10.07.14.22

.22 Resident-Specific Level of Care Waiver.

A. A licensee may request a resident-specific waiver to continue to provide services to a resident if:

(1) The resident's level of care exceeds the level of care for which the licensee has authority to provide; or

(2) The resident would require care that falls into one of the categories set forth in §I of this regulation.

B. A licensee may not continue providing services to a resident whose needs exceed the level of care for which the licensee has authority to provide, without approval of the Department.

C. Temporary Change in Level of Care.

(1) A level of care waiver is not required for a resident whose level of care is expected to increase for a period not to exceed 30 days.

(2) The licensee shall submit a waiver application as soon as program personnel determine that the increased level of care or the condition requiring the waiver is likely to exceed 30 days.

D. When requesting a resident-specific waiver, the licensee shall demonstrate that:

(1) The assisted living program has the capability of meeting the needs of the resident; and

(2) The needs of other residents will not be jeopardized.

E. Approval of Waiver Request.

(1) The Department may grant a resident-specific level of care waiver, with or without conditions, if the Department determines that the:

(a) Resident's needs can be met;

(b) Needs of other residents will not be jeopardized; and

(c) Provider complies with the requirements of Regulation .46A of this chapter.

(2) Terms of a Resident-Specific Waiver.

(a) An approved resident-specific waiver applies only to the resident for whom the waiver was granted.

(b) The waiver no longer applies if the resident's level of care, as determined through an assessment, declines or improves to the point that the resident requires a higher or lower level of care than authorized by the waiver.

(c) When the Department grants a waiver to continue to provide services to a resident whose needs fall within one of the categories in §J of this regulation, the licensee shall, at a minimum, comply with certain federal Medicare requirements for home health agencies referenced in 42 CFR §§484.18, 484.30, and 484.32.

F. Denial of a Resident-Specific Waiver Request.

(1) The Department shall deny the request for a resident-specific waiver if the Department determines that the:

(a) Licensee is not capable of meeting the needs of the resident; or

(b) Needs of other residents will be jeopardized if the waiver request is granted.

(2) The Department may not grant resident-specific waivers:

(a) That total more than 50 percent of the licensee's bed capacity for residents whose needs exceed the level of care for which the licensee has authority to provide as specified in Regulation .04D of this chapter; or

(b) For the continuation of services to a resident whose needs fall within one of the categories set forth in §J of this regulation, for up to 20 percent of capacity, or 20 beds, whichever is less, unless a waiver is granted by the Department.

(3) The decision of the Department may not be appealed.

(4) The Department's denial of a resident-specific level of care waiver request:

(a) Does not prohibit the resident from being admitted to another program that is capable of meeting the resident's needs and is licensed to provide that level of care; and

(b) Does not provide any exception to the admission restrictions set forth in §I of this regulation.

(5) If the Department initially denies a resident-specific level of care waiver request and determines that a resident's health or safety may significantly deteriorate because of the provider's inability to provide or ensure access to care that will meet the needs of the resident, the:

(a) Denial is not subject to informal dispute resolution; and

(b) Department may direct the relocation of the resident to a safe environment.

G. The Department's Decision.

(1) The Department shall communicate the decision to grant or deny a resident-specific waiver to the assisted living manager in writing, including all appropriate supporting documentation, within 20 business days from receipt of the waiver request.

(2) Informal Dispute Resolution.

(a) If the resident or the resident's appropriate representative disagrees with the Department's denial of a waiver request, the resident or the resident's appropriate representative may request informal dispute resolution of the Department's decision by:

(i) Submitting a written request to the Department within 5 business days after receipt of the Department's denial; and

(ii) Including in the written request the reasons why the Department's denial may be incorrect.

(b) The Department shall consider the request and notify the resident or the resident's appropriate representative within 5 business days of receipt of the request whether or not the Department's decision to deny a level of care waiver is sustained.

(c) The Department's decision from the informal dispute resolution is not:

(i) A contested case as defined in State Government Article, §10-202(d), Annotated Code of Maryland; and

(ii) Subject to further appeal.

(d) In making a decision to sustain or change the decision to deny a waiver request, the Department shall consider, among other factors, whether the:

(i) Granting of waivers has resulted in one or more residents having experienced a decline in their physical, functional, or psychosocial well-being; and

(ii) Decline in the residents' condition might have been prevented had the waivers not been granted.

(e) If the Department sustains the decision to deny the waiver request the Department shall notify the licensee of what action is required, including but not limited to:

(i) Revocation of some or all of the resident-specific waivers which have been granted; or

(ii) A change in licensure category.

(f) Decision to Sustain the Denial of Waiver Request.

(i) Upon notification of the decision to sustain the denial of waiver, the licensee shall submit a response with an appropriate plan of action for approval by the Department.

(ii) If the Department does not approve the licensee's plan of action, the Department shall notify the licensee that one or more resident-specific waivers are revoked or that a change in licensure status is required.

(iii) The determination to sustain the denial of waiver request may not be appealed.

(iv) Failure of the licensee to comply with the Department's decision is grounds for the imposition of sanctions.

H. The Department shall, during a survey or other inspection, or when a resident-specific level of care waiver request is made, review the number of resident-specific waivers a licensee holds to ensure that the licensee continues to be able to provide appropriate care to all of its residents and to ensure that the current licensure category is appropriate. The Department shall notify the licensee if, at any time, the Department determines that:

(1) The licensee is not providing appropriate care to its residents because of the number of resident-specific waivers it holds; or

(2) The number of resident-specific waivers a licensee holds necessitates a change in licensure category.

I. An assisted living program may not provide services to individuals who at the time of initial admission, as established by the initial assessment, would require:

(1) More than intermittent nursing care;

(2) Treatment of stage three or stage four skin ulcers;

(3) Ventilator services;

(4) Skilled monitoring, testing, and aggressive adjustment of medications and treatments where there is the presence of, or risk for, a fluctuating acute condition;

(5) Monitoring of a chronic medical condition that is not controllable through readily available medications and treatments; or

(6) Treatment for a disease or condition which requires more than contact isolation.

J. An individual may not be admitted to an assisted living program who is:

(1) Dangerous to the individual or others when the assisted living program would be unable to eliminate the danger through the use of appropriate treatment modalities; or

(2) At high risk for health or safety complications which cannot be adequately managed.

K. The provisions of §I of this regulation do not apply to a resident being admitted to an assisted living program when the resident is under the care of a general hospice care program licensed by the Department which ensures delivery of one or more of the services described under §I of this regulation through the hospice program's plan of care.