Section 76: Sale of life leases and long-term leases in nursing homes, retirement homes and homes for aged
Section 76. (a) The following terms, as used in this section, shall have the following meanings:
''Continuing care'', the furnishing to an individual, other than an individual related by consanguinity or affinity to the person furnishing such care, of board and lodging together with nursing services, medical services or other health related services, regardless of whether or not the lodging and services are provided at the same location, pursuant to a contract effective for the life of the individual or for a period in excess of one year.
''Entrance fee'', an initial or deferred transfer to a provider of a sum of money or other property made or promised to be made as full or partial consideration for acceptance of a specified individual as a resident in a facility. No part of any fee payable on a periodic basis for board, lodging, medical or other health related services rendered by the provider to a resident shall be considered as constituting an entrance fee. No application charge or other sum payable in addition to such periodic fees, which does not exceed four times such periodic fees, shall be considered as constituting an entrance fee.
''Facility'', the place or places in which a person undertakes to provide continuing care to an individual.
''Living unit'', a room, apartment, cottage or other area within a facility set aside for the exclusive use or control of one or more identified individuals.
''Long term care services'', a combination of nursing home care, in-home nursing care, assisted living services, independent living services, home health care, personal care, homemaking, case management or comparable services designed to enable a functionally impaired resident to maintain himself and his living unit, as safely and comfortably as is reasonably possible in a continuing care setting as defined herein. For the purposes of this chapter, the term ''long term care services'' shall also be construed to include necessary or medically necessary diagnostic, preventive, therapeutic, rehabilitative, or custodial care.
''Provider'', a person undertaking to provide continuing care in a facility that charges an entrance fee.
''Resident'', an individual entitled to receive continuing care in a facility.
''Residents association'', an organization formed by the residents of a facility to represent the residents' interests before providers and to promote and provide for the general welfare of residents.
(b) At the time of or prior to the execution of a contract to provide continuing care, or at the time of or prior to the transfer of any money or other property to a provider by or on behalf of a prospective resident, whichever shall first occur, the provider shall deliver a disclosure statement to the person with whom the contract is to be entered into, the text of which shall contain, to the extent not clearly and completely set forth in the contract for continuing care attached as an exhibit thereto, at least the following information:
(1) The name and business address of the provider and a statement of whether the provider is a partnership, corporation, or other type of legal entity.
(2) The names of the officers, directors, trustees, or managing or general partners of the provider and a description of each such person's occupation with the provider.
(3) A description of the business experience of the provider in the operation or management of similar facilities and of the manager of the facility if the facility will be managed on a day-to-day basis by an organization other than the provider.
(4) A statement as to whether or not the provider is, or is affiliated with, a religious, charitable or other nonprofit organization; the extent of the affiliation, if any, the extent to which the affiliate organization will be responsible for the financial and contract obligations of the provider, and the provision of the federal Internal Revenue Code, if any, under which the provider or affiliate is exempt from the payment of income tax.
(5) The location and description of the physical property or properties of the facility, existing or proposed; and to the extent proposed, the estimated completion date or dates, whether or not construction has begun and the contingencies subject to which construction may be deferred.
(6) Certified financial statements of the provider, including (a) a balance sheet as of the end of the most recent fiscal year and (b) income statements for the three most recent fiscal years of the provider or such shorter period of time as the provider shall have been in existence. If the provider's fiscal year ended more than ninety days prior to the date the application is filed, interim financial statements as of a date not more than ninety days prior to such filing shall be included, but need not be certified.
(7) If the operation of the facility has not yet commenced, a statement of the anticipated source and application of the funds used or to be used in the purchase or construction of the facility, including: (i) an estimate of the cost of purchasing or constructing and equipping the facility including such related costs as financing expense, legal expense, land costs, occupancy development costs, and all other similar costs which the provider expects to incur or become obligated for prior to the commencement of operations, (ii) a description of any mortgage loan or other long-term financing intended to be used for the financing of the facility, including the anticipated terms and costs of such financing, (iii) an estimate of the total entrance fees to be received from residents at or prior to commencement of operation of the facility, (iv) an estimate of the funds, if any, which are anticipated to be necessary to fund start-up losses and provide reserve funds to assure full performance of the obligations of the provider under contracts for the provision of continuing care, (v) a projection of estimated income from fees and charges other than entrance fees, showing individual rates presently anticipated to be charged and including a description of the assumptions used for calculating the estimated occupancy rate of the facility and the effect on the income of the facility of government subsidies for health care services, if any, to be provided pursuant to the contracts for continuing care, and (vi) such other material information concerning the facility or the provider as the provider wishes to include.
