940 CMR 4.00
Long term care facilities
OFFICE OF THE ATTORNEY GENERAL
940 CMR 4.00:
LONG TERM CARE FACILITIES
Section
Definitions
Unfair or Deceptive Acts or Practices: General
Non-Discriminatory Access to Quality Care
Admission Contracts
Charges
Privacy and Other Personal Rights
Personal Funds and Belongings
Medical Treatment and Information
Discharge and Transfers
Severability
Effective Date
The Attorney General of the Cpmmonwealth of Massachusetts promulgates 940 CMR
4.00 pursuant to authority grante<;I to him under M.G.L. c. 93A, § 2(c). 940 CMR 4.00 is
designed to promote the protecti,cin, comfort, health and well-being of consumers of services
provided by long-term care facilities, to be consistent with existing legal standards, and to be
as responsive as possible to the constraints and administrative realities under which long term
care facilities operate.
940 CMR defines certain unfair or deceptive acts or practices. However, 940 CMR is not
intended to be all inclusive as to the types of activities prohibited by M.G.L. c. 93A § 2(a)
and 940 CMR does not legitimize acts not specifically prohibited by 940 CMR 4.00. For
example, long term care residents should be .protected against all forms of discrimination,
including, but not limited to, discrimination on the basis of disability or source of payment.
940 CMR 4.00 is designed to supplement existing statutes and regulatjons; the Attorney
General plans to work and cooperate with other state and federal agencies in enforcing
940 CMR 4.00 and other regulations.
· 4.01:
Definitions
Additional Services: services provided by a long-term care facility that are not included in
the basic per diem rate or are not included under Titles XVIII or XIX of the Social Security
Act
Administrator: the person charged with the general administration of a nursing home, rest
home, or other long-term care facility, and his/her agents or employees, as further defined in
105 CMR 150.000: Licensing of Long Term Care Facilities.
Clear- and Conspicuous Tvoe: shall mean printed typeface no smaller than 12 point print.
Emergency: a situation in which the resident's medical or psychological condition requires
immediate medical attention or treatment; the existence of an emergency shall be determined
by a physician, except that if a physician is not readily available, the existence of an
emergency may be determined ·by the person on the premises of the long-term care facility
who is in charge of the facility's medical or nursing services at the time that the situation
giving rise to the emergency occurs or is about to occur.
Facilitv: a long-term care facility as defined in 940 CMR 4.01(9).
Legal Representative: shall mean, for any resident adjudged incompetent under the laws of
the Commonwealth, the person dulyappeinted by-a-cowt -Of competent jurisdiction· to act on
the resident's behalf, and, for any resident who has not been adjudged incompetent by a state
court, any legal-surrogate designated in accordance with state law.
(
.
940 CMR - 29
OFFICE OF THE ATTORNEY GENERAL
Licensee: any person, corporation, or other entity holding at least a 10% ownership interest
in a facility that is licensed by the Department of Public Health as a long-term care facility
and his/her or its agents or employees.
Long-Term Care Facility: any institution or distinct part of an institution, whether conducted
for charity or profit, which is advertised, announced or maintained for the express or implied
purpose of providing three or more individuals admitted thereto with long-term resident,
nursing or convalescent care, supervision and care incident to old age for ambulatory persons,
or retirement home care for elderly persons; the term long-term care facility shall include but .
not be limited to residential care facilities, convalescent or rest homes, infirmaries maintained
in towns, and charitable homes for the aged; an institution licensed by the Department of
Public Health to provide chronic disease or rehabilitative services under M.G.L. c. 111, § 51
is not a "long term cru.:e facility" hereunder except, however, if and when any such institution
provides or has provided chronic disease or rehabilitative care and services to one or more
individuals for a period of 60 days .. or longer, such institution shall be deemed a long term
care facility hereunder with resp~ct only to such individual or individuals residing in it for
60 days or longer and only for, the purpose of affording such individual or individuals the
protections set forth in 940 CMR 4.06(1), (3)(d), (4) through (6), (9), (10), (12) through (21);
4.07(1) through (3), (8), (9), (11), (12); 4.08(2) through (13), (15) through (17); and 4.09(6)
through (8).
·
Private Facility: a long-term care facility that admits, or provides services to, only private
or self-paying residents and does not provide services pursuant to, or have any contract with
Medicare, Medicaid, SSI, Veteran's Benefit or any other public benefit program.
Private Resident: a resident of a· long-term care facility whose stay in the facility at any
given time is not paid for, either in whole or in part, by public funds pursuant to the Social
Security Act (Medicaid or Medicare), SSI, Veteran's Benefit, or any other public. benefit
program.
