S 1240 Session 110 (1993-1994)
S 1240 General Bill, By Bryan
A Bill to amend Section 40-35-131, Code of Laws of South Carolina, 1976,
relating to complaints against licensed nursing home or community residential
care facility administrators, so as to provide for the circumstances under
which copies of inspection reports must be provided to the Board of Long Term
Health Care Administrators and for the requirements for continuing education
credits, further investigation, and license suspension; to amend Section
40-35-133, relating to disciplinary sanctions by the Board, so as to include
continuing education credits; to amend Section 44-7-320, as amended, relating
to the denial, suspension, or revocation of health care facility licenses and
other penalties, so as to include discrimination against a person with
disabilities, revise related references to abusers, the mentally ill, and the
mentally retarded, and provide for assessment of penalties and action required
for certain violations; and to amend Section 44-7-350, as amended, relating to
plans of care and conditions for community residential care facilities, so as
to include agencies providing services to a client and revise the requirements
for the plans.
03/08/94 Senate Introduced and read first time SJ-5
03/08/94 Senate Referred to Committee on Medical Affairs SJ-5
A BILL
TO AMEND SECTION 40-35-131, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO COMPLAINTS AGAINST
LICENSED NURSING HOME OR COMMUNITY RESIDENTIAL
CARE FACILITY ADMINISTRATORS, SO AS TO PROVIDE FOR
THE CIRCUMSTANCES UNDER WHICH COPIES OF
INSPECTION REPORTS MUST BE PROVIDED TO THE BOARD
OF LONG TERM HEALTH CARE ADMINISTRATORS AND FOR
THE REQUIREMENTS FOR CONTINUING EDUCATION
CREDITS, FURTHER INVESTIGATION, AND LICENSE
SUSPENSION; TO AMEND SECTION 40-35-133, RELATING TO
DISCIPLINARY SANCTIONS BY THE BOARD, SO AS TO
INCLUDE CONTINUING EDUCATION CREDITS; TO AMEND
SECTION 44-7-320, AS AMENDED, RELATING TO THE
DENIAL, SUSPENSION, OR REVOCATION OF HEALTH CARE
FACILITY LICENSES AND OTHER PENALTIES, SO AS TO
INCLUDE DISCRIMINATION AGAINST A PERSON WITH
DISABILITIES, REVISE RELATED REFERENCES TO ABUSERS,
THE MENTALLY ILL, AND THE MENTALLY RETARDED, AND
PROVIDE FOR ASSESSMENT OF PENALTIES AND ACTION
REQUIRED FOR CERTAIN VIOLATIONS; AND TO AMEND
SECTION 44-7-350, AS AMENDED, RELATING TO PLANS OF
CARE AND CONDITIONS FOR COMMUNITY RESIDENTIAL
CARE FACILITIES, SO AS TO INCLUDE AGENCIES
PROVIDING SERVICES TO A CLIENT AND REVISE THE
REQUIREMENTS FOR THE PLANS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 40-35-131 of the 1976 Code, as added by
Act 605 of 1990, is amended to read:
"Section 40-35-131. (A) A person or public officer,
including a board member, or an agency or association may file a
complaint with the board against a licensee. The Department of
Health and Environmental Control shall provide a copy of its
inspection report to the board if, during an inspection of a community
residential care facility, the inspector finds that the community
residential care facility at which the licensee serves as an administrator
has a repeat violation of the same Class I violation, two or more Class
I violations in a single inspection or review, or three or more Class II
violations during one inspection. The board has jurisdiction to
hear all charges brought against persons licensed as nursing home or
community residential care facility administrators, including licensees
holding emergency licenses.
(B) When a complaint is received by the board, a committee of the
board will shall conduct an initial review and an
investigation, if the board determines that an investigation is
necessary, and shall recommend to the board whether formal charges
should must be brought against the administrator. No
nursing home administrators nor consumer, sponsor, or family
member of a consumer of nursing home services, may
participate on the committee conducting these matters concerning a
complaint against a community residential care facility administrator.
No community residential care facility administrator nor consumer,
sponsor, or family member of the consumer of community
residential care services, may participate on the committee
conducting these matters concerning a complaint against a nursing
home administrator.
(C) After initial review of a complaint and recommendations from
the committee are presented to the board, the board may determine
that an investigation is necessary, or dismiss the
complaint without investigation, or, for community residential care
facility administrators, recommend to the licensee that specific
continuing education credits must be completed successfully in lieu of
further investigation for the licensee's first complaint. A second
complaint against a community residential care facility administrator
as a result of the Department of Health and Environmental Control's
review or investigation as defined in subsection (A) requires an
investigation and temporary suspension of the license until the
investigation is completed. If an investigation is undertaken by the
committee, the committee may conduct an investigatory conference to
determine whether to recommend to the board that a formal charge is
warranted.
(D) After completion of the investigation and consideration of the
committee's recommendation, the board may bring formal charges
against the licensee or dismiss the initial complaint.
(E) Nothing in this section precludes duly authorized
members of the board from meeting informally with the licensee to
dispose of the initial complaint with a consent order, except as
defined in subsections (A) and (C) with regard to community
residential care facility administrators.
(F) A licensee who is under investigation for any of the items of
misconduct may voluntarily surrender his license
voluntarily to the board. The voluntary surrender invalidates
the license at the time of its relinquishment, and no person whose
license is surrendered voluntarily may practice as a nursing home or
community residential care facility administrator until the board takes
action. A person practicing as a nursing home administrator or
community residential care facility administrator during the period
of voluntary license surrender is considered an illegal practitioner
and is subject to the penalties provided by this chapter. The surrender
of a license, as provided by this subsection, may must
not be considered as an admission of guilt in a proceeding under this
chapter. The surrender does not preclude the board from imposing
conditions on the acceptance of the proferred surrender, which the
licensee shall meet before the return of his license, nor does the
surrender preclude the board from taking disciplinary action under this
section."
