Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H648 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 of 2
2	2	HOUSE DOCKET, NO. 2564 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 648
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Thomas M. Stanley and Kate Lipper-Garabedian
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to improve quality and oversight of long-term care.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Thomas M. Stanley9th Middlesex1/9/2023Kate Lipper-Garabedian32nd Middlesex1/19/2023Lindsay N. Sabadosa1st Hampshire1/19/2023Patricia D. JehlenSecond Middlesex1/20/2023Ruth B. Balser12th Middlesex1/24/2023Rodney M. Elliott16th Middlesex1/26/2023Steven Owens29th Middlesex1/26/2023Steven Ultrino33rd Middlesex1/26/2023Frank A. Moran17th Essex1/26/2023David Henry Argosky LeBoeuf17th Worcester1/26/2023Christopher J. Worrell5th Suffolk1/26/2023Susannah M. Whipps2nd Franklin1/26/2023Peter Capano11th Essex1/27/2023Carol A. Doherty3rd Bristol1/29/2023Brian W. Murray10th Worcester1/29/2023Jack Patrick Lewis7th Middlesex1/30/2023James C. Arena-DeRosa8th Middlesex1/30/2023Gerard J. Cassidy9th Plymouth1/31/2023 2 of 2
16	16	Michelle M. DuBois10th Plymouth1/31/2023Michael P. Kushmerek3rd Worcester2/1/2023Kathleen R. LaNatra12th Plymouth2/1/2023Tackey Chan2nd Norfolk2/1/2023Patricia A. Duffy5th Hampden2/2/2023Jon Santiago9th Suffolk2/6/2023James K. Hawkins2nd Bristol2/7/2023Paul McMurtry11th Norfolk2/8/2023Kay Khan11th Middlesex2/8/2023Russell E. Holmes6th Suffolk2/8/2023William C. Galvin6th Norfolk2/13/2023Adrian C. Madaro1st Suffolk2/13/2023Priscila S. Sousa6th Middlesex2/14/2023David Paul Linsky5th Middlesex2/14/2023Sean Garballey23rd Middlesex2/14/2023Jennifer Balinsky Armini8th Essex2/14/2023Denise C. Garlick13th Norfolk2/15/2023Patrick Joseph Kearney4th Plymouth2/16/2023James B. EldridgeMiddlesex and Worcester2/16/2023David Allen Robertson19th Middlesex2/16/2023Daniel Cahill10th Essex2/17/2023Josh S. Cutler6th Plymouth2/17/2023Michael D. BradySecond Plymouth and Norfolk2/18/2023Samantha Montaño15th Suffolk2/21/2023Tram T. Nguyen18th Essex2/24/2023Adrianne Pusateri Ramos14th Essex3/1/2023Carlos González10th Hampden3/2/2023Michelle L. Ciccolo15th Middlesex3/2/2023Jacob R. OliveiraHampden, Hampshire and Worcester3/13/2023 1 of 25
17	17	HOUSE DOCKET, NO. 2564 FILED ON: 1/19/2023
18	18	HOUSE . . . . . . . . . . . . . . . No. 648
19	19	By Representatives Stanley of Waltham and Lipper-Garabedian of Melrose, a petition
20	20	(accompanied by bill, House, No. 648) of Thomas M. Stanley, Kate Lipper-Garabedian and
21	21	others for legislation to improve quality and oversight of long-term care. Elder Affairs.
22	22	[SIMILAR MATTER FILED IN PREVIOUS SESSION
23	23	SEE HOUSE, NO. 4780 OF 2021-2022.]
24	24	The Commonwealth of Massachusetts
25	25	_______________
26	26	In the One Hundred and Ninety-Third General Court
27	27	(2023-2024)
28	28	_______________
29	29	An Act to improve quality and oversight of long-term care.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 SECTION 1. Chapter 23 of the General Laws, as appearing in the 2020 Official Edition,
33	33	2is hereby amended by inserting after section 9U the following 2 sections:-
34	34	3 Section 9V. The executive office of labor and workforce development, through the
35	35	4Commonwealth Corporation, shall establish a grant program for nursing facility supervisory and
36	36	5leadership training. The program shall include, but not be limited to, covering the cost of nursing
37	37	6facility worker participation in evidence-based supervisory training for the express purpose of
38	38	7improving staff satisfaction, retaining staff and reducing turnover.
39	39	8 Section 9W. The Commonwealth Corporation shall, subject to appropriation, establish an
40	40	9extended care career ladder grant program, consistent with section 410 of chapter 159 of the acts 2 of 25
41	41	10of 2000. The Commonwealth Corporation shall make grants available for certified nurses' aides,
42	42	11home health aides, homemakers and other entry-level workers in long-term care. The grants may
43	43	12include English language training, training in other languages and adult basic education
44	44	13programs to improve quality of care and improve direct care worker access to and participation
45	45	14in career ladder training. The length of such grants shall not exceed a period of 3 years. The
46	46	15Commonwealth Corporation shall submit quarterly reports to the house and senate committees
47	47	16on ways and means on said grant program including, but not limited to, the number of grants
48	48	17awarded, the amount of each grant, a description of the career ladder programs, changes in care-
49	49	18giving and workplace practices that have occurred and their impact on quality of care and worker
50	50	19retention and the certificates, degrees or professional status attained by each participating
51	51	20employee. The administrative and program-management costs for the implementation of said
52	52	21grant program shall not exceed 4 per cent of the amount of the grant program. Each grant may
53	53	22include funding for technical assistance and evaluation.
54	54	23 SECTION 2. Chapter 111 of the General Laws, as so appearing, is hereby amended by
55	55	24inserting after section 4O the following section:-
56	56	25 Section 4P. The department shall, subject to appropriation, establish a tuition
57	57	26reimbursement program for certified nursing assistant training. The department shall reimburse
58	58	27for the costs of certified nursing assistant training or competency, provided that: (i) the costs
59	59	28have been incurred for an approved certified nursing assistant training program; (ii) the costs
60	60	29have been actually paid by the certified nursing assistant from their own personal funds; and (iii)
61	61	30individuals have begun employment as a certified nursing assistant in a licensed nursing facility
62	62	31within 12 months of completing the training program, including passing the competency testing. 3 of 25
63	63	32 SECTION 3. Chapter 111 of the General Laws is hereby further amended by striking out
64	64	33section 71 and inserting in place thereof the following section:-
65	65	34 Section 71. (a) For purposes of this section and sections 71A½ to 73, inclusive, the
66	66	35following terms shall have the following meanings unless the context or subject matter clearly
67	67	36requires otherwise:
68	68	37 “Applicant”, any person who applies to the department for a license to establish or
69	69	38maintain and operate a long-term care facility.
70	70	39 “Charitable home for the aged”, any institution, however named, conducted for charitable
71	71	40purposes and maintained for the purpose of providing a retirement home for elderly persons and
72	72	41which may provide nursing care within the home for its residents.
73	73	42 “Convalescent or nursing home or skilled nursing facility”, any institution, however
74	74	43named, whether conducted for charity or profit, which is advertised, announced or maintained for
75	75	44the express or implied purpose of caring for four or more persons admitted thereto for the
76	76	45purpose of nursing or convalescent care.
77	77	46 “Infirmary maintained in a town”, an infirmary, which until now the department of
78	78	47transitional assistance has been directed to visit by section 7 of chapter 121.
79	79	48 “Intermediate care facility for persons with an intellectual disability”, any institution,
80	80	49however named, whether conducted for charity or profit, which: (i) is advertised, announced or
81	81	50maintained for the purpose of providing rehabilitative services and active treatment to persons
82	82	51with an intellectual disability or persons with related conditions, as defined in regulations
83	83	52promulgated pursuant to Title XIX of the federal Social Security Act (P.L. 89–97); (ii) is not 4 of 25
84	84	53both owned and operated by a state agency; and (iii) makes application to the department for a
85	85	54license for the purpose of participating in the federal program established by said Title XIX.
86	86	55 “License”, an initial or renewal license to establish or maintain and operate a long-term
87	87	56care facility issued by the department.
88	88	57 “Licensee”, a person to whom a license to establish or maintain and operate a long-term
89	89	58care facility has been issued by the department.
90	90	59 “Long-term care facility”, a charitable home for the aged, convalescent or nursing home,
91	91	60skilled nursing facility, infirmary maintained in a town, intermediate care facility for persons
92	92	61with an intellectual disability or rest home.
93	93	62 “Owner”, any person with an ownership interest of 5 per cent or more, or with a
94	94	63controlling interest in an applicant, potential transferee or the real property on which a long-term
95	95	64care facility is located; provided, that the real property owner is related to the applicant or
96	96	65potential transferee as defined in Section 413.17(b) of Title 42 of the Code of Federal
97	97	66Regulations.
98	98	67 “Person”, an individual, trust, estate, partnership, association, company or corporation.
99	99	68 “Potential transferee”, a person who submits to the department a “notice of intent to
100	100	69acquire” the facility operations of a currently operating long-term care facility.
101	101	70 “Rest home”, any institution, however named, which is advertised, announced or
102	102	71maintained for the express or implied purpose of providing care incident to old age to four or
103	103	72more persons who are ambulatory and who need supervision. 5 of 25
104	104	73 “Transfer of facility operations”, a transfer of the operations of a currently operating
105	105	74long-term care facility from the current licensee of the long-term care facility to a potential
106	106	75transferee, pending licensure, pursuant to a written “transfer of operations” agreement.
107	107	76 (b) To each applicant it deems suitable and responsible to establish or maintain and
108	108	77operate a long-term care facility and which meets all other requirements for long-term care
109	109	78facility licensure, the department shall issue for a term of 2 years, and shall renew for like terms,
110	110	79a license, subject to the restrictions set forth in this section or revocation by it for cause;
111	111	80provided, however, that each long-term care facility shall be inspected at least once a year.
112	112	81 The department shall not issue license to establish or maintain an intermediate care
113	113	82facility for persons with an intellectual disability unless the department determines that there is a
114	114	83need for such facility at the designated location; provided, however, that in the case of a facility
115	115	84previously licensed as an intermediate care facility for persons with an intellectual disability in
116	116	85which there is a change in ownership, no such determination shall be required; and provided
117	117	86further, that in the case of a facility previously licensed as an intermediate care facility for
118	118	87persons with an intellectual disability in which there is a change in location, such determination
119	119	88shall be limited to consideration of the suitability of the new location.
120	120	89 In the case of the transfer of facility operations of a long-term care facility, a potential
121	121	90transferee shall submit a “notice of intent to acquire” to the department at least 90 days prior to
122	122	91the proposed transfer date. The notice of intent to acquire shall be on a form supplied by the
123	123	92department and shall be deemed complete upon submission of all information which the
124	124	93department requires on the notice of intent form and is reasonably necessary to carry out the
125	125	94purposes of this section. In the case of the transfer of facility operations, a potential transferee 6 of 25
126	126	95shall provide notice to the current staff of the facility, and shall provide notice of the potential
127	127	96transferee’s plans regarding retaining the facility workforce and recognizing any current
128	128	97collective bargaining agreements to the labor organizations that represents the facility’s
129	129	98workforce at the time the potential transferee submits a “notice of intent to acquire”.
130	130	99 No license shall be issued to an applicant or potential transferee unless the department
131	131	100makes a determination that the applicant or potential transferee is responsible and suitable for
132	132	101licensure.
133	133	102 For purposes of this section, the department’s determination of responsibility and
134	134	103suitability shall be limited to the following factors:
135	135	104 (i) the civil litigation history of the applicant or potential transferee, including litigation
136	136	105related to the operation of a long-term care facility, such as quality of care, safety of residents or
137	137	106staff, employment and labor issues, fraud, unfair or deceptive business practices and
138	138	107landlord/tenant issues; and the criminal history of the applicant or the potential transferee,
139	139	108including their respective owners, which may include pending or settled litigation or other court
140	140	109proceedings in the commonwealth and in other states including federal jurisdiction. Any
141	141	110information related to criminal or civil litigation obtained by the department pursuant to this
142	142	111section shall be confidential and exempt from disclosure under clause Twenty-sixth of section 7
143	143	112of chapter 4 and chapter 66;
144	144	113 (ii) the financial capacity of the applicant or potential transferee, including their
145	145	114respective owners, to establish or maintain and operate a long-term care facility, which may
146	146	115include any recorded liens and unpaid fees or taxes in the commonwealth and in other states; 7 of 25
147	147	116 (iii) the history of the applicant or potential transferee, including their respective owners,
148	148	117in providing long-term care in the commonwealth, measured by compliance with applicable
149	149	118statutes and regulations governing the operation of long-term care facilities; and
150	150	119 (iv) the history of the applicant or potential transferee, including their respective owners,
151	151	120in providing long-term care in states other than the commonwealth, if any, measured by
152	152	121compliance with the applicable statutes and regulations governing the operation of long-term
153	153	122care facilities in said states.
154	154	123 With respect to potential transferees, upon determination by the department that a
155	155	124potential transferee is responsible and suitable for licensure, the potential transferee may file an
156	156	125application for a license. In the case of a potential transfer of facility operations, the filing of an
157	157	126application for a license shall have the effect of a license until the department takes final action
158	158	127on such application.
159	159	128 If the department determines that an applicant or potential transferee is not suitable and
160	160	129responsible, the department’s determination shall take effect on the date of the department’s
161	161	130notice. In such cases and upon the filing of a written request, the department shall afford the
162	162	131applicant or potential transferee an adjudicatory hearing pursuant to chapter 30A.
163	163	132 During the pendency of such appeal, the applicant or potential transferee shall not operate
164	164	133the facility as a licensee, or, without prior approval of the department, manage such facility.
165	165	134 Each applicant, potential transferee and licensee shall keep all information provided to
166	166	135the department current. After the applicant, potential transferee or licensee becomes aware of any
167	167	136change to information related to information it provided or is required to provide to the
168	168	137department, such person shall submit to the department written notice of the changes as soon as 8 of 25
169	169	138practicable and without unreasonable delay. Changes include, but are not limited to, changes in
170	170	139financial status, such as filing for bankruptcy, any default under a lending agreement or under a
171	171	140lease, the appointment of a receiver or the recording of any lien. Failure to provide timely notice
172	172	141of such change may be subject to the remedies or sanctions available to the department under
173	173	142sections 71 to 73, inclusive.
174	174	143 An applicant, potential transferee or licensee and their respective owners shall be in
175	175	144compliance with all applicable federal, state and local laws, rules and regulations.
176	176	145 Prior to engaging a company to manage the long-term care facility, hereinafter a
177	177	146“management company”, a licensee shall notify the department in writing of the proposed
178	178	147management company’s name, contact information and any other information on the
179	179	148management company and its personnel that may be reasonably requested by the department.
180	180	149The licensee shall memorialize any such engagement in a written agreement with the
181	181	150management company. Such written agreement shall include a requirement that the management
182	182	151company and its personnel comply with all applicable federal, state and local laws, regulations
183	183	152and rules. Promptly after the effective date of any such agreement, the licensee shall provide to
184	184	153the department a copy of the valid, fully executed agreement. Any payment terms included in the
185	185	154agreement shall be confidential and exempt from disclosure under clause Twenty-sixth of section
186	186	1557 of chapter 4 and chapter 66.
187	187	156 The department shall not issue a license unless the authorities in charge of the long-term
188	188	157care facility first submit to the department, with respect to each building occupied by residents:
189	189	158(i) a certificate of inspection of the egresses, the means of preventing the spread of fire and
190	190	159apparatus for extinguishing fire, issued by an inspector of the office of public safety and 9 of 25
191	191	160inspections of the division of professional licensure; provided, however, that with respect to
192	192	161convalescent or nursing homes only, the division of health care quality of the department of
193	193	162public health shall have sole authority to inspect for and issue such certificate; and (ii) a
194	194	163certificate of inspection issued by the head of the local fire department certifying compliance
195	195	164with the local ordinances.
196	196	165 Any applicant who is aggrieved, on the basis of a written disapproval of a certificate of
197	197	166inspection by the head of the local fire department or by the office of public safety and
198	198	167inspections of the division of professional licensure, may, within 30 days from such disapproval,
199	199	168appeal in writing to the division of professional licensure. With respect to certificates of
200	200	169inspection that the division of health care quality of the department of public health has the sole
201	201	170authority to issue, an applicant may, within 30 days from disapproval of a certificate of
202	202	171inspection, appeal in writing to the department of public health only. Failure to either approve or
203	203	172disapprove within 30 days after a written request by an applicant shall be deemed a disapproval.
204	204	173 If the division of professional licensure or, where applicable, the department of public
205	205	174health approves the issuance of a certificate of inspection, it shall forthwith be issued by the
206	206	175agency that failed to approve. If said department disapproves, the applicant may appeal
207	207	176therefrom to the superior court. Failure of said department to either approve or disapprove the
208	208	177issuance of a certificate of inspection within 30 days after receipt of an appeal shall be deemed a
209	209	178disapproval. The department shall not issue a license until issuance of an approved certificate of
210	210	179inspection, as required in this section. 10 of 25
211	211	180 Nothing in this section or in sections 72 or 73 shall be construed to revoke, supersede or
212	212	181otherwise affect any laws, ordinances, by-laws, rules or regulations relating to building, zoning,
213	213	182registration or maintenance of a long-term care facility.
214	214	183 (c) For cause, the department may limit, restrict, suspend or revoke a license. Grounds for
215	215	184cause on which the department may take such action shall include: (i) substantial or sustained
216	216	185failure to provide adequate care to residents; (ii) substantial or sustained failure to maintain
217	217	186compliance with applicable statutes, rules and regulations; (iii) or the lack of financial capacity
218	218	187to maintain and operate a long-term care facility. Limits or restrictions include requiring a
219	219	188facility to limit new admissions. Suspension of a license includes suspending the license during a
220	220	189pending license revocation action, or suspending the license to permit the licensee a period of
221	221	190time, not shorter than 60 days, to wind down operations, and discharge and transfer, if
222	222	191applicable, all residents.
223	223	192 The department may, when public necessity and convenience require, or to prevent undue
224	224	193hardship to an applicant or licensee, under such rules and regulations as it may adopt, grant a
225	225	194temporary provisional or probationary license under this section; provided, however, that no such
226	226	195license shall be for a term exceeding 1 year.
227	227	196 With respect to an order to limit, restrict or suspend a license, within 7 days of receipt of
228	228	197the written order, the licensee may file a written request with the department for administrative
229	229	198reconsideration of the order or any portion thereof.
230	230	199 Upon a written request by a licensee who is aggrieved by the revocation of a license or
231	231	200the adoption of a probationary license, or by an applicant who is aggrieved by the refusal of the
232	232	201department to renew a license, the commissioner and the council shall hold a public hearing, 11 of 25
233	233	202after due notice, and thereafter they may modify, affirm or reverse the action of the department;
234	234	203provided, however, that the department may not refuse to renew and may not revoke the license
235	235	204of a long-term care facility until after a hearing before a hearings officer, and any such applicant
236	236	205so aggrieved shall have all the rights provided in chapter 30A with respect to adjudicatory
237	237	206proceedings.
238	238	207 In no case shall the revocation of such a license take effect in less than 30 days after
239	239	208written notification by the department to the licensee.
240	240	209 The fee for a license to establish or maintain or operate a long-term care facility shall be
241	241	210determined annually by the commissioner of administration pursuant to the provision of section
242	242	2113B of chapter 7, and the license shall not be transferable or assignable and shall be issued only
243	243	212for the premises named in the application.
244	244	213 Nursing institutions licensed by the department of mental health, or the department of
245	245	214developmental services for persons with intellectual disabilities shall not be licensed or inspected
246	246	215by the department of public health. The inspections herein provided shall be in addition to any
247	247	216other inspections required by law.
248	248	217 (d) In the case of the new construction of, or major addition, alteration or repair to, any
249	249	218facility subject to this section, preliminary architectural plans and specifications and final
250	250	219architectural plans and specifications shall be submitted to a qualified person designated by the
251	251	220commissioner. Written approval of the final architectural plans and specifications shall be
252	252	221obtained from said person prior to said new construction, or major addition, alteration or repair.
253	253	222 Notwithstanding any of the foregoing provisions of this section, the department shall not
254	254	223issue a license to establish or maintain and operate a long-term care facility unless the applicant 12 of 25
255	255	224for such license submits to the department a certificate that each building to be occupied by
256	256	225patients of such convalescent or nursing home or skilled nursing facility meets the construction
257	257	226standards of the state building code, and is of at least type 1–B fireproof construction; provided,
258	258	227however, that this paragraph shall not apply in the instance of a transfer of facility operations of a
259	259	228convalescent or nursing home or skilled nursing facility whose license had not been revoked as
260	260	229of the time of such transfer; and provided, further, that a public medical institution as defined
261	261	230under section 2 of chapter 118E, which meets the construction standards as defined herein, shall
262	262	231not be denied a license as a nursing home under this section because it was not of new
263	263	232construction and designed for the purpose of operating a convalescent or nursing home or skilled
264	264	233nursing facility at the time of application for a license to operate a nursing home. An
265	265	234intermediate care facility for persons with an intellectual disability shall be required to meet the
266	266	235construction standards established for such facilities by Title XIX of the Social Security Act
267	267	236(P.L. 89–97) and any regulations promulgated pursuant thereto, and by regulations promulgated
268	268	237by the department.
