06 -039 Assisted Living reg-651cmr012
August 23, 2006 651 CMR-1
651 CMR 12.00: CERTIFICATION PROCEDURES AND STANDARDS FOR
ASSISTED LIVING RESIDENCES
Section
12.01: Scope, Purpose and Authority
12.02: Definitions
12.03: Certification
12.04: General Requirements for An Assisted Living Residence
12.05: Record Requirements
12.06: Staffing Requirements
12.07: Training Requirements
12.08: Resident Rights
12.09: Compliance Reviews of Assisted Living Residences
12.10: Hearings: Procedure
12.11: Right of Entry by Executive Office of Elder Affairs and Contracting Agencies
12.12: Penalties for Uncertified Operation
12.13: Advisory Council
12.14: Inapplicability of Certain Laws and Regulations to Assisted Living Residences
12.01: Scope, Purpose and Authority
651 CMR 12.00 is promulgated by the Executive Office of Elder
Affairs (EOEA) pursuant to M.G.L. c. 19A and St. 1994, c. 354 to set forth
the requirements for Certification, renewal of Certification and suitability for
Applicants and Sponsors of Assisted Living Residences. The purpose of
these regulations is to promote the availability of services for elderly or
disabled persons in a residential environment; to promote the dignity,
individuality, privacy and decision-making ability of such persons and to
provide for their health, safety, and welfare; and to promote continued
improvement of Assisted Living Residences. Assisted Living Residences are
an important part of the spectrum of living alternatives for the elderly in the
commonwealth, and that they should be operated and regulated as residential
environments with supportive services and not as medical or nursing
facilities, and should support the goal of aging in place through services,
available either directly or through contract or agreement, to compensate for
the physical or cognitive impairment of the individual while maximizing his
or her dignity and independence.
651 CMR 12.00 also sets forth the standards for premises all or part
of which is an Assisted Living Residence in the Commonwealth of
Massachusetts. It also provides penalties for operating a premises, all or part
of which is an Assisted Living Residence, without Certification.
Although the provisions of St. 1994, c. 354 and 651 CMR 12.00 do
not apply to the following entities and premises for the original facilities and
services for which said entities and premises were originally licensed or
organized to provide, if any such entity seeks to have all or part of its
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premises advertised, operated or maintained as an Assisted Living Residence
it must apply to become Certified in accordance with 651 CMR 12.03:
(a) Convalescent homes, nursing homes, rest homes, charitable homes
for the aged or intermediate care facilities for the mentally retarded
licensed pursuant to M.G.L. c. 111, § 71;
(b) Hospices licensed pursuant to the provisions of M.G.L. c. 111, §
57D;
(c) Facilities providing continuing care to residents as defined by
M.G.L. c. 93, § 76;
(d) Congregate housing authorized by M.G.L. c. 121B, § 39;
(e) Group homes operating under contract with the Department of
Mental Health or the Department of Mental Retardation;
(f) Housing operated for only those duly ordained priests, or for the
members of the religious orders of the Roman Catholic Church in their
own locations, buildings, Assisted Living Residence or headquarters to
provide care, shelter, treatment and medical assistance for any of the said
duly ordained priests or members of the said religious orders.
The provisions of St. 1994, c. 354, are not applicable to elderly
housing as defined by 651 CMR 12.02.
12.02: Definitions
When used in 651 CMR 12.00, unless the context otherwise requires,
the following terms shall have the following meanings:
Act or the Act - M.G.L. c. 19D and St. 1994, c. 354, (An Act Establishing
Assisted Living Residences).
Activities of Daily Living (ADL) - Tasks related to bathing, dressing,
grooming, ambulation, eating, toileting and other similar tasks related to
personal care needs.
Alteration - Any of the following changes made after the date of the
Residence's last Certification:
(a) a change in the number of Units;
(b) a substantial change in the configuration of Units;
(c) a substantial change in the premises; and
(d) a substantial change in the operating plan.
Applicant - A person or legal entity applying to EOEA for original
Certification or for renewal of Certification as a Sponsor of an Assisted
Living Residence.
Assisted Living Residence or Residence - Any entity, however organized,
whether conducted for profit or not for profit, which meets all of the
following criteria:
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(a) provides room and board; and
(b) provides, directly by its employees or through arrangements with
another organization which the entity may or may not control or own,
Personal Care Services for three or more adults who are not related by
consanguinity or affinity to their care provider; and
(c) collects payments or third party reimbursements from or on behalf of
Residents to pay for the provision of assistance with the Activities of
Daily Living, or arranges for the same.
Bathing Facility - A room equipped with a showerhead or a bathtub to enable
one person to take a shower or a bath.
Certification - The approval by EOEA of an Applicant or Sponsor to operate
and maintain an Assisted Living Residence subject to the requirements of St.
1994, c. 354 and 651 CMR 12.00 et seq.
Certified Provider of Ancillary Health Services - A person or legal entity
certified to provide home health care services or hospice care services under
Title XVIII of the Social Security Act 49, Stat. 620 (1935) or an entity
licensed under M.G.L. c. 111 that provides services such as physician,
pharmacist, restorative therapies, podiatry, hospice, and home health aide.
Chemical Restraint - Any drug that is used for Discipline or Convenience,
not required to treat medical symptoms, and not requested by the Resident.
Convenience - Any action taken to control or manage a Resident’s behavior
with lesser effort by the Assisted Living Residence that is not in the
Resident’s best interest.
Computation of Time – In computing any period of time under these rules,
the day of the act which initiates the running of the time period shall not be
counted. The last day of the time period shall be included unless it is a
Saturday, Sunday or legal holiday or any other day on which EOEA is
closed, in which case the period shall run until the end of the next business
day. When the time period is less than seven days, any days when EOEA is
closed shall be excluded from the computation.
Cooking Capacity - Access to a refrigerator, sink, and heating element.
Discipline - Any action taken by the Assisted Living Residence for the
purpose of punishing or penalizing a Resident.
Elderly Housing - Any residential premises available for lease by elderly or
disabled individuals which is financed or subsidized in whole or in part by
state or federal housing programs established primarily to furnish housing
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rather than housing and personal services, and which was never licensed
under M.G.L. c. 111.
Instrumental Activities of Daily Living (IADL) - Tasks related to meal
preparation, housekeeping, clothes laundering, shopping for food and other
items, telephoning, use of transportation, and other similar tasks related to
environmental needs.
Legal Representative - Guardian, Conservator, or attorney in-fact under a
Power of Attorney, where legally appropriate.
Limited Medication Administration (LMA) - The administration of
medication to a Resident which is not otherwise prohibited by M.G.L. c.
19D or 651 CMR 12.00 et seq.
Lodging - The provision of a single or a double living Unit.
Manager - The individual who has general administrative charge of an
Assisted Living Residence.
Modification of Certification - A change to or limitation on the scope of a
Sponsor’s authority to operate an Assisted Living Residence.
Newly Constructed - A building or buildings for which a person or entity
received a building permit on or after June 1, 1995 and seeks Certification as
an Assisted Living Residence; provided that a building or buildings for
which a person or entity at any time is or was providing facilities or services
other than those of an Assisted Living Residence shall not be considered
newly constructed for the purpose of the physical requirements for an
Assisted Living Residence under M.G.L. c. 19D, § 16 or 651 CMR 12.04(1).
Personal Care Service - Assistance with one or more of the Activities of
Daily Living and Self-Administered Medication Management, either through
physical support or supervision. Supervision includes reminding or
observing Residents while they perform activities.
Physical Restraint - Any manual method or physical or mechanical device,
material, or equipment attached or adjacent to the Resident’s body that the
individual cannot remove easily which restricts the Resident’s freedom of
movement or normal access to his or her body.
Residency Agreement - The written contract between an Assisted Living
Residence and a Resident or prospective Resident on either a temporary
(e.g., for respite care) or more permanent basis.
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Resident - An individual who resides in an Assisted Living Residence and
who receives housing and Resident Services and, when the context requires
or permits, such individual’s Legal Representative. An individual who
resides in an Assisted Living Residence or Special Care Residence for any
period of time shall be entitled to all the rights and privileges accorded under
651 CMR 12.00 et seq. regardless of the anticipated length of the residency.
Resident Representative - An individual who is authorized by the Resident to
help him or her fully participate in planning services or paying fees. The
Resident Representative shall not be employed by the Residence, nor
affiliated with the Sponsor unless related to the Resident by kinship or
marriage. The Resident Representative shall not act on behalf of a Resident
in circumstances warranting a Legal Representative. The Residence shall
not treat the Resident Representative as personally liable for payment of
Resident fees without having first obtained the Resident Representative’s
written agreement to act as a guarantor or surety.
Resident Services - Services to assist Residents with Activities of Daily
Living (ADL), Instrumental Activities of Daily Living (IADL), Self-
Administered Medication Management, or other similar services, but does
not include concierge services, recreational or leisure services. Resident
Services are provided either through physical assistance or staff supervision.
Secretary - The Secretary of the Executive Office of Elder Affairs of the
Commonwealth of Massachusetts.
Self-Administered Medication Management (SAMM) - A process which
includes reminding Residents to take medication, opening containers for
Residents, opening prepackaged medication for Residents, reading the
medication label to Residents, and observing Residents while they take the
medication.
Service Coordinator - The individual(s) responsible for assisting in the
preparation and periodic review and revision of each Resident’s service plan.
Significant Negative Effect - A situation in which a person is at significant
risk of death or immediate and serious physical or emotional harm. Such
situations include accidental injury, unanticipated death, suicide or suicide
attempt, assault requiring medical attention or police involvement, SAMM or
LMA error with an adverse effect requiring medical attention, and elopement
with an absence of greater than 30 minutes.
Skilled Nursing Care - Skilled services described in 130 CMR 456.409(A).
