10-144 C.M.R. ch. 113, § III-3 - Licensing

3.1 Responsibility for compliance. The applicant/licensee shall comply with these regulations.

3.2 Unlicensed Level III residential care facility. No person, firm, partnership, association, corporation or other entity shall manage or operate a Level III residential care facility without a license.

3.3 Person license issued to. The license is only valid for the named licensee(s).

3.4 Application and licensure.

3.4.1 Application required. The applicant is required to submit a written application for a license on a form approved by the department. A license must be issued prior to the commencement of operation, or the applicant may be subject to sanctions. Incomplete applications on which no action has been taken by the applicant after sixty (60) calendar days shall be void. A non-refundable licensing fee shall be submitted with the application. The check shall be made payable to the Treasurer, State of Maine. Fees are:

3.4.1.1 Residential Care Facilities - $10.00 each licensed bed.

3.4.2 Admission and scope of services policy. Facilities are required to provide the department with a written admission policy at the time of application for a license. The policy shall describe who may be admitted and scope of services provided, including scope of Nursing Services, consistent with applicable state and federal law.

3.4.3 Additional licensing requirements. Prior to the issuance of a license and prior to re-licensure, the facility shall:

3.4.3.1 Be certified to be in compliance with the National Fire Protection Association (NFPA) Life Safety Code and other fire and safety laws and regulations, which are applicable to the facility, as follows:

3.4.3.1.1 A residential care facility with four (4) to sixteen (16) beds must comply with the sections of the Life Safety Code that apply to small facilities and with the new residential board and care occupancy chapter if that facility is a new facility or with the existing residential board and care occupancy chapter if that facility is an existing facility.

3.4.3.2 Comply with all applicable laws and regulations promulgated thereunder, relating to fire safety, plumbing, water supply, sewage disposal and maintenance of sanitary conditions (Class I, II, III);

3.4.3.3 Comply with all other applicable laws and regulations pertaining to licensing; and

3.4.3.4 Provide evidence of a licensed administrator if required by the rules of the Nursing Home Administrators Licensing Board pursuant to Title 32 M.R.S.A. §62 et seq.

3.5 Requirement for bond. The applicant shall furnish evidence of a bond covering the applicant and any employee or agent of the applicant who manages, holds or otherwise is entrusted with resident funds in an amount sufficient to replace those funds in the event of loss.

3.6 Limitations on serving as legal representative. No licensee, owner, proprietor, administrator, employee or a person with a substantial financial interest in the facility may serve as guardian, conservator or power of attorney of any resident, but may be a representative payee or manager of personal funds.

3.7 Issuance of license. A new applicant will be notified by the department within two (2) weeks of filing an application whether the application is complete. The department and the Department of Public Safety are required to provide a new applicant necessary services and inspections within ninety (90) days of the filing of the completed application and the date the building is ready for inspection. The license shall specify the name of the owner, the name of the facility, the type of facility, the name of the administrator, the address of the premises where the facility is located, the maximum number of residents, the type of license, and the expiration date of the license.

3.8 Default licensing. If a new applicant has filed a completed application and has a building ready for inspection, has not been provided the necessary notifications, inspections or services from the department and the Department of Public Safety, and a period of more than ninety (90) days has elapsed since notification that the application is complete, a provisional license will be issued. All required application materials must be submitted for the application to be considered complete. The department shall notify a new applicant within two (2) weeks of filing of the application on whether the application is complete. If initial services and inspections are completed within the ninety (90) day time period, an initial license will be issued and no default licensing will occur.

3.9 Number of licenses required. When more than one type of facility or program is provided, the department may consider the following criteria in determining the number of licenses required:

3.9.1 The physical location;

3.9.2 The structure or management and ownership;

3.9.3 If providing more than one licensed level of care, the physically distinct part of the building designated for the assisted living program or residential care facility; and

3.9.4 The administrative and regulatory burdens and benefits of granting a given number of licenses.

The department will specify the number of licensed beds or apartments, as appropriate, for each level of care. The provider shall not exceed licensed capacity.

