Mich. Admin. Code R. 330.11007

Current through Vol. 24-24, January 15, 2025
Section R. 330.11007 - Remedies for deficiencies

Rule 11007

(1) Remedies that may be imposed by the state medicaid agency, based upon determinations and recommendations of the state survey agency or HCFA, are specified in these rules. The state medicaid agency may accept an action by the state survey agency, under state licensure authority, as a remedy imposed under these rules.
(2) Remedies shall be grouped into 3 categories. The categories take into consideration the scope and severity of the deficiency. When the scope and severity increase, the number of categories available from which to select remedies also increases.
(3) Federally authorized remedies that the state medicaid agency may impose are described in federal rules as stated in 42 C.F.R. §488.400 et seq. and as further discussed in section 7400 of the health care financing administration (HCFA) state operations manual for medicaid and medicare certified facilities. The federally authorized remedies include, but are not limited to, 1 or more of the following:
(a) A denial of payment for new admissions.
(b) State monitoring.
(c) A temporary manager.
(d) An administrative advisor or clinical advisor, or both.
(e) A directed plan of correction.
(f) Directed in-service training.
(g) Civil money penalties.
(h) Closure of a nursing facility or the transfer of residents, or both.
(i) Termination of a provider agreement.
(j) Denial of payment for all individuals. This remedy is imposed by HCFA.
(k) Public notice that is required under state licensure authority.
(5) The state medicaid agency may also accept 1 or more of the following enforcement actions by the state survey agency, under state licensure authority, as a remedy imposed under these rules:
(a) A correction notice or order requiring a temporary administrative or clinical advisor.
(b) An emergency order limiting, suspending, or revoking a license.
(c) A notice of intent to revoke licensure.
(d) A correction notice or order to ban admissions or readmissions, or both.
(e) A correction notice or order to transfer selected patients, reduce licensed capacity, or comply with specific requirements.
(f) A correction notice or order requiring a temporary manager.
(g) State patient rights penalties, if applicable.
(6) An administrative or clinical advisor who is allowed under federal enforcement as an additional remedy has been added to the enforcement tools available to the state medicaid agency. The responsibility of the administrative or clinical advisor is to monitor and mentor the facility administrative or clinical staff through the period of corrective action.
(7) The state medicaid agency shall consider whether a facility meets the federal definition of poor performer or has been subject to early review by the state survey agency under its state licensure authority and shall impose or accept 1 or more of the following remedies consistent with the following menus:
(a) Category 1:
(i) Directed plan of correction.
(ii) State monitoring.
(iii) Directed in-service training.
(b) Category 2:
(i) Denial of payment for new admissions.
(ii) Appointment of an administrative or clinical advisor.
(iii) Denial of payment for all medicaid residents imposed by HCFA.
(iv) Civil money penalties that can range from $50.00 up to a maximum of $3,000.00 per day in accordance with 42 C.F.R. §488.38.
(v) Any category 1 remedy, at the option of the state medicaid agency.
(c) Category 3:
(i) Appointment of a temporary manager.
(ii) Termination of the provider agreement.
(iii) Civil money penalties that can range from $3050.00 up to a maximum of $10,000.00 per day in accordance with 42 C.F.R. §488.38.
(iv) Any category 1 or 2 remedies, at the option of the state medicaid agency.
(8) Representation of how remedies and categories are grouped into menus is provided in table 1 of this part. Table 1 illustrates how facility history and the seriousness of the deficiency determines the type and level of remedies to be applied. The most serious deficiency determines the menu of remedies to be applied. Different remedies are applied for deficiencies that are classified by HCFA as "SQC." A plan of correction (PoC) is required for all levels of deficiency, except for a level A deficiency. Table 1 reads as follows:

Table 1

Historically compliant or needing early review with possible date certain Poor performer or needing early review with no date certain
L* PoC Menu 3 Menu 6
K* PoC Menu 3 Menu 6
J* PoC Menu 3 Menu 6
I PoC Menu 1 Menu 2 if SQC Menu 4 Menu 5 if SQC
H PoC Menu 1 Menu 2 if SQC Menu 4 Menu 5 if SQC
G PoC Menu 1 Menu 4
F PoC Menu 1 Menu 2 if SQC Menu 4 Menu 5 if SQC
E PoC Menu 1 Menu 4
D PoC Menu1 Menu 4
C PoC Only PoC required Only PoC required
B PoC Only PoC required Only PoC required

A No remedies, no PoC required No remedies, no PoC required

* Indicates immediate jeopardy Validation of removal of immediate jeopardy counts as a revisit.