Resident:
any individual or patient residing or rece1vmg care in a long-term care
facility;except, however, any individual or patient residing or receiving care in an institution
licensed by the Department of Public Health under M.G.L..c. 111, § 51 to provide chronic
disease or rehabilitative services for a period of 60 days or longer shall be deemed a
"resident" and shall be entitled to the protections afforded by 940 CMR 4.06(1), (3)(d), (4)
through (6), (9), (10), (12) though (21); 4.07(1) through (3), (8), (9), (11), (12); 4.08(2)
through (13), (15) through (17); and 4.09(6) through (8).
Social Security Act: Titles XVIII and XIX of the Social Security Act.
Third Partv: shall mean a licensee or administrator, employee or agent of the licensee or
administrator, next of kin, son, daughtei:, granddaughter, grandson, niece, nephew, social/case
worker, or duly designated agent of the Department of Public Health, the Department of
Mental Retardation, or the State Long-Term Care Ombudsman.
Treatment: any medication, drug, test or procedure conducted or administered for the purpose
of diagnosing or treating a physical or mental illness or condition.
Written Acknowledgement: a signed statement by a resident or his/her legal representative,
preserved in the resident's personal· file, stating that he/she has received a copy of the-
documents required to be tendered to him/her; if a resident is unable or unwilling to sign
his/her name, the licensee or administrator-may satisfy the requirement of-wnuen
acknowledgement by placing a wri''''D and dated statement in the resident's personal records
which indicate~ receipt o,f the docv .. •3nts and the resident's ability or unwillingness to sign
his/her name; such statement mu:;, be signed by the person who tendered the required
documents to the resident and by a witness thereto and must include a detailed explanation
of the resident's)nability or unwillingness to sign his/her name.
940 CMR - 30
OFFICE OF THE ATTORNEY GENERAL
Written Authorization:
a written statement, signed by the resident or his/her legal
representative, in which the resident authorizes the licensee or administrator, the resident's
legal representative or a third party to perform certain specified acts on behalf of the resident;
the authorization shall be dated and shall include:
the specific act or acts authorized by the resident;
the period of time that the resident authorizes the particular act or acts, if applicable;
and
(c)
the name of the person to whom certain records or other information is authorized
to be made available; if the resident is unable to sign his/her name, a licensee or
administrator or a third party may satisfy the requirements of a written authorization by
submitting a dated statement that contains the information required by 940 CMR
4.01(18)(a) through (c); the statement must also include the name and signature of the
person to whom the resident made the oral authorization and the name and signature of ·
a person who has witnessed the resident's oral authorization.
Written Request: a statement signed by the resident or his/her legal representative that states
that the resident requests one or more specified services for a certain period of time; such a
statement must include the charge for each such service; if a legal representative is not
available to sign the statement and if the resident is unable to sign his/her name, a licensee
or administrator may satisfy the requirements fcir a written request by placing in the resident's
. personal records a written and dated statement, signed by both the person receiving the
request for the service or services and a witness to that request, that states:
·
the service or services requested by the resident;
the charge for such service or services, if any;
( c) the period of time for which the resident has requested such service or services; and
(d)
that the resident was unable to sign his/her name to request such service or services
and that his/her legal representative was not available to sign the written request
Unfair or Deceptive Acts or Practices: General
It shall be an unfair or deceptive act or practice, in violation of M.G.L. c. 93A, § 2, for
a licensee or an administrator:
to fail to comply with any existing state or federal statute, rule or regulation which
provides protection to or for residents or prospective residents of long-term care facilities;
to fail or refuse to inform the resident, both orally and in writing, in clear and
conspicuous type, in a language the resident understands, as evidenced by the resident's
written acknowledgement, and to inform his/her legal representative or next of kin:
that the facility has written policies, including, but not limited to, policies regarding
the rights and responsibilities of residents; and
the subject of each such policy;
(3) to fail or refuse to furnish a copy of any policy referred to in 940 CMR 4.02(2), printed
in clear and conspicuous type, to the resident and his/her legal representative or next of kin
as evidenced by the resident's written acknowledgement; the disclosures required hereby shall
be made no later than 30 days after the effective date of 940 CMR 4.00 for those residents
then residing in the facility, and for new residents, at the time of their admission to the
facility; disclosure shall also be made annually thereafter at such times as the policies are
reissued or amended and upon request by the resident or his/her legal representative or next
of kin at any time during the resident's stay in the facility;
940 CMR - 31
OFFICE OF IBE ATTORNEY GENERAL
( 4)
to fail or refuse to inform the resident both orally and in wnnng, in clear and
conspicuous type, in a language the resident understands, as evidenced by the resident's
written acknowledgement, and his/her legal representative or next of kin that the Attorney
General has promulgated regulations relating to the conduct of licensees and administrators,
and to fail or refuse to furnish a copy of 940 CMR 4.00 printed in clear and conspicuous
type, to any resident and his/her legal representative or next of kin, as evidenced by the
resident's written acknowledgement; the disclosures required hereby in 940 CMR 4.02(3)
shall be made within 30 days after the effective date of 940 CMR 4.00 for those residents
then residing in the facility; for new residents, such disclosures shall be made at the time of
their admission to the long-term care facility; disclosure to each resident shall also be made
annually thereafter and at any time the resident makes a request for 940 CMR 4.00; in the
case of a resident adjudged incompetent, the facility may satisfy the requirements of
940 CMR ~.02(2) through (4) by making a reasonable effort to inform the resident of his/her
rights under 940 CMR 4.00 and by satisfying the requirements pertaining to notification of
his/her legal representative;
to fail or refuse, at the time of admission and, again at the earliest date on which the ·
facility has reason to believe that the resident may become eligible for the Massachusetts
Medical Assistance Program (hereafter "Medicaid"), if later, to inform the resident, both
orally and in writing, in a language the resident understands, and inform his/her legal
representatives or next of kin, of the requirements and procedures for establishing eligibility
for services provided by Medicaid, including the resident's right to complete a Division of
Medical Assistance assessment of spousal assets form as of the date of admission; or to fail
or refuse to provide a Division of Medical Assistance Medicaid assessment form and
application form upon admission and again later, if requested by the resident, his/her legal
representative or next of kin;
(6) to· fail or refuse to post prominently and conspicuously a copy of 940 CMR 4.00 and
· a copy of the facility's written policies relating to the rights and responsibilities of residents,
in each identifiable unit in the facility as defined in 105 CMR 150.000; such regulations and
policies shall be printed in clear and conspicuous type;
to fail or refuse to inform the resident, both orally and in writing, in clear and
conspicuous type, in a language· the resident understands, and to fail or refuse to inform
his/her legal representative or next of kin upon the resident's admission and at the time of
transfer, if any, of the duration of Medicaid's bed-hold policy and the facility's policy
regarding medical, therapeutic and personal leaves of absence and the Medicaid requirement,
in the event that any such leave exceeds the bed-hold period, that the facility readmit the
resident immediately to the first available bed in a semi-private room if the resident requires
the facility's services;
(8) in the case of a private facility, to fail or refuse to disclose in writing to a resident and
his/her legal representative or next of kin, that the resident may be transferred or discharged
if the resident ceases to be a private resident; the disclosure required hereby in 940 CMR
4.02(9) shall be made at the time of the resident's admission to the facility, annually
thereafter and upon request of the. resident, his/her legal representative or next of kin;
to fail or refuse to respond promptly and fully to all inquiries relating to any of the
policies, regulations or procedures established by the facility which are made by a resident,
his/her legal representative or next of kin at any time during the resident's stay in the facility.
4.03: Non-Discriminatorv Access to Long-Term Care
It shall be an unfair and deceptive act or practice, in violation of M.G.L. c. 93A, § 2, for
a licensee or an administrator of a long-term care facility that is a party to a Medicaid
provider agreement:
940 CMR - 32
OFFICE OF THE ATTORNEY GENERAL
to discriminate against any Medicaid recipient or person eligible or soon-to-be-eligible
to receive Medicaid benefits, who is seeking admission to the facility, on the basis of his/her
current or anticipated source of payment;
to require, directly or indirectly, any resident or applicant for admission to waive his/her
rights to benefits under the Medicaid program. Examples of such impermissible conduct
include, but are not limited to:
requiring an applicant to agree to pay private rates for a specified period of time
prior to applying for Medicaid benefits;
charging, soliciting, accepting, or receiving, in addition to any amount otherwise
required to be paid pursuant to the Medicaid program, any gift, money, donation, or other
consideration either as a precondition of admitting or expediting the admission of a
Medicaid eligible applicant to, or as requirement for a resident's continued stay in, the·
facility;'
.
to fail or refuse to provide an appropriate admission application form to each person,
his/her legal representative or next of kin or to a third party authorized to act for the person ·
seeking admission to a facility, immediately upon request, or, if the request is made in
writing or by telephone, to mail such application form within two business days following
receipt of the request therefor;
· ·
to render or offer assistance in the preparation of applications or in any facet of the
admission process to private pay applicants in a manner greater than that rendered or offered
to Medicaid recipients;
Nothing contained herein shall be construed to bar:
any religious .or denominational institution or organization established for charitable
or educational purposes, which is operated, supervised or controlled by or in connection
with a religious organization from limiting admission to or giving preference to persons
of the same religion or denomination, or from making such selection as is calculated by
such organization to promote the religious principles for which it was established or is
maintained, provided, however, that such admissions or preferences shall not be based on
any qualified applicant's status or lack of status as a recipient or prospective recipient of
Medicaid; or
.
any organization operated for charitable purposes and within the constraints of an
existing corporate charter pursuant to 26 U.S.C. § 50l(c)(3), from limiting admission to
or giving preference to certain qualified applicants in accordance with the provisions of
said charter, provided, however, that such admissions or preferences shall not be based
on any qualified applicant's status or lack of status as a recipient or prospective recipient
of Medicaid.
