Louisiana Administrative Code
Title 50 - PUBLIC HEALTH-MEDICAL ASSISTANCE
Part II - Nursing Facilities
Subpart 3 - Standards for Payment
Chapter 101 - Standards for Payment for Nursing Facilities
Subchapter L - Sanctions and Appeal Procedures
Section II-10167 - General Provisions

i. whether the violations pose an immediate threat to the health or safety of the residents;

ii. the duration of the violations;

iii. whether the violation (or one that is substantially similar) has previously occurred during the last three consecutive surveys;

iv. the facility's history of compliance during the last three consecutive surveys;

v. what sanction is most likely to cause the facility to come into compliance in the shortest amount of time;

vi. the severity of the violation if it does not pose an immediate threat to health or safety;

vii. the logistical feasibility of implementing the sanction;

viii. the "good faith" exercised by the facility in attempting to stay in compliance;

ix. the financial benefit to the facility of committing or continuing the violation; and

x. such other factors as the secretary deems appropriate.

i. deny payment under the state plan with respect to any individual admitted to the nursing facility involved after notice to the public and to the facility as may be provided for by law;

ii. monitor the facility on site, until the facility has demonstrated, to the satisfaction of the Department, that it is in compliance with all requirements and that it will remain in compliance with such requirements;

i. take immediate action to remove the jeopardy and correct the deficiencies through the appointment of temporary management; or

ii. terminate the facility's participation under the state plan and may provide, in addition, any other remedies the department deems appropriate.

i. terminate the facility's participation under the state plan;

ii. provide for one or more of the remedies described in Authority and Scope of this Subchapter §10167; or

iii. do both.

i. specify the violation(s);

ii. cite the legal authority which established such violation(s);

iii. cite any sanctions assessed for each violation;

iv. inform the administrator that the facility has ten days from receipt of notice sent by certified mail or hand delivery within which to request a reconsideration of the proposed agency action;

v. inform the administrator of the facility that the consequences of failing to timely request an administrative appeal will be that the departmental determination is final and no further administrative or judicial review may be had; and

vi. inform the administrator of the facility if the Department has elected to regard the violation(s) as repeat violation(s) or as continuing violation(s) and the manner in which sanctions will be imposed.

i. Where the Department of Health and Hospitals has established the existence of a violation as of a particular date and the violation is one that may be reasonably expected to continue until corrective action is taken, the department may elect to treat said continuing violation as a repeat violation subject to appropriate fines for each day following the date on which the initial violation is established, until such time as there is evidence establishing a date by which the violation was corrected.

ii. Where the Department of Health and Hospitals has established the existence of a violation and another violation occurs within 18 months which is the same or substantially similar to the previous violation, the subsequent violation and all other violations thereafter shall be considered repeat violations subject to fines and other Sanctions appropriate for repeat violations.

iii. If the facility does not request an administrative appeal in a timely manner or does not submit satisfactory evidence to rebut the department's findings of a violation, the secretary shall have the authority to enforce sanctions, as provided in these regulations. The Department of Health and Hospitals shall forward its findings to the facility by certified mail or hand delivery, and any sanctions imposed shall commence as of the date such determination is received by the facility. The department may institute all necessary civil court action to collect fines imposed and not timely appealed. No nursing facility may claim fines as reimbursable costs, nor increase charges to residents as a result of such fines. Interest shall begin to accrue at the current judicial rate on the day following the date on which any fines become due and payable.

iv. The facility may request an administrative reconsideration of the violation(s) within ten days of receipt of notice of the proposed agency action. This reconsideration shall be conducted by a designated official of the department who did not participate in the initial decision to impose the penalty. Reconsideration shall be made solely on the basis of documents before the official and shall include the survey report and statement of violations and all documentation the facility submits to the department at the time of its request for reconsideration. Correction of a violation shall not be a basis for reconsideration. A hearing shall not be held. Oral presentations can be made by Department spokesperson, facility spokesperson, and Elderly Affairs Representatives familiar with the facts and circumstances of the violation. The designated official shall have authority only to affirm the decision, to revoke the decision, to affirm in part and revoke in part, or to request additional information from either the department or the facility. The secretary or a designated official shall be without authority to waive any penalty or to compromise the dollar amount of any penalty unless part of the original decision is revoked. The official shall render a decision on the reconsideration within three days from the date of receipt of the facility's request.

