10-144-113 Me. Code R. § II-4

Current through 2024-51, December 18, 2024

Section 144-113-II-4 - Enforcement Procedures

4.1 Inspections required. The provider shall submit to regular and unannounced inspection surveys and complaint investigations in order to receive and/or maintain a license. The provider shall give access to all records required by these regulations. The department has the right to interview residents and employees in private. [Class I]

4.2 Frequency and type of inspections. An inspection may occur:

4.2.1 Prior to the issuance of a license;

4.2.2 Prior to renewal of a license;

4.2.3 Upon complaint that there has been an alleged violation of licensing regulations;

4.2.4 When there has been a change or proposed change in administrator, physical plant or services;

4.2.5 When necessary to determine compliance with a Directed Plan of Correction, conditions placed on a license or that cited deficiencies have been corrected;

4.2.6 For routine monitoring of resident care; or

4.2.7 Any time the department has probable cause to believe that an assisted housing program has violated a provision of these regulations or is operating without a license.

4.3 Licensing records kept by the department. The department will maintain a complete record of all licensing activities related to the assisted housing program. Those sections of the files not made confidential by law are available for public inspection at any time during normal business hours.

4.4 Complaints. The department will accept complaints from any person about alleged violation(s) of licensing regulations. The provider shall not retaliate against any resident or his/her representative for filing a complaint. Complainants have immunity from civil or criminal liability when the complaint is made in good faith. Any licensing violations noted as a result of a complaint investigation will be provided to the assisted housing program in writing.

4.5 Enforcement process.

4.5.1 After inspection, an SOD will be sent to the licensee if the inspection identifies any failure to comply with licensing regulations. An SOD may be accompanied by a Directed POC.

4.5.2 The licensee shall complete a POC for each deficiency, sign the plan and submit it to the department within ten (10) working days of receipt of any SOD.

4.5.3 Failure to correct any deficiency(ies) or to file an acceptable POC with the department may lead to the imposition of sanctions or penalties as described in Sections 4.7 and 4.8 of these regulations.

4.5.4 Informal conference. If a licensee disagrees with the imposition or amount of any penalty assessed by the department, the licensee must submit a written notification to the department stating the nature of the disagreement, within ten (10) working days of receipt of an Assessment of Penalties. Upon receipt of this request, the Assistant Director of Licensing and Regulatory Services, Community Services Programs or his/her designee shall schedule an informal conference for the purpose of trying to resolve the dispute. The Director or his/her designee shall inform the licensee of the results of the informal conference in writing. If a provider desires to appeal the result of an affirmed or modified assessment of penalties following an informal conference, a written request for an administrative hearing, pursuant to Section 4.10, must be made. The department will stay the collection of any fiscal penalties until final action is taken on an appeal. Penalties shall accrue with interest for each day until final resolution and implementation.

4.6 Grounds for intermediate sanctions. The following circumstances shall be grounds for the imposition of intermediate sanctions:

4.6.1 Operation of an assisted living program or Private Non-Medical Institute without a license;

4.6.2 Operation of an assisted living program or Private Non-Medical Institute over licensed capacity;

4.6.3 Impeding or interfering with the enforcement of laws or regulations governing the licensing of assisted housing programs, or giving false information in connection with the enforcement of such laws and regulations;

4.6.4 Failure to submit a POC within ten (10) working days after receipt of an SOD;

4.6.5 Failure to take timely corrective action in accordance with a POC, a Directed POC or Conditional License;

4.6.6 Failure to comply with state licensing laws or regulations that have been classified as Class I, II, III or IV pursuant to Sections 4.8.2 & 4.8.3;

4.6.7 Failure to comply with 22 M.R.S.A. §7904- A (10) regarding time drills, as further described in Section 14.3.

4.7 Intermediate sanctions. The department is authorized to impose one or more of the following intermediate sanctions when any of the circumstances listed in Section 4.6 are present and the department determines that a sanction is necessary and appropriate to ensure compliance with State licensing regulations to protect the residents of an assisted housing program or the general public:

4.7.1 The assisted living program, residential care facility or private non-medical institution may be directed to stop all new admissions, regardless of payment source, or to admit only those residents the department approves, until such time as it determines that corrective action has been taken.

4.7.2 The department may issue a Directed POC or Conditional License.

4.7.3 The department may impose a financial penalty.

4.8 Financial penalties.

4.8.1 Certain provisions of these regulations have been classified as noted below. Financial penalties may be imposed only when these regulations are violated.

4.8.2 Certain provisions of the regulations have a single classification. Such regulations are followed by a notation (i.e., "Class I"). Classifications have been established according to the following standards:

4.8.2.1 Class I - Any failure to comply with a regulation where that failure poses an immediate threat of death to a resident(s).

4.8.2.2 Class II - Any failure to comply with a regulation where that failure poses a substantial probability of serious mental or physical harm to a resident(s).

4.8.2.3 Class III - The occurrence of a repeated deficiency that poses a substantial risk to the health or safety of a resident(s).

