Md. Code Regs. 10.07.14.24 - Resident-Specific Level of Care Waiver
A. An assisted living program may request a resident-specific waiver to continue to provide services to a resident if:
(1) The resident's level of care exceeds the level of care for which the assisted living program has authority to provide; or
(2) The resident would require care that falls into one of the categories set forth in Regulation .23.
B. An assisted living program may not continue providing services to a resident whose needs exceed the level of care for which the licensee has authority to provide, without approval of the Department.
C. Temporary Change in Level of Care.
(1) A level of care waiver is not required for a resident whose level of care is expected to increase for a period not to exceed 30 calendar days.
(2) The assisted living program shall submit a waiver application as soon as program personnel determine that the increased level of care or the condition requiring the waiver is likely to exceed 30 calendar days.
D. When requesting a resident-specific waiver, the assisted living program shall demonstrate that:
(1) The assisted living program has the capability of meeting the needs of the resident; and
(2) The needs of other residents will not be jeopardized.
E. Approval of Waiver Request.
(1) The Department may grant a resident-specific level of care waiver, with or without conditions, if the Department determines that the:
(a) Resident's needs can be met;
(b) Needs of other residents will not be jeopardized; and
(c) Provider complies with the requirements of Regulation .47A of this chapter.
(2) Terms of a Resident-Specific Waiver.
(a) An approved resident-specific waiver applies only to the resident for whom the waiver was granted.
(b) The waiver no longer applies if the resident's level of care, as determined through an assessment, declines or improves to the point that the resident requires a higher or lower level of care than authorized by the waiver.
(c) When the Department grants a waiver to continue to provide services to a resident whose needs fall within one of the categories in Regulation .23, the assisted living program shall, at a minimum, comply with certain federal Medicare requirements for home health agencies referenced in 42 CFR §§
484.1, 484.2, 484.40-484.80, 484.100-484.115, 484.200-484.265, and 484.300-484.375.
F. Denial of a Resident-Specific Waiver Request.
(1) The Department shall deny the request for a resident-specific waiver if the Department determines that the:
(a) Assisted living program is not capable of meeting the needs of the resident; or
(b) Needs of other residents will be jeopardized if the waiver request is granted.
(2) The Department may not grant resident-specific waivers:
(a) That total more than 50 percent of the assisted living program's bed capacity for residents whose needs exceed the level of care for which the assisted living program has authority to provide as specified in Regulation .04D of this chapter; or
(b) For the continuation of services to a resident whose needs fall within one of the categories set forth in .23B of this regulation, for up to 20 percent of capacity, or 20 beds, whichever is less, unless a waiver is granted by the Department.
(3) The decision of the Department may not be appealed.
(4) The Department's denial of a resident-specific level of care waiver request:
(a) Does not prohibit the resident from being admitted to another program that is capable of meeting the resident's needs and is licensed to provide that level of care; and
(b) Does not provide any exception to the admission restrictions set forth in .23A of this regulation.
(5) If the Department initially denies a resident-specific level of care waiver request and determines that a resident's health or safety may significantly deteriorate because of the provider's inability to provide or ensure access to care that will meet the needs of the resident, the:
(a) Denial is not subject to informal dispute resolution; and
(b) Department may direct the relocation of the resident to a safe environment.
G. The Department's Decision.
(1) The Department shall communicate the decision to grant or deny a resident-specific waiver to the assisted living manager in writing, including all appropriate supporting documentation, within 7 calendar days from receipt of the waiver request.
(2) Dispute of a Resident-Specific Waiver.
(a) If the resident or the resident representative disagrees with the Department's denial of a waiver request, the resident or, as applicable, the resident representative may dispute the Department's decision by:
(i) Submitting a written request to the Department within 7 calendar days after receipt of the Department's denial; and
(ii) Including in the written request the reasons why the Department's denial may be incorrect.
(b) The Department shall consider the request and notify the resident or the resident representative within 7 calendar days of receipt of the request whether or not the Department's decision to deny a level of care waiver is sustained.
(c) The Department's decision from the dispute is not:
(i) A contested case as defined in State Government Article, §
10-202(d), Annotated Code of Maryland; or
(ii) Subject to further appeal.
(d) In making a decision to sustain or change the decision to deny a waiver request, the Department shall consider, among other factors, whether the:
(i) Granting of waivers has resulted in one or more residents having experienced a decline in their physical, functional, or psychosocial well-being; and
(ii) Decline in the residents' condition might have been prevented had the waivers not been granted.
(e) If the Department sustains the decision to deny the waiver request, the Department shall notify the assisted living program of what action is required, including, but not limited to:
(i) Revocation of some or all of the resident-specific waivers which have been granted; or
(ii) A change in licensure category.
(f) Decision to Sustain the Denial of Waiver Request.
(i) Upon notification of the decision to sustain the denial of waiver, the assisted living program shall submit a response with an appropriate plan of action for approval by the Department.
(ii) If the Department does not approve the assisted living program's plan of action, the Department shall notify the assisted living program that one or more resident-specific waivers are revoked or that a change in licensure status is required.
(iii) The determination to sustain the denial of waiver request may not be appealed.
(iv) Failure of the assisted living program to comply with the Department's decision is grounds for the imposition of sanctions.
H. The Department shall, during a survey or other inspection, or when a resident-specific level of care waiver request is made, review the number of resident-specific waivers an assisted living program holds to ensure that the assisted living program continues to be able to provide appropriate care to all of its residents and to ensure that the current licensure category is appropriate. The Department shall notify the assisted living program if, at any time, the Department determines that:
(1) The assisted living program is not providing appropriate care to its residents because of the number of resident-specific waivers it holds; or
(2) The number of resident-specific waivers an assisted living program holds necessitates a change in licensure category.
