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Assisted Housing Programs Licensing Rule Proposed Rule Changes: Public Hearing on November 13th at 9:00 AM

Last week, the Department of Health and Human Services' Division of Licensing and Certification made an announcement of proposed rule changes for assisted living and residential care facilities. MHCA has begun a detailed analysis of the impact of the proposed changes and they are significant. This is full repeal and replace of existing language with many nuanced changes. Below is a summary of some the proposed changes. 

The public hearing will be held on November 13th at 9:00 am in Augusta. You may have read that attendance was going to be limited to 50 people; however, we have requested a larger location as we know a significant number of providers will want to testify at the hearing. The Department has agreed and will be moving the public hearing to a new location. Details are to be announced soon.   

It is important to note that a Zoom option is also available for those not able to attend the public hearing in person. Written comments on the proposed rule are due by 11/23/24 at 5:00 pm and should be submitted on-line here. As these are major substantive rule changes, the legislature will also have an opportunity to review and approve or amend; however, our collective advocacy is critical now.

This rulemaking repeals and replaces the current rule in force, 10-144 CMR Ch. 113, Regulations Governing the Licensing and Functioning of Assisted Housing Programs. The current rule consists of ten parts:
  • Assisted Living programs (1)
  • Levels I-IV of Residential Care Facilities (4)
  • Levels I-IV of Private Non-Medical Institutions (4)
  • Infection Prevention and Control (1)
The proposed new rule replaces those ten parts with two parts:
  • Part A: Assisted Living Programs
  • Part B: Residential Care Facilities
(Note: The current stand-alone Infection Prevention and Control rule has been embedded into both of the newly proposed Part A and Part B rules).

According to DHHS, “this simplified structure is designed to improve licensee understanding of and compliance with the rule and reflects revisions to 22 MRS §7852 enacted by PL 2023 c. 176. The provisions of the proposed rule have been updated to reflect current best practices in assisted housing.”

Despite our request, the Department is unable to provide a redline copy of the changes being proposed. We strongly encourage members to review the full rule change documents to understand the complete scope and implications of the proposed changes. Each facility must conduct their own due diligence and consult with their financial and legal advisors to assess the specific impact of these proposed changes on their operations. Given the significance of the proposed changes, it is imperative that DHHS hear from providers directly at the public hearing on November 13th.
 
High Level Summary of Changes:
 
Part A. Assisted Living Facilities
  • With respect to those facilities that have RN staffing, changes proposed to when RN needs to be onsite and written parameters for how to reach RN via telephone including timeframes for response.
  • Adult day services that are co-located will now need a separate license.
  • License renewal applications must be received 30 days prior to expiration and Department will notify within 2 weeks if application is complete and license will not expire until final determination.
  • Note language that a waiver may impact a facility's ability to receive payment for services. It is the licensee's responsibility to research any potential conflicts before requesting a waiver.
  • Confidential records language added that “Personal electronic devices may not contain confidential information.”
  • New language added that includes admin/ personnel records must be available within two days of request by Department in a format that is readily accessible and available to all staff and all records must be legible and for electronic records access/ instructions/ assistance provided for surveyors.
  • Disaster Plan requirements now include written policies that are based on risk assessment and address a new list of requirements.
  • With respect to closures, new language added regarding closure notification to the Department, closure policy requirements, roles and responsibilities of licensee, administrator or temporary management, and staff during closure process, as well as the funding sources that will be required to maintain daily operations, process for ongoing assessment and provision of medications, etc. 
  • Under required inspections new language added that a provider must give unrestricted and unsupervised access to all records required by this rule, to all parts of the facility and the right to interview residents and staff in private and that failure to comply may result in immediate sanctions.
  • New language has been added with respect to type and frequency of inspections.
  • With respect to Statement of Deficiencies, significant new details have been added to what must be included in an Acceptable Plan of Correction (POC). Further, the Department's determination of the acceptability of a POC is not subject to appeal.
  • Informal Conference significant new details are noted with requirements to satisfy a request for an informal conference.
  • New requirements added to medication storage, security, and temperature controlled medication requirements, medical disposal, inventory of schedule II meds, and medication administration records.
  • New requirement that a facility serving seven or more residents must have a licensed administrator. New language around absences or changes to administrator and notifications to Department.
  • New language added around investigations as it relates to allegations of resident abuse, neglect, and/or exploitation involving facility staff includes details on what the investigation report must include for documentation.
  • Staffing requirements/ training: The facility must provide staffing adequate to meet resident needs, implement service plans, and provide a safe setting.  Staff must be present 24 hours per day. Added language, “Directives to increase the number of staff shall be made through a Directed Plan of Correction or conditional license issued by the Department.” And in- service staff training requirements have changes.
  • For shared staffing, new language added around maintaining clear, documented audit trail containing the employee's name and the hours the employee worked on each level and meeting required residential care staffing ratios.
  • For food storage and meal prep some small changes noted including refrigerated storage – temp requirement is 40 degrees, current rule is 41.  Also for those facilities with 15 or more residents, a commercial dishwasher is required.
  • New language added for plumbing, sewer and solid waste management added as well as MDS sheets and storage for poisonous/ toxic materials.
Note this is not an exhaustive list of changes.
 
