La. Admin. Code tit. 50 § II-10165

Current through Register Vol. 50, No. 11, November 20, 2024

Section II-10165 - Purpose and Scope

A. Under the provisions of Louisiana R.S. 40:2009.2 through 2009.20 and State Operations Manual as published by the Department of Health and Hospitals and Health Care Financing Administration, the following procedures are established for receiving, evaluating, investigating, and correcting grievances pertaining to resident care in licensed and certified nursing facilities. The following procedures also provide mandatory reporting of abuse and neglect in nursing facilities.

B. Applicability

1. Any person having knowledge of the alleged abuse or neglect of a resident or knowledge of a resident being denied care and treatment may submit a complaint, preferably in writing.

2. Any person may submit a complaint if he/she has knowledge that a state law, standard, rule, regulation, correction order, or certification rule issued by the Department of Health and Hospitals has been violated.

C. Duty to Make Complaints. Any of the following persons who have actual knowledge of a facility's abuse or neglect of a resident, shall submit a complaint within 24 hours:

1. physicians or other allied health professionals;

2. Social Services personnel;

3. facility administration;

4. psychological or psychiatric treatment personnel;

5. registered nurses;

6. licensed practical nurses; and

7. nurse's aides.

D. Penalties for Failure To Make Complaint

1. Any person who knowingly and willfully fails to report an abuse or neglect situation shall be fined not more than $500 or imprisoned not more than six months or both. The same sanctions shall apply to an individual who knowingly and willingly files a false report.

2. Penalties for committing cruelty or negligent mistreatment to a resident of a health care facility shall be not more than $10,000.00 or imprisoning with or without hard labor for more than ten years, or both.

E. Where to Submit Complaint. A complaint may be filed as follows.

1. It may be submitted in writing to the Secretary of the Department of Health and Hospitals or his designee at P.O. Box 94065, Baton Rouge, LA 70804-4065;

2. It may be relayed by calling Health Standards Section at (504) 342-0082;

3. It may be submitted to any local law enforcement agency.

F. DHH's Referral of Complaints for Investigation

1. Complaints involving residents of all ages in institutions received by the Department of Health and Hospitals shall be referred to the Health Standards Section Special Consultant.

2. If it has been determined that complaints involving alleged violations of any criminal law pertaining to a nursing facility are valid, the investigating office of DHH shall furnish copies of the complaints for further investigation to both the Medicaid Fraud Control Unit of the Louisiana Department of Justice and the local office of the District Attorney.

G. Investigation Procedure. The protocol to be used when investigating complaints is as follows.

1. The investigator(s) must identify him/herself to the administrator or in the absence of the administrator, to the person designated to be in charge at the time.

2. At the entrance conference, the nature of the complaint will be given and anonymity of the complaint respected if requested.

3. If, during the investigation, deficiencies are found which were not cited in the complaint, these shall be written in a separate memo and addressed in a separate letter to the administrator.

4. At the conclusion of the investigation, an exit conference should be held with the administrator and any other personnel the Administrator may want present. The valid and non-valid findings should be shared with those present at the conference. Appropriate recommendations can be made at this time.

a. Prompt Investigation of Cases Determined to be Immediate Jeoparty. A complaint of abuse will be referred by DHH to the Regional Office immediately upon receipt and staff from the Regional office will investigate the complaint within five days. The facility also has a responsibility to thoroughly investigate and take measures to prevent further abuse.

i. The disposition of other complaints will be determined according to the content and urgency of the complaint. When possible, referrals will be made to other agencies or Departments which can address the complaint and respond to the complainant.

b. Investigation Tasks. If the complaint involves abuse and/or neglect, an immediate investigation shall include the following:

i. interviewing the resident, if possible, and other persons who may have pertinent information;

ii. determining the nature of the abuse and/or neglect;

iii. determining the extent of the abuse and/or neglect;

iv. determining the cause of the abuse and/or neglect, if known; and

NOTE: A copy of the investigation report shall be submitted to the District Attorney.

v. if the complaint involves dietary, housekeeping, general care, residents' rights, patient funds, etc., the investigation shall include the following (as applicable to the situation);

(a). review of the medical record(s);

(b). interview (observation) of the resident and other residents;

(c). interview pertinent staff members;

(d). interview complainant, family, visitors, doctor as necessary for the particular complaint;

(e). perform a drug pass observation; and

(f). perform dining and eating assistance observation.

c. Manner of Reporting

i. If the complaint is not valid, a typed report of the investigation, listing each complaint and the findings will be sent to the Special Consultant of the Bureau of Health Services Financing-Health Standards Section.

ii. If any portion of the complaint is found to be valid, a 2567 Form shall be filled out, on site if possible, identifying the ID Prefix Tag, the deficiency, and the Administrator's Plan of Correction and completion date. This form should accompany the written report of the findings of this complaint. If the administrator is not able to provide a Plan of Correction on site, the portion of Form 2567 to be filled in by the investigator should be completed and sent with the written report to the Special Consultant, who will be responsible for obtaining the Plan of Correction.

d. Notice of Investigation to the Facility. The nature of the complaint shall be given to the nursing facility no earlier than when the on-site investigation begins at the facility.

e. Confidentiality. In order to protect the confidentiality of complainants, residents shall not be identified to the nursing facility unless they consent to the disclosure.

