Arkansas Administrative Code
Agency 016 - DEPARTMENT OF HUMAN SERVICES
Division 05 - Developmental Disabilities Services
Rule 016.05.07-006 - Policy 1090 - Licensing Policy for Center-Based Community Services

Further, if a Sheltered Workshop or other adult development service of a nonprofit community program or program component is paying a commensurate wage, the nonprofit community program or program component must maintain current wage and hour certification from the U.S. Department of Labor.

DDS does not consider an application submitted at any other time or under any other circumstances.

DDS considers only completed applications. If an application is incomplete, DDS promptly notifies the applicant that the application is incomplete and will not be considered. DDS identifies in the notice the items missing from the application.

During the term of a Temporary License, a DDS Licensure Team conducts a Licensure Review in accordance with Section 8 of this policy. If the DDS Licensure Team determines that the nonprofit community program or program component is in substantial compliance with applicable Licensure Standards, DDS issues a Regular License. If the DDS Licensure Team determines that the nonprofit community program or program component is not in substantial compliance with applicable licensure standards, DDS imposes corrective actions or sanctions or both in accordance with Section 9 of this policy.

If the nonprofit community program or program component is unable to achieve substantial compliance with applicable Licensure Standards during the term of the Temporary License, DDS denies issuance of a Regular License to the nonprofit community program or program component.

Within ninety (90) calendar days before a Licensure Review, DDS sends notice of the Licensure Review to the Director or Executive Officer and Board President of the nonprofit community program and identifies any information that DDS requires the nonprofit community program or program component to submit prior to the Licensure Review. For example, DDS may request a letter of assurances signed by the Director or Executive Office of the nonprofit community program or designee and the President of the Board of Directors of the nonprofit community program or designee stating that the program's or program component's written policies and procedures are in compliance with the applicable licensure standards.

After receipt of notice of a Licensure Review, the director nonprofit community program or program component shall post a sign announcing in advance the approximate date range during which DDS expects to perform a Licensure Review of the program or program component. The notice should be posted in areas easily observable by individuals served and their families and should include DDS contact information.

The objective of offsite preparation is to analyze various sources of information available about the nonprofit community program or program component to identify any potential areas of concern, to ascertain any special features of the program or program component, and to focus the efforts of the DDS Licensure Review Team during the onsite tour and with regard to onsite information gathering.

The DDS Licensure Review Team Leader or designee is responsible for obtaining all available sources of information about the program or program component for review by the Team including without limitation:

* Documentation from the program or program component requested in advance,

* The prior year's Licensure Review report,

* Incident reports submitted during the prior year, and

* The results of any complaint investigations during the prior year.

The Team Leader is responsible for presenting the information obtained to the Team for review at an offsite team meeting prior to the Licensure Review. At this meeting, the Team Leader should establish preliminary review assignments, and the Team should identify potential areas of concern and note any special features of the program or program component.

The Team Leader or designee conducts the entrance conference with the director of the nonprofit community program or program component and any program staff designated by the director. During the entrance conference, the Team Leader or designee:

* Introduces team members,

* Explains the Licensure Review process,

* Informs program staff that the team will be communicating with them through the Licensure Review and will ask for assistance when needed,

* Advises program staff that they will have the opportunity to provide the Team with any information that would clarify an issue brought to their attention, and

* Answers any questions from program staff.

It is recommended that after their introduction to director of the program or program component, the other team members proceed to the initial tour and make general observations of the nonprofit community program or program component.

The Team Leader asks director of the nonprofit community program or program component to provide access to information determined by the Team as necessary to complete the Licensure Review.

In areas easily observable by individuals served and their families, the Team Leader or designee shall post a sign or arrange for the director of the program or program component to post a sign announcing that DDS is performing a Licensure Review and that DDS team members are available to meet in private with individuals served or their families or both.

Throughout the Licensure Review process, the Team should discuss among themselves, on a daily basis, observations made and information obtained in order to focus on the concerns of each team member, to facilitate information gathering and to facilitate decision making at the completion of the Licensure Review.

