105 CMR 153.022 - Transfer of Ownership
(A) At least 90
calendar days in advance of a proposed transfer of ownership, any applicant who
intends to acquire a long-term care facility shall submit a Notice of Intent
form to the Department. The Department shall notify each applicant in writing
of the date on which the form is deemed complete. Within 90 days of such date,
the Department shall complete its suitability review for licensure. With the
consent of the applicant, the Department may extend the 90-day suitability
determination period for a maximum of 30 days. In the event that the Department
fails to notify the applicant in writing of its decision regarding suitability
within the prescribed time period, the applicant shall be deemed responsible
and suitable.
(B)
Opportunity for Public Input. All applicants must meet
the following requirements:
(1)
Public Notice. Within seven days of submitting the
Notice of Intent form to the Department, the applicant shall also publish
notice in the daily newspaper(s) within the city or town of, or nearest to, the
location of the facility and prominently display this notice on the website for
the long-term care facility being acquired, if available. This public notice
shall accurately describe the proposed acquisition and meet the following
requirements:
(a) The notice must contain the
name and address of the health care facility being acquired; name and address
of the seller; name and address of the buyer; potential changes, if any, in the
services of the health care facility; and the potential changes, if any, in the
bed capacity of the facility. In addition, the written notice must contain the
following statements: "A public hearing may be requested upon petition by any
group of ten adults. Such petition shall include the name, address and
signature of each adult and designate one member as the representative of the
group. Written comments concerning the applicant's ability to provide quality
long-term care services and petitions for a public hearing may be addressed to
the offices of the Department of Public Health, Division of Health Care
Facility Licensure and Certification." Such notice shall state that a request
for hearing may be made for a period of 14 days following publication in the
newspaper. The notice shall include both physical and electronic mail addresses
provided by the Department for the submission of comments.
(b) If the notice as published does not
contain all of the information listed in
105 CMR
153.022(B)(1)(a), the
Department may require republication of the notice within a reasonable period
of time.
(c) The newspaper notice
shall appear in the Legal Notice section; and shall be captioned as
appropriate, such as "Public Announcement Concerning (name of health care
facility)." An identical notice shall also be published at least once in some
other section of the same newspaper.
(d) No final determination of suitability
shall be made unless the applicant has submitted a true copy of such
notice.
(2) Within seven
days of the Notice of Intent form being submitted to the Department, the
current owner or current licensee of a facility that is the subject of a Notice
of Intent shall provide a copy of the notice required by
105 CMR 153.022(B)(1)
to the following:
(a) Each resident of the facility and, where
applicable, the resident's legal representative;
(b) The designated family member of each
resident;
(c) The facility's
resident council;
(d) The
facility's family council;
(e) Each
staff member of the facility;
(f)
Every labor organization that represents the facility's workforce during the
period of the transfer of ownership;
(g) The Office of the State Long-term Care
Ombudsman;
(h) The Office of the
Local Long-term Care Ombudsman;
(i)
The members of the General Court who represent the city or town where the
facility is located; and
(j) A
representative of the local officials of the city or town where the facility is
located.
The current owner or licensee shall submit a signed statement to the Department that such notice was provided in accordance with 105 CMR 153.022(B)(2) 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.
(3)
Hearings.
(a) Upon
receipt of a petition for a hearing, the Department will hold a hearing no
later than 45 days before the proposed date for the transfer of
ownership.
(b) The Department shall
notify in writing the applicant, the current owner or current licensee, and the
petitioner group's representative of any hearing that is scheduled under 104
CMR 153.022. The current owner or licensee shall immediately post a notice of
the hearing in the facility that is subject of the Notice of Intent. The posted
notice shall include the date, time, location and purpose of the hearing and
shall be placed in locations that are easily visible to residents, employees,
and visitors. At minimum, the notice shall be placed in the dining room, in the
activity room, and main entrance. A copy of the text of the notice shall be
readily available upon request by any resident, a resident's legal
representative, employee or visitor. The current owner or licensee shall
immediately inform, in writing, the resident council and family council in the
facility, if there is a resident council or family council, of the date, time,
location, and purpose of any hearing regarding the transfer of
ownership.
(c) The Department shall
take any written comments and comments presented at the hearing into
consideration in its determination of the suitability and responsibility of the
potential new owner.
(d) If a
single transfer of ownership involves multiple facilities, the Commissioner may
in his or her discretion schedule one or more consolidated hearings regarding
the transfer of ownership.
(C) Any person applying for a license as a
result of any transfer of ownership shall file proof that such transfer has
occurred within two business days of the transfer unless an extension of the
two business day period is granted by the Commissioner.
(D) A license application filed as a result
of a transfer of ownership, if timely filed, shall have the effect of a license
from the date of transfer or until such time as the Department takes action on
the application. If not timely filed, such an application shall not have such
effect.
(E) In the case of a
transfer of ownership, the existing classification shall not be upgraded or
downgraded without written approval by the Department. Except as provided in
105 CMR
153.028(B), the existing
number of currently licensed beds shall not be exceeded without Determination
of Need approval.
(F) Any notice of
hearing, order or decision that the Department or the Commissioner issues for a
facility prior to a transfer of ownership shall be effective against the former
owner prior to such transfer and, where appropriate, the new owner, following
such transfer unless said notice, order or decision is modified or dismissed by
the Department or by the Commissioner.
(G) A transfer of ownership shall not be
recognized and the new owner shall not be considered suitable for licensure
when the transfer is proposed or made to circumvent the effect and purpose of
105 CMR
153.000. The Department shall consider the following
factors in determining whether a transfer has been proposed or made to
circumvent
105 CMR
153.000:
(1) the
transferor's record of compliance with Department licensure laws and
regulations;
(2) the transferor's
current licensure status;
(3) the
transferor's familial, business and/or financial relation to the
transferee;
(4) the terms of the
transfer; and
(5) the consequences
of the transfer.
(H) The
Department shall be notified immediately in writing of any proposed change in
name or location of a facility. A license shall not be transferred from one
person or entity to another or from one location to another.
(I) The Commissioner may waive the time frame
for notification or a hearing where the Commissioner has determined that such a
waiver is necessary to protect the health and safety of the facility's
residents.
(J) The Commissioner
may, in his or her discretion, determine that a proposed transaction does not
rise to the level of a transfer of ownership.
Notes
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