4.04: Admission Contracts
It shall be an unfair or deceptive act or practice, in violation of M.G.L. c. 93A, § 2, for
a licensee oi: an administrator:
(1) to require a resident or a prospective resident, his/her legal representative or next of kin,
as a condition of admission, expedited admission, or continued stay in the facility, to provide
a third party guarantee of payment to the facility;
to require a resident or a prospective resident, his/her legal representative or next of kin,
as a condition of admission, expedited admission, or continued stay in the facility, to
designate a third party to be responsible for giving authorization and consent on behalf of any
resident, unless such resident has been adjudged incompetent by a court of law; however,
nothing in 940 CMR 4.04(1) and (2) should be construed to require that an applicant be
admitted who has no source of payment;
940 CMR - 33
OFFICE OF TIIE ATTORNEY GENERAL
to require a resident or a prospective resident, his/her legal representative or next of kin,
as a condition of admission, expedited admission, or continued stay in the facility, to agree
to waive or limit the facility's liability for loss of personal property or any injury suffered as
a result of negligence on the part of the administrator or of the facility's employees or agents;
( 4)
to require a resident or a prospective resident, his/her legal representative or next of kin,
as a condition for admission, expedited admission, or continued stay in the facility, to agree
to treatment by a physician chosen by the facility or otherwise to limit the resident's right to
choose his/her attending physician;
to require a resident or a prospective resident, his/her legal representative or next of kin,
as a condition of admission, expedited admission, or continuing stay in the facility, to
purchase medications at or from a pharmacy chosen by the facility, or to otherwise limit the
resident's right to select a pharmacy of his/her choice, provided that the prescription complies
with all relevant regulations governing pharmacy labeling;
(6) to include, as part of the facility's admission contract, any documents printed
in less than 12 point print, and
other than in a language which the prospective resident understands;
(7) to require a resident or a prospective resident, his/her legal representatlve or next of kin,
to agree, as a condition of admission, expedited admission, or continued stay in the facility,
to pay attorney's fees or any other costs incurred in collecting payment from the resident;
(8) to require a resident or a prospective resident, his/her legal representative or next of kin,
as a condition of admission, expedited admission, or continued stay in the facility at any time
after admission, to waive any benefit or right conferred by any statute or regulation intended
to provide protection to or for residents of any long-term care facility;
(9) without limiting the provisions of 940 CMR 4.05(10), to require a resident or a
prospective resident, his/her legal representative or next of kin, as a condition for admission,
expedited admission, or continued stay in the facility, to.provide any non-refundable deposit.
Charges
It shall be an unfair or deceptive act or practice, in violation of M.G.L. c. 93A, § 2, for
a licensee or administrator:
(1) to fail or refuse to inform a resident, both orally and in writing, in clear and conspicuous
type, in a language the resident understands, and to fail or refuse to inform his/her legal
representative or next of kin ~t the time of admission to the facility, and at least every year
thereafter during the resident's stay, of any of the following:
services available in the facility and charges for those services, including any charges
for services not covered under Medicare and Medicaid or by the facility's per diem rate;
the existing basic per diem rate, applicable to the resident, charged by the licensee
and all the services included in that rate;
(c)
except in the case of private residents, the services available to the resident that are
covered by the Social Security Act, but that are not included in the basic per diem rate
(e.g., telephone, television, personal clothing, etc.); however, such disclosures shall be
made to each private resident at the time when he/she ceases to be a private resident;
to fail or refuse to inform each resident, both orally and in writing, in clear and
conspicuous type, in a language the resident understands, and to fail or refuse to inform
his/her legal representative or next of kin when changes are made to the items and services
specified in 940 CMR 4.05(1);
to impose, seek to impose, or collect a charge in addition to the basic per diem rate for
services included in the basic per diem rate;
940 CMR- 34
OFFICE OF THE A TIORNEY GENERAL
( 4)
to charge, or collect payment from, a resident, his/her legal representative or next of kin
for services covered by the Social Security Act for that resident;
to fail or refuse to provide all the services included in the basic per diem rate, except
those services not medically required by the resident which are included in the basic per diem
rate;
to charge for services not actually rendered to a resident, except that a licensee or
administrator may charge for medical services included in the basic per diem rate that are not
medically required by the resident during a particular billing period; or to fail to return to the
resident, his/her legal representative, or, when appropriate, the resident's estate, any advance
payments made for services not rendered as a result of the resident's death or transfer from
the facility; however, the facility may require a private resident or a third party acting on
·his/her behalf to give two days advance notice of a voluntary transfer;
(7) to provide and charge for additional services, except for medical services required in an
emergency, which are not included in the per diem rate, without prior written request for
those services by the resident or his/her legal representative or next of kin;
(8) to fail or refuse to permit a resident, his/her legal representative or next of kin to
receive, upon request, a reasonable explanation of the charge[s] or bill[s] for the resident's
·care in the facility, regardless of the source of payment;
(9) ill the case of a private resident, to mcrease the basic per diem rate without written
notification to the resident and his/her legal representative of the higher rate; such notification
shall be given not less than. 60 days prior .to the effective date of the higher rate so as to
insure an orderly transfer of the resident if the resident cannot afford the higher rate.
