Section 144-113-5 - Consumer Rights5.1 Consumer rights. The assisted living program shall promote and encourage consumers to exercise their rights, to age in place and make informed choices. [Class IV]5.2 Freedom of choice of provider. For services and supplies not provided by the licensee, each consumer has the right to select the provider of his/her choice. [Class IV]5.3 Rights regarding transfer and discharge. Each consumer has the right to continued residence whenever a valid contract for services is in force. The assisted living program must show documented evidence of strategies used to prevent involuntary transfers or discharges. A consumer shall not be transferred or discharged involuntarily, except for the following reasons: 5.3.1 When there is documented evidence that a consumer has violated the admission contract obligations, despite reasonable attempts at problem resolution; [Class IV]5.3.2 A consumer's continued tenancy constitutes a direct threat to the health or safety of others; [Class IV]5.3.3 A consumer's intentional behavior has resulted in substantial physical damage to the property of the assisted living program or others residing in or working there; [Class IV]5.3.4 A consumer has not paid for his/her services in accordance with the contract between the assisted living program and the consumer; [Class IV]5.3.5 When there is documented evidence that the assisted living program cannot meet the needs of the consumer as the program is fundamentally designed; [Class IV] or5.3.6 The license has been revoked, not renewed, or voluntarily surrendered. [Class IV]5.4 Transfer or discharge. When a consumer is transferred or discharged in a non-emergency situation, the consumer or his/her guardian shall be provided with at least fifteen (15) days advance written notice to ensure adequate time to find an alternative placement that is safe and appropriate. The provider has an affirmative responsibility to assist in the transfer or discharge process and to produce a safe and orderly discharge plan. If no discharge plan is possible, then no involuntary non-emergency discharge shall occur until a safe discharge plan is in place. Appropriate information, including copies of pertinent records, shall be transferred with a consumer to a new placement. [Class IV] Each notice must be written and include the following:5.4.1 The reason for the transfer or discharge, including events which are the basis for such action; [Class IV]5.4.2 The effective date of the transfer or discharge; [Class IV]5.4.3 Notice of the consumer's right to appeal the transfer or discharge as set forth in Section 5.28; [Class IV]5.4.4 The mailing address and toll-free telephone number of the Long Term Care Ombudsman Program; [Class IV]5.4.5 In the case of consumers with developmental disabilities or mental illness, the mailing address and telephone number of the Office of Advocacy, Department of Heath and Human Services (formerly known as the Department of Behavioral and Developmental Services (BDS)); [Class IV]5.4.6 The consumer's right to be represented by himself/herself or by legal counsel, a relative, friend, or other spokesperson. [Class IV]5.5 Emergency transfer or discharge. When an emergency situation exists, no written notice is required, but such notice as is practical under the circumstance shall be given to the consumer and/or consumer's representative. The assisted living program shall assist the consumer and authorized representatives in locating an appropriate placement. Transfer to an acute hospital is not considered a placement and the obligation in regard to such assistance does not necessarily terminate. [Class IV]5.6 Leaves of absence. When a consumer is away, and continues to pay for services in accordance with the contract, the consumer shall be permitted to return unless any of the reasons set forth in Section 5.3 are present and the consumer or consumer's legal representative has been given notice as may be required in these regulations. [Class IV]5.7 Assistance in finding alternative placement. Consumers who choose to relocate shall be offered assistance in doing so. 5.7.1 Assisted living programs may require up to a fifteen (15) calendar day notice for consumers choosing to relocate in order to obtain a refund. For those consumers who relocate for emergency medical treatment no advance notice is required to obtain a refund.5.7.2 The assisted living program shall offer information to the consumer, as appropriate, regarding potential risks that may be inherent in the discharge plan and information that will support the consumer's adjustment to his/her next setting. [Class IV]5.8 Right to communicate grievances and recommend changes. The assisted living program shall assist and encourage consumers to exercise their rights as consumers and citizens. Consumers may freely communicate grievances and recommend changes in policies and services to the assisted living program and to outside representatives of their choice, without restraint, interference, coercion, discrimination or reprisal. All grievances shall be documented. The consumer has the