Advocacy Facilities Home and Community Based News Testimony

Proposal and Responses: 101 CMR 206.00: Standard Payments to Nursing Facilities

EOHHS (Executive Office of Health and Human Services) held a public hearing on October 20, 2023 to hear comments on proposed amendments to 101 CMR 206.00 implement Fiscal Year 2024 (FY24) budget requirements.

Both Dignity Alliance Massachusetts and Pete Tiernan of HCBS Solutions responded. DignityMA and HCBS agree with each other’s testimony. The DignityMA comments are first, followed by HCBS.

Summary of Proposed Amendments to 101 CMR 206.00: Standard Payments to Nursing Facilities

Read the full text of the proposed amendments: 101 CMR 206.00: STANDARD PAYMENTS TO NURSING FACILITIES (pdf).

The proposed amendments to 101 CMR 206.00 implement Fiscal Year 2024 (FY24) budget requirements. The following adjustments are being proposed to the rates, consistent with the FY24 budget:

  1. applying a cost adjustment factor of 21.94% to 2019 costs;
  2. increasing the cap on capital payments from $37.60 to $50.00;
  3. updating rates to reflect the migration from the Management Minute Questionnaire (MMQ) Assessment to be a Patient Driven Payment Model (PDPM), which is based on the Minimum Data Set (MDS) Assessment and are consistent with amendments to 130 CMR 456.000: Long Term Care Services; and
  4. expanding the number of facilities eligible for the Substance Use Disorder rate add- on and creating a special add-on during the induction period.

The proposed amendments also amend certain aspects of existing rate adjustments, add-ons, and flat rates. Additionally, the proposed amendments remove the descriptions of supplemental payment programs that have ended, such as certain supplemental payments related to COVID-19, the Prospective Annualized SFY 2023 Monthly Supplemental Payment, and the Patient Transitions Program Supplemental Payments.

The regulation will go into effect as an emergency on October 1, 2023. The annual fiscal impact of these amendments for the MassHealth Fee for Service Nursing Facility program is estimated to be $113,931,000.

DignityMA Response to Changes to Standard Payments to Nursing Facilities

Read the full, submitted DignityMA Testimony on payments proposal (pdf).

Dignity Alliance Massachusetts is a statewide, non-profit coalition of individuals and organizations advocating for the interests of older adults, people with disabilities, and their caregivers. We take this opportunity to provide testimony relative to the proposed amendments to 101 CMR 206.00 implement Fiscal Year 2024 (FY24) budget requirements.

Dignity Alliance Massachusetts is concerned with several policy matters that the proposed amendments appear to be at serious variance:

  1. Skilled Nursing Facilities, or Nursing Homes as they are commonly known, are designed to provide care and services for older adults and people with disabilities, including dementia and Alzheimer’s Disease. They are not intended to be used as “housing for the homeless” even if they meet basic criteria for admission to a nursing home. Such a plan creates a new “book of business” for nursing homes in an effort to financially prop them up. Nursing homes are always searching for extra sources of revenue; however, we are unaware of any research regarding whether most homeless individuals want to live in the restrictive setting of a nursing home. It should be noted that, according to AARP, 88% of older adults do not want to live in a nursing home!
  2. One of the criteria for a May 31, 2019, Determination of Need (DON) Request Draft1 for licensing of additional beds was “Reduces the risk of homelessness by improving housing stability”. What was the outcome of this DON request? While this predates the formation of Dignity Alliance, many of the Alliance’s members submitted testimony at that time to halt such licensing. Housing for homeless individuals requires a special skillset and other considerations necessary to provide safe and individualized support to this population.
  3. At the outset of the Covid-19 Pandemic, the Commonwealth adopted a policy to move nursing home residents to establish facilities specifically for the care of persons with Covid. Upon further consideration, the Baker Administration abandoned this plan for housing infected patients together and arbitrarily relocating frail elder nursing home residents. This was a clear instance of poor public health policy and an abridgement of nursing home residents’ rights and dignity. We are concerned that mixing homeless individuals, even if they are close to current nursing home residents in age, with frail, older adults may not benefit either population. Furthermore, we would strongly oppose any efforts to move nursing home residents in order to make rooms available for homeless individuals. Will homeless people admitted to a nursing home receive treatment for addiction and / or mental illness? Will cultural needs and preferences be respected? Will a Determination of Need process apply to those nursing homes seeking to house homeless to receive a supplemental reimbursement?
  4. Nursing homes have continued to claim that they are unable to hire or retain staff. Understaffed nursing homes pose significant burdens for staff under current working conditions. Will adding homeless adults as residents increase the demands on overworked, underpaid staff?
  5. Dignity Alliance believes that nursing home residents should have access to single rooms for privacy and to prevent the spread of infections. Department of Public Health regulations limit nursing homes to two residents per room, yet a number of nursing homes, fighting this regulation, prefer to provide rooms housing three and four residents. Will homeless people be housed with more than two residents per room?
  6. If the new regulations are intended to free up space in acute care hospitals by transferring patients to nursing home care, Dignity Alliance believes that hospital patients being discharged for rehabilitation should be provided appropriate counseling and assistance with the option of returning to a home or other community setting with services such as the “hospital at home programs” offered by several major Massachusetts hospitals. An unnecessary stay in a nursing home should be avoided and minimized to the greatest extent possible. Experience demonstrates that once an older adult has been admitted to a nursing home bed, the probability for their transition to home decreases by the day. Aging Services Access Points (ASAPs) and Independent Living Centers (ILCs) have demonstrated success in facilitating diversion from a nursing home placement. Case managers have noted that promoting transition from a nursing home is exponentially more complicated.
  7. Under the proposed new payment regulations, nursing homes remain eligible for a member-based Homelessness Rate Add-on of $200 per clinically eligible MassHealth resident if that individual has experienced homelessness for at least six months directly prior to admission, is homeless or at risk of homelessness, and has a behavioral health condition or has recently experienced a sudden or unexpected loss of primary residence necessitating an emergency admission. However, this rate add-on remains available only for the first 180 days of the member’s nursing facility stay. Are there any MassHealth/EOHHS plans to assist in securing community-based housing for these individuals and/or expectations for the nursing homes themselves upon the six-month expiration of the Homelessness Rate Add-On? Are nursing home operators expected to assist in securing non-institutional housing for these homeless individuals either during the rate add-on period and/or when their rate add-on expires after 180 days? Nursing homes which receive Add-on payments should be required to submit quarterly reports containing at least this information:
    • Number of residents admitted;
    • Age of each resident;
    • Living condition prior to admission;
    • Referral sources;
    • Number of discharges;
    • Length of stay for each resident; and
    • Discharge disposition.
  8. Dignity Alliance strongly believes that enhanced payments to nursing homes should also be made available to fund home and community-based supports and services. Whenever possible and appropriate for the individual, residents of the Commonwealth deserve the dignity of care in home and community locations rather than in a nursing home. This principle is based on the outcome of Olmstead v. L.C. In this case, the U. S. Supreme Court held that “unjustified isolation of individuals with disabilities” through “undue institutionalization,” constituted discrimination based on disability in violation of Title II of the Americans with Disabilities Act. Therefore, the proposed regulations must recognize the responsibility of the Commonwealth to respect the option of receiving care in their community.
  9. Nursing homes have had little oversight for at least the last decade. What agency of state government will provide oversight to the homeless who might be placed in a nursing home? The Department of Public Health appears to lack sufficient staff or commitment to monitor nursing home operations as currently mandated by law. If these regulations will reward nursing homes with supplemental payments without providing more funds to DPH for oversight and active enforcement, the resulting mix of types of residents will make life untenable for nursing home residents, homeless individuals, and care staff alike.
  10. Dignity Alliance also strongly espouses that no nursing facilities receive an increase in standard payments if they are not in compliance with Massachusetts Department of Public Heal. nursing home staffing regulations and all other relevant regulations as provided in 105 CMR 150.00: Standards for long-term care facilities. Otherwise, it would be irresponsible or illegal, for the Commonwealth to increase reimbursements to nursing facilities that are providing unsafe, poor-quality care. Surely, the Legislature could not have intended to provide these additional taxpayer dollars as a reward for poor care!
  11. We especially want to point out that facilities that are determined to be providing insufficient care should not be rewarded with supplemental payments and assume more responsibility.
  12. We also strongly believe that any supplemental payments must be in full compliance with the Direct Care Cost Quotient which requires that 75% of revenues received by a nursing home shall be utilized for direct care staff in compliance with state regulations – Administrative Bulletin 21-02 101 CMR 206.00: Standard Payments to Nursing Facilities.
  13. What augmented services and extraordinary expenses justify the expenditure of $200 per day per resident? These should be detailed and publicly identified.
  14. In the interests of transparency and accountability, Dignity Alliance believes that any payments pursuant to these regulations must be made public at the time of publication of the final regulation, and must be included as a separate line item the respective nursing facilities cost reports submitted to the Center for Health Information and Analysis (CHIA) and that those reports include the names of all owners, nursing home administrators, and medical directors. We also advocate that the submitted reports be comprehensively analyzed and reports issued publicly in a timely manner.
  15. Finally, Dignity Alliance Massachusetts endorses the testimony submitted by Peter J. Tiernan, Principal, HCBS Services, LLC.