to demand that any private resident pay, at or prior to his/her admission to the facility,
any security deposit that is greater than the total of one month's per diem charges or to fail
or refuse:
to give the resident, his/her legal representative or next of kin a signed receipt
indicating the amount of the security deposit, the date received, and the employee or
agent of the facility who received it;
to place said deposit in an interest-bearing escrow account in a bank located within
the Commonwealth under such terms that place such deposit beyond the claim of
creditors of the facility;
(c)
to provide the resident, his/her legal representative or next of kin with the name of
the bank and the account number where the security deposit is located;
(d)
to preserve the security deposit intact unless the resident fails to pay for services
which he/she requested, which were provided by the facility, and which remained unpaid
after having been invoiced in accordance with the facility's regular procedure for two
successive months; however, a licensee or administrator may apply the security· deposit
to outstanding charges for a resident who has spent down his/her assets and is otherwise
eligible for Medicaid without invoicing for two successive months;
(e)
to return said deposit, plus accrued interest, to the resident, or his/her legal
representative or estate within 30 days of said resident's discharge, transfer or death,
unless deductions, duly accounted for, have been made in accordance with 940 CMR
4.05(10)(e);.
(f) to return said deposit, plus accrued interest, to the resident, or his/her legal
representative or estate, within 30 days of receipt of notice of the resident's eligibility for
Medicaid, provided that the resident is eligible for Medicaid coverage of long term care
services.
4.06: Privacy and Other Personal Rights
It shall be an unfair or deceptive act or practice, in violation of M.G.L. c. 93A, § 2, for
a licensee or an administrator:
,
·
940 CMR - 35
OFFICE OF TIIE ATTORNEY GENERAL
to fail or refuse to assure a resident privacy during medical examination or treatment
or during care for his/her personal needs such as bathing, dressing and toileting;
to fail or refuse to permit married residents living in the same facility to share a room,
if both spouses so consent;
to fail or refuse to permit immediate access to a resident, subject to the resident's right
to deny or withdraw consent at any time, by the following:
the resident's individual physician;
any representative of the Secretary of the U. S. Department of Health and Human
Services;
(c)
any duly appointed designee of the State Long ·Term Care Ombudsman;
(d)
any representative of a state agency responsible for maintaining the health, safety·
and welfare of such residents, including but not limited to
1.
the agency responsible for facility licensure or reimbursement;
2.
the agency responsible for the protection and advocacy system for
developmentally disabled individuals;
3. the agency responsible for the protection and advocacy system for mentally ill
individuals;
to fail or refuse to permit immediate access to any resident, subject to the resident's
right to deny or withdraw consent at any time, by immediate family or other relatives of the
resident;
·
to fail or refuse to permit immediate access to any resident, subject to reasonable
restrictions and the resident's right to deny or withdraw consent at any time, by others who
are visiting with the consent of the resident;
to fail or refuse to permit reasonable access to any resident by any entity or individual
that provides health, social, legal, or other services to the resident, subject to the resident's
right to deny or withdraw consent at any time;
to fail or refuse to permit representatives of the State Long-Term Care Ombudsman or
a representative of a community advocacy group certified by the Exec~tive Office of Elder
Affairs, to examine a resident's clinical records with the permission of the resident or the
resident's legal representative;
to fail to allow a resident to communicate privately with a duly designated representative
of the State Long-Term Care Ombudsman;
to fail or refuse to permit a resident private and unrestricted communications with
his/her spouse, physician, representative of the clergy, attorney or legal representative;
to fail or refuse to assure a married resident privacy during visits by his/her spouse;
(11) to fail or refuse to provide at least 48 hours advance written notice, excluding
weekends and holidays, to a resident before the resident's roommate is changed, except .in
an emergency .situation;
to fail or refuse to assure the resident the right to meet with or participate in activities
of social, religious and community groups at his/her discretion, provided that such activities
do not interfere with the rights of other residents in the facility;
(13) to fail or refuse to provide a resident with privacy in written communications, which
includes:
(a) the right to send and promptly receive mail that is unopened;
the right to have access to stationery, postage and writing implements at the
resident's own expense;
940 CMR - 36
OFFICE OF THE ATTORNEY GENERAL
to fail or refuse to assure reasonable access to a telephone where calls can be made and
received without being overheard;
to fail or refuse to permit a resident to present grievances free from restraint,
interference or coercion, discrimination or reprisal, on both his/her own behalf or on behalf
of others, to the facility's staff, to government officials ineluding, but not limited to, a
representative of the Department of Public Health or a duly appointed designee of the State
Long-Term Care Ombudsman, if applicable, or to any other person;
to fail to take prompt action to resolve any grievance presented by a resident or his/her
legal representative, or to fail to respond promptly, to the extent possible, to all requests or
inquiries made by a resident, his/her legal representative, or a duly appointed designee of the
State Long Term Care Ombudsman;