The initial tour is designed to provide team members with an initial assessment of the nonprofit community program or program component, the individuals served and their families, and program staff. During the initial tour, team members should:

* Make an initial evaluation of the environment of the program or program component,

* Identify areas of concern to be investigated during the Licensure Review,

* Confirm or invalidate pre-review information about potential areas of concern, and

* Document their findings.

The DDS Licensure Review Team gathers information for the Licensure Review from three (3) primary sources: review of records, interviews, and observations. Each team member should verify information and observations in terms of credibility and reliability. All findings must be documented. The Team should maintain an open and ongoing dialogue the program staff throughout the Licensure Review process.

The Team should meet on a daily basis to share information, such as findings to date, areas of concern, any changes needed in the focus of the Licensure Review. These meetings include discussions of concerns observed, possible requirements to which those concerns relate, and strategies for gathering additional information to determine whether the program or program component is meeting licensure standards.

Immediate jeopardy. At any time during the Licensure Review, if one or more team members identify possible immediate jeopardy, the Team should meet immediately to confer. The team must determine whether there is immediate jeopardy during the information gathering task.

Immediate jeopardy is defined as a situation in which the program's or program component's failure to meet one or more licensure standards has caused, or is likely to cause, serious injury, harm, impairment, or death of an individual served. The guiding principles for determining the scope and severity of noncompliance make it clear that immediate jeopardy can be related to mental or psychosocial well-being as well as physical well-being and that the situation in question need not be a widespread problem.

If the team concurs that there is immediate jeopardy, the team leader immediately consults his or her supervisor. If the supervisor concurs, that the situation constitutes immediate jeopardy, the team lead informs the director of the program or program component or designee that DDS is invoking the immediate jeopardy license revocation procedures. The team leader explains the nature of the immediate jeopardy to the director of the program or program component or designee who must submit a statement while the team is on-site asserting that the immediate jeopardy has been removed and including a plan of sufficient detail to demonstrate how and when the immediate jeopardy was removed.

The Team will provide the director of the program or program component with a written report concerning the nature of the immediate jeopardy within ten (10) days of the date of the exit conference.

Substandard Quality of Care. At any time during the Licensure Review, if a team member identifies possible substandard qualify of care, the team member should notify other members of the team as soon as possible. The team may make a finding of substandard qualify of care during the information gathering task or the information analysis and decision-making task.

If there is a deficiency(ies) related to noncompliance with Licensure Standards concerning Individual/Parent/Guardian Rights or Service Provision and the team member classifies the deficiency as an isolated incidence of severity level 3 or as a pattern of severity level 2, the team member determines if there is sufficient evidence to support a decision that there is substandard quality of care. If the evidence is not sufficient to confirm or refute a finding of substandard quality of care, the team member may expand the Licensure Review to include additional evaluation of the program or program component's compliance with the licensure standard at issue. To determine whether or not there is substandard quality of care, the Team should assess additional information related to the licensure standard at issue, such as written policies and procedures, staff qualifications and functional responsibilities, and specific agreements and contracts that may have contributed to the outcome. It may also be appropriate to conduct a more detailed review of related service delivery.

If the determination of substandard quality of care is made prior to the exit conference, the Team will provide the director of the program or program component with information concerning the nature of the substandard quality of care.

If the determination of substandard quality of care is made after the exit conference, the Team will provide the director of the program or program component with a written report concerning the nature of the substandard quality of care within fifteen (15) days of the date of the completion of the review.

The objective of information analysis for deficiency determination is to review and analyze all information collected and to determine whether or not the nonprofit community program or program component has failed to meet one or more of the applicable licensure standards. Information analysis and decision making builds on discussions of the DDS Licensure Review Team during daily meetings, which should include discussions of observed problems, area of concern, and possible failure to meet licensure standards. The team leader or designee collates all information and records the substance of the decision-making discussions on the Licensure Review report.

Deficiency Criteria: The Team bases all deficiency determinations on documented observations, statements by individuals served, statement by the families of individual serviced, statements by program staff, and available written documents.

Evidence Evaluation: The Team evaluates the evidence documented during the Licensure Review to determine if a deficiency exists due to a failure to meet a licensure standard and if there are any negative outcomes for individuals served due to the failure. The Team should evaluate all evidence in terms of credibility and reliability.

