S 816 Session 111 (1995-1996)
S 0816 General Bill, By Leatherman, Martin, McGill, Peeler and J.V. Smith
Similar(H 4192)
A Bill to amend Title 44, Chapter 6, Article 4, as amended, Code of Laws of
South Carolina, 1976, relating to medicaid nursing home sanctions, so as to
provide for a survey agency for the purpose of conducting nursing home
compliance surveys for the medicaid program in South Carolina and to revise
the sanctions that may be imposed.
05/04/95 Senate Introduced and read first time SJ-5
05/04/95 Senate Referred to Committee on Medical Affairs SJ-5
A BILL
TO AMEND TITLE 44, CHAPTER 6, ARTICLE 4, AS
AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO MEDICAID NURSING HOME SANCTIONS, SO
AS TO PROVIDE FOR A SURVEY AGENCY FOR THE
PURPOSE OF CONDUCTING NURSING HOME COMPLIANCE
SURVEYS FOR THE MEDICAID PROGRAM IN SOUTH
CAROLINA AND TO REVISE THE SANCTIONS THAT MAY
BE IMPOSED.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Article 4, Chapter 6, Title 44 of the 1976 Code, as
last amended by Act 181 of 1993, is further amended to read:
"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 Human Services.
(2) `Nursing home' means a facility subject to licensure as a
nursing home by the department Department of Health
and Environmental Control 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) `Survey agency' means the agency which conducts
nursing home compliance surveys for the Title XIX (Medicaid)
Program in South Carolina.
Section 44-6-410. The department survey
agency shall notify the Department of Health and Human
Services department if it finds that a nursing home no
longer meets a requirement for participation in the Medicaid
program. The Department of Health and Human Services
department 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 department of Health and Human
Services and may take into account the nursing home's
previous record of compliance with requirements for participation in
the Medicaid program as documented by any type of survey
including, but not limited to, any annual, follow-up, complaint,
extended, or special survey conducted at the nursing home after
October 1, 1990.
Section 44-6-420. (A) When the department of
Health and Human Services is notified that a nursing home is in
violation of one of the requirements for participation in the
Medicaid program, it, based on the severity of the violation as set
forth by regulation, may:
(1) require a directed plan of correction;
(2) require state monitoring;
(3) require directed in-service training;
(1)(4) deny payment under the Medicaid
program;
(2)(5) assess and collect monetary penalties
set forth in Section 44-6-470;
(3)(6) appoint temporary management in
accordance with the provisions of this article; and
(7) terminate the provider agreement.
(B) The department is specifically authorized to impose one
or more of the sanctions authorized by this article against a nursing
home determined to be out of compliance with the conditions of
participation in the Medicaid program. Nothing contained in this
article prevents the department from terminating a nursing home's
provider agreement at any time the department considers it
necessary to protect the health, safety, and welfare of the residents.
The imposition of any intermediate sanction authorized by this
article may not be considered a condition precedent to
termination.
(C) The department of Health and Human
Services 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 44-6-425. The department may name the survey
agency as the department's designee for the delegation of portions
of the enforcement responsibilities authorized by this article as the
department considers appropriate. If the department delegates any
responsibilities to the survey agency, as the authorized designee of
the department, the survey agency has the same powers, duties,
responsibilities, and limitations otherwise applicable to the
department in conducting the delegated responsibilities.
Section 44-6-430. (A) 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 residents, the department of Health and
Human Services 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.
(B) The court may immediately may
appoint a receiver when affidavits, testimony, or other evidence
presented by the Department of Health and Human Services
department show that the conditions immediately jeopardize
the health or safety of the patients residents 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 the nursing home owner's 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 Department of Health and
Human Services department 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
residents. In this event, it the department
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 Department of Health
and Human Services department 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. (A) 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 the
owner or administrator 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 the owner or administrator 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.
(B) If it appears that the nursing home owner or
administrator is not complying with the order, the Department of
Health and Human Services department 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.
(C) 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) 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 Department of Health and Human Services
department. 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 Department of Health and Human
Services department.
(B) Funds collected by the Department of Health
and Human Services department as a result of the
imposition of the fines, other than funds required to be paid
over to the federal government, must be used to protect the
health and property of the patients in the affected nursing
home residents, including the relocation of
patients residents 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 residents to other nursing homes, if
necessary, and for maintenance of operation of the nursing home
pending correction of the deficiencies. He may The
receiver also may reimburse patients
residents for personal funds that may have been lost as a
result of the violations.
Section 44-6-480. (A) 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.
(B) 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.
(C) The receiver has the following power
powers pursuant to court order to:
(1) hire a consultant or undertake any studies of the nursing
home he the receiver 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 the receiver
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
survey agency and ordered by the court.
(D) The receiver is liable only in his
an 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 The receiver 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 in other actions taken by the receiver.
Section 44-6-500. The Department of Health and Human
Services department 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 survey agency, may review the
Department of Health and Human Services's survey
agency'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
Department of Health and Human Services
department 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
department. Upon sale of the nursing home, the
receivership must be terminated.
Section 44-6-530. Before instituting an action under this article,
the Department of Health and Human Services
department shall determine if the Secretary of the United
States Department of Health and Human Services has jurisdiction
under federal law. In such these cases, it
the department 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 department
is authorized to may promulgate regulations,
pursuant to the Administrative Procedures Act, to administer
this article."
SECTION 2. This act takes effect July 1, 1995.
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