SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2900

The Commonwealth of Massachusetts

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

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SECTION 1. Section 1 of chapter 19D of the General Laws, as appearing in the 2022 Official Edition, is hereby amended by inserting after the definition of “Assisted living residence” or “Residence,” the following 3 definitions:-

“Authorized medical professional”, an advanced practice registered nurse with prescriptive authority, a physician assistant or a physician; provided, however, that an authorized medical professional shall have been granted authority by a resident to issue care orders for the resident.

“Basic health services”, certain services provided at an assisted living residence by employees of the residence that are qualified to administer such services or a qualified third party in accordance with a care order issued by an authorized medical professional; provided, however, that such services shall include all of the following: (i) injections; (ii) the application or replacement of simple non-sterile dressings; (iii) the management of oxygen on a regular and continuing basis; (iv) specimen collection and the completion of a home diagnostic test, including, but not limited to, warfarin, prothrombin or international normalized ratio testing and glucose testing; and provided  further, that such home diagnostic test or monitoring is approved by the United States Food and Drug Administration for home use; and (v) application of ointments or drops.

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

SECTION 2. Said section 1 of said chapter 19D, as so appearing, is hereby further amended by striking out the definition of “Elderly housing”.

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

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

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

(v) provide services to residents in accordance with service plans developed through a process by which employees of the residence discuss the service plan and the needs of the resident with the resident and their representative or designee and ensure the consequences of a decision, including any inherent risk, are understood by all parties; provided, however, that such parties shall review the service plan periodically and consider changes in the resident's status and the ability of the residence to respond accordingly and as set forth in section 12; provided further, that if a resident is receiving basic health services, the staff of the residence shall consult the resident’s authorized medical professional when developing the resident’s service plan;

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

SECTION 5. Said chapter 19D is hereby further amended by striking out sections 3 to 6, inclusive, as so appearing, and inserting in place thereof the following 4 sections:-

Section 3. (a) No person shall advertise, operate or maintain an assisted living residence without the certification required under this chapter; provided, however, that the provisions of this chapter shall not apply to entities for the original facilities and services for which said entities were originally licensed or organized to provide. Assisted living residences may be sponsored by: (i) convalescent homes, licensed nursing homes, licensed rest homes, charitable homes for the aged or intermediate care facilities for persons with an intellectual disability licensed pursuant to section 71 of chapter 111; (ii) hospices licensed pursuant to the provisions of section 57D of said chapter 111; (iii) facilities providing continuing care to residents, as defined by section 76 of chapter 93; (iv) congregate housing authorized by section 39 of chapter 121B; (v) group homes or supported living programs operating under contract with the department of mental health, the rehabilitation commission or the department of developmental services; or (vi) housing operated for only those duly ordained priests or for the of the religious orders of the Roman Catholic church in their own locations, buildings, residences or headquarters to provide care, shelter, treatment and medical assistance for any of the said duly ordained priests or members of the said religious order.

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

Section 4. (a) The department shall issue a certification for a term of 2 years, and shall renew for like terms, to any applicant whom the department determines meets the regulatory requirements promulgated by the department in accordance with this chapter; provided, however, that a certification shall be subject to corrective action, modification, suspension or revocation for cause, as determined by the department. Such certification shall: (i) not be transferable or assignable; (ii) be issued only to the person and for the premises named in the application; (iii) indicate whether the residence has been approved to provide basic health services; and (iv) indicate the certification’s expiration date. The department shall issue a certificate, which shall be posted by the residence and on the residence’s website in a conspicuous place on the approved premises.

(b) Upon applying for initial certification or renewal, an applicant shall pay the department a fee based on the number of units at the assisted living residence, established by the secretary of administration and finance pursuant to the provisions of section 3B of chapter 7; provided, however, that a minimum fee shall be established notwithstanding the number of units at the residence. No fees for initial certification or renewal shall be due from any provider for assisted living units created under the United States Department of Housing and Urban Development Assisted Living Conversion Program.

(c) If an application for renewal of a certification is filed not less than 30 days before the expiration date, such certification shall not expire until the department notifies the sponsor that the application for renewal has been denied.

(d) Applicants for initial certification shall file with the department an operating plan that includes: (i) the number of units; (ii) the number of residents allowed per unit; (iii) the location of resident units, common spaces and egresses by floor; (iv) the base fee to be charged for each such unit; (v) the services to be offered, including basic health services, if applicable, and arrangements for providing such services, including linkages with hospital and nursing facilities, if any; (vi) the number of staff to be employed; and (vii) other information the department deems necessary.

