(a) The sanctions listed in this section shall be available with respect to providers of home and community-based waiver services independent of or in addition to the sanctions listed in Section 9 of this Chapter.
(b) Conditions for the Continued Provision of Services: The Department may place a condition(s) upon a home or community-based waiver service provider. - (i) The Department shall place a condition(s) on a provider if:
- (A) A provider has failed to submit an acceptable quality improvement plan pursuant to Chapter 45, or has failed to implement the quality improvement plan approved by the Department;
- (B) There has been a chronic failure to provide services pursuant to the individual plan of care;
- (C) A provider is providing services that fail to meet the applicable standard of care for the profession/service involved; or
- (D) There is a continuing condition creating serious detriment to the health, safety, or welfare of recipients of home and community-based waiver services.
- (ii) The Department may place the following condition(s) on the provider's certification:
- (A) Requiring completion of education, including evidence of competency in the area of the education:
- (I) Education may occur concurrent with continued services; or
- (II) Services may be suspended until education is completed and evidence of competency is received by the Department.
- (B) Requiring a physician's or appropriate medical specialist's statement verifying the ability to perform service duties as required;
- (C) Restricting the provider's provision of a specific service;
- (D) Restricting the provider's provision of services in a specific geographic area or location; and
- (E) Denying new admissions.
- (iii) The provider shall be notified by certified mail that a condition is being placed on their certification and shall have fifteen (15) working days to abate all areas of noncompliance that warrant the condition(s), or to submit an acceptable quality improvement plan pursuant to Chapter 45.
- (A) If the provider fails to abate all areas of noncompliance or submit an acceptable quality improvement plan within fifteen (15) days of this notice, then the condition(s) shall go into effect and continue until removed.
- (B) If all areas of noncompliance are successfully abated or an acceptable quality improvement plan is received by the Department, within fifteen (15) days of receipt of the notice then the condition(s) shall not be imposed.
- (C) If the provider does not implement the quality improvement plan accepted by the Department, than the provider shall be notified by certified mail that condition(s) shall be effective immediately.
- (iv) Once in place, a condition(s) shall not be removed or lifted until the provider submits the following:
- (A) Evidence that the areas of non-compliance have been abated;
- (B) An acceptable quality improvement plan;
- (C) Verification that the quality improvement plan has been implemented:
- (I) For each area of non-compliance;
- (II) Pursuant to Chapter 45; and
- (III) Within thirty (30) calendar days of placement of the condition; and
- (D) Failure to comply with provision (C) above may result in revocation of the provider's certification.
(c) Impose a Monitor. - (i) The Department may impose a state Monitor, at the provider's expense, when:
- (A) There has been chronic failure to provide services that has not been abated within fifteen (15) working days of placement of a condition;
- (B) A provider is providing services that fail to meet the applicable standard of care for the profession involved and the non-compliance has not been abated within fifteen (15) working days of placing a condition; or
- (C) There is a continuing condition creating serious detriment to the health, safety, or welfare of participants of home and community-based waiver services.
- (ii) The state Monitor shall have access to all of the provider's financial and health records, service delivery settings, staff and participant information that is otherwise available to the Department.
- (iii) The state Monitor shall be removed when the provider has abated the areas of non-compliance and has submitted and implemented an acceptable quality improvement plan.
- (iv) All state Monitor costs and expenses shall be paid by the provider, including a per diem rate based on wages and benefits established by contract. If the provider fails to pay the costs and expenses of the state Monitor, the state shall pay, but the state Monitor shall not be removed until payment in full is received from the provider. Payment for the state Monitor shall include:
- (A) When the state Monitor is working at a location requiring an overnight stay, the state Monitor shall be paid a per diem allowance not to exceed the allowances specified in W. S. § 9-3-102; and
- (B) When required to travel on behalf of the state, the state Monitor shall be reimbursed at a rate not to exceed the rates specified in W. S. § 9-3-103.
- (v) The Department has final authority to name the state Monitor, and shall make a reasonable effort to assure that there is not a potential conflict of interest between the state Monitor and the provider.
