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Massachusetts Senate Bill S380

Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S380 Compare Versions

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22 SENATE DOCKET, NO. 1245 FILED ON: 1/19/2023
33 SENATE . . . . . . . . . . . . . . No. 380
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Patricia D. Jehlen
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act to improve Massachusetts home care.
1313 _______________
1414 PETITION OF:
1515 NAME:DISTRICT/ADDRESS :Patricia D. JehlenSecond MiddlesexThomas M. Stanley9th Middlesex1/20/2023Joanne M. ComerfordHampshire, Franklin and Worcester1/26/2023Jack Patrick Lewis7th Middlesex1/30/2023Michael O. MooreSecond Worcester2/2/2023Susannah M. Whipps2nd Franklin2/2/2023Vanna Howard17th Middlesex2/7/2023James K. Hawkins2nd Bristol2/8/2023Anne M. GobiWorcester and Hampshire2/9/2023John F. KeenanNorfolk and Plymouth2/14/2023Mathew J. Muratore1st Plymouth2/14/2023Michael D. BradySecond Plymouth and Norfolk2/23/2023James B. EldridgeMiddlesex and Worcester2/23/2023Sal N. DiDomenicoMiddlesex and Suffolk3/9/2023 1 of 13
1616 SENATE DOCKET, NO. 1245 FILED ON: 1/19/2023
1717 SENATE . . . . . . . . . . . . . . No. 380
1818 By Ms. Jehlen, a petition (accompanied by bill, Senate, No. 380) of Patricia D. Jehlen, Thomas
1919 M. Stanley, Joanne M. Comerford, Jack Patrick Lewis and other members of the General Court
2020 for legislation to improve Massachusetts home care. Elder Affairs.
2121 [SIMILAR MATTER FILED IN PREVIOUS SESSION
2222 SEE HOUSE, NO. 4471 OF 2021-2022.]
2323 The Commonwealth of Massachusetts
2424 _______________
2525 In the One Hundred and Ninety-Third General Court
2626 (2023-2024)
2727 _______________
2828 An Act to improve Massachusetts home care.
2929 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
3030 of the same, as follows:
3131 1 SECTION 1. Chapter 111 of the General Laws, as appearing in the 2020 Official Edition,
3232 2is hereby amended by inserting after section 51K the following 3 sections:-
3333 3 Section 51L. (a)For the purposes of this section and sections 51M and 51N, the following
3434 4words shall, unless the context clearly requires otherwise, have the following meanings,:-
3535 5 “Home care agency", a business, nonprofit organization or other entity engaged in
3636 6providing home care services to consumers in the consumers’ residence for compensation or any
3737 7entity or individual that represents itself as a home care agency by name, advertising or
3838 8presentments to the public or uses the terms “home care agency” or “home care” in the entity or
3939 9individual’s name; provided however, that ''home care agency'' shall not include any of the 2 of 13
4040 10following: (i) an entity operated by either the federal government or the commonwealth
4141 11providing home care services, (ii) an entity that limits its business to the provision of house
4242 12cleaning services, (iii) an Aging Service Access Points entity as defined in section 4B of chapter
4343 1319A, (v) a hospice program licensed under section 57D or (vi) a home health agency as defined
4444 14in section 51K.
4545 15 “Home care consumers”, an individual receiving home care services or any legal
4646 16representative of such individual.
4747 17 “Home care services", supportive services provided to an individual in their residence to
4848 18enable that individual to remain in their residence safely and comfortably, including, but not
4949 19limited to, assistance with eating, toileting, dressing, bathing, transferring, ambulation and other
5050 20activities of daily living, housekeeping, personal laundry and companionship. Home care
5151 21services shall not include hospice services provided by an entity subject to licensure under
5252 22section 57D or home health services provided by an entity subject to licensure under section
5353 2351K, services provided by a personal care attendant in the commonwealth’s personal care
5454 24attendant program as defined in 130 CMR 422.000 or services provided under the MassHealth
5555 25adult foster care program as defined in 101 CMR 351.00.
5656 26 “Home care worker”, an individual employed by a home care agency who provides home
5757 27care services to a consumer in the consumer’s residence.
