H*3800 Session 108 (1989-1990)
H*3800(Rat #0746, Act #0605 of 1990) General Bill, By J.C. Hearn, J.M. Baxley and
J.B. Wilder
A Bill to amend Chapter 34, Title 40, Code of Laws of South Carolina, 1976,
relating to the regulation and licensing of nursing home administrators; and
to amend the 1976 Code by adding Sections 40-35-131 through 40-35-136, so as
to further provide for the regulation and licensing of nursing home
administrators and for the regulation and licensing of community residential
care facility administrators, including provisions to rename and reconstitute
the membership of the State Board of Examiners for Nursing Home
Administrators.-amended title
03/30/89 House Introduced and read first time HJ-8
03/30/89 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-9
05/25/89 House Committee report: Favorable with amendment
Medical, Military, Public and Municipal Affairs HJ-12
06/01/89 House Amended HJ-37
06/01/89 House Read second time HJ-44
01/10/90 House Read third time and sent to Senate HJ-61
01/11/90 Senate Introduced and read first time SJ-15
01/11/90 Senate Referred to Committee on Medical Affairs SJ-15
05/23/90 Senate Committee report: Favorable with amendment
Medical Affairs SJ-28
06/06/90 Senate Amended SJ-39
06/06/90 Senate Read second time SJ-57
06/06/90 Senate Ordered to third reading with notice of
amendments SJ-57
06/07/90 Senate Read third time and returned to House with
amendments SJ-82
06/07/90 House Concurred in Senate amendment and enrolled HJ-91
06/19/90 Ratified R 746
06/25/90 Signed By Governor
06/25/90 Effective date 12/25/90
06/25/90 Act No. 605
06/25/90 See act for exception to or explanation of
effective date
07/31/90 Copies available
(A605, R746, H3800)
AN ACT TO AMEND CHAPTER 35, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO THE REGULATION AND LICENSING OF NURSING HOME
ADMINISTRATORS; AND TO AMEND THE 1976 CODE BY ADDING SECTIONS
40-35-131 THROUGH 40-35-136 SO AS TO FURTHER PROVIDE FOR THE
REGULATION AND LICENSING OF NURSING HOME ADMINISTRATORS AND FOR THE
REGULATION AND LICENSING OF COMMUNITY RESIDENTIAL CARE FACILITY
ADMINISTRATORS, INCLUDING PROVISIONS TO RENAME AND RECONSTITUTE THE
MEMBERSHIP OF THE STATE BOARD OF EXAMINERS FOR NURSING HOME
ADMINISTRATORS.
Be it enacted by the General Assembly of the State of South Carolina:
Licensing and regulation of nursing home administrators and community
residential care facility administrators
SECTION 1. Chapter 35, Title 40, of the 1976 Code is amended to
read:
"CHAPTER 35
Board of Examiners for Nursing Home
Administrators and Community
Residential Care Facility Administrators
Section 40-35-10. For the purposes of this chapter:
(1) `Board' means the State Board of Examiners for Nursing Home
Administrators and Community Residential Care Facility Administrators.
(2) `Nursing home administrator' means a person who has attained
the requisite education and experience, is otherwise qualified, and
has been issued a license by the board and is thereby eligible to
administer, manage, supervise, or be in administrative charge of a
nursing home.
(3) `Nursing home' means any institution or facility defined for
licensing purposes under law or pursuant to regulations for nursing
homes promulgated by the Department of Health and Environmental
Control, whether proprietary or nonprofit including, but not limited
to, nursing homes owned or administered by the State or political
subdivisions thereof. The definition does not include habilitation
centers for the mentally retarded or persons with related conditions.
(4) `Habilitation center for the mentally retarded or persons
with related conditions' means a facility which is licensed by the
Department of Health and Environmental Control that serves four or
more mentally retarded persons or persons with related conditions and
provides health or rehabilitative services on a regular basis to
individuals whose mental and physical conditions require services
including room, board, and active treatment for their mental
retardation or related conditions.
