Current through 2024-38, September 18, 2024
4.1
Inspections required. The provider shall submit to regular and
unannounced inspection surveys and complaint investigations in order to receive
and/or maintain a license. The provider shall give access to all records
required by these regulations. The department has the right to interview
residents and employees in private. [Class I]
4.2
Frequency and type of
inspections. An inspection may occur:
4.2.1 Prior to the issuance of a
license;
4.2.2 Prior to renewal of
a license;
4.2.3 Upon complaint
that there has been an alleged violation of licensing regulations;
4.2.4 When there has been a change or
proposed change in administrator, physical plant or services;
4.2.5 When necessary to determine compliance
with a Directed Plan of Correction, conditions placed on a license or that
cited deficiencies have been corrected;
4.2.6 For routine monitoring of resident
care; or
4.2.7 Any time the
department has probable cause to believe that an assisted housing program has
violated a provision of these regulations or is operating without a
license.
4.3
Licensing records kept by the department. The department will maintain a
complete record of all licensing activities related to the assisted housing
program. Those sections of the files not made confidential by law are available
for public inspection at any time during normal business hours.
4.4
Complaints. The department
will accept complaints from any person about alleged violation(s) of licensing
regulations. The provider shall not retaliate against any resident or his/her
representative for filing a complaint. Complainants have immunity from civil or
criminal liability when the complaint is made in good faith. Any licensing
violations noted as a result of a complaint investigation will be provided to
the assisted housing program in writing.
4.5
Enforcement process.
4.5.1 After inspection, an SOD will be sent
to the licensee if the inspection identifies any failure to comply with
licensing regulations. An SOD may be accompanied by a Directed POC.
4.5.2 The licensee shall complete a POC for
each deficiency, sign the plan and submit it to the department within ten (10)
working days of receipt of any SOD.
4.5.3 Failure to correct any deficiency (ies)
or to file an acceptable POC with the department may lead to the imposition of
sanctions or penalties as described in Sections 4.7 and 4.8 of these
regulations.
4.5.4
Informal
conference. If a licensee disagrees with the imposition or amount of any
penalty assessed by the department, the licensee must submit a written
notification to the department stating the nature of the disagreement, within
ten (10) working days of receipt of an Assessment of Penalties. Upon receipt of
this request, the Assistant Director of Licensing and Regulatory Services,
Community Services Programs or his/her designee shall schedule an informal
conference for the purpose of trying to resolve the dispute. The Director or
his/her designee shall inform the licensee of the results of the informal
conference in writing. If a provider desires to appeal the result of an
affirmed or modified assessment of penalties following an informal conference,
a written request for an administrative hearing, pursuant to Section 4.10, must
be made. The department will stay the collection of any fiscal penalties until
final action is taken on an appeal. Penalties shall accrue with interest for
each day until final resolution and implementation.
4.6
Grounds for intermediate
sanctions. The following circumstances shall be grounds for the
imposition of intermediate sanctions:
4.6.1
Operation of an assisted living program or Private Non-Medical Institution
without a license;
4.6.2 Operation
of an assisted living program or Private Non-Medical Institution over licensed
capacity;
4.6.3 Impeding or
interfering with the enforcement of laws or regulations governing the licensing
of assisted housing programs, or giving false information in connection with
the enforcement of such laws and regulations;
4.6.4 Failure to submit a POC within ten (10)
working days after receipt of an SOD;
4.6.5 Failure to take timely corrective
action in accordance with a POC, a Directed POC or Conditional
License;
4.6.6 Failure to comply
with state licensing laws or regulations that have been classified as Class I,
II, III or IV pursuant to Sections 4.8.2 & 4.8.3.
