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The 192nd General Court of the Commonwealth of Massachusetts

Section 19: Inpatient psychiatric, residential or day care services; licenses

Section 19. (a) The department shall issue for a term of 2 years, and may renew for like terms, a license, subject to revocation by the department for cause, to any private, county or municipal facility or department or unit of any such facility that: (i) offers to the public inpatient psychiatric, residential or day care services; (ii) is represented as providing treatment of persons with a mental illness; and (iii) meets the department's applicable licensure standards and requirements, set forth in regulations of the department; provided, however, that: (1) the department may issue a license to those facilities, departments or units providing care but not treatment of persons with a mental illness; and (2) licensing by the department shall not be required where such residential or day care treatment is provided within an institution or facility licensed by the department of public health pursuant to chapter 111, unless such services are provided on an involuntary basis. Whether or not a license is issued under clause (1), the department shall make regulations for the operation of such facilities, departments or units. The department may issue a provisional license to a facility, department or unit that has not previously operated, or is operating but is temporarily unable to meet applicable standards and requirements. No original license shall be issued to establish or maintain a facility, department or unit subject to licensure under this section, unless there is determination by the department, in accordance with its regulations, that there is need for such a facility, department or unit, as described in subsection (c). The department may grant the type of license that it deems suitable for the facility, department or unit. The department shall fix reasonable fees for licenses and renewal of licenses. In order to be licensed by the department under this section, a facility, department or unit shall provide services to commonwealth residents with public health insurance on a non-discriminatory basis and shall report the facility's payer mix to the department on a quarterly basis.

(b) Each facility, department or unit licensed under the provisions of this section shall maintain and make available to the department such statistical and diagnostic data as may be required by the department.

(c) Each facility, department or unit licensed by the department shall be subject to supervision, visitation and inspection by the department. The department shall inspect each facility, department or unit prior to granting or renewing a license pursuant to this section. The department shall establish regulations to administer licensing standards and to provide operational standards for such facilities, departments or units, including, but not limited to, the standards or criteria that an applicant shall meet to demonstrate the need for an original license; provided, however, that those standards or criteria shall be reviewed by the department every 2 years and shall be limited to: (i) the health needs of persons with a mental illness in the commonwealth, including underserved populations and persons with co-occurring mental illness and substance use disorder; and (ii) the demonstrated ability and history of a prospective licensee to meet the needs of those persons.

The regulations promulgated by the department pursuant to this section shall provide that no facility, department or unit shall discriminate against an individual, qualified within the scope of the individual's license, when considering or acting on an application of a licensed independent clinical social worker for staff membership or clinical privileges. The regulations shall further provide that each application shall be considered solely on the basis of the applicant's education, training, current competence and experience. Each facility, department or unit shall establish, in consultation with the director of social work or, if none, a consulting licensed independent clinical social worker, the specific standards, criteria and procedures to admit an applicant for staff membership and clinical privileges. Such standards shall be available to the department upon request.

(d) The department may refuse to grant, suspend, revoke, limit or restrict the applicability of or refuse to renew a license granted under this section, subject to the procedural requirements of section thirteen of chapter thirty A, for any violation of its regulations or standards concerning such facilities, department or unit, including the denial or conditional issuance of an original license if an application does not meet the department's standards or criteria for demonstrating need, as described in subsection (c). The department may temporarily suspend a license prior to a hearing in cases of emergency if it deems that such suspension would be in the public interest; provided, however, that upon request of an aggrieved party, a hearing pursuant to section thirteen of chapter thirty A shall be held after the license is suspended. Any party aggrieved by a decision of the department under this section may appeal in accordance with the provisions of section fourteen of chapter thirty A.

(e) The department may conduct surveys and investigations to enforce compliance with this section and any rule or regulation promulgated pursuant to this section. The department may examine the books and accounts of any facility, department or unit if it deems such examination necessary for the purposes of this section. If upon inspection or through information in its possession, the department finds that a facility, department or unit licensed by the department is not in compliance with a requirement established under this section, the department may order the facility, department or unit to correct the deficiency by providing the facility, department or unit a deficiency notice in writing of each deficiency. The notice shall specify a reasonable time, not more than 60 days after receipt of the notice, by which time the facility, department or unit shall remedy or correct each deficiency cited in the notice; provided, however, that in the case of a deficiency which, in the opinion of the department, is not capable of correction within 60 days, the department shall require that the facility, department or unit submit a written plan for correction of the deficiency in a reasonable manner. The department may modify a nonconforming written plan for correction upon notice in writing to the facility, department or unit. Not more than 7 days after the receipt of notice of such a modification of a written plan for correction, the affected facility, department or unit may file a written request with the department for administrative reconsideration of the modified plan for correction or any portion thereof.

Nothing in this section shall be construed to prohibit the department from enforcing a rule, regulation, deficiency notice or plan for correction, administratively or in court, without first affording formal opportunity to make correction, or to seek administrative reconsideration under this section, where, in the opinion of the department, the violation of such rule, regulation, deficiency notice or plan for correction jeopardizes the health or safety of patients or the public or seriously limits the capacity of a facility, department or unit to provide adequate care, or where the violation of such rule, regulation, deficiency notice or plan for correction is the second or subsequent such violation occurring during a period of 12 months.

If a facility, department or unit fails to remedy or correct a cited deficiency by the date specified in the written deficiency notice or fails to remedy or correct a cited deficiency by the date specified in a plan for correction, as accepted or modified by the department, the department may: (i) suspend, limit, restrict or revoke the license of the facility, department or unit; (ii) impose a civil fine upon the facility, department or unit; (iii) pursue any other sanction as the department may impose administratively upon the facility, department or unit; or (iv) impose any combination of the penalties set forth in clauses (i) to (iii), inclusive, of this paragraph. A civil fine imposed pursuant to this subsection shall not exceed $1,000 per deficiency for each day the deficiency continues to exist beyond the date prescribed for correction.

(f) No facility, department or unit, for which a license is required under subsection (a), shall provide inpatient psychiatric, residential or day care services for the treatment or care of persons with a mental illness, unless it has obtained a license under this section. The superior court sitting in equity shall have jurisdiction, upon petition of the department, to restrain any violation of this section or to take such other action as equity and justice may require. Whoever violates this section shall be punished for the first offense by a fine of not more than $500 and for subsequent offenses by a fine of not more than $1,000 or by imprisonment for not more than 2 years, or both.

(g) No patient at a facility, department or unit subject to licensure under this section shall be commercially exploited. No patient shall be photographed, interviewed or exposed to public view without the express written consent of the patient or the patient's legal guardian.

(h) Notwithstanding subsections (a) to (g), inclusive, a child care center, family child care home, family child care system, family foster care or group care facility, as defined in section 1A of chapter 15D, shall not be subject to this section.

(i) As used in this section, ''original license'' shall mean a license, including a provisional license, issued to a facility, department or unit not previously licensed, or a license issued to an existing facility, department or unit in which there has been a change in ownership or location or a change in class of license or specialized service as provided in regulations of the department.