PROVINCETOWN — Last month, a long-term care reform bill that had failed to pass during the legislature’s normal session, which ended July 31, became law after the state House and Senate approved it during “informal session” in August. Gov. Maura Healey signed it in September.
The bill had been caught up in a logjam at the end of the formal session. Only bills that receive unanimous support of legislators present can pass during informal session.
The law increases the state’s power to regulate the nursing home industry, with an eye toward owners who repeatedly fail to provide safe conditions for the residents of their nursing homes. It also attempts to improve staff retention by creating a “career ladder” for nursing-home workers, establishes an “LGBTQI bill of rights” for nursing-home residents, and limits how the state pursues the assets of people who die while on MassHealth.
“It’s been 20 years since this set of issues has been dealt with by the legislature,” said state Sen. Patricia Jehlen, Senate chair of the Joint Committee on Elder Affairs. She cited the work of the advocacy organization Dignity Alliance Massachusetts as contributing to the legislation’s passage.
Paul Lanzikos, co-founder of Dignity Alliance, said the new law was “the most significant law affecting long-term care enacted in over four decades.”
Fines and Limits
Seventy-eight percent of the state’s nursing homes were owned by for-profit operators in 2020, according to CDC data, and private equity companies have purchased many nursing homes in recent years.
Under the new law, the state Dept. of Public Health is required to inspect all 345 nursing homes in the state every 9 to 15 months.
The law also mandates more transparency in ownership. Anyone with more than a 5-percent stake in a facility will have to disclose criminal and civil court histories, bankruptcy filings, receiverships, and liens and file statements of financial capacity. Owners or ownership groups that do not meet suitability standards set out in the legislation can have their licenses revoked, suspended, or restricted.
The DPH can also appoint a temporary manager at the owner’s expense to bring a failing nursing home into compliance.
The law also increases the financial penalties for deficiencies in nursing homes for the first time in decades. Before, the maximum fine the state could impose was $50 per day — the same as the minimum fine for a traffic ticket, according to Jehlen’s office. The law authorizes DPH to increase its fines tenfold.
The state attorney general will also be able to seek higher civil penalties, including fines of up to $250,000 if a resident dies at a nursing home.
Even with these increases, there are doubts about whether fines will be an effective deterrent. “I think the fines are probably not enough,” Jehlen told the Independent.
As previously reported by the Independent, the for-profit owner of Provincetown’s Seashore Point, Pointe Group Care, has cut staffing there below state-mandated levels. According to federal data, Pointe Group Care has been fined over $1.2 million for deficiencies across its 14 facilities in Massachusetts and Florida. Four of their facilities have received “abuse icons” from the Centers for Medicare and Medicaid Services, meaning the facility was found to have a deficiency that harmed a resident in the past year or could have harmed a resident in each of the past two years.
Sen. Jehlen said that the legislature must adequately fund DPH next year so that the department can effectively use its new oversight powers.
The DPH will almost certainly seek more funding in the governor’s next budget request in January, said state Sen. Julian Cyr, but regulatory programs can have a hard time winning attention in budget battles. “Particularly when you have such robust advocacy for numerous other very worthwhile programs,” Cyr said, regulatory efforts at state agencies can lose out when budgets are cut.
Other Reforms
Another provision of the new law limits how the state government pursues the estates of people who die while on MassHealth, the state’s version of Medicaid, which covers two million people, or just under 30 percent of the state’s residents.
According to a February report by the Blue Cross Blue Shield of Massachusetts Foundation, Massachusetts was exceeding the minimum federal requirements for Medicaid asset recovery and in 2019 had reclaimed more money from its citizens’ estates than any other state in the country. In practice, this meant that the adult children of people who received health care through MassHealth could receive large bills for their parents’ care after their death.
The law now limits the state to pursuing only what is federally required.
The legislation also included an “LGBTQI bill of rights” for long-term care facilities, which specifically bans discrimination against LGBTQ residents and requires staff to undergo training on subjects such as caring for older adults with HIV.
The “career ladder” for nursing home staff includes grants to help train new certified nursing assistants and grants to help existing workers become licensed practical nurses.
Another provision of the law streamlines the process for “Small House Nursing Homes,” which serve 14 or fewer residents in more “homelike environments,” to be permitted by the state, according to Jehlen’s office.
According to a press release from the state Senate, there is a “growing body of evidence demonstrating superior clinical outcomes” at small house nursing homes.
