Code of Maine Rules
10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES
144 - DEPARTMENT OF HEALTH AND HUMAN SERVICES - GENERAL
Chapter 129 - PERSONAL CARE AGENCY LICENSING RULE
Section 144-129-10 - ENFORCEMENT

Universal Citation: 10 ME Code Rules ยง 144-129-10

Current through 2024-38, September 18, 2024

A. RIGHT OF ENTRY AND INSPECTION.

1. The Department may enter the premises of any licensed site, at any reasonable hour, to conduct inspection surveys and complaint investigations, in accordance with 22 MRS §1717.

2. The Department has the right to inspect the premises of a PCA licensed by the Department at a reasonable time and, upon demand, has the right to inspect and copy any books, accounts, papers, records and other documents in order to determine the state of compliance with applicable laws and rules.

3. The right of entry and inspection extends to any premises that the Department knows or believes are being operated without being licensed. Such entries or inspections must be made with permission of the owner or person in charge unless a warrant is first obtained from the District Court authorizing that entry or inspection.

4. Department employees, with the permission of the client, may also visit sites of service provision to determine compliance with these rules.

5. An agency may not impede or obstruct a Department inspection.

B. FREQUENCY AND TYPE OF INSPECTIONS. An inspection may occur:

1. Prior to the issuance of a license;

2. Prior to renewal of a license;

3. Upon complaint that there has been an alleged violation of this rule;

4. When there has been a change or proposed change in administrator, physical plant, or sites;

5. When necessary to determine compliance with a Plan of Correction or conditions placed on a license, or to determine whether cited deficiencies have been corrected;

6. For routine monitoring of client care; or

7. To assess whether an agency has violated a provision of this rule or is operating without a license.

C. COMPLAINT INVESTIGATIONS. The Department will accept complaints from any person about alleged violation(s) of this rule.

1. The provider may not retaliate against any client or his/her representative for filing a complaint.

2. Any licensing violations noted as a result of a complaint investigation will be provided to the PCA in a Statement of Deficiencies.

3. Complaint investigations resulting in a substantiated finding of abuse, neglect, or misappropriation of property may be shared with the Maine Registry of Certified Nursing Assistants and Direct Care Workers.

D. WAIVER OF A LICENSING RULE. An agency holding a full license may request, in writing, a waiver of a provision of this rule.

1. The Department may waive or modify a provision of this rule under the following terms and conditions:
a. The agency must provide clear and convincing evidence, including expert opinion at the request of the Department, which demonstrates to the satisfaction of the Department that the organization's alternative method will comply with the intent of the rule provision;

b. The provision is not mandated by State or federal law; and

c. The waiver may not violate the rights of clients receiving services.

2. A waiver granted by the Department is enforceable as rule and a violation is subject to the enforcement procedures in this rule.

3. A waiver, when granted, must be for a specific period, not to exceed the term of the license.

4. A waiver may impact an agency's ability to receive payment for services. It is the PCA's responsibility to research any potential conflicts before requesting a waiver.

E. STATEMENTS OF DEFICIENCIES (SOD).

1. After inspection, an SOD will be sent to the licensee if the inspection identifies any failure to comply with this rule.

2. An SOD may be accompanied by a Directed Plan of Correction (DPOC.)

F. INFORMAL CONFERENCE.

1. An agency may request a courtesy informal conference to dispute any deficiency cited on an SOD.

2. An agency wishing to dispute the findings of an SOD must submit a written request for a courtesy informal conference to the Department within ten (10) business days of receipt of the SOD.

3. A Plan of Correction (POC) must be submitted to the Department within ten (10) business days of the organization's receipt of an SOD. The agency may not delay submitting a POC within the required timeframe because an informal conference has been requested. Failure to submit a POC within the required timeframe is a violation of this rule that may result in sanctions.

4. The written request for a courtesy informal conference must specifically identify what deficiencies are being disputed, include a reason for the request, and provide evidence sufficient to support the disputation of the deficiency.

5. Informal conferences may not be used to present evidence that was required to be available at the time of an inspection or investigation.

6. If the agency meets the requirements of § 10 (F)(1)-(5) above to the satisfaction of the Department when submitting the request, the Department will schedule an informal conference. Informal conferences will be scheduled upon availability of DLC staff.

7. Only one informal conference will be permitted regarding an inspection that results in the issuance of a SOD. Failure to appear at the scheduled time of the informal conference or failure to provide at least 24 hours' notice of the need to reschedule the informal conference will result in forfeiture of the opportunity for an informal conference for that SOD.

8. If an agency chooses to be accompanied by counsel, then the agency must notify the Department of that intent in their request for a courtesy informal conference. The Department reserves the right to cancel a courtesy informal conference when an agency's counsel appears without prior notice.

9. A courtesy informal conference may result in:
a. No change to the SOD; or

b. A revision to the SOD to accurately reflect the violations supported by the evidence.

10. The Department will notify the PCA, in writing, of the results of the courtesy informal conference. If there is a revision to the SOD, a revised SOD will be issued to the agency and a POC must be submitted within ten (10) business days.

11. An informal conference will not delay any subsequent enforcement action against an agency or any other aspect of the inspection and/or licensing process. DLC retains the authority to conduct subsequent inspections that may result in additional actions.

12. The decision to grant or deny a courtesy informal conference is not final agency action and may not be appealed. The outcomes of courtesy informal conferences are not subject to the right of appeal, although the ability to appeal sanctions will be as set out in subsection H.

