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

Section
153.001:   Purpose and Scope

153.002:   Authority

153.003:   Citation

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

153.016:   Limiting Admissions Pending Appeal

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

153.025:   Facilities Operated by the First Church of Christ Scientist or by the Roman Catholic Church

153.026:   Name of Facility

153.027:   Classification

153.028:   Licensed Bed Capacity (Quota)

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
153.001:   Purpose and Scope
(A)   The purpose of 105 CMR 153.000 is to set forth the licensure procedures and suitability requirements for long term care facilities.
(B)   105 CMR 153.000 applies to the licensure of all persons who seek to or who currently own and operate long term care facilities in the Commonwealth of Massachusetts.
153.002:   Authority
105 CMR 153.000 is adopted under the authority of M.G.L. c. 111, §§ 3, 71, 72 and 73.
153.003:   Citation
105 CMR 153.000 will be known, and may be cited as, Licensure Procedures and Suitability Requirements for Long Term Care Facilities in Massachusetts, 105 CMR 153.000.

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, the term "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.
Commissioner. The Commissioner of Public Health.
Department. The Department of Public Health.
Felony. A crime which is deemed a felony either in the state in which the crime was committed, in Massachusetts or by the federal government.
Jeopardy. A situation or condition which the Commissioner or his/her designee has determined presents an imminent threat to the health or safety of residents.
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 105 CMR 153.000.
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, the term "licensee" shall also mean any shareholder owning five percent 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 which is an estate.
Long term care facility. This term shall have the meaning set forth in 105 CMR 150.001(A).
Notice of Intent Form. A form supplied 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 license. A license issued for not more than 365 days to a facility that:

(1)   is found on inspection to be in substantial compliance and which has demonstrated improvement and evidences potential for achieving full compliance within said period;

(2)   was the subject of a decertification proceeding which was resolved by reconsideration or settlement agreement.
Resident. Any patient, resident or client of a long term care facility licensed by the Department.
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.

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 105 CMR 153.006, 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, and available from, the Department. The term "application" as used herein shall include original and renewal applications. Every application shall be notarized and signed under the pain and penalty of perjury either by each applicant as defined in 105 CMR 153.004, 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:

(1)   Any information concerning ownership or control required to be disclosed under 42 CFR §§ 420.206 and 455.104 as they now read and as they may be amended; and

(2)   Any information required by the Commissioner or his/her designee as part of the application package, including such additional information concerning ownership and control as the Commissioner or his/her designee may require.
(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 may not be filed until an applicant has been deemed suitable by the Department.
153.007:   Other Licensing Requirements
(A)   As a prerequisite for a license:

(1)   Skilled nursing and intermediate care (Level 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)   Resident care (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 division of inspection of the Department of Public Safety.

(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 skilled nursing or intermediate care (Level II or III) facility unless the facility obtains a certificate of inspection issued by the Department that each building to be occupied by patients 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 105 CMR 153.000, at least 50% of the residents in the facility are Community Support Residents as defined in 105 CMR 150.001. Only those Level IV facilities which have at least 50% Community Support Residents at the time of the effective date of these regulations 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.
(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 herein 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 105 CMR 153.000.

153.007:   continued


(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 105 CMR 153.007(C) except in the following circumstances:

(1)   facilities granted a waiver pursuant to 105 CMR 153.031(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)   Staffing requirements for an AIDSSNF outlined in 105 CMR 153.000 apply to 20 bed units. Staffing proposals for units either under or over this size will be reviewed on a case by case basis.
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 or his/her designee 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 105 CMR 153.000;

(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 105 CMR 153.009(A)(1) through (3).
153.010:   Evaluation of Application
The Department shall not approve an application for an original or renewal license unless:
(A)   The Commissioner or his/her designee has conducted an inspection or other investigation of the facility and has determined that the applicant complies with 105 CMR 150.000; and
(B)   The Commissioner or his/her designee 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.
153.011:   Updating of Information
All information required by 105 CMR 153.000 or otherwise required by the Commissioner or his/her designee shall be kept current by each licensee. Any document which 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.
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:

153.012:   continued


(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; or

(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; or

(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; or

(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 105 CMR 153.000. (See 105 CMR 153.022:   Transfer of Ownership).

(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 as defined in 105 CMR 153.004 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 which resulted in the suspension, denial or revocation of the license or renewal license of the facility or has been the subject of proceedings which 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 and state certification regulations under the Medical Assistance Program or Medicare Program in Massachusetts or elsewhere, 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 failure to maintain a substantially consistent and adequate level of care.