(5) `Qualified mental retardation professional' means a person
who, by training and experience, meets the requirements of applicable
federal law and regulations for a qualified mental retardation
professional, as determined by the South Carolina Department of Mental
Retardation.
(6) `Community residential care facility administrator' means a
person who has attained the required education and experience, is
otherwise qualified, has been issued a license by the board, and is
eligible to administer, manage, supervise, or be in administrative
charge of a community residential care facility.
(7) `Community residential care facility' means a facility
defined according to Section 44-7-130 and which is licensed by the
Department of Health and Environmental Control, whether proprietary or
nonprofit.
(8) `Consumer' means a person who is or has been a resident of a
nursing home or community residential care facility.
(9) `Sponsor' means a person who is financially or legally
responsible for an individual currently residing in a nursing home or
residential care facility.
Section 40-35-20. There is created the State Board of
Examiners for Nursing Home Administrators and Community Residential
Care Facility Administrators composed of nine members who must be
appointed by the Governor, with the advice and consent of the Senate,
for three-year terms and until their successors are appointed and
qualify. Three must be qualified nursing home administrators duly
licensed under this chapter, at least one of whom must be from a
nonproprietary nursing home and one must be a qualified hospital
administrator; three must be community residential care facility
administrators, who after July 1, 1992, must be licensed under this
chapter, at least one of whom must be from a community residential
care facility with ten or fewer residents; one must be a consumer,
sponsor, or family member of a consumer of nursing home services; one
must be a consumer, sponsor, or family member of a consumer of
community residential care services; and one must be a voting member
of the Long Term Care Council. The Long Term Care Council shall elect
from among its voting members a nominee to be recommended to the
Governor. If the Governor does not accept the nomination, an
additional nominee must be selected in the same manner. The
Commissioner of the Department of Health and Environmental Control, or
his designee, shall serve as an ex officio nonvoting member of the
board. An individual, group, or association may nominate qualified
individuals and submit them to the Governor for his consideration in
making these appointments. In case of a vacancy the Governor shall
appoint, with the advice and consent of the Senate, a successor to
serve for the unexpired term. No appointive member shall serve more
than two consecutive full terms. The board shall meet at least twice
a year.
Section 40-35-30. (A) The board may issue licenses to
qualified persons as nursing home administrators and as community
residential care facility administrators, including a joint license
for a person who is an administrator of both a nursing home and a
community residential care facility, and shall establish qualification
criteria. No license may be issued to any person unless he submits
evidence satisfactory to the board as required in subsection (B) or
(C) below.
(B) A nursing home administrator must:
(1) be at least twenty-one years of age;
(2) be of reputable and responsible character;
(3) be of sound physical and mental health;
(4) have the following education and experience:
(a) a baccalaureate degree in nursing home
administration or related health care administration from an
accredited college or university and one year of practical experience
in nursing home administration or related health care administration;
(b) a baccalaureate degree other than in health care
administration from an accredited college or university and two years
of practical experience in nursing home administration or related
health care administration; or
(c) a combination of education and experience
acceptable under regulations promulgated by the board; and
(5) successfully completed the nursing home administrators
examination administered by the board and paid the established fees.
(C) A community residential care facility administrator must:
(1) be at least twenty-one years of age;
(2) be of reputable and responsible character;
(3) be of sound physical and mental health;
(4) have at least twelve months experience working in a
community residential care facility before applying for licensure;
(5) after January 1, 1993, all applicants, excluding those
for renewal, be required to have a high school diploma or the
equivalent; and
(6) successfully complete the community residential care
facility administrators examination administered by the board and pay
the established fees.
(D) Each applicant for a nursing home administrator or community
residential care facility administrator license shall request the
State Law Enforcement Division to conduct a criminal records check and
to furnish the results to the board before initial licensing. This
action is required of each owner and administrator of a proprietorship
or partnership. In the case of a corporation, this action is required
of each owner of five percent or more of each class of outstanding
stock, and the chairman of the board and president. Where licensees
are governmental agencies, the criminal records check must be obtained
on the individual who is the administrator of the governmental
facility. The board may deny an application for licensure where the
results of the check meet the misconduct provisions of Section
40-35-130(11).
