68-11-207 - Suspension or revocation of license Grounds Procedure Probation. [Amended effective January 1, 2010. See the Compiler's Notes.] - Tennessee Statutes

68-11-207. Suspension or revocation of license Grounds Procedure Probation. [Amended effective January 1, 2010. See the Compiler's Notes.]

(a)  The board may suspend or revoke the license issued under this part on any of the following grounds:

     (1)  A violation of this part or of the rules and regulations or minimum standards issued pursuant to this part, or, in the event of a nursing home that has entered into an agreement with the department to furnish services under Title XVIII or XIX of the Social Security Act, compiled in 42 U.S.C. § 1395 et seq. and 42 U.S.C. § 1396 et seq., respectively, any of the requirements for participation in the medical assistance program set out in title 42 of the Code of Federal Regulations, to such an extent that the board considers the licensee a chronic violator;

     (2)  Permitting, aiding or abetting the commission of any illegal act in such institutions; or

     (3)  Conduct or practice found by the board to be detrimental to the welfare of the patients in such institutions.

(b)  (1)  In those cases where the conditions of any nursing home, home for the aged or adult care home are, or are likely to be, detrimental to the health, safety or welfare of the patient or resident, the commissioner has the authority to suspend the admission of any new patients or residents to the facility pending a prompt hearing before the board, or an administrative judge if the board cannot be convened promptly.

     (2)  The commissioner is authorized, at any time prior to a hearing, based on information presented to the commissioner showing that such conditions have been and will continue to remain corrected, to revoke the suspension of admissions.

     (3)  Whenever the commissioner suspends the admission of any new patients, the commissioner shall detail, in a notice to the facility, the specific violations causing the suspension.

     (4)  Notice shall detail what conditions are considered detrimental to the health, safety or welfare of the patients and an explanation of the specific time frame when and conditions under which the facility can reasonably expect the suspension to be lifted.

     (5)  Within ten (10) days of receiving this notice or lesser timeframe when deemed necessary by the board to ensure the health, safety and welfare of adult care home residents, an adult care home provider shall submit a corrective action plan to the board delineating the measures to be taken to address violations and associated timeframes. If it is deemed by the board to be necessary to ensure the health, safety and welfare of adult care home residents, the commissioner may require the adult care home provider to take all necessary actions to correct violations immediately.

     (6)  If the facility complies with these conditions, the commissioner shall lift the suspension within the time frame, unless other conditions exist that warrant an additional suspension or continuation of the suspension. The board has the authority to:

          (A)  Continue, revoke or modify the suspension of admissions;

          (B)  Revoke, suspend or condition the license of the facility; and

          (C)  Enter such other orders as it deems necessary.

     (7)  Unless the immediate protection of the health, safety or welfare of residents of a nursing home requires otherwise, the commissioner, after ordering a suspension of admissions to a nursing home pursuant to this section, shall provide notice of the suspension as soon as practicable to the members of the senate and house of representatives of the general assembly in whose district the nursing home is located.

(c)  In imposing the sanctions authorized in this section, the board may consider all factors that it deems relevant, including, but not limited to, the following:

     (1)  The degree of sanctions necessary to ensure immediate and continued compliance;

     (2)  The character and degree of impact of the violation on the health, safety and welfare of the patients in the facility;

     (3)  The conduct of the facility against whom the notice of violation is issued in taking all feasible steps or procedures necessary or appropriate to comply or correct the violation; and

     (4)  Any prior violations by the facility of statutes, regulations or orders of the board.

(d)  The board may, in its discretion, after the hearing, hold the case under advisement and make a recommendation as to requirements to be met by the facility in order to avoid either suspension or revocation of license or suspension of admissions.

(e)  The board shall promulgate regulations defining the sanction structure and associated penalties.

(f)  (1)  In addition to the authority granted in subsections (a)-(e), the board shall have the authority to place a facility on probation. In the case of a nursing facility, to be considered for probation, a nursing facility must have had at least two (2) separate substantiated complaint investigation surveys within six (6) months, where each survey had at least one (1) deficiency cited at the level of substandard quality of care or immediate jeopardy, as those terms are defined at 42 CFR 488.301. None of the surveys may have been initiated by an unusual event or incident self-reported by the nursing facility.

     (2)  If a facility meets the criteria for a violation pursuant to regulations established by the board or, in the case of a nursing facility, meets the criteria pursuant to subdivision (f)(1), the board may hold a hearing at its next regularly scheduled meeting to determine if the facility should be placed on probation. Prior to initiating the hearing, the board shall provide notice to the facility detailing what specific noncompliance the board has identified that the facility must respond to at the probation hearing.

     (3)  Prior to imposing probation, the board may consider and address in its findings all factors that it deems relevant, including, but not limited to, the following:

          (A)  What degree of sanctions is necessary to ensure immediate and continued compliance;

          (B)  Whether the noncompliance was an unintentional error or omission, or was not fully within the control of the facility;

          (C)  Whether the facility recognized the noncompliance and took steps to correct the identified issues, including whether the facility notified the department of the noncompliance, either voluntarily or as required by state law or regulations;

          (D)  The character and degree of impact of the noncompliance on the health, safety and welfare of the patient or patients in the facility;

          (E)  The conduct of the facility in taking all feasible steps or procedures necessary or appropriate to comply or correct the noncompliance; and

          (F)  The facility's prior history of compliance or noncompliance.