SECTION 2. Section 40-35-133 of the 1976 Code, as added by
Act 605 of 1990, is amended to read:
"Section 40-35-133. Upon a determination by the board that
one or more of the grounds for revocation or suspension of a license
or for otherwise disciplining a licensee exist in accordance with the
provisions of Section 40-35-130, the board may take any
one or more of the following actions regarding the license or the
licensee:
(1) issue a public or private reprimand;
(2) impose costs, not to exceed the actual costs of the board in
processing the disciplinary action against the licensee,
including, but not limited to, amounts expended for board members'
attendance at hearings, service of papers, witness fees and expenses,
and court reporter;
(3) impose a fine not to exceed two thousand dollars for each
ground of revocation, suspension, or other discipline, with the total
amount imposed not to exceed ten thousand dollars;
(4) place the licensee on probation for a definite or indefinite time
and prescribe conditions to be met during probation;
(5) suspend the license for a definite or indefinite time, and
prescribe conditions to be met before readmission to practice,
which may include the successful completion of credit hours of
continuing education in areas specified by the board which address the
areas of concern identified by the complaint;
(6) permanently revoke the license."
SECTION 3. Section 44-7-320 of the 1976 Code, as last amended
by Act 339 of 1992, is further amended to read:
"Section 44-7-320. (A)(1) The department may deny,
suspend, or revoke licenses or assess a monetary penalty against a
person or facility for:
(a) violating a provision of this article or departmental
regulations;
(b) permitting, aiding, or abetting the commission of an
unlawful act relating to the securing of a Certificate of Need or the
establishment, maintenance, or operation of a facility requiring
certification of need or licensure under this article;
(c) conduct or practices detrimental to the health or safety of
patients, residents, clients, or employees of a facility or service. This
provision does not refer to health practices authorized by law;
(d) refusing to admit and treat alcoholic and substance
abusers, the mentally ill, or the mentally retarded, or
discriminating against persons with a disability, as defined in the
Americans with Disabilities Act, whose admission or treatment
has been prescribed by a physician who is a member of the facility's
medical staff; or discriminating against alcoholics, the mentally ill, or
the mentally retarded solely because of the alcoholism, mental illness,
or mental retardation;
(e) failing to allow a team advocacy inspection of a
community residential care facility by the South Carolina Protection
and Advocacy System for the Handicapped, Inc., as allowed by law.
(2) Consideration to deny, suspend, or revoke licenses or assess
monetary penalties is not limited to information relating to the current
licensing year but includes consideration of all pertinent information
regarding the facility and the applicant.
(3) If in the department's judgment conditions or practices exist
in a facility that pose an immediate threat to the health, safety, and
welfare of the residents, the department immediately may suspend the
facility's license and shall contact the appropriate agencies for
placement of the residents. Within five days of the suspension a
preliminary hearing must be held to determine if the immediate
threatening conditions or practices continue to exist. If they do not, the
license must be immediately reinstated immediately.
Whether the license is reinstated or suspension remains due to the
immediate threatening conditions or practices, the department may
proceed with the process for permanent revocation pursuant to this
section. For community residential care facilities, the department
shall assess penalties as defined by regulations providing standards for
licensing the facilities. However, Class I violations must be corrected
immediately, and the facility reinspected within thirty days to assure
correction. A Class I violation found to be repeated at the time of that
review or a subsequent review during the next two years requires the
department to revoke the facility's license. Two or more Class II
repeat violations during a department inspection require the department
to assess penalties. Class I violations and Class II repeat violations
must be reported to the state's licensing authority for community
residential care facilities administrators.
(B) Should If the department determine
determines to assess a penalty, deny, suspend, or revoke a
license, it shall send to the appropriate person or facility, by certified
mail, a notice setting forth the particular reasons for the determination.
The determination becomes final thirty days after the mailing of the
notice, unless the person or facility, within such the
thirty-day period, requests in writing a contested case hearing before
the board, or its designee, pursuant to the Administrative Procedures
Act. On the basis of the contested case hearing, the determination
involved must be affirmed, modified, or set aside. Judicial review may
be sought in accordance with the Administrative Procedures Act.
(C) The penalty imposed by the department for violation of this
article or its regulations must be not less than one hundred nor more
than five thousand dollars for each violation of any of the provisions
of this article. Each day's violation is considered a subsequent offense.
(D) Failure to pay a penalty within thirty days is grounds for
suspension, revocation, or denial of a renewal of a license. No license
may be issued, reissued, or renewed until all penalties finally assessed
against a person or facility have been paid.
(E) No Certificate of Need may be issued to any a
person or facility until a final penalty assessed against a person or a
facility has been paid.
(F) All penalties collected pursuant to this article must be
deposited in the state treasury and credited to the general fund of the
State."
SECTION 4. Section 44-7-350 of the 1976 Code, as last amended
by Act 670 of 1988, is further amended to read:
"Section 44-7-350. The agency placing a client or
providing services to a client in a community residential care
facility shall develop an individual plan of care in cooperation with the
provider and the client. The placing agency
placing or providing services shall monitor the plan to the
extent considered appropriate by the placement agency at least
annually and must be available to review and revise the plan if
requested by the client or the community residential care facility
administrator.
Prior to Before a community residential care
facility being is licensed for operation in an area
which is outside incorporated areas of a county, the following
conditions must be met:
(1) The governing body for the area must be given notice of the
proposed location.
(2) Where the governing body objects to the proposed site for the
facility, the arbitration procedures set forth in Act 449 of 1978 must
be employed."
SECTION 5. This act takes effect upon approval by the Governor.
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