S*1183 Session 108 (1989-1990)
S*1183(Rat #0535, Act #0449 of 1990) General Bill, By Leatherman, J.M. Long,
Matthews, P.B. McLeod, Peeler, J.V. Smith and N.W. Smith
A Bill to amend Chapter 6, Title 44, Code of Laws of South Carolina, 1976,
relating to State Health and Human Services Finance Commission, so as to
create groupings designated as Article 1, "General Provisions", Article 2,
"Medically Indigent Assistance Act", and Article 3, "Child Development
Services"; and to amend the 1976 Code by adding Article 4 so as to provide for
procedures for intermediate sanctions for medicaid certified nursing homes.
01/31/90 Senate Introduced and read first time SJ-7
01/31/90 Senate Referred to Committee on Medical Affairs SJ-7
03/20/90 Senate Committee report: Favorable with amendment
Medical Affairs SJ-11
03/21/90 Senate Amended SJ-23
03/21/90 Senate Read second time SJ-24
03/21/90 Senate Ordered to third reading with notice of
amendments SJ-24
03/22/90 Senate Read third time and sent to House SJ-15
03/27/90 House Introduced and read first time HJ-13
03/27/90 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-13
04/11/90 House Recalled from Committee on Medical, Military,
Public and Municipal Affairs HJ-26
04/25/90 House Read second time HJ-62
04/26/90 House Read third time and enrolled HJ-28
05/01/90 Ratified R 535
05/07/90 Signed By Governor
05/07/90 Effective date 05/07/90
05/07/90 Act No. 449
06/05/90 Copies available
(A449, R535, S1183)
AN ACT TO AMEND CHAPTER 6, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO STATE HEALTH AND HUMAN SERVICES FINANCE COMMISSION, SO
AS TO CREATE GROUPINGS DESIGNATED AS ARTICLE 1, "GENERAL
PROVISIONS", ARTICLE 2, "MEDICALLY INDIGENT ASSISTANCE
ACT", AND ARTICLE 3, "CHILD DEVELOPMENT SERVICES"; AND TO
AMEND THE 1976 CODE BY ADDING ARTICLE 4 SO AS TO PROVIDE FOR PROCEDURES
FOR INTERMEDIATE SANCTIONS FOR MEDICAID CERTIFIED NURSING HOMES.
Be it enacted by the General Assembly of the State of South Carolina:
General provisions
SECTION 1. Sections 44-6-5 to 44-6-130 of the 1976 Code are
designated as Article 1, Chapter 6, Title 44 and is entitled,
"General Provisions".
Medically Indigent Assistance Act
SECTION 2. Sections 44-6-132 to 44-6-220 of the 1976 Code are
designated as Article 2, Chapter 6, Title 44 and is entitled,
"Medically Indigent Assistance Act".
Child Development Services
SECTION 3. Sections 44-6-300 to 44-6-320 of the 1976 Code are
designated as Article 3, Chapter 6, Title 44 and is entitled, "Child
Development Services".
Intermediate Sanctions for Medicaid Certified Nursing Home Act
SECTION 4. Chapter 6, Title 44 of the 1976 Code is amended by
adding:
"Article 4
Intermediate Sanctions for Medicaid Certified
Nursing Home Act
Section 44-6-400. As used in this article:
(1) 'Department' means the Department of Health and Environmental
Control.
(2) 'Nursing home' means a facility subject to licensure as a
nursing home by the department under Article 2, Chapter 7 of Title 44
which has been certified for participation in the Medicaid program, or
which has been dually certified for participation in the Medicaid and
Medicare programs.
(3) 'Ombudsman' means the State Ombudsman established under
Chapter 38 of Title 43.
(4) 'Resident' means a person who resides or resided in a nursing
home during a period of an alleged violation.
(5) 'Commission' means the State Health and Human Services Finance
Commission.
Section 44-6-410. The department shall notify the commission if
it finds that a nursing home no longer meets a requirement for
participation in the Medicaid program. The commission may take action
authorized by this article against a nursing home it determines to be out
of compliance with the requirements for participation in the Medicaid
program. The action taken must be proportionate to the severity of the
violation as set forth by regulations of the commission.
