La. Admin. Code tit. 50 § II-10167

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

Section II-10167 - General Provisions

A. Authority and Scope. Any person or entity found to be in violation of any provision of R.S. 40:2009.1 through 40:2009.11 or any other state or federal statute, regulation, or any Department of Health and Hospitals' rule adopted pursuant to the Administrative Procedure Act governing the administration of nursing facility care may be sanctioned by one or more of the following remedies:

1. plan of correction;

2. monitoring;

3. special staffing requirements;

4. civil money penalties (fines);

5. denial of payment for new admissions;

6. withholding of vendor payments;

7. temporary management;

8. termination of certification; and

9. revocation of license;

NOTE: The Secretary or his designee may impose any of the above cited sanctions separately or in combination. In addition to the foregoing administrative remedies, the Secretary may have recourse to any judicial remedies provided by law;

a. Considerations. The secretary shall impose the sanction(s) which will bring the facility into compliance in the most efficient and effective manner with the care and well-being of the residents being the paramount consideration. The secretary's decision shall be based on an assessment of some or all of the following factors:

i. whether the violations pose an immediate threat to the health or safety of the residents;

ii. the duration of the violations;

iii. whether the violation (or one that is substantially similar) has previously occurred during the last three consecutive surveys;

iv. the facility's history of compliance during the last three consecutive surveys;

v. what sanction is most likely to cause the facility to come into compliance in the shortest amount of time;

vi. the severity of the violation if it does not pose an immediate threat to health or safety;

vii. the logistical feasibility of implementing the sanction;

viii. the "good faith" exercised by the facility in attempting to stay in compliance;

ix. the financial benefit to the facility of committing or continuing the violation; and

x. such other factors as the secretary deems appropriate.

b. Repeated Findings of Substandard Care. Where the facility has been found to have provided substandard quality of care on three consecutive standard surveys, the secretary shall (regardless of what other remedies are provided):

i. deny payment under the state plan with respect to any individual admitted to the nursing facility involved after notice to the public and to the facility as may be provided for by law;

ii. monitor the facility on site, until the facility has demonstrated, to the satisfaction of the Department, that it is in compliance with all requirements and that it will remain in compliance with such requirements;

c. Immediate Jeopardy. Where the department determines that a facility no longer meets the requirements of certification and further finds that the facility's deficiencies immediately jeopardize the health or safety of its residents, the department shall:

i. take immediate action to remove the jeopardy and correct the deficiencies through the appointment of temporary management; or

ii. terminate the facility's participation under the state plan and may provide, in addition, any other remedies the department deems appropriate.

d. Non-immediate Jeopardy. If the facility's deficiencies do not immediately jeopardize the health or safety of its residents, the department may:

i. terminate the facility's participation under the state plan;

ii. provide for one or more of the remedies described in Authority and Scope of this Subchapter §10167; or

iii. do both.

B. Notice and Appeal Procedure

1. Unless otherwise indicated, any sanction may be administratively appealed in the manner described as long as the appeal is timely filed following notice of the department's decision.

2. The Health Standards Section will notify the Office of Elderly Affairs State Ombudsman of all adverse actions taken against nursing facilities. If adverse actions result in an appeal hearing, the representative of the Office of State Ombudsman will attend and offer testimony if knowledgeable about the situation.

3. Notice to Facility of Violation. When the Department of Health and Hospitals has reasonable cause to believe through an on-site survey, a complaint investigation, or other means that there exists or has existed a threat to the health, safety, welfare, or rights of a nursing facility resident, the department shall give notice of the violation(s) in the following manner.

a. The head of the survey team shall conduct an exit conference and give the facility administrator or his designee the preliminary finding of fact and the possible violations before leaving the facility.

b. The department shall follow the discussion with confirmed written notice given by certified mail or hand delivery to the facility administrator. The written notice of deficiencies shall be consistent with the unresolved findings delivered at the exit conference.

c. The written notice given by the department shall:

i. specify the violation(s);

ii. cite the legal authority which established such violation(s);

iii. cite any sanctions assessed for each violation;

iv. inform the administrator that the facility has ten days from receipt of notice sent by certified mail or hand delivery within which to request a reconsideration of the proposed agency action;

v. inform the administrator of the facility that the consequences of failing to timely request an administrative appeal will be that the departmental determination is final and no further administrative or judicial review may be had; and

vi. inform the administrator of the facility if the Department has elected to regard the violation(s) as repeat violation(s) or as continuing violation(s) and the manner in which sanctions will be imposed.

d. The Department of Health and Hospitals shall have the authority to determine whether a violation is a repeat violation and shall inform the facility in its notice of that determination. Violations may be considered repeat violations by the Department of Health and Hospitals if the following conditions are found to exist.

i. Where the Department of Health and Hospitals has established the existence of a violation as of a particular date and the violation is one that may be reasonably expected to continue until corrective action is taken, the department may elect to treat said continuing violation as a repeat violation subject to appropriate fines for each day following the date on which the initial violation is established, until such time as there is evidence establishing a date by which the violation was corrected.

ii. Where the Department of Health and Hospitals has established the existence of a violation and another violation occurs within 18 months which is the same or substantially similar to the previous violation, the subsequent violation and all other violations thereafter shall be considered repeat violations subject to fines and other Sanctions appropriate for repeat violations.

iii. If the facility does not request an administrative appeal in a timely manner or does not submit satisfactory evidence to rebut the department's findings of a violation, the secretary shall have the authority to enforce sanctions, as provided in these regulations. The Department of Health and Hospitals shall forward its findings to the facility by certified mail or hand delivery, and any sanctions imposed shall commence as of the date such determination is received by the facility. The department may institute all necessary civil court action to collect fines imposed and not timely appealed. No nursing facility may claim fines as reimbursable costs, nor increase charges to residents as a result of such fines. Interest shall begin to accrue at the current judicial rate on the day following the date on which any fines become due and payable.

iv. The facility may request an administrative reconsideration of the violation(s) within ten days of receipt of notice of the proposed agency action. This reconsideration shall be conducted by a designated official of the department who did not participate in the initial decision to impose the penalty. Reconsideration shall be made solely on the basis of documents before the official and shall include the survey report and statement of violations and all documentation the facility submits to the department at the time of its request for reconsideration. Correction of a violation shall not be a basis for reconsideration. A hearing shall not be held. Oral presentations can be made by Department spokesperson, facility spokesperson, and Elderly Affairs Representatives familiar with the facts and circumstances of the violation. The designated official shall have authority only to affirm the decision, to revoke the decision, to affirm in part and revoke in part, or to request additional information from either the department or the facility. The secretary or a designated official shall be without authority to waive any penalty or to compromise the dollar amount of any penalty unless part of the original decision is revoked. The official shall render a decision on the reconsideration within three days from the date of receipt of the facility's request.

