The following Rules and Regulations for the Imposition of Remedies are duly adopted and promulgated by the Arkansas Department of Human Services, Office of Long Term Care, pursuant to the authority conferred by Ark. Code Ann. §20- 10-203 and Ark. Code Ann. §25-10-129.
1001 INSPECTIONS BY DEPARTMENT
a. All areas of the facility that are accessible to residents or are used in the care or support of residents, including but not limited to kitchen or food preparation areas, laundry areas, and storage areas, and all resident records, including but not limited to residents’ financial records maintained by the facility and residents’ medical records maintained by the facility, shall be open for inspection by the Department, the Office of Long Term Care, or the Office of the Attorney General. All facility records related to the care or protection of residents and all employee records related to the care or protection of residents shall be open for inspection by the Department or OLTC or the Attorney General’s Office for the purpose of enforcing these regulations and applicable laws. The facility shall provide access to any copying equipment the facility has on premises to permit the above-named entities the ability to make copies of
facility records. This shall not be construed as a requirement that a facility be required to have copy equipment on its premises.
b. The facility shall submit to regular and unannounced inspection surveys and complaint investigations in order to receive or maintain a license. The facility shall inform residents of the survey process and residents’ rights with regard to privacy during the process. Residents or employees may refuse to be interviewed or photographed. The Department or its agents, the Office of Long Term Care or its agents or the Attorney General’s Office or its agents have the right to conduct interviews in a private area with residents or employees who consent to interviews, and shall be permitted to photograph the facility. Residents and their apartments shall be photographed in accordance with Ark. Code Ann. §20-10-104. This regulation shall not be construed as a waiver of any constitutional rights,
including but not limited to the right against self-incrimination.
c. An inspection may occur at any time, in the discretion of the Department or its agents, the Office of Long Term Care or its agents or the Attorney General’s Office or its agents.
d. The facility shall provide for the maintenance and submission of such statistical, financial or other information, records, or reports related to resident care or property in such form and at such time and in such manner as the Department or its agents, the Office of Long Term Care or its agents may require. Provided, however, records created by, or for the exclusive
use of, the quality assessment unit shall not be subject to release to the Department or its agents, or the Office of Long Term Care or its agents. Records created pursuant to Section 702.2.1(1) of these regulations regarding consultant pharmacists shall not be subject to release to the Department. Records created pursuant to Section 702.2.1(2) of these regulations regarding consultant pharmacists shall be subject to release to the Department.
e. Facilities must provide a written acceptable plan of correction within 15 working days of receipt of written notification of deficiencies (also referred to as a Statement of Deficiencies) found during routine inspections or surveys, special visits or complaint investigations. The OLTC shall determine whether the proposed plan of correction, including any proposed dates by which correction will be made, is acceptable.
f. The facility must post the Statement of Deficiencies and the facility’s response and the outcome of the response from the latest survey in a public area utilized by residents or their responsible parties and visitors. A copy shall be provided to each resident or resident’s responsible party upon request of the resident or the resident’s responsible party. The last twelve (12) months of deficiency notices and facility responses and outcomes of responses, for all surveys shall be provided to persons or their responsible parties upon request when they apply for residence in the facility.
1002 GENERAL PROVISIONS
a. The provisions of this section are supplemental to, and independent of, the provisions of Title 20 of the Arkansas Code Annotated.
b. Purpose of remedies. The purpose of remedies is to ensure prompt compliance with program requirements.
c. Basis for imposition and duration of remedies. When OLTC chooses to apply one or more remedies specified herein, the remedies are applied on the basis of noncompliance found during surveys or inspections of any nature conducted by OLTC, or for failure to comply with applicable laws or regulations.
d. Number of remedies. OLTC may apply one or more remedies for each deficiency constituting noncompliance or for all deficiencies constituting noncompliance.
e. Plan of correction requirement.
1. Regardless which remedy is applied, or the nature or severity of the violation, each facility that has deficiencies with respect to
program requirements must submit a plan of correction for approval by OLTC. The plan of correction shall be set forth on the
Statement of Deficiencies. While a facility may provide a disclaimer in the plan of correction, the facility is still required to
provide corrective actions to address the cited deficiencies, the time frames in which the corrective actions will be completed, and
the manner to be utilized by the facility to monitor the effectiveness of the corrective action.
2. Failure by the facility to provide an acceptable plan of correction may result in the imposition of additional remedies pursuant to
these regulations at the discretion of the OLTC or in a finding of a violation and imposition of additional remedies set forth in Title 20
of the Arkansas Code Annotated, or set forth in these regulations, or both.
f. Notification requirements
1. Except in cases of emergency termination of a license or in cases or emergency removal or transfer or residents, OLTC shall give the
provider notice of the remedy, including:
A. Nature of the noncompliance;
B. Remedy or remedies imposed;
C. Date the remedy begins; and,
D. Right to appeal the determination leading to the remedy.
2. Notice shall not be required for state monitoring.
1003 REMEDIES
a. Available Remedies. In conformity with, and in addition to remedies as set forth in Title 20 of the Arkansas Code Annotated, the following remedies are available:
1. Civil Money Penalties (CMP) pursuant to Ark. Code Ann. § 20-10-
205 and § 20-10-206.
