Current through Supplement No. 394, October, 2024
1.
a. This section sets forth the appeals
procedures the department makes available:
(1) To a nursing facility that is
dissatisfied with the department's finding of noncompliance that has resulted
in an enforcement action under chapter 75-02-05.2; or
(2) To an intermediate care facility for
individuals with intellectual disabilities that is dissatisfied with the
department's finding of noncompliance with Medicaid program requirements that
has resulted in the denial of a provider agreement or the termination or
nonrenewal of its provider agreement as a sanction imposed under
75-02-05.
b. This
section also sets forth the special rules that apply in particular
circumstances, the limitations on the grounds for appeal, and the scope of
review during a hearing.
2.
a.
Except as provided in subdivision b, a facility is entitled to a full
evidentiary hearing, as described in subsection 3, on any of the actions
specified in subsection 1.
b. A
facility may not appeal:
(1) The choice of
sanction or remedy;
(2) The state
monitoring remedy;
(3) The loss of
approval for a nurse aide training program; or
(4) The level of noncompliance found by the
state survey agency except when a favorable decision would affect the amount of
the civil money penalty imposed under section
75-02-05.2-02.
3. The appealing
facility is entitled:
a. To appear before an
impartial hearing officer to refute the finding of noncompliance upon which the
department has based an action taken under subsection 1;
b. To be represented by counsel or other
representative; and
c. To be heard
directly or through its representative, to call witnesses, and to provide
documentary evidence.
4.
In appeals disputing the imposition of a civil money penalty:
a. The department's finding as to a nursing
facility's level of noncompliance must be upheld unless it is clearly
erroneous; and
b. Upon a finding
that a basis for imposing a civil money penalty exists, the appeal decision may
not:
(1) Set a penalty of zero or reduce a
penalty to zero;
(2) Review the
exercise of discretion by the department to impose a civil money penalty;
or
(3) Consider any factors in
reviewing the amount of the penalty other than the factors described in
subsection 6 of section
75-02-05.2-04
and the facility's degree of culpability. For purposes of this paragraph,
"culpability" includes neglect, indifference, or disregard for resident care,
comfort, or safety. The absence of culpability is not a mitigating circumstance
in reducing the amount of the penalty.
5. An appeal may be perfected by mailing or
delivering the information described in subdivisions a through c to the appeals
supervisor. The mailed or delivered material must arrive at the office of the
appeals supervisor on or before five p.m. on the sixtieth day from the date of
the notice of an action appealable under subdivision a of subsection 1. The
appeal request must include:
a. A statement
of each disputed deficiency and the reason or basis in fact for the
dispute;
b. The authority in
statute or rule upon which the appealing party relies for each disputed item;
and
c. The name, address, and
telephone number upon whom all notices regarding the appeal must be
served.
6. An appeal of
a deficiency may not suspend or delay enforcement action except as provided in
this section and 75-02-05.2.
7. If
an intermediate care facility for individuals with intellectual disabilities
requests a hearing concerning a finding of noncompliance with Medicaid program
requirements that has resulted in an action under paragraph 2 of subdivision a
of subsection 1, the evidentiary hearing must be completed within one hundred
twenty days after the effective date of the action based on that
finding.
8. If a nursing facility
requests a hearing on the denial or termination of its provider agreement, the
request does not delay the denial or termination and the hearing decision need
not be issued before the effective date of the denial or termination.
General Authority: NDCC 28-32-02,
50-06-16
Law Implemented: NDCC 50-06-05.1;
42 CFR
431.151, et
seq.