to fail to provide and post, in each identifiable unit, or, in the case of institutions
providing chronic disease or rehabilitative services to individuals for 60 days or more, in each
unit in which such individuals reside, the names, addresses and telephone numbers of all
pertinent State agencies such as the Department of Public Health, Division of Medical
Assistance, the State Long-Term Care Ombudsman, the Office of the Attorney General
(including .both the Medicaid Fraud Control Unit and the Consumer Protecrl:on Division), and
the local legal services office to which residents may direct complaints br charges of abuse,
neglect and misappropriation of personal property or violation of 940 CMR 4.00 e( seq.;
to require a resident to perform services for the facility that are not included for
therapeutic purposes in the resident's plan of care; except that a resident may perform
voluntary service or services in the.facility for reasonable consideration when:
the facility has documented the need or desire for work in the plan of care;
the plan specifies the nature of the services performed· and whether the services are
voluntary or paid;
(c) if paid, compensation is at or above prevailing rates; and
(d)
the resident agrees to the work arrangement described in the plan of care;
to fail or refuse to permit a resident to interact and join with other residents or
individuals within or outside of the facility;
to fail or refuse to provide a resident reasonable access to individuals or representatives
of community' groups that provide health, social or other services, subject to the resident's
right to deny or withdraw consent at any time.
(21) to fail or refuse to provide access to the facility at reasonable hours to individuals or
representatives of community groups or other groups who seek to provide legal services to
residents without charge to the residents.
Residents' Personal Funds and Belongings
It shall be an unfair or deceptive act or practice, in violation of M.G.L. c. 93A, §'2, for
a licensee or an administrator:
to require any resident to deposit his/her personal funds with the facility;
(2) to fail or refuse to permit a resident to manage his/her personal financial affairs;
to fail or refuse, upon a resident's written authorization, to hold, safeguard, manage, and
account for the personal funds of the resident deposited with the facility, as specified in
940 CMR 4.07(4) through (7) or, for residents of chronic disease and rehabilitation hospitals,
as defined by 940 CMR 4.01(12);
940 CMR 36.l
OFFICE OF THE A TIORNEY GENERAL
to manage a resident's personal funds without either his/her written authorization to do
so or the written authorization of his/her legal representative; the written authorization shall
contain the information required by 940 CMR 4.01(17) and shall include specification of the
funds over which the licensee or administrator shall have control;
(5) in the event that any resident or his/her legal representative provides the facility with
written authorization to manage personal funds, -to fail to:
deposit a resident's personal funds in excess of $50, in an interest-bearing escrow
account, separate from any of the facility's operating accounts, that credits all interest
.earned on resident's funds to that account, and is in a bank located within the
Commonwealth, under such terms as will place such deposit beyond the claims of
creditors of the licensee, including a receiver or trustee in bankruptcy;
miµntain a resident's funds that do not exceed $50 in a non~interest bearing escrow
account, an interest-bearing escrow account, or in a petty cash fund;
(c)
to provide the resident, his/her legal representative or next of kiri with the name of
the bank and the account number where any funds of the resident are deposited;
(d)
provide the resident with his/her personal funds to spend upon his/her request.
(6) if the licensee or administrator manages a resident's personal funds, to fail or refuse to
establish and maintain a system that assures ·a full and complete and separate accounting
according to generally accepted accounting principles of each resident's personal funds
entrusted to the facility on the resident's behalf; to fail or refuse to provide an individual
financial record which shall include a written record of all financial transactions and
documentation of all interest earned thereon; such record must be available through quarterly
statements and on request to the resident, his/her legal representative or next of kin;
to fail or refuse to permit a resident to rescind at any time his/her written authorization
that the licensee or administrator manage his/her personlil funds;
except in the case of a private resident, if a resident's personal funds are managed by
the facility, to fail to notify the resident and his/her next of kiri or legal representative when
such funds are within $200 of the amount that could result in a loss of eligibility for
Medicaid or SSI under 42 CFR § 483.10(c)(5)(i) through (ii) and any applicable state
regulation;
·
to fail or refuse to· permit a resident to retain and use personal possessions, including
some furnishings and appropriate clothing as space permits, unless to do so would infringe
upon rights or health and safety of other residents;
(10) to fail to· provide adequate and secure storage space to each resident for his/her
personal property as well as individual ;iccess to a private storage area, which shall include,
but need not be limited to, a private; individually locked drawer or box to which the resident
shall have sole control of the key, except that the administrator or a designee shall hold a
master key t? such locked spaces;
(11) to fail or refuse to convey~ upon the death or transfer of a resident, the resident's
personal funds which had been deposited with the facility and a final accounting of those
funds either to the resident, legal representative, or the individual administering the resident's
estate, within 30 busiriess days of said resident's transfer or death.
