Chapter 350-3 SANCTIONS FOR NURSING FACILITIES
| (1) |
"Complaint Investigation" means a survey or visit to
determine the validity of allegations of resident abuse, neglect or
misappropriation of resident property, or of other noncompliance with
applicable federal and state requirements. |
| (2) |
"Deficiency" means a failure of compliance with a Program
Requirement. The fact that a deficiency no longer exists at the time of the
Survey or complaint investigation which identifies it shall not negate its
status as a deficiency for the purpose of imposing a civil monetary penalty or
requesting a Plan of Correction. |
| (3) |
"Finding" means a determination, as the result of a survey
or complaint investigation of the facility, that noncompliance with a Program
Requirement could or should have been prevented or has not yet been identified
by the facility, is not being corrected by proper action by the facility, or
cannot be justified by special circumstances unique to the facility or the
resident. |
| (4) |
"Initial finding" means the first time that a deficiency or
deficiencies is recorded by a surveyor as the result of a survey or complaint
investigation. Initial findings may be records of deficiencies that occurred
prior to the date of the survey visit even if the deficiencies no longer exist
at the time of the current survey. |
| (5) |
"Monitor" means a person or organization placed in a
facility by the Department or the State Survey Agency for the purpose of
overseeing a facility's correction of deficiencies or to ensure orderly closure
of a facility. A monitor shall have practical long-term care experience related
to the aspect(s) for which the facility is being monitored. |
| (6) |
"Nursing Facility" means an institution (or a distinct part
of an institution) which
| (a) |
is primarily engaged in providing to residents
| 1. |
skilled nursing care and related services for residents who
require medical or nursing care, |
| 2. |
rehabilitation services for the rehabilitation of injured,
disabled, or sick persons, or |
| 3. |
on a regular basis, health-related care and services to
individuals who because of their mental or physical condition require care and
services (above the level of room and board) which can be made available to
them only through institutional facilities, and |
|
| (b) |
is not primarily for the care and treatment of mental
diseases; and |
| (c) |
is enrolled as a provider in the Georgia Medical Assistance
program. |
|
| (7) |
"Program Requirement" means any requirement contained in
Subsection 1919(b), (c), or (d) of the Social Security Act of 1935, as amended,
including but not limited to the provisions implemented by the Omnibus Budget
Reconciliation Act of 1987, P.L. 100-203. |
| (8) |
"Repeat deficiency" is a deficiency related to resident
care which recurs within eighteen (18) months of its citing in an Initial
Finding, and which is found at a follow-up visit, complaint investigation,
subsequent survey, or otherwise. |
| (9) |
"Repeated noncompliance" means a finding of substandard
quality of care on three (3) consecutive annual surveys. |
| (10) |
"Resurvey" means a follow-up visit to determine whether
the deficiencies found in a survey or complaint investigation have been
corrected. |
| (11) |
"Scope" means the frequency, incidence, or extent of the
occurrence of a deficiency in a facility. |
| (12) |
"Severity" is the seriousness of a deficiency, which means
the degree of actual or potential negative impact on a resident (as measured by
negative outcomes or rights violations) or the degree to which his/her highest
practicable physical, mental, or psychosocial well-being has been
compromised. |
| (13) |
"State Survey Agency" means the Georgia Department of
Human Resources. |
| (14) |
"Subsequent finding" means a violation or deficiency found
on a resurvey. The deficiency must exist at the time of the resurvey or
revisit. If a deficiency cited in an Initial Finding is found upon resurvey or
revisit, a rebuttable presumption arises that the deficiency continued
throughout the period of time between the initial survey or visit and the
resurvey or revisit. |
| (15) |
"Substandard quality of care" means a finding by the
Department or the State Survey Agency of one or more deficiencies, the
existence of which limit(s) the facility's ability to deliver adequate care or
services. |
| (16) |
"Survey" means a review of a case-mix stratified sample of
nursing facility residents to determine the quality of care furnished as
measured by indicators of medical, nursing, and rehabilitative care, dietary
and nutrition services, activities, and social participation, and sanitation,
infection control, and physical environment. Such survey shall include an exit
interview in which the surveyor and the facility shall attempt to resolve any
conflicts regarding findings by the surveyor(s). |
| (17) |
"Surveyor" means a professional authorized by the State
Survey Agency to conduct surveys or complaint investigations to determine
compliance with Program Requirements. |
| (18) |
"Termination of the facility's participation" means
exclusion of a facility from participation as a provider under the Georgia
State Plan for Medical Assistance as a result of one or more
deficiencies. |
If the Department finds that a facility does not or did not
meet a Program Requirement governing nursing facilities, it may impose the
following remedies, independently or in conjunction with others, subject to the
provisions of this Chapter for notice and appeal.
| (a) |
Termination of the facility's participation. |
| (b) |
Denial of Medicaid payments for services rendered by the
facility to any recipient admitted to the facility after notice to the
facility. This remedy shall remain in effect until the Department determines
that the facility has achieved substantial compliance with all Program
Requirements, or until another remedy is substituted for it. A facility subject
to this remedy may request termination of the remedy on the ground that it has
achieved substantial compliance with program requirements. The Department shall
respond to the request by terminating the remedy, requesting additional
information if documentation of substantial compliance is considered
insufficient, or conducting a resurvey within twenty (20) days of receipt of
the request. This remedy shall not be imposed with respect to temporarily
hospitalized recipients previously residing in a facility placed on such notice
who return to the facility after the date of notice, or with respect to
residents who become Medicaid eligible after the date of notice and who resided
in the facility prior to the date of notice. |
| (c) |
Civil monetary penalties, as specified in Section .04. When
penalties are imposed on a facility, such penalties shall be assessed and
collected for each day in which the facility is or was out of compliance with a
Program Requirement. Interest on each penalty shall be assessed and paid as
specified in Section .04. For individuals, such penalties shall be assessed for
each infraction, as described in Section .04(g). |
| (d) |
Temporary management as specified in Section .05, to
oversee operation of the facility and to assure the health and safety of the
facility's residents while there is an orderly closure of facility or while
improvements are made in order to bring the facility into compliance with all
Program Requirements. |
| (e) |
Closure of the facility and/or transfer of recipients to
another facility, in the case of an emergency as described in Section
.03(e). |
| (f) |
Plan of Correction, to be drafted by the facility and
submitted within a specified time to the Department. Each proposed Plan shall
delineate the time and manner in which each deficiency is to be corrected. The
Department shall review the proposed Plan and accept or reject the Plan by
notice to the facility. |
| (g) |
Ban on admission of persons with certain diagnoses or
requiring specialized care who are covered by or eligible for Medicare or
Medicaid. Such bans may be imposed for all such prospective residents, and
shall prevent the facility from admitting the kinds of residents it has shown
an inability to care for adequately as documented by deficiencies. |
| (h) |
Ban on all Medicare and Medicaid admissions to the facility
or to any part thereof. Such bans shall remain in effect until the Department
determines that the facility has achieved substantial compliance with all
Program Requirements, or until another remedy is substituted for it. A facility
may request termination of this remedy in the manner described in (b) above.
This remedy shall not be imposed with respect to temporarily hospitalized
residents previously residing in a facility placed on such notice who return to
the facility after the date of notice, or with respect to residents who become
Medicaid eligible and who resided in the facility prior to the date of
notice. |
In determining which remedy to impose, the Department shall
consider the facility's compliance history, change of ownership, and the
number, scope, and severity of the deficiencies. Subject to these
considerations, the Department shall impose those remedies described in Section
.02 most likely to achieve correction of the deficiencies.
| (a) |
Immediate jeopardy. If the Department finds that the
facility's deficiency or deficiencies immediately jeopardize(s) the health or
safety of its residents, the Department shall:
| 1. |
appoint temporary management and impose one or more of the
remaining remedies specified in Section .02; or |
| 2. |
terminate the facility's Medicaid participation and, at its
option, impose one or more of the remaining remedies specified in Section
.02. |
|
| (b) |
Absence of immediate jeopardy. If the Department finds that
the facility's deficiency or deficiencies do not immediately jeopardize
resident health or safety, the Department may impose one or more of the
remedies specified in Section .02. |
| (c) |
Repeated noncompliance. If the Department makes a
determination of repeated noncompliance with respect to a facility, it shall
deny payment for services to any individual admitted to the facility after
notice to the facility. Additionally, the Department shall monitor the facility
on-site on a regular, as-needed basis, (as provided in Section .06 ), until the
facility has demonstrated to the Department's satisfaction that it is in
compliance with all Program Requirements governing facilities and that it will
remain in compliance. |
| (d) |
Delayed compliance. If a facility has not complied with any
Program Requirement within three (3) months of the date the facility is found
to have been out of compliance with such Requirement, the Department shall
impose the remedy of denial of payments for services to all individuals
admitted after notice to the facility. |
| (e) |
Emergencies. When the Department has determined that
residents are subject to an imminent and substantial danger, it may order
either closure of the facility or transfer of the recipients to another
facility. The Department shall give notice of any such proposed remedy to the
facility, the residents who will be affected or their representatives, the
affected residents' next-of-kin or guardians, and all attending physicians.
When either of these remedies is imposed, no Administrative Review shall be
available and the provisions of Subsection .09(2) shall apply. |
| (f) |
Conflict of remedies. In the case of facilities
participating in both Medicare and Medicaid which have been surveyed by both
the State Survey Agency and the Health Care Financing Administration, or whose
certification documents have been reviewed by both, and for whom the State
Survey Agency and the Health Care Financing Administration disagree on the
decision to impose a remedy or the choice of a remedy, the decision of the
Health Care Financing Administration with regard to Medicare shall
apply. |
Civil monetary penalties shall be based upon one or more
findings of noncompliance; actual harm to a resident or residents need not be
shown. Nothing shall prevent the Department from imposing this remedy for
deficiencies which existed prior to the survey or complaint investigation
through which they are identified. A single act, omission, or incident shall
not give rise to imposition of multiple penalties, even though such act,
omission, or incident may violate more that one Program Requirement. In such
cases, the single highest class of deficiency shall be the basis for penalty.
Compliance by the facility at a later date shall not result in the reduction of
the penalty amount. Civil monetary penalties and any attorneys' fees or other
costs associated with contesting such penalties are not reimbursable Medicaid
expenses except in the case where a facility prevails, in which case reasonable
attorneys' fees and costs shall be allowable. Whenever such penalties are
collected, the Department shall conduct a financial field audit to ensure that
there has been, and will be, no Medicaid reimbursement associated with the
penalties.
| (a) |
Classification of deficiencies. The three classes of
deficiencies upon which civil monetary penalties shall be based are as
follows:
| 1. |
Class A: A deficiency or combination of deficiencies which
places one or more residents at substantial risk of serious physical or mental
harm. |
| 2. |
Class B: A deficiency or combination of deficiencies, other
than Class A deficiencies, which has a direct adverse affect on the health,
safety, welfare, or rights of residents; or a failure to post notices issued by
the Department of imposition of remedies; |
| 3. |
Class C: A deficiency or combination of deficiencies, other
than Class A or B deficiencies, which indirectly or over a period of more than
thirty (30) days is likely to have an adverse affect on the health, safety,
welfare, or rights of residents. |
|
| (b) |
Amounts. When Civil Monetary Penalties are imposed, such
penalties shall be assessed for each day the facility is or was out of
compliance. The amounts below shall be multiplied by the total number of beds
certified for participation in the Medicare and Medicaid programs according to
the records of the State Survey Agency at the time of the survey. Penalties
shall be imposed for each class of deficiencies identified in a survey or
complaint investigation
|
Class
|
Initial Finding
|
Subsequent Finding
|
Repeat Deficiency
|
|
A
|
$ 10.00
|
$ 15.00
|
$ 20.00
|
|
B
|
5.00
|
7.50
|
10.00
|
|
C
|
1.00
|
1.50
|
3.00
|
In any ninety (90) day period, the penalty amounts may not
exceed the applicable ceiling as described immediately below. The ceiling
(Initial, Subsequent, or Repeat) shall be determined by which category has the
largest percentage of the deficiencies cited in the survey or complaint
investigation.
