COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES
DEPARTMENT OF MENTAL RETARDATION

NOTICE OF PUBLIC HEARING
PROPOSED AMENDMENT OF REGULATIONS

In accordance with M.G.L. c. 30A, the Department of Mental Retardation proposes to amend its regulations under the authority of M.G.L. c. 19B, §§ 1, 14 and 15 and 123B, §2. Amendments of 115 CMR 2.01, 7.01 -7.03, and 8.01-8.34 are intended to effect the following changes to and clarification of the Department of Mental Retardation's existing practices and procedures regarding licensure and qualitative review of services and supports provided to individuals with mental retardation in the Commonwealth of Massachusetts.

(A) Regulations delineate the processes and standards to be used by the Department to license providers of services and supports to individuals with mental retardation. The amendment establishes a two-year term license for all providers meeting the Department's standards. The regulation further provides for a "certification" of all providers that will focus on the quality of agency supports and their achievement of other qualitative outcomes. Compliance with certification criteria may be deemed by Department approved national accreditation organizations. 115 CMR 8.01-8.34.
(B) Amends definition of "certification"; updates agency name, "Office for Child Care Services;" and clarifies that licensure standards do not apply to children's site-based respite. 115 CMR 2.01 and 7.01-7.03.

TWO HEARINGS HAVE BEEN SCHEDULED:

Friday, March 5, 2004 from 10 a.m. to 12 p.m. at the Western Massachusetts Hospital, 91 Mountain Road, Westfield, MA and,
Friday March 5, 2004 from 2 p.m. to 4 p.m. at the Natick Public Library, 131 East Central Street Natick, MA.

Written comments may be submitted (by fax or mail) to the Office of the General Counsel, Department of Mental Retardation, 500 Harrison Avenue, Boston, MA 02118 on or before 5:00 p.m. March 5, 2004.

Copies of proposed regulations are available upon request by telephone (617) 624-7702, by written request made to the Office of the General Counsel or for viewing at www.dmr.state.ma.us.

The Department may adopt a revised version of the proposed regulations taking into account relevant comments and any other practical alternatives that come to the Department's attention.

By Order of the Department of Mental Retardation
GERALD J. MORRISSEY, JR., COMMISSIONER FEBRUARY 9, 2004

AMENDED

115 CMR 8.00: CERTIFICATION, LICENSING AND ENFORCEMENT

Section

CERTIFICATION OF PROVIDERS
8.01 Scope
8.02 Licensure, Certification, and Certification Renewal
8.03 Application for Licensure and Certification or Renewal
8.04 Licensure and Certification Survey
8.05 Compliance and Levels of Licensure
8.06 Certification
8.07 Administrative Reconsideration
8.08 Review and Appeal
8.09 Waiver
8.10 Approval for Occupancy

LICENSING OF PROVIDERS
8.21 Issuance of Licenses

ENFORCEMENT OF REGULATIONS
8.30 Operation of Unlicensed Services and Supports
8.31 Visits by the Department
8.32 Compliance Order
8.33 Suspension, Revocation, and Denial of License or Renewal
8.34 Review and Appeal
8.35 Suspension in Emergencies
8.36 Notification of Legal Proceedings
8.37 Change of Name, Ownership, Location or Services

8.01: Scope

(1) Compliance with 115 CMR 8.00 and the requirements of 115 CMR in general is a prerequisite for licensure and certification. No provider may provide services and supports under contract or agreement with the Department unless those services and supports have been licensed and/or certified.

(2) The Department shall determine, publish, and review periodically licensure and certification standards and procedures for the assessment of providers' compliance with Department regulations and the impact of services and supports on the quality of life of individuals served.

(3) The Department shall license and/or certify:
(a) Licensure. All public and private providers offering residential supports, work/day supports, placement services, site-based respite, and any other services as deemed appropriate by the Department must be licensed, excluding those that are subject to licensure by another governmental agency with which there is written agreement between the Department and such agency for licensure exclusion.

(b) Certification. All public and private providers offering residential supports, work/day supports, placement services, site-based respite, individual supports, and any other services as deemed appropriate by the Department are subject to review of outcomes, in addition to those required for licensure that the Department determines are consistent with standards published in 115 CMR, excluding those that are subject to licensure or certification by another governmental agency with which there is written agreement between the Department and such agency for certification exclusion. The purpose of this review is to certify the overall quality of services and supports in specific quality of life domains set forth in 115 CMR 7.03.

(c) Any other person or organization providing only supports and services for persons with mental retardation and not subject to licensure or certification by another governmental agency, if the Department determines that the services are subject to the provisions of M.G.L. c. 19B.

8.02: Licensure, Certification, and Certification Renewal

(1) The Department shall issue a license to providers of residential supports, work/day supports, placement services, or site-based respite supports to persons with mental retardation upon affirmative demonstration by the provider that the services and supports meet or exceed applicable licensure standards and regulations.

(2) Licenses issued under 115 CMR 8.01 through 8.09 shall be subject to revocation for cause and shall be non-transferable.

(3) The Department shall certify the quality of providers of services and supports to determine whether the services and supports meet or exceed applicable certification standards and regulations.

