Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S379 Compare Versions

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

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 1244 FILED ON: 1/19/2023
3	3	SENATE . . . . . . . . . . . . . . No. 379
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Patricia D. Jehlen
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to improve quality and oversight of long-term care.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Patricia D. JehlenSecond MiddlesexThomas M. Stanley9th Middlesex1/20/2023Joanne M. ComerfordHampshire, Franklin and Worcester1/26/2023Jack Patrick Lewis7th Middlesex1/30/2023Susannah M. Whipps2nd Franklin2/2/2023James K. Hawkins2nd Bristol2/8/2023Vanna Howard17th Middlesex2/8/2023David Paul Linsky5th Middlesex2/14/2023Rodney M. Elliott16th Middlesex2/14/2023Michael O. MooreSecond Worcester2/15/2023James C. Arena-DeRosa8th Middlesex2/16/2023Michael D. BradySecond Plymouth and Norfolk2/23/2023James B. EldridgeMiddlesex and Worcester2/23/2023Anne M. GobiWorcester and Hampshire2/23/2023David Henry Argosky LeBoeuf17th Worcester2/23/2023Mark C. MontignySecond Bristol and Plymouth2/28/2023 1 of 25
16	16	SENATE DOCKET, NO. 1244 FILED ON: 1/19/2023
17	17	SENATE . . . . . . . . . . . . . . No. 379
18	18	By Ms. Jehlen, a petition (accompanied by bill, Senate, No. 379) of Patricia D. Jehlen, Thomas
19	19	M. Stanley, Joanne M. Comerford, Jack Patrick Lewis and other members of the General Court
20	20	for legislation to improve quality and oversight of long-term care. Elder Affairs.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 4780 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act to improve quality and oversight of long-term care.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Chapter 23 of the General Laws, as appearing in the 2020 Official Edition,
32	32	2is hereby amended by inserting after section 9U the following 2 sections:-
33	33	3 Section 9V. The executive office of labor and workforce development, through the
34	34	4Commonwealth Corporation, shall establish a grant program for nursing facility supervisory and
35	35	5leadership training. The program shall include, but not be limited to, covering the cost of nursing
36	36	6facility worker participation in evidence-based supervisory training for the express purpose of
37	37	7improving staff satisfaction, retaining staff and reducing turnover.
38	38	8 Section 9W. The Commonwealth Corporation shall, subject to appropriation, establish an
39	39	9extended care career ladder grant program, consistent with section 410 of chapter 159 of the acts 2 of 25
40	40	10of 2000. The Commonwealth Corporation shall make grants available for certified nurses' aides,
41	41	11home health aides, homemakers and other entry-level workers in long-term care. The grants may
42	42	12include English language training, training in other languages and adult basic education
43	43	13programs to improve quality of care and improve direct care worker access to and participation
44	44	14in career ladder training. The length of such grants shall not exceed a period of 3 years. The
45	45	15Commonwealth Corporation shall submit quarterly reports to the house and senate committees
46	46	16on ways and means on said grant program including, but not limited to, the number of grants
47	47	17awarded, the amount of each grant, a description of the career ladder programs, changes in care-
48	48	18giving and workplace practices that have occurred and their impact on quality of care and worker
49	49	19retention and the certificates, degrees or professional status attained by each participating
50	50	20employee. The administrative and program-management costs for the implementation of said
51	51	21grant program shall not exceed 4 per cent of the amount of the grant program. Each grant may
52	52	22include funding for technical assistance and evaluation.
53	53	23 SECTION 2. Chapter 111 of the General Laws, as so appearing, is hereby amended by
54	54	24inserting after section 4O the following section:-
55	55	25 Section 4P. The department shall, subject to appropriation, establish a tuition
56	56	26reimbursement program for certified nursing assistant training. The department shall reimburse
57	57	27for the costs of certified nursing assistant training or competency, provided that: (i) the costs
58	58	28have been incurred for an approved certified nursing assistant training program; (ii) the costs
59	59	29have been actually paid by the certified nursing assistant from their own personal funds; and (iii)
60	60	30individuals have begun employment as a certified nursing assistant in a licensed nursing facility
61	61	31within 12 months of completing the training program, including passing the competency testing. 3 of 25
62	62	32 SECTION 3. Chapter 111 of the General Laws is hereby further amended by striking out
63	63	33section 71 and inserting in place thereof the following section:-
64	64	34 Section 71. (a) For purposes of this section and sections 71A½ to 73, inclusive, the
65	65	35following terms shall have the following meanings unless the context or subject matter clearly
66	66	36requires otherwise:
67	67	37 “Applicant”, any person who applies to the department for a license to establish or
68	68	38maintain and operate a long-term care facility.
69	69	39 “Charitable home for the aged”, any institution, however named, conducted for charitable
70	70	40purposes and maintained for the purpose of providing a retirement home for elderly persons and
71	71	41which may provide nursing care within the home for its residents.
72	72	42 “Convalescent or nursing home or skilled nursing facility”, any institution, however
73	73	43named, whether conducted for charity or profit, which is advertised, announced or maintained for
74	74	44the express or implied purpose of caring for four or more persons admitted thereto for the
75	75	45purpose of nursing or convalescent care.
