HOUSE . . . . . . . No. 4178
The Commonwealth of Massachusetts
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HOUSE OF REPRESENTATIVES, November 14, 2023.
The committee on Ways and Means, to whom was referred the Bill to
improve quality and oversight of long-term care (House, No. 3929),
reports recommending that the same ought to pass with an amendment
substituting therefor the accompanying bill (House, No. 4178).
For the committee,
AARON MICHLEWITZ.
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FILED ON: 11/14/2023
HOUSE . . . . . . . . . . . . . . . No. 4178
The Commonwealth of Massachusetts
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In the One Hundred and Ninety-Third General Court
(2023-2024)
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An Act to improve quality and oversight of long-term care.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 10 of the General Laws is hereby amended by inserting after
2section 35SSS the following section:-
3 SECTION 35TTT. (a) There shall be established and set up on the books of the
4commonwealth a separate fund known as the Long-Term Care Workforce and Capital Fund. The
5fund shall be administered by the secretary of health and human services in consultation with the
6advisory committee established pursuant to subsection (c). The secretary may use amounts
7credited to the fund to pay for: (i) the administration of the capital loan program pursuant to
8subsection (e); and (ii) the workforce training programs pursuant to subsection (d), including the:
9(A) program costs, tuition, books and fees related to the cost of education and training for
10participants in the programs; (B) costs related to obtaining an applicable license, including, but
11not limited to, examination and licensing fees; (C) stipends for program participants; and (D)
12stipends for childcare and transportation for program participants. 2 of 35
13 (b) The fund shall consist of: (i) any revenues or other financing sources directed to the
14fund by appropriation; (ii) 50 per cent of any amount recovered by the commonwealth and
15credited thereto in connection with civil actions brought pursuant to section 72K of chapter 111;
16(iii) bond revenues or other money authorized by the general court and specifically designated to
17be credited to the fund; (iv) any income derived from the investment of amounts credited to the
18fund or repayment of loans from the fund; (v) funds from public or private sources, including,
19but not limited to, gifts, federal or private grants, donations, rebates and settlements received by
20the commonwealth that are specifically designated to be credited to the fund; and (vi) all other
21amounts credited or transferred into the fund from any other source. The executive office of
22health and human services shall seek to maximize fund revenues through federal money,
23matching funds and grants. Any unexpended balances in the fund at the end of the fiscal year
24shall not revert to the General Fund and shall be available for expenditures in subsequent fiscal
25years. Any fiscal year-end balance in the fund shall be excluded from the calculation of the
26consolidated net surplus pursuant to section 5C of chapter 29. The fund shall not be subject to
27appropriation.
28 (c) There shall be an advisory committee that shall consist of the following members: the
29assistant secretary for MassHealth, or their designee, who shall serve as chair; the secretary of
30labor and workforce development, or their designee; the commissioner of public health, or their
31designee; and 2 persons to be appointed by the governor, 1 of whom shall be a representative of
32the Massachusetts Senior Care Association, Inc. and 1 of whom shall be a representative of
33Local 1199 Service Employees International Union. 3 of 35
34 (d) The secretary of health and human services, in consultation with the advisory
35committee, shall establish, and the executive office of health and human services shall
36administer, workforce training grant programs to:
37 (i) train new certified nurses’ aides to work in licensed long-term care facilities;
38 (ii) advance the skills of certified nurses’ aides, home health aides, homemakers and
39other entry-level workers in long-term care facilities to improve quality of care and improve
40worker access to and participation in a career pathway to become a licensed practical nurse; and
41 (iii) provide long-term care supervisory and leadership training, which shall consist of
42evidence-based supervisory training for the purposes of improving staff satisfaction, retaining
43staff and reducing staff turnover.
44 (e) The secretary of health and human services, in consultation with the advisory
45committee, shall establish a no interest or forgivable capital loan program for skilled nursing
46facilities to:
47 (i) support the development of specialized care units, including, but not limited to: (A)
48infectious disease isolation; (B) dementia special care; (C) degenerative neurological units; (D)
49geriatric psychiatry; (E) traumatic brain injury; (F) in-house dialysis treatment; (G) behavioral
50health and substance use disorder; and (H) bariatric patient care;
51 (ii) enable facilities to offset the costs of pay-go capital; and
52 (iii) support innovative projects, including, but not limited to: (A) converting of sections
53within skilled nursing facilities into affordable housing, veterans housing or assisted living units
54to accommodate individual needs of residents; (B) converting multi-bed rooms to single 4 of 35
55occupancy to enhance privacy and dignity; and (C) establishing voluntary skilled nursing facility
56reconfigurations, including, but not limited to, providing financial incentives to reduce capacity
57and balance supply and demand based on regional needs.
58 (f) Annually, not later than December 1, the secretary of health and human services shall
59report on the activities of the fund to the clerks of the house of representatives and the senate and
60to the house and senate committees on ways and means. The report shall include: (i) an
61accounting of expenditures made from the fund with a description of the authorized purpose of
62each expenditure; (ii) an accounting of amounts credited to the fund; and (iii) any unexpended
63balance remaining in the fund.
64 SECTION 2. Chapter 111 of the General Laws is hereby amended by striking out section
6571 and inserting in place thereof the following section:-
66 Section 71. (a) For purposes of this section and sections 71A½ to 73, inclusive, the
67following words shall, unless the context clearly requires otherwise, have the following
68meanings:
69 “Applicant”, any person who applies to the department for a license to establish or
70maintain and operate a long-term care facility.
71 “Charitable home for the aged”, any institution, however named, conducted for charitable
72purposes and maintained for the purpose of providing a retirement home for elderly persons and
73which may provide nursing care within the home for its residents.
74 “Cohorting”, the practice of grouping patients who: (i) are colonized or infected with the
75same organism in order to confine their care to 1 area and prevent contact with other patients; or 5 of 35
76(ii) are not colonized or infected with the same organism in order to confine their care to 1 area
77and prevent contact with other patients.
78 “Convalescent or nursing home”, any institution, however named, including a skilled
79nursing facility, whether conducted for profit or not for profit, which is advertised, announced or
80maintained for the express or implied purpose of caring for 4 or more persons admitted thereto
81for the purpose of nursing or convalescent care.
82 “Correct by date”, the date by which a licensee shall remedy or correct any violation
83discovered after an inspection by the department pursuant to section 72E.