Special Care Residence - The Residence in its entirety or a separate and
distinct section within the Residence that provides care and services for one
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or more Residents, and which is designed to address the specialized needs of
individuals, including those who may need assistance in directing their own
care due to cognitive or other impairments.
Special Care Unit - A portion of a Special Care Residence designed for and
occupied pursuant to a Residency Agreement by one or two individuals as
the private living quarters of such individuals.
Sponsor - The person or legal entity who is named in the Certification of an
Assisted Living Residence.
Therapeutic Diet - A meal plan prescribed or ordered by the Resident’s
physician.
Transfer of Ownership - Transfer of a majority interest in the ownership of
an Assisted Living Residence. In the case of an individual, transfer of
ownership; in the case of a corporation, transfer of a majority of the stock
thereof; in the case of a partnership, transfer of a majority of the partnership
interest; in the case of a trust, change of the trustee, or majority of trustees
shall constitute transfer of ownership. A transfer of ownership shall also be
deemed to have occurred where foreclosure proceedings have been instituted
and consummated by a mortgagee in possession of the premises, or when
bankruptcy proceedings have been initiated.
Unit - A portion of an Assisted Living Residence designed for and occupied
pursuant to a Residency Agreement by one or two individuals as the private
living quarters of such individuals.
12.03: Certification
(1) Requirements and Limitations.
(a) No person or legal entity shall establish or maintain an Assisted Living
Residence until it has been certified by EOEA.
(b) Prior to the commencement of operations, an Applicant may advertise an
uncertified Assisted Living Residence only if it first initiates the application
process for certification by notification to EOEA, and if it clearly states in all
advertising and marketing materials that it has not completed the EOEA
certification process.
(c) An Applicant must have sufficient property rights, as an owner or lessee,
as the Secretary or his or her designee finds necessary for the operation of an
Assisted Living Residence.
(d) An Application for Certification shall not be approved until the Applicant
and premises meet all the requirements outlined in 651 CMR 12.03(2).
(2) Application for Certification. Application shall be made on forms and in the
manner prescribed by EOEA. Every Application shall be notarized and signed
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under the pains and penalties of perjury by the Applicant. Except as set forth in
651 CMR 12.03(8), an Application shall be submitted to EOEA at least 60 days
prior to the date the Applicant plans to commence operation of the Assisted
Living Residence. EOEA shall charge a non-refundable fee set by the Secretary
of Administration and Finance pursuant to M.G.L. c. 7, § 3B for the filing of the
Application for Certification of an Assisted Living Residence or renewal of
Certification. An Applicant shall file a separate Application for each Assisted
Living Residence for which initial or renewal Certification is sought. In support
of the Application for an original or renewal certification each Applicant shall
provide:
(a) The name and address of each officer, director, and trustee; and the
names and addresses of each owner, general partner, limited partner, or
shareholder with a 25% or greater interest in the Assisted Living Residence;
(b) Attestation, under the pains and penalties of perjury, that none of such
individuals has ever been found in violation of any local, state or federal
statute, regulation, ordinance, or other law by reason of that individual’s
relationship to an Assisted Living Residence or health care facility. If any of
these individuals has ever been found in violation of any local, state, or
federal statue, regulation, ordinance, or other law by reason of that
individuals’ relationship to an Assisted Living Residence or health care
facility, a detailed description of every such violation and the sanction or
corrective action, if any, that was imposed by the local, state, or federal
officials;
(c) A list for each such individual of all multi-family housing or health care
facilities or providers in which she or he has been or is an officer, director,
trustee, or general partner;
(d) If the Applicant or any person named in the Application as set forth in
651 CMR 12.03(2)(a) has or has had, within the previous five years, an
interest in one or more of entities listed below, evidence from the
Massachusetts Department of Public Health (DPH)that the entities have
substantially met applicable criteria for licensure or certification and, if
applicable, have corrected all cited deficiencies without de-licensure or de-
certification being imposed:
1. hospital, clinic, long term care facility, mammography facility,
institutions for unwed mothers, out of hospital dialysis unit, hospice
program, bacteriological laboratory, blood bank, or other entity
licensed by the DPH under M.G.L. c. 111;
2. medical provider licensed under other applicable state statutes;
including a facility, halfway house or treatment program unit for
alcoholism licensed under M.G.L. c. 111B, ambulance service
licensed under M.G.L. c. 111C, clinical laboratory licensed under
M.G.L. c. 111D, and drug rehabilitation facility licensed under
M.G.L. c. 111E; or
3. home health agency in Massachusetts certified under Title XVIII
of the Social Security Act, as amended.
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(e) A copy of the conversion approval from the DPH, if an Applicant seeks
to convert all or part of a premises licensed as a Long Term Care Facility to
an Assisted Living Residence or if an Applicant seeks to add Assisted Living
Residences to existing premises licensed as a Long-Term Care Facility;
(f) An operating plan which shall include the following information:
1. The number of single and double occupancy Units for which
Certification is sought, the number of single and double occupancy
Units designated as Special Care Units, and the number of Residents
per Unit;
2. The location of Units and Special Care Units, common spaces,
and egresses by floor;
3. The fee structure for lodging, meals and services;
4. The type and extent of services to be offered, arrangements for
providing such services, including third party contracts, and linkages
with hospital and nursing facilities;
5. A plan for Self-Administered Medication Management (SAMM)
for Residents, including but not limited to, assistance with as-
necessary (PRN) medication when part of the SAMM plan, and, if
offered, Limited Medication Administration;
6. A means for Residents to communicate urgent or emergency
needs, and a plan to provide timely assistance to them;
7. The number of staff to be employed in the operation of the
Assisted Living Residence and their minimum qualifications and
responsibilities;
8. A copy of the Residency Agreement that will be used by the
Assisted Living Residence. It must clearly describe the rights and
responsibilities of the Resident and Sponsor, and comply with all
requirements of M.G.L. c. 19D and these regulations;
9. A copy of all required current building, fire safety, and locally
approved state sanitary code certificates and permits;
10. Procedures for notification of a Resident and his or her
representative when, due to changes in the Resident’s service needs,
the Assisted Living Residence is no longer an appropriate
environment;
11. A copy of all policies and procedures related to the design and
operation of a Special Care Residence required under 651 CMR
12.04(5);
12. A copy of the quality improvement and assurance program
required under 651 CMR 12.04(10);
13. A copy of the disaster and emergency preparedness plan required
under 651 CMR 12.04(11);
14. A copy of the communicable disease control plan required under
651 CMR 12.04(12);
15. A statement citing the beginning and ending dates of the
Residence’s fiscal year; and
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16. Policies and procedures designed to ensure a safe environment
for all Residents.
(g) Applications for renewal Certification must also include a statement that
the data required by 651 CMR 12.04(13), information documenting all
substantial changes to the operating plan prior to the effective date, and all
other information required by EOEA, have been submitted.
(3) Review of Applications. The EOEA shall not review an Application for an
original or renewal Certification unless:
(a) The Application includes all information required by EOEA;
(b) The Application includes all required attachments and statements
that are required for the Certification; and
(c) The Applicant has paid all required Application fees.
(4) Evaluation of Application. The EOEA shall not approve an Application for an
original or renewal Certification unless:
(a) The Secretary or his or her designee has conducted a compliance review
of the Assisted Living Residence as set forth in 651 CMR 12.09 and has
reasonably determined that the premises meets the requirements of the
Act and is in compliance with 651 CMR 12.00 et seq.; and
(b) The Secretary or his or her designee has conducted a review of the
Applicant and has reasonably determined that the Applicant meets the
requirements of the Act and is in compliance with 651 CMR 12.00 et
seq.
(c) EOEA may, in its discretion, deny Certification to any Applicant who
has directly or indirectly had an ownership interest in an entity licensed
under M.G.L. c. 111, or a medical provider licensed under other
applicable state statutes, or a home health agency certified under Title
XVIII of the Social Security Act, as amended, that: (i) has been the
subject of a patient care receivership action, (ii) has ceased to operate
such an entity as a result of (a) a settlement agreement arising from a
Decertification action, (b) a settlement agreement in lieu of a patient care
receivership, or (c) a delicensure action or involuntary termination of
participation in either the Medical Assistance program or the Medicare
program, or (iii) has been the subject of a substantiated case of patient
abuse or neglect involving material failure to provide adequate protection
or services for a resident in order to prevent such abuse or neglect, or (iv)
has over the course of its operation been cited for repeated, serious or
willful violations of rules and regulations governing the operation of said
health care facility that indicate a disregard for resident safety and an
inability to responsibly operate an Assisted Living Residence.
(5) Deemed Certification Pending Approval By EOEA. A Sponsor of an
Assisted Living Residence which, on or before July 1, 1995 has commenced
construction or operation, or has received official action approval for taxable or
tax exempt financing by a governmental issuer, or has received a site approval
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and market acceptance letter for a loan insured by the Federal Housing
Administration, shall, in order to commence or continue operations, file an initial
Application with EOEA for each such Assisted Living Residence in accordance
with 651 CMR 12.03(2) on a form provided by EOEA. For the purposes of 651
CMR 12.03(5), "commencement of operations" means the Assisted Living
Residence is open and providing lodging, meals and services to Residents under a
Residency Agreement.
If the completed Application is date stamped by EOEA within 30 days
after July 1, 1995 with full payment of the Application fee, the Applicant shall be
deemed to be certified to operate and maintain an Assisted Living Residence from
January 13, 1995 or from a date thereafter up to July 1, 1995. The Assisted Living
Residence shall be Certified until such time as EOEA issues notice to the
Applicant regarding the approval or denial of its Application.
The Applicant and Assisted Living Residence shall be subject to
completion of all Application and review procedures and must comply with, and
shall be subject to, all requirements of St. 1994, c. 354 and 651 CMR 12.00 in
order to retain Certification.
(6) Certification Fee. Upon receiving notice of Certification, or Certification
renewal, a Sponsor shall forward within ten days to EOEA a Certification fee, set
by the Secretary for Administration and Finance pursuant to M.G.L. c. 7, § 3B
based on the number of Units certified on the date of its most recent Application.
