MA Gen L ch 111 § 71 (2021)
2021 Massachusetts General Laws|Part I - Administration of the Government|Title XVI - Public Health|Chapter 111 - Public Health|Section 71 - Licensing of Convalescent and Nursing Homes, Infirmaries, Etc.

[ Section impacted by 2020, 93, Secs. 1, 3 and 5 to 7 effective June 7, 2020 relating to reporting in order to address disruptions caused by the outbreak of COVID-19.]  Section 71. The department shall issue for a term of two years, and shall renew for like terms, a license, subject to revocation by it for cause, to any person whom it deems responsible and suitable to establish or maintain an infirmary maintained in a town, a convalescent or nursing home, a rest home, a charitable home for the aged or an intermediate care facility for persons with an intellectual disability, which meets the requirements of the department established in accordance with its rules and regulations; provided, however, that each convalescent or nursing home and each intermediate care facility for the mentally retarded shall be inspected at least once a year.  No original license shall be issued to establish or maintain an intermediate care facility for persons with an intellectual disability, unless there is a determination by the department that there is a need for such 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, no such determination shall be required and 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.  In the case of the transfer of ownership of a convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded, a prospective transferee, in the capacity of a prospective licensee, shall submit a notice of intent to acquire such a facility to the department at least ninety days prior to the transfer of ownership. The notice of intent shall be on a form supplied by the department and shall be deemed complete upon submission of all information which the department requires on the notice of intent form and is reasonably necessary to carry out the purposes of this section. Within ninety days of the submission of a completed notice of intent form, the department shall determine whether such prospective licensee is responsible and suitable for licensure. Requests by the department for information other than the information required on the notice of intent form shall not extend the ninety day period. Notwithstanding the foregoing, the department with the consent of said prospective licensee may extend the ninety day determination period for one additional period not to exceed thirty days.  For purposes of this section, the department's determination of responsibility and suitability shall be limited to the following factors:  (i) the criminal history of the prospective licensee, or any officer, director, shareholder or general or limited partner thereof, to which the department has been granted access or certification or may be subsequently granted access or certification by the department of criminal justice information services;  (ii) the financial capacity of the prospective licensee to operate the health care facility in accordance with applicable laws;  (iii) the history of the prospective licensee in providing long term care in the commonwealth, measured by compliance with applicable statutes and regulations governing the operation of long term care facilities; and  (iv) the history of the prospective licensee in providing long term care in states other than the commonwealth, if any, measured by compliance with the applicable statutes and regulations governing the operation of long term care facilities in said states.  The prospective licensee shall be deemed responsible and suitable upon the expiration of the ninety day period, or upon the expiration of said period as extended, if the department fails to notify said prospective licensee in writing of its decision within the ninety day period or within the expiration of the extension period, whichever is applicable.  Upon 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 the required period, and upon a transfer of ownership, the prospective licensee may file an application for a license which shall have the effect of a license until the department takes final action on the application.  If the department determines that the prospective licensee is not suitable for licensure, the department's determination shall take effect on the date of the department's notice. In such cases, the prospective licensee shall upon the filing of a written request with the department be afforded an adjudicatory hearing pursuant to chapter thirty A. During the pendency of such appeal, the prospective licensee shall not operate the facility as a licensee, nor, without prior approval of the department, manage such facility.  No transfer of ownership of a convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded shall occur unless the prospective licensee has been deemed suitable for licensure in accordance with the provisions of this section.  The department shall not reduce the number of beds originally approved by it in granting a license for a convalescent or nursing home or rest home upon the transfer of ownership of said convalescent or nursing home or rest home from one licensee to another, unless the public safety requires it.[ Tenth paragraph effective until July 18, 2021. For text effective July 18, 2021, see below.]  