(e) Residences may seek certification by the department to provide basic health services; provided, however, that residences offering basic health services shall not restrict resident choice in the delivery of said services by third party providers. The residence shall submit a revised operating plan to the department in the event of a change in the scope of basic health services offered to residents. A residence seeking to provide basic health services shall include in its operating plan: (i) a proposed administrative and operational structure to ensure the safe and effective use of basic health services and meet the needs of its residents; and (ii) a compliance plan to meet the requirements established under this chapter and promulgated regulations, which shall include, but not be limited to: (A) staff qualifications and training; and (B) effective policies and procedures to ensure the availability of adequate supplies necessary for basic health services and the safe administration and secure storage of medications.

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

(g) Applicants for initial certification or renewal shall disclose the name and address of each officer, director, trustee and limited partner or shareholder with not less than 5 per cent interest in the assisted living residence and shall provide to the department documentation of the history of each such individual or entity, including, but not limited to: (i) all multifamily housing, assisted living residences or health care facilities in which the individual or entity has been an officer, director, trustee or partner and, if applicable, evidence from the relevant regulatory authority that said applicant has met criteria for licensure or certification; (ii) documentation of any enforcement action against the applicant and, if applicable, evidence that the applicant has corrected all cited deficiencies without revocation of licensure or certification; and (iii) any other evidence, as determined by the department.

(h) The department may deny certification to an applicant who had an ownership interest in an entity licensed under chapter 111, a licensed medical provider or a home health agency certified under Title XVIII of the Social Security Act, as amended, that: (i) has been subject to a patient care receivership action; (ii) has ceased to operate such an entity as a result of: (A) suspension or revocation of license or certification; (B) receivership; or (C) a settlement agreement arising from suspension or revocation of a license or certification; (iii) a settlement agreement in lieu of or as a result of subclause (B); (iv) has been the subject of a substantiated case of patient abuse or neglect involving material failure to provide adequate protection or services for the resident in order to prevent such abuse or neglect; or (v) has over the course of its operation been cited for repeated, serious and willful violations of rules and regulations governing the operation of said health care facility that indicate a disregard for resident safety and an inability to responsibly operate an assisted living residence.

Section 5. (a) The department or its authorized designee, shall biennially review all assisted living residences; provided, however, that an authorized designee shall not include sponsors of assisted living residences.

(b) Prior to the issuance of the sponsor's initial certification, the department shall conduct a review to determine whether an assisted living residence is compliant with this chapter; provided, however, that the department may conduct such review of an assisted living residence at any time the department has probable cause to believe that such assisted living residence is in violation of a provision of this chapter or any regulation promulgated thereunder. Such review shall include: (i) an inspection of every part of the common areas of the assisted living residence and the living quarters of a resident with the resident's prior consent; (ii) an examination of the operating plan; (iii) an examination of a resident's service plan and written progress reports with the resident’s consent; and (iv) resident satisfaction surveys. An inspector shall have authority to confidentially and privately interview the sponsor, manager, staff and residents.

(c) Reviews of assisted living residences certified to provide basic health services shall include an inspection of records associated with the provision of basic health services, a review of residence employee qualifications and the residence’s operating plan.

(d) Upon the completion of an annual or biennial review, the department shall prepare a written report summarizing all pertinent information obtained during the review and shall not disclose confidential or privileged information obtained in connection with such review. The department shall promulgate rules and regulations necessary to ensure the sponsor receives such report and, if applicable, has the opportunity to respond to and resolve any findings of noncompliance prior to departmental enforcement action. Completed reports, responses and notices of final action shall be made available to the public at the department during business hours together with the responses of the applicants or the sponsors and said reports, responses and notices of final action shall be posted on the website of the department.

Section 6. (a) If the department determines a sponsor or applicant has failed or refused to comply with requirements established under this chapter or the regulations promulgated thereunder, the department may: (i) deny an application for recertification; (ii) modify, suspend or revoke a certification; or (iii) issue a fine of not more than $500 for each day of such failure or refusal to comply.

(b) Notice of enforcement action and a sponsor’s right to an adjudicatory proceeding shall be governed by the provisions of chapter 30A.

SECTION 6. Section 8 of said chapter 19D, as so appearing, is hereby amended by striking out, in lines 14 and 15, the words “Any person who violates this subsection shall be subject to” and inserting in place thereof the following words:- A violation of this subsection shall constitute a violation of chapter 93A and shall be punishable by.

SECTION 7. Section 10 of said chapter 19D, as so appearing, is hereby amended by striking out subsections (b) to (d), inclusive, and inserting in place thereof the following 7 subsections:-

(b) The sponsor of the assisted living residence may provide or arrange for the provision of additional services, including: (i) barber and beauty services, sundries for personal consumption and other amenities; (ii) local transportation for medical and recreational purposes; (iii) assistance with and supervision of instrumental activities of daily living; (iv) assistance to residents with accessing telehealth services;(v) basic health services for residents whose service plan includes basic health services, in accordance with the requirements set forth within this chapter, by personnel who meet standards for professional qualifications and training set forth in regulations promulgated pursuant to this chapter; and (vi) ancillary services for health-related care including, but not limited to, restorative therapies, podiatry, hospice care, home health or other such services; provided, however, that such services shall be delivered by an individual licensed to provide such care.