In the event that the Applicant or Sponsor of an Assisted Living Residence alters
the Residence by the addition or removal of Units, a fee adjustment may be made
by EOEA. Failure to pay the fee within the ten day period shall result in a finding
of non-compliance by EOEA under 651 CMR 12.09.
(7) Renewal Certification Procedures. EOEA shall renew for a term of two
years the Certification of a Sponsor of an Assisted Living Residence if EOEA
determines that the Sponsor and the Assisted Living Residence meet the
requirements of St. 1994, c. 354 and 651 CMR 12.00.
If the Application for renewal of Certification is filed and date-stamped at
EOEA at least 30 days before the stated expiration date of the Certification, the
Certification shall not expire on such date. The Sponsor and Assisted Living
Residence shall be deemed to be certified unless EOEA notifies the Sponsor that
the Application for renewal has been denied.
The Application shall be filed on a form provided by EOEA, include an
Application fee as set by the Secretary for Administration and Finance and follow
the procedures set forth in 651 CMR 12.03.
For the purposes of those Assisted Living Residences deemed certified
under 651 CMR 12.03(5), the running of the biennial period for renewal of
Certification shall begin on the date of issuance of Certification by EOEA.
(8) Change of Ownership. Any person or entity who intends to acquire a 25
percent or greater interest in an existing Assisted Living Residence shall submit
an Application for Certification to EOEA at least 30 days prior to the transfer of
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the ownership interest. The application for Certification shall also include a
statement on a form developed by EOEA, signed and notarized by the parties,
regarding the anticipated transfer of ownership of the Residence. If EOEA
receives these documents at least 30 days prior to the closing date of the change
of ownership, the new Applicant shall be considered to be deemed certified from
and after the date of the change of ownership, until such time as EOEA approves
or denies the Applicant’s application for Certification; provided that after the
transfer of ownership has been completed, the new Applicant has within 5 days
submitted a signed and notarized statement that the transfer of ownership has been
completed. The previous Sponsor shall return its Assisted Living Certificate to
EOEA within 5 days after the transfer of ownership. The current Certification of
the Residence shall be deemed valid until the completion of a Certification
process for changes sought. In the event of a transfer of ownership interest of an
Assisted Living Residence, it is within the Secretary’s discretion to conduct a full
or partial compliance review.
(9) Non-Transferability of Certification.
(a) Each Certification shall be valid only in the possession of the
Residence and the Sponsor to whom it is issued and shall not be subject to
sale, assignment or other transfer, voluntary or involuntary;
(b) No Certification shall be valid for any building premises other than
those for which the Certification was originally issued;
(c) Every Assisted Living Residence Certification must be displayed in
a conspicuous place in the Residence; and
(d) The Certification of a Sponsor to operate an Assisted Living
Residence shall be returned by registered mail to EOEA immediately
upon:
1. Revocation of or refusal to renew the Certification;
2. Transfer of ownership;
3. Change of name of the Sponsor; or
4. Closure or other termination of the Residence’s operations.
(10) Closure. The Sponsor of an Assisted Living Residence shall submit to
EOEA a notice of intent to close or sell the Residence for other business use at
least 90 days in advance of the proposed sale or closure. The notice shall include
the following:
(a) At least 90 days written advance notice to the Residents of the intent
of the Sponsor to close or sell the Residence;
(b) The method of informing Residents, and their Legal
Representatives or Resident Representatives, of the intent of the Sponsor
to close or sell the Residence for other business;
(c) The actions the Sponsor will take to assist the Residents in securing
comparable housing; and
(d) The method to be used to inform the Residents of their rights under
the landlord/tenant laws established under M.G.L. c. 186 or M.G.L. c.
239.
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(11) Suspension of Certification. If EOEA suspends the Certification of an
Assisted Living Residence, the Sponsor shall display the notice of suspension in a
prominent place in the Residence, in place of the Certification, so long as the
suspension is in effect.
12.04: General Requirements for an Assisted Living Residence
An Assisted Living Residence shall meet the following requirements to
obtain and maintain Certification:
(1) Physical Requirements.
(a) An Assisted Living Residence shall provide only single or double
Units with lockable doors on the entry door of each Unit. Residents shall
have exclusive rights to their Units with lockable doors at the entrance of
their individual or shared Units, however, as part of a Resident’s Service
Plan, keys or access codes may be readily available to specified shift
staff;
(b) All Newly Constructed Assisted Living Residences shall provide a
private bathroom for each Unit which shall be equipped with one
lavatory, one toilet, and one bathtub or shower stall;
(c) All other Assisted Living Residences shall provide at a minimum, a
private half- bathroom (i.e., equipped with one washstand and one toilet)
for each living Unit and shall provide at least one Bathing Facility for
every three Residents;
(d) All Assisted Living Residences shall provide at a minimum, either a
kitchenette or access to Cooking Capacity for all Residents, however, as
part of a Resident’s Service Plan, such access may be limited to
supervised access; and
(e) Every Assisted Living Residence shall meet the requirements, of all
applicable federal and state laws and regulations including, but not
limited to, the state sanitary codes, state building and fire safety codes
and laws and regulations governing use and access by persons with
disabilities.
(2) Waiver Requests. The Secretary may waive the requirements relative to
bathrooms and the Bathing Facilities for Certification of Assisted Living
Residence premises set forth in 651 CMR 12.04(1) if he or she determines
that:
(a) Public necessity and convenience requires such a waiver; and
(b) The granting of such a waiver shall prevent undue economic
hardship; and
(c) The Assisted Living Residence otherwise meets the purposes of
assisted living to provide a home-like residential environment.
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The Applicant/Sponsor shall request such a waiver in writing and shall
enclose written documentation supporting the request for a waiver. The
Secretary may grant such a waiver at his or her discretion.
(3) Service and Service Coordination Requirements.
(a) Each Assisted Living Residence shall designate at least one Service
Coordinator who shall be the person identified as primarily responsible for
developing, reviewing and revising each Resident’s service plan, as set
forth in 651 CMR 12.04(8). The Service Coordinator shall be qualified by
training and experience and shall be responsible for the following:
1. Reviewing with the Resident the assessment, and service options
available to address needs and preferences identified under 651 CMR
12.04(7);
2. Implementation of the service plan developed under 651 CMR
12.04(8);
3. Monitoring the Resident’s needs and the services provided by the
Residence to address those needs;
4. Coordinating with and participating in the Quality Improvement
and Assurance program, as set forth under 12.04(10); and
5. Maintaining complete and accurate records of service plans.
(b) The Sponsor of the Assisted Living Residence shall provide or arrange
for the provision of the following services by personnel meeting standards
for professional qualifications and training set forth in 651 CMR 12.06
and 12.07:
1. For all Residents whose service plans so specify, supervision of
and assistance with Activities of Daily Living including at a
minimum bathing, dressing, and ambulation and similar tasks; and
supervision or assistance with Instrumental Activities of Daily Living
including at a minimum laundry, housekeeping, socialization and
similar tasks;
2. For all Residents whose service plans so specify, Self-
Administered Medication Management (SAMM) of prescription or
over-the-counter medication, which shall be performed according to
the following standards. When assisting a Resident to self-administer
medication the individual performing SAMM must:
i. remind the Resident to take the medication;
ii. check the package to ensure that the name on the
package is that of the Resident;
iii. observe the Resident take the medication; and
iv. document in writing the observation of the Resident’s
actions regarding the medication (e.g., whether the
Resident took or refused the medication, the date and time).
If requested by the Resident, the individual performing SAMM
may open prepackaged medication or open containers, read the
name of the medication and the directions on the label to the
August 23, 2006 651 CMR-14
Resident, and respond to any questions the Resident may have
regarding those directions.
The Residence may assist a Resident with SAMM from a
medication container that has been removed from its original
pharmacy-labeled packaging or container by another person (e.g.,
by the Resident’s family). Such assistance is not required of the
Residence. If this service is to be provided, the Residence and
Resident shall have a full written disclosure of the risks involved
and consent by the Resident.
SAMM shall only be performed by an individual who has
completed Personal Care Service Training as set forth in 651 CMR
12.07(3) or (6); a practitioner, as defined in MGL c. 94C; or a
nurse registered or licensed under the provisions of MGL c. 112, s.
74 or 74A to the extent allowed by laws, regulations and standards
governing nursing practice in Massachusetts. Central storage of
Residents’ medications in an area outside of a Resident’s Unit is
prohibited. Residences shall provide a refrigerator to store
medication in the Resident’s Unit if refrigeration is required, and
may employ a locked location in which to safely store medications
within a Unit.
3. Timely assistance to Residents and prompt response to urgent or
emergency needs:
i. By the presence of 24 hour per day on-site staff capability;
ii. By the provision of personal emergency response systems for each
Resident if the service plan requires or other means for the purpose
of signaling such staff; and
iii. Any additional response systems EOEA may require in
accordance with the service needs of the Residents.
4. Up to three regularly scheduled meals daily (minimum of one meal per
day). All Assisted Living Residences shall use daily recommended
dietary allowances as established by the Food and Nutrition Board of the
National Research Council of the National Academy of Sciences set forth
in the Title III of the Older Americans Act as amended (42 USC 3030g)
as a minimum dietary standard. In addition to the foregoing, at a
minimum an Assisted Living Residence shall provide or arrange for the
availability of food selections that would permit a Resident to adhere to a
diet consistent with the most recent edition of Dietary Guidelines for
Americans and dietary plans that do not require complex calculations of
nutrients or preparation of special food items. These dietary plans shall
include sodium restricted, sugar restricted and low fat. The Residence
shall have a qualified dietitian review the Residence’s dietary plans at
least every six months.
August 23, 2006 651 CMR-15
(4) Skilled Care Services.