Part B. Residential Care Facilities
  • Many new definitions have been added or some with changes including but not limited to abuse (added word “willful”), caretaker, dietary coordinator, discharge, expired foods, elopement, false information, medication guide, memory care unit, person centered care, resident assessment, serious harm, shared staffing, significant change, and substantial compliance, unlicensed assistive personnel, and willful have been added.
  • Residential Care Facility levels new language of
    • A. Facility with a licensed capacity of 1 to 7 residents
    • B. Faciity with a licensed capacity of 8 to 15 residents
    • C. Facility with a licensed capacity of 16 or more residents
  • Applicant must adopt all policies and procedures under the rule prior to applying for a license.
  • License is non-transferable. Applying for a new license 30 days prior to an anticipated sale date (current regulations say 60 days prior).  
  • With respect to RN staffing (on staff or under contract), new language added that the RN needs to be onsite and written parameters for how to reach RN via telephone including timeframes for response.
  • New language added that licensee must have valid lease or deed to property and maintain evidence of adequate general and professional liability insurance.
  • New drinking water testing requirements have been added and public water system requirements if 25 people or more per day or have 15 or more connections.
  • Change notification within 7 business days if there is a change in administrator or contact information.
  • Separate license required for Adult Day Services Programs.
  • When a facility needs to file a POC, it must be filed in 10 working days.  Additional language added to POC process and includes an allowance to dispute citations in an informal conference.
  • Any modifications, reconstruction, change of use or occupancy require State Fire Marshal plan review and final approval and updated license.
  • Note language that a waiver may impact a facility's ability to receive payment for services. It is the licensee's responsibility to research any potential conflicts before requesting a waiver.
  • Confidential records language added that “Personal electronic devices may not contain confidential information.”
  • New language added that includes admin/ personnel records must be available within two days of request by Department in a format that is readily accessible and available to all staff and all records must be legible and for electronic records access/ instructions/ assistance provided for surveyors.
  • Disaster Plan requirements now include written policies that are based on risk assessment and address a new list of requirements.
  • New language has been added about requirements when closing a Residential Care facility including closure notification to the Department, closure policy requirements, roles and responsibilities of licensee, administrator or temporary management, and staff during closure process, as well as the funding sources that will be required to maintain daily operations, process for ongoing assessment and provision of medications, etc. 
  • Under required inspections new language added that a provider must give unrestricted and unsupervised access to all records required by this rule, to all parts of the facility and the right to interview residents and staff in private and that failure to comply may result in immediate sanctions.
  • With respect to Statement of Deficiencies, significant new details have been added to what must be included in an Acceptable Plan of Correction (POC).
  • For Disputes of SOD Findings, new language around informal conference requests, failure to appear, if counsel is present without notice, no appeals for denial of request, etc.
  • Under Resident Rights, the right to patient-directed care has been added. Also residents have the right to receive visitors at any time that doesn't infringe on the rights of others.
  • New language added for mandated reporters.
  • New timeframe for written consent for release of information must be renewed annually (current rule is every 30 months).
  • Under right to file grievances, residents must be provided with a list of advocacy services.
  • Under Right to Continued residence, language added that providers have an affirmative responsibility to assist in the transfer/ discharge process and details new criteria.
  • For emergency discharge, five days for written notice to resident and/or resident's representative.
  • New language for right to Patient-Directed Care and notification of changes in treatment or a plan of care, injuries, significant change in status, change in room or roommate, etc.
  • Self-administration of medication, residents must be assessed within 14 days of admission and have a written agreement.
  • Written/electronic/ fax orders must be signed within 10 working days.
  • Unlicensed assistive personnel, new requirements on training in the employee records, 8-hour medication administration course and re-certification within two years of original certification.