(c) No employee of an assisted living residence shall control or manage the funds or property of an assisted living resident; provided, however, that if a resident is unable to manage their funds or property, the assisted living residence shall arrange money management and other financial arrangements with an independent party.

(d) A residence certified to provide basic health services may advertise, market and otherwise promote offered services under this chapter and inform residents of the option to directly procure such services from qualified third parties.

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

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

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

(h) No residence shall offer or provide basic health services without first being certified by the department. If the department determines that a residence is offering basic health services without certification, the department shall issue a fine of not more than $1,000 per day.

SECTION 8. Section 11 of said chapter 19D, as so appearing, is hereby amended by striking out, in lines 1 to 5, inclusive, the words “No assisted living residence shall admit any resident who requires twenty-four hour skilled nursing supervision. No assisted living residence shall provide, or admit or retain any resident in need of skilled nursing care unless all of the following are the case” and inserting in place thereof the following words:- No assisted living residence shall admit a resident who requires 24-hour skilled nursing supervision unless such resident elects to receive basic health services from residences that are certified to provide such services or from qualified third parties. No assisted living residence shall provide skilled nursing care or admit or retain a resident in need of skilled nursing care unless such resident elects to receive basic health services and the following criteria are met.

SECTION 9. Section 15 of said chapter 19D, as so appearing, is hereby amended by striking out subsection (c) and inserting in place thereof the following subsection:-

(c) No assisted living residence shall discharge, discipline, discriminate against or otherwise retaliate against an employee or resident who, in good faith, files a complaint with or provides information to the department relative to what the employee reasonably believes is a violation of law, rule or regulation or poses a risk to public health or safety or resident or staff well-being. An assisted living residence in violation of this section shall be liable to the person retaliated against by a civil action for up to treble damages, costs and attorney’s fees in the event such violation shall be determined to be egregious or willful.

SECTION 10. Said chapter 19D is hereby further amended by adding the following section:-

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

SECTION 11. Chapter 111 of the General Laws is hereby amended by striking out section 71, as appearing in the 2022 Official Edition, 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 have the following meanings unless the context clearly requires otherwise:

“Applicant”, a 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”, an institution 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”, an institution including a skilled nursing facility, 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 a 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”, an institution 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 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 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”, services including: (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”, an unusual occurrence of disease or any disease above endemic levels.

“Owner”, a person or management company 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”, 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 activity provider.

“Resident”, an individual who resides in a long-term care facility.

“Rest home”, an institution, which is advertised, announced or maintained for the express or implied purpose of providing care incident to old age for 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”, an institution, 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 not less than 4 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 at least 1 periodic, resident-centered inspection every 9 to 15 months 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 not 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; provided, however, that the potential transferee may resubmit its application for transfer.

(2) A potential transferee shall, concurrently with the submission of an intent to acquire, provide notice to the 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 pursuant to subsection (g), 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 from the number that was 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 not be limited to: (i) 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, however, 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; provided further, that information protected from public disclosure by federal or state law and 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 its respective owners and management companies, to establish or maintain and operate a long-term care facility; provided, however, that financial capacity may include, but not be limited to, recorded liens or unpaid fees or taxes in the commonwealth or in other states; (iii) 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; provided, however, that applicable quality measures may include the Centers for Medicare and Medicaid Services Quality Rating System; and (iv) the history of the applicant or potential transferee, including its respective owners, management companies and, if applicable, the involvement of private equity firms, 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; provided, however, that applicable quality measures may include the Centers for Medicare and Medicaid Services Quality Rating System

(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 applicant, potential transferee or licensee shall submit to the department written notice of the change as soon as practicable and without unreasonable delay; provided, however, that any change in financial status shall be provided to the department and shall include, but 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 a 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 applicable federal, state and local laws, rules and regulations.

(k) 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.

(l)(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 occupational 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 bureau of health care safety and quality within the department shall have sole authority to inspect and issue a certificate required pursuant to clause (i) of this paragraph.

(2) An applicant who is aggrieved, based on 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 occupational licensure, may, within 30 days of such disapproval, submit a written appeal to the division of occupational licensure. Failure to either approve or disapprove within 30 days after a written request by an applicant shall be deemed a disapproval. For certificates of inspection issued to convalescent or nursing homes by the bureau of health care safety and quality within the department, an applicant may, within 30 days of disapproval of a certificate of inspection, submit a written appeal to the department; provided, however, that failure of the department to either approve or disapprove of a written appeal within 30 days of the submission of such written appeal shall constitute a disapproval.

