Licensure procedure and suitability requirements for long-term care facilities

105 CMR: DEPARTMENT OF PUBLIC HEALTH

105 CMR 153.000: LICENSURE PROCEDURE AND SUITABILITY REQUIREMENTS FOR LONG-TERM CARE FACILITIES

Section

153.001: Purpose and Scope 153.004: Definitions 153.005: Requirement of a License 153.006: Application for a License 153.007: Other Licensing Requirements 153.008: Ownership Interest of Application or Licensee 153.009: Acceptance of Application 153.010: Evaluation of Application 153.011: Updating of Information 153.012: Suitability and Responsibility of Applicant or Licensee 153.013: Grounds for Suspension of License to Operate a Long-term Care Facility 153.014: Grounds for Denial or Revocation of, or Refusal to Renew a License to Operate a Long-term Care Facility 153.015: Grounds for Limiting Admissions 153.017: Resident Notification 153.018: Hearings: Procedure 153.019: Hearings: Scope of Review 153.020: Effect of Determination of Unsuitability and Effect of Refusal to Renew a License, Revocation of a License, and License Denial 153.021: Non-transferability of License 153.022: Transfer of Ownership 153.023: Voluntary Closure 153.024: Penalties 153.026: Name of Facility 153.027: Classification 153.028: Licensed Bed Capacity 153.029: Posting of License, Certificate of Inspection, and Related Documents 153.030: Restrictions 153.031: Special Projects and Waivers 153.032: Right of Entry 153.100: Severability

153.001: Purpose and Scope

(A) The purpose of .000 is to set forth the licensure procedures and suitability requirements for long-term care facilities.

(B) .000 applies to applicants for the licensure of long-term care facilities licensed under M.G.L. c. 111, § 71 in Massachusetts.

153.004: Definitions

Applicant. Any person who applies to the Department for a license to operate a long-term care facility. In the case of an applicant which is not a natural person, Applicant shall also mean any shareholder owning 5% or more; any officer and any director of any corporate applicant; any limited partner owning 5% or more and any general partner of any partnership applicant; any trustees or any trust applicant; any sole proprietor of any applicant which is a sole proprietorship; any mortgagee in possession; and any executor or administrator of any applicant which is an estate. Applicant also means a person filing a Notice of Intent form.

(Mass. Register #1479, 9/30/22)

105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.04: continued

Commissioner. The Commissioner of Public Health or his or her designee.

Department. The Massachusetts Department of Public Health.

Facility. A long-term care facility or unit thereof and units within acute hospitals converted under provisions of St. 1988 c. 23, § 32.

Jeopardy. A situation or condition that the Commissioner has determined presents an imminent threat to the health or safety of residents.

Level I, II, III, and IV Facilities. Have the meaning of Levels of Long-term Care Facilities or Units as defined in 105 CMR 150.001: Definitions.

License. Any license issued by the Department, including a renewal or a provisional license, or subsequent to a transfer of ownership and a determination by the Department that the prospective licensee is responsible and suitable for licensure, or, upon the failure of the Department to notify said prospective licensee in writing of its decision within 90 days or one additional period to be agreed upon by the parties not to exceed 30 days, the filing of an application for a license. This application shall have the effect of a license until the Department takes final action on the application pursuant to M.G.L. c. 111, § 71 and .000.

Licensee. Any person holding a license to operate a long-term care facility. In the case of a licensee which is not a natural person, Licensee shall also mean any shareholder owning 5% or more, any officer and any director of any corporate licensee; any limited partner owning 5% or more and any general partner of a partnership licensee; any trustee of any trust licensee; any sole proprietor of any licensee which is a sole proprietorship; any mortgagee in possession and any executor or administrator of any licensee that is an estate.

Long-term Care Facility. Any institution, whether conducted for charity or profit, that is advertised, announced or maintained for the express or implied purpose of providing four or more individuals admitted thereto with long-term resident, nursing, convalescent or rehabilitative care; supervision and care incident to old age for ambulatory persons; or retirement home care for elderly persons. Long-term care facility shall include convalescent or nursing homes, rest homes, infirmaries maintained in towns and charitable homes for the aged.

Long-term Care Ombudsman. The program established pursuant to M.G.L. c. 19A, § 28.

Notice of Intent Form. A form prescribed by the Department through which an applicant notifies the Department of its intent to acquire a long-term care facility and/or to apply for a license to operate a long-term care facility.

Person. Any natural person, corporation, society, association, partnership or other entity.

Provisional or Probationary License. A license issued for not more than one year to an applicant or facility when public necessity and convenience require, or to prevent undue hardship.

Resident. Any individual receiving care in a facility or the resident's health care agent, if the resident has an activated health care proxy.

Transfer of Ownership. A transfer of a majority interest in the ownership of a long-term care facility. In the case of a corporation, transfer of a majority of the stock thereof. In the case of a partnership, transfer of a majority of the partnership interest. In the case of a trust, change of the trustee, or majority of trustees. A transfer of ownership shall also be deemed to have occurred where foreclosure proceedings have been instituted by a mortgagee in possession. Transfer of Ownership also means any change in the ownership interest or structure of the licensee or the licensee's organization or parent organization(s) that the Commissioner determines to effect a change in control of the operation of the facility.

105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.005: Requirement of a License

No person shall establish or maintain a long-term care facility without first having obtained a license from the Department or submitted an application for a license in accordance with .006, 153.009(B)(2), and 153.022(D).

153.006: Application for a License

(A) Applications for licensure shall be made on forms prescribed by the Department. Application as used in .000 shall include original and renewal applications. Every application shall be signed either by each applicant or by an applicant(s) who certifies that all other applicants have received copies of the application.

(B) In support of an application for an original or renewal license, each applicant shall submit any information required by the Commissioner as part of the application package.

(C) Applications for renewal licenses must be filed on or before the expiration date of the previous license.

(D) An application for an original license shall not be approved until an applicant has been deemed suitable by the Department, or in the case of a transfer of ownership, the applicant has been deemed suitable by the Department or the suitability review period has expired.

