Civil monetary penalties shall be based upon one or more
findings of noncompliance; actual harm to a resident or residents need not be
shown. Nothing shall prevent the Department from imposing this remedy for
deficiencies which existed prior to the survey or complaint investigation
through which they are identified. A single act, omission, or incident shall
not give rise to imposition of multiple penalties, even though such act,
omission, or incident may violate more that one Program Requirement. In such
cases, the single highest class of deficiency shall be the basis for penalty.
Compliance by the facility at a later date shall not result in the reduction of
the penalty amount. Civil monetary penalties and any attorneys' fees or other
costs associated with contesting such penalties are not reimbursable Medicaid
expenses except in the case where a facility prevails, in which case reasonable
attorneys' fees and costs shall be allowable. Whenever such penalties are
collected, the Department shall conduct a financial field audit to ensure that
there has been, and will be, no Medicaid reimbursement associated with the
penalties.
(a) Classification of deficiencies. The three classes of
deficiencies upon which civil monetary penalties shall be based are as
follows:
1. Class A: A deficiency or combination of deficiencies which
places one or more residents at substantial risk of serious physical or mental
harm.
2. Class B: A deficiency or combination of deficiencies, other
than Class A deficiencies, which has a direct adverse affect on the health,
safety, welfare, or rights of residents; or a failure to post notices issued by
the Department of imposition of remedies;
3. Class C: A deficiency or combination of deficiencies, other
than Class A or B deficiencies, which indirectly or over a period of more than
thirty (30) days is likely to have an adverse affect on the health, safety,
welfare, or rights of residents.
(b) Amounts. When Civil Monetary Penalties are imposed, such
penalties shall be assessed for each day the facility is or was out of
compliance. The amounts below shall be multiplied by the total number of beds
certified for participation in the Medicare and Medicaid programs according to
the records of the State Survey Agency at the time of the survey. Penalties
shall be imposed for each class of deficiencies identified in a survey or
complaint investigation
Class
|
Initial Finding
|
Subsequent Finding
|
Repeat Deficiency
|
A
|
$ 10.00
|
$ 15.00
|
$ 20.00
|
B
|
5.00
|
7.50
|
10.00
|
C
|
1.00
|
1.50
|
3.00
|
In any ninety (90) day period, the penalty amounts may not
exceed the applicable ceiling as described immediately below. The ceiling
(Initial, Subsequent, or Repeat) shall be determined by which category has the
largest percentage of the deficiencies cited in the survey or complaint
investigation.
Bed Size
|
Initial Finding
|
Subsequent Finding
|
Repeat Deficiency
|
0 - 50
|
$ 4,000
|
$ 6,000
|
$ 8,000
|
51 - 100
|
6,000
|
9,000
|
12,000
|
101 - 150
|
8,000
|
12,000
|
16,000
|
151 or more
|
10,000
|
15,000
|
20,000
|
(c) Procedure for imposing civil monetary penalties. Civil
monetary penalties shall be imposed as follows:
1. Within ten (10) business days of its discovery of a
deficiency, the State Survey Agency shall deliver to the Department its
recommendation for assessment of a penalty as a result of such
deficiency.
2. The decision to assess the penalty shall be made by a person
in the Department who is not the surveyor(s) or complaint investigator(s) who
reported the deficiency.
(d) Notice. The Department shall give written notice to the
facility of its imposition of any such penalty within ten (10) business days of
its receipt of a recommendation by the State Survey Agency for the assessment
of a penalty. The notice shall inform the facility of the amount of the
penalty, the basis for its assessment, and the facility's appeal rights.
(e) Payment. Within fifteen (15) business days from the date
the notice is received by the facility, the facility shall pay the full amount
of the penalty or penalties unless the facility requests Administrative Review
of the decision to assess the penalty or penalties. The amount of a civil
monetary penalty determined through Administrative Review shall be paid within
ten (10) business days of the facility's receipt of the Administrative Review
decision unless the facility requests an Administrative Hearing. The amount of
the civil monetary penalty determined through a hearing shall be paid within
ten (10) business days of the facility's receipt of the hearing decision.
Interest at the legal rate of interest established by Georgia law shall begin
to run on the later of one (1) business day after:
1. the facility's receipt of notice of the penalty; or
2. the date of issuance of the Administrative Review or
Hearing decision.
Failure of a facility to pay the entire penalty as specified in
this paragraph shall result in an automatic final decision and no further
administrative or judicial review or hearing shall be available to the
facility.
(f) Collection of civil penalties. If a facility fails or
refuses to pay a penalty within the time required, the Department may collect
the penalty by subtracting all or part of the penalty amount plus interest from
future medical assistance payments to the facility. Additionally, the
Department may subtract a fee representing the actual administrative cost of
collection. Nothing herein shall prohibit the Department from obtaining
judicial enforcement of its right to collect penalties and interest
thereon.
(g) Imposition against individuals. Each recipient resident's
functional capacity shall be assessed by the facility using an instrument
specified by the Department. A civil money penalty of $1,000 per assessment
shall be imposed by the Department against any individual who willfully and
knowingly certifies a material and false statement in such assessment
instrument or other documents used to support the assessment. A civil money
penalty of $5,000 per assessment shall be imposed by the Department against any
individual who willfully and knowingly causes another individual to certify a
material and false statement in such assessment instrument or other documents
used to support the assessment. Any such penalty shall be imposed by written
notice to the individual according to the same provisions as set forth in
Paragraphs (c) through (e) of this Section regarding deficiencies.
(h) Use of civil monetary penalties. The Department may use
collected civil monetary penalties for the following purposes:
1. protecting the health or property of residents;
2. paying costs of relocating residents;
3. maintaining the operation of a nursing facility while
deficiencies are corrected or the facility is being closed; and
4. reimbursing residents for personal funds lost, which
reimbursement shall not adversely affect a person's Medicaid
eligibility.
Notes
Ga. Comp. R. & Regs. R. 350-3-.04
Ga. L. 1977, p. 384, et seq.; O.C.G.A. Sec. 49-4-142(a).
Original Rule entitled
"Procedure for Adoption of Rules" was filed on April 11, 1978; effective May 1, 1978.
Amended: Filed
June 18, 1979; effective
July 8, 1979.
Amended: Filed
April 29, 1982; effective
May 19, 1982.
Repealed: ER.
350-3-0.3-.04 adopted. F. Oct. 5, 1989;
eff. Sept. 29, 1989, the date of
adoption, to remain in effect for 120 days or until adoption of a permanent
Rule superseding said Emergency Rule, as specified by the Agency.
Repealed:
Permanent Rule entitled "Civil Monetary Penalties" adopted. F.
Oct 4, 1989; eff.
November 1, 1989, as specified by
the Agency.