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Massachusetts Senate Bill S391

Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S391 Compare Versions

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22 SENATE DOCKET, NO. 2134 FILED ON: 1/20/2023
33 SENATE . . . . . . . . . . . . . . No. 391
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Mark C. Montigny
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 providing transparency and accountability of nursing home ownership.
1313 _______________
1414 PETITION OF:
1515 NAME:DISTRICT/ADDRESS :Mark C. MontignySecond Bristol and PlymouthJack Patrick Lewis7th Middlesex1/31/2023Paul A. Schmid, III8th Bristol3/2/2023Patricia D. JehlenSecond Middlesex3/2/2023Christopher Hendricks11th Bristol3/2/2023 1 of 13
1616 SENATE DOCKET, NO. 2134 FILED ON: 1/20/2023
1717 SENATE . . . . . . . . . . . . . . No. 391
1818 By Mr. Montigny, a petition (accompanied by bill, Senate, No. 391) of Mark C. Montigny, Jack
1919 Patrick Lewis, Paul A. Schmid, III, Patricia D. Jehlen and others for legislation to provide
2020 transparency and accountability of nursing home ownership. Elder Affairs.
2121 The Commonwealth of Massachusetts
2222 _______________
2323 In the One Hundred and Ninety-Third General Court
2424 (2023-2024)
2525 _______________
2626 An Act providing transparency and accountability of nursing home ownership.
2727 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
2828 of the same, as follows:
2929 1 SECTION 1. Chapter 111 of the General Laws, as appearing in the 2020 Official Edition,
3030 2is hereby amended by striking out section 71 and inserting in place thereof the following
3131 3section:-
3232 4 Section 71. For purposes of this section and sections 71A ½ to 73, the following terms
3333 5shall have the following meanings unless the context or subject matter clearly requires otherwise:
3434 6 “Applicant”, any person who applies to the department for a license to establish or
3535 7maintain and operate a long-term care facility.
3636 8 “Charitable home for the aged”, any institution, however named, conducted for charitable
3737 9purposes and maintained for the purpose of providing a retirement home for elderly persons and
3838 10which may provide nursing care within the home for its residents. 2 of 13
3939 11 “Convalescent or nursing home or skilled nursing facility”, any institution, however
4040 12named, whether conducted for charity or profit, which is advertised, announced or maintained for
4141 13the express or implied purpose of caring for four or more persons admitted thereto for the
4242 14purpose of nursing or convalescent care.
4343 15 “Infirmary maintained in a town”, an infirmary which hitherto the department of public
4444 16welfare has been directed to visit by section 7 of chapter 121.
4545 17 “Intermediate care facility for persons with an intellectual disability”, any institution,
4646 18however named, whether conducted for charity or profit, which is advertised, announced or
4747 19maintained for the purpose of providing rehabilitative services and active treatment to persons
4848 20with an intellectual disability or persons with related conditions, as defined in regulations
4949 21promulgated pursuant to Title XIX of the federal Social Security Act (P.L. 89–97); which is not
5050 22both owned and operated by a state agency; and which makes application to the department for a
5151 23license for the purpose of participating in the federal program established by said Title XIX.
5252 24 “License”, an initial or renewal license to establish or maintain and operate a long-term
5353 25care facility issued by the department.
5454 26 “Licensee”, a person to whom a license to establish or maintain and operate a long-term
5555 27care facility has been issued by the department.
5656 28 “Long-term care facility”, a charitable home for the aged, a convalescent or nursing
5757 29home, an infirmary maintained in a town, an intermediate care facility for persons with an
5858 30intellectual disability or a rest home. 3 of 13
5959 31 “Owner”, any person owning 5 per cent or more of, with an ownership interest of 5 per
6060 32cent or more of, or with a controlling interest in an applicant, potential transferee or the real
6161 33property on which a long-term care facility is located.
6262 34 “Person”, an individual, a trust, estate, partnership, association, company or corporation.
6363 35 “Potential transferee”, a person who submits to the department a “notice of intent to
6464 36acquire” the facility operations of a currently operating long-term care facility.
6565 37 “Rest home”, any institution, however named, which is advertised, announced or
6666 38maintained for the express or implied purpose of providing care incident to old age to four or
6767 39more persons who are ambulatory and who need supervision.