5858 28 “Personal care attendant”, an individual who provides consumer-directed personal care
5959 29services to a consumer in the consumer’s residence, including, but not limited to, a person
6060 30providing such services as defined under section 70 of chapter 118E.
6161 31 “Secretary”, the secretary of health and human services. 3 of 13
6262 32 (b)Unless otherwise expressly authorized by the secretary, no person shall establish,
6363 33maintain, operate or hold oneself out as a home care agency without a home care agency license
6464 34issued by the secretary and no organization or entity shall provide home care services, use the
6565 35words "home care" to describe its services or establish, maintain, operate or hold itself out as a
6666 36home care agency without a home care agency license issued by the secretary; provided, that
6767 37licensure shall be required for home care agencies that directly employ home care workers or
6868 38directly contract with a company who employs home care workers.
6969 39 (c)The secretary shall issue for a term to be determined, and may renew for like
7070 40terms, a home care agency license to any person or entity of any kind, other than a department,
7171 41agency or institution of the federal government, the commonwealth or any political subdivision
7272 42thereof, that: (i) the secretary deems responsible and suitable to establish or operate a home care
7373 43agency, and (ii) meets the requirements of the executive office of health and human services
7474 44established in accordance with the office’s rules and regulations developed in consultation with
7575 45the executive office of elder affairs and the department of public health as provided in subsection
7676 46(e).
7777 47 A home care agency license shall be subject to suspension, revocation or refusal to renew
7878 48for cause. License application and renewal fees shall be established pursuant to section 3B of
7979 49chapter 7.
8080 50 The secretary may issue a provisional license for a term not to exceed 120 days to an
8181 51applicant that has not previously operated home care services, or to a home care agency that is
8282 52operating but is temporarily unable to meet applicable standards and requirements. If a
8383 53provisional licensee has made significant progress towards meeting such requirements, the 4 of 13
8484 54secretary may renew the provisional license once for a period not to exceed 120 days from the
8585 55expiration of the initial provisional license.
8686 56 (d)The secretary may impose a fine on a person or entity that advertises, announces,
8787 57establishes, or operates a home care agency without a license granted by the secretary. The
8888 58secretary may impose a fine on a licensed home care agency that violates this section, or any rule
8989 59or regulation promulgated hereunder. Each day during which a violation continues shall
9090 60constitute a separate offense.
9191 61 The secretary, in collaboration with the executive office of elder affairs and the
9292 62department of public health, may conduct surveys and investigations to enforce compliance with
9393 63this section.
9494 64 (e) The secretary shall, in consultation with the executive office of elder affairs and
9595 65the department of public health, promulgate rules and regulations for the licensing and conduct
9696 66of a home care agency. In developing these rules and regulations, the secretary shall review all
9797 67existing licensure, reporting and oversight requirements across the long-term care services and
9898 68support system and other relevant state agencies, including the provider monitoring conducted by
9999 69the Aging Services Access Points, to avoid duplication or conflicting requirements and to ensure
100100 70that home care agency licensure processes align with the current licensure for home health
101101 71agencies and with state oversight process already in place through the Aging Services Access
102102 72Points and the nurse aide registry.
103103 73 The regulations shall include, but shall not be limited to:
104104 74 (i)background screening check requirements for all home care workers which may
105105 75include: (1) Massachusetts criminal background checks, (2) state or county criminal history 5 of 13
106106 76screenings for each location outside of the commonwealth in which the home care professional is
107107 77known to have lived or worked during the previous 5 years, (3) review of the federal Office of
108108 78Inspector General List of Excluded Individuals/Entities, (4) review of the nurse aide registry, (5)
109109 79applicable professional licensing board check and (6) for all home care professionals who will
110110 80transport consumers, verification of auto insurance and driving records for a minimum of the
111111 81previous 5 years;
112112 82 (ii)minimum standards for consumer-specific service plans and contracts; provided,
113113 83that the plans shall include: (1) a detailed description of services, including services the primary
114114 84agency is subcontracting to another agency or provider, (2) a written unit rate and total cost of
115115 85services, inclusive of any additional fees or deposits, and (3) contact information for consumer
116116 86questions;
117117 87 (iii)minimum coverage requirements for workers’ compensation insurance and
118118 88liability insurance;
119119 89 (iv) maintenance of a payroll process that follows all state and federal labor and wage
120120 90laws;
121121 91 (v)annual and ongoing training and competency requirements for home care agency
122122 92staff that are in direct contact with home care consumers; provided, that minimum training
123123 93requirements shall include (1) confidentiality and privacy of home care consumer’s rights, (2)
124124 94infection control and communicable diseases, (3) handling of emergencies, including safety and
125125 95falls prevention, (4) observation, reporting and documenting changes in consumer needs and
126126 96environment, (5) identifying and reporting suspected abuse, neglect or theft, and (6) wage theft.
