Current StatusView additional legislative information at the LPITS web site.Bill Number: 3800 Ratification Number: 746 Act Number 605 Introducing Body: House Subject: Licensing and regulation of nursing home administrators and community residential care
(A605, R746, H3800)
AN ACT TO AMEND CHAPTER 35, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE REGULATION AND LICENSING OF NURSING HOME ADMINISTRATORS; AND TO AMEND THE 1976 CODE BY ADDING SECTIONS 40-35-131 THROUGH 40-35-136 SO AS TO FURTHER PROVIDE FOR THE REGULATION AND LICENSING OF NURSING HOME ADMINISTRATORS AND FOR THE REGULATION AND LICENSING OF COMMUNITY RESIDENTIAL CARE FACILITY ADMINISTRATORS, INCLUDING PROVISIONS TO RENAME AND RECONSTITUTE THE MEMBERSHIP OF THE STATE BOARD OF EXAMINERS FOR NURSING HOME ADMINISTRATORS.
Be it enacted by the General Assembly of the State of South Carolina:
Licensing and regulation of nursing home administrators and community residential care facility administrators
SECTION 1. Chapter 35, Title 40, of the 1976 Code is amended to read:
Section 40-35-10. For the purposes of this chapter:
(1) `Board' means the State Board of Examiners for Nursing Home Administrators and Community Residential Care Facility Administrators.
(2) `Nursing home administrator' means a person who has attained the requisite education and experience, is otherwise qualified, and has been issued a license by the board and is thereby eligible to administer, manage, supervise, or be in administrative charge of a nursing home.
(3) `Nursing home' means any institution or facility defined for licensing purposes under law or pursuant to regulations for nursing homes promulgated by the Department of Health and Environmental Control, whether proprietary or nonprofit including, but not limited to, nursing homes owned or administered by the State or political subdivisions thereof. The definition does not include habilitation centers for the mentally retarded or persons with related conditions.
(4) `Habilitation center for the mentally retarded or persons with related conditions' means a facility which is licensed by the Department of Health and Environmental Control that serves four or more mentally retarded persons or persons with related conditions and provides health or rehabilitative services on a regular basis to individuals whose mental and physical conditions require services including room, board, and active treatment for their mental retardation or related conditions.
(5) `Qualified mental retardation professional' means a person who, by training and experience, meets the requirements of applicable federal law and regulations for a qualified mental retardation professional, as determined by the South Carolina Department of Mental Retardation.
(6) `Community residential care facility administrator' means a person who has attained the required education and experience, is otherwise qualified, has been issued a license by the board, and is eligible to administer, manage, supervise, or be in administrative charge of a community residential care facility.
(7) `Community residential care facility' means a facility defined according to Section 44-7-130 and which is licensed by the Department of Health and Environmental Control, whether proprietary or nonprofit.
(8) `Consumer' means a person who is or has been a resident of a nursing home or community residential care facility.
(9) `Sponsor' means a person who is financially or legally responsible for an individual currently residing in a nursing home or residential care facility.
Section 40-35-20. There is created the State Board of Examiners for Nursing Home Administrators and Community Residential Care Facility Administrators composed of nine members who must be appointed by the Governor, with the advice and consent of the Senate, for three-year terms and until their successors are appointed and qualify. Three must be qualified nursing home administrators duly licensed under this chapter, at least one of whom must be from a nonproprietary nursing home and one must be a qualified hospital administrator; three must be community residential care facility administrators, who after July 1, 1992, must be licensed under this chapter, at least one of whom must be from a community residential care facility with ten or fewer residents; one must be a consumer, sponsor, or family member of a consumer of nursing home services; one must be a consumer, sponsor, or family member of a consumer of community residential care services; and one must be a voting member of the Long Term Care Council. The Long Term Care Council shall elect from among its voting members a nominee to be recommended to the Governor. If the Governor does not accept the nomination, an additional nominee must be selected in the same manner. The Commissioner of the Department of Health and Environmental Control, or his designee, shall serve as an ex officio nonvoting member of the board. An individual, group, or association may nominate qualified individuals and submit them to the Governor for his consideration in making these appointments. In case of a vacancy the Governor shall appoint, with the advice and consent of the Senate, a successor to serve for the unexpired term. No appointive member shall serve more than two consecutive full terms. The board shall meet at least twice a year.