84 “Endemic level”, the usual level of a given disease in a geographic area.
85 “Intermediate care facility for persons with an intellectual disability”, any institution,
86however named, that: (i) is conducted for charity or not for profit; (ii) is advertised, announced or
87maintained for the purpose of providing rehabilitative services and active treatment to persons
88with an intellectual disability or persons with related conditions, as defined in regulations
89promulgated pursuant to Title XIX of the federal Social Security Act, Public Law 89-97; (iii) is
90not both owned and operated by a state agency; and (iv) makes application to the department for
91a license for the purpose of participating in the federal program established by said Title XIX.
92 “Isolating”, the process of separating persons colonized or infected with a communicable
93disease from those who are not colonized or infected with a communicable disease.
94 “License”, an initial or renewal license issued by the department and which permits the
95licensee to establish or maintain and operate a long-term care facility. 6 of 35
96 “Licensee”, a person permitted to establish or maintain and operate a long-term care
97facility through a license.
98 “Long-term care facility”, a charitable home for the aged, convalescent or nursing home,
99skilled nursing facility, intermediate care facility for persons with an intellectual disability or rest
100home.
101 “Long-term care services”, include: (i) long-term resident, nursing, convalescent or
102rehabilitative care; (ii) supervision and care incident to old age for ambulatory persons; or (iii)
103retirement home care for elderly persons.
104 “Management company”, an organization engaged by a licensee to manage the operations
105at a long-term care facility.
106 “Outbreak”, any unusual occurrence of disease or any disease above endemic levels.
107 “Owner”, any person with an ownership interest of not less than 5 per cent, or with a
108controlling interest in an applicant, licensee, potential transferee or the real property on which a
109long-term care facility is located.
110 “Person”, an individual, trust, partnership, association, corporation or other form of
111business association.
112 “Potential transferee”, a person who submits to the department a notice of intent to
113acquire the facility operations of a currently operating long-term care facility.
114 “Religious and recreational activities”, any religious, social or recreational activity that is
115consistent with the resident’s preferences and choosing, regardless of whether the activity is
116coordinated, offered, provided or sponsored by facility staff or by an outside activities provider. 7 of 35
117 “Resident”, an individual who resides in a long-term care facility.
118 “Rest home”, any institution, however named, which is advertised, announced or
119maintained for the express or implied purpose of providing care incident to old age to 4 or more
120persons who are ambulatory and who do not require a specific level of nursing care or other
121medically related services on a routine basis.
122 “Skilled nursing facility”, any institution, however named, whether conducted for profit
123or not for profit, which is certified by the federal Centers for Medicare and Medicaid Services for
124the purpose of providing continuous skilled nursing care and rehabilitative services for 4 or more
125persons.
126 “Small house nursing home”, 1 or more units of a convalescent or nursing home designed
127and modeled as a residential home including a central living space, kitchen, dining area, living
128area and outdoor space.
129 “Transfer of facility operations”, a transfer of the operations of a long-term care facility
130from a licensee to a potential transferee.
131 (b)(1) The department shall issue for a term of 2 years, and shall renew for like terms, a
132license, subject to the restrictions in this section, to each applicant the department deems
133responsible and suitable to establish or maintain and operate a long-term care facility and which
134meets all other requirements for long-term care facility licensure pursuant to this chapter. A
135license issued pursuant to this section shall not be transferable or assignable and shall be issued
136only for the premises named in the application. 8 of 35
137 (2) Each long-term care facility shall be subject to not less than 1 periodic, resident-
138centered inspection per year for the purpose of gathering information about the quality of
139services furnished in the long-term care facility to determine compliance with applicable state
140and federal requirements.
141 (3) The department may, when public necessity and convenience require, or to prevent
142undue hardship to an applicant or licensee, pursuant to such rules and regulations as it may
143adopt, grant a temporary provisional or probationary license pursuant to this section; provided,
144however, that no such license shall be for a term exceeding 1 year.
145 (4) The fee for a license to establish or maintain and operate a long-term care facility
146shall be determined annually by the secretary of administration and finance pursuant to section
1473B of chapter 7.
148 (c) The department shall not issue a license to establish or maintain an intermediate care
149facility for persons with an intellectual disability unless the department determines that there is a
150need for such a facility at the designated location; provided, however, that in the case of a facility
151previously licensed as an intermediate care facility for persons with an intellectual disability in
152which there is a change in ownership or transfer of operations, no such determination shall be
153required; and provided further, that in the case of a facility previously licensed as an intermediate
154care facility for persons with an intellectual disability in which there is a change in location, such
155determination shall be limited to consideration of the suitability of the new location.
156 (d)(1) In the case of the transfer of facility operations of a long-term care facility, a
157potential transferee shall submit a notice of intent to acquire to the department not less than 90
158days prior to the proposed transfer date. The notice of intent to acquire shall be on a form 9 of 35
159supplied by the department and shall be deemed complete upon submission of all information the
160department requires on said form. The potential transferee shall be deemed responsible and
161suitable upon the expiration of the 90-day period, or upon the expiration of said period as
162extended, if the department fails to notify said potential transferee in writing of its decision
163within the 90-day period or within the expiration of the extension period, whichever is
164applicable.
165 (2) A potential transferee shall, concurrently with the submission of an intent to acquire,
166provide notice to the current staff of the facility, and to any labor organization that represents the
167facility’s staff at the time the notice of intent to acquire is submitted, of the potential transferee’s
168plans to retain or not retain the facility staff and to recognize and bargain with any labor
169organizations currently representing the facility staff.
170 (3) Upon determination by the department that a potential transferee is responsible and
171suitable for licensure, the potential transferee may file an application for a license. In the case of
172a potential transfer of facility operations, the filing of an application for a license shall have the
173effect of a temporary provisional or probationary license until the department takes final action
174on such application.
175 (4) Upon an approved transfer of facility operations, the department shall not reduce the
176number of beds it originally approved in granting a license, unless a reduction in the number of
177beds is in the interest of public health, welfare or safety.
178 (e) Every applicant for a license shall provide on or with its application, and every
179potential transferee shall provide on or with its notice of intent to acquire, a sworn statement of
180the names and addresses of any owner of the applicant or the potential transferee. 10 of 35
181 (f) No license shall be issued to an applicant or potential transferee prior to a
182determination by the department that the applicant or potential transferee is responsible and
183suitable pursuant to subsection (g).