4.7
Intermediate sanctions. The
department is authorized to impose one or more of the following intermediate
sanctions when any of the circumstances listed in Section 4.6 are present and
the department determines that a sanction is necessary and appropriate to
ensure compliance with State licensing regulations to protect the residents of
an assisted housing program or the general public:
4.7.1 The assisted living program,
residential care facility, or private non-medical institution may be directed
to stop all new admissions, regardless of payment source, or to admit only
those residents the department approves, until such time as it determines that
corrective action has been taken.
4.7.2 The department may issue a Directed POC
or Conditional License.
4.7.3 The
department may impose a financial penalty.
4.8
Financial penalties.
4.8.1 Certain provisions of these regulations
have been classified as noted below. Financial penalties may be imposed only
when these regulations are violated.
4.8.2 Certain provisions of the regulations
have a single classification. Such regulations are followed by a notation
(i.e., "Class I"). Classifications have been established according to the
following standards:
4.8.2.1 Class I - Any
failure to comply with a regulation where that failure poses an immediate
threat of death to a resident(s).
4.8.2.2 Class II - Any failure to comply with
a regulation where that failure poses a substantial probability of serious
mental or physical harm to a resident(s).
4.8.2.3 Class III - The occurrence of a
repeated deficiency that poses a substantial risk to the health or safety of a
resident(s).
4.8.2.4 Class IV - The
occurrence of a repeated deficiency that infringes upon resident
rights.
4.8.3 Certain
regulations have been given alternative classifications. Such regulations are
followed by an alternative notation (i.e., Class I/II or Class II/III). When
these regulations are not complied with, the department will determine which
classification is appropriate, on a case-by-case basis, by reference to the
standards set forth in Section 4.8.2.
4.8.4 If the department assesses financial
penalties, an Assessment of Penalties will be issued. The Assessment shall
describe the classification of each violation found to have been committed by
the facility, the regulation or law that has been violated and the scheduled
amount of time corresponding to that violation. If the provider does not
contest the imposition or amount of the penalty, the provider must pay within
thirty (30) calendar days of receipt of the Assessment of Penalties. If the
provider disagrees with the imposition or amount of the penalty, the provider
must notify the department, in writing, stating the nature of the disagreement,
within ten (10) working days of receipt of the Assessment of Penalties. The
department will schedule an informal conference to resolve the dispute and a
written decision based upon this conference will be provided. If the provider
is still dissatisfied with the written decision, an administrative hearing may
be requested in accordance with Section 4.10.
4.8.5 The amount of any penalty to be imposed
shall be calculated according to the following classification system:
|
4.8.5.1
|
Any failure to comply with regulations classified
as Class I,pursuant to Section 4.8.2.1; |
$6.00 per resident per occurrence per
day |
|
Operation of an assisted living program or
residential care facility over licensed capacity, or |
|
Impeding, interfering or giving false information
in connection with the enforcement of laws or regulations governing
licensure. |
|
4.8.5.2
|
Any failure to comply with regulations classified
as Class II, pursuant to Section 4.8.2.2; |
$5.00 per resident per occurrence per
day |
|
Failure to submit a POC within ten (10) working
days after receipt of an SOD; or |
|
Failure to take timely corrective action in
accordance with a POC, Directed POC or conditional license. |
|
4.8.5.3 |
The occurrence of a repeated deficiency in
complying with regulations classified as Class III, pursuant to resident per
Section 4.8.2.3; |
$4.00 per occurrence per day |
|
The occurrence of a repeated deficiency in
complying with regulations classified as Class IV, pursuant to Section
4.8.2.4. |
4.8.6 The department may impose a penalty
upon a licensee of a Level I PNMI for a violation of these rules. Each day of
violation constitutes a separate offense. A penalty or a combination of
penalties imposed on a facility may not be greater than a sum equal to $10
times the total number of residents in the facility per violation, up to a
maximum of $10,000 for each instance in which the department issues a statement
of deficiency to a licensee of a Level I PNMI.
4.8.7 Failure to comply with 22 M.R.S.A.
§7904 (6) regarding time drills, as further described in Section 13.3,
commits a civil violation for which a forfeiture of not more than $25 per bed
for each occurrence of failure to comply may be adjudged.