(3) If the division of occupational 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 occupational licensure or, where applicable, the department, does not approve the issuance of a certificate of inspection, the applicant may appeal to the superior court pursuant to chapter 30A. Failure of the division or the department to either approve or disapprove the issuance of a certificate of inspection within 30 days of the 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.

(m)(1) For cause, the department may limit, restrict, suspend or revoke a license; provided, however, that the department may temporarily suspend a license without a hearing if: (i) the suspension is due to an emergency; and (ii) the department responds to the suspension in a reasonable timeframe. 

(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) 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.

(4) 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.

(5) 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.

(6) The department may require a facility to limit new admissions.

(n) In the case of the new construction of, major addition to or 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 the new construction, major addition, alteration or repair.

(o) Notwithstanding any other provision 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.

(p) The department shall notify the secretary of elder affairs 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 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.

(q) The department shall notify the clerks of the senate and house of representatives, the joint committee on elder affairs and the senate and house committees on ways and means within 3 business days of being notified of a long-term care facility’s decision to close pursuant to department regulations.

SECTION 12. Said chapter 111 is hereby further amended by striking out section 72, as so appearing, 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, minimum standards for clinical expertise, staff licensing, certification and training, use of psychotropic medications and non-pharmacological interventions and other requirements of care and treatment; provided, however, that regulations for intermediate care facilities for persons with an intellectual disability shall 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; provided further, that in promulgating rules or regulations for long-term care facilities, the department shall consider the ability of long-term care facilities to provide services under rates set pursuant to section 13C of chapter 118E; and provided further, that 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.

(2) The department may authorize specialized care units serving persons requiring treatment for infectious diseases, isolation, strokes, degenerative neurological conditions, traumatic brain injuries, in-house dialysis treatments, behavioral health treatments, substance use disorder treatments, bariatric patient care and conditions requiring 24-hour or 1-on-1 patient supervision. The department may promulgate rules and regulations to regulate the conduct of any such specialized care units.

(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, however, 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 inspecting 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 of the record 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 when 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 at least 1 periodic, resident-centered inspection every 9 to 15 months, pursuant to subsection (b) of section 71. A visit made to a facility for the purpose of providing consultation shall not be considered an inspection.

(c) The superior court shall have jurisdiction pursuant to chapter 30A to enforce the rules and regulations promulgated pursuant to this section.

(d)(1) The department shall promulgate regulations to govern the conduct of such homes and to regulate construction and physical plant standards for small house nursing homes; provided, however, that such regulations shall consider environmental standards and sustainability.

(2) Newly constructed small house nursing homes shall house not 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 at the applicable home. All resident rooms shall contain a full private and accessible bathroom.

(3) The department may promulgate additional regulations for small house nursing homes to establish 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) All regulations promulgated pursuant to this subsection shall ensure the convalescent or nursing home meets the requirements to participate in the Medicare and Medicaid programs.

SECTION 13 Said chapter 111 is hereby further amended by striking out section 72E, as appearing in the 2022 Official Edition, and inserting in place thereof the following section:-

Section 72E. (a) The department shall, after every inspection by its agent under 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. 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 providing the temporary manager. 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 14. Section 72K of said chapter 111, 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: (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.

(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 15. 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 each long-term care facility and shall review such plan to ensure compliance with the requirements under this section. Each long-term care facility’s plan shall include, but not be limited to: (i) 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; (ii) 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; (iii) information on the availability of laboratory testing, protocols for screening visitors and staff for the presence of a communicable disease, protocols to prohibit infected staff from appearing for work at the long-term care facility and processes for implementing evidence-based outbreak response measures; (iv) policies to conduct routine monitoring of residents and staff to quickly identify signs of a communicable disease that could develop into an outbreak; (v) policies for reporting outbreaks to public health officials, including the municipality in which the facility is located, in accordance with applicable laws and regulations; and (vi) 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) A long-term care facility shall review the outbreak response plan it submitted to the department pursuant to subsection (a) on an annual basis and if it makes any material changes to such plan, the facility shall submit to the department an updated outbreak response plan within 30 days of making such change. The department shall, upon receiving an updated outbreak response plan, verify that the plan is in compliance with the requirements of subsection (a).

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

Section 72DD. (a) The division of health care facility licensure and certification within the department of public health 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 not be limited to: (i) infection prevention and control; (ii) development, implementation, adherence to 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 under section 72.

(b) The training and education program shall be interactive and shall include, but 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 relevant 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 (ii) a 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.             

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 law, 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) As used in this section the following words shall have the following meanings unless the context requires otherwise:

"Gender expression", the manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice or mannerisms.

"Gender identity" or “Gender”, a person’s gender identity, appearance or behavior, whether or not that gender identity, appearance or behavior is different from that traditionally associated with the person’s physiology or birth sex; provided, however, that gender identity may be demonstrated through medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; and provided further, that gender identity shall not be asserted for any improper purpose.

