Current Assisted Living Regulations
651 CMR
12.00:
ASSISTED LIVING RESIDENCE APPLICATION AND CERTIFICATION PROCEDURES
AND STANDARDS FOR ASSISTED LIVING RESIDENCES
Section
FINAL REGULATION TO TAKE EFFECT DECEMBER 1, 2002
12.01: Scope, Purpose and
Authority
651 CMR 12.00 is promulgated pursuant to M.G.L.
c. 19A, § 6 and St. 1994, c. 354, § 10 to set forth
the Certification, renewal of Certification and suitability
requirements for Applicants and Sponsors of Assisted Living
Residences by the Executive Office of Elder Affairs (EOEA).
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.
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.
However, if any such entity seeks to have all or part of its
premises advertised, operated or maintained as an Assisted Living
Residence which meet the requirements of the Act and 651 CMR
12.00 et seq., 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.
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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 means M.G.L. c. 19D and
St. 1994, c. 354, §§ 8 and 10, (An Act Establishing
Assisted Living Residences).
Activities of Daily Living (ADL) means those tasks related
to bathing, dressing/grooming, ambulation, eating, toileting
and other similar tasks related to personal care needs.
Alteration means 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 means 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
means any entity, however organized, whether conducted for profit
or not for profit, which meets all of the following criteria:
(a) provides room and board; and
(b) provides, directly by employees of the entity 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 means a room equipped
with a showerhead and/or a bathtub to enable one person to take
a shower or a bath.
Certification means the process by which
a person or a legal entity seeking to operate or operating an
Assisted Living Residence meets the requirements of St. 1994,
c. 354 and 651 CMR 12.03 et seq. and obtains the approval of
EOEA to operate and maintain such Residence.
Certified Provider of Ancillary Health Services
means a legal entity certified to provide home health care services
and/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 means any drug that
is used for Discipline or Convenience, not required to treat
medical symptoms, and not requested by the Resident.
Convenience means any action taken by the
Assisted Living Residence to control a Resident’s behavior
or manage a Resident’s behavior with a lesser amount of
effort by the Assisted Living Residence and not in the Resident’s
best interest.
Cooking Capacity means each Resident must
have access to a refrigerator, sink, and heating element.
Days (Computation of Time) means the computation
of any time period beginning the first day following the act
which initiates the running of the time period. The last day
of the period so computed is to be included unless it is a Saturday,
Sunday or legal holiday or any other day on which EOEA is closed,
in which event the period shall run until the end of the next
following business day. When the time period is less than seven
days, intervening days when EOEA is closed shall be excluded
in the computation.
Discipline means any action taken by the
Assisted Living Residence for the purpose of punishing or penalizing
Residents.
Elderly Housing means 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 rather
than housing and personal services, as set forth in a listing
established by the Secretary of Elder Affairs, and which was
never licensed under M.G.L. c. 111.
Instrumental Activities of Daily Living
(IADL) means those 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 means Guardian, Conservator
or attorney in-fact under a Power of Attorney, where legally
appropriate.
Limited Medication Administration means
the administration of medication to a Resident which is not
otherwise prohibited by MGL c. 19D or 651 CMR 12.00 et seq.
Limited Medication Administration may only be provided in Assisted
Living Residences by a family member or by 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.
In addition to the requirements and limitations
set forth in 651 CMR 12.04(4), nurses with a valid Massachusetts
nursing license employed by the Assisted Living Residence may,
if the Sponsor offers this optional service, administer non-injectible
medications prescribed or ordered by an authorized prescriber
to Residents by oral or other routes (e.g. topical, inhalers,
eye and ear drops, medicated patches, as necessary oxygen, suppositories).
Limited Medication Administration performed by a licensed nurse
must be completed in accordance with all applicable laws, regulations
and standards governing the medication administration process
by a nurse, including, but not limited to, documentation requirements.
If the Assisted Living Residence chooses to provide this optional
service, the Residence must perform Limited Medication Administration
from any container that has been properly filled and labeled
by an authorized pharmacy. In accordance with the standards
of nursing practice, a nurse may only administer medication
from an original, pharmacy-labeled container and may never administer
any medication that has been removed from its pharmacy-labeled
container by another person.
Where a nurse performs Limited Medication Administration
in an Assisted Living Residence, 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.
Lodging means the provision of a single
or a double living Unit.
Manager means the individual who has general
administrative charge of an Assisted Living Residence.
Modification of Certification means an
action taken by EOEA as set forth in 651 CMR 12.10 that results
in a change in the operating plan of an Assisted Living Residence.