The DDS Licensure Review Team will conduct an exit conference with nonprofit community program or program component staff immediately following the completion of the Licensure Review. The general objective of the exit conference is to inform the program or program component of the Team's observations and preliminary findings.

During the exit conference, the Team describes the deficiencies that have been identified and the findings that substantiate these deficiencies. The Team provides the program staff with an opportunity to discuss and supply additional information that the program staff believe is pertinent to the identified findings.

The report of the Licensure Review should be written in terms specific enough to allow a reasonably knowledgeable person to understand the aspect(s) of the licensure standard(s) that is (are) not met. The report should identify the specific licensure standards not met and reflect the content of each licensure standard identified. The report should include a summary of the evidence and supporting observations for each deficiency. The report shall identify the sources of evidence (e.g., interview, observation, or records review) and identify the impact or potential impact of the noncompliance on the individual served, and how it prevents the individual served from reaching his or her highest practicable physical, mental or psychosocial well-being. The levels of severity and scope of deficiencies should be clearly identifiable.

In order to select the appropriate remedy(ies) for noncompliance, the seriousness of the deficiency(ies) is first assessed because specific levels of seriousness correlate with specific remedies. The assessment factors described below are also presented on the matrix in Appendix A.

Guidance on Severity Levels: There are four (4) severity levels:

* Level 1 - No actual harm with potential for minimal harm - is a deficiency that has the potential for causing no more than a minor negative impact of the individual served.

* Level 2 - No actual harm with potential for more than minimal harm that is not immediate jeopardy - is a noncompliance that results in minimal physical, mental or psychosocial discomfort to the individual served or has the potential to compromise the individual served's ability to maintain or reach his or her highest practicable physical, mental or psychosocial well-being as defined by a plan of care and provision of services.

* Level 3 - actual harm that is not immediate jeopardy - is noncompliance that results in a negative outcome that has compromised the individual served's ability to maintain or reach his or her highest practicable physical, mental or psychosocial well-being as defined by an accurate and comprehensive assessment, plan of care, and provision of services. This does not include a deficient practice that only has limited consequence for the individual served and would be included in Level 2 or Level 1.

* Level 4 - immediate j eopardy to the health or safety of an individual served - is a situation in which immediate corrective action is necessary because the program's or program component's noncompliance with one or more licensure standards has caused, or is likely to cause, serious injury, harm, impairment, or death to an individual served.

Guidance on Scope Levels: There are three (3) scope levels:

* Isolated - when one or a very limited number of individuals served are affected, when one or a very limited number of staff are involved, or when the situation has occurred only occasionally or in a very limited number of locations.

* Pattern - when more than a very limited number of individuals served are affected, when more than a very limited number of staff are involved, when the situation has occurred in several locations, or when the same individual served has been affected by reported occurrences of the same deficient practice. A pattern of deficient practices is not found to be pervasive through the program or program component. If the program or program component has a system or policy in place but the system or policy is being inadequately implemented in certain instances or if there is inadequate system with the potential to impact only a subset of individuals served, then the deficient practice is likely a pattern.

* Pervasive - when the problems causing the deficiencies are pervasive in the program or program component or represent systemic failure that affected or has the potential to affect a large portion or all of the individuals served by the program or program component. If the program or program component lacks a system or policy or has an inadequate system or policy to meet the licensure standard and this failure has the potential to affect a large number of individuals served, then the deficient practice is likely widespread.

DDS provides the nonprofit community program or program component with a written report documenting the findings made during the Licensure Review within thirty (30) calendar days of the date of the exit conference.

If the Licensure Review Report contains a deficiency that is classified as substandard quality of care, DDS provides the program or program component with a written report concerning the nature of the substandard quality of care within fifteen (15) days of the date of the exit conference.

If the Licensure Review Report contains a deficiency that is classified as immediate jeopardy, DDS provides the program or program component with a written report concerning the nature of the immediate jeopardy within ten (10) days of the date of the exit conference.

In General. A plan of correction is a plan that the nonprofit community program develops in order to achieve compliance with licensure standards after a finding of substantial noncompliance. Substantial noncompliance refers to a deficiency(ies) that is (are) categorized as no actual harm with potential for more than minimal harm that is (are) not immediate jeopardy and is (are) not substandard quality of care.