e. If the facility requests an administrative appeal, such request shall:

i. state which violation(s) the facility contests and the specific reasons for disagreement; and

ii. be submitted to the Department of Health and Hospitals within 30 days of receipt of the secretary's decision on the final agency action by certified mail or hand delivery.

f. The administrative hearing shall be limited to those issues specifically contested and shall not include any claim or argument that the violation(s) have been corrected. Any violations not specifically contested shall become final, and sanctions shall be enforced at the expiration of the time for appeal. All violations/sanctions not contested shall become final at the expiration of the appeal request time period.

g. Administrative Appeal Process

i. Except as hereinafter provided, when an administrative appeal is requested in a timely and proper manner, the Department of Health and Hospitals shall provide an administrative hearing in accordance with the provisions of the Louisiana Administrative Procedure Act. Any party may appear and be heard at any proceeding described herein through an attorney at law or through a designated representative. A person appearing in a representative capacity shall file a written notice of appearance on behalf of the facility identifying himself by name, address, and telephone number, and identifying the party represented, and shall have a written authorization to appear on behalf of the facility.

ii. The administrative law judge conducting the hearing may require the prevailing of any motions by either party no later than the close of business on the third working day prior to the hearing.

iii. When the violation(s) jeopardize the health, safety, rights, or welfare of the facility's residents, the requested hearing shall be held within 14 days of the receipt of the request. The administrative law judge shall review all relevant evidence and make a final written determination within six days after the administrative hearing.

iv. In all other cases, the requested hearing shall be held within 30 days of the receipt of the request. The administrative law judge shall review all relevant evidence and make a final written determination within 15 days after the administrative hearing.

v. The administrative law judge may assess attorney's fees and costs against the facility if it is determined that the facility's appeal was frivolous.

vi. Although not specifically required for an administrative hearing, the Administrative law judge may schedule a preliminary conference.

h. The purposes of the preliminary conference, if scheduled, include but are not limited to the following:

i. clarification, formulation and simplification of issue(s);

ii. resolution of matters in controversy;

iii. exchange of documents and information;

iv. stipulations of fact so as to avoid unnecessary introduction of evidence at the formal review;

v. the identification of witnesses; and

vi. such other matters as may aid disposition of the issues.

(a). When the administrative law judge schedules a preliminary conference, (s)he shall notify all parties in writing. The notice shall direct any parties and their attorneys to appear at a specified date, time, and place.

(b). Where the preliminary conference resolves all or some matters in controversy, a summary of the findings agreed to at the conference shall be provided by the administrative law judge. Where the preliminary conference does not resolve all matters in controversy, an administrative hearing shall be scheduled on those matters still in controversy. The hearing shall be scheduled to conform to these procedures on those matters still in controversy.

(c). When an administrative hearing is scheduled, the administrative law judge shall notify the facility and/or its attorney and the agency representative in writing of the date, time, and place of the hearing. Notice shall be mailed not less than 10 calendar days before the scheduled date of the hearing.

h. Hearing Procedures

i. The administrative appeal hearing shall be conducted by an administrative law judge from the Appeals Section.

ii. Testimony shall be taken only on oath, affirmation, or penalty of perjury.

iii. Each party shall have the right to call and examine parties and witnesses, to introduce exhibits, to question opposing witnesses and parties on any matter relevant to the issue even though the matter was not covered in the direct examination, to impeach any witness regardless of which party first called him to testify, and to rebut the evidence against him.

iv. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil or criminal actions. Documentary evidence may be received in the form of copies or excerpts.

v. The administrative law judge may question any party or witness and may admit any relevant and material evidence.

vi. The administrative law judge shall control the taking of evidence in a manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the administrative law judge shall explain the issues and the order in which evidence will be received.

vii. A party has the burden of proving whatever facts it must establish to sustain its position.

viii. The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.

ix. Each party shall arrange for the presence of their witnesses at the hearing.

x. A subpoena to compel the attendance of a witness may be issued by the Administrative law judge upon written request by a party and showing of the need therefore. A subpoena may be issued by the administrative law judge on his own motion.

xi. An application for subpoena duces tecum for the production by a witness of books, papers, correspondence, memoranda, or other records shall be made in writing to the administrative law judge, giving the name and address of the person or entity upon whom the subpoena is to be served. The application shall precisely describe the material that is desired to be produced and shall state the materiality thereof to the issue involved in the proceeding. It shall also include a statement, that to the best of the applicant's knowledge, the witness has such items in his possession or under his control.

xii. The administrative law judge may continue the matter when such continuance will not jeopardize the health, safety, rights, or welfare of the facility's residents.

xiii. The administrative law judge may continue a hearing to another time or place, or order a further hearing on his own motion or upon showing of good cause, at the request of any party, provided that the time limits by the Administrative Appeal Process in this subchapter §10167 are met.

xiv. Where the administrative law judge determines that additional evidence is necessary for the proper determination of the case, he may at his discretion:

(a). continue the hearing to a later date and order the party to produce additional evidence; or

(b). close the hearing and hold the record open in order to permit the introduction of additional documentary evidence. Any evidence so submitted shall be made available to both parties and each party shall have the opportunity for rebuttal.

xv. Written notice of the time and place of a continued or further hearing shall be given except that when a continuance of further hearing is ordered during a hearing, oral notice of the time and place of the hearing may be given to each party present at the hearing.

xvi. A sound recording of the hearing shall be made. A transcript will be prepared and reproduced at the request of a party to the hearing provided he bears the cost of the copy of the transcript.

xvii. At the conclusion of the hearing, the administrative law judge shall take the matter under submission. The administrative law judge shall prepare a written proposed decision to the Secretary of the Department of Health and Hospitals which will contain findings of fact, a determination of the issues presented, a citation of applicable policy and regulations, and an order.

xviii. The administrative law judge shall make specific written findings as to each violation that was contested by the facility. The administrative law judge shall have authority to affirm, reverse, or modify the findings or penalties of the department. The administrative law judge shall transmit such findings by certified mail or hand delivery to the facility at the last known address within time periods stated above in Administrative Appeal Process and by regular mail or hand delivery to the Department and other affected parties. Any civil fines assessed shall commence as of the date findings are received by the facility. Interest on the amount of the fines assessed shall begin accruing on the eleventh day following commencement of the fines at the then current rate of judicial interest.