right to be assisted throughout the grievance by a representative of his/her choice. Section 5.25 of these regulations list advocacy services which may be available to consumers. Assisted living programs shall establish and implement a procedure for the timely review and disposition of grievances, and shall notify consumers upon admission of their right to file a grievance and information about how to do so. The procedure shall include a written response to the grievant describing disposition of the complaint. These documents shall be maintained and available for review upon request by the Department. [Class IV]5.8.1 Consumers who are class members under the AMHI consent decree may also file grievances alleging a violation of the terms of the AMHI settlement agreement. The grievances may be brought by or on behalf of individuals or groups of class members. If the grievances include allegations of employee misconduct, no disciplinary action may be taken nor facts found with regard to the alleged misconduct except in accordance with the provider's personnel policies and with any employment contract provisions. A class member who files a grievance is entitled to a hearing conducted by an impartial hearing officer, who may be employed by the provider but who must not have been directly involved in the incident. The hearing officer must hold a hearing, either in person or by telephone; must accept evidence from both parties, including testimony of witnesses; and must make a decision in writing promptly after the hearing. The hearing must be recorded verbatim. The hearing must be expedited if the consumer can establish that an emergency will exist if the grievance is not resolved very soon.
5.9 Right to manage financial affairs. Consumers shall manage their own financial affairs, unless there is a representative payee, other legal representative appointed or other person designated by the consumer. [Class IV]5.10 Right to freedom from abuse, neglect or exploitation. Consumers shall be free from mental, verbal, physical and/or sexual abuse, neglect and exploitation. [Class I, II, III, IV]5.11 Rights regarding restraints and aversive conditioning. There shall be no use of physical, chemical, psychological or mechanical restraints or aversive conditioning, except in accordance with this section. [Class I, II, III, IV]5.11.1 Full-length bedrails on both sides of the bed are considered restraints and shall not be attached to the bed. Half-length bedrails attached to the top half of the bed are permissible. One full-length bed rail and one half-length bed rail may be used if the full-length rail is on the side against the wall. [Class I, II, III, IV]5.11.2 In the case of a person with mental retardation, the provider must comply with the requirements of the Regulations Governing the Use of Behavioral Procedures in Maine Programs Serving Persons with Mental Retardation and the Regulations Governing the Use of Restraints in Community Settings. These regulations are promulgated and enforced by the Department of Health and Human Services (formerly known as Department of Behavioral and Developmental Services) [Class I, II, III, IV]5.11.3 For any consumer who is a client of the Department of Health and Human Services Adult Mental Health Program (formerly known as Behavioral and Development Services) due to his/her mental illness, the assisted living program shall comply with the Rights of Recipients of Mental Health Services, promulgated and enforced by the Department of Health and Human Services (formerly knows as Department of Behavioral and Developmental Services) [Class I, II, III, IV]5.12 Right to confidentiality. Consumers' records and information pertaining to their personal, medical and mental health status is confidential. Consumers and their legal representatives shall have access to all records pertaining to the consumer at reasonable times, in the presence of the provider or his/her representative, within one (1) business day of the request. Consumers and their legal representatives are entitled to have copies made of their record within one (1) business day of the request. The licensee and employees shall have access to confidential information about each consumer only to the extent needed to carry out the requirements of the licensing regulations or as authorized by any other applicable state or federal law. The written consent of the consumer or his/her legal representative shall be required for release of information to any other person except authorized representatives of the Department or the Long Term Care Ombudsman Program. The Department shall have access to these records for determining compliance with these regulations. Records shall not be removed from the assisted living program, except as may be necessary to carry out these regulations. Upon admission, each consumer shall sign and date a written consent which lists individuals, groups, or categories of individuals with whom the program may share information (e.g., sons, daughters, children, family members or duly authorized licensed practitioners, etc.). A written consent to