76	76	46 “Infirmary maintained in a town”, an infirmary, which until now the department of
77	77	47transitional assistance has been directed to visit by section 7 of chapter 121.
78	78	48 “Intermediate care facility for persons with an intellectual disability”, any institution,
79	79	49however named, whether conducted for charity or profit, which: (i) is advertised, announced or
80	80	50maintained for the purpose of providing rehabilitative services and active treatment to persons
81	81	51with an intellectual disability or persons with related conditions, as defined in regulations
82	82	52promulgated pursuant to Title XIX of the federal Social Security Act (P.L. 89–97); (ii) is not 4 of 25
83	83	53both owned and operated by a state agency; and (iii) makes application to the department for a
84	84	54license for the purpose of participating in the federal program established by said Title XIX.
85	85	55 “License”, an initial or renewal license to establish or maintain and operate a long-term
86	86	56care facility issued by the department.
87	87	57 “Licensee”, a person to whom a license to establish or maintain and operate a long-term
88	88	58care facility has been issued by the department.
89	89	59 “Long-term care facility”, a charitable home for the aged, convalescent or nursing home,
90	90	60skilled nursing facility, infirmary maintained in a town, intermediate care facility for persons
91	91	61with an intellectual disability or rest home.
92	92	62 “Owner”, any person with an ownership interest of 5 per cent or more, or with a
93	93	63controlling interest in an applicant, potential transferee or the real property on which a long-term
94	94	64care facility is located; provided, that the real property owner is related to the applicant or
95	95	65potential transferee as defined in Section 413.17(b) of Title 42 of the Code of Federal
96	96	66Regulations.
97	97	67 “Person”, an individual, trust, estate, partnership, association, company or corporation.
98	98	68 “Potential transferee”, a person who submits to the department a “notice of intent to
99	99	69acquire” the facility operations of a currently operating long-term care facility.
100	100	70 “Rest home”, any institution, however named, which is advertised, announced or
101	101	71maintained for the express or implied purpose of providing care incident to old age to four or
102	102	72more persons who are ambulatory and who need supervision. 5 of 25
103	103	73 “Transfer of facility operations”, a transfer of the operations of a currently operating
104	104	74long-term care facility from the current licensee of the long-term care facility to a potential
105	105	75transferee, pending licensure, pursuant to a written “transfer of operations” agreement.
106	106	76 (b) To each applicant it deems suitable and responsible to establish or maintain and
107	107	77operate a long-term care facility and which meets all other requirements for long-term care
108	108	78facility licensure, the department shall issue for a term of 2 years, and shall renew for like terms,
109	109	79a license, subject to the restrictions set forth in this section or revocation by it for cause;
110	110	80provided, however, that each long-term care facility shall be inspected at least once a year.
111	111	81 The department shall not issue license to establish or maintain an intermediate care
112	112	82facility for persons with an intellectual disability unless the department determines that there is a
113	113	83need for such facility at the designated location; provided, however, that in the case of a facility
114	114	84previously licensed as an intermediate care facility for persons with an intellectual disability in
115	115	85which there is a change in ownership, no such determination shall be required; and provided
116	116	86further, that in the case of a facility previously licensed as an intermediate care facility for
117	117	87persons with an intellectual disability in which there is a change in location, such determination
118	118	88shall be limited to consideration of the suitability of the new location.
119	119	89 In the case of the transfer of facility operations of a long-term care facility, a potential
120	120	90transferee shall submit a “notice of intent to acquire” to the department at least 90 days prior to
121	121	91the proposed transfer date. The notice of intent to acquire shall be on a form supplied by the
122	122	92department and shall be deemed complete upon submission of all information which the
123	123	93department requires on the notice of intent form and is reasonably necessary to carry out the
124	124	94purposes of this section. In the case of the transfer of facility operations, a potential transferee 6 of 25
125	125	95shall provide notice to the current staff of the facility, and shall provide notice of the potential
126	126	96transferee’s plans regarding retaining the facility workforce and recognizing any current
127	127	97collective bargaining agreements to the labor organizations that represents the facility’s
128	128	98workforce at the time the potential transferee submits a “notice of intent to acquire”.
129	129	99 No license shall be issued to an applicant or potential transferee unless the department
130	130	100makes a determination that the applicant or potential transferee is responsible and suitable for
131	131	101licensure.
