651 Mass. Reg. 12.09 : — EXECUTIVE OFFICE OF ELDER AFFAIRSCertification Procedures and Standards for Assisted Living Residences — Compliance Reviews of Assisted Living Residences

(1) Purpose. EOEA or its authorized designee shall conduct a compliance review of an Assisted Living Residence prior to the issuance of any initial or renewal Certification to determine compliance with St. 1994, c. 354 and 651 CMR 12.00. An authorized designee shall not be a Sponsor of an Assisted Living Residence.

(2) Frequency. EOEA or its authorized designee shall conduct compliance reviews of Assisted Living Residences no less than once every two years. In addition, EOEA may conduct a compliance review any time it has cause to believe that an Assisted Living Residence is in violation of an applicable section of St. 1994, c. 354 or any applicable EOEA regulation. An authorized designee shall not be a Sponsor of an Assisted Living Residence.

(3) Compliance Review Requirements. A compliance review shall include, at a minimum, the following:

(a) A review of the operating plan and an inspection of the common areas of the Assisted Living Residence. The inspector may, in his or her discretion, interview the Applicant or Sponsor, Manager, staff and Residents of the Assisted Living Residence. Interviews with Residents shall be conducted privately and shall be confidential;

(b) An inspection of the living quarters of any Resident, but only with the Resident's prior consent;

(c) An examination of any and all documents within a Resident's record, including service plans and written progress reports, incident reports (or similar document), Residency Agreement, and any other financial or contractual agreements specific to the Resident. The Resident may give consent in writing, on a form developed by EOEA, orally, or by a sign of affirmation if the Resident is not able to give consent by other means. Consent may include consent to photocopy such materials. If consent is obtained by a means other than writing, confirmation of the consent shall be written in the review record;

(d) A review of staff and contracted provider records, including personnel files;

(e) Review of all other books, records, and other documents maintained in relation to the operations of the Residence; and

(f) A review of the quality improvement and assurance plans, including Resident satisfaction surveys.

Refusal to grant EOEA timely access to Residents; staff; all books, records, and other documents maintained regarding the operations of the Residence shall constitute valid basis to suspend, revoke or deny an application for an initial or renewal Certification. EOEA shall be authorized to photocopy such materials or request the Residence send copies of identified materials to EOEA via facsimile or other electronic means.

(4) Compliance Review Reports, Findings and Responses. Whenever a review is conducted, EOEA or its designee shall prepare written findings summarizing all pertinent information obtained during the review and shall not disclose confidential, private, proprietary or privileged information obtained in connection with the review.

(a) Notice of Compliance. If EOEA finds that the Applicant or Sponsor is in compliance with M.G.L. c. 19D, St. 1994, c. 354, 651 CMR 12.00, EOEA shall mail a copy of its findings to the Applicant or Sponsor within ten days after the compliance review is completed.

(b) Notice of Noncompliance. If EOEA finds that the Applicant or Sponsor is not in compliance with M.G.L. c. 19D, St. 1994, c. 354, 651 CMR 12.00, EOEA shall forward a notice of noncompliance to the Applicant or Sponsor. The notice shall describe the noncompliance with particularity, indicate the specific portion of the law(s) or regulation(s) which have been violated, and shall include the corrective action to be taken by the Applicant or Sponsor within a time period deemed reasonable by the Secretary. The notice of noncompliance also shall include a description of the action that may be taken by the Secretary if the corrective action is not completed. The notice shall be delivered by hand or by certified mail, return receipt requested, or by first-class mail postage prepaid, and by email, within ten days after completion of the review of the Assisted Living Residence.

(c) Corrective Action. Whenever EOEA finds, upon inspection or through information in its possession, that a Residence is not in compliance with any law(s), regulation(s), governing such program, EOEA may, in its discretion, require the Residence to implement any corrective action it deems necessary, including:

1. Ceasing the enrollment of new Residents;

2. Reducing the number of Residents served;

3. Changing the staffing patterns or staffing-levels, or staffing qualifications; or

4. Requiring additional training of the manager or staff.

5. Factors which may be considered by EOEA in determining the nature of the corrective action to be imposed include but are not limited to:

a. Any instances of noncompliance at the Residence;

b. The risk that the instances of noncompliance present to the health, safety, and welfare of residents;

c. The nature, scope, severity, degree, number, and frequency of the instances of noncompliance;

d. The Applicant or Sponsor's failure to correct the noncompliance;

e. Any ongoing pattern of non-compliance;

f. Any previous enforcement action(s); and

g. The results of any past corrective action plans or orders.