to permit any commingling of resident funds with facility funds or with the funds of
any person other than another resident.
Medical Treatment and Information
It shall be an. unfair or deceptive act or practice, in violation of M.G.L. c. 93A, § 2, for
a licensee or an administrator:
940 CMR 36.2
OFFICE OF THE A TIORNEY GENERAL
to fail or refuse to permit a resident to choose his/her personal attending physician;
to fail or refuse to permit a resident to be fully informed in advance about care and
treatment and of any changes in care or treatment that may affect the resident's well being;
to fail or refuse to permit a resident to participate in the planning of his/her care and
treatment or in decisions relating to changes in such care or treatment; where a resident has
been adjudged incompetent under Massachusetts state law, his/her legal representative shall
act on his/her behalf;
to fail or refuse to inform each resident of the name, specialty, and way of contacting
the physician responsible for his or her care;
to fail or refuse to permit a resident or his/her legal representative, upon an oral or
written request, to access within 24 hours all records pertaining to himself/herself including
current clinical records except if otherwise prohibited by law;
to fail or refuse to permit a resident, after receipt of his/her records for inspection, to
purchase at a cost not to exceed the community standard, photocopies of the records or any
portions thereof upon request and two working days advance notice; for residents who are
entitled to receive such photocopies free of charge pursuant to state or federal law, to fail or
refuse to provide such photocopies free of charge;
to fail or refuse to inform the resident or· his/her legal representative, in a language the
resident understands, of the resident's total health status, including, but not limited to, his/her
medical condition;
to fail or refuse to permit a resident to refuse treatment, to refuse to participate in
experimental research, and to formulate an advance directive; to fail or refuse to comply with
an advance directive, except if otherwise prohibited by law;
(9) if a resident refuses treatment or drugs, to fail or refuse to make prompt and good faith
efforts to obtain information from qualified sources about the likely consequences of a
resident's refusal to receive the treatment or drugs or to fail or refuse to provide the resident
with that information as soon a.S possible;
to fail or refuse to respond promptly, to the licensee's or administrator's best
.knowledge, to any inquiry by the resident relating to anything in his/her medical or personal
record;
to fail or refuse to permit any person who has a resident's written authorization to
examine, at reasonable times, all the medical and personal records relating to such resident,
or to fail or refuse to respond promptly, to the extent of the licensee's or administrator's best
knowledge, to any inquiry made by the person who has the resident's written authorization
relating to anything in the resident's medical or personal records; ·
to release a resident's personal or medical record to any individual outside the facility
without the prior written authorization of the resident or his/her legal representative except
in case of his/her transfer to another health care institution or as required by law or
third-party contract;
to fail or refuse to immediately inform the resident, consult with the resident's
physician, and, if known, notify the resident's legal representative or next of kin when there
is:
an accident involving the resident which results in injUry and has the potential for
requiring physician intervention;
940 CMR 36.3
OFFICE OF THE A 'ITORNEY GENERAL
a significant change in the resident's physical, mental or psychosocial status, (e.g.,
a deterioration in health, mental, or psychosocial status in either life-threatening
conditions or clinical complications);
(c)
a need to alter treatment significantly (e.g., a need to discontinue an existing form
of treatment due to adverse consequences, or to commence a new form of treatment);
to fail or refuse to permit a resident to purchase necessary drugs or personal items at
the pharmacy of his/her choice, provided that the prescription complies with all relevant
regulations governing pharmacy labeling;
to fail or refuse to effectuate the right of any resident to be free from any physical or
chemical restraints, except in accordance with state and federal law;
to fail or refuse to effectuate the right of any resident to be free from verbal, sexual,
physical and mental abuse, corporal punishment, and involuntary seclusion;
to fail or refuse to ensure that all alleged violations involving mistreatment, neglect,
or abuse, including injuries of unknown source and misappropriation of resident property are
reported immediately to the administrator of the facility and other officials in accordance with
state law through established procedures;
· (18) to administer or permit the administration of any psychotropic drug to any resident who
has not been adjudged incompetent to make treatment decisions concerning him/herself
without:
obtaining the resident's informed consent and written authorization to do so, and
following a written plan Of treatment which has been prepared by the resident's
physician and is designed to eliminate or modify the symptoms for which the drugs ate
prescribed;
to administer or permit the administration of any psychotropic drug to any resident who
has been adjudged incompetent of making treatment decisions other than pursuant to a
::ourt-ordered substituted judgment establishing a treatment plan in accordance with the
standards set forth in Rogers v. Commissioner of Department of Mental Health, 390 Mass.
