing in this section or in sections 72 or 73 shall be construed to 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.

(n)(1) For cause, the department may limit, restrict, suspend or revoke a license.

(2) Grounds for cause on which the department may take action pursuant to paragraph (1) shall include: (i) substantial or sustained failure or inability to provide adequate care to residents; (ii) substantial or sustained failure to maintain compliance with applicable statutes, rules and regulations; or (iii) the lack of financial capacity to maintain and operate a long-term care facility.

(3) The limits or restrictions the department may impose on a licensee include requiring a facility to limit new admissions.

(4) Suspension of a license may include suspending the license during a pending license revocation action or suspending the license to permit the licensee a period of time, not less than 60 days, to terminate operations, and discharge and transfer all residents, if applicable.

(5) With respect to an order by the department 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 an adjudicatory proceeding pursuant to chapter 30A.

(6) Upon a written request by a licensee who is aggrieved by the revocation or limitation of a license or by an applicant who is aggrieved by the refusal of the department to renew a license, the licensee or 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.

(o) In the case of the new construction of, or major addition, alteration or repair to, any long-term care facility, preliminary 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.

(p) Notwithstanding any of the other provisions of this section, the department shall not issue a license to establish or maintain and operate a long-term care facility to an applicant who applies to the department for said license to establish or maintain and operate a convalescent or nursing home unless the applicant for such license submits to the department a certificate that each building to be occupied by residents of such convalescent or nursing home meets the construction standards of the state building code, and is of at least type 1–B fireproof construction; provided, however, that this subsection shall not apply in the instance of a transfer of facility operations of a convalescent or nursing home whose license has not been revoked as of the time of such transfer; and provided, further, that a public medical institution as defined in section 8 of chapter 118E, which meets the construction standards as defined herein, shall not be denied a license as a long-term care facility pursuant to this section because it was not of new construction and designed for the purpose of operating a long-term care facility at the time of application for a license to operate a long-term care facility. 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, Public Law 89-97 and any regulations promulgated pursuant thereto, and by regulations promulgated by the department.

(q) The department shall notify the secretary of elder affairs of the pendency of any proceeding, public hearing or action to be taken pursuant to this section relating to any convalescent or nursing home, rest home or charitable home for the aged. The department shall notify the commissioner of the department of developmental services of the pendency of any proceeding, public hearing or action to be taken pursuant to this section relating to any intermediate care facility for persons with an intellectual disability.

SECTION 3. Said chapter 111 is hereby further amended by striking out section 72 and inserting in place thereof the following section:-

Section 72. (a)(1) The department shall classify long-term care facilities and shall, after a public hearing, promulgate rules and regulations for the conduct of such facilities. Rules and regulations for long-term care facilities shall include, but not be limited to, minimum requirements for medical and nursing care, the keeping of proper medical and nursing records, uniform requirements for the handling of patient funds, minimum requirements relative to the prevention and reparation of lost or damaged patient possessions, including personal clothing and minimum requirements relative to facility sanitation.

(2) Regulations for intermediate care facilities for persons with an intellectual disability shall, in addition to the requirements pursuant to paragraph (1), include minimum requirements for social services, psychological services and other services appropriate for the care of persons with an intellectual disability and shall limit the size of such facilities to not more than 15 beds.

(3) The department in promulgating rules and regulations for long-term care facilities shall consider the ability of long-term care facilities to provide service under rates set pursuant to section 13C of chapter 118E. No such rule or regulation shall apply to a long-term care facility licensed at the time of promulgation of such rule or regulation, or a long-term care facility being constructed at the time of such promulgation under plans approved by the department, unless such rule or regulation has a direct and material relation to patient diet, cleanliness, nursing care or health, or to habilitative services and active treatment for persons with an intellectual disability or persons with related conditions; provided, however, that nothing herein contained shall be interpreted to prevent the department from adopting or interpreting rules and regulations more favorable toward existing long-term care facilities.

(b)(1) The department or its agents and the board of health or its agents of the city or town wherein any portion of such long-term care facility is located may visit and inspect such institution at any time; provided, that a board of health or its agents conducting an inspection of a long-term care facility located within its city or town shall notify the department of the results of any inspection conducted pursuant to this paragraph.

(2) Any person making an inspection pursuant to paragraph (1) shall record in writing every violation of the applicable rules and regulations of the department that they discover during the course of their inspection. Every record of inspection shall be treated as a public record except to such extent the record or a portion thereof is expressly exempt from such treatment pursuant to clause Twenty-sixth of section 7 of chapter 4. A record of inspection containing violations shall be made public by the department at the same time that a written plan of correction is submitted. If a written plan of correction is not submitted within the allowable time, said violations shall be made public at the expiration of the allowable time. Inspections hereunder shall be unannounced and made at such intervals as the department shall specify in its rules and regulations; provided, that, each long-term care facility shall be subject to not less than 1 periodic, resident-centered inspection per year pursuant to subsection (b) of section 71. A visit made to a facility for the purpose of providing consultation shall not be considered to be an inspection.

(c) The superior court shall have jurisdiction in equity to enforce the rules and regulations promulgated pursuant to this section.

(d)(1) The department shall promulgate regulations for the operation of small house nursing homes. Newly constructed small house nursing homes shall house no more than 14 individuals per unit, in resident rooms that accommodate not more than 1 resident per room; provided, however, that if a resident requests to share a room with another resident to accommodate a spouse, partner, family member or friend, such resident room shall have sufficient space and equipment, as established by the department, for 2 residents; provided, further, that determinations to grant such requests shall be determined based on space and availability of rooms. All resident rooms shall contain a full private and accessible bathroom.

(2) The department shall promulgate regulations for construction and physical plant standards for small house nursing homes that shall consider environmental standards and sustainability.

(3) The department may promulgate regulations for small house nursing homes for a staffing model that: (i) allows 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, but not limited to, cooking and meal preparation, without exceeding the lawful scope of practice of said employee; and (ii) provides for consistent staff in each small house nursing home.

(4) The regulations promulgated pursuant to this subsection shall ensure the convalescent or nursing home meets the requirements necessary to be eligible to participate in both the Medicare and Medicaid programs.

SECTION 4. Said chapter 111 is hereby further amended by striking out section 72E and inserting in place thereof the following section:-

Section 72E. (a) The department shall, after every inspection by its agent pursuant to section 72, provide the licensee of the inspected long-term care facility notice in writing of every violation of the applicable statutes, rules and regulations found during said inspection. With respect to the date by which the licensee shall remedy or correct each violation, the department in such notice shall specify a reasonable time, not more than 60 days after receipt, by which time the licensee shall remedy or correct each violation cited 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.

(b) Failure to remedy or correct a cited violation by the correct by date shall be cause to pursue or impose the remedies or sanctions available to the department pursuant to this chapter, unless the licensee demonstrates to the satisfaction of the department or a court, where applicable, 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 correct by date. An aggrieved licensee may pursue the remedies available to it pursuant to chapter 30A.

(c) If the department determines the licensee failed to maintain substantial or sustained compliance with applicable state and federal laws, 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 temporary manager shall be subject to the department’s approval; provided, that such approval shall 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 said 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 pursuant to clause Twenty-sixth of section 7 of chapter 4 and chapter 66.

(d) 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 pursuant to 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 5. Section 72K of said chapter 111, as appearing in the 2022 Official Edition, 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: (i) commits abuse, mistreatment or neglect of a patient or resident; (ii) misappropriates patient or resident property; or (iii) wantonly or recklessly permits or causes another to commit abuse, mistreatment or neglect of a patient or resident or misappropriate 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. The comptroller shall deposit not less than 50 per cent of any amount secured by the attorney general as a result of a civil action brought pursuant to this section into the Long-Term Care Workforce and Capital Fund established in section 35TTT of chapter 10.

(c) Notwithstanding section 5 of chapter 260, the attorney general may file a civil action within 4 years next after an offense is committed.

