Health, Health Systems Improvement, Licensing

Rule R432-3

General Health Care Facility Rules Inspection and Enforcement

Notice of Proposed Rule

(Amendment)

DAR File No.: 33137
Filed: 11/02/2009 09:09:44 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule change is proposed to amend three parts of the rule: 1) to change the licensing inspection requirements from annually to optional; 2) to change the civil money penalty limits in rule from a maximum of $5,000 to $10,000 per H.B. 32 (2009); and 3) to remove old rule language pertaining to the Bureaus of Licensing and Certification as two separate bureaus. These bureaus were combined in 2004. (DAR NOTE: H.B. 32 (2009) is found at Chapter 347, Laws of Utah 2009, and was effective 05/12/2009.)

Summary of the rule or change:

The first rule change will change the word "shall" to "may", to direct the Department's inspection duties from annually to a non-specified time frame. The second rule change will add the provision of a civil money penalty to the section of rule outlining sanction actions that can be taken for non-compliant providers. This change will also include an increase from the previous maximum of $5,000 to $10,000. The third change will remove Section R432-3-9 from the rule that referred to agreements between the two bureaus that have been combined since 2004. These no longer apply.

State statutory or constitutional authorization for this rule:

• Title 26, Chapter 21

Anticipated cost or savings to:

the state budget:

This rule change will have no effect on state budgets. Licensing inspection schedules are already being done as needed. The civil money penalty funds are not usable as general budget funds.

local governments:

Since no local governments are required to utilize the Bureau of Criminal Identification (BCI) rule, there is no cost or savings to any local governments.

small businesses:

This rule change may increase civil money penalties for small businesses that are licensed as health facilities, and receive sanctions from the Department. On average, small businesses could see an increase of $5,000 in civil money penalties issued by the Department. This would apply only if the providers were severely non-compliant and received money penalties.

persons other than small businesses, businesses, or local governmental entities:

This rule change may increase civil money penalties for other businesses that are licensed as health facilities, and receive sanctions from the Department. On average, these providers could see an increase of $10,000 in civil money penalties issued by the Department. This would apply only if the providers were severely non-compliant and received money penalties.

Compliance costs for affected persons:

There are no compliance costs for the Department. However, this change to the civil money penalty limits may increase compliance costs to providers who are severely out of compliance with state rules. A total of $18,875 was collected in FY 2009 from licensed health providers that were severely out of compliance with state rules. This total could increase in FY 2010 if similar sanctions are enforced.

Comments by the department head on the fiscal impact the rule may have on businesses:

Civil money penalties are an important tool to encourage voluntary compliance with licensing standards. Due process protections are in place. The overall fiscal impact is small and may be avoided by following licensing requirements.

David N. Sundwall, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Health Systems Improvement, Licensing
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Joel Hoffman at the above address, by phone at 801-538-6279, by FAX at 801-538-6024, or by Internet E-mail at jhoffman@utah.gov
• Carmen Richins at the above address, by phone at 801-538-9087, by FAX at 801-538-6024, or by Internet E-mail at carmenrichins@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2009

This rule may become effective on:

12/22/2009

Authorized by:

David Sundwall, Executive Director

R432. Health, Health Systems Improvement, Licensing.

R432-3. General Health Care Facility Rules Inspection and Enforcement.

R432-3-2. Purpose.

This rule delineates the role and responsibility of the Department and the [Bureau of Licensing] licensing agency in the enforcement of rules and regulations pertaining to health, safety, and welfare in all licensed and unlicensed health facilities and agencies regulated by Title 26, Chapter 21. These provisions provide guidelines and criteria to ensure that sanctions are applied consistently and appropriately.

 

R432-3-4. Statement of Findings.

(1) The Department or its designee [shall] may inspect each facility or agency at least once during each year that a license has been granted, to determine compliance with standards and the applicable rules and regulations.

(2) Whenever the Department has reason to believe that a health facility or agency is in violation of Title 26, Chapter 21 or any of the rules promulgated by the Health Facility Committee, the Department shall serve a written Statement of Findings to the licensee or his designee within the following timeframe.

(a) Statements for Class I and III violations are served immediately.

(b) Statements for Class II violations are served within ten working days.

(3) Violations shall be classified as Class I, Class II, and Class III violations.

