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 Division 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 residential care facility without a license;
4.6.2 Operation of an assisted living program
or residential care facility 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 or
residential care facility 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:
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4.8.5.1
|
Any failure to comply with regulations classified
as Class I, pursuant to Section 4.8.2.1;
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. |
$6.00 per resident per occurrence per day |
|
4.8.5.2
|
Any failure to comply with regulations classified
as Class II, pursuant to Section 4.8.2.2;
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. |
$5.00 per resident per occurrence per day |
|
4.8.5.3
|
The occurrence of a repeated deficiency in
complying with regulations classified as Class III, pursuant to Section
4.8.2.3;
The occurrence of a repeated deficiency in
complying with regulations classified as Class IV, pursuant to Section
4.8.2.4.
|
$4.00 per resident per occurrence per day |
4.8.6 The department may impose a penalty
upon a licensee of a Level III residential care facility 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 III residential care
facility.
4.8.7 Failure to comply
with 22 M.R.S.A. §7904-A (6) regarding time drills, as further described
in Section 14.3 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 or residential care facility.
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 or residential care facility, 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 or residential care facility, 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 or
residential care facility in the following circumstances:
4.9.5.1 When the assisted living program or
residential care facility 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 or residential care facility 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 or residential care facility 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 the Division 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
Operating without a license
4.11.1
License required. A person, firm, partnership, association,
corporation or other entity may not, without first obtaining a license, manage
or operate a Level III residential care facility.
4.11.2
Civil penalty for operating
without a license. A person, firm, partnership, association, corporation
or other entity who operates a Level III residential care facility 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.
4.11.3
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 4.11.
4.11.4
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
4.11.
4.11.5
Jurisdiction.
The District Court has jurisdiction pursuant to 4 M.R.S.A. §152 for
violations of section 4.11.
4.11.6
Burden of proof. The burden is on the department to prove, by a
preponderance of the evidence, that the alleged violations of section 4.11
occurred.
4.11.7
Right of
entry. To inspect the premises of a Level III residential care facility
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.
4.11.8
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 III residential care facility 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 4.11.
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.
4.11.9
Noninterference. An
owner or person in charge of an unlicensed Level III residential care facility
may not interfere with or prohibit the interviewing by the department of
residents or consumers of services.
4.11.10
Violation of injunction.
A person, firm, partnership, association, corporation or other entity
that violates the terms of an injunction issued under section 4.11 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.
4.11.10.1 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 4.11, the District Court may make the necessary orders or judgments
regarding violation of the terms of the injunction.
4.11.10.2 In an action under section 4.11,
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.