3.10 Adult day services programs. When an adult day services program is physically located in an assisted living program or residential care facility, separate licenses shall not be required. The adult day services programs shall comply with the Regulations Governing the Licensing and Functioning of Adult Day Services Programs and licensed capacity will be reflected on the license.

3.11 Multilevel facility license. For multilevel facilities, a single license will be issued by the department, identifying each level of service. Multilevel facilities are assisted housing programs that are located on the same contiguous grounds with licensed nursing facilities, adult day services programs or home health agencies. Multilevel facilities, when subject to licensing action or other sanctions, may have one or more of its levels sanctioned, and the department will specify the particular levels in writing.

3.12 Provisional license. The department shall issue a provisional license, for a minimum period of three (3) months or longer as deemed necessary by the department but not to exceed twelve (12) consecutive months, to an applicant who:

3.12.1 Has not previously operated the facility/program for which the application is made or is licensed and has not operated the facility during the term of that license;

3.12.2 Complies with all applicable laws and regulations, except those which can only be complied with once residents are served by the applicant; and

3.12.3 Demonstrates the ability to comply with all applicable laws and regulations by the end of the Provisional license term; or

3.12.4 Meets the criteria for default licensing.

3.13 Conditional license. The department may issue a conditional license when the licensee fails to comply with applicable laws and regulations and, in the judgment of the Commissioner of the Department of Health and Human Services, the best interest of the public would be so served by issuing a conditional license. The conditional license shall specify when and what corrections must be made during the term of the conditional license. A conditional license may be issued for up to a twelve (12) month period.

3.14 Transfer of licenses. No license may be transferred and is not applicable to any location or persons other than those specified on the license. When an assisted living program or residential care facility is sold or otherwise transferred to another provider, the new provider must apply for and obtain a license and pay a licensing fee prior to operating the program.

3.15 Term of license. A license may be valid for two (2) years, as long as the department has determined the facility is in substantial compliance with licensing rules and has no history of health or safety violations. Prior to the expiration of the license, the department shall inspect for continued compliance with applicable laws and regulations as often as deemed necessary by the department. In facilities/programs licensed for more than one level of care, the term of the license will be the term permitted for the highest level of care. For purposes of this section, the following terms have the following meanings:

3.15.1 "Substantial compliance" means there were no Class I or II violations that would threaten the health or safety of residents.

3.15.2 "No history of health or safety violations" means that within the preceding two (2) years, the applicant was in substantial compliance with the rules.

3.16 Reapplications. Whenever a licensee has made timely and sufficient application for renewal of a license, the existing license shall not expire until the application has been finally determined by the department.

3.17 Posting the license. The licensee shall post the license where it can be seen and reviewed by the public.

3.18 Right of entry. The department's authorized representatives, authorized representatives of the Maine Attorney General's Office and authorized representatives of the Long Term Care Ombudsman Program shall have the right to enter upon and into any licensed facility/program at any time, in order to determine the state of compliance with applicable laws and regulations contained herein. To inspect the premises of a Level III residential care facility 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. An application for a Level III Residential Care Facility license shall constitute permission for entry and inspection to verify compliance with applicable law and rules.

3.19 Filing Plans of Correction. Whenever the department issues an SOD, the applicant/licensee shall submit a specific POC within ten (10) working days of the date the applicant/licensee received the SOD.

3.20 Reapplication subsequent to licensing actions. Subsequent to any of the following actions, a full annual or biennial license will not be issued until the deficiencies identified by the department have been corrected:

3.20.1 Issuance of a conditional license;

3.20.2 Refusal to issue or renew a license;

3.20.3 Revocation or suspension of a license; or

3.20.4 Refusal to issue a provisional license.

3.21 Renewal. A renewal application must be received by the department thirty (30) days prior to the license expiration date. Regardless of the term of the license, the licensee must pay a license fee annually. Prior to acting on the application for renewal the department may:

3.21.1 Verify any information in the renewal application and conduct an inspection of the facility/program;

3.21.2 Issue an SOD, as appropriate. If cited deficiencies are not corrected within the established time frame, the department may deny the renewal application, impose a fine, issue a Directed POC, and/or impose a conditional license.