132	132	102 For purposes of this section, the department’s determination of responsibility and
133	133	103suitability shall be limited to the following factors:
134	134	104 (i) the civil litigation history of the applicant or potential transferee, including litigation
135	135	105related to the operation of a long-term care facility, such as quality of care, safety of residents or
136	136	106staff, employment and labor issues, fraud, unfair or deceptive business practices and
137	137	107landlord/tenant issues; and the criminal history of the applicant or the potential transferee,
138	138	108including their respective owners, which may include pending or settled litigation or other court
139	139	109proceedings in the commonwealth and in other states including federal jurisdiction. Any
140	140	110information related to criminal or civil litigation obtained by the department pursuant to this
141	141	111section shall be confidential and exempt from disclosure under clause Twenty-sixth of section 7
142	142	112of chapter 4 and chapter 66;
143	143	113 (ii) the financial capacity of the applicant or potential transferee, including their
144	144	114respective owners, to establish or maintain and operate a long-term care facility, which may
145	145	115include any recorded liens and unpaid fees or taxes in the commonwealth and in other states; 7 of 25
146	146	116 (iii) the history of the applicant or potential transferee, including their respective owners,
147	147	117in providing long-term care in the commonwealth, measured by compliance with applicable
148	148	118statutes and regulations governing the operation of long-term care facilities; and
149	149	119 (iv) the history of the applicant or potential transferee, including their respective owners,
150	150	120in providing long-term care in states other than the commonwealth, if any, measured by
151	151	121compliance with the applicable statutes and regulations governing the operation of long-term
152	152	122care facilities in said states.
153	153	123 With respect to potential transferees, upon determination by the department that a
154	154	124potential transferee is responsible and suitable for licensure, the potential transferee may file an
155	155	125application for a license. In the case of a potential transfer of facility operations, the filing of an
156	156	126application for a license shall have the effect of a license until the department takes final action
157	157	127on such application.
158	158	128 If the department determines that an applicant or potential transferee is not suitable and
159	159	129responsible, the department’s determination shall take effect on the date of the department’s
160	160	130notice. In such cases and upon the filing of a written request, the department shall afford the
161	161	131applicant or potential transferee an adjudicatory hearing pursuant to chapter 30A.
162	162	132 During the pendency of such appeal, the applicant or potential transferee shall not operate
163	163	133the facility as a licensee, or, without prior approval of the department, manage such facility.
164	164	134 Each applicant, potential transferee and licensee shall keep all information provided to
165	165	135the department current. After the applicant, potential transferee or licensee becomes aware of any
166	166	136change to information related to information it provided or is required to provide to the
167	167	137department, such person shall submit to the department written notice of the changes as soon as 8 of 25
168	168	138practicable and without unreasonable delay. Changes include, but are not limited to, changes in
169	169	139financial status, such as filing for bankruptcy, any default under a lending agreement or under a
170	170	140lease, the appointment of a receiver or the recording of any lien. Failure to provide timely notice
171	171	141of such change may be subject to the remedies or sanctions available to the department under
172	172	142sections 71 to 73, inclusive.
173	173	143 An applicant, potential transferee or licensee and their respective owners shall be in
174	174	144compliance with all applicable federal, state and local laws, rules and regulations.
175	175	145 Prior to engaging a company to manage the long-term care facility, hereinafter a
176	176	146“management company”, a licensee shall notify the department in writing of the proposed
177	177	147management company’s name, contact information and any other information on the
178	178	148management company and its personnel that may be reasonably requested by the department.
179	179	149The licensee shall memorialize any such engagement in a written agreement with the
180	180	150management company. Such written agreement shall include a requirement that the management
181	181	151company and its personnel comply with all applicable federal, state and local laws, regulations
182	182	152and rules. Promptly after the effective date of any such agreement, the licensee shall provide to
183	183	153the department a copy of the valid, fully executed agreement. Any payment terms included in the
184	184	154agreement shall be confidential and exempt from disclosure under clause Twenty-sixth of section
185	185	1557 of chapter 4 and chapter 66.
186	186	156 The department shall not issue a license unless the authorities in charge of the long-term
187	187	157care facility first submit to the department, with respect to each building occupied by residents:
188	188	158(i) a certificate of inspection of the egresses, the means of preventing the spread of fire and
189	189	159apparatus for extinguishing fire, issued by an inspector of the office of public safety and 9 of 25
190	190	160inspections of the division of professional licensure; provided, however, that with respect to
191	191	161convalescent or nursing homes only, the division of health care quality of the department of
192	192	162public health shall have sole authority to inspect for and issue such certificate; and (ii) a
193	193	163certificate of inspection issued by the head of the local fire department certifying compliance
194	194	164with the local ordinances.
195	195	165 Any applicant who is aggrieved, on the basis of a written disapproval of a certificate of
196	196	166inspection by the head of the local fire department or by the office of public safety and
197	197	167inspections of the division of professional licensure, may, within 30 days from such disapproval,
198	198	168appeal in writing to the division of professional licensure. With respect to certificates of
199	199	169inspection that the division of health care quality of the department of public health has the sole
200	200	170authority to issue, an applicant may, within 30 days from disapproval of a certificate of
201	201	171inspection, appeal in writing to the department of public health only. Failure to either approve or
202	202	172disapprove within 30 days after a written request by an applicant shall be deemed a disapproval.
203	203	173 If the division of professional licensure or, where applicable, the department of public
204	204	174health approves the issuance of a certificate of inspection, it shall forthwith be issued by the
205	205	175agency that failed to approve. If said department disapproves, the applicant may appeal
206	206	176therefrom to the superior court. Failure of said department to either approve or disapprove the
207	207	177issuance of a certificate of inspection within 30 days after receipt of an appeal shall be deemed a
208	208	178disapproval. The department shall not issue a license until issuance of an approved certificate of
209	209	179inspection, as required in this section. 10 of 25
210	210	180 Nothing in this section or in sections 72 or 73 shall be construed to revoke, supersede or
211	211	181otherwise affect any laws, ordinances, by-laws, rules or regulations relating to building, zoning,
212	212	182registration or maintenance of a long-term care facility.