(E) An application for a license renewal shall include a sworn statement of the names and addresses of any person with an ownership or control interest in the facility or in the real property occupied and used as the facility. For the purposes of .006(E), “person with an ownership or control interest” shall mean a person who: (1) has a direct or indirect ownership interest of 5% or more in the facility or the organization that holds the license; (2) is the owner of a whole or part interest in any mortgage, deed of trust, note, or other obligation secured (in whole or in part) by the facility or any of the property or assets thereof, which whole or part interest is equal to or exceeds 5% of the total property and assets of the facility or organization that holds the license; (3) is an officer or director of a corporate licensee; or (4) is a partner of a licensee organized as a partnership.

153.007: Other Licensing Requirements

(A) As a prerequisite for a license: (1) Level I, II and III facilities must obtain a certificate of inspection of the egresses, the means of preventing the spread of fire, and the apparatus for extinguishing fire, issued by the Department. (2) Level IV facilities must obtain a certificate of inspection of the egresses, the means of preventing the spread of fire, and the apparatus for extinguishing fire, issued by an inspector of the Office of Public Safety and Inspections. (3) All long-term care facilities must obtain a certificate of inspection, issued by the head of the local fire department, certifying compliance with local ordinances.

(B) No original license shall be issued for a Level I, II or III facility unless the applicant submits a certificate of inspection that each building to be occupied by residents of such facility meets the construction standards of the state building code, and is of at least type 1-B fireproof construction; provided however that this provision shall not apply in the instance of a change of ownership of a facility whose license had not been revoked as of the time of such change of ownership.

(C) Level IV facilities must apply for licensure designation as a Community Support Facility (CSF) if at the time of the effective date of .000, at least 50% of the residents in the facility are Community Support Residents as defined in .001: Definitions. Only those Level IV facilities which have at least 50% Community Support Residents shall be eligible for licensure as a CSF. The application for a license as a CSF shall have the effect of a license until such time as the Department takes action on the application.

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153.07: continued

(D) Resident care facilities and multi-level facilities with Level IV units with Community Support Residents having fewer than 50% of their total residents as Community Support Residents as defined in .000 prior to the effective date of this CSF licensure designation, shall be permitted to retain such residents, provided that these facilities meet staff and service requirements for CSFs adjusted to the facilities' number of Community Support Residents and their needs as set forth in .000.

(E) No facility shall admit any additional Community Support Residents after July 1, 1987 with the exception of those facilities receiving licensure as a CSF under .007(C) except in the following circumstances: (1) facilities granted a waiver pursuant to .031(B); and (2) facilities seeking to readmit a resident who may need CSF services for stabilization following a period of hospitalization for an acute episode of mental illness.

(F) Opportunity for Public Comment. (1) Public Notice. The applicant must publish notice of its intent to establish a long-term care facility. The public notice, which must be submitted to the Department for approval prior to publication, shall accurately describe the proposed facility and meet the following requirements: (a) Publication must be within 21 days following the date on which the applicant received written notice from the Department that its application was substantially complete. (b) The notice must contain the name and address of the proposed long-term care facility; name and address of the proposed licensee, if different; and name and address of the owner or owners. In addition, the written notice must contain the following statements: "A public hearing may be requested upon petition by any group of ten adults. Such petition shall include the name, address and signature of each adult. Written comments concerning the proposed facility and petitions for a public hearing may be addressed to the offices of the Department of Public Health, Division of Health Care Facility Licensure and Certification for a period of 14 days following this publication." The notice shall include both physical and electronic mail addresses provided by the Department for the submission of comments. (c) If the notice as published does not contain all of the information listed in 105 CMR 153.007(G)(1)(b), the Department may require republication of the notice within a reasonable period of time. (d) The notice shall appear in the Legal Notice section and shall be captioned as appropriate, such as “Public Announcement Concerning (name of health care facility).” An identical notice shall also be published at least once in some other section of the same newspaper. (e) Such notice shall appear in a daily newspaper published in the city or town of, or nearest to, the location of the facility and be prominently displayed on the facility’s website, if available. (f) Within three days of publication of the notice required by .007(G)(1), the applicant shall provide a letter, approved in advance by the Department, to the following: 1. The Office of the State Long-term Care Ombudsman; 2. The Office of the Local Long-term Care Ombudsman; 3. The members of the General Court who represent the city or town in which the facility will be located; and 4. A representative of the local officials of the city or town in which the facility will be located. (g) The licensee must provide a copy of the notices to the Department within seven days of publication of the notice and of provision to those parties listed at 105 CMR 153.007(G)(1)(f). (2) Hearings. (a) Any ten adults may form a group with a designated representative. The group's representative may request a hearing through submission of a petition to the Department within 14 days of the date that the public notice appeared in the newspaper. The petition shall include the name, address and signature of each group member. The representative will receive all correspondence regarding the hearing.

105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.07: continued

(b) The Department shall notify the applicant in writing that a hearing is scheduled under .007. (c) A hearing will be held by a Departmental representative within three weeks of receipt of a petition for hearing. (d) The Department shall take any written comments and comments presented at the hearing into consideration. (3) No hearing shall be required pursuant to .007 for a licensure application that is the result of a transfer of ownership for which a hearing was conducted pursuant to .022 or for an application for a license renewal.

153.008: Ownership Interest of Applicant or Licensee

An applicant or licensee must be the owner of the premises on which the facility is operated, or at least have such rights of ownership as the Commissioner finds necessary for the operation of a long-term care facility.

153.009: Acceptance of Application

(A) The Department shall not accept an application for an original or renewal license unless: (1) The application includes all information required by the Department; (2) The application, all required attachments and statements, and a Notice of Intent form, if applicable, submitted by the applicant meet the requirements of .000; and (3) The applicant has paid all required fees.

(B) In the case of a transfer of ownership of a long term care facility: (1) an application for licensure shall not be accepted until the applicant has been deemed suitable subsequent to the submission of a Notice of Intent Form; and (2) the application of a new owner for a license shall not have the effect of a license unless the new owner has met the requirements for suitability review as outlined in M.G.L. c. 111, § 71, as well as the requirements of .009(A)(1) through (3).

153.010: Evaluation of Application

(A) The Department shall not approve an application for an original or renewal license unless: (1) The Commissioner has conducted an inspection or other investigation of the facility and has determined that the applicant complies with .000: Standards for Long-term Care Facilities; and (2) The Commissioner has conducted an investigation of the applicant and determined that the applicant is suitable and responsible to establish or maintain a long-term care facility.