(4) The Department may deem compliance with the overall quality of services and supports standards in the specific quality of life domains set forth at 115 CMR 7.03 upon receipt of current proof of accreditation by a national accreditation organization to be equivalent to certification upon evidence that the standards, survey process and survey outcomes of said accreditation organization are substantially similar to those of the Department and implement the goals and principles of the Department's Mission Statement. The Department shall periodically review the efficacy of the national accreditation organization findings to insure ongoing consistency with Department regulations, standards and mission statement. The Commissioner shall determine such national accreditation organizations acceptable for deeming under 115 CMR 8.02.

8.03: Application for Licensure and Certification or Renewal

(1) Applicants for licensure and/or certification of new services or for renewal of licensure or certification shall file an application in writing with the Department in a manner and on a form prescribed by the Department.

(2) Licensed providers that begin to provide new services or reconfigure existing services between surveys will be required to comply with pre-occupancy requirements set forth in 115 CMR 8.09, if applicable, but will not be subject to full survey until the next regularly scheduled renewal survey. Providers, however, are subject to a review of health, safety, and human rights protections at any time.

(3) A provider not previously licensed that begins services shall, prior to the provision of service, apply for licensure in order to operate and shall be subject to an abbreviated survey of health, safety and human rights protections, within 60 days after service delivery begins.

(4) The applicant must be the organization or person with principal legal responsibility for the administration and conduct of the provider.

(5) The applicant shall submit, on forms or in a manner determined by the Department and subject to audit or inspection by the Department, such additional information as may be necessary for the Department to determine the qualifications of the applicant and its services for licensure or certification. Such information shall include, but is not limited to, all components of the applicant's services, staffing, financial status and service locations.

(6) A provider will be deemed to be operating with a valid license as long as a current application is on record in the Office of Quality Management within the prescribed timeframe.

8.04: Licensure and Certification Survey

The Department shall survey each provider according to timelines in accordance with its licensure and certification status as determined in 115 CMR 8.05 and more frequently if deemed necessary to ensure compliance with 115 CMR. In accordance with 8.02(4), providers, other than those issued a one-year conditional license by the Department, may substitute a national accreditation process in lieu of the Department's certification survey. Surveys shall be conducted according to the following procedures:

(1) Sample. The Department will select for review a sample of individuals receiving services from or through the provider.
(a) The number or percentage of individuals reviewed shall be determined by the Department and shall exclude individuals in extenuating circumstances that would preclude their participation in the survey such as vacation, hospitalization, or other similar circumstance.
(b) The sample shall be representative of the provider's services and supports subject to licensure and certification.
(c) The Department may expand the selected sample during the conduct of a survey if, in the judgment of the survey team, serious issues arise in areas such as, but not limited to, medication, money management, health care, safety, human rights, behavior modification interventions, and further information is deemed necessary for thorough review.

(2) Notification and Scheduling.
(a) The provider, regional and area offices, service coordinators, individuals selected as part of the sample for the survey and their guardians and family members, when appropriate, shall receive notification of the survey schedule.
(b) Surveys shall ordinarily be made with prior notice and at reasonable times, giving due regard to the privacy of the individuals served and the interruption that the survey visit may cause. However, the Department shall have the right to review any service or support subject to licensure and/or certification under 115 CMR 8.00 at any time, without prior notice.
(c) Refusal to permit a survey, with or without prior notice, shall be grounds for termination of contracts or agreements with the Department and/or the recommendation to terminate or deny licensure or certification. The provider shall make all relevant documents (as determined by the Department) available to the survey team upon request.
(d) Survey scheduling shall be tailored to facilitate the participation of citizen volunteers.

(3) Survey Team. Surveys shall be conducted under the supervision of the Department, which shall designate such Department employee(s) as it deems necessary to accomplish the purposes of the review. The size of the survey team shall vary depending on the size of the provider.
(a) In assembling the survey team the Department shall consider the language or method of communication of individuals included in the survey sample.
(b) The survey team leader may utilize Department staff, citizen volunteers and other professionals in the field of human services on the survey team, provided that the Department may exercise reasonable discretion in limiting the number of participants in any survey; and confidential information concerning individuals shall not be disclosed except in accordance with the confidentiality requirements of applicable state and federal law.
(c) Team members shall have no conflict of interest with the provider being surveyed and shall adhere to the conflict of interest statement developed by the Department. Prior to the conduct of the survey, providers may challenge the composition of the team on the basis of criteria outlined in the conflict of interest statement.
(d) All team members shall execute such documents as the Department determines are necessary to protect against unauthorized disclosure of confidential information in accordance with applicable state and federal law.

