Code of Massachusetts Regulations, Title 104 CMR 32.00, Section 32.04 - Complaint Process | Code of Massachusetts Regulations

(1) Filing a Complaint. Any person may make a complaint to the Person in Charge regarding an incident or condition involving a client which he or she believes to be dangerous, illegal, or inhumane.

(a) An employee who is notified or who becomes aware that a client wants to file a complaint shall provide the client with a complaint form and offer the client assistance in completing and filing the complaint, and shall provide such assistance if requested.

(b) An employee who becomes aware of any condition or incident which he or she has reason to believe is dangerous, illegal or inhumane shall immediately complete and file a complaint with the Person in Charge or verbally notify the Person in Charge or designee, who shall be responsible for filing the complaint.

(c) The Human Rights Officer shall assist clients, as necessary, or upon request in filing complaints.

(d) The Human Rights Officer shall use best efforts to refer a client who lacks, or who appears to lack capacity, or upon request, to an attorney or advocate, if necessary or appropriate, to ensure that the client's interests are protected.

(e) The Human Rights Committee may file a complaint on behalf of a client or group of clients and may intervene as a party to a complaint by submitting a notice of intervention to the Person in Charge.

(f) No Retaliation. There shall be no retaliation against any individual who files a complaint or otherwise participates in fact finding or investigation activities in good faith pursuant to 104 CMR 32.00.

(g) Any employee who receives a complaint shall immediately forward such complaint to the Person in Charge, who, if necessary, shall document it on a complaint form.

(2) When a Complaint is Received.

(a) Upon receipt of a complaint, the Person in Charge shall determine if the complaint involves one of the following:

1. medicolegal death;

2. sexual assault or abuse;

3. physical assault or abuse which results in serious physical harm;

4. attempted suicide which results in serious physical harm;

5. commission of a felony;

6. serious physical injury resulting from restraint or seclusion practices; or

7. an incident that the Person in Charge in his or her discretion believes is sufficiently serious or complicated as to require investigation by the Office of Investigations or Director of Licensing even though it does not otherwise involve one of the categories listed in 104 CMR 32.04(2)(a)1. through 6.

(b) If the complaint comes under one of the categories specified above in 104 CMR 32.04(2)(a) the following actions shall be taken.

1. The Person in Charge shall forward the complaint to the following individuals who shall be the Responsible Person of the complaint:

a. the Area Director, if the complaint involves a program or community mental health center operated or contracted for by the Department, an adult inpatient unit contracted for by the Area, or a Department office within the control of the Area;

b. the Director of the Office of Inpatient Management if the complaint involves an DMH operated adult inpatient facility other than a community mental health center operated or contracted by the Department;

c. the Director of Statewide Program Management, if the complaint involves an IRTP or CIRT or a Department contracted inpatient unit for children or adolescents;

d. the Senior Manager of a Department office other than one controlled by an Area; or

e. the applicable Director of Licensing if the complaint involves a program or facility licensed, but not contracted for, by the Department.

2. The Responsible Person shall:

a. immediately assign a public log number to the complaint;

b. refer it to the Office of Investigations; and

c. notify the parties and the appropriate Human Rights Officer that the complaint has been referred to the Office of Investigations for investigation and resolution in accordance with 104 CMR 32.05.

(c) Privacy Complaints.

1. If the complaint alleges a violation of a client's privacy rights in a Department operated program or facility, the Responsible Person must notify the Department's Director of Privacy and Data Access and the complaint shall be resolved in accordance with the procedures set forth in the Department's Privacy Handbook.

2. If the complaint alleges a violation of a client's privacy rights in a Department-contracted for or licensed program or facility, the complaint shall be resolved in accordance with the program or facility's privacy complaint resolution procedures.

(d) If the complaint does not come under one of the categories specified in 104 CMR 32.04(2)(a) or (c) the Person in Charge shall be the Responsible Person who shall:

1.

a. in the case of a Department operated program or facility, enter the complaint into the Department's complaint recording system;

b. in the case of a Department contracted for program or adult inpatient facility, provide a copy of the complaint to the Area Director, or Statewide Director of Program Management, as applicable, and to the applicable Director of Licensing, if any, who shall have the complaint entered into the Department's complaint recording system;

c. in the case of a Department licensed, but not Department contracted for, program or facility, such program or facility shall create and maintain an internal log of complaints and the Responsible Person shall assign an internal log number; and

2. determine whether the complaint shall be resolved by administrative resolution or ten-day fact-finding in accordance with 104 CMR 32.04(3) or (4).