213	213	183 (c) For cause, the department may limit, restrict, suspend or revoke a license. Grounds for
214	214	184cause on which the department may take such action shall include: (i) substantial or sustained
215	215	185failure to provide adequate care to residents; (ii) substantial or sustained failure to maintain
216	216	186compliance with applicable statutes, rules and regulations; (iii) or the lack of financial capacity
217	217	187to maintain and operate a long-term care facility. Limits or restrictions include requiring a
218	218	188facility to limit new admissions. Suspension of a license includes suspending the license during a
219	219	189pending license revocation action, or suspending the license to permit the licensee a period of
220	220	190time, not shorter than 60 days, to wind down operations, and discharge and transfer, if
221	221	191applicable, all residents.
222	222	192 The department may, when public necessity and convenience require, or to prevent undue
223	223	193hardship to an applicant or licensee, under such rules and regulations as it may adopt, grant a
224	224	194temporary provisional or probationary license under this section; provided, however, that no such
225	225	195license shall be for a term exceeding 1 year.
226	226	196 With respect to an order to limit, restrict or suspend a license, within 7 days of receipt of
227	227	197the written order, the licensee may file a written request with the department for administrative
228	228	198reconsideration of the order or any portion thereof.
229	229	199 Upon a written request by a licensee who is aggrieved by the revocation of a license or
230	230	200the adoption of a probationary license, or by an applicant who is aggrieved by the refusal of the
231	231	201department to renew a license, the commissioner and the council shall hold a public hearing, 11 of 25
232	232	202after due notice, and thereafter they may modify, affirm or reverse the action of the department;
233	233	203provided, however, that the department may not refuse to renew and may not revoke the license
234	234	204of a long-term care facility until after a hearing before a hearings officer, and any such applicant
235	235	205so aggrieved shall have all the rights provided in chapter 30A with respect to adjudicatory
236	236	206proceedings.
237	237	207 In no case shall the revocation of such a license take effect in less than 30 days after
238	238	208written notification by the department to the licensee.
239	239	209 The fee for a license to establish or maintain or operate a long-term care facility shall be
240	240	210determined annually by the commissioner of administration pursuant to the provision of section
241	241	2113B of chapter 7, and the license shall not be transferable or assignable and shall be issued only
242	242	212for the premises named in the application.
243	243	213 Nursing institutions licensed by the department of mental health, or the department of
244	244	214developmental services for persons with intellectual disabilities shall not be licensed or inspected
245	245	215by the department of public health. The inspections herein provided shall be in addition to any
246	246	216other inspections required by law.
247	247	217 (d) In the case of the new construction of, or major addition, alteration or repair to, any
248	248	218facility subject to this section, preliminary architectural plans and specifications and final
249	249	219architectural plans and specifications shall be submitted to a qualified person designated by the
250	250	220commissioner. Written approval of the final architectural plans and specifications shall be
251	251	221obtained from said person prior to said new construction, or major addition, alteration or repair.
252	252	222 Notwithstanding any of the foregoing provisions of this section, the department shall not
253	253	223issue a license to establish or maintain and operate a long-term care facility unless the applicant 12 of 25
254	254	224for such license submits to the department a certificate that each building to be occupied by
255	255	225patients of such convalescent or nursing home or skilled nursing facility meets the construction
256	256	226standards of the state building code, and is of at least type 1–B fireproof construction; provided,
257	257	227however, that this paragraph shall not apply in the instance of a transfer of facility operations of a
258	258	228convalescent or nursing home or skilled nursing facility whose license had not been revoked as
259	259	229of the time of such transfer; and provided, further, that a public medical institution as defined
260	260	230under section 2 of chapter 118E, which meets the construction standards as defined herein, shall
261	261	231not be denied a license as a nursing home under this section because it was not of new
262	262	232construction and designed for the purpose of operating a convalescent or nursing home or skilled
263	263	233nursing facility at the time of application for a license to operate a nursing home. An
264	264	234intermediate care facility for persons with an intellectual disability shall be required to meet the
265	265	235construction standards established for such facilities by Title XIX of the Social Security Act
266	266	236(P.L. 89–97) and any regulations promulgated pursuant thereto, and by regulations promulgated
267	267	237by the department.
268	268	238 (e) Every applicant for a license and every potential transferee shall provide on or with its
269	269	239application or notice of intent to acquire a sworn statement of the names and addresses of any
270	270	240owner as defined in this section. In this section, the phrase ‘‘person with an ownership or control
271	271	241interest’’ shall have the definition set forth in 42 USC § 1320a–3 of the Social Security Act and
272	272	242in regulations promulgated hereunder by the department.