Newly Constructed means a building or buildings
for which a person or entity receives 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
and/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 means 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 and/or observing Residents while
they perform activities.
Physical Restraint means 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 freedom of movement or
normal access to one’s body.
Resident Services means assistance with
Activities of Daily Living (ADL), assistance with Instrumental
Activities of Daily Living (IADL), Self-Administered Medication
Management, or other similar services, but not including concierge
services, recreational or leisure services. Assistance is either
through physical assistance or supervision.
Resident means an adult 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.
Residency Agreement means the contract
between a Certified Assisted Living Residence and a Resident
or adult who seeks to reside in such Residence on either a temporary
(e.g. respite) or more permanent basis, which clearly describes
the rights and responsibilities of the Resident and Sponsor,
including all requirements in M.G.L. c. 19D, § 2 and 651
CMR 12.08(2). The Residency Agreement shall be signed by the
Sponsor or the Sponsor's authorized agent and by the Resident,
or their Legal Representative.
Secretary means the Secretary of the Executive
Office of Elder Affairs of the Commonwealth of Massachusetts.
Self-Administered Medication Management
means the following:
(a) When assisting a Resident to self-administer
medication the individual performing Self-Administered Medication
Management must:
1. remind Residents to take medication;
2. check the package to ensure that the name on the package
is that of the Resident;
3. observe the Residents while they take the medication; and
4. document in writing the observation of the Residents’
actions regarding the medication (e.g. Resident took medication
at x time, Resident refused medication at x time, Resident
not in Unit at x time).
If requested by the Resident, the individual performing
Self-Administered Medication Management may open prepackaged
medication and/or open containers, read the name of the medication
and directions to the Resident and respond to any questions
the Resident may have regarding the directions on the label.
(b) The Residence may assist a Resident with Self-Administered
Medication Management from a medication container that has been
removed from its original pharmacy-labeled packaging or container
by another person (i.e. 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. The individual performing Self-Administered Medication
Management shall:
1. remind Residents to take medication;
2. check the package to ensure that the name on the package
is that of the Resident;
3. observe the Residents while they take the medication; and
4. document in writing the observation of the Residents’
actions regarding the medication (e.g. Resident took medication
at x time, Resident refused medication at x time, Resident
not in Unit at x time).
The individual performing Self-Administered Medication
Management may open prepackaged medication and/or open containers.
(c) The Residence shall through the Self-Administered
Medication Management program assist Residents with any medication
that is part of the Self-Administered Medication Management
plan, including prescription and over-the-counter medication,
whether such medication is taken according to a schedule or
as necessary (PRN). Self-Administered Medication Management
shall only be performed by an individual who has completed Personal
Care Service Training as set forth in 651 CMR 12.07(3) or 651
CMR 12.07(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 Resident medications (the storage of medication for
Residents in an area outside of the Resident’s Unit under
the control of the Residence) is prohibited in an Assisted Living
Residence. Residences shall provide a refrigerator to store
medication in the Resident’s Unit if refrigeration is required.
Serious Jeopardy means a situation in which one or more
Residents of an Assisted Living Residence is presently at significant
risk of death or immediate and serious physical or emotional
harm as a result of an act or omission of the Sponsor or persons
under the supervision or control of the Sponsor of such entity.
Service Coordinator means the individual(s)
responsible for assisting in the preparation and periodic review
and revision of the Residents* service plan.
Skilled Nursing Care means skilled services
described in 130 CMR 456.409(A).
Sponsor means a person or legal entity who is
named in the Certification of an Assisted Living Residence or
the person who is named in the Application for renewal of Certification
of a Certified Residence.
Therapeutic Diet means a meal plan prescribed
or ordered by the Resident’s physician.
Transfer of Ownership means 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.
Unit means a portion of an Assisted Living
Residence designed for and occupied pursuant to Residency Agreements
by one or two individuals as the private living quarters of
such individuals with a lockable entry and which meets the bathroom
and kitchenette requirements of 651 CMR 12.04(1).
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12.03: Certification
No person shall establish or maintain an Assisted
Living Residence without first having obtained Certification
for a two year period from EOEA.
In order to advertise prior to Certification by
EOEA, the Applicant or Sponsor shall inform EOEA in writing
of their intention to apply for Certification and indicate in
all advertising and marketing materials that it has not completed
the EOEA Certification process.
(1) Ownership Interest of Applicant or Sponsor.