SECTION 6. Said chapter 111 is hereby further amended by inserting after section 72BB the following 4 sections:-

Section 72CC. (a) The department shall require long-term care facilities to develop an outbreak response plan which shall be customized to the long-term care facility. Each long-term care facility’s plan shall include, but shall 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 long-term care facility;

(3) information on the availability of laboratory testing, protocols for screening visitors and staff for the presence of a communicable disease, protocols to require infected staff to not present at the long-term care 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;

(5) policies for reporting outbreaks to public health officials in accordance with applicable laws and regulations; and

(6) policies to meet staffing, training and long-term care facility demands during an infectious disease outbreak and to successfully implement the outbreak response plan.

(b) The department shall verify that the outbreak response plans submitted by long-term care facilities are in compliance with the requirements of subsection (a).

(c)(1) Every long-term care facility shall review the outbreak response plan it submitted to the department pursuant to subsection (a) 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 in compliance with the requirements of subsection (a).

(d) The department shall promulgate regulations necessary to implement this section.

Section 72DD. (a) The division of health care facility licensure and certification shall establish and implement a process and program for providing training and education to staff of long-term care facilities licensed by the department pursuant to section 71. The training and education program may include, but shall not be limited to: (i) infection prevention and control; (ii) development, implementation, adherence and review of comprehensive resident care plans; (iii) falls prevention; (iv) procedures to ensure timely notification of changes in a resident’s condition to the resident’s primary care physician; (v) prevention of abuse and neglect; (vi) development and implementation of a program to ensure staff safety; and (vii) review of the inspection process established in section 72.

(b) The training and education program shall be interactive and shall include, but shall not be limited to: (i) an annual training for long-term care facility supervisory and leadership staff on the licensure and certification process, including, but not limited to, the department’s interpretation of the general laws and relevant changes or additions to applicable rules, regulations, procedures and policies concerning the licensure and certification process for long-term care facilities; and a (ii) biannual training of staff of long-term care facilities on the most frequently cited deficiencies, identified deficiency trends, both state and federal, and best practices to ensure resident quality of care.

(c) The department may consult with industry trade associations before issuing or promulgating guidance, regulations, interpretations, program letters, memoranda or any other materials used in inspector training for the inspection of long-term care facilities pursuant to section 72.

Section 72EE. (a) The department shall promulgate regulations 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 to the extent that in-person contact, communication or activities are not prohibited, restricted or limited 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 dementias and developmental disabilities.

(b) The department may distribute federal civil monetary penalty funds, subject to approval 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 pursuant to this section.

Section 72FF. (a) The department, in consultation with the center for health information and analysis, the division of medical assistance, the executive office of elder affairs and the health policy commission, shall annually conduct an examination and report on cost trends and financial performance among skilled nursing facilities. The information shall be analyzed on an institution-specific and industry-wide basis. The examination shall aggregate information collected on multiple skilled nursing facilities that are owned and operated by a single owner.

(b) The examination and report shall include, but shall not be limited to collection and analysis of: (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; (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 total resident population; and (ix) any other relevant measures of financial performance and service delivery the department deems necessary; provided, that these measures shall distinguish long-term residents from short-stay residents where possible.

(c) Annually, not later than December 1, the report and any policy recommendations shall be filed with the clerks of the house of representatives and the senate, the house and senate committees on ways and means and the joint committee on elder affairs.

(d) The department shall utilize ownership information submitted as part of the long-term care facility licensure determination process pursuant to section 71 to determine affiliations between skilled nursing facilities and other health care providers as required.

SECTION 7. Said chapter 111 is hereby further amended by striking out section 73 and inserting in place thereof the following section:-

Section 73. (a) Whoever advertises, announces, establishes or maintains, or is concerned in establishing or maintaining, a long-term care facility, or otherwise is engaged in any such business without a license granted pursuant to section 71, or whoever being licensed pursuant to 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 2 years.

(b) Whoever violates any rule or regulation promulgated pursuant to sections 71, 72 and 72C shall be punished by a fine, not to exceed $500. 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. If such person fails or refuses to comply with such order by the correct by date, each day after the 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 subsection.