xix. If a facility representative fails to appear at a hearing, a decision may be issued by the administrative law judge dismissing the appeal hearing and making the departmental findings final. A copy of the decision shall be mailed to each party.

x. Any dismissal may be rescinded upon order of the administrative law judge if the facility's representative makes written application within 10 calendar days after mailing of the dismissal, provides evidence of good cause for his failure to appear at the hearing, and no delay beyond the time limits as indicated in this Subchapter, §10167 under Administrative Appeal Process results.

i. Judicial Review

i. If the results of the administrative hearings are adverse to the facility, the facility may request a judicial review of such matters to the Nineteenth Judicial District Court within 15 days of receipt of such findings. Such appeal shall be suspensive.

ii. The facility shall furnish with the appeal, a bond in the minimum amount of one and one-half times the amount of the fine imposed by the Department of Health and Hospitals. The bond furnished shall provide in substance that it is furnished as security that the facility will prosecute its appeal, that any judgment against it including court courts, will be paid or satisfied from the amount furnished, or that otherwise the surety is liable for the amount assessed against the facility.

iii. The appeal shall be heard in a summary proceeding.

iv. At the conclusion of the judicial review, any party aggrieved by the decision may seek further appeals as authorized by law.

C. Description of Sanctions

1. Monitoring On-Site. In the case of a nursing facility which, on three consecutive standard surveys conducted, has been found to have provided substandard quality of care, the state shall (regardless of what other remedies are provided):

a. impose the denial of payment for new admissions; and

b. monitor the facility until the facility has demonstrated to the satisfaction of the state, that it is in compliance with the requirements and that it will remain in compliance with such requirements. The department shall monitor, on-site, on a regular, as needed basis, a nursing facility's compliance with the requirements if:

i. the facility has been found not to be in compliance with such requirements and is in the process of correcting deficiencies to achieve such compliance;

ii. the facility was previously found not to be in compliance with such requirements, has corrected deficiencies to achieve such compliance, and verification of continued compliance is indicated; or

iii. she state has reason to question the compliance of the facility with such requirements.

c. The department may monitor conditions while improvements are being made or while the facility is being closed. Monitoring can include:

i. periodic unannounced site visits by a surveyor during the period of the day where care is most compromised (e.g. during the medication administration or during the meal service); or

ii. on-site full time monitoring by surveyors on shifts on 8-12 hours to observe all phases of operation of the facility.

d. The state may maintain and utilize a specialized team (including an attorney, an auditor, and appropriate health care professionals) for the purpose of identifying, surveying, gathering and preserving evidence, and carrying out appropriate enforcement actions against chronically substandard nursing facilities.

NOTE: The notice and appeal procedures previously described in this Subchapter, §10167 apply.

2. Specific Staffing Requirements. When there is a breakdown in the care and services at a facility and the efforts of the facility have not been successful in correcting these deficiencies, the department may require special staffing on the part of the facility paid for by the facility. This could include (though it is not limited to) a consultant on resident assessments or care planning, an additional licensed nurse to provide treatments, a consultant dietician, a consultant pharmacist, or medical records practitioner. Any special staffing shall be in addition to the staff already hired. The special staffing shall be time limited and shall be clearly outlined in a letter from the secretary or the designee.

a. The notice and appeal procedures described previously in this Subchapter, §10167 shall apply.

3. Civil Money Penalties (Fines). The following listed civil fines pertaining to classified violations may be assessed by the secretary against nursing facilities. In the case of Class A violations, the following civil fines shall be assessed. In the cases of Class B, C, D, or E violations, the Secretary, in his discretion, may elect to assess the following civil fines or may allow a specified period of time for correction of said violation. For Class D and E violations, the facility will be given notice of the fine at the time of the first violation and may be given an opportunity to demonstrate compliance before the fine becomes final. If compliance is demonstrated on the follow-up visit, payment of fine may be waived. In all instances the violation is counted and recorded. If compliance is not demonstrated at the next visit, the penalty for a repeat violation will be assessed. No facility shall be penalized because of a physician's or consultant's non-performance beyond the facility's control or if the violation is beyond the facility's control, if the situation and the efforts to correct it are clearly documented. It is not the intent that every violation found on a survey, inspection, or related visit should be accompanied by an administrative penalty.

a. Class A Violations. Class A violations are subject to a civil fine which shall not exceed $2,500.00 for the first violation. A second Class A violation occurring within an 18 month period from the first violation shall not exceed $5,000.00 per day. The third Class A violation shall result in proceedings being commenced for termination of the facility's Medicaid agreement and may result in proceedings being commenced for revocation of licensure of the facility.

b. Class B Violations. Class B violations are subject to a civil fine which shall not exceed $1,500.00 for the first violation. A second Class B violation occurring within an 18 month period from the first violation shall not exceed $3,000.00 per day. The third Class B violation shall result in proceedings being commenced for termination of the facility's Medicaid agreement and may result in proceedings being commenced for revocation of licensure of the facility.

c. Class C Violations. Class C violations are subject to a civil fine which shall not exceed $1,000.00 for the first violation. A second Class C violation occurring within an 18 month period from the first violation shall not exceed $2,000.00 per day. The third Class C violation shall result in proceedings being commenced for termination of the facility's Medicaid agreement and may result in proceedings being commenced for revocation of licensure of the facility.

d. Class D Violations. Class D violations are subject to a civil fine which shall not exceed $100 for the first violation. Each subsequent Class D violation within an 18 month period from the first violation shall not exceed $250 per day.

e. Class E Violations. Class E violations are subject to a civil fine which shall not exceed $500 for the first violation. Each subsequent Class E violation occurring within an 18 month period from the first violation shall not exceed $100 per day.

i. The total amount of fines assessed for violations determined in any one month shall not exceed $5,000.00, except that the aggregate fines assessed for Class A or B violations shall not exceed $10,000.00 in any one month.

f. Factors in Assessment of Civil Fines. In determining whether a civil fine is to be assessed and in affixing the amount of the fine to be imposed, the secretary shall consider:

i. the gravity of the violation including the probability that death or serious physical harm to a resident will result or has resulted;

ii. the severity and scope of the actual or potential harm;

iii. the extent to which the provisions of the applicable statutes or regulations were violated;

iv. the "good faith" exercised by the licensee. Indications of good faith include, but are not limited to:

(a). prior accomplishments manifesting the licensee's desire to comply with requirements;

(b). efforts to correct; and

(c). any other mitigating factors in favor of the licensee;

v. any relevant previous violations committed by the licensee.

vi. the financial benefit to the licensee of committing of continuing the violation;

vii. approved waivers.

g. Right to Assess Civil Fines Not Merged In Other Remedies. Assessment of a civil fine provided by this section shall not affect the right of the Department of Health and Hospitals to take such other action as may be authorized by law or regulation.

