Mass. Gen. Laws ch. 111 § 71

Current through Chapter 223 of the 2024 Legislative Session

Section 111:71 - [Effective 12/5/2024] Licensing of convalescent and nursing homes, infirmaries, etc.

(a) For purposes of this section and sections 71A¹/₂to 73, inclusive, the following words shall, unless the context clearly requires otherwise, have the following meanings:

"Applicant", any person who applies to the department for a license to establish or maintain and operate a long-term care facility.

"Charitable home for the aged", any institution, however named, conducted for charitable purposes and maintained for the purpose of providing a retirement home for elderly persons and which may provide nursing care within the home for its residents.

"Cohorting", the practice of grouping patients who:

(i) are colonized or infected with the same organism in order to confine their care to 1 area and prevent contact with other patients; or

(ii) are not colonized or infected with the same organism in order to confine their care to 1 area and prevent contact with other patients.

"Convalescent or nursing home", any institution, however named, including a skilled nursing facility, whether conducted for profit or not for profit, which is advertised, announced or maintained for the express or implied purpose of caring for 4 or more persons admitted thereto for the purpose of nursing or convalescent care.

"Correct by date", the date by which a licensee shall remedy or correct any violation discovered after an inspection by the department pursuant to section 72E.

"Endemic level", the usual level of a given disease in a geographic area.

"Intermediate care facility for persons with an intellectual disability", any institution, however named, that:

(i) is conducted for charity or not for profit;

(ii) is advertised, announced or maintained for the purpose of providing rehabilitative services and active treatment to persons with an intellectual disability or persons with related conditions, as defined in regulations promulgated pursuant to Title XIX of the federal Social Security Act, Public Law 89-97;

(iii) is not both owned and operated by a state agency; and

(iv) makes application to the department for a license for the purpose of participating in the federal program established by said Title XIX.

"Isolating", the process of separating persons colonized or infected with a communicable disease from those who are not colonized or infected with a communicable disease.

"License", an initial or renewal license issued by the department and which permits the licensee to establish or maintain and operate a long-term care facility.

"Licensee", a person permitted to establish or maintain and operate a long-term care facility through a license.

"Long-term care facility", a charitable home for the aged, convalescent or nursing home, skilled nursing facility, intermediate care facility for persons with an intellectual disability or rest home.

"Long-term care services", services including:

(i) long-term resident, nursing, convalescent or rehabilitative care;

(ii) supervision and care incident to old age for ambulatory persons; or

(iii) retirement home care for elderly persons.

"Management company", an organization engaged by a licensee to manage the operations at a long-term care facility.

"Outbreak", any unusual occurrence of disease or any disease above endemic levels.

"Owner", any person with an ownership interest of not less than 5 per cent, or with a controlling interest in an applicant, licensee, potential transferee or the real property on which a long-term care facility is located.

"Person", an individual, trust, partnership, association, corporation or other form of business association.

"Potential transferee", a person who submits to the department a notice of intent to acquire the facility operations of a currently operating long-term care facility.

"Religious and recreational activities", any religious, social or recreational activity that is consistent with the resident's preferences and choosing, regardless of whether the activity is coordinated, offered, provided or sponsored by facility staff or by an outside activities provider.

"Resident", an individual who resides in a long-term care facility.

"Rest home", any institution, however named, which is advertised, announced or maintained for the express or implied purpose of providing care incident to old age to 4 or more persons who are ambulatory and who do not require a specific level of nursing care or other medically related services on a routine basis.

"Skilled nursing facility", any institution, however named, whether conducted for profit or not for profit, which is certified by the federal Centers for Medicare and Medicaid Services for the purpose of providing continuous skilled nursing care and rehabilitative services for 4 or more persons.

"Small house nursing home", 1 or more units of a convalescent or nursing home designed and modeled as a residential home including a central living space, kitchen, dining area, living area and outdoor space.

"Transfer of facility operations", a transfer of the operations of a long-term care facility from a licensee to a potential transferee.

(b)

(1) The department shall issue for a term of 2 years, and shall renew for like terms, a license, subject to the restrictions in this section, to each applicant the department deems responsible and suitable to establish or maintain and operate a long-term care facility and which meets all other requirements for long-term care facility licensure pursuant to this chapter. A license issued pursuant to this section shall not be transferable or assignable and shall be issued only for the premises named in the application.

