PETITION OF:

SECTION 1. . Chapter 118E of General Laws, as appearing in the 2004 Official Edition, is hereby amended by inserting the following new section:--

Section 53: Medical Day Care Centers

Section 1. Legislative intent.--It is the intent of the Legislature to develop, establish, and enforce licensure and basic standards for medical day care centers in order to assure that the centers provide the necessary family-centered medical, developmental, physiological, nutritional, psychosocial, and family training services.

Section 2. Definitions.--As used in this part, the term:

(1) "Medical day care centers," hereinafter referred to as a "MDC center," means any building or buildings, or other place, whether operated for profit or not, which undertakes through its ownership or management to provide basic nonresidential services to three or more medically dependent or technologically dependent children who are not related to the owner or operator by blood, marriage, or adoption and who require such services.

(2) "Agency" means the Office of Medicaid, or MassHealth.

(3) "Basic services" includes, but is not limited to, development, implementation, and monitoring of a comprehensive protocol of care, developed in conjunction with the parent or guardian, which specifies the medical, nursing, psychosocial, and developmental therapies required by the medically dependent or technologically dependent child served as well as the caregiver training needs of the child's legal guardian.

(4) "Owner or operator" means any individual who has general administrative charge of a MDC center.

(5) "Medical records" means medical records maintained in accordance with accepted professional standards and practices as specified in the rules implementing this part.

(6) "Medically dependent or technologically dependent child" means a child who because of a medical condition requires continuous therapeutic interventions or skilled nursing supervision which must be prescribed by a licensed physician and administered by, or under the direct supervision of, a licensed registered nurse.

(7) "Supportive services or contracted services" include, but are not limited to, speech therapy, occupational therapy, physical therapy, social work, developmental, child life, and psychological services.

Section 3. MDC centers to be licensed; exemptions.--

(1) For the administration of this section, facilities to be licensed by the agency shall include all MDC centers as defined in this part which are not otherwise exempt as provided in subsection (2).

(2) A facility, institution, or other place operated by the Federal Government or any agency thereof is exempt from the provisions of this part.

Section 4. License required; fee; exemption; display.--

(1)(a) It is unlawful to operate or maintain a MDC center without first obtaining from the agency a license authorizing such operation. The agency is responsible for licensing MDC centers in accordance with the provisions of this part.

(b) Any person who violates paragraph (a) is guilty of a felony of the third degree, punishable as provided in the Massachusetts General Laws.

(2) Separate licenses are required for MDC centers maintained on separate premises, even though they are operated under the same management. Separate licenses are not required for separate buildings on the same grounds.

(3) The annual license fee required of a MDC center shall be in an amount determined by the agency to be sufficient to cover the agency's costs in carrying out its responsibilities under this part, but shall not be less than $500 or more than $1,500.

(4) County-operated or municipally operated MDC centers applying for licensure under this section are exempt from the payment of license fees.

(5) The license shall be displayed in a conspicuous place inside the MDC center.

(6) A license shall be valid only in the possession of the individual, firm, partnership, association, or corporation to whom it is issued and shall not be subject to sale, assignment, or other transfer, voluntary or involuntary; nor shall a license be valid for any premises other than that for which originally issued.

(7) Any license granted by the agency shall state the maximum capacity of the facility, the date the license was issued, the expiration date of the license, and any other information deemed necessary by the agency.

Section 5. Initial application for license.--

(1) Application for a license shall be made to the agency on forms furnished by it and shall be accompanied by the appropriate license fee unless the applicant is exempt from payment of the fee as provided in Section 4.

(2) The application shall be under oath and shall contain the following:

(a) The name and address of the applicant and the name by which the facility is to be known. Pursuant thereto:

1. If the applicant is a firm, partnership, or association, the application shall contain the name and address of every member thereof.

2. If the applicant is a corporation, the application shall contain its name and address, the names and addresses of its directors and officers, and the name and address of each person having at least a 10 percent interest in the corporation.

(a) The names and addresses of other persons of whom the agency may inquire as to the character and reputation of the applicant and, if applicable, of the owner or operator.

(b) The names and addresses of other persons of whom the agency may inquire as to the financial responsibility of the applicant.

(c) Such other reasonable information as may be required by the agency to evaluate the ability of the applicant to meet the responsibilities entailed under this part.

(d) The location of the facility for which a license is sought and documentation, signed by the appropriate local government official, which states that the applicant has met local zoning requirements.