D. Classes of Violations Defined

1. Class A Violations. Those violations which create a condition or occurrence relating to the operation and maintenance of a nursing facility which result in death or serious harm to a resident.

2. The following examples of Class A violations are provided for illustrative purposes only and are subject to the conditions outlined in Subchapter L, Sanctions.

a. Death of a Resident. Any condition or occurrence relating to the operation of a nursing facility in which the conduct, act, or omission of a person or actor purposely, knowingly, or negligently results in the death of a resident shall be a Class A violation.

b. Serious Physical Harm to a Resident. Any condition or occurrence relating to the operation of a nursing facility in which the conduct, act, or omission of a person or actor purposely, knowingly, or negligently results in serious physical harm to a resident shall be a Class A violation.

NOTE: The above examples of Class A violations are provided for illustrative purposes only.

3. Class B Violations. Those violations which create a condition or occurrence relating to the operation and maintenance of a nursing facility which create a substantial probability that death or serious physical harm to a resident will result from the violation.

4. The following examples of Class B violations are provided for illustrative purposes only and are subject to the conditions outlined in Subchapter L, Sanctions.

5. The following conduct, acts, or omissions, which do not result in death or serious physical harm but which create a substantial probability that death or serious physical harm to a resident will result therefrom, are conditions or occurrences relating to the operation of a nursing facility and are Class B violations:

a. Nursing Techniques. A Class B violation shall exist when good nursing practice is not exercised and this results in the following occurrences:

i. medications or treatments are improperly administered or withheld by nursing personnel;

ii. there is a failure to adequately and appropriately feed residents who are unable to feed themselves or there is use of specialized feeding equipment or substances which are outdated, not protected from contamination, or incorrectly used;

iii. there is a failure to change or irrigate catheters as ordered by a physician or there is use of irrigation sets or solutions which are outdated or not protected from contamination;

iv. there is a failure to obtain physician orders for the use, type, and duration of restraints or physical restraints are improperly applied or facility personnel fail to check and release restraint as specified in regulations;

v. staff knowingly fails to answer call lights;

vi. there is a failure to turn or reposition as ordered by a physician or as specified in regulations;

vii. there is a failure to provide rehabilitative nursing as ordered by a physician or as specified in regulations.

b. Poisonous Substances. A Class B violation shall exist when a facility fails to provide proper storage of poisonous substances.

c. Falls by Residents. A Class B violation shall exist when a facility fails to maintain required direct care staffing, follow physician's orders, provide a safe environment, or address a history of falls on a resident's care plan, and this failure directly causes a fall by a resident. (Examples: Equipment not properly maintained or a fall due to personnel not responding to a resident's request for assistance.)

d. Assaults. A Class B violation shall exist when a facility fails to maintain required direct care staffing, adequately trained staff, or take appropriate measures when it is known that a resident is combative or assaultive with other residents, and this failure causes an assault upon a resident of the facility by another resident. A Class B violation shall also exist when a facility fails to perform adequate screening of personnel and this failure causes an assault upon a resident by an employee of the facility.

e. Permanent Injury to a Resident. A Class B violation shall exist when facility personnel improperly apply physical restraints as directed by physician's orders or regulations and this failure causes permanent injury to a resident.

f. Nosocomial Infection. A Class B violation shall exist when a facility does not follow or meet nosocomial infection control standards as outlined by regulations or as ordered by the physician.

g. Medical Services. A Class B violation shall exist when a facility fails to secure proper medical assistance or orders from a physician and this creates the probability of death or serious harm of a resident.

h. Decubitus Ulcers. A Class B violation shall exist when a facility does not take decubitus ulcer measures as ordered by the physician or facility personnel fail to notify the physician of the existence or change in the condition of such ulcers and such failure creates a probability of death or serious physical harm of a resident.

i. Treatments. A Class B violation shall exist when facility personnel performs treatment(s) contrary to a physician's order or fail to perform such treatments and such treatment creates the probability of death or serious physical harm of a resident.

j. Medications. A Class B violation shall exist when facility personnel knowingly withhold medication from a resident as ordered by a physician and such withholding of medication(s) creates the probability of death or serious injury of a resident, or facility personnel fails to order and/or stock medication(s) prescribed by the physician and the failure to order and/or stock medication(s) creates a probability of death or serious harm of a resident.

k. Elopement. A Class B violation shall exist when a facility does not provide reasonable supervision of residents to prevent a resident from wandering away from the facility and such failure creates the probability of death or serious harm to a resident, or a facility does not provide adequate measures to ensure that residents with an elopement history do not wander away from the facility. (Examples of preventive measures include but are not limited to documentation that an elopement history has been discussed with the family or other caretaker of the resident, alarms have been placed on exit doors, personnel have been trained to make additional effort to watch the resident with such history, and the physician of such resident has been made aware of such history.)

l. Failure to Provide Heating or Air Conditioning. A Class B violation shall exist when a facility fails to reasonably maintain its heating and air conditioning system as required by regulation. Isolated incidents of breakdown or power failure shall not be considered Class B violations under this section.

m. Natural Disaster/Fire. A Class B violation shall exist when a facility does not train staff in fire/disaster procedures as required by regulations or when staffing requirements are not met.

n. Life Safety Code System. A Class B violation shall exist when a facility fails to maintain the required life safety code system. Isolated incidents of breakdown shall not be considered a Class B violation if the facility has immediately notified the Health Standards Section upon discovery of the problem and has taken all necessary measures to correct the problem.

o. Nursing Equipment/Supplies. A Class B violation shall exist if equipment and supplies to care for a resident as ordered by a physician are not provided, or if the facility does not have sufficient equipment and supplies for residents as specified by regulation and these conditions create a probability of death or serious harm to a resident.

p. Call System. A Class B violation shall exist when a facility fails to maintain a resident call system or the call system is not functioning for a period of more than 24 hours. If call system cords are not kept within reach of residents then it will be determined that the facility has failed to maintain a resident call system and this failure creates a probability of death or serious physical harm to a resident.