(e) Health, Safety or Welfare. If the Person in Charge or the Responsible Person concludes at any time during the course of resolution of the complaint that immediate action is necessary to protect the health, safety, or welfare of a person, he or she shall take steps to ensure that such action is taken and shall document the action taken.

(3) Administrative Resolution.

(a) If the Responsible Person has a reasonable basis to believe that a complaint meets one of the following criteria, the complaint may be resolved administratively in accordance with 104 CMR 32.04(3):

1. concerns an allegation of an incident or condition that is not dangerous, illegal or inhumane within the scope of 104 CMR 32.00;

2. makes allegations that are objectively impossible;

3. repeats allegations of fact that have previously been investigated and decided in accordance with 104 CMR 32.00;

4. alleges a violation of regulation, policy or procedure that does not present a health or safety risk to a client or other individual and which may be resolved or corrected without need for additional fact finding;

5. is withdrawn by the client or complainant, provided the complaint does not concern the health or safety of a client or other individual; or

6. presents undisputed facts which allow the Responsible Person to determine that the complaint can best be resolved through the administrative process.

(b) In resolving a complaint pursuant to 104 CMR 32.04(3), the Responsible Person or designee must meet with the client and the complainant, if different, unless the client and/or complainant declines to meet with the Responsible Person or designee, or despite reasonable efforts, cannot be located.

1. The Responsible Person shall notify client and the complainant, if different, of the availability of the Human Rights Officer to attend the meeting at the client's or complainant's request.

2. Unless the client or complainant declines to meet or cannot be located, this meeting shall take place within three business days of the determination that the complaint meets the criteria of administrative resolution pursuant to 104 CMR 32.04(3)(a).

3. The purpose of this meeting shall be to:

a. review the specific allegations in the complaint;

b. determine whether there are disagreements concerning the facts underlying the allegations that require further fact-finding; and

c. discuss and, if possible, agree upon actions, if any, that may be taken by the Responsible Person or designee to address the concerns raised by the complaint.

(c) If at any time the Responsible Person determines that the criteria for administrative resolution are not met, including without limitation, that there is disagreement concerning the facts underlying the allegations in the complaint that require formal fact-finding in order to resolve, the Responsible Person shall refer the complaint for fact-finding or investigation in accordance with 104 CMR 32.04(4) or 34.04(5).

(d) Within five business days of the filing of the complaint, or two business days of the meeting held pursuant to 104 CMR 32.04(3)(b), whichever is later, the Responsible Person shall provide the parties with a written decision that includes a statement of the applicable criteria for administrative resolution, the grounds upon which the determination for administrative resolution has been made, the actions, if any, that will be taken by the Responsible Person, the right to request reconsideration, and the client's right of appeal in accordance with 104 CMR 32.04(7).

(e) In the case of a Department contracted for program or adult inpatient facility, a copy of the written decision shall be provided to the Area Director, or an IRTP or CIRT or a Department contracted inpatient unit for children or adolescents to the Director of Statewide Program Management.

(f) If at any time during the course of ten-day fact finding or investigation pursuant 104 CMR 32.04(4) or (5), respectively, the Responsible Person determines that the criteria for administrative resolution are met, the Responsible Person may elect to stop the fact finding or investigation and proceed under 104 CMR 32.04(3). The determination shall be in writing and shall include the factual basis for the election.

(4) Responsible Person Ten-day Fact-finding.

(a) Unless a complaint is resolved pursuant to 104 CMR 32.04(3), is referred to the Office of Investigations pursuant to 104 CMR 32.04(2)(b), or is a Privacy Complaint pursuant to 104 CMR 32.04(2)(c), the Responsible Person shall undertake or within two days of receipt of the complaint, assign the matter for fact-finding in accordance with 104 CMR 32.06 which shall be completed within ten days of assignment. The Responsible Person may authorize an extension of up to ten days if the complaint is sufficiently complicated or if the parties or essential witnesses cannot be interviewed within the initial ten day period. The Responsible Person shall document in the file the reasons for any extension.