273	273	243 The department shall notify the secretary of elder affairs forthwith of the pendency of any
274	274	244proceeding of any public hearing or of any action to be taken under this section relating to any
275	275	245convalescent or nursing home, rest home, infirmary maintained in a town or charitable home for
276	276	246the aged. The department shall notify the commissioner of mental health forthwith of the 13 of 25
277	277	247pendency of any proceeding, public hearing or of any action to be taken under this section
278	278	248relating to any intermediate care facility for persons with an intellectual disability.
279	279	249 SECTION 4. Section 72 of said chapter 111 of the General Laws, as so appearing, is
280	280	250hereby amended by adding the following four paragraphs:-
281	281	251 The department shall establish regulations for the operation of small house nursing
282	282	252homes, herein defined as 1 or more units of a nursing home designed and modeled as a private
283	283	253home including residential kitchen and living area. Newly constructed small house nursing
284	284	254homes shall house no more than 14 individuals per unit, in resident rooms that accommodate not
285	285	255more than 2 residents per room, which are shared only at the request of a resident to
286	286	256accommodate a spouse, partner, family member or friend. All resident rooms shall contain a full
287	287	257private and accessible bathroom.
288	288	258 Regulations for small house nursing homes shall, to the extent practicable, prohibit the
289	289	259use of institutional features, including but not limited to nursing stations, medication carts, room
290	290	260numbers and wall-mounted licenses or certificates that could appropriately be accessed through
291	291	261other means.
292	292	262 Regulations for construction and physical plant standards should be based on the smaller
293	293	263size and limited number of residents served in small house nursing homes in comparison with
294	294	264traditional nursing facility units. In addition to development of construction and physical plant
295	295	265standards that support small house nursing homes, regulations shall support a staffing model
296	296	266small house nursing homes that allow for a universal worker approach to resident care that is
297	297	267organized to support and empower all staff to respond to the needs and desires of residents
298	298	268including cooking and meal preparation, and provides for consistent staff in each small house. 14 of 25
299	299	269 The executive office of health and human services shall develop an add-on to rates of
300	300	270payment for nursing facilities that develop small house nursing homes and meet criteria
301	301	271established by the executive office.
302	302	272 SECTION 5. Said chapter 111 is hereby further amended by striking out section 72E and
303	303	273inserting in place thereof the following section:-
304	304	274 Section 72E. The department shall, after every inspection by its agent made under
305	305	275authority of section 72, give the licensee of the inspected long-term care facility notice in writing
306	306	276of every violation of the applicable statutes, rules and regulations of the department found upon
307	307	277said inspection. With respect to the date by which the licensee shall remedy or correct each
308	308	278violation, hereinafter the “correct by date”, the department in such notice shall specify a
309	309	279reasonable time, not more than 60 days after receipt thereof, by which time the licensee shall
310	310	280remedy or correct each violation cited therein or, in the case of any violation which in the
311	311	281opinion of the department is not reasonably capable of correction within 60 days, the department
312	312	282shall require only that the licensee submit a written plan for the timely correction of the violation
313	313	283in a reasonable manner. The department may modify any nonconforming plan upon notice in
314	314	284writing to the licensee.
315	315	285 Absent good faith efforts to remedy or correct, failure to remedy or correct a cited
316	316	286violation by the agreed upon correct by date shall be cause to pursue or impose the remedies or
317	317	287sanctions available to it under sections 71 to 73, inclusive, unless the licensee shall demonstrate
318	318	288to the satisfaction of the department or the court, as the case may be, that such failure was not
319	319	289due to any neglect of its duty and occurred despite an attempt in good faith to make correction by
320	320	290the agreed upon correct by date. The department may pursue or impose any remedy or sanction 15 of 25
321	321	291or combination of remedies or sanctions available to it under said sections 71 to 73, inclusive. An
322	322	292aggrieved licensee may pursue the remedies available to it under said sections 71 to 73,
323	323	293inclusive.
324	324	294 In addition, if the licensee fails to maintain substantial or sustained compliance with
325	325	295applicable statutes, rules and regulations, in addition to imposing any of the other remedies or
326	326	296sanctions available to it, the department may require the licensee to engage, at the licensee’s own
327	327	297expense, a temporary manager to assist the licensee with bringing the facility into substantial
328	328	298compliance and with sustaining such compliance. Such manager shall be subject to the
329	329	299department’s approval, provided that such approval not be unreasonably withheld. Any such
330	330	300engagement of a temporary manager shall be for a period of not less than 3 months and shall be
331	331	301pursuant to a written agreement between the licensee and the management company. A copy of
332	332	302such agreement shall be provided by the licensee to the department promptly after execution.
333	333	303Any payment terms included in the agreement shall be confidential and exempt from disclosure
334	334	304under clause twenty-sixth of section 7 of chapter 4 and chapter 66.