An Applicant or Sponsor may include, but not be limited to,
the owner of the premises on which the Assisted Living Residence
is operated, a lessee of all or part of the premises or other
party which has or will have such rights of ownership as the
Secretary or his/her designee finds necessary for the operation
of an Assisted Living Residence.
In case of any transfer of ownership, an Applicant
who intends to acquire an Assisted Living Residence shall submit
an Application for Certification to EOEA at least 30 days prior
to the transfer. An Application for Certification shall not
be approved until the Applicant and premises meet all the requirements
outlined in 651 CMR 12.03(2): Application for Certification.
It is within the Secretary*s discretion to conduct a full or
partial compliance review in the event of a transfer of ownership
of an Assisted Living Residence.
(2) Application for Certification. Application
shall be made on forms and in the manner prescribed by EOEA.
Every Application shall be notarized and signed 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 or Sponsor
plans to commence operation of the Assisted Living Residence.
EOEA shall charge a non-refundable Application 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 or Sponsor 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 each Applicant or Sponsor shall provide:
(a) The name and address of each officer, director,
and trustee, and the names and addresses of limited partners
or shareholders with more than 25% interest in the Assisted
Living Residence;
(b) Assurances 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;
(c) A list for each such individual of all multi-family housing
or health care facilities or providers in the Commonwealth
or in other states in which she or he has been or is an officer,
director, trustee, or general partner;
(d) Information documenting all substantial changes to the
operating plan prior to the effective date and as otherwise
required by EOEA;
(e) Where the Applicant or persons named in the Application
as set forth in 651 CMR 12.03(2)(a) have or have had an interest,
in one or more of entities listed below within the previous
five years, evidence from the Massachusetts Department of
Public Health 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
Massachusetts Department of Public Health 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.
Note: 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 or (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 the resident in order to prevent such abuse or neglect,
or (iv) has over the course of its operation been cited
for repeated, serious and 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.
(f) A copy of the conversion approval from the
Massachusetts Department of Public Health, 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; and
(g) An operating plan which shall include the following information:
1. The number of Units for which Certification
is sought and the number of Residents per Unit;
2. The location of Resident 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 for
Residents, including but not limited to, assistance with
as necessary (PRN) medication when part of the Self-Administered
Medication Management plan, and, if offered, Limited Medication
Administration;
6. A plan to provide timely assistance to Residents and
respond to urgent or emergency needs;
7. The number of staff to be employed in the operation of
said 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;
9. A copy of all required current building, fire safety,
and locally approved state sanitary code certificates/permits.
The Applicant or Sponsor shall bear any costs incurred as
a result of this requirement; and
10. Procedures for notification of a Resident or his/her
representative when due to changes in the Resident*s service
needs, the Assisted Living Residence is no longer an appropriate
environment.
11. A statement citing the beginning and ending dates of
the Residence’s fiscal
year.
(3) Processing of Applications. The EOEA
shall not process 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 Applicant or Sponsor for an original
or biennial renewal Certification unless:
(a) The Secretary or his/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/her designee has conducted a review
of the Applicant or Sponsor and reasonably determines that
the Applicant or Sponsor meets the requirements of the Act
and is in compliance with 651 CMR 12.00 et seq.
(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 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 Sponsor 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 deemed certified Sponsor 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 Sponsor's 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
until such time as EOEA may notify 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) Reports to EOEA/Changes Requiring Recertification.
(a) Any document which amends, supplements,
updates or otherwise alters the operating plan, original
Application or renewal for Certification shall be filed
with EOEA at least 30 days prior to its effective date.
(b)Where there has been an Alteration of the Assisted Living
Residence, as defined in 651 CMR 12.02, the Sponsor must
inform the Secretary in writing at least 30 days prior to
the Alteration.
(c) Notwithstanding the provisions of 651 CMR 12.03(2),
in the case of a change of ownership status, an Applicant
who seeks to become a successor Sponsor shall submit an
application for Certification at least 30 days prior to
the change of ownership. An 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
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 in the manner set forth in 651 CMR 12.03(9)(d).
(d) In situations governed by 651 CMR 12.03(8)(b) and (c),
the current Certification of the Residence shall be deemed
valid until the completion of a Certification process for
changes sought, including, but not limited to, a full or
partial compliance review as determined by the Secretary
as part of the application process set forth in 651 CMR
12.03.
(e) 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 financial statements
(audited, reviewed or compiled) prepared by a certified
public accountant, 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.
Upon written request to EOEA, the Secretary may extend such
90-day period by an additional period, not to exceed 30
days.
(f) All information required by 651 CMR 12.03(2) or otherwise
required by the Secretary shall be kept current by each
Applicant or Sponsor.