(b) In the case of a Department contracted for program or adult inpatient facility, a copy of such documentation shall be provided to the Area Director, or for an IRTP or CIRT or a Department contracted inpatient unit for children or adolescents to the Director of Statewide Program Management.

(c) The individual conducting such fact-finding shall provide a written report of findings of fact and, unless the Responsible Person conducts the fact finding, recommended conclusions to the Responsible Person.

(d) In the case of a Department contracted for program or adult inpatient facility, a copy of the written report of findings of fact shall be provided to the Area Director, for an IRTP or CIRT or a Department contracted inpatient unit for children or adolescents to the Director of Statewide Program Management.

(e) The Responsible Person shall issue a written decision within five days following completion of the fact finding.

(f) The written decision shall contain findings of fact and conclusions, and any actions to be taken. The decision shall also notify the parties of the right to request reconsideration and the client's right of appeal in accordance with 104 CMR 32.04(7).

(g) In the case of a Department contracted for program or facility, a copy of the written decision shall be provided to the Area Director, or for statewide contracted for programs, to the responsible Central Office contract manager.

(5) Complaints Referred to the Office of Investigations.

(a) Responsibilities of the Office of Investigations.

1. Whenever a complaint is forwarded to the Office of Investigations pursuant to 104 CMR 32.04(2), the Director of Investigations, or designee, shall, within two days, complete the following:

a. confirm the complaint has been logged into the Office of Investigations' database and assigned a public log number, update log as necessary and open a case file;

b. determine and document whether or not another entity has jurisdiction to conduct an investigation and if so, whether that entity is aware of the incident or condition complained of and is undertaking an investigation;

c. if another entity is undertaking an investigation, determine in accordance with 104 CMR 32.04(6) whether the Department shall defer investigating the matter to that entity and document the determination; and

d. assign an investigator.

2. If the Director of Investigations, or designee, does not believe an investigation by the Office of Investigation is necessary or appropriate, the Director, or designee, shall consult with the applicable Responsible Person, who shall determine the appropriate process for resolution of the complaint.

3. The Office of Investigations shall coordinate investigatory activity with the appropriate Responsible Person.

(b) Responsibilities of the Investigator.

1. Within 30 days from the assignment of the investigation pursuant to 104 CMR 32.04(5)(a), the investigator shall conduct an investigation and file a report containing written findings of fact and recommended conclusions with the Responsible Person.

2. The investigator may request in writing an extension of the time required for filing the report, which may be granted for good cause by the Director of Investigations, in consultation with the Responsible Person.

3. If such an extension is granted, the investigator shall give written notice of the revised due date to the parties and the Area Director, Director of the Office of Inpatient Management, Director of Statewide Program Management, Director of Licensing, or Senior Manager, as applicable. In the case of an investigation involving a Child, Youth and Family Services program, a copy of such notice shall also be provided to the Area Director of Child, Youth and Family Services.

(c) Responsibilities of the Responsible Person.

1. Within ten days after receipt of the investigator's report or the report of an investigation by another legally authorized entity, the Responsible Person shall:

a. issue a decision accepting the findings of fact and recommended conclusions, identifying corrective actions to be taken, if any, and designating who is responsible for carrying out such actions;

b. conduct or refer the matter for further fact-finding, to be completed within a specified time period, on matters identified by the Responsible Person; or

c. issue a decision making his or her own conclusions, including an explanation of the rationale for not accepting the investigator's recommended conclusions, and identifying corrective actions to be taken, if any, and designating who is responsible for carrying out such actions.

2. The decision shall be provided to the parties with notice of the right to request reconsideration and the client's right to appeal in accordance with 104 CMR 32.04(7).

(6) Deferred Investigations.

(a) Notwithstanding any other provision of 104 CMR 32.00 to the contrary, the investigation of the complaint may be deferred if another legally authorized entity is conducting an investigation of the allegations set forth in the complaint.