release of information shall be renewed and time dated every thirty (30) months, pursuant to 22 M.R.S.A. §1711-C (4). Consent may be withdrawn at any time. [Class IV]5.13 Right to refuse to perform services for the assisted living program. Consumers may refuse to perform services for the assisted living program. [Class IV]5.14 Right to privacy and consideration. Consumers shall be treated with respect. Residents shall also be treated with respect and consideration with regard to their individual need for privacy when receiving personal care or treatment, preferred mode of language and communication. [Class IV]5.15 Right to communicate privately with persons of choice. Consumers may associate and communicate privately with persons of their choice at any time, unless to do so would infringe on the rights of others. They may receive personal mail, unopened, and shall be assisted when necessary with writing and mailing letters and making phone calls. Consumers shall have privacy when having telephone conversations. [Class IV]5.16 Right to participate in activities of choice. Consumers may participate in social, political, religious and community activities, unless to do so would infringe on the rights of others. [Class IV]5.17 Right to personal clothing and possessions. Consumers may retain and use their personal clothing and possessions as space permits, unless to do so would infringe upon the rights of other consumers or impair the provider's ability to meet the purpose of these rules. [Class IV]5.18 Couples. A couple residing in an assisted living program has the right to share a unit. [Class IV]5.19 Right to be informed of services provided by the facility/program. Consumers shall be fully informed of items or services which are included in the rate they pay. This rate shall include the cost of repair or replacement of items damaged by normal wear and tear. [Class IV]5.20 Right to refuse treatment or services. Consumers may choose to refuse medications, treatments or services. If the consumer refuses necessary care or treatment, the provider shall make reasonable efforts to consult the consumer's duly authorized licensed practitioner, caseworker or other appropriate individuals in order to encourage consumers to receive necessary services. No person without legal authority to do so shall order treatment which has not been consented to by a competent consumer. [Class IV]5.21 Right to be free from discrimination. A consumer shall be provided services without regard to race, age, national origin, religion, disability, gender or sexual orientation. [Class IV]5.22 Right to information regarding deficiencies. Consumers have the right to be fully informed of findings of the most recent survey conducted by the Department. The provider shall inform consumers or their legal representatives that the survey results are public information and are available in a common area of the building. Consumers and their legal representatives shall be notified by the provider of any actions proposed or taken against the license of the assisted living program by the Department, including but not limited to, Directed Plans of Correction, decisions to issue a Conditional license, refusal to renew a license, appointment of a receiver or decisions to impose fines or other sanctions. This notification shall take place within fifteen (15) working days from receipt of notice of action. [Class IV]5.23 Notification of Residents Rights. The provider shall inform each consumer and legal representative of these rights prior to or at admission and shall provide them with a copy of these rights. In addition, the provider shall inform each consumer and legal representative, within thirty (30) calendar days of any changes to Section 5 and shall provide them with a copy of the change . The provider must accommodate for any communication barriers that may exist, to ensure that each consumer is fully informed of his/her rights. [Class IV]5.24 Bill of rights for persons with mental retardation. Programs serving persons with mental retardation shall post and comply with the Bill of Rights for Persons with Mental Retardation, Title 34-B M.R.S.A. §5601 et seq. [Class IV]5.25 Mandatory report of rights violations. Any person or professional who provides health care, social services or mental health services or who administers a long term care facility or program who has reasonable cause to suspect that the regulations pertaining to consumers' rights or the conduct of consumer are have been violated, shall immediately report the alleged violation to the Department of Health and Human Services (800-383-2441) and to one or more of the following: Disability Rights Center (DRC), pursuant to Title 5 M.R.S.A. §19501 through §19508 for incidents involving persons with mental illness; the Long Term Care Ombudsman Program, pursuant to Title 22 M.R.S.A. §5107-A for incidents involving elderly persons; the Office of Advocacy, pursuant to Title 34-B M.R.S.A. §1205 for incidents involving persons with mental retardation; or Adult Protective Services, pursuant to Title 22 M.R.S.A. §3470 through §3487.
