Rule 350-3-.04. Civil Monetary Penalties

Civil monetary penalties shall be based upon one or more findings of noncompliance; actual harm to a resident or residents need not be shown. Nothing shall prevent the Department from imposing this remedy for deficiencies which existed prior to the survey or complaint investigation through which they are identified. A single act, omission, or incident shall not give rise to imposition of multiple penalties, even though such act, omission, or incident may violate more that one Program Requirement. In such cases, the single highest class of deficiency shall be the basis for penalty. Compliance by the facility at a later date shall not result in the reduction of the penalty amount. Civil monetary penalties and any attorneys' fees or other costs associated with contesting such penalties are not reimbursable Medicaid expenses except in the case where a facility prevails, in which case reasonable attorneys' fees and costs shall be allowable. Whenever such penalties are collected, the Department shall conduct a financial field audit to ensure that there has been, and will be, no Medicaid reimbursement associated with the penalties.

1. (a) Classification of deficiencies. The three classes of deficiencies upon which civil monetary penalties shall be based are as follows:

   1. 1. Class A: A deficiency or combination of deficiencies which places one or more residents at substantial risk of serious physical or mental harm.
   2. 2. Class B: A deficiency or combination of deficiencies, other than Class A deficiencies, which has a direct adverse affect on the health, safety, welfare, or rights of residents; or a failure to post notices issued by the Department of imposition of remedies;
   3. 3. Class C: A deficiency or combination of deficiencies, other than Class A or B deficiencies, which indirectly or over a period of more than thirty (30) days is likely to have an adverse affect on the health, safety, welfare, or rights of residents.

(b) Amounts. When Civil Monetary Penalties are imposed, such penalties shall be assessed for each day the facility is or was out of compliance. The amounts below shall be multiplied by the total number of beds certified for participation in the Medicare and Medicaid programs according to the records of the State Survey Agency at the time of the survey. Penalties shall be imposed for each class of deficiencies identified in a survey or complaint investigation Class Initial Finding Subsequent Finding Repeat Deficiency A $ 10.00 $ 15.00 $ 20.00 B 5.00 7.50 10.00 C 1.00 1.50 3.00 In any ninety (90) day period, the penalty amounts may not exceed the applicable ceiling as described immediately below. The ceiling (Initial, Subsequent, or Repeat) shall be determined by which category has the largest percentage of the deficiencies cited in the survey or complaint investigation. Bed Size Initial Finding Subsequent Finding Repeat Deficiency 0 - 50 $ 4,000 $ 6,000 $ 8,000 51 - 100 6,000 9,000 12,000 101 - 150 8,000 12,000 16,000 151 or more 10,000 15,000 20,000

1. (c) Procedure for imposing civil monetary penalties. Civil monetary penalties shall be imposed as follows:

   1. 1. Within ten (10) business days of its discovery of a deficiency, the State Survey Agency shall deliver to the Department its recommendation for assessment of a penalty as a result of such deficiency.
   2. 2. The decision to assess the penalty shall be made by a person in the Department who is not the surveyor(s) or complaint investigator(s) who reported the deficiency.
2. (d) Notice. The Department shall give written notice to the facility of its imposition of any such penalty within ten (10) business days of its receipt of a recommendation by the State Survey Agency for the assessment of a penalty. The notice shall inform the facility of the amount of the penalty, the basis for its assessment, and the facility's appeal rights.

3. (e) Payment. Within fifteen (15) business days from the date the notice is received by the facility, the facility shall pay the full amount of the penalty or penalties unless the facility requests Administrative Review of the decision to assess the penalty or penalties. The amount of a civil monetary penalty determined through Administrative Review shall be paid within ten (10) business days of the facility's receipt of the Administrative Review decision unless the facility requests an Administrative Hearing. The amount of the civil monetary penalty determined through a hearing shall be paid within ten (10) business days of the facility's receipt of the hearing decision. Interest at the legal rate of interest established by Georgia law shall begin to run on the later of one (1) business day after:

   1. 1. the facility's receipt of notice of the penalty; or

   2. 2. the date of issuance of the Administrative Review or Hearing decision.

      Failure of a facility to pay the entire penalty as specified in this paragraph shall result in an automatic final decision and no further administrative or judicial review or hearing shall be available to the facility.

4. (f) Collection of civil penalties. If a facility fails or refuses to pay a penalty within the time required, the Department may collect the penalty by subtracting all or part of the penalty amount plus interest from future medical assistance payments to the facility. Additionally, the Department may subtract a fee representing the actual administrative cost of collection. Nothing herein shall prohibit the Department from obtaining judicial enforcement of its right to collect penalties and interest thereon.
5. (g) Imposition against individuals. Each recipient resident's functional capacity shall be assessed by the facility using an instrument specified by the Department. A civil money penalty of $1,000 per assessment shall be imposed by the Department against any individual who willfully and knowingly certifies a material and false statement in such assessment instrument or other documents used to support the assessment. A civil money penalty of $5,000 per assessment shall be imposed by the Department against any individual who willfully and knowingly causes another individual to certify a material and false statement in such assessment instrument or other documents used to support the assessment. Any such penalty shall be imposed by written notice to the individual according to the same provisions as set forth in Paragraphs (c) through (e) of this Section regarding deficiencies.

6. (h) Use of civil monetary penalties. The Department may use collected civil monetary penalties for the following purposes:

   1. 1. protecting the health or property of residents;
   2. 2. paying costs of relocating residents;
   3. 3. maintaining the operation of a nursing facility while deficiencies are corrected or the facility is being closed; and
   4. 4. reimbursing residents for personal funds lost, which reimbursement shall not adversely affect a person's Medicaid eligibility.

Authority: Ga. L. 1977, p. 384, et seq.; O.C.G.A. Sec. 49-4-142(a).

History. Original Rule entitled "Procedure for Adoption of Rules" was filed on April 11, 1978; effective May 1, 1978.

Amended: Filed June 18, 1979; effective July 8, 1979.

Amended: Filed April 29, 1982; effective May 19, 1982.

Repealed: ER. 350-3-0.3-.04 adopted. F. Oct. 5, 1989; eff. Sept. 29, 1989, the date of adoption, to remain in effect for 120 days or until adoption of a permanent Rule superseding said Emergency Rule, as specified by the Agency.

Repealed: Permanent Rule entitled "Civil Monetary Penalties" adopted. F. Oct 4, 1989; eff. November 1, 1989, as specified by the Agency.