335	335	305 Nothing in this section shall be construed to prohibit the department from enforcing a
336	336	306statute, rule or regulation, administratively or in court, without first affording formal opportunity
337	337	307to make correction under this section, where, in the opinion of the department, the violation of
338	338	308such statute, rule or regulation jeopardizes the health or safety of residents or the public or
339	339	309seriously limits the capacity of a licensee to provide adequate care, or where the violation of such
340	340	310statute, rule or regulation is the second such violation occurring during a period of 12 full
341	341	311months. 16 of 25
342	342	312 SECTION 6. Section 72K of said chapter 111 of the General Laws, as so appearing, is
343	343	313hereby amended by striking out subsection (b) and inserting in place thereof the following 2
344	344	314subsections:-
345	345	315 (b) The attorney general may file a civil action against a person who commits abuse,
346	346	316mistreatment or neglect of a patient or resident or who misappropriates patient or resident
347	347	317property or against a person who wantonly or recklessly permits or causes another to commit
348	348	318abuse, mistreatment or neglect of a patient or resident or who misappropriates patient or resident
349	349	319property. The civil penalty for such abuse, mistreatment, neglect or misappropriation shall not
350	350	320exceed: $25,000 if no bodily injury results; $50,000 if bodily injury results; $100,000 if sexual
351	351	321assault or serious bodily injury results; and $250,000 if death results. Section 60B of chapter 231
352	352	322shall not apply to an action brought by the attorney general pursuant to this section. Nothing in
353	353	323this section shall preclude the filing of any action brought by the attorney general or a private
354	354	324party pursuant to chapter 93A or any action by the department pursuant to this chapter.
355	355	325 (c) Notwithstanding section 5 of chapter 260, the attorney general may file a civil action
356	356	326only within four years next after an offense is committed.
357	357	327 SECTION 7. Said chapter 111 of the General Laws is hereby further amended by
358	358	328inserting after section 72BB the following 3 sections:-
359	359	329 Section 72CC. (a) For purposes of this section, the following terms shall, unless the
360	360	330context clearly requires otherwise, have the following meanings:
361	361	331 “Cohorting”, the practice of grouping patients who are or are not colonized or infected
362	362	332with the same organism in order to confine their care to one area and prevent contact with other
363	363	333patients. 17 of 25
364	364	334 “Endemic level”, the usual level of given disease in a geographic area.
365	365	335 “Isolating”, the process of separating persons colonized or infected with a communicable
366	366	336disease from those who are not colonized or infected with a communicable disease.
367	367	337 “Outbreak”, any unusual occurrence of disease or any disease above background or
368	368	338endemic levels.
369	369	339 “Long-term care facility”, a charitable home for the aged, convalescent or nursing home
370	370	340or skilled nursing facility, an infirmary maintained in a town, an intermediate care facility for
371	371	341persons with an intellectual disability or a rest home.
372	372	342 (b) Notwithstanding any general or special law to the contrary, the department shall
373	373	343require long-term care facilities to develop an outbreak response plan which shall be customized
374	374	344to the facility. Each facility’s plan shall include, but not be limited to:
375	375	345 (1) a protocol for isolating and cohorting infected and at-risk patients in the event of an
376	376	346outbreak of a contagious disease until the cessation of the outbreak;
377	377	347 (2) clear policies for the notification of residents, residents’ families, visitors, and staff in
378	378	348the event of an outbreak of a contagious disease at a facility;
379	379	349 (3) information on the availability of laboratory testing, protocols for assessing whether
380	380	350facility visitors are colonized or infected with a communicable disease, protocols to require those
381	381	351staff who are colonized or infected with a communicable disease to not present at the facility for
382	382	352work duties and processes for implementing evidence-based outbreak response measures;
383	383	353 (4) policies to conduct routine monitoring of residents and staff to quickly identify signs
384	384	354of a communicable disease that could develop into an outbreak; and 18 of 25
385	385	355 (5) policies for reporting outbreaks to public health officials in accordance with
386	386	356applicable laws and regulations.
387	387	357 (c) (1) In addition to the requirements set forth in subsection (b), the department shall
388	388	358require long-term care facilities to include in their outbreak response plan, written policies to
389	389	359meet staffing, training and facility demands during an infectious disease outbreak and to
390	390	360successfully implement the outbreak response plan, including either employing on a full-time or
391	391	361part-time basis, or contracting with on a consultative basis, the following individuals:
392	392	362 (a) an individual certified by the Certification Board of Infection Control &
393	393	363Epidemiology, Inc.; or
394	394	364 (b) a physician who has completed an infectious disease fellowship.
395	395	365 (2) The department shall verify that the outbreak response plans submitted by long-term
396	396	366care facilities are in compliance with the requirements of subsection (b) and with the
397	397	367requirements of paragraph (1) of this subsection.
398	398	368 (d) (1) Each long-term care facility that submits an outbreak response plan to the
399	399	369department pursuant to subsection (c) shall review the plan on an annual basis.
400	400	370 (2) If a long-term care facility makes any material changes to its outbreak response plan,
401	401	371the facility shall submit to the department an updated outbreak response plan within 30 days. The
402	402	372department shall, upon receiving an updated outbreak response plan, verify that the plan is
403	403	373compliant with the requirements of subsections (b) and (c).
404	404	374 (e) The department shall promulgate regulations necessary to implement this section. 19 of 25
405	405	375 Section 72DD. The department, through its division of health care facility licensure and
406	406	376certification, shall establish and implement a prescribed process and program for providing
407	407	377training and education to long term care providers licensed by the department under section 72.
