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Massachusetts House Bill H649

Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H649 Compare Versions

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22 HOUSE DOCKET, NO. 2201 FILED ON: 1/19/2023
33 HOUSE . . . . . . . . . . . . . . . No. 649
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Thomas M. Stanley and Michael J. Moran
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act to improve Massachusetts home care.
1313 _______________
1414 PETITION OF:
1515 NAME:DISTRICT/ADDRESS :DATE ADDED:Thomas M. Stanley9th Middlesex1/9/2023Michael J. Moran18th Suffolk1/19/2023Patricia D. JehlenSecond Middlesex1/20/2023Sean Garballey23rd Middlesex1/20/2023Steven Ultrino33rd Middlesex1/26/2023David Henry Argosky LeBoeuf17th Worcester1/26/2023Christopher J. Worrell5th Suffolk1/26/2023Brian W. Murray10th Worcester1/29/2023Jack Patrick Lewis7th Middlesex1/30/2023Peter Capano11th Essex1/30/2023James C. Arena-DeRosa8th Middlesex1/30/2023Lindsay N. Sabadosa1st Hampshire1/30/2023Joseph W. McGonagle, Jr.28th Middlesex1/31/2023Gerard J. Cassidy9th Plymouth1/31/2023Michelle M. DuBois10th Plymouth1/31/2023Tackey Chan2nd Norfolk2/1/2023Patricia A. Duffy5th Hampden2/2/2023Bud L. Williams11th Hampden2/6/2023 2 of 2
1616 Jon Santiago9th Suffolk2/6/2023Adrian C. Madaro1st Suffolk2/6/2023Carol A. Doherty3rd Bristol2/6/2023Vanna Howard17th Middlesex2/7/2023James K. Hawkins2nd Bristol2/7/2023Paul McMurtry11th Norfolk2/8/2023Kay Khan11th Middlesex2/8/2023Russell E. Holmes6th Suffolk2/8/2023Christine P. Barber34th Middlesex2/9/2023Steven Owens29th Middlesex2/10/2023William C. Galvin6th Norfolk2/13/2023Priscila S. Sousa6th Middlesex2/14/2023Mathew J. Muratore1st Plymouth2/14/2023Margaret R. Scarsdale1st Middlesex2/15/2023Joseph D. McKenna18th Worcester2/15/2023Samantha Montaño15th Suffolk2/16/2023Daniel Cahill10th Essex2/17/2023Michael D. BradySecond Plymouth and Norfolk2/18/2023James B. EldridgeMiddlesex and Worcester2/19/2023Kate Lipper-Garabedian32nd Middlesex2/22/2023Adrianne Pusateri Ramos14th Essex3/1/2023Jennifer Balinsky Armini8th Essex3/4/2023Michelle L. Ciccolo15th Middlesex3/13/2023 1 of 13
1717 HOUSE DOCKET, NO. 2201 FILED ON: 1/19/2023
1818 HOUSE . . . . . . . . . . . . . . . No. 649
1919 By Representatives Stanley of Waltham and Moran of Boston, a petition (accompanied by bill,
2020 House, No. 649) of Thomas M. Stanley, Michael J. Moran and others for legislation to create
2121 safe environments for home care workers and consumers. Elder Affairs.
2222 [SIMILAR MATTER FILED IN PREVIOUS SESSION
2323 SEE HOUSE, NO. 4471 OF 2021-2022.]
2424 The Commonwealth of Massachusetts
2525 _______________
2626 In the One Hundred and Ninety-Third General Court
2727 (2023-2024)
2828 _______________
2929 An Act to improve Massachusetts home care.
3030 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
3131 of the same, as follows:
3232 1 SECTION 1. Chapter 111 of the General Laws, as appearing in the 2020 Official Edition,
3333 2is hereby amended by inserting after section 51K the following 3 sections:-
3434 3 Section 51L. (a)For the purposes of this section and sections 51M and 51N, the following
3535 4words shall, unless the context clearly requires otherwise, have the following meanings,:-
3636 5 “Home care agency", a business, nonprofit organization or other entity engaged in
3737 6providing home care services to consumers in the consumers’ residence for compensation or any
3838 7entity or individual that represents itself as a home care agency by name, advertising or
3939 8presentments to the public or uses the terms “home care agency” or “home care” in the entity or
4040 9individual’s name; provided however, that ''home care agency'' shall not include any of the 2 of 13
4141 10following: (i) an entity operated by either the federal government or the commonwealth
4242 11providing home care services, (ii) an entity that limits its business to the provision of house
4343 12cleaning services, (iii) an Aging Service Access Points entity as defined in section 4B of chapter
4444 1319A, (v) a hospice program licensed under section 57D or (vi) a home health agency as defined
4545 14in section 51K.
4646 15 “Home care consumers”, an individual receiving home care services or any legal
4747 16representative of such individual.
4848 17 “Home care services", supportive services provided to an individual in their residence to
4949 18enable that individual to remain in their residence safely and comfortably, including, but not
5050 19limited to, assistance with eating, toileting, dressing, bathing, transferring, ambulation and other
5151 20activities of daily living, housekeeping, personal laundry and companionship. Home care
5252 21services shall not include hospice services provided by an entity subject to licensure under
5353 22section 57D or home health services provided by an entity subject to licensure under section
5454 2351K, services provided by a personal care attendant in the commonwealth’s personal care
5555 24attendant program as defined in 130 CMR 422.000 or services provided under the MassHealth
5656 25adult foster care program as defined in 101 CMR 351.00.
5757 26 “Home care worker”, an individual employed by a home care agency who provides home
5858 27care services to a consumer in the consumer’s residence.
5959 28 “Personal care attendant”, an individual who provides consumer-directed personal care
6060 29services to a consumer in the consumer’s residence, including, but not limited to, a person
6161 30providing such services as defined under section 70 of chapter 118E.
6262 31 “Secretary”, the secretary of health and human services. 3 of 13
6363 32 (b)Unless otherwise expressly authorized by the secretary, no person shall establish,
6464 33maintain, operate or hold oneself out as a home care agency without a home care agency license
6565 34issued by the secretary and no organization or entity shall provide home care services, use the
6666 35words "home care" to describe its services or establish, maintain, operate or hold itself out as a
6767 36home care agency without a home care agency license issued by the secretary; provided, that
6868 37licensure shall be required for home care agencies that directly employ home care workers or
6969 38directly contract with a company who employs home care workers.
7070 39 (c)The secretary shall issue for a term to be determined, and may renew for like
7171 40terms, a home care agency license to any person or entity of any kind, other than a department,
7272 41agency or institution of the federal government, the commonwealth or any political subdivision
7373 42thereof, that: (i) the secretary deems responsible and suitable to establish or operate a home care
7474 43agency, and (ii) meets the requirements of the executive office of health and human services
7575 44established in accordance with the office’s rules and regulations developed in consultation with
7676 45the executive office of elder affairs and the department of public health as provided in subsection
7777 46(e).
7878 47 A home care agency license shall be subject to suspension, revocation or refusal to renew
7979 48for cause. License application and renewal fees shall be established pursuant to section 3B of
8080 49chapter 7.
8181 50 The secretary may issue a provisional license for a term not to exceed 120 days to an
8282 51applicant that has not previously operated home care services, or to a home care agency that is
8383 52operating but is temporarily unable to meet applicable standards and requirements. If a
8484 53provisional licensee has made significant progress towards meeting such requirements, the 4 of 13
8585 54secretary may renew the provisional license once for a period not to exceed 120 days from the
8686 55expiration of the initial provisional license.
8787 56 (d)The secretary may impose a fine on a person or entity that advertises, announces,
8888 57establishes, or operates a home care agency without a license granted by the secretary. The
8989 58secretary may impose a fine on a licensed home care agency that violates this section, or any rule
9090 59or regulation promulgated hereunder. Each day during which a violation continues shall
9191 60constitute a separate offense.
9292 61 The secretary, in collaboration with the executive office of elder affairs and the
9393 62department of public health, may conduct surveys and investigations to enforce compliance with
9494 63this section.
9595 64 (e) The secretary shall, in consultation with the executive office of elder affairs and
9696 65the department of public health, promulgate rules and regulations for the licensing and conduct
9797 66of a home care agency. In developing these rules and regulations, the secretary shall review all
9898 67existing licensure, reporting and oversight requirements across the long-term care services and
9999 68support system and other relevant state agencies, including the provider monitoring conducted by
100100 69the Aging Services Access Points, to avoid duplication or conflicting requirements and to ensure
101101 70that home care agency licensure processes align with the current licensure for home health
102102 71agencies and with state oversight process already in place through the Aging Services Access
103103 72Points and the nurse aide registry.