In order for a plan of correction to be acceptable, it must:

* Contain elements detailing how the nonprofit community program or program component will correct the deficiency as it relates to the individual served;

* Indicate how the program or program component will act to protect individual service in similar situations;

* Include the measures the program or program component will take or the systems it will alter to ensure that the problem does not recur,

* Indicate how is plans to monitor its performance to make sure that solutions are sustained; and

* Provide dates when corrective action will be completed. Completion dates will be determined in conjunction with DDS.

DDS approves the plan of correction if it satisfies the elements described above. If DDS does not approve the plan of correction, DDS shall provide the nonprofit program or program component with a written explanation stating the reasons the plan of correction does not satisfy the elements described above. The program or program component shall revise the plan of correction until it is approved by DDS. All revisions must be completed within the time frame designated below for submission of the plan of correction.

Substantial compliance: Substantial compliance means a level of compliance with Licensure Standards such that any identified deficiencies pose no greater risk to the health or safety of individuals served than the potential for causing minimal harm. Substantial compliance constitutes compliance with Licensure Standards.

When DDS finds that a nonprofit community program or program component is in substantial compliance but has deficiencies that are isolated with no actual harm and potential for only minimal harm, a plan of correction is not required but the program or program component is expected to correct all deficiencies.

When DDS finds that a nonprofit community program or program component is in substantial compliance but has deficiencies that constitute a pattern or widespread with no actual harm and potential for only minimal harm, a plan of correction is required. While a program or program component is expected to correct deficiencies at this level, these deficiencies are within the substantial compliance range and do not need to be reviewed for correction during subsequent follow-up reviews within the same Licensure Review cycle.

Not in substantial compliance: Within fifteen (15) calendar days of receipt of a licensure report with deficiencies that are categorized as no actual harm with potential for more than minimal harm that is not immediate jeopardy and are not substandard quality of care, the nonprofit community program or program component develops and submits to DDS a written plan of correction.

Not in substantial compliance with substandard quality of care or actual harm that is not immediate jeopardy. Within ten calendar (10) days of receipt of a licensure report with deficiencies that are categorized as substandard quality of care or actual harm that is not immediate jeopardy, the nonprofit community program or program component develops and submits to DDS a written plan of correction.

Not in substantial compliance with immediate jeopardy. Within two calendar (2) days of receipt of a licensure report with deficiencies that categorized as immediate jeopardy, the nonprofit community program or program component develops and submits to DDS a written plan of correction.

DDS conducts a follow-up Abbreviated Review to confirm that the nonprofit program or program component is in compliance with licensure standards and has the ability to remain in compliance with licensure standards. The purpose of the follow-up Abbreviated Review is to re-evaluate the specific care and services that were cited as noncompliant during the Licensure Review, Service Concern Investigation, or other onsite Survey.

If DDS accepts program's or program component's plan of correction, DDS conducts a follow- up Abbreviated Review within thirty (30) calendar days of acceptance of the plan of correction but not before the latest date of corrective action proposed by the program or program component. At the follow-up Abbreviated Review, the Team should focus on the actions taken by the program or program component since the correction dates listed on the plan of correction.

Within fifteen (15) calendar days of the follow-up Abbreviated Review, DDS sends a written report documenting the findings made during the follow-up Abbreviated Review.

DDS may impose a directed plan of correction fifteen (15) calendar days after the program or program component receives notice in non-immediate jeopardy situations and two (2) calendar days after the program or program component receives notice in immediate jeopardy situations.

The date a directed plan of correction is imposed does not mean that all corrections must be completed by that date.

DDS may provide special consultative services for obtaining this type of training. At a minimum, DDS should compile a list of resources that can provide directed in-service training and make this list available to programs and program components and other interested parties.

The program or program component bears the expense of directed in-service training.

If a program or program component fails to achieve substantial compliance after completing directed in-service training, DDS may impose another Enforcement Remedy until the program or program component achieves substantial compliance or loses its license.

If an audit reveals that a program or program or program component has not complied with billing requirements in a reckless or intentional manner, DDS may impose additional Enforcement Remedies, including without limitation, license revocation, exclusion and debarment.

