There is little more daunting than the Division of Health Services Regulation (“DHSR”) – or whatever acronym is used in your State – slapping penalties on long term care facilities, nursing homes, and other residential facilities, such as residential homes housing handicapped recipients, mentally ill recipients, or substance abuse consumers. Many of these penalties are immediate and can easily put a facility out of business and a resident without a home. DHSR falls under the umbrella of DHHS, the “single State entity” that manages Medicaid in each respective State. DHSR may be a different acronym in your State, but the essence will be the same.

The primary difference between adult care homes and nursing homes is as follows:

“Adult Care Homes” provide care and assistance to people with problems carrying out activities of daily living and supervision to people with cognitive impairments whose decisions, if made independently, may jeopardize the safety or well-being of themselves or others and therefore require supervision. