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SENATE . . . . . . . . . . . . . . No. 2900
Senate, June 25, 2024 -- Text of the Senate amendment to the House Bill relative to long-term
care and assisted living (House, No. 4193) (being the text of Senate, No. 2889, printed as
amended)
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
1 SECTION 1. Section 1 of chapter 19D of the General Laws, as appearing in the 2022
2Official Edition, is hereby amended by inserting after the definition of “Assisted living
3residence” or “Residence,” the following 3 definitions:-
4 “Authorized medical professional”, an advanced practice registered nurse with
5prescriptive authority, a physician assistant or a physician; provided, however, that an authorized
6medical professional shall have been granted authority by a resident to issue care orders for the
7resident.
8 “Basic health services”, certain services provided at an assisted living residence by
9employees of the residence that are qualified to administer such services or a qualified third party
10in accordance with a care order issued by an authorized medical professional; provided,
11however, that such services shall include all of the following: (i) injections; (ii) the application or
12replacement of simple non-sterile dressings; (iii) the management of oxygen on a regular and
13continuing basis; (iv) specimen collection and the completion of a home diagnostic test,
14including, but not limited to, warfarin, prothrombin or international normalized ratio testing and
15glucose testing; and provided further, that such home diagnostic test or monitoring is approved 2 of 51
16by the United States Food and Drug Administration for home use; and (v) application of
17ointments or drops.
18 “Care Order”, a written order for basic health services issued by an authorized medical
19professional.
20 SECTION 2. Said section 1 of said chapter 19D, as so appearing, is hereby further
21amended by striking out the definition of “Elderly housing”.
22 SECTION 3. Said section 1 of said chapter 19D, as so appearing, is hereby further
23amended by striking out the definition of “Skilled nursing care” and inserting in place thereof the
24following definition:-
25 "Skilled nursing care", skilled services described in 130 CMR 456.409 or any successor
26regulation.
27 SECTION 4. Section 2 of said chapter 19D, as so appearing, is hereby amended by
28striking out clauses (v) and (vi) and inserting in place thereof the following 2 clauses:-
29 (v) provide services to residents in accordance with service plans developed through a
30process by which employees of the residence discuss the service plan and the needs of the
31resident with the resident and their representative or designee and ensure the consequences of a
32decision, including any inherent risk, are understood by all parties; provided, however, that such
33parties shall review the service plan periodically and consider changes in the resident's status and
34the ability of the residence to respond accordingly and as set forth in section 12; provided
35further, that if a resident is receiving basic health services, the staff of the residence shall consult
36the resident’s authorized medical professional when developing the resident’s service plan; 3 of 51
37 (vi) coordinate and provide personal services, basic health services, where applicable, and
38other services required under service plans as set forth in section 12;.
39 SECTION 5. Said chapter 19D is hereby further amended by striking out sections 3 to 6,
40inclusive, as so appearing, and inserting in place thereof the following 4 sections:-
41 Section 3. (a) No person shall advertise, operate or maintain an assisted living residence
42without the certification required under this chapter; provided, however, that the provisions of
43this chapter shall not apply to entities for the original facilities and services for which said
44entities were originally licensed or organized to provide. Assisted living residences may be
45sponsored by: (i) convalescent homes, licensed nursing homes, licensed rest homes, charitable
46homes for the aged or intermediate care facilities for persons with an intellectual disability
47licensed pursuant to section 71 of chapter 111; (ii) hospices licensed pursuant to the provisions
48of section 57D of said chapter 111; (iii) facilities providing continuing care to residents, as
49defined by section 76 of chapter 93; (iv) congregate housing authorized by section 39 of chapter
50121B; (v) group homes or supported living programs operating under contract with the
51department of mental health, the rehabilitation commission or the department of developmental
52services; or (vi) housing operated for only those duly ordained priests or for the of the religious
53orders of the Roman Catholic church in their own locations, buildings, residences or
54headquarters to provide care, shelter, treatment and medical assistance for any of the said duly
55ordained priests or members of the said religious order.
56 (b) The provisions of this chapter shall not apply to any residential premises available for
57lease by elderly or disabled individuals that is financed or subsidized in whole or in part by local,
58state or federal housing programs established primarily to develop or operate housing rather than 4 of 51
59to provide housing and personal services in combination; provided, however, that such premises
60are not currently licensed under chapter 111.
61 Section 4. (a) The department shall issue a certification for a term of 2 years, and shall
62renew for like terms, to any applicant whom the department determines meets the regulatory
63requirements promulgated by the department in accordance with this chapter; provided, however,
64that a certification shall be subject to corrective action, modification, suspension or revocation
65for cause, as determined by the department. Such certification shall: (i) not be transferable or
66assignable; (ii) be issued only to the person and for the premises named in the application; (iii)
67indicate whether the residence has been approved to provide basic health services; and (iv)
68indicate the certification’s expiration date. The department shall issue a certificate, which shall
69be posted by the residence and on the residence’s website in a conspicuous place on the approved
70premises.
71 (b) Upon applying for initial certification or renewal, an applicant shall pay the
72department a fee based on the number of units at the assisted living residence, established by the
73secretary of administration and finance pursuant to the provisions of section 3B of chapter 7;
74provided, however, that a minimum fee shall be established notwithstanding the number of units
75at the residence. No fees for initial certification or renewal shall be due from any provider for
76assisted living units created under the United States Department of Housing and Urban
77Development Assisted Living Conversion Program.
78 (c) If an application for renewal of a certification is filed not less than 30 days before the
79expiration date, such certification shall not expire until the department notifies the sponsor that
80the application for renewal has been denied. 5 of 51
81 (d) Applicants for initial certification shall file with the department an operating plan that
82includes: (i) the number of units; (ii) the number of residents allowed per unit; (iii) the location
83of resident units, common spaces and egresses by floor; (iv) the base fee to be charged for each
84such unit; (v) the services to be offered, including basic health services, if applicable, and
85arrangements for providing such services, including linkages with hospital and nursing facilities,
86if any; (vi) the number of staff to be employed; and (vii) other information the department deems
87necessary.
88 (e) Residences may seek certification by the department to provide basic health services;
89provided, however, that residences offering basic health services shall not restrict resident choice
90in the delivery of said services by third party providers. The residence shall submit a revised
91operating plan to the department in the event of a change in the scope of basic health services
92offered to residents. A residence seeking to provide basic health services shall include in its
93operating plan: (i) a proposed administrative and operational structure to ensure the safe and
94effective use of basic health services and meet the needs of its residents; and (ii) a compliance
95plan to meet the requirements established under this chapter and promulgated regulations, which
96shall include, but not be limited to: (A) staff qualifications and training; and (B) effective
97policies and procedures to ensure the availability of adequate supplies necessary for basic health
98services and the safe administration and secure storage of medications.
99 (f) Applicants and sponsors shall file material changes to the assisted living residence’s
100operating plan prior to the change’s effective date and as may otherwise be required by the
101department. A sponsor shall file annually on a date established by and on a form prescribed by
102the department, a statement and a professional opinion prepared by a certified public account or
103comparable reviewer indicating whether the assisted living residence is in sound fiscal condition 6 of 51
104and is maintaining sufficient cash flow and reserves to meet the requirements of the service plans
105established for its residents.
106 (g) Applicants for initial certification or renewal shall disclose the name and address of
107each officer, director, trustee and limited partner or shareholder with not less than 5 per cent
108interest in the assisted living residence and shall provide to the department documentation of the
109history of each such individual or entity, including, but not limited to: (i) all multifamily housing,
110assisted living residences or health care facilities in which the individual or entity has been an
111officer, director, trustee or partner and, if applicable, evidence from the relevant regulatory
112authority that said applicant has met criteria for licensure or certification; (ii) documentation of
113any enforcement action against the applicant and, if applicable, evidence that the applicant has
114corrected all cited deficiencies without revocation of licensure or certification; and (iii) any other
115evidence, as determined by the department.
116 (h) The department may deny certification to an applicant who had an ownership interest
117in an entity licensed under chapter 111, a licensed medical provider or a home health agency
118certified under Title XVIII of the Social Security Act, as amended, that: (i) has been subject to a
119patient care receivership action; (ii) has ceased to operate such an entity as a result of: (A)
120suspension or revocation of license or certification; (B) receivership; or (C) a settlement
121agreement arising from suspension or revocation of a license or certification; (iii) a settlement
122agreement in lieu of or as a result of subclause (B); (iv) has been the subject of a substantiated
123case of patient abuse or neglect involving material failure to provide adequate protection or
124services for the resident in order to prevent such abuse or neglect; or (v) has over the course of
125its operation been cited for repeated, serious and willful violations of rules and regulations 7 of 51
126governing the operation of said health care facility that indicate a disregard for resident safety
127and an inability to responsibly operate an assisted living residence.
128 Section 5. (a) The department or its authorized designee, shall biennially review all
129assisted living residences; provided, however, that an authorized designee shall not include
130sponsors of assisted living residences.
131 (b) Prior to the issuance of the sponsor's initial certification, the department shall conduct
132a review to determine whether an assisted living residence is compliant with this chapter;
133provided, however, that the department may conduct such review of an assisted living residence
134at any time the department has probable cause to believe that such assisted living residence is in
135violation of a provision of this chapter or any regulation promulgated thereunder. Such review
136shall include: (i) an inspection of every part of the common areas of the assisted living residence
137and the living quarters of a resident with the resident's prior consent; (ii) an examination of the
138operating plan; (iii) an examination of a resident's service plan and written progress reports with
139the resident’s consent; and (iv) resident satisfaction surveys. An inspector shall have authority to
140confidentially and privately interview the sponsor, manager, staff and residents.
141 (c) Reviews of assisted living residences certified to provide basic health services shall
142include an inspection of records associated with the provision of basic health services, a review
143of residence employee qualifications and the residence’s operating plan.
144 (d) Upon the completion of an annual or biennial review, the department shall prepare a
145written report summarizing all pertinent information obtained during the review and shall not
146disclose confidential or privileged information obtained in connection with such review. The
147department shall promulgate rules and regulations necessary to ensure the sponsor receives such 8 of 51
148report and, if applicable, has the opportunity to respond to and resolve any findings of
149noncompliance prior to departmental enforcement action. Completed reports, responses and
150notices of final action shall be made available to the public at the department during business
151hours together with the responses of the applicants or the sponsors and said reports, responses
152and notices of final action shall be posted on the website of the department.
153 Section 6. (a) If the department determines a sponsor or applicant has failed or refused to
154comply with requirements established under this chapter or the regulations promulgated
155thereunder, the department may: (i) deny an application for recertification; (ii) modify, suspend
156or revoke a certification; or (iii) issue a fine of not more than $500 for each day of such failure or
157refusal to comply.
158 (b) Notice of enforcement action and a sponsor’s right to an adjudicatory proceeding
159shall be governed by the provisions of chapter 30A.
160 SECTION 6. Section 8 of said chapter 19D, as so appearing, is hereby amended by
161striking out, in lines 14 and 15, the words “Any person who violates this subsection shall be
162subject to” and inserting in place thereof the following words:- A violation of this subsection
163shall constitute a violation of chapter 93A and shall be punishable by.
164 SECTION 7. Section 10 of said chapter 19D, as so appearing, is hereby amended by
165striking out subsections (b) to (d), inclusive, and inserting in place thereof the following 7
166subsections:-
167 (b) The sponsor of the assisted living residence may provide or arrange for the provision
168of additional services, including: (i) barber and beauty services, sundries for personal
169consumption and other amenities; (ii) local transportation for medical and recreational purposes; 9 of 51
170(iii) assistance with and supervision of instrumental activities of daily living; (iv) assistance to
171residents with accessing telehealth services;(v) basic health services for residents whose service
172plan includes basic health services, in accordance with the requirements set forth within this
173chapter, by personnel who meet standards for professional qualifications and training set forth in
174regulations promulgated pursuant to this chapter; and (vi) ancillary services for health-related
175care including, but not limited to, restorative therapies, podiatry, hospice care, home health or
176other such services; provided, however, that such services shall be delivered by an individual
177licensed to provide such care.
178 (c) No employee of an assisted living residence shall control or manage the funds or
179property of an assisted living resident; provided, however, that if a resident is unable to manage
180their funds or property, the assisted living residence shall arrange money management and other
181financial arrangements with an independent party.
182 (d) A residence certified to provide basic health services may advertise, market and
183otherwise promote offered services under this chapter and inform residents of the option to
184directly procure such services from qualified third parties.
185 (e) The residence shall disclose to each resident through the assisted living residence’s
186residency agreement the fees associated with basic health services and shall review such fees
187with the resident upon the implementation of and any revision to a service plan that includes
188provision of basic health services. The residence shall notify residents of any changes in fees in
189advance and in a timely manner. Residents who receive basic health services shall receive an
190additional service plan review on a quarterly basis and shall have the opportunity to discontinue
191receiving basic health services from the residence upon written notice to the residence and shall 10 of 51
192not be charged a cancellation fee or a fee for services not provided due to discontinuation of the
193services.
194 (f) The department, in consultation with the department of public health, shall promulgate
195regulations governing the application, criteria for approval or disapproval of such application,
196and ongoing oversight of residences that elect to offer basic health services authorized in this
197section. The department may impose an annual fee on assisted living residences that offer basic
198health services.
199 (g) To ensure patient safety and clinical competence in the application of subsections (d)
200to (f), inclusive, the department and the department of public health shall establish operating plan
201requirements for residences that opt to provide basic health services, including staff access to a
202licensed practical nurse or registered nurse for consultation at all times; provided, however, that
203the nurse shall not be required to be on the premises. The department shall make available
204electronic copies of the required components of operating plans on the department’s website and
205shall conduct annual compliance reviews on the documentation created and maintained by
206assisted living residences for an assisted living resident who received basic health services within
207the previous 12-month period.
208 (h) No residence shall offer or provide basic health services without first being certified
209by the department. If the department determines that a residence is offering basic health services
210without certification, the department shall issue a fine of not more than $1,000 per day.
211 SECTION 8. Section 11 of said chapter 19D, as so appearing, is hereby amended by
212striking out, in lines 1 to 5, inclusive, the words “No assisted living residence shall admit any
213resident who requires twenty-four hour skilled nursing supervision. No assisted living residence 11 of 51
214shall provide, or admit or retain any resident in need of skilled nursing care unless all of the
215following are the case” and inserting in place thereof the following words:- No assisted living
216residence shall admit a resident who requires 24-hour skilled nursing supervision unless such
217resident elects to receive basic health services from residences that are certified to provide such
218services or from qualified third parties. No assisted living residence shall provide skilled nursing
219care or admit or retain a resident in need of skilled nursing care unless such resident elects to
220receive basic health services and the following criteria are met.
221 SECTION 9. Section 15 of said chapter 19D, as so appearing, is hereby amended by
222striking out subsection (c) and inserting in place thereof the following subsection:-
223 (c) No assisted living residence shall discharge, discipline, discriminate against or
224otherwise retaliate against an employee or resident who, in good faith, files a complaint with or
225provides information to the department relative to what the employee reasonably believes is a
226violation of law, rule or regulation or poses a risk to public health or safety or resident or staff
227well-being. An assisted living residence in violation of this section shall be liable to the person
228retaliated against by a civil action for up to treble damages, costs and attorney’s fees in the event
229such violation shall be determined to be egregious or willful.
230 SECTION 10. Said chapter 19D is hereby further amended by adding the following
231section:-
232 Section 19. The department shall promulgate regulations necessary to implement the
233requirements of this chapter. Such regulations shall include the establishment of standards
234concerning the education, training and experience of the managers and residence employees,
235including service coordinators. 12 of 51
236 SECTION 11. Chapter 111 of the General Laws is hereby amended by striking out
237section 71, as appearing in the 2022 Official Edition, and inserting in place thereof the following
238section:-
239 Section 71. (a) For purposes of this section and sections 71A½ to 73, inclusive, the
240following words shall have the following meanings unless the context clearly requires otherwise:
241 “Applicant”, a person who applies to the department for a license to establish or maintain
242and operate a long-term care facility.
243 “Charitable home for the aged”, an institution conducted for charitable purposes and
244maintained for the purpose of providing a retirement home for elderly persons and which may
245provide nursing care within the home for its residents.
246 “Cohorting”, the practice of grouping patients who: (i) are colonized or infected with the
247same organism in order to confine their care to 1 area and prevent contact with other patients; or
248(ii) are not colonized or infected with the same organism in order to confine their care to 1 area
249and prevent contact with other patients.
250 “Convalescent or nursing home”, an institution including a skilled nursing facility, which
251is advertised, announced or maintained for the express or implied purpose of caring for 4 or more
252persons admitted thereto for the purpose of nursing or convalescent care.
253 “Correct by date”, the date by which a licensee shall remedy or correct a violation
254discovered after an inspection by the department pursuant to section 72E.
255 “Endemic level”, the usual level of a given disease in a geographic area. 13 of 51
256 “Intermediate care facility for persons with an intellectual disability”, an institution that:
257(i) is conducted for charity or not for profit; (ii) is advertised, announced or maintained for the
258purpose of providing rehabilitative services and active treatment to persons with an intellectual
259disability or persons with related conditions, as defined in regulations promulgated pursuant to
260Title XIX of the Social Security Act, Public Law 89-97; (iii) is not both owned and operated by a
261state agency; and (iv) makes application to the department for a license for the purpose of
262participating in the federal program established by said Title XIX.
263 “Isolating”, the process of separating persons colonized or infected with a communicable
264disease from those who are not colonized or infected with a communicable disease.
265 “License”, an initial or renewal license issued by the department and permits the licensee
266to establish or maintain and operate a long-term care facility.
267 “Licensee”, a person permitted to establish or maintain and operate a long-term care
268facility through a license.
269 “Long-term care facility”, a charitable home for the aged, convalescent or nursing home,
270skilled nursing facility, intermediate care facility for persons with an intellectual disability or rest
271home.
272 “Long-term care services”, services including: (i) long-term resident, nursing,
273convalescent or rehabilitative care; (ii) supervision and care incident to old age for ambulatory
274persons; or (iii) retirement home care for elderly persons.
275 “Management company”, an organization engaged by a licensee to manage the operations
276at a long-term care facility. 14 of 51
277 “Outbreak”, an unusual occurrence of disease or any disease above endemic levels.
278 “Owner”, a person or management company with an ownership interest of not less than 5
279per cent, or with a controlling interest in an applicant, licensee, potential transferee or the real
280property on which a long-term care facility is located.
281 “Person”, an individual, trust, partnership, association, corporation or other form of
282business association.
283 “Potential transferee”, a person who submits to the department a notice of intent to
284acquire the facility operations of a currently operating long-term care facility.
285 “Religious and recreational activities”, religious, social or recreational activity that is
286consistent with the resident’s preferences and choosing, regardless of whether the activity is
287coordinated, offered, provided or sponsored by facility staff or by an outside activity provider.
288 “Resident”, an individual who resides in a long-term care facility.
289 “Rest home”, an institution, which is advertised, announced or maintained for the express
290or implied purpose of providing care incident to old age for 4 or more persons who are
291ambulatory and who do not require a specific level of nursing care or other medically related
292services on a routine basis.
293 “Skilled nursing facility”, an institution, which is certified by the federal Centers for
294Medicare and Medicaid Services for the purpose of providing continuous skilled nursing care
295and rehabilitative services for not less than 4 persons. 15 of 51
296 “Small house nursing home”, 1 or more units of a convalescent or nursing home designed
297and modeled as a residential home including a central living space, kitchen, dining area, living
298area and outdoor space.
299 “Transfer of facility operations”, a transfer of the operations of a long-term care facility
300from a licensee to a potential transferee.
301 (b)(1) The department shall issue for a term of 2 years, and shall renew for like terms, a
302license, subject to the restrictions in this section, to each applicant the department deems
303responsible and suitable to establish or maintain and operate a long-term care facility and which
304meets all other requirements for long-term care facility licensure pursuant to this chapter. A
305license issued pursuant to this section shall not be transferable or assignable and shall be issued
306only for the premises named in the application.
307 (2) Each long-term care facility shall be subject to at least 1 periodic, resident-centered
308inspection every 9 to 15 months for the purpose of gathering information about the quality of
309services furnished in the long-term care facility to determine compliance with applicable state
310and federal requirements.
311 (3) The department may, when public necessity and convenience require or to prevent
312undue hardship to an applicant or licensee, pursuant to such rules and regulations as it may
313adopt, grant a temporary provisional or probationary license pursuant to this section; provided,
314however, that no such license shall be for a term exceeding 1 year.
315 (4) The fee for a license to establish or maintain and operate a long-term care facility
316shall be determined annually by the secretary of administration and finance pursuant to section
3173B of chapter 7. 16 of 51
318 (c) The department shall not issue a license to establish or maintain an intermediate care
319facility for persons with an intellectual disability unless the department determines that there is a
320need for such a facility at the designated location; provided, however, that in the case of a facility
321previously licensed as an intermediate care facility for persons with an intellectual disability in
322which there is a change in ownership or transfer of operations, no such determination shall be
323required; and provided further, that in the case of a facility previously licensed as an intermediate
324care facility for persons with an intellectual disability in which there is a change in location, such
325determination shall be limited to consideration of the suitability of the new location.
326 (d)(1) In the case of the transfer of facility operations of a long-term care facility, a
327potential transferee shall submit a notice of intent to acquire to the department not less than 90
328days prior to the proposed transfer date. The notice of intent to acquire shall be on a form
329supplied by the department and shall be deemed complete upon submission of all information the
330department requires on said form. The potential transferee shall not be deemed responsible and
331suitable upon the expiration of the 90-day period or upon the expiration of said period as
332extended if the department fails to notify said potential transferee in writing of its decision within
333the 90-day period or within the expiration of the extension period, whichever is applicable;
334provided, however, that the potential transferee may resubmit its application for transfer.
335 (2) A potential transferee shall, concurrently with the submission of an intent to acquire,
336provide notice to the staff of the facility and to any labor organization that represents the
337facility’s staff at the time the notice of intent to acquire is submitted of the potential transferee’s
338plans to retain or not retain the facility staff and to recognize and bargain with any labor
339organizations currently representing the facility staff. 17 of 51
340 (3) Upon determination by the department that a potential transferee is responsible and
341suitable for licensure pursuant to subsection (g), the potential transferee may file an application
342for a license. In the case of a potential transfer of facility operations, the filing of an application
343for a license shall have the effect of a temporary provisional or probationary license until the
344department takes final action on such application.
345 (4) Upon an approved transfer of facility operations, the department shall not reduce the
346number of beds from the number that was originally approved in granting a license, unless a
347reduction in the number of beds is in the interest of public health, welfare or safety.
348 (e) Every applicant for a license shall provide on or with its application, and every
349potential transferee shall provide on or with its notice of intent to acquire, a sworn statement of
350the names and addresses of any owner of the applicant or the potential transferee.
351 (f) No license shall be issued to an applicant or potential transferee prior to a
352determination by the department that the applicant or potential transferee is responsible and
353suitable pursuant to subsection (g).
354 (g) For the purposes of this section, the department’s determination of responsibility and
355suitability shall include, but not be limited to: (i) the criminal history of the applicant or the
356potential transferee, including its respective owners and management companies, and, to the
357extent possible, the civil litigation history of the applicant or potential transferee, including its
358respective owners and contracted management companies, including litigation related to the
359operation of a long-term care facility, such as quality of care, safety of residents or staff,
360employment and labor issues, fraud, unfair or deceptive business practices and landlord-tenant
361issues; provided, however, that such criminal and civil litigation history may include pending or 18 of 51
362other court proceedings in the commonwealth and in any other state or federal jurisdiction;
363provided further, that information protected from public disclosure by federal or state law and
364obtained by the department pursuant to this section shall be confidential and exempt from
365disclosure under clause Twenty-sixth of section 7 of chapter 4 and chapter 66; (ii) the financial
366capacity of the applicant or potential transferee, including its respective owners and management
367companies, to establish or maintain and operate a long-term care facility; provided, however, that
368financial capacity may include, but not be limited to, recorded liens or unpaid fees or taxes in the
369commonwealth or in other states; (iii) the history of the applicant or potential transferee,
370including its respective owners and management companies, in providing quality long-term care
371in the commonwealth as measured by compliance with applicable quality measures, statutes and
372regulations governing the operation of long-term care facilities; provided, however, that
373applicable quality measures may include the Centers for Medicare and Medicaid Services
374Quality Rating System; and (iv) the history of the applicant or potential transferee, including its
375respective owners, management companies and, if applicable, the involvement of private equity
376firms, in providing quality long-term care in states other than the commonwealth, if any, as
377measured by compliance with the applicable quality measures, statutes and regulations governing
378the operation of long-term care facilities in said states; provided, however, that applicable quality
379measures may include the Centers for Medicare and Medicaid Services Quality Rating System
380 (h)(1) If the department determines that an applicant or potential transferee is not
381responsible and suitable, the department’s determination shall take effect on the date of the
382department’s notice to the applicant or potential transferee. In such cases and upon the filing of a
383written request, the department shall afford the applicant or potential transferee an adjudicatory
384hearing pursuant to chapter 30A. 19 of 51
385 (2) During the pendency of an adjudicatory hearing, the applicant or potential transferee
386shall not operate the facility as a licensee nor, without prior approval of the department, manage
387such facility.
388 (i) Each applicant, potential transferee and licensee shall maintain current records of all
389information provided to the department. After the applicant, potential transferee or licensee
390becomes aware of any change related to information it has provided or is required to provide to
391the department, such applicant, potential transferee or licensee shall submit to the department
392written notice of the change as soon as practicable and without unreasonable delay; provided,
393however, that any change in financial status shall be provided to the department and shall
394include, but not be limited to, filing for bankruptcy, any default under a lending agreement or
395under a lease, the appointment of a receiver or the recording of any lien. Failure to provide
396timely notice of such a change shall be subject to the remedies or sanctions available to the
397department pursuant to this chapter.
398 (j) An applicant, potential transferee or licensee and its respective owners and
399management companies shall comply with applicable federal, state and local laws, rules and
400regulations.
401 (k) The department shall not reduce the number of beds it originally approved in granting
402a license for a convalescent or nursing home or rest home upon the transfer of facility operations
403of said convalescent or nursing home or rest home from 1 licensee to another unless a reduction
404in the number of beds is in the interest of public health, welfare or safety.
405 (l)(1) The department shall not issue a license unless the applicant first submits to the
406department, with respect to each building occupied by residents: (i) a certificate of inspection of 20 of 51
407the egresses, the means of preventing the spread of fire and apparatus for extinguishing fire,
408issued by an inspector of the office of public safety and inspections within the division of
409occupational licensure; and (ii) a certificate of inspection issued by the head of the local fire
410department certifying compliance with local ordinances; provided, however, that for
411convalescent or nursing homes, the bureau of health care safety and quality within the
412department shall have sole authority to inspect and issue a certificate required pursuant to clause
413(i) of this paragraph.
414 (2) An applicant who is aggrieved, based on a written disapproval of a certificate of
415inspection by the head of the local fire department or by the office of public safety and
416inspections of the division of occupational licensure, may, within 30 days of such disapproval,
417submit a written appeal to the division of occupational licensure. Failure to either approve or
418disapprove within 30 days after a written request by an applicant shall be deemed a disapproval.
419For certificates of inspection issued to convalescent or nursing homes by the bureau of health
420care safety and quality within the department, an applicant may, within 30 days of disapproval of
421a certificate of inspection, submit a written appeal to the department; provided, however, that
422failure of the department to either approve or disapprove of a written appeal within 30 days of
423the submission of such written appeal shall constitute a disapproval.
424 (3) If the division of occupational licensure or, where applicable, the department,
425approves the issuance of a certificate of inspection after an appeal, the certificate shall be issued
426by the issuing agency. If the division of occupational licensure or, where applicable, the
427department, does not approve the issuance of a certificate of inspection, the applicant may appeal
428to the superior court pursuant to chapter 30A. Failure of the division or the department to either
429approve or disapprove the issuance of a certificate of inspection within 30 days of the receipt of 21 of 51
430an appeal shall be deemed a disapproval. The department shall not issue a license until issuance
431of an approved certificate of inspection, as required pursuant to paragraph (1).
432 (4) Nothing in this section or in sections 72 or 73 shall be construed to supersede or
433otherwise affect any laws, ordinances, by-laws, rules or regulations relating to building, zoning,
434registration or maintenance of a long-term care facility.
435 (m)(1) For cause, the department may limit, restrict, suspend or revoke a license;
436provided, however, that the department may temporarily suspend a license without a hearing if:
437(i) the suspension is due to an emergency; and (ii) the department responds to the suspension in a
438reasonable timeframe.
439 (2) Grounds for cause on which the department may take action pursuant to paragraph (1)
440shall include: (i) substantial or sustained failure or inability to provide adequate care to residents;
441(ii) substantial or sustained failure to maintain compliance with applicable statutes, rules and
442regulations; or (iii) the lack of financial capacity to maintain and operate a long-term care
443facility.
444 (3) Suspension of a license may include suspending the license during a pending license
445revocation action or suspending the license to permit the licensee a period of time, not less than
44660 days, to terminate operations and discharge and transfer all residents, if applicable.
447 (4) With respect to an order by the department to limit, restrict or suspend a license,
448within 7 days of receipt of the written order, the licensee may file a written request with the
449department for an adjudicatory proceeding pursuant to chapter 30A. 22 of 51
450 (5) Upon a written request by a licensee who is aggrieved by the revocation or limitation
451of a license or by an applicant who is aggrieved by the refusal of the department to renew a
452license, the licensee or applicant so aggrieved shall have all the rights provided in chapter 30A
453with respect to adjudicatory proceedings. In no case shall the revocation of such a license take
454effect in less than 30 days after written notification by the department to the licensee.
455 (6) The department may require a facility to limit new admissions.
456 (n) In the case of the new construction of, major addition to or alteration or repair to any
457long-term care facility, preliminary and final architectural plans and specifications shall be
458submitted to a qualified person designated by the commissioner. Written approval of the final
459architectural plans and specifications shall be obtained from said person prior to the new
460construction, major addition, alteration or repair.
461 (o) Notwithstanding any other provision of this section, the department shall not issue a
462license to establish or maintain and operate a long-term care facility to an applicant who applies
463to the department for said license to establish or maintain and operate a convalescent or nursing
464home unless the applicant for such license submits to the department a certificate that each
465building to be occupied by residents of such convalescent or nursing home meets the
466construction standards of the state building code and is of at least type 1–B fireproof
467construction; provided, however, that this subsection shall not apply in the instance of a transfer
468of facility operations of a convalescent or nursing home whose license has not been revoked as
469of the time of such transfer; and provided further, that a public medical institution as defined in
470section 8 of chapter 118E, which meets the construction standards as defined herein, shall not be
471denied a license as a long-term care facility pursuant to this section because it was not of new 23 of 51
472construction and designed for the purpose of operating a long-term care facility at the time of
473application for a license to operate a long-term care facility. An intermediate care facility for
474persons with an intellectual disability shall be required to meet the construction standards
475established for such facilities by Title XIX of the Social Security Act, Public Law 89-97, and any
476regulations promulgated pursuant thereto and by regulations promulgated by the department.
477 (p) The department shall notify the secretary of elder affairs of any proceeding, public
478hearing or action to be taken pursuant to this section relating to any convalescent or nursing
479home, rest home or charitable home for the aged. The department shall notify the commissioner
480of developmental services of the pendency of any proceeding, public hearing or action to be
481taken pursuant to this section relating to any intermediate care facility for persons with an
482intellectual disability.
483 (q) The department shall notify the clerks of the senate and house of representatives, the
484joint committee on elder affairs and the senate and house committees on ways and means within
4853 business days of being notified of a long-term care facility’s decision to close pursuant to
486department regulations.
487 SECTION 12. Said chapter 111 is hereby further amended by striking out section 72, as
488so appearing, and inserting in place thereof the following section:-
489 Section 72. (a)(1) The department shall classify long-term care facilities and shall, after a
490public hearing, promulgate rules and regulations for the conduct of such facilities. Rules and
491regulations for long-term care facilities shall include, but not be limited to, minimum
492requirements for medical and nursing care, the keeping of proper medical and nursing records,
493uniform requirements for the handling of patient funds, minimum requirements relative to the 24 of 51
494prevention and reparation of lost or damaged patient possessions, including personal clothing,
495and minimum requirements relative to facility sanitation, minimum standards for clinical
496expertise, staff licensing, certification and training, use of psychotropic medications and non-
497pharmacological interventions and other requirements of care and treatment; provided, however,
498that regulations for intermediate care facilities for persons with an intellectual disability shall
499include minimum requirements for social services, psychological services and other services
500appropriate for the care of persons with an intellectual disability and shall limit the size of such
501facilities to not more than 15 beds; provided further, that in promulgating rules or regulations for
502long-term care facilities, the department shall consider the ability of long-term care facilities to
503provide services under rates set pursuant to section 13C of chapter 118E; and provided further,
504that no such rule or regulation shall apply to a long-term care facility licensed at the time of
505promulgation of such rule or regulation, or a long-term care facility being constructed at the time
506of such promulgation under plans approved by the department, unless such rule or regulation has
507a direct and material relation to patient diet, cleanliness, nursing care or health, or to habilitative
508services and active treatment for persons with an intellectual disability or persons with related
509conditions.
510 (2) The department may authorize specialized care units serving persons requiring
511treatment for infectious diseases, isolation, strokes, degenerative neurological conditions,
512traumatic brain injuries, in-house dialysis treatments, behavioral health treatments, substance use
513disorder treatments, bariatric patient care and conditions requiring 24-hour or 1-on-1 patient
514supervision. The department may promulgate rules and regulations to regulate the conduct of any
515such specialized care units. 25 of 51
516 (b)(1) The department or its agents and the board of health or its agents of the city or
517town wherein any portion of such long-term care facility is located may visit and inspect such
518institution at any time; provided, however, that a board of health or its agents conducting an
519inspection of a long-term care facility located within its city or town shall notify the department
520of the results of any inspection conducted pursuant to this paragraph.
521 (2) Any person inspecting pursuant to paragraph (1) shall record in writing every
522violation of the applicable rules and regulations of the department that they discover during the
523course of their inspection. Every record of inspection shall be treated as a public record except to
524such extent the record or a portion of the record is expressly exempt from such treatment
525pursuant to clause Twenty-sixth of section 7 of chapter 4. A record of inspection containing
526violations shall be made public by the department when a written plan of correction is submitted.
527If a written plan of correction is not submitted within the allowable time, said violations shall be
528made public at the expiration of the allowable time. Inspections hereunder shall be unannounced
529and made at such intervals as the department shall specify in its rules and regulations; provided,
530that, each long-term care facility shall be subject to at least 1 periodic, resident-centered
531inspection every 9 to 15 months, pursuant to subsection (b) of section 71. A visit made to a
532facility for the purpose of providing consultation shall not be considered an inspection.
533 (c) The superior court shall have jurisdiction pursuant to chapter 30A to enforce the rules
534and regulations promulgated pursuant to this section.
535 (d)(1) The department shall promulgate regulations to govern the conduct of such homes
536and to regulate construction and physical plant standards for small house nursing homes; 26 of 51
537provided, however, that such regulations shall consider environmental standards and
538sustainability.
539 (2) Newly constructed small house nursing homes shall house not more than 14
540individuals per unit, in resident rooms that accommodate not more than 1 resident per room;
541provided, however, that if a resident requests to share a room with another resident to
542accommodate a spouse, partner, family member or friend, such resident room shall have
543sufficient space and equipment, as established by the department, for 2 residents; provided
544further, that determinations to grant such requests shall be determined based on space and
545availability of rooms at the applicable home. All resident rooms shall contain a full private and
546accessible bathroom.
547 (3) The department may promulgate additional regulations for small house nursing homes
548to establish a staffing model that: (i) allows for a universal worker approach to resident care that
549is organized to support and empower all staff to respond to the needs and desires of residents,
550including, but not limited to, cooking and meal preparation, without exceeding the lawful scope
551of practice of said employee; and (ii) provides for consistent staff in each small house nursing
552home.
553 (4) All regulations promulgated pursuant to this subsection shall ensure the convalescent
554or nursing home meets the requirements to participate in the Medicare and Medicaid programs.
555 SECTION 13 Said chapter 111 is hereby further amended by striking out section 72E, as
556appearing in the 2022 Official Edition, and inserting in place thereof the following section:-
557 Section 72E. (a) The department shall, after every inspection by its agent under section
55872, provide the licensee of the inspected long-term care facility notice in writing of every 27 of 51
559violation of the applicable statutes, rules and regulations found during said inspection. With
560respect to the date by which the licensee shall remedy or correct each violation, the department
561in such notice shall specify a reasonable time, not more than 60 days after receipt, by which time
562the licensee shall remedy or correct each violation cited or, in the case of any violation which in
563the opinion of the department is not reasonably capable of correction within 60 days, the
564department shall require only that the licensee submit a written plan for the timely correction of
565the violation in a reasonable manner. The department may modify any nonconforming plan upon
566notice, in writing, to the licensee.
567 (b) Failure to remedy or correct a cited violation by the correct by date shall be cause to
568pursue or impose the remedies or sanctions available to the department pursuant to this chapter,
569unless the licensee demonstrates to the satisfaction of the department or a court, where
570applicable, that such failure was not due to any neglect of its duty and occurred despite an
571attempt in good faith to make correction by the correct by date. An aggrieved licensee may
572pursue the remedies available to it pursuant to chapter 30A.
573 (c) If the department determines the licensee failed to maintain substantial or sustained
574compliance with applicable state and federal laws, rules and regulations, in addition to imposing
575any of the other remedies or sanctions available to it, the department may require the licensee to
576engage, at the licensee’s own expense, a temporary manager to assist the licensee with bringing
577the facility into substantial compliance and with sustaining such compliance. Such temporary
578manager shall be subject to the department’s approval. Any such engagement of a temporary
579manager shall be for a period of not less than 3 months and shall be pursuant to a written
580agreement between the licensee and the management company providing the temporary
581manager. A copy of said agreement shall be provided by the licensee to the department promptly 28 of 51
582after execution. Any payment terms included in the agreement shall be confidential and exempt
583from disclosure pursuant to clause Twenty-sixth of section 7 of chapter 4 and chapter 66.
584 (d) Nothing in this section shall be construed to prohibit the department from enforcing a
585statute, rule or regulation, administratively or in court, without first affording formal opportunity
586to make correction pursuant to this section, where, in the opinion of the department, the violation
587of such statute, rule or regulation jeopardizes the health or safety of residents or the public or
588seriously limits the capacity of a licensee to provide adequate care, or where the violation of such
589statute, rule or regulation is the second such violation occurring during a period of 12 full
590months.
591 SECTION 14. Section 72K of said chapter 111, as so appearing, is hereby amended by
592striking out subsection (b) and inserting in place thereof the following 2 subsections:-
593 (b) The attorney general may file a civil action against a person who: (i) commits abuse,
594mistreatment or neglect of a patient or resident; (ii) misappropriates patient or resident property;
595or (iii) wantonly or recklessly permits or causes another to commit abuse, mistreatment or
596neglect of a patient or resident or misappropriate patient or resident property. The civil penalty
597for such abuse, mistreatment, neglect or misappropriation shall not exceed $25,000 if no bodily
598injury results; $50,000 if bodily injury results; $100,000 if sexual assault or serious bodily injury
599results; and $250,000 if death results. Section 60B of chapter 231 shall not apply to an action
600brought by the attorney general pursuant to this section. Nothing in this section shall preclude the
601filing of any action brought by the attorney general or a private party pursuant to chapter 93A or
602any action by the department pursuant to this chapter. 29 of 51
603 (c) Notwithstanding section 5 of chapter 260, the attorney general may file a civil action
604within 4 years next after an offense is committed.
605 SECTION 15. Said chapter 111 is hereby further amended by inserting after section
60672BB the following 4 sections:-
607 Section 72CC. (a) The department shall require long-term care facilities to develop an
608outbreak response plan which shall be customized to each long-term care facility and shall
609review such plan to ensure compliance with the requirements under this section. Each long-term
610care facility’s plan shall include, but not be limited to: (i) a protocol for isolating and cohorting
611infected and at-risk patients in the event of an outbreak of a contagious disease until the cessation
612of the outbreak; (ii) clear policies for the notification of residents, residents’ families, visitors and
613staff in the event of an outbreak of a contagious disease at a long-term care facility; (iii)
614information on the availability of laboratory testing, protocols for screening visitors and staff for
615the presence of a communicable disease, protocols to prohibit infected staff from appearing for
616work at the long-term care facility and processes for implementing evidence-based outbreak
617response measures; (iv) policies to conduct routine monitoring of residents and staff to quickly
618identify signs of a communicable disease that could develop into an outbreak; (v) policies for
619reporting outbreaks to public health officials, including the municipality in which the facility is
620located, in accordance with applicable laws and regulations; and (vi) policies to meet staffing,
621training and long-term care facility demands during an infectious disease outbreak and to
622successfully implement the outbreak response plan.
623 (b) A long-term care facility shall review the outbreak response plan it submitted to the
624department pursuant to subsection (a) on an annual basis and if it makes any material changes to 30 of 51
625such plan, the facility shall submit to the department an updated outbreak response plan within
62630 days of making such change. The department shall, upon receiving an updated outbreak
627response plan, verify that the plan is in compliance with the requirements of subsection (a).
628 (c) The department shall promulgate regulations necessary to implement this section.
629 Section 72DD. (a) The division of health care facility licensure and certification within
630the department of public health shall establish and implement a process and program for
631providing training and education to staff of long-term care facilities licensed by the department
632pursuant to section 71. The training and education program may include, but not be limited to: (i)
633infection prevention and control; (ii) development, implementation, adherence to and review of
634comprehensive resident care plans; (iii) falls prevention; (iv) procedures to ensure timely
635notification of changes in a resident’s condition to the resident’s primary care physician; (v)
636prevention of abuse and neglect; (vi) development and implementation of a program to ensure
637staff safety; and (vii) review of the inspection process under section 72.
638 (b) The training and education program shall be interactive and shall include, but not be
639limited to: (i) an annual training for long-term care facility supervisory and leadership staff on
640the licensure and certification process, including, but not limited to, the department’s
641interpretation of relevant general laws and relevant changes or additions to applicable rules,
642regulations, procedures and policies concerning the licensure and certification process for long-
643term care facilities; and (ii) a biannual training of staff of long-term care facilities on the most
644frequently cited deficiencies, identified deficiency trends, both state and federal, and best
645practices to ensure resident quality of care. 31 of 51
646 Section 72EE. (a) The department shall promulgate regulations to encourage and enable
647residents of a long-term care facility to engage in in-person, face-to-face, verbal or auditory-
648based contact, communications and religious and recreational activities with others to the extent
649that in-person contact, communication or activities are not prohibited, restricted or limited by
650federal or state law, rule or regulation. Said regulations shall include specific protocols and
651procedures to provide for residents of the facility who have disabilities that impede their ability
652to communicate, including, but not limited to, residents who are blind, deaf, have Alzheimer’s
653disease or other dementias and developmental disabilities.
654 (b) The department may distribute federal civil monetary penalty funds, subject to
655approval by the federal Centers for Medicare and Medicaid Services, and any other available
656federal and state funds, upon request, to facilities for communicative technologies and
657accessories pursuant to this section.
658 Section 72FF. (a) As used in this section the following words shall have the following
659meanings unless the context requires otherwise:
660 "Gender expression", the manner in which a person represents or expresses gender to
661others, often through behavior, clothing, hairstyles, activities, voice or mannerisms.
662 "Gender identity" or “Gender”, a person’s gender identity, appearance or behavior,
663whether or not that gender identity, appearance or behavior is different from that traditionally
664associated with the person’s physiology or birth sex; provided, however, that gender identity
665may be demonstrated through medical history, care or treatment of the gender identity, consistent
666and uniform assertion of the gender identity or any other evidence that the gender identity is 32 of 51
667sincerely held as part of a person’s core identity; and provided further, that gender identity shall
668not be asserted for any improper purpose.
669 "Gender-nonconforming", gender expression does not conform to stereotypical
670expectations of such gender.
671 "Gender transition", a process in which a person begins to live according to that person's
672gender identity, rather than the sex the person was assigned at birth, which may include changing
673one's clothing, appearance, name or identification documents or undergoing medical treatments.
674 “HIV”, human immunodeficiency virus.
675 "Intersex", a person whose sexual or reproductive anatomy or chromosomal pattern is not
676consistent with typical definitions of male or female.
677 "LGBTQI", lesbian, gay, bisexual, transgender, questioning, queer and intersex.
678 "Long-term care facility", a charitable home for the aged, convalescent or nursing home,
679skilled nursing facility, intermediate care facility for persons with an intellectual disability or rest
680home.
681 "Long-term care facility staff", all individuals employed by, or contracted directly with, a
682long-term care facility.
683 "Non-binary" describes a person whose gender identity falls outside of the traditional
684gender binary structure of man and woman.
685 "Resident", a resident or patient of a long-term care facility. 33 of 51
686 "Queer", a person whose gender expression, gender identity or sexual orientation does
687not conform to dominant expectations or standards.
688 "Questioning", a person who is exploring or unsure about their own sexual orientation or
689gender identity or expression.
690 "Sexual orientation", a person's romantic or sexual attraction to other people.
691 "Transgender", a person whose gender identity or gender expression differs from the birth
692sex of that person.
693 (b) Except as provided in subsection (c), long-term care facilities and long-term care
694facility staff shall not take any of the following actions based in whole or in part on a person's
695actual or perceived sexual orientation, gender identity, gender expression, intersex status or HIV
696status: (i) denying admission to a long-term care facility, transferring or refusing to transfer a
697resident within a facility or to another facility or discharging or evicting a resident from a
698facility; (ii) denying a request by residents to share a room; (iii) where rooms are assigned by
699gender, assigning, reassigning or refusing to assign a room to a transgender resident other than in
700accordance with the transgender resident's gender identity, unless at the transgender resident's
701request, and assigning, reassigning or refusing to assign a room to a non-binary resident other
702than in accordance with the non-binary resident’s preference; (iv) prohibiting a resident from
703using or harassing a resident for using or seeking to use, a restroom available to other persons of
704the same gender identity, regardless of whether the resident is making a gender transition, has
705taken or is taking hormones, has undergone gender affirmation surgery or presents as gender-
706nonconforming; provided, however, that for the purposes of this clause, harassment shall include,
707but not be limited to, requiring a resident to show identity documents to gain entrance to a 34 of 51
708restroom; (v) repeatedly and intentionally failing to use a resident's chosen name or pronouns
709after being informed of the chosen name or pronouns, in a manner that constitutes discrimination
710or harassment in violation of any applicable federal, state or local law; (vi) denying a resident the
711right to wear or be dressed in clothing, accessories or cosmetics or to engage in grooming
712practices that are permitted to any other resident; (vii) restricting a resident's right to associate
713with other residents or with visitors, including the right to consensual sexual relations where
714sexual relations would not be restricted if the participants were heterosexual or married; (viii)
715denying or restricting medical or nonmedical care that is appropriate to a resident's organs and
716bodily needs or providing such care that unduly demeans the resident or causes avoidable
717discomfort or harm; or (ix) refusing or willfully failing to provide any service, care or reasonable
718accommodation to a resident or an applicant for services or care.
719 (c) The requirements of this section shall not apply to the extent that compliance with the
720requirement is incompatible with any professionally reasonable clinical judgment or inconsistent
721with 42 CFR § 483.15(c)(1), 42 CFR § 483.24 and 105 CMR 150.003.
722 (d) Each facility shall distribute a document containing the following notice alongside the
723informational document required by section 72AA:
724 "[Name of facility] does not discriminate and does not permit discrimination by any
725person, including persons employed by the facility, residents, family members and other visitors
726to the facility including, but not limited to, abuse or harassment, on the basis of actual or
727perceived sexual orientation, gender identity, gender expression, intersex status or HIV status or
728based on association with another individual on account of that individual's actual or perceived
729sexual orientation, gender identity, gender expression, intersex status or HIV status. You may 35 of 51
730file a complaint with the office of the long-term care ombudsman, [provide current contact
731information] if you believe you have experienced this kind of discrimination."
732 (e) Each long-term care facility shall ensure that resident records, including records
733generated at the time of admission, include the resident's gender and the name and pronouns by
734which the resident would like to be identified, as indicated by the resident.
735 (f) Unless expressly authorized by the resident or the resident's authorized representative,
736long-term facility staff not involved in providing direct care to a resident shall not be present
737during physical examination of, or the provision of personal care to, that resident if the resident
738is partially or fully unclothed.
739 (g) Transgender residents shall be provided access to such transition-related assessments,
740therapy and treatments as have been recommended by the resident's health care provider,
741including, but not limited to, transgender-related medical care, including hormone therapy and
742supportive counseling, subject to availability and third-party medical coverage.
743 (h) LGBTQI-related programming, such as an LGBTQI Pride Month event or a
744Transgender Day of Remembrance event, shall be allowed and treated equally to other cultural
745celebrations or commemorations.
746 (i) The department shall promulgate regulations relative to discipline and penalties for
747long-term care facilities that violate the requirements of this section or that employ a staff
748member who violates the requirements of this section, which shall include, but not be limited to,
749civil penalties and other administrative action. Nothing in this section shall be construed to limit
750the ability of any party to bring a civil, criminal or administrative action for conduct constituting
751a violation of any other provision of law. 36 of 51
752 (j) (1) A long-term care facility shall ensure that the long-term care facility staff receive
753training, on at least a biennial basis, concerning: (i) the care of LGBTQI older adults and older
754adults living with HIV; and (ii) the prevention of discrimination based on sexual orientation,
755gender identity or expression, intersex status and HIV status.
756 (2) The training required by this section shall include, but not be limited to: (i) the
757definition of the terms commonly associated with sexual orientation, gender identity and
758expression, intersex status and HIV status; (ii) best practices for communicating with or about
759LGBTQI older adults and older adults living with HIV and others who are LGBTQI or living
760with HIV, including the use of any name and pronouns by which residents may express the
761desire to be identified; (iii) a description of the health and social challenges historically
762experienced by LGBTQI older adults and older adults living with HIV and others who are
763LGBTQI or living with HIV, including discrimination when seeking or receiving care at long-
764term care facilities, and the demonstrated physical and mental health effects within the LGBTQI
765community associated with such discrimination; (iv) strategies to create a safe and affirming
766environment for LGBTQI seniors and residents living with HIV, including suggested changes to
767facility policies and procedures, forms, signage, communication between residents and their
768families, activities and staff training and in-services; and (v) an overview of the provisions of this
769section.
770 (3) The department shall select an entity that has demonstrated expertise in creating safe
771and affirming environments and identifying the legal, social and medical challenges faced by
772LGBTQI older adults and older adults living with HIV and others who are LGBTQI or living
773with HIV, who reside in long-term care facilities, to provide the training required by this section. 37 of 51
774 (4) Long-term care facility staff shall complete all training required by this section within
7751 year of their date of hire unless the new hire provides the long-term care facility with
776documentation demonstrating that they have completed equivalent training within the past 2
777years.
778 (5) Each long-term care facility shall retain records documenting the completion of the
779training required pursuant to this section by each administrator and staff member at the long-term
780care facility. Compliance records shall be made available, upon request, to the department, the
781executive office of health and human services and the office of the statewide long-term care
782ombudsman.
783 (6) Each long-term care facility shall assume the cost of providing the training required
784pursuant to this section.
785 (k) The commissioner and the secretary of health and human services shall adopt rules
786and regulations as may be necessary to implement this section.
787 SECTION 16. Said chapter 111 is hereby further amended by striking out section 73, as
788so appearing, and inserting in place thereof the following section:-
789 Section 73. (a) Whoever advertises, announces, establishes or maintains, or is otherwise
790engaged in any business with or is concerned in establishing or maintaining a long-term care
791facility without a license granted pursuant to section 71 or violates any provision of sections 71
792to 73, inclusive, shall for a first offense be punished by a fine of not more than $1,000, and for a
793subsequent offense by a fine of not more than $2,000 or by imprisonment for not more than 2
794years. 38 of 51
795 (b) Whoever violates any rule or regulation promulgated pursuant to sections 71, 72, 72C
796and 72FF shall be punished by a fine not to exceed $500, unless the department determines a
797higher amount is appropriate in accordance with 42 CFR 488.438. If any person violates any
798such rule or regulation by allowing a condition to exist which may be corrected or remedied, the
799department shall order such person, in writing, to correct or remedy such condition. If such
800person fails or refuses to comply with such order by the correct by date, each day after the
801correct by date during which such failure or refusal to comply continues shall constitute a
802separate offense. A failure to pay the fine imposed by this section shall be a violation of this
803subsection.
804 SECTION 17. Section 28 of chapter 118E of the General Laws, as so appearing, is
805hereby amended by adding the following paragraph:-
806 The division shall consider a transfer of assets by an individual age 65 or older or a
807transfer made for the sole benefit of an individual age 65 or older into a trust pursuant to 42
808U.S.C. 1396p(d)(4)(C), established for the sole benefit of said individual, to be a disposal of
809resources for fair market value, to the extent that such resources shall be available, under any
810circumstances, to be used by the trustee to provide goods and services to the individual, or to
811reimburse such costs, at fair market value.
812 SECTION 18. Section 31 of said chapter 118E, as so appearing, is hereby amended by
813inserting after subsection (b) the following subsection:-
814 (b½) This subsection shall apply to estates of individuals dying on or after August 1,
8152024. There shall be no adjustments or recovery of medical assistance correctly paid except for
816recovery from the estate of an individual who was: 39 of 51
817 (i) regardless of age, a resident in a nursing facility or other medical institution within the
818meaning of 42 U.S.C. 1396p(a)(1)(B)(i) when the individual received such assistance; provided,
819however, that recovery of such assistance shall be limited to assistance provided on or after
820March 22, 1991; or
821 (ii) 55 years of age or older when the individual received such assistance, where such
822assistance was for services provided on or after October 1, 1993, but only for medical assistance
823consisting of nursing facility services, home and community-based services and related hospital
824and prescription drug services for which estate recovery is mandated under 42 U.S.C.
8251396p(b)(1)(B)(i) or other federal law.
826 Any recovery may be made only after the death of the surviving spouse, if any, and only
827at a time when the individual has no surviving child who is: (i) under the age of 21; or (ii) an
828individual who is blind or an individual with a disability.
829 SECTION 19. Said section 31 of said chapter 118E, as so appearing, is hereby further
830amended by adding the following subsection:-
831 (e) Notwithstanding subsection (b½), there shall be no adjustment or recovery of medical
832assistance correctly paid from the estate of an individual who was receiving such assistance
833under the CommonHealth program for adults with disabilities or for payment of personal care
834attendant services; provided, however, that the executive office shall seek federal authority, if
835required, to implement this subsection.
836 SECTION 20. Said chapter 118E is hereby further amended by adding the following 2
837sections:- 40 of 51
838 Section 83. To establish Medicaid rates for skilled nursing facilities licensed pursuant to
839section 71 of chapter 111, the division of medical assistance shall use as base year costs for rate
840determination purposes the reported costs of the calendar year not more than 2 years prior to the
841current rate year.
842 Section 84. (a) The division of medical assistance shall establish a skilled nursing facility
843rate add-on program for bariatric patient care and a rate add-on program for 1-on-1 staffing of at-
844risk residents requiring 24-hour monitoring and supervision for their safety and the safety of
845other residents and staff. The division of medical assistance shall identify at-risk resident
846populations to include in the rate add-on program for 1-on-1 staffing which may include, but not
847be limited to, residents that: (i) have demonstrated suicidal ideation; (ii) have demonstrated
848aggressive behavior toward other residents or staff; (iii) have demonstrated exit-seeking
849behavior; or (vi) are registered sex offenders. The rate add-ons for said program shall be
850sufficient to defray the cost of employing the required staff to conduct the 24-hour monitoring
851and supervision of the at-risk residents.
852 (b) When determining eligibility for add-on or enhanced rates for specialized care units,
853as authorized by paragraph (2) of section 72 of chapter 111, the division shall consider whether
854the facility has complied with standards, as determined and certified by the department of public
855health, which may include, but not be limited to, clinical expertise, staff licensing, staff training,
856staff certification, unit accreditation, staff ratios, use of psychotropic medications and non-
857pharmacological interventions, therapeutic and psychosocial programming to develop and
858maintain daily living skills and encourage socialization, use of behavior plans and other
859requirements of care and treatment as determined by the department. 41 of 51
860 (c) The division of medical assistance may develop an add-on rate of payment for skilled
861nursing facilities that develop small house nursing homes and meet criteria established by the
862executive office.
863 SECTION 21. Subsection (c) of section 25 of chapter 176O of the General Laws, as
864appearing in the 2022 Official Edition, is hereby amended by inserting after the second sentence
865the following sentence:- The division shall develop and implement a uniform prior authorization
866form for the admission of patients from an acute care hospital to a post-acute care facility or
867transitioned to a home health agency certified by the federal Centers for Medicare and Medicaid
868Services for covered post-acute care services.
869 SECTION 22. Section 23 of chapter 20 of the acts of 2021 is hereby repealed.
870 SECTION 23. (a) For the purposes of this section, the following words shall have the
871following meanings unless the context clearly requires otherwise:
872 “Enrollee”, shall have the same meaning as in section 8A of chapter 118E of the General
873Laws; provided, however, that “enrollee” shall include “insured” as defined in section 1 of
874chapter 176O of the General Laws.
875 “Payer”, the group insurance commission under chapter 32A of the General Laws, the
876division of medical assistance under chapter 118E of the General Laws, insurance companies
877organized under chapter 175 of the General Laws, non-profit hospital service corporations
878organized under chapter 176A of the General Laws, medical service corporations organized
879under chapter 176B of the General Laws, health maintenance organizations organized under
880chapter 176G of the General Laws and preferred provider organizations organized under chapter 42 of 51
881176I of the General Laws, or a utilization review organization acting under contract with the
882aforementioned entities.
883 “Post-acute care facility or agency”, (i) a facility licensed under chapter 111 to provide
884inpatient post-acute care services, including, but not limited to, skilled nursing facilities, long-
885term care hospitals, intermediate care facilities or rehabilitation facilities; or (ii) a home health
886agency certified by the federal Centers for Medicare and Medicaid Services.
887 (b) Notwithstanding any general or special law to the contrary, all payers shall approve or
888deny a request for prior authorization for admission to a post-acute care facility or transition to a
889post-acute care agency for any inpatient of an acute care hospital requiring covered post-acute
890care services by the next business day following receipt by the payer of all necessary information
891to establish medical necessity of the requested service; provided, however, that no admission
892may occur until the pre-admission screening and resident review pursuant to 42 CFR 483 is
893complete. If the calendar day immediately following the date of submission of the completed
894request is not a payer’s business day, and the payer cannot otherwise make a determination by
895the next calendar day, and the receiving post-acute care facility or agency is both open to new
896admissions and has indicated that said facility or agency will accept the enrollee, then prior
897authorization shall be waived; provided, however, that the payer shall provide coverage and may
898begin its concurrent review of the admission on the next business day; provided further, that the
899payer shall not retrospectively deny coverage for services to an enrollee admitted to a post-acute
900care facility or transitioned to a post-acute care agency after a waiver of prior authorization
901pursuant to this section unless the claim was a result of fraud, waste or abuse. An adverse
902determination of a prior authorization request pursuant to this section may be appealed by an
903enrollee or the enrollee’s provider and such appeal, in the case of an enrollee of a commercial 43 of 51
904payer, shall be subject to the expedited grievance process pursuant to clause (iv) of subsection
905(b) of section 13 of chapter 176O of the General Laws. An enrollee of an insurance program of
906the division of medical assistance or the enrollee’s provider may request an expedited appeal of
907an adverse determination of a prior authorization request. Nothing in this section shall be
908construed to require a payer to reimburse for services that are not a covered benefit.
909 (c) In the case of non-emergency transportation between an acute care hospital and a
910post-acute care facility, payers shall approve or deny a request for prior authorization according
911to the same process provided pursuant to subsection (b); provided, however, that once
912authorization has been granted, said authorization shall be valid for not less than 7 calendar days
913following approval.
914 (d) The division of insurance and the division of medical assistance shall issue sub-
915regulatory guidance to effectuate the purposes of this subsection.
916 SECTION 24. For the purposes of this section, “payer” shall mean the group insurance
917commission under chapter 32A of the General Laws, the division of medical assistance under
918chapter 118E of the General Laws, insurance companies organized under chapter 175 of the
919General Laws, non-profit hospital service corporations organized under chapter 176A of the
920General Laws, medical service corporations organized under chapter 176B of the General Laws,
921health maintenance organizations organized under chapter 176G of the General Laws and
922preferred provider organizations organized under chapter 176I of the General Laws, or a
923utilization review organization acting under contract with the aforementioned entities.
924 Notwithstanding any general or special law to the contrary, not later than 90 days after
925the effective date of this act, the division of insurance shall develop the uniform prior 44 of 51
926authorization form for admission to a post-acute care facility or transition to a home health
927agency for any inpatient of an acute care hospital requiring covered post-acute care services
928pursuant to section 25 of chapter 176O of the General Laws. Said uniform prior authorization
929form shall state that no admission to a nursing facility may occur until the preadmission
930screening and resident review required under 42 CFR 483 is complete. The division of insurance
931shall develop said uniform prior authorization form in consultation with the division of medical
932assistance. The division of medical assistance, or any entity acting for the division of medical
933assistance under contract, shall accept the uniform prior authorization form as sufficient to
934request prior authorization for the requested service. All acute care hospitals shall use the
935uniform prior authorization form to request prior authorization for coverage of post-acute care
936services at a post-acute care facility or home health agency, and all payers or entities acting for a
937payer under contract shall accept such form as sufficient to request prior authorization for the
938requested service not later than 30 days after the form has been developed by the division of
939insurance.
940 SECTION 25. (a) For the purposes of this section, the terms “licensee” and “management
941company” shall have the meanings as defined in section 71 of chapter 111 of the General Laws.
942 (b) Pursuant to section 71 of chapter 111 of the General Laws, a licensee who has entered
943into a contract with a management company prior to the effective date of this act shall provide
944the department of public health with the necessary documentation and materials for a
945determination by the department of the responsibility and suitability of the management
946company, as described in subsection (g) of said section 71 of said chapter 111, prior to any
947issuance of a renewed license; provided, however, that the department shall give a licensee
948reasonable time to provide the department with the necessary documents and materials if the 45 of 51
949licensee’s renewal date is within 90 days of the effective date of this act. A licensee’s failure to
950comply with this section shall subject the licensee to the penalties established in section 73 of
951said chapter 111.
952 SECTION 26. (a) There shall be a special commission to study oversight of continuing
953care retirement communities to protect the consumer and financial rights of residents.
954 (b) The commission shall consist of: the chairs of the joint committee on elder affairs,
955who shall serve as co-chairs; the attorney general or a designee; the secretary of elder affairs or a
956designee; the commissioner of public health or a designee; 3 persons to be appointed by the
957governor, 1 of whom shall be a certified public accountant or an actuary and 2 of whom shall be
958residents at a continuing care retirement community; a representative of the Massachusetts
959chapter of National Academy of Elder Law Attorneys; a representative of LeadingAge
960Massachusetts, Inc.; a representative of Massachusetts Assisted Living Association, Inc.; a
961representative of AARP Massachusetts; a representative of the Alzheimer’s Association; a
962representative of Massachusetts Advocates for Nursing Home Reform, Inc.; a representative of
963the Massachusetts Life Care Residents’ Association, Inc.; a representative of Massachusetts
964Senior Care Association, Inc.; and a representative of Local 1199 SEIU. The commission shall
965meet not less than 6 times and shall hold not less than 1 public hearing.
966 (c) The commission shall study and report on: (i) continuing care retirement
967communities, their care contracts and their impact on consumers; (ii) the financial viability of
968such communities; (iii) the payment and return of entrance fees at such communities; (iv)
969statutory and regulatory oversight of such communities, including any activities by state agencies
970to enforce regulatory requirements; (v) advertising practices communicated to potential residents 46 of 51
971and families about such communities; and (vi) regulatory procedures for the closure or change of
972ownership of such communities.
973 (d) The commission shall submit a report with recommendations, including legislation or
974regulations necessary to carry out such recommendations, to the clerks of the house of
975representatives and the senate, the joint committee on elder affairs and the senate and house
976committees on ways and means not later than August 1, 2025.
977 SECTION 27. (a) The department of public health shall study and report on the need and
978feasibility of qualified professional guardians to give informed medical consent for indigent
979persons and whether such guardians would reduce hospital discharge issues and increase access
980to long-term care and preventive care; provided, however, that the report shall include, but not be
981limited to: (i) the need for qualified professional guardians to assist indigent persons with
982accessing appropriate medical care, including preventive care; (ii) data on the current number of
983Rogers guardians and similar guardians and the financial impact of reimbursing such guardians;
984(iii) the fiscal impact of establishing MassHealth fee-for-service guardians; and (iv) other
985recommendations deemed necessary by the department.
986 (b) Not later than July 31, 2025, the department shall submit its report, including any
987proposed legislation necessary to carry out its recommendations, to the clerks of the senate and
988house of representatives, the senate and house committees on ways and means and the joint
989committee on elder affairs.
990 SECTION 28. (a) There shall be a taskforce to review the viability and sustainability of
991long-term care facilities in the commonwealth. 47 of 51
992 (b) The taskforce shall consist of: the secretary of health and human services, who shall
993serve as chair; the secretary of elder affairs or a designee; commissioner of public health or a
994designee; 4 persons to be appointed by the governor, 1 of whom shall represent long-term care
995facilities, 1 of whom shall operate an assisted living residence, 1 of whom shall represent
996residents of long-term care facilities in the commonwealth and 1 of whom shall be health care
997economist; a representative of LeadingAge Massachusetts, Inc., a representative of 1199SEIU; a
998representative of Massachusetts Association of Residential Care Homes, Inc.; a representative of
999the Massachusetts Senior Action Council, Inc; and a representative of Massachusetts Senior Care
1000Association.
1001 In making appointments, the governor shall, to the maximum extent feasible, ensure that
1002the task force represents a broad distribution of diverse perspectives and geographic regions.
1003 (c) In making recommendations, the task force shall consider issues including, but not
1004limited to: (i) the demand for long-term care facilities over the next 5 and 10 years and the ability
1005to meet that demand in a cost-effective manner; (ii) the geographic accessibility of such
1006facilities; (iii) staffing challenges and workforce initiatives to support such facilities including
1007but not limited to childcare; (iv) the utilization of pharmacists and other health care providers in
1008long-term care; (v) any policy reforms to strengthen long-term care in the commonwealth
1009including but not limited to, maintaining quality of care; (vi) the adequacy of payor rates; (vii)
1010costs and impacts of financing for facility construction and maintenance, including but not
1011limited to, private equity and real estate investment trusts; and (viii) costs associated with
1012transportation options to and from facilities for individuals. 48 of 51
1013 (d) The task force shall submit its report, recommendations and any proposed legislation
1014necessary to carry out its recommendations to the clerks of the senate and house of
1015representatives, the joint committee on health care financing, the joint committee on elder affairs
1016and the senate and house committees on ways and means not later than July 31, 2025.
1017 SECTION 29. (a) Notwithstanding any general or special law to the contrary, there shall
1018be an assisted living residences commission to study and recommend policies to ensure assisted
1019living residences adequately meet the health and safety needs of residents. The areas examined
1020by the commission shall include, but not be limited to: (i) the current statutory and regulatory
1021oversight of assisted living residences; (ii) assisted living best practices in other states; (iii) the
1022impacts of licensing or certifying such residences; (iv) advertising practices of assisted living
1023residences to potential residents and their families; (v) regulatory procedures for opening, closing
1024or changing ownership of a residence, including determination of need processes and clustering
1025of facilities; (vi) trends in incident reports made to the executive office of elder affairs and the
1026long term care ombudsman’s office and resolutions of such incidents; (vii) methods to provide
1027transparency of information for potential consumers and family members researching and
1028comparing residences; (viii) safety standards; (ix) existing consumer protections for residents in
1029statutes and regulations; and (x) basic health services in residences.
1030 (b) The commission shall consist of: the secretary of elder affairs, who shall serve as
1031chair; the commissioner of public health or a designee; the assistant secretary of MassHealth or a
1032designee; the long term care ombudsman or a designee; the chairs of the joint committee on elder
1033affairs; 1 member to be appointed by the senate president; 1 member to be appointed by the
1034speaker of the house; 1 member to be appointed by the minority leader of the senate; 1 member
1035to be appointed by the minority leader of the house of representatives; 3 members to be 49 of 51
1036appointed by the governor, 2 of whom shall be residents or family members of residents at an
1037assisted living residence; a representative of the Massachusetts chapter of the National Academy
1038of Elder Law Attorneys; a representative of LeadingAge Massachusetts, Inc.; a representative of
1039the Massachusetts Assisted Living Association, Inc.; a representative of AARP Massachusetts; a
1040representative of the New England chapter of the Gerontological Advanced Practice Nurses
1041Association; a representative of the Massachusetts chapter of the Alzheimer’s Association; a
1042representative of MassPACE, Inc.; and a representative of Greater Boston Legal Services, Inc..
1043The commission shall meet not less than 5 times and shall hold at least 1 public hearing.
1044 (c) The commission shall file its report and recommendations, including any proposed
1045legislation necessary to carry out its recommendations, to the clerks of the senate and house of
1046representatives, the joint committee on elder affairs and the house and senate committees on
1047ways and means not later than August 1, 2025.
1048 SECTION 30. Notwithstanding any general or special law to the contrary, the executive
1049office shall report to the house and senate committees on ways and means, not later than 90 days
1050after the effective date of this act, on the availability of a waiver and, if applicable, the estimated
1051net state cost of a waiver that would allow individuals qualifying for Medicaid and at risk of
1052entering a nursing home to reside in a certified assisted living residence. The executive office of
1053health and human services may request a waiver from the federal Centers for Medicare and
1054Medicaid Services to allow individuals qualifying for Medicaid and at risk of entering a nursing
1055home to reside in a certified assisted living residence. 50 of 51
1056 SECTION 31. Pursuant to section 72CC of chapter 111 of the General Laws, each long-
1057term care facility shall submit its outbreak response plan to the department of public health not
1058later than 180 days after the effective date of this act.
1059 SECTION 32. (a) Each long-term care facility shall designate 2 employees, including 1
1060employee representing management at the facility and 1 employee representing direct care staff
1061at the facility, to receive in-person training required by section 72FF of chapter 111 of the
1062General Laws within 6 months of the effective date of this act. The designated employees shall
1063serve as points of contact for the long-term care facility regarding compliance with the
1064provisions of this act and shall develop a general training plan for the facility. In the event a
1065designated employee ceases to be employed by the facility, the facility shall designate another
1066employee who is representative of the employee group represented by the former designee, who
1067shall complete the in-person training required pursuant to this section, to serve as a point of
1068contact for the facility regarding compliance with the provisions of this act and have joint
1069responsibility for the facility's training plan.
1070 (b) All long-term care facility staff employed by a long-term care facility on the effective
1071date of this act, other than an employee designated pursuant to subsection (a), shall complete the
1072training required by 72FF of chapter 111 of the General Laws within 1 year of the effective date
1073of this act.
1074 SECTION 33. Sections 15 and 32 shall take effect 180 days after the effective date of this
1075act.
1076 SECTION 34. Section 83 of chapter 118E of the General Laws, inserted by section 20,
1077shall take effect on October 1, 2025. 51 of 51
1078 SECTION 35. Section 23 is hereby repealed.
1079 SECTION 36. Section 35 shall take effect 2 years after the effective date of this act.