Current through Register 1531, September 27, 2024
If an Applicant or Sponsor disagrees with the EOEA finding(s)
or action, it may request an Administrative Review by submitting its request,
via certified mail, return receipt requested, together with a
detailed written rebuttal of the findings within ten days of receipt of the
notice of noncompliance.
(1)
EOEA Review.
(a)
Consultation. The Applicant or Sponsor may consult
with the EOEA investigator about the findings and any action undertaken or
proposed by EOEA. This may take the form of an exit conference at the
conclusion of the compliance review, and, if this conference has been held
prior to issuance of the findings, the administrative review process will begin
with the Informal Review.
(b)
Informal Review. An Applicant or Sponsor who disagrees
with an EOEA Compliance Review finding or the proposed action following the
consultation or after issuance of the findings, may request informal review by
the Director of the Assisted Living Certification Unit. The request for
Informal Review must be submitted within ten days of the issuance of the
findings, or ten days from the consultation, whichever is later. The Informal
Review shall be scheduled within ten days of the receipt of the request for
review, and shall consist of an informal presentation of the position of the
Applicant or Sponsor, and review of any applicable written documents. If the
matter is settled, the agreement shall be reduced to writing. If it is not, a
written decision shall be issued within ten days.
(c)
Informal Hearing
. An Applicant or Sponsor who disagrees with the decision of the Informal
Review may request an Informal Hearing before an Assistant Secretary or his or
her designee. Such request shall be delivered by hand or by certified mail,
return receipt requested, and must be submitted within ten days of the issuance
of the Informal Review decision. EOEA shall schedule an Informal Hearing within
15 days after receipt of the request for Informal Hearing. The Informal Hearing
shall consist of an informal presentation of the position of the parties and
any applicable written documents. If the matter is settled at the Informal
Hearing, EOEA and the Applicant or Sponsor shall reduce the settlement to
writing. If the matter is not settled at the Informal Hearing, an Assistant
Secretary or his or her designee shall review all material presented and within
30 days after the Informal Hearing, forward a decision to the Applicant or
Sponsor.
(2)
Formal Hearing.
(a)
Initiation of Appeal. When EOEA has denied, revoked,
suspended, or modified Certification, the Applicant or Sponsor may appeal the
final decision issued after the Informal Hearing by filing a notice of claim
for adjudicatory proceeding with the Division of Administrative Law Appeals
pursuant to
801 CMR 1.01:
Formal Rules, and by filing a copy of the notice with the
General Counsel of EOEA. The appeal shall be filed no later than 21 days after
the decision on the Informal Hearing is issued.
(b)
Scope of Review.
If the hearing officer designated by the Division of Administrative Law Appeals
finds by substantial evidence any single ground for denial, revocation,
modification, suspension or refusal to renew an Application or Certification
which ground constitutes a failure or refusal to comply with the requirements
of M.G.L. c. 19D, St. 1994, c. 354 or
651 CMR 12.00, the hearing
officer shall uphold the decision to deny, revoke, modify, suspend or refuse to
renew such Application or Certification.
(c)
Decision and Action by the
Secretary of EOEA. The decision of the hearing officer shall be a
tentative decision under
801 CMR
1.01(11)(c):
Tentative Decisions. Within 30 days of receipt of the
decision, the Secretary shall render a final decision to approve, modify, or
disapprove the hearing officer's decision. The Appellant may submit a written
statement to the Secretary concerning the tentative decision within seven days
after receiving it, but shall not be entitled to a further hearing before the
Secretary. The decision of the Secretary shall be the final administrative
decision, and shall bind the parties unless the Appellant commences an action
to obtain judicial review within 30 days after the date of the final
decision.
(3)
Enforcement. Nothing in 651 CMR 12.10 shall limit
EOEA's ability to exercise its responsibility and authority to enforce the
disputed regulation during the Administrative Review process. All completed
reports, responses, and notices of final action may be made available to the
public at the department during business hours together with the responses of
the applicants or the sponsors thereto. Nothing in 651 CMR 12.10 shall limit
EOEA's responsibility to periodically review the Residence to determine whether
it has achieved compliance with the statutory and regulatory requirements, and,
if so, to issue the Certification subject to reasonable conditions.
(4)
Notification.
Whenever EOEA initiates an action to deny, suspend, modify, refuse to renew or
revoke a Certification pursuant to
651 CMR
12.09(4), it shall transmit
a notice to each Resident, or Legal Representative and appropriate governmental
agencies which:
(a) Describes the action to be
taken;
(b) Suggests the general
timetable for the enforcement process and its possible effect on Residents;
and
(c) Confirms that a second
notice will be transmitted if the relocation of the Residents is imminent.
Whenever it appears likely that a Certification denial or
revocation action commenced pursuant to
651 CMR
12.09(4) will result in the
need for relocation of Residents, EOEA shall transmit a second notice to each
Resident, or Legal Representative and appropriate governmental agencies
informing each party of:
(d)
The status of the enforcement action;
(e) Residents' rights under the Residency
Agreement; and
(f) The availability
of information to Residents from EOEA and other sources regarding available
legal assistance and assistance in relocation.