(a) The Sponsor may arrange for the provision of ancillary health
services in the Residence. The Sponsor may not use Assisted Living
Residence staff for these services unless said staff is functioning as an
employee of a Certified Provider of Ancillary Health Services or as an
employee of a licensed hospice;
(b) No Assisted Living Residence shall provide, admit or retain any
Resident in need of Skilled Nursing Care unless all of the following are
the case:
1. The care will be provided by a Certified Provider of Ancillary
Health Services or by a licensed hospice; and
2. The Certified Provider of Ancillary Health Services does not train
the Assisted Living Residence staff to provide the Skilled Nursing
Care.
(c) Nursing services provided by a Certified Provider of Ancillary
Health Services such as injection of insulin or other drugs used routinely
for maintenance therapy of a disease may be provided to Residents.
(d) Neither nurses employed by Residences nor nurses contracted by
Residences shall direct any non-licensed staff to perform Skilled Nursing
Care or to administer any medications to Residents, nor oversee nor
supervise such practice.
(5) Special Care. Any Residence that chooses to advertise, market,
otherwise promote or provide special care for Residents shall administer
such care and services in accordance with the requirements of this section
in addition to all other requirements of 651 CMR 12.00 et seq. A
Residence may not operate a Special Care Residence without submitting
an operating plan to EOEA that explains how the Special Care Residence
will meet the specialized needs of its resident population, including those
who may need assistance in directing their own care due to cognitive or
other impairments. This includes a description of the physical design of
the structure and the units, physical environment, specialized safety
features, enrichment activities, and trained staff.
(a) All Special Care Residences shall be administered in accordance with
the following safeguards:
1. Entry and exit doors in the common use areas within Special
Care Residences shall be secured in accordance with local, state
and federal laws and regulations. All doors must automatically
unlock in the case of fire, power outage or emergency situation;
2. Staff shall be trained and assigned according to the requirements
of 651 CMR 12.06 and 12.07;
3. The Residence shall develop and implement a 24-hour
preparedness plan by assessing the needs of each occupant of the
Special Care Residence for emergency assistance, and devise an
appropriate method to provide the necessary assistance;
August 23, 2006 651 CMR-16
4. The Residence shall develop and implement policies and
procedures to assess and reduce the risk of potential hazards in the
physical environment related to the special characteristics of the
population;
5. The Residence shall develop policies and procedures for the
Special Care Residence that address unsafe Resident behaviors
such as wandering, and verbally or physically aggressive behavior
including coercive or inappropriate sexual behavior; and
6. The Residence shall develop policies and procedures governing
the transition of Residents moving in or out of the Special Care
Residence.
(b) The Special Care Residence shall prepare a planned activity program
that shall provide activities, on at least a daily basis, to address Resident
needs in the following areas of resident function, as applicable:
1. Gross motor activities;
2. Self-care activities;
3. Social activities; and
4. Sensory and memory enhancement activities.
(c) The Residence shall document and make available upon request all
plans, policies and procedures required under 651 CMR 12.04(5)(a) and
(b) in accordance with the disclosure requirements of 651 CMR 12.08(3).
(d) Administrative staff of the Residence qualified by training and
experience shall review the operations of the Special Care Residence twice
each year. The reviews may be conducted as part of the Residence
Quality Improvement and Assurance program prescribed under 651 CMR
12.04(10). The Residence shall document the results of these reviews.
(6) Optional Services. The Assisted Living Residence may provide or
arrange for the provision of the following optional services, including but not
limited to:
(a) Local transportation (medical & recreational);
(b) Barber or beauty services, sundries for personal consumption and
other amenities;
(c) Money management and other financial arrangements to be
performed by an independent party for any Resident unable to manage
his or her funds or property. The Sponsor shall not allow any personnel
of an Assisted Living Residence to control or manage the funds or
property of a Resident; provided that the Sponsor may, at the request of
the Resident or their Legal Representative, hold and disburse Resident
funds, not to exceed $200, for personal use of the Resident not otherwise
covered by the Residency Agreement. The Sponsor shall detail such
agreements in the Resident's service plan; and
(d) Limited Medication Administration (LMA). LMA may only be
provided by a family member; a practitioner, as defined in MGL c. 94C;
or a nurse registered or licensed under the provisions of MGL c. 112, s. 74
August 23, 2006 651 CMR-17
or 74A. The Residence must perform LMA from an original, pharmacy-
filled and pharmacy-labeled container.
In addition to the requirements and limitations set forth in 651 CMR
12.04(4), a nurse with a valid Massachusetts nursing license employed by
the Assisted Living Residence may administer non-injectable medications,
prescribed or ordered by an authorized prescriber, by oral or other
methods (e.g. topical, inhalers, eye and ear drops, medicated patches, as
necessary oxygen, suppositories). LMA performed by a nurse must be
completed in accordance with all applicable laws, regulations and
standards governing the medication administration process by a nurse,
including documentation requirements.
In accordance with the standards of nursing practice, a nurse may only
administer medication from an original, pharmacy-filled and pharmacy-
labeled container. All medication must be kept in the Resident’s Unit and
stored in such a manner that the nurse can adequately verify the integrity
of the medication.
(7) Screening and Assessment. Prior to a Resident moving in, the Service
Coordinator shall conduct an initial screening and assessment to determine
the prospective Resident’s service needs and preferences and the ability of
the Residence to meet those needs. A service plan based on that assessment
shall be developed before the Resident moves into the Residence. The
service plan shall be based on information provided by the Resident, his or
her Legal Representative or Resident Representative, and shall include an
evaluation, conducted within the past three months by the Resident’s
physician or authorized practitioner, of the prospective Resident’s physical,
cognitive, and psychosocial condition. It is the responsibility of the Resident
or his or her representative to have the physician’s or authorized
practitioner’s evaluation completed.
(a) The Residence shall involve the prospective Resident, the Legal
Representative, and the Resident Representative to the maximum extent
possible.
(b) The Residence shall, at a minimum, document its assessment findings
for the Resident on the following:
1. Allergies;
2. Diagnoses;
3. Medications (including dosage, method of administration and
frequency);
4. Dietary needs;
5. Need for assistance in emergency situations;
6. History of psychosocial issues including the presence of disruptive
behaviors, or behaviors which may present a risk to the health and
safety of the Resident or others;
August 23, 2006 651 CMR-18
7. Level of personal care needs, including ability to perform ADLs
and IADLs; and
8. Ability of the Resident to manage medication, including the ability
to take medication on an as-needed basis.
(c) The preadmission assessment shall note the name of any Legal
Representative or any other person who has decision-making authority for
the Resident and the scope of his or her authority.
(d) The Residence shall review the initial service plan for the Resident
within 30 days of date on which the Resident begins to live at the
Residence. Thereafter, the Residence shall review the assessment upon
identification of a significant change in the Resident’s condition, but not
less than once every six months, and document its review to ensure the
Resident’s needs and preferences are accurately incorporated therein, and
that the Residence is capable of meeting the Resident’s needs in
accordance with these regulations.
(8) Service Plan Requirements. The Assisted Living Residence shall, with
each Resident, develop and maintain an individualized service plan.
(a) The Residence shall ensure the Resident’s participation to the
maximum extent possible in developing the service plan and shall include
the Legal Representative or Resident Representative to the extent that he
or she is authorized, willing and able to be involved. Each service plan
shall be based on a current assessment of the Resident, and indicate the
following:
1. The services needed, including the minimum service package
provided for a monthly fee and any additional services the
Resident needs;
2. The Resident’s goals, and the frequency and duration of all
services provided to address the Resident’s particular physical,
cognitive, psychological and social needs, including but not limited
to the following:
i. Details of the manner in which the Residence shall
provide for the presence of a 24 hour per day, on site staff
capability, and the manner in which the Residence shall
provide for personal emergency response devices or
procedures;
ii. Details of the types of assistance with medications that
the Residence shall provide, if any;
iii. Description of services that will be provided by a person
or entity not affiliated with the Assisted Living Residence
or by a certified provider of ancillary health services (e.g.
VNA services, private duty aides, adult day care) if the
Resident, Resident Representative, or Legal Representative
notifies the Assisted Living Residence that he or she has
arranged for such services; and
August 23, 2006 651 CMR-19
iv. The need for a therapeutic diet. The Residence shall
have a qualified dietitian review the Resident’s dietary
needs, and counsel the Resident in Therapeutic Diet and
other diet management; and
3. The service plans for Residents residing in Special Care Units
must indicate the enrichment activities provided to them as set
forth in 651 CMR 12.04(5).
(b) All service plans shall be in writing, signed and dated by the Resident
or his or her Legal Representative, and by the Sponsor or his or her
representative.
(c) Each service plan shall be reviewed at least once every six months to
assess achievement of the Resident’s goals, and to determine if the
services remain appropriate to the Resident’s needs and the ability of the
Residence to meet those needs. The Residence may conduct this review in
conjunction with the reassessment that is required under 651 CMR
12.04(7)(d). The Residence shall document this review.
The service plan shall be confidential except to the extent necessary to provide services
and manage the operations of the Assisted Living Residence; provided that EOEA may
review the service plan at any time with the consent of the Resident or his or her Legal
Representative.
(9) Ombudsman Requirements. The Applicant or Sponsor of an Assisted
Living Residence is required to assist the Assisted Living Ombudsman
Program in its duties as a condition of maintaining Certification. See 651
CMR 13.00, et seq.