Pete Tiernan and HCBS Response to Proposed Changes to Standard Payments to Nursing Facilities

Read the full submitted HCBS Testimony on payments proposal(pdf).

Courtesy Copies Transmitted to the Joint Committee on Elder Affairs, Certain Advocacy Agencies Often Referred to as “the Elders Stakeholder Coalition”, Dignity Alliance Massachusetts, and Other Parties with interests in ensuring Massachusetts Builds Upon the Tradition of Being a “Community First” State

  • The Healey-Driscoll Administration is Strongly Encouraged to Ensure an Ongoing Commitment to a “Community First” Long-Term Care Policy. It is Necessary to Conduct a Post-Pandemic Review of All Long-Term Services and Supports (LTSS) Governance, with Particular Emphasis on Policy Interventions Developed in Response to the Pandemic.
    • Certain recent policy interventions reflected in the Skilled Nursing Facility rate regulations suggest to have the unintended effect of incentivizing institutional settings for the delivery of post-acute and long-term care services.
    • It is understood that such interventions are well-intended and for the purpose of relieving hospital bed and emergency shelter service constraints. However, it is essential that LTSS Policymakers vigilantly maintain the North Star objective of delivering high quality services in the least restrictive environment possible. A nursing facility bed should be utilized because it is appropriate and the setting of choice, not simply because it is available.
    • Any policy that promotes the utilization of a nursing facility bed as setting of care should be mirrored with a policy of comparable financial commitment to home and community-based care settings, including but not limited to:
      • enhanced use of clustering supports to help marshal Home Care Aide workforce to areas with a density of MassHealth Members, and
      • enhanced use of Assisted Living Residences and Rest Homes via Group Adult Foster Care (“GAFC”) rate reform and related use of add-on payments.
    • Significant concern is raised with the operational design of the Medicaid Transitional Add-On established in 101 CMR 206.10 . A $200 supplemental add-on for the first 60 days of transitioning from a MassHealth-funded acute or non-acute hospital stay should be accompanied with significant procedures to guard against a nursing facility retaining a resident for at least 60 days when a transition to the community is possible. Furthermore, substantially similar payment policies for HCBS should be extended to the scenario of promoting the transition of a MassHealth member from an institutional setting (including nursing facilities) to a home and community-based setting.
  • The Healey-Driscoll Administration Should Recommit the Executive Branch to the “Community First Law” and the Requirement to Provide Pre-Admission Counseling Prior to Nursing Facility Admission. An implementation approach should include a phase one goal of achieving full compliance for MassHealth members. Phase two should seek to implement private pay requirements.
  • Furthermore, and Most Relevant to this Promulgation Process for SNF Payment Policy, Sound Public Administration Techniques Will Serve to Harmonize the Statutory Requirement of Pre-Admission Counseling with Eligibility for a SNF to Realize Enhanced Compensation. For certain supplemental add-ons, no payment should be issued until it is demonstrated that the MassHealth member received the pre-admission counseling required by M. G. L. C. 118E, §9. Suggested add-on types are: (i) Temporary Resident Add-on; (ii)Medicaid Transitional Add-on; or (iii) Homelessness Rate Add-on.
    • When reviewing SNF Add-on payments, it is important to consider the add-on amounts in context of the MassHealth routine daily cost for a SNF bed day. As demonstrated by recent 1915(c) renewal submissions, MassHealth is of the general planning perspective that an average SNF bed day will cost the MassHealth program $258.715. This means in the instances where MassHealth is indicating a $200 add-on payment, it is willing to pay a 77% premium to nursing facilities to help address its policy priorities. For every 30 days of supplemental payments, MassHealth is extending $6,000 in enhanced payments per member with no commensurate performance requirements imposed on the SNF.