Section 40-35-30. (A) The board may issue licenses to qualified persons as nursing home administrators and as community residential care facility administrators, including a joint license for a person who is an administrator of both a nursing home and a community residential care facility, and shall establish qualification criteria. No license may be issued to any person unless he submits evidence satisfactory to the board as required in subsection (B) or (C) below.
(B) A nursing home administrator must:
(1) be at least twenty-one years of age;
(2) be of reputable and responsible character;
(3) be of sound physical and mental health;
(4) have the following education and experience:
(a) a baccalaureate degree in nursing home administration or related health care administration from an accredited college or university and one year of practical experience in nursing home administration or related health care administration;
(b) a baccalaureate degree other than in health care administration from an accredited college or university and two years of practical experience in nursing home administration or related health care administration; or
(c) a combination of education and experience acceptable under regulations promulgated by the board; and
(5) successfully completed the nursing home administrators examination administered by the board and paid the established fees.
(C) A community residential care facility administrator must:
(1) be at least twenty-one years of age;
(2) be of reputable and responsible character;
(3) be of sound physical and mental health;
(4) have at least twelve months experience working in a community residential care facility before applying for licensure;
(5) after January 1, 1993, all applicants, excluding those for renewal, be required to have a high school diploma or the equivalent; and
(6) successfully complete the community residential care facility administrators examination administered by the board and pay the established fees.
(D) Each applicant for a nursing home administrator or community residential care facility administrator license shall request the State Law Enforcement Division to conduct a criminal records check and to furnish the results to the board before initial licensing. This action is required of each owner and administrator of a proprietorship or partnership. In the case of a corporation, this action is required of each owner of five percent or more of each class of outstanding stock, and the chairman of the board and president. Where licensees are governmental agencies, the criminal records check must be obtained on the individual who is the administrator of the governmental facility. The board may deny an application for licensure where the results of the check meet the misconduct provisions of Section 40-35-130(11).
Section 40-35-32. No nursing home or community residential care facility within the State may operate except under the supervision of an administrator licensed in accordance with this chapter.
Section 40-35-40. (A) A nursing home administrator's or community residential care facility administrator's license is not transferable.
(B) Licenses are renewable annually upon such dates as established by the board, upon completion of an application for renewal, payment of the established fee, and proof of requisite continuing education pursuant to board regulations.
(C) If the license is not renewed pursuant to this provision, the license lapses on the expiration date.
(D) A nursing home administrator or community residential care facility administrator previously licensed in this State whose license has lapsed for failure to renew on or before the expiration date of his license may seek reinstatement of the license within two years of the expiration date by submitting an application with the renewal fee, payment of a penalty as provided in the fee schedule of the board regulations, and proof of requisite continuing education.
(E) If the license has lapsed for more than two years, the individual shall meet the requirements of Section 40-35-30 to become relicensed.
(F) The board must be satisfied that an applicant remains qualified for licensure before renewal of a current license or reinstatement of a lapsed license.
Section 40-35-50. The board shall promulgate a fee schedule for the purpose of carrying out the provisions of this chapter.
Section 40-35-60. All fees collected by the board, with the exception of fines and costs collected pursuant to Section 40-35-134, must be deposited with the State Treasurer to the credit of the general fund.
Section 40-35-70. The board shall elect from its membership a chairman, vice chairman, and secretary-treasurer and shall adopt regulations to govern its proceedings. The members of the board must be compensated for their services at the regular per diem rate established by law for other state boards, committees, and commissions and may be reimbursed for actual and necessary expenses incurred in connection with and as a result of their work as members of the board. The board may employ and establish the duties of necessary personnel to assist it in the performance of its duties.
Section 40-35-80. The board has authority to determine the qualifications, skill, and fitness of any applicant for a license under the provisions of this chapter, and the holder of a license under the provisions of this chapter is deemed qualified to serve as the administrator of a nursing home or the administrator of the community residential care facility.
