MASSACHUSETTS HOUSE PASSES LEGISLATION TO IMPROVE QUALITY AND OVERSIGHT OF LONG-TERM CARE SECTOR

Bill is the first post-pandemic comprehensive long-term care reform package

NOVEMBER 20, 2023

Last week, Representative Bill Driscoll Jr. (D-Milton) joined his colleagues in the Massachusetts House of Representatives to unanimously pass legislation that takes a comprehensive approach towards reforming the long-term care industry by supporting and expanding the workforce, enhancing oversight of facilities, and ensuring greater access, all while prioritizing quality of care.

Adopted by the House, and included in the bill was an amendment filed by Driscoll, titled Studying Expanded Reimbursement for Hospital at Home and Mobile Integrated Health Programs. This amendment requires examination for opportunity to expand coverage and reimbursement for services by Mobile Integrated Health Programs and the Centers for Medicare and Medicaid Services Acute Hospital Care at Home Program.

“I thank leadership, Chairman Stanley, Vice Chair Lipper-Garabedian, Chairman Lawn and my other esteemed House colleagues for the development and passage of this comprehensive bill supporting the workforce of those who care for some of our most vulnerable residents. I am especially thrilled by the inclusion of my proposed amendment,” said Driscoll. “The numerous provisions included in this legislation make fundamental improvements to our nursing and long-term care facilities and workforce strategy. Our seniors and residents who need long-term care deserve our utmost care and protection, and this bill will alleviate current challenges to strengthen these systems and ensure quality standards of care for all.”

“The nursing home sector has long faced workforce and financial challenges that have only been exacerbated by the pandemic. Addressing persistent challenges within this important sector will not only improve the quality of care that residents receive, it will increase capacity and help acute care hospitals more efficiently discharge patients to the appropriate post-acute care settings,” said House Speaker Ronald J. Mariano (D-Quincy). “Building off of key investments in the industry in recent budgets, this comprehensive legislation takes the necessary steps to ensure that the Commonwealth’s nursing homes, and the patients that they care for, are supported. I want to thank Chairman Stanley and Chairman Lawn for their hard work on this issue, as well as all my colleagues in the House for prioritizing this critical legislation.”

This legislation responds to several of the recommendations made by the 2020 Nursing Facility Task Force report by:

Providing the Department of Public Health (DPH) with additional tools to monitor and take punitive action against facilities including new abilities to limit, restrict, suspend or revoke a license for cause and appoint temporary managers;
Strengthening DPH’s licensure suitability standards to include a more comprehensive review of the background and legal record of applicants and expanding the scope of review to include any entity with at least 5 percent ownership interest in a nursing facility; and
Creating new initiatives to support and grow the workforce such workforce training grants to develop new Certified Nursing Assistants (CNAs), career ladder program grants, and leadership and supervisory training.

The bill also addresses workforce challenges facing long-term care facilities by authorizing direct care workers, including CNAs, to obtain a certification to administer non-narcotic medications to long-term care facility residents under the supervision of a licensed nurse or physician. The training curriculum and standards for certified medication aides will be established by the Department of Public Health, in consultation with the Board of Registration in Nursing, and will require at least 60 hours of training, and will help long-term care facilities to satisfy proposed new federal staffing requirements.

"We are proud to introduce House Bill 4178, 'An Act to improve quality and oversight of long-term care,' which stands as a comprehensive step towards enhancing the standards and care within the long-term care industry,” said Representative Thomas M. Stanley (D-Waltham), House chairman of the Joint Committee on Elder Affairs. “Building upon past successes and allocations, including significant funding for caregiver shortages and nursing home rate increases, this bill marks a pivotal step in the ongoing enhancement of long-term care in the Commonwealth. It is our collective effort to ensure the highest standards of care and access for all individuals in need of long-term care services."

“This bill affirms the Houses’ commitment, under the leadership of Speaker Mariano, to the protection and care of its most vulnerable residents,” said Representative John J. Lawn, Jr. (D-Watertown), House Chair of the Joint Committee on Health Care Financing. “I commend Chair Stanley and my House colleagues for their work to strengthen the long-term care industry and grow its workforce in the Commonwealth. Its streamlining of the prior authorization process makes sure patients can access the right care at the right time in the right setting.”

Major provisions of the bill include:

Long-Term Care Workforce and Capital Fund

Establishes the Long-Term Care Workforce and Capital Fund to be administered by the Secretary of the Health and Human Services (HHS), in consultation with an advisory committee consisting of various members of the administration along with representatives from Mass Senior Care and SEIU 1199
Directs the HHS Secretary to establish workforce training programs including; new CNA training; career ladder training for CNAs, home health aides, homemakers to become LPNs; and supervisory and leadership training
Directs the HHS Secretary to establish a no interest or forgivable capital loan program to off-set certain capital costs and to fund other capital improvements
Requires that half of the civil penalties secured by the Attorney General against nursing home facilities for abuse or neglect to be deposited into the fund