No original license shall be issued or no license renewed hereunder unless there shall be first submitted to the department by the authorities in charge of the convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded with respect to each building occupied by patients, (1) 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 of the division of professional licensure; provided, however, that with respect to convalescent or nursing homes only, the division of health care quality of the department of public health shall have sole authority to inspect for and issue such certificate, and (2) a certificate of inspection issued by the head of the local fire department certifying compliance with the local ordinances.[ Tenth paragraph as amended by 2021, 39, Sec. 45 effective July 18, 2021. See 2021, 39, Sec. 128. For text effective until July 18, 2021, see above.]  No original license shall be issued or no license renewed hereunder unless there shall be first submitted to the department by the authorities in charge of the convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded with respect to each building occupied by patients, (1) 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 of the division of occupational licensure; provided, however, that with respect to convalescent or nursing homes only, the division of health care quality of the department of public health shall have sole authority to inspect for and issue such certificate, and (2) a certificate of inspection issued by the head of the local fire department certifying compliance with the local ordinances.[ Eleventh paragraph effective until July 18, 2021. For text effective July 18, 2021, see below.]  Any applicant for an original or renewal license 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 professional licensure, may, within 30 days from such disapproval, appeal in writing to the division of professional licensure. With respect to certificates of inspection that the division of health care quality of the department of public health has the sole authority to issue, an applicant may, within 30 days from disapproval of a certificate of inspection, appeal in writing to the department of public health only. Failure to either approve or disapprove within 30 days, after a written request by an applicant, shall be deemed a disapproval.[ Eleventh paragraph as amended by 2021, 39, Sec. 45 effective July 18, 2021. See 2021, 39, Sec. 128. For text effective until July 18, 2021, see above.]  Any applicant for an original or renewal license 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. With respect to certificates of inspection that the division of health care quality of the department of public health has the sole authority to issue, an applicant may, within 30 days from disapproval of a certificate of inspection, appeal in writing to the department of public health only. Failure to either approve or disapprove within 30 days, after a written request by an applicant, shall be deemed a disapproval.[ Twelfth paragraph effective until July 18, 2021. For text effective July 18, 2021, see below.]  If the division of professional licensure or, where applicable, the department of public health approves the issuance of a certificate of inspection, it shall forthwith be issued by the agency that failed to approve. If said department disapproves, the applicant may appeal therefrom to the superior court. Failure of said department to either approve or disapprove the issuance of a certificate of inspection within thirty days after receipt of an appeal shall be deemed a disapproval. No original license shall be issued or no license shall be renewed by the department of public health until issuance of an approved certificate of inspection, as required in this section.[ Twelfth paragraph as amended by 2021, 39, Sec. 45 effective July 18, 2021. See 2021, 39, Sec. 128. For text effective until July 18, 2021, see above.]  If the division of occupational licensure or, where applicable, the department of public health approves the issuance of a certificate of inspection, it shall forthwith be issued by the agency that failed to approve. If said department disapproves, the applicant may appeal therefrom to the superior court. Failure of said department to either approve or disapprove the issuance of a certificate of inspection within thirty days after receipt of an appeal shall be deemed a disapproval. No original license shall be issued or no license shall be renewed by the department of public health until issuance of an approved certificate of inspection, as required in this section.  Nothing in this section or in section seventy-two or seventy-three shall be construed to revoke, supersede or otherwise affect any laws, ordinances, by-laws, rules or regulations relating to building, zoning, registration or maintenance of a convalescent or nursing home, infirmary maintained in a town, rest home or charitable home for the aged.  Upon a written request by an applicant who is aggrieved by the revocation of a license or the refusal of the department to renew a license, the commissioner and the council shall hold a public hearing, after due notice, and thereafter they may modify, affirm or reverse the action of the department; provided, however, that the department may not refuse to renew and may not revoke the license of a convalescent or nursing home, rest home, charitable home for the aged or intermediate care facility for the mentally retarded until after a hearing before a hearings officer, and any such applicant so aggrieved shall have all the rights provided in chapter thirty A with respect to adjudicatory proceedings.  In no case shall the revocation of such a license take effect in less than thirty days after written notification by the department to the convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for persons with an intellectual disability.  