Section 40-35-90. The board has the following powers and duties:
(a) To develop, impose, and enforce standards which must be met by individuals in order to receive a license as a nursing home administrator or community residential care facility administrator, which standards must be designed to insure that nursing home administrators and community residential care facility administrators are individuals of good character, suitable, and qualified to serve as nursing home administrators or community residential care facility administrators.
(b) To develop, and apply appropriate techniques, including examination and investigation, for determining whether an individual meets such standards.
(c) To license and renew the licenses of qualified individuals.
(d) To evaluate and approve necessary programs of training and instruction to enable all licensees to receive continuing education annually which is a requirement of relicensure.
(e) To evaluate and investigate complaints, conduct hearings and proceedings, and discipline licensees for violations of this chapter or board regulations.
(f) To evaluate complaint and investigative information received from the Department of Health and Environmental Control, the long term care ombudsman of the Governor's office, the Department of Social Services, the peer review of the South Carolina Health Care Association or any other source, with a view to the improvement of the standards imposed for licensing, for decisions on revocation or suspension of licenses, or for other disciplinary actions, and for assessing the qualifications for relicensure of nursing home administrators and community residential care facility administrators.
(g) To promulgate, amend, repeal, and enforce regulations consistent with law as it considers necessary for the proper administration and enforcement of this chapter.
Section 40-35-100. The board may issue a nursing home administrator's license or community residential care facility administrator's license to any person who holds a current license as a nursing home administrator or community residential care facility administrator from another jurisdiction if it finds that the standards for licensure in such other jurisdiction are at least the substantial equivalent of those prevailing in this State, and if the applicant has passed the South Carolina portion of the licensure examination and is otherwise qualified.
Section 40-35-110. It is unlawful and constitutes a misdemeanor for any person to act or serve in the capacity of a nursing home administrator or residential care facility administrator unless he is the holder of a license issued in accordance with the provisions of this chapter. Any person convicted of violating this section is subject to a fine not to exceed one thousand dollars or imprisonment not to exceed ninety days.
Section 40-35-130. Misconduct, which constitutes grounds for revocation, suspension, or other restriction of a license or a limitation or other discipline of a licensee, is a satisfactory showing to the board of any of the following:
(1) violating any provision of this chapter or the regulations of the board;
(2) acting in a manner inconsistent with the health or safety of the patients of the nursing home or community residential care facility;
(3) acting in a fraudulent or deceitful manner in the practice of nursing home administration or community residential care facility administration or in his admission, or the admission of any other person, to the practice;
(4) failing to ensure that the nursing home or community residential care facility in which he is an administrator complies with the provisions of law and regulations of the licensing or supervising authority or agency, whether federal, state, or local, having jurisdiction over the operation and licensing of the nursing home or community residential care facility;
(5) using alcohol, drugs, or controlled substances to such a degree as to adversely affect his ability to act as a nursing home administrator or community residential care facility administrator;
(6) failing to operate a nursing home or community residential care facility in a manner which ensures the safety, health, and welfare of the patients;
(7) continuing to operate a nursing home or community residential care facility after sustaining a physical or mental impairment or disability which renders further practice by him dangerous to the public;
(8) supervising or aiding an unlicensed person in the practice of nursing home administration or community residential care facility administration;
(9) permitting unauthorized disclosure of information relating to a patient in a nursing home or community residential care facility under his administration;
(10) disciplinary action by the authorities of another state with respect to the nursing home administrator or community residential care facility administrator license issued by that state;
(11) conviction of, or pleading guilty or nolo contendere to, a felony, as defined under the law of this State, or any crime involving the safety, health, or welfare of a resident of a nursing home or community residential care facility, or any other crime involving moral turpitude. The license of a person who is convicted of, or who pleads guilty or nolo contendere to, those crimes mentioned in this item immediately may be suspended temporarily pending final disposition of a disciplinary proceeding to be commenced upon the conviction or the entry of the plea of guilty or nolo contendere. A person so suspended must be reinstated immediately upon the filing of a certificate that the conviction has been reversed. The reinstatement does not terminate a disciplinary action pending against the person. The license of a person may be suspended immediately pending final disposition of a disciplinary proceeding where the board has probable cause to believe that continued practice as a nursing home administrator or community residential care facility administrator by the licensee constitutes harm to the safety, health, or welfare of patients in a nursing home or community residential care facility.