1. If an investigation is deferred upon the request of law enforcement or the DPPC, the Office of Investigations shall notify the Responsible Person of any such deferral.

2. The Director of Licensing or Director of Statewide Program Management may defer an investigation to the Department of Children and Families, in which case he or she shall notify the Office of Investigations.

(b) Any investigation deferred for more than 60 days shall be reviewed by the Office of Investigations in consultation with the Responsible Person to determine whether some fact finding and corrective action should be pursued notwithstanding deferral; provided however, that the case shall remain active pending completion of the investigation.

(c) Nothing in 104 CMR 32.04(6) shall preclude the Responsible Person from taking or ordering any corrective action deemed necessary during the pendency of the deferral.

(7) Request for Reconsideration; Appeal.

(a) Request for Reconsideration.

1. General Provisions. Any party to the complaint has the right to request reconsideration of a decision issued pursuant to 104 CMR 32.04(3), (4) or (5). Reconsideration is not a prerequisite to a client's filing of an appeal.

a. A request for reconsideration must be submitted in writing to the Responsible Person within ten days of receipt of the decision, which time period may be waived by the Responsible Person, upon request and for good cause shown. The Responsible Person shall forward notice of the request for reconsideration to all other parties.

b. A request for reconsideration must be based on one or more of the following factors, which shall be set forth with specificity in the request:

i. The fact-finder failed to interview an essential witness or to consider an important fact or factor.

ii. The decision is not reasonably supported by the facts.

iii. The decision is based on an erroneous interpretation of applicable law or policy.

2. Response to Request for Reconsideration:

a. Unless the Responsible Person determines that additional fact-finding is required, he or she shall within ten days from receipt of the request for reconsideration issue a final decision affirming, modifying or reversing the initial decision. The final decision shall be in writing and shall inform the client of the right to appeal pursuant to 104 CMR 32.04(7)(b).

b. If the Responsible Person determines additional fact-finding is required, he or she shall conduct or refer the matter for such fact-finding, which shall be completed within ten days of receipt of the request for additional fact-finding, but which time period may be extended for good cause.

c. Within ten days of receipt of the results of any additional fact-finding, the Responsible Person shall issue a final decision affirming, modifying or reversing the initial decision. The final decision shall be in writing, distributed to all parties, and shall also notify the client of the right to appeal pursuant to 104 CMR 32.04(7)(b). d. A party adversely affected by a reconsideration decision that substantially alters the initial decision may request further reconsideration pursuant to 104 CMR 32.04(7)(a).

(b) Appeal Process.

1. General Provisions.

a. A client, a client's legally authorized representative, or an Authorized Individual may appeal decisions issued pursuant to 104 CMR 32.04(3) through (5) or (7)(a). In the case of a client's death, an appeal may be pursued or authorized by the duly appointed personal representative of the decedent's estate or other individual with legal authority to act on behalf of the decedent.

b. All appeals must be in writing and filed within ten days of receipt of the applicable decision, which time period may be waived by the person responsible for deciding an appeal, upon request and for good cause shown. The person responsible for deciding an appeal shall forward notice of the appeal to all other parties.

c. Subject Matter of Appeal. Appeals shall be based on one or more of the following factors, which shall be set forth with specificity in the appeal:

i. The fact-finder failed to interview an essential witness or to consider an important fact or factor.

ii. The decision is not reasonably supported by the facts.

iii. The decision is based on an erroneous interpretation of applicable law or policy.

d. Additional Fact-finding. The person responsible for deciding an appeal pursuant to 104 CMR 32.04(7)(b)(2) or (3) may, within ten days of receipt of the appeal, direct that additional fact-finding be undertaken. Such fact-finding shall be undertaken by the Responsible Person, Office of Investigations or other individual designated by the person responsible for deciding the appeal within a time-frame as directed by such person, not to exceed 20 days, which time period may be extended for good cause.

e. Decisions on appeal shall be issued within 30 days of receipt of the appeal, unless further fact-finding is required, in which case the decision shall be issued within ten days of the report of the additional fact-finding, which time period may be extended for good cause.

f. Decisions on appeal shall also provide notice of applicable rights of further appeal.

