(1)
Purpose. EOEA or
its authorized designee shall conduct a compliance review of an Assisted Living
Residence prior to the issuance of any initial or renewal Certification to
determine compliance with St. 1994, c. 354 and
651 CMR 12.00. An authorized
designee shall not be a Sponsor of an Assisted Living Residence.
(2)
Frequency. EOEA
or its authorized designee shall conduct compliance reviews of Assisted Living
Residences no less than once every two years. In addition, EOEA may conduct a
compliance review any time it has cause to believe that an Assisted Living
Residence is in violation of an applicable section of St. 1994, c. 354 or any
applicable EOEA regulation. An authorized designee shall not be a Sponsor of an
Assisted Living Residence.
(3)
Compliance Review Requirements. A compliance review
shall include, at a minimum, the following:
(a) A review of the operating plan and an
inspection of the common areas of the Assisted Living Residence. The inspector
may, in his or her discretion, interview the Applicant or Sponsor, Manager,
staff and Residents of the Assisted Living Residence. Interviews with Residents
shall be conducted privately and shall be confidential;
(b) An inspection of the living quarters of
any Resident, but only with the Resident's prior consent;
(c) An examination of any and all documents
within a Resident's record, including service plans and written progress
reports, incident reports (or similar document), Residency Agreement, and any
other financial or contractual agreements specific to the Resident. The
Resident may give consent in writing, on a form developed by EOEA, orally, or
by a sign of affirmation if the Resident is not able to give consent by other
means. Consent may include consent to photocopy such materials. If consent is
obtained by a means other than writing, confirmation of the consent shall be
written in the review record;
(d) A
review of staff and contracted provider records, including personnel
files;
(e) Review of all other
books, records, and other documents maintained in relation to the operations of
the Residence; and
(f) A review of
the quality improvement and assurance plans, including Resident satisfaction
surveys.
Refusal to grant EOEA timely access to Residents; staff; all
books, records, and other documents maintained regarding the operations of the
Residence shall constitute valid basis to suspend, revoke or deny an
application for an initial or renewal Certification. EOEA shall be authorized
to photocopy such materials or request the Residence send copies of identified
materials to EOEA via facsimile or other electronic
means.
(4)
Compliance Review Reports, Findings and Responses.
Whenever a review is conducted, EOEA or its designee shall prepare written
findings summarizing all pertinent information obtained during the review and
shall not disclose confidential, private, proprietary or privileged information
obtained in connection with the review.
(a)
Notice of Compliance. If EOEA finds that the Applicant
or Sponsor is in compliance with M.G.L. c. 19D, St. 1994, c. 354,
651 CMR 12.00, EOEA shall
mail a copy of its findings to the Applicant or Sponsor within ten days after
the compliance review is completed.
(b)
Notice of
Noncompliance. If EOEA finds that the Applicant or Sponsor is not
in compliance with M.G.L. c. 19D, St. 1994, c. 354,
651 CMR 12.00, EOEA shall
forward a notice of noncompliance to the Applicant or Sponsor. The notice shall
describe the noncompliance with particularity, indicate the specific portion of
the law(s) or regulation(s) which have been violated, and shall include the
corrective action to be taken by the Applicant or Sponsor within a time period
deemed reasonable by the Secretary. The notice of noncompliance also shall
include a description of the action that may be taken by the Secretary if the
corrective action is not completed. The notice shall be delivered by hand or by
certified mail, return receipt requested, or by first-class mail postage
prepaid, and by email, within ten days after completion of the review of the
Assisted Living Residence.
(c)
Corrective Action. Whenever EOEA finds, upon
inspection or through information in its possession, that a Residence is not in
compliance with any law(s), regulation(s), governing such program, EOEA may, in
its discretion, require the Residence to implement any corrective action it
deems necessary, including:
1. Ceasing the
enrollment of new Residents;
2.
Reducing the number of Residents served;
3. Changing the staffing patterns or
staffing-levels, or staffing qualifications; or
4. Requiring additional training of the
manager or staff.
5. Factors which
may be considered by EOEA in determining the nature of the corrective action to
be imposed include but are not limited to:
a.
