105 CMR 153.018 - Hearings

(A) Suspension of a License.

(1) Upon written request, the licensee shall be afforded an opportunity to be heard concerning the suspension of a license by the Commissioner.

(2) Such a hearing shall be initiated pursuant to 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure no later than 21 calendar days after the effective date of the suspension.

(3) In cases of suspension of a license, the hearing officer shall determine whether the Department has proved by a preponderance of the evidence that there existed, immediately prior to or at the time of the suspension, a jeopardy situation.

(B) Revocation of or Refusal to Renew License.

(1) A license may be revoked or refused renewal only after a hearing as required by M.G.L. c. 111, § 71.

(2) If the Commissioner determines that a licensee is not suitable or responsible or that a license should be revoked or refused renewal pursuant to 105 CMR 153.000, the Commissioner shall initiate a hearing pursuant to 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure.

(3) In cases of revocation of or refusal to renew a license, the hearing officer shall determine whether the Department has proved by a preponderance of the evidence that the licensee is not suitable or responsible and/or that the license should be revoked or refused renewal, based on relevant facts as they existed at or prior to the time the Commissioner initiated the hearing procedure.

(C) License Denial.

(1) Upon receipt of notice that an application for licensure hereunder has been denied, an applicant may appeal to a hearing officer pursuant to 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure.

(2) In cases of denial of an original license, the hearing officer shall determine whether the applicant has proved by preponderance of the evidence that he or she is suitable and responsible for licensure under M.G.L. c. 111, § 71 and 105 CMR 153.000.

(D) Limitation on New Admissions.

(1) An appeal of the Commissioner's order pursuant to 105 CMR 153.015 to limit or not admit any new residents at a long-term care facility may be requested by filing in writing a Notice of Claim for an Adjudicatory Proceeding pursuant to 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure within 14 calendar days of receipt of the order.

(2) An order to limit or not admit new residents shall remain in effect pending the hearing officer's decision on the appeal.

(3) If the hearing officer finds the Department has proved by a preponderance of the evidence at the time the determination was made (a) that the subject long-term care facility was not in substantial compliance with the state statutes or regulations set forth in 105 CMR 153.015(A) or the federal conditions of participation at 42 CFR 483, or (b) jeopardy existed at the subject long-term care facility, then the hearing officer shall uphold the determination made by the Commissioner.

(E) Denial, Revocation or Refusal to Renew Based on Lack of Certificate of Inspection. If the Department is notified that the Office of Public Safety and Inspections or the head of the local fire department has denied any applicant or licensee a certificate of inspection, and that an appeal, if requested, has been duly denied by the Office of Public Safety and Inspections, the Commissioner may:

(1) inform the applicant or licensee that the Department has been notified that a certificate of inspection has been denied;

(2) offer the applicant or licensee an opportunity to submit a current certificate of inspection within two weeks, or within such other time period as the Commissioner shall designate; or

(3) deny, revoke or refuse to renew the license of the applicant or licensee without further hearing unless the applicant or licensee submits a current certificate of inspection within the time allowed.

(F) Denial, Revocation or Refusal to Renew Based on Criminal Record.

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

(a) abuse, mistreatment or neglect of any resident of a long-term care facility;

(b) rape, felonious assault or any other felony against a person; or

(c) a felony involving the misuse of funds in connection with the Medicaid or Medicare program including, but not limited to, the misuse of patient or resident funds, the Commissioner shall notify, in writing, said applicant or licensee that his or her application or license will be denied, revoked or refused renewal unless said applicant or licensee has been determined suitable for licensure pursuant to a formal settlement agreement or the application of previous regulatory provisions.

(2) Said notice shall include the factual basis for the Department's determination.

(3) The Commissioner shall afford the applicant or licensee 21 days, from receipt of the written notification, to submit court records to show that the conviction, plea or admission was not entered or made or has subsequently been vacated or reversed upon appeal.

(4) The Commissioner shall deny, revoke or refuse to renew the license of the applicant or licensee without further hearing unless the applicant or licensee submits the documentation required in 105 CMR 153.018(F)(3).

Notes

105 CMR 153.018

Amended by Mass Register Issue 1303, eff. 1/1/2016. Amended by Mass Register Issue 1372, eff. 8/24/2018. Amended by Mass Register Issue 1479, eff. 9/30/2022.