(4) Conduct of the Survey. The Department shall conduct the following activities as part of the licensure and certification survey.
(a) Observation. Team members shall visit and observe the individual at the location where services or supports are provided. Team members will not routinely visit an individual at supported or competitive employment sites unless there is agreement between the individual, provider, and employer. Individuals selected as part of the sample who live in homes that they own, rent, or lease have a right to refuse a home visit. In addition, personal belongings, clothing, and storage spaces (closets, dressers, trunks, etc.) of any individual served shall not be subject to inspection by the Department without the consent of the individual.
(b) Discussion. Team members shall speak with individuals, staff, family members and guardians, and other significant people. The team member shall interview the service coordinator of each individual in the sample. The team member shall speak with other people such as human rights committee members or clinicians when additional information is needed to complete the survey assessment tool and assess compliance with the regulations. Individuals who refuse to be interviewed personally shall not receive a personal interview but shall remain in the sample and the quality of their services shall be evaluated.
(c) Review of Documentation. Prior to and during the survey, team members shall review documents that provide information about the impact of services and supports on the quality of life of individuals served and about the organization and operation of the provider.
1. Team members shall review documentation in an individual's record, including but not limited to the individual's ISP, progress notes, medication and health information, bank books, financial transaction sheets, and behavior modification plans, incident reports, and informed consents.
2. Team members may review provider policies and procedures that include, but are not limited to, the following safeguards: emergencies (e.g. search and safety plans); restraint; money management; behavior interventions; human rights; medication administration; legal competency and guardianship; fire drill logs.
3. On an as needed basis, other documentation may be reviewed, including but not limited to staff training, job descriptions, other policies and procedures, membership and minutes of the Human Rights Committee and peer review committee, education and teaching curriculum, mission statement, results of internal evaluations and strategic planning, staff evaluations, and other monitoring reports.
4. The team members shall review the Department logs of complaints and Decision and Action Letters of investigations for the previous year.
5. The team member may review the provider's system for conducting Criminal Offender Record Information (CORI) checks on all persons whose paid responsibilities may bring them into direct contact with individuals served.

(5) Feedback. The team shall present the findings and results of the survey to the provider, and area and regional staff. The presentation shall include patterns and practices within each quality of life area reviewed, examples that serve to validate observations, and the provider's level of licensure and/or certification.

(6) Immediate Jeopardy. Immediate jeopardy is defined as any circumstance in which the life, health, or safety of an individual(s) is severely threatened if the situation is not immediately corrected. A team member who observes a situation that places any individual in immediate jeopardy shall immediately notify the provider, the regional director and area director of the circumstances and the need to correct the situation within 48 hours unless otherwise indicated. The provider must take any and all action necessary to correct the situation. The team member will confirm that the situation has been corrected. If the situation is not corrected within the prescribed timeframe, that portion of the provider's services which are the subject of the review will not be licensed or certified until such time as corrective action has been taken.

(7) Action Required. A team member who observes a situation that requires action in a timely manner shall immediately notify the provider, the regional and area director of the circumstances and the need to correct the situation within 30 days. The team member will confirm that the situation has been corrected.

(8) In all cases where a condition reportable under 115 CMR 9.00 or M.G.L. c. 19C is observed, each team member is a mandated reporter and shall follow regulatory and statutory reporting procedures.

(9) Reports.
(a) An individual report outlining the results for quality of life domains on the survey shall be completed for each individual included in the survey sample and shall be sent to the provider and to the regional and area directors.
(b) A provider report shall be developed from a compilation of the individual findings and sent to the provider and to the regional and area directors. The provider report, modified to delete confidential personal information concerning individuals served, may be sent to any interested person upon request.

(10) Follow-up. The Department shall follow-up with providers on all issues of immediate jeopardy, action required, and on all matters which have been identified as raising significant issues of rights and dignity or of personal well-being in the provider report.

8.05: Compliance and Levels of Licensure

(1) A provider shall be in compliance with licensure requirements contained in 115 CMR 8.00, if:

(a) the provider has timely filed a sufficient application for licensure and certification or renewal and is participating in the licensure and certification survey process under 15 CMR 8.00; or
(b) the services and supports have been surveyed under 115 CMR 8.04 and found to meet the requirements for licensure; or
(c) in the event that the survey has identified conditions that require follow-up by the Department, the provider is participating in the follow-up process including having scheduled a follow-up survey; or
(d) the provider has obtained approval by the Department for a waiver under 115 CMR 8.08 and is in compliance with other requirements of licensure and all conditions or terms of the waiver issued in accordance with 115 CMR 8.08; or
(e) the provider has timely filed a written request for review of a de-licensure or denial of licensure decision with the Commissioner in accordance with 115 CMR 8.07(3);
(f) the provider has a pending appeal timely filed in accordance with 115 CMR 8.34.

(2) Upon completion of the survey and receipt and review of all required documentation to the satisfaction of the Department, the Department may take the following actions:
(a) Two-year License. The Department shall issue a two-year license based upon complete achievement of the licensure standards developed under 115 CMR 8.01(2). (b) Conditional One-year License. The Department shall issue a one-year conditional license based upon partial achievement of the licensure standards developed under 115 CMR 8.01(2). Until such time as the provider demonstrates complete achievement of licensure standards developed under 115 CMR 8.01(2), it shall be prohibited from accepting any new business.
(c) Recommendation for non-licensure. The Department shall issue a recommendation for non-licensure to indicate that a provider has (1) received a conditional one-year license for two consecutive years, or (2) a rating of "not achieved" in either of the quality of life areas for personal well-being or rights as set forth in the licensure standards developed under 115 CMR 8.01(2).