2. Denial of New Admissions.
3. Directed in-service training.
4. Directed plan of correction.
5. State monitoring.
6. Temporary Administrator.
7. Termination of license.
8. Transfer of residents.
b. Duration of Remedies. Unless otherwise provided by law or other applicable regulations, remedies continue until:
1. The facility has corrected the cited deficiencies that resulted in the imposition of the remedy or remedies, as determined by the Office
of Long Term Care based upon a revisit, or after an examination of credible written evidence that it can verify without an on-site visit,
or both; or,
2. OLTC terminates the Level II assisted living facility license.
1004 TEMPORARY ADMINISTRATION
a. Temporary administrator means the temporary appointment by OLTC, or by the facility with the approval of OLTC, of a substitute facility administrator with authority to hire, terminate or reassign staff, obligate facility funds, alter facility procedures and manage the facility to correct deficiencies identified in the facility’s operation, or to assist in the orderly closure of a facility. A temporary administrator may be appointed by the Office of Long Term Care only upon the consent and agreement of the facility. The temporary administrator shall provide reports to the OLTC regarding the operation of the facility and the efforts toward correction by
the facility as requested by the OLTC.
b. Qualifications. The temporary administrator must:
1. Be qualified to oversee correction of deficiencies on the basis of experience and education, as determined by OLTC;
2. Not have been found guilty of misconduct by any licensing board or professional society in any State;
3. Have, or a member of his or her immediate family have, no financial ownership interest in the facility;
4. Not currently serve or, within the past 2 years, have served, unless approval has been obtained from the OLTC, as a member of the
staff of the facility;
5. Successfully undergo a criminal record check pursuant to the Rules and Regulations of the Office of Long Term Care.
c. Payment of salary. The temporary administrator’s salary:
1. Is paid directly by the facility while the temporary administrator is assigned to that facility; and
2. Must be at least equivalent to the sum of the following:
A. The prevailing salary paid by providers for positions of this
type in what OLTC considers the facility’s geographic area;
B. Additional costs that would have reasonably been incurred by the provider if such person had been in an employment
relationship; and
C. Any other costs incurred by such a person in furnishing services under such an arrangement or as otherwise set by OLTC.
3. May exceed the amount specified in Section 1005(c)(2) if OLTC is otherwise unable to attract a qualified temporary administrator.
d. Failure to relinquish authority to temporary administrator:
1. Termination of assisted living facility licensure. If a facility fails to relinquish authority to the temporary administrator, OLTC may
impose additional remedies, including but not limited to termination of the Level II assisted living facility license.
2. Failure to pay salary of temporary administrator. A facility’s failure to pay the salary of the temporary administrator is considered a failure to relinquish authority to temporary administration.
3. When imposed. The remedy of temporary administrator shall be used in only lieu of termination of the facility license. Provided,
however, that if the appointment of the temporary administrator does not result in compliance by the facility within the time frames
estimated by the temporary manager and agreed to by the Office of Long Term Care, the remedy of termination or revocation of
license may be imposed.
1005 STATE MONITORING
a. A State monitor:
1. Oversees the correction of deficiencies specified by OLTC at the facility site and protects the facility’s residents from harm;
2. Is an employee or a contractor of OLTC;
3. Is identified by OLTC as an appropriate professional to monitor cited deficiencies;
4. Is not an employee of the facility;
5. Does not function as a consultant to the facility;
6. Does not have an immediate family member who is a resident of the facility to be monitored; and,
7. Does not have an immediate family member who owns the facility
or who works in the facility or the corporation that operates or owns the facility.
b. A State monitor may be utilized by the Office of Long Term Care for any level or severity of deficiency.
1006 DIRECTED PLAN OF CORRECTION
The Office of Long Term Care, or the temporary manager with OLTC approval, may develop a plan of correction. A directed plan of correction sets forth the tasks to be undertaken, and the manner in which the tasks are to be performed, by the facility to correct deficiencies, and the time frame in which the tasks will be performed. A facility’s failure to comply with a directed plan of correction may
result in additional remedies, including revocation of license when the failure to correct meets the conditions specified in Section 1009. The intent of a directed plan of correction is to achieve correction of identified deficiencies and compliance with applicable regulations.
1007 DIRECTED IN-SERVICE TRAINING
a. Required training. OLTC may require the staff of a facility to attend an in-service training program if education is likely to correct, or is likely to assist in correcting, cited deficiencies. The Office of Long Term Care may specify the time frames in which the training will be performed, the type or nature of the training, and the individual or entities to provide the training.
b. Action following training. After the staff has received in-service training, if the facility has corrected the violations or deficiencies that led to the imposition of remedies, OLTC may impose one or more other remedies.
c. Payment. The facility pays for directed in-service training.