Any instances of noncompliance at the Residence;
b. The risk that the instances of
noncompliance present to the health, safety, and welfare of
residents;
c. The nature, scope,
severity, degree, number, and frequency of the instances of
noncompliance;
d. The Applicant or
Sponsor's failure to correct the noncompliance;
e. Any ongoing pattern of
non-compliance;
f. Any previous
enforcement action(s); and
g. The
results of any past corrective action plans or orders.
(d)
Modification,
Suspension. Revocation or Refusal to Issue or Renew Certification.
EOEA may deny, revoke, suspend, modify or refuse to issue or renew a
Certification in any case in which it finds any of the following:
1. There has been a failure or refusal to
comply with any applicable law, regulation, corrective order, notice of
sanction, or suspension agreement;
2. The Applicant or Sponsor submitted any
misleading or false statement or report required under
651 CMR 12.00;
3. The Applicant or Sponsor refused to submit
any report or make available any records required under
651 CMR 12.00;
4. The Applicant or Sponsor refused to admit,
at a reasonable time, any employee of EOEA authorized by the Secretary to
investigate or inspect, in accordance with
651 CMR 12.00; or
5. The Applicant or Sponsor failed to obtain
Certification prior to opening a program or residence or prior to changing the
location of a program or residence except as allowed in
651 CMR 12.00.
(e)
Effect. An Applicant or Sponsor shall not qualify for
a Certification from EOEA for five years after a final agency decision to
revoke or refuse to issue or renew a Certification held by the Applicant or
Sponsor. Thereafter, an Applicant or Sponsor shall be eligible only if he or
she can demonstrate a significant change in circumstances. EOEA may, at its
sole discretion, consider an application for Certification prior to the
expiration of the five-year period, if it determines that a significant change
in circumstances has occurred. Such exercise of its discretion shall not be
appealable.
(f)
Emergency Action.
1.
EOEA may, in its discretion, modify, suspend, revoke, or refuse to renew a
Residence's Certification without prior notice if it finds at the time of the
review, or at any other time, that the Applicant or Sponsor is not in
compliance with M.G.L. c. 19D, St. 1994, c. 354 or
651 CMR 12.00 and that such
non-compliance presents an immediate threat to the health safety or welfare of
Residents. The Applicant or Sponsor shall be notified of any such modification,
suspension, or revocation of a Certification by written notice, hand delivered,
or mailed to the applicant or sponsor via first class mail,
certified or registered, return receipt requested.
2. Before imposing a modification,
suspension, revocation, or refusing to renew a Residence's Certification, EOEA
may require immediate corrective action by the Residence. In such cases, EOEA
will identify the nature of the correction and the time frame in which to make
those corrections. The corrective action will be directly based upon the nature
of the findings, and the timeframe within which the action must be taken will
be reasonable.
3. The modification,
suspension, or revocation of the Certification or refusal to renew the
Certification shall remain in effect pending resolution through the
Administrative Review and hearing process.
(g)
Response to
Notice. The Applicant or Sponsor shall respond in writing to EOEA
within ten days after receiving the notice of non-compliance, and indicate its
agreement or disagreement with the EOEA findings. Failure of the Applicant or
Sponsor to respond within the ten-day period to the Notice of Noncompliance
will be deemed to be agreement with the findings.
1. Agreement with the findings requires the
Applicant or Sponsor to submit to EOEA, within a time period acceptable to
EOEA, a signed written plan of correction for each finding stated in the
report. The Sponsor shall include the following information in the plan of
correction, for each cited deficiency:
a. A
specific plan of what will be or was done to correct the problem;
b. A description of what will be done to
prevent recurrence of this problem, or problems of this type;
c. Designation of the individual(s) who will
be responsible for monitoring the correction to ensure the problem does not
recur; and
d. The date by which
lasting correction will be achieved.
After EOEA has received a complete corrective action plan it
will review it and notify the Applicant or Sponsor of whether the plan in
acceptable. If it is, EOEA will timely conduct a review of the
Residence.
If an Applicant or Sponsor disagrees with the EOEA finding(s)
or action, an Administrative Review may be initiated pursuant to
651 CMR
12.10.