NOTE: The above examples of Class B violations are provided for illustrative purposes only.

6. Class C Violations - The following conduct, acts, or omissions which do not result in death or serious physical harm to a resident or the substantial probability thereof but create a condition or occurrence relating to the operation and maintenance of a nursing home facility that create a potential for harm by directly threatening the health, safety, rights or welfare of a resident are Class C violations.

Note: The following examples of Class C violations are provided for illustrative purposes only and are subject to the conditions outlined in Subchapter L.

a. Nursing Techniques. A Class C violation shall exist when good nursing practice is not exercised and this results in the following occurrences:

i. medications or treatments are improperly administered or withheld by nursing personnel;

ii. there is a failure to adequately and appropriately feed residents who are unable to feed themselves or there is use of specialized feeding equipment and substances which are outdated, not protected from contamination or incorrectly used;

iii. there is a failure to change or irrigate catheters as ordered by a physician or there is use of irrigation sets and solutions which are outdated or not protected from contamination;

iv. there is a failure to obtain physician orders for the use, type, and duration of restraints, or physical restraints are improperly applied, or facility personnel fail to check and release the restraint as specified in regulations;

v. staff knowingly fails to answer call lights;

vi. there is a failure to turn or reposition residents as ordered by a physician or as specified in regulations; and

vii. there is a failure to provide rehabilitative nursing as ordered by a physician or as specified in regulations.

b. Poisonous Substances. A Class C violation shall exist when a facility fails to provide proper storage of poisonous substances and this failure threatens the health, safety, rights or welfare of a resident.

c. Falls by Residents. A Class C violation shall exist when it is determined that falls may occur in a facility as a result of the facility's failure to maintain required direct care staffing or a safe environment (including adequate training of staff) as set forth in regulation and this failure threatens the health, safety, rights, or welfare of a resident.

d. Assaults. A Class C violation shall exist when a facility fails to maintain required direct care staffing or measures are not taken when it is known that a resident is combative and assaultive with other residents and this lack threatens the health, welfare, rights, or safety of a resident.

e. Improper Use of Restraints. A Class C violation shall exist when facility personnel apply physical restraints contrary to published regulations or fail to check and release such restraints as directed by physician's order or regulations and such failure threatens the health, safety, rights, or welfare of a resident.

f. Medical Services. A Class C violation shall exist when a facility fails to secure proper medical assistance or orders from a physician and this failure threatens the health, safety, rights or welfare of a resident.

g. Decubitus Ulcers. A Class C violation shall exist when a facility does not take decubitus ulcer measures as ordered by the physician and this failure threatens the health, safety, rights or welfare of a resident, or facility personnel fail to notify the physician of such ulcers or change in a resident's condition with regard to decubitus ulcers and this failure threatens the health, safety, rights or welfare of a resident.

h. Treatments. A Class C violation shall exist when facility personnel perform treatments contrary to physician's order or fail to perform such treatments and such treatment threatens the health, safety, rights, or welfare of a resident.

i. Medications. A Class C violation shall exist when facility personnel withhold physician ordered medication(s) from a resident and such withholding threatens the health, safety, rights, or welfare of a resident, or facility personnel fail to order or stock medication(s) prescribed by the physician and this failure threatens the health, safety, rights, or welfare of a resident.

j. Elopement. A Class C violation shall exist when a facility does not provide reasonable supervision of residents to prevent a resident from wandering away from the facility and such failure threatens the health, safety, rights, or welfare of a resident, or a facility does not provide adequate measures to ensure that residents with a history of elopement do not wander away from the facility and such failure threatens the health, safety, rights, or welfare of a resident.

k. Food on Hand. A Class C violation shall exist when there is an insufficient amount of food on hand in the facility to meet the menus for the next three-day period and this failure threatens the health, safety, rights, or welfare of a resident.

l. Nursing Equipment/Supplies. A Class C violation shall exist if equipment and supplies to care for a resident as ordered by a physician are not provided, or if the facility does not have sufficient equipment and supplies for residents as specified by regulation and these conditions threaten the health, safety, rights, or welfare of a resident.

m. Call System. A Class C violation shall exist when a facility fails to maintain a resident call system or the call system is not functioning for a period of 24 hours. If call system cords are not kept within reach of residents then it will be determined that the facility has failed to maintain a resident call system and this failure threatens the health, safety, rights, or welfare of a resident.

n. Heating and Air Conditioning. A Class C violation shall exist when a facility fails to maintain its heating and air conditioning systems as required by regulation and such failure threatens the health, safety, rights, or welfare of a resident. Isolated incidents of breakdown or power failure shall not be considered a Class C violation under this Section.

o. Natural Disaster/Fire. A Class C violation shall exist when a facility does not train staff in fire/disaster procedures as required by regulations or when staffing requirements are not met and this failure threatens the health, safety, rights, or welfare of a resident.

p. Life Safety Code System. A Class C violation shall exist when a facility fails to maintain the required life safety systems and this threatens the health, safety, rights or welfare of a resident. Isolated incidents of breakdown shall not be considered a Class C violation if the facility has immediately notified the Health Standards Section upon discovery of the problem and has taken all necessary measures to correct the problem.

r. Dietary Allowance. A Class C violation shall exist when it is determined that the minimum dietary needs of a resident are not being met as ordered by the physician.

s. Resident Rights. A Class C violation shall exist when facility personnel fails to inform a resident of his Resident Rights as outlined in regulation, or facility personnel fail to allow a resident to honor or exercise any of his rights as outlined in regulation or statute.

t. Sanitation. A Class C violation shall exist when it is determined that regulations relating to sanitation are not met.

u. Administrator. A Class C violation shall exist when it is determined that a facility does not have a licensed administrator for 30 or more consecutive days as required by regulation.

v. Director of Nurses. A Class C violation shall exist when it is determined that a facility does not have a director of nurses (DON) as required by regulation for 30 or more consecutive days unless a waiver has been granted by the department.

w. Notice of Staff Vacancy. A Class C violation shall exist when it is determined that a facility does not have a licensed administrator or a Director of Nurses and has not notified the bureau within ten days as required by regulation.

NOTE: The examples above of Class C violations are provided for illustrative purposes only.

7. Class D Violations. Those violations which are related to administrative and reporting requirements that do not directly threaten the health, safety, rights, or welfare of a resident.

