Current StatusView additional legislative information at the LPITS web site.Bill Number: 1183 Ratification Number: 535 Act Number 449 Introducing Body: Senate Subject: Relating to State Health and Human Services Finance Commission
(A449, R535, S1183)
AN ACT TO AMEND CHAPTER 6, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO STATE HEALTH AND HUMAN SERVICES FINANCE COMMISSION, SO AS TO CREATE GROUPINGS DESIGNATED AS ARTICLE 1, "GENERAL PROVISIONS", ARTICLE 2, "MEDICALLY INDIGENT ASSISTANCE ACT", AND ARTICLE 3, "CHILD DEVELOPMENT SERVICES"; AND TO AMEND THE 1976 CODE BY ADDING ARTICLE 4 SO AS TO PROVIDE FOR PROCEDURES FOR INTERMEDIATE SANCTIONS FOR MEDICAID CERTIFIED NURSING HOMES.
Be it enacted by the General Assembly of the State of South Carolina:
General provisions
SECTION 1. Sections 44-6-5 to 44-6-130 of the 1976 Code are designated as Article 1, Chapter 6, Title 44 and is entitled, "General Provisions".
Medically Indigent Assistance Act
SECTION 2. Sections 44-6-132 to 44-6-220 of the 1976 Code are designated as Article 2, Chapter 6, Title 44 and is entitled, "Medically Indigent Assistance Act".
Child Development Services
SECTION 3. Sections 44-6-300 to 44-6-320 of the 1976 Code are designated as Article 3, Chapter 6, Title 44 and is entitled, "Child Development Services".
Intermediate Sanctions for Medicaid Certified Nursing Home Act
SECTION 4. Chapter 6, Title 44 of the 1976 Code is amended by adding:
Section 44-6-400. As used in this article:
(1) 'Department' means the Department of Health and Environmental Control.
(2) 'Nursing home' means a facility subject to licensure as a nursing home by the department under Article 2, Chapter 7 of Title 44 which has been certified for participation in the Medicaid program, or which has been dually certified for participation in the Medicaid and Medicare programs.
(3) 'Ombudsman' means the State Ombudsman established under Chapter 38 of Title 43.
(4) 'Resident' means a person who resides or resided in a nursing home during a period of an alleged violation.
(5) 'Commission' means the State Health and Human Services Finance Commission.
Section 44-6-410. The department shall notify the commission if it finds that a nursing home no longer meets a requirement for participation in the Medicaid program. The commission may take action authorized by this article against a nursing home it determines to be out of compliance with the requirements for participation in the Medicaid program. The action taken must be proportionate to the severity of the violation as set forth by regulations of the commission.
Section 44-6-420. When the commission is notified that a nursing home is in violation of one of the requirements for participation in the Medicaid program, the commission, based on the severity of the violation as set forth by regulation, may:
(1) deny payment under the Medicaid program;
(2) assess and collect monetary penalties set forth in Section 44-6-470;
(3) appoint temporary management in accordance with the provisions of this article.
The commission may promulgate regulations to assure prompt compliance with the requirements for participation in the Medicaid program and shall monitor a nursing home that repeats violations.
Section 44-6-430. If a nursing home violates one of the requirements for participation in the Medicaid program, and the violation immediately jeopardizes the health or safety of the patients, the commission may initiate an emergency action in a court of competent jurisdiction to appoint a receiver to correct the deficiencies and to temporarily manage the operations of the nursing home.
The court may immediately appoint a receiver when affidavits, testimony, or other evidence presented by the commission show that the conditions immediately jeopardize the health or safety of the patients to the extent that emergency measures must be invoked. A copy of the affidavits and order must be served on the nursing home owner or his agent for service of process, must be sent to the State Ombudsman, and must be posted in a conspicuous place inside the nursing home not later than twenty-four hours after issuance of the order. A full hearing must be held not later than twenty days after the issuance of the order unless the owner consents to a later date.
Section 44-6-440. (A) The commission may find that there is a need for temporary management of a nursing home due to a violation of one of the requirements for participation in the Medicaid program, but the violation does not immediately jeopardize the health or safety of the patients. In this event, the commission shall file a complaint with the circuit court in the county where the nursing home is located and request appointment of a receiver pending the closure of the nursing home or while improvements are being made to correct the deficiencies. The complaint must specify the violations that warrant the appointment of a receiver, including, but not limited to:
(1) facts showing that there exists in the nursing home one or more conditions in violation of the requirements for participation in the Medicaid program; and
(2) evidence that these facts have been brought to the attention of the owner and administrator of the nursing home and that these persons have been unwilling or unable to remedy the condition within a reasonable period of time or that there have been repeated violations despite previous assurances or actions to remedy the condition.
(B) The court shall hold a hearing not later than forty-five days after the date the complaint is filed. Notice of the hearing must be given to the State Ombudsman not less than five days before the hearing. Notice must be posted by the commission in a conspicuous place inside the nursing home for not less than five days before the hearing.
(C) Upon a full evidentiary hearing, the court may:
(1) appoint a receiver as authorized in this article;
(2) allow the nursing home to remove or remedy the conditions in accordance with Section 44-6-460;
(3) grant other relief as the court considers just and proper; or
(4) dismiss the complaint.
Section 44-6-450. Disposition of a complaint filed pursuant to Section 44-6-440 has precedence over every other business of the court except the court may give priority to other pending proceedings with similar statutory precedence.