|
Bed Size
|
Initial Finding
|
Subsequent Finding
|
Repeat Deficiency
|
|
0 - 50
|
$ 4,000
|
$ 6,000
|
$ 8,000
|
|
51 - 100
|
6,000
|
9,000
|
12,000
|
|
101 - 150
|
8,000
|
12,000
|
16,000
|
|
151 or more
|
10,000
|
15,000
|
20,000
|
|
| (c) |
Procedure for imposing civil monetary penalties. Civil
monetary penalties shall be imposed as follows:
| 1. |
Within ten (10) business days of its discovery of a
deficiency, the State Survey Agency shall deliver to the Department its
recommendation for assessment of a penalty as a result of such
deficiency. |
| 2. |
The decision to assess the penalty shall be made by a person
in the Department who is not the surveyor(s) or complaint investigator(s) who
reported the deficiency. |
|
| (d) |
Notice. The Department shall give written notice to the
facility of its imposition of any such penalty within ten (10) business days of
its receipt of a recommendation by the State Survey Agency for the assessment
of a penalty. The notice shall inform the facility of the amount of the
penalty, the basis for its assessment, and the facility's appeal rights. |
| (e) |
Payment. Within fifteen (15) business days from the date
the notice is received by the facility, the facility shall pay the full amount
of the penalty or penalties unless the facility requests Administrative Review
of the decision to assess the penalty or penalties. The amount of a civil
monetary penalty determined through Administrative Review shall be paid within
ten (10) business days of the facility's receipt of the Administrative Review
decision unless the facility requests an Administrative Hearing. The amount of
the civil monetary penalty determined through a hearing shall be paid within
ten (10) business days of the facility's receipt of the hearing decision.
Interest at the legal rate of interest established by Georgia law shall begin
to run on the later of one (1) business day after:
| 1. |
the facility's receipt of notice of the penalty; or |
| 2. |
the date of issuance of the Administrative Review or
Hearing decision. Failure of a facility to pay the entire penalty as specified in
this paragraph shall result in an automatic final decision and no further
administrative or judicial review or hearing shall be available to the
facility.
|
|
| (f) |
Collection of civil penalties. If a facility fails or
refuses to pay a penalty within the time required, the Department may collect
the penalty by subtracting all or part of the penalty amount plus interest from
future medical assistance payments to the facility. Additionally, the
Department may subtract a fee representing the actual administrative cost of
collection. Nothing herein shall prohibit the Department from obtaining
judicial enforcement of its right to collect penalties and interest
thereon. |
| (g) |
Imposition against individuals. Each recipient resident's
functional capacity shall be assessed by the facility using an instrument
specified by the Department. A civil money penalty of $1,000 per assessment
shall be imposed by the Department against any individual who willfully and
knowingly certifies a material and false statement in such assessment
instrument or other documents used to support the assessment. A civil money
penalty of $5,000 per assessment shall be imposed by the Department against any
individual who willfully and knowingly causes another individual to certify a
material and false statement in such assessment instrument or other documents
used to support the assessment. Any such penalty shall be imposed by written
notice to the individual according to the same provisions as set forth in
Paragraphs (c) through (e) of this Section regarding deficiencies. |
| (h) |
Use of civil monetary penalties. The Department may use
collected civil monetary penalties for the following purposes:
| 1. |
protecting the health or property of residents; |
| 2. |
paying costs of relocating residents; |
| 3. |
maintaining the operation of a nursing facility while
deficiencies are corrected or the facility is being closed; and |
| 4. |
reimbursing residents for personal funds lost, which
reimbursement shall not adversely affect a person's Medicaid
eligibility. |
|
The Department shall impose the remedy of temporary management
in situations where it finds that there is a need to oversee operation of the
facility and to assure the health and safety of the facility's residents while
there is an orderly closure of the facility or while improvements are made in
order to bring the facility into compliance with all Program Requirements.
Temporary management shall not be imposed unless other less intrusive remedies
will not result in compliance, have failed to cause the facility to achieve
compliance, or the Department has found that the facility's deficiency or
deficiencies immediately jeopardize the health or safety of its
residents.
| (a) |
Recommendation for appointment of temporary management.