SECTION 8. Section 25 of chapter 118E of the General Laws, as appearing in the 2022 Official Edition, is hereby amended by inserting after the word “provided.”, in line 61, the following 2 sentences:- In the case of an incompetent applicant or member that requires long-term care services, the division shall authorize a deduction from the applicant or member’s income for guardianship fees and related expenses when the appointment of a guardian is essential to enable an incompetent applicant or member to gain access or consent to medical treatment. The division shall authorize a deduction for the reasonable costs, as approved by the probate and family court, associated with: (i) the appointment of a guardian; (ii) the guardian’s services during the application process; and (iii) the guardian’s services during the redetermination process; provided, however, that said deduction shall not exceed, in any case, $1,500.

SECTION 9. Said chapter 118E is hereby further amended by adding the following 2 sections:-

Section 83. To establish Medicaid rates for skilled nursing facilities licensed pursuant to section 71 of chapter 111, the division of medical assistance shall use as base year costs for rate determination purposes the reported costs of the calendar year not more than 2 years prior to the current rate year.

Section 84. (a) The division of medical assistance shall establish a skilled nursing facility rate add-on program for bariatric patient care and a rate add-on program for 1-on-1 staffing of at-risk residents requiring 24-hour monitoring and supervision for their safety and the safety of other residents and staff. The division of medical assistance shall identify at-risk resident populations to include in the rate add-on program for 1-on-1 staffing which shall include, but not be limited to, residents that: (i) have demonstrated suicidal ideation; (ii) have demonstrated aggressive behavior toward other residents or staff; (iii) have demonstrated exit-seeking behavior; or (vi) are registered sex offenders. The rate add-ons for said program shall be sufficient to defray the cost of employing the required staff to conduct the 24-hour monitoring and supervision of the at-risk residents.

(b) The division of medical assistance may develop an add-on to rate of payment for skilled nursing facilities that develop small house nursing homes and meet criteria established by the executive office.

SECTION 10. Subsection (c) of section 25 of chapter 176O of the General Laws, as appearing in the 2022 Official Edition, is hereby amended by inserting after the second sentence the following sentence:- The division shall develop and implement a uniform prior authorization form for the admission of patients from an acute care hospital to a post-acute care facility or transitioned to a home health agency certified by the federal Centers for Medicare and Medicaid Services for covered post-acute care services.

SECTION 11. (a) For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Enrollee”, as defined in section 8A of chapter 118E of the General Laws; provided, that “enrollee” shall include “insured” as defined in section 1 of chapter 176O of the General Laws.

“Payer”, the group insurance commission under chapter 32A of the General Laws, the division of medical assistance under chapter 118E of the General Laws, insurance companies organized under chapter 175 of the General Laws, non-profit hospital service corporations organized under chapter 176A of the General Laws, medical service corporations organized under chapter 176B of the General Laws, health maintenance organizations organized under chapter 176G of the General Laws and preferred provider organizations organized under chapter 176I of the General Laws, or a utilization review organization acting under contract with the aforementioned entities.

“Post-acute care facility or agency”, any: (i) facility licensed under chapter 111 of the General Laws to provide inpatient post-acute care services, including, but not limited to skilled nursing facilities, long-term care hospitals, intermediate care facilities, or rehabilitation facilities; or (ii) a home health agency certified by the federal Centers for Medicare and Medicaid Services.

(b) Notwithstanding any general or special law to the contrary, all payers shall approve or deny a request for prior authorization for admission to a post-acute care facility or transition to a post-acute care agency for any inpatient of an acute care hospital requiring covered post-acute care services by the next business day following receipt by the payer of all necessary information to establish medical necessity of the requested service. If the calendar day immediately following the date of submission of the completed request is not a payer’s business day, and the payer cannot otherwise make a determination by the next calendar day, and the receiving post-acute care facility or agency is both open to new admissions and has indicated that said facility or agency will accept the enrollee, then prior authorization shall be waived; provided, that the payer shall provide coverage and may begin its concurrent review of the admission on the next business day; provided further, that the payer shall not retrospectively deny coverage for services to an enrollee admitted to a post-acute care facility or transitioned to a post-acute care agency after a waiver of prior authorization pursuant to this section unless the claim was a result of fraud, waste or abuse. An adverse determination of a prior authorization request pursuant to this section may be appealed by an enrollee or the enrollee’s provider and such appeal, in the case of an enrollee of a commercial payer, shall be subject to the expedited grievance process pursuant to clause (iv) of subsection (b) of section 13 of chapter 176O of the General Laws. An enrollee of an insurance program of the division of medical assistance or the enrollee’s provider may request an expedited appeal of an adverse determination of a prior authorization request. Nothing in this section shall be construed to require a payer to reimburse for services that are not a covered benefit.

