Sen. DiDomenico hails transformational long-term care law

New law increases oversight, allows for basic health services to be offered at assisted living residences and boosts workforce for care of older adults

Special to The Advocate

On September 6, 2024, Governor Maura Healey signed sweeping reforms to the long-term care and assisted living sectors into law, taking a powerful step towards delivering high-quality and safe care for older residents across the Commonwealth. State Senator Sal DiDomenico hailed the signing of An Act to improve quality and oversight of long-term care, which will strengthen the Commonwealth’s oversight of nursing homes, provide critical anti-discrimination protections for LGBTQ+ nursing home residents and permanently allow assisted living residences to offer basic health services.

“Our Commonwealth’s older residents are invaluable members of our community, and state government will be working to improve the quality of life for people living in assisted living facilities,” said Senator DiDomenico. “I was proud to support this legislative package, and I am thrilled that we are moving our state forward in helping ensure our long-term care and assisted living facilities are safe and providing quality care throughout the Commonwealth. We are all going to need some form of care when we get older, and it is our obligation in government to guarantee everyone has the right to age with dignity. I want to thank Governor Healey, Senate President Spilka, Chair Rodrigues, and Senator Jehlen for prioritizing this critical legislation.”

The new law, Chapter 197 of the Acts of 2024, includes the following:

• LGBTQ+ inclusion: requires each long-term care facility to provide staff training on the rights and care of LGBTQ+ older adults and older adults living with HIV; forbids any long-term care facility and long-term care facility staff from discriminating based in whole or in part on a person’s sexual orientation, gender identity, gender expression, intersex status or HIV status, whether through the denial of admission, medical or non-medical care, access to restrooms or through room assignments.
• Improving the workforce: The law’s Long-Term Care Workforce and Capital Fund supports several new initiatives to recruit and retain a dedicated long-term care workforce, including grants to develop new Certified Nursing Assistants, career ladder grants for direct care workers to train to become Licensed Practical Nurses and leadership and supervisory training for nursing home leaders. The fund also establishes a no interest or forgivable capital loan program to offset certain capital costs, including the development of specialized care units, and to fund other capital improvements. Civil penalties secured by the Attorney General against nursing home facilities for abuse or neglect will be deposited into the fund to support these initiatives.
• Estates: limits MassHealth estate recovery to only federally mandated recovery and removes estate recovery for residents receiving assistance under CommonHealth.
• Medication aides: requires the Department of Public Health (DPH), in consultation with the Board of Registration in Nursing, to create a program for the certification, training and oversight of certified medication aides who shall be authorized to administer medications to residents of long-term care facilities.
• Access to services: makes it easier for assisted living residences (ALRs) to offer basic health services, such as helping a resident administer drops, manage their oxygen or take a home diagnostic test. The legislation requires ALRs to create service plans that demonstrate a residence has the necessary procedures in place, such as staff training and policies, to ensure safe and effective delivery of basic health services.
• Ensuring quality care: enhances oversight and compliance of ALRs by lowering the threshold for ownership interest disclosure from 25 per cent to five per cent. Under the new law, applicants are required to demonstrate that any prior multifamily housing, ALRs or health care facilities in which they had an interest met all the licensure or certification criteria. If any of these facilities were subject to enforcement action, the applicant must provide evidence that they corrected these deficiencies without revocation of licensure or certification.

This law also gives the Executive Office of Elder Affairs (EOEA) new powers to penalize noncompliance by allowing EOEA to fine ALRs up to $500 per day. This is in addition to existing EOEA powers to modify, suspend or revoke a certification, or deny a recertification. Finally, the law adds whistleblower protections for staff and residents who report anything happening at an ALR that they reasonably believe is a threat to the health or safety of staff or residents. Further, the law authorizes the Attorney General to file a civil action against a person who commits abuse, mistreatment or neglect of a patient or resident; misappropriates patient or resident property and/or recklessly permits or causes another to commit abuse, mistreatment or neglect of a patient or resident or misappropriate patient or resident property.

• Requires DPH to inspect each long-term care facility annually to assess quality of services and compliance; requires DPH to review the civil litigation history, in addition to the criminal history, of the long-term care facility applicants, including any litigation related to quality of care, patient safety, labor issues or deceptive business practices. The law requires DPH to review the financial capacity of an applicant and its history in providing long-term care in Massachusetts and other states. It requires applicants to notify DPH if it is undergoing financial distress, such as filing for bankruptcy, defaulting on a lending agreement or undergoing receivership.

The law allows DPH to limit, restrict or revoke a long-term care facility license for cause, such as substantial or sustained failure to provide adequate care, substantial or sustained failure to comply with laws or regulations or lack of financial capacity to operate a facility. It also gives DPH the power to appoint a temporary manager if a long-term care facility owner fails to maintain substantial or sustained compliance with laws and regulations. This manager would be brought on for at least three months, at the facility owner’s expense, to bring the facility into compliance.

• Small house nursing homes: Some evidence has demonstrated superior clinical outcomes in addition to higher resident and staff satisfaction levels at these locations. The law streamlines the process for small house nursing homes to be licensed in the Commonwealth.
• Outbreak response planning, enhanced training, and financial performance: The law 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.

The law also 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. DPH is also required 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. This legislation also directs 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.

• Uniform prior authorization forms: The law requires the Division of Insurance to develop and implement uniform prior authorization forms for admissions from acute care hospitals to post-acute care facilities.
• Two-year prior authorization pilot: requires that all payers, including MassHealth, 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 nonemergency transportation between health care facilities, once authorization has been granted, that authorization must remain valid for at least seven days.
• Establishes Hospital Throughput 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 its eligibility requirements 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.

• Requires the Health Policy Commission 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.