104104 73 The regulations shall include, but shall not be limited to:
105105 74 (i)background screening check requirements for all home care workers which may
106106 75include: (1) Massachusetts criminal background checks, (2) state or county criminal history 5 of 13
107107 76screenings for each location outside of the commonwealth in which the home care professional is
108108 77known to have lived or worked during the previous 5 years, (3) review of the federal Office of
109109 78Inspector General List of Excluded Individuals/Entities, (4) review of the nurse aide registry, (5)
110110 79applicable professional licensing board check and (6) for all home care professionals who will
111111 80transport consumers, verification of auto insurance and driving records for a minimum of the
112112 81previous 5 years;
113113 82 (ii)minimum standards for consumer-specific service plans and contracts; provided,
114114 83that the plans shall include: (1) a detailed description of services, including services the primary
115115 84agency is subcontracting to another agency or provider, (2) a written unit rate and total cost of
116116 85services, inclusive of any additional fees or deposits, and (3) contact information for consumer
117117 86questions;
118118 87 (iii)minimum coverage requirements for workers’ compensation insurance and
119119 88liability insurance;
120120 89 (iv) maintenance of a payroll process that follows all state and federal labor and wage
121121 90laws;
122122 91 (v)annual and ongoing training and competency requirements for home care agency
123123 92staff that are in direct contact with home care consumers; provided, that minimum training
124124 93requirements shall include (1) confidentiality and privacy of home care consumer’s rights, (2)
125125 94infection control and communicable diseases, (3) handling of emergencies, including safety and
126126 95falls prevention, (4) observation, reporting and documenting changes in consumer needs and
127127 96environment, (5) identifying and reporting suspected abuse, neglect or theft, and (6) wage theft.
128128 97The trainings shall be culturally and linguistically competent for the trainee; 6 of 13
129129 98 (vi)policies and procedures to ensure home care workers have safe working
130130 99conditions, adequate training and a process for submitting complaints;
131131 100 (vii) maintenance of an emergency preparedness plan;
132132 101 (viii) meeting of quality metrics and standards to be set forth in the licensing
133133 102regulations;
134134 103 (ix)requirements and written processes for the timely reporting of home care
135135 104consumer complaints;
136136 105 (x)a suitability determination process; provided, that the process shall include, but
137137 106not be limited to, requiring all applicants to attest to having sufficient financial capacity to
138138 107provide ongoing care and services in compliance with state law and regulation; and
139139 108 (xi)providing adequate equipment and supplies for home care workers.
140140 109 (f)The secretary shall be responsible for licensing home care agencies. To
141141 110accomplish the objectives set forth in this section, the secretary may coordinate and consult with
142142 111the offices and agencies that are interested in matters pertaining to the delivery of home care
143143 112services, including but not limited to: (1) the department of public health, (2) the executive office
144144 113of elder affairs, (3) the department of consumer affairs and business regulation and (4) the
145145 114department of public health. The responsibilities of the regulating agency shall include:
146146 115 (i)reviewing and processing licensure applications, including a suitability review
147147 116that ensures the applicant can meet the obligations and conditions of licensure, including:
148148 117 (A) a review of the state disbarment list and federal Office of Inspector General List of
149149 118Excluded Individuals/Entities; and 7 of 13
150150 119 (B) a competency review where all individuals with at least a 5 per cent ownership stake
151151 120in the home care agency shall submit the individuals’ names, contact information, companies
152152 121where they have at least a 5 per cent ownership, any civil or criminal findings against said
153153 122individual, and a completed background check;
154154 123 (ii)establishing a process for a change of ownership that includes advanced notice to
155155 124home care consumers and home care workers and a review by the regulating state agency to
156156 125determine if the new licensee can meet the obligations and conditions of licensure, including a
157157 126suitability review; provided, that home care agency licenses shall not be transferable;
158158 127 (iii)working with other regulators to investigate and resolve complaints;
159159 128 (iv)imposing fines on the licensee when determined to be appropriate;
160160 129 (v)suspending or revoking licenses when determined to be appropriate;
161161 130 (vi)posting a listing of licensed home care agencies on a publicly available webpage;
162162 131 (vii)allowing for “deemed status” for licensure of home care agencies if an Aging
163163 132Service Access Points or MassHealth provider contract is in place;
164164 133 (viii)establishing of quality metrics and standards for monitoring the licensed home
165165 134care agency performance, including reporting mechanisms for tracking performance; and
166166 135 (ix)annual reporting by home care agencies, which may include reporting on quality
167167 136metrics and significant changes related to home care agency finances.