i. state which violation(s) the facility contests and the specific reasons for disagreement; and

ii. be submitted to the Department of Health and Hospitals within 30 days of receipt of the secretary's decision on the final agency action by certified mail or hand delivery.

i. Except as hereinafter provided, when an administrative appeal is requested in a timely and proper manner, the Department of Health and Hospitals shall provide an administrative hearing in accordance with the provisions of the Louisiana Administrative Procedure Act. Any party may appear and be heard at any proceeding described herein through an attorney at law or through a designated representative. A person appearing in a representative capacity shall file a written notice of appearance on behalf of the facility identifying himself by name, address, and telephone number, and identifying the party represented, and shall have a written authorization to appear on behalf of the facility.

ii. The administrative law judge conducting the hearing may require the prevailing of any motions by either party no later than the close of business on the third working day prior to the hearing.

iii. When the violation(s) jeopardize the health, safety, rights, or welfare of the facility's residents, the requested hearing shall be held within 14 days of the receipt of the request. The administrative law judge shall review all relevant evidence and make a final written determination within six days after the administrative hearing.

iv. In all other cases, the requested hearing shall be held within 30 days of the receipt of the request. The administrative law judge shall review all relevant evidence and make a final written determination within 15 days after the administrative hearing.

v. The administrative law judge may assess attorney's fees and costs against the facility if it is determined that the facility's appeal was frivolous.

vi. Although not specifically required for an administrative hearing, the Administrative law judge may schedule a preliminary conference.

i. clarification, formulation and simplification of issue(s);

ii. resolution of matters in controversy;

iii. exchange of documents and information;

iv. stipulations of fact so as to avoid unnecessary introduction of evidence at the formal review;

v. the identification of witnesses; and

vi. such other matters as may aid disposition of the issues.

i. The administrative appeal hearing shall be conducted by an administrative law judge from the Appeals Section.

ii. Testimony shall be taken only on oath, affirmation, or penalty of perjury.

iii. Each party shall have the right to call and examine parties and witnesses, to introduce exhibits, to question opposing witnesses and parties on any matter relevant to the issue even though the matter was not covered in the direct examination, to impeach any witness regardless of which party first called him to testify, and to rebut the evidence against him.

iv. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil or criminal actions. Documentary evidence may be received in the form of copies or excerpts.

v. The administrative law judge may question any party or witness and may admit any relevant and material evidence.

vi. The administrative law judge shall control the taking of evidence in a manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the administrative law judge shall explain the issues and the order in which evidence will be received.

vii. A party has the burden of proving whatever facts it must establish to sustain its position.

viii. The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.

ix. Each party shall arrange for the presence of their witnesses at the hearing.

x. A subpoena to compel the attendance of a witness may be issued by the Administrative law judge upon written request by a party and showing of the need therefore. A subpoena may be issued by the administrative law judge on his own motion.

xi. An application for subpoena duces tecum for the production by a witness of books, papers, correspondence, memoranda, or other records shall be made in writing to the administrative law judge, giving the name and address of the person or entity upon whom the subpoena is to be served. The application shall precisely describe the material that is desired to be produced and shall state the materiality thereof to the issue involved in the proceeding. It shall also include a statement, that to the best of the applicant's knowledge, the witness has such items in his possession or under his control.

xii. The administrative law judge may continue the matter when such continuance will not jeopardize the health, safety, rights, or welfare of the facility's residents.

xiii. The administrative law judge may continue a hearing to another time or place, or order a further hearing on his own motion or upon showing of good cause, at the request of any party, provided that the time limits by the Administrative Appeal Process in this subchapter §10167 are met.