(d) Modification, Suspension. Revocation or Refusal to Issue or Renew Certification. EOEA may deny, revoke, suspend, modify or refuse to issue or renew a Certification in any case in which it finds any of the following:

1. There has been a failure or refusal to comply with any applicable law, regulation, corrective order, notice of sanction, or suspension agreement;

2. The Applicant or Sponsor submitted any misleading or false statement or report required under 651 CMR 12.00;

3. The Applicant or Sponsor refused to submit any report or make available any records required under 651 CMR 12.00;

4. The Applicant or Sponsor refused to admit, at a reasonable time, any employee of EOEA authorized by the Secretary to investigate or inspect, in accordance with 651 CMR 12.00; or

5. The Applicant or Sponsor failed to obtain Certification prior to opening a program or residence or prior to changing the location of a program or residence except as allowed in 651 CMR 12.00.

(e) Effect. An Applicant or Sponsor shall not qualify for a Certification from EOEA for five years after a final agency decision to revoke or refuse to issue or renew a Certification held by the Applicant or Sponsor. Thereafter, an Applicant or Sponsor shall be eligible only if he or she can demonstrate a significant change in circumstances. EOEA may, at its sole discretion, consider an application for Certification prior to the expiration of the five-year period, if it determines that a significant change in circumstances has occurred. Such exercise of its discretion shall not be appealable.

(f) Emergency Action.

1. EOEA may, in its discretion, modify, suspend, revoke, or refuse to renew a Residence's Certification without prior notice if it finds at the time of the review, or at any other time, that the Applicant or Sponsor is not in compliance with M.G.L. c. 19D, St. 1994, c. 354 or 651 CMR 12.00 and that such non-compliance presents an immediate threat to the health safety or welfare of Residents. The Applicant or Sponsor shall be notified of any such modification, suspension, or revocation of a Certification by written notice, hand delivered, or mailed to the applicant or sponsor via first class mail, certified or registered, return receipt requested.

2. Before imposing a modification, suspension, revocation, or refusing to renew a Residence's Certification, EOEA may require immediate corrective action by the Residence. In such cases, EOEA will identify the nature of the correction and the time frame in which to make those corrections. The corrective action will be directly based upon the nature of the findings, and the timeframe within which the action must be taken will be reasonable.

3. The modification, suspension, or revocation of the Certification or refusal to renew the Certification shall remain in effect pending resolution through the Administrative Review and hearing process.

(g) Response to Notice. The Applicant or Sponsor shall respond in writing to EOEA within ten days after receiving the notice of non-compliance, and indicate its agreement or disagreement with the EOEA findings. Failure of the Applicant or Sponsor to respond within the ten-day period to the Notice of Noncompliance will be deemed to be agreement with the findings.

1. Agreement with the findings requires the Applicant or Sponsor to submit to EOEA, within a time period acceptable to EOEA, a signed written plan of correction for each finding stated in the report. The Sponsor shall include the following information in the plan of correction, for each cited deficiency:

a. A specific plan of what will be or was done to correct the problem;

b. A description of what will be done to prevent recurrence of this problem, or problems of this type;

c. Designation of the individual(s) who will be responsible for monitoring the correction to ensure the problem does not recur; and

d. The date by which lasting correction will be achieved.

After EOEA has received a complete corrective action plan it will review it and notify the Applicant or Sponsor of whether the plan in acceptable. If it is, EOEA will timely conduct a review of the Residence.

If an Applicant or Sponsor disagrees with the EOEA finding(s) or action, an Administrative Review may be initiated pursuant to 651 CMR 12.10.

651 CMR 12.09

Amended by Mass Register Issue 1279, eff. 1/30/2015.

Amended by Mass Register Issue 1330, eff. 1/13/2017.