408	408	378The training and education programs may include: infection prevention and control;
409	409	379development, implementation, adherence and review of comprehensive resident care plans; falls
410	410	380prevention; procedures to ensure timely notification of changes in a resident’s condition to the
411	411	381resident’s primary care physician; the prevention of abuse and neglect; development and
412	412	382implementation of a program to minimize the danger of workplace violence to employees; and
413	413	383review of the survey and inspection process. The department shall consult with the industry trade
414	414	384associations, before requiring any new regulatory guidance, regulation, interpretation, program
415	415	385letter or memorandum or any other materials used in surveyor training to survey licensed
416	416	386providers.
417	417	387 The process, training, and education shall include, but not be limited to, the following:
418	418	388 (i) annual training for long term care facilities on the licensure and certification process.
419	419	389This training shall include, but not be limited to, the department’s interpretation of the general
420	420	390laws, rules, regulations, procedures and policies concerning the licensure and certification
421	421	391process for such long-term care facilities;
422	422	392 (ii) biannual training of long-term care providers on the most frequently cited
423	423	393deficiencies, identified deficiency trends, both state and federal, and best practices to ensure
424	424	394resident quality of care; and 20 of 25
425	425	395 (iii) training of long-term care providers and the department survey inspectors jointly on
426	426	396the department's new expectations. Trainings shall be interactive, with the sharing of information
427	427	397and recommendations between long term care facilities and the department on issues and topics.
428	428	398 Section 72EE. (a) For the purposes of this section, the following terms shall, unless the
429	429	399context clearly requires otherwise, have the following meanings:
430	430	400 “Religious and recreational activities”, any religious, social or recreational activity that is
431	431	401consistent with the resident’s preferences and choosing, regardless of whether the activity is
432	432	402coordinated, offered, provided or sponsored by facility staff or by an outside activities provider.
433	433	403 “Resident”, a person who resides in a long-term care facility.
434	434	404 “Long-term care facility”, a charitable home for the aged, convalescent or nursing home
435	435	405or skilled nursing facility, an infirmary maintained in a town, an intermediate care facility for
436	436	406persons with an intellectual disability or a rest home.
437	437	407 (b) The department shall promulgate regulations necessary to encourage and enable
438	438	408residents of a long-term care facility to engage in in-person, face-to-face, verbal or auditory-
439	439	409based contact, communications and religious and recreational activities with others except when
440	440	410such in-person contact, communication or activities are prohibited, restricted or limited, as
441	441	411otherwise permitted by federal or state statute, rule or regulation. Said regulations shall include
442	442	412specific protocols and procedures to provide for residents of the facility who have disabilities
443	443	413that impede their ability to communicate, including, but not limited to, residents who are blind,
444	444	414deaf, have Alzheimer’s disease or other related dementias and residents who have developmental
445	445	415disabilities. 21 of 25
446	446	416 (c) The department may distribute civil monetary penalty funds, as approved by the
447	447	417federal Centers for Medicare and Medicaid Services, and any other available federal and state
448	448	418funds, upon request, to facilities for communicative technologies and accessories needed for the
449	449	419purposes of this section.
450	450	420 SECTION 8. Said chapter 111 is hereby further amended by striking out section 73 and
451	451	421inserting in place thereof the following section:-
452	452	422 Section 73. Whoever advertises, announces, establishes or maintains, or is concerned in
453	453	423establishing or maintaining a long-term care facility, or is engaged in any such business, without
454	454	424a license granted under section 71, or whoever being licensed under said section 71 violates any
455	455	425provision of sections 71 to 73, inclusive, shall for a first offense be punished by a fine of not
456	456	426more than $1,000, and for a subsequent offense by a fine of not more than $2,000 or by
457	457	427imprisonment for not more than two years.
458	458	428 Whoever violates any rule or regulation established under sections 71, 72 and 72C shall
459	459	429be punished by a fine, not to exceed $22,320, as the department may establish unless the
460	460	430department determines a higher amount is permitted pursuant to 42 CFR 488.438. If any person
461	461	431violates any such rule or regulation by allowing a condition to exist which may be corrected or
462	462	432remedied, the department shall order such person, in writing, to correct or remedy such
463	463	433condition, and if such person fails or refuses to comply with such order by the agreed upon
464	464	434correct by date, as defined in section 72E, each day after the agreed upon correct by date during
465	465	435which such failure or refusal to comply continues shall constitute a separate offense. A failure to
466	466	436pay the fine imposed by this section shall be a violation of this section. 22 of 25
467	467	437 SECTION 9. Section 14A of chapter 118E of the General Laws, as appearing in the 2020
468	468	438Official Edition, is hereby amended by adding the following paragraph:-
469	469	439 On a per resident basis, MassHealth shall reimburse nursing home facilities for up to and
470	470	440including 20 medical leave-of-absence days and shall reimburse the facilities for up to and
471	471	441including 10 nonmedical leave-of-absence days per year for MassHealth recipients; provided,
472	472	442that medical leave-of-absence days shall include an observation stay in a hospital in excess of 24
473	473	443hours. No nursing home shall reassign a patient's bed during a leave of absence that is eligible
474	474	444for reimbursement.