xiv. Where the administrative law judge determines that additional evidence is necessary for the proper determination of the case, he may at his discretion:

xv. Written notice of the time and place of a continued or further hearing shall be given except that when a continuance of further hearing is ordered during a hearing, oral notice of the time and place of the hearing may be given to each party present at the hearing.

xvi. A sound recording of the hearing shall be made. A transcript will be prepared and reproduced at the request of a party to the hearing provided he bears the cost of the copy of the transcript.

xvii. At the conclusion of the hearing, the administrative law judge shall take the matter under submission. The administrative law judge shall prepare a written proposed decision to the Secretary of the Department of Health and Hospitals which will contain findings of fact, a determination of the issues presented, a citation of applicable policy and regulations, and an order.

xviii. The administrative law judge shall make specific written findings as to each violation that was contested by the facility. The administrative law judge shall have authority to affirm, reverse, or modify the findings or penalties of the department. The administrative law judge shall transmit such findings by certified mail or hand delivery to the facility at the last known address within time periods stated above in Administrative Appeal Process and by regular mail or hand delivery to the Department and other affected parties. Any civil fines assessed shall commence as of the date findings are received by the facility. Interest on the amount of the fines assessed shall begin accruing on the eleventh day following commencement of the fines at the then current rate of judicial interest.

xix. If a facility representative fails to appear at a hearing, a decision may be issued by the administrative law judge dismissing the appeal hearing and making the departmental findings final. A copy of the decision shall be mailed to each party.

x. Any dismissal may be rescinded upon order of the administrative law judge if the facility's representative makes written application within 10 calendar days after mailing of the dismissal, provides evidence of good cause for his failure to appear at the hearing, and no delay beyond the time limits as indicated in this Subchapter, §10167 under Administrative Appeal Process results.

i. If the results of the administrative hearings are adverse to the facility, the facility may request a judicial review of such matters to the Nineteenth Judicial District Court within 15 days of receipt of such findings. Such appeal shall be suspensive.

ii. The facility shall furnish with the appeal, a bond in the minimum amount of one and one-half times the amount of the fine imposed by the Department of Health and Hospitals. The bond furnished shall provide in substance that it is furnished as security that the facility will prosecute its appeal, that any judgment against it including court courts, will be paid or satisfied from the amount furnished, or that otherwise the surety is liable for the amount assessed against the facility.

iii. The appeal shall be heard in a summary proceeding.

iv. At the conclusion of the judicial review, any party aggrieved by the decision may seek further appeals as authorized by law.

i. the facility has been found not to be in compliance with such requirements and is in the process of correcting deficiencies to achieve such compliance;

ii. the facility was previously found not to be in compliance with such requirements, has corrected deficiencies to achieve such compliance, and verification of continued compliance is indicated; or

iii. she state has reason to question the compliance of the facility with such requirements.

i. periodic unannounced site visits by a surveyor during the period of the day where care is most compromised (e.g. during the medication administration or during the meal service); or

ii. on-site full time monitoring by surveyors on shifts on 8-12 hours to observe all phases of operation of the facility.

i. The total amount of fines assessed for violations determined in any one month shall not exceed $5,000.00, except that the aggregate fines assessed for Class A or B violations shall not exceed $10,000.00 in any one month.

i. the gravity of the violation including the probability that death or serious physical harm to a resident will result or has resulted;

ii. the severity and scope of the actual or potential harm;

iii. the extent to which the provisions of the applicable statutes or regulations were violated;

iv. the "good faith" exercised by the licensee. Indications of good faith include, but are not limited to:

v. any relevant previous violations committed by the licensee.

vi. the financial benefit to the licensee of committing of continuing the violation;

vii. approved waivers.

