Suitability and Responsibility of Applicant or Licensee

(A) Each of the following, in and of itself and as determined by the Department, constitutes full and adequate ground for deeming an applicant or licensee neither suitable nor responsible to establish or maintain a Program: (1) The applicant or licensee failed to demonstrate legal capacity as demonstrated by such documents as articles of incorporation, to provide the services for which a license is sought. (2) The applicant or licensee has acted in a manner resulting in jeopardy to the health, safety, or welfare of any individual. (3) The applicant or licensee has prevented or attempted to impede the work of any duly authorized representative of the Department or the lawful enforcement of any provision of M.G.L. c. 111, M.G.L. c. 112, or regulations promulgated thereunder. (4) The applicant or licensee plans to assume or has assumed ownership of a Program in an effort to circumvent the effect and purpose of 105 CMR 158.000. (5) The financial management of one or more Programs for which an applicant or licensee was licensed has resulted in the filing of a petition for bankruptcy or receivership related to the financial solvency of the Program. (6) The financial management of one or more Programs, in Massachusetts or another jurisdiction, for which an applicant or licensee was licensed has resulted in a lack of sufficient financial resources, as determined by the Department, to provide services required by state and federal laws and regulations. (7) A Program owned or operated by the applicant or licensee has been the subject of proceedings which resulted in the suspension, denial, or revocation of the license of that Program or has been the subject of proceedings which resulted in the termination of the Program's participation in MassHealth. (8) The applicant or licensee has failed to maintain a substantially consistent and adequate level of care, as measured by compliance with applicable licensing regulations in Massachusetts or elsewhere, with applicable federal and state regulations under the Medicaid or Medicare programs, and other pertinent evidence, in any institution for which the applicant or licensee has been a licensee in Massachusetts or elsewhere. (a) The serious violation of applicable regulations shall constitute the failure to maintain a substantially consistent and adequate level of care. (b) For purposes of 105 CMR 158.015(A)(8)(a), the following factors will be considered in determining whether a violation of applicable regulations is "serious". 1. The extent of any violation, including but not limited to: a. The number of participants affected; b. The length of time the violation persists; c. The frequency of the violation. 2. The actual or potential impact of any violation on participants of the Program. Violation of regulations in the following areas will be presumed to have an adverse impact upon participants: a. Participant rights; b. Adequate nursing services; c. Total nursing needs met; d. Receipt of proper medication and diet; e. Participant comfort; f. Participant cleanliness and grooming; g. Participant safety; h. Proper use of restraints; i. Proper sanitation; j. Infection control; k. Adequate equipment, supply, and storage; l. Therapeutic activities; m. Rehabilitation services; n. Service coordination; and o. Confidentiality of participant medical and personal information. (9) The applicant or licensee has been the subject of specific documented findings by the Department of abuse, mistreatment, or neglect or misappropriation of property, made in accordance with M.G.L. c. 111, § 72J. (B) Factors which have a significant bearing on the suitability and responsibility of an applicant or licensee include, but are not limited to: (1) The applicant or licensee has failed to demonstrate that he or she has competence and experience in operating a Program. (2) The applicant or licensee has failed to report participant abuse, mistreatment, neglect, or misappropriation to the Department. (3) The applicant or licensee has been convicted of, pleaded guilty to, or has, in a judicial proceeding, admitted facts sufficient for a finding that he or she is guilty of, any felony. (4) The Attorney General has filed an action in any court concerning conditions in any health care facility for which the applicant or licensee was licensed, if that lawsuit resulted in an order or judgment against the applicant or licensee granting damages or any form of equitable relief, including an injunction. (5) A Program owned or operated by the applicant or licensee, in Massachusetts or elsewhere, has been the subject of proceedings which were ultimately resolved by settlement agreement but which were initiated to suspend, deny, or revoke the license or renewal license or to terminate the Program's participation in MassHealth. (6) The applicant or licensee has obtained or attempted to obtain a license by fraud or misrepresentation or by submitting false information. (7) The applicant or licensee has employed in a management or supervisory position a person whom a hearing officer has determined pursuant to 105 CMR 158.015 to be unsuitable or not responsible to establish or maintain a Program.