Elder care home: how to request an inspection and what they must have

This is the licensing law for the places where an older person lives or spends the day when not at home: institutions, substitute homes, day care centers, day care homes and multiple activity centers. Its useful part for a family is not the licensing itself but Article 6: it turns a worry — "something is wrong here" — into a formal inspection request with a date, an hour and a deadline the Department must meet. And it does not require being a relative: the law lets any adult request it.

To request the inspection: a resident of the institution, any relative of the resident provided they are of legal age, or any adult when more than three (3) months have passed without an inspection. It may also be requested, without waiting those three months, by a resident, an adult relative or any adult with direct and personal knowledge of an incident reasonably indicating the institution is not complying with applicable statutory or regulatory standards. And the law adds something worth knowing if you doubt your own information: the requirement that the reporter have direct and personal knowledge of the alleged facts shall not prevent the Department from receiving and evaluating reports based on suspicion; in that case it falls to the Department to evaluate it and determine the course of action based on the best interests and protection of the residents.

• Being a resident, an adult relative of the resident, or any adult. The law requires no family relationship to request an inspection.Verified against the official source
• That more than three (3) months have passed without an inspection, or having direct and personal knowledge of an incident reasonably indicating non-compliance.Verified against the official source

• The Inspection Request form the Department of the Family designs and provides. The law orders that you be given a copy of the filed request, certifying the date and hour it was received: keep it, because it is what lets you go to the Adjudicative Board.
• The text of Article 6 and the Inspection Request form the establishment must hand the older adult and their relative the same day the person is placed, together with the signed certification that the orientation was received.

1. 1

   Step 1: Identify what kind of establishment it is, because the law distinguishes them

   The law defines five figures and they are not interchangeable. Institution: any asylum, institute, residence, shelter, annex, center, home, house, mission or refuge dedicated to the care of seven (7) or more elderly persons, 24 hours a day, for profit or not. Substitute home: a family home dedicated to the care of no more than six (6) elderly persons from other households, 24 hours a day, for profit or not. Day care home: a family home that, for pay, provides regular daytime care to a maximum of six (6) adults not related by blood to that family. Day care center: an establishment providing elderly persons a range of services, mostly health-related, to people with more than three limitations of daily living. Multiple activity center: an establishment with mostly social and recreational services, to maintain or maximize independence, during part of the 24 hours. An elderly person, in this law, is a human being aged 60 or older. The term "establishment" covers all five.

2. 2

   Step 2: Check the license: operating without one is a crime

   The Department of the Family is the only agency authorized to issue licenses to every elderly care establishment set up in Puerto Rico. And Article 5 closes it: no person, entity, association, corporation, nor the state Government, nor any municipality or other political subdivision, may establish, operate or maintain an elderly care establishment unless before starting operations it applies for and is granted the license. There are two express exceptions: any person caring for one or two elderly persons, and persons caring for elderly persons to whom they are related by blood or affinity. Operating without a license, or continuing to operate after the license was cancelled, suspended or denied, is a misdemeanor, punished with a fine of no less than five hundred (500) and no more than two thousand (2,000) dollars, or jail for a period no longer than six months, or both, at the Court’s discretion. And anyone found guilty and ordered to close may not operate another establishment for similar purposes anywhere in Puerto Rico.

3. 3

   Step 3: What the inspection must certify, point by point

   Article 6 says that through the inspection the Department shall certify that every institution has, without exception, seven things. One: a water cistern able to operate normally for a minimum of five (5) days, and that the water supply is in optimal condition for human consumption. Two: an electric generator or photovoltaic system — solar panels — backup battery, wind power or other technology authorized by regulation, able to meet the institution’s energy requirement. Three: if it has an electric generator, a fuel supply sufficient to operate normally for a minimum of twenty (20) days; if it cannot store it on site, reliable proof that it has and will have the supply through a certified supplier. Every generator must have an installation, operation and safety certification issued by an authorized electrical expert under the Electrical Code in force, comply with atmospheric emissions provisions, and that certification must be current at the time of inspection and part of the official compliance file. Four: medical equipment and necessary machinery, with evidence of maintenance and certification of optimal operating condition. Five: a supply of medicine, food and every necessary provision for a minimum of twenty (20) days, except medications that by nature or by law cannot be stored that long. Six: a plan to face potential emergencies and natural disasters. Seven: any other requirement the Department deems pertinent, including those of the Department of Public Safety under Act 88-2018.