127127 97The trainings shall be culturally and linguistically competent for the trainee; 6 of 13
128128 98 (vi)policies and procedures to ensure home care workers have safe working
129129 99conditions, adequate training and a process for submitting complaints;
130130 100 (vii) maintenance of an emergency preparedness plan;
131131 101 (viii) meeting of quality metrics and standards to be set forth in the licensing
132132 102regulations;
133133 103 (ix)requirements and written processes for the timely reporting of home care
134134 104consumer complaints;
135135 105 (x)a suitability determination process; provided, that the process shall include, but
136136 106not be limited to, requiring all applicants to attest to having sufficient financial capacity to
137137 107provide ongoing care and services in compliance with state law and regulation; and
138138 108 (xi)providing adequate equipment and supplies for home care workers.
139139 109 (f)The secretary shall be responsible for licensing home care agencies. To
140140 110accomplish the objectives set forth in this section, the secretary may coordinate and consult with
141141 111the offices and agencies that are interested in matters pertaining to the delivery of home care
142142 112services, including but not limited to: (1) the department of public health, (2) the executive office
143143 113of elder affairs, (3) the department of consumer affairs and business regulation and (4) the
144144 114department of public health. The responsibilities of the regulating agency shall include:
145145 115 (i)reviewing and processing licensure applications, including a suitability review
146146 116that ensures the applicant can meet the obligations and conditions of licensure, including:
147147 117 (A) a review of the state disbarment list and federal Office of Inspector General List of
148148 118Excluded Individuals/Entities; and 7 of 13
149149 119 (B) a competency review where all individuals with at least a 5 per cent ownership stake
150150 120in the home care agency shall submit the individuals’ names, contact information, companies
151151 121where they have at least a 5 per cent ownership, any civil or criminal findings against said
152152 122individual, and a completed background check;
153153 123 (ii)establishing a process for a change of ownership that includes advanced notice to
154154 124home care consumers and home care workers and a review by the regulating state agency to
155155 125determine if the new licensee can meet the obligations and conditions of licensure, including a
156156 126suitability review; provided, that home care agency licenses shall not be transferable;
157157 127 (iii)working with other regulators to investigate and resolve complaints;
158158 128 (iv)imposing fines on the licensee when determined to be appropriate;
159159 129 (v)suspending or revoking licenses when determined to be appropriate;
160160 130 (vi)posting a listing of licensed home care agencies on a publicly available webpage;
161161 131 (vii)allowing for “deemed status” for licensure of home care agencies if an Aging
162162 132Service Access Points or MassHealth provider contract is in place;
163163 133 (viii)establishing of quality metrics and standards for monitoring the licensed home
164164 134care agency performance, including reporting mechanisms for tracking performance; and
165165 135 (ix)annual reporting by home care agencies, which may include reporting on quality
166166 136metrics and significant changes related to home care agency finances.
167167 137 Section 51M. (a) The secretary, in consultation with the home care worker and consumer
168168 138abuse stakeholder advisory committee establishing in subsection (b), MassHealth, the department 8 of 13
169169 139of elder affairs, the department of public health and the PCA quality home care workforce
170170 140council established pursuant to section 71 of chapter 118E, shall adopt minimum standards and
171171 141procedures for addressing abusive treatment and bullying of Massachusetts home care workers,
172172 142personal care attendants and home care consumers. The standards and procedures shall address
173173 143physical, verbal and mental abuse either of or from individual home care consumers as well as
174174 144any abusive treatment or bullying from home care consumer surrogates, family members, other
175175 145caregivers and any others present in the home care consumers’ household when the home care
176176 146worker is providing home care services. The standards and procedures shall promote appropriate
177177 147home care worker and home care consumer training and support and a safe and healthy work
178178 148environment for home care workers, while recognizing the privacy rights of home care
179179 149consumers, the role of personal care attendant consumer employers and that home care
180180 150consumers may have a disruptive behavioral disorder underlying abuse behavior.