184 (g) For the purposes of this section, the department’s determination of responsibility and
185suitability shall include, but shall not be limited to, the following factors:
186 (1) the criminal history of the applicant or the potential transferee, including its respective
187owners and management companies, and, to the extent possible, the civil litigation history of the
188applicant or potential transferee, including its respective owners and contracted management
189companies, including litigation related to the operation of a long-term care facility, such as
190quality of care, safety of residents or staff, employment and labor issues, fraud, unfair or
191deceptive business practices and landlord-tenant issues; provided, that such criminal and civil
192litigation history may include pending or other court proceedings in the commonwealth and in
193any other state or federal jurisdiction. Any information related to criminal or civil litigation
194obtained by the department pursuant to this section shall be confidential and exempt from
195disclosure under clause Twenty-sixth of section 7 of chapter 4 and chapter 66;
196 (2) the financial capacity of the applicant or potential transferee, including its respective
197owners and management companies, to establish or maintain and operate a long-term care
198facility; provided, that financial capacity may include, but shall not be limited to, recorded liens
199or unpaid fees or taxes in the commonwealth or in other states;
200 (3) the history of the applicant or potential transferee, including its respective owners and
201management companies, in providing quality long-term care in the commonwealth as measured 11 of 35
202by compliance with applicable quality measures, statutes and regulations governing the operation
203of long-term care facilities; and
204 (4) the history of the applicant or potential transferee, including its respective owners and
205management companies, in providing quality long-term care in states other than the
206commonwealth, if any, as measured by compliance with the applicable quality measures, statutes
207and regulations governing the operation of long-term care facilities in said states.
208 (h)(1) If the department determines that an applicant or potential transferee is not
209responsible and suitable, the department’s determination shall take effect on the date of the
210department’s notice to the applicant or potential transferee. In such cases and upon the filing of a
211written request, the department shall afford the applicant or potential transferee an adjudicatory
212hearing pursuant to chapter 30A.
213 (2) During the pendency of an adjudicatory hearing, the applicant or potential transferee
214shall not operate the facility as a licensee, nor, without prior approval of the department, manage
215such facility.
216 (i) Each applicant, potential transferee and licensee shall maintain current records of all
217information provided to the department. After the applicant, potential transferee or licensee
218becomes aware of any change related to information it has provided or is required to provide to
219the department, such person shall submit to the department written notice of the change as soon
220as practicable and without unreasonable delay; provided, that any change in financial status shall
221be provided to the department and shall include, but shall not be limited to, filing for bankruptcy,
222any default under a lending agreement or under a lease, the appointment of a receiver or the 12 of 35
223recording of any lien. Failure to provide timely notice of such change shall be subject to the
224remedies or sanctions available to the department pursuant to this chapter.
225 (j) An applicant, potential transferee or licensee and its respective owners and
226management companies shall comply with all applicable federal, state and local laws, rules and
227regulations.
228 (k)(1) Prior to entering into a contract with a management company, an applicant,
229potential transferee or licensee shall notify and receive a determination from the department that
230the management company is responsible and suitable to manage a long-term care facility.
231 (2) In its notification to the department and to inform the department’s review, the
232applicant, potential transferee or licensee shall provide the proposed management company’s
233name, contact information and any other information on the proposed management company and
234its personnel that may be reasonably requested by the department, including, but not limited to,
235information required pursuant to subsection (g). Upon a determination by the department that the
236proposed management company is responsible and suitable to manage a long-term care facility,
237the applicant, potential transferee or licensee may engage said company to manage the long-term
238care facility.
239 (3) The applicant, potential transferee or licensee shall memorialize any such engagement
240in a written agreement with the management company. Such written agreement shall include a
241requirement that the management company and its personnel comply with all applicable federal,
242state and local laws, regulations and rules. Promptly after the effective date of any such
243agreement, the applicant, potential transferee or licensee shall provide to the department a copy
244of the valid, fully executed agreement. Any payment terms included in the agreement shall be 13 of 35
245confidential and exempt from disclosure under clause Twenty-sixth of section 7 of chapter 4 and
246chapter 66.
247 (4) If the department determines that a management company is not responsible and
248suitable, the department’s determination shall take effect on the date of the department’s notice
249to the applicant, potential transferee or licensee. In such cases and upon the filing of a written
250request, the department shall afford the applicant, potential transferee, licensee or management
251company an adjudicatory hearing pursuant to chapter 30A.
252 (l) The department shall not reduce the number of beds it originally approved in granting
253a license for a convalescent or nursing home or rest home upon the transfer of facility operations
254of said convalescent or nursing home or rest home from 1 licensee to another, unless a reduction
255in the number of beds is in the interest of public health, welfare or safety.
256 (m)(1) The department shall not issue a license unless the applicant first submits to the
257department, with respect to each building occupied by residents: (i) a certificate of inspection of
258the egresses, the means of preventing the spread of fire and apparatus for extinguishing fire,
259issued by an inspector of the office of public safety and inspections within the division of
260professional licensure; and (ii) a certificate of inspection issued by the head of the local fire
261department certifying compliance with local ordinances; provided, however, that for
262convalescent or nursing homes, the division of health care quality within the department shall
263have sole authority to inspect and issue a certificate required pursuant to clause (i) of this
264paragraph.
265 (2) Any applicant who is aggrieved, on the basis of a written disapproval of a certificate
266of inspection by the head of the local fire department or by the office of public safety and 14 of 35
267inspections of the division of professional licensure, may, within 30 days from such disapproval,
268appeal in writing to the division of professional licensure. Failure to either approve or disapprove
269within 30 days after a written request by an applicant shall be deemed a disapproval. With
270respect to certificates of inspection issued to convalescent or nursing homes by the division of
271health care quality within the department, an applicant may, within 30 days from disapproval of
272a certificate of inspection, appeal in writing to the department. Failure to either approve or
273disapprove within 30 days after a written request by an applicant shall be deemed a disapproval.
274 (3) If the division of professional licensure or, where applicable, the department approves
275the issuance of a certificate of inspection after an appeal, the certificate shall be issued by the
276issuing agency. If the division of professional licensure or, where applicable, the department
277does not approve the issuance of a certificate of inspection, the applicant may appeal to the
278superior court. Failure of said division or said department to either approve or disapprove the
279issuance of a certificate of inspection within 30 days after receipt of an appeal shall be deemed a
280disapproval. The department shall not issue a license until issuance of an approved certificate of
281inspection, as required pursuant to paragraph (1).