2. Appeal from a Decision Issued Pursuant to 104 CMR 32.04(3) or (4).

a. A decision concerning a complaint issued pursuant to 104 CMR 32.04(3) or (4) may be appealed as follows:

i. A decision involving an adult Department operated or contracted for community mental health center, or program, a Department contracted adult inpatient unit, or a Department office within the control of an Area may be appealed to the applicable Area Director;

ii. A decision involving an adult Department operated or contracted for inpatient facility may be appealed to the Director of the Office of Inpatient Management; iii. A decision involving an IRTP, CIRT, or Department contracted child or adolescent inpatient unit, may be appealed to the Director of Statewide Program Management;

iv. A decision involving a Child, Youth and Family Services program operated or contracted for by the Department may be appealed to the applicable Area Director who shall decide the appeal in consultation with the Area Director of Child, Youth and Family Services; or

v. A decision involving a Department office other than one controlled by an Area may be appealed to the applicable Senior Manager; or

vi. A decision involving a licensed program or facility may be appealed to the applicable Director of Licensing.

b. The appeal decision shall:

i. Affirm, modify or reverse the decision.

ii. Be in writing and sent to the parties. The decision shall include corrective actions, if any, to be carried out by the Person in Charge; and

iii. Notify the client of his or her right to further appeal the decision within ten days to:

(i) the Deputy Commissioner for Mental Health Services in the case of a decision by an Area Director or Director of the Office of Inpatient Management;

(ii) the Deputy Commissioner for Child, Youth and Family Services in the case of a decision by the Director of Statewide Program Management;

(iii) the Chief of Staff of the Department, or designee, in the case of a decision by a Senior Manager;

(iv) the Deputy Commissioner for Mental Health Services in the case of a decision by the Director of Community Licensing; or

(vi) the Deputy Commissioner for Clinical Professional Services in the case of a decision by the Director of Inpatient Licensing.

c. The decision of the Deputy Commissioner or Chief of Staff shall be final.

3. Appeal from Decision after Investigation by the Office of Investigations.

a. After an investigation by the Office of Investigations pursuant to 104 CMR 32.04(5);

i. A decision made by an Area Director or the Director of the Office of Inpatient Management may be appealed to the Deputy Commissioner for Mental Health Services, who, in the case of a decision involving a Department operated or contracted for Child, Youth and Family program, shall decide the appeal in consultation with the Deputy Commissioner for Child, Youth and Family Services.

ii. A decision made by the Director of Statewide Program Management Services may be appealed to the Deputy Commissioner for Child, Youth and Family Services.

iii. A decision made by a Senior Manager of a Department office other than one controlled by an Area may be appealed to the Chief of Staff of the Department, or designee.

iv. A decision made by the Director of Community Licensing may be appealed to the Deputy Commissioner for Mental Health Services.

v. A decision made by the Director of Inpatient Licensing may be appealed to the Deputy Commissioner for Clinical Professional Services.

b. The appeal decision shall:

i. Affirm, modify or reverse the decision.

ii. Be in writing and sent to the parties. The decision shall include corrective actions, if any, to be carried out; and

iii. Notify the client of his or her right to further appeal the decision within ten days to the Commissioner, whose decision shall be final.

(8) Release of Decision Letters and Written Notice. Any decision or written notice issued pursuant to 104 CMR 32.00 that is to be released to a party or any other individual shall be subject to redaction of Protected Health Information (PHI) or any other information that the recipient is not legally authorized to receive consistent with the requirements of federal and state privacy laws including, but not limited to, the provisions of the federal Health Information Portability and Accountability Act (HIPAA), Fair Information Practices Act (FIPA), M.G.L. c. 66A, M.G.L. c. 123, § 36, and applicable exemptions under M.G.L. c. 4, § 7(26).

Code of Massachusetts Regulations104 CMR - DEPARTMENT OF MENTAL HEALTHTitle 104 CMR 32.00 - Investigation And Reporting ResponsibilitiesSection 32.04 - Complaint Process

Code of Massachusetts Regulations
104 CMR - DEPARTMENT OF MENTAL HEALTH
Title 104 CMR 32.00 - Investigation And Reporting Responsibilities
Section 32.04 - Complaint Process