(10) Quality Improvement and Assurance Program. The Residence shall
establish an effective, ongoing quality improvement and assurance program
to evaluate its operations and services with the goal of improving services
and operations, and to assure Resident health, safety, and welfare. The
program should encompass oversight and monitoring of Residence services,
ongoing quality improvement, and implementation of any plan that addresses
improved quality of services. The Residence shall periodically gather,
annually review and analyze data to evaluate its provision of services to its
residents, the overall outcome of services and planning, and Resident
satisfaction. The program must set goals based on analysis of relevant
information focusing on Resident safety, well-being and satisfaction. The
program shall include but not be limited to review and assessment of the
following operations:
(a) Service Planning. The Residence shall review a random sample of
Resident assessments, service plans and progress notes at least once each
year to ensure that the Residents’ service plans have been implemented
and are effective;
August 23, 2006 651 CMR-20
(b) Resident Safety Assurances. The Residence shall review policies and
procedures designed to ensure a safe environment for all residents; and
(c) Medication Quality Plan. The Residence shall develop and implement
systems that support and promote safe SAMM, and if applicable, LMA
programs. The Medication quality plan shall include but need not be
limited to the following components:
1. Semiannual evaluation of each Personal Care worker that
examines his or her awareness of SAMM regulations and
applicable policies, and verifies his or her demonstrated ability to
comply with SAMM regulations and related Residence policies
and procedures; and
2. A quarterly audit of a random sample of the Residence
medication documentation sheets required under 651 CMR
12.04(3)(b)(2) to ensure compliance with SAMM protocols and
Residence policies.
(d) A system shall be in place to facilitate the detection of issues and
problems, to expedite the implementation of action, to resolve problems
and communicate outcomes of actions taken or refused. Information
solicited from Residents should be collected in a manner which offers
anonymity (e.g., suggestion box, resident satisfaction surveys).
(e) Data analysis shall be used to identify and implement changes that will
improve performance or reduce the risk of Resident harm. The Residence
shall maintain documentation that shows it has collected and analyzed
data; that appropriate actions were implemented to address identified
issues and resolve problems; and shall note any follow-up actions that
were recommended, planned and taken or not taken.
(f) The result of the quality improvement program cannot be the sole basis
for a determination of non-compliance pursuant to 651 CMR 12.09.
(11) Disaster and Emergency Preparedness Plan. Each Residence shall have a
comprehensive emergency management plan to meet potential disasters and
emergencies, including fire; flood; severe weather; loss of heat, electricity, or
water services; and resident-specific crises, such as a missing resident. The plan
shall be designed to reasonably ensure the continuity of operations of the
Residence.
(a) Plan Requirements.
1. The plan and any changes to the plan are to be developed in
conjunction with local and state emergency planners.
2. The plan shall indicate the location of emergency exits; evacuation
procedures; and the telephone numbers of police, fire, ambulance, and
emergency medical transport to be contacted in an emergency;
3. The plan shall address the physical and cognitive needs of
residents, and shall include special staff response, including the
procedures needed to ensure the safety of any resident. The plan shall
August 23, 2006 651 CMR-21
include provisions related to individuals residing in a Special Care
Residence, and shall be amended or revised whenever any resident
with unusual needs is admitted;
4. The plan shall indicate the frequency of drills or rehearsals, which
shall be held as required under state regulations and local
requirements;
5. The Residence shall provide every Resident with a copy of the
instructions they will be given under the Disaster and Emergency
Preparedness Plan, and shall have available for their review a copy of
the Plan.
(b) Staff Training. The Residence shall ensure disaster and emergency
preparedness by orienting new employees at the time of employment to
the Residence’s emergency preparedness plan, periodically reviewing the
plan with employees, and making certain that all personnel are trained to
perform the tasks assigned to them.
(c) Reporting Emergency Situations. Upon the occurrence of any
emergency situation that displaces Residents from their Units for 24 hours
or more, the manager of the Residence or his or her designee must
immediately provide a report to the EOEA Assisted Living Residence
Certification Unit. This report shall include, at a minimum:
i) the name and location of the Residence,
ii) the nature of the problem;
iii) the number of Residents displaced;
iv) the number of Units rendered unusable due to the occurrence,
and the anticipated length of time before the Residents may return
to them;
v) remedial action taken by the Residence; and
vi) other State or local agencies notified about the problem.
(d) Reporting Resident-specific emergencies. A Residence shall report to
EOEA the occurrence of an incident or accident that arises within a
Residence or its property, that has or may have a significant negative
effect on a resident's health, safety or welfare, including wandering or
elopement by one of its Residents. A significant negative effect shall be
assumed whenever, as a result of an incident or accident, any unplanned or
unscheduled visit to a hospital or medical treatment is necessary. The
report shall be made by contacting the Assisted Living Certification Unit
by telephone and in writing, by facsimile transmission or by other
electronic means, within 24 hours after the occurrence of the incident or
accident. This requirement is in addition to the requirements of M.G.L. c.
19A, s. 15, and of any other applicable law.
(12) Communicable Disease Control Plan. The Residence must
implement a plan to prevent and limit the spread of communicable disease.
The plan shall conform to the currently accepted standards for principles
of universal precautions based on OSHA Guidelines and shall include but
need not be limited to the following components:
August 23, 2006 651 CMR-22
1. A system to effectively identify and manage communicable
diseases;
2. Reasonable restrictions on staff contact with Residents when a
staff member has a communicable disease in the infectious stage;
3. Organized arrangements to provide the necessary supplies,
equipment and protective clothing, consistent with universal
precautions under OSHA Guidelines,
(13) Reports to EOEA.
(a) Annual Reports.
1. A Sponsor shall file annually, within 90 days following the end
of an Assisted Living Residence’s fiscal year, a financial disclosure form
prescribed by EOEA which sets forth a statement by the Sponsor based
on reviewed or audited financial statements prepared by a certified public
accountant. All financial statements must be sufficient to permit EOEA
to assess the Residence’s fiscal condition and ability to meet the
requirements of the service plans established for its Residents is
adequate. Upon written request to EOEA, the Secretary may extend such
90-day period by an additional period, not to exceed 30 days.
2. Each Residence shall file annually, on a form approved by
EOEA, a report of aggregate information regarding Residents which is
based, where applicable, on the most recent Resident assessments and
service plans. The reporting period shall be January 1 through December
31, and the report shall be submitted to EOEA no later than March 1 of
the next year. Failure to timely submit each annual report will result in a
finding of non-compliance at the next certification review. The report
shall indicate:
A. As of December 31:
i. The number of current Residents, their ages, and gender;
ii. The percentage of all current Residents with a medical
diagnosis of Alzheimer’s disease or related dementia;
iii. Number of Residents currently residing in a Special
Care Residence;
iv. Percentage of residents currently receiving SAMM,
LMA or both SAMM and LMA;
v. The average and numerical range of ADLs with which
current Residents receive assistance, and,
vi. For any Residence that participates in the MassHealth
Group Adult Foster Care (GAFC) program, the percentage
of Residents enrolled in GAFC, in the SSI-G living
arrangement, or receiving a Section 8 housing subsidy.
B. For the entire reporting period:
i. The average Resident census for the reporting period;
ii. The total number of Resident tenancies concluded during
the reporting period, categorized by the reason for
August 23, 2006 651 CMR-23
termination (e.g., death, greater care needs, moved to
another ALR); and
iii. The average length of stay for all Resident tenancies
concluded during the reporting period.
3. Additional information that EOEA may require, on written notice to all
certified Assisted Living Residences.
(b) Additional Reporting Requirements.
1. All information required by 651 CMR 12.03(2) or otherwise required
by the Secretary shall be kept current by each Applicant or Sponsor. The
Sponsor must inform the Secretary in writing at least 30 days prior to any
Alteration of the Residence, its Units, or its operating plan, and any
document which would amend, supplement, update or otherwise alter the
operating plan, original Application or renewal for Certification shall be
filed with EOEA at least 30 days prior to its effective date.
2. In addition to the requirements of 651 CMR 12.04(11)(c), the
Sponsor shall forward to EOEA a copy of any report or citation of a
violation of applicable provisions of the State Sanitary Code, State
Building Code, fire safety regulations or other regulations affecting the
health, safety, or welfare of Residents within seven days of receipt of
notice of such violation.
12.05: Record Requirements
All records created or maintained by the Assisted Living Residence shall be legible,
recorded in ink, and contemporaneously signed and dated to indicate the name and
position of the individual who makes the record entry. Computerized records systems
which meet these standards for permanency and accessibility, and which provide an
auditable record of entries may be used as an alternative or supplement.
(1) Resident Record. The Assisted Living Residence shall develop and
maintain confidential written Resident records. The Resident Record and
related documents are considered permanent and shall be maintained for the
duration of the Resident’s stay in the Assisted Living Residence and for at
least six years after the date of termination of the Agreement. The Resident
record shall include at a minimum, the following:
(a) Resident assessment, documented in accordance with the requirements
set forth at 651 CMR 12.04(7)(b);
(b) Service plans documented in accordance with the requirements of 651
CMR 12.04(8)(a) through (e);
(c) Progress notes, which shall document significant occurrences, either
observed by or reported to Residence staff, including significant or
continued changes in the Resident’s behavior or memory; incidents
involving injury, trauma, illness, or abuse or neglect of the Resident for
which a report would be required by law; alleged or actual violations of
August 23, 2006 651 CMR-24
the Resident’s rights as defined in 651 CMR 12.08; and changes in the
Resident’s service plan;
(d) Documentation of Introductory Visits set forth at 651 CMR 12.07(5);
(e) Documentation of Self-Administered Medication Management; and
(f) Documentation of all aspects of Limited Medication Administration, if
applicable. This includes, but is not limited to, a proper written medication
order from an authorized prescriber, documentation of the name, dose,
route of administration, and time the medication is administered. The
nurse who administers the medication shall sign or initial the
documentation.
The following documents are also part of the Resident record, and may be
kept in a separate location(s):
(g) Any applicable guardianship orders, authorized powers of attorney,
health care proxies, living wills, and other relevant documents affecting or
directing Resident care (including Department of Public Health Comfort
Care /“Do Not Resuscitate Order Verification Form”); provided that their
existence and location is conspicuously documented in the Resident’s
record and they are immediately available in case of an emergency; and
(h) The original Residency Agreement and any documents which extend
or amend the Residency Agreement.
