Section 6.63 - Transfers: Special Requirements(1) Any proposed modification to an ISP involving a an individual moving from one home, operated or licensed by the Department, or funded through a residential services contract other than a master services agreement that was negotiated and executed by the Department, to another home, shall be subject to the requirements of 115 CMR 6.63, in addition to the regulatory requirements applicable to the modification of an ISP. (a) Any movement of an individual within a facility or residential location shall not be subject to the requirements of 115 CMR 6.63, provided that any such movement that will result in any modification to the ISP shall be subject to the requirements generally applicable to ISP appeals.(b) The relocation of the home of individuals to a new site due to circumstances such as, lease termination or foreclosure; or the change in the identity of the provider pursuant to a contract award involving no move, shall not be deemed a transfer subject to the requirements of 115 CMR 6.63.(c) The requirements of 115 CMR 6.63 shall not apply: 1. to the change in placement of an individual from any residential program that is approved by the Massachusetts Department of Education as a M.G.L. c. 71 private residential school, that has a special education placement rate regulated by the Division of Purchased Services, and where the residential services were being provided pursuant to an individual education plan or an individual transition plan; or2. to the change in placement of an individual from a location providing respite care services.3. to the change in placement of an individual from a location providing residential services that the Department had begun funding on an interim basis on or before the individual's 22nd birthday.(2) All parties eligible to participate in the modification meeting pursuant to the Department's regulations on the modification of individual service plans shall be given written notice of the proposed transfer at least 45 days prior to the date of the proposed transfer.(a) The written notice shall be delivered to the individual and shall also be sent by registered mail to the guardian and other parties;(b) Where a modification meeting is held to consider the proposed transfer (i.e. where the modification meeting has not been waived in accordance with the regulations on the modification of individual service plans), notice of the transfer should ordinarily be sent after the meeting. When time is of the essence, however, (e.g., the availability of a proposed services and supports may be jeopardized by delay) notice may be sent at the same time as notice for the modification meeting.(c) The written notice shall:1. include a statement of how the proposed move will result in improved services and supports and quality of life for the individual;2. specify the location of the proposed home;3. include a statement that the parties may visit and examine the proposed home at a time and in a manner not disruptive to individuals who may be living in the home;4. specifically invite the parties to consult with the service coordinator or other designated staff regarding the advantages and disadvantages of the proposed transfer (this consultation may take place as part of the modification meeting);5. include a request for consent to the proposed transfer (consent to internal moves within a facility or residential location is not required); and6. include a statement of the rights of the parties established by 115 CMR 6.63, if applicable.(d) The 45 days time line for the written notice may be shortened to a reasonable period under the circumstances by the service coordinator at his or her discretion in the following situations: 1. upon request of the individual, if not under guardianship and capable in fact of understanding the consequences of shortening the time line;2. upon request of the individual's family or designated representative, if the individual is not capable in fact, is not under guardianship, and does not object;3. upon request of the individual's permanent guardian, if any, if the individual does not object;4. upon initiative by the service coordinator, if the individual is not capable in fact, does not object and has no guardian, designated representative or family.(3) If any party to the ISP modification, other than a current or proposed provider of services and supports to the individual, files an objection to the proposed transfer in accordance with the provisions of 115 CMR 6.63(3), the transfer shall not occur unless: the party withdraws the objection; the individual, if not under guardianship and capable in fact, consents to such transfer; the guardian consents to such transfer and the individual does not object; or the Department prevails at an adjudicatory proceeding held pursuant to 115 CMR 6.63(4). (a) Any objection to the proposed transfer must be in writing, must contain a statement of the reasons for the objection, and must be addressed to the Commissioner.(b) Failure to object within the notice period provided by 115 CMR 6.63(2) shall be deemed to be a consent to the transfer;(c) An objection shall be deemed to have been filed by the eligible party on the date it is postmarked or otherwise delivered by hand to the Commissioner.(d) The regulatory procedures for ISP appeals shall not apply to objections to proposed transfers.(4) If the individual service plan, including any proposed modification, cannot be fully implemented as a result of an objection to a proposed transfer, the Department shall, within 20 days of receiving the objection, file a request for an adjudicatory proceeding with the Division of Administrative Law Appeals established by M.G.L. c. 7, § 4H. (a) The adjudicatory proceeding shall be conducted in accordance with the standards and procedures established by M.G.L. c. 123B, § 3, and M.G.L. c. 30A.(b) During the pendency of the adjudicatory proceeding, the proposed transfer shall not occur. 1. If the Department prevails at the adjudicatory proceeding, it shall further delay implementation of the proposed transfer for 20 calendar days to enable the objecting party to appeal and seek a further stay of the transfer before a judge of the Superior Court in accordance with procedures and standards for such appeals established by M.G.L. c. 123B, § 3, and M.G.L. c. 30A.2. If the Department does not prevail at said adjudicatory proceeding, it shall not proceed with the proposed transfer unless the administrative hearing officer's decision is reversed on appeal to a judge of the Superior Court in accordance with the procedures and standards for such appeals established by M.G.L. c. 123B, § 3, and M.G.L. c. 30A.(c) If the case on the proposed transfer is to be heard or has been heard by the Division for Administrative Law Appeals, any issue directly related to and effectively decided by the transfer disposition will have been deemed appropriately heard and considered by the Division of Administrative Law Appeals and any other or further appeals under 115 CMR 6.63 or the regulations on ISP appeals will not be allowed with respect to such issue. Issues related to the provision of services or supports after a proposed transfer has occurred or has been finally denied pursuant to 115 CMR 6.00 shall not be deemed to have been heard and considered by the Division of Administration Law Appeals and shall be subject to the appeal provisions of the ISP appeals regulations.
(d) Issues related to the provision of services or supports after a proposed transfer has occurred or has been finally denied pursuant to 115 CMR 6.63 shall not be deemed to have been heard and considered by the Division of Administrative Law Appeals and shall be subject to the appeal provisions of the ISP appeals regulations.(5) Where the proposed transfer is in response to circumstances that pose an emergency involving a serious or immediate threat to the health or safety of the individual or others, the transfer may be made immediately and the transfer notice shall be given to the individual and the guardian or designated representative or family member by telephone or other available means within eight hours after the transfer and shall be given to all parties identified by 115 CMR 6.63(2) to receive the transfer notice on the next business day after the transfer in accordance with the requirement of 115 CMR 6.63(2)(c). (a) Where the Department determines that the identity of a provider must be changed pursuant to state contract requirements, and said change in identity makes necessary a relocation of an individual from one home to another home, and the procedures, required by 115 CMR 6.63 have been initiated by the Department by giving notice pursuant to 115 CMR 6.63(2) but have not been completed prior to the effective date of the contractual change, the resulting circumstances may be deemed by the Department to be an emergency under 115 CMR 6.63(5).(b) With the exception of giving notice immediately after a transfer, the standards and procedures established by M.G.L. c. 123B, § 3, and 115 CMR 6.63 shall be the same for emergency transfers as for non-emergency transfers.Amended by Mass Register Issue 1311, eff. 4/22/2016.