475	475	445 SECTION 10. Said chapter 118E of the General Laws is further amended by adding the
476	476	446following section:-
477	477	447 Section 80. For the purpose of ensuring a living wage for nursing facility direct care staff,
478	478	448MassHealth shall enact regulations regarding standard payments from MassHealth to nursing
479	479	449facilities that establish a living wage for direct care staff of licensed nursing homes, including,
480	480	450but not limited to, certified nurse aides and housekeeping, laundry, dietary, plant operations and
481	481	451clerical staff. Such regulations shall ensure that such standard payments shall reimburse nursing
482	482	452facilities for the costs of paying a living wage, associated payroll benefits and related employee
483	483	453costs. MassHealth shall, subject to appropriation, adjust such payments with an inflation
484	484	454adjustment consistent with the annual unadjusted Skilled Nursing Facility Market Basket Update,
485	485	455as established by the Centers for Medicare & Medicaid Services in 42 C.F.R. § 413.337.
486	486	456MassHealth shall adopt all additional regulations and procedures necessary to carry out this
487	487	457section, provided, that such regulations shall include permissible use standards mandating that
488	488	458facilities shall expend these supplemental payments exclusively on direct care staff expenses, 23 of 25
489	489	459which shall be further defined in such regulations but that shall not include spending on
490	490	460temporary nursing staff, management staff or nursing facility administrators. Such additional
491	491	461regulations and procedures shall include: (i) mandated facility interim reporting to the executive
492	492	462office of health and human services on the ways in which the facility expects to spend; and (ii)
493	493	463mandated facility final reporting on the expenditure of payments received under this section,
494	494	464including audits and provisions that reconcile such expenditure reporting with the Direct Care
495	495	465Cost Quotient regulations. MassHealth shall submit to the house and senate committees on ways
496	496	466and means a report containing an analysis of funds expended under this program.
497	497	467 SECTION 11. (a) Notwithstanding any special or general law to the contrary, the center
498	498	468for health information and analysis, in consultation with MassHealth, the department of elder
499	499	469affairs, the department of public health and the health policy commission shall annually conduct
500	500	470an examination of cost trends and financial performance among nursing facilities, as defined by
501	501	471957 CMR 7.02. The information shall be analyzed on an institution-specific and industry-wide
502	502	472basis. The examination shall also aggregate information collected on multiple skilled nursing
503	503	473facilities that are owned and operated by a single individual, trust, estate, partnership,
504	504	474association, company or corporation with an ownership interest of 5 per cent or more in the
505	505	475facilities’ operating license, management company, or associated real estate. The examination
506	506	476and report shall include, but not be limited to the collection and analysis of the following: (i)
507	507	477gross and net patient service revenues; (ii) other sources of operating and non-operating revenue;
508	508	478(iii) trends in relative price, payer mix, case mix, utilization and length of stay dating back to
509	509	4792010; (iv) affiliations with other health care providers, including, but not limited to, preferred
510	510	480clinical relationships and partnerships; (v) categories of costs, including, but not limited to,
511	511	481general and administrative costs, nursing and other labor costs and salaries, building costs, 24 of 25
512	512	482capital costs and other operating costs; (vi) total spending on direct patient care as a percent of
513	513	483total operating expenses; (vii) operating and total margin; (viii) occupancy rates; and (ix) other
514	514	484relevant measures of financial performance and service delivery. These measures should
515	515	485distinguish long-term residents from short-stay residents where possible. The report and any
516	516	486policy recommendations shall be filed with the clerks of the house of representatives and the
517	517	487senate, the house of representatives and senate committees on ways and means and the joint
518	518	488committee on elder affairs no later than 6 months after the passage of this act.
519	519	489 (b) To determine affiliations between nursing facilities and other health care providers as
520	520	490required, the center for health information and analysis shall utilize ownership information
521	521	491submitted to the department of public health as part of the long-term care facility licensure
522	522	492determination process set forth in section 71 of chapter 111 of the General Laws. The department
523	523	493of public health shall provide such records as necessary for the provision of this section.
524	524	494 SECTION 12. Notwithstanding any general or special law to the contrary, the health
525	525	495policy commission shall conduct an analysis and issue a report on nursing personnel in long-term
526	526	496care facilities. The study shall consider the hours of care per resident per day required to prevent
527	527	497a substandard quality of care as defined by 42 CFR 488.301 and ensure sufficient staffing levels
528	528	498necessary to meet resident nursing care needs based on acuity, resident assessments, care plans,
529	529	499census and other relevant factors. This study shall also consider the effect of such staffing
530	530	500requirements on the long-term care industry including cost impact on long-term care facilities,
531	531	501satisfaction of the workforce and quality of care for residents.
532	532	502 The health policy commission shall submit to the clerks of the house of representatives
533	533	503and the senate, the house and senate committees on ways and means, the joint committee on 25 of 25
534	534	504healthcare financing and the joint committee on elder affairs the report, including any
535	535	505recommendations derived from the study within 180 days of the effective date of this act.
536	536	506 SECTION 13. Pursuant to section 72CC of section 111 of the General Laws, each long-
537	537	507term care facility shall submit its outbreak response plan to the department within 180 days of
538	538	508the effective date of this act.