      • Within the HCBS service arena, $6,000 in monthly supplemental payment towards a community-dwelling member is an extraordinary level of resource which could go a long way towards linking a highly skilled Home Care Aide to supporting a service plan need (to be clear, I am advocating a comparable HCBS resource commitment to be made with appropriate use-of-fund requirements).
    • If MassHealth is willing to provide such a premium to nursing facilities, then certainly it should be willing to make the necessary commitment to fully stand-up pre-admission counseling infrastructure in the manner intended and required by statute. The historical approach to meeting this statutory mandate is best characterized as a reluctant bureaucracy cobbling together funds necessary to demonstrate adherence. The suggested model approach is for EOHHS Executive Leadership to enthusiastically embrace the benefit of a robust public policy instrument that proactively facilitates the diversion from avoidable nursing home placement.
  • Furthermore, MassHealth should be willing to implement HCBS interventions that improve the proposition to divert these MassHealth Members from a nursing facility placement to a community setting.
    • The home care aide clustering supports that are inherent in the MFP-CL waiver service known as “Independent Living Supports” should be extended to the Frail Elder Waiver. Furthermore, the service should be accorded $200 per day add-on payments consistent with SNF add-on payments (perhaps capped at 5 -10 consumers at any designated site). Installing this service in the Frail Elder Waiver will substantially improve the proposition for Home Care Aide Providers to marshal workforce towards fulfilling all active MassHealth service plans at a site designated for clustering (e.g. a public housing complex, or a neighborhood with a significant volume of service plans for Home Care Aide services).
    • Those familiar with my recent testimony submissions are aware I am an ardent supporter of implementing Assisted Living as a 1915 (c) service for the purpose of addressing the economic segregation that Massachusetts public policy has fostered in the housing option of Assisted Living. Setting this overarching concern aside, the following comments are offered as short-term and readily achievable solutions within the existing array of the MassHealth LTSS. MassHealth must conduct a reasonableness test on the GAFC service rate and hold it up against the $258.71 SNF daily cost in addition to the potential supplemental payments resulting from Add-on provisions.
    • Both Assisted Living Residences and Rest Homes need to be better established on the MassHealth LTSS setting of care continuum. Even if they are not able to support the highly complex cases that MassHealth is solving for with these add-on payments, about 15-20% of routine MassHealth SNF utilization suggests that it can be migrated to a less restrictive environment. Successfully migrating this MassHealth structural overreliance on nursing facility services will free up SNF beds, which in turn will help ensure that Skilled Nursing Facilities remain mission focused on supporting MassHealth Members with the highest complexity of LTSS needs.

Closing: Thank you for your facilitation of this important public process and your consideration of my remarks. Feel free to contact me at 617-784-5113, or at with any questions or concerns regarding this submission.

Pete Tiernan is a subject matter expert in public administration, with particular emphasis on the financing and operations of programs for publicly sponsored consumers receiving home and community-based services and supports. During his twenty-year career in Massachusetts state service, he held several senior level positions with delegated agency-head responsibility. He had the privilege to perform as Chief of Staff and then as CFO for the Executive Office of Elder Affairs, serving 4 Secretaries and 2 Acting Secretaries across the span of 3 Administrations. Since leaving state service, Pete provides technical assistance to other state governments, trade organizations, managed care organizations, and providerentities. HCBS Solutions, LLC is not being compensated for this testimony