(B) The Department may issue a provisional or probationary license for a period not to exceed one year when public necessity and convenience require, or to prevent undue hardship, to an applicant or facility which has been the subject of a proceeding for license revocation or termination of Medicare or Medicaid certification that was resolved by reconsideration or a settlement agreement, if the Commissioner has determined, based upon inspection or investigation: (1) the applicant or facility is currently in substantial compliance; and (2) the applicant or facility has demonstrated the potential for maintaining substantial compliance throughout the period of the provisional or probationary license.

153.011: Updating of Information

Each licensee shall update and keep current all information required by .000 or otherwise required by the Commissioner. Any document that amends, supplements, updates or otherwise alters any document required to be filed shall be filed with the Department within 30 days of the execution thereof. Any changes in or additions to the content of the information contained in any document required to be filed shall be reported to the Department within 30 days of such change or addition.

105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.012: Suitability and Responsibility of Applicant or Licensee

(A) Each of the following, in and of itself, constitutes full and adequate ground for deeming an applicant or licensee neither suitable nor responsible to establish or maintain a long-term care facility: (1) The applicant or licensee has failed to demonstrate legal capacity, as demonstrated by such documents as articles of incorporation, to provide the services for which a license is sought. (2) The applicant or licensee has acted in a manner resulting in jeopardy to the health, safety or welfare of residents of any health institution or facility. (3) The applicant or licensee has prevented or attempted to impede the work of any duly authorized representative of the Department or the lawful enforcement of any provision of M.G.L. c. 111 or regulations promulgated thereunder. (4) The applicant plans to assume or has assumed ownership of a long-term care facility in an effort to circumvent the effect and purpose of .000. (5) The applicant or licensee does not have sufficient financial resources to provide services required by state and federal regulations and/or the financial management of one or more facilities for which an applicant or licensee was licensed has resulted in the filing of a petition for bankruptcy related to the financial solvency of the facility or has otherwise resulted in a lack of sufficient financial resources to provide services required by state and federal regulations. (6) A facility operated by the applicant or licensee or a facility in which the applicant or licensee owns a 50% or greater interest or acts as a corporate officer or member of the board of directors has been the subject of proceedings that resulted in the suspension, denial or revocation of the license or renewal license of the facility or has been the subject of proceedings that resulted in the denial, cancellation or revocation of the medicaid certification of the facility. (7) The applicant or licensee has maintained a substandard level of care, as measured by compliance with applicable licensing regulations in Massachusetts or elsewhere, with applicable federal conditions of participation in Medicare and Medicaid and other pertinent evidence, in any institution for which the applicant or licensee has been a licensee in Massachusetts or elsewhere. (a) The serious violation of applicable regulations shall constitute the maintenance of a substandard level of care. (b) For purposes of .012(A)(7), the following factors will be considered in determining whether a violation of applicable regulations is “serious”. 1. The extent of any violation including, but not limited to: i. the number of residents affected; ii. the length of time the violation persists; and iii. the frequency of the violation. 2. The actual or potential impact of any violation on residents of the facility. Violation of regulations in the following areas will be presumed to have an adverse impact upon residents: i. residents' rights; ii. nursing services; medication and diet; iii. resident comfort; iv. resident cleanliness and grooming; v. resident safety; vi. use of restraints; vii. sanitation; viii. linen supply; ix. resident abuse, mistreatment or neglect; or x. misappropriation of resident property.

(B) Factors that have a significant bearing on the suitability and responsibility of an applicant or licensee include, but are not limited to: (1) The applicant or licensee has failed to demonstrate competence and experience in operating a long-term care facility. (2) The applicant or licensee has failed to report patient or resident abuse, mistreatment or neglect to the Department as required under M.G.L. c. 111, § 72(G).

105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.012: continued

(3) The applicant or licensee has been convicted of, pleaded guilty to, or has, in a judicial proceeding, admitted facts sufficient for a finding that he or she is guilty of, any felony. (4) The Attorney General has filed an action in any court concerning conditions in any health care facility for which the applicant or licensee was licensed, if that lawsuit resulted in an order or judgment against the applicant or licensee granting damages or any form of equitable relief, including an injunction. (5) A facility owned or operated by the applicant or licensee has been the subject of proceedings that were ultimately resolved by settlement agreement but that were initiated to suspend, deny or revoke the license or renewal license or to deny, cancel or revoke the Medicaid certification of the facility. (6) The applicant or licensee has obtained or attempted to obtain a license by fraud or misrepresentation or by submitting false information. (7) The applicant or licensee has employed in a management or supervisory position a person whom a hearing officer has determined, pursuant to .018, to be unsuitable or not responsible to establish or maintain a long-term care facility. (8) The applicant's or licensee's license or certificate of registration as a nursing home administrator has been suspended, revoked or denied. (9) A facility owned or operated by the applicant or licensee has been the subject of proceedings that resulted in the suspension, denial or revocation of the license or renewal license of the facility or has been the subject of proceedings that resulted in the denial, cancellation or revocation of the medicaid certification of the facility.

153.013: Grounds for Suspension of License to Operate a Long-term Care Facility

The Commissioner may summarily suspend a license pending further proceedings for revocation of or refusal to renew a license whenever the Commissioner finds jeopardy exists at a long-term care facility.

153.014: Grounds for Denial or Revocation of or Refusal to Renew a License to Operate a Long-term Care Facility

Each of the following, in and of itself, shall constitute full and adequate ground on which to deny, revoke, or refuse to renew a license to operate a long-term care facility:

(A) The applicant or licensee is not suitable or responsible to operate a long-term care facility.

(B) The licensee has failed to remedy or correct a cited violation by the date specified in a written notice from the Department under M.G.L. c. 111, § 72E, or by the date specified in the plan of correction accepted or modified by the Department, unless the licensee demonstrates to the satisfaction of the Department that such failure was not due to any neglect of duty and occurred despite his or her good faith attempt to make correction by the specified time.

(C) There has been a finding of jeopardy in the long-term care facility.

(D) There are deficiencies in the long-term care facility that seriously limit the capacity of the facility to provide adequate care.