269	269	238 (e) Every applicant for a license and every potential transferee shall provide on or with its
270	270	239application or notice of intent to acquire a sworn statement of the names and addresses of any
271	271	240owner as defined in this section. In this section, the phrase ‘‘person with an ownership or control
272	272	241interest’’ shall have the definition set forth in 42 USC § 1320a–3 of the Social Security Act and
273	273	242in regulations promulgated hereunder by the department.
274	274	243 The department shall notify the secretary of elder affairs forthwith of the pendency of any
275	275	244proceeding of any public hearing or of any action to be taken under this section relating to any
276	276	245convalescent or nursing home, rest home, infirmary maintained in a town or charitable home for
277	277	246the aged. The department shall notify the commissioner of mental health forthwith of the 13 of 25
278	278	247pendency of any proceeding, public hearing or of any action to be taken under this section
279	279	248relating to any intermediate care facility for persons with an intellectual disability.
280	280	249 SECTION 4. Section 72 of said chapter 111 of the General Laws, as so appearing, is
281	281	250hereby amended by adding the following four paragraphs:-
282	282	251 The department shall establish regulations for the operation of small house nursing
283	283	252homes, herein defined as 1 or more units of a nursing home designed and modeled as a private
284	284	253home including residential kitchen and living area. Newly constructed small house nursing
285	285	254homes shall house no more than 14 individuals per unit, in resident rooms that accommodate not
286	286	255more than 2 residents per room, which are shared only at the request of a resident to
287	287	256accommodate a spouse, partner, family member or friend. All resident rooms shall contain a full
288	288	257private and accessible bathroom.
289	289	258 Regulations for small house nursing homes shall, to the extent practicable, prohibit the
290	290	259use of institutional features, including but not limited to nursing stations, medication carts, room
291	291	260numbers and wall-mounted licenses or certificates that could appropriately be accessed through
292	292	261other means.
293	293	262 Regulations for construction and physical plant standards should be based on the smaller
294	294	263size and limited number of residents served in small house nursing homes in comparison with
295	295	264traditional nursing facility units. In addition to development of construction and physical plant
296	296	265standards that support small house nursing homes, regulations shall support a staffing model
297	297	266small house nursing homes that allow for a universal worker approach to resident care that is
298	298	267organized to support and empower all staff to respond to the needs and desires of residents
299	299	268including cooking and meal preparation, and provides for consistent staff in each small house. 14 of 25
300	300	269 The executive office of health and human services shall develop an add-on to rates of
301	301	270payment for nursing facilities that develop small house nursing homes and meet criteria
302	302	271established by the executive office.
303	303	272 SECTION 5. Said chapter 111 is hereby further amended by striking out section 72E and
304	304	273inserting in place thereof the following section:-
305	305	274 Section 72E. The department shall, after every inspection by its agent made under
306	306	275authority of section 72, give the licensee of the inspected long-term care facility notice in writing
307	307	276of every violation of the applicable statutes, rules and regulations of the department found upon
308	308	277said inspection. With respect to the date by which the licensee shall remedy or correct each
309	309	278violation, hereinafter the “correct by date”, the department in such notice shall specify a
310	310	279reasonable time, not more than 60 days after receipt thereof, by which time the licensee shall
311	311	280remedy or correct each violation cited therein or, in the case of any violation which in the
312	312	281opinion of the department is not reasonably capable of correction within 60 days, the department
313	313	282shall require only that the licensee submit a written plan for the timely correction of the violation
314	314	283in a reasonable manner. The department may modify any nonconforming plan upon notice in
315	315	284writing to the licensee.
316	316	285 Absent good faith efforts to remedy or correct, failure to remedy or correct a cited
317	317	286violation by the agreed upon correct by date shall be cause to pursue or impose the remedies or
318	318	287sanctions available to it under sections 71 to 73, inclusive, unless the licensee shall demonstrate
319	319	288to the satisfaction of the department or the court, as the case may be, that such failure was not
320	320	289due to any neglect of its duty and occurred despite an attempt in good faith to make correction by
321	321	290the agreed upon correct by date. The department may pursue or impose any remedy or sanction 15 of 25
322	322	291or combination of remedies or sanctions available to it under said sections 71 to 73, inclusive. An
323	323	292aggrieved licensee may pursue the remedies available to it under said sections 71 to 73,
324	324	293inclusive.
325	325	294 In addition, if the licensee fails to maintain substantial or sustained compliance with
326	326	295applicable statutes, rules and regulations, in addition to imposing any of the other remedies or
327	327	296sanctions available to it, the department may require the licensee to engage, at the licensee’s own
328	328	297expense, a temporary manager to assist the licensee with bringing the facility into substantial
329	329	298compliance and with sustaining such compliance. Such manager shall be subject to the
330	330	299department’s approval, provided that such approval not be unreasonably withheld. Any such
331	331	300engagement of a temporary manager shall be for a period of not less than 3 months and shall be
332	332	301pursuant to a written agreement between the licensee and the management company. A copy of
333	333	302such agreement shall be provided by the licensee to the department promptly after execution.