6868 40 “Transfer of facility operations”, a transfer of the operations of a currently operating
6969 41long-term care facility from the current licensee of the long-term care facility to a potential
7070 42transferee, pending licensure, pursuant to a written “transfer of operations” agreement.
7171 43 To each applicant it deems suitable and responsible to establish or maintain and operate a
7272 44long-term care facility and which meets all other requirements for long-term care facility
7373 45licensure, the department shall issue for a term of two years, and shall renew for like terms, a
7474 46license, subject to the restrictions set forth in this section or revocation by it for cause; provided,
7575 47however, that each convalescent or nursing home and each intermediate care facility for persons
7676 48with an intellectual disability shall be inspected at least once a year.
7777 49 No license shall be issued to establish or maintain an intermediate care facility for
7878 50persons with an intellectual disability, unless there is a determination by the department that
7979 51there is a need for such facility at the designated location; provided, however, that in the case of 4 of 13
8080 52a facility previously licensed as an intermediate care facility for persons with an intellectual
8181 53disability in which there is a change in ownership, no such determination shall be required and in
8282 54the case of a facility previously licensed as an intermediate care facility for persons with an
8383 55intellectual disability in which there is a change in location, such determination shall be limited
8484 56to consideration of the suitability of the new location.
8585 57 In the case of the transfer of facility operations of a long-term care facility, a potential
8686 58transferee shall submit a “notice of intent to acquire” to the department at least 90 days prior to
8787 59the proposed transfer date. The notice of intent to acquire shall be on a form supplied by the
8888 60department and shall be deemed complete upon submission of all information which the
8989 61department requires on the notice of intent form and is reasonably necessary to carry out the
9090 62purposes of this section.
9191 63 No license shall be issued to an applicant and no potential transferee may submit an
9292 64application for a license unless the department makes a determination that the applicant or
9393 65potential transferee is responsible and suitable for licensure.
9494 66 For purposes of this section, the department's determination of responsibility and
9595 67suitability shall be limited to the following factors:
9696 68 (i) the criminal or civil history of the applicant or the potential transferee, including their
9797 69respective owners, which shall include certification by the department of criminal justice
9898 70information services and which may include a review of any pending or settled litigation or other
9999 71court proceedings in the commonwealth and in other states; 5 of 13
100100 72 (ii) the financial capacity of the applicant or potential transferee, including their
101101 73respective owners, to establish or maintain and operate a long-term care facility, which may
102102 74include any recorded liens and unpaid fees or taxes in the commonwealth and in other states;
103103 75 (iii) the history of the applicant or potential transferee, including their respective owners,
104104 76in providing long-term care in the commonwealth, measured by compliance with applicable
105105 77statutes and regulations governing the operation of long-term care facilities; and
106106 78 (iv) the history of the applicant or potential transferee, including their respective owners,
107107 79in providing long-term care in states other than the commonwealth, if any, measured by
108108 80compliance with the applicable statutes and regulations governing the operation of long term
109109 81care facilities in said states.
110110 82 With respect to potential transferees, upon determination by the department that a
111111 83potential transferee is responsible and suitable for licensure, the potential transferee may file an
112112 84application for a license. In the case of a potential transfer of facility operations, the filing of an
113113 85application for a license shall have the effect of a license until the department takes final action
114114 86on such application.
115115 87 If the department determines that an applicant or potential transferee is not suitable and
116116 88responsible, the department's determination shall take effect on the date of the department's
117117 89notice. In such cases, the applicant or potential transferee shall upon the filing of a written
118118 90request with the department be afforded an adjudicatory hearing pursuant to chapter 30A. During
119119 91the pendency of such appeal, the applicant or potential transferee shall not operate the facility as
120120 92a licensee, or, without prior approval of the department, manage such facility. 6 of 13
121121 93 Each applicant, potential transferee and licensee shall keep all information provided to
122122 94the department current. Promptly after the applicant, potential transferee or licensee becomes
123123 95aware of any change to information related to information it provided or is required to provide to
124124 96the department, such person shall submit to the department written notice of the changes.
125125 97Changes include, but are not limited to, changes in financial status, such as filing for bankruptcy,
126126 98any default under a lending agreement or lease, the appointment of a receiver or the recording of
127127 99any lien.