(E) The long-term care facility has been found in violation of the same or a similar regulation twice or more within a 12-month period.

(F) The facility has been denied a certificate of inspection by the Department of Public Health, Office of Public Safety and Inspections or the head of the local fire department pursuant to M.G.L. c. 111, § 71.

(G) The applicant or licensee has failed to comply with the change of ownership or closure requirements of .000.

(H) The applicant or licensee has been convicted of, pleaded guilty or nolo contendere to, or has, in a judicial proceeding, admitted facts sufficient to find that he or she is guilty of:

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105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.014: continued

(1) abuse, mistreatment or neglect of any resident of a long-term care facility; (2) rape, felonious assault or any other felony against a person; or (3) a felony involving the misuse of funds in connection with the Medicaid or Medicare program or the misuse of resident funds, unless said applicant or licensee has been determined suitable for licensure pursuant to a formal settlement agreement or the application of previous regulatory provisions.

153.015: Limitation on New Admissions

(A) If the Commissioner determines that a long-term care facility does not substantially comply with M.G.L. c. 111, §§ 70E and 71 through 72L½, .000: Standards for Long-term Care Facilities, .000, or 105 CMR 155.000: Patient and Resident Abuse Prevention, Reporting, Investigation, Penalties and Registry; or for a long-term care facility that participates in the Medicare or Medicaid program(s), the federal conditions of participation at 42 CFR 483, the Commissioner may issue an order that the long-term care facility shall limit or not admit any new residents after a date specified by the Commissioner.

(B) If the Commissioner determines that jeopardy exists in a long-term care facility, the Commissioner may issue an order that the long-term care facility limit or not admit any new residents as of the date of the order. Any such order will set forth the facts on which the Commissioner based the determination that a situation or condition occurring at the long-term care facility, such as an uncontrolled "outbreak or cluster" as defined in 105 CMR 300.020: Definitions, presents an imminent threat to the health or safety of residents.

(C) The Commissioner, absent a determination of jeopardy, shall not order the licensee to limit or not admit new residents until the licensee has been notified that the long-term care facility does not substantially comply with applicable state statutes or regulations or with the applicable federal conditions of participation and that a decision to limit or cease new admissions is contemplated, and the licensee has had a reasonable opportunity to correct the cited deficiencies.

(D) Whenever an order to limit or not admit any new residents to the long-term care facility is made, the licensee may appeal the order pursuant to the procedures set forth at 105 CMR 153.018(D).

(E) An order that a long-term care facility shall limit or not admit any new residents shall be rescinded as soon as practicable after the Commissioner determines (i) that the long-term care facility is in substantial compliance with the applicable state statutes or regulations, or with the applicable federal conditions of participation, or (ii) that the situation or condition on which the determination of jeopardy was based no longer exists or no longer presents an imminent threat to the health or safety of residents at the long-term care facility.

153.017: Resident Notification

(A) Whenever the Department initiates an action to deny or revoke a license pursuant to .000, the Department shall require the current owner or licensee to immediately provide notice in writing to each resident or the resident’s legal representative that: (1) an action to deny or revoke the facility's license has been initiated; (2) explains the basis for the action; (3) suggests the general timetable for the enforcement process and possible relocation; and (4) confirms that a second notice will be transmitted if resident relocation is imminent.

(B) Whenever it appears likely that a license denial or revocation action commenced pursuant to .000 will result in the imminent relocation of residents, the Department shall require the current owner or licensee to immediately provide notice in writing to each resident or the resident’s legal representative of: (1) the status of the enforcement action; (2) the timetable and procedures for the relocation process; and (3) the facility representative to contact with respect to the relocation process.

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105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.017: continued

(C) Whenever the Department initiates an action to summarily suspend a license, the Department shall afford residents or their legal representatives notification of relocation if, and to the extent that, circumstances allow.

(D) In those cases where a resident is not competent to understand the notices, the facility shall immediately notify the resident's legal representative.

153.018: Hearings: Procedure

(A) Suspension of a License. (1) Upon written request, the licensee shall be afforded an opportunity to be heard concerning the suspension of a license by the Commissioner. (2) Such a hearing shall be initiated pursuant to 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure no later than 21 calendar days after the effective date of the suspension. (3) In cases of suspension of a license, the hearing officer shall determine whether the Department has proved by a preponderance of the evidence that there existed, immediately prior to or at the time of the suspension, a jeopardy situation.

(B) Revocation of or Refusal to Renew License. (1) A license may be revoked or refused renewal only after a hearing as required by M.G.L. c. 111, § 71. (2) If the Commissioner determines that a licensee is not suitable or responsible or that a license should be revoked or refused renewal pursuant to .000, the Commissioner shall initiate a hearing pursuant to .00: Standard Adjudicatory Rules of Practice and Procedure . (3) In cases of revocation of or refusal to renew a license, the hearing officer shall determine whether the Department has proved by a preponderance of the evidence that the licensee is not suitable or responsible and/or that the license should be revoked or refused renewal, based on relevant facts as they existed at or prior to the time the Commissioner initiated the hearing procedure.

(C) License Denial. (1) Upon receipt of notice that an application for licensure hereunder has been denied, an applicant may appeal to a hearing officer pursuant to .00: Standard Adjudicatory Rules of Practice and Procedure. (2) In cases of denial of an original license, the hearing officer shall determine whether the applicant has proved by preponderance of the evidence that he or she is suitable and responsible for licensure under M.G.L. c. 111, § 71 and .000.

(D) Limitation on New Admissions. (1) An appeal of the Commissioner's order pursuant to .015 to limit or not admit any new residents at a long-term care facility may be requested by filing in writing a Notice of Claim for an Adjudicatory Proceeding pursuant to .00: Standard Adjudicatory Rules of Practice and Procedure within 14 calendar days of receipt of the order. (2) An order to limit or not admit new residents shall remain in effect pending the hearing officer's decision on the appeal. (3) If the hearing officer finds the Department has proved by a preponderance of the evidence at the time the determination was made (a) that the subject long-term care facility was not in substantial compliance with the state statutes or regulations set forth in 105 CMR 153.015(A) or the federal conditions of participation at 42 CFR 483, or (b) jeopardy existed at the subject long-term care facility, then the hearing officer shall uphold the determination made by the Commissioner.