334	334	303Any payment terms included in the agreement shall be confidential and exempt from disclosure
335	335	304under clause twenty-sixth of section 7 of chapter 4 and chapter 66.
336	336	305 Nothing in this section shall be construed to prohibit the department from enforcing a
337	337	306statute, rule or regulation, administratively or in court, without first affording formal opportunity
338	338	307to make correction under this section, where, in the opinion of the department, the violation of
339	339	308such statute, rule or regulation jeopardizes the health or safety of residents or the public or
340	340	309seriously limits the capacity of a licensee to provide adequate care, or where the violation of such
341	341	310statute, rule or regulation is the second such violation occurring during a period of 12 full
342	342	311months. 16 of 25
343	343	312 SECTION 6. Section 72K of said chapter 111 of the General Laws, as so appearing, is
344	344	313hereby amended by striking out subsection (b) and inserting in place thereof the following 2
345	345	314subsections:-
346	346	315 (b) The attorney general may file a civil action against a person who commits abuse,
347	347	316mistreatment or neglect of a patient or resident or who misappropriates patient or resident
348	348	317property or against a person who wantonly or recklessly permits or causes another to commit
349	349	318abuse, mistreatment or neglect of a patient or resident or who misappropriates patient or resident
350	350	319property. The civil penalty for such abuse, mistreatment, neglect or misappropriation shall not
351	351	320exceed: $25,000 if no bodily injury results; $50,000 if bodily injury results; $100,000 if sexual
352	352	321assault or serious bodily injury results; and $250,000 if death results. Section 60B of chapter 231
353	353	322shall not apply to an action brought by the attorney general pursuant to this section. Nothing in
354	354	323this section shall preclude the filing of any action brought by the attorney general or a private
355	355	324party pursuant to chapter 93A or any action by the department pursuant to this chapter.
356	356	325 (c) Notwithstanding section 5 of chapter 260, the attorney general may file a civil action
357	357	326only within four years next after an offense is committed.
358	358	327 SECTION 7. Said chapter 111 of the General Laws is hereby further amended by
359	359	328inserting after section 72BB the following 3 sections:-
360	360	329 Section 72CC. (a) For purposes of this section, the following terms shall, unless the
361	361	330context clearly requires otherwise, have the following meanings:
362	362	331 “Cohorting”, the practice of grouping patients who are or are not colonized or infected
363	363	332with the same organism in order to confine their care to one area and prevent contact with other
364	364	333patients. 17 of 25
365	365	334 “Endemic level”, the usual level of given disease in a geographic area.
366	366	335 “Isolating”, the process of separating persons colonized or infected with a communicable
367	367	336disease from those who are not colonized or infected with a communicable disease.
368	368	337 “Outbreak”, any unusual occurrence of disease or any disease above background or
369	369	338endemic levels.
370	370	339 “Long-term care facility”, a charitable home for the aged, convalescent or nursing home
371	371	340or skilled nursing facility, an infirmary maintained in a town, an intermediate care facility for
372	372	341persons with an intellectual disability or a rest home.
373	373	342 (b) Notwithstanding any general or special law to the contrary, the department shall
374	374	343require long-term care facilities to develop an outbreak response plan which shall be customized
375	375	344to the facility. Each facility’s plan shall include, but not be limited to:
376	376	345 (1) a protocol for isolating and cohorting infected and at-risk patients in the event of an
377	377	346outbreak of a contagious disease until the cessation of the outbreak;
378	378	347 (2) clear policies for the notification of residents, residents’ families, visitors, and staff in
379	379	348the event of an outbreak of a contagious disease at a facility;
380	380	349 (3) information on the availability of laboratory testing, protocols for assessing whether
381	381	350facility visitors are colonized or infected with a communicable disease, protocols to require those
382	382	351staff who are colonized or infected with a communicable disease to not present at the facility for
383	383	352work duties and processes for implementing evidence-based outbreak response measures;
384	384	353 (4) policies to conduct routine monitoring of residents and staff to quickly identify signs
385	385	354of a communicable disease that could develop into an outbreak; and 18 of 25
386	386	355 (5) policies for reporting outbreaks to public health officials in accordance with
387	387	356applicable laws and regulations.
388	388	357 (c) (1) In addition to the requirements set forth in subsection (b), the department shall
389	389	358require long-term care facilities to include in their outbreak response plan, written policies to
390	390	359meet staffing, training and facility demands during an infectious disease outbreak and to
391	391	360successfully implement the outbreak response plan, including either employing on a full-time or
392	392	361part-time basis, or contracting with on a consultative basis, the following individuals:
393	393	362 (a) an individual certified by the Certification Board of Infection Control &
394	394	363Epidemiology, Inc.; or
395	395	364 (b) a physician who has completed an infectious disease fellowship.
396	396	365 (2) The department shall verify that the outbreak response plans submitted by long-term
397	397	366care facilities are in compliance with the requirements of subsection (b) and with the
398	398	367requirements of paragraph (1) of this subsection.
399	399	368 (d) (1) Each long-term care facility that submits an outbreak response plan to the
400	400	369department pursuant to subsection (c) shall review the plan on an annual basis.
401	401	370 (2) If a long-term care facility makes any material changes to its outbreak response plan,
402	402	371the facility shall submit to the department an updated outbreak response plan within 30 days. The
403	403	372department shall, upon receiving an updated outbreak response plan, verify that the plan is
404	404	373compliant with the requirements of subsections (b) and (c).