168168 137 Section 51M. (a) The secretary, in consultation with the home care worker and consumer
169169 138abuse stakeholder advisory committee establishing in subsection (b), MassHealth, the department 8 of 13
170170 139of elder affairs, the department of public health and the PCA quality home care workforce
171171 140council established pursuant to section 71 of chapter 118E, shall adopt minimum standards and
172172 141procedures for addressing abusive treatment and bullying of Massachusetts home care workers,
173173 142personal care attendants and home care consumers. The standards and procedures shall address
174174 143physical, verbal and mental abuse either of or from individual home care consumers as well as
175175 144any abusive treatment or bullying from home care consumer surrogates, family members, other
176176 145caregivers and any others present in the home care consumers’ household when the home care
177177 146worker is providing home care services. The standards and procedures shall promote appropriate
178178 147home care worker and home care consumer training and support and a safe and healthy work
179179 148environment for home care workers, while recognizing the privacy rights of home care
180180 149consumers, the role of personal care attendant consumer employers and that home care
181181 150consumers may have a disruptive behavioral disorder underlying abuse behavior.
182182 151 (b) There shall be a home care worker and consumer abuse stakeholder advisory
183183 152committee that shall meet, study and make recommendations to the secretary relative to
184184 153standards and procedures for addressing abusive treatment and bullying of home care workers,
185185 154personal care attendants and home care consumers.
186186 155 The advisory committee shall consist of the following 16 members: the secretary or a
187187 156designee, who shall serve as chair; the assistant secretary for MassHealth or a designee; the
188188 157secretary of elder affairs or a designee; the commissioner of public health or a designee; the
189189 158chairs of the joint committee on elder affairs or their designees; and 10 persons to be appointed
190190 159by the governor, 1 of whom shall be a personal care attendant, 1 of whom shall be a home care
191191 160agency direct care worker, 1 of whom shall be a consumer of personal care attendant services
192192 161who shall be a member of the PCA workforce council, 1 of whom shall be a consumer of home 9 of 13
193193 162care agency services, 1 of whom shall be a representative of the statewide independent living
194194 163council, 1 of whom shall be a representative of the Disability Law Center, Inc., 1 of whom shall
195195 164be a representative of the Massachusetts Home Care, Inc., 1 of whom shall be a representative of
196196 165the Home Care Aide Council, 1 of whom shall be a representative of the Home Care Alliance of
197197 166Massachusetts, Inc., and 1 of whom shall be a representative of the Massachusetts division of
198198 1671199SEIU. The members of the advisory committee shall serve without compensation.
199199 168 The advisory committee shall submit a report containing initial findings and
200200 169recommendations, including drafts of proposed legislation or regulatory changes to carry out its
201201 170recommendations, by filing the same with the clerks of the senate and house of representatives,
202202 171the joint committee on elder affairs and the joint committee on public health. The advisory
203203 172committee shall continue to meet quarterly following submission of the report and until the
204204 173advisory committee votes to dissolve itself.
205205 174 (c) The home care worker and consumer abuse stakeholder advisory committee shall
206206 175study and make findings and recommendations relative to the development and implementation
207207 176of minimum standards and procedures for addressing abusive treatment and bullying of
208208 177Massachusetts home care workers, personal care attendants and home care consumers. The
209209 178advisory committee’s study, findings and recommendations shall include, but not be limited to:
210210 179 (1) Reporting and debriefing, including best practices for standards and procedures for
211211 180home care workers and their home care consumers experiencing abusive treatment, bullying or
212212 181neglect to report abuse to the home care workers’ employers or appropriate state entities,
213213 182including the PCA workforce council or MassHealth for personal care assistants, without
214214 183retaliation and while retaining the right to report any criminal activity to law enforcement. The 10 of 13
215215 184standards shall include, but not be limited to, best practices for a debriefing process for affected
216216 185home care workers and home care consumers following violent acts.
217217 186 (2) Tracking and record retention, including best practices for standards and procedures
218218 187for the secretary to track and monitor reports of both home care worker abuse and reports of
219219 188home care consumer abuse or neglect.
220220 189 (3) Informing workers, including best practices for standards and procedures that would
221221 190require employers of home care workers or other appropriate state entities, including the PCA
222222 191workforce council or MassHealth for personal care assistants, to regularly inform home care
223223 192workers of patterns of consumer or worker abuse or bullying that indicates a potentially unsafe
224224 193working environment. The standards and procedures shall respect home care consumer privacy
225225 194while prioritizing home care worker safety and while ensuring continuity of care.