282 (4) Nothing in this section or in sections 72 or 73 shall be construed to supersede or
283otherwise affect any laws, ordinances, by-laws, rules or regulations relating to building, zoning,
284registration or maintenance of a long-term care facility.
285 (n)(1) For cause, the department may limit, restrict, suspend or revoke a license.
286 (2) Grounds for cause on which the department may take action pursuant to paragraph (1)
287shall include: (i) substantial or sustained failure or inability to provide adequate care to residents;
288(ii) substantial or sustained failure to maintain compliance with applicable statutes, rules and 15 of 35
289regulations; or (iii) the lack of financial capacity to maintain and operate a long-term care
290facility.
291 (3) The limits or restrictions the department may impose on a licensee include requiring a
292facility to limit new admissions.
293 (4) Suspension of a license may include suspending the license during a pending license
294revocation action or suspending the license to permit the licensee a period of time, not less than
29560 days, to terminate operations, and discharge and transfer all residents, if applicable.
296 (5) With respect to an order by the department to limit, restrict or suspend a license,
297within 7 days of receipt of the written order, the licensee may file a written request with the
298department for an adjudicatory proceeding pursuant to chapter 30A.
299 (6) Upon a written request by a licensee who is aggrieved by the revocation or limitation
300of a license or by an applicant who is aggrieved by the refusal of the department to renew a
301license, the licensee or applicant so aggrieved shall have all the rights provided in chapter 30A
302with respect to adjudicatory proceedings. In no case shall the revocation of such a license take
303effect in less than 30 days after written notification by the department to the licensee.
304 (o) In the case of the new construction of, or major addition, alteration or repair to, any
305long-term care facility, preliminary and final architectural plans and specifications shall be
306submitted to a qualified person designated by the commissioner. Written approval of the final
307architectural plans and specifications shall be obtained from said person prior to said new
308construction or major addition, alteration or repair. 16 of 35
309 (p) Notwithstanding any of the other provisions of this section, the department shall not
310issue a license to establish or maintain and operate a long-term care facility to an applicant who
311applies to the department for said license to establish or maintain and operate a convalescent or
312nursing home unless the applicant for such license submits to the department a certificate that
313each building to be occupied by residents of such convalescent or nursing home meets the
314construction standards of the state building code, and is of at least type 1–B fireproof
315construction; provided, however, that this subsection shall not apply in the instance of a transfer
316of facility operations of a convalescent or nursing home whose license has not been revoked as
317of the time of such transfer; and provided, further, that a public medical institution as defined in
318section 8 of chapter 118E, which meets the construction standards as defined herein, shall not be
319denied a license as a long-term care facility pursuant to this section because it was not of new
320construction and designed for the purpose of operating a long-term care facility at the time of
321application for a license to operate a long-term care facility. An intermediate care facility for
322persons with an intellectual disability shall be required to meet the construction standards
323established for such facilities by Title XIX of the Social Security Act, Public Law 89-97 and any
324regulations promulgated pursuant thereto, and by regulations promulgated by the department.
325 (q) The department shall notify the secretary of elder affairs of the pendency of any
326proceeding, public hearing or action to be taken pursuant to this section relating to any
327convalescent or nursing home, rest home or charitable home for the aged. The department shall
328notify the commissioner of the department of developmental services of the pendency of any
329proceeding, public hearing or action to be taken pursuant to this section relating to any
330intermediate care facility for persons with an intellectual disability. 17 of 35
331 SECTION 3. Said chapter 111 is hereby further amended by striking out section 72 and
332inserting in place thereof the following section:-
333 Section 72. (a)(1) The department shall classify long-term care facilities and shall, after a
334public hearing, promulgate rules and regulations for the conduct of such facilities. Rules and
335regulations for long-term care facilities shall include, but not be limited to, minimum
336requirements for medical and nursing care, the keeping of proper medical and nursing records,
337uniform requirements for the handling of patient funds, minimum requirements relative to the
338prevention and reparation of lost or damaged patient possessions, including personal clothing
339and minimum requirements relative to facility sanitation.
340 (2) Regulations for intermediate care facilities for persons with an intellectual disability
341shall, in addition to the requirements pursuant to paragraph (1), include minimum requirements
342for social services, psychological services and other services appropriate for the care of persons
343with an intellectual disability and shall limit the size of such facilities to not more than 15 beds.
344 (3) The department in promulgating rules and regulations for long-term care facilities
345shall consider the ability of long-term care facilities to provide service under rates set pursuant to
346section 13C of chapter 118E. No such rule or regulation shall apply to a long-term care facility
347licensed at the time of promulgation of such rule or regulation, or a long-term care facility being
348constructed at the time of such promulgation under plans approved by the department, unless
349such rule or regulation has a direct and material relation to patient diet, cleanliness, nursing care
350or health, or to habilitative services and active treatment for persons with an intellectual
351disability or persons with related conditions; provided, however, that nothing herein contained 18 of 35
352shall be interpreted to prevent the department from adopting or interpreting rules and regulations
353more favorable toward existing long-term care facilities.
354 (b)(1) The department or its agents and the board of health or its agents of the city or
355town wherein any portion of such long-term care facility is located may visit and inspect such
356institution at any time; provided, that a board of health or its agents conducting an inspection of a
357long-term care facility located within its city or town shall notify the department of the results of
358any inspection conducted pursuant to this paragraph.
359 (2) Any person making an inspection pursuant to paragraph (1) shall record in writing
360every violation of the applicable rules and regulations of the department that they discover
361during the course of their inspection. Every record of inspection shall be treated as a public
362record except to such extent the record or a portion thereof is expressly exempt from such
363treatment pursuant to clause Twenty-sixth of section 7 of chapter 4. A record of inspection
364containing violations shall be made public by the department at the same time that a written plan
365of correction is submitted. If a written plan of correction is not submitted within the allowable
366time, said violations shall be made public at the expiration of the allowable time. Inspections
367hereunder shall be unannounced and made at such intervals as the department shall specify in its
368rules and regulations; provided, that, each long-term care facility shall be subject to not less than
3691 periodic, resident-centered inspection per year pursuant to subsection (b) of section 71. A visit
370made to a facility for the purpose of providing consultation shall not be considered to be an
371inspection.