If more than 1 menu is indicated by survey findings, then the highest appropriate menu shall be applied.

Menu 6

Immediate jeopardy

Historical classification: poor performer or needing early review with no date certain. Scope and severity classification: J, K, or L. Survey type *: any. Plan of correction: required.

Federally authorized enforcement remedies

Category 3 (required):

1. A civil money penalty of $3,050.00 to $10,000.00 per day and
2. 23-day termination of provider agreement.
3. Temporary manager.

Category 2 (optional):

4. Denial of payment for new admissions.
5. Temporary administrative or clinical advisor or both.

Category 1 (optional):

6. Directed plan of correction.
7. Directed in-service training.
8. State monitoring.State survey agency enforcement actions (1 or more may be accepted)
9. Emergency order limiting, suspending, or revoking licensure.
10. Notice of intent to revoke license.
11. Correction notice or order to ban admissions or readmissions, or both.
12. Correction notice or order to transfer selected patients, reduce licensed capacity, or comply with specific requirements.
13. Correction notice or order requiring temporary manager or requiring clinical or administrative advisor or both.
14. State patient rights penalties, if applicable.

Menu 5

Substandard quality of care (SQC), but not immediate jeopardy Historical classification: poor performer or needing early review with no date certain. Scope and severity classification: H, I, or F.

Survey type *: any.

Plan of correction: required.

Federally authorized enforcement remedies

Category 2 (required):

14. Denial of payment for new admissions.
15. A civil money penalty of $50.00 to $3,000.00 per day.
16. Temporary administrative advisor or clinical advisor, or both.

Category 1 (optional):

17. Directed plan of correction.
18. Directed in-service training.
19. State monitoring.

State survey agency enforcement actions (1 or more may be accepted)

20. Notice of intent to revoke licensure.
21. Correction notice or order to ban admissions or readmissions or both.
22. Correction notice or order to transfer selected patients, reduce licensed capacity, or comply with specific requirements.
23. Correction notice or order requiring appointment of a temporary manager.
24. Correction notice or order requiring appointment of a temporary clinical advisor or administrative advisor, or both.
25. State patient rights penalties, if applicable.

If the SQC is not resolved by the first or subsequent revisit:

26. Denial of payment for new admissions (required federal remedy if noncompliance is on the ninetieth day).
27. Request the state survey agency to initiate receivership sale.
28. Additional enforcement action from menu 5.
29. Increase of civil money penalty within the specified range of $50.00 to $3000.00 per day.

Menu 4

Facility not in substantial compliance

Historical classification: poor performer or needing early review with no date certain. Scope and severity classification: D, E, F, or G.

Survey type: standard or abbreviated.

Plan of correction: required.

Federally authorized enforcement remedies

Category 2 (required for classification F and G; optional for classification D and E):

30. Denial of payment for new admissions.
31. Administrative advisor or clinical advisor, or both.

Category 2 (optional)

32. A daily civil money penalty of $50.00 to $3,000.00.

Category 1 (optional for classification F and G; required for classification D and E):

33. Directed plan of correction.
34. Directed in-service training.
35. State monitoring.

State survey agency enforcement actions (1 or more may be accepted)

36. Correction notice or order to ban admissions or readmissions, or both.
37. Correction notice or order to transfer selected patients, reduce licensed capacity, or comply with specific requirements.
38. Correction notice or order requiring appointment of a temporary manager.
39. Correction notice or order requiring appointment of a temporary administrative advisor or clinical advisor, or both.
40. State patient rights penalties, if applicable.

If substantial compliance is not achieved at the first or subsequent revisit:

41. Notice of intent to revoke license.
42. Denial of payment for new admissions (required federal remedy if noncompliance continues at the ninetieth day).
43. Additional enforcement action from menu 4.
44. Civil money penalty adjustment may occur if scope and severity change.

If substantial compliance is not achieved by the one hundred and eightieth day:

45. Termination, as required by federal law.
46. Request the state survey agency to initiate receivership sale.

Notes:

If a facility has met the federal definition of "poor performer, immediate imposition of remedies will occur during the current cycle using menu 4, 5, or 6 as appropriate to the level of noncompliance.

Denial of payment for new admissions and state monitoring will be imposed if a facility has been found to have provided substandard quality of care on 3 consecutive standard surveys.

Notice of termination for failure to achieve substantial compliance within 180 days is always included with notification of alternate remedies.

If more than 1 menu is indicated by the survey findings, then the highest appropriate menu will be applied.

