Bill Summary – FastDemocracy

FILED ON: 11/15/2023
      HOUSE . . . . . . . . . . . . . . . No. 4193
     House bill No. 4178, as amended and passed to be engrossed by the House. November 15, 2023.
                                The Commonwealth of Massachusetts
                                                      _______________
                                    In the One Hundred and Ninety-Third General Court
                                                       (2023-2024)
                                                      _______________
     An Act to improve quality and oversight of long-term care.
              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
     of the same, as follows:
          SECTION 1. Chapter 10 of the General Laws is hereby amended by inserting after
  section 35SSS the following section:-
          SECTION 35TTT. (a) There shall be established and set up on the books of the
  commonwealth a separate fund known as the Long-Term Care Workforce and Capital Fund. The
  fund shall be administered by the secretary of health and human services in consultation with the
 advisory committee established pursuant to subsection (c). The secretary may use amounts
 credited to the fund to pay for: (i) the administration of the capital loan program pursuant to
 subsection (e); and (ii) the workforce training programs pursuant to subsection (d), including the:
 (A) program costs, tuition, books and fees related to the cost of education and training for
 participants in the programs; (B) costs related to obtaining an applicable license, including, but
 not limited to, examination and licensing fees; (C) stipends for program participants; and (D)
 stipends for childcare and transportation for program participants.
        (b) The fund shall consist of: (i) any revenues or other financing sources directed to the
 fund by appropriation; (ii) 50 per cent of any amount recovered by the commonwealth and
 credited thereto in connection with civil actions brought pursuant to section 72K of chapter 111;
 (iii) bond revenues or other money authorized by the general court and specifically designated to
 be credited to the fund; (iv) any income derived from the investment of amounts credited to the
 fund or repayment of loans from the fund; (v) funds from public or private sources, including,
 but not limited to, gifts, federal or private grants, donations, rebates and settlements received by
 the commonwealth that are specifically designated to be credited to the fund; and (vi) all other
 amounts credited or transferred into the fund from any other source. The executive office of
 health and human services shall seek to maximize fund revenues through federal money,
 matching funds and grants. Any unexpended balances in the fund at the end of the fiscal year
 shall not revert to the General Fund and shall be available for expenditures in subsequent fiscal
 years. Any fiscal year-end balance in the fund shall be excluded from the calculation of the
 consolidated net surplus pursuant to section 5C of chapter 29. The fund shall not be subject to
 appropriation.
        (c) There shall be an advisory committee that shall consist of the following members: the
 assistant secretary for MassHealth, or their designee, who shall serve as chair; the secretary of
 labor and workforce development, or their designee; the commissioner of public health, or their
 designee; and 2 persons to be appointed by the governor, 1 of whom shall be a representative of
 the Massachusetts Senior Care Association, Inc. and 1 of whom shall be a representative of
 Local 1199 Service Employees International Union.
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         (d) The secretary of health and human services, in consultation with the advisory
 committee, shall establish, and the executive office of health and human services shall
 administer, workforce training grant programs to:
         (i) train new certified nurses’ aides to work in licensed long-term care facilities;
         (ii) advance the skills of certified nurses’ aides, home health aides, homemakers and
 other entry-level workers in long-term care facilities to improve quality of care and improve
 worker access to and participation in a career pathway to become a licensed practical nurse; and
         (iii) provide long-term care supervisory and leadership training, which shall consist of
 evidence-based supervisory training for the purposes of improving staff satisfaction, retaining
 staff and reducing staff turnover.
         (e) The secretary of health and human services, in consultation with the advisory
 committee, shall establish a no interest or forgivable capital loan program for skilled nursing
 facilities to:
         (i) support the development of specialized care units, including, but not limited to: (A)
 infectious disease isolation; (B) dementia special care; (C) degenerative neurological units; (D)
 geriatric psychiatry; (E) traumatic brain injury; (F) in-house dialysis treatment; (G) behavioral
 health and substance use disorder; and (H) bariatric patient care;
         (ii) enable facilities to offset the costs of pay-go capital; and
         (iii) support innovative projects, including, but not limited to: (A) converting of sections
 within skilled nursing facilities into affordable housing, veterans housing or assisted living units
 to accommodate individual needs of residents; (B) converting multi-bed rooms to single
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 occupancy to enhance privacy and dignity; and (C) establishing voluntary skilled nursing facility
 reconfigurations, including, but not limited to, providing financial incentives to reduce capacity
 and balance supply and demand based on regional needs.