Section 40-35-32. No nursing home or community residential care
facility within the State may operate except under the supervision of
an administrator licensed in accordance with this chapter.
Section 40-35-40. (A) A nursing home administrator's or community
residential care facility administrator's license is not transferable.
(B) Licenses are renewable annually upon such dates as
established by the board, upon completion of an application for
renewal, payment of the established fee, and proof of requisite
continuing education pursuant to board regulations.
(C) If the license is not renewed pursuant to this provision,
the license lapses on the expiration date.
(D) A nursing home administrator or community residential care
facility administrator previously licensed in this State whose license
has lapsed for failure to renew on or before the expiration date of
his license may seek reinstatement of the license within two years of
the expiration date by submitting an application with the renewal fee,
payment of a penalty as provided in the fee schedule of the board
regulations, and proof of requisite continuing education.
(E) If the license has lapsed for more than two years, the
individual shall meet the requirements of Section 40-35-30 to become
relicensed.
(F) The board must be satisfied that an applicant remains
qualified for licensure before renewal of a current license or
reinstatement of a lapsed license.
Section 40-35-50. The board shall promulgate a fee schedule for
the purpose of carrying out the provisions of this chapter.
Section 40-35-60. All fees collected by the board, with the
exception of fines and costs collected pursuant to Section 40-35-134,
must be deposited with the State Treasurer to the credit of the
general fund.
Section 40-35-70. The board shall elect from its membership a
chairman, vice chairman, and secretary-treasurer and shall adopt
regulations to govern its proceedings. The members of the board must
be compensated for their services at the regular per diem rate
established by law for other state boards, committees, and commissions
and may be reimbursed for actual and necessary expenses incurred in
connection with and as a result of their work as members of the board.
The board may employ and establish the duties of necessary personnel
to assist it in the performance of its duties.
Section 40-35-80. The board has authority to determine the
qualifications, skill, and fitness of any applicant for a license
under the provisions of this chapter, and the holder of a license
under the provisions of this chapter is deemed qualified to serve as
the administrator of a nursing home or the administrator of the
community residential care facility.
Section 40-35-90. The board has the following powers and
duties:
(a) To develop, impose, and enforce standards which must be met
by individuals in order to receive a license as a nursing home
administrator or community residential care facility administrator,
which standards must be designed to insure that nursing home
administrators and community residential care facility administrators
are individuals of good character, suitable, and qualified to serve as
nursing home administrators or community residential care facility
administrators.
(b) To develop, and apply appropriate techniques, including
examination and investigation, for determining whether an individual
meets such standards.
(c) To license and renew the licenses of qualified individuals.
(d) To evaluate and approve necessary programs of training and
instruction to enable all licensees to receive continuing education
annually which is a requirement of relicensure.
(e) To evaluate and investigate complaints, conduct hearings and
proceedings, and discipline licensees for violations of this chapter
or board regulations.
(f) To evaluate complaint and investigative information received
from the Department of Health and Environmental Control, the long term
care ombudsman of the Governor's office, the Department of Social
Services, the peer review of the South Carolina Health Care
Association or any other source, with a view to the improvement of the
standards imposed for licensing, for decisions on revocation or
suspension of licenses, or for other disciplinary actions, and for
assessing the qualifications for relicensure of nursing home
administrators and community residential care facility administrators.
(g) To promulgate, amend, repeal, and enforce regulations
consistent with law as it considers necessary for the proper
administration and enforcement of this chapter.
Section 40-35-100. The board may issue a nursing home
administrator's license or community residential care facility
administrator's license to any person who holds a current license as a
nursing home administrator or community residential care facility
administrator from another jurisdiction if it finds that the standards
for licensure in such other jurisdiction are at least the substantial
equivalent of those prevailing in this State, and if the applicant has
passed the South Carolina portion of the licensure examination and is
otherwise qualified.
