Subject 111-8-25 GENERAL LICENSING AND ENFORCEMENT REQUIREMENTS
These rules shall be known as the Rules and Regulations for Enforcement of General Licensing and Enforcement Requirements. The purposes of these rules are to provide for general licensing and enforcement actions requirements by the department with respect to violations of licensing requirements by certain applicants or licensees operating facilities subject to regulation by the department as set forth under Chapters 7, 13, 22, 23 and 44 of Title 31, Chapter 5 of Title 26, paragraph (8) of subsection (d) of Code § 31-2-4 and Article 7 of Chapter 5 of Title 49; to provide for licensing, payment of licensing activities fees, inspections, investigations and examinations of such facilities; compliance with plans of correction; and to provide that certain facilities give notice of violations giving rise to the receipt of notice of the imposition of any sanction under federal or state laws or regulations. These rules are adopted and published pursuant to the Official Code of Georgia Annotated (O.C.G.A.) §§ 31-2-4, 31-2-9, 31-2-11 and 31-7-2.2.
|(1)||"Administrative action" means the initiation of a contested case as defined in the Georgia Administrative Procedures Act (APA), O.C.G.A. § 50-13-2(2).|
|(2)||"Alter ego" means a person who acts pursuant to the control or influence of another while purporting to act independently.|
|(3)||"Commissioner" means the Commissioner of the Department of Community Health.|
|(4)||"Department" means the Department of Community Health, its agents and employees.|
|(5)||"Document" means any book, record, paper, or other information related to initial and continued licensing.|
|(6)||"Facility" means any agency, institution, entity or person subject to regulation by the department under Chapters 7, 13, 22, 23, 44 of Title 31, paragraph(8) of subsection (d) of Code § 31-2-4, Chapter 5 of Title 26, and Article 7 of Chapter 6 of Title 49 of the Official Code of Georgia Annotated.|
"Final Adverse Finding" means
|(8)||"Formal Order" means any ruling following an administrative or judicial hearing or an emergency directive issued by the Commissioner as authorized by law related to the initial or continued licensing of a facility which requires the facility to take or refrain from taking specified action. Formal orders include, but are not limited necessarily to final administrative hearing decisions and settlement agreements between the department and facilities. Additionally, formal orders, as defined herein, may include any orders issued by the Commissioner as authorized by law, such as but not limited to O.C.G.A. § 31-7-2.2 or as authorized by similar statues enacted after the effective date of these rules.|
|(9)||"Inspection" means any examination by the department or its representatives of a facility, including but not necessarily limited to the premises, and staff, persons in care, and documents pertinent to initial and continued licensing so that the department may determine whether a facility is operating in compliance with licensing requirements. The term "inspection" includes any survey, monitoring visit, or other inquiry conducted for the purpose of making a compliance determination with respect to licensing requirements.|
|(10)||"Investigation" means any examination, conducted in response to an allegation or allegations of noncompliance, by the department or its representative of a facility, including but not necessarily limited to the premises, and staff, persons in care, and documents pertinent to initial and continued licensing so that the department may determine whether a facility has violated any licensing requirement.|
|(11)||"License" means the official authorization granted by the department pursuant to any of the provisions of law cited in Rule 111-8-25-.01 to operate a facility physically located in Georgia. The term "license" includes any permit, registration, commission, or similar designation reflecting such authorization.|
|(12)||"Licensee" means any person holding a license.|
|(13)||"Licensing requirements" means any provisions of law, rule, regulation, or formal order of the department which apply to facilities with respect to initial or continued authority to operate.|
|(14)||"Management or Control", for the purpose of imposing the sanction pursuant to Rule 111-8-25-.04(1)(c) or 111-8-25-.04(2)(b), means the exercise of or authority to exercise direction, administration, or oversight over a facility's operations by certain persons which include owners, directors, or administrators.|
|(15)||"Person" means any individual, agent, representative, governing authority, firm, organization, partnership, agency, association, corporation, facility, or other entity.|
|(1)||No facility shall offer or provide services which are required to be licensed under rules enforced by the department without a current license issued by the department.|
|(2)||No license shall be issued by the department unless the facility is in compliance with applicable rules set forth in these rules, specific rules applicable to the particular facility type and all licensure activity fees due the department have been paid.|
|(3)||Fees will be assessed to facilities and applicants for licensure for the following licensure activities: processing applications for a new license or a change in ownership, initial license fees, annual licensure activity fees to maintain current license, follow-up visits to periodic inspections, training materials, returned check and mail processing charges and civil monetary penalties.|
|(4)||Application for License. An application for a license to provide regulated services shall be submitted on forms made available by the department in a format acceptable to the department. No application shall be acted upon by the department until the application is determined complete by the department with all required attachments and applicable fees submitted.|
|(5)||Where the department denies an initial license for non-payment of fees or any other reason, such action may be taken by the department prior to an administrative hearing on the denial being held. The applicant whose license has been denied may obtain an administrative hearing, subsequent to the decision to deny the license, as authorized under Georgia law.|
|(6)||Ongoing Licensure Activity Fees. All licenses issued by the department require payment of ongoing licensure activity fees as calculated by the department each state fiscal year, including the state fiscal year that these rules take effect. For annual licenses, such licensure activity fees will be due on the anniversary date of the issuance of the previous year's license. For continuing licenses, such ongoing licensing activity fees will be due October 31st of each state fiscal year. The annual fees shall include the base licensure activity fee and any additional fees incurred during the previous year. Such fees are due and payable to the department within thirty (30) days of receipt of the licensure activity fee invoice. Fees will be calculated by the department in a manner so as to help defray the direct and indirect costs incurred by the department in providing such licensure activities for all programs, but in no event shall exceed such costs.|
|(7)||Effective January 31, 2011, the department may revoke any license if the facility has failed to pay the annually recurring licensure activity fees within sixty (60) days of receipt of a written invoice from the department. The revocation action is subject to written notice of the proposed revocation and a right to receive an administrative hearing on the amount past due and owing prior to the revocation action becoming final.|
|(8)|| Schedule of Fees. Fees collected by the
department are not refundable, except in extraordinary circumstances as
determined by the department in its sole discretion. The decision of the
department as to whether to refund a payment is final and may not be appealed.
