201 KAR 6:090. Complaint management process.

201 KAR 6:090. Complaint management process.

RELATES TO: KRS 216A.070(1)(e)

STATUTORY AUTHORITY: KRS 216A.070(3)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 216A.070(1)(e) requires the board to investigate a person engaging in a practice which violates the provisions of KRS Chapter 216A. This administrative regulation establishes procedures for the investigation of a complaint received by the board.

Section 1. Definitions. (1) "Chairman" means the chairman or vice-chairman of the board.

(2) "Charge" means a specific allegation contained in a formal complaint, as established in subsection (4) of this section, issued by the board alleging a violation of a specified provision of KRS Chapter 216A or the administrative regulations promulgated thereunder.

(3) "Complaint" means:

(a) A written allegation alleging misconduct by a credentialed individual or other person which might constitute a violation of KRS Chapter 216A, the administrative regulations promulgated thereunder, or another state or federal statute or regulation;

(b) A notification which relates to the credential of the individual pursuant to KRS Chapter 216A; or

(4) "Formal complaint" means a formal administrative pleading authorized by the board which sets forth charges against a licensed individual or other person and commences a formal disciplinary proceeding pursuant to KRS Chapter 13B or requests the court to take criminal action.

(5) "Informal proceeding" means a proceeding instituted during the disciplinary process with the intent of reaching a dispensation of a matter without further recourse to formal disciplinary procedures under KRS Chapter 13B.

(6) "Investigator" means an individual designated by the board to assist the board in the investigation of a complaint or an investigator employed by the Attorney General or the board.

(7) "Standards of practice committee" means the committee appointed pursuant to Section 7 of this administrative regulation.

Section 2. Receipt of Complaints. (1) A complaint may be submitted by an individual, organization, or entity. A complaint shall be in writing and shall be signed by the person offering the complaint. The board may file a complaint based on information in its possession.

(2) Upon receipt of a complaint:

(a) A copy of the complaint shall be sent to the individual named in the complaint along with a request for that individual’s response to the complaint. The individual shall be allowed a period of twenty (20) days from the date of receipt to submit a written response.

(b) Upon receipt of the written response of the individual named in the complaint, a copy of his response shall be sent to the complainant. The complainant shall have five (5) days from the receipt to submit a written reply to the response.

(3) Upon receipt of a notification of substandard care, a copy of the notification shall be sent to the individual along with a letter from the board requesting the following information:

(a) The effective date of that administrator becoming the administrator of record for the facility. If that has occurred within the last 180 days, the facility shall furnish the name of the previous administrator.

(b) Copy of completed and approved 2567L and Notice of Acceptance of Allegation of Compliance as issued by the Cabinet for Health Services;

(d) Formal notice of each remedy imposed by the Cabinet for Health Services, if applicable.

Section 3. Initial Review. (1) After the receipt of a complaint and the expiration of the period for the individual’s response, the standards of practice committee shall consider the individual’s response, complainant’s reply to the response, and other relevant material available and make a recommendation to the board. The board shall determine whether there is enough evidence to warrant a formal investigation of the complaint.

(2) If, in the opinion of the board, a complaint does not warrant the formal investigation of a complaint against an individual, the board shall dismiss the complaint and shall notify both the complaining party and the individual of the outcome of the complaint.

(3)(a) If, in the opinion of the board, a complaint warrants a formal investigation against either a licensed individual or a person who may be practicing without appropriate credential, the board shall authorize an investigator to investigate the matter and make a report to the standards of practice committee at the earliest opportunity.

(b) In the case of a notification of substandard care, the board shall:

1. Open a formal investigation; or

2. Proceed under Section 4(3) of this administrative regulation.

Section 4. Results of Formal Investigation; Board Decision on Hearing. (1) Upon completion of the formal investigation, the investigator shall submit a report to the standards of practice committee of the facts regarding the complaint. The committee shall review the investigative report and make a recommendation to the board. The board shall determine whether there is enough evidence to believe that a violation of the law or administrative regulations may have occurred and whether a complaint shall be filed.

(2) If, in the opinion of the board, a complaint does not warrant the issuance of a formal complaint and the holding of a hearing, the complaint shall be dismissed or other appropriate action taken. The board shall notify both the complaining party and the individual of the outcome of the complaint.

(3) When in the opinion of the board a complaint warrants the issuance of a formal complaint against a licensee, the standards of practice committee shall prepare a formal complaint which states clearly the charge or charges to be considered at the hearing. The formal complaint shall be reviewed by the board and, if approved, signed by the chairman and served upon the individual as required by KRS 13B.040.

(4) If, in the opinion of the board, a person shall be practicing without appropriate credential, it may:

(a) Issue a letter ordering that person to cease and desist from the unlicensed practice of nursing home administration;

(b) Forward information to the county attorney of the county of residence of the person allegedly practicing without appropriate credential with a request that appropriate action be taken under KRS 216A.150 and 216A.990; or

(c) Initiate action in Franklin Circuit Court for injunctive relief to stop the unauthorized practice of nursing home administration.

Section 5. Settlement by Informal Proceedings; Letter of Admonishment. (1) The board, through counsel and the standards of practice committee, may enter into informal proceedings with the individual who is the subject of the complaint for the purpose of appropriately dispensing with the matter.

(a) An agreed order or settlement reached through this process shall be approved by the board and signed by the individual who is the subject of the complaint and the chairman.

(b) The board may employ mediation as a method of resolving the matter informally.

(2)(a) The board may issue a written admonishment to the licensee if in the judgment of the board:

1. An alleged violation is not of a serious nature; and

2. The evidence presented to the board after the investigation and appropriate opportunity for the licensee to respond, provides a clear indication that the alleged violation did in fact occur.

(b) A copy of the admonishment shall be placed in the permanent file of the licensee.

1. A response to the admonishment which shall be placed in the licensee's permanent licensure file; or

2. A request for hearing with the board. Upon receipt of this request, the board shall set aside the written admonishment and set the matter for hearing pursuant to the provisions of KRS Chapter 13B.

Section 6. Notice and Service Process. A notice required by KRS Chapter 216A or this administrative regulation shall be issued pursuant to KRS 13B.040.

Section 7. Standards of Practice Committee. The standards of practice committee shall:

(1) Be appointed by the chairman of the board to:

(a) Review a complaint or investigative report; and

(b) Participate in an informal proceeding to resolve a formal complaint;

(2) Consist of three (3) persons, including:

(a) A board member who is a nursing home administrator;

(b) A board member who is not a nursing home administrator; and

(c) One (1) other person, which may be the executive director of the board or another staff member. (25 Ky.R. 686; Am. 1588; eff. 1-19-99.)