(3) Upon notification by the Office of Quality Management that non-licensure has been recommended for a provider, the regional director may either accept the recommendation not to license the provider or develop a specific action plan in conjunction with the provider to improve its services to individuals.

(4) When a determination of non-licensure has been made and an action plan has been developed with the regional director, the provider shall be subject to a follow-up visit by a Department survey team no later than 90 days after the issuance of the provider report. If the follow-up visit determines that significant progress has been made toward achievement of compliance, the Department shall issue a conditional one-year license. If the follow-up visit does not indicate evidence of substantial improvements, a decision of non-licensure shall be issued. Until such time as the provider demonstrates complete achievement of licensure standards developed under 115 CMR 8.01(2), it shall be prohibited from accepting any new business.

8.06: Certification

The certification process reviews outcomes for individuals in addition to those required for licensure, as set forth in 7.03, for the purpose of emphasizing continuous service enhancement. The Achievement of all applicable certification standards may result in the designation of distinctive status.

8.07: Administrative Reconsideration

(1) Within ten working days after receipt of the provider report , the provider may file a written request for an administrative reconsideration with the regional Quality Management director in all cases except with respect to a decision of non-licensure. Decisions of non-licensure are subject to separate review and appeal through 115 CMR 8.34 and are not subject to administrative reconsideration.

(2) The basis for a request for administrative reconsideration shall be:
(a) the facts or the conclusions in the provider report;
(b) the timelines for follow-up and correction of areas needing improvement.

(3) Administrative reconsideration may not be requested on the basis of provider disagreement with:
(a) the content and/or values of the survey tool;
(b) the composition of the team;
(c) the methodology developed for scoring the survey.

(4) Within thirty working days of the receipt of the request for reconsideration, the Department shall render a written decision that shall state its conclusions and rationale.

(5) Within ten working days of receipt of the written decision, the provider may file a written request for a second level of administrative reconsideration.

(6) The basis for a second level of administrative reconsideration shall be limited to findings regarding compliance with (2)(b).

(7) The Department shall render a decision within thirty working days of receipt of the request. The decision rendered at the second level of administrative reconsideration is final and not subject to further review.

(8) Administrative reconsideration shall be conducted by the Department by a person or organization designated by the Commissioner.

8.08: Review and Appeal

(1) The Deputy Commissioner, the Assistant Commissioners for Quality Management and Operations, and the General Counsel will jointly review all recommendations for denial of licensure or license renewal prior to a final recommendation being presented to the Commissioner by the Office of Quality Management.

(2) All decisions to deny a license or to de-license must be issued in writing by the Commissioner and must be accompanied by the provider report that delineates those specific areas in which the provider has been found to be in non-compliance with standards set by the Department.

(3) Within ten working days of receipt of a decision to deny a license or to de-license, the provider may request a Commissioner's review of the decision. The Commissioner retains final authority over all -licensure decisions.

(4) A decision to deny a license or to de-license shall result in the non-issuance or termination of the provider's license to operate the surveyed services and supports in accordance with 115 CMR 8.21 and is subject to appeal through 115 CMR 8.34.

8.09: Waiver

(1) The requirements of 115 CMR shall be strictly enforced, and shall not be subject to waiver, except as specifically authorized by the Department in accordance with the provisions of 115 CMR 8.08 or within the context of the safety plan as specified in 115 CMR 7.06(4), 7.07(8), and 7.08(7)(c).

(2) No waiver may be granted by the Department without a petition by the provider and a determination by the Department that:
(a) The health, safety, or welfare of individuals served and staff will not be adversely affected by granting the waiver; and
(b) the provider, in petitioning for the waiver, has stated an alternative standard which is found by the Department to result in a comparable quantity and quality of services and supports, and to which the applicant agrees to be held accountable to the same degree and manner as any provision of 115 CMR.

(3) Waivers shall be granted for the duration of the licensure period or for a shorter duration, and may be renewable.

8.10: Approval for Occupancy

(1) Approval for Occupancy is required for any home where 24-hour staffing is provided and where the home is owned, rented or leased by the provider; in all locations where work/day services are provided; and in locations where site-based respite services are provided.

(2) Approval for occupancy for a new service shall precede licensure by the Department and is based on a site feasibility review, pre-placement visit, and approval by the Department, in accordance with 115 CMR 8.05. For such services and supports, the full survey required for licensure shall occur after occupancy and in accordance with 115 CMR 8.03 and 8.04.

(3) The location inspection and issuance of an Approval to Occupy shall be in accordance with procedures and guidelines developed by the Department.

8.21: Issuance of Licenses

(1) The Department shall issue a license to operate based upon the licensure status of the provider as determined in accordance with 115 CMR 8.05.

(2) Determination of non-licensure status shall result in the denial or revocation of a license to operate.

8.30: Operation of Unlicensed Services and Supports

(1) When the Department has reason to believe that a provider is operating a service or support which is subject to licensure by the Department without a valid and current license, and the provider has failed to apply for licensure within 30 days after notice by the Department, the Department may:
(a) Notify the District Attorney with jurisdiction over the provider that the provider is operating in violation of M.G.L. c. 19B, § 15; and
(b) Petition the Superior Court with jurisdiction over the provider to cease its operation or to take such other actions as may be necessary in the interest of the individuals served; and
(c) Remove individuals for whom the Department is purchasing services and provide them with the most adequate and appropriate alternative arrangement available.