"Gender-nonconforming", gender expression does not conform to stereotypical expectations of such gender.

"Gender transition", a process in which a person begins to live according to that person's gender identity, rather than the sex the person was assigned at birth, which may include changing one's clothing, appearance, name or identification documents or undergoing medical treatments.

“HIV”, human immunodeficiency virus.

"Intersex", a person whose sexual or reproductive anatomy or chromosomal pattern is not consistent with typical definitions of male or female.

"LGBTQI", lesbian, gay, bisexual, transgender, questioning, queer and intersex.

"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 facility staff", all individuals employed by, or contracted directly with, a long-term care facility.

"Non-binary" describes a person whose gender identity falls outside of the traditional gender binary structure of man and woman.

"Resident", a resident or patient of a long-term care facility.

"Queer", a person whose gender expression, gender identity or sexual orientation does not conform to dominant expectations or standards.

"Questioning", a person who is exploring or unsure about their own sexual orientation or gender identity or expression.

"Sexual orientation", a person's romantic or sexual attraction to other people.

"Transgender", a person whose gender identity or gender expression differs from the birth sex of that person.

(b) Except as provided in subsection (c), long-term care facilities and long-term care facility staff shall not take any of the following actions based in whole or in part on a person's actual or perceived sexual orientation, gender identity, gender expression, intersex status or HIV status: (i) denying admission to a long-term care facility, transferring or refusing to transfer a resident within a facility or to another facility or discharging or evicting a resident from a facility; (ii) denying a request by residents to share a room; (iii) where rooms are assigned by gender, assigning, reassigning or refusing to assign a room to a transgender resident other than in accordance with the transgender resident's gender identity, unless at the transgender resident's request, and assigning, reassigning or refusing to assign a room to a non-binary resident other than in accordance with the non-binary resident’s preference; (iv) prohibiting a resident from using or harassing a resident for using or seeking to use, a restroom available to other persons of the same gender identity, regardless of whether the resident is making a gender transition, has taken or is taking hormones, has undergone gender affirmation surgery or presents as gender-nonconforming; provided, however, that for the purposes of this clause, harassment shall include, but not be limited to, requiring a resident to show identity documents to gain entrance to a restroom; (v) repeatedly and intentionally failing to use a resident's chosen name or pronouns after being informed of the chosen name or pronouns, in a manner that constitutes discrimination or harassment in violation of any applicable federal, state or local law; (vi) denying a resident the right to wear or be dressed in clothing, accessories or cosmetics or to engage in grooming practices that are permitted to any other resident; (vii) restricting a resident's right to associate with other residents or with visitors, including the right to consensual sexual relations where sexual relations would not be restricted if the participants were heterosexual or married; (viii) denying or restricting medical or nonmedical care that is appropriate to a resident's organs and bodily needs or providing such care that unduly demeans the resident or causes avoidable discomfort or harm; or (ix) refusing or willfully failing to provide any service, care or reasonable accommodation to a resident or an applicant for services or care.

(c) The requirements of this section shall not apply to the extent that compliance with the requirement is incompatible with any professionally reasonable clinical judgment or inconsistent with 42 CFR § 483.15(c)(1), 42 CFR § 483.24 and 105 CMR 150.003.

(d) Each facility shall distribute a document containing the following notice alongside the informational document required by section 72AA:

"[Name of facility] does not discriminate and does not permit discrimination by any person, including persons employed by the facility, residents, family members and other visitors to the facility including, but not limited to, abuse or harassment, on the basis of actual or perceived sexual orientation, gender identity, gender expression, intersex status or HIV status or based on association with another individual on account of that individual's actual or perceived sexual orientation, gender identity, gender expression, intersex status or HIV status. You may file a complaint with the office of the long-term care ombudsman, [provide current contact information] if you believe you have experienced this kind of discrimination."

(e) Each long-term care facility shall ensure that resident records, including records generated at the time of admission, include the resident's gender and the name and pronouns by which the resident would like to be identified, as indicated by the resident.

(f) Unless expressly authorized by the resident or the resident's authorized representative, long-term facility staff not involved in providing direct care to a resident shall not be present during physical examination of, or the provision of personal care to, that resident if the resident is partially or fully unclothed.

(g) Transgender residents shall be provided access to such transition-related assessments, therapy and treatments as have been recommended by the resident's health care provider, including, but not limited to, transgender-related medical care, including hormone therapy and supportive counseling, subject to availability and third-party medical coverage.

(h) LGBTQI-related programming, such as an LGBTQI Pride Month event or a Transgender Day of Remembrance event, shall be allowed and treated equally to other cultural celebrations or commemorations.

(i) The department shall promulgate regulations relative to discipline and penalties for long-term care facilities that violate the requirements of this section or that employ a staff member who violates the requirements of this section, which shall include, but not be limited to, civil penalties and other administrative action. Nothing in this section shall be construed to limit the ability of any party to bring a civil, criminal or administrative action for conduct constituting a violation of any other provision of law.