Section 40-35-140. Habilitation centers for the mentally retarded or persons with related conditions funded in whole or in part by the Department of Mental Retardation must be under the supervision of a licensed nursing home administrator or a qualified mental retardation professional who has been determined by the department to have the requisite training and experience."
Complaints, investigations, and disciplinary actions
SECTION 2. The 1976 Code is amended by adding:
"Section 40-35-131. (A) A person or public officer, including a board member, or an agency or association may file a complaint with the board against a licensee. The board has jurisdiction to hear all charges brought against persons licensed as nursing home or community residential care facility administrators, including licensees holding emergency licenses.
(B) When a complaint is received by the board, a committee of the board will conduct an initial review and an investigation, if the board determines that an investigation is necessary, and shall recommend to the board whether formal charges should be brought against the administrator. No nursing home administrators nor consumer, sponsor or family member of a consumer of nursing home services, may participate on the committee conducting these matters concerning a complaint against a community residential care facility administrator. No community residential care facility administrator nor consumer, sponsor or family member of the consumer of community residential care services, may participate on the committee conducting these matters concerning a complaint against a nursing home administrator.
(C) After initial review of a complaint and recommendations from the committee are presented to the board, the board may determine that an investigation is necessary or dismiss the complaint without investigation. If an investigation is undertaken by the committee, the committee may conduct an investigatory conference to determine whether to recommend to the board that a formal charge is warranted.
(D) After completion of the investigation and consideration of the committee's recommendation, the board may bring formal charges against the licensee or dismiss the initial complaint.
(E) Nothing in this section precludes duly authorized members of the board from meeting informally with the licensee to dispose of the initial complaint with a consent order.
(F) A licensee who is under investigation for any of the items of misconduct may voluntarily surrender his license to the board. The voluntary surrender invalidates the license at the time of its relinquishment, and no person whose license is surrendered voluntarily may practice as a nursing home or community residential care facility administrator until the board takes action. A person practicing as a nursing home administrator or community residential care facility administrator during the period of voluntary license surrender is considered an illegal practitioner and is subject to the penalties provided by this chapter. The surrender of a license, as provided by this subsection, may not be considered as an admission of guilt in a proceeding under this chapter. The surrender does not preclude the board from imposing conditions on the acceptance of the proferred surrender, which the licensee shall meet before the return of his license, nor does the surrender preclude the board from taking disciplinary action under this section.
Section 40-35-132. (A) In the event the board determines that formal charges must be brought against the licensee, the board may hear the charges or may, in its discretion, appoint a hearing officer or officers to hear the charges.
(B) The board or the appointed hearing officer or officers shall set the time and place for a hearing and have the authority to issue subpoenas, administer oaths, and take testimony.
(C) The licensee has the right to appear at the hearing with or without counsel, to present evidence, to cross-examine witnesses, and to have subpoenas issued in his behalf.
(D) Whenever a disciplinary hearing is held before a hearing officer or officers, the hearing officer or officers shall make written findings of fact, conclusions, and recommendations to the board. The board, through its executive director or attorney, shall notify the licensee or his counsel, if any, of the time and place at which the board will consider the recommendations of the hearing officer or officers for the purpose of determining its action thereon. The licensee or his counsel must be informed of the right to submit briefs and be heard in oral argument in opposition to or in support of the recommendations of the hearing officer or officers.
(E) After the case has been heard, the board may, in its discretion, hold the matter under advisement and prescribe requirements to be met by the licensee in order to avoid disciplinary sanctions. In that event, the board shall issue, within a reasonable period of time and in no case longer than thirty days after the case is heard, a written order setting forth the requirements, including the time frame within which compliance must be achieved. If the licensee makes a satisfactory showing to the board of compliance with the order, the board may enter an order finding satisfactory compliance and may dismiss the case.