(2) Each long-term care facility shall be subject to not less than 1 periodic, resident-centered inspection per year for the purpose of gathering information about the quality of services furnished in the long-term care facility to determine compliance with applicable state and federal requirements.

(3) The department may, when public necessity and convenience require, or to prevent undue hardship to an applicant or licensee, pursuant to such rules and regulations as it may adopt, grant a temporary provisional or probationary license pursuant to this section; provided, however, that no such license shall be for a term exceeding 1 year.

(4) The fee for a license to establish or maintain and operate a long-term care facility shall be determined annually by the secretary of administration and finance pursuant to section 3B of chapter 7.

(c) The department shall not issue a license to establish or maintain an intermediate care facility for persons with an intellectual disability unless the department determines that there is a need for such a facility at the designated location; provided, however, that in the case of a facility previously licensed as an intermediate care facility for persons with an intellectual disability in which there is a change in ownership or transfer of operations, no such determination shall be required; and provided further, that in the case of a facility previously licensed as an intermediate care facility for persons with an intellectual disability in which there is a change in location, such determination shall be limited to consideration of the suitability of the new location.

(d)

(1) In the case of the transfer of facility operations of a long-term care facility, a potential transferee shall submit a notice of intent to acquire to the department not less than 90 days prior to the proposed transfer date. The notice of intent to acquire shall be on a form supplied by the department and shall be deemed complete upon submission of all information the department requires on said form. The potential transferee shall be deemed responsible and suitable upon the expiration of the 90-day period, or upon the expiration of said period as extended, if the department fails to notify said potential transferee in writing of its decision within the 90-day period or within the expiration of the extension period, whichever is applicable.

(2) A potential transferee shall, concurrently with the submission of an intent to acquire, provide notice to the current staff of the facility, and to any labor organization that represents the facility's staff at the time the notice of intent to acquire is submitted, of the potential transferee's plans to retain or not retain the facility staff and to recognize and bargain with any labor organizations currently representing the facility staff.

(3) Upon determination by the department that a potential transferee is responsible and suitable for licensure, the potential transferee may file an application for a license. In the case of a potential transfer of facility operations, the filing of an application for a license shall have the effect of a temporary provisional or probationary license until the department takes final action on such application.

(4) Upon an approved transfer of facility operations, the department shall not reduce the number of beds it originally approved in granting a license, unless a reduction in the number of beds is in the interest of public health, welfare or safety.

(e) Every applicant for a license shall provide on or with its application, and every potential transferee shall provide on or with its notice of intent to acquire, a sworn statement of the names and addresses of any owner of the applicant or the potential transferee.

(f) No license shall be issued to an applicant or potential transferee prior to a determination by the department that the applicant or potential transferee is responsible and suitable pursuant to subsection (g).

(g) For the purposes of this section, the department's determination of responsibility and suitability shall include, but shall not be limited to, the following factors:

(1) the criminal history of the applicant or the potential transferee, including its respective owners and management companies, and, to the extent possible, the civil litigation history of the applicant or potential transferee, including its respective owners and contracted management companies, including litigation related to the operation of a long-term care facility, such as quality of care, safety of residents or staff, employment and labor issues, fraud, unfair or deceptive business practices and landlord-tenant issues; provided, however, that such criminal and civil litigation history may include pending or other court proceedings in the commonwealth and in any other state or federal jurisdiction. Any information obtained by the department pursuant to this section that is related to criminal or civil litigation or otherwise protected from public disclosure by federal or state law shall be confidential and exempt from disclosure under clause Twenty-sixth of section 7 of chapter 4 and chapter 66;

(2) the financial capacity of the applicant or potential transferee, including its respective owners and management companies, to establish or maintain and operate a long-term care facility; provided, that financial capacity may include, but shall not be limited to, recorded liens or unpaid fees or taxes in the commonwealth or in other states;

(3) the history of the applicant or potential transferee, including its respective owners and management companies, and if applicable, the involvement of private equity firms, in providing quality long-term care in the commonwealth as measured by compliance with applicable quality measures, statutes and regulations governing the operation of long-term care facilities; provided, however, that applicable quality measures may include the Centers for Medicare and Medicaid Services Quality Rating System; and

(4) the history of the applicant or potential transferee, including its respective owners and management companies, and if applicable, the involvement of private equity firms, in providing quality long-term care in states other than the commonwealth, if any, as measured by compliance with the applicable quality measures, statutes and regulations governing the operation of long-term care facilities in said states; provided, however, that applicable quality measures may include the Centers for Medicare and Medicaid Services Quality Rating System.