(g) 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.
(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; and
4. Closure or other termination of the Residence*s existence
or authority to operate.
(e) If the Certification of a Sponsor to operate
an Assisted Living Residence is suspended, the Sponsor shall
display a certificate of suspension issued by EOEA in a
conspicuous place in the Residence in place of the retained,
but not displayed certificate, so long as the suspension
is in effect.
(10) Voluntary 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,
transfer, or sell the Residence;
(b) The method of informing Residents, and/or their designees
or Legal Representatives, of the intent of the Residence
to close or sell for other business;
(c) The actions to be taken 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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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
and/or shared Units;
(b) All Newly Constructed Assisted Living Residences shall
provide a private bathroom for each living 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 for each living Unit which
is equipped with one lavatory and one toilet 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
living Units; 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.
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/her discretion.
(3) Service Requirements. 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:
(a) For all Residents whose service plans so
specify such services, 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;
(b) For all Residents whose service plans so specify, Self-Administered
Medication Management;
(c) Timely assistance to Residents and response to urgent
or emergency needs:
1. By the presence of 24 hour per day on-site
staff capability;
2. 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
3. Any additional response systems EOEA may require in accordance
with the service needs of the Residents.
(d) 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 American*s 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
Dietary Guidelines for Americans 5th edition (or subsequent
later editions) 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 lowat. The Residence shall have a qualified
dietitian review the Residence’s dietary plans at least
every six months.
(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;
2. The Certified Provider of Ancillary Health Services does
not train the Assisted Living Residence staff to provide
the Skilled Nursing Care;
(b) 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.
(c) 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) Optional Services. The Sponsor of 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/beauty services, sundries for personal consumption
and other amenities;
(c) Money management and other financial arrangements made
with an independent party if the Resident is unable to manage
his/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 an Assisted Living Resident; provided
that the Sponsor may, at the request of the Resident, their
Legal Representative or other designee, hold and disburse
Resident funds, not to exceed $100, 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.
(6) Service Plan Requirements. Each Assisted
Living Service Coordinator shall develop and maintain together
with each Resident and/or his/her Legal Representative, an individualized
plan that is confidential and describes in lay terms the service
needs of the Resident. An initial service plan shall be developed
prior to a Resident’s entry. The service plan shall be
based on information provided by the Resident and his/her Legal
Representative, and/or the Resident’s authorized practitioner
which includes, but is not limited to, the Resident’s diagnoses,
current medications, allergies, and dietary needs. All service
plans shall be in writing, signed and dated by the Resident
and/or his /her Legal Representative and by a representative
of the Sponsor. The service plan shall be reviewed/reassessed
at least every six months, or when a Resident informs the Residence
of a service need or health condition change. The service plan
shall include both the core service package included in the
monthly fee and any additional services that are needed by the
Resident. The service plan shall also include the following:
(a) The specific types of services provided
based upon the physical, cognitive and social needs of the
Resident as well as any behavioral management concerns;
(b) Identification of the providers of such services;
(c) The frequency and duration of such services;
(d) The payment/reimbursement source for such services;
(e) 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; provided that Residences
housing individuals with dementia/cognitive impairments shall
also indicate how the specialized needs of these individuals
shall be addressed, which may included the provision of 24
hour awake staffing;
(f)Details of the types of assistance with medications that
the Residence shall provide: independent with medication;
Self-Administered Medication Management, or if offered, Limited
Medication Administration; or any combination of the above;;
or any combination of the above;
(g) Description of services that will be provided by an individual(s)
not affiliated with the Assisted Living Residence and/or by
a Certified Provider of Ancillary Health Services (e.g. VNA
services, private duty aids, adult day care) if the Resident
and/or their Legal Representative notifies the Assisted Living
Residence of such services; and
(h) The need for a Therapeutic Diet. The Residence shall have
a qualified dietitian review the Resident’s Therapeutic
Diet needs and any other diet needs, and counsel the Resident
in Therapeutic Diet and other diet management.
EOEA or its designee may review the individual
service plan at any time with the consent of the Resident or
his/her designee.
(7) 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.
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12.05: Record Requirements
(1) Resident Record. Each Assisted Living
Residence shall develop and maintain confidential written Resident
records. The Resident record shall include at a minimum, the
following:
(a) Resident assessment, including but not limited
to, the Resident’s diagnoses, current medications (including
dosage, route and frequency), allergies and all dietary needs;
(b) Service plan;
(c) Progress notes which shall be used to document any significant
involvement with the Resident and changes in the service plan;
(d) Documentation of Introductory Visits;
(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, 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, but may be kept in a separate location(s):
(g) A section reserved for the Resident’s
comments relative to their satisfaction with their service
plans and any other comments about the quality of care provided
by the Residence; and
(h) The original Residency Agreement and any documents which
extend or amend the Residency Agreement.