4.8.2.4 Class IV - The occurrence of a repeated deficiency that infringes upon resident rights.

4.8.3 Certain regulations have been given alternative classifications. Such regulations are followed by an alternative notation (i.e., Class I/II or Class II/III). When these regulations are not complied with, the department will determine which classification is appropriate, on a case-by-case basis, by reference to the standards set forth in Section 4.8.2.

4.8.4 If the department assesses financial penalties, an Assessment of Penalties will be issued. The Assessment shall describe the classification of each violation found to have been committed by the facility, the regulation or law that has been violated and the scheduled amount of time corresponding to that violation. If the provider does not contest the imposition or amount of the penalty, the provider must pay within thirty (30) calendar days of receipt of the Assessment of Penalties. If the provider disagrees with the imposition or amount of the penalty, the provider must notify the department, in writing, stating the nature of the disagreement, within ten (10) working days of receipt of the Assessment of Penalties. The department will schedule an informal conference to resolve the dispute and a written decision based upon this conference will be provided. If the provider is still dissatisfied with the written decision, an administrative hearing may be requested in accordance with Section 4.10.

4.8.5 The amount of any penalty to be imposed shall be calculated according to the following classification system:

4.8.5.1	Any failure to comply with regulations classified as Class I,pursuant to Section 4.8.2.1;	$6.00 per resident per occurrence per day
	Operation of an assisted living program or residential care facility over licensed capacity, or
	Impeding, interfering or giving false information in connection with the enforcement of laws or regulations governing licensure.
4.8.5.2	Any failure to comply with regulations classified as Class II, pursuant to Section 4.8.2.2;	$5.00 per resident per occurrence per day
	Failure to submit a POC within ten (10) working days after receipt of an SOD; or
	Failure to take timely corrective action in accordance with a POC, Directed POC or conditional license.
4.8.5.3	The occurrence of a repeated deficiency in complying with regulations classified as Class III, pursuant to resident per Section 4.8.2.3;	$4.00 per occurrence per day
	The occurrence of a repeated deficiency in complying with regulations classified as Class IV, pursuant to Section 4.8.2.4.

4.8.6 The department may impose a penalty upon a licensee of a Level II PNMI for a violation of these rules. Each day of violation constitutes a separate offense. A penalty or a combination of penalties imposed on a facility may not be greater than a sum equal to $10 times the total number of residents in the facility per violation, up to a maximum of $10,000 for each instance in which the department issues a statement of deficiency to a licensee of a Level II PNMI.

4.8.7 Failure to comply with 22 M.R.S.A. §7904 (6) regarding time drills, as further described in Section 13.3, commits a civil violation for which a forfeiture of not more than $25 per bed for each occurrence of failure to comply may be adjudged.

4.8.8 Any provider unable to immediately pay penalties may within thirty (30) calendar days from receipt of notification of penalty assessment apply to the department for a delay in payment or installment payments or, in certain circumstances, to have the penalty reduced.

4.8.8.1 In order to have the payment delayed or paid in installments, a provider must supply sufficient information to the department to demonstrate that immediate full payment of the total amount due would result in the interruption of the provision of necessary services to residents.

4.8.8.2 In order to have a fine reduced, a provider must supply sufficient information to the department to demonstrate that payment in full would result in a permanent interruption in the provision of necessary services to residents.

4.8.8.3 The department has the authority to determine whether the provider has supplied sufficient information.

4.9 Other sanctions for failure to comply.

4.9.1 When an applicant fails to comply with applicable laws and regulations, the department may refuse to issue or renew a license to operate an assisted living program, residential care facility or private non-medical institution.

4.9.2 If, at the expiration of a full or Provisional license, or during the term of a full license, the provider fails to comply with applicable laws and regulations, and, in the judgment of the Commissioner, the best interest of the public would be served, the department may issue a Conditional license, or change a full license to a Conditional license. Failure by the licensee to meet the conditions specified by the department shall permit the department to void the Conditional license or refuse to issue a full license. The conditional license shall be void when the department has delivered in hand or by certified mail a written notice to the licensee, or, if the licensee cannot be reached for service in hand or by certified mail, has left written notice thereof at the agency or facility. For the purposes of this subsection the term "licensee" means the person, firm, or corporation or association to whom a conditional license or approval has been issued.

4.9.3 Upon investigation, whenever conditions are found which, in the opinion of the department, immediately endanger the health or safety of the persons living in or attending the assisted living program, residential care facility or private non-medical institution. The department may request that the District Court suspend the license on an emergency basis, pursuant to Title 4 M.R.S.A. §184, subsection 6.

4.9.4 Any license may be suspended or revoked for violation of applicable laws or regulations, committing, permitting, aiding or abetting any illegal practices in the operation of the assisted living program, residential care facility or private non-medical institution or conducts or practices detrimental to the welfare of persons living in or attending the facility/program. When the department believes a license should be suspended or revoked, it shall file a complaint with the District Court as provided in the Maine Administrative Procedure Act, Title 5 M.R.S.A. Chapter 375 §10051.