8.32: Compliance Order

(1) In addition to the procedures for determining licensure status set forth in 115 CMR 8.05, whenever the Department finds upon visit or through information that a provider is not in compliance with any applicable law or regulation, the Department may issue a compliance order for the correction of the deficiency or the suspension of the license, as deemed in the best interests of the individuals served.

(2) Every such compliance order shall be in writing and shall include a statement of the deficiencies found, the period within which the deficiency must be corrected, and the provisions of law and regulations relied upon.

(3) Within ten days of the issuance of a compliance order, the provider may file a written request with the Office of Quality Management for administrative reconsideration of the findings or any portion thereof, in accordance with 115 CMR 8.07. Compliance orders suspending or revoking a provider's license may be appealed pursuant to 115 CMR 8.34 or 8.35, as applicable. The filing of a request for administrative reconsideration shall not stay a provider's obligation to comply with the compliance order.

(4) In the event that the provider fails to correct any deficiency within the period prescribed for correction, the Department shall enforce its compliance order under 115 CMR 8.33 or 115 CMR 8.35 or in accordance with M.G.L. c.19B, §15.

8.33: Suspension, Revocation, and Denial of License or Renewal

(1) The Department may suspend, revoke or deny a license or renewal if it finds any of the following:
(a) The provider failed to comply with any applicable regulations or any compliance order;
(b) The provider received a de-licensure status upon completion of a survey;
(c) The provider furnished or made any misleading or false statement or report required under 115 CMR;
(d) The provider refused to submit or make available any reports required under 115 CMR;
(e) The provider refused to admit at any time for inspection any employee of the Department authorized by the Commissioner to conduct such inspections in accordance with 115 CMR 8.31;
(f) The provider or any of its staff was found after investigation pursuant to 115 CMR 9.00 or M.G.L. c. 19C to have committed gross neglect of an individual it serves or served;
(g) The provider or any of its staff knowingly or unknowingly permitted grave physical harm or sexual, physical, emotional or financial abuse of an individual to occur, by reason of failure to implement recommendations made by the Department after investigation of previous allegations of abuse, or by reason of reckless disregard for the safety or welfare of any individual.

8.34: Review and Appeal

Within 30 days of the receipt of a written request to the Commissioner by a provider denied licensure under 115 CMR 8.33, a hearing shall be held in accordance with the applicable requirements of M.G.L. c. 30A.

115 CMR 7.00 AMENDMENTS


7.01: Scope

(1) 115 CMR 7.01 through 7.10 applies to all supports and services provided by public and private providers subject to the Department's jurisdiction, except where such service is exempt through the specific language of 115 CMR 7.00.

(2) Any services subject to regulation by the Massachusetts Rehabilitation Commission and which provide social and pre-vocational supports and work training shall be subject to the appropriate requirements of 115 CMR 7.00.

(3) 115 CMR 7.00 does not apply to programs or facilities subject to regulation under M.G.L. c. 28A (Office for Child Care Services), such as children's group residences, foster care, day care, children's site-based respite, or emergency housing; or under M.G.L. c. 119 (Department of Public Health), such as skilled nursing facilities, acute care facilities, intermediate care facilities or health clinics; or to any facilities or programs for which another agency possesses exclusive regulatory authority.