Section 44-6-420. When the commission is notified that a nursing
home is in violation of one of the requirements for participation in the
Medicaid program, the commission, based on the severity of the violation
as set forth by regulation, may:
(1) deny payment under the Medicaid program;
(2) assess and collect monetary penalties set forth in Section
44-6-470;
(3) appoint temporary management in accordance with the provisions
of this article.
The commission may promulgate regulations to assure prompt
compliance with the requirements for participation in the Medicaid
program and shall monitor a nursing home that repeats violations.
Section 44-6-430. If a nursing home violates one of the
requirements for participation in the Medicaid program, and the violation
immediately jeopardizes the health or safety of the patients, the
commission may initiate an emergency action in a court of competent
jurisdiction to appoint a receiver to correct the deficiencies and to
temporarily manage the operations of the nursing home.
The court may immediately appoint a receiver when affidavits,
testimony, or other evidence presented by the commission show that the
conditions immediately jeopardize the health or safety of the patients
to the extent that emergency measures must be invoked. A copy of the
affidavits and order must be served on the nursing home owner or his
agent for service of process, must be sent to the State Ombudsman, and
must be posted in a conspicuous place inside the nursing home not later
than twenty-four hours after issuance of the order. A full hearing must
be held not later than twenty days after the issuance of the order unless
the owner consents to a later date.
Section 44-6-440. (A) The commission may find that there is a
need for temporary management of a nursing home due to a violation of one
of the requirements for participation in the Medicaid program, but the
violation does not immediately jeopardize the health or safety of the
patients. In this event, the commission shall file a complaint with the
circuit court in the county where the nursing home is located and request
appointment of a receiver pending the closure of the nursing home or
while improvements are being made to correct the deficiencies. The
complaint must specify the violations that warrant the appointment of a
receiver, including, but not limited to:
(1) facts showing that there exists in the nursing home one
or more conditions in violation of the requirements for participation in
the Medicaid program; and
(2) evidence that these facts have been brought to the
attention of the owner and administrator of the nursing home and that
these persons have been unwilling or unable to remedy the condition
within a reasonable period of time or that there have been repeated
violations despite previous assurances or actions to remedy the
condition.
(B) The court shall hold a hearing not later than forty-five days
after the date the complaint is filed. Notice of the hearing must be
given to the State Ombudsman not less than five days before the hearing.
Notice must be posted by the commission in a conspicuous place inside the
nursing home for not less than five days before the hearing.
(C) Upon a full evidentiary hearing, the court may:
(1) appoint a receiver as authorized in this article;
(2) allow the nursing home to remove or remedy the conditions
in accordance with Section 44-6-460;
(3) grant other relief as the court considers just and
proper; or
(4) dismiss the complaint.
Section 44-6-450. Disposition of a complaint filed pursuant to
Section 44-6-440 has precedence over every other business of the court
except the court may give priority to other pending proceedings with
similar statutory precedence.
Section 44-6-460. The owner or administrator of the nursing home
may apply to the court for permission to correct the conditions specified
in the complaint. If he demonstrates the ability to undertake promptly
and completely the actions required, then the court, instead of
appointing a receiver, may issue an order permitting him to take
corrective action in accordance with a time schedule and subject to
conditions. A bond must be posted in an amount set by the court as
security for the performance of the corrective action.
If it appears that the nursing home owner or administrator is not
complying with the order, the commission may petition the court for a
hearing to determine whether an order appointing a receiver should be
issued immediately. Notice must be given to the parties to the
proceeding.
If, after a hearing, the court determines that the order is not
being complied with, the court shall issue a final order appointing a
receiver as authorized in this article. If the person has posted a bond
to secure completion of actions ordered by the court, that bond may be
forfeited and used by the receiver to complete corrective actions.
Section 44-6-470. A nursing home found to be in violation of one
of the requirements for participation in the Medicaid program may be
fined up to twenty-five hundred dollars a day by the commission. A
nursing home that repeats violations may be fined up to five thousand
dollars a day. All fines are assessed and collected with interest from
the date of notification of the deficiencies until the date they are
corrected. The amount of the fines must be proportionate to the severity
of the violation as set forth by regulation of the commission.