372 (c) The superior court shall have jurisdiction in equity to enforce the rules and regulations
373promulgated pursuant to this section. 19 of 35
374 (d)(1) The department shall promulgate regulations for the operation of small house
375nursing homes. Newly constructed small house nursing homes shall house no more than 14
376individuals per unit, in resident rooms that accommodate not more than 1 resident per room;
377provided, however, that if a resident requests to share a room with another resident to
378accommodate a spouse, partner, family member or friend, such resident room shall have
379sufficient space and equipment, as established by the department, for 2 residents; provided,
380further, that determinations to grant such requests shall be determined based on space and
381availability of rooms. All resident rooms shall contain a full private and accessible bathroom.
382 (2) The department shall promulgate regulations for construction and physical plant
383standards for small house nursing homes that shall consider environmental standards and
384sustainability.
385 (3) The department may promulgate regulations for small house nursing homes for a
386staffing model that: (i) allows for a universal worker approach to resident care that is organized
387to support and empower all staff to respond to the needs and desires of residents, including, but
388not limited to, cooking and meal preparation, without exceeding the lawful scope of practice of
389said employee; and (ii) provides for consistent staff in each small house nursing home.
390 (4) The regulations promulgated pursuant to this subsection shall ensure the convalescent
391or nursing home meets the requirements necessary to be eligible to participate in both the
392Medicare and Medicaid programs.
393 SECTION 4. Said chapter 111 is hereby further amended by striking out section 72E and
394inserting in place thereof the following section:- 20 of 35
395 Section 72E. (a) The department shall, after every inspection by its agent pursuant to
396section 72, provide the licensee of the inspected long-term care facility notice in writing of every
397violation of the applicable statutes, rules and regulations found during said inspection. With
398respect to the date by which the licensee shall remedy or correct each violation, the department
399in such notice shall specify a reasonable time, not more than 60 days after receipt, by which time
400the licensee shall remedy or correct each violation cited or, in the case of any violation which in
401the opinion of the department is not reasonably capable of correction within 60 days, the
402department shall require only that the licensee submit a written plan for the timely correction of
403the violation in a reasonable manner. The department may modify any nonconforming plan upon
404notice, in writing, to the licensee.
405 (b) Failure to remedy or correct a cited violation by the correct by date shall be cause to
406pursue or impose the remedies or sanctions available to the department pursuant to this chapter,
407unless the licensee demonstrates to the satisfaction of the department or a court, where
408applicable, that such failure was not due to any neglect of its duty and occurred despite an
409attempt in good faith to make correction by the correct by date. An aggrieved licensee may
410pursue the remedies available to it pursuant to chapter 30A.
411 (c) If the department determines the licensee failed to maintain substantial or sustained
412compliance with applicable state and federal laws, rules and regulations, in addition to imposing
413any of the other remedies or sanctions available to it, the department may require the licensee to
414engage, at the licensee’s own expense, a temporary manager to assist the licensee with bringing
415the facility into substantial compliance and with sustaining such compliance. Such temporary
416manager shall be subject to the department’s approval; provided, that such approval shall not be
417unreasonably withheld. Any such engagement of a temporary manager shall be for a period of 21 of 35
418not less than 3 months and shall be pursuant to a written agreement between the licensee and the
419management company. A copy of said agreement shall be provided by the licensee to the
420department promptly after execution. Any payment terms included in the agreement shall be
421confidential and exempt from disclosure pursuant to clause Twenty-sixth of section 7 of chapter
4224 and chapter 66.
423 (d) Nothing in this section shall be construed to prohibit the department from enforcing a
424statute, rule or regulation, administratively or in court, without first affording formal opportunity
425to make correction pursuant to this section, where, in the opinion of the department, the violation
426of such statute, rule or regulation jeopardizes the health or safety of residents or the public or
427seriously limits the capacity of a licensee to provide adequate care, or where the violation of such
428statute, rule or regulation is the second such violation occurring during a period of 12 full
429months.
430 SECTION 5. Section 72K of said chapter 111, as appearing in the 2022 Official Edition,
431is hereby amended by striking out subsection (b) and inserting in place thereof the following 2
432subsections:-
433 (b) The attorney general may file a civil action against a person who: (i) commits abuse,
434mistreatment or neglect of a patient or resident; (ii) misappropriates patient or resident property;
435or (iii) wantonly or recklessly permits or causes another to commit abuse, mistreatment or
436neglect of a patient or resident or misappropriate patient or resident property. The civil penalty
437for such abuse, mistreatment, neglect or misappropriation shall not exceed: $25,000 if no bodily
438injury results; $50,000 if bodily injury results; $100,000 if sexual assault or serious bodily injury
439results; and $250,000 if death results. Section 60B of chapter 231 shall not apply to an action 22 of 35
440brought by the attorney general pursuant to this section. Nothing in this section shall preclude the
441filing of any action brought by the attorney general or a private party pursuant to chapter 93A or
442any action by the department pursuant to this chapter. The comptroller shall deposit not less than
44350 per cent of any amount secured by the attorney general as a result of a civil action brought
444pursuant to this section into the Long-Term Care Workforce and Capital Fund established in
445section 35TTT of chapter 10.
446 (c) Notwithstanding section 5 of chapter 260, the attorney general may file a civil action
447within 4 years next after an offense is committed.
448 SECTION 6. Said chapter 111 is hereby further amended by inserting after section 72BB
449the following 4 sections:-
450 Section 72CC. (a) The department shall require long-term care facilities to develop an
451outbreak response plan which shall be customized to the long-term care facility. Each long-term
452care facility’s plan shall include, but shall not be limited to:
453 (1) a protocol for isolating and cohorting infected and at-risk patients in the event of an
454outbreak of a contagious disease until the cessation of the outbreak;
455 (2) clear policies for the notification of residents, residents’ families, visitors and staff in
456the event of an outbreak of a contagious disease at a long-term care facility;
457 (3) information on the availability of laboratory testing, protocols for screening visitors
458and staff for the presence of a communicable disease, protocols to require infected staff to not
459present at the long-term care facility for work duties and processes for implementing evidence-
460based outbreak response measures; 23 of 35
461 (4) policies to conduct routine monitoring of residents and staff to quickly identify signs
462of a communicable disease that could develop into an outbreak;
463 (5) policies for reporting outbreaks to public health officials in accordance with
464applicable laws and regulations; and
465 (6) policies to meet staffing, training and long-term care facility demands during an
466infectious disease outbreak and to successfully implement the outbreak response plan.