(3) The applicant for licensure shall furnish satisfactory proof of financial ability to operate and conduct the MDC center in accordance with the requirements of this part.

(4) The applicant for licensure shall furnish proof of adequate liability insurance coverage or protection.

(5) Each applicant for licensure must comply with the following requirements:

(a) Upon receipt of a completed, signed, and dated application, the agency shall require background screening, in accordance with rules and regulations established by the agency and the Office of Child Care Services, of the operator, and of the financial officer, or other similarly titled individual who is responsible for the financial operation of the center, including billings for patient care and services. The applicant must comply with the procedures for such background checks.

(b) The agency may require background screening of any other individual who is an applicant if the agency has a reasonable basis for believing that he or she has been convicted of a crime or has committed any other offense prohibited by regulations defined by the agency and the Office of Child Care Services.

(c) Proof of compliance with such background check requirements which has been submitted within the previous 5 years in compliance with any other health care licensure requirements of this state is acceptable in fulfillment of the requirements of paragraph (a).

(d) Each applicant must submit to the agency, with its application, a description and explanation of any exclusions, permanent suspensions, or terminations of the applicant from the Medicare or Medicaid programs. Proof of compliance with the requirements for disclosure of ownership and control interests under the Medicaid or Medicare programs shall be accepted in lieu of this submission.

(e) Each applicant must submit to the agency a description and explanation of any conviction of an offense prohibited under regulations by a member of the board of directors of the applicant, its officers, or any individual owning 5 percent or more of the applicant. This requirement does not apply to a director of a not-for-profit corporation or organization if the director serves solely in a voluntary capacity for the corporation or organization, does not regularly take part in the day-to-day operational decisions of the corporation or organization, receives no remuneration for his or her services on the corporation or organization's board of directors, and has no financial interest and has no family members with a financial interest in the corporation or organization, provided that the director and the not-for-profit corporation or organization include in the application a statement affirming that the director's relationship to the corporation satisfies the requirements of this paragraph.

(f) A license may not be granted to an applicant if the applicant or managing employee has been found guilty of, regardless of adjudication, or has entered a plea of nolo contendere or guilty to, any offense prohibited under the regulations of the agency at the Office of Child Care Services.

(g) The agency may deny or revoke licensure if the applicant:

1. Has falsely represented a material fact in the application required by paragraph (e) or paragraph (f), or has omitted any material fact from the application required by paragraph (e) or paragraph (f); or

2. Has had prior action taken against the applicant under the Medicaid or Medicare program as set forth in paragraph (e).

(h) An application for license renewal must contain the information required under paragraphs (e) and (f).

Section 6. Denial, suspension, revocation of licensure; administrative fines; grounds.--

(1) Any of the following actions by a MDC center or its employee is grounds for action by the agency against a MDC center or its employee:

(a) An intentional or negligent act materially affecting the health or safety of children in the MDC center.

(b) A violation of the provisions of this part or of any standards or rules adopted pursuant to this section.

(2) The agency shall be responsible for all investigations and inspections conducted pursuant to this section.

Section 7. Administrative fines; disposition of fees and fines.--

(1)(a) If the agency determines that a MDC center is being operated without a license or is otherwise not in compliance with rules adopted under this part, the agency, notwithstanding any other administrative action it takes, shall make a reasonable attempt to discuss each violation and recommended corrective action with the owner of the MDC center prior to written notification thereof. The agency may request that the MDC center submit a corrective action plan which demonstrates a good faith effort to remedy each violation by a specific date, subject to the approval of the agency.

(b) The agency may fine a MDC center or employee found in violation of rules adopted pursuant to this part in an amount not to exceed $500 for each violation. Such fine may not exceed $5,000 in the aggregate.

(c) The failure to correct a violation by the date set by the agency, or the failure to comply with an approved corrective action plan, is a separate violation for each day such failure continues, unless the agency approves an extension to a specific date.

(d) If a MDC center desires to appeal any agency action under this section and the fine is upheld, the violator shall pay the fine, plus regular interest for each day beyond the date set by the agency for payment of the fine.

(2) In determining if a fine is to be imposed and in fixing the amount of any fine, the agency shall consider the following factors:

(a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a child will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.

(b) Actions taken by the owner or operator to correct violations.

(d) The financial benefit to the MDC center of committing or continuing the violation.

(3) Fees and fines received by the agency under this part shall be deposited in the Health Care Security Trust created in MGL Chapter 29D.

Section 8. Expiration of license; renewal; conditional license as permit.--

(1) A license issued for the operation of a MDC center, unless sooner suspended or revoked, shall expire 1 year after the date of issuance. At least 60 days before the expiration date, an application for renewal shall be submitted to the agency. The agency shall renew the license, upon the filing of an application on forms furnished by the agency, if the applicant has first met the requirements established under this part and all rules adopted pursuant to this part. The MDC center shall file with the application satisfactory proof of financial ability to operate and conduct the facility in accordance with this part.

(2) A licensee against whom a revocation or suspension proceeding is pending at the time of license renewal may be issued a conditional license effective until final disposition by the agency of such proceedings. If judicial relief is sought from the final disposition, the court having jurisdiction may issue a conditional permit for the duration of the judicial proceeding.

Section 9. Injunction proceedings authorized.--

(1) The agency may institute injunction proceedings in a court of competent jurisdiction to:

(a) Enforce the provisions of this part or any standard, rule, or order issued or entered into pursuant thereto; or

(b) Terminate the operation of a MDC center if the licensee has:

1. Not taken preventive or corrective measures in accordance with any order of the agency.

2. Failed to abide by any final order of the agency once it has become effective and binding.

3. Committed a violation of any provision of this part or of any rule adopted pursuant thereto, which violation constitutes an emergency requiring immediate action.

(2) Such injunctive relief may be temporary or permanent.

Section 10. Closing of a MDC center.--

(1) Whenever a MDC center voluntarily discontinues operation, it shall inform the agency in writing at least 30 days before the discontinuance of operation. The MDC center shall also, at such time, inform each child's legal guardian of the fact and the proposed time of such discontinuance.

(2) Immediately upon discontinuance of the operation of a MDC center, the owner or operator shall surrender the license therefore to the agency and the license shall be canceled.

Section 11. Right of entry and inspection.--Any duly designated officer or employee of the agency shall have the right to enter upon and into the premises of any MDC center licensed pursuant to this part, at any reasonable time, in order to determine the state of compliance with the provisions of this part and of rules or standards in force pursuant thereto. The right of entry and inspection shall also extend to any premises which the agency has reason to believe are being operated or maintained as a MDC center without a license, but no such entry or inspection of any premises shall be made without the permission of the owner or operator in charge thereof unless a warrant is first obtained from the circuit court authorizing the entry and inspection. Any application for a MDC center license or renewal made pursuant to this part shall constitute permission for, and complete acquiescence in, any entry or inspection of the premises for which the license is sought in order to facilitate verification of the information submitted on or in connection with the application.

Section 12. Rules establishing standards.--

(1) Pursuant to the intention of the Legislature to provide safe and sanitary facilities and healthful programs, the agency in conjunction with the Department of Early Education and Care shall adopt and publish rules to implement the provisions of this part, which shall include reasonable and fair standards. Any conflict between these standards and those that may be set forth in local, county, or city ordinances shall be resolved in favor of those having statewide effect. Such standards shall relate to:

(a) The assurance that MDC services are family centered and provide individualized medical, developmental, and family training services.

(b) The maintenance of MDC centers, as outlined in state and local building and zoning codes, and based upon the size of the structure and number of children, relating to plumbing, heating, lighting, ventilation, and other building conditions, including adequate space, which will ensure the health, safety, comfort, and protection from fire of the children served.

(d) The number and qualifications of all personnel who have responsibility for the care of the children served.

(e) All sanitary conditions within the MDC center and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, and maintenance thereof, which will ensure the health and comfort of children served.

(f) Programs and basic services promoting and maintaining the health and development of the children served and meeting the training needs of the children's legal guardians.

(g) Supportive, contracted, other operational, and transportation services.

(h) Maintenance of appropriate medical records, data, and information relative to the children and programs. Such records shall be maintained in the facility for inspection by the agency.

Section 13. Prohibited acts; penalty for violation.--

(1) It is unlawful for any person or public body to offer or advertise to the public, in any way or by any medium, basic services as defined in this section without obtaining a valid current license. It is unlawful for any holder of a license issued pursuant to this part to advertise or hold out to the public that it holds a license for a MDC center other than that for which it actually holds a license.

(2) Any person who violates the provisions of subsection (1) is guilty of a misdemeanor of the second degree, punishable as provided Massachusetts General Law. Each day of continuing violation shall be considered a separate offense.

Section 14. Disposition of moneys from fines and fees.--All moneys received from administrative fines pursuant to Section 7 and all moneys received from fees collected pursuant to Section 4 shall be deposited in the Health Care Security Trust created in MGL Chapter 29D.