NOTE: If disclosure becomes essential to the investigation, the complainant shall be given the opportunity to withdraw the complaint.

f. Disposition of Complaints. If, after investigation, the complaint is found to be valid, the Department of Health and Hospitals shall notify the administrator who will provide an acceptable plan of correction.

i. If it is determined that a situation presents a threat to the health and safety of the resident, the nursing facility shall be required to take immediate corrective action. The Department of Health and Hospitals will certify non-compliance and initiate termination, non-renewal, or intermediate sanctions. HCFA-462 (Adverse Action Extract) and HCFA-562 (Medicare/Medicaid Complaint Form) will be completed.

ii. In all other instances of violation, an expeditious correction, not to exceed 90 days, shall be required. If a Condition of Participation in a Skilled Nursing Facility or a Program Standard in a Nursing Facility is not met and determined that the provider has a limited capacity to provide adequate care and/or services, or provider is unable or unwilling, the Department of Health and Hospitals will certify non-compliance and initiate termination, non-renewal, or intermediate sanctions.

iii. In cases of abuse and/or neglect, referral for appropriate corrective action shall be made to the Medicaid Fraud Control Unit of the Attorney General's Office.

g. Unsubstantiated Complaint. If, after investigation, the complaint is determined to be unsubstantiated, DHH shall notify the complainant and the facility of this fact.

h. Repeat Violations. When violations continue to exist after the corrective action was taken, the Department of Health and Hospitals may take appropriate action against the nursing facility to include decertification or revocation of its license.

i. Follow-up Activity. Deficiencies will be scheduled for follow-up visits as soon as possible after the approved provider completion date on appropriate documents.

j. Narrative Report Content. The narrative report content is as follows:

i. date of investigation;

ii. what was done (tour, drug pass, etc.);

iii. who was interviewed;

iv. identify each aspect of the complaint, conclusions and state whether valid, not valid, or unable to validate.

k. Results of Complaint Investigation. These results will be considered in conducting annual surveys and making certification decisions. Staff will read the complaint file prior to the annual survey.

l. Fair Hearing. Complainants who are dissatisfied with any action taken by the Department of Health and Hospitals in response to their complaints may request a fair hearing to review the action in accordance with Subchapter §10161. A request for a fair hearing shall be submitted in writing to the Secretary, DHH, P.O. Box 629, Baton Rouge, LA 70821-0629.

m. Retaliation by Nursing Facility. Facilities are prohibited from taking retaliatory action against complainants. Persons aware of retaliatory action or threats in this regard should contact the Department of Health and Hospitals.

n. Notification of the Complaint Procedure. The Department of Health and Hospitals "Blue Book" which has the complaint procedure shall be posted in each nursing facility in a conspicuous place where residents gather. This "Blue Book", known as "Nursing Home Care in Louisiana", was developed for the public by the Department of Health and Hospitals. This booklet shall be distributed based upon availability by all licensed nursing facilities to all current residents and/or their legal representatives or sponsors and to all new residents and/or their legal representative or sponsors on the date of their admissions.

o. Reporting of Incidents. For each resident who is involved in an accident or incident, an incident report shall be completed including the name, date, time, details or accident or incident, circumstances under which it occurred, witnesses and action taken. Incident reports are an administrative tool to pinpoint problem areas and shall result in corrective action, where representatives of the U.S. Department of Health and Human Services and DHH upon request and without prior notice.

i. Incidents or accidents involving residents shall be noted in the nurse's notes and these records should contain all pertinent medical information.

(a). The examples listed below are not all inclusive, but are presented to serve as a guideline to assist those facility employees responsible for reporting incident reports.

(i). Suspicious Death. Death of a resident or on-duty employee when there is suspicion of death other than by natural causes.

(ii). Abuse and/or Neglect. All incidents or allegations of abuse and/or neglect.

(iii). Runaways. Runaways considered to be dangerous to self or others.

(iv). Law Enforcement Involvement. Arrest, incarceration, or other serious involvement of residents with law enforcement authorities.

(v). Mass Transfer. The voluntary closing of a facility or involuntary mass transfer of residents from a facility.

(vi). Violence. Riot or other extreme violence.

(vii). Disasters. Explosions, bombings, serious fires.

(viii). Accidents/Injuries. Severe accidents or serious injury involving residents or on-duty employees caused by residents such as life threatening or possible permanent and/or causing lasting damage.

La. Admin. Code tit. 50, § II-10165

Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 22:34 (January 1996).

AUTHORITY NOTE: Promulgated in accordance with R.S. 46:153.