(j) (1) A long-term care facility shall ensure that the long-term care facility staff receive training, on at least a biennial basis, concerning: (i) the care of LGBTQI older adults and older adults living with HIV; and (ii) the prevention of discrimination based on sexual orientation, gender identity or expression, intersex status and HIV status.

(2) The training required by this section shall include, but not be limited to: (i) the definition of the terms commonly associated with sexual orientation, gender identity and expression, intersex status and HIV status; (ii) best practices for communicating with or about LGBTQI older adults and older adults living with HIV and others who are LGBTQI or living with HIV, including the use of any name and pronouns by which residents may express the desire to be identified; (iii) a description of the health and social challenges historically experienced by LGBTQI older adults and older adults living with HIV and others who are LGBTQI or living with HIV, including discrimination when seeking or receiving care at long-term care facilities, and the demonstrated physical and mental health effects within the LGBTQI community associated with such discrimination; (iv) strategies to create a safe and affirming environment for LGBTQI seniors and residents living with HIV, including suggested changes to facility policies and procedures, forms, signage, communication between residents and their families, activities and staff training and in-services; and (v) an overview of the provisions of this section.

(3) The department shall select an entity that has demonstrated expertise in creating safe and affirming environments and identifying the legal, social and medical challenges faced by LGBTQI older adults and older adults living with HIV and others who are LGBTQI or living with HIV, who reside in long-term care facilities, to provide the training required by this section.

(4) Long-term care facility staff shall complete all training required by this section within 1 year of their date of hire unless the new hire provides the long-term care facility with documentation demonstrating that they have completed equivalent training within the past 2 years.

(5) Each long-term care facility shall retain records documenting the completion of the training required pursuant to this section by each administrator and staff member at the long-term care facility. Compliance records shall be made available, upon request, to the department, the executive office of health and human services and the office of the statewide long-term care ombudsman.

(6) Each long-term care facility shall assume the cost of providing the training required pursuant to this section.

(k) The commissioner and the secretary of health and human services shall adopt rules and regulations as may be necessary to implement this section.

SECTION 16. Said chapter 111 is hereby further amended by striking out section 73, as so appearing, and inserting in place thereof the following section:-

Section 73. (a) Whoever advertises, announces, establishes or maintains, or is otherwise engaged in any business with or is concerned in establishing or maintaining a long-term care facility without a license granted pursuant to section 71 or 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, 72C and 72FF shall be punished by a fine not to exceed $500, unless the department determines a higher amount is appropriate in accordance with 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. 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 17. Section 28 of chapter 118E of the General Laws, as so appearing, is hereby amended by adding the following paragraph:-

The division shall consider a transfer of assets by an individual age 65 or older or a transfer made for the sole benefit of an individual age 65 or older into a trust pursuant to 42 U.S.C. 1396p(d)(4)(C), established for the sole benefit of said individual, to be a disposal of resources for fair market value, to the extent that such resources shall be available, under any circumstances, to be used by the trustee to provide goods and services to the individual, or to reimburse such costs, at fair market value.

SECTION 18. Section 31 of said chapter 118E, as so appearing, is hereby amended by inserting after subsection (b) the following subsection:-

(b½) This subsection shall apply to estates of individuals dying on or after August 1, 2024. There shall be no adjustments or recovery of medical assistance correctly paid except for recovery from the estate of an individual who was:

(i) regardless of age, a resident in a nursing facility or other medical institution within the meaning of 42 U.S.C. 1396p(a)(1)(B)(i) when the individual received such assistance; provided, however, that recovery of such assistance shall be limited to assistance provided on or after March 22, 1991; or

(ii) 55 years of age or older when the individual received such assistance, where such assistance was for services provided on or after October 1, 1993, but only for medical assistance consisting of nursing facility services, home and community-based services and related hospital and prescription drug services for which estate recovery is mandated under 42 U.S.C. 1396p(b)(1)(B)(i) or other federal law.

Any recovery may be made only after the death of the surviving spouse, if any, and only at a time when the individual has no surviving child who is: (i) under the age of 21; or (ii) an individual who is blind or an individual with a disability.

SECTION 19. Said section 31 of said chapter 118E, as so appearing, is hereby further amended by adding the following subsection:-

(e) Notwithstanding subsection (b½), there shall be no adjustment or recovery of medical assistance correctly paid from the estate of an individual who was receiving such assistance under the CommonHealth program for adults with disabilities or for payment of personal care attendant services; provided, however, that the executive office shall seek federal authority, if required, to implement this subsection.