7.02 Definitions - Not amended

7.03: Outcomes for Individuals

(1) All providers shall assure that the supports and services they provide to individuals promote the following within the context and location of those supports and services and in accordance with the individual's ISP, the provider's mission statement, and the Department's mission statement and applicable regulations and standards of the Department:
(a) Rights and Dignity: Protection and enhancement of the rights of individuals, including but not limited to a focus on respect of the individual, support of an individual's culture and religion, assuring an individual's freedom of movement both at home and in the workplace, privacy, regular review of any need for assistance in decision-making, support and affirmation in the exercise of an individual's rights, safeguards whenever limitations of an individual's rights are necessitated, and assisting the individual to achieve an appearance which is appropriate to the individual's age and practices of the surrounding community, consistent with the individual's choice and preferences.
(b) Individual Control: Opportunities for exercising control and choice in all aspects of an individual's life, education necessary to assist the individual to make informed decisions, and assurance that the individual's opinions are listened to and treated seriously.
(c) Community Membership: Opportunities for individuals to participate in and contribute to the life of their community. Included are requirements that the provider shall:
1. assist individuals to participate in integrated recreational, social, and leisure acti-vities outside of the home in culturally typical settings and with other members of the community, consistent with the needs, desires, and choices of each individual;
2. assure that individuals have access to the same community services and resources used by other people;
3. provide a home that is part of a neighborhood, village, or community and that is situated among other buildings whose differences in external dimensions; proximity to the street; and general design features, layout, and style of decor do not emphasize the home's separateness or difference from the surrounding community in such a way as to stigmatize or devalue the individual. The home should offer safety, refuge, rest, satisfaction, a sense of place, and enable the individual to have ownership and control and to be at ease and prepared to receive visitors; and
4. locate work supports in an employment setting whose general design features do not emphasize the supports' separateness or difference.
(d) Relationships: Support to develop and sustain varied and meaningful relationships with family, friends, neighbors and co-workers. Included is support and education to individuals in expressing intimacy and sexuality in an appropriate and safe manner.
(e) Personal Growth and Accomplishments: Training, education, supports and services necessary to meet the goals articulated in the individual's ISP. Included are the requirements that the provider shall assure the assessment, training, and supports to assist the individual to acquire skills that increase self-reliance and that are necessary for desired and valued outcomes. These include but are not limited to paid employment in integrated settings in the community and the ability to maintain and control one's home.
(f) Personal Well-Being (Health, Safety, and Economic Security): Assurances that locations where supports and services are provided are safe; individuals are free from abuse, neglect and mistreatment; health care services meet the needs of the individual; and the individual is assisted in securing adequate economic resources to meet his or her needs. Included are the requirements that the provider shall:
1. promote optimal health of the individual through arrangements for coordinated routine, preventive, specialty, and emergency health care, professional clinical services, and availability of first-aid supplies;
2. comply with the Department's regulations and related guidelines in connection with the storage and use of prescription and over the counter medication;
3. assure that when the provider arranges or provides for meals, it shall store, prepare and serve food in a clean, safe, nutritious, typical, and appetizing manner. Such providers must assure that all individuals have nourishing and well-balanced meals, provided at typical times and frequencies, of typical variety, and chosen by the individual, unless there exist medical contraindications related to the health of an individual and these have been documented by a physician;
4. assure safety and well-being in both home and work environments, including imple-mentation of the safety plan in accordance with 115 CMR 7.08;
5. locate supports and services in a physical setting which meets all applicable local, state, and federal requirements pertaining to building construction, sanitation, health, safety, occupational health, and zoning;
6. comply with the applicable environmental requirements of 115 CMR 7.07;
7. prevent abuse and neglect, and comply with all applicable local, state, and federal reporting requirements;
8. comply with state and federal wage-hour requirements when individuals engage in any work which must be compensated; and
9. support each individual to obtain personal possessions, including an adequate supply of fashionable, seasonal clothing as necessary for the individual's health and comfort and consistent with the individual's choice and preferences, and assist each individual to maintain his or her clothing in a clean and well kept manner.


115 CMR 02.00: DEFINITIONS

2.01 (1-23-03) AMENDED

2.01: Definitions

As used in 115 CMR, the following terms shall have the following meanings:

Adaptive behavior means the quality of everyday performance in coping with environmental demands (what people do to take care of themselves and to relate to others in daily living).

Adequate means, with respect to services or supports, that they are in compliance with the regulations of the Department or of the agency of the Commonwealth with legal responsibility for licensure or regulation.

Antipsychotic medication means medication that is used to treat a thought disorder of psychotic proportions as defined in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, as revised or in subsequent editions and revisions, of the American Psychiatric Association, and which has been designated by medical authorities as belonging to the class of medications categorized as antipsychotic medication.

Appropriate means, with respect to a service or support or facility, that it is sufficient to provide the quality and quantity of staff, assistance, intervention, and environment to meet the individual's needs or objectives indicated in his or her ISP. With respect to an intervention strategy, "appropriate" means designed to achieve the desired goal or objective.

Area of service means the geographical area determined by the Department to be the locality for the organization, coordination, and provision of services and supports to an individual. The principle consideration is the preference of the individual. Other factors considered in determining an individual's area of service are:
(a) the individual's needs;
(b) the availability of appropriate services or supports within a given locality;
(c) the location of the individual's family and friends; and
(d) if the individual is under 22 years of age, the location of the city or town in Massachusetts responsible for providing special education under M.G.L. c. 71B, as amended.

Area office means the locally based office of the Department, and the employees therein, responsible for the organization, coordination, and provision of services or supports to individuals whose area of service falls within that office's geographical scope as designated by the Department.

Arranged by the Department means, with respect to services or supports, made available to the individual through referral by the Department to agencies, organizations, or persons other than facilities, services or supports operated, licensed, certified,or contracted by the Department.

Authorized physician means any physician who has been authorized by the head of a provider to order chemical restraint, mechanical restraint, or physical restraint, and to examine individuals in such restraint.

Authorized staff person means any member of the staff who is authorized by the head of the provider and trained to order mechanical restraint or physical restraint pursuant to 115 CMR 5.04(4)(b)2.

Available means, with respect to a facility, service or support, that the provider has the staff, resources, assistance, and space to meet the needs or objectives indicated in an individual's ISP and has not been designated for another individual with a higher priority of need for services or supports.

Behavior modification shall have the meaning set forth at 115 CMR 5.10.

Capable of Evacuation means the capability of an individual to exit his or her residence to grade level within 2½ minutes with or without assistance.

Certification means verification by the Department of the quality of providers' services and supports described at 115 CMR 8.01(3)(b) based upon their compliance with certification standards and quality outcomes for individuals set forth at 115 CMR 7.03 or the approval issued by the Department to a licensed provider with respect to certain behavior modification treatments.

Chemical restraint (see Restraint).

Commissioner means the Commissioner of the Department of Mental Retardation.

