N.D. Admin. Code 75-01-03-20

Current through Supplement No. 392, April, 2024

Section 75-01-03-20 - Appeals procedures for determinations affecting participation of intermediate care facilities for individuals with intellectual disabilities and certain nursing facilities in Medicaid

a. This section sets forth the appeals procedures the department makes available:

(1) To a nursing facility that is dissatisfied with the department's finding of noncompliance that has resulted in an enforcement action under chapter 75-02-05.2; or

(2) To an intermediate care facility for individuals with intellectual disabilities that is dissatisfied with the department's finding of noncompliance with Medicaid program requirements that has resulted in the denial of a provider agreement or the termination or nonrenewal of its provider agreement as a sanction imposed under 75-02-05.

b. This section also sets forth the special rules that apply in particular circumstances, the limitations on the grounds for appeal, and the scope of review during a hearing.

a. Except as provided in subdivision b, a facility is entitled to a full evidentiary hearing, as described in subsection 3, on any of the actions specified in subsection 1.

b. A facility may not appeal:

(1) The choice of sanction or remedy;

(2) The state monitoring remedy;

(3) The loss of approval for a nurse aide training program; or

(4) The level of noncompliance found by the state survey agency except when a favorable decision would affect the amount of the civil money penalty imposed under section 75-02-05.2-02.

3. The appealing facility is entitled:

a. To appear before an impartial hearing officer to refute the finding of noncompliance upon which the department has based an action taken under subsection 1;

b. To be represented by counsel or other representative; and

c. To be heard directly or through its representative, to call witnesses, and to provide documentary evidence.

4. In appeals disputing the imposition of a civil money penalty:

a. The department's finding as to a nursing facility's level of noncompliance must be upheld unless it is clearly erroneous; and

b. Upon a finding that a basis for imposing a civil money penalty exists, the appeal decision may not:

(1) Set a penalty of zero or reduce a penalty to zero;

(2) Review the exercise of discretion by the department to impose a civil money penalty; or

(3) Consider any factors in reviewing the amount of the penalty other than the factors described in subsection 6 of section 75-02-05.2-04 and the facility's degree of culpability. For purposes of this paragraph, "culpability" includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.

5. An appeal may be perfected by mailing or delivering the information described in subdivisions a through c to the appeals supervisor. The mailed or delivered material must arrive at the office of the appeals supervisor on or before five p.m. on the sixtieth day from the date of the notice of an action appealable under subdivision a of subsection 1. The appeal request must include:

a. A statement of each disputed deficiency and the reason or basis in fact for the dispute;

b. The authority in statute or rule upon which the appealing party relies for each disputed item; and

c. The name, address, and telephone number upon whom all notices regarding the appeal must be served.

6. An appeal of a deficiency may not suspend or delay enforcement action except as provided in this section and 75-02-05.2.

7. If an intermediate care facility for individuals with intellectual disabilities requests a hearing concerning a finding of noncompliance with Medicaid program requirements that has resulted in an action under paragraph 2 of subdivision a of subsection 1, the evidentiary hearing must be completed within one hundred twenty days after the effective date of the action based on that finding.

8. If a nursing facility requests a hearing on the denial or termination of its provider agreement, the request does not delay the denial or termination and the hearing decision need not be issued before the effective date of the denial or termination.

N.D. Admin Code 75-01-03-20

Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; February 1, 1997; July 1, 2012.

Amended by Administrative Rules Supplement 368, April 2018, effective 4/1/2018.

General Authority: NDCC 28-32-02, 50-06-16

Law Implemented: NDCC 50-06-05.1; 42 CFR 431.151, et seq.