Section 33-43-01-24 - Review process for findings of neglect placed on an individual nurse aide's registry listing1. An individual on the department's nurse aide registry with a finding of neglect placed on the individual's nurse aide registry listing may petition the department in writing to have the finding removed from the individual's registry listing. The individual must provide the department with authorization for any releases of information the department deems appropriate in conducting the investigation. The department will consider whether to remove the finding from the registry when: a. The employment and personal history of the nurse aide does not reflect a pattern of abusive behavior or neglect. For the purposes of this section, a pattern is defined as two or more occurrences of abusive or neglectful behavior toward another individual which resulted in the potential for a negative outcome or an actual negative outcome to the other individual; b. The neglect involved in the original finding was a singular occurrence that resulted in a potential or actual negative resident outcome; and c. A background check, including a criminal history investigation or report, reveals no history of mistreatment findings, including instances of domestic abuse, the granting of a restraining order which has not been overturned, an adverse finding entered on any child abuse information index, or any conviction of any crime involving violence or the threat of violence. 2. Once a determination has been made by the department that the individual has met the criteria identified in subsection 1 and is eligible for review, the following steps will be taken: a. The individual requesting the review must submit a written statement to the department, in a format prescribed by the department, which includes: (1) An explanation of the incident; (2) Why the individual believes the individual would not repeat the incident; (3) Why the individual believes the individual is not competent; and (4) Why the department should remove the finding from the individual's nurse aide registry listing, including any education or rehabilitation efforts that the individual has completed since the finding of neglect was placed on the individual's registry listing. b. The original incident, the written information submitted to the department under subdivision a, and any other information collected by the department shall be reviewed by a committee consisting of a staff member of the state department of health, a provider representative, and the state ombudsman. (1) The committee may consult with the department's attorney as deemed necessary. (2) Information obtained by the department from sources other than the petitioning individual and the department's file regarding the original incident will be provided to the individual, who will have thirty days after mailing to respond to the committee in writing. c. The petition, all information contained in the department's file regarding the original incident, and information received by the department will be reviewed by the committee with consideration given to the following factors: (1) The degree of negligence; (2) The severity of the potential negative resident outcome; (3) The severity of the actual negative resident outcome; (4) The forthrightness and cooperation of the individual; (5) The opinion of the individual's employer at the time of the incident regarding removing the finding from the individual's registry listing, including the employer's willingness to rehire the individual; (6) The resident's opinion as to willingness to be cared for by this individual again, if available; (7) Any rehabilitation or education completed by the individual since the incident; and (8) Any other factors or considerations the committee determines to be pertinent to its decision. The committee may request additional information from the individual if more information is required to make a determination or if the committee deems a matter not addressed by the individual to be relevant. d. Based on the review by the committee, with consideration given to the factors identified in subdivision c, the committee may: (1) Remove the finding from the individual's registry listing; (2) Require the individual demonstrates successful completion of a state-approved training and competency evaluation program prior to the finding being removed from the registry; (3) Require the individual to complete a rehabilitation or education program as identified by the committee prior to the finding being removed from the registry; (4) Require the individual to provide the committee with documentation that a nursing facility or health care facility has offered to employ the individual once the finding is removed from the individual's registry listing and that the nursing facility or health care facility is willing to monitor the resident care services provided by the individual; (5) Identify any additional timeframe the finding will remain on the registry. The additional timeframe identified by the committee may range anywhere from one month to permanent placement on the registry; (6) Take other action as identified appropriate by the committee; or (7) Implement any combination of the above actions. 3. The department must provide the individual and the registry with written results of the review within one hundred twenty days from the time the department has determined the individual is eligible for review and has received the written information submitted by the individual consistent with subdivisions a and b of subsection 1 and any additional information collected by the department. 4. The individual has only one opportunity to request the department to review the permanent placement of the neglect finding on the registry and to request the department remove the finding. 5. The review must be conducted based on written documentation submitted to the department. A face-to-face meeting with the individual may be requested by the committee as determined necessary. 6. The committee shall issue a written statement of fact, conclusions of law, and its order based on upon findings and conclusions. This statement must be mailed to the individual requesting the review. An appeal for reconsideration of the order must be filed with the department within thirty days from the date the order is mailed. The department may allow a petition for reconsideration of the order if the petition is received within fifteen days after the statement is mailed. If the department is petitioned for reconsideration, the department will review and reconsider the determination. Upon completion of the review, the determination will become the final order for purposes of appeal. 7. If a new finding of neglect is placed on the individual's registry listing after the previous finding of neglect has been removed, the new finding will remain on the registry permanently with no opportunity for review. N.D. Admin Code 33-43-01-24
General Authority: NDCC 23-44-02, 28-32-02(1)
Law Implemented: NDCC 23-01-03, 23-44-02, 28-32-05.2