(a) "Class I Violation" means any violation of a statute or rule relating to the operation or maintenance of a health facility or agency which presents imminent danger to patients or residents of the facility or agency or which presents a clear hazard to the public health.

(b) "Class II Violation" means any violation of a statute or rule relating to the operation or maintenance of a health facility or agency which has a direct or immediate relationship to the health, safety, or security of patients or residents in a health facility or agency.

(c) "Class III Violation" means establishing, conducting, managing, or operating a health care facility or agency regulated under Title 26, Chapter 21 and this rule without a license or with an expired license.

(4) The Department may cite a facility or agency with one or more rule or statute violations. If the Department finds that there are no violations, a letter shall be sent to the facility acknowledging the inspection findings.

(5) The Statement of Findings shall include:

(a) the statute or rule violated;

(b) a description of the violation;

(c) the facts which constitute the violation; and

(d) the classification of the violation.

 

R432-3-6. Sanction Action on License.

(1) The Department may initiate an action against a health facility or agency pursuant to Section 26-21-11. That action may include the following sanctions:

(a) denial or revocation of a license if the facility or agency fails to comply with the rules established by the Committee, or demonstrates conduct adverse to the public health, morals, welfare, and safety of the people of the state;

(b) restriction or prohibition on admissions to a health facility or agency for:

(i) any Class I deficiency,

(ii) Class II deficiencies that indicate a pattern of care and have resulted in the substandard quality of care of patients,

(iii) repeat Class I or II deficiencies that demonstrate continuous noncompliance or chronic noncompliance with the rules, or

(iv) permitting, aiding, or abetting the commission of any illegal act in the facility or agency;

(c) distribution of a notice of public disclosure to at least one newspaper of general circulation or other media form stating the violation of licensing rules or illegal conduct permitted by the facility or agency and the Department action taken;

(d) placement of Department employees or Department-approved individuals as monitors in the facility or agency until such time as corrective action is completed or the facility or agency is closed;

(e) assessment of the cost incurred by the Department in placing the monitors to be reimbursed by the facility or agency;[ or]

(f) during the correction period, placement of a temporary manager to ensure the health and safety of the patients[.] ; or

(g) issuance of a civil money penalty pursuant to UCA 26-23-6, not to exceed the sum of $10,000 per violation.

(2) If the Department imposes a restriction or prohibition on admissions to a long-term care facility or agency, the Department shall send a written notice to the licensee.

(a) The licensee shall post the copies of the notice on all public entry doors to the licensed long-term care facility or agency.

(b) The Department shall impose the restriction or prohibition if:

(i) the long-term care facility or agency has previously received a restriction or prohibition on admissions within the previous 24 month period; or

(ii) the long-term care facility or agency has failed to meet the timeframes in the Plan of Correction which is the basis for the restriction or prohibition on admissions; or

(iii) circumstances in the facility or agency indicate actual harm, a pattern of harm, or a serious and immediate threat to patients.

(3) If telephone inquiries are made to a long-term care facility or agency with a restriction or prohibition on admissions, the facility or agency shall inform the caller, during the call, about the restriction or prohibition on admissions. If the facility or agency fails to inform the caller, the department may assess penalties as allowed by statute and shall require the facility or agency to post a written notice on all public entry doors.

 

[R432-3-9. Medicare/Medicaid Certification.

(1) The Department may accept survey and complaint investigation findings of the Bureau of Medicare/Medicaid Program Certification and Resident Assessment as its own in the conduct of the Bureau of Licensing responsibilities under state law.

(2) The Bureau of Licensing may review all Statements of Findings and Plans of Correction, including surveys, follow up surveys, and complaint investigation actions, completed by the Bureau of Medicare/Medicaid Program Certification and Resident Assessment. The Statements of Findings and Plans of Correction may be reviewed for compliance with state rules to include:

(a) assessment of chronic non-compliance history in accordance with Subsection R432-1-3(26);

(b) assessment of continuous non-compliance history in accordance with Subsection R432-1-3(30).

 

]KEY: health facilities

Date of Enactment or Last Substantive Amendment: [March 13, 2003]2009

Notice of Continuation: December 24, 2008

Authorizing, and Implemented or Interpreted Law: 26-21-5; 26-21-14 through 26-21-16