Within ten (10) business days of its completion of a survey or complaint
investigation, the State Survey Agency shall deliver to the Department its
written recommendation for appointment of temporary management it, in the
Agency's judgment, such appointment is necessary. The recommendation shall
specify the grounds upon which it is based, including an assessment of the
capability of the facility's current management to achieve and maintain
compliance with all Program Requirements. |
| (b) |
The decision to appoint temporary management shall be made
by a person, appointed by the Commissioner, who is not the surveyor or
complaint investigator who discovered the deficiencies or made the
recommendation for appointment. |
| (c) |
The Department shall give written notice to the facility of
its appointment of temporary management within ten (10) business days of its
receipt of a recommendation for appointment from the State Survey Agency,
unless the Department determines that temporary management is not necessary.
When the Department has determined that the facility's deficiency or
deficiencies immediately jeopardize the health or safety of its residents, no
Administrative Review shall be available and the provisions of Subsection
.09(2) shall apply. |
| (d) |
Who may serve. The Commissioner may appoint any person or
organization which meets the following qualifications:
| 1. |
The temporary manager shall not have any pecuniary interest
in or pre-existing fiduciary duty to the facility to be managed. |
| 2. |
The manager must not be related, within the first degree of
kinship, to the facility's owner, manager, administrator, or other management
principal. |
| 3. |
The manager must possess sufficient training, expertise, and
experience in the operation of a nursing facility as would be necessary to
achieve the objectives of temporary management. The manager must possess a
Georgia nursing home administrator's license. |
| 4. |
The manager must not be an existing competitor of the
facility who would gain an unfair competitive advantage by being appointed as
temporary manager of the facility. |
|
| (e) |
Powers and duties of the temporary manager.
| 1. |
The temporary manager shall have the authority to direct and
oversee the correction of Program Requirement deficiencies; to oversee and
direct the management, hiring, and discharge of any consultant or employee,
including the administrator of facility; to direct the expenditure of the
revenues of the facility in a reasonable, prudent manner; to oversee the
continuation of the business and the care of the residents; to oversee and
direct those acts necessary to accomplish the goals of the Program
Requirements; and to direct and oversee regular accountings and the making of
periodic reports to the Department. The temporary manager shall provide reports
to the Department no less frequently than monthly showing the facility's
compliance status. Should the facility fail or refuse to carry out the
directions of the temporary manager, the Department shall terminate the
facility's participation and may, at its discretion, impose any other remedies
described in Section .02. |
| 2. |
The temporary manager shall observe the confidentiality of
the operating policies, procedures, employment practices, financial
information, and all similar business information of the facility, except that
the temporary manager shall make reports to the Department as provided in this
section. |
| 3. |
The temporary manager shall be liable for gross, willful or
wanton negligence, intentional acts or omissions, unexplained shortfalls in the
facility's funds, and breaches of fiduciary duty. The temporary manager shall
be bonded in an amount equal to the facility's revenues for the month preceding
the appointment of the temporary manager. |
| 4. |
The temporary manager shall not have authority to do the
following:
| (i) |
To cause or direct the facility or its owner to incur debt
or to enter into any contract with a duration beyond the term of the temporary
management of the facility; |
| (ii) |
To cause or direct the facility to encumber its assets or
receivables, or the premises on which it is located, with any lien or other
encumbrance; |
| (iii) |
To cause or direct the sale of the facility, its assets,
or the premises on which it is located; |
| (iv) |
To cause or direct the facility to cancel or reduce its
liability or casualty insurance coverage; |
| (v) |
To cause or direct the facility to default upon any valid
obligations previously undertaken by the owners or operators of the facility,
including, but not limited to, leases, mortgages and security interests;
and |
| (vi) |
To incur capital expenditures in excess of $2,000.00
without the permission of the owner or the Commissioner. |
|
|
| (f) |
Costs. All compensation and per diem costs of the temporary
manager shall be paid by the nursing facility. The Department shall bill the
facility for the costs of the temporary manager after termination of temporary
management. The costs of the temporary manager for any thirty (30) day period
shall not exceed one-sixth of the maximum allowable administrator's annual
salary for the largest nursing facility for Medicaid reimbursement purposes.