(E) Denial, Revocation or Refusal to Renew Based on Lack of Certificate of Inspection. If the Department is notified that the Office of Public Safety and Inspections or the head of the local fire department has denied any applicant or licensee a certificate of inspection, and that an appeal, if requested, has been duly denied by the Office of Public Safety and Inspections, the Commissioner may: (1) inform the applicant or licensee that the Department has been notified that a certificate of inspection has been denied; (2) offer the applicant or licensee an opportunity to submit a current certificate of inspection within two weeks, or within such other time period as the Commissioner shall designate; or (3) deny, revoke or refuse to renew the license of the applicant or licensee without further hearing unless the applicant or licensee submits a current certificate of inspection within the time allowed.

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105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.018: continued

(F) Denial, Revocation or Refusal to Renew Based on Criminal Record. (1) If the Department determines that the applicant or licensee has been convicted of, pleaded guilty or nolo contendere to, or has, in a judicial proceeding, admitted facts sufficient to find that he or she is guilty of: (a) abuse, mistreatment or neglect of any resident of a long-term care facility; (b) rape, felonious assault or any other felony against a person; or (c) a felony involving the misuse of funds in connection with the Medicaid or Medicare program including, but not limited to, the misuse of patient or resident funds, the Commissioner shall notify, in writing, said applicant or licensee that his or her application or license will be denied, revoked or refused renewal unless said applicant or licensee has been determined suitable for licensure pursuant to a formal settlement agreement or the application of previous regulatory provisions. (2) Said notice shall include the factual basis for the Department's determination. (3) The Commissioner shall afford the applicant or licensee 21 days, from receipt of the written notification, to submit court records to show that the conviction, plea or admission was not entered or made or has subsequently been vacated or reversed upon appeal. (4) The Commissioner shall deny, revoke or refuse to renew the license of the applicant or licensee without further hearing unless the applicant or licensee submits the documentation required in .018(F)(3).

153.019: Hearings: Scope of Review

(A) Determination of Suitability and Responsibility: Any hearing officer conducting a hearing hereunder shall determine the suitability or responsibility of any applicant or licensee on request, whether or not the applicant or licensee is licensed at the time the determination is made.

(B) If a hearing officer finds: (1) that the applicant or licensee is unsuitable or not responsible under any single provision of .012(A); or (2) that the applicant or licensee is unsuitable or not responsible under any combination of factors listed in .012(B); then the hearing officer shall uphold the decision of the Commissioner that the licensee is not suitable or responsible.

(C) If the hearing officer finds any single ground for denial of, revocation of or refusal to renew a license pursuant to .014, the hearing officer shall uphold the decision of the Commissioner to deny, revoke or refuse to renew the license.

153.020: Effect of Determination of Unsuitability and Effect of Refusal to Renew a License, Revocation of a License, and License Denial

Whenever an applicant or licensee has been determined after hearing to be unsuitable or not responsible to establish or maintain any long-term care facility licensed by the Department, or whenever the license of any applicant or licensee has been revoked or denied or renewal has been refused, the applicant or licensee shall not establish or maintain any long-term care facility subject to licensure by the Department for a period of ten years. An applicant or licensee may establish or maintain a long-term care facility thereafter only if he or she demonstrates that his or her circumstances have significantly changed such that he or she has become suitable and responsible to establish or maintain a long-term care facility.

153.021: Non-transferability of License

(A) Every long-term care facility's license must be displayed in a conspicuous place in the facility.

(B) Each license shall be valid only in the possession of the person to whom it is issued and shall not be subject to sale, assignment or other transfer, voluntary or involuntary.

(C) No license shall be valid for any building or premises other than those for which the license was originally issued.

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105 CMR: DEPARTMENT OF PUBLIC HEALTH

153.022: Transfer of Ownership

(A) At least 90 calendar days in advance of a proposed transfer of ownership, any applicant who intends to acquire a long-term care facility shall submit a Notice of Intent form to the Department. The Department shall notify each applicant in writing of the date on which the form is deemed complete. Within 90 days of such date, the Department shall complete its suitability review for licensure. With the consent of the applicant, the Department may extend the 90-day suitability determination period for a maximum of 30 days. In the event that the Department fails to notify the applicant in writing of its decision regarding suitability within the prescribed time period, the applicant shall be deemed responsible and suitable.

(B) Opportunity for Public Input. All applicants must meet the following requirements: (1) Public Notice. Within seven days of submitting the Notice of Intent form to the Department, the applicant shall also publish notice in the daily newspaper(s) within the city or town of, or nearest to, the location of the facility and prominently display this notice on the website for the long-term care facility being acquired, if available. This public notice shall accurately describe the proposed acquisition and meet the following requirements: (a) The notice must contain the name and address of the health care facility being acquired; name and address of the seller; name and address of the buyer; potential changes, if any, in the services of the health care facility; and the potential changes, if any, in the bed capacity of the facility. In addition, the written notice must contain the following statements: “A public hearing may be requested upon petition by any group of ten adults. Such petition shall include the name, address and signature of each adult and designate one member as the representative of the group. Written comments concerning the applicant’s ability to provide quality long-term care services and petitions for a public hearing may be addressed to the offices of the Department of Public Health, Division of Health Care Facility Licensure and Certification.” Such notice shall state that a request for hearing may be made for a period of 14 days following publication in the newspaper. The notice shall include both physical and electronic mail addresses provided by the Department for the submission of comments. (b) If the notice as published does not contain all of the information listed in 105 CMR 153.022(B)(1)(a), the Department may require republication of the notice within a reasonable period of time. (c) The newspaper notice shall appear in the Legal Notice section; and shall be captioned as appropriate, such as "Public Announcement Concerning (name of health care facility)." An identical notice shall also be published at least once in some other section of the same newspaper. (d) No final determination of suitability shall be made unless the applicant has submitted a true copy of such notice. (2) Within seven days of the Notice of Intent form being submitted to the Department, the current owner or current licensee of a facility that is the subject of a Notice of Intent shall provide a copy of the notice required by .022(B)(1) to the following: (a) Each resident of the facility and, where applicable, the resident's legal representative; (b) The designated family member of each resident; (c) The facility's resident council; (d) The facility's family council; (e) Each staff member of the facility; (f) Every labor organization that represents the facility's workforce during the period of the transfer of ownership; (g) The Office of the State Long-term Care Ombudsman; (h) The Office of the Local Long-term Care Ombudsman; (i) The members of the General Court who represent the city or town where the facility is located; and (j) A representative of the local officials of the city or town where the facility is located. The current owner or licensee shall submit a signed statement to the Department that such notice was provided in accordance with .022(B)(2) before a final determination of suitability is rendered for the prospective owner or licensee. Failure to comply with the requirements of .022(B) shall delay a finding of suitability. The provision in .022(A) regarding the Department's failure to notify the applicant in writing of its suitability decision shall not apply if the owner or licensee has not submitted the above-mentioned signed statement.