Funds collected by the commission as a result of the imposition of
the fines must be used to protect the health and property of the patients
in the affected nursing home, including the relocation of patients to
other nursing homes. A receiver appointed by the court to temporarily
manage an affected nursing home, may use the funds for the cost of
relocating patients to other nursing homes, if necessary, and for
maintenance of operation of the nursing home pending correction of the
deficiencies. He may also reimburse patients for personal funds that may
have been lost as a result of the violations.
Section 44-6-480. The court may appoint as a receiver a nursing
home administrator licensed pursuant to Chapter 35 of Title 40 or other
responsible person or persons. No owner, licensee, administrator, or
employee of the affected nursing home may be appointed as receiver.
Under no circumstances may a state agency or an employee of a state
agency be appointed as a receiver for more than sixty days.
The receiver, in his discretion, may either assume the role of
administrator if so qualified and take control of all day-to-day
operations, or direct the administrator regarding actions and procedures
to be taken to correct the conditions specified in the complaint.
The receiver has the following power pursuant to court order to:
(1) hire a consultant or undertake any studies of the nursing home
he considers appropriate;
(2) make repairs, improvements, or expenditures to eliminate the
conditions specified in the complaint and direct the method or procedures
by which this is accomplished;
(3) hire or discharge an employee including the administrator;
(4) receive or expend in a reasonable and prudent manner the
revenues of the nursing home due on or after the date of the entry of the
order;
(5) continue the business of the nursing home and the care of the
residents;
(6) do acts necessary or appropriate to conserve the property and
promote the health, safety, and care of the residents;
(7) exercise other powers he considers necessary or appropriate to
implement the court order; and
(8) administer the assets of the nursing home in a manner to
maximize the benefits of adequate care to the residents and to correct
the violations identified by the department and ordered by the court.
The receiver is liable only in his official capacity for injury to
persons and property by reason of the conditions of the nursing home in
any case where an owner would have been liable. He is not personally
liable, except for acts or omissions constituting gross, wilful, or
wanton negligence.
Section 44-6-490. Within forty-five days from the date of
appointment of a receiver, the court shall hold a hearing to receive and
review a report of action taken by the receiver including an accounting
that itemizes the revenues and expenditures. The report must be filed
by the receiver within ten days of the hearing, and is open to inspection
by all parties to the case. The court may request a presentation or
settlement of the accounts by the receiver, the owner, or the licensee.
Notice of the hearing must be served on the owner, licensee, and any
party of record who appeared in the proceeding and any party with an
interest in the revenues and expenditures or other actions taken by the
receiver.
Section 44-6-500. The commission, receiver, owner, or licensee
may make a motion to terminate the receivership on grounds that the
conditions complained of have been eliminated or remedied and that the
nursing home has the management capability to ensure continued compliance
with the requirements for participation in the Medicaid program. The
court, following an inspection by the department, may review the
commission's findings and terminate the receivership subject to terms it
determines necessary or appropriate to prevent any condition in the
complaint from recurring.
Section 44-6-510. From the revenues of the nursing home, the
court shall set a reasonable amount of compensation for the services of
a receiver appointed under the provisions of this article. The cost of
receivership must be paid by the nursing home and recognized as an
allowable cost by the Medicaid program. The receiver appointed may be
required to furnish a bond, the amount and form of which must be approved
by the court and paid by the nursing home.
Section 44-6-520. No provision of this article limits the right
of an owner to sell, lease, or mortgage any nursing home subject to
receivership under this article upon the owner's presenting satisfactory
evidence to the court that:
(1) compliance with the applicable requirements of the commission
has been achieved; or
(2) the purchaser, lessee, or mortgagor has assumed the
responsibility for achieving such compliance and has filed an acceptable
plan of correction with the commission. Upon sale of the nursing home,
the receivership must be terminated.
Section 44-6-530. Before instituting an action under this
article, the commission shall determine if the Secretary of the United
States Department of Health and Human Services has jurisdiction under
federal law. In such cases, the commission shall coordinate its efforts
with the secretary to maintain an action against the nursing home. In
an action against a nursing home owned and operated by the State of South
Carolina, the secretary has exclusive jurisdiction.
Section 44-6-540. The commission is authorized to promulgate
regulations, pursuant to the Administrative Procedures Act, to administer
this article."
Time effective
SECTION 5. This act takes effect upon approval by the Governor.
Approved the 7th day of May, 1990.
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