181181 151 (b) There shall be a home care worker and consumer abuse stakeholder advisory
182182 152committee that shall meet, study and make recommendations to the secretary relative to
183183 153standards and procedures for addressing abusive treatment and bullying of home care workers,
184184 154personal care attendants and home care consumers.
185185 155 The advisory committee shall consist of the following 16 members: the secretary or a
186186 156designee, who shall serve as chair; the assistant secretary for MassHealth or a designee; the
187187 157secretary of elder affairs or a designee; the commissioner of public health or a designee; the
188188 158chairs of the joint committee on elder affairs or their designees; and 10 persons to be appointed
189189 159by the governor, 1 of whom shall be a personal care attendant, 1 of whom shall be a home care
190190 160agency direct care worker, 1 of whom shall be a consumer of personal care attendant services
191191 161who shall be a member of the PCA workforce council, 1 of whom shall be a consumer of home 9 of 13
192192 162care agency services, 1 of whom shall be a representative of the statewide independent living
193193 163council, 1 of whom shall be a representative of the Disability Law Center, Inc., 1 of whom shall
194194 164be a representative of the Massachusetts Home Care, Inc., 1 of whom shall be a representative of
195195 165the Home Care Aide Council, 1 of whom shall be a representative of the Home Care Alliance of
196196 166Massachusetts, Inc., and 1 of whom shall be a representative of the Massachusetts division of
197197 1671199SEIU. The members of the advisory committee shall serve without compensation.
198198 168 The advisory committee shall submit a report containing initial findings and
199199 169recommendations, including drafts of proposed legislation or regulatory changes to carry out its
200200 170recommendations, by filing the same with the clerks of the senate and house of representatives,
201201 171the joint committee on elder affairs and the joint committee on public health. The advisory
202202 172committee shall continue to meet quarterly following submission of the report and until the
203203 173advisory committee votes to dissolve itself.
204204 174 (c) The home care worker and consumer abuse stakeholder advisory committee shall
205205 175study and make findings and recommendations relative to the development and implementation
206206 176of minimum standards and procedures for addressing abusive treatment and bullying of
207207 177Massachusetts home care workers, personal care attendants and home care consumers. The
208208 178advisory committee’s study, findings and recommendations shall include, but not be limited to:
209209 179 (1) Reporting and debriefing, including best practices for standards and procedures for
210210 180home care workers and their home care consumers experiencing abusive treatment, bullying or
211211 181neglect to report abuse to the home care workers’ employers or appropriate state entities,
212212 182including the PCA workforce council or MassHealth for personal care assistants, without
213213 183retaliation and while retaining the right to report any criminal activity to law enforcement. The 10 of 13
214214 184standards shall include, but not be limited to, best practices for a debriefing process for affected
215215 185home care workers and home care consumers following violent acts.
216216 186 (2) Tracking and record retention, including best practices for standards and procedures
217217 187for the secretary to track and monitor reports of both home care worker abuse and reports of
218218 188home care consumer abuse or neglect.
219219 189 (3) Informing workers, including best practices for standards and procedures that would
220220 190require employers of home care workers or other appropriate state entities, including the PCA
221221 191workforce council or MassHealth for personal care assistants, to regularly inform home care
222222 192workers of patterns of consumer or worker abuse or bullying that indicates a potentially unsafe
223223 193working environment. The standards and procedures shall respect home care consumer privacy
224224 194while prioritizing home care worker safety and while ensuring continuity of care.
225225 195 (4) Training and employer policies, including best practices for standards and procedures
226226 196for the secretary, in consultation with home care employers and other stakeholders, to develop
227227 197and implement home care worker and home care consumer orientations and other trainings on:
228228 198(i) worker abuse and bullying, (ii) escalation cycles and effective de-escalation techniques and
229229 199(iii) culturally competent and peer-to-peer trainings and strategies to prevent physical harm with
230230 200hands-on practice or role play. The training and employer policies shall also include best
231231 201practices for home care employers to implement additional internal plans and procedures to: (A)
232232 202reduce workplace violence and abuse, (B) offer resources to employees for coping with the
233233 203effects of violence and (C) develop labor-management workplace safety committees. The
234234 204training and employer policies shall consider and avoid duplication of existing requirements and
235235 205trainings in place through Aging Service Access Points. 11 of 13
236236 206 Section 51N. (a) There is hereby established a home care oversight advisory council
237237 207within the executive office of health and human services.