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(3) Hearings. (a) Upon receipt of a petition for a hearing, the Department will hold a hearing no later than 45 days before the proposed date for the transfer of ownership. (b) The Department shall notify in writing the applicant, the current owner or current licensee, and the petitioner group's representative of any hearing that is scheduled under 104 CMR 153.022. The current owner or licensee shall immediately post a notice of the hearing in the facility that is subject of the Notice of Intent. The posted notice shall include the date, time, location and purpose of the hearing and shall be placed in locations that are easily visible to residents, employees, and visitors. At minimum, the notice shall be placed in the dining room, in the activity room, and main entrance. A copy of the text of the notice shall be readily available upon request by any resident, a resident’s legal representative, employee or visitor. The current owner or licensee shall immediately inform, in writing, the resident council and family council in the facility, if there is a resident council or family council, of the date, time, location, and purpose of any hearing regarding the transfer of ownership. (c) The Department shall take any written comments and comments presented at the hearing into consideration in its determination of the suitability and responsibility of the potential new owner. (d) If a single transfer of ownership involves multiple facilities, the Commissioner may in his or her discretion schedule one or more consolidated hearings regarding the transfer of ownership.

(C) Any person applying for a license as a result of any transfer of ownership shall file proof that such transfer has occurred within two business days of the transfer unless an extension of the two business day period is granted by the Commissioner.

(D) A license application filed as a result of a transfer of ownership, if timely filed, shall have the effect of a license from the date of transfer or until such time as the Department takes action on the application. If not timely filed, such an application shall not have such effect.

(E) In the case of a transfer of ownership, the existing classification shall not be upgraded or downgraded without written approval by the Department. Except as provided in 105 CMR 153.028(B), the existing number of currently licensed beds shall not be exceeded without Determination of Need approval.

(F) Any notice of hearing, order or decision that the Department or the Commissioner issues for a facility prior to a transfer of ownership shall be effective against the former owner prior to such transfer and, where appropriate, the new owner, following such transfer unless said notice, order or decision is modified or dismissed by the Department or by the Commissioner.

(G) A transfer of ownership shall not be recognized and the new owner shall not be considered suitable for licensure when the transfer is proposed or made to circumvent the effect and purpose of .000. The Department shall consider the following factors in determining whether a transfer has been proposed or made to circumvent .000: (1) the transferor's record of compliance with Department licensure laws and regulations; (2) the transferor's current licensure status; (3) the transferor's familial, business and/or financial relation to the transferee; (4) the terms of the transfer; and (5) the consequences of the transfer.

(H) The Department shall be notified immediately in writing of any proposed change in name or location of a facility. A license shall not be transferred from one person or entity to another or from one location to another.

(I) The Commissioner may waive the time frame for notification or a hearing where the Commissioner has determined that such a waiver is necessary to protect the health and safety of the facility's residents.

(J) The Commissioner may, in his or her discretion, determine that a proposed transaction does not rise to the level of a transfer of ownership.

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153.023: Voluntary Closure

(A) At least 120 days in advance of a proposed closure of a long-term care facility, the holder of a license shall notify the Department of its intent to close and, at the same time, submit a draft closure plan. (1) The notice must include the following information: (a) The proposed date of closure; (b) Reasons leading to closure; (c) The facility representative whom residents or their legal representatives, family members, staff or other interested parties may contact with questions they may have regarding the proposed closure; (d) Notice that a public hearing will be held on the proposed closure at least 90 days prior to the proposed closure date; and how information regarding the date, time and place of the hearing will be made available; (e) Notice that interested parties may file comments on the proposed closure and the draft closure plan with the Department up until the date of the public hearing; and (f) Other information as may be specified by the Department. (2) The draft closure plan must include the following information: (a) The steps that will be taken to assist residents or their legal representatives in preparing for closure of the facility, to include: 1. Psychological preparation or counseling of each resident as necessary; 2. Efforts to find appropriate alternate placements for all residents in a facility that are capable of meeting all of their needs and including the consideration of the resident's and family's choice of facility; 3. Consultation with each resident or the resident’s legal representative and, with the resident's or the legal representative’s consent, interested family members regarding placement options and the placement process being considered; and 4. Notification of the times during which family meetings will be held to provide information on the closure process and steps the facility will undertake to ensure the appropriate transfer or discharge of each resident. (b) The steps that will be taken to assist facility staff in preparing for closure. (c) The storage of medical records after closure of the facility. (d) When the facility will stop admitting new residents, and the process for readmitting residents who are transferred to the hospital during the closure process. (3) A copy of the notice of intent to close and draft closure plan shall also be provided to the following: (a) Each resident of the facility and where applicable the resident's legal representative; (b) The designated family member of each resident; (c) The facility's resident council; (d) The facility's family council; (e) Each staff member of the facility; (f) Every labor organization that represents the facility's workforce during the period of the transfer of ownership; (g) The Office of the State Long-term Care Ombudsman; (h) The Office of the Local Long-term Care Ombudsman; (i) The members of the General Court who represent the city or town where the facility is located; and (j) A representative of the local officials of the city or town where the facility is located.

(B) Upon receipt of the notice of intent to close a long-term care facility, the Department shall coordinate with the licensee for the scheduling of a public hearing on the proposed closure. The hearing shall be held at least 90 days prior to the proposed closure date at a location accessible to residents, family members and facility staff.

(C) A licensee intending to close a long-term care facility shall provide notice of the date, time and location of the public hearing to be held on the proposed closure at least 14 days prior to the public hearing. The notice of public hearing must be prepared in a format acceptable to the Department.