Payment of fees must be by check, money order, credit card or other form of
electronic payment accepted by the department. Using any form of electronic
payment is optional, but may result in an additional convenience charge being
added to the licensing fee that is due. Any convenience charge for which the
user is responsible must be disclosed to the potential user before completion
of the transaction. No cash payments are accepted by the Department. The
following schedule of fees applies for the listed licensure activities:
The department shall have the authority to impose any one or more of the sanctions enumerated in paragraphs (1), (2) and (3) of Rule 111-8-25-.05 upon a finding that an applicant or licensee has:
|(a)||Knowingly made any verbal or written false statement of material fact either in connection with the application for a license; or on documents submitted to the department as part of any inspection or investigation; or in the falsification or alteration of facility records made or maintained by the facility;|
|(b)||Failed or refused, without legal cause, to provide the department with access to the premises subject to regulation or information pertinent to the initial and continued licensing of the facility.|
|(c)||Failed to comply with the licensing requirements of this state; or|
|(d)||Failed to comply with the provisions of O.C.G.A. § 31-2-11 or with the provisions of these rules.|
against Licensees. When the department finds that any licensee has
violated any provision of Rule
111-8-25-.04, Enforcement, the
department, subject to notice and opportunity for a hearing, may impose any one
or more of the sanctions in subparagraphs (a) through (f) below.
Applicants. When the department finds that any applicant for a license
has violated any provision of Rule
111-8-25-.04, Enforcement, the
department, subject to notice and opportunity for a hearing, may impose any one
or more of the following sanctions in subparagraphs (a) through (c) below.
Sanctions Where Imminent and Substantial Danger. Where the Commissioner
of the department determines that the patients or residents in the care of an
institution, community living arrangement or drug abuse treatment program
subject to licensure are subject to an imminent and substantial danger, the
Commissioner may order any of the extraordinary sanctions listed in subsections
(b), (c), (d) and (e), of this rule, 111-8-25-.05(3), to take effect
immediately unless otherwise specified in the order, without notice and
opportunity for hearing prior to the order taking effect.
|(4)||Standards for Taking Sanctions. In taking any of the actions pursuant to subparagraphs (1), (2) or (3) of this rule, the department shall consider the seriousness of the violation or violations, including the circumstances, extent, and gravity of the prohibited act or acts or failure to act, and the hazard or potential hazard created to the physical or emotional health and safety of the public.|
|(5)||Non-Compliance with Sanctions. Failure on the part of any facility to abide by any sanction, including payment of a fine, which is finally imposed against it, shall constitute grounds for the imposition of additional sanctions, including revocation.|
|(6)||Settlements. With regard to any contested case instituted by the department pursuant to this Chapter or other provisions of law or regulation which may now or hereafter authorize remedial or disciplinary grounds and action, the department may, in its discretion, dispose of the action so instituted by settlement. In such cases, the department, the facility, and those persons deemed by the department to be successors in interest to any settlement agreement, shall be bound by the terms specified therein. Violation thereof by any applicant or licensee, their agents, employees, or others acting on their behalf, shall constitute grounds for the imposition of any sanctions enumerated in this Chapter, including revocation.|
|(7)||Sanctions for Nursing Facilities. With respect to any facility classified as a nursing facility, nursing home, or intermediate care home, the department may not take an action to fine or restrict the license of any such facility based on the same act, occurrence, or omission for which: the facility has received an intermediate sanction under the provisions of 42 U.S.C. § 1396 r(h)(2)(A), as amended, or 42 U.S.C. § 1395 i - 3(h)(2)(B); or such facility has been served formal notice of intent to take such a sanction which the Division of Medical Assistance, based on administrative review, or any other appropriate body, based on administrative or judicial review, determines not to impose, provided however, that nothing in this subparagraph shall prohibit the department from using the provisions authorized by law in paragraph (5) above.|
|(1)||Authority to Investigate. The department shall have the authority to make public or private investigations inside or outside this state. Such investigations may be initiated at any time, in the discretion of the department, and may continue during the pendency of any action initiated by the department pursuant to Rule 111-8-25-.05 of this Chapter.|
|(2)||Consent to Entry
and Access. An application for a license or the issuance of the same by
the department constitutes consent by the applicant or licensee and the owner
of the premises for the department's representatives, after displaying
identification to any facility staff, to enter the facility for the purpose of
conducting an investigation or an inspection.