405	405	374 (e) The department shall promulgate regulations necessary to implement this section. 19 of 25
406	406	375 Section 72DD. The department, through its division of health care facility licensure and
407	407	376certification, shall establish and implement a prescribed process and program for providing
408	408	377training and education to long term care providers licensed by the department under section 72.
409	409	378The training and education programs may include: infection prevention and control;
410	410	379development, implementation, adherence and review of comprehensive resident care plans; falls
411	411	380prevention; procedures to ensure timely notification of changes in a resident’s condition to the
412	412	381resident’s primary care physician; the prevention of abuse and neglect; development and
413	413	382implementation of a program to minimize the danger of workplace violence to employees; and
414	414	383review of the survey and inspection process. The department shall consult with the industry trade
415	415	384associations, before requiring any new regulatory guidance, regulation, interpretation, program
416	416	385letter or memorandum or any other materials used in surveyor training to survey licensed
417	417	386providers.
418	418	387 The process, training, and education shall include, but not be limited to, the following:
419	419	388 (i) annual training for long term care facilities on the licensure and certification process.
420	420	389This training shall include, but not be limited to, the department’s interpretation of the general
421	421	390laws, rules, regulations, procedures and policies concerning the licensure and certification
422	422	391process for such long-term care facilities;
423	423	392 (ii) biannual training of long-term care providers on the most frequently cited
424	424	393deficiencies, identified deficiency trends, both state and federal, and best practices to ensure
425	425	394resident quality of care; and 20 of 25
426	426	395 (iii) training of long-term care providers and the department survey inspectors jointly on
427	427	396the department's new expectations. Trainings shall be interactive, with the sharing of information
428	428	397and recommendations between long term care facilities and the department on issues and topics.
429	429	398 Section 72EE. (a) For the purposes of this section, the following terms shall, unless the
430	430	399context clearly requires otherwise, have the following meanings:
431	431	400 “Religious and recreational activities”, any religious, social or recreational activity that is
432	432	401consistent with the resident’s preferences and choosing, regardless of whether the activity is
433	433	402coordinated, offered, provided or sponsored by facility staff or by an outside activities provider.
434	434	403 “Resident”, a person who resides in a long-term care facility.
435	435	404 “Long-term care facility”, a charitable home for the aged, convalescent or nursing home
436	436	405or skilled nursing facility, an infirmary maintained in a town, an intermediate care facility for
437	437	406persons with an intellectual disability or a rest home.
438	438	407 (b) The department shall promulgate regulations necessary to encourage and enable
439	439	408residents of a long-term care facility to engage in in-person, face-to-face, verbal or auditory-
440	440	409based contact, communications and religious and recreational activities with others except when
441	441	410such in-person contact, communication or activities are prohibited, restricted or limited, as
442	442	411otherwise permitted by federal or state statute, rule or regulation. Said regulations shall include
443	443	412specific protocols and procedures to provide for residents of the facility who have disabilities
444	444	413that impede their ability to communicate, including, but not limited to, residents who are blind,
445	445	414deaf, have Alzheimer’s disease or other related dementias and residents who have developmental
446	446	415disabilities. 21 of 25
447	447	416 (c) The department may distribute civil monetary penalty funds, as approved by the
448	448	417federal Centers for Medicare and Medicaid Services, and any other available federal and state
449	449	418funds, upon request, to facilities for communicative technologies and accessories needed for the
450	450	419purposes of this section.
451	451	420 SECTION 8. Said chapter 111 is hereby further amended by striking out section 73 and
452	452	421inserting in place thereof the following section:-
453	453	422 Section 73. Whoever advertises, announces, establishes or maintains, or is concerned in
454	454	423establishing or maintaining a long-term care facility, or is engaged in any such business, without
455	455	424a license granted under section 71, or whoever being licensed under said section 71 violates any
456	456	425provision of sections 71 to 73, inclusive, shall for a first offense be punished by a fine of not
457	457	426more than $1,000, and for a subsequent offense by a fine of not more than $2,000 or by
458	458	427imprisonment for not more than two years.
459	459	428 Whoever violates any rule or regulation established under sections 71, 72 and 72C shall
460	460	429be punished by a fine, not to exceed $22,320, as the department may establish unless the
461	461	430department determines a higher amount is permitted pursuant to 42 CFR 488.438. If any person
462	462	431violates any such rule or regulation by allowing a condition to exist which may be corrected or
463	463	432remedied, the department shall order such person, in writing, to correct or remedy such
464	464	433condition, and if such person fails or refuses to comply with such order by the agreed upon
465	465	434correct by date, as defined in section 72E, each day after the agreed upon correct by date during
466	466	435which such failure or refusal to comply continues shall constitute a separate offense. A failure to
467	467	436pay the fine imposed by this section shall be a violation of this section. 22 of 25
468	468	437 SECTION 9. Section 14A of chapter 118E of the General Laws, as appearing in the 2020
469	469	438Official Edition, is hereby amended by adding the following paragraph:-
470	470	439 On a per resident basis, MassHealth shall reimburse nursing home facilities for up to and
471	471	440including 20 medical leave-of-absence days and shall reimburse the facilities for up to and
472	472	441including 10 nonmedical leave-of-absence days per year for MassHealth recipients; provided,
473	473	442that medical leave-of-absence days shall include an observation stay in a hospital in excess of 24
474	474	443hours. No nursing home shall reassign a patient's bed during a leave of absence that is eligible
475	475	444for reimbursement.