SECTION 20. 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 may 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) When determining eligibility for add-on or enhanced rates for specialized care units, as authorized by paragraph (2) of section 72 of chapter 111, the division shall consider whether the facility has complied with standards, as determined and certified by the department of public health, which may include, but not be limited to, clinical expertise, staff licensing, staff training, staff certification, unit accreditation, staff ratios, use of psychotropic medications and non-pharmacological interventions, therapeutic and psychosocial programming to develop and maintain daily living skills and encourage socialization, use of behavior plans and other requirements of care and treatment as determined by the department.

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

SECTION 21. 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 22. Section 23 of chapter 20 of the acts of 2021 is hereby repealed.

SECTION 23. (a) For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Enrollee”, shall have the same meaning as in section 8A of chapter 118E of the General Laws; provided, however, 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”, (i) a facility licensed under chapter 111 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; provided, however, that no admission may occur until the pre-admission screening and resident review pursuant to 42 CFR 483 is complete. 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, however, 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, however, 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 24. For the purposes of this section, “payer” shall mean 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.               Notwithstanding any general or special law to the contrary, not later than 90 days after the effective date of this act, 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. Said uniform prior authorization form shall state that no admission to a nursing facility may occur until the preadmission screening and resident review required under 42 CFR 483 is complete. 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 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 25. (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.

(b) Pursuant to section 71 of chapter 111 of the General Laws, 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 of the management company, as described in subsection (g) of said section 71 of said chapter 111, 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.

SECTION 26. (a) There shall be a special commission to study oversight of continuing care retirement communities to protect the consumer and financial rights of residents.

(b) The commission shall consist of: the chairs of the joint committee on elder affairs, who shall serve as co-chairs; the attorney general or a designee; the secretary of elder affairs or a designee; the commissioner of public health or a designee; 3 persons to be appointed by the governor, 1 of whom shall be a certified public accountant or an actuary and 2 of whom shall be residents at a continuing care retirement community; a representative of  the Massachusetts chapter of National Academy of Elder Law Attorneys; a representative of LeadingAge Massachusetts, Inc.; a representative of Massachusetts Assisted Living Association, Inc.; a representative of AARP Massachusetts; a representative of the Alzheimer’s Association; a representative of Massachusetts Advocates for Nursing Home Reform, Inc.; a representative of the Massachusetts Life Care Residents’ Association, Inc.; a representative of Massachusetts Senior Care Association, Inc.; and a representative of Local 1199 SEIU. The commission shall meet not less than 6 times and shall hold not less than 1 public hearing.

(c) The commission shall study and report on: (i) continuing care retirement communities, their care contracts and their impact on consumers; (ii) the financial viability of such communities; (iii) the payment and return of entrance fees at such communities; (iv) statutory and regulatory oversight of such communities, including any activities by state agencies to enforce regulatory requirements; (v) advertising practices communicated to potential residents and families about such communities; and (vi) regulatory procedures for the closure or change of ownership of such communities.

(d) The commission shall submit a report with recommendations, including legislation or regulations necessary to carry out such recommendations, to the clerks of the house of representatives and the senate, the joint committee on elder affairs and the senate and house committees on ways and means not later than August 1, 2025.

SECTION 27. (a) The department of public health shall study and report on the need and feasibility of qualified professional guardians to give informed medical consent for indigent persons and whether such guardians would reduce hospital discharge issues and increase access to long-term care and preventive care; provided, however, that the report shall include, but not be limited to: (i) the need for qualified professional guardians to assist indigent persons with accessing appropriate medical care, including  preventive care; (ii) data on the current number of Rogers guardians and similar guardians and the financial impact of reimbursing such guardians; (iii) the fiscal impact of establishing MassHealth fee-for-service guardians; and (iv) other recommendations deemed necessary by the department.

(b) Not later than July 31, 2025, the department shall submit its report, including any proposed legislation necessary to carry out its recommendations, to the clerks of the senate and house of representatives, the senate and house committees on ways and means and the joint committee on elder affairs.

SECTION 28. (a) There shall be a taskforce to review the viability and sustainability of long-term care facilities in the commonwealth.

(b) The taskforce shall consist of: the secretary of health and human services, who shall serve as chair; the secretary of elder affairs or a designee; commissioner of public health or a designee; 4 persons to be appointed by the governor, 1 of whom shall represent long-term care facilities, 1 of whom shall operate an assisted living residence, 1 of whom shall represent residents of long-term care facilities in the commonwealth and 1 of whom shall be health care economist;  a representative of LeadingAge Massachusetts, Inc., a representative of 1199SEIU; a representative of Massachusetts Association of Residential Care Homes, Inc.; a representative of the Massachusetts Senior Action Council, Inc; and a representative of Massachusetts Senior Care Association.

In making appointments, the governor shall, to the maximum extent feasible, ensure that the task force represents a broad distribution of diverse perspectives and geographic regions.

