Rule 350-3-.05 - Temporary ManagementThe Department shall impose the remedy of temporary management in situations where it finds that there is a need to oversee operation of the facility and to assure the health and safety of the facility's residents while there is an orderly closure of the facility or while improvements are made in order to bring the facility into compliance with all Program Requirements. Temporary management shall not be imposed unless other less intrusive remedies will not result in compliance, have failed to cause the facility to achieve compliance, or the Department has found that the facility's deficiency or deficiencies immediately jeopardize the health or safety of its residents.
(a) Recommendation for appointment of temporary management. Within ten (10) business days of its completion of a survey or complaint investigation, the State Survey Agency shall deliver to the Department its written recommendation for appointment of temporary management it, in the Agency's judgment, such appointment is necessary. The recommendation shall specify the grounds upon which it is based, including an assessment of the capability of the facility's current management to achieve and maintain compliance with all Program Requirements.(b) The decision to appoint temporary management shall be made by a person, appointed by the Commissioner, who is not the surveyor or complaint investigator who discovered the deficiencies or made the recommendation for appointment.(c) The Department shall give written notice to the facility of its appointment of temporary management within ten (10) business days of its receipt of a recommendation for appointment from the State Survey Agency, unless the Department determines that temporary management is not necessary. When the Department has determined that the facility's deficiency or deficiencies immediately jeopardize the health or safety of its residents, no Administrative Review shall be available and the provisions of Subsection .09(2) shall apply.(d) Who may serve. The Commissioner may appoint any person or organization which meets the following qualifications:1. The temporary manager shall not have any pecuniary interest in or pre-existing fiduciary duty to the facility to be managed.2. The manager must not be related, within the first degree of kinship, to the facility's owner, manager, administrator, or other management principal.3. The manager must possess sufficient training, expertise, and experience in the operation of a nursing facility as would be necessary to achieve the objectives of temporary management. The manager must possess a Georgia nursing home administrator's license.4. The manager must not be an existing competitor of the facility who would gain an unfair competitive advantage by being appointed as temporary manager of the facility.(e) Powers and duties of the temporary manager.1. The temporary manager shall have the authority to direct and oversee the correction of Program Requirement deficiencies; to oversee and direct the management, hiring, and discharge of any consultant or employee, including the administrator of facility; to direct the expenditure of the revenues of the facility in a reasonable, prudent manner; to oversee the continuation of the business and the care of the residents; to oversee and direct those acts necessary to accomplish the goals of the Program Requirements; and to direct and oversee regular accountings and the making of periodic reports to the Department. The temporary manager shall provide reports to the Department no less frequently than monthly showing the facility's compliance status. Should the facility fail or refuse to carry out the directions of the temporary manager, the Department shall terminate the facility's participation and may, at its discretion, impose any other remedies described in Section .02.2. The temporary manager shall observe the confidentiality of the operating policies, procedures, employment practices, financial information, and all similar business information of the facility, except that the temporary manager shall make reports to the Department as provided in this section.3. The temporary manager shall be liable for gross, willful or wanton negligence, intentional acts or omissions, unexplained shortfalls in the facility's funds, and breaches of fiduciary duty. The temporary manager shall be bonded in an amount equal to the facility's revenues for the month preceding the appointment of the temporary manager.4. The temporary manager shall not have authority to do the following:(i) To cause or direct the facility or its owner to incur debt or to enter into any contract with a duration beyond the term of the temporary management of the facility;(ii) To cause or direct the facility to encumber its assets or receivables, or the premises on which it is located, with any lien or other encumbrance;(iii) To cause or direct the sale of the facility, its assets, or the premises on which it is located;(iv) To cause or direct the facility to cancel or reduce its liability or casualty insurance coverage;(v) To cause or direct the facility to default upon any valid obligations previously undertaken by the owners or operators of the facility, including, but not limited to, leases, mortgages and security interests; and(vi) To incur capital expenditures in excess of $2,000.00 without the permission of the owner or the Commissioner.(f) Costs. All compensation and per diem costs of the temporary manager shall be paid by the nursing facility. The Department shall bill the facility for the costs of the temporary manager after termination of temporary management. The costs of the temporary manager for any thirty (30) day period shall not exceed one-sixth of the maximum allowable administrator's annual salary for the largest nursing facility for Medicaid reimbursement purposes. Within fifteen (15) days of receipt of the bill, the facility shall pay the bill or request Administrative Review to contest the costs for which it was billed. Such costs shall be recoverable through recoupment from future medical assistance payments in the same fashion as a benefits overpayment. The costs of temporary management and the attorneys' fees associated with contesting such costs are not reimbursable Medicaid expenses except in the case where a facility prevails in a hearing, in which case reasonable attorneys' fees and costs shall be allowable.(g) Termination of temporary management. The Commissioner may replace any temporary manager whose performance is, in the Commissioner's discretion, deemed unsatisfactory. No formal procedure is required for such removal or replacement but written notice of any action shall be given the facility, including the name of any replacement manager. A facility subject to temporary management may petition the Commissioner for replacement of a temporary manager whose performance it considers unsatisfactory. The Commissioner shall respond to a petition for replacement within three (3) business days after receipt of said petition. Otherwise, the Department shall not terminate temporary management until it has determined that the facility has management capability to ensure continued compliance with all Program Requirements or until the Department terminates the nursing facility's participation. A facility may petition the Department for termination of temporary management. The Department shall respond to the petition within three (3) business days after receipt.(h) Nothing contained in this section shall limit the right of any nursing facility owner to sell, lease, mortgage, or close any facility in accord with all applicable laws.Ga. Comp. R. & Regs. R. 350-3-.05
Ga. L. 1977, p. 384, et seq.; O.C.G.A. Sec. 49-4-142(a).
Original Rule entitled "Adoption of Rules" was filed on April 11, 1978; effective May 1, 1978.Repealed: ER. 350-3-0.3-.05 adapted. 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 "Temporary Management" adopted. F. Oct. 4, 1989; eff. Nov. 1, 1989, as specified by the Agency.