467 (b) The department shall verify that the outbreak response plans submitted by long-term
468care facilities are in compliance with the requirements of subsection (a).
469 (c)(1) Every long-term care facility shall review the outbreak response plan it submitted
470to the department pursuant to subsection (a) on an annual basis.
471 (2) If a long-term care facility makes any material changes to its outbreak response plan,
472the facility shall submit to the department an updated outbreak response plan within 30 days. The
473department shall, upon receiving an updated outbreak response plan, verify that the plan is in
474compliance with the requirements of subsection (a).
475 (d) The department shall promulgate regulations necessary to implement this section.
476 Section 72DD. (a) The division of health care facility licensure and certification shall
477establish and implement a process and program for providing training and education to staff of
478long-term care facilities licensed by the department pursuant to section 71. The training and
479education program may include, but shall not be limited to: (i) infection prevention and control;
480(ii) development, implementation, adherence and review of comprehensive resident care plans;
481(iii) falls prevention; (iv) procedures to ensure timely notification of changes in a resident’s 24 of 35
482condition to the resident’s primary care physician; (v) prevention of abuse and neglect; (vi)
483development and implementation of a program to ensure staff safety; and (vii) review of the
484inspection process established in section 72.
485 (b) The training and education program shall be interactive and shall include, but shall
486not be limited to: (i) an annual training for long-term care facility supervisory and leadership
487staff on the licensure and certification process, including, but not limited to, the department’s
488interpretation of the general laws and relevant changes or additions to applicable rules,
489regulations, procedures and policies concerning the licensure and certification process for long-
490term care facilities; and a (ii) biannual training of staff of long-term care facilities on the most
491frequently cited deficiencies, identified deficiency trends, both state and federal, and best
492practices to ensure resident quality of care.
493 (c) The department may consult with industry trade associations before issuing or
494promulgating guidance, regulations, interpretations, program letters, memoranda or any other
495materials used in inspector training for the inspection of long-term care facilities pursuant to
496section 72.
497 Section 72EE. (a) The department shall promulgate regulations to encourage and enable
498residents of a long-term care facility to engage in in-person, face-to-face, verbal or auditory-
499based contact, communications and religious and recreational activities with others to the extent
500that in-person contact, communication or activities are not prohibited, restricted or limited by
501federal or state statute, rule or regulation. Said regulations shall include specific protocols and
502procedures to provide for residents of the facility who have disabilities that impede their ability 25 of 35
503to communicate, including, but not limited to, residents who are blind, deaf, have Alzheimer’s
504disease or other dementias and developmental disabilities.
505 (b) The department may distribute federal civil monetary penalty funds, subject to
506approval by the federal Centers for Medicare and Medicaid Services, and any other available
507federal and state funds, upon request, to facilities for communicative technologies and
508accessories pursuant to this section.
509 Section 72FF. (a) The department, in consultation with the center for health information
510and analysis, the division of medical assistance, the executive office of elder affairs and the
511health policy commission, shall annually conduct an examination and report on cost trends and
512financial performance among skilled nursing facilities. The information shall be analyzed on an
513institution-specific and industry-wide basis. The examination shall aggregate information
514collected on multiple skilled nursing facilities that are owned and operated by a single owner.
515 (b) The examination and report shall include, but shall not be limited to collection and
516analysis of: (i) gross and net patient service revenues; (ii) other sources of operating and non-
517operating revenue; (iii) trends in relative price, payer mix, case mix, utilization and length of
518stay; (iv) affiliations with other health care providers, including, but not limited to, preferred
519clinical relationships and partnerships; (v) categories of costs, including, but not limited to,
520general and administrative costs, nursing and other labor costs and salaries, building costs,
521capital costs and other operating costs; (vi) total spending on direct patient care as a percent of
522total operating expenses; (vii) operating and total margin; (viii) occupancy rates and total
523resident population; and (ix) any other relevant measures of financial performance and service 26 of 35
524delivery the department deems necessary; provided, that these measures shall distinguish long-
525term residents from short-stay residents where possible.
526 (c) Annually, not later than December 1, the report and any policy recommendations shall
527be filed with the clerks of the house of representatives and the senate, the house and senate
528committees on ways and means and the joint committee on elder affairs.
529 (d) The department shall utilize ownership information submitted as part of the long-term
530care facility licensure determination process pursuant to section 71 to determine affiliations
531between skilled nursing facilities and other health care providers as required.
532 SECTION 7. Said chapter 111 is hereby further amended by striking out section 73 and
533inserting in place thereof the following section:-
534 Section 73. (a) Whoever advertises, announces, establishes or maintains, or is concerned
535in establishing or maintaining, a long-term care facility, or otherwise is engaged in any such
536business without a license granted pursuant to section 71, or whoever being licensed pursuant to
537said section 71 violates any provision of sections 71 to 73, inclusive, shall for a first offense be
538punished by a fine of not more than $1,000, and for a subsequent offense by a fine of not more
539than $2,000 or by imprisonment for not more than 2 years.
540 (b) Whoever violates any rule or regulation promulgated pursuant to sections 71, 72 and
54172C shall be punished by a fine, not to exceed $500. If any person violates any such rule or
542regulation by allowing a condition to exist which may be corrected or remedied, the department
543shall order such person, in writing, to correct or remedy such condition. If such person fails or
544refuses to comply with such order by the correct by date, each day after the correct by date 27 of 35
545during which such failure or refusal to comply continues shall constitute a separate offense. A
546failure to pay the fine imposed by this section shall be a violation of this subsection.
547 SECTION 8. Section 25 of chapter 118E of the General Laws, as appearing in the 2022
548Official Edition, is hereby amended by inserting after the word “provided.”, in line 61, the
549following 2 sentences:- In the case of an incompetent applicant or member that requires long-
550term care services, the division shall authorize a deduction from the applicant or member’s
551income for guardianship fees and related expenses when the appointment of a guardian is
552essential to enable an incompetent applicant or member to gain access or consent to medical
553treatment. The division shall authorize a deduction for the reasonable costs, as approved by the
554probate and family court, associated with: (i) the appointment of a guardian; (ii) the guardian’s
555services during the application process; and (iii) the guardian’s services during the
556redetermination process; provided, however, that said deduction shall not exceed, in any case,
557$1,500.
