651 Mass. Reg. 12.06 : — EXECUTIVE OFFICE OF ELDER AFFAIRSCertification Procedures and Standards for Assisted Living Residences — Staffing Requirements

No person working in an Assisted Living Residence shall have been convicted of a felony related to the theft or illegal sale of a controlled substance.

(1) Qualifications for the Manager. The Manager of an Assisted Living Residence shall be at least 21 years of age and must have demonstrated experience in administration, supervision, and management skills. The Manager must also have a Bachelor's degree or equivalent experience in human services management, housing management or nursing home management. The Manager must be of good moral character, and must never have been convicted of a felony.

(2) Qualifications for the Service Coordinator. The Service Coordinator of an Assisted Living Residence must have a minimum of two years' experience working with elders or persons with disabilities. The Service Coordinator shall be qualified by experience and training to develop, maintain and implement or arrange for the implementation of individualized service plans. The Service Coordinator must also have a Bachelor's degree or equivalent experience, and knowledge of aging and disability issues.

(3) General Staffing Requirements. All staff shall possess appropriate qualifications to perform the job functions assigned to them. No person working in a Residence shall have been determined by an administrative board or court to have violated any local, state or federal statute, regulation, ordinance, or other law reasonably related to the safety and well-being of a Resident at an Assisted Living Residence or patient at a health care facility.

(4) Staffing Levels.

(a) Each Residence must develop and implement a process for determining its staffing levels. The plan must include an assessment, to be conducted at least quarterly but more frequently if the Residence so chooses, of the appropriateness of staffing levels.

(b) The Residence shall have sufficient staffing at all times to meet the scheduled and reasonably foreseeable unscheduled Resident needs as required by the Residents' assessments and service plans on a 24-hour per day basis. The Residence's staffing shall be sufficient to respond promptly and effectively to individual Resident emergencies. The Residence shall have a plan to secure staffing necessary to respond to emergency, life safety and disaster situations affecting Residents.

(5) Special Care Residence Staffing.

(a) A Special Care Residence shall have sufficient staff qualified by training and experience awake and on duty at all times to meet the 24-hour per day scheduled and reasonably foreseeable unscheduled needs of all Residents of a Special Care Residence based upon the Resident assessments and service plans. A Special Care Residence's staffing shall be sufficient to respond promptly and effectively to individual Resident emergencies.

(b) For the purposes of 651 CMR 12.05(5)(b), it shall never be considered sufficient to have fewer than two staff members in a Special Care Residence.

(c) Exemption.

1. At his or her sole discretion, the Secretary may grant an exemption from the requirement set forth in 651 CMR 12.06(5)(b) and allow one staff member and one Floater to be on duty during an overnight shift if it is determined that:

a. the physical design of the Special Care Residence is conducive to the provision of sufficient care to all Residents;

b. staff members possess the means to conduct immediate communication with each another;

c. the waiver request is not based on a fluctuation in Residence occupancy; and

d. the safety and welfare of Residents are not compromised.

2. The Applicant/Sponsor shall request such an exemption in writing and shall enclose supporting documentation. The Secretary may grant such an exemption at his or her sole discretion, and may, at any time, revoke such an exemption. Such decisions made by the Secretary are final.

(6) Emergency Situations. The Residence shall have a plan to secure staffing necessary to respond to emergency, safety and disaster situations affecting Residents.

(7) Special Care Residence Manager. A Special Care Residence must designate an individual who will be responsible for all Special Care operations. The Manager of a Special Care Residence shall be at least 21 years of age, must have a minimum of two years' experience working with elders or disabled individuals, knowledge of aging and disability issues, demonstrated experience in administration, and demonstrated supervisory and management skills. The Manager must also have a Bachelor's degree or equivalent experience in human services management, housing management or nursing home management. The Manager must be of good moral character, and must never have been convicted of a felony.

(8) Health Screening Requirements.

(a) No person shall be permitted to work in a Residence if infected with a contagious disease in a communicable form that could endanger the health of residents or other employees. The Residence shall maintain accurate records of illnesses and associated incidents involving staff as part of its Communicable Disease Control Plan pursuant to 651 CMR 12.04(12), and submit an incident report pursuant to 651 CMR 12.04(11)(d) as is appropriate.

(b) All persons working in a Residence shall complete a pre-employment physical examination, including an assessment for tuberculosis, and shall submit evidence that they have completed a periodic physical examination at least every two years.

(c) Subject to the provisions of 651 CMR 12.06(8)(e), each Residence shall ensure that all persons working in the Residence are vaccinated annually with seasonal influenza vaccine, inactivated or live, or an attenuated influenza vaccine, including a seasonal influenza vaccine. Each Residence shall provide all staff with information about the risks and benefits of influenza vaccine.

(d) Subject to the provisions of 651 CMR 12.06(8)(e), each Residence shall ensure all personnel are vaccinated against other novel pandemic or novel influenza virus(es) in accordance with guidelines issued by the Commissioner of Department of Public Health.

(e) A Residence shall not require an employee to receive an influenza vaccine if:

1. the vaccine is medically contraindicated, which means administration of an influenza vaccine to that individual would likely be detrimental to the individual's health;

2. vaccination is against the individual's religious beliefs; or

3. the individual declines the vaccine. An individual who declines vaccination for any reason shall sign a statement certifying he or she received information about the risks and benefits of influenza vaccine and such statement shall be maintained by the Residence.

(f) A Residence shall require and maintain for each employee proof of current vaccination pursuant to 651 CMR 12.06(8)(c) and (d), or the individual's declination statement pursuant to 651 CMR 12.06(8)(e). Such information shall be made available for review by EOEA during a Compliance Review pursuant to 651 CMR 12.09.

(9) Vaccination Requirements.

(a) For purposes of 651 CMR 12.06(9), "personnel" means an individual or individuals who either work at or come to the Residence and who are employed by or affiliated with the Residence, whether directly, by contract with another entity, or as an independent contractor, paid or unpaid including, but not limited to, employees, members of the medical staff, contract employees or staff, students, and volunteers, whether or not such individual(s) provide direct care.

(b) Subject to the provisions of 651 CMR 12.06(9)(d), each Residence shall ensure that all personnel are vaccinated annually with seasonal influenza vaccine, inactivated or live, or an attenuated influenza vaccine, including a seasonal influenza vaccine. Each Residence shall provide all personnel with information about the risks and benefits of influenza vaccine.

(c) Subject to the provisions of 651 CMR 12.06(9)(d), each Residence shall ensure all personnel are vaccinated against other novel pandemic or novel influenza virus(es) in accordance with guidelines issued by the Commissioner of Department of Public Health.

(d) Exceptions.

1. A Residence shall not require personnel to receive a vaccine pursuant to 651 CMR 12.06(9)(b) or (c) if:

a. the vaccine is medically contraindicated, which means administration of an influenza vaccine to that individual would likely be detrimental to the individual's health;

b. the individual objects to vaccination on the basis of a sincerely held religious belief; or

c. the individual declines the vaccine; and

d. the individual is able to perform his or her essential job functions with a reasonable accommodation that is not an undue burden on the Residence.

2. Personnel that decline vaccination for any reason shall sign a declination statement certifying that they received information about the risks and benefits of the vaccine and such statement shall be maintained by the Residence.

(e) A Residence shall require, and maintain for all personnel, proof of current vaccination pursuant to 651 CMR 12.06(9)(b) and (c), or the personnel's declination statement as required by 651 CMR 12.06(9)(d). Such information shall be made available by the Residence for review by EOEA during a Compliance Review pursuant to 651 CMR 12.09.

(f) Coronavirus Disease 2019 (COVID-19) Vaccine Requirement.

1. For purposes of 651 CMR 12.06(9)(f), "COVID-19 vaccination" means the full required regimen of vaccine doses of a vaccine approved or authorized for use by the Food and Drug Administration (FDA) or the World Health Organization (WHO) to provide acquired immunity against COVID-19. COVID-19 vaccination is the full required regimen as determined by the FDA, Centers for Disease Control and Prevention (CDC), or WHO.

2. Each Residence shall ensure all personnel have received COVID-19 vaccination, unless an individual is subject to an exception pursuant to 651 CMR 12.06(9)(f)5. Consistent with any guidelines, schedule, and reporting requirements established by the Secretary, each Residence shall ensure that all personnel maintain full COVID-19 vaccination pursuant to the CDC's Advisory Council on Immunization Practices recommendations as those recommendations may be updated ( e.g., personnel shall obtain all recommended boosters).

3. Each Residence shall provide all personnel with information about the risks and benefits of COVID-19 vaccination.

4. Each Residence shall notify all personnel of the COVID-19 vaccination requirements of 651 CMR 12.06(9)(f) and provide guidance to personnel regarding how to receive COVID-19 vaccination.

5. Exceptions.

a. A Residence shall exempt personnel from the COVID-19 vaccination requirement in 651 CMR 12.06(9)(f)2. if:

i. the vaccine is medically contraindicated, which means administration of COVID-19 vaccine to that individual would likely be detrimental to the individual's health, provided that the individual provides supporting documentation; or

ii. the individual objects to vaccination on the basis of a sincerely held religious belief; and

iii. the individual is able to perform their essential job functions with a reasonable accommodation that is not an undue burden on the Residence.

b. Personnel that decline vaccination due to medical contraindication or a sincerely held religious belief shall sign a declination statement certifying that they received information about the risks and benefits of COVID-19 vaccination.

6. A Residence shall require, and maintain for all personnel, proof of current COVID-19 vaccination as required by 651CMR 12.06(9)(f)2., or the personnel's declination statement pursuant to the provisions of 651CMR 12.06(9)(f)5.b. Such information shall be made available by the Residence for review by EOEA during a Compliance Review pursuant to 651 CMR 12.09.