Federal law, as specified in the social security act at sections 1819(f)(2)(B) and 1919(f)(2)(B), prohibits approval of nurse aide training and competency evaluation programs and nurse aide competency evaluation programs offered by, or in, a facility that, within the previous 2 years, has operated under a section 1819(b)(4)(C)(ii)(II) or section 1919(b)(4)(C)(ii) waiver; has been subject to an extended or partial extended survey as a result of a finding of substandard quality of care; has been assessed a total civil money penalty of not less than $5,000.00; has been subject to a denial of payment, the appointment of a temporary manager, or termination; or, in the case of an emergency, has been closed or had its residents transferred to other facilities, or both. Exceptions, as specified in Public Law 105-15, "Permitting Waiver of Prohibition of Offering Nurse Aide Training and Competency Evaluation Programs in Certain Facilities," will apply.

*"Any survey" means an annual standard survey, abbreviated survey, or revisit survey. A standard survey includes both the health survey and life safety code survey findings.

Menu 3

If immediate jeopardy is found at any survey

Historical classification: historically compliant or needing early review with possible date certain.

Scope and severity classification: J, K, or L.

Survey type *: any.

Plan of correction: required.

Federally authorized enforcement remedies

Category 3 (required):

47. 23-day termination of provider agreement.
48. Temporary manager.

Category 3 (optional):

49. A civil money penalty of $3050.00 to $10,000.00 per day.

Category 2 (optional):

50. Denial of payment for new admissions.
51. Administrative advisor or clinical advisor, or both.

Category 1 (optional):

52. Directed plan of correction.
53. Directed in-service training.
54. State monitoring.

State survey agency enforcement actions (1 or more may be accepted)

55. Emergency order limiting, suspending, or revoking a license.
56. Correction notice or order to ban admissions or readmissions, or both.
57. Correction notice or order to transfer selected patients, reduce licensed capacity, or comply with specific requirements.
58. Correction notice or order requiring appointment of a temporary manager.
59. Correction notice or order requiring appointment of a temporary administrative advisor or clinical advisor, or both.
60. State patient rights penalties, if applicable.

If the substandard quality of care remains at the first revisit or thereafter:

Federally authorized enforcement remedies

Category 2 (required):

61. Denial of payment for new admissions.
62. Administrative advisor or clinical advisor, or both.

Category 1 (optional):

63. Directed plan of correction.
64. Directed in-service training.
65. State monitoring.

Other:

66. Denial of payment for new admissions (required federal remedy for noncompliance at the ninetieth day).

State survey agency enforcement actions (1 or more may be accepted)

67. Correction notice or order requiring appointment of a temporary manager.
68. Correction notice or order requiring appointment of a temporary administrative advisor or clinical advisor, or both.
69. Correction notice or order requiring ban on admissions or readmissions, or both.
70. Correction notice or order to transfer selected patients, reduce licensed capacity, or comply with specific requirements.
71. State patient rights penalties, if applicable.
72. Notice of intent to revoke license.

If a facility is not in substantial compliance at the first revisit or thereafter:

Federally authorized enforcement remedies

Category 2 (required for F and G levels; optional for D and E levels):

73. Denial of payment for new admissions.
74. Administrative advisor or clinical advisor, or both.

Category 1 (optional):

75. Directed plan of correction.
76. Directed in-service training.
77. State monitoring.

Other:

78. Denial of payment for new admissions (required federal remedy for noncompliance at the ninetieth day).

State survey agency enforcement actions (1 or more may be accepted)

79. Correction notice or order requiring appointment of a temporary manager.
80. Correction notice or order requiring appointment of a temporary administrative advisor or clinical advisor, or both.
81. State patient rights penalties, if applicable.
82. Other licensure enforcement actions appropriate to the specific case, which may include a correction order, a notice to discontinue admissions or readmissions, transfer selected patients, reduce licensed capacity, or comply with specific requirements

Menu 2

If substandard quality of care is found at any survey

Historical classification: historically compliant or needing early review with possible date certain.

Scope and severity classification: H, I, or F.

Survey type *: any.

Plan of correction: required.

Federally authorized enforcement remedies

Category 1 (optional):

Directed plan of correction.

Directed in-service training.

State monitoring.

State survey agency enforcement actions (1 or more may be accepted)

83. Correction notice or order requiring appointment of a temporary manager.
84. Correction notice or order requiring appointment of a temporary administrative advisor or clinical advisor, or both.
85. State patient rights penalties, if applicable.
86. Correction notice or order to ban admissions or readmissions, or both.