Section 44-6-460. The owner or administrator of the nursing home may apply to the court for permission to correct the conditions specified in the complaint. If he demonstrates the ability to undertake promptly and completely the actions required, then the court, instead of appointing a receiver, may issue an order permitting him to take corrective action in accordance with a time schedule and subject to conditions. A bond must be posted in an amount set by the court as security for the performance of the corrective action.
If it appears that the nursing home owner or administrator is not complying with the order, the commission may petition the court for a hearing to determine whether an order appointing a receiver should be issued immediately. Notice must be given to the parties to the proceeding.
If, after a hearing, the court determines that the order is not being complied with, the court shall issue a final order appointing a receiver as authorized in this article. If the person has posted a bond to secure completion of actions ordered by the court, that bond may be forfeited and used by the receiver to complete corrective actions.
Section 44-6-470. A nursing home found to be in violation of one of the requirements for participation in the Medicaid program may be fined up to twenty-five hundred dollars a day by the commission. A nursing home that repeats violations may be fined up to five thousand dollars a day. All fines are assessed and collected with interest from the date of notification of the deficiencies until the date they are corrected. The amount of the fines must be proportionate to the severity of the violation as set forth by regulation of the commission.
Funds collected by the commission as a result of the imposition of the fines must be used to protect the health and property of the patients in the affected nursing home, including the relocation of patients to other nursing homes. A receiver appointed by the court to temporarily manage an affected nursing home, may use the funds for the cost of relocating patients to other nursing homes, if necessary, and for maintenance of operation of the nursing home pending correction of the deficiencies. He may also reimburse patients for personal funds that may have been lost as a result of the violations.
Section 44-6-480. The court may appoint as a receiver a nursing home administrator licensed pursuant to Chapter 35 of Title 40 or other responsible person or persons. No owner, licensee, administrator, or employee of the affected nursing home may be appointed as receiver. Under no circumstances may a state agency or an employee of a state agency be appointed as a receiver for more than sixty days.
The receiver, in his discretion, may either assume the role of administrator if so qualified and take control of all day-to-day operations, or direct the administrator regarding actions and procedures to be taken to correct the conditions specified in the complaint.
The receiver has the following power pursuant to court order to:
(1) hire a consultant or undertake any studies of the nursing home he considers appropriate;
(2) make repairs, improvements, or expenditures to eliminate the conditions specified in the complaint and direct the method or procedures by which this is accomplished;
(3) hire or discharge an employee including the administrator;
(4) receive or expend in a reasonable and prudent manner the revenues of the nursing home due on or after the date of the entry of the order;
(5) continue the business of the nursing home and the care of the residents;
(6) do acts necessary or appropriate to conserve the property and promote the health, safety, and care of the residents;
(7) exercise other powers he considers necessary or appropriate to implement the court order; and
(8) administer the assets of the nursing home in a manner to maximize the benefits of adequate care to the residents and to correct the violations identified by the department and ordered by the court.
The receiver is liable only in his official capacity for injury to persons and property by reason of the conditions of the nursing home in any case where an owner would have been liable. He is not personally liable, except for acts or omissions constituting gross, wilful, or wanton negligence.
Section 44-6-490. Within forty-five days from the date of appointment of a receiver, the court shall hold a hearing to receive and review a report of action taken by the receiver including an accounting that itemizes the revenues and expenditures. The report must be filed by the receiver within ten days of the hearing, and is open to inspection by all parties to the case. The court may request a presentation or settlement of the accounts by the receiver, the owner, or the licensee. Notice of the hearing must be served on the owner, licensee, and any party of record who appeared in the proceeding and any party with an interest in the revenues and expenditures or other actions taken by the receiver.
Section 44-6-500. The commission, receiver, owner, or licensee may make a motion to terminate the receivership on grounds that the conditions complained of have been eliminated or remedied and that the nursing home has the management capability to ensure continued compliance with the requirements for participation in the Medicaid program. The court, following an inspection by the department, may review the commission's findings and terminate the receivership subject to terms it determines necessary or appropriate to prevent any condition in the complaint from recurring.
Section 44-6-510. From the revenues of the nursing home, the court shall set a reasonable amount of compensation for the services of a receiver appointed under the provisions of this article. The cost of receivership must be paid by the nursing home and recognized as an allowable cost by the Medicaid program. The receiver appointed may be required to furnish a bond, the amount and form of which must be approved by the court and paid by the nursing home.
Section 44-6-520. No provision of this article limits the right of an owner to sell, lease, or mortgage any nursing home subject to receivership under this article upon the owner's presenting satisfactory evidence to the court that:
(1) compliance with the applicable requirements of the commission has been achieved; or
(2) the purchaser, lessee, or mortgagor has assumed the responsibility for achieving such compliance and has filed an acceptable plan of correction with the commission. Upon sale of the nursing home, the receivership must be terminated.
Section 44-6-530. Before instituting an action under this article, the commission shall determine if the Secretary of the United States Department of Health and Human Services has jurisdiction under federal law. In such cases, the commission shall coordinate its efforts with the secretary to maintain an action against the nursing home. In an action against a nursing home owned and operated by the State of South Carolina, the secretary has exclusive jurisdiction.
Section 44-6-540. The commission is authorized to promulgate regulations, pursuant to the Administrative Procedures Act, to administer this article."
Time effective
SECTION 5. This act takes effect upon approval by the Governor.
Approved the 7th day of May, 1990.