Nebraska Administrative Code
Topic - HEALTH AND HUMAN SERVICES SYSTEM
Title 175 - HEALTH CARE FACILITIES AND SERVICES LICENSURE
Chapter 16 - HOSPICE SERVICES
Section 175-16-008 - DENIAL, REFUSAL TO RENEW, OR DISCIPLINARY ACTION

1. Failing an inspection specified in 175 NAC 16-005;

2. Having had a license revoked within the two-year period preceding an application; or

3. Any of the grounds specified in 175 NAC 16-008.01B.

1. Violation of any of the provisions of the Health Care Facility Licensure Act or 175 NAC 16;

2. Committing, permitting, aiding, or abetting the commission of any unlawful act;

3. Conduct or practices detrimental to the health or safety of a hospice patient or employee;

4. A report from an accreditation body or public agency sanctioning, modifying, terminating, or withdrawing the accreditation or certification of the hospice;

5. Failure to allow an agent or employee of the Department of Health and Human Services, the Department of Health and Human Services Finance and Support, or the Department of Health and Human Services Regulation and Licensure access to the hospice for the purposes of inspection, investigation, or other information collection activities necessary to carry out the duties of the departments;

6. Discrimination or retaliation against a hospice patient or employee who has submitted a complaint or information to the Department of Health and Human Services, the Department of Health and Human Services Finance and Support, or the Department of Health and Human Services Regulation and Licensure;

7. Discrimination or retaliation against a hospice patient or employee who has presented a grievance or information to the office of the state long-term care ombudsman;

8. Failure to allow a state long-term care ombudsman or an ombudsman advocate access to the hospice for the purposes of investigation necessary to carry out the duties of the office of the state long-term care ombudsman as specified in 15 NAC 3;

9. Violation of the Emergency Drug Box Act;

10. Failure to file a report of payment made or action taken due to a liability claim or an alleged violation, as required by Neb. Rev. Stat. § 38-1,127;

11. Violation of the Medication Aide Act; or

12. Failure to file a report of suspected abuse or neglect as required by Neb. Rev. Stat. § 28-372 and 28-711.

1. Informal conference with a representative peer review organization;

2. Informal conference with the Department; or

3. Administrative hearing.

16-008.02C1 At the request of the applicant or licensee, the peer review organization or the Department will hold an informal conference within 30 days of the receipt of the request. The conference may be held in person, or by other means, at the request of the applicant or licensee.

If the pending action is based on an inspection, the Department's representative at the informal conference will not be the individual who did the inspection.

16-008.02C2 Within 20 working days of the conference, the peer review organization or the Department representative will report in writing to the Department the conclusion regarding whether to affirm, modify, or dismiss the notice and the specific reasons for the conclusion, and provide a copy of the report to the Director and the applicant or licensee.

16-008.02C3 If the applicant or licensee successfully demonstrates at the informal conference that the deficiencies should not have been cited in the notice, the Department will remove the deficiencies from the notice and rescind any sanction imposed solely as a result of those cited deficiencies.

16-008.02C4 Within ten working days after receiving the report under 16-008.02C 2, the Department will consider the report and affirm, modify, or dismiss the notice and state the specific reasons for the decision, including, if applicable, the specific reasons for not adopting the conclusion of the peer review organization or the Department representative as stated in the report. The Department will provide the applicant or licensee with a copy of the decision by certified mail to the last address shown in the Department's records.

16-008.02C5 If the applicant or licensee contests the affirmed or modified notice, the applicant or licensee must submit a request for hearing in writing to the Director within five working days after receipt of the statement.

16-008.02C6 The Department will collect a fee from any applicant or licensee requesting an informal conference with a representative peer review organization to cover all costs and expenses associated with the conference.

16-008.02D1 When an applicant or a licensee contests the notice and requests a hearing, the Department will hold a hearing in accordance with the Administrative Procedure Act (APA) and the Department's rules and regulations adopted and promulgated under the APA. Either party may subpoena witnesses, who must be allowed fees at the rate prescribed by Neb. Rev. Stat. §§ 33-139 and 33-139.01.

16-008.02D2 On the basis of evidence presented at the hearing, the Director will affirm, modify, or set aside the determination. The Director's decision will:

16-008.02D3 An applicant or a licensee's appeal of the Director's decision must be in accordance with the APA.

1. A fine not to exceed $10,000 per violation;

2. A prohibition on admissions or re-admissions, a limitation on enrollment, or a prohibition or limitation on the provision of care or treatment;

3. A period of probation not to exceed two years during which the hospice may continue to operate under terms and conditions fixed by the order of probation;

4. A period of suspension not to exceed three years during which the hospice may not operate; and

5. Revocation which is a permanent termination of the license. The licensee may not apply for a license for a minimum of two years after the effective date of the revocation.

1. The gravity of the violation, including the probability that death or serious physical or mental harm will result;

2. The severity of the actual or potential harm;

3. The extent to which the provisions of applicable statutes, rules, and regulations were violated;

4. The reasonableness of the diligence exercised by the health care facility or health care service in identifying or correcting the violation;

5. Any previous violations committed by the hospice; and

6. The financial benefit to the hospice of committing or continuing the violation.

1. Temporarily suspend or temporarily limit the hospice license, effective when the order is served upon the inpatient hospice. If the licensee is not involved in the daily operation of the hospice, the Department will mail a copy of the order to the licensee, or if the licensee is a corporation, to the corporation's registered agent;

2. Order the immediate removal of patients; and

3. Order the temporary closure of the hospice pending further action by the Department.

The Department will simultaneously institute proceedings for revocation, suspension, or limitation of the license, and will conduct an administrative hearing no later than ten days after the date of the temporary suspension or temporary limitation.

16-008.03D1 The Department will hold a hearing in accordance with the Administrative Procedure Act (APA) and the Department's rules and regulations adopted and promulgated under the APA. Either party may subpoena witnesses, who must be allowed fees at the rate prescribed by Neb. Rev. Stat. §§ 33-139 and 33-139.01.

16-008.03D2 If a written request for continuance of the hearing is made by the licensee, the Department will grant a continuance, which may not exceed 30 days.

16-008.03D3 On the basis of evidence presented at the hearing, the Director will:

16-008.03D4 Any appeal of the Department's decision after hearing must be in accordance with the APA..

16-008.04A1 Reinstatement at the End of Probation: A license may be reinstated at the end of probation after the successful completion of an inspection, if the Department determines an inspection is warranted.

16-008.04A2 Reinstatement at the End of Suspension: A license may be reinstated at the end of suspension following:

16-008.04B1 Reinstatement Prior to the Completion of Probation: A licensee may request reinstatement prior to the completion of probation and must meet the following conditions:

16-008.04B2 Reinstatement Prior to Completion of Suspension: A licensee may request reinstatement prior to the completion of suspension and must meet the following conditions:

16-008.04B3 The Director will consider the petition submitted and the results of any inspection or investigation conducted by the Department and:

16-008.04B4 The Director's decision is final 30 days after mailing the decision to the licensee unless the licensee requests a hearing within the 30-day period. The requested hearing must be held according to rules and regulations of the Department for administrative hearings in contested cases.

16-008.04C1 A hospice seeking re-licensure must apply for an initial license and meet the requirements for initial licensure in 175 NAC 16-003.01.

16-008.04C2 The Department will process the application for relicensure in the same manner as specified in 175 NAC 16-003.01.

Approved by the Attorney General on April 7, 2010.

Approved by the Governor on April 26, 2010.

Filed by the Secretary of State on April 26, 2010.