128128 100 An applicant, potential transferee or licensee and their respective owners shall be in
129129 101compliance with all applicable federal, state and local laws, rules and regulations.
130130 102 Prior to engaging a company to manage the long-term care facility a licensee shall notify
131131 103the department in writing of the name of and provide contact information for the proposed
132132 104management company and any other information on the management company and its personnel
133133 105that may be reasonably requested by the department. Any such engagement must be pursuant to a
134134 106written agreement between the licensee and the management company. Such written agreement
135135 107shall include a requirement that the management company and its personnel shall comply with
136136 108all applicable federal, state and local laws, regulations and rules. Promptly after the effective date
137137 109of any such agreement, the licensee shall provide to the department a copy of the valid, fully
138138 110executed agreement.
139139 111 With respect to a license issued as a result of a transfer of operations, the department
140140 112shall not reduce the number of beds that were on the license held by the former licensee, unless
141141 113the public safety requires it. 7 of 13
142142 114 No license shall be issued hereunder unless there shall be first submitted to the
143143 115department by the authorities in charge of the long-term care facility with respect to each
144144 116building occupied by residents (1) a certificate of inspection of the egresses, the means of
145145 117preventing the spread of fire and apparatus for extinguishing fire, issued by an inspector of the
146146 118office of public safety and inspections of the division of professional licensure; provided,
147147 119however, that with respect to convalescent or nursing homes only, the division of health care
148148 120quality of the department of public health shall have sole authority to inspect for and issue such
149149 121certificate, and (2) a certificate of inspection issued by the head of the local fire department
150150 122certifying compliance with the local ordinances.
151151 123 Any applicant who is aggrieved, on the basis of a written disapproval of a certificate of
152152 124inspection by the head of the local fire department or by the office of public safety and
153153 125inspections of the division of professional licensure, may, within 30 days from such disapproval,
154154 126appeal in writing to the division of professional licensure. With respect to certificates of
155155 127inspection that the division of health care quality of the department of public health has the sole
156156 128authority to issue, an applicant may, within 30 days from disapproval of a certificate of
157157 129inspection, appeal in writing to the department of public health only. Failure to either approve or
158158 130disapprove within 30 days, after a written request by an applicant, shall be deemed a disapproval.
159159 131 If the division of professional licensure or, where applicable, the department of public
160160 132health approves the issuance of a certificate of inspection, it shall forthwith be issued by the
161161 133agency that failed to approve. If said department disapproves, the applicant may appeal
162162 134therefrom to the superior court. Failure of said department to either approve or disapprove the
163163 135issuance of a certificate of inspection within 30 days after receipt of an appeal shall be deemed a 8 of 13
164164 136disapproval. No license shall be issued by the department until issuance of an approved
165165 137certificate of inspection, as required in this section.
166166 138 Nothing in this section or in section 72 or 73 of this chapter shall be construed to revoke,
167167 139supersede or otherwise affect any laws, ordinances, by-laws, rules or regulations relating to
168168 140building, zoning, registration or maintenance of a long-term care facility.
169169 141 For cause, the department may limit, restrict, suspend or revoke the license. Grounds for
170170 142cause on which the department may take such action shall include failure or inability to provide
171171 143adequate care to residents, failure to maintain substantial compliance with applicable statutes,
172172 144rules and regulations or lack of financial capacity to maintain and operate a long-term care
173173 145facility. Limits or restrictions include requiring a facility to limit new admissions. Suspension of
174174 146a license includes suspending the license during a pending license revocation action or
175175 147suspending the license to permit the licensee a period of time, not shorter than 60 days, to wind
176176 148down operations, and discharge and transfer, if applicable, all residents.
177177 149 The department may, when public necessity and convenience require, or to prevent undue
178178 150hardship to an applicant or licensee, under such rules and regulations as it may adopt, grant a
179179 151temporary provisional or probationary license under this section; provided, however, that no such
180180 152license shall be for a term exceeding one year.