(c) All contracts for continuing care used by a provider shall provide that:
(1) The party contracting with the provider may rescind the contract at any time prior to occupying a living unit in the facility, in which event the party shall, within a reasonable period, receive a refund of all money or property transferred to the provider, less (a) those costs specifically incurred by the provider or facility at the request of the party and described in the contract or an addendum thereto signed by the party; and (b) a reasonable service charge, if set out in the contract, not to exceed one per cent of the entrance fee. If the unit is available for occupancy on the occupancy date agreed upon in the contract, and the party has failed to occupy said unit, the party shall be deemed to have rescinded the contract, unless the party and the provider agree in writing to extend the occupancy date.
(2) If the unit is not available for occupancy on the date agreed upon in the contract, and the party has not rescinded the contract, the contract shall be automatically canceled, unless the party and the provider agree in writing to extend the occupancy date. If the contract is automatically canceled the party shall, within a reasonable period, receive a refund of all money or property transferred to the provider plus a reasonable inconvenience fee, if set out in the contract, not to exceed one per cent of the amount of the entrance fee.
(3) If a resident dies before occupying a living unit in the facility, the contract is automatically canceled and the legal representative of the resident shall receive a refund of all money or property transferred to the provider, less (a) those costs specifically incurred by the provider or facility at the request of the resident and described in the contract or an addendum thereto signed by the resident; and (b) a reasonable service charge, if set out in the contract, not to exceed one per cent of the entrance fee.
(4) The entrance fee minus no more than one per cent for each month of occupancy shall be refunded to the resident when the resident leaves the facility or dies.
(5) The services provided or proposed to be provided under contracts for continuing care at the facility, including the extent to which medical care is furnished, and specifying those services which are included in the basic contract and those made available at or by the facility at extra charge.
(6) A description of all fees required of residents, including the entrance fee and periodic charges, if any. The description shall include: (i) a statement of the fees that will be charged if the resident marries while at the facility, and a statement of the terms concerning the entry of a spouse to the facility and the consequences if the spouse does not meet the requirement for entry, (ii) the circumstances under which the resident will be permitted to remain in the facility in the event of possible financial difficulties of a resident, (iii) the conditions under which a living unit occupied by a resident may be made available by the facility to a different or new resident other than on the death of the original resident and (iv) the manner by which the provider may adjust periodic charges or other recurring fees and the limitations on such adjustments, if any. If the facility is already in operation, or if the provider or manager operates one or more similar facilities within the commonwealth, there shall be included tables showing the frequency and average dollar amount of each increase in periodic rates at each such facility for the previous five years or such shorter period as the facility may have been operated by the provider or manager.
(7) The health and financial conditions required for an individual to be accepted as a resident and to continue as a resident once accepted, including the effect of any change in the health or financial condition of a person between the date of entering a contract for continuing care and the date of initial occupancy of a living unit by that person.
(8) The provisions that have been made or will be made, if any, to provide reserve funding or security to enable the provider to fully perform its obligations under contracts to provide continuing care at the facility, including the establishment of escrow accounts, trusts or reserve funds, together with the manner in which such funds will be invested and the names and experience of persons who will make the investment decisions.
Any contract drawn in violation of this section may be rescinded by the resident and the resident shall be entitled to a full refund of the entrance fee.
(d) For the purpose of this subsection, ''marketing'' shall include but not be limited to establishment of a waiting list, acceptance of money, property or other consideration or distribution of marketing brochures by the provider. Any provider intending to market or develop continuing care pursuant to a contract which would require prepayment for some or all of the covered long-term care services or intending to market or develop additional units of such continuing care shall forward a copy of the following information to the executive office of elder affairs within thirty days following the implementation of marketing of the continuing care facility:
(1) the disclosure statement required under subsection (b) to be delivered to the persons with whom the contract for continuing care is to be entered;
(2) the contracts for continuing care to be entered into by the provider under subsection (c) with a person who will occupy a living unit in a continuing care facility; and
(3) any available advertising or promotional material to be used in conjunction with such marketing effort.