|(3)||Cooperation with Inspection. Facility staff shall cooperate with any inspection or investigation conducted by the department and shall provide, without unreasonable delay, any documents which the department is entitled hereunder.|
Expenses. Pursuant to the inspection, investigation, and enforcement
powers given to the department by O.C.G.A. § 31-2-11
and other applicable laws, and the provisions of this Chapter, the department
may assess against a facility reasonable and necessary expenses incurred by the
department pursuant to any administrative or legal actions required by the
failure of a facility to fully comply with licensing requirements. Such
expenses may be assessed only pursuant to the initiation of sanction actions
under this Chapter and may only be collected if such actions result in final
adverse findings. A facility shall be notified of the department's action to
assess expenses when the department sends a facility a notice of the sanction.
If the sanction is appealed, the assessment may become an issue for
consideration by the hearing examiner at any hearing held on the sanction.
|(5)||Outcome of Investigation Available. When an investigation is initiated due to an allegation of noncompliance by any person acting on his or her own or another's behalf, the outcome of the investigation shall be provided by the department to that person and to the facility upon request after the investigation is completed; provided however, that the names and identifying information regarding the complainants are classified as confidential. Nothing in this rule shall be construed to require the department to release the name or identifying information regarding a complainant without first obtaining proper authorization from such complainant. Nor shall this rule be construed to require the department to release any other confidential or privileged information without first obtaining proper authorization.|
|(6)||Compliance with Plan of Correction. If violations of any licensing rules are identified, the facility will be given a written report of the violation that identifies the rule violated. The facility shall submit a written plan of correction in response to the report of violation, which stats what the facility will do, and when, to correct each of the violations identified. The facility may offer an explanation or dispute the findings of violations in the written plan of correction, so long as an acceptable plan of correction is submitted within ten (10) days of the facility's receipt of the written report of inspection. If the initial plan of correction is unacceptable to the department, the facility will be provided with at least one (1) opportunity to revise the unacceptable plan of correction. The facility shall comply with the plan of correction accepted by the department.|
For any action taken or any proceeding held under this Chapter or under color of law, except for gross negligence or willful or wanton misconduct, the department, when acting in its official capacity, shall be immune from liability and suit to the same extent that any judge of any court of general jurisdiction in this state would be immune.
In an administrative or legal proceeding under this Chapter, a person claiming an exemption or an exception granted by law, rule, regulation, or formal order has the burden of proving this exemption or exception.
This Chapter and all sanction actions resulting from its provisions shall be administered in accordance with Chapter 13 of Title 50 of the Official Code of Georgia Annotated, the Georgia Administrative Procedure Act. Any request for hearing in response to any sanction action undertaken pursuant to this Chapter shall be in writing and shall be submitted to the department no later than 10 calendar days from the date of receipt of any notice of intent by the department to impose a sanction setting forth the proposed sanction or sanctions and the basis therefore.
|(1)|| Where a nursing home or intermediate care
home is required by the provisions of O.C.G.A. § 31-7-3.2
to give notice of violations giving rise to the imposition of any sanction, the
notice shall contain the information required by that code section and shall
conform to the following requirements:
The provisions of this Chapter shall be supplemental to and shall not operate to prohibit the department from acting pursuant to those provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action for the department. In cases where those other provisions of law so authorize other disciplinary grounds and actions, but this Chapter limits such grounds or actions, those other provisions shall apply.
In addition to the enforcement actions authorized by this Chapter with respect to refusal to provide the department with access to a facility, the department may make application to a court of competent jurisdiction for an inspection warrant if its representatives are denied meaningful access to the premises, staff, persons in care, and documents or other information of a licensed facility or of a facility which the department believes is required to have a license but which does not have one. Upon the grant of such a warrant, the department may gain entry and meaningful access to such facility, its staff, and persons in care therein, facility documents, and other information deemed pertinent by the department to making a compliance determination, unless the warrant specifically limits the entry or access allowed to department representatives. This rule shall not be construed to require the department to seek entry and be denied the same before it may apply for an inspection warrant.
The department may, without regard to the availability of other remedies, including the remedies set forth in this Chapter, seek an injunction against the continued operation of a facility without a license. The department likewise may seek injunctive relief against the continued operation of a facility in violation of licensing requirements.
In the event that any rule, sentence, clause or phrase of any of these rules and regulations may be construed by any court of competent jurisdiction to be invalid, illegal, unconstitutional, or otherwise unenforceable, such determination or adjudication shall in no manner affect the remaining rules or portions thereof. The remaining rules or portions thereof shall remain in full force and effect as if such rule or portions thereof so determined, declared or adjudicated invalid or unconstitutional were not originally part of these rules.