(d) Civil Money Penalties. - (i) The Department may impose civil money penalties when:
- (A) There is a chronic failure to provide services, and the same has not been abated within fifteen (15) working days of placement of a condition;
- (B) The services fail to meet the applicable standard of care for the profession involved, and the non-compliance has not been abated within fifteen (15) working days of placement of a condition; or
- (C) There is a continuing condition creating serious detriment to the health, safety, or welfare of participants of home and community-based waiver services.
- (ii) When determining the amount of any proposed penalty, the Department shall consider the following factors:
- (A) The size of the provider's operation, including number of clients served;
- (B) The gravity and extent of any potential or actual health, safety, or welfare risk to a participant;
- (C) The good faith of the provider including:
- (I) The degree of fault of the provider in causing or failing to correct the violation either through act or omission, ranging from inadvertent action causing an event which was unavoidable by the exercise of reasonable care to reckless, knowing, or intentional conduct; and
- (II) Whether economic benefit resulted from the provider's failure to comply.
- (D) The appropriateness of any acts taken, or which should have been taken, to mitigate a health, safety, or welfare risk to a participant;
- (E) The provider's history of previous substantiated violations, regardless of whether any previously substantiated violation resulted in a civil penalty assessment; and
- (F) Any other relevant information submitted to the Department between the initial sanction and the decision to impose civil money penalties.
- (iii) A finding that civil money penalties are warranted shall:
- (A) Be submitted to the provider, in writing, via certified mail;
- (B) Include reference to specific factors relevant to the determination of the penalties as supported by substantial evidence; and
- (C) Begin upon the provider's receipt of the notice of penalties, except that a provider's bad faith attempts to avoid notice shall cause the penalties to begin to run immediately.
- (iv) For each day of continuing violation, the civil money penalty shall not exceed one thousand dollars ($1,000.00) or one percent (1%) of the amount paid to the provider during the previous twelve (12) months, whichever is greater. The provider may request, in writing, that the Department reduce the penalties imposed upon a finding that the financial impact may negatively impact the provider's ability to provide services that meet participants' health and safety needs.
- (A) Such a reduction must be requested by the provider, in writing, and must be accompanied by relevant evidence to support the requested reduction within twenty (20) days of receiving notice of the penalties.
- (B) The Department's findings with regard to the reduction must be supported by substantial evidence and shall be sent to the provider via certified mail.
- (v) The civil money penalty shall continue until the provider submits evidence that the areas of non-compliance are abated, or the provider submits and implements an acceptable quality improvement plan.
(e) Suspensions. If at any time the Department finds that the provider is non-compliant with the rules to the extent that there exists a substantial and immediate threat to the health or safety of clients, the Department may summarily suspend the certification of that provider and take action necessary to protect the health and safety of participants. - (i) Action necessary to protect the health and safety of participants may include:
- (A) Removing the person or persons deemed to be at significant risk;
- (B) Making a report of abuse or neglect to the appropriate investigative agency as may be required by law; or
- (C) Other actions deemed necessary to protect the health or safety of participants.
- (ii) The suspension shall remain in place until the provider submits:
- (A) Evidence that the substantial and immediate threat to the health or safety of participants has been abated;
- (B) An acceptable quality improvement plan for each area of non-compliance; and
- (C) Evidence that the quality improvement plan for each area of non-compliance has been implemented.
- (iii) If after thirty (30) calendar days the provider has not complied with subsection (ii)(B) above, then the provider's certification shall be terminated.
- (iv) Notice of suspension under this section shall be in writing and shall be provided to the provider at the time of any action taken pursuant to this section.
- (v) In cases of suspension under this section, the provider shall be afforded an opportunity for a hearing within ten (10) days after the effective date of the suspension pursuant to W.S. § 42-4-120(e) and W.S. § 35-2-905(e).
- (A) A request for hearing for a suspension under this section shall be provided to the Department within two (2) days after the receipt of notice sent by the Department pursuant to Chapter 4.
- (B) The Department shall notify the provider that the hearing has been accepted or denied within one (1) business day of receipt of the request.
- (C) Providers shall not be afforded the opportunity to request reconsideration for suspensions under this section.
- (D) All other procedures for suspension hearings under this section shall be as specified by Chapter 4.
048-16 Wyo. Code R. § 16-19