        (f) Annually, not later than December 1, the secretary of health and human services shall
 report on the activities of the fund to the clerks of the house of representatives and the senate and
 to the house and senate committees on ways and means. The report shall include: (i) an
 accounting of expenditures made from the fund with a description of the authorized purpose of
 each expenditure; (ii) an accounting of amounts credited to the fund; and (iii) any unexpended
 balance remaining in the fund.
        SECTION 2. Chapter 111 of the General Laws is hereby amended by striking out section
 71 and inserting in place thereof the following section:-
        Section 71. (a) For purposes of this section and sections 71A½ to 73, inclusive, the
 following words shall, unless the context clearly requires otherwise, have the following
 meanings:
        “Applicant”, any person who applies to the department for a license to establish or
 maintain and operate a long-term care facility.
        “Charitable home for the aged”, any institution, however named, conducted for charitable
 purposes and maintained for the purpose of providing a retirement home for elderly persons and
 which may provide nursing care within the home for its residents.
        “Cohorting”, the practice of grouping patients who: (i) are colonized or infected with the
 same organism in order to confine their care to 1 area and prevent contact with other patients; or
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 (ii) are not colonized or infected with the same organism in order to confine their care to 1 area
 and prevent contact with other patients.
        “Convalescent or nursing home”, any institution, however named, including a skilled
 nursing facility, whether conducted for profit or not for profit, which is advertised, announced or
 maintained for the express or implied purpose of caring for 4 or more persons admitted thereto
 for the purpose of nursing or convalescent care.
        “Correct by date”, the date by which a licensee shall remedy or correct any violation
 discovered after an inspection by the department pursuant to section 72E.
        “Endemic level”, the usual level of a given disease in a geographic area.
        “Intermediate care facility for persons with an intellectual disability”, any institution,
 however named, that: (i) is conducted for charity or not for profit; (ii) is advertised, announced or
 maintained for the purpose of providing rehabilitative services and active treatment to persons
 with an intellectual disability or persons with related conditions, as defined in regulations
 promulgated pursuant to Title XIX of the federal Social Security Act, Public Law 89-97; (iii) is
 not both owned and operated by a state agency; and (iv) makes application to the department for
 a license for the purpose of participating in the federal program established by said Title XIX.
        “Isolating”, the process of separating persons colonized or infected with a communicable
 disease from those who are not colonized or infected with a communicable disease.
        “License”, an initial or renewal license issued by the department and which permits the
 licensee to establish or maintain and operate a long-term care facility.
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         “Licensee”, a person permitted to establish or maintain and operate a long-term care
 facility through a license.
         “Long-term care facility”, a charitable home for the aged, convalescent or nursing home,
 skilled nursing facility, intermediate care facility for persons with an intellectual disability or rest
 home.
         “Long-term care services”, include: (i) long-term resident, nursing, convalescent or
 rehabilitative care; (ii) supervision and care incident to old age for ambulatory persons; or (iii)
 retirement home care for elderly persons.
         “Management company”, an organization engaged by a licensee to manage the operations
 at a long-term care facility.
         “Outbreak”, any unusual occurrence of disease or any disease above endemic levels.
         “Owner”, any person with an ownership interest of not less than 5 per cent, or with a
 controlling interest in an applicant, licensee, potential transferee or the real property on which a
 long-term care facility is located.
         “Person”, an individual, trust, partnership, association, corporation or other form of
 business association.
         “Potential transferee”, a person who submits to the department a notice of intent to
 acquire the facility operations of a currently operating long-term care facility.
         “Religious and recreational activities”, any religious, social or recreational activity that is
 consistent with the resident’s preferences and choosing, regardless of whether the activity is
 coordinated, offered, provided or sponsored by facility staff or by an outside activities provider.
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        “Resident”, an individual who resides in a long-term care facility.
        “Rest home”, any institution, however named, which is advertised, announced or
 maintained for the express or implied purpose of providing care incident to old age to 4 or more
 persons who are ambulatory and who do not require a specific level of nursing care or other
 medically related services on a routine basis.
        “Skilled nursing facility”, any institution, however named, whether conducted for profit
 or not for profit, which is certified by the federal Centers for Medicare and Medicaid Services for
 the purpose of providing continuous skilled nursing care and rehabilitative services for 4 or more
 persons.