     (4)  If the board places a facility on probation, the facility shall detail in a plan of correction those specific actions that, when followed, will correct the noncompliance identified by the board.

     (5)  During the period of probation, the facility shall make reports on a schedule determined by the board. These reports shall demonstrate and explain to the board how the facility is implementing the actions identified in its plan of correction. In making such reports, the board shall not require the facility to disclose any information protected as privileged or confidential under any state or federal law or regulation.

     (6)  The board is authorized at any time during the probation to remove the probational status of the facility's license, based on information presented to it showing that the conditions identified by the board have been corrected and are reasonably likely to remain corrected.

     (7)  The board shall rescind the probational status of the facility, if it determines that the facility has complied with its plan of correction as submitted and approved by the board, unless the facility has additional noncompliance that warrants an additional term of probation.

     (8)  A single period of probation for a facility shall not extend beyond twelve (12) months. If the board determines during or at the end of the probation that the facility is not taking steps to correct noncompliance or otherwise not responding in good faith pursuant to the plan of correction, the board may take any additional action as authorized by law.

(g)  The hearing to place a facility on probation and judicial review of the board's decision shall be in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

(h)  The provisions in this section in no way relieve any party from the responsibility to report suspected adult abuse, neglect or exploitation to, or to share information with, the adult protective services program in accordance with the Tennessee Adult Protection Act, compiled in title 71, chapter 6, part 1.

(i)  After determinations of violations have been made that are subsequent to any complaint investigation survey that could lead to a suspension or revocation of the license of a nursing home or the loss of federal funds relating to any agreement to furnish services by a nursing home under Title XVIII, compiled in 42 U.S.C. § 1395 et seq. or Title XIX, compiled in 42 U.S.C. § 1396 et seq., of the Social Security Act, and unless the immediate protection of the health and safety of the residents of a nursing home requires otherwise, the department shall seek to provide, if practicable, a period of up to thirty (30) days for further fact finding relative to violations and their correction before any findings that would require the suspension or revocation of license or the loss of federal funds.

(j)  The adult care home provider shall inform residents verbally and in writing of their right to file a complaint with the state at any time, the process for filing a complaint and contact information for filing a complaint. The facility shall also advise residents of the availability of a long-term care ombudsman, and how to contact the ombudsman for assistance. Verbal and written communication to the resident shall indicate, at a minimum, that complaints regarding suspected adult abuse, neglect or exploitation shall be reported to the adult protective services program (APS). Complaints regarding licensure shall be reported to the board. All other complaints shall be reported to the appropriate state designated oversight entity. Complaints received by the adult care home provider shall be forwarded to the appropriate state oversight entity.

     (1)  The adult care home provider shall not prohibit or discourage the filing of complaints or use intimidation against any person filing a complaint.

     (2)  The adult care home provider may not retaliate against the resident or the person acting on behalf of the resident in any way. Such nonpermissible actions include, but are not limited to:

          (A)  Increasing charges;

          (B)  Decreasing services, rights or privileges;

          (C)  Taking or threatening to take any action to coerce or compel the resident to leave the facility; or

          (D)  Abusing or threatening to harass or abuse a resident in any manner.

     (3)  Persons acting in good faith in filing a complaint are immune from any liability, civil or criminal.

     (4)  An adult care home provider shall place a resident manager, substitute caregiver or employee against whom an allegation of abuse, neglect or exploitation has been made on administrative leave of absence until the investigation is complete.

     (5)  Investigations shall be completed by the appropriate state oversight entity within timeframes established in applicable statutes or regulations, or as expeditiously as necessary to ensure the health, safety and welfare of adult care home residents.

     (6)  Investigation findings shall be reported to the board in an anonymous probable cause presentation for the purpose of determining the appropriate discipline. Once this determination is made by the board, the adult care home provider shall be informed by written correspondence. The complainant shall also be advised of the complaint's resolution.

     (7)  The board shall maintain a file of reported complaints. The file shall include the name of the adult care home provider against whom the complaint is filed, the date the complaint is filed, the action taken by the board on the complaint and date of action taken.

[Acts 1947, ch. 13, § 9; C. Supp. 1950, § 5879.8 (Williams, § 4432.9); Acts 1968, ch. 522, § 2; modified; Acts 1975, ch. 276, § 8; 1976, ch. 471, § 8; 1980, ch. 854, § 1; 1981, ch. 129, § 1; T.C.A. (orig. ed.), § 53-1308; Acts 1984, ch. 880, § 5; 1987, ch. 312, § 9; 2003, ch. 169, § 3; 2008, ch. 840, § 1; 2008, ch. 886, § 1; 2009, ch. 579, § 9.]