(i) The Disclosure of Rights and Services required by 651 CMR 12.08(3).
(2) Personnel Record Requirements. The Assisted Living Residence shall
develop and maintain written personnel records, and maintain copies of
its personnel policies and procedures. Each personnel record shall
include at a minimum the following:
(a) Job description;
(b) Educational preparation and work experience;
(c) A copy of any current licensure or Certification or, if applicable,
documentation of completion of 54-hour Personal Care Services Training
set forth in 651 CMR 12.07(3);
(d) Documentation of attendance at Personnel Orientation as set forth in
651 CMR 12.07;
(e) Documentation of reports of criminal offender record information;
(f) Documentation of annual performance evaluation;
(g) Documentation of attendance at in-service training; and
(h) Copies of any disciplinary letters or reports.
12.06: Staffing Requirements
No person working in an Assisted Living Residence shall have been
convicted of a felony.
August 23, 2006 651 CMR-25
(1) Qualifications for the Manager. The Manager of an Assisted Living
Residence shall be at least 21 years of age and must have demonstrated
experience in administration, and demonstrated supervisory and management
skills. The Manager must also have a Bachelors degree or equivalent
experience in human services management, housing management or nursing
home management. The Manager must be of good moral character, and
must never have been convicted of a felony.
(2) Qualifications for the Service Coordinator. The Service Coordinator of
an Assisted Living Residence must have a minimum of two years experience
working with elders or disabled individuals. The Service Coordinator shall
be qualified by experience and training to develop, maintain and implement
or arrange for the implementation of individualized service plans. The
Service Coordinator must also have a Bachelors degree or equivalent
experience, and knowledge of aging and disability issues.
(3) Staffing. The Residence shall have sufficient staffing at all times to
meet the 24-hour per day scheduled and reasonably foreseeable unscheduled
needs of all Residents based upon the Residents’ assessments and service
plans. The Residence’s staffing shall be sufficient to respond promptly and
effectively to individual Resident emergencies. The Residence shall have a
plan to secure staffing necessary to respond to emergency, life safety and
disaster situations affecting Residents.
(4) Special Care Residence Staffing. The Special Care Residence shall have
sufficient staff qualified by training and experience awake and on duty at all
times to meet the 24-hour per day scheduled and reasonably foreseeable
unscheduled needs of all Residents of the Special Care Residence based
upon the Resident assessments and service plans. The Special Care
Residence’s staffing shall be sufficient to respond promptly and effectively
to individual Resident emergencies. The Residence shall have a plan to
secure staffing necessary to respond to emergency, life safety and disaster
situations affecting Residents.
(5) Special Care Residence Manager. A Special Care Residence must
designate an individual who will be responsible for the operations of the
Special Care Residence. The Manager of a Special Care Residence shall be
at least 21 years of age, must have a minimum of two years experience
working with elders or disabled individuals, knowledge of aging and
disability issues, demonstrated experience in administration, and
demonstrated supervisory and management skills. The Manager must also
have a Bachelors degree or equivalent experience in human services
management, housing management or nursing home management. The
Manager must be of good moral character, and must never have been
convicted of a felony.
August 23, 2006 651 CMR-26
(6) Staffing Levels. Each Residence must develop and implement a process
for determining its staffing levels. The plan must include an assessment, to
be conducted at least quarterly but more frequently if the Residence so
chooses, of the appropriateness of staffing levels.
12.07: Training Requirements
The purposes of the requirements of this section are to ensure employees of Assisted
Living Residences have a clear understanding of their jobs and the way in which their
work intersects with and supports the work of other employees, of the policies and
procedures of the Residence, of the rights of the Residents, and of the particular and
distinctive service needs and health concerns of the Residents. All curricula for training
should reflect current standards of practice and care, be designed to enhance the
professionalism of the employees, and to enable employees to provide good service.
Training requirements may be satisfied by such means as practical demonstration,
lectures, lectures with accompanying role playing, video with facilitated discussion, and
other generally accepted techniques. No more than two of the seven hours required for
orientation may be conducted by unfacilitated media presentations by such means as
video or audio. Instructors and facilitators shall be appropriately qualified by training or
demonstrated experience. The Residence shall maintain documentation in the
employee’s personnel file regarding the completion of training or eligibility for any
exemption.
(1) General Orientation. Prior to active employment, all staff and
contracted providers who will have direct contact with Residents and all food
service personnel must receive a seven-hour orientation which includes the
following topics:
(a) Philosophy of independent living in an Assisted Living Residence;
(b) Resident Bill of Rights;
(c) Elder Abuse, Neglect and Financial Exploitation;
(d) Residence policies and procedures related to disaster and emergency
preparedness;
(e) Communicable diseases, including but not limited to, AIDS/HIV and
Hepatitis B;
(f) Infection control in the Residence and the principles of universal
precautions based on OSHA Guidelines;
(g) Communication Skills;
(h) Review of the aging process;
(i) Dementia/Cognitive Impairment including a basic overview of the
disease process, communication skills and behavioral management;
(j) Resident Health and related problems;
(k) General overview of the employee’s specific job requirements;
(l) The Residence’s policy on emergency response to acute health issues,
and first aid; and
(m) Sanitation and Food Safety.
August 23, 2006 651 CMR-27
At least two hours of such General Orientation shall be devoted to the topic
of dementia and cognitive impairments. All curricula for training related to
dementia shall reflect current standards of practice and care.
In addition to the requirements relative to General Orientation set forth in
651 CMR 12.07(1)(a) through (m), all personnel providing Personal Care
Services shall receive at least one additional hour of orientation devoted to
the topic of Self- Administered Medication Management.
Both the Residence Manager and Service Coordinator shall receive an
additional two-hour training devoted to dementia care topics.
(2) Orientation for Staff Working Within Special Care Residences. In
addition to completing requirements for General Orientation as set forth
under 651 CMR 12.07(1)(a) through (m), all new employees who work
within a Special Care Residence and have direct contact with Residents must
receive seven hours of additional training on topics related to the specialized
care needs of the Resident population (e.g., communication skills, creating a
therapeutic environment, dealing with difficult behaviors, competency,
sexuality, and family issues).
(3) Ongoing In-Service Education and Training. A minimum of ten hours
per year of ongoing education and training is required for all employees,
with at least two hours on the specialized needs of Residents with
Alzheimer’s disease and related dementia. Employees working in a Special
Care Residence must receive an additional four hours of training per year
related to the Residents’ specialized needs. Upon submitting proof in a
manner and form prescribed by EOEA, training received within the past 18
months at another Assisted Living Residence, a similar facility or agency
may be used to satisfy the requirements of this section. Satisfaction of the
requirements of the General Orientation shall not be used to fulfill the
requirements of this section. In addition:
(a) All staff providing assistance with Personal Care Services shall be
trained in the Residence’s policy on emergency response to acute health
issues and first aid, and must also complete at least one hour of ongoing
education and training per year on the topic of Self-Administered
Medication Management; and
(b) All employees and providers shall receive ongoing in-service
education and training, designed to ensure orientation training is
reinforced, from among the following topics:
1. Communication and teamwork;
2. The aging process, including physical and cognitive
changes;
3. The causes and prevention of falls, and related injuries;
4. The effects of dehydration;
5. Alzheimer’s disease and cognitive impairments;
August 23, 2006 651 CMR-28
6. Behavior management, including prevention of
aggressive behavior and de-escalation techniques;
7. Conflict resolution;
8. Resident rights;
9. Defining, recognizing and reporting elder abuse;
10. Self-Administered Medication Management;
11. Death and dying;
12. Maintaining skin integrity;
13. Nutrition;
14. Emergency procedures; and
15. Training which addresses topics required in the
General Orientation.
(4) Personal Care Services Provider Training Requirements. Assisted
Living Residence staff and contracted providers of Personal Care Services
must complete an additional 54 hours of training prior to providing Personal
Care Services to a Resident, 20 hours of which must be specific to the
provision of Personal Care Services. The 20 hours of Personal Care training
must be conducted by a qualified Registered Nurse with a valid
Massachusetts license. The 54 hours of training must include the following
topics:
(a) Personal hygiene;
(b) The effects of dehydration;
(c) Maintaining skin integrity;
(d) Self-Administered Medication Management;
(e) Elimination;
(f) Nutrition;
(g) Human Growth, Development and Aging;
(h) Family Dynamics;
(i) Grief, Loss, Death and Dying;
(j) Mobility;
(k) Maintenance of a Clean, Safe and Healthy Environment;
(l) Home Safety; and
(m) Assistance with Appliances.
Documentation of completion of the 54-hour training for Assisted Living
Residences staff and contract providers who provide Personal Care Services shall
be transferable for each employee from one Residence to another.
(5) Introductory Visit and Review. Prior to or within 48 hours after the
provision of Personal Care Services to a Resident, a nurse shall review the
Resident’s service plan with all relevant personal care workers. This review may
be conducted in the Resident’s Unit or at another appropriate location within the
Residence, as determined by the nurse. The personal care workers must
demonstrate competence in the assigned personal care tasks (including Self-
Administered Medication Management) in the Resident’s service plan. Such
competence may be demonstrated either through a verbal review of these tasks or,
August 23, 2006 651 CMR-29
if deemed necessary by the nurse, by the demonstrated performance of the tasks
by such workers. An Introductory Visit shall also be conducted and documented
in the Resident’s record whenever the Resident’s personal care needs change
significantly, as determined by the nurse.
(6) Supervision. A qualified nurse shall, at least twice per year, evaluate the
Personal Care Services provided by personal care staff of the Residence or by
contracted providers. A written record of the staff or provider’s performance of
personal care skills shall be completed after each evaluation and shall be kept in
the employee’s personnel file. Personal care staff who provide Self-Administered
Medication Management shall also be evaluated on their awareness of and
compliance with SAMM regulations and the applicable Residence policies and
procedures.