Within fifteen (15) days of receipt of the bill, the facility shall pay the
bill or request Administrative Review to contest the costs for which it was
billed. Such costs shall be recoverable through recoupment from future medical
assistance payments in the same fashion as a benefits overpayment. The costs of
temporary management and the attorneys' fees associated with contesting such
costs are not reimbursable Medicaid expenses except in the case where a
facility prevails in a hearing, in which case reasonable attorneys' fees and
costs shall be allowable. |
| (g) |
Termination of temporary management. The Commissioner may
replace any temporary manager whose performance is, in the Commissioner's
discretion, deemed unsatisfactory. No formal procedure is required for such
removal or replacement but written notice of any action shall be given the
facility, including the name of any replacement manager. A facility subject to
temporary management may petition the Commissioner for replacement of a
temporary manager whose performance it considers unsatisfactory. The
Commissioner shall respond to a petition for replacement within three (3)
business days after receipt of said petition. Otherwise, the Department shall
not terminate temporary management until it has determined that the facility
has management capability to ensure continued compliance with all Program
Requirements or until the Department terminates the nursing facility's
participation. A facility may petition the Department for termination of
temporary management. The Department shall respond to the petition within three
(3) business days after receipt. |
| (h) |
Nothing contained in this section shall limit the right of
any nursing facility owner to sell, lease, mortgage, or close any facility in
accord with all applicable laws. |
| (1) |
The Department shall maintain procedures and adequate staff
on-site, on a regular, as-needed basis, to monitor the facility's operations,
advise the facility in its effort to come into or maintain compliance, to
report to the licensing agency, and to investigate complaints of violations
which are not easily verified on one visit.
| (a) |
One or more monitor(s) shall be placed in the nursing
facility:
| 1. |
when it has been found on three (3) standard surveys that
the nursing facility has provided substandard quality of care; |
| 2. |
when the facility has been under temporary
management; |
| 3. |
to ensure that Class A & B violations have been and
continue to be corrected; or |
| 4. |
when the Department has reason to question a nursing
facility's compliance. |
|
|
| (2) |
The Department shall bill the facility for the expenses of
monitoring at the end of the monitoring process. Within fifteen (15) days of
receipt of the bill, the facility shall pay the bill or request Administrative
Review to contest the costs for which it was billed. Such expenses shall be
recoverable through recoupment from future medical assistance payments in the
same fashion as a benefits overpayment. |
| (3) |
In the event a monitor is already in a facility pursuant to
the provisions of O.C.G.A. § 31-7-2.2(b), the Department may not place a
monitor in the facility. |
| (1) |
The Department shall give notice of the imposition of any
remedy described in this Chapter as follows:
| (a) |
To the facility in writing, transmitted in a manner which
will reasonably ensure timely receipt by the facility. |
| (b) |
To the public by transmitting printed Notices to the
facility. Such Notices shall be at least 11 1/2 inches by 17 1/2 inches in size
and of sufficient legibility that they may reasonably be expected to be
readable by the facility's residents or their representatives. A printed notice
shall not be transmitted or required to be posted for a Plan of
Correction. |
| (c) |
To the State Long-Term Care Ombudsman by placing copies
with the U. S. Postal Service of all notices to the facility. |
| (d) |
To the State Survey Agency in writing. |
|
| (2) |
The facility shall post a sufficient number of the Notices
described in Paragraph (1)(b) in places readily accessible and visible to
residents and their representatives, including but not limited to entrances,
exits, and common areas, to effectively advise all present and prospective
residents of the remedies which are being imposed. The Notices shall remain in
place until all remedies are officially removed by the Department. Failure of a
facility to comply with notice posting requirements shall constitute a Class B
deficiency. |
| (3) |
A facility shall post a Notice of Administrative Hearing
date, time, and location whenever the facility has requested and been granted a
hearing on imposition of a remedy. The notice shall be at least 11 1/2 inches
by 17 1/2 inches in size and of sufficient legibility that it may reasonably be
expected to be readable by the facility's residents or their representatives.