226226 195 (4) Training and employer policies, including best practices for standards and procedures
227227 196for the secretary, in consultation with home care employers and other stakeholders, to develop
228228 197and implement home care worker and home care consumer orientations and other trainings on:
229229 198(i) worker abuse and bullying, (ii) escalation cycles and effective de-escalation techniques and
230230 199(iii) culturally competent and peer-to-peer trainings and strategies to prevent physical harm with
231231 200hands-on practice or role play. The training and employer policies shall also include best
232232 201practices for home care employers to implement additional internal plans and procedures to: (A)
233233 202reduce workplace violence and abuse, (B) offer resources to employees for coping with the
234234 203effects of violence and (C) develop labor-management workplace safety committees. The
235235 204training and employer policies shall consider and avoid duplication of existing requirements and
236236 205trainings in place through Aging Service Access Points. 11 of 13
237237 206 Section 51N. (a) There is hereby established a home care oversight advisory council
238238 207within the executive office of health and human services.
239239 208 The advisory council shall advise the secretary relating to the regulations described in
240240 209subsection (e) of section 51L. The executive office of health and human services shall consult
241241 210with the advisory council on implementation of the home care agency licensure process outlined
242242 211in section 51L. The advisory council may also conduct a review concurrently with the
243243 212development of the home care agency licensure process to include, but not be limited to:
244244 213 (i) the process of implementing the new home care agency licensure process in the
245245 214commonwealth, including the creation of a provisional license to address identified gaps in home
246246 215care services;
247247 216 (ii) existing licensure, reporting and oversight requirements across the long-term care
248248 217services and support systems and other relevant state agencies, including the provider monitoring
249249 218conducted by the Aging Services Access Points, to avoid duplication and conflicting
250250 219requirements;
251251 220 (iii) home care agency licensure requirements in other states;
252252 221 (iv) processes to ensure that the home care agency licensure process will align with
253253 222licensure for home health agencies and with state oversight process already in place through the
254254 223Aging Services Access Points, the home care worker registry established in section 4D of
255255 224chapter 19A and the nurse aide registry established in section 72J; 12 of 13
256256 225 (v) the development of a process for state government to conduct a statewide home care
257257 226market analysis and report on current available home care services in all regions that may inform
258258 227the regulating agency and the issuance of new home care agency licenses; and
259259 228 (vi) any additional subjects that the home care oversight advisory council and the
260260 229secretary deem necessary and appropriate.
261261 230 (b) The advisory council shall be composed of the secretary or their designee, who shall
262262 231serve as chair; the chairs of the joint committee on elder affairs or their designees; the secretary
263263 232of elder affairs or their designee; the commissioner of public health or their designee; the
264264 233assistant secretary for MassHealth or their designee; 1 person to be appointed by the minority
265265 234leader of the house of representatives; 1 person to be appointed by the minority leader of the
266266 235senate; and 4 persons to be appointed by the governor, 1 of whom shall be a representative of the
267267 236Home Care Aide Council, 1 of whom shall be a representative of the Home Care Alliance of
268268 237Massachusetts, Inc., 1 of whom shall be a representative of Massachusetts Home Care, Inc. and 1
269269 238of whom shall be a representative of the Massachusetts division of 1199SEIU.
270270 239 (c) The council shall meet quarterly. Upon the promulgation of regulations for home care
271271 240agency licensure pursuant to subsection (e) of section 51L, the council may introduce a motion to
272272 241dissolve by a majority vote of its members.
273273 242 SECTION 2. Section 1 of chapter 151B of the General Laws, as so appearing, is hereby
274274 243amended by inserting after the word “thereof”, in line 21, the following words:- and an employer
275275 244of a personal care attendant as defined in section 70 of chapter 118E, including individual
276276 245consumers of a personal care attendant. 13 of 13
277277 246 SECTION 3. The secretary of health and human services shall, in consultation with the
278278 247executive office of elder affairs and the department of public health, promulgate rules and
279279 248regulations for the licensing and conduct of a home care agency, as provided in subsection (e) of
280280 249section 51L of chapter 111 of the General Laws, within 1 year of the effective date of this act.
281281 250 SECTION 4. The home care worker and consumer abuse stakeholder advisory committee
282282 251established in subsection (b) of section 51M of said chapter 111 shall meet at least monthly in
283283 252the first 6 months after the effective date of this act to develop initial findings and
284284 253recommendations. The advisory committee shall submit the report described in said subsection
285285 254(b) of said section 51M of said chapter 111 not later than 6 months after the effective date of this
286286 255act.
287287 256 SECTION 5. Members of the home care oversight advisory council established in section
288288 25751N of said chapter 111 shall be named and the council shall commence its work within 60 days
289289 258of the effective date of this act.