238238 208 The advisory council shall advise the secretary relating to the regulations described in
239239 209subsection (e) of section 51L. The executive office of health and human services shall consult
240240 210with the advisory council on implementation of the home care agency licensure process outlined
241241 211in section 51L. The advisory council may also conduct a review concurrently with the
242242 212development of the home care agency licensure process to include, but not be limited to:
243243 213 (i) the process of implementing the new home care agency licensure process in the
244244 214commonwealth, including the creation of a provisional license to address identified gaps in home
245245 215care services;
246246 216 (ii) existing licensure, reporting and oversight requirements across the long-term care
247247 217services and support systems and other relevant state agencies, including the provider monitoring
248248 218conducted by the Aging Services Access Points, to avoid duplication and conflicting
249249 219requirements;
250250 220 (iii) home care agency licensure requirements in other states;
251251 221 (iv) processes to ensure that the home care agency licensure process will align with
252252 222licensure for home health agencies and with state oversight process already in place through the
253253 223Aging Services Access Points, the home care worker registry established in section 4D of
254254 224chapter 19A and the nurse aide registry established in section 72J; 12 of 13
255255 225 (v) the development of a process for state government to conduct a statewide home care
256256 226market analysis and report on current available home care services in all regions that may inform
257257 227the regulating agency and the issuance of new home care agency licenses; and
258258 228 (vi) any additional subjects that the home care oversight advisory council and the
259259 229secretary deem necessary and appropriate.
260260 230 (b) The advisory council shall be composed of the secretary or their designee, who shall
261261 231serve as chair; the chairs of the joint committee on elder affairs or their designees; the secretary
262262 232of elder affairs or their designee; the commissioner of public health or their designee; the
263263 233assistant secretary for MassHealth or their designee; 1 person to be appointed by the minority
264264 234leader of the house of representatives; 1 person to be appointed by the minority leader of the
265265 235senate; and 4 persons to be appointed by the governor, 1 of whom shall be a representative of the
266266 236Home Care Aide Council, 1 of whom shall be a representative of the Home Care Alliance of
267267 237Massachusetts, Inc., 1 of whom shall be a representative of Massachusetts Home Care, Inc. and 1
268268 238of whom shall be a representative of the Massachusetts division of 1199SEIU.
269269 239 (c) The council shall meet quarterly. Upon the promulgation of regulations for home care
270270 240agency licensure pursuant to subsection (e) of section 51L, the council may introduce a motion to
271271 241dissolve by a majority vote of its members.
272272 242 SECTION 2. Section 1 of chapter 151B of the General Laws, as so appearing, is hereby
273273 243amended by inserting after the word “thereof”, in line 21, the following words:- and an employer
274274 244of a personal care attendant as defined in section 70 of chapter 118E, including individual
275275 245consumers of a personal care attendant. 13 of 13
276276 246 SECTION 3. The secretary of health and human services shall, in consultation with the
277277 247executive office of elder affairs and the department of public health, promulgate rules and
278278 248regulations for the licensing and conduct of a home care agency, as provided in subsection (e) of
279279 249section 51L of chapter 111 of the General Laws, within 1 year of the effective date of this act.
280280 250 SECTION 4. The home care worker and consumer abuse stakeholder advisory committee
281281 251established in subsection (b) of section 51M of said chapter 111 shall meet at least monthly in
282282 252the first 6 months after the effective date of this act to develop initial findings and
283283 253recommendations. The advisory committee shall submit the report described in said subsection
284284 254(b) of said section 51M of said chapter 111 not later than 6 months after the effective date of this
285285 255act.
286286 256 SECTION 5. Members of the home care oversight advisory council established in section
287287 25751N of said chapter 111 shall be named and the council shall commence its work within 60 days
288288 258of the effective date of this act.