651 CMR, § 12.03

Current through Register 1538, January 3, 2025

Section 12.03 - Certification

(1)Requirements and Limitations.

(a) No person or legal entity shall advertise, operate, or maintain an Assisted Living Residence until it has been certified by EOEA.

(b) Notwithstanding the requirement of 651 CMR 12.03(1), 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 the requirements of 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. An Applicant shall file a separate Application for each Assisted Living Residence for which Certification is sought. In support of the Application for 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;

(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 the entities listed in 651 CMR 12.03(2)(d)1. through 3., 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.

(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 medication (PRN) when part of the SAMM, 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 651 CMR 12.00;

9. A copy of all required current building, fire safety, and locally approved state sanitary code certificates and permits;

10. Procedures to notify a Resident and his or her Legal or Resident Representative, as appropriate, that the Assisted Living Residence is no longer an appropriate environment for the Resident. Such notice shall describe the changes in the Resident's service needs that justify such a finding, explain when those changes occurred, and describe how the Resident's needs can no longer be satisfied;

11. A copy of all policies and procedures related to the design and operation of a Special Care Residence or Residences required under 651 CMR 12.04(4);

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 copy of the Controlled Substances policies and procedures required by 651 CMR 12.04(14);

16. A statement citing the beginning and ending dates of the Residence's fiscal year; and

17. 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 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 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 M.G.L. c. 19D and is in compliance with 651 CMR 12.00; 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 M.G.L. c. 19D and is in compliance with 651 CMR 12.00.

(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, that:

1. has been the subject of a patient care receivership action;

2. 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;

3. 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

4. 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.

The Applicant and Assisted Living Residence shall be subject to completion of all Application and review procedures and must comply with, and shall be subject to, all requirements of St. 1994, c. 354 and 651 CMR 12.00 in order to retain Certification.

(6)Certification Fee. Upon receiving notice of Certification, 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. No fee for initial certification or certification renewal shall be due from any Assisted Living Residence created under the HUD Assisted Living Conversion Program.

(7)Renewal Certification Procedures. EOEA shall renew for a term of two years the Certification of a Sponsor of an Assisted Living Residence if EOEA determines that the Sponsor and the Assisted Living Residence meet the requirements of St. 1994, c. 354 and 651 CMR 12.00.

If the Application for renewal of Certification is filed and date-stamped at EOEA at least 30 days before the stated expiration date of the Certification, the Certification shall not expire on such date. The Sponsor and Assisted Living Residence shall be deemed to be certified unless EOEA notifies the Sponsor that the Application for renewal has been denied.

The Application shall be filed on a form provided by EOEA, include an Application fee as set by the Secretary for Administration and Finance and follow the procedures set forth in 651 CMR 12.03.

For the purposes of those Assisted Living Residences deemed certified under 651 CMR 12.03(5), the running of the biennial period for renewal of Certification shall begin on the date of issuance of Certification by EOEA.

(8)Change of Ownership. Any person or entity who intends to acquire a 25% or greater interest in an existing Assisted Living Residence shall submit an Application for Certification to EOEA at least 30 days prior to the transfer of the ownership interest. The application for Certification shall also include a statement on a form developed by EOEA, signed and notarized by the parties, regarding the anticipated transfer of ownership of the Residence. If EOEA receives these documents at least 30 days prior to the closing date of the change of ownership, the new Applicant shall be considered to be deemed temporarily 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 five 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 five days after the transfer of ownership. The current Certification of the Residence shall be deemed valid until the completion of a Certification process for changes sought. In the event of a transfer of ownership interest of an Assisted Living Residence, it is within the Secretary's discretion to conduct a full or partial compliance review.

(9)Non-transferability of Certification.

(a) Each Certification shall be valid only in the possession of the Residence and the Sponsor to whom it is issued and shall not be subject to sale, assignment or other transfer, voluntary or involuntary;

(b) No Certification shall be valid for any building premises other than those for which the Certification was originally issued;

(c) Every Assisted Living Residence Certification must be displayed in a conspicuous place in the Residence; and

(d) The Certification of a Sponsor to operate an Assisted Living Residence shall be returned by registered mail to EOEA immediately upon:

1. Revocation of or refusal to renew the Certification;

2. Transfer of ownership;

3. Change of name of the Sponsor; or

4. Closure or other termination of the Residence's operations.

(10)Closure. In the event a Sponsor of an Assisted Living Residence elects to permanently close or sell the Residence for any reason, compliance with the following notification procedures is required:

(a)Resident Notice. A written notice must be received by the Residents, their Legal Representatives, and their Resident Representatives (if applicable), at least 120 days prior to the date on which the Sponsor intends to close or sell the Residence and cease operations as an Assisted Living Residence. At a minimum, such notice shall include:

1. The date on which the Sponsor intends to close or sell the Residence and cease operations as an Assisted Living Residence;

2. A description of the actions the Sponsor will take to assist the Residents in securing comparable housing and services, if necessary; and

3. A reference to the rights of the Residents that may be exercised under the landlord/tenant laws established under M.G.L. c. 186 or M.G.L. c. 239.

(b)EOEA Notice. A written notice must be received by EOEA at least 120 days prior to the date on which the Sponsor intends to close or sell the Residence and cease operations as an Assisted Living Residence. Such notice shall include a copy of the Resident notice in accordance with 651 CMR 12.03(10)(a), proof of notification of all affected Residents and their Legal Representatives and Resident Representatives (as applicable), and the identification of all Residents receiving additional services, including but not limited to, Group Adult Foster Care.

(11)Suspension of Certification. If EOEA suspends the Certification of an Assisted Living Residence, the Sponsor shall display the notice of suspension in a prominent place in the Residence, in place of the Certification, so long as the suspension is in effect.