A State Monitor is an appropriate professional who:

* Is an employee or contractor of DDS,

* Is not an employee or contractor of the monitored program or program component,

* Does not have an immediate family member who is served by the monitored program or program component, and

* Does not have any other conflict of interest with the monitored program or program component.

When State Monitoring is imposed, DDS selects the State Monitor. Monitoring may occur anytime in a program or program component. State Monitors have complete access to the premises, staff, individuals served and their families, and all records of the program or program component at all times and in all instances for performance of the monitoring task.

Some situations in which State Monitoring may be appropriate include without limitation:

* Poor compliance history, i.e. a pattern of poor quality of care, many complaints,

* DDS concern that the situation has the potential to significantly worsen, or

* Substandard quality of care or immediate jeopardy exists and the program or program component seems unable or unwilling to take corrective action.

The Enforcement Remedy of State Monitoring is discontinued when the program or program component demonstrates that it is in substantial compliance with licensure standards and that it will remain in substantial compliance. A program or program component can demonstrate continued compliance by adherence to a plan of correction that delineates what systemic changes will be made to ensure that the deficient practice will not recur and how the program or program component will monitor its corrective actions to ensure it does not recur.

DDS imposes a Moratorium New Admissions when DDS finds that the program or program component is not in substantial compliance ninety (90) calendar days after the last day of the Licensure Review identifying the deficiency, or when a program or program component has been found to have furnished substandard quality of care during its last three (3) consecutive Licensure Reviews.

An individual admitted to a program or program component on or after the effective date of the remedy is considered a new admission. An individual admitted to a program or program component on or after the effective date of the remedy who is discharged from the program or program component or takes a temporary leave from the program or program component is still considered new admission upon readmission or return.

An individual admitted to a program or program component before and discharged on or after the effective date of the remedy is not considered a new admission if the individual is subsequently readmitted to the program or program component. An individual admitted to a program or program component before the effective date of the remedy who takes temporary leave before or after the effective date is not consider a new admission upon return.

Generally, if the program or program component achieves substantial compliance and it is verified through a follow-up Abbreviated Review or credible written evidence, DDS lifts the Moratorium on New Admissions. However, when a Moratorium on New Admissions is imposed for repeated instances of substandard quality of care, DDS may impose the remedy until the program or program component is in substantial compliance and DDS believes the program or program component will remain in substantial compliance.

The failure of a program or program component to substantially comply with licensure standards after sixty calendar (60) days of Provisional Licensure indicates that the program or program component is unable or unwilling to take necessary corrective action and that individuals with developmental disabilities are in danger of losing services. A Moratorium on Expansion continues until the nonprofit community program or program component is in substantial compliance with applicable licensure standards, and DDS believes the program or program component is willing and able to remain in substantial compliance.

If the nonprofit community program or program component has made considerable progress toward substantial compliance with applicable licensure standards during the period of Provisional Licensure, the DDS Director or designee may grant an extension before a Moratorium on Expansion is imposed.

Provisional Licensure. If the license of a nonprofit a nonprofit community program or program component is downgraded to Provisional License more than one (1) time in a three-year period, the program or program component is subject to License Revocation.

Immediate Jeopardy. When there is immediate jeopardy to the health or safety of an individual served, DDS revokes the license of a nonprofit community program or program component to be effective within thirty (30) calendar days of the last day of the Licensure Review that found the immediate jeopardy if the immediate jeopardy is not removed before then If the program or program component provides a written and timely credible allegation that the immediate jeopardy has been removed, DDS will conduct a follow-up Abbreviated Survey prior to revocation if possible. In order for a License Revocation to be reversed, the immediate jeopardy must be removed even if the underlying deficiencies have not been fully corrected.

No Immediate Jeopardy. License Revocation is always an option that may be imposed for the noncompliance of any nonprofit community program or program component regardless of whether or not immediate jeopardy is present. When there is not immediate jeopardy, DDS revokes the Regular License of a nonprofit community program or program component if the program or program component fails to achieve substantial compliance after one hundred and eighty (180) calendar days of Provisional Licensure.

If the relocation is the result of an act of God or violence, DDS staff will be onsite as soon as possible to provide technical assistance with temporary relocation and licensure standards regarding Physical Plant, Accessibility, and Safety.