3.22 Actions requiring prior written approval. When a proposed alteration of the physical plant involves areas used by residents, residents may not occupy these areas until the department has determined that the changes comply with these regulations and issues a written approval to proceed.

3.23 Waivers. The department may waive or modify any provision(s) of these regulations as long as the provision is not mandated by state or federal law and does not violate resident rights described in Section 5 of these regulations. The applicant/licensee shall indicate, in writing, what alternative method will comply with the intent of the regulation for which the waiver is sought. If approved, the waiver may be time limited.

3.24 Informal review of waiver denial. The applicant/licensee may appeal a decision of the department to deny a waiver request by submitting a written request for an informal review by the department, or its designee, within ten (10) working days of the date of receipt of the denial. The applicant/licensee shall state in the written request, the grounds for the appeal. Should the applicant/licensee disagree with the informal review decision, an administrative hearing (pursuant to the Maine Administrative Procedure Act) may be requested within ten (10) working days of notice or receipt of the date of the informal review decision by writing to the department. See also Section 4.10 of these regulations.

3.25 Rates and contracts.

3.25.1 Rates. Assisted housing programs shall list all standard charges and make them available to the public.

3.25.2 Signing a contract. Each provider and each resident, or someone authorized to act on the resident's behalf, shall sign a standard contract issued by the department, attached as Appendix A, at the time of any modification of an existing contract and with all new admissions. The resident and/or resident's legal representative shall be given an original of the signed contract and the provider shall keep a duplicate in the resident's file. No one other than the resident shall incur any responsibility for the resident's obligations by signing the contract for admission of the resident. Financial responsibility for the resident's expenses can only be assumed according to Section 3.25.3.7.

3.25.3 Provisions of contract. The contract shall contain standard provisions regarding services and accommodations to be provided and the rates and charges for such and any other related charges not covered by the facility/program's basic rate. The contract may contain additional provisions, as addenda, that do not conflict with these regulations. The provider may supplement but not replace the standard provisions, as long as they are consistent with the applicable assisted housing program rules. Each contract is subject to the following requirements:

3.25.3.1 No contract may contain a provision for the discharge of a resident, which is inconsistent with state law or rule.

3.25.3.2 No contract may contain a provision that may require or imply a lesser standard of care or responsibility than is required by law or rule.

3.25.3.3 Each contract shall provide for at least thirty (30) calendar days notice prior to any changes in rates, responsibilities, services to be provided or any other items included in the contract. The thirty (30) day notice will not be required if it is the resident, or the resident's legal representative, who requests additional services not included in the existing contract.

3.25.3.4 No contract or agreement will require a deposit or other prepayment, except one month's rent in an assisted living program, which may be used as a security deposit. The contract must state the explicit return policy of the facility with regard to the security deposit.

3.25.3.5 No contract may contain a provision, which provides for the payment of attorney fees or any other cost of collecting payments from the resident.

3.25.3.6 The following shall be appended to the contract and made a part thereof:

3.25.3.6.1 Grievance procedure;

3.25.3.6.2 Tenancy obligations;

3.25.3.6.3 Resident rights; and

3.25.3.6.4 Copy of the admissions policy.

3.25.3.7 The contract signed for admission of the resident may not require or encourage anyone other than the resident to obligate himself/herself for the payment of the resident's expenses. If anyone other than the resident informs the facility that he/she wishes to guarantee payment of the resident's expenses, he/she can do so only in a separate written agreement. No provision in the separate written agreement can conflict with these rules. This separate written agreement must be provided to the guarantor of payment and must plainly state the following:

3.25.3.7.1 Do not sign this agreement unless you voluntarily agree to be financially liable for paying the resident's expenses with your own money.

3.25.3.7.2 You may change your mind within forty-eight (48) hours of signing this agreement by notifying the facility that you wish to revoke this agreement.