All documents in the Resident record 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.
(2) Personnel Record Requirements. Each
Assisted Living Residence shall develop and maintain confidential
written personnel records. The personnel record shall include
at a minimum the following:
(a) Job description;
(b) Educational preparation and work experience;
(c) Current licensure or Certification, if applicable or,
if applicable, documentation of completion of 54 hour Personal
care Services Training set forth in 651 CMR 12.07(3).;
(d) Documentation of Personnel Orientation as set forth in
651 CMR 12.07;
(e) Documentation of annual performance evaluation;
(f) Personnel policies and procedures; and
(g) Documentation of on-going staff training.
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12.06: Staffing Requirements
No person working in an Assisted Living Residence
shall have been convicted of a felony.
(1) Qualifications for the Manager. The
Manager of an Assisted Living Residence shall be at least 21
years of age and must have demonstrated administrative experience,
and demonstrated supervisory and management skills.
The Manager must have a Bachelors degree or equivalent
experience in human services management, housing management
and/or nursing home management.
(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.
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12.07: Training Requirements
(1) General Orientation. Prior to active
employment, all staff and contracted providers having 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) Safety and Emergency Measures;
(d) Communicable diseases, including but not limited to, AIDS/HIV
and Hepatitis B;
(e) 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 job*s specific requirements;
(l) Sanitation and Food Safety; and
(m) Self- Administered Medication Management (required only
for staff and contracted providers providing Personal Care
Services to Residents).
At least two hours of such General Orientation
shall be devoted to the topic of dementia/cognitive impairments.
At least one hour of the general orientation for all personnel
providing Personal Care Services shall be devoted to the topic
of Self- Administered Medication Management.
In addition to completing the General Orientation,
the Manager and Service Coordinator shall receive an additional
two-hour training devoted to dementia care topics.
(2) Ongoing In-Service Education and Training.
(a) A minimum of ten hours per year of ongoing
education and training is required for all employees, with
at least one hour spent on dementia/cognitive impairment topics;
(b) All staff providing assistance with Personal Care Services
shall complete at least one hour of ongoing education and
training per year on the topic of Self-Administered Medication
Management; and
(c) All employees and providers shall receive ongoing in-service
education and on-the-job training aimed at reinforcing the
initial training.
(3) 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 (34 hours of general training and 20 hours of
training 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, but not be limited to,
the following topics:
(a) Personal hygiene;
(b) Self-Administered Medication Management;
(c) Elimination;
(d) Nutrition;
(e) Human Growth and Development;
(f) Family Dynamics;
(g) Grief, Loss, Death and Dying;
(h) Mobility;
(i) Maintenance of a Clean, Safe and Healthy Environment;
(j) Home Safety; and
(k) Assistance with Appliances.
Documentation of completion of the 54-hour training
for Assisted Living Residences staff and contracted providers
who provide Personal Care Services shall be transferable for
each employee from one Residence to another.
(4) Introductory Visit. Prior to or within
48 hours after a personal care worker is to provide Personal
Care Services to a Resident, a nurse shall review the Resident’s
service plan with all personal care workers who shall be providing
Personal Care Services to the Resident. This review may be conducted
in the Resident’s Unit or at another appropriate location
within the Residence, as determined by the nurse. During this
review, it is expected that the personal care workers shall
demonstrate competence in the assigned personal care tasks (including
Self-Administered Medication Management) as indicated in the
Resident’s service plan. Such competence may be demonstrated
either through a verbal review of these personal care tasks
by the personal care workers or, if deemed necessary by the
nurse, by the demonstrated performance of the personal care
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.
(5) Supervision. Evaluation of Personal
Care Services provided by personal care staff of the Assisted
Living Residence or by a contracted provider shall take place
at the Assisted Living Residence at least twice a year by a
qualified nurse. A written performance of personal care skills
shall be completed after each visit and shall be kept in the
employee*s personnel file.
(6) 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 Homemaker/Personal Care Homemaker
training program (60 Hours).
The Residence shall maintain documentation in
the employees personnel file regarding the completion of the
personal care training program or eligibility for one of the
exemptions.
(7) 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).