(h)

(1) If the department determines that an applicant or potential transferee is not responsible and suitable, the department's determination shall take effect on the date of the department's notice to the applicant or potential transferee. In such cases and upon the filing of a written request, the department shall afford the applicant or potential transferee an adjudicatory hearing pursuant to chapter 30A.

(2) During the pendency of an adjudicatory hearing, the applicant or potential transferee shall not operate the facility as a licensee, nor, without prior approval of the department, manage such facility.

(i) Each applicant, potential transferee and licensee shall maintain current records of all information provided to the department. After the applicant, potential transferee or licensee becomes aware of any change related to information it has provided or is required to provide to the department, such person shall submit to the department written notice of the change as soon as practicable and without unreasonable delay; provided, that any change in financial status shall be provided to the department and shall include, but shall not be limited to, filing for bankruptcy, any default under a lending agreement or under a lease, the appointment of a receiver or the recording of any lien. Failure to provide timely notice of such change shall be subject to the remedies or sanctions available to the department pursuant to this chapter.

(j) An applicant, potential transferee or licensee and its respective owners and management companies shall comply with all applicable federal, state and local laws, rules and regulations.

(k)

(1) Prior to entering into a contract with a management company, an applicant, potential transferee or licensee shall notify and receive a determination from the department that the management company is responsible and suitable to manage a long-term care facility.

(2) In its notification to the department and to inform the department's review, the applicant, potential transferee or licensee shall provide the proposed management company's name, contact information and any other information on the proposed management company and its personnel that may be reasonably requested by the department, including, but not limited to, information required pursuant to subsection (g). Upon a determination by the department that the proposed management company is responsible and suitable to manage a long-term care facility, the applicant, potential transferee or licensee may engage said company to manage the long-term care facility.

(3) The applicant, potential transferee or licensee shall memorialize any such engagement in a written agreement with the management company. Such written agreement shall include a requirement that the management company and its personnel comply with all applicable federal, state and local laws, regulations and rules. Promptly after the effective date of any such agreement, the applicant, potential transferee or licensee shall provide to the department a copy of the valid, fully executed agreement. Any payment terms included in the agreement shall be confidential and exempt from disclosure under clause Twenty-sixth of section 7 of chapter 4 and chapter 66.

(4) If the department determines that a management company is not responsible and suitable, the department's determination shall take effect on the date of the department's notice to the applicant, potential transferee or licensee. In such cases and upon the filing of a written request, the department shall afford the applicant, potential transferee, licensee or management company an adjudicatory hearing pursuant to chapter 30A.

(l) The department shall not reduce the number of beds it originally approved in granting a license for a convalescent or nursing home or rest home upon the transfer of facility operations of said convalescent or nursing home or rest home from 1 licensee to another, unless a reduction in the number of beds is in the interest of public health, welfare or safety.

(m)

(1) The department shall not issue a license unless the applicant first submits to the department, with respect to each building occupied by residents:

(i) a certificate of inspection of the egresses, the means of preventing the spread of fire and apparatus for extinguishing fire, issued by an inspector of the office of public safety and inspections within the division of professional licensure; and

(ii) a certificate of inspection issued by the head of the local fire department certifying compliance with local ordinances; provided, however, that for convalescent or nursing homes, the division of health care quality within the department shall have sole authority to inspect and issue a certificate required pursuant to clause (i) of this paragraph.

(2) Any applicant who is aggrieved, on the basis of a written disapproval of a certificate of inspection by the head of the local fire department or by the office of public safety and inspections of the division of occupational licensure, may, within 30 days from such disapproval, appeal in writing to the division of occupational licensure. Failure to either approve or disapprove within 30 days after a written request by an applicant shall be deemed a disapproval. For certificates of inspection issued to convalescent or nursing homes by the bureau of health care safety and quality within the department, an applicant may, within 30 days of disapproval of a certificate of inspection, submit a written appeal to the department; provided, however, that failure of the department to either approve or disapprove of a written appeal within 30 days of the submission of such written appeal shall constitute a disapproval.

(3) If the division of occupational licensure or, where applicable, the department approves the issuance of a certificate of inspection after an appeal, the certificate shall be issued by the issuing agency. If the division of occupational licensure or, where applicable, the department does not approve the issuance of a certificate of inspection, the applicant may appeal to the superior court. Failure of said division or said department to either approve or disapprove the issuance of a certificate of inspection within 30 days after receipt of an appeal shall be deemed a disapproval. The department shall not issue a license until issuance of an approved certificate of inspection, as required pursuant to paragraph (1).