4. 4

   Step 4: The inspection before hurricane season

   One of the inspections shall be conducted mandatorily during the ninety (90) days before hurricane season begins. In that one, besides all of the above, the institution must present evidence that the generator or alternative power system was inspected and given routine maintenance by qualified technical staff no more than thirty (30) days before the season starts, and that all its components — including the battery, if the generator requires one — are in optimal operating condition. The same is done with the potable water cistern. If at the time of inspection the generator or the cistern have not been inspected as required, the institution must submit the evidence to the Department before the season’s start date. And here the law sets a concrete fine: failing this requirement carries an administrative fine of one thousand ($1,000.00) dollars for each week or fraction the institution is in non-compliance.

5. 5

   Step 5: How to request the inspection and what they must give you

   The request by a resident, relatives or an adult is filed with the Department of the Family on a form the Department itself designs and provides. The law guarantees you the receipt: the petitioner shall be given a copy of the filed request, certifying the date and hour it was received. Keep that copy. The Department shall corroborate the request’s allegations within a term of no more than fifteen (15) calendar days from the filing date, or less, depending on the nature of the allegations. And here is the part almost nobody knows: if the pertinent investigation is not carried out within that term, the person who filed the request may go before the Adjudicative Board established by regulation and present the copy of their request to compel the Department to perform the requested inspection. That is, the Department’s silence does not close the matter: the receipted copy is the key to the next step.

6. 6

   Step 6: What the establishment had to give you on day one

   Article 6(d) imposes on owners, operators or administrators the duty to inform residents and relatives or persons in charge of their right to request an inspection. And it makes it concrete: they shall hand a copy of this Article’s text and of the Inspection Request form to the older adult and to the relative or person in charge the same day the person is placed in the institution. The resident and the relative shall certify they received the orientation and documentation; the certification goes into the resident’s file and a copy is given to whoever signed it. The law adds that an additional copy of the Article and the form shall always be available for immediate delivery to any resident or person requesting it. If you were never given any of this, you now know two things: that you can request it today, and that its absence is itself a breach of this item.

7. 7

   Step 7: What happens next: deficiencies, deadlines and closure

   Once the deficiencies found in the inspection are notified, the Department determines how many days to correct them according to type and severity. The law sets apart one group with no leeway: deficiencies in the areas of safety, food, medication and hygiene shall require immediate correction with no right to an extension. If not corrected within the set term, the Department shall order cancellation of the license and permanent closure of the establishment. If the deficiency is in the physical plant, up to a maximum of six (6) months may be granted; if at the end of that term the establishment still presents the same or part of the deficiencies, the Department shall apply a fine of no less than five hundred (500) and no more than three thousand (3,000) dollars, or shall proceed to cancel, suspend or deny the license, or both, at its discretion. Meanwhile, every license in force shall be temporarily suspended until the deficiencies are corrected, and during that period the establishment may not increase its enrollment; if a resident leaves, that space may not be filled until the deficiencies are corrected and certified by the Department. Article 16 also lets the Department impose a fine not exceeding five hundred (500) dollars per violation; and it provides that being without a cistern, generator, medical equipment, machinery, medicine, fuel or non-perishable food, as Article 6 establishes, subjects the establishment to the penalties of Article 5 of Act 88-2018. If the Secretary learns an establishment is operating without a license, they may bring, through the Secretary of Justice, an injunction before the Superior Court to stop it from continuing to operate.

Before the Department of the Family, the only agency authorized to license and supervise these establishments and the one that receives the Inspection Request form. If the Department does not carry out the investigation within fifteen calendar days, the law gives you a second forum: the Adjudicative Board established by regulation, before which you present the receipted copy of your request to compel the inspection. What we do not publish: where the form is physically filed, a phone number, or how the Adjudicative Board is composed or contacted, because Act 94-1977 does not say — it defers to regulation — and we did not read that regulation. If the matter is abuse or financial exploitation of the older person rather than the establishment’s condition, that is another path and it has its own guides.

• Calling on the phone instead of filing the form: without the receipted copy with date and hour there is no term to count and no Board to turn to.
• Believing you must be a relative: the law allows a request from any adult.
• Not filing a suspicion for lack of direct knowledge: the law says that does not prevent the Department from receiving and evaluating it.
• Treating the matter as closed when fifteen days pass with no answer, instead of going to the Adjudicative Board with the copy.
• Not demanding the text of Article 6 and the form, which the establishment had to hand over the same day of placement.
• Accepting an extension on deficiencies in safety, food, medication or hygiene: the law requires immediate correction with no right to an extension.
• Confusing a multiple activity center with an institution: the law defines them differently and the requirements are not the same.

These are the government pages this guide is based on.

• Departamento de la Familia

  Familia

  bvirtualogp.pr.gov

• Department of the Family

  Familia

  www.familia.pr.gov