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12.08: Resident Rights
(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/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 the following providers
to obtain care 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: 1/any licensed or certified health care
providers to obtain necessary health care services; and 2/
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/her own 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.;
(k) Upon request, obtain from the Assisted Living Residence
in charge of his/her care, the name of the Service Coordinator
or any other persons responsible for his/her care or the coordination
of his/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 as to the relationship,
if any, of the Residence to any health care facility or educational
institution insofar as the relationship relates to his/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/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 posted
in a prominent place in the Assisted Living Residence. This
notice shall include the name, address, and telephone numbers
of the Assisted Living Ombudsman office and EOEA where complaints
may be lodged; 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, but not be limited
to, the name, address and telephone number of the Assisted
Living Ombudsman Program.
(2) Residency Agreement.
(a) The Residency Agreement shall include, but
not be limited to, 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 including, but not limited
to, the right to contact the Assisted Living Ombudsman at
any time in accordance with 651 CMR 12.08(1)(j);
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, but not limited
to, the length of the advanced written notice period that
must be provided by both parties;
7. Reasonable rules for the conduct and behavior of staff,
management and the Resident;
8. A copy of the Residents Rights as stated in 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, including, but not limited to, any
limitations on specific Activities of Daily Living and any
limitations on behavioral management. Such explanation shall
also include a description of the role of the nurse, and
the nursing and personal care worker staffing levels;
11. If applicable, 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 which the Resident and/or his/her Legal Representative
would be responsible for;
12. The conditions under which the fees, deposits, and/or
other charges are refundable; and
13. A copy of the Residence’s policy regarding Self-Administered
Medication Management for Residents, including assistance
with as necessary or PRN medication when part of the Self-Administered
Medication Management plan, and, if applicable, Limited
Medication Administration.
Requirements set forth in subsections 651 CMR
12.08(2)(a) 4, 7, 8, 10, 11 and 13 may, at the discretion of
the Sponsor, be placed in the Disclosure of Rights and Services
as set forth in 651 CMR 12.08(3) and be incorporated by reference
into the Residencye Agreement.
(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/beauty service
s, 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.
(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) Resident may voluntarily agree to vacate his/her Unit
in accordance with his/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.
At the time of or prior to the execution of the Residency
Agreement, or at the time of or prior to the transfer of any
money to a Sponsor by or on behalf of a prospective Resident,
whichever first shall occur, the Sponsor shall deliver a disclosure
statement in plain language and large print to the person
with whom the contract is entered into, and their Legal Representative
which shall include, but not be limited to the following:
a. A copy of the Residents Rights as stated
in 651 CMR 12.08(1);
b. If applicable, 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 and/or his/her Legal Representative
would be responsible;
c. A copy of the Residence’s policy regarding Self-Administered
Medication Management for Residents, including assistance
with as necessary or PRN medication when part of the Self-Administered
Medication Management plan, and, if applicable, Limited
Medication Administration.
d. A Resident grievance procedure including, but not limited
to, the right to contact the Assisted Living Ombudsman at
any time in accordance with 651 CMR 12.08(1)(j);
e. Reasonable rules for the conduct and behavior of staff,
management and the Resident;
f. Other provisions of the Residency Agreement to be signed
by the Resident or their Legal Representative which shall
inform them of the cost, payment terms services offered,
services not offered, shared risks and other important terms
and conditions of the Agreement; and
g. An explanation of any limitations on the services the
Residence will provide, including, but not limited to, any
limitations on specific Activities of Daily Living and any
limitations on behavioral management. Such explanation shall
also include a description of the role of the nurse, and
the nursing and personal care worker staffing levels.
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12.09: Compliance
Reviews of Assisted Living Residences
EOEA or its authorized designee shall conduct
reviews of Assisted Living Residences to determine compliance
with St. 1994, c. 354 and 651 CMR 12.00. Designees shall not
be a Sponsor of an Assisted Living Residence and may include,
but shall not be limited to, 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 an Applicant's
initial/renewal Certification. EOEA may conduct a compliance
review any time it has probable 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, but not be limited to,
the following:
(a) A review of the operating plan and an
inspection of the common areas of the Assisted Living Residence.
The inspector may, in his or her discretion, interview the
Applicant or Sponsor, Manager, staff and Residents of the
Assisted Living Residence. Interviews with Residents shall
be conducted privately and shall be confidential;
(b) An inspection of the living quarters of any Resident,
but only with the Resident's prior consent;
(c) An examination of the service plan and written progress
reports on any Resident with the Resident's consent. Consent
may be given by the Resident 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. If consent is
obtained by a means other than writing, confirmation of
the consent shall be written in the review record; and
(d) A review of the Resident satisfaction survey.