4.8.8 Any provider unable to immediately pay
penalties may within thirty (30) calendar days from receipt of notification of
penalty assessment apply to the department for a delay in payment or
installment payments or, in certain circumstances, to have the penalty reduced.
4.8.8.1 In order to have the payment delayed
or paid in installments, a provider must supply sufficient information to the
department to demonstrate that immediate full payment of the total amount due
would result in the interruption of the provision of necessary services to
residents.
4.8.8.2 In order to have
a fine reduced, a provider must supply sufficient information to the department
to demonstrate that payment in full would result in a permanent interruption in
the provision of necessary services to residents.
4.8.8.3 The department has the authority to
determine whether the provider has supplied sufficient information.
4.9
Other
sanctions for failure to comply.
4.9.1
When an applicant fails to comply with applicable laws and regulations, the
department may refuse to issue or renew a license to operate an assisted living
program, residential care facility, or private non-medical
institution.
4.9.2 If, at the
expiration of a full or provisional license, or during the term of a full
license, the provider fails to comply with applicable laws and regulations,
and, in the judgment of the Commissioner, the best interest of the public would
be served, the department may issue a conditional license, or change a full
license to a conditional license. Failure by the licensee to meet the
conditions specified by the department shall permit the department to void the
conditional license or refuse to issue a full license. The conditional license
shall be void when the department has delivered in hand or by certified mail a
written notice to the licensee, or, if the licensee cannot be reached for
service in hand or by certified mail, has left written notice thereof at the
agency or facility. For the purposes of this subsection the term "licensee"
means the person, firm, or corporation or association to whom a conditional
license or approval has been issued.
4.9.3 Upon investigation, whenever conditions
are found which, in the opinion of the department, immediately endanger the
health or safety of the persons living in or attending the assisted living
program, residential care facility, or private non-medical institution, the
department may request that the District Court suspend the license on an
emergency basis, pursuant to Title 4 M.R.S.A. §184, subsection
6.
4.9.4 Any license may be
suspended or revoked for violation of applicable laws or regulations,
committing, permitting, aiding or abetting any illegal practices in the
operation of the assisted living program, residential care facility, or private
non-medical institution, or conduct or practices detrimental to the welfare of
persons living in or attending the facility/program. When the department
believes a license should be suspended or revoked, it shall file a complaint
with the District Court as provided in the Maine Administrative Procedure Act,
Title 5 M.R.S.A. Chapter 375 §10051.
4.9.5 Pursuant to Title 22 M.R.S.A.
§7931
et seq., the department may petition the Superior
Court to appoint a receiver to operate the assisted living program, residential
care facility, or private non-medical institution in the following
circumstances:
4.9.5.1 When the assisted
living program, residential care facility, or private non-medical institution
intends to close, but has not arranged for the orderly transfer of its
residents at least thirty (30) calendar days prior to closure;
4.9.5.2 When an emergency exists which
threatens the health, security or welfare of residents; or
4.9.5.3 When the assisted living program,
residential care facility, or private non-medical institution is in substantial
or habitual violation of the standards of health, safety or resident care
established under State or Federal laws and regulations, to the detriment of
the welfare of the residents.
4.10
Appeal rights. Any
assisted living program, residential care facility, or private non-medical
institution aggrieved by the department's decision to take any of the following
actions, or to impose any of the following sanctions, may request an
administrative hearing to refute the basis of the department's decision, as
provided by the Maine Administrative Procedure Act, Title 5 M.R.S.A. §9051
et seq. Administrative hearings will be held in conformity
with the department's Administrative Hearings Regulations. A request for a
hearing must be made, in writing, to the Assistant Director of Licensing and
Regulatory Services, Community Services Programs, and must specify the reason
for the appeal. Any request must be submitted within ten (10) working days from
receipt of the department's decision to:
4.10.1 Issue a conditional license;
4.10.2 Amend or modify a license;
4.10.3 Void a conditional license;
4.10.4 Refuse to issue or renew a full
license;
4.10.5 Refuse to issue a
provisional license;
4.10.6 Stop or
limit admissions;
4.10.7 Issue a
directed POC;
4.10.8 Affirm or
modify an assessment of penalties after an informal review;
4.10.9 Deny an application to reduce the
amount or delay the payment of a penalty; or
4.10.10 Deny a request for a waiver of a
rule.