1008 TRANSFER OF RESIDENTS OR CLOSURE OF THE FACILITY AND TRANSFER OF RESIDENTS
a. Transfer of residents, or closure of the facility and transfer of residents in an emergency. OLTC has the authority to transfer residents to another facility when:
1. An emergency exists wherein the health, safety, or welfare of residents are imperiled, and no other remedy exists that would
ensure the continued health, safety or welfare of the residents;
2. A facility intends to close but has not arranged for the orderly transfer of its residents at least thirty (30) days prior to closure.
3. The facility exceeds its bed capacity as indicated or stated on the facility’s license, or accepts more residents than the facility has
number of beds as indicated or stated on the facility’s license, unless granted a waiver by the Office of Long Term Care.
b. Required transfer when a facility’s assisted living facility license is terminated. When a facility’s license is terminated, or when the facility closes either voluntarily or involuntarily, OLTC may assist in the safe and
orderly transfer of all residents to another facility.
c. When the Office of Long Term Care orders transfer of residents from a facility, the Office of Long Term Care may:
1. Assist in providing for the orderly transfer to other suitable facilities or make other provisions for the residents’ care and
safety.
2. Assist in or arrange for transportation of the residents, their medical records and belongings, assist in locating alternative
placement, assist in preparing the resident for transfer, and permit the residents’ legal guardians or responsible party to participate in
the selection of the residents’ new placement.
3. Unless transfer is due to an emergency, explain alternative placement options to the residents and provide orientation to the
placement chosen by the resident or their guardian or responsible party.
d. Notice of Transfer Remedy. Unless transfer is due to an emergency, the Office of Long Term Care shall provide the facility from which the residents are to be transferred at least fifteen (15) days notice of the proposed transfer.
1009 TERMINATION OF LEVEL II ASSISTED LIVING FACILITY LICENSE
a. The remedy of termination or revocation of licensure is a remedy of last resort, and may be imposed only in accordance with law or as set forth in Section 1009(b), below.
b. Basis for termination. OLTC may terminate a facility’s Level II assisted living facility license if a facility:
1. Permits, aids or abets in the commission of any unlawful act in connection with the operation of the Level II assisted living
facility;
2. Refuses to allow entry or inspection by the Office of Long Term Care;
3. Fails to make any or all records set forth in Section 1001(d) available to representatives or agents of the Department or the
OLTC, unless such refusal is made pursuant to court order or during the pendency of an appeal specifically on the issue of the
release of the records, or the records are records created by the quality assessment unit;
4. Closes, either voluntarily or through action of the State;
5. Operator or owner refuses to obtain a criminal record check of any individual required to undergo a criminal record check pursuant to
the Rules and Regulations for Conducting Criminal Record Checks for Employees of Long Term Care Facilities or pursuant to Ark.
Code Ann. §20-33-201, et seq.;
6. Is cited for a third Class A violation within six months of the citation of the first Class A violation, or is cited for a third Class B
violation within six months of the citation of the first Class B violation, in accordance with Ark. Code Ann. § 20-10-205 and §
20-10-206; or,
7. Has conditions wherein the health, safety, or welfare of resident are imperiled, and no other remedy exists that would ensure the
continued health, safety, or welfare of the residents.
1010 DENIAL OR SUSPENSION OF NEW ADMISSIONS
The Office of Long Term Care may deny to, or suspend the ability of, a facility to admit new admissions upon the imposition of a Class A violation as defined and set forth in Ark. Code Ann. § 20-10-205 and § 20-10-206.
1011 CIVIL MONEY PENALTIES
The Office of Long Term Care may impose civil money penalties in accordance with Ark. Code Ann. § 20-10-205 and § 20-10-206.
1012 CLOSURE
Any Level II assisted living facility that closes or ceases operation or surrenders or fails to timely renew its license must meet the regulations then in effect for new construction and licensure to be eligible for future licensure. Closure of a facility
shall result in the immediate revocation of the license. A facility that closes or is unable to operate due to natural disaster or similar
circumstances beyond the control of the owner of the facility, or a facility that closes, regardless of the reason, to effectuate repairs or renovations, may make written request to the Office of Long Term Care for renewal of the facility license to effect repairs or renovation to the facility. The Office of Long Term Care may, at its sole discretion, grant the written request.
If the request for licensure renewal is granted, the Office of Long Term Care will provide written notification to the facility, which will include deadlines for various stages of the repairs or renovations, including the completion date. In no event shall the completion date set by the Office of Long Term Care extend beyond twenty-four months of the date of the request; provided, however, that the
deadlines may be extended by the Office of Long Term Care upon good cause shown by the facility. For purposes of this regulation, good cause means natural disasters or similar circumstances, such as extended inclement weather that prevents repairs or construction within the established deadlines, beyond the control of the owner of the facility. Good cause shall not include the unwillingness or inability of the owner of the facility to secure financing for the renovations or repairs. The facility shall comply with all deadlines established by
the Office of Long Term Care in its notice. Failure to comply with the deadlines established by the Office of Long Term Care shall constitute grounds for revocation of the license, and for denial of re-licensure.