489 (1983), and subsequent case law.
Discharge and Transfers
It shall be an unfair or deceptive act or practice, in violation of M.G.L. c. 93A, § 2, for
a licensee or administrator
·
to fail, in discharging or transferring a resident of a nursing facility, to comply with the
Division of Medical Assistance regulations at 130 CMR 610.000 et seq., or any substitute or
further amended regulations promulgated by any successor state agency. Under 940 CMR
4.00, the obligation of a licensee or administrator includes but is not limited to providing a
resident with advance written notice of the discharge or transfer, which notice shall ll.iclude
a statement informing the resident of his or her right to request a hearing before the Division
of Medical Assistance. A licensee or administrator may discharge or transfer a resident only
for one or more of the reasons set forth in 130 CMR 610.220(A).
to discharge or transfer a resident, when a state or federal agency refuses, or ceases to
authorize payment for a Medicare or Medicaid resident until all administrative appeals have
been exhausted;
to discharge or transfer a resident without documentation of the reason for such
discharge or transfer in the clinical record by the resident's attending physician, unless the
health or safety of individuals in the nursing facility would be endangered, in which case the
reason for such discharge or transfer may be documented by a physician.
940 CMR 36.4
OFFICE OF IBE A ITORNEY GENERAL
to move a resident to different living quarters within the facility, contrary to the
resident's wishes, except to meet the resident's health care or safety needs which otherwise
could not be met, as documented in the resident's clinical record by his/her attending
physician;
to fail or refuse to readmit to the facility's next available bed in a semi-private room,
a resident receiving or eligible to receive public assistance who had been transferred for
hospitalization or therapeutic leave and whose absence exceeded the authorized bed-hold
leave if that resident requires the facility's services; to fail or refuse to readmit to the
facility's next available bed in a semi-private room, a resident who had been transferred for
hospitalization or therapeutic leave if that resident requires the facility's services;
to fail to discuss the planned discharge or transfer from the facility with the resident and
·his/her legal representative or next of kin.
to fail to consult the resident and his/her family or legal representative in choosing
another facility, and to take all reasonable steps to implement the resident's choice of such
facility;
in an institution licensed by the Department of Public Health to provide chronic disease
or rehabilitative services to a resident as defined by 940 CMR 4.01(12) .
to fail or refuse to provide, except in the case of an emergency discharge or transfer,
seven days advance written notice to the resident of a discharge or transfer; such written
notice shall include:
1.
the date of the discharge or transfer;
2.
the location to which the resident is to be discharged or transf~rred;
3.
the reason for the discharge or transfer;
4.
a statement informing the resident of.his/her right to request a hearing before the
Division of Medical Assistance;
5.
the name, address and phone number of the local legal services office;
(b} to fail or refuse to document for each resident who is to be discharged, a written
discharge plan that specifies the services or care to be required by the resident, the
frequency, intensity, and duration of sue}) services, and the resources available to provide
the care or services, including· available family and community support; such a plan must
be updated if the resident's condition changes significantly;
in a facility licensed by the Department of Public Heillth as a residential care facility,
convalescent or rest home, infinnary maintained in a town, or charitable home for the aged -
to fail or refuse to provide, except in the case of an emergency discharge or transfer, 30 days
advance written· notice to the resident of an anticipated discharge or transfer, such written
notice shall include:
sufficient explanation for the discharge or transfer, including the facility's plans and
procedures for discharge or transfer;
a statement that the resident has the right to express objection to his/her discharge
or transfer to a representative of the facility;
·
( c)
the specific . address of the location to which the resident is to be discharged or
transferred;
(d)
a statement that all reasonable efforts have been taken by representatives of the
facility to provide counseling to the resident to prepare him/Iler to adjust to any discharge
or transfer;
(e)
the name, address and phone number of the local legal services office;
(f) a statement that all reasonable precautions have been taken to eliminate or reduce
any harmful effects that may result from the discharge or transfer.
940 CMR 36.5
OFFICE OF THE ATTORNEY GENERAL
4.10: Severability
If any provision of 940 CMR 4.00 or the application of such provision to any person or
circumstance shall be held invalid, the validity of the remainder of 940 CMR 4.00 and
the applicability of such provision to any other person or circumstance shall not be
affected thereby.
Effective Date
940 CMR 4.00 shall become effective on October 21, 1994.
940 CMR 36.6