558 SECTION 9. Said chapter 118E is hereby further amended by adding the following 2
559sections:-
560 Section 83. To establish Medicaid rates for skilled nursing facilities licensed pursuant to
561section 71 of chapter 111, the division of medical assistance shall use as base year costs for rate
562determination purposes the reported costs of the calendar year not more than 2 years prior to the
563current rate year.
564 Section 84. (a) The division of medical assistance shall establish a skilled nursing facility
565rate add-on program for bariatric patient care and a rate add-on program for 1-on-1 staffing of at-
566risk residents requiring 24-hour monitoring and supervision for their safety and the safety of 28 of 35
567other residents and staff. The division of medical assistance shall identify at-risk resident
568populations to include in the rate add-on program for 1-on-1 staffing which shall include, but not
569be limited to, residents that: (i) have demonstrated suicidal ideation; (ii) have demonstrated
570aggressive behavior toward other residents or staff; (iii) have demonstrated exit-seeking
571behavior; or (vi) are registered sex offenders. The rate add-ons for said program shall be
572sufficient to defray the cost of employing the required staff to conduct the 24-hour monitoring
573and supervision of the at-risk residents.
574 (b) The division of medical assistance may develop an add-on to rate of payment for
575skilled nursing facilities that develop small house nursing homes and meet criteria established by
576the executive office.
577 SECTION 10. Subsection (c) of section 25 of chapter 176O of the General Laws, as
578appearing in the 2022 Official Edition, is hereby amended by inserting after the second sentence
579the following sentence:- The division shall develop and implement a uniform prior authorization
580form for the admission of patients from an acute care hospital to a post-acute care facility or
581transitioned to a home health agency certified by the federal Centers for Medicare and Medicaid
582Services for covered post-acute care services.
583 SECTION 11. (a) For the purposes of this section, the following words shall have the
584following meanings unless the context clearly requires otherwise:
585 “Enrollee”, as defined in section 8A of chapter 118E of the General Laws; provided, that
586“enrollee” shall include “insured” as defined in section 1 of chapter 176O of the General Laws.
587 “Payer”, the group insurance commission under chapter 32A of the General Laws, the
588division of medical assistance under chapter 118E of the General Laws, insurance companies 29 of 35
589organized under chapter 175 of the General Laws, non-profit hospital service corporations
590organized under chapter 176A of the General Laws, medical service corporations organized
591under chapter 176B of the General Laws, health maintenance organizations organized under
592chapter 176G of the General Laws and preferred provider organizations organized under chapter
593176I of the General Laws, or a utilization review organization acting under contract with the
594aforementioned entities.
595 “Post-acute care facility or agency”, any: (i) facility licensed under chapter 111 of the
596General Laws to provide inpatient post-acute care services, including, but not limited to skilled
597nursing facilities, long-term care hospitals, intermediate care facilities, or rehabilitation facilities;
598or (ii) a home health agency certified by the federal Centers for Medicare and Medicaid Services.
599 (b) Notwithstanding any general or special law to the contrary, all payers shall approve or
600deny a request for prior authorization for admission to a post-acute care facility or transition to a
601post-acute care agency for any inpatient of an acute care hospital requiring covered post-acute
602care services by the next business day following receipt by the payer of all necessary information
603to establish medical necessity of the requested service. If the calendar day immediately following
604the date of submission of the completed request is not a payer’s business day, and the payer
605cannot otherwise make a determination by the next calendar day, and the receiving post-acute
606care facility or agency is both open to new admissions and has indicated that said facility or
607agency will accept the enrollee, then prior authorization shall be waived; provided, that the payer
608shall provide coverage and may begin its concurrent review of the admission on the next
609business day; provided further, that the payer shall not retrospectively deny coverage for services
610to an enrollee admitted to a post-acute care facility or transitioned to a post-acute care agency
611after a waiver of prior authorization pursuant to this section unless the claim was a result of 30 of 35
612fraud, waste or abuse. An adverse determination of a prior authorization request pursuant to this
613section may be appealed by an enrollee or the enrollee’s provider and such appeal, in the case of
614an enrollee of a commercial payer, shall be subject to the expedited grievance process pursuant
615to clause (iv) of subsection (b) of section 13 of chapter 176O of the General Laws. An enrollee
616of an insurance program of the division of medical assistance or the enrollee’s provider may
617request an expedited appeal of an adverse determination of a prior authorization request. Nothing
618in this section shall be construed to require a payer to reimburse for services that are not a
619covered benefit.
620 (c) In the case of non-emergency transportation between an acute care hospital and a
621post-acute care facility, payers shall approve or deny a request for prior authorization according
622to the same process provided pursuant to subsection (b); provided, that once authorization has
623been granted, said authorization shall be valid for not less than 7 calendar days following
624approval.
625 (d) The division of insurance and the division of medical assistance shall issue sub-
626regulatory guidance to effectuate the purposes of this subsection.
627 SECTION 12. (a) There shall be a task force to study and propose recommendations to
628address acute care hospital throughput challenges and the impact of persistent delays in
629discharging patients from acute to post-acute care settings. The task force shall examine: (i)
630hospital discharge planning and case management practices; (ii) payer administrative barriers to
631discharge; (iii) legal and regulatory barriers to discharge; (iv) efforts to increase public
632awareness of health care proxies and the importance of designating a health care agent; (v) post-
633acute care capacity constraints and additional opportunities to provide financial incentives to 31 of 35
634increase capacity; (vi) administrative day rates and the cost to hospitals of discharge delays; (vii)
635enhanced hospital case management practices and reimbursement for wraparound services; (viii)
636the adequacy of post-acute care facility insurance networks and the establishment of an out-of-
637network rate for post-acute care facilities; (ix) expanding MassHealth Limited coverage to
638include post-acute and long-term care services; (x) the effectiveness of interagency coordination
639to resolve complex case discharges; (xi) the adequacy of reimbursement rates of MassHealth and
640commercial carriers for nonemergency medical transportation; and (xii) the adequacy of state
641resources and infrastructure to place complex case discharges in appropriate post-acute care
642settings.
