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Subject 290-5-44 MONITORING, SUSPENSION OF ADMISSIONS, OR TRANSFER OF PATIENTS OR RESIDENTS OF HOSPITALS AND RELATED INSTITUTIONS

Rule 290-5-44-.01 Definitions

Unless a different meaning is required or given in the context, the following terms as used in these rules and regulations shall have the meaning hereafter respectively ascribed to them:

(a) "Commissioner" means the Commissioner of the Georgia Department of Human Resources or his designee;
(b) "Department" means the Department of Human Resources of the State of Georgia;
(c) "Emergency Order" or "Order" means a written directive by the Commissioner prohibiting additional admissions to an institution, placing a monitor in an institution, or requiring emergency relocation of patients or residents;
(d) "Guardian" means a patient's or resident's legal guardian or conservator or the parent of a minor who does not have a duly appointed guardian;
(e) "Health Care Facility" or "Institution" means a facility subject to licensure under the provisions of O.C.G.A. Chapter 31-7, Article 1, unless specifically exempted by these rules and regulations;
(f) "Monitor" means a person, designated by the Department, to remain on-site in an institution, as an agent of the Department, observing conditions;
(g) "Patient" or "Resident" means any person who has been admitted to and resides in an institution;
(h) "Patient's or Resident's Physician" means a physician duly licensed to practice in Georgia and who has most recently been the physician primarily responsible for the patient's or resident's medical care;
(i) "Preliminary Hearing" means a pre-administrative hearing held by the Department at the request of an institution which has been affected by an emergency order. Note: An administrative hearing is provided for in O.C.G.A. 50-13-13.

Rule 290-5-44-.02 Emergency Orders

(1) Emergency orders are issued by the Commissioner pursuant to findings by the Department, during surveys or inspections which are required or permitted by law, that Departmental rules and regulations are being violated.
(2) Emergency orders may direct prohibition of admissions to an institution; placement of monitors in an institution; or direct relocation of patients or residents from an institution.
(3) An emergency order shall contain the following:
(a) scope of the order;
(b) reasons for the issuance of the order;
(c) effective date of the order if other than the date order issued;
(d) person to whom questions regarding the order are to be addressed, and
(e) notice of the right to a preliminary hearing.
(4) Unless otherwise provided in the order, an emergency order shall become effective immediately.
(5) Prior to issuing an emergency order to require the removal, transfer of patients or placement of a monitor in a medical facility which has been classified by the Department as a general hospital, the Commissioner may consult with persons knowledgeable in the field of medical care and a representative of the facility to determine if there is a potential for greater adverse effects on patient care as a result of the emergency order.

Rule 290-5-44-.03 Prohibition of Admissions

(1) The Commissioner may order the prohibition of admissions to an institution when the institution has failed to correct a violation of Departmental rules and regulations and the violation:
(a) Could jeopardize the health and safety of residents or patients in the institution if the violations were allowed to remain uncorrected; or
(b) is a repeat of the same violation within a twelve-month period, which the Department determines is a result of intentional acts or lack of action or due to gross negligence.
(2) Admission to an institution may be suspended until the violation has been corrected as certified by the Department or until the Department has determined that the institution has undertaken action necessary to substantially correct the violation, so that the health and safety of residents or potential residents would not be jeopardized.

Rule 290-5-44-.04 Placement of Monitors

(1) The Commissioner may order the emergency placement of a monitor or monitors in an institution when one or more of the following conditions are present:
(a) The institution is operating without a permit;
(b) The Department has denied application for a permit or has initiated action to revoke the existing permit of the institution;
(c) The institution is closing or plans to close and adequate arrangements for relocation of the patients or residents have not been made at least 30 calendar days before the date of closure; or
(d) The health, safety, security, rights, or welfare of the patients or residents cannot be adequately assured by the institution.
(2) A monitor may be placed in an institution for no more than ten calendar days, during which time the monitor shall observe conditions and institutional compliance with any recommended remedial action of the Department. The monitor shall report to the Department. The monitor shall not assume any administrative responsibility within the institution, nor shall the monitor be liable for any actions of the institution. The salary and related costs and travel and subsistence as defined by Departmental policy of placing a monitor in an institution shall be reimbursed to the Department by the Institution, unless the order placing the monitor is determined to be invalid in a contested case in which event the cost shall be paid by the Department.

Rule 290-5-44-.05 Emergency Relocation of Patients or Residents

(1) The Commissioner may order the emergency relocation of patients or residents from an institution when the Commissioner has determined that the patients or residents are subject to an imminent and substantial danger.
(2) When an emergency relocation order is issued, the Commissioner shall act to or cause the institution to act to:
(a) notify the patients or residents, their next of kin or guardian, and their physicians of the emergency relocation and the reasons therefor;
(b) relocate patients or residents to the nearest appropriate institution; and
(c) provide other protections designed to ensure the welfare and, when possible, the desires of the patients or residents.

Rule 290-5-44-.06 Preliminary Hearings

(1) A request for a preliminary hearing shall be made in writing to the representative of the Department designated in the emergency order. Unless a request is made to appear in person, the preliminary hearing shall consist of an administrative review of the record, written evidence submitted by the institution affected, and a preliminary written argument in support of its contentions.
(2) If a request is made to appear in person at the preliminary hearing, the following information shall be included in the request, or provided prior to the hearing:
(a) the name and address of person or persons, if any, who will be representing the institution in the preliminary hearing:
(b) the names and titles of all other persons who will attend the preliminary hearing; and
(c) any additional evidence the institution wishes to submit for consideration at the hearing.
(3) Upon receipt of a request for a preliminary hearing, the Department shall set and give notice of the date, time, and location of the preliminary hearing. The preliminary hearing shall be held within ten calendar days of a request therefor.
(4) If a personal appearance is requested, the preliminary hearing shall consist of a review of the evidence in the record; any additional evidence introduced at the hearing; and any arguments made. A sound recording shall be made of the hearing.
(5) Within seven calendar days of the close of the hearing, the Department shall render a written decision. The decision shall be divided as follows:
(a) description of additional evidence submitted by the affected institution;
(b) summary of the arguments and/or brief submitted by the institution in support of its contention that the emergency order is invalid;
(c) a statement as to whether the emergency order issued by the Department is found valid and the reasons therefor; and
(d) notice of the right to an administrative hearing pursuant to O.C.G.A. 50-13-13, if the emergency order is found valid.
(6) Pending final appeal of the validity of any emergency order issued as provided herein, such emergency order shall remain in full effect until vacated or rescinded by the Commissioner.
(7) The Department is not limited to a single emergency action under these rules, nor is the Department precluded from other actions permitted by other law or regulations during the time an emergency order is in force.

Rule 290-5-44-.07 Severability

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 and such remaining rules or portions thereof shall remain in full force and effect, as if such rule or portions so determined, declared or adjudged invalid or unconstitutional were not originally a part hereof. It is the intent of the Board of Human Resources to establish rules and regulations that are constitutional and enforceable so as to safeguard the health and wellbeing of the people of the State.