Section 40-35-110. It is unlawful and constitutes a misdemeanor
for any person to act or serve in the capacity of a nursing home
administrator or residential care facility administrator unless he is
the holder of a license issued in accordance with the provisions of
this chapter. Any person convicted of violating this section is
subject to a fine not to exceed one thousand dollars or imprisonment
not to exceed ninety days.
Section 40-35-130. Misconduct, which constitutes grounds for
revocation, suspension, or other restriction of a license or a
limitation or other discipline of a licensee, is a satisfactory
showing to the board of any of the following:
(1) violating any provision of this chapter or the regulations
of the board;
(2) acting in a manner inconsistent with the health or safety of
the patients of the nursing home or community residential care
facility;
(3) acting in a fraudulent or deceitful manner in the practice
of nursing home administration or community residential care facility
administration or in his admission, or the admission of any other
person, to the practice;
(4) failing to ensure that the nursing home or community
residential care facility in which he is an administrator complies
with the provisions of law and regulations of the licensing or
supervising authority or agency, whether federal, state, or local,
having jurisdiction over the operation and licensing of the nursing
home or community residential care facility;
(5) using alcohol, drugs, or controlled substances to such a
degree as to adversely affect his ability to act as a nursing home
administrator or community residential care facility administrator;
(6) failing to operate a nursing home or community residential
care facility in a manner which ensures the safety, health, and
welfare of the patients;
(7) continuing to operate a nursing home or community
residential care facility after sustaining a physical or mental
impairment or disability which renders further practice by him
dangerous to the public;
(8) supervising or aiding an unlicensed person in the practice
of nursing home administration or community residential care facility
administration;
(9) permitting unauthorized disclosure of information relating
to a patient in a nursing home or community residential care facility
under his administration;
(10) disciplinary action by the authorities of another state with
respect to the nursing home administrator or community residential
care facility administrator license issued by that state;
(11) conviction of, or pleading guilty or nolo contendere to, a
felony, as defined under the law of this State, or any crime involving
the safety, health, or welfare of a resident of a nursing home or
community residential care facility, or any other crime involving
moral turpitude. The license of a person who is convicted of, or who
pleads guilty or nolo contendere to, those crimes mentioned in this
item immediately may be suspended temporarily pending final
disposition of a disciplinary proceeding to be commenced upon the
conviction or the entry of the plea of guilty or nolo contendere. A
person so suspended must be reinstated immediately upon the filing of
a certificate that the conviction has been reversed. The
reinstatement does not terminate a disciplinary action pending against
the person. The license of a person may be suspended immediately
pending final disposition of a disciplinary proceeding where the board
has probable cause to believe that continued practice as a nursing
home administrator or community residential care facility
administrator by the licensee constitutes harm to the safety, health,
or welfare of patients in a nursing home or community residential care
facility.
Section 40-35-140. Habilitation centers for the mentally retarded
or persons with related conditions funded in whole or in part by the
Department of Mental Retardation must be under the supervision of a
licensed nursing home administrator or a qualified mental retardation
professional who has been determined by the department to have the
requisite training and experience."
Complaints, investigations, and disciplinary actions
SECTION 2. The 1976 Code is amended by adding:
"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 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 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 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. 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.
(F) A licensee who is under investigation for any of the items
of misconduct may voluntarily surrender his license 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 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 40-35-132. (A) In the event the board determines that
formal charges must be brought against the licensee, the board may
hear the charges or may, in its discretion, appoint a hearing officer
or officers to hear the charges.
(B) The board or the appointed hearing officer or officers shall
set the time and place for a hearing and have the authority to issue
subpoenas, administer oaths, and take testimony.
(C) The licensee has the right to appear at the hearing with or
without counsel, to present evidence, to cross-examine witnesses, and
to have subpoenas issued in his behalf.
(D) Whenever a disciplinary hearing is held before a hearing
officer or officers, the hearing officer or officers shall make
written findings of fact, conclusions, and recommendations to the
board. The board, through its executive director or attorney, shall
notify the licensee or his counsel, if any, of the time and place at
which the board will consider the recommendations of the hearing
officer or officers for the purpose of determining its action thereon.