Community means a city, town, district, neighborhood, or other commonly recognized geographical or political area.

Community resources means workplaces, businesses, places of worship, social groups, consultants, health care facilities or professionals, places for recreation or entertainment, and other facilities, professionals, or supports generally available to the population-at-large within a community.

Competent in fact means being capable of making informed decisions in specific areas regarding the conduct of one's personal and/or financial affairs.

Consent means voluntary approval given by the word, or implied by the action of a person with adequate information and sufficient understanding to comprehend the consequences of the decision.

Department means the Department of Mental Retardation.

Designated representative means a person who has come forward as an advocate for the individual's interests, or whom the individual has, through consent, chosen as a representative, in connection with the development and review of the ISP, who is not otherwise disqualified from taking an appeal therefrom, and who is acknowledged by the Department to be the designated representative for the individual in connection with such service planning, in accordance with 115 CMR 6.31(3) or 6.41(3).

Emergency restraint means "restraint" as that term is used in M.G.L. c. 123B, § 15, and includes the three categories of emergency restraint, further defined below.
(a) Mechanical restraint. Mechanical restraint is any limitation of movement achieved by means of a physical device, subject to the following exceptions:
1. Mechanical restraint does not include devices needed to achieve proper body position, balance, or alignment;
2. Mechanical restraint does not include health-related protections ordered by a physician if absolutely necessary during a specific medical or dental procedure or if necessary for the individual's protection during the time that a medical condition exists.
3. Mechanical restraint does not include a device used to limit movement pursuant to a behavior modification plan reviewed and approved in accordance with 115 CMR 5.10.
(b) Physical restraint. Physical restraint is any limitation of movement achieved by means of direct bodily contact between the individual and staff, subject to the following exceptions:
1. Physical restraint does not include comforting or gentle holding of an individual by a staff person for no more than five minutes, provided that if physical force is used to overcome the active resistance of the individual held or to interrupt then-occurring movement by the individual toward a particular destination, or more than two staff persons are holding the individual, then the procedure is not a comforting or gentle holding but instead constitutes physical restraint, regardless of the length of time the individual is being held.
2. Physical restraint does not include physically escorting or guiding the individual to a particular destination, provided that if physical force is used to overcome the active resistance of the individual held or to interrupt then-occurring movement by the individual toward a particular destination, then the procedure is not an escort or a guide but instead constitutes physical restraint.
3. Physical restraint does not include bodily holding as a health-related protection ordered by a physician if necessary during a specific medical or dental procedure or for the individual's protection during the time that a medical condition exists.
4. Physical restraint does not include a limitation of movement pursuant to a behavior modification plan reviewed and approved in accordance with 115 CMR 5.10.
(c) Chemical restraint. Chemical restraint is the non-consensual use of medication, not for treatment, but for the purpose of impairing the individual's freedom of movement, subject to the following exceptions:
1. Chemical restraint does not include administrations of medication necessary to prevent immediate grievous bodily harm or death.
2. Chemical restraint does not include administrations of medication determined by a licensed physician, who has examined the individual, to be necessary to prevent immediate, substantial, and irreversible deterioration of mental health.
3. Chemical restraint does not include administrations of antipsychotic medication for treatment purposes in accordance with the requirements and procedures for extraordinary treatment that have been established by the Massachusetts Supreme Judicial Court in Rogers v. Commissioner of the Department of Mental Health and in related cases.

Facility (formerly referred to as a "state school" and referenced in M.G.L. c. 19B, §§ 7 through 10, 12 as such) means, unless otherwise specified, any of the facilities operated by the Department listed in 115 CMR 3.03. This definition does not apply within the context of 115 CMR 3.06 governing charges for care or within the context of 115 CMR 2.01: Community resources.

Facility Director means the chief executive officer of a facility and also is intended to mean the "superintendent" referenced in M.G.L. c. 19B, §§ 8, 10 and throughout M.G.L. c.123B.

Family means parents, foster parents, spouses, siblings, and others who perform the roles and functions of family members in the life of an individual, including persons in a relationship of mutual support with an individual that is exclusive and expected to endure over time.

Generic service means services, supports, or treatment options generally available to the population-at-large with or without special accommodations for persons with mental retardation.

Goals mean long-range outcomes generally expected to be achieved by an individual within five years and stated in measurable terms so that their attainment can be determined. Goals are developed from an evaluation of the individual's present performance, abilities and desires as these relate to what society expects of persons of the same age and culture who do not have disabilities.

Governing board means the group of individuals that constitute the governing body of a provider.

Guardian means, with respect to persons under the age of 18 years, a natural or adoptive parent, or the individual or agency with legal guardianship of the person; and with respect to persons 18 years of age and older, the individual, organization or agency, if any, that has been appointed legal guardian of the person by a court of competent jurisdiction.

Habilitation means the process by which an individual is assisted to acquire and maintain those life skills necessary to cope more effectively with personal and environmental demands or to improve physical, mental, and social competencies.

Head of the provider means the person with executive responsibility for the operation of the provider's agency, services, or supports. Where a provider operates at more than one location, "head of the provider" includes the person with responsibility for the operation at a particular location. Where the provider is a facility, the head of the provider is the facility director.

