On Thursday, the Senate will debate a much-needed long-term care reform and oversight bill, S.2889 — An Act relative to long-term care and assisted living. You can read the bill here. (It advanced out of Ways and Means on Monday and amendments must be filed this afternoon by 3 p.m.)
This is timely given the situation at Highview Nursing Home in our district. I’ve visited Highview twice in the last two weeks to walk through the facility and meet with staff and officials from Athena Health, which owns and operates Highview. And I’ve had several meetings with state officials, pressing them to hold Athena accountable. This bill will give the state more tools to do just that.
Similarly, the Attorney General just moved three facilities owned by BluePoint Healthcare into receivership, and I am working with DPH to closely monitor another BluePoint owned facility, Quabbin Valley Healthcare in Athol.
What is clear is that Massachusetts must strengthen its oversight of nursing homes and other long-term care facilities. We need more tools to protect and support residents in these facilities, to ensure they receive consistent high-quality care, and to ensure the organizations managing long-term care facilities are accountable for the care they provide to residents.
The proposed legislation:
- makes comprehensive reforms to protect residents by improving oversight and standards in Massachusetts for assisted living residences (ALRs) and long-term care facilities;
- ensures that aging residents have access to high-quality care, delivered by qualified staff;
- strengthens oversight and creates provisions to ensure that facilities do not sacrifice quality of care because of financial difficulties;
- protects LGBTQ+ residents; and,
- mandates outbreak response planning at long-term care facilities.
Read more about the policy provisions included in this legislation at the end of this email.
Building off of the provisions included in the base bill, I filed three amendments to address key issues impacting those using long-term care services that were brought to my attention by constituents:
Restrict MassHealth estate recovery
MassHealth, the state’s Medicaid program, demands repayment after death from the estates or families of low-income people who received Medicaid health care services after age 55. Over 90 percent of these repayments to MassHealth come from the forced sale of the family home.
My amendment restricts MassHealth’s estate recovery program to only federally required recoveries and exempts CommonHealth members and personal care attendant (PCA) services from recovery.
Expand access to community-based care for seniors and people with disabilities
Providing care to people in their homes and communities reduces strain on nursing homes and allows people to receive care where they are most comfortable. But current law makes seniors and people with disabilities ineligible for home care if their income goes just a penny above the income limit, a policy often called the “cliff effect.”
My amendment allows eligible people to receive MassHealth home and community-based care even if their income is over the program income limit, if they pay a premium equal to their income above the limit.
Spouses as caregivers
Current state policy penalizes seniors and people with disabilities who wish to employ their spouse as their caregiver.
My amendment reverses that policy and directs MassHealth to recognize and compensate spouses as caregivers if requested — just as other relatives are already permitted to serve as paid caregivers.
More about An Act relative to long-term care and assisted living
Assisted Living Basic Health Services
Assisted Living Residence (ALR) Changes
The bill codifies and creates a regulatory structure for ‘basic health services,’ which are simple health care services such as helping a resident administer drops, manage their oxygen, or do a home diagnostic test. Basic health services were allowed at ALRs during the COVID emergency, and this bill makes them permanent. It also creates a regulatory framework to ensure ALRs have the appropriate staffing and arrangements to safely provide these services.
Certification and Enforcement Changes
The bill stipulates that ALRs must first be certified to offer basic health services and that staff must consult with the resident’s doctor or nurse when developing the plan to provide basic health services to that resident. ALR service plans must detail how their operational structure will ensure the safe and effective use of basic health services, through staff qualifications and training and policies and procedures, to ensure they have adequate supplies needed for the safe administration of medications and services. Changes to services would have to be reported to the Executive Office of Elder Affairs (EOEA).
Disclosure Requirements for Ownership
Currently, when an ALR applies for or renews its certification, they must disclose the details of each officer, director, trustee, and limited partner or shareholder with at least 25 per cent interest; this legislation changes that threshold to five per cent. It requires that applicants demonstrate that prior multifamily housing, ALR, 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 have corrected these deficiencies without revocation of licensure or certification.
Non-Compliance
This bill gives EOEA new powers to penalize non-compliance by allowing them 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.
Consumer Protection, Transparency, and Whistleblower Protections
The bill makes operating an ALR without certification a consumer protection violation. The bill also 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.
Long-Term Care
Suitability Review and Monitoring of Facilities
The bill adds a requirement for the Department of Public Health (DPH) to inspect each long-term care facility every nine to 15 months to assess quality of services and compliance. It also adds the requirement that, when there is a transfer of operations at a long-term care facility, notice is provided to staff and labor organizations representing the staff.
Further, the bill adds a requirement for DPH to review any person or management company with an ownership interest of at least five per cent, or with a controlling interest in the entity applying for ownership or in the property. It 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.
Monitoring Financial Capacity
This bill 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.
Small House Nursing Homes
The bill directs DPH to develop regulations for small house nursing homes—a newer model of smaller long-term care facilities that aim to create a house-like environment.
Outbreak Response Plans
The bill requires long-term care facilities to submit outbreak response plans to DPH with clear protocols for the isolation of residents, lab testing, visitor screening, preventing spread from staff, and the notification of residents, family, and staff in the event of a contagious disease outbreak.
LGBTQ+ Bill of Rights
The bill prohibits long-term care facilities from discriminating against residents based on LGBTQ+ identity or HIV status, whether through the denial of admission, medical or non-medical care, or access to restrooms, or through room assignments. It also requires staff training on preserving LGBTQ+ rights and care.
Strengthening DPH Enforcement
This legislation 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; and lack of financial capacity to operate a facility.
DPH Enforcement Powers and Penalties
The bill 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.
It also increases the penalties for those who misappropriate patient property or cause the abuse, mistreatment, or neglect of residents. It increases several penalties on long-term care facilities for civil offenses and for non-compliance, by two, five, and ten times.
Special Needs Pooled Trusts
The bill allows individuals aged 65 or older to transfer resources to a special needs pooled trust—which is for persons with disabilities who have modest means—without counting against their MassHealth eligibility.
MassHealth prior authorization from acute to post-acute care
The bill directs the Division of Insurance (DOI) to create a uniform prior authorization form for patients to be admitted from an acute care hospital to a nursing home, rehabilitation center, home health agency, or other post-acute care facility. It requires prior authorization approval or denial by the next business day after receiving all necessary information or waives prior authorization if the next day is not a business day and the facility is able to accept the patient.
Frail Elder Waiver
The bill directs the Executive Office of Health and Human Services (EOHHS) to report on the availability of and potential cost savings of a federal Medicaid waiver to allow people at risk of entering a nursing home to live in a certified assisted living residence.
