Code of Massachusetts Regulations
104 CMR - DEPARTMENT OF MENTAL HEALTH
Title 104 CMR 28.00 - Licensing and Operational Standards for Community Services
Subpart D - LICENSING REQUIREMENTS AND COMPLIANCE WITH STANDARDS
Section 28.21 - Licensing, Compliance and Enforcement

Universal Citation: 104 CMR 28.00 MA Code of Regs 28.21

Current through Register 1531, September 27, 2024

(1) Departmental Inspection.

(a) Any employee or agent of the Department, including a consultant providing services for the Department, authorized by the Area Director or the Office of Community Licensing, may visit and inspect residential or CCS sites subject to 104 CMR 28.00, and any service site of the service or program of which the residential site is a part, to determine whether such sites are in compliance with law, including the regulations of the Department.

(b) The Department shall inspect each licensed residential or CCS site at least annually and more frequently if deemed necessary.

(c) Inspections should ordinarily be made with prior notice and at reasonable times, giving due regard to the privacy of the persons and the interruption that inspection may cause. However, the Department shall have the right to inspect any site at any time without prior notice providing good cause exists.

(d) Refusal to permit an inspection in accordance with 104 CMR 28.21 shall be grounds for suspension or revocation of a license.

(e) The personal belongings and clothing of persons shall not be subject to inspection by the Department; provided, however that storage spaces, including, but not limited to closets and storage areas may be inspected for purposes of determining compliance with applicable health and safety standards and the structural integrity of the site.

(f) The scope of the Department's inspections shall include any aspect of the operation of the site or provider and may include, but is not limited to, confidential interviews with persons and staff, and examination and review of all records.

(g) The Department shall provide a copy of the inspection report to the provider; provided, however, that confidential information concerning persons shall not be disclosed except in accordance with the confidentiality requirements of 104 CMR 28.09.

(h) The contents of a Department inspection report are subject to the Massachusetts Public Records law, including all exemptions to disclosure.

(2) Deficiency Identification and Correction.

(a) Whenever the Department finds that a service is not in compliance with any applicable law or regulation, other than in accordance with a waiver approved by the Department, the Department shall, if it deems the deficiency remediable, issue a corrective action order.

(b) A correction order shall be in writing and shall include a statement of the deficiencies found, the period within which the deficiency must be corrected, and the provision of law and regulation relied upon.

(c) Within seven days of receipt of the correction order, the provider may submit a written request to the Director of Community Licensing for administrative reconsideration of the findings or any portion thereof, which shall be granted forthwith.

(d) If the provider fails to correct any deficiency within the period prescribed for correction, the Department may enforce its correction order under 104 CMR 28.19 or in accordance with M.G.L. c. 19.

(e) Nothing in 104 CMR 28.21 shall preclude the Department from also taking enforcement action under a contract when appropriate.

(3) Suspension, Revocation and Denial of Licenses.

(a) The Department may revoke, suspend or deny issuance or renewal of a license if it finds any of the following:
1. The provider failed to comply with any applicable regulation or any applicable deficiency correction order;

2. The provider refused to admit at any time any person authorized by the Commissioner to inspect the service in accordance with 104 CMR 28.00;

3. The provider refused to submit any report or to make available any records required under 104 CMR 28.00;

4. The provider made misleading or false statements or failed to furnish information or reports required under 104 CMR 28.00; and

5. Staff or persons subject to the direction of a provider subjected a person to mistreatment as defined in 104 CMR 28.04(1).

(b) When the Department determines to suspend, revoke, or deny a license, it shall provide written notice to the applicant or licensee, notifying it of the intended action, of the grounds therefore, and of the applicant or licensee's right to request of the Commissioner a hearing regarding the matter conducted pursuant to M.G.L. c. 30A.

(4) Suspension in Emergencies.

(a) The Department may refuse to issue or renew or may suspend any license without providing the opportunity for a prior hearing if the failure of the provider to comply with any applicable regulations appears to have resulted in an emergency situation which endangers the life, health or safety of persons or staff.

(b) Immediately upon such refusal or suspension, the provider shall notify the affected persons and their families, when appropriate, and persons' legally authorized representatives, and shall immediately provide or arrange for the most adequate and appropriate alternative service arrangements available for such persons, or take such other action as may be directed by the Department including, but not limited to, placing Department employees within the service, as the Department deems necessary to protect the persons.

(c) The Department shall hold a conference with the provider and, if it has not done so before, provide a written statement as to its reasons for its action within three days of suspension or refusal to issue or renew a license.

(d) Upon written request of an aggrieved party to the Commissioner, a hearing shall be held within a reasonable amount of time after the license is refused or suspended, in accordance with the requirements of M.G.L. c. 30A.

(5) Operation of an Unlicensed Site. When the Department has reason to believe that a provider is operating without a required site license; and the provider has failed to apply for a license within ten days after notice by the Department, the Department may:

(a) Notify the District Attorney with jurisdiction over the provider that the provider appears to be operating in violation of M.G.L. c. 19, § 19;

(b) Petition the Superior Court with jurisdiction over the provider to restrain its operation or to take such other actions as may be necessary in the interest of the persons utilizing the service;

(c) Undertake to provide alternative placements with the most adequate and appropriate alternative service arrangement available for persons as needed; or

(d) Take such other action as it deems appropriate to ensure persons health, safety or welfare.

(6) Reports and Notices. Private programs that have a residential or CCS site license(s) shall submit all reports or notices required under 104 CMR 28.00 to the Department's Office of Community Licensing.

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