(b)   For purposes of 105 CMR 153.012(A), 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 patients affected;

ii.   the length of time the violation persists;

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.   adequate nursing services;

iii.   24 hour nursing services;

iv.   total nursing needs met;

v.   receipt of proper medication and diet;

vi.   resident comfort;

vii.   resident cleanliness and grooming;

viii.   resident safety;

ix.   proper use of restraints;

x.   proper sanitation;

xi.   adequate linen supply.
(B)   Factors which 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 that s/he has competence and experience in operating a long term care facility.

(2)   The applicant or licensee has failed to report patient abuse, mistreatment or neglect to the Department as required under M.G.L. c. 111, § 72(G).

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 s/he 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 as defined in 105 CMR 153.004, 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 which were ultimately resolved by settlement agreement but which 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 105 CMR 153.018 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 which resulted in the suspension, denial or revocation of the license or renewal license of the facility or has been the subject of proceedings which 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 that there is a jeopardy situation 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


(A)   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.

(1)   The applicant or licensee is not suitable or responsible to operate a long term care facility; or

(2)   The applicant or 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 applicant or licensee demonstrates to the satisfaction of the Department that such failure was not due to any neglect of duty and occurred despite her/his good faith attempt to make correction by the specified time; or

(3)   There are deficiencies in the long term care facility which jeopardize the health or safety of clients; or

(4)   There are deficiencies in the long term care facility which seriously limit the capacity of the facility to provide adequate care; or

(5)   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; or

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

(7)   The applicant or licensee has failed to obtain explicit permission of the Public Health Council prior to acquiring a facility if required pursuant to 105 CMR 153.023(D).

153.014:   continued
(8)   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 s/he 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, those offenses set forth in M.G.L. c. 118E, § 21A through D and the misuse of patient 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.

(9)   The applicant or licensee is operating a resident care facility without CSF licensure in which the Department has determined that either 50% or more of the facility's residents are Community Support Residents, or that the facility has admitted Community Support Residents after July 1, 1987, except as provided in 105 CMR 153.007(E).
153.015:   Grounds for Limiting Admissions
(A)   If the Commissioner or his/her designee determines that a long term care facility does not substantially comply with applicable licensure regulations, and further determines that the facility's deficiencies do not immediately jeopardize the health and safety of the facility's clients, the Commissioner or his/her designee, in lieu of revoking or refusing renewal of the facility's license, may provide that the facility shall not admit any residents after a date specified by the Commissioner or his/her designee.
(B)   The Commissioner or his/her designee shall not make such a decision until the licensee, or the applicant who signed the licensure application, has been notified that the facility does not substantially meet the provisions of applicable licensure regulations and that a decision to limit admissions is contemplated, and the licensee or applicant has had a reasonable opportunity to correct the deficienicies.
(C)   A decision that a facility shall not admit any residents after a date specified by the Commissioner or his/her designee shall be rescinded when the Commissioner or his/her designee finds that the facility is in substantial compliance with the provisions of applicable licensure regulations.
153.016:   Limiting Admissions Pending Appeal
(A)   Pending any hearing following initiation of a medicaid decertification action or any hearing initiated under 105 CMR 153.000, the Commissioner or his/her designee may order the applicant or licensee to limit or cease all further admissions to the facility. Such order shall not be subject to the requirements set forth at 105 CMR 153.015.
(B)   Whenever an order to limit or cease all further admissions to the facility is made, the hearing shall be conducted pursuant to the procedures set forth at 105 CMR 153.018(D).
153.017:   Resident Notification
(A)   Whenever the Department initiates an action to deny or revoke a license pursuant to 105 CMR 153.000, the Department shall transmit an initial notice to each resident which:

(1)   describes the enforcement action taken;

(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 105 CMR 153.000 will result in the imminent relocation of residents, the Department shall transmit a second notice to inform each resident of:

(1)   the status of the enforcement action;

(2)   the timetable and procedures for the relocation process; and

(3)   the Department representative to contact with respect to the relocation process.

153.017:   continued
(C)   Whenever the Department initiates an action to summarily suspend a license, the Department shall afford residents 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 forward the notice to the next of kin or individual responsible for said resident.
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 or his/her designee.

(2)   Such a hearing shall be initiated pursuant to 801 CMR 1.00 et seq. 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 or his/her designee determines that a licensee is not suitable or responsible or that a license should be revoked or refused renewal pursuant to 105 CMR 153.000, the Commissioner shall initiate a hearing pursuant to 801 CMR 1.00 et seq.

