2019 Tennessee Code
Title 68 - Health, Safety and Environmental Protection
Health
Chapter 11 - Health Facilities and Resources
Part 2 - Regulation of Health and Related Facilities
§ 68-11-207. Suspension or revocation of license -- Grounds -- Procedure -- Probation.
(a) The board may suspend or revoke the license issued under this part on any of the following grounds:
(1) A violation of this part or of the rules and regulations or minimum standards issued pursuant to this part, or, in the event of a nursing home that has entered into an agreement with the department to furnish services under Title XVIII or XIX of the Social Security Act, compiled in 42 U.S.C. § 1395 et seq. and 42 U.S.C. § 1396 et seq., respectively, any of the requirements for participation in the medical assistance program set out in title 42 of the Code of Federal Regulations, to such an extent that the board considers the licensee a chronic violator;
(2) Permitting, aiding or abetting the commission of any illegal act in such institutions; or
(3) Conduct or practice found by the board to be detrimental to the welfare of the patients in such institutions.
(b) [Deleted by 2018 amendment.]
(c) In imposing the sanctions authorized in this section, the board may consider all factors that it deems relevant, including, but not limited to, the following:
(1) The degree of sanctions necessary to ensure immediate and continued compliance;
(2) The character and degree of impact of the violation on the health, safety and welfare of the patients in the facility;
(3) The conduct of the facility against whom the notice of violation is issued in taking all feasible steps or procedures necessary or appropriate to comply or correct the violation; and
(4) Any prior violations by the facility of statutes, regulations or orders of the board.
(d) The board may, in its discretion, after the hearing, hold the case under advisement and make a recommendation as to requirements to be met by the facility in order to avoid either suspension or revocation of license or suspension of admissions.
(e) The board shall promulgate regulations defining the sanction structure and associated penalties.
(f)
(1) In addition to the authority granted in subsections (a)-(e) and in § 68-11-252, the board shall have the authority to place a facility on probation. In the case of a nursing facility, to be considered for probation, a nursing facility must have had at least two (2) separate substantiated complaint investigation surveys within six (6) months, where each survey had at least one (1) deficiency cited at the level of substandard quality of care or immediate jeopardy, as those terms are defined at 42 CFR 488.301. None of the surveys may have been initiated by an unusual event or incident self-reported by the nursing facility.
(2) If a facility meets the criteria for a violation pursuant to regulations established by the board or, in the case of a nursing facility, meets the criteria pursuant to subdivision (f)(1), the board may hold a hearing at its next regularly scheduled meeting to determine if the facility should be placed on probation. Prior to initiating the hearing, the board shall provide notice to the facility detailing what specific noncompliance the board has identified that the facility must respond to at the probation hearing.
(3) Prior to imposing probation, the board may consider and address in its findings all factors that it deems relevant, including, but not limited to, the following:
(A) What degree of sanctions is necessary to ensure immediate and continued compliance;
(B) Whether the noncompliance was an unintentional error or omission, or was not fully within the control of the facility;
(C) Whether the facility recognized the noncompliance and took steps to correct the identified issues, including whether the facility notified the department of the noncompliance, either voluntarily or as required by state law or regulations;
(D) The character and degree of impact of the noncompliance on the health, safety and welfare of the patient or patients in the facility;
(E) The conduct of the facility in taking all feasible steps or procedures necessary or appropriate to comply or correct the noncompliance; and
(F) The facility's prior history of compliance or noncompliance.
(4) If the board places a facility on probation, the facility shall detail in a plan of correction those specific actions that, when followed, will correct the noncompliance identified by the board.
(5) During the period of probation, the facility shall make reports on a schedule determined by the board. These reports shall demonstrate and explain to the board how the facility is implementing the actions identified in its plan of correction. In making such reports, the board shall not require the facility to disclose any information protected as privileged or confidential under any state or federal law or regulation.
(6) The board is authorized at any time during the probation to remove the probational status of the facility's license, based on information presented to it showing that the conditions identified by the board have been corrected and are reasonably likely to remain corrected.
(7) The board shall rescind the probational status of the facility, if it determines that the facility has complied with its plan of correction as submitted and approved by the board, unless the facility has additional noncompliance that warrants an additional term of probation.
(8) A single period of probation for a facility shall not extend beyond twelve (12) months. If the board determines during or at the end of the probation that the facility is not taking steps to correct noncompliance or otherwise not responding in good faith pursuant to the plan of correction, the board may take any additional action as authorized by law.
(g) The hearing to place a facility on probation and judicial review of the board's decision shall be in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(h) This section in no way relieves any party from the responsibility to report suspected adult abuse, neglect or exploitation to, or to share information with, the adult protective services program in accordance with the Tennessee Adult Protection Act, compiled in title 71, chapter 6, part 1.
(i) After determinations of violations have been made that are subsequent to any complaint investigation survey that could lead to a suspension or revocation of the license of a nursing home or the loss of federal funds relating to any agreement to furnish services by a nursing home under Title XVIII, compiled in 42 U.S.C. § 1395 et seq. or Title XIX, compiled in 42 U.S.C. § 1396 et seq., of the Social Security Act, and unless the immediate protection of the health and safety of the residents of a nursing home requires otherwise, the department shall seek to provide, if practicable, a period of up to thirty (30) days for further fact finding relative to violations and their correction before any findings that would require the suspension or revocation of license or the loss of federal funds.
(j)
(1) Homes for the aged, traumatic brain injury residential homes, assisted care living facilities, and adult care homes shall inform residents verbally and in writing of their right to file a complaint with the state at any time, the process for filing a complaint, and contact information for filing a complaint. The facility shall also advise residents of the availability of a long-term care ombudsman and how to contact the ombudsman for assistance. Verbal and written communication to the resident must indicate, at a minimum, that complaints regarding suspected adult abuse, neglect, or exploitation must be reported to the adult protective services program. Complaints regarding licensure must be reported to the board. All other complaints must be reported to the appropriate state designated oversight entity. Complaints received by a home for the aged, traumatic brain injury residential home, assisted care living facility, or adult care home provider regarding suspected adult abuse, neglect, exploitation, or misappropriation must be forwarded to the appropriate state oversight entity.
(2) A facility licensed pursuant to this part shall not prohibit or discourage the filing of complaints or use intimidation against any person filing a complaint.
(3) A facility licensed pursuant to this part shall not retaliate against the resident or the person acting on behalf of the resident in any way. Such nonpermissible actions include, but are not limited to:
(A) Increasing charges;
(B) Decreasing services, rights, or privileges;
(C) Taking or threatening to take any action to coerce or compel the resident to leave the facility; or
(D) Harassing, abusing, or threatening to harass or abuse a resident in any manner.
(4) Persons acting in good faith in filing a complaint are immune from any liability, civil or criminal.
(5) A facility licensed pursuant to this part shall place a resident manager, substitute caregiver, or employee against whom an allegation of abuse, neglect, or exploitation has been made on administrative leave of absence until the investigation is complete.
(6) Investigations must be completed by the appropriate state oversight entity within time frames established in applicable statutes or regulations, or as expeditiously as necessary to ensure the health, safety, and welfare of residents.
(7) Board administrative staff shall maintain a file of reported complaints. The file must include the name of the facility against whom the complaint is filed, the date the complaint is filed, the action taken by the board, if any, on the complaint, and the date of the action taken.
