RELATES TO: KRS 13B.005-13B.070, 194A.030(1)(c), 216.532,
216.935, 216.937, 314.025, 42 C.F.R. 488.301
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216.936 requires the
Cabinet for Health and Family Services to establish an abuse registry to
include findings of resident and patient abuse, neglect, and misappropriation
of a resident's or patient's property by a nurse aide or home health aide. KRS 216.939 requires the cabinet to promulgate administrative regulations that
establish the abuse registry and appeals process. 42 C.F.R. 483.156(a) requires
the Cabinet for Health and Family Services, as part of its agreement with the
Centers for Medicare and Medicaid Services, to establish and maintain a nurse
aide registry. This administrative regulation establishes the procedures for
placing a nurse aide or home health aide on the abuse registry and an
administrative appeals process to provide due process to an aide against whom a
charge is brought.
Section 1.
Definitions.
(1) "Abuse" means the willful
infliction of injury, unreasonable confinement, intimidation, or punishment
with resulting physical harm, pain, or mental anguish and includes physical
abuse, verbal abuse, sexual abuse, and mental abuse.
(2) "Abuse registry" means a computerized
listing of nurse aides certified under
907 KAR 1:450 and home health aides who
have had a final order issued by the Secretary of the Cabinet for Health and
Family Services substantiating resident or patient neglect, abuse, or
misappropriation of a resident's or patient's property, or who have failed to
request or perfect an appeal following a preliminary determination of resident
or patient neglect, abuse, or misappropriation of a resident's or patient's
property.
(3) "Cabinet" means the
Cabinet for Health and Family Services.
(4) "Certified" means a nurse aide has
satisfactorily completed all course work and clinical skills training and
passed all examinations required for certification under
907 KAR 1:450.
(5) "Home health agency" is
defined by KRS 216. 935.
(6) "Home
health aide" is defined by KRS 216.935.
(7) "Misappropriation of a resident's or
patient's property" means the deliberate misplacement, exploitation, or
wrongful, temporary or permanent use, of a resident's or patient's belongings
or money without the resident's or patient's consent.
(8) "Neglect" means failure to provide goods
or services that are necessary to avoid physical harm, mental anguish, or
mental illness, but does not include a failure caused by factors beyond the
control of the individual.
(9)
"Nurse aide" is defined by KRS 216.935.
(11) "Secretary" means the Secretary of the
Cabinet for Health and Family Services.
(12) "Willful" means the voluntary, conscious
decision to do the act which the law forbids, but does not require specific
intent to cause harm, pain, or mental anguish.
Section 2. Abuse Registry and Preliminary
Determination.
(1) The cabinet shall establish
and maintain accountability of an abuse registry that includes the listing of
nurse aides and home health aides who have had a final order issued by the
secretary of the cabinet substantiating resident or patient abuse, neglect, or
misappropriation of a resident's or patient's property, or who have failed to
appeal following a preliminary finding of resident or patient neglect, abuse,
or misappropriation of a resident's or patient's property. The registry shall
include the information specified in Section 4 of this administrative
regulation.
(2) If the cabinet
makes a preliminary determination that a nurse aide working in a nursing
facility or a home health aide employed by a home health agency has committed
neglect or abuse or has misappropriated a resident's or patient's property, the
cabinet shall notify in writing by certified mail within ten (10) working days
of the completion of the cabinet's investigation:
(a) If a nurse aide, the nurse aide and the
current administrator of the facility in which the nurse aide was employed when
the incident occurred;
(b) If a
home health aide, the home health aide and the home health agency that employed
the home health aide.
(3) The notice to the nurse aide or home
health aide shall include:
(a) The preliminary
determination establishing the nature of the allegation, the date and time of
occurrence, and a summary of the evidence that led the cabinet to conclude the
allegation is valid;
(b) An
opportunity to make a written response that shall be maintained with the abuse
registry along with the cabinet's findings;
(c) Hearing procedures and appeal
rights;
(d) A statement that the
preliminary determination of neglect, abuse, or misappropriation of a
resident's or patient's property shall be reported on the abuse registry within
ten (10) working days of the date the finding becomes final; and
(e) A statement that the preliminary
determination shall become final when:
1. The
secretary issues the final order after an administrative hearing;
2. The nurse aide or home health aide fails
to file a written request for hearing with the secretary on or before thirty
(30) days after the notice was mailed; or
3. Fails to appeal.
Section 3.
Administrative Hearing.
(1) A nurse aide or
home health aide who has received a preliminary determination of neglect,
abuse, or misappropriation of a resident's or patient's property may appeal the
finding and request an administrative hearing.