3.25.3.7.3 You may call the Long Term Care Ombudsman Program for an explanation of your rights.

3.26 Information to residents. The licensee must provide an information packet that includes the following information to the resident and/or resident's legal representative at the time of admission or within sixty (60) calendar days of the effective date of these regulations for all current residents who have not already been given this information:

3.26.1 Advance Directives information;

3.26.2 Information regarding the type of facility and the licensing status;

3.26.3 The Maine Long Term Care Ombudsman Program brochure;

3.26.4 The department's toll-free telephone numbers for the Office of Advocacy, Adult Protective Services, and the Division of Licensing and Regulatory Services, Community Services Programs;

3.26.5 The process and criteria for placement in, or transfer or discharge from, the program; and

3.26.6 The program's staff qualifications.

3.27 Information for residents of Alzheimer's/dementia units. When a provider operates a unit meeting the requirements of a Designated, or any other authorized representative Alzheimer's/Dementia Care Unit as all or part of its program, residents and family members must be provided the following information:

3.27.1 A written statement of philosophy;

3.27.2 The process used for resident assessment and establishment of a residential services plan and its implementation;

3.27.3 Those physical environment and design features that support the functioning of adults with cognitive impairments;

3.27.4 The frequency and types of group and individual activities provided by the program;

3.27.5 A description of family involvement and the availability of family support programs;

3.27.6 A description of security measures provided by the facility;

3.27.7 A description of in-service training provided for staff; and

3.27.8 Policies with criteria and procedures for admission and discharge of residents to and from the facility/unit.

3.28 Refunds. Refunds are to be managed as follows:

3.28.1 If a resident dies or is discharged, the provider shall issue a refund to the resident, the resident's legal representative or the resident's estate for any advance payments on a pro-rated basis.

3.28.2 Refunds shall be made within thirty (30) calendar days of date of discharge or death.

3.28.3 If a resident is determined to be retroactively eligible for third party payment, upon payment from a third party payer, the provider must repay the family or other payer any payments made for the period covered by third party payment.

3.29 Use of personal funds by operator. Under no circumstances shall any operator or agent of an assisted housing program use the personal funds of any resident for the operating costs of the facility or for items, which are part of the contractual payment. The personal funds of any resident shall not be commingled with the business funds of the facility or with the personal funds or accounts of the owner, any member of the owner's family or any employee of the facility. No operator or agent of the facility shall borrow money from any resident. (Class IV)

3.30 Tenancy obligation. Tenancy obligations, if they exist in the facility, must not conflict with these regulations and are subject to Section 5.26 of these regulations.

3.31 Administrative and resident records.

3.31.1 Confidentiality. All administrative and resident records shall be stored in such a manner that unauthorized persons cannot gain access to them.

3.31.2 Location of records. All resident records, resident finances, admission/discharge records and census logs shall be readily accessible to the department even in the event of a change of ownership or administration, unless this is done pursuant to a court order or to Section 5.12 of these regulations. Other administrative records, including personnel records, shall be made available with reasonable notice by the department. All records shall be maintained in a format that is readily accessible and available to all appropriate staff.

3.31.3 Inspection of records. All reports and records shall be made available for inspection upon request by the department, the Long Term Care Ombudsman Program or the Maine Attorney General's Office without the consent of the resident or his/her legal representative.

3.31.4 Record retention. All administrative and resident records shall be maintained in an accessible format for at least seven (7) years after the date of death or last discharge of the resident.

3.31.5 Storage of records. Provisions shall be made for the safe storage of all records required by these regulations.

3.31.6 Disaster plan. Each facility/program shall develop a comprehensive disaster plan. This plan shall include the following:

3.31.6.1 Contingencies for loss of power, heat, lights, water and/or sewage disposal;

3.31.6.2 Contingencies for short term and long term emergencies; and

3.31.6.3 If a facility has no back up power source that can be used to continue operation of heat, lights, water and sewage disposal, the plan shall include contingencies for evacuation that include contractual arrangements with other agencies or facilities for temporary living accommodations.

3.32 Confidential information. Pursuant to 22 M.R.S.A. §7703, confidential information may not be released without a court order or a written release from the person about whom the confidential information has been requested, except as provided by law.

Notes

10-144 C.M.R. ch. 113, § III-3