4.9.5 Pursuant to Title 22 M.R.S.A. §7931 et seq., the department may petition the Superior Court to appoint a receiver to operate the assisted living program, residential care facility or private non-medical institution.

4.9.5.1 When the assisted living program, residential care facility or private non-medical institution intends to close, but has not arranged for the orderly transfer of its residents at least thirty (30) calendar days prior to closure;

4.9.5.2 When an emergency exists which threatens the health, security or welfare of residents; or

4.9.5.3 When the assisted living program, residential care facility or private non-medical institution is in substantial or habitual violation of the standards of health, safety or resident care established under State or Federal laws and regulations, to the detriment of the welfare of the residents.

4.10 Appeal rights. Any assisted living program, residential care facility or private non-medical institution aggrieved by the department's decision to take any of the following actions, or to impose any of the following sanctions, may request an administrative hearing to refute the basis of the department's decision, as provided by the Maine Administrative Procedure Act, Title 5 M.R.S.A. §9051 et seq. Administrative hearings will be held in conformity with the department's Administrative Hearings Regulations. A request for a hearing must be made, in writing, to the Assistant Director of Licensing and Regulatory Services, Community Services Programs, and must specify the reason for the appeal. Any request must be submitted within ten (10) working days from receipt of the department's decision to:

4.10.1 Issue a conditional license;

4.10.2 Amend or modify a license;

4.10.3 Void a conditional license;

4.10.4 Refuse to issue or renew a full license;

4.10.5 Refuse to issue a provisional license;

4.10.6 Stop or limit admissions;

4.10.7 Issue a directed POC;

4.10.8 Affirm or modify an Assessment of Penalties after an informal review;

4.10.9 Deny an application to reduce the amount or delay the payment of a penalty; or

4.10.10 Deny a request for a waiver of a rule.

4.11 Surveillance and Utilization Review: The provider will cooperate with the department's Surveillance and Utilization Review (SUR) Unit and/or the department's authorized designee who carries out a program of safeguarding against unnecessary or inappropriate utilization of, and excess payments for, care and services available under MaineCare and assessing the quality.

4.12 Operating without a license

4.12.1 License required. A person, firm, partnership, association, corporation or other entity may not, without first obtaining a license, manage or operate a Level II PNMI.

4.12.2 Civil penalty for operating without a license. A person, firm, partnership, association, corporation or other entity who operates a Level II PNMI without a license commits a civil violation and is subject to a civil penalty of not less than $500 nor more than $10,000 per day. Each day of violation constitutes a separate offense.

4.12.3 Injunctive relief. Notwithstanding any other remedies provided by law, the Office of the Attorney General may seek an injunction to require compliance with the provisions of section 4.12.

4.12.4 Enforcement. The Office of the Attorney General may file a complaint with the District Court seeking civil penalties or injunctive relief or both for violations of section 4.12.

4.12.5 Jurisdiction. The District Court has jurisdiction pursuant to 4 M.R.S.A. §152 for violations of section 4.12.

4.12.6 Burden of proof. The burden is on the department to prove, by a preponderance of the evidence, that the alleged violations of section 4.12 occurred.

4.12.7 Right of entry. To inspect the premises of a Level II PNMI that the department knows or believes is being operated without a license, the department may enter only with the permission of the owner or the person in charge or with an administrative inspection warrant issued pursuant to the Maine Rules of Civil Procedure, Rule 80E by the District Court, authorizing entry and inspection.

4.12.8 Administrative inspection warrant. The department and a duly designated officer or employee of the department have the right to enter upon and into the premises of an unlicensed Level II PNMI with an administrative inspection warrant issued pursuant to the Maine Rules of Civil Procedure, Rule 80E by the District Court at a reasonable time and, upon demand, have the right to inspect and copy any books, accounts, papers, records and other documents in order to determine compliance with section 4.12. Pursuant to the Maine Rules of Civil Procedure, Rule 80E the department's right of entry and inspection may extend to any premises and documents of a person, firm, partnership, association, corporation or other entity that the department has reason to believe is operating without a license.

4.12.9 Noninterference. An owner or person in charge of an unlicensed Level II PNMI may not interfere with or prohibit the interviewing by the department of residents or consumers of services.

4.12.10 Violation of injunction. A person, firm, partnership, association, corporation or other entity that violates the terms of an injunction issued under section 4.12 shall pay to the State a fine of not less than $500 nor more than $10,000 for each violation. Each day of violation constitutes a separate offense.

4.12.10.1 In an action brought by the Office of the Attorney General against a person, firm, partnership, association, corporation or other entity for violating the terms of an injunction under section 4.12, the District Court may make the necessary orders or judgments regarding violation of the terms of the injunction.

4.12.10.2 In an action under section 4.12, when a permanent injunction has been issued, the District Court may order the person, firm, partnership, association, corporation or other entity against which the permanent injunction is issued to pay to the General Fund the costs of the investigation of that person, firm, partnership, association, corporation or other entity by the Office of the Attorney General and the costs of suit, including attorney's fees.

10-144 C.M.R. ch. 113, § II-4