Statement of Senator Patricia Jehlen, Co-Chair, Joint Committee on Elder Affairs, regarding the passage of H 5033, the long-term care reform bill.
This statement was made during the Senate session held on August 29, 2024.
Sen. Jehlen of Somerville was recognized to speak remotely. Around a minute of silence passed before her voice came over the audio system. Speaking over the phone, Sen. Jehlen said, Thank you, Mr. President. I wish I were there. It wouldn’t be so complicated. I’m so happy and grateful to be here virtually to take up this important and comprehensive bill. It incorporates several bills we worked on for many years. It will save lives and improve lives of residents and workers in long-term care facilities, provide more options for assisted living, and improve financing options for older people living with disabilities. It’s such a complicated bill because it now includes several other bills. Most people don’t know about all the provisions so I’ll explain their importance, unfortunately at length. We don’t all agree on everything, but we have been able to reach an agreement that will help so many people. Thanks are also due to the many people who have called, written and testified about the conditions they’ve seen in too many nursing homes. And finally, this would not have happened without the press covering stories of neglect and abuse. Many people were shocked by the groundbreaking Globe report starting in 2010 about the overuse of antipsychotic drugs for care and the expansion of for-profit chains. Most recently, there’s been a lot of regional coverage about homes in South Hadley and Northampton. And the Provincetown Independent has done deep reporting on poor care as well as finances of the area’s for-profit nursing home, the only one on the Cape within 30 miles. There has been less coverage of the people in the homes that provide essential and excellent care. But anyone who has ever had a relative in a nursing home knows how vital good care is, and how crucial and often underappreciated and under-compensated individual caregivers are and I’ll always remember the CNA who helped make my father’s life more meaningful in his last year. We’ve all been focused on the disaster of Steward hospitals. The trend toward for-profit companies gaining a larger and larger share of nursing homes, home care agencies and hospices is equally troubling and needs attention. They too often extract the value from these important organizations by cutting staff, not paying bills, selling the buildings to related REITs, and paying exorbitant fees and rents and then closing or being closed. In just 13 years, Massachusetts lost 23 percent of its nursing home beds, even while the population of older adults is growing fast. The task force made recommendations to ensure the survival of essential quality homes with regional availability, while ensuring that those that closed in the future were those with low census and low quality. We issued the report, unfortunately in 2020 just before the pandemic, and then all of us focused on the immediate crisis during which up to one quarter of nursing facility residents died. The pandemic revealed starkly that nursing homes were unprepared to stop the spread of disease. Even nursing homes with high ratings lost many residents and workers. The legislature has supported additional funding with some accountability on spending, and the Healey and Baker administrations have worked to keep essential nursing homes afloat while trying to ensure that those that enclosed were low quality and less regionally important. Since the task force, 100 percent of the 31 closures — 31 closures in the last three and a half years — 100 percent of those closures have had one or two stars, the lowest ratings. But there’s a lot more that’s needed. This bill will increase capital funding for nursing homes, and will require updating the base rate every two years. It will also expand the tools that DPH has by allowing more oversight and particularly the inclusion of suitability standards. Those standards will allow DPH to limit, restrict, suspend, or revoke a license, or deny a license or a license transfer. They can also appoint temporary facility managers for troubled facilities. It increases the civil penalties the attorney general can seek by 10 times. Instead of $25,000 for a death, it will go to $250,000. Also the fines that DPH can levy for noncompliance with regulations. Right now, the maximum fine is $50 a day, the same as the minimum fine for a speeding ticket. I want to recognize that gentleman from New Bedford who has pushed to increase fines and to require bed holds for many years. Finally, it also requires regular inspections and outbreak response plans, and sets standards for special care units. So, adequate and targeted payment, plus more accountability, is a major goal and what has been most focused on by the press. But this bill also incorporates an assisted living bill, which will make permanent the temporary allowance for assisted living residences to offer basic health services. Assisted living residences are certified by Elder Affairs, not the Public Health Department, and they’re generally considered non-medical facilities. They all have nurses on staff, but they can’t do simple things like administering eye drops or insulin injections. So when someone needed those things, things most people can do for themselves or their family members, they had to hire another nurse or get family members to come in and help them, or they had to move to a nursing home at more expense, as well as the disruption of moving. During the pandemic, there has been a temporary allowance for assisted living nurses to provide those services. It expires next March. There have been no cases of bad results in those assisted livings that offer those services. This bill continues that option for assisted living residences to offer those services. It also requires more disclosure of ownership, and provides for fines in case of failure to follow regulations. Another bill we’ve worked on for years, incorporated in this one, requires regulations to create small house nursing homes which serve 14 or fewer residents in more home-like environments and more safety from disease and more dignity. Yet another bill incorporated here is the LGBTQ bill of rights for nursing home residents, banning discrimination and requiring training of staff. And this came out of the work of the LGBTQ aging commission. Another important bill incorporated here addresses special needs pooled trusts. People with disabilities under 65 can transfer their resources to a trust to reduce their assets so they can qualify for MassHealth. That money can be used for needs like home care, home adaptations, personal items, assisted living expenses. For 30 years, until this spring, MassHealth allowed seniors with disabilities to establish and use pooled trusts, and we need to restore that option. It’s important to notice that any unexpended money from these trusts is sent back to MassHealth when the person dies. There’s a new requirement in the bill that insurers must approve or deny prior authorization for transfer of patients from hospitals to nursing homes within one business day. This will prevent the common experience of patients being stuck in hospitals waiting for insurance approval. Finally, the bill limits estate recovery from Medicaid and common health recipients to the limits the federal government requires. This will prevent family members from losing their homes where they had cared for their disabled relatives, and prevent generational impoverishment. The bill also creates task forces and studies to inform our next steps, that include task forces to examine issues like hospital throughput, long term care eligibility, rest homes, CCRCs, and further LR reforms. We need to strengthen all the pieces of the entire continuum, from home care to adult day health to rest homes to assisted living to nursing homes, and we need to continue to address the workforce crisis. This is incredibly important, comprehensive and long-needed legislation. But there’s much that remains. I hope the House passes, and we take up, the home care licensure bill. We need to make permanent the provision for holding beds for nursing home residents who leave for medical care, instead of making it depend on annual budgets. We need to increase the personal needs allowance, which has not been raised for over 30 years. We need to make sure DPH has the resources and the will to use the tools we are giving them to ensure quality care. And finally, it’s important to restore the Elder Affairs secretary to the Cabinet. The Elder Affairs secretary is now the only secretary not in the Cabinet, and that role needs to have the recognition and the responsibility to bring the intersecting needs of older adults into all discussions. Today is a wonderful and long-needed step forward, and I want to thank everyone involved and hope and expect it will be enacted today.