(2) Compliance Review Reports, Findings and
Responses. Whenever a review is conducted, EOEA or its
designee shall prepare written findings summarizing all pertinent
information ob tained during the review and shall not disclose
confidential, private, proprietary or privileged information
obtained in connection with the review.
(a) If EOEA finds that the Applicant or Sponsor
is in compliance with St. 1994, c. 354 and 651 CMR 12.00,
EOEA shall mail a copy of its findings to the Applicant
or Sponsor within ten days after the compliance review is
completed;
(b) If EOEA finds that the Applicant or Sponsor is not in
compliance with the Act or its regulations, EOEA shall forward
a notice of non-compliance to the Applicant or Sponsor.
The notice shall describe the non-compliance with particularity
and include the corrective action to be taken by the Applicant
or Sponsor within a reasonable time period deemed appropriate
by the Secretary. The notice also shall include a description
of the action that will be taken by the Secretary regarding
the Application or Certification status if the corrective
action is not completed and/or a Debriefing is not requested
pursuant to 651 CMR 12.09(3). 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) The Applicant or Sponsor shall respond in writing to
EOEA within ten days after receiving the notice of non-compliance
indicating its agreement or disagreement with the EOEA findings.
An agreement with the findings requires the Applicant or
Sponsor to undertake the corrective action required. If
the Applicant or Sponsor disagrees with the findings, it
may request a Debriefing before the Secretary or his or
her designee pursuant to 651 CMR 12.09(3) or file an appeal
based upon the action of the Secretary regarding the Application
or Certification status as described in the notice of non-compliance
pursuant to 651 CMR 12.10. Such response shall be delivered
by hand or by certified mail, return receipt requested.
(d) If the Applicant or Sponsor does not respond to EOEA
within the ten day period or, if the required corrective
action has not been commenced, EOEA may commence the action
described in the notice of non-compliance regarding the
Applicant’s or Sponsor's Application or Certification
in accordance with 651 CMR 12.10.
(3) Request For EOEA Debriefing of Review
Findings. If an Applicant or Sponsor disagrees with EOEA
findings and has requested a Debriefing, it shall provide
a detailed written rebuttal to the Secretary or his or her
designee. EOEA shall schedule a Debriefing before the Secretary
or his or her designee within 21 days after receipt of the
request for a Debriefing. The Debriefing shall consist of
an informal presentation of the positions of the parties and
any written documents in a meeting with the Secretary or his
or her designee.
(a) If the matter is settled at the Debriefing,
EOEA and the Applicant or Sponsor shall reduce the settlement
to writing. If the matter is not settled at the Debriefing,
the Secretary shall review all material presented at the
Debriefing and within ten days after the Debriefing, forward
a Debriefing Decision to the Applicant or Sponsor setting
forth the final EOEA finding on the matter.
(b) If the required corrective action is not taken in the
manner and time period specified,EOEA may commence an appropriate
action regarding the Applicant’s or Sponsor's Application
or Certification for an Assisted Living Residence in accordance
with 651 CMR 12.10. All completed reports, responses, findings
and notices of final action and responses of Applicants
and Sponsors may be made available to the public during
regular business hours with client personal data, confidential,
privileged and proprietary information deleted.
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12.10: Hearings:
Procedure
(1) Scope of Review. The Secretary shall
have the right to deny, revoke, modify or refuse to renew
a Certification to operate an Assisted Living Residence when
the Applicant or Sponsor fails to comply with the requirements
of St. 1994, c. 354 or 651 CMR 12.00 et seq. Hearings under
St. 1994, c. 354 shall be held by the Division of Administrative
Law Appeals pursuant to 801 CMR 1.01 et seq.
If the hearing officer finds by substantial
evidence any single ground for denial, revocation, modification,
suspension or refusal to renew an Application or Certification
pursuant to 651 CMR 12.10(2) (3) or (4) 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.
(2) Certification Denial, Revocation, Modification
or Refusal to Renew Certification. When EOEA has denied,
revoked or modified an Application for Certification or renewal
of Certification, EOEA shall mail a written notice of action
within ten days of the decision to the Applicant or Sponsor.
The notice shall specify the reason or reasons for the adverse
action.
The Applicant or Sponsor shall be notified of
the right to appeal the adverse action under 651 CMR 12.10(2)
by filing a Notice of Claim for Adjudicatory Proceeding before
a hearing officer 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 legal unit of EOEA. The Appeal shall
be filed no later than 21 days after the notice of action
is received by the Applicant or Sponsor.