The notice shall be placed in an area readily accessible and visible to
residents and their representatives. |
| (4) |
The Department shall notify the attending physician of each
resident with respect to whom a finding of substandard quality of care has been
made, as well as the Board of Nursing Home Administrators, by transmitting to
them copies of the survey or complaint investigation reports and any notice to
the facility that a remedy has been imposed. The Department also may notify any
other professional licensing boards, as appropriate. |
| (5) |
Failure of the Department to effect notice as required in
Subsections (1)(b), (c), (d), or (4) shall not be grounds for the facility to
contest any action taken under this Chapter. |
| (6) |
All nursing facilities shall advise staff of the penalties
for making false statements or causing another person to make false statements
in a resident assessment. A facility must document the manner in which staff
are advised of the provisions of Rule 350-3-.04(g). |
| (7) |
The Department shall compile a list of facilities against
which remedies other than a Plan of Correction have been imposed. The list
shall be prepared monthly and be available upon request. The list shall contain
the names and addresses of only those facilities which did not contest
imposition of remedies or against which imposition was upheld upon appeal, and
shall describe the remedies imposed. |
| (1) |
Should the facility wish to contest imposition of a remedy,
other than a Plan of Correction and except as provided in Sections .03(e) and
.05(c), a written request for Administrative Review must be received by the
Department within ten (10) days of the facility's receipt of notice of
imposition of the remedy. The request shall state specifically each remedy
disputed and, for each disputed remedy, the specific basis of the dispute. For
imposition of civil monetary penalties, it shall not be a valid basis for
dispute that a deficiency no longer exists. The timely filing of a request
shall stay imposition of the remedy pending the Administrative Review decision,
except where the Department has determined there is immediate jeopardy to the
health or safety of the residents in a facility, in which case the Department
may impose the remedies described in Subsections .02(b),(g)or(h), as
determined appropriate by the Department. If the facility fails to file a
timely request, the decision to impose a remedy or remedies shall become final
and no further administrative or judicial review or hearing shall be
available. |
| (2) |
The reviewing official shall be a Department employee
appointed by the Commissioner and shall have authority only to affirm the
decision, to revoke the decision, to affirm part and to revoke part, to order
an immediate survey of the facility, to change the classification of the civil
monetary penalty (for example, from A to B), or to request additional
information from the State Survey Agency, the facility, or both, the Long-Term
Care Ombudsman, or the family or resident council of the facility. Additional
information that is requested must be supplied within ten (10) business days
from the date of notice to the party of whom it is requested. Reviewing
official shall be without authority to compromise the dollar amount of any
civil monetary penalty within a deficiency class. |
| (3) |
The Department shall issue a written decision within ten
(10) business days of its receipt of the request for Administrative Review. The
Review shall be made solely on the basis of the State Survey Agency
recommendation, the survey report, the statement of deficiencies, any
documentation the facility submits to the Department at the time of its
Request, and information received as a result of a request made by the
reviewing official. For the purposes of such Review, a hearing shall not be
held and oral testimony shall not be taken. Correction of a deficiency or
deficiencies shall not be a basis for favorable reconsideration of imposition
of civil monetary penalties. |
| (1) |
Should the facility wish to appeal the Administrative
Review decision for remedies described in Subsections .02(a),(b),(c),(g),and(h), and for Subsection (d) where no determination of immediate jeopardy
has been made, it may request an administrative hearing. Subsequent correction
of a deficiency or deficiencies shall not constitute a defense to the
imposition of a remedy or remedies. The hearing request shall state
specifically which portion(s) of the Administrative Review decision the
facility contests. A hearing shall be granted only if Administrative Review was
timely requested, and a written request for a hearing has been received by the
State Survey Agency within ten (10) business days of the facility's receipt of
the Administrative Review decision. Failure to file a timely request shall
result in the Administrative Review decision becoming final, and no further
administrative or judicial review or hearing shall be available. |
| (2) |
If the Department has imposed temporary management pursuant
to the provisions of Subsection .05(c), or imposed either of the remedies
specified in Subsection .02(e), the facility shall be entitled to a hearing
which shall commence not less than five (5) nor more than ten (10) days after
the facility's receipt of notice of imposition of said remedy or remedies. No
Administrative Review shall be conducted in such cases and no request for
hearing shall be required. The date, time, and location of the hearing shall be
included in the Notice of imposition of the remedy or remedies. A facility may
waive its right to a hearing by written notice to the State Survey
Agency. |
| (3) |
Except for appointment of a temporary manager (unless the
Department has determined that immediate jeopardy to the health or safety of a
facility's residents exists), termination of a facility's participation,
closure of a facility, or payment of civil monetary penalties, the imposition
of remedies shall not be stayed during the pendency of any
hearing. |
