Nebraska Administrative Code
Topic - HEALTH AND HUMAN SERVICES SYSTEM
Title 175 - HEALTH CARE FACILITIES AND SERVICES LICENSURE
Chapter 17 - INTERMEDIATE CARE FACILITIES FOR THE MENTALLY RETARDED
Section 175-17-008 - DENIAL, REFUSAL TO RENEW, AND DISCIPLINARY ACTION
Universal Citation: 175 NE Admin Rules and Regs ch 17 ยง 008
Current through March 20, 2024
008.01 Grounds for Denial, Refusal to Renew, or Disciplinary Action
17-008.01A The Department may deny or refuse
to renew an ICF/MR license for failure to meet the requirements for licensure,
including:
1. Failing an inspection specified
in 175 NAC
17-005;
2. Having had a license revoked within the
two-year period preceding an application; or
3. Any of the grounds specified in 175 NAC
17-008.01B.
17-008.01B The Department may take
disciplinary action against an ICF/MR license for any of the following grounds:
1. Violation of any of the provisions of the
Health Care Facility Licensure Act or 175 NAC 17;
2. Committing, permitting, aiding, or
abetting the commission of any unlawful act;
3. Conduct or practices detrimental to the
health or safety of an individual or employee;
4. 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 facility for the purposes of inspection,
investigation, or other information collection activities necessary to carry
out the duties of the departments;
5. Discrimination or retaliation against an
individual 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;
6.
Discrimination or retaliation against an individual or employee who has
presented a grievance or information to the office of the state long-term care
ombudsman;
7. Failure to allow a
state long-term care ombudsman or an ombudsman advocate access to the facility
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;
8. Violation of the Emergency
Box Drug Act;
9. 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.
§
71168.02;
10. Violation of the
Medication Aide Act; or
11. Failure
to file a report of suspected abuse or neglect as required by Neb.
Rev. Stat.
§§
28-372
and
28-711.
008.02 Procedures for Denial, Refusal to Renew, or Disciplinary Action
17-008.02A If the Department determines to
deny, refuse renewal of, or disciplinary action against a license, the
Department will send a notice to the applicant or licensee by certified mail to
the last address shown on its records. The notice will state the determination,
including a specific description of the nature of the violation and the statute
or regulation violated, and the type of disciplinary action pending.
17-008.02B The denial, refusal to renew, or
disciplinary action becomes final 15 days after the mailing of the notice
unless the applicant or licensee, within the 15-day period, makes a written
request to the Director for an informal conference or an administrative
hearing.
17-008.02C
Informal Conference
17-008.02C1 At the request of the applicant
or licensee, 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 conference will not be the individual who did the inspection.
17-008.02C2 Within 20 working days of the
conference, the Department representative will state in writing the specific
reasons for affirming, modifying, or dismissing the notice. The representative
will send a copy of the statement to the applicant or licensee by certified
mail to the last address shown in the Department's records and a copy to the
Director.
17-008.02C3 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.
17-008.02C4 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.
17-008.02D
Administrative
Hearing
17-008.02D1 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.
17-008.02D2 On the basis of evidence
presented at the hearing, the Director will affirm, modify, or set aside the
determination. The Director's decision will:
1. Be in writing;
2. Be sent by registered or certified mail to
the applicant or licensee; and
3.
Become final 30 working days after mailing unless the applicant or licensee,
within the 30-day period, appeals the decision.
17-008.02D3 An applicant or a licensee's
appeal of the Director's decision must be in accordance with the Administrative
Procedure Act.
008.03 Types of Disciplinary Action
17-008.03A The Department may impose any one
or a combination of the following types of disciplinary action against the
license:
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 facility 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 facility 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.
17-008.03B In determining the type
of disciplinary action to impose, the Department will consider:
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 facility in identifying or
correcting the violation;
5. Any
previous violations committed by the facility; and
6. The financial benefit to the facility of
committing or continuing the violation.
