651 CMR 12.10 - Administrative Review: Procedure

If an Applicant or Sponsor disagrees with the EOEA finding(s) or action, it may request an Administrative Review by submitting its request, via certified mail, return receipt requested, together with a detailed written rebuttal of the findings within ten days of receipt of the notice of noncompliance.

(1) EOEA Review.

(a) Consultation. The Applicant or Sponsor may consult with the EOEA investigator about the findings and any action undertaken or proposed by EOEA. This may take the form of an exit conference at the conclusion of the compliance review, and, if this conference has been held prior to issuance of the findings, the administrative review process will begin with the Informal Review.

(b) Informal Review. An Applicant or Sponsor who disagrees with an EOEA Compliance Review finding or the proposed action following the consultation or after issuance of the findings, may request informal review by the Director of the Assisted Living Certification Unit. The request for Informal Review must be submitted within ten days of the issuance of the findings, or ten days from the consultation, whichever is later. The Informal Review shall be scheduled within ten days of the receipt of the request for review, and shall consist of an informal presentation of the position of the Applicant or Sponsor, and review of any applicable written documents. If the matter is settled, the agreement shall be reduced to writing. If it is not, a written decision shall be issued within ten days.

(c) Informal Hearing . An Applicant or Sponsor who disagrees with the decision of the Informal Review may request an Informal Hearing before an Assistant Secretary or his or her designee. Such request shall be delivered by hand or by certified mail, return receipt requested, and must be submitted within ten days of the issuance of the Informal Review decision. EOEA shall schedule an Informal Hearing within 15 days after receipt of the request for Informal Hearing. The Informal Hearing shall consist of an informal presentation of the position of the parties and any applicable written documents. If the matter is settled at the Informal Hearing, EOEA and the Applicant or Sponsor shall reduce the settlement to writing. If the matter is not settled at the Informal Hearing, an Assistant Secretary or his or her designee shall review all material presented and within 30 days after the Informal Hearing, forward a decision to the Applicant or Sponsor.

(2) Formal Hearing.

(a) Initiation of Appeal. When EOEA has denied, revoked, suspended, or modified Certification, the Applicant or Sponsor may appeal the final decision issued after the Informal Hearing by filing a notice of claim for adjudicatory proceeding with the Division of Administrative Law Appeals pursuant to 801 CMR 1.01: Formal Rules, and by filing a copy of the notice with the General Counsel of EOEA. The appeal shall be filed no later than 21 days after the decision on the Informal Hearing is issued.

(b) Scope of Review. If the hearing officer designated by the Division of Administrative Law Appeals finds by substantial evidence any single ground for denial, revocation, modification, suspension or refusal to renew an Application or Certification which ground constitutes a failure or refusal to comply with the requirements of M.G.L. c. 19D, St. 1994, c. 354 or 651 CMR 12.00, the hearing officer shall uphold the decision to deny, revoke, modify, suspend or refuse to renew such Application or Certification.

(c) Decision and Action by the Secretary of EOEA. The decision of the hearing officer shall be a tentative decision under 801 CMR 1.01(11)(c): Tentative Decisions. Within 30 days of receipt of the decision, the Secretary shall render a final decision to approve, modify, or disapprove the hearing officer's decision. The Appellant may submit a written statement to the Secretary concerning the tentative decision within seven days after receiving it, but shall not be entitled to a further hearing before the Secretary. The decision of the Secretary shall be the final administrative decision, and shall bind the parties unless the Appellant commences an action to obtain judicial review within 30 days after the date of the final decision.

(3) Enforcement. Nothing in 651 CMR 12.10 shall limit EOEA's ability to exercise its responsibility and authority to enforce the disputed regulation during the Administrative Review process. All completed reports, responses, and notices of final action may be made available to the public at the department during business hours together with the responses of the applicants or the sponsors thereto. Nothing in 651 CMR 12.10 shall limit EOEA's responsibility to periodically review the Residence to determine whether it has achieved compliance with the statutory and regulatory requirements, and, if so, to issue the Certification subject to reasonable conditions.

(4) Notification. Whenever EOEA initiates an action to deny, suspend, modify, refuse to renew or revoke a Certification pursuant to 651 CMR 12.09(4), it shall transmit a notice to each Resident, or Legal Representative and appropriate governmental agencies which:

(a) Describes the action to be taken;

(b) Suggests the general timetable for the enforcement process and its possible effect on Residents; and

(c) Confirms that a second notice will be transmitted if the relocation of the Residents is imminent.

Whenever it appears likely that a Certification denial or revocation action commenced pursuant to 651 CMR 12.09(4) will result in the need for relocation of Residents, EOEA shall transmit a second notice to each Resident, or Legal Representative and appropriate governmental agencies informing each party of:

(d) The status of the enforcement action;

(e) Residents' rights under the Residency Agreement; and

(f) The availability of information to Residents from EOEA and other sources regarding available legal assistance and assistance in relocation.

Notes

651 CMR 12.10

Amended by Mass Register Issue 1279, eff. 1/30/2015. Amended by Mass Register Issue 1330, eff. 1/13/2017.