Hold or holding means any limitation of movement of an individual by bodily contact or mechanical device which falls outside of the definition of restraint (because it meets the criteria of one of the exceptions to physical or mechanical restraint set forth at 115 CMR 2.01: Emergency restraint.

Individual means, except where otherwise specified, a person receiving services or supports provided, purchased, or arranged by the Department.

Individual service plan or ISP means a written plan of services or supports for an individual, which is developed, implemented, reviewed, and modified according to the requirements of the Department's regulations on individual service plans.

Intervention strategy means a training or teaching procedure, a manipulation or change of environment or the provision of supports designed to teach or assist an individual to achieve a goal or a specific objective. Depending on its content, an intervention strategy may also fall within the definition of a behavior modification intervention set forth under 115 CMR 5.10.

Knowing objection means the act of an individual in rejecting a choice, made with a reasonable degree of awareness of the likely consequences of his or her act.

Least restrictive means those settings, modes of service, and styles of living or working that are most similar to and most integrated with what is typical and age-appropriate in the community, and which interfere the least with the individual's independence.

Legal representative or legally authorized representative means, with respect to an individual, an attorney representing the individual in connection with a particular matter, a court appointed trustee, conservator, or guardian ad litem representing the interests of the individual in connection with particular matters, or the individual's guardian.

Legally competent or presumed competent means, for individuals 18 years of age or older, not having been declared by a court to be incapable of making informed decisions with respect to the conduct of one's personal and/or financial affairs.

License means the legal authorization to provide services or supports described in 115 CMR 8.02 (1) to persons with mental retardation required by M.G.L. c. 19B.

Licensee means the individual, agency, or other legal entity licensed by the Department.

Limitation of movement or LOM means any restriction on the movement of an individual for the protection of that individual or others or in accordance with a behavior modification plan meeting the requirements of 115 CMR 5.10. Limitations of movements can be categorized on the basis of the reason for the limitation. Each category has its own requirements for implementation of the LOM. The five categories are:
(a) Emergency restraint; (See 115 CMR 2.01; 5.04);
(b) Transportation restraint; (See 115 CMR 5.04; 5.05);
(c) Support needed to achieve proper body position, balance, or alignment; (See 115 CMR 22.22(1)(a));
(d) Health-related protections; (See 115 CMR 22.22(1)(b), (2)((c));
(e) Holds implemented in accordance behavior modification plans; (See 115 CMR 2.30; 5.10);

Mechanical restraint (See Emergency Restraint)

Mental retardation means, consistent with the currently (1994) accepted clinical authority of the American Association on Mental Retardation, substantial limitations in present functioning. Mental retardation begins before age 18, and is manifested by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skills areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work. A person with mental retardation may be considered to be mentally ill as defined in 104 CMR (Department of Mental Health), provided that no person with mental retardation shall be considered to be mentally ill solely by reason of his or her mental retardation.

Minor means a person under the age of 18.

Non-self-medicating means personally using medication in the manner directed by the prescribing practitioner only with assistance or direction by program or facility staff, in accordance with Department standards. (See "self-medicating".)

Objective means short term outcomes stated in behavioral or otherwise measurable terms, expected to be achieved through the provision of a particular service or support, the implementation of a particular intervention strategy, or a change of modification of the environment.

Physical restraint (See Emergency Restraint)

Provided by the Department means made available to the individual directly through employees of the Department at Department expense.

Provider means the individual, agency or other legal entity with day-to-day responsibility for the operation of services or supports or facilities regulated by the Department by law or contract. In accordance with the foregoing definition, a provision which applies to "providers" applies with equal force to the Department's service, supports, or facilities, unless otherwise specified.

Purchased by the Department means made available to an individual through a contract between the Department and a private or other non-Departmental entity.

Region means, depending on the context:
(a) a grouping of area offices as determined by the Commissioner;
(b) the geographic area represented by such a grouping; or
(c) the office established by the Commissioner as appropriate to supervise area offices within a grouping of area offices and to perform administrative or service functions for the geographic area represented by the grouping.

Research means a systematic investigation designed to develop or contribute to generalizable knowledge and involving access to human subjects or private information, with the exceptions set forth in 115 CMR 10.00.

Self-medicating means personally using medication in the manner directed by the prescribing practitioner, without assistance or direction by program or facility staff, in accordance with Department standards. A verbal reminder that the time for taking a dose of medication has arrived does not constitute assistance or direction by program staff.

Service coordinator means the person designated by the Department to arrange, coordinate, or monitor, or to remain informed about, services or supports provided, purchased, or arranged by the Department for a particular individual and to be responsible for the development of an ISP for the individual.

Services means a system of formalized supports, generic or specialized.

Supports means those resources and strategies that promote the interests and causes of individuals with or without disabilities; that enable them to access resources, information, and relationships inherent in integrated work and living environments; and that result in their enhanced independence, productivity, community integration, and satisfaction.


REGULATORY AUTHORITY

9/8/95 115 CMR 2.00: M.G.L. c. 19B, § 14; c. 123B, §§ 2, 3, 8.



This information is provided by the Department of Developmental Services.