17-008.03C If the licensee fails to correct a
violation or to comply with a particular type of disciplinary action, the
Department may take additional disciplinary action as described in 175 NAC
17-008.03.
17-008.03D
Temporary Suspension or Temporary Limitation: If the
Department determines that individuals are in imminent danger of death or
serious physical harm, the Director may:
1.
Temporarily suspend or temporarily limit the facility license, effective when
the order is served upon the facility. If the licensee is not involved in the
daily operation of the facility, 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 individuals; and
3. Order the temporary closure of the
facility 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.
17-008.03D1 The Department will conduct the
hearing in accordance with the Administrative Procedure Act 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.
17-008.03D2 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.
17-008.03D3 On the basis of evidence
presented at the hearing, the Director will:
1. Order the revocation, suspension, or
limitation of the license; or
2.
Set aside the temporary suspension or temporary limitation.
If the Director does not reach a decision within 90 days of the date of the temporary suspension or temporary limitation, the temporary suspension or temporary limitation will expire.
17-008.03D4 Any appeal of the Department's
decision after the hearing must be in accordance with the
APA.
008.04 Reinstatement from Disciplinary Probation or Suspension, and Re-Licensure After Revocation
17-008.04A
Reinstatement at the End of Probation or Suspension
17-008.04A1
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.
17-008.04A2
Reinstatement at the
End of Suspension: A license may be reinstated at the end of
suspension following:
1. Submission of an
application to the Department for renewal that conforms to the requirements of
175 NAC 17-003.02;
2. Payment of
the renewal fee as specified in 175 NAC 17-004.09; and
3. Successful completion of an inspection.
The Department will reinstate the license when it finds, based on an inspection as provided for in 175 NAC 17-005, that the facility is in compliance with the operation, care, treatment and physical plant requirements of 175 NAC 17-006 and 17-007.
17-008.04B
Reinstatement Prior to Completion of Probation or
Suspension
17-008.04B1
Reinstatement Prior to the Completion of Probation: A
licensee may request reinstatement prior to the completion of probation and
must meet the following conditions:
1. Submit
a petition to the Department stating:
a. The
reasons why the license should be reinstated prior to the probation completion
date; and
b. The corrective action
taken to prevent recurrence of the violation(s) that served as the basis of the
probation; and
2.
Successfully complete any inspection the Department determines
necessary.
17-008.04B2
Reinstatement Prior to Completion of Suspension: A
licensee may request reinstatement prior to the completion of suspension and
must meet the following conditions:
1. Submit
a petition to the Department stating:
a. The
reasons why the license should be reinstated prior to the suspension completion
date; and
b. The corrective action
taken to prevent recurrence of the violation(s) that served as the basis of the
suspension;
2. Submit a
written renewal application to the Department as specified in 175 NAC
17-003.02;
3. Pay the renewal fee
as specified in 175 NAC 17-004.09; and
4. Successfully complete an
inspection.
17-008.04B3
The Director will consider the petition submitted and the results of any
inspection or investigation conducted by the Department and:
1. Grant full reinstatement of the
license;
2. Modify the probation or
suspension; or
3. Deny the petition
for reinstatement.
17-008.04B4 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 will be held
according to rules and regulations of the Department for administrative
hearings in contested cases.
17-008.04C
Re-Licensure After
Revocation: A facility license that has been revoked is not
eligible for re-licensure until two years after the date of revocation.
17-008.04C1 A facility seeking re-licensure
must apply for an initial license and meet the requirements for initial
licensure in 175 NAC 17-003.01.
17-008.04C2 The Department will process the
application for re-licensure in the same manner as specified in 175 NAC
17-003.01.
The Department will reinstate the license when it finds, based on an inspection as provided for in 175 NAC 17-005, that the facility is in compliance with the operation, care, treatment, and physical plant requirements of 175 NAC 17-006 and 17-007.
Approved by the Attorney General on February 28, 2007
Approved by the Governor on March 29, 2007
Filed with the Secretary of State on March 29, 2007
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