(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 or his/her designee 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 801 CMR 1.00 et seq.

(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 s/he is suitable and responsible for licensure under M.G.L. c. 111, § 71 and 105 CMR 153.000.
(D)   Limiting Admissions.

(1)   An appeal may be requested by filing in writing a Notice of Claim for an Adjudicatory Proceeding pursuant to 801 CMR 1.00 et seq. within 14 calendar days of receipt of notice of the decision to limit admissions.

(2)   Within 30 calendar days of receipt of a Notice a Claim for Adjudicatory Proceeding the Commissioner or his/her designee shall schedule an adjudicatory hearing for a date as early as is practicable.

(3)   Admissions shall remain limited pending the hearing officer's decision on the appeal which shall be made within 21 calendar days of the close of the hearing.

(4)   If the hearing officer finds that the Department has provided by preponderance of the evidence that the subject facility was not in substantial compliance with applicable licensure regulations at the time the determination was made, the hearing officer shall uphold the decision of the Commissioner or his/her designee to limit admissions.
(E)   Denial, Revocation or Refusal to Renew Based on Lack of Certificate of Inspection. If the Department is notified that the Department of Public Safety or the head of the local fire department has denied any applicant or licensee a certificate of inspection pursuant to M.G.L. c. 111, § 71, and that an appeal, if requested, has been duly denied by the Department of Public Safety, the Commissioner or his/her designee may:

153.018:   continued


(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 or his/her designee shall designate;

(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.
(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 s/he 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, those offenses set forth in M.G.L. c. 118E, § 21A through D and the misuse of patient funds, the Commissioner or his/her designee shall notify, in writing, said applicant or licensee that his/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 or his/her designee 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 or his/her designee 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 105 CMR 153.018(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 105 CMR 153.012(A); or

(2)   that the applicant or licensee is unsuitable or not responsible under any combination of factors listed in 105 CMR 153.012(B); then the hearing officer shall uphold the decision of the Commissioner or his/her designee 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 105 CMR 153.014, the hearing officer shall uphold the decision of the Commissioner or his/her designee 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 s/he demonstrates that her/his circumstances have significantly changed such that s/he 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 premises other than those for which the license was originally issued.
(D)   The license shall be returned by registered mail to the Department immediately upon:

(1)   receipt of a renewal license;

(2)   revocation of or refusal to renew the license;

(3)   change of location;

(4)   transfer of ownership;

(5)   change of name;

(6)   closure or other termination of the licensee's existence or authority to operate;

(7)   change in quota or classification.


153.022:   Transfer of Ownership
(A)   At least 90 calendar days in advance of any transfer of ownership, any applicant who intends to acquire a long term care facility shall submit a Notice of Intent Form to the Department on a form supplied by 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)   Health Systems Area (HSA) V. All applicants whose potential long-term care facility acquisition is located in HSA V must meet the following requirements:

(1)   Public Notice. Upon receipt of written notice by the Department that a Notice of Intent Form is deemed substantially complete, an applicant for determination of suitability whose potential long term care facility acquisition is located in HSA V shall cause notice of its intent to acquire to be published. Publication must be made within 21 days of the date upon which the notice of intent is deemed substantially complete. The public notice shall accurately describe the proposed acquisition and meet the following requirements:

153.022:   continued
(a)   The notice must contain the following information: 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 50 residents of HSA V. Such petition shall include the name, address and signature of each resident. 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 Department of Public Health, Suitability Review Office, 10 West Street, 5th Floor, Boston, MA 02111 for a period of 14 days following this publication.

(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 notice shall be at least two inches high by three columns wide or at least three inches high by two columns wide; 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)   Such notice shall be published in whichever of the following daily newspapers publishes in the city or town of, or nearest to, the location of the facility: Attleboro Sun, Brockton Enterprise, Fall River Herald News, Hyannis Cape Cod Times, New Bedford Standard Times, or Taunton Gazette.

(e)   No final determination of suitability shall be made unless the applicant has submitted, on a form prepared by the Department, a statement signed under the pains and penalties of perjury that the applicant has caused notice of the acquisition to be published in accordance with 105 CMR 153.000 and that a true copy of such notice is attached to the signed statement.

(2)   Hearings.

(a)   Any 50 residents of HSA V may form a resident group with a designated representative. The resident group's representative may request a hearing through submission of a petition to the Department's Suitability Review Office 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 resident group member. The representative will receive all correspondence regarding the hearing.