(c) In making recommendations, the task force shall consider issues including, but not limited to: (i) the demand for long-term care facilities over the next 5 and 10 years and the ability to meet that demand in a cost-effective manner; (ii) the geographic accessibility of such facilities; (iii) staffing challenges and workforce initiatives to support such facilities including but not limited to childcare; (iv) the utilization of pharmacists and other health care providers in long-term care; (v) any  policy reforms to strengthen long-term care in the commonwealth including but not limited to, maintaining quality of care; (vi) the adequacy of payor rates; (vii) costs and impacts of financing for facility construction and maintenance, including but not limited to, private equity and real estate investment trusts; and (viii) costs associated with transportation options to and from facilities for individuals.

(d) The task force shall submit its report, recommendations and any proposed legislation necessary to carry out its recommendations to the clerks of the senate and house of representatives, the joint committee on health care financing, the joint committee on elder affairs and the senate and house committees on ways and means not later than July 31, 2025.

SECTION 29.  (a) Notwithstanding any general or special law to the contrary, there shall be an assisted living residences commission to study and recommend policies to ensure assisted living residences adequately meet the health and safety needs of residents. The areas examined by the commission shall include, but not be limited to: (i) the current statutory and regulatory oversight of assisted living residences; (ii) assisted living best practices in other states; (iii) the impacts  of licensing or certifying such residences; (iv) advertising practices of assisted living residences to potential residents and their families; (v) regulatory procedures for opening, closing or changing ownership of a residence, including determination of need processes and clustering of facilities; (vi) trends in incident reports made to the executive office of elder affairs and the long term care ombudsman’s office and resolutions of such incidents; (vii) methods to provide transparency of information for potential consumers and family members researching and comparing residences; (viii) safety standards; (ix) existing consumer protections for residents in statutes and regulations; and (x) basic health services in residences.

(b) The commission shall consist of: the secretary of elder affairs, who shall serve as chair; the commissioner of public health or a designee; the assistant secretary of MassHealth or a designee; the long term care ombudsman or a designee; the chairs of the joint committee on elder affairs; 1 member to be appointed by the senate president; 1 member to be appointed by the speaker of the house; 1 member to be appointed by the minority leader of the senate; 1 member to be appointed by the minority leader of the house of representatives; 3 members to be appointed by the governor, 2 of whom shall be residents or family members of residents at an assisted living residence; a representative of the Massachusetts chapter of the National Academy of Elder Law Attorneys; a representative of LeadingAge Massachusetts, Inc.; a representative of the Massachusetts Assisted Living Association, Inc.; a representative of AARP Massachusetts; a representative of the New England chapter of the Gerontological Advanced Practice Nurses Association; a representative of the Massachusetts chapter of the Alzheimer’s Association; a representative of MassPACE, Inc.; and a representative of Greater Boston Legal Services, Inc.. The commission shall meet not less than 5 times and shall hold at least 1 public hearing.

(c) The commission shall file its report and recommendations, including any proposed legislation necessary to carry out its recommendations, to the clerks of the senate and house of representatives, the joint committee on elder affairs and the house and senate committees on ways and means not later than August 1, 2025.

SECTION 30. Notwithstanding any general or special law to the contrary, the executive office shall report to the house and senate committees on ways and means, not later than 90 days after the effective date of this act, on the availability of a waiver and, if applicable, the estimated net state cost of a waiver that would allow individuals qualifying for Medicaid and at risk of entering a nursing home to reside in a certified assisted living residence. The executive office of health and human services may request a waiver from the federal Centers for Medicare and Medicaid Services to allow individuals qualifying for Medicaid and at risk of entering a nursing home to reside in a certified assisted living residence.

SECTION 31. Pursuant to section 72CC of chapter 111 of the General Laws, 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 32. (a) Each long-term care facility shall designate 2 employees, including 1 employee representing management at the facility and 1 employee representing direct care staff at the facility, to receive in-person training required by section 72FF of chapter 111 of the General Laws within 6 months of the effective date of this act. The designated employees shall serve as points of contact for the long-term care facility regarding compliance with the provisions of this act and shall develop a general training plan for the facility. In the event a designated employee ceases to be employed by the facility, the facility shall designate another employee who is representative of the employee group represented by the former designee, who shall complete the in-person training required pursuant to this section, to serve as a point of contact for the facility regarding compliance with the provisions of this act and have joint responsibility for the facility's training plan.

(b) All long-term care facility staff employed by a long-term care facility on the effective date of this act, other than an employee designated pursuant to subsection (a), shall complete the training required by 72FF of chapter 111 of the General Laws within 1 year of the effective date of this act.

SECTION 33. Sections 15 and 32 shall take effect 180 days after the effective date of this act.

SECTION 34. Section 83 of chapter 118E of the General Laws, inserted by section 20, shall take effect on October 1, 2025.

SECTION 35. Section 23 is hereby repealed.

SECTION 36. Section 35 shall take effect 2 years after the effective date of this act.