Section 40-35-133. Upon a determination by the board that one or more of the grounds for revocation or suspension of a license or for otherwise disciplining a licensee exist in accordance with the provisions of Section 40-35-130, the board may take any one or more of the following actions regarding the license or the licensee:
(1) issue a public or private reprimand;
(2) impose costs, not to exceed the actual costs of the board in processing the disciplinary action against the licensee, including, but not limited to, amounts expended for board members' attendance at hearings, service of papers, witness fees and expenses, and court reporter;
(3) impose a fine not to exceed two thousand dollars for each ground of revocation, suspension, or other discipline, with the total amount imposed not to exceed ten thousand dollars;
(4) place the licensee on probation for a definite or indefinite time and prescribe conditions to be met during probation;
(5) suspend the license for a definite or indefinite time, and prescribe conditions to be met before readmission to practice;
(6) permanently revoke the license.
Section 40-35-134. (A) All costs and fines imposed under Section 40-35-133(2) and (3) are due and payable immediately upon imposition. Interest at the legal rate accrues on the amount due from the date imposed until the date it is paid.
(B) The board shall remit all amounts received by way of costs and fines and by way of interest to the State Treasurer to be deposited in a special fund from which the board must be reimbursed for the administrative costs of each disciplinary proceeding upon the approval of the Budget and Control Board. At any time the special fund exceeds twenty thousand dollars, all funds in excess of twenty thousand dollars must be remitted to the state's general fund.
Section 40-35-135. Every communication, whether oral or written, made by or on behalf of a person, to the board or a person designated by it to investigate or hear matters relating to the revocation, suspension, or other restriction of a license or the limitation on or other discipline of a licensee, whether by way of complaint or testimony, is privileged, and no action or proceeding, civil or criminal, shall lie against the person, by or on whose behalf the communication is made, except upon proof that the communication was made with malice.
No part of this article may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor as prohibiting the respondent from normal access to the charges and evidence filed against him as part of due process under the law.
Section 40-35-136. No person connected with any complaint, investigation, or other proceeding before the board, including, but not limited to, a witness, counsel, counsel's secretary, board member, board employee, court reporter, or investigator, may mention the existence of, disclose information pertaining to, or discuss any testimony or other evidence in the complaint, investigation, or other proceeding, except to persons involved and having a direct interest in such, and then only to the extent necessary for the proper disposition thereof. Whenever the board receives information in a complaint, investigation, or other proceeding before it indicating a violation of state or federal law, the board may provide that information, to the extent the board considers necessary, to the appropriate state or federal law enforcement agency or regulatory board."
Transition provisions
SECTION 3. Those nursing home administrators serving on the Nursing Home Administrators Board immediately prior to the effective date of this act may be appointed to serve on the board created by this act. The initial terms of members of the board created by this act are as follows: one nursing home administrator and one community residential care facility administrator for a one-year term; one nursing home administrator and one community residential care facility administrator for a two-year term; one nursing home administrator and one community residential care facility administrator for a three-year term; one consumer or sponsor or family member of a consumer of nursing home services for a one-year term; one consumer or sponsor or family member of a consumer of residential care services for a two-year term; and the member from the Long Term Care Council for a three-year term.
For one year following the effective date of this act, the following members of the Nursing Home Administrators Board immediately prior to the effective date of this act will serve as nonvoting ex officio members of the Board of Examiners for Nursing Home Administrators and Community Residential Care Facility Administrators: the medical doctor or nurse educator, the Commissioner of the Department of Social Services or his designee, and the Director of the Commission on Aging or his designee.
Until regulations are promulgated pursuant to this act, but no later than July 1, 1992, nursing home administrators must continue to meet the licensing standards and requirements in the manner provided by law and regulation existing on the effective date of this act and community residential care facility administrators must not be licensed or subject to the provisions of this act.
Time effective
SECTION 4. This act takes effect six months after approval by the Governor.
Approved the 25th day of June, 1990.