(b)   The Department shall notify in writing both the applicant and the current owner or current licensee of any hearing that is scheduled under 104 CMR 153.022. The current owner or licensee shall immediately cause a notice of the hearing posted 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. The text of the posted notice shall be written in 14 point or larger type. At minimum, the notice shall be placed in the dining room, in the activity room, a main entrance, and near the public telephone. A copy of the text of the notice shall be readily available upon request by any resident, 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)   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 in its determination of the suitability and responsibility of the potential new owner.


153.022:   continued
(3)   At the time a Notice of Intent Form is deemed complete, a letter drafted by the Department shall be sent by either the current owner or current licensee of a facility which is the subject of a Notice of Intent, to residents, family members and legal guardians notifying them of the potential transfer of ownership. The current owner or licensee shall submit a signed statement to the Department that such a letter was sent before a final determination of suitability is rendered for the prospective owner or licensee. Failure to comply with the requirements of 105 CMR 153.022(B) shall delay a finding of suitability. The provision in 105 CMR 153.022(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.
(C)   Any person applying for a license as a result of any transfer of ownership shall file an application for licensure within 48 hours of the transfer unless an extension of the 48 hour period is granted by the Commissioner or his/her designee.
(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 below, the existing bed quota shall not be exceeded without Determination of Need approval. If the facility has not exercised the one time 12 bed increase, the Commissioner or designee may, upon review and approval of a notice of intent and architectural plans, grant an increase in quota of up to 12 beds.
(F)   Any notice of hearing, order or decision which the Department or the Commissioner or his/her designee 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 or his/her designee.
(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 105 CMR 153.000. The Department shall consider the following factors in determining whether a transfer has been proposed or made to circumvent the regulations:

(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;

(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.
153.023:   Voluntary Closure
(A)   The holder of a license shall submit to the Department a Notice of Intent to close or to sell the long term care facility for other business use at least 60 days in advance of the proposed sale or closure. Such notice shall be subject to the Department's approval and shall include a plan for appropriate notice to and relocation of long term care facility patients. Such notice shall be in addition to notification requirements established pursuant to Department of Public Welfare regulations (106 CMR) and Massachusetts General Laws regarding withdrawal from participation in the Medical Assistance Program. the notification relocation plan shall include but not be limited to the following:

153.023:   continued


(1)   consideration of the best means to notify each patient (e.g. personal notice from facility staff; written notice; or notice through next of kin) at least 45 days in advance of the patient's relocation;

(2)   psychological preparation or counseling of each patient as necessary;

(3)   efforts to find appropriate alternate placements for each patient within a 25 miles radius distance of the facility and/or the patient's family and friends. Before a facility can place a patient beyond the required distance limit, a facility must demonstrate to the Department that it has made a good faith effort to adhere to this requirement and that appropriate placement cannot be made within the 25 mile radius; and

(4)   consultation with each patient and next of kin or the patient's sponsor regarding placement options and the placement process being considered.


(B)   Transfers shall take place in an orderly fashion. No more than five patients per day shall be transferred unless the facility has demonstrated to the Department that it has sufficient staff and resources for transferring a larger number of patients per day in an orderly fashion and has received approval from the Department.
(C)   Copies of all appropriate medical records shall accompany all patients upon discharge.
(D)   Failure to comply with the notice provisions or to implement an appropriate relocation plan, or if transfer of patients is begun prior to the 60 day notice period as specified above, may result in a finding that an emergency exists as defined in M.G.L. c. 111, § 72M and the Department may seek the appointment of a receiver. Furthermore, failure to assure appropriate notice to and relocation of all patients may result in a finding of abuse, mistreatment or neglect as defined in M.G.L. c. 111, § 72F and 105 CMR 155.000 et seq..
153.024:   Penalties
(A)   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 (see M.G.L. c. 111, § 73).
(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 (see M.G.L. c. 111, § 73).
(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 (see M.G.L. c. 111, § 73).
(D)   Licensees who have been convicted of, pleaded guilty or nolo contendere to, or have, in a judicial proceeding, admitted facts sufficent to find that s/he 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, including but not limited to, those offenses set forth in M.G.L. c. 118E, § 21A through D and the misuse of patient funds,

but, who have been determined suitable for continued licensure pursuant to formal settlement agreements or previous regulations, are 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.