476	476	445 SECTION 10. Said chapter 118E of the General Laws is further amended by adding the
477	477	446following section:-
478	478	447 Section 80. For the purpose of ensuring a living wage for nursing facility direct care staff,
479	479	448MassHealth shall enact regulations regarding standard payments from MassHealth to nursing
480	480	449facilities that establish a living wage for direct care staff of licensed nursing homes, including,
481	481	450but not limited to, certified nurse aides and housekeeping, laundry, dietary, plant operations and
482	482	451clerical staff. Such regulations shall ensure that such standard payments shall reimburse nursing
483	483	452facilities for the costs of paying a living wage, associated payroll benefits and related employee
484	484	453costs. MassHealth shall, subject to appropriation, adjust such payments with an inflation
485	485	454adjustment consistent with the annual unadjusted Skilled Nursing Facility Market Basket Update,
486	486	455as established by the Centers for Medicare & Medicaid Services in 42 C.F.R. § 413.337.
487	487	456MassHealth shall adopt all additional regulations and procedures necessary to carry out this
488	488	457section, provided, that such regulations shall include permissible use standards mandating that
489	489	458facilities shall expend these supplemental payments exclusively on direct care staff expenses, 23 of 25
490	490	459which shall be further defined in such regulations but that shall not include spending on
491	491	460temporary nursing staff, management staff or nursing facility administrators. Such additional
492	492	461regulations and procedures shall include: (i) mandated facility interim reporting to the executive
493	493	462office of health and human services on the ways in which the facility expects to spend; and (ii)
494	494	463mandated facility final reporting on the expenditure of payments received under this section,
495	495	464including audits and provisions that reconcile such expenditure reporting with the Direct Care
496	496	465Cost Quotient regulations. MassHealth shall submit to the house and senate committees on ways
497	497	466and means a report containing an analysis of funds expended under this program.
498	498	467 SECTION 11. (a) Notwithstanding any special or general law to the contrary, the center
499	499	468for health information and analysis, in consultation with MassHealth, the department of elder
500	500	469affairs, the department of public health and the health policy commission shall annually conduct
501	501	470an examination of cost trends and financial performance among nursing facilities, as defined by
502	502	471957 CMR 7.02. The information shall be analyzed on an institution-specific and industry-wide
503	503	472basis. The examination shall also aggregate information collected on multiple skilled nursing
504	504	473facilities that are owned and operated by a single individual, trust, estate, partnership,
505	505	474association, company or corporation with an ownership interest of 5 per cent or more in the
506	506	475facilities’ operating license, management company, or associated real estate. The examination
507	507	476and report shall include, but not be limited to the collection and analysis of the following: (i)
508	508	477gross and net patient service revenues; (ii) other sources of operating and non-operating revenue;
509	509	478(iii) trends in relative price, payer mix, case mix, utilization and length of stay dating back to
510	510	4792010; (iv) affiliations with other health care providers, including, but not limited to, preferred
511	511	480clinical relationships and partnerships; (v) categories of costs, including, but not limited to,
512	512	481general and administrative costs, nursing and other labor costs and salaries, building costs, 24 of 25
513	513	482capital costs and other operating costs; (vi) total spending on direct patient care as a percent of
514	514	483total operating expenses; (vii) operating and total margin; (viii) occupancy rates; and (ix) other
515	515	484relevant measures of financial performance and service delivery. These measures should
516	516	485distinguish long-term residents from short-stay residents where possible. The report and any
517	517	486policy recommendations shall be filed with the clerks of the house of representatives and the
518	518	487senate, the house of representatives and senate committees on ways and means and the joint
519	519	488committee on elder affairs no later than 6 months after the passage of this act.
520	520	489 (b) To determine affiliations between nursing facilities and other health care providers as
521	521	490required, the center for health information and analysis shall utilize ownership information
522	522	491submitted to the department of public health as part of the long-term care facility licensure
523	523	492determination process set forth in section 71 of chapter 111 of the General Laws. The department
524	524	493of public health shall provide such records as necessary for the provision of this section.
525	525	494 SECTION 12. Notwithstanding any general or special law to the contrary, the health
526	526	495policy commission shall conduct an analysis and issue a report on nursing personnel in long-term
527	527	496care facilities. The study shall consider the hours of care per resident per day required to prevent
528	528	497a substandard quality of care as defined by 42 CFR 488.301 and ensure sufficient staffing levels
529	529	498necessary to meet resident nursing care needs based on acuity, resident assessments, care plans,
530	530	499census and other relevant factors. This study shall also consider the effect of such staffing
531	531	500requirements on the long-term care industry including cost impact on long-term care facilities,
532	532	501satisfaction of the workforce and quality of care for residents.
533	533	502 The health policy commission shall submit to the clerks of the house of representatives
534	534	503and the senate, the house and senate committees on ways and means, the joint committee on 25 of 25
535	535	504healthcare financing and the joint committee on elder affairs the report, including any
536	536	505recommendations derived from the study within 180 days of the effective date of this act.
537	537	506 SECTION 13. Pursuant to section 72CC of section 111 of the General Laws, each long-
538	538	507term care facility shall submit its outbreak response plan to the department within 180 days of
539	539	508the effective date of this act.