Did you know that a nursing home cannot be held responsible for a past noncompliance when the date of the noncompliance falls between two surveys that found the facility in compliance? It is important to know your rights so that you can avoid unfair penalties and complications following state surveys of your nursing home.
The decision by the Departmental Appeals Board (DAB) in the case of North Ridge Care Center v HCFA supports the assertion that penalties cannot be imposed for noncompliance if there has been a standard survey in the interim that found compliance. In the North Ridge case, the DAB found that CMS “lacked authority to impose a CMP from June 20, 1996 through October 28, 1996, because those days were not ‘since the last standard survey’ as required by 42CFR488.430(b). Those days were before and during the last standard survey, which ended on October 28, 1996.” (American Health Lawyers Association, Long Term Care and the Law, N. Challenging Civil Money Penalties, p.15). This decision shows that an incident occurring before or during the last standard survey cannot be cited and penalized for past noncompliance.
In addition, Section 7510 (A) of the State Operations Manual, titled “Basis for Imposing Civil Money Penalties,” states the following, “If the facility has been out of compliance with a regulatory requirement between two surveys which found it in compliance, the past noncompliance should not be cited by the survey team if a quality assurance program is in place and has corrected the noncompliance.”
It is important you know your rights under the law. If the State cites your facility for past non-compliance, make sure they have the legal authority to do so.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com