Subject 290-1-6 ENFORCEMENT OF LICENSING REQUIREMENTS
These rules shall be known as the Rules and Regulations for Enforcement of Licensing Requirements. The purposes of these rules are to provide for actions by the department with respect to violations of licensing requirements by certain facilities subject to regulation by the department; to provide for inspections, investigations and examinations of such facilities; 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.
In these rules, unless the context otherwise requires, the terms set forth herein shall mean the following:
|(a)||"Administrative action" means the initiation of a contested case as defined in the Georgia Administrative Procedures Act (APA), O.C.G.A. Sec. 50-13-2(2).|
|(b)||"Alter ego" means a person who acts pursuant to the control or influence of another while purporting to act independently.|
|(c)||"Commissioner" means the Commissioner of the Department of Human Resources.|
|(d)||"Department" means the Department of Human Resources, its agents and employees.|
|(e)||"Document" means any book, record, paper, or other information related to initial and continued licensing.|
|(f)||"Facility" means any agency, institution, entity or person subject to regulation by the department under Chapters 7, 13, 22, and 23 of Title 31, and under Chapter 5 of Title 49 of the Official Code of Georgia Annotated.|
Adverse Finding" means
|(h)||"Formal Order" means any ruling following an administrative or judicial hearing 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 current laws, such as O.C.G.A. Sec. 31-7-2.2 and O.C.G.A. Sec. 49-5-90et seq., or as authorized by similar statutes enacted after the effective date of these rules.|
|(i)||"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.|
|(j)||"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.|
|(k)||"License" means official authorization granted by the department pursuant to any of the provisions of law cited in Rule .01 to operate a facility. The term "license" includes any permit, registration, commission, or similar designation reflecting such authorization.|
|(l)||"Licensee" means any person holding a license.|
|(m)||"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.|
|(n)||"Management or Control", for the purpose of imposing the sanction pursuant to Rule .04(1)(c) or .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.|
|(o)||"Person" means any individual, agent, representative, governing authority, firm, organization, partnership, agency, association, corporation, facility, or other entity.|
The department shall have the authority to impose any one or more of the sanctions enumerated in paragraphs (1) and (2) of Rule .05, Sanctions, upon a finding that an applicant or licensee has:
|(a)|| Knowingly made any verbal or written
false statement of material fact:
|(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. Section 31-2-6 or with the provisions of these rules.|
Against Licensees. When the department finds that any licensee has violated any
provision of Rule .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.
|(2)|| Sanctions Against Applicants.
When the department finds that any applicant for a license has violated any
provision of Rule .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.
|(3)||Standards for Taking Sanctions. In taking any of the actions pursuant to subparagraphs (1) or (2) 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.|
|(4)||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.|
|(5)||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.|
|(6)|| 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:
|(1)||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 .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.|
|(4)|| Assessment of
Expenses. Pursuant to the inspection, investigation, and enforcement powers
given to the department by O.C.G.A. Section
31-2-6 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)||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.|
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 ten (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.
Where a nursing home or intermediate care home is required by the provisions of O.C.G.A. Section 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.
|(a)||Size and Format of Notice. The facility may post the Report of Licensure Inspection and Medicare/Medicaid Statement of Deficiencies, along with the notices by the department, the Department of Medical Assistance, and/or the Health Care Financing Administration of intent to impose any sanction. These may be posted in their original forms as the notice required by O.C.G.A. Section 31-7-3.2(a) and (b). If the facility chooses to post the notice of the agency taking the action and the Report of Licensure Inspection and Statement of Deficiencies, there shall be a conspicuous heading clearly visible from at least twenty feet away, calling the attention of the observer to them. As an alternative, the facility may post its own notice which accurately and thoroughly reflects the violations found which give rise to the sanctions imposed or proposed and which describes each sanction or notice of sanction issued by any of the above-described agencies. Any such notice shall be at least 11 1/2 inches by 17 1/2 inches in size. Words and letters shall be in bold print and shall be at least one centimeter in size.|
|(b)||Location of Notice. The facility shall post the notice in a place readily accessible and continuously visible to persons in care and their representatives.|
|(c)||Timing of Notice. The facility shall post the notices within fourteen days after it receives notification of the imposition of a sanction for a violation which requires the notice. The notices shall remain in place until the department has determined that cited violations no longer exist, at which time the notice may be removed.|
|(d)||Mailing of Notices. Where any person has made a written request for a copy of the notice or notices, the facility shall mail the same to the requester within five (5) business days of receipt of the request when such request is accompanied by a postage paid self addressed envelope.|
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, 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.