Reporting suspected abuse, neglect and exploitation is mandatory in all cases. Documentation shall be maintained at the assisted living program that a report has been made.
Mandated reporters shall contact the Department of Health and Human Services (800-383-2441) immediately after receiving and/or obtaining information about any rights violations. [Class IV]
5.26 Reasonable modifications and accommodations. To afford individuals with disabilities the opportunity to reside in an assisted living program, the licensee shall:5.26.1 Permit directly, or through an agreement with the property owner, if the property owner is a separate entity, reasonable modification of the existing premises, at the expense of the disabled individual or other willing payer. Where it is reasonable to do so, the provider may require the disabled individual to return the premises to the condition that existed before the modification, upon discharge of that individual. Neither the provider nor the property owner, if a separate entity, is required to make the modification at his/her own expense, if it imposes a financial burden. [Class IV]5.26.2 Make reasonable accommodation in regulations, policies, practices or services, including permitting reasonable supplementary services to be brought into the building. The provider is not required to make the accommodation, if it imposes an undue financial burden or results in a fundamental change in the program. [Class IV]5.27 Right of action. In addition to any remedies contained herein, any consumer whose rights have been violated may commence a civil action in Superior Court for injunctive and declaratory relief pursuant to Title 22 M.R.S.A. §7948 et seq. [Class IV]5.28 Right to appeal an involuntary transfer or discharge. The consumer has the right to an expedited administrative hearing to appeal an involuntary transfer or discharge. A consumer may not appeal a discharge due to the impending closure of the program unless he/she believes the transfer or discharge is not safe or appropriate. To file an appeal regarding an involuntary transfer or discharge, the consumer must submit the appeal within five (5) calendar days of receipt of a written notice. If the consumer has already been discharged on an emergency basis, the provider shall hold a space available for the consumer pending receipt of an administrative decision. Requests for appeals shall be submitted to the Assistant Director of the Division of Licensing and Certification, Community Services Programs for submission to the Office of Administrative Hearings, 11 State House Station, Augusta, Maine 04333-0011. The provider is responsible for defending its decision to transfer or discharge the consumer at the administrative hearing. [Class IV]5.29 Consumer adjudicated incompetent. In the case of a consumer adjudicated incompetent, the rights of the consumer are exercised by the consumer's legal representative, as defined in Section 2.28 of these Regulations. [Class IV]5.30 Consumer councils5.30.1 Consumers have the right to establish a consumer council, pursuant to Title 22 M.R.S.A. §7923. Consumers and their families shall be notified of this right, orally and in writing, within the first month after admission, in a manner understood by each consumer and by a notice of the right to form a council being posted prominently in a public area.5.30.2 If a majority of the consumers choose not to establish a council, they shall be given the opportunity to choose otherwise at least once each year thereafter.5.30.3 The council has the following rights: 5.30.3.1 To be provided with a copy of the program's policies and procedures relating to consumer rights and to make recommendations to the administrator on how they may be improved; [Class IV]5.30.3.2 To establish procedures that will ensure that all consumers are informed about and understand their rights; [Class IV]5.30.3.3 To elicit and disseminate information regarding programs and to make recommendations for improvement; [Class IV]5.30.3.4 To help identify consumer problems and recommend ways to ensure early resolution; [Class IV]5.30.3.5 To inform the administrator of the opinions and concerns of the consumers; [Class IV]5.30.3.6 To find ways of involving the families and consumers of the assisted living program; [Class IV]5.30.3.7 To notify the Department and The Long Term Care Ombudsman Program when the council is constituted; and [Class IV]5.30.3.8 To disseminate records of council meetings and decisions to the consumers and the administrator and to make these records available to family members or their designated representatives and the Department, upon request. [Class IV]5.31 Right to a service plan. The provider shall assist consumers to implement any reasonable plan of service developed with community or state agencies. [Class IV]10- 144 C.M.R. ch. 113, § 5