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(1) A copy of the draft closure plan and notice of public hearing shall be posted in the facility and notice of the date, time, and location of the public hearing shall be provided to each person or entity who received the initial notification of intent to close at least 14 days prior to the public hearing. (2) Should a licensee fail to distribute either the draft closure plan or notice of hearing in a timely manner, or in a format acceptable to the Department, the public hearing on the proposed closure plan will be rescheduled and the proposed closure date will be extended to allow for a public hearing at least 90 days prior to the proposed closure date.

(D) The Department shall complete a review of the draft closure plan and all comments on the proposed closure that have been submitted to the Department by the date of the public hearing, and notify the licensee in writing within 14 days of the public hearing either its approval of the closure plan and an approved closure date, or comments on the closure plan. If the Department comments on the proposed closure plan, the licensee shall respond in writing to the Department comments within 14 days.

(E) Upon receipt of the Department's approval of the closure plan and closure date, the licensee shall post in the facility, and provide to each person or entity who received the initial notification of intent to close, notification of the Department's approval of its closure plan and the approved closure date, and notice that the facility will close.

(F) All closures shall be completed in an orderly manner in accordance with the closure plan approved by the Department. (1) Upon notification of the Department's approval of its closure plan, the licensee shall provide updates to the Department on its closure activity on a weekly basis, or more frequently upon request. (2) Transfers shall take place in an orderly fashion. No more than five residents per day may be transferred unless the facility has demonstrated to the Department that it has sufficient staff and resources for transferring a larger number of residents per day in an orderly fashion and has received approval from the Department. (3) Copies of all appropriate medical records shall accompany each resident upon transfer or discharge.

(G) Failure to comply with the notice provisions, failure to implement an appropriate relocation plan, or transfer of residents prior to the 60-day notice period as specified in .023, may result in a finding that an emergency as defined in M.G.L. c. 111, § 72M exists and the Department may seek the appointment of a receiver. Failure to ensure appropriate notice to and relocation of all residents may result in a finding of abuse, mistreatment or neglect as defined in M.G.L. c. 111, § 72F and 105 CMR 155.000: Patient and Resident Abuse Prevention, Reporting, Investigation, Penalties and Registry.

(H) The Commissioner may waive the 120-day time frame for initial notification of closure or the 90-day time frame for a hearing only in extraordinary circumstances where the Commissioner has determined that such a waiver is necessary to protect the health and safety of the residents served by the facility.

153.024: Penalties

(A) Pursuant to M.G.L. c. 111, §73, operation of a long-term care facility without a license constitutes a violation of law punishable for a first offense by a fine of not more than $500 and for a subsequent offense by a fine of not more than $1,000 or imprisonment for not more than two years.

(B) Violation of any provision of M.G.L. c. 111, §§ 71 through 73, by a person licensed thereunder, is punishable for a first offense by a fine of not more than $500 and for a subsequent offense by a fine of not more than $1,000 or by imprisonment for not more than two years.

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(C) Whoever violates any rule or regulation of the Department, promulgated pursuant to M.G.L. c. 111, §§ 71, 72 or 72C, shall be punished by such fine, not to exceed $50.00, as the Department may establish. If any person violates any such rule or regulation by allowing a condition to exist that may be corrected or remedied, the Department shall order him or her in writing, to correct or remedy such conditions; and if such person fails or refuses to comply with such order, each day during which such failure or refusal to comply continues shall constitute a separate offense.

(D) A licensee is prohibited from acquiring any additional facilities or increasing the bed quota of any existing facilities for five years from the date of the conviction, guilty plea or admission, except with the explicit permission of the Public Health Council, if the licensee has been convicted of, pleaded guilty or nolo contendere to, or have, in a judicial proceeding, admitted facts sufficient to find that he or she is guilty of: (1) abuse, mistreatment or neglect of any resident of a long-term care facility; (2) rape, felonious assault or any other felony against a person; or (3) a felony involving the misuse of funds in connection with the Medicaid or Medicare program, or the misuse of resident funds, even if the licensee has been determined suitable for continued licensure pursuant to formal settlement agreements or previous regulations.

153.026: Name of Facility

(A) Every facility shall be designated by a distinctive name which shall appear on the facility's application and license. To avoid public confusion or misrepresentation, this name shall not be changed without the prior approval of the Commissioner. Such name shall appear on all listings, advertisements and stationery.

(B) The name of a facility shall not contain the words: (1) “Rehabilitation” or “rehabilitative” unless the facility provides skilled nursing and rehabilitative care, and the Commissioner has authorized in writing the use of such words in its name. (2) “Nursing” or “convalescent” unless the facility is licensed as a Level I, II or III facility.

(C) The name of a facility shall not tend in any way to mislead the public as to the type or extent of care provided by the facility.

153.027: Classification

(A) The Department will license long-term care facilities according to the level of care provided: Level I, II, III and IV.

(B) A facility shall not be classified to provide more than one level of care unless such facility provides one or more identifiable units for each level of care. As used in .027, classification is not a form of a license within the meaning of M.G.L. c. 30A, § 13.

(C) Written approval for change in classification must be obtained from the Commissioner. (1) In the case of a downgrading, the facility must file a notice of intent and submit architectural plans if construction and renovation is associated with the reclassification. (2) In case of an upgrading, the facility must secure a determination of need when required by 105 CMR 100.000: Determination of Need. If no determination of need is required, the facility must submit a notice of intent and architectural plans if construction and renovation is associated with the reclassification.

153.028: Licensed Bed Capacity

(A) Licensed bed capacity shall be the number of beds that the licensee is authorized to operate. As used .028, licensed bed capacity is not a form of a license within the meaning of M.G.L. c. 30, § 13.

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(B) The licensee must comply with any relevant provisions of 105 CMR 100.000: Determination of Need prior to seeking any increase in licensed bed capacity. The Commissioner may, upon review and approval of notice of intent and architectural plans, grant a one time increase in quota of up to 12 beds.

(C) The licensees shall submit written notification of any permanent reduction in the number of licensed beds to the Commissioner.

