Cmr 12. 00: Certification procedures and standards for assisted living residences




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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

12.04(1) Physical Requirements

12.04(2) Waiver requirements

12.04(3) Service and Service Coordination Requirements

12.04(4) Skilled Care

12.04(5) Special Care

12.04(6) Optional Services

12.04(7) Screening and Assessments

12.04(8) Service Plan Requirements

12.04(9) Ombudsman Requirements

12.04(10) Quality Improvement and Assurance

12.04(11) Disaster and Emergency Preparedness Plan

12.04(12) Communicable Disease Control Plan

12.04(13) Reports to EOEA

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:   Administrative Review: 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 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:

(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 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.
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 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 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.

(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

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 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.

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