181181 153 With respect to an order to limit, restrict or suspend a license, within 7 days of receipt of
182182 154the written order, the licensee may file a written request with the department for administrative
183183 155reconsideration of the order or any portion thereof. Failure of the department to grant, deny or
184184 156otherwise act upon any such written request within seven days of its receipt of such a request
185185 157shall be deemed a denial of the request. 9 of 13
186186 158 Upon a written request by a licensee who is aggrieved by the revocation of a license or by
187187 159an applicant who is aggrieved by the refusal of the department to renew a license, the
188188 160commissioner and the council shall hold a public hearing, after due notice, and thereafter they
189189 161may modify, affirm or reverse the action of the department; provided, however, that the
190190 162department may not refuse to renew and may not revoke the license of a long-term care facility
191191 163until after a hearing before a hearings officer, and any such applicant so aggrieved shall have all
192192 164the rights provided in chapter 30A with respect to adjudicatory proceedings.
193193 165 In no case shall the revocation of such a license take effect in less than 30 days after
194194 166written notification by the department to the licensee.
195195 167 The fee for a license to establish or maintain or operate a long-term care facility shall be
196196 168determined annually by the commissioner of administration under the provision of section 3B of
197197 169chapter 7, and the license shall not be transferable or assignable and shall be issued only for the
198198 170premises named in the application.
199199 171 Nursing institutions licensed by the department of mental health, or the department of
200200 172developmental services for persons with intellectual disabilities shall not be licensed or inspected
201201 173by the department of public health. The inspections herein provided shall be in addition to any
202202 174other inspections required by law.
203203 175 In the case of new construction, or major addition, alteration, or repair with respect to any
204204 176facility subject to this section, preliminary architectural plans and specifications and final
205205 177architectural plans and specifications shall be submitted to a qualified person designated by the
206206 178commissioner. Written approval of the final architectural plans and specifications shall be
207207 179obtained from said person prior to said new construction, or major addition, alteration, or repair. 10 of 13
208208 180 Notwithstanding any of the foregoing provisions of this section, no license to establish or
209209 181maintain and operate a long-term care facility shall be issued by the department unless the
210210 182applicant for such license submits to the department a certificate that each building to be
211211 183occupied by patients of such convalescent or nursing home or skilled nursing facility meets the
212212 184construction standards of the state building code, and is of at least type 1–B fireproof
213213 185construction; provided, however, that this paragraph shall not apply in the instance of a transfer
214214 186of facility operations of a convalescent or nursing home or skilled nursing facility whose license
215215 187had not been revoked as of the time of such transfer; and provided, further, that a public medical
216216 188institution as defined under section 2 of chapter 118E, which meets the construction standards as
217217 189defined herein, shall not be denied a license as a nursing home under this section because it was
218218 190not of new construction and designed for the purpose of operating a convalescent or nursing
219219 191home or skilled nursing facility at the time of application for a license to operate a nursing home.
220220 192An intermediate care facility for persons with an intellectual disability shall be required to meet
221221 193the construction standards established for such facilities by Title XIX of the Social Security Act
222222 194(P.L. 89–97) and any regulations promulgated pursuant thereto, and by regulations promulgated
223223 195by the department.
224224 196 Every applicant for a license and every potential transferee shall provide on or with its
225225 197application or notice of intent to acquire a sworn statement of the names and addresses of any
226226 198person who owns or has an ownership or control interest in the applicant or potential transferee
227227 199or in the real property on which the long-term care facility is located. As used herein, the phrase
228228 200''person with an ownership or control interest'' shall have the definition set forth in 42 USC Sec.
229229 2011320a–3 of the Social Security Act and in regulations promulgated hereunder by the department. 11 of 13
230230 202 The department shall notify the secretary of elder affairs forthwith of the pendency of any
231231 203proceeding of any public hearing or of any action to be taken under this section relating to any
232232 204convalescent or nursing home, rest home, infirmary maintained in a town, or charitable home for
233233 205the aged. The department shall notify the commissioner of mental health forthwith of the
234234 206pendency of any proceeding, public hearing or of any action to be taken under this section
235235 207relating to any intermediate care facility for persons with an intellectual disability.