Licensure and Suitability

Updates definition of “owner” and expands scope of oversight into management functions by including management companies
Sets a two-year term for licenses and requires annual inspections and allows for one-year provisional licenses when public necessity requires
Requires a 90-day "notice of intent to acquire" to be processed in the event of a transfer
Determinations of responsibility and suitability for applicants, potential transferees, or management companies shall include their criminal and civil litigation history, financial capacity, and history providing quality long-term care both in and outside the Commonwealth
Grants DPH the authority to pursue alternative administrative actions besides license termination

Small House Nursing Homes

Requires DPH to promulgate regulations for the development of small house nursing homes, which are facilities designed as a residential home that includes a central living space with a kitchen, dining and living area and outdoor space
Newly constructed small homes will be limited to no more than 14 individuals per unit with resident rooms accommodating only one person, with exceptions to accommodate a spouse, partner, family member, or friend

Violations and Remedies

Sets out rules for notice of violations of regulations and requires correction by no more than 60 days. If an issue is not rectifiable within 60 days, a written plan for correction is required
Absent corrective action, the department may seek remedies and/or sanctions, including the appointment of a temporary manager approved by the state, allowing a third party to properly address chronic issues and improve the overall conditions in facilities and the quality-of-care residents receive

Penalties

Increases penalties for abuse and neglect which can be sought by the Attorney General by 400 percent to $25,000 if no bodily injury results; $50,000 if bodily injury results; $100,000 if sexual assault or serious bodily injury results; and $250,000 if death results
Extends the statute of limitations to four years from two years
Doubles the current fines for operating a long-term facility without a license to $1,000 for a first offense and $2,000 for a second offense or two years imprisonment
Increases the penalty for violating various rules and regulations from $50 to $500

Outbreak Response Planning, Enhanced Training, and Financial Performance

Requires long-term care facilities to develop individualized outbreak response plans to contain the spread of disease and ensure consistent communication with DPH, residents, families and staff
These plans must include written policies to meet staffing, training, and facility demands during an infectious disease outbreak and requires plans to be reviewed and resubmitted to DPH annually
Directs DPH to establish and implement training and education programs on topics such as infection prevention and control, resident care plans, and staff safety programs
Directs DPH to promulgate regulations necessary to enable residents of a facility to engage in in-person, face-to-face, or verbal/auditory-based contact, communications, and religious and recreational activities
Directs the DPH in coordination with other agencies and departments, to examine cost trends and financial performance across the nursing industry that will help regulators and policymakers untangle the complicated ownership structure of nursing homes

Guardianship Fees

Authorizes MassHealth applicants or members who cannot make medical decisions for themselves and have no health care agent to retain more of their own income, a maximum of $1,500, in order to pay for the necessary fees associated with appointing a guardian

Rate Setting

Requires MassHealth to set the base year to no more than two years prior to the current rate year for the Medicaid rate determination purposes. The first year this will be effective will be 2025, which will be based on 2023 data
Directs MassHealth to establish skilled nursing facility rate add-on programs for bariatric patient care and one-on-one staffing of at-risk residents particularly those with suicidal ideation or aggressive behavior toward other residents or staff
Grants MassHealth the authority to establish a rate add-on program to encourage the development of the small house nursing home model

Uniform Prior Authorization Forms

Requires the Division of Insurance to develop and implement uniform prior authorization forms for admissions from acute care hospitals to post-acute care facilities

Prior Authorization Pilot (two years)

Requires that all payers, including MassHealth, to approve or deny a request for prior authorization for admissions from acute care hospitals to post-acute care facilities or home health agencies for post-acute care services, by the next business day or to waive prior authorization altogether when a patient can be admitted over the weekend
In the case of prior authorization for non-emergency transportation between health care facilities, once authorization has been granted, that authorization must remain valid for at least seven days

Hospital Throughput Task Force

Establishes a task force to study and propose recommendations to address acute care hospital throughput challenges and the impact of persistent delays in discharging patients from acute to post-acute care settings
The task force will examine hospital discharge planning and case management practices; administrative legal and regulatory barriers to discharge; efforts to increase public awareness of health care proxies; post-acute care capacity constraints; the effectiveness of interagency coordination; and other items

MassHealth Long-Term Care Eligibility

Requires MassHealth to study the cost and feasibility of changes to it eligibility requirements for with the goal of reducing the time applicants spend at acute-care hospitals awaiting long-term care eligibility determinations
The study will consider improvements to the eligibility determination process; establishing a rebuttable presumption of eligibility; guaranteeing payment for long-term care services for up to one year; and expanding the undue hardship waiver criteria

HPC Study of Medicare ACOs

Requires the Health Policy Commission (HPC) to conduct an analysis and issue a report on the impact of Medicare accountable care organizations on the financial viability of long-term care facilities and continued access to services for Medicare patients

The bill passed on Wednesday, November 15th builds on successes achieved through the state budget and American Rescue Plan Act allocation processes including $165 million to help address frontline caregiver shortages in last session’s economic development bill, $115 million in increases to the MassHealth Nursing Home Supplement Rates Line Item in the Fiscal Year 2023 Budget, and $25 million as a no interest, forgivable loan program for capital improvements in the COVID-19 Recovery bill.

Having passed the House of Representatives 158-0, “An Act to improve quality and oversight of long-term care” now goes to the Senate for their consideration.

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