Malden State Reps. join Mass. House in passing bill filed by Rep. Lipper-Garabedian to improve quality and oversight of the long-term care sector

Bill is the first post-pandemic comprehensive skilled nursing facility reform package

Last Wednesday, Malden State Representatives Steve Ultrino (D-Malden), Paul Donato (D-Medford), and Kate Lipper-Garabedian (D-Melrose), joined the Massachusetts House of Representatives in unanimously passing a long-term care bill filed by Representative Lipper-Garabedian, who is House Vice Chair of the Joint Committee on Elder Affairs, and House Chair Representative Thomas Stanley. The legislation takes a comprehensive approach toward 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. 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 its consideration.

“As House Vice Chair of the Joint Committee on Elder Affairs, I was proud to work on this effort in the last legislation session and to file this bill this session with Chair Stanley,” said Representative Lipper-Garabedian, who spoke on the House Chamber floor in support of the bill. “No group endured more loss and hardship during the pandemic than our older adults and, by extension, the workforce and families who care for and about them. This legislation will ensure our older adults are receiving the highest quality of care through increased oversight of long-term facilities, investments in workforce training, expansion of small house nursing homes, and requirements for infection outbreak response plans and anti-social isolation policies. I am grateful to Chair Stanley, Speaker Mariano, and Chairs Michlewitz and Lawn for their leadership and support of this critical legislation.”

“Since even before the COVID-19 pandemic, we have seen the critical challenges facing our states nursing home facilities, residents, and workforce,” said Representative Ultrino. “This bill supplements the recent investments made by the Legislature and alleviates some of the pressures facing the long-term care industry by enhancing oversight at facilities, and expanding the workforce and access to quality care. I am excited to see this bill progress through the legislature thanks to the leadership from Speaker Mariano, Chair Stanley and Chair Lawn.”

“I commend my House colleagues for taking action in addressing the staffing shortages and financial challenges that have burdened long-term care facilities throughout the Commonwealth,” said Representative Donato. “This legislation will work to diversify and expand the workforce within these facilities, all while ensuring the highest quality of care for Massachusetts’ most vulnerable residents.”

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 five percent ownership interest in a nursing facility
• 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 DPH, 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.

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 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 and homemakers to become LPNs; and supervisory and leadership training
• Directs the HHS Secretary to establish a no interest or forgivable capital loan program to offset 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, DPH 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 that 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; plans must 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 who 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 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 nonemergency 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 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

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 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.