G. PLANS OF CORRECTION (POCs).

1. The licensee must complete a POC which addresses each cited deficiency, sign the plan, and submit it to the Department within ten (10) business days of receipt of the SOD.

2. An acceptable plan of correction must contain the following elements. It must:
a. Address how corrective action will be accomplished for those clients found to have been affected by the deficient practice;

b. Address how the agency will identify other clients having the potential to be affected by the same deficient practice;

c. Address what measures will be put into place or systemic changes made to ensure that the deficient practice will not recur;

d. Indicate how the agency plans to monitor its performance to make sure that solutions are sustained;

e. Include dates when corrective action will be completed; and

f. Be limited to the content above.

3. The Department will review and may approve the POC. The corrective action(s) and completion date(s) must be acceptable to the Department.

4. If the Department rejects the POC as initially submitted, the agency will be notified in writing.
a. The agency must submit an acceptable POC that addresses the reasons for rejection of the initial POC within five calendar days of the date of notice.

b. If the revised POC is acceptable, the Department will notify the agency in writing.

c. If the agency fails to provide an acceptable plan of correction within five calendar days of the date of notice, the Department may issue sanctions in accordance with this rule.

5. The agency is responsible for compliance with an approved POC.

H. SANCTIONS FOR NON-COMPLIANCE WITH THIS RULE

1. The Department may issue one or more of the following sanctions when one or more grounds for sanctions have been determined:
a. Issue a directed plan of correction;

b. Issue a directive to cease admissions or intake of new clients;

c. Issue a financial penalty;

d. Issue a conditional license;

e. Petition the Superior Court to appoint a receiver to operate the PCA in accordance with 22 MRS ch. 1666-A;

f. Refuse to renew a license; or

g. File a complaint with the District Court to suspend a license or revoke a license.

2. The Department may issue a Directed Plan of Corrections (DPOC) which directs the agency on how and when to correct cited deficiencies, identifies the responsible party, and gives a deadline by which those actions must be completed.
a. A DPOC may include action steps including, but not limited to, seeking technical assistance through the Department or its designated agent.

b. A DPOC may include a restriction on admitting new clients into care.

3. The Department may impose one or more financial penalties when one or more of the circumstances listed below are present, and the Department determines that a sanction is necessary and appropriate to ensure compliance with this rule or to protect the clients to whom the agency provides services, in accordance 22 MRS §1717 (4) (A-1) and (13-A)(A)(5).
a. Operation of a personal care agency without a license may be referred to the Office of the Attorney General for enforcement as a civil infraction and may result in a fine of not less than $500 per day, up to a maximum of $10,000.

b. The Department may impose a financial penalty upon a PCA in addition to, or in lieu of, the penalties imposed pursuant to subsection H (3)(a) above for a violation of this rule, according to the schedule below.

i. Failure to submit a POC within ten calendar days after receipt of a SOD.

$500 per day of operation

ii. Substantiated findings of abuse, neglect, and/or misappropriation.

$500 per day of operation

iii. Failure to comply with a Directed Plan of Corrections.

$500 per day of operation

iv. Impeding or obstructing an inspection by the Department.

$500 per day of operation

v. Failure to conduct a background check in accordance with this rule.

$500 per day of operation

vi. Failure to report allegations of abuse and/or neglect.

$500 per day of operation

vii. Operation of a site without prior approval by the Department.

$500 per day of operation

I. CONDITIONAL LICENSE.

1. A conditional license may be issued by the Department when an agency fails to comply with applicable laws and rules, and in the judgment of the Commissioner, the best interest of the public would be served by issuing a conditional license.
a. The conditional license will be issued for a period sufficient to achieve compliance, not to exceed 12 months.

b. The Department will specify when and what corrections must be made during the term of the conditional license.

c. An agency may not add new sites during the term of a conditional license.

J. REFUSAL TO ISSUE OR RENEW A LICENSE.

1. The Department may refuse to issue a provisional license to the applicant if it finds that the information submitted as part of the application is inaccurate or incorrect.

2. The Department may refuse to renew a license if it finds that any the following conditions exist:
a. The applicant has demonstrated repeated non-compliance with this rule, including citations for repeat deficiencies and/or failure to implement a POC or DPOC.

b. The applicant has failed to comply with all applicable Maine Statutes and rules and regulations; or

c. The Department finds that agency practice is detrimental to the welfare of persons to whom the personal care agency is providing services.

K. SUSPENSION OR REVOCATION OF A LICENSE.

1. The Department may file a complaint with the District Court requesting suspension or revocation of any license issued for violation of applicable laws and rules.

2. Upon revocation of a license, the license must be immediately surrendered to the Department.

3. Whenever the Department determines that the health or physical safety of an individual who is receiving services is in immediate jeopardy, the Department may, under the emergency provisions of 4 MRS §184(6), request that the District Court suspend or revoke the license and/or proceed in accordance with or 5 MRS §10004.

L. APPEALS. Any person aggrieved by the Department's decision to take any of the following actions may request an administrative hearing, in conformity with the Maine Administrative Procedure Act:

1. Denial of or refusal to renew a full license;

2. Denial of a provisional license;

3. Issuance of a conditional license;

4. Amendment or modification of a license; or

5. Imposition of sanctions set forth in H(1)(a)-(c).

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