(3) Suspension Of Certification. Whenever
the Secretary determines that an Assisted Living Residence
does not substantially comply with applicable provisions of
St. 1994, c. 354 or 651 CMR 12.00 et seq., and further determines
that the deficiencies on the premises threaten the health,
welfare or safety of the Residents in lieu of revoking or
refusing to renew the Sponsor’s Certification, the Secretary
may suspend the Assisted Living Residence’s Certification.
This means that the Residence may continue to operate but
shall not accept new Residents after a date specified by the
Secretary until the Secretary determines that the Residence
is in full compliance with 651 CMR 12.00 et seq.
The Sponsor shall receive a written notice of
suspension of its Certification by EOEA within 24 hours of
the decision. The Secretary shall not make such a decision
until the Sponsor has been notified that the Assisted Living
Residence does not substantially meet the provisions of applicable
Certification regulations and that a decision to limit acceptance
of new Residents is contemplated, and the Sponsor has had
a reasonable opportunity to correct the deficiencies.
A decision that an Assisted Living Residence
shall not accept new Residents after a date specified by the
Secretary shall be rescinded when the Secretary finds that
the Residence is in substantial compliance with the provisions
of St. 1994, c. 354 or 651 CMR 12.00 et seq. If the deficiencies
leading to the suspension are not corrected within the time
period designated by EOEA, the Secretary may revoke the Certification
pursuant to 651 CMR 12.10(2).
The Applicant or Sponsor shall be notified of
the right to appeal the adverse action under 651 CMR 12.10(3)
by filing a Notice of Claim for Adjudicatory Proceeding before
a Hearing Officer 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 legal unit of EOEA. The Appeal shall
be filed no later than 21 days after the notice of action
is received bythe Applicant or Sponsor.
(4) Emergency Revocation of Certification.
Whenever the Secretary determines that an Assisted Living
Residence does not comply with applicable provisions of St.
1994, c. 354 or 651 CMR 12.00 et seq., and further determines
that the deficiencies on the premises constitute Serious Jeopardy
to the health and safety of the Residents, the Secretary may
immediately revoke the Sponsor's Certification.
The Sponsor shall receive a written notice of
revocation of its Certification by EOEA within 24 hours of
the decision. The Sponsor may appeal the adverse action under
651 CMR 12.10(4) by filing a Notice of Claim for Adjudicatory
Proceeding before a hearing officer 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 legal unit of EOEA. The appeal
shall be filed no later than 21 days after the notice of action
is received by the Sponsor.
(5) Limiting Admissions Pending Appeal; Procedures.
Pending any hearing requested by an Applicant or Sponsor of
an Assisted Living Residence, the Secretary may order the
Sponsor to limit or cease all further acceptance of new Residents
to the Residence.
Whenever an order to limit or cease accepting
new Residents to the Residence is made, the Sponsor affected
may appeal such order by filing an administrative appeal pursuant
to 801 CMR 1.01 et seq., with the Massachusetts Division of
Administrative Law Appeals and by filing a copy of the appeal
with the legal unit of EOEA within the 21 days after receipt
by the Residence of the notice to limit or cease accepting
new Residents.
.
Acceptance of new Residents by the Residence shall remain
limited pending a hearing officer's decision.
If the hearing officer finds that EOEA has proved by substantial
evidence that the subject Certified Residence was not in compliance
with applicable Certification regulations at the time the
determination was made, the hearing officer shall uphold the
decision of the Secretary to limit acceptance of new Residents
to the Residence.
(6) Decision and Action by the Secretary
of EOEA. The decision of the hearing officer shall be
a tentative decision under 801 CMR 1.01(10)(n). Within 30
days of receipt of the decision, the Secretary shall render
a final decision to approve, disapprove or approve the hearing
officer*s decision with modifications or additions. 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 final decision of the Secretary shall be the
final administrative review on the matter. The decision of
the Secretary shall be binding upon the parties unless the
Appellant commences an action to obtain judicial review within
30 days after the date of the final decision.
(7) 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.
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12.11: Right of
Entry by EOEA and Contracting Agencies
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 the living Units of Residents shall be with
the oral or written consent of the Resident.
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12.12: Penalties/Procedures
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.
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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/her designee who shall
serve as chairperson, the Secretary of Communities and Development
or his/her designee; the Secretary of Health and Human Services
or his/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 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.
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12.14: Inapplicability
of Certain Laws and Regulations to Assisted Living Residences
In accordance with EOEA*s interpretation of
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, § 71A_;
(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;
(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.
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