The fee for the issue or renewal of each license in the case of a convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for persons with an intellectual disability shall be determined annually by the commissioner of administration under the provision of section three B of chapter seven, and the license shall not be transferable or assignable and shall be issued only for the premises named in the application.  For the purposes of this section and sections seventy-two, seventy-two A and seventy-three, a convalescent or nursing home is defined as any institution, however named, whether conducted for charity or profit, which is advertised, announced or maintained for the express or implied purpose of caring for four or more persons admitted thereto for the purpose of nursing or convalescent care. An infirmary maintained in a town is an infirmary which hitherto the department of public welfare has been directed to visit by section seven of chapter one hundred and twenty-one. A rest home is defined as any institution, however named, which is advertised, announced or maintained for the express or implied purpose of providing care incident to old age to four or more persons who are ambulatory and who need supervision. A charitable home for the aged is defined as 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. An intermediate care facility for persons with an intellectual disability is defined as any institution, however named, whether conducted for charity or profit, which is advertised, announced or maintained for the purpose of providing habilitative 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 (P.L. 89-97); which is not both owned and operated by a state agency; and which makes application to the department for a license for the purpose of participating in the federal program established by said Title XIX. An original license shall mean a license issued to a convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded, not previously licensed or a license issued to an existing convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded in which there has been a change in ownership or location; provided, however, that an application for a license to establish or maintain a charitable home for the aged by any person licensed hereunder shall be deemed an application for renewal of a license and not an application for an original license.  Nursing institutions licensed by the department of mental health, or the department of developmental services for mental cases shall not be licensed or inspected by the department of public health. The inspections herein provided shall be in addition to any other inspections required by law.  In the case of new construction, or major addition, alteration, or repair with respect to any facility subject to this section, preliminary architectural plans and specifications 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.  Notwithstanding any of the foregoing provisions of this section, no original license for the establishment or maintenance of a convalescent or nursing home shall be issued by the department unless the applicant for such license submits to the department a certificate that each building to be occupied by patients 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 paragraph shall not apply in the instance of change of ownership of a convalescent or nursing home whose license had not been revoked as of the time of such change of ownership; and provided, further, that a public medical institution as defined under section two of chapter one hundred and eighteen E, which meets the construction standards as defined herein, shall not be denied a license as a nursing home under this section because it was not of new construction and designed for the purpose of operating a convalescent or nursing home at the time of application for a license to operate a nursing home. 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 (P.L. 89-97) and any regulations promulgated pursuant thereto, and by regulations promulgated by the department.  The licensee of every convalescent or nursing home or intermediate care facility for the mentally retarded shall file with the department, at the time his license is due for renewal, a sworn statement of the names and addresses of any person with an ownership or control interest in the home or in the real property occupied and used as such home or facility. As used herein, the phrase "person with an ownership or control interest'' shall have the definition set forth in 42 USC Sec. 1320a-3 of the Social Security Act and in regulations promulgated hereunder by the department.  The department may, when public necessity and convenience require, or to prevent undue hardship to an applicant or licensee, under such rules and regulations as it may adopt, grant a temporary provisional or probationary license under this section; provided, however, that no such license shall be for a term exceeding one year.  For the purposes of this section "changes in ownership'' of a convalescent or nursing home, infirmary, rest home, charitable home for the aged or intermediate care facility for persons with an intellectual disability shall, in the case of a corporation, mean transfer of a majority of the stock thereof, and in all other cases, a transfer of a majority interest therein.  The department shall notify the secretary of elder affairs forthwith of the pendency of any proceeding of any public hearing or of any action to be taken under this section relating to any convalescent or nursing home, rest home, infirmary maintained in a town, or charitable home for the aged. The department shall notify the commissioner of mental health forthwith of the pendency of any proceeding, public hearing or of any action to be taken under this section relating to any intermediate care facility for persons with an intellectual disability.