(2) The appeal and request for administrative
hearing shall be made in writing and filed with the secretary within thirty
(30) calendar days of the date the notice of preliminary finding is mailed to
the nurse aide or home health aide. If a request for hearing is not filed or if
the appeal is not timely filed, the preliminary determination shall become
final, and the individual's name shall be placed on the abuse registry within
ten (10) working days of the expiration of the appeal time.
(3) Upon receipt of a request for hearing,
the cabinet shall appoint a hearing officer to preside over the matter
appealed. The hearing officer shall:
(a)
Notify the appellant of the scheduled hearing and the right to have counsel
present in accordance with KRS Chapter 13B;
(b) Conduct the administrative hearing in
accordance with KRS Chapter 13B;
(c) Issue proposed findings of fact,
conclusions of law, and a recommended decision within sixty (60) days after the
last day of testimony or the adjournment of the hearing, whichever occurs
first; and
(d) Include a finding
that the preliminary determination is substantiated or not substantiated based
on the law and evidence of record.
(4) A party who disagrees with the hearing
officer's proposed findings of fact, conclusions of law, and recommended
decision may tender written exceptions that shall:
(a) Be filed with the secretary within
fifteen (15) days from the date the proposed findings of fact, conclusions of
law, and recommended decision was mailed;
(b) Specify all facts and conclusions of law
that are in dispute; and
(c) Be
required to exhaust administrative remedies available to the aggrieved
party.
(5) The secretary
shall issue the final decision of the cabinet within fifteen (15) calendar days
of receipt of exceptions if exceptions are filed or within fifteen (15)
calendar days of the date exceptions were due if exceptions are not
filed.
(6) A party who has
exhausted administrative remedies may appeal the final order to the circuit
court by filing a petition for review within thirty (30) calendar days after
the final order of the agency is mailed or delivered by personal
service.
Section 4.
Reporting Requirements and Abuse Registry Content.
(1) If the nurse aide or home health aide
fails to appeal a preliminary determination, or if a final order is issued
substantiating neglect, abuse, or misappropriation of a resident's or patient's
property, the cabinet shall place the individual's name and adverse findings on
the abuse registry within ten (10) working days of the last date to appeal or
issuance of the final order and shall include:
(a) A summary statement, if any, by the
individual disputing the findings, which shall be disclosed in response to
inquiries made to the registry;
(b)
Documentation of the investigation, including a summary of evidence that led to
the finding of neglect, abuse, or misappropriation of a resident's or patient's
property; and
(c) The date of the
hearing, if held, and its outcome.
(2) If the nurse aide or home health aide
fails to appeal, or if the final order substantiates neglect, abuse, or
misappropriation of a resident's or patient's property, the cabinet shall
report the findings in writing within ten (10) working days of the final date
to appeal or issuance of the final order to:
(a) The individual against whom the decision
has been made;
(b)
1. The home health agency that employed the
home health aide on the date the incident occurred; or
2. The administrator of the nursing facility
in which the incident occurred; and
(c) If known, the administrator of the
nursing facility or home health agency currently employing the nurse aide or
home health aide.
(3) If
the cabinet's preliminary determination of neglect, abuse, or misappropriation
of a resident's or patient's property is not substantiated in the hearing
process, the cabinet shall:
(a) Not place the
individual's name on the registry; and
(b) Send notification to the individual that
the preliminary finding is not substantiated.
Section 5. Review of Prior Findings.
(1) A nurse aide or home health aide whose
name was added to the abuse registry after January 1, 1995 may petition the
cabinet to review the finding of nurse aide or home health aide neglect after
the passage of one (1) year from the date that the nurse aide's or home health
aide's name was placed on the abuse registry.
(2) The nurse aide or home health aide
petitioning the cabinet to have his name removed from the abuse registry shall
submit a written request for review of the finding to the cabinet.
(3) The cabinet secretary shall make the
determination to remove the name from the abuse registry if the nurse aide or
home health aide proves:
(a) The employment
and personal history of the nurse aide or home health aide does not reflect a
pattern of abusive behavior, neglect or misappropriation of property;
and
(b) The neglect involved in the
finding which resulted in the name of the nurse aide or home health aide being
added to the abuse registry was a singular occurrence.
(4) If the cabinet does not remove the nurse
aide's or home health aide's name from the abuse registry upon consideration of
the grounds stated in the petition for review, the nurse aide or home health
aide may request a hearing within thirty (30) days of notification of the
cabinet's decision. The hearing shall be conducted pursuant to KRS Chapter 13B
and shall follow the hearing procedure established in Section 3 of this
administrative regulation.