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The 191st General Court of the Commonwealth of Massachusetts

Section 7: Licensing and approval of facilities

Section 7. The department shall issue for a term of two years, and may renew for like terms, a license, subject to revocation by it for cause, to any person, partnership, corporation, society, association or other agency or entity of any kind, other than a licensed general hospital or a department, agency or institution of the federal government, the commonwealth or any political subdivision thereof, deemed by it to be responsible and suitable to establish and maintain a facility and to meet applicable licensure standards and requirements set forth in regulations of the department. In the case of a department, agency or institution of the commonwealth or any political subdivision thereof, the department shall grant approval to establish and maintain a facility for a term of two years, and may renew such approval for like terms, subject to revocation by it for cause. The department may issue a provisional license or approval where a facility has not previously operated, or is operating but is temporarily unable to meet applicable standards and requirements. The commissioner shall promulgate rules and regulations establishing licensure and approval standards and requirements, which shall include, but not be limited to:

(1) the health standards to be met by a facility;

(2) misrepresentations regarding the treatment that would be provided to patients at a facility;

(3) licensing fees;

(4) procedures for making and approving license applications;

(5) the services and treatment provided by programs at a facility;

(6) certification of capability of self-preservation;

(7) a requirement that a facility provide services to commonwealth residents with public health insurance on a non-discriminatory basis and report the facility's payer mix to the department on a quarterly basis; and

(8) the standards or criteria that a facility shall meet to demonstrate the need for an original license; provided, however, that such standards or criteria shall be reviewed by the department every 2 years and shall be limited to: (i) the health needs of drug dependent persons and persons with alcoholism, as defined in section 3 of chapter 111B, 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 such persons.

Each facility shall file with the department such data, statistics, schedules or information as the department may require.

The department may, after holding a hearing in accordance with sections 10 to 13, inclusive, of chapter 30A refuse to grant or may suspend, revoke, limit or restrict the applicability of or refuse to renew a license or approval for the following reasons only:

(1) failure to meet the requirements of its rules and regulations under this section;

(2) if there is a reasonable basis for the department to conclude that there is a discrepancy between representations by a facility as to the treatment services to be afforded patients and the treatment services actually rendered or to be rendered;

(3) failure to comply with section 10; or

(4) an application for an original license fails to meet the department's standards or criteria for demonstrating need.

The department may temporarily suspend a license or approval in an emergency without holding a prior hearing; provided, however, that on the request of an aggrieved party, a hearing in accordance with sections 10 to 13, inclusive, of chapter 30A shall be held as soon as possible after the license or approval is suspended. A party aggrieved by a final decision rendered by the commissioner or a hearing officer after a hearing of the department pursuant to this section may petition for judicial review in accordance with the provisions of section 14 of said chapter 30A.

The department may conduct surveys and investigations to enforce compliance with this section and any rule or regulation promulgated pursuant to this chapter. If upon inspection, or through information in its possession, the department finds that a facility licensed by the department is not in compliance with a requirement established under this chapter, the department may order the facility to correct such deficiency by issuing a corrective action order, which shall provide the facility written notice of each deficiency. The order shall specify a reasonable time, not more than 60 days after receipt of the notice, by which time the facility shall remedy or correct each deficiency cited in the notice; provided, however, that in the case of any deficiency which, in the opinion of the department, is not capable of correction within 60 days, the department shall require that the facility submit a written plan for correction of the deficiency in a reasonable manner. The department may modify any nonconforming written plan for correction upon notice in writing to the facility. Not more than 7 days after the receipt of notice of such modification of a written plan for correction, the affected facility 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, corrective action order 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, corrective action order or plan for correction jeopardizes the health or safety of patients or the public or seriously limits the capacity of a facility to provide adequate care, or where the violation of such rule, regulation, corrective action order or plan for correction is the second or subsequent such violation occurring during a period of 12 months.

If a facility fails to remedy or correct a cited deficiency by the date specified in the corrective action order 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 facility's license; (ii) impose a civil fine upon the facility; (iii) pursue any other sanction as the department may impose administratively upon the facility; 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 section shall not exceed $1,000 per deficiency for each day the deficiency continues to exist beyond the date prescribed for correction.

No person, partnership, corporation, society, association, other agency, or entity of any kind, except a licensed general hospital, a department, agency or institution of the federal government, the commonwealth or any political subdivision thereof, shall operate a facility without a license and no department, agency or institution of the commonwealth or any political subdivision thereof shall operate a facility without approval from the department pursuant to this section. Upon petition of the department, the superior court shall have jurisdiction in equity to restrain any violation of this section and to take such other action as equity and justice may require to enforce its provisions.

Whoever knowingly establishes or maintains a private facility, other than a licensed general hospital, without a license granted pursuant to this section shall, for a first offense, be punished by a fine of not more than $500 and for each subsequent offense by a fine of not more than $1,000 or imprisonment for not more than 2 years, or both.

A facility shall be subject to visitation and inspection by the department to enforce compliance with this chapter and any rule or regulation issued thereunder. The department shall inspect each facility prior to granting or renewing a license or approval. The department may examine the books and accounts of any facility if it deems such examination necessary for the purposes of this section.

The department is hereby authorized to make a complaint to a district court or to a justice of the superior court, who may thereupon issue a warrant to any officers or employees of the department authorizing them to enter and inspect at reasonable times, and to examine the books and accounts of, any private facility refusing to consent to such inspection or examination by the department which the department has reason to believe is operating in violation of the provisions of this chapter. Refusal by the operator or owner to allow such entry and inspection pursuant to such a warrant shall for a first offense be punished by a fine of not more than one hundred dollars and for each subsequent offense by a fine of not more than one thousand dollars or imprisonment for not more than two years, or both.

For the purposes of this section, the term facilities shall include penal facilities.