(7) Exemptions. The following individuals are exempt from Personal Care
Services Provider Training Requirements as set forth in 651 CMR 12.07(3).
However, these individuals must complete the General Orientation and Ongoing
In-Service Education and Training as set forth in 651 CMR 12.07(1) and (2).
(a) Registered Nurse (RN) and a Licensed Practical Nurse (LPN) with a
valid license in Massachusetts;
(b) Nurse's Aides with documentation of successful completion of
nurse’s aide training;
(c) Home Health Aides with documentation of having successfully
completed the Certified Health Aide training program; and
(d) Personal Care Homemakers with documentation of having
successfully completed a Personal Care Homemaker training program
(60 Hours).
(8) Food Service Personnel. Before commencing employment in an Assisted
Living Residence, the person(s) managing the dietary department (e.g. food
services manager and chef) must complete a food service sanitation course which
meets the requirements of 105 CMR 590.003(a)(2).
12.08: Resident Rights and Required Disclosures
Prior to scheduling a formal meeting with the prospective Resident, the Residence shall
inform him or her of the right to be accompanied by a Legal Representative, Resident
Representative, or other advisor. During its first formal meeting with a prospective
Resident, the Residence shall deliver to and verbally review with the prospective
Resident a consumer guide developed by EOEA and the Disclosure of Rights and
Services required by 651 CMR 12.08(3), which incorporates the provisions of Section
12.08(1). At the time of or prior to the execution of the Residency Agreement or the
transfer of any money to a Sponsor by or on behalf of a prospective Resident, whichever
first shall occur, the Sponsor shall deliver to and verbally review with the prospective
Resident, the person with whom the contract is entered into, and, if applicable, the
prospective Resident’s Legal Representative a copy of the Residency Agreement, which
shall state all applicable costs and terms of payment, services offered and not offered,
August 23, 2006 651 CMR-30
shared risks, and all other important terms and conditions of the Agreement. All
documents shall be written in plain language and published in typeface no smaller than
14 point type.
(1) Resident Rights. Every Resident of an Assisted Living Residence shall
have the right to:
(a) Live in a decent, safe, and habitable residential living environment;
(b) Be treated with consideration and respect and with due recognition
of personal dignity, individuality, and the need for privacy;
(c) Privacy within the Resident’s Unit subject to rules of the Assisted
Living Residence reasonably designed to promote the health, safety and
welfare of Residents;
(d) Retain and use his or her own personal property, space permitting, in
the Resident’s living area so as to maintain individuality and personal
dignity;
(e) Private communications, including receiving and sending unopened
correspondence, access to a telephone, and visiting with any person of
her or his choice;
(f) Freedom to participate in and benefit from community services and
activities and to achieve the highest possible level of independence,
autonomy, and interaction within the community;
(g) Directly engage or contract with licensed or certified health care
providers to obtain necessary health care services in the Resident’s Unit
or in such other space in the Assisted Living Residence as may be
available to Residents to the same extent available to persons residing in
their own homes,; and with other necessary care and service providers,
including, but not limited to, the pharmacy of the Resident’s choice
subject to reasonable requirements of the Residence. The Resident may
select a medication packaging system within reasonable limits set by the
Assisted Living Residence. Any Assisted Living Residence policy
statement that sets limits on medication packaging systems must first be
approved by EOEA;
(h) Manage his or her own financial affairs, unless the Resident has a
Legal Guardian or other court-appointed representative with the authority
to manage the Resident’s financial affairs;
(i) Exercise civil and religious liberties;
(j) Present grievances and recommended changes in policies,
procedures, and services to the Sponsor, Manager or staff of the Assisted
Living Residence, government officials, or any other person without
restraint, interference, coercion, discrimination, or reprisal. This right
includes access to representatives of the Assisted Living Ombudsman
program established under M.G.L. c. 19D, § 7, the Elder Protective
Services program established under M.G.L. c. 19A, §§ 14 through 26 and
the Disabled Persons Protection Commission (DPPC) established under
M.G.L. c. 19C, et seq.;
August 23, 2006 651 CMR-31
(k) Upon request, obtain from the Assisted Living Residence, the name
of the Service Coordinator or any other persons responsible for his or her
care or the coordination of his or her care;
(l) Confidentiality of all records and communications to the extent
provided by law;
(m) Have all reasonable requests responded to promptly and adequately
within the capacity of the Assisted Living Residence;
(n) Upon request, obtain an explanation of the relationship, if any, of the
Residence to any health care facility or educational institution to the
extent the relationship relates to his or her care or treatment;
(o) Obtain from a person designated by the Residence a copy of any
rules or regulations of the Residence which apply to his or her conduct as
a Resident;
(p) Privacy during medical treatment or other rendering of services
within the capacity of the Assisted Living Residence;
(q) Informed consent to the extent provided by law;
(r) Not be evicted from the Assisted Living Residence except in
accordance with the provisions of landlord/tenant law as established by
M.G.L. c. 186 or M.G.L. c. 239 including, but not limited to, an eviction
notice and utilization of such court proceedings as are required by law;
(s) Be free from Physical and Chemical Restraints;
(t) Receive an itemized bill for the basic fee and for charges, expenses
and other assessments for the provision of Resident services, Personal
Care Services, and optional services;
(u) Have a written notice of the Residents' Rights published in typeface
no smaller than 14 point type posted in a prominent place or places in the
Assisted Living Residence where it can be easily seen by all Residents.
This notice shall include the address, and telephone number of the EOEA
Assisted Living Ombudsman Program, and the telephone number of the
Elder Abuse Hotline; and
(v) Be informed in writing by the Sponsor of the Assisted Living
Residence of the community resources available to assist the Resident in
the event of an eviction procedure against him or her. Such information
shall include the name, address and telephone number of the Assisted
Living Ombudsman Program.
(2) Residency Agreement.
(a) The Residency Agreement shall include, at a minimum, the
following:
1. Charges, expenses and other assessments for the provision of
Resident services, Personal Care Services, Lodging and meals;
2. The agreement of the Resident to make payment of the charges
specified;
3. Arrangements for payment;
4. A Resident grievance procedure which meets the requirements of
651 CMR 12.08(1)(j);
August 23, 2006 651 CMR-32
5. The Sponsor’s covenant to comply with applicable federal and
state laws and regulations concerning consumer protection and
protection from abuse, neglect and financial exploitation of the
elderly and disabled;
6. The conditions under which the Residency Agreement may be
terminated by either party, including criteria the Residence may use
to determine that any of those conditions has been met, and the
length of the required notice period for termination of the Residency
Agreement;
7. Reasonable rules for the conduct and behavior of staff,
management and the Resident;
8. The Residents Rights required by 651 CMR 12.08(1);
9. A clear explanation of the services included in the base fee, a
description of all other bundled services as well as an explanation of
other services available at an additional charge;
10. An explanation of any limitations on the services the Residence
will provide, specifically including any limitations on services to
address specific Activities of Daily Living and behavioral
management. Such explanation shall also include a description of the
role of the nurse(s) employed by the Residence, and the nursing and
personal care worker staffing levels;
11. An explanation of the eligibility requirements for any available
subsidy programs, including a statement of any costs associated with
services beyond the scope of the subsidy program for which the
Resident or his or her Legal Representative would be responsible;
12. The conditions under which the fees, deposits, and other charges
are refundable; and
13. A copy of the Residence’s medication management policy: its
Self-Administered Medication Management (SAMM)policy,
including its policy on assistance with as-necessary or PRN
medication when part of the SAMM plan; and, if applicable, Limited
Medication Administration.
If the Disclosure of Rights and Services required by 651 CMR 12.08(3) fully states
all of the items required by subsections 651 CMR 12.08(2)(a) 4, 7, 8, 10, 11 and 13,
the Residency Agreement may, incorporate those requirements by reference.
(b) The Residency Agreement may include the agreement of the
Sponsor to provide or arrange for the provision of additional services,
including, but not limited to, the following:
1. Barber and beauty services, sundries for personal consumption,
and other amenities; and
2. Local transportation for medical and recreational purposes.
(c) The Residency Agreement shall be for a term not to exceed one year
and may be renewable upon the agreement of both parties.
August 23, 2006 651 CMR-33
(d) The Residency Agreement shall be for a single or double living Unit
in the Residence with lockable entry doors on each Unit which meet the
bathroom, bathing facility and kitchenette requirements of 651 CMR
12.04(1).
(e) A Residency Agreement for a Residence receiving funding through
MassDevelopment pursuant to M.G.L. c. 23A, et seq., which otherwise
meets the requirements of 651 CMR 12.08(2), may be executed for an
initial period not to exceed 13 months.
(f) A Resident may voluntarily agree to vacate his or her Unit in
accordance with his or her Residency Agreement. A Resident may not
be evicted from the Resident's Unit following termination of the
Residency Agreement except in accordance with the provisions of
landlord/tenant law as set forth in M.G.L. chs. 186 and 239.