(c) In the case of non-emergency transportation between an acute care hospital and a post-acute care facility, payers shall approve or deny a request for prior authorization according to the same process provided pursuant to subsection (b); provided, that once authorization has been granted, said authorization shall be valid for not less than 7 calendar days following approval.

(d) The division of insurance and the division of medical assistance shall issue sub-regulatory guidance to effectuate the purposes of this subsection.

SECTION 12. (a) There shall be a task force to study and propose recommendations to address acute care hospital throughput challenges and the impact of persistent delays in discharging patients from acute to post-acute care settings. The task force shall examine: (i) hospital discharge planning and case management practices; (ii) payer administrative barriers to discharge; (iii) legal and regulatory barriers to discharge; (iv) efforts to increase public awareness of health care proxies and the importance of designating a health care agent; (v) post-acute care capacity constraints and additional opportunities to provide financial incentives to increase capacity; (vi) administrative day rates and the cost to hospitals of discharge delays; (vii) enhanced hospital case management practices and reimbursement for wraparound services; (viii) the adequacy of post-acute care facility insurance networks and the establishment of an out-of-network rate for post-acute care facilities; (ix) expanding MassHealth Limited coverage to include post-acute and long-term care services; (x) the effectiveness of interagency coordination to resolve complex case discharges; (xi) the adequacy of reimbursement rates of MassHealth and commercial carriers for nonemergency medical transportation; and (xii) the adequacy of state resources and infrastructure to place complex case discharges in appropriate post-acute care settings.

(b) The task force shall consist of: the secretary of health and human services, or a designee, who shall serve as chair; the assistant secretary for MassHealth, or a designee; the commissioner of mental health, or a designee; the attorney general, or a designee; the commissioner of correction, or a designee; 1 sheriff appointed by the Massachusetts Sheriffs’ Association, Inc.; 1 member representing the division of the probate and family court department of the trial court to be appointed by the chief justice of said division; and 10 members to be appointed by the chair, 1 of whom shall be a representative of the Massachusetts Hospital Association, Inc., 1 of whom shall be a representative of the Massachusetts Senior Care Association, Inc., 1 of whom shall be a representative of the Home Care Alliance of Massachusetts, Inc., 1 of whom shall be a representative of the Massachusetts Academy of Elder Law Attorneys, 1 of whom shall be a representative from the Massachusetts Ambulance Association, Incorporated, 1 of whom shall be a representative from the Massachusetts Association of Health Plans, Inc., 1 of whom shall be a representative from Blue Cross and Blue Shield of Massachusetts, Inc., 1 of whom shall be a representative from an academic medical center located in Worcester county, 1 of whom shall be a representative of an acute care hospital located in Suffolk county and 1 of whom shall be a representative from an acute care hospital designated by the health policy commission as an independent community hospital for the purposes of 105 CMR 100.715(B)(2)(b).

(c) Not later than July 31, 2024, the task force shall submit its report, including its recommendations or any proposed legislation necessary to carry out its recommendations, to the clerks of the house of representatives and the senate, the house and senate committees on ways and means and the joint committee on health care financing.

SECTION 13. The division of medical assistance shall study the cost and feasibility of changes to the eligibility requirements for Medicaid long-term care services with the goal of reducing the time applicants spend at acute care hospitals awaiting long-term care eligibility determinations. The study shall consider: (i) improvements to the eligibility determination process; (ii) establishing a rebuttable presumption of eligibility; (iii) guaranteeing payment for long-term care services for up to 1 year regardless of eligibility status; and (iv) expanding the undue hardship waiver criteria. The division of medical assistance shall seek input from the Massachusetts Senior Care Association, Inc., the Massachusetts Academy of Elder Law Attorneys and other interested stakeholders. The division of medical assistance shall submit a report with the results of its study and policy recommendations to the clerks of the house of representatives and the senate and the house and senate committees on ways and means, not later than 180 days after the effective date of this act.