643 (b) The task force shall consist of: the secretary of health and human services, or a
644designee, who shall serve as chair; the assistant secretary for MassHealth, or a designee; the
645commissioner of mental health, or a designee; the attorney general, or a designee; the
646commissioner of correction, or a designee; 1 sheriff appointed by the Massachusetts Sheriffs’
647Association, Inc.; 1 member representing the division of the probate and family court department
648of the trial court to be appointed by the chief justice of said division; and 10 members to be
649appointed by the chair, 1 of whom shall be a representative of the Massachusetts Hospital
650Association, Inc., 1 of whom shall be a representative of the Massachusetts Senior Care
651Association, Inc., 1 of whom shall be a representative of the Home Care Alliance of
652Massachusetts, Inc., 1 of whom shall be a representative of the Massachusetts Academy of Elder
653Law Attorneys, 1 of whom shall be a representative from the Massachusetts Ambulance
654Association, Incorporated, 1 of whom shall be a representative from the Massachusetts
655Association of Health Plans, Inc., 1 of whom shall be a representative from Blue Cross and Blue
656Shield of Massachusetts, Inc., 1 of whom shall be a representative from an academic medical 32 of 35
657center located in Worcester county, 1 of whom shall be a representative of an acute care hospital
658located in Suffolk county and 1 of whom shall be a representative from an acute care hospital
659designated by the health policy commission as an independent community hospital for the
660purposes of 105 CMR 100.715(B)(2)(b).
661 (c) Not later than July 31, 2024, the task force shall submit its report, including its
662recommendations or any proposed legislation necessary to carry out its recommendations, to the
663clerks of the house of representatives and the senate, the house and senate committees on ways
664and means and the joint committee on health care financing.
665 SECTION 13. The division of medical assistance shall study the cost and feasibility of
666changes to the eligibility requirements for Medicaid long-term care services with the goal of
667reducing the time applicants spend at acute care hospitals awaiting long-term care eligibility
668determinations. The study shall consider: (i) improvements to the eligibility determination
669process; (ii) establishing a rebuttable presumption of eligibility; (iii) guaranteeing payment for
670long-term care services for up to 1 year regardless of eligibility status; and (iv) expanding the
671undue hardship waiver criteria. The division of medical assistance shall seek input from the
672Massachusetts Senior Care Association, Inc., the Massachusetts Academy of Elder Law
673Attorneys and other interested stakeholders. The division of medical assistance shall submit a
674report with the results of its study and policy recommendations to the clerks of the house of
675representatives and the senate and the house and senate committees on ways and means, not later
676than 180 days after the effective date of this act.
677 SECTION 14. (a) The health policy commission shall conduct an analysis and issue a
678report on the impact of the Medicare shared savings program and participating Medicare 33 of 35
679accountable care organizations, hereinafter referred to as Medicare ACOs, on the financial
680viability of long-term care facilities in the commonwealth and continued access to long-term care
681facility services for Medicare patients. The analysis shall include, but not be limited to, an
682examination of the following:
683 (i) the impact of Medicare ACOs on clinical eligibility decisions related to initial long-
684term care facility placement and patient length of stay for Medicare ACO beneficiaries compared
685to Medicare fee-for-service beneficiaries, including an analysis of the impact of length of stay on
686quality outcomes including readmissions, functional status and patient experience;
687 (ii) the amount of payments Medicare ACOs have received from the federal government
688from capitated, shared savings or other related initiatives and how those payments have been
689utilized, or not, to enhance patient care and outcomes in long-term care facilities;
690 (iii) Medicare ACO practices related to patient care utilization controls and the financial
691and quality care impact of these controls on beneficiaries in the acute and post-acute care system;
692and
693 (iv) Medicare ACOs long-term care network adequacy.
694 (b) The health policy commission shall submit the report to the clerks of the house of
695representatives and the senate, the house and senate committees on ways and means, the joint
696committee on health care financing and the joint committee on elder affairs not later than
697December 31, 2024.
698 SECTION 15. Notwithstanding any general or special law to the contrary, the division of
699insurance shall develop the uniform prior authorization form for admission to a post-acute care 34 of 35
700facility or transition to a home health agency for any inpatient of an acute care hospital requiring
701covered post-acute care services pursuant to section 25 of chapter 176O of the General Laws, as
702amended by section 10, not later than 90 days after the effective date of this act. The division of
703insurance shall develop said uniform prior authorization form in consultation with the division of
704medical assistance. The division of medical assistance, or any entity acting for the division of
705medical assistance under contract, shall accept the uniform prior authorization form as sufficient
706to request prior authorization for the requested service. All acute care hospitals shall use the
707uniform prior authorization form to request prior authorization for coverage of post-acute care
708services at a post-acute care facility or home health agency, and all payers, as defined in section
70911, or entities acting for a payer under contract shall accept such form as sufficient to request
710prior authorization for the requested service, not later than 30 days after the form has been
711developed by the division of insurance.
712 SECTION 16. (a) For the purposes of this section, the terms “licensee” and “management
713company” shall have the meanings as defined in section 71 of chapter 111 of the General Laws,
714as amended by section 2.
715 (b) Pursuant to section 71 of chapter 111 of the General Laws, as amended by section 2, a
716licensee who has entered into a contract with a management company prior to the effective date
717of this act shall provide the department of public health with the necessary documentation and
718materials for a determination by the department of the responsibility and suitability as described
719in subsection (g) of said section 71 of said chapter 111 of the management company, prior to any
720issuance of a renewed license; provided, however, that the department shall give a licensee
721reasonable time to provide the department with the necessary documents and materials if the
722licensee’s renewal date is within 90 days of the effective date of this act. A licensee’s failure to 35 of 35
723comply with this section shall subject the licensee to the penalties established in section 73 of
724said chapter 111, as amended by section 7.
725 SECTION 17. Pursuant to section 72CC of chapter 111 of the General Laws, as inserted
726by section 6, each long-term care facility shall submit its outbreak response plan to the
727department of public health not later than 180 days after the effective date of this act.
728 SECTION 18. The initial report required by section 72FF of chapter 111 of the General
729Laws, as inserted by section 6, shall be filed with the clerks of the house of representatives and
730the senate, the house and senate committees on ways and means and the joint committee on elder
731affairs not later than 6 months after the effective date of this act.
732 SECTION 19. Section 11 is hereby repealed.
733 SECTION 20. Section 19 shall take effect 2 years after the effective date of this act.
734 SECTION 21. Section 83 of chapter 118E of the General Laws, as inserted by section 9,
735shall take effect on October 1, 2025.