  • Changes to medication storage and temperature controlled meds, medication policy on meds leaving and returning to the facility, medication disposal, schedule II inventory and disposal of excess, expired or undesired meds within 7 days of discontinuation of use, and med/ treatments within scope of certification/ credential/ training for unlicensed personnel. Addition of a first aid kit.
  • New resident screening and admission requirements at it relates to behavioral health, substance use disorder, and behavioral support needs.
  • Under Administration, new language added around review of history of legal action for financial mismanagement, change in absent administrator notice, and language that a Temporary Administrator shall not exceed 90 days. 
  • New written policy requirement on hospice care, protocols for resident falls, protocols for unsafe wandering, resident altercations, resident care alerts, medication inventory. Policies available for review by interested parties. Ensure care coordination between facility and other service providers.
  • Language added for the maximum number of sites and bed capacity for a single Administrator.  Licensed Administrator cannot have oversight of more than 160 residents in single site or if overseeing multiple sites, no more than 3 sites with a total licensed capacity of 50 residents. No administrator who has oversight of more than once facility may have responsibility for oversight of more than 50 beds total. Dept may limit number of beds through a DPOC.
  • Administrative and Resident Records has new language about emergency and death of resident, if a resident refuses a physical exam, some changes to language on incident reports on injury or death. New language on unsafe wandering, allegations of abuse, violations of rights, adverse reactions to medical errors, etc.
  • New language added on requirements of conducting an Investigation as it relates to abuse, neglect, exploitation.
  • Staffing new language added that the “facility must have policies and procedures to address resident care staff to occupied bed ratios that exceed the minimum ratios in this rule, to assure that residents have access to staff to meet resident needs and to provide care and emergent assistance at all times.”
  • Staff Training: “Prior to providing unsupervised direct care…” a staff person needs to be trained in the following areas: Fire Safety, Mandatory Reporting, Confidentiality and Resident Rights, General resident care needs, S/S of dementia and required coordination of care, Communication skills, Physical Intervention training, as needed. 
  • Shared staffing is allowed in multi-Level facilities however both levels of care, “must meet the staffing requirement for each license, have clear, documented audit trail with employee's name and hours worked on each level, etc.
  • New requirements for volunteer with direct care responsibilities, orientation, and when they can be counted in staffing ratios.
  • Food Storage and Meal Preparations - Refrigerated storage temperature requirement is 40 degrees, current rule is 41.  Food prep surfaces new language added there, ice machine cleaning, raw fruits and vegetables, minimum cooking temperature.
  • Standards for Resident Care – Section on Discharge Summary has been removed. 
  • Staffing Ratios: language added that housekeeping, laundry, social services, administration, maintenance and dietary services are excluded from staffing ratios. (Current rule: “For purposes of Section 13.3.1, resident care includes the functions of direct resident care and supervision, activities, housekeeping, laundry and social services.  It excludes administration, maintenance and dietary service.”). 
  • New staffing Ratio requirements – 1:8 (Days); 1:8 (Evenings); 1:15 (Nights).
    • Current rule – 1:12 (Days); 1:18 (Evenings); 1:30 (Nights)
  • Memory Care Units will have higher staffing ratios: 1:5 during the day (7am-3pm) and evening (3pm-11pm) shifts; 1:10 on night shifts (11pm-7am)
    • Also, "Memory care units must have one employee for shifts between 7am-3pm and 3pm-11pm who is delegated to provide direct observation of residents and who does not have additional assigned duties."
  • Dietary Coordinator required if more than 16 residents. Record of food purchased must be maintained for 3 months.  No timeframe specified in current regulations.
  • Physical Plant Requirements – Temperature of facility needs to be maintained between 68 – 81 degrees.  Current language is 70 degrees. Each resident room must have a means to call for assistance.
  • Specialized Care Unit Standards now has language around staffing requirements: 
    • 1:5 (Days); 1:5 (Evenings); 1:10 (Nights).
  • Clinical Orientation now required, including: Hands-on experience with resident care; Chart Review; Treatment Planning, Personal history of residents.
  • Facility must complete a Staff Competency Evaluation prior to scheduling direct care staff on a Memory Care unit. Appendix B 
Note this is not an exhaustive list of changes.

Staff contact: awesthoff@mehca.org