SECTION 14. (a) The health policy commission shall conduct an analysis and issue a report on the impact of the Medicare shared savings program and participating Medicare accountable care organizations, hereinafter referred to as Medicare ACOs, on the financial viability of long-term care facilities in the commonwealth and continued access to long-term care facility services for Medicare patients. The analysis shall include, but not be limited to, an examination of the following:

(i) the impact of Medicare ACOs on clinical eligibility decisions related to initial long-term care facility placement and patient length of stay for Medicare ACO beneficiaries compared to Medicare fee-for-service beneficiaries, including an analysis of the impact of length of stay on quality outcomes including readmissions, functional status and patient experience;

(ii) the amount of payments Medicare ACOs have received from the federal government from capitated, shared savings or other related initiatives and how those payments have been utilized, or not, to enhance patient care and outcomes in long-term care facilities;

(iii) Medicare ACO practices related to patient care utilization controls and the financial and quality care impact of these controls on beneficiaries in the acute and post-acute care system; and

(iv) Medicare ACOs long-term care network adequacy.

(b) The health policy commission shall submit the report to the clerks of the house of representatives and the senate, the house and senate committees on ways and means, the joint committee on health care financing and the joint committee on elder affairs not later than December 31, 2024.

SECTION 15. Notwithstanding any general or special law to the contrary, the division of insurance shall develop the uniform prior authorization form for admission to a post-acute care facility or transition to a home health agency for any inpatient of an acute care hospital requiring covered post-acute care services pursuant to section 25 of chapter 176O of the General Laws, as amended by section 10, not later than 90 days after the effective date of this act. The division of insurance shall develop said uniform prior authorization form in consultation with the division of medical assistance. The division of medical assistance, or any entity acting for the division of medical assistance under contract, shall accept the uniform prior authorization form as sufficient to request prior authorization for the requested service. All acute care hospitals shall use the uniform prior authorization form to request prior authorization for coverage of post-acute care services at a post-acute care facility or home health agency, and all payers, as defined in section 11, or entities acting for a payer under contract shall accept such form as sufficient to request prior authorization for the requested service, not later than 30 days after the form has been developed by the division of insurance.

SECTION 16. (a) For the purposes of this section, the terms “licensee” and “management company” shall have the meanings as defined in section 71 of chapter 111 of the General Laws, as amended by section 2.

(b) Pursuant to section 71 of chapter 111 of the General Laws, as amended by section 2, a licensee who has entered into a contract with a management company prior to the effective date of this act shall provide the department of public health with the necessary documentation and materials for a determination by the department of the responsibility and suitability as described in subsection (g) of said section 71 of said chapter 111 of the management company, prior to any issuance of a renewed license; provided, however, that the department shall give a licensee reasonable time to provide the department with the necessary documents and materials if the licensee’s renewal date is within 90 days of the effective date of this act. A licensee’s failure to comply with this section shall subject the licensee to the penalties established in section 73 of said chapter 111, as amended by section 7.

SECTION 17. Pursuant to section 72CC of chapter 111 of the General Laws, as inserted by section 6, each long-term care facility shall submit its outbreak response plan to the department of public health not later than 180 days after the effective date of this act.

SECTION 18. The initial report required by section 72FF of chapter 111 of the General Laws, as inserted by section 6, shall be filed with the clerks of the house of representatives and the senate, the house and senate committees on ways and means and the joint committee on elder affairs not later than 6 months after the effective date of this act.

SECTION 19. Section 11 is hereby repealed.

SECTION 20. Section 19 shall take effect 2 years after the effective date of this act.

SECTION 21. Section 83 of chapter 118E of the General Laws, as inserted by section 9, shall take effect on October 1, 2025.