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: 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 abilityto provide qualitylong-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. 153.022: continued (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.