(4) Nothing in this section or in sections 72 or 73 shall be construed to supersede or otherwise affect any laws, ordinances, by-laws, rules or regulations relating to building, zoning, registration or maintenance of a long-term care facility.

(n)

(1) For cause, the department may limit, restrict, suspend or revoke a license; provided, however, that the department may temporarily suspend a license without a hearing if:

(i) the suspension is due to an emergency; and

(ii) the department allows for a hearing on the suspension in a reasonable timeframe.

(2) Grounds for cause on which the department may take action pursuant to paragraph (1) shall include:

(i) substantial or sustained failure or inability to provide adequate care to residents;

(ii) substantial or sustained failure to maintain compliance with applicable statutes, rules and regulations; or

(iii) the lack of financial capacity to maintain and operate a long-term care facility.

(3) The limits or restrictions the department may impose on a licensee include requiring a facility to limit new admissions.

(4) Suspension of a license may include suspending the license during a pending license revocation action or suspending the license to permit the licensee a period of time, not less than 60 days, to terminate operations, and discharge and transfer all residents, if applicable.

(5) With respect to an order by the department to limit, restrict or suspend a license, within 7 days of receipt of the written order, the licensee may file a written request with the department for an adjudicatory proceeding pursuant to chapter 30A.

(6) Upon a written request by a licensee who is aggrieved by the revocation or limitation of a license or by an applicant who is aggrieved by the refusal of the department to renew a license, the licensee or applicant so aggrieved shall have all the rights provided in chapter 30A with respect to adjudicatory proceedings. In no case shall the revocation of such a license take effect in less than 30 days after written notification by the department to the licensee.

(o) In the case of the new construction of, or major addition, alteration or repair to, any long-term care facility, preliminary and final architectural plans and specifications shall be submitted to a qualified person designated by the commissioner. Written approval of the final architectural plans and specifications shall be obtained from said person prior to said new construction or major addition, alteration or repair.

(p) Notwithstanding any of the other provisions of this section, the department shall not issue a license to establish or maintain and operate a long-term care facility to an applicant who applies to the department for said license to establish or maintain and operate a convalescent or nursing home unless the applicant for such license submits to the department a certificate that each building to be occupied by residents of such convalescent or nursing home meets the construction standards of the state building code, and is of at least type 1-B fireproof construction; provided, however, that this subsection shall not apply in the instance of a transfer of facility operations of a convalescent or nursing home whose license has not been revoked as of the time of such transfer; and provided, further, that a public medical institution as defined in section 8 of chapter 118E, which meets the construction standards as defined herein, shall not be denied a license as a long-term care facility pursuant to this section because it was not of new construction and designed for the purpose of operating a long-term care facility at the time of application for a license to operate a long-term care facility. An intermediate care facility for persons with an intellectual disability shall be required to meet the construction standards established for such facilities by Title XIX of the Social Security Act, Public Law 89-97 and any regulations promulgated pursuant thereto, and by regulations promulgated by the department.

(q) The department shall notify the secretary of elder affairs of the pendency of any proceeding, public hearing or action to be taken pursuant to this section relating to any convalescent or nursing home, rest home or charitable home for the aged. The department shall notify the commissioner of the department of developmental services of the pendency of any proceeding, public hearing or action to be taken pursuant to this section relating to any intermediate care facility for persons with an intellectual disability.

(r) The department shall notify the clerks of the senate and house of representatives, the joint committee on elder affairs and the senate and house committees on ways and means within 3 business days of being notified of a long-term care facility's decision to close pursuant to department regulations.

Mass. Gen. Laws ch. 111, § 111:71

Amended by Acts 2024, c. 197,§ 12, eff. 12/5/2024.

Amended by Acts 2021 , c. 39, § 45, eff. 8/5/2021.

Amended by Acts 2017 , c. 6, § 65, eff. 3/27/2017.

Amended by Acts 2010 , c. 256, § 74, eff. 2/2/2011.

Amended by Acts 2010 , c. 239, §§ 29, 30 eff. 11/2/2010.

Amended by Acts 2008 , c. 451, § 68, eff. 6/30/2009.

This section is set out more than once due to postponed, multiple, or conflicting amendments.