236236 208 SECTION 2. Said chapter 111, as so appearing, is hereby further amended by striking out
237237 209section 72E and inserting in place thereof the following section:-
238238 210 Section 72E. The department shall, after every inspection by its agent made under
239239 211authority of section 72 of this chapter, give the licensee of the inspected long-term care facility
240240 212notice in writing of every violation of the applicable statutes, rules and regulations of the
241241 213department found upon said inspection. With respect to the date by which the licensee shall
242242 214remedy or correct each violation, hereinafter the “correct by date”, the department in such notice
243243 215shall specify a reasonable time, not more than 60 days after receipt thereof, by which time the
244244 216licensee shall remedy or correct each violation cited therein or, in the case of any violation which
245245 217in the opinion of the department is not reasonably capable of correction within 60 days, the
246246 218department shall require only that the licensee submit a written plan for the timely correction of
247247 219the violation in a reasonable manner. The department may modify any nonconforming plan upon
248248 220notice in writing to the licensee.
249249 221 Absent good faith efforts to remedy or correct, failure to remedy or correct a cited
250250 222violation by the agreed upon correct by date shall be cause to pursue or impose the remedies or
251251 223sanctions available to it under sections 71 through 73 of this chapter unless the licensee shall 12 of 13
252252 224demonstrate to the satisfaction of the department or the court, as the case may be, that such
253253 225failure was not due to any neglect of its duty and occurred despite an attempt in good faith to
254254 226make correction by the agreed upon correct by date. The department may pursue or impose any
255255 227remedy or sanction or combination of remedies or sanctions available to it under said sections 71
256256 228through 73. An aggrieved licensee may pursue the remedies available to it under such sections.
257257 229 In addition, if the licensee fails to maintain substantial compliance with applicable
258258 230statutes, rules and regulations, in addition to imposing any of the other remedies or sanctions
259259 231available to it, the department may require the licensee to engage, at the licensee’s own expense,
260260 232a temporary manager to assist the licensee with bringing the facility into substantial compliance
261261 233and with sustaining such compliance. Such manager is subject to the department’s approval, such
262262 234approval not to be unreasonably withheld. Any such engagement of a temporary manager would
263263 235be for a period of not less than 6 months and shall be pursuant to a written agreement between
264264 236the licensee and the management company. A copy of such agreement shall be provided by the
265265 237licensee to the department promptly after execution.
266266 238 Nothing in this section shall be construed to prohibit the department from enforcing a
267267 239statute, rule or regulation, administratively or in court, without first affording formal opportunity
268268 240to make correction under this section, where, in the opinion of the department, the violation of
269269 241such statute, rule or regulation jeopardizes the health or safety of residents or the public or
270270 242seriously limits the capacity of a licensee to provide adequate care, or where the violation of such
271271 243statute, rule or regulation is the second such violation occurring during a period of 12 full
272272 244months.”; and 13 of 13
273273 245 SECTION 3. Said chapter 111, as so appearing, is hereby further amended by striking out
274274 246section 73 and inserting in place thereof the following section:-
275275 247 Section 73. Whoever advertises, announces, establishes or maintains, or is concerned in
276276 248establishing or maintaining a long-term care facility, or is engaged in any such business, without
277277 249a license granted under section 71 of this chapter, or whoever being licensed under said section
278278 250violates any provision of sections 71 to 73, inclusive, shall for a first offense be punished by a
279279 251fine of not more than $1,000, and for a subsequent offense by a fine of not more than $2,000 or
280280 252by imprisonment for not more than two years.
281281 253 Notwithstanding the above paragraph, whoever violates any rule or regulation made
282282 254pursuant to sections 71, 71C, 72, or 72C shall be punished by such fine not to exceed $23,989,
283283 255unless the department determines a higher amount is permitted pursuant to 42 CFR 488.438. If
284284 256any person violates any such rule or regulation by allowing a condition to exist which may be
285285 257corrected or remedied, the department shall order him, in writing, to correct or remedy such
286286 258condition, and if such person fails or refuses to comply with such order by the agreed upon
287287 259correct by date as defined in section 72E, each day after the agreed upon correct by date during
288288 260which such failure or refusal to comply continues shall constitute a separate offense. Fines
289289 261collected pursuant to this paragraph shall be deposited into the Long-Term Care Facility Quality
290290 262Improvement Fund established pursuant to section 2UUUU of chapter 29 and shall not revert to
291291 263the General Fund. A failure to pay the fine imposed by this section shall be a violation of this
292292 264section.