Notes
Regulation .24D amended effective June 25, 2012 (39:12 Md. R. 745); adopted effective 52:8 Md. R. 357, eff.
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
A. Except as otherwise provided under §E of this regulation, for a person admitted for other than short-term residential care , the resident or the resident 's agent and the assisted living manager shall sign, before or at the time of admission, a resident agreement that:
(1) Is a clear and complete reflection of commitments agreed to by the parties, and the actual practices that will occur in the assisted living program ;
(2) Is accurate, precise, easily understood, legible, readable, and written in plain English;
(3) Conforms to all relevant State and local laws and requirements; and
(4) Recommends review of the agreement by an attorney or other representative chosen by the resident .
B. For a person admitted for short-term residential care , the assisted living program shall sign a resident agreement with the resident or resident 's agent as set forth in this regulation excluding the provisions of §D(7)(c) and (8)(c) and (d) of this regulation.
C. The assisted living program shall:
(1) Give a copy of the signed resident agreement to the resident and the resident 's agent ;
(2) Maintain a copy of the resident agreement on-site; and
(3) Make the resident agreement available for review by the Department or its designee.
D. The resident agreement shall include provisions, which include at a minimum:
(1) A statement of the level of care for which the assisted living program is licensed;
(2) The level of care needed by the resident , as determined by the initial assessment required by Regulation .21 of this chapter;
(3) Unless the assisted living program is part of a continuing care retirement community and the agreement is signed by a continuing care subscriber as defined in COMAR 32.02.01.01B(35), a statement indicating that if a resident 's level of care, after admission, exceeds the level of care for which the licensee is permitted to provide and a waiver for the continued stay of the resident has not been granted, the assisted living program shall discharge the resident from the program;
(4) If the assisted living program is part of a continuing care retirement community and a separate, concurrent resident agreement is signed by a continuing care subscriber as defined at COMAR 32.02.01.01B(35), a statement indicating that if the resident 's level of care, after admission to assisted living, exceeds the level of care for which the licensee is permitted to provide and a waiver for the continued stay of the resident has not been granted:
(a) The licensee may not provide any services to the resident beyond that which it is licensed to provide;
(b) If the licensee offers either comprehensive care services, or priority access to comprehensive care services, and a comprehensive care bed is available for occupancy, the resident shall be given the option to transfer to comprehensive care; and
(c) The resident may be discharged from the continuing care retirement community only for just cause as set forth in COMAR 32.02.02.31B;
(5) A listing of services provided by the assisted living program and a listing of those services the assisted living program does not provide;
(6) An explanation of the assisted living program 's complaint or grievance procedure;
(7) Occupancy provisions including:
(a) Policies regarding bed and room assignment, including the specific room and bed assigned to the resident at the time of admission;
(b) Procedures to be followed when the assisted living program temporarily or permanently changes the resident 's accommodation by:
(i) Relocating the resident within the facility ;
(ii) Making a change in roommate assignment; or
(iii) Increasing or decreasing the number of individuals occupying a room;
(c) Procedures to be followed in transferring the resident to another facility ;
(d) The availability of locks for storage;
(e) The availability of locks, if any, for the resident 's room;
(f) Security procedures which the licensee shall implement to protect the resident and the resident 's property;
(g) The staff 's right, if any, to enter a resident 's room;
(h) The resident 's rights and obligations concerning use of the facility , including common areas;
(i) The assisted living program 's bed hold policy in case of unavoidable or optional absences such as hospitalizations, recuperative stays in other settings, or vacation, including the conditions under which the program will hold a bed, relevant time frames, and payment terms, and the circumstances under which the program will no longer hold the bed;
(j) Provisions for continuous service in the event of an emergency ; and
(k) An acknowledgment that the resident or the resident's representative has reviewed all assisted living program rules, requirements, restrictions, or special conditions that the program will impose on the resident ;
(8) Admission and discharge policies and procedures including:
(a) Any additional admission requirement imposed by the assisted living program ;
(b) Those actions, circumstances, or conditions which may result in the resident 's discharge from the assisted living program ;
(c) The procedures which the assisted living program shall follow if it intends to discharge a resident without the resident 's agreement, and thereby terminate the resident agreement , including a provision under which the assisted living program shall give not less than 30 days notice to the resident or resident's representative before the effective date of the discharge and termination of the resident agreement , except in the case of a health emergency or substantial risk to the health and safety of the other residents or staff in the program;
(d) The procedures which the resident shall follow if the resident wishes to terminate the resident agreement , including a provision that the resident , or appropriate representative , shall give not less than 30 days notice to the assisted living program before the effective date of the termination, except in the case of a health emergency ; and
(e) In a unit in which more than one resident is the contracting party, the terms under which the agreement may be modified in the event of one of the resident 's discharge or death, including provisions for termination of the agreement and appropriate refunds;
(9) Obligations of the licensee , the resident , or the resident's representative as to:
(a) Arranging for or overseeing medical care; and
(b) The monitoring of the health status of the resident ; and
(10) A policy on the administration of medications by a spouse or domestic partner to their spouse or domestic partner, when both parties reside in the same assisted living program .
E. If the services provided in an assisted living program that is part of a continuing care retirement community are covered under a continuing care agreement that complies with Article 70B, § 13(d), and Health-General Article, §19-1806, Annotated Code of Maryland:
(1) The Department may not require a separate resident agreement for the assisted living program ; and
(2) The requirements set forth in this regulation and Regulation .25 of this chapter do not apply.
F. The licensee may not include a provision in the agreement which is inconsistent with any of the requirements of this chapter.
Notes
Regulation .24D amended effective June 25, 2012 (39:12 Md. R. 745)