        “Small house nursing home”, 1 or more units of a convalescent or nursing home designed
 and modeled as a residential home including a central living space, kitchen, dining area, living
 area and outdoor space.
        “Transfer of facility operations”, a transfer of the operations of a long-term care facility
 from a licensee to a potential transferee.
        (b)(1) The department shall issue for a term of 2 years, and shall renew for like terms, a
 license, subject to the restrictions in this section, to each applicant the department deems
 responsible and suitable to establish or maintain and operate a long-term care facility and which
 meets all other requirements for long-term care facility licensure pursuant to this chapter. A
 license issued pursuant to this section shall not be transferable or assignable and shall be issued
 only for the premises named in the application.
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        (2) Each long-term care facility shall be subject to not less than 1 periodic, resident-
 centered inspection per year for the purpose of gathering information about the quality of
 services furnished in the long-term care facility to determine compliance with applicable state
 and federal requirements.
        (3) The department may, when public necessity and convenience require, or to prevent
 undue hardship to an applicant or licensee, pursuant to such rules and regulations as it may
 adopt, grant a temporary provisional or probationary license pursuant to this section; provided,
 however, that no such license shall be for a term exceeding 1 year.
        (4) The fee for a license to establish or maintain and operate a long-term care facility
 shall be determined annually by the secretary of administration and finance pursuant to section
 3B of chapter 7.
        (c) The department shall not issue a license to establish or maintain an intermediate care
 facility for persons with an intellectual disability unless the department determines that there is a
 need for such a facility at the designated location; provided, however, that in the case of a facility
 previously licensed as an intermediate care facility for persons with an intellectual disability in
 which there is a change in ownership or transfer of operations, no such determination shall be
 required; and provided further, that in the case of a facility previously licensed as an intermediate
 care facility for persons with an intellectual disability in which there is a change in location, such
 determination shall be limited to consideration of the suitability of the new location.
        (d)(1) In the case of the transfer of facility operations of a long-term care facility, a
 potential transferee shall submit a notice of intent to acquire to the department not less than 90
 days prior to the proposed transfer date. The notice of intent to acquire shall be on a form
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 supplied by the department and shall be deemed complete upon submission of all information the
 department requires on said form. The potential transferee shall be deemed responsible and
 suitable upon the expiration of the 90-day period, or upon the expiration of said period as
 extended, if the department fails to notify said potential transferee in writing of its decision
 within the 90-day period or within the expiration of the extension period, whichever is
 applicable.
         (2) A potential transferee shall, concurrently with the submission of an intent to acquire,
 provide notice to the current staff of the facility, and to any labor organization that represents the
 facility’s staff at the time the notice of intent to acquire is submitted, of the potential transferee’s
 plans to retain or not retain the facility staff and to recognize and bargain with any labor
 organizations currently representing the facility staff.
         (3) Upon determination by the department that a potential transferee is responsible and
 suitable for licensure, the potential transferee may file an application for a license. In the case of
 a potential transfer of facility operations, the filing of an application for a license shall have the
 effect of a temporary provisional or probationary license until the department takes final action
 on such application.
         (4) Upon an approved transfer of facility operations, the department shall not reduce the
 number of beds it originally approved in granting a license, unless a reduction in the number of
 beds is in the interest of public health, welfare or safety.
         (e) Every applicant for a license shall provide on or with its application, and every
 potential transferee shall provide on or with its notice of intent to acquire, a sworn statement of
 the names and addresses of any owner of the applicant or the potential transferee.
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         (f) No license shall be issued to an applicant or potential transferee prior to a
 determination by the department that the applicant or potential transferee is responsible and
 suitable pursuant to subsection (g).
         (g) For the purposes of this section, the department’s determination of responsibility and
 suitability shall include, but shall not be limited to, the following factors:
         (1) the criminal history of the applicant or the potential transferee, including its respective
 owners and management companies, and, to the extent possible, the civil litigation history of the
 applicant or potential transferee, including its respective owners and contracted management
 companies, including litigation related to the operation of a long-term care facility, such as
 quality of care, safety of residents or staff, employment and labor issues, fraud, unfair or
 deceptive business practices and landlord-tenant issues; provided, that such criminal and civil
 litigation history may include pending or other court proceedings in the commonwealth and in
 any other state or federal jurisdiction. Any information related to criminal or civil litigation
 obtained by the department pursuant to this section shall be con