NOTE: The following examples of Class D violations are provided for illustrative purposes only and are subject to the conditions outlined in subchapter L.

a. Overbedding. A Class D violation shall exist when a facility is found to exceed its licensed bed capacity.

b. False Reporting. A Class D violation shall exist when it has been determined that a report, physician's orders, nurses' notes, patient account records, staffing records, or other documents or records which the facility is required to maintain have been intentionally falsified.

c. Resident Trust Funds. A Class D violation shall exist when it is determined that the facility's records reflect that resident trust funds have been misappropriated by facility personnel or if a resident has been charged for items which the facility must provide at no cost to the resident.

d. Denial of Access of Facility. A Class D violation shall exist when it is determined that personnel from the Louisiana Department of Health and Hospitals, the United States Department of Health and Human Services, or personnel of any other agency authorized to have access to any nursing facility have been denied access to the facility or to any facility document record.

e. Reporting of Unusual Occurrences/ Accidents .A Class D violation shall exist when it has been determined that a facility did not report any unusual occurrences or accidents in a timely manner as mandated by regulation.

f. Residents' Council. A Class D violation shall exist when a facility fails to allow a resident access to an established Residents' Council if one exists.

NOTE: The examples above of Class D violations are provided for illustrative purposes only.

8. Class E Violations. Class E violations are defined as the failure of any nursing facility to submit a statistical or financial report in a timely manner as required by regulations. The failure to timely submit a statistical or financial report shall be considered a separate Class E violation during any month or part thereof in non-compliance.

NOTE: In addition to any civil fine which may be imposed, the director is authorized after the first month of a Class E violation to withhold any further reimbursement to the facility until the statistical or financial report is received by the Bureau of Health Services Financing.

E. Collection of Civil Fines Assessed. Civil fines assessed shall be final if:

1. no timely or proper appeal was requested;

2. the facility admits the violations and agrees to pay; and

3. the administrative hearing is concluded with findings of violations and time for seeking judicial review has expired.

a. When civil fines become final, they shall be paid in full within ten days of their commencement unless the department allows a payment schedule in light of a documented financial hardship. Such documentation shall be submitted within the ten-day period.

b. If payment of assessed civil fines is not received or security not posted within ten days after they are deemed final, the Department of Health and Hospitals shall deduct the full amount plus interest from money otherwise due to the facility as Medicaid reimbursement in its next (quarterly or monthly) payment.

c. No nursing facility may claim imposed fines as reimbursable costs, nor increase charges to residents as a result of such fines. Any audits performed by the Department of Health and Hospitals shall monitor this prohibition.

F. Denial of Medicaid Payments For All New Admissions

1. Mandatory Denial. In the case of a nursing facility which no longer meets the requirements, the state shall, regardless of what other remedies are provided:

a. impose the denial of payment; and

b. monitor the facility;

i. denial of payment applies to any individual admitted to the nursing facility involved after such notice to the public and to the facility as may be provided for by the state.

2. Agency Procedures. Before denying payments for new admissions, the agency must comply with the following requirements:

a. Provide the facility up to 60 days to correct the cited deficiencies and comply with the requirements (for SNFs and NFs);

b. If at the end of the specified period, the facility has not achieved compliance, give the facility notice of intent to deny payment for new admissions, and opportunity for an informal hearing.

NOTE: If the facility requests a hearing, see §10167, Notice and Appeal Procedure, of this Chapter.

3. Effect of Sanction on Status of Residents

a. The resident's status at the effective date of the denial of payment is the controlling factor in determining whether or not residents are subject to the denial of payment, if readmitted.

b. Residents admitted and discharged before the effective date of the denial of payment are considered new admissions, if readmitted, and are subject to the denial of payment.

c. Residents admitted on or after and discharged after the effective date of the denial of payment are considered new admissions if readmitted, and are subject to the denial of payment.

d. Residents admitted before and discharged on or after the effective date of the denial of payment are not considered new admissions if readmitted, and are not subject to the denial of payment.

e. Residents admitted before the effective date of the denial of payment and taking temporary leave, before, on, or after the effective date of the denial of payment are not considered new admissions upon return and thereafter, are not subject to the denial of payment.

f. Residents admitted on or after the effective date of the denial of payment and taking temporary leave, are not considered new admissions, but continue to be subject to the denial of payment.

4. Duration

a. The denial shall remain in effect until the Department determines the NF is in substantial compliance with requirements.

b. Notification to the provider and the appeal procedure is described in this chapter under Notice and Appeal Procedure.

c. Notification to the public shall be in the newspaper of widest circulation in the area.

G. Withholding of Vendor Payments. The Department of Health and Hospitals may withhold Medicaid vendor payments in whole or in part in the following situations, which are not all inclusive.

1. Incorrect/Inappropriate Charges. When the Department of Health and Hospitals determines that a Nursing Facility has incorrectly or inappropriately charged residents or responsible parties or there has been misapplication of resident funds, a sum not to exceed the inappropriate charges or misapplied funds may be withheld until the provider does the following:

a. makes restitution; and

b. submits documentation of such restitution to the Department of Health and Hospitals.

2. Inadequate Review/Revision of Plan of Care. When a Nursing Facility repeatedly fails to ensure that an adequate plan of care for a resident is reviewed and revised at least at required intervals, the vendor payment may be withheld or recouped until such time as compliance is achieved.

3. Corrective Action on Complaints. When a facility fails to submit an adequate corrective plan in response to a complaint within seven days after receiving the complaint report, vendor payments may be withheld until an adequate corrective plan is received unless the time limit is extended by the Bureau of Health Services Financing or an administrative reconsideration or appeal is timely filed.

4. Unapproved Staffing Shortage. When a survey report indicates an unapproved staffing shortage, vendor payments may be withheld until such time as staffing is brought into compliance.

5. Corrective Action for Audit Findings. When a facility fails to submit corrective action in response to financial and compliance audit findings within 15 days after receiving the notification letter, vendor payments may be withheld until such time as compliance is achieved.

6. Request for Information. When a facility fails to respond satisfactorily to requests for information within 15 days after receiving the department's letter, vendor payments may be withheld until such time the information is received by the department.

7. Unauditable Records. When the department's auditors determine that a facility's records are unauditable, vendor payment shall be withheld as determined by the department.

8. Full Scope Audits. When the department's limited scope audit of the Residents' Personal Funds Account indicates a material number of transactions were not sufficiently supported, the department shall initiate a full scope audit of the account and the costs of the audit shall be withheld from the facility's monthly vendor payment.

NOTE: The Notice and Appeal procedures in this Subchapter apply.

