R432-3-10. Alternative Remedies for Nursing Facilities

  (1) The department conducts on-site inspections of nursing facilities to determine compliance with state and federal nursing home requirements. When the department finds that a nursing facility is out of compliance with requirements of participation, the department may apply remedies, including Federal civil money penalties (CMP) to compel the facility to implement corrective measures to achieve compliance.

  (2) For Medicare and/or Medicaid certified nursing facilities the authority to apply the remedies described in this section is defined in the federal Omnibus Budget Reconciliation Act (OBRA) of 1987 (P.L. 100-203), which mandates compliance with requirements for participation in the program, and in Section 26-18-3 of the Utah Code Annotated 1953. Section 1819(h) and 1919(h) of the Social Security Act specifies remedies available to a state when a skilled nursing facility (SNF) or nursing facility (NF) is out of compliance with the participation requirements. This section requires the state to ensure prompt compliance, and it further specifies that the available remedies are in addition to other remedies available under state or federal law and, except for Federal CMP, are imposed prior to the conduct of a hearing.

  (3) This rule establishes criteria for the imposition of remedies authorized by statute.

  (4) The department adopts and incorporates by reference the regulations in 42 CFR, Part 488-Survey, Certification, and Enforcement Procedures, as amended in the Federal Register for November 10, 1994, 59 FR 56237. Remedies available for non-compliance with one or more participation requirements may include:

  (a) temporary management;

  (b) denial of payment for new admissions;

  (c) transfer of residents;

  (d) closure of the facility and transfer of residents;

  (e) state monitoring; and

  (f) Civil Money Penalties. Civil Money Penalties may be imposed for either:

  (i) the number of days a facility is out of compliance with one or more participation requirements; or

  (ii) for each instance that a facility is not in substantial compliance.

  (5) Interest shall be assessed on the unpaid balance of the Federal CMP, beginning on the due date. The interest rate charged shall be the average of the bond equivalent of the weekly 90-day U.S. Treasury bill auction rates during the period for which interest will be charged.

  (6) Disposition of Federal CMP Collected.

  (a) The department shall deposit Federal CMP and corresponding interest collected from Medicaid certified facilities in the General Fund in accordance with Section 26-18-3(5).

  (b) Federal CMP collected by the department must be applied in accordance with Section 1819 and 1919 of the act for the protection of the health and property of residents.