The licensee or his counsel must be informed of the right to submit
briefs and be heard in oral argument in opposition to or in support of
the recommendations of the hearing officer or officers.
(E) After the case has been heard, the board may, in its
discretion, hold the matter under advisement and prescribe
requirements to be met by the licensee in order to avoid disciplinary
sanctions. In that event, the board shall issue, within a reasonable
period of time and in no case longer than thirty days after the case
is heard, a written order setting forth the requirements, including
the time frame within which compliance must be achieved. If the
licensee makes a satisfactory showing to the board of compliance with
the order, the board may enter an order finding satisfactory
compliance and may dismiss the case.
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;
(6) permanently revoke the license.
Section 40-35-134. (A) All costs and fines imposed under Section
40-35-133(2) and (3) are due and payable immediately upon imposition.
Interest at the legal rate accrues on the amount due from the date
imposed until the date it is paid.
(B) The board shall remit all amounts received by way of costs
and fines and by way of interest to the State Treasurer to be
deposited in a special fund from which the board must be reimbursed
for the administrative costs of each disciplinary proceeding upon the
approval of the Budget and Control Board. At any time the special
fund exceeds twenty thousand dollars, all funds in excess of twenty
thousand dollars must be remitted to the state's general fund.
Section 40-35-135. Every communication, whether oral or
written, made by or on behalf of a person, to the board or a person
designated by it to investigate or hear matters relating to the
revocation, suspension, or other restriction of a license or the
limitation on or other discipline of a licensee, whether by way of
complaint or testimony, is privileged, and no action or proceeding,
civil or criminal, shall lie against the person, by or on whose behalf
the communication is made, except upon proof that the communication
was made with malice.
No part of this article may be construed as prohibiting the
respondent or his legal counsel from exercising the respondent's
constitutional right of due process under the law, nor as prohibiting
the respondent from normal access to the charges and evidence filed
against him as part of due process under the law.
Section 40-35-136. No person connected with any complaint,
investigation, or other proceeding before the board, including, but
not limited to, a witness, counsel, counsel's secretary, board member,
board employee, court reporter, or investigator, may mention the
existence of, disclose information pertaining to, or discuss any
testimony or other evidence in the complaint, investigation, or other
proceeding, except to persons involved and having a direct interest in
such, and then only to the extent necessary for the proper disposition
thereof. Whenever the board receives information in a complaint,
investigation, or other proceeding before it indicating a violation of
state or federal law, the board may provide that information, to the
extent the board considers necessary, to the appropriate state or
federal law enforcement agency or regulatory board."
Transition provisions
SECTION 3. Those nursing home administrators serving on the
Nursing Home Administrators Board immediately prior to the effective
date of this act may be appointed to serve on the board created by
this act. The initial terms of members of the board created by this
act are as follows: one nursing home administrator and one community
residential care facility administrator for a one-year term; one
nursing home administrator and one community residential care facility
administrator for a two-year term; one nursing home administrator and
one community residential care facility administrator for a three-year
term; one consumer or sponsor or family member of a consumer of
nursing home services for a one-year term; one consumer or sponsor or
family member of a consumer of residential care services for a
two-year term; and the member from the Long Term Care Council for a
three-year term.
For one year following the effective date of this act, the
following members of the Nursing Home Administrators Board immediately
prior to the effective date of this act will serve as nonvoting ex
officio members of the Board of Examiners for Nursing Home
Administrators and Community Residential Care Facility Administrators:
the medical doctor or nurse educator, the Commissioner of the
Department of Social Services or his designee, and the Director of the
Commission on Aging or his designee.
Until regulations are promulgated pursuant to this act, but no
later than July 1, 1992, nursing home administrators must continue to
meet the licensing standards and requirements in the manner provided
by law and regulation existing on the effective date of this act and
community residential care facility administrators must not be
licensed or subject to the provisions of this act.
Time effective
SECTION 4. This act takes effect six months after approval by the
Governor.
Approved the 25th day of June, 1990.
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