H. Temporary Management

1. Regulatory Citation. Section 1919(h)(2)(A)(iii) of the Social Security Act requires the appointment of temporary management to oversee the operation of the facility and to assure the health and safety of the facility's residents.

2. Application. Immediately effective temporary management is appropriate while:

a. the facility is operating without a current Louisiana license;

b. the licensee has abandoned the facility;

c. the nursing facility is closing within 30 calendar days and the Department of Health and Hospitals has reasonable cause to believe that inadequate arrangements designed to minimize the adverse effects of transfer have been made to relocate its residents;

d. a condition or practice in a facility poses a serious and imminent threat to the health, safety, or welfare of the residents or presents a substantial probability that death or serious physical harm would result therefrom. In such instance the facility owner may request approval from the secretary to be put on 23-day fast track in lieu of temporary management. However, such request may only be granted when the Secretary determines that an adequate plan to protect the health, safety, and welfare of residents has been devised by the facility to prevent an imminent threat of harm to the facility's residents and when the secretary has provided satisfactory means for the department to monitor subsequent implementation of such corrective measures by the facility.

i. Appointment of a temporary manager based on one or more of the following grounds shall become effective only upon the later of the expiration of the period for seeking appeal or upon the entry of a final administrative determination by the Department of Health and Hospitals or a hearing officer.

(a). The nursing facility exhibits a consistent pattern of violating residents' rights established pursuant to Louisiana or federal laws or regulations.

(b). The nursing facility is experiencing financial difficulties that present a substantial probability the facility will be compelled to terminate operation.

3. Notice of Appointment of Temporary Manager. When the Secretary of the Department of Health and Hospitals determines that a nursing facility is in need of a temporary manager, he shall provide written notice which shall include:

a. the date the appointment shall take effect;

b. a statement setting forth grounds for the appointment;

c. The name of the person within the Department of Health and Hospitals who has the responsibility for responding to inquiries about the appointment;

d. The name of the person appointed temporary manager, if such designation has been made;

e. A statement explaining the procedure for requesting a hearing.

NOTE: Notice shall be delivered by hand or by certified mail to the owner and administrator of a nursing facility.

4. Powers and Duties of Temporary Manager. The licensee and administrator shall be divested of administration of the nursing facility in favor of the temporary manager from the effective date of appointment.

a. The temporary manager shall have the following powers and duties:

i. exercise those powers and perform those duties set out by the Department of Health and Hospitals in accordance with these and any other applicable provisions;

ii. operate the nursing facility in such a manner as to assure safety and adequate health care for the residents;

iii. take such action as is reasonably necessary to protect or conserve the assets or property of the facility for which the temporary manager is appointed, or the proceeds from any transfer thereof, and use them only in the performance of authorized powers and duties;

iv. use the building, fixtures, furnishings, and any accompanying consumable goods in the provision of care and services to residents and to any other persons receiving services from the nursing facility;

v. Collect payments for all goods and services provided to residents or others during the period of the temporary management at the same rate of payment charged by the owners at the time the temporary manager was appointed or at a fair and reasonable rate as otherwise approved by the Department of Health and Hospitals;

vi. correct or eliminate any deficiency in the structure or furnishings of the nursing facility which endanger the safety, health, or welfare or residents, provided the total cost of correction does not exceed $5,000. The Department of Health and Hospitals may order expenditures for this purpose in excess of $5,000 on application from the temporary manager after notice to the owner and an opportunity for informal hearing by the secretary or his designee to determine the reasonableness of the expenditures;

vii. let contracts and hire employees at rates reasonable in the community to carry out the powers and duties of the temporary management;

viii. honor all leases, mortgages, and secured transactions governing the building in which the nursing facility is located and all goods and fixtures in the building of which the temporary manager has taken possession, but only to the extent of payments which, in the case of a rental agreement, are for the use of the property during the period of temporary management, or which, in the case of a purchase agreement, become due during that same period;

ix. have full power to direct, manage, and discipline employees of the nursing facility, subject to any contract rights they have. The temporary manager shall not discharge employees without authorization from the Department of Health and Hospitals and notice to the owner. Temporary management shall not relieve the owner of any obligation to employees made prior to the appointment of a temporary manager and not carried out by the temporary manager;

x. preserve all property or assets of residents which are in the possession of a nursing facility or its owner; preserve all property or assets and all resident records of which the temporary manager takes possession; and provide for the prompt transfer of the property, assets, and records to the new placement of any transferred resident. An inventory list certified by the owner and temporary manager shall be made at the time the temporary manager takes possession of the nursing facility.

5. Procedure for Payments to Temporary Manager of Debts Owed to the Facility

a. As soon as possible after the effective date of appointment of the temporary manager but in no event later than ten days thereafter, the owner and administrator shall inform the temporary manager of the names and addresses of all persons owing money to the facility and of the amounts owed.

b. The temporary manager shall be the proper recipient of all funds due and owing to the facility from and after the effective date of appointment regardless of whether such funds are for goods or services rendered before or after the effective date of appointment, and the owner and administrator shall immediately transfer to the temporary manager any such funds received by either of them after the effective date of appointment.

c. The temporary manager shall notify persons making payments to the facility of the appointment of a temporary manager.

d. A person who is notified of the Department of Health and Hospital's appointment of a temporary manager and of the temporary manager's name and address shall be liable to pay the temporary manager for any goods or services provided by the temporary manager after the date of the appointment, if the person would have been liable for the goods and services as supplied by the owner.

e. The temporary manager shall give a receipt for each payment and shall keep a copy of each receipt on file.

f. The temporary manager shall deposit amounts received in a separate account and may make disbursements from such account. The temporary manager may bring an action to enforce liabilities created by the foregoing provisions.

g. A payment to the temporary manager of any sum owing to the nursing facility or to its owner shall discharge any obligation to the nursing facility to the extent of the payment.

6. Qualifications and Compensation of a Temporary Manager

a. The Department of Health and Hospitals shall appoint to serve as a temporary manager any person qualified by education and the requisite experience in nursing home administration and who is licensed in accordance with Louisiana law.

b. A temporary manager shall have no financial or fiduciary interest in the facility or any affiliated entities. No temporary manager shall be appointed who is affiliated with a management firm under an order of decertification in Louisiana or another state.

c. The Department of Health and Hospitals shall set the necessary expense of the temporary management. Said compensation shall be in line with the prevailing wage in the nursing home field and shall be charged as an expense to the facility for which the manager is appointed. The department may seek reimbursement for such expenses by deducting the appropriate amount from funds due or payable to the facility.