i. medications or treatments are improperly administered or withheld by nursing personnel;

ii. there is a failure to adequately and appropriately feed residents who are unable to feed themselves or there is use of specialized feeding equipment or substances which are outdated, not protected from contamination, or incorrectly used;

iii. there is a failure to change or irrigate catheters as ordered by a physician or there is use of irrigation sets or solutions which are outdated or not protected from contamination;

iv. there is a failure to obtain physician orders for the use, type, and duration of restraints or physical restraints are improperly applied or facility personnel fail to check and release restraint as specified in regulations;

v. staff knowingly fails to answer call lights;

vi. there is a failure to turn or reposition as ordered by a physician or as specified in regulations;

vii. there is a failure to provide rehabilitative nursing as ordered by a physician or as specified in regulations.

i. medications or treatments are improperly administered or withheld by nursing personnel;

ii. there is a failure to adequately and appropriately feed residents who are unable to feed themselves or there is use of specialized feeding equipment and substances which are outdated, not protected from contamination or incorrectly used;

iii. there is a failure to change or irrigate catheters as ordered by a physician or there is use of irrigation sets and solutions which are outdated or not protected from contamination;

iv. there is a failure to obtain physician orders for the use, type, and duration of restraints, or physical restraints are improperly applied, or facility personnel fail to check and release the restraint as specified in regulations;

v. staff knowingly fails to answer call lights;

vi. there is a failure to turn or reposition residents as ordered by a physician or as specified in regulations; and

vii. there is a failure to provide rehabilitative nursing as ordered by a physician or as specified in regulations.

i. denial of payment applies to any individual admitted to the nursing facility involved after such notice to the public and to the facility as may be provided for by the state.

i. Appointment of a temporary manager based on one or more of the following grounds shall become effective only upon the later of the expiration of the period for seeking appeal or upon the entry of a final administrative determination by the Department of Health and Hospitals or a hearing officer.

i. exercise those powers and perform those duties set out by the Department of Health and Hospitals in accordance with these and any other applicable provisions;

ii. operate the nursing facility in such a manner as to assure safety and adequate health care for the residents;

iii. take such action as is reasonably necessary to protect or conserve the assets or property of the facility for which the temporary manager is appointed, or the proceeds from any transfer thereof, and use them only in the performance of authorized powers and duties;

iv. use the building, fixtures, furnishings, and any accompanying consumable goods in the provision of care and services to residents and to any other persons receiving services from the nursing facility;

v. Collect payments for all goods and services provided to residents or others during the period of the temporary management at the same rate of payment charged by the owners at the time the temporary manager was appointed or at a fair and reasonable rate as otherwise approved by the Department of Health and Hospitals;

vi. correct or eliminate any deficiency in the structure or furnishings of the nursing facility which endanger the safety, health, or welfare or residents, provided the total cost of correction does not exceed $5,000. The Department of Health and Hospitals may order expenditures for this purpose in excess of $5,000 on application from the temporary manager after notice to the owner and an opportunity for informal hearing by the secretary or his designee to determine the reasonableness of the expenditures;

vii. let contracts and hire employees at rates reasonable in the community to carry out the powers and duties of the temporary management;

viii. honor all leases, mortgages, and secured transactions governing the building in which the nursing facility is located and all goods and fixtures in the building of which the temporary manager has taken possession, but only to the extent of payments which, in the case of a rental agreement, are for the use of the property during the period of temporary management, or which, in the case of a purchase agreement, become due during that same period;

ix. have full power to direct, manage, and discipline employees of the nursing facility, subject to any contract rights they have. The temporary manager shall not discharge employees without authorization from the Department of Health and Hospitals and notice to the owner. Temporary management shall not relieve the owner of any obligation to employees made prior to the appointment of a temporary manager and not carried out by the temporary manager;

x. preserve all property or assets of residents which are in the possession of a nursing facility or its owner; preserve all property or assets and all resident records of which the temporary manager takes possession; and provide for the prompt transfer of the property, assets, and records to the new placement of any transferred resident. An inventory list certified by the owner and temporary manager shall be made at the time the temporary manager takes possession of the nursing facility.