A provider shall forward a copy of any changes in the information required to be provided within thirty days after the provider's utilization of such changed materials with prospective residents or residents of the continuing care facility. A provider intending to market or develop additional units of continuing care who has filed such information with the executive office of elder affairs pursuant to a previous marketing effort on the same units shall not be required to refile unless there has been a change in the information submitted. Said executive office of elder affairs shall make such information available to the public in a manner which shall allow residents and prospective residents to make informed choices regarding the selection of a provider, packages of services and coverage and care alternatives.
Such provider shall forward a copy of the building permit for such continuing care facility to said executive office of elder affairs within thirty days after its issuance by the city or town wherein such facility shall be located.
(e) A provider providing continuing care on the effective date of this statute under a contract which would require prepayment for some or all of the covered long-term care services shall, within thirty days after such effective date, forward a copy of the following information to the executive office of elder affairs:
(1) the disclosure statement required under subsection (b) to be delivered to the persons with whom the contract for continuing care shall be entered;
(2) the contract for continuing care to be entered into by the provider under subsection (c) with a person who will occupy a living unit in any such continuing care facility;
(3) any available advertising or promotional material to be used in conjunction with such marketing effort; and
(4) a copy of the building permit for such continuing care facility.
Any such provider shall forward a copy of any changes in the information required to be provided within thirty days after the provider's utilization of such materials with prospective residents or residents of the continuing care facility. A provider intending to market or develop additional units of continuing care who has filed such information with said executive office of elder affairs pursuant to a previous marketing effort on the same units shall not be required to refile unless there has been a change in the information submitted. Said executive office of elder affairs shall make such information available to the public in a manner which shall allow residents and prospective residents to make informed choices regarding the selection of a provider, packages of services and coverage and care alternatives.
Notwithstanding the remedy set forth in subsection (c), violation of the provisions of this section by a facility shall constitute an unfair and deceptive trade practice under the provisions of chapter ninety-three A.
(f) Residents may:
(1) establish a residents association and elect the officers of the residents association;
(2) receive, upon request, a current copy of the facility's disclosure statement as described in subsection (b), and providers shall, upon request, make a reasonable effort to explain the terms and information contained within the disclosure document; provided, however, that nothing in this paragraph shall be construed to modify the contractual rights of residents or providers and providers may make reasonable provisions for the form and manner in which such requests shall be submitted;
(3) submit comments to providers on matters that may affect the health and welfare of residents and affecting the future of the facility, including but not limited to, the facility's size and ownership and the provider's financial health; provided, that providers may make reasonable provisions for the form and manner in which such comments shall be submitted; and provided further, that, to the maximum extent feasible, providers shall seek comment from residents when designing or adopting policies that significantly affect the future of the facility;
(4) receive, upon request, information regarding any major construction, modification, expansion or renovation of the facility, including information on cost estimates, funding, financing, projected income, schedule and impacts on the existing facility; provided, that providers may make reasonable provisions for the form and manner in which such requests shall be submitted; and
(5) receive, upon request, information regarding the purpose and intended funding of all financial reserves kept by the provider; provided, that providers may make reasonable provisions for the form and manner in which such requests may be submitted.
(g) Providers shall, to the maximum extent practicable:
(1) offer a reasonable explanation of any adjustments in monthly fees and other major fees paid by residents;
(2) inform residents of matters that may affect the health and welfare of residents and affecting the future of the facility, including but not limited to, the facility's size and ownership and the provider's financial health; provided, that on such matters, providers shall facilitate communications between residents and management and between residents and boards or owners, which may include residents' representation on the provider's managing body, but need not depend solely on board representation; and
(3) make use of applicable standards and practices to maintain and project each facility's operational and financial viability, and, upon request, give that information regarding such standards and practices used by providers to the residents; provided, that providers may make reasonable provisions for the form and manner in which such requests shall be submitted.