7. Personal Liability of the Temporary Manager

a. A temporary manager may be held liable in a personal capacity for the temporary manager's gross negligence, intentional acts, or breach of fiduciary duty, but otherwise, the acts and omissions of such temporary manager will be defended and discharged by the department.

b. The Department of Health and Hospitals shall secure a bond to cover any acts of negligence or mismanagement committed by the temporary manager when not covered by the facility's insurance.

8. Termination of Temporary Management. Temporary management shall be terminated when it is determined that:

a. the conditions which gave rise to the temporary management no longer exist; or

b. all of the Title XVIII (Medicare) and XIX (Medicaid) residents in the nursing facility have been transferred or discharged and the facility is no longer certified as a provider in the Medicare or Medicaid programs; or

c. the temporary manager has concluded all financial and patient care responsibilities, and

d. determination has been made that the party assuming responsibility for continued operation of the facility is capable of competently managing the facility in compliance with all requirements.

9. Notice of Appeal. Procedures described in the Notice and Appeal Procedure of this Subchapter §10167 shall apply.

I. Revocation of License

a. The Secretary of the Department of Health and Hospitals may deny an application for a license or refuse to renew a license or may revoke an outstanding license when an investigation reveals that the applicant or licensee is in non-conformance with or in violation of the provisions of R.S. 40:2009:6; provided that in all such cases, the Secretary shall furnish the applicant or licensee 30 calendar days written notice specifying reasons for the action.

b. The secretary, in a written notice of denial, non-renewal, or revocation of a license shall notify the applicant or licensee of his right to file a suspensive appeal with the Office of the Secretary within 30 calendar days from the date the notice, as described in this Subchapter §10167 in Notice and Appeal Procedure, is received by him. This appeal or request for a hearing shall specify in detail reasons why the appeal is lodged and why the appellant feels aggrieved by the action of the secretary.

c. When any appeal as described in the Notice and Appeal Procedure of this Subchapter is received by the secretary, if timely filed, he shall appoint an impartial three member board to conduct a hearing on the appeal at such time and place as such members deem proper, and after such hearing to render a written opinion on the issues presented at the hearing. The written decision or opinion of a majority of the members conducting the hearing shall constitute final administrative action on the appeal.

d. Any member of said board or the Secretary shall have power to administer oaths and to subpoena witnesses on behalf of the board or any party in interest and compel the production of books and papers pertinent to any investigation or hearing authorized by this subchapter, provided that in all cases witness fees and transportation and similar hearing costs shall be paid by the appellant or by the Department of Health and Hospitals if the appellant is found innocent of charges. Any person having been served with a subpoena who shall fail to appear in response to the subpoena or fail or refuse to answer any question or fail to produce any books or papers pertinent to any investigation or hearing or who shall knowingly give false testimony therein shall be guilty of a misdemeanor and shall upon conviction be punished by a fine of not less than one hundred dollars nor more than five hundred dollars or by imprisonment of not less than one month nor more than six months, or by both such fine and imprisonment.

J. Penalty for Falsification of Resident Assessment

1. An individual who willfully and knowingly certifies a material and false statement in a residents assessment is subject to a civil money penalty of not more than $1,000.00 with respect to each assessment.

2. An individual who willfully and knowingly causes another individual to certify a material and false statement in a resident assessment is subject to a civil penalty of not more than $5,000.00 with respect to each assessment.

3. The notice and appeal procedures described previously apply.

K. Residents' Trust Fund

1. The Residents' Trust Fund, hereinafter referred to as the "trust fund" is hereby established in the Department of Health and Hospitals to receive monies collected from civil fines levied against nursing homes found to have been in violation of regulations of the department. Monies deposited in the trust fund shall be used to support social welfare programs for the aid and support of the needy residents of nursing homes, and to achieve that purpose the department is hereby authorized to enter into cooperative endeavor agreements with public and private entities. The monies deposited shall be segregated from other funds of the State or the department and shall be designated exclusively for the uses and purposes of this section. All monies of the Trust Fund shall be deposited in an interest bearing account under the supervision of the State Treasurer. Interest on these monies shall be retained in the trust fund.

2. The monies in the trust fund may be used for the following purposes:

a. to protect the health or property of residents of nursing homes which the department finds deficient;

b. to pay for the cost of relocation of residents to other facilities;

c. to maintain operation of a facility pending correction of deficiencies or closure; and

d. to reimburse residents for personal funds lost.

3. Monies from the trust fund shall be utilized only to the extent that private or public funds, including funds available under Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act, are not available or are not sufficient to meet the expenses of the facility. The Secretary of the Department shall conserve the resources of the Trust Fund and shall only authorize expenditures that are consistent with usual and customary charges.

4. Disbursements may be approved for charges in excess of usual and customary charges if the secretary provides adequate written explanation of the need for such disbursement to the House and Senate Health and Welfare Committees within five days of authorizing such disbursement.

5. The existence of the trust fund shall not make the department responsible for the maintenance of residents of a nursing home facility or maintenance of the facility itself.

6. The trust fund shall be administered by the secretary of the department or his designee. Requests for monies from the trust fund may be made by a nursing home administrator or owner, a resident of the facility, or a resident's relative, conservator, guardian, or representative. The applicant must submit a completed fund request form to the secretary of the department. Forms may be obtained from the department, which shall maintain an adequate supply of such forms in all state and parish offices. A decision shall be provided within seven days of the request.

7. If an emergency exists, the applicant may request immediate consideration by notifying the secretary of the department by telephone, indicating the seriousness and immediate nature of the request. The secretary may orally authorize immediate disbursement but proper documentation or reasons for the disbursement and all completed forms must be filed in the office of the secretary within five days thereafter.

8. The department shall make an annual accounting to the Division of Administration of all monies received in the Trust Fund and all disbursements of those monies.

9. The terms of repayment, if any, of monies disbursed from the trust fund shall be determined by the secretary of the department and may, where appropriate, be set forth in a contract signed by the secretary and the applicant or other party responsible for repayment.

10. Failure to repay the funds according to the established schedule may, at the discretion of the Secretary, prevent future disbursements to the applicant from the trust fund until all monies are repaid. Monies due and owing to reimburse the trust fund shall accrue interest at a rate of two percent above the prime lending rate, unless a different rate is specified in the repayment agreement. The secretary may authorize funds owed by the department to a nursing home facility to be transferred into the trust fund in order to reimburse amounts owed by the facility to the Trust Fund.

La. Admin. Code tit. 50, § II-10167

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.