(3) Disclosure of Rights and Services. The disclosure statement shall
include, at a minimum, the following:
a. The number and type of Units the Residence is certified to operate;
b. The number of staff currently employed by the Residence, by shift, an
explanation of how the Residence determines staffing, and the availability
of overnight staff, awake and asleep, and shall provide this information
separately for any Special Care Residence within the Residence;
c. A copy of the list of Residents’ Rights set forth in 651 CMR 12.08(1);
d. An explanation of the eligibility requirements for any subsidy
programs including a statement of any additional costs associated with
services beyond the scope of the subsidy program for which the Resident
or his or her Legal Representative would be responsible. This
explanation should also state the number of available Units, and whether
those Units are shared;
e. A copy of the Residence’s medication management policy: its Self-
Administered Medication Management policy for dealing with
medication that is prescribed to be taken “as necessary”, and an
explanation of its Limited Medication Administration policy;
f. An explanation of any limitations on the services the Residence will
provide, including, but not limited to, any limitations on specific services
to address Activities of Daily Living and any limitations on behavioral
management;
g. An explanation of the role of the nurse(s) employed by the Residence;
h. An explanation of entry criteria and the process used for Resident
assessment;
i. A statement of the numbers of staff who are qualified to administer
cardio pulmonary respiration (CPR), and the Residence’s policy on the
circumstances in which CPR will be used;
j. An explanation of the conditions under which the Residency
Agreement may be terminated by either party, including criteria the
Residence may use to determine that any of those conditions has been
August 23, 2006 651 CMR-34
met, and the length of the required notice period for termination of the
Residency Agreement;
k. An explanation of the physical design features of the Residence
including that of any Special Care Residence;
l. An illustrative sample of the Residence’s service plan, an explanation
of its use, the frequency of review and revisions, and the signatures
required;
m. An explanation of the different or special types of diets available;
n. A list of enrichment activities, including the minimum number of
hours provided each day;
o. An explanation of the security policy of the Residence, including the
procedure for admitting guests;
p. A copy of the instructions to Residents in the Residence’s Disaster
and Emergency Preparedness Plan;
q. A statement of the Residence’s policy and procedures, if any, on the
circumstances under which it will, with the member’s permission,
include family members in meetings and planning;
r. Each Special Care Residence shall also provide a written statement
describing its special care philosophy and mission, and explaining how it
implements this philosophy and achieves the stated mission.
12.09: Compliance Reviews of Assisted Living Residences
EOEA or its authorized designee shall conduct reviews of Assisted
Living Residences, at any time, but no less than once every two years, to
determine compliance with St. 1994, c. 354 and 651 CMR 12.00.
Authorized designees shall not be a Sponsor of an Assisted Living Residence
and may include, a non- profit agency, one or more Home Care Corporations
as defined in M.G.L. c. 19A, § 4(c), a combination of Home Care
Corporations as determined by EOEA, or a separate state agency.
EOEA or its authorized designee shall conduct a compliance review
prior to the issuance of any initial or renewal Certification. 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.
(1) What the Compliance Review Includes. 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;
August 23, 2006 651 CMR-35
(c) With the Resident’s consent, 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.
(2) 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 the Act and these regulations, 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 the Act or these regulations, 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, 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) or regulation(s) governing such program,
August 23, 2006 651 CMR-36
EOEA may, in its discretion, require the Residence to implement any
corrective action it deems necessary, including:
(i) Ceasing the enrollment of new Residents;
(ii) Reducing the number of Residents served;
(iii) Changing the staffing patterns or staffing levels, or staffing
qualifications; or
(iv) Requiring additional training of the manager or staff.
Factors which may be considered by EOEA in determining the nature of the
corrective action to be imposed include but are not limited to:
(i) Any instances of noncompliance at the Residence;
(ii) The risk that the instances of noncompliance present to the health,
safety, and welfare of residents;
(iii) The nature, scope, severity, degree, number, and frequency of the
instances of noncompliance;
(iv) The Applicant or Sponsor’s failure to correct the noncompliance;
(v) Any ongoing pattern of non-compliance;
(vi) Any previous enforcement action(s); and
(vii) 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 et seq.;
3. The Applicant or Sponsor refused to submit any report or make available any
records required under 651 CMR 12.00 et seq.;
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 et seq.; 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 these regulations.
(e) Effect.
An Applicant or Sponsor shall not qualify for 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.
August 23, 2006 651 CMR-37
(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 the
Act or its regulations 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
timeframe 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. 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:
(i) A specific plan of what will be or was done to correct the problem;
(ii) A description of what will be done to prevent recurrence of this
problem, or problems of this type;
(iii) Designation of the individual(s) who will be responsible for
monitoring the correction to ensure the problem does not recur; and
(iv) The date by which lasting correction will be achieved.
If the Applicant or Sponsor disagrees with the EOEA finding(s) or action, it may
request administrative review at EOEA 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. 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.
(h) After EOEA has received a complete corrective action plan it will review it
and notify the Applicant or Sponsor of whether the plan is acceptable. If it is,
EOEA will timely conduct a review of the Residence.
August 23, 2006 651 CMR-38
12.10: Administrative Review: Procedure
1. Agency 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 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 10 days of the issuance of the findings, or 10 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 the
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 10 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, the 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 et seq., 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
August 23, 2006 651 CMR-39
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 the Act or 651 CMR 12.00 et seq., 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).
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 this part 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 this part 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
12.10(2), (3), or (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 12.10(2) or (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.
12.11: Right of Entry by EOEA and Contracting Agencies
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Any duly designated officer or employee of EOEA shall have the
right to enter and inspect, at any time without prior notice, the common areas
and office areas of any Assisted Living Residence for which an Application
has been received or for which Certification has been issued. Any
Application shall constitute permission for such entry and inspection.
Inspections of any Unit shall be with the oral or written consent of the
Resident.
12.12: Penalties for Uncertified Operation
(1) Any person operating an Assisted Living Residence without
Certification under chapter 19D of the M.G.L. shall be subject to liability for
a civil penalty of not more than $500.00 for each day of such violation
assessable by the Superior Court.
(2) Any such violation shall constitute grounds for refusing to grant or
renew, modifying or revoking the Certification of the Assisted Living
Residence or of any part thereof.
(3) Notwithstanding the existence or use of any other remedy, EOEA may,
in the manner provided by law, maintain an action in the name of the
Commonwealth for an injunction or other process against any person to
restrain or prevent the operation of an Assisted Living Residence without
Certification under M.G.L. c. 19D.
(4) Any person who knowingly refers an individual for residency to an
uncertified Assisted Living Residence shall be subject to a civil penalty of
not more than $500.00 for each such violation assessable by the Superior
Court.
12.13: Advisory Council
Not withstanding any general or special law to the contrary, an
advisory council shall be established within EOEA. The advisory council
shall advise the Secretary of EOEA relating to the regulations authorized
under M.G.L. c. 19D. The advisory council shall be comprised of nine
members, the Secretary of Elder Affairs or his or her designee who shall
serve as chairperson, the Director of the Department of Housing and
Community Development or his or her designee; the Secretary of Health and
Human Services or his or her designee, and six members to be appointed by
the Governor upon nomination by the Secretary of Elder Affairs. Of such six
nominees, the Secretary shall nominate three persons who represent Resident
consumer interests and two persons who represent Sponsors and Managers of
the Assisted Living Residence. The advisory council shall by majority vote
establish its own rules and procedures. Members of the council shall be
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appointed for terms of one year each. The council shall meet not less than on
a quarterly basis, and it shall prepare a report of its activities, not less than
annually. The annual report shall be made available to the public and the
General Court.
12.14: Inapplicability of Certain Laws and Regulations to Assisted Living Residences
In accordance with M.G.L. c. 19D, § 18 (a), premises or portions of premises
Certified as Assisted Living Assisted Living Residence shall not be subject
to the following laws:
(a) the determination of need process applicable to health care facilities
in the Commonwealth as set forth in M.G.L. c. 111, §§ 25B through 25H;
(b) the licensing requirements for hospitals or institutions for unwed
mothers or clinics set forth in M.G.L. c. 111, § 51;
(c) the patients and Residents rights requirements set forth in M.G.L. c.
111, § 70E;
(d) the HTLV-III testing, confidentiality and informed consent
requirements applicable to a health care facility under M.G.L. c. 111, §
70F; however, physicians for health care providers to Assisted Living
Residences are subject to these requirements;
(e) the licensing requirements for convalescent and nursing homes, rest
homes, charitable homes for the aged, intermediate care facilities for the
mentally retarded and infirmaries maintained in towns (long term care
facilities) set forth in M.G.L. c. 111, § 71;
(f) the requirements for deposit of inpatient or Resident funds for a long
term care facility as set forth in M.G.L. c. 111, § 71A½;
(g) the requirements for classification of long term care facilities set
forth in M.G.L. c. 111, § 72;
(h) the requirements for lighting and ventilation for convalescent or
nursing homes set forth in M.G.L. c. 111, § 72C;
(i) the requirements for telephone access for long term care facilities set
forth in M.G.L. c. 111, § 72D;
(j) the requirements for notices of violations, plans of correction,
penalties and enforcement for long term care facilities set forth in
M.G.L. c. 111, § 72E;
(k) the patient abuse reporting requirements applicable to long term care
facilities under M.G.L. c. 111, §§ 72H through 72L;
(l) the receivership requirements for long term care facilities set forth in
M.G.L. c. 111, §§ 72M through 72U;
(m) the requirements for storage space for long term care facility
residents set forth in M.G.L. c. 111, § 72V;
(n) the requirements for long term care facility nurses aide training set
forth in M.G.L. c. 111, § 72W;
(o) the requirements for no smoking areas in nursing homes as set forth
in M.G.L. c. 111, § 72X;
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(p) the requirements for nursing pool regulations for long term care
facilities set forth in M.G.L. c. 111 § 72Y;
(q) the penalties regarding unlicensed operation of a long term care
facility under M.G.L. c. 111, § 73;
(r) the exemption from Department of Public Health licensing or
inspection rules regarding long term care facilities operated by the First
Church of Christ, Scientist in Boston set forth in M.G.L. c. 111, § 73A;
(s) the requirements for long term care facilities operated for duly
ordained priests, or for members of the religious orders of the Roman
Catholic Church in their own locations, buildings, Assisted Living
Residence or headquarters to provide care for such priests or members of
said religious orders set forth in M.G.L. c. 111, § 73B;
(t) the requirement for a special permit under local zoning by-laws for
the use of structures as shared elderly housing upon the issuance of a
special permit, and the six person occupancy, age and other conditions
deemed necessary for such special permits to be granted as set forth in
the seventh full paragraph of M.G.L. c. 40A, § 9.
REGULATORY AUTHORITY
651 CMR 12.00: M.G.L. c. 19A, § 6; St. 1994, c. 354, § 10.
August 23, 2006 651 CMR-43
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