If the SQC remains at the first revisit or thereafter:

Federally authorized enforcement remedies

Category 2 (required):

87. Denial of payment for new admissions.
88. Administrative advisor or clinical advisor, or both.

Category 2 (optional):

89. A civil money penalty of $50.00 to $3,000.00 per day.

Category 1 (optional):

90. Directed plan of correction.
91. Directed in-service training.
92. State monitoring.
93. Denial of payment for new admissions (required remedy for noncompliance at the ninetieth day)

State survey agency enforcement actions (1 or more may be accepted)

94. Correction notice or order requiring appointment of a temporary manager.
95. Correction notice or order requiring appointment of a temporary administrative advisor or clinical advisor, or both.
96. Correction notice or order to ban admissions or readmissions, or both.
97. Correction notice or order to transfer selected patients, reduce licensed capacity, or comply with specific requirements.
98. State patient rights penalties, if applicable.
99. Notice of intent to revoke license.

If a facility is not in substantial compliance at the first revisit or thereafter:

Federally authorized enforcement remedies

Category 1 (required for D and E levels; optional for F, G, H, and I levels):

100. Directed plan of correction.
101. Directed in-service training.
102. State monitoring.

Category 2 (required for F, G, H, and I levels; optional for D and E levels):

103. Denial of payment for new admissions .
104. Temporary administrative advisor or clinical advisor, or both.

Category 2 (optional):

105. A daily civil money penalty of $50.00 to $3000.00.

Other:

106. Denial of payment for new admissions (required federal remedy for noncompliance at the ninetieth day).

State survey agency enforcement actions (1 or more may be accepted)

107. Correction notice or order requiring appointment of a temporary manager.
108. Correction notice or order requiring appointment of a temporary administrative advisor or clinical advisor, or both.
109. State patient rights penalties, if applicable.
110. Other remedial enforcement actions appropriate to the specific case, which may include a correction notice or order to ban admissions or readmissions, or both.
111. Transfer selected patients, reduce licensed capacity, or comply with specific requirements.

Menu 1

Facility not in substantial compliance

Historical classification: historically compliant or needing early review with possible date certain.

Scope and severity classification: D, E, G, F, H, or I if not SQC.

Survey type *: standard or abbreviated.

Plan of correction: required.

No remedies; date certain opportunity to correct is given.

If substantial compliance is not achieved at the first revisit or thereafter:

Federally authorized enforcement remedies

Category 1 (required for D and E levels; optional for F, G, H, and I levels):

112. Directed plan of correction.
113. Directed in-service training.
114. State monitoring.

Category 2 (required for F, G, H, and I levels; optional for D and E levels):

115. Denial of payment for new admissions .
116. Administrative advisor or clinical advisor or both.

Category 2 (optional):

117. A daily civil money penalty of $50.00 to $3000.00 per day.

Other:

118. Denial of payment for new admissions (required federal remedy for noncompliance at the ninetieth day).

State survey agency enforcement actions (1 or more may be accepted)

119. Correction notice or order requiring appointment of a temporary manager.
120. Correction notice or order requiring appointment of a temporary manager or clinical advisor, or both.
121. State patient rights penalties, if applicable.
122. Other licensure enforcement actions appropriate to the specific case, which may include a correction notice or order to ban admissions or readmissions, or both.
123. Correction notice or order to transfer selected patients, reduce licensed capacity, or comply with specific requirements.

Notes:

Denial of payment for new admissions and state monitoring will be imposed if a facility has been found to have provided substandard quality of care on 3 consecutive standard surveys.

Notice of termination for failure to achieve substantial compliance within 180 days is always included with notification of alternate remedies. Federal law, as specified in the social security act at sections 1819(f)(2)(B) and 1919(f)(2)(B), prohibits approval of nurse aide training and competency evaluation programs and nurse aide competency evaluation programs offered by, or in, a facility that, within the previous 2 years, has operated under a section 1819(b)(4)(C)(ii)(II) or section 1919(b)(4)(C)(ii) waiver; has been subject to an extended or partial extended survey as a result of a finding of substandard quality of care; has been assessed a total civil money penalty of not less than $5,000.00; has been subject to a denial of payment, the appointment of a temporary manager, or termination; or, in the case of an emergency, has been closed or had its residents transferred to other facilities, or both. Exceptions as specified in Public Law 105-15, "Permitting Waiver of Prohibition of Offering Nurse Aide Training and Competency Evaluation Programs in Certain Facilities," will apply.

*"Any survey" means an annual standard survey, abbreviated survey, or revisit survey. A standard survey includes both the health survey and life safety code survey findings.

Mich. Admin. Code R. 330.11007

1998-2000 AACS