(D) In cases where temporary removal of beds from service is necessary for construction authorized by the Department, or for implementation of a plan of correction for cited significant physical plant deficiencies; or when permanent removal is necessary for a phased closure of an entire facility, the licensee shall notify the Department in writing of the removal of beds from service, the reason for the removal and the length of time the beds are anticipated to be out-of-service. On receipt of such a notification, the Department will provide the revised “operating bed capacity” to the Office of Medicaid and the Center for Health Information and Analysis.

(E) In all other cases where beds are temporarily removed from service, the number of beds established as the facility's licensed bed capacity shall be the number of beds that a licensee is authorized to operate.

(F) Discontinuance of operation of an entire unit of a facility for any period shall be treated as a permanent reduction in licensed bed capacity, except where the Commissioner has granted permission in advance. Such permission shall be given only in exceptional circumstances and for no longer than required.

(G) Discontinuance of operation of an entire facility or building for any period shall be treated as an abandonment of the license therefor, except where the Commissioner has granted permission in advance. Such permission shall be given only in exceptional circumstances and for no longer than required.

153.029: Posting of License, Certificate of Inspection, and Related Documents

Every facility shall maintain a board suitable for posting notices and other written materials in an area of the premises accessible to residents, employees and visitors. Such notices and materials as may be required by the Commissioner shall be conspicuously posted thereon and include, but are not limited to, the following: (1) A framed, current license, or if the facility is operated under an application, the most recent license and a copy of such application. (2) The most recent certificate of inspection of the egresses, the means of preventing the spread of fire, and the apparatus for extinguishing fire, issued by the Department for Level I, II and III facilities or by the Office of Public Safety and Inspections for Level IV facilities. (3) Any orders to show cause, notices, orders, decision or other documents issued by agents of the Department that pertain to the facility.

153.030: Restrictions

(A) A long-term care facility shall not use any part of the licensed premises for tenant occupancy or for other business. Unlicensed space within the long-term care facility premises may be used for tenant occupancy or other business if the following requirements are met: (1) The space that constitutes the premises of the licensed long-term care facility and the premises of the tenant occupancy or business shall not be intermingled space. The space that constitutes the facility shall be contiguous. (2) The long-term care facility shall be separate and distinct from that portion of the premises used for tenant occupancy or other business and shall be physically separated from any unlicensed space within the long-term care facility by means of doors, walls, or other barrier. A fire rated wall which meets the fire protection rating required by the Massachusetts State Building Code shall be provided between the tenant occupancy and the long-term care facility. In addition, all certified facilities must have a fire rated wall in compliance with the Life Safety Code.

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(3) The long-term care facility shall not be used as a thoroughfare for access to the area in which the tenant occupancy or other business is located. (4) The portion of the premises used for tenant occupancy or other business shall not constitute a hazard or nuisance to residents of the long-term care facility. (5) The presence of an area used for tenant occupancy or other business cannot impede the licensed long-term care facility's ability to comply with the provisions of 105 CMR 150.000: Licensing of Long-term Care Facilities and any applicable federal requirements, including: (a) Fire safety requirements, which shall include, for certified facilities, compliance with the Life Safety Code; (b) Staffing requirements; (c) Resident egress and elopement control; (d) Resident access to outdoor recreation area; and (e) Parking requirements. (6) Prior to any unlicensed part of the premises being used for tenant occupancy or other business, the long-term care facility must ensure the proposal is the product of sound community engagement and consultation regarding the proposed tenant occupancy or other business with the following groups: (a) The facility's resident council; (b) The facility's family council; (c) Staff at the facility; (d) The Office of the State Long-term Care Ombudsman; and (e) The Office of the Local Long-term Care Ombudsman.

(B) A facility may not provide any services to persons other than residents, except as provided in .030(B). (1) A facility may provide rehabilitation services to persons other than residents as provided in .010: Rehabilitation Services: Physical Therapy, Occupational Therapy, Speech, Hearing and Language Therapy (and Therapeutic Recreation in a SNCFC) and .540: Rehabilitation Service Areas. (2) Notwithstanding any restrictions in .012(H), a facility may provide special activities and services described therein to persons other than residents provided that: (a) Use of such services does not require persons other than residents to pass through resident care areas to access the services. (b) If articles made by the residents are sold in the gift shop, the money shall be given or credited to those residents. (c) Any snack shop acting as a food establishment, as that term is defined in 105 CMR 590.000: State Sanitary Code Chapter X - Minimum Sanitation Standards for Food Establishments, must so act in accordance with any and all applicable requirements of 105 CMR 590.000. A facility that previously received, and can produce a copy of, a waiver from the Department under .031 allowing the facility to use unlicensed space on the premises for tenant occupancy, other business, or to provide certain services to persons other than residents may continue to rely on such waiver even if such use or service does not meet the requirements in .030(A) or (B); provided, however, any such waiver remains subject to the terms or conditions included in the waiver and such a waiver may be revoked due to non-compliance with its terms or conditions or the provisions of 105 CMR 150.000: Licensing of Long-term Care Facilities or .000.

153.031: Special Projects and Waivers

(A) Special Projects. The Department will consider proposals for special projects for the innovative delivery of long-term care services. No such proposal shall be implemented without prior written approval of the Department. The Department may impose conditions on special projects as necessary.

(B) Waivers. The Commissioner may waive the applicability to a particular facility of one or more of the requirements imposed by .000, .000: Standards for Long-term Care Facilities upon finding that:

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(1) compliance would cause undue hardship to the facility; (2) the facility's non-compliance does not affect the health or safety of its residents and does not limit the facility's capacity to give adequate care; (3) the facility has instituted compensating features or has undertaken a special project under .031(A) acceptable to the Department; and (4) the facility provides to the Commissioner written documentation supporting its request for a waiver.

153.032: Right of Entry

Any duly designated officer or employee of the Department shall have the right to enter and inspect at any time, without prior notice, the entire premises of any facility for which an application has been received or for which a license has been issued. Any application shall constitute permission for such entry and inspection.

153.100: Severability

The provisions of .000 are severable. If any provision in .000 is declared unconstitutional or invalid by a court of competent jurisdiction, the validity of the remaining portions shall not be so affected.

REGULATORY AUTHORITY

.000: M.G.L. c. 111, §§ 3, 71 through 73B.