153.025:   Facilities Operated by the First Church of Christ Scientist or by the Roman Catholic Church
(A)   Under M.G.L. c. 111, § 73A, any facility which is operated and listed and certified by the First Church of Christ Scientist in Boston, Massachusetts shall be subject to licensure and inspection only under laws, rules and regulations pertaining to sanitation, fire, safety, and building and construction codes. These facilities shall be licensed and are required to have certificates of inspection issued by the Department of Public Safety and the local fire department. No guests, residents or personnel shall be subjected to any medical supervision, regulation or control in connection with the operation of any such facility. The regular license fee is required.
(B)   Under M.G.L. c. 111, § 73B, any facility which is operated for only those duly ordained priests, or for the members of the religious orders of the Roman Catholic Church in their own locations, buildings, residences or headquarters to provide care, shelter, treatment and medical assistance for any of the said duly ordained priests or members of the said religious orders, shall be subject to licensure and inspection only under laws, rules and regulations pertaining to sanitation, fire, safety and building construction codes. These facilities shall be licensed and shall be required to have certificates issued by the Department of Public Safety and the local fire department. No personnel while working at such facilities shall be subjected to any requirements of medical supervision, regulation or control in connection with the operation of any such facility. The regular license fee is required.
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 or his/her designee. 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 or his/her designee has authorized in writing the use of such words in its name.

(2)   "Nursing" or "convalescent" unless the facility provides primarily skilled nursing care or intermediate nursing care (Level II or III).
(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)   Under the authority of M.G.L. c. 111, § 71, the Department has classified long term care facilities according to the level or levels of care that each such institution is qualified under applicable rules and regulations to provide. There are three such levels of care: skilled nursing care (Level II, intermediate nursing care (Level III), and resident care (Level IV).
(B)   Classification shall be as determined by the Commissioner or his/her designee and shall be established on the basis of the levels of care that a facility is qualified to provide. 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 herein 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 or his/her designee.

(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 applicable Determination of Need regulations (105 CMR 100.000 et seq.). If no determination of need is required, the facility must submit a notice of intent and architectural plans.

153.028:   Licensed Bed Capacity (Quota)
(A)   Licensed bed capacity (quota) shall be determined by the Department and shall be the number of beds which the licensee is authorized to operate pursuant to a license issued by the Department. As used herein, licensed bed capacity (quota) is not a form of a license within the meaning of M.G.L. c. 30, § 13.
(B)   Increases in licensed bed capacity shall be subject to the provisions of law governing determination of need. The Commissioner or her designees may, upon review and approval of notice of intent and architectural plans, grant an increase in quota of up to 12 beds.
(C)   The licensees shall submit written notification of any permanent reduction in licensed bed quota to the Commissioner or his/her designee.
(D)   In cases where temporary removal of beds from service is necessary for construction authorized by determination of need, 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:

(1)   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.

(2)   On receipt of this notification the Department will establish an "operating bed capacity" which shall be the number certified to the Rate Setting Commission for determination of occupancy rates.
(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 which a licensee is authorized to operate pursuant to a license issued under 105 CMR 153.027(A).
(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 or his designee 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 or his/her designee 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 II and III facilities) or by the Department of Public Safety (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)   No facility in which part of the premises is utilized for tenant occupancy or for business shall be approved for licensure except as provided in 105 CMR 150.012(1).
(B)   Office space for physicians, dentists, podiatrists, physiotherapists or paramedical persons is not permitted in any facility.

153.030:   continued


(C)   Facilities shall not provide laboratory services and shall not store or use x ray equipment.
(D)   Nursing services or medical treatment will not be administered to persons other than clients without the written approval of the Commissioner or his/her designee.
153.031:   Special Projects and Waivers
(A)   Proposals for special projects for innovative delivery of services related to long term care facilities will be considered. However, no such plan shall be implemented without prior written approval of the Department. Such plans shall be implemented only on an experimental basis and subject to renewal of approval by the Department at such time periods as the Department shall fix.
(B)   The Commissioner or his designee may waive the applicability to a particular facility of one or more of the requirements imposed by 105 CMR 153.000, 105 CMR 150.000:  Licensing of Long Term Care Facilities and 105 CMR 151.000:  General Standards of Construction: Long-Term Care Facilities upon finding that:

(1)   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; and

(2)   the facility has instituted compensating features or has undertaken a special project under 105 CMR 153.030(A) acceptable to the Department; and

(3)   the facility provides to the Commissioner or his designee 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. The form on which such application is made shall contain a statement which advises any person seeking a license of such effect of an application.

REGULATORY AUTHORITY


105 CMR 153.000:  M.G.L. c. 111, §§ 3, 71, 72, 73.

7/15/05 (Effective 3/31/05) 105 CMR   




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