4.11
Surveillance and Utilization Review: The provider will cooperate with
the department's Surveillance and Utilization Review (SUR) Unit and/or the
department's authorized designee who carries out a program of safeguarding
against unnecessary or inappropriate utilization of, and excess payments for,
care and services available under MaineCare and assessing the
quality.
4.12
Operating
without a license
4.12.1
License
required. A person, firm, partnership, association, corporation or other
entity may not, without first obtaining a license, manage or operate a Level I
PNMI.
4.12.2
Civil penalty
for operating without a license. A person, firm, partnership,
association, corporation or other entity who operates a Level I PNMI without a
license commits a civil violation and is subject to a civil penalty of not less
than $500 nor more than $10,000 per day. Each day of violation constitutes a
separate offense.
4.12.3
Injunctive relief. Notwithstanding any other remedies provided by law,
the Office of the Attorney General may seek an injunction to require compliance
with the provisions of section 4.12.
4.12.4
Enforcement. The Office
of the Attorney General may file a complaint with the District Court seeking
civil penalties or injunctive relief or both for violations of section
4.121.
4.12.5
Jurisdiction.
The District Court has jurisdiction pursuant to 4 M.R.S.A. §152 for
violations of section 4.12.
4.12.6
Burden of proof. The burden is on the department to prove, by a
preponderance of the evidence, that the alleged violations of section 4.12
occurred.
4.12.7
Right of
entry. To inspect the premises of a Level I PNMI that the department
knows or believes is being operated without a license, the department may enter
only with the permission of the owner or the person in charge or with an
administrative inspection warrant issued pursuant to the Maine Rules of Civil
Procedure, Rule 80E by the District Court, authorizing entry and
inspection.
4.12.8
Administrative inspection warrant. The department and a duly designated
officer or employee of the department have the right to enter upon and into the
premises of an unlicensed Level I PNMI with an administrative inspection
warrant issued pursuant to the Maine Rules of Civil Procedure, Rule 80E by the
District Court at a reasonable time and, upon demand, have the right to inspect
and copy any books, accounts, papers, records and other documents in order to
determine compliance with section 4.12. Pursuant to the Maine Rules of Civil
Procedure, Rule 80E the department's right of entry and inspection may extend
to any premises and documents of a person, firm, partnership, association,
corporation or other entity that the department has reason to believe is
operating without a license.
4.12.9
Noninterference. An owner or person in charge of an unlicensed
Level I PNMI may not interfere with or prohibit the interviewing by the
department of residents or consumers of services.
4.12.10
Violation of injunction.
A person, firm, partnership, association, corporation or other entity
that violates the terms of an injunction issued under section 4.12 shall pay to
the State a fine of not less than $500 nor more than $10,000 for each
violation. Each day of violation constitutes a separate offense.
4.12.10.1 In an action brought by the Office
of the Attorney General against a person, firm, partnership, association,
corporation or other entity for violating the terms of an injunction under
section 4.12, the District Court may make the necessary orders or judgments
regarding violation of the terms of the injunction.
4.12.10.2 In an action under section 4.12,
when a permanent injunction has been issued, the District Court may order the
person, firm, partnership, association, corporation or other entity against
which the permanent injunction is issued to pay to the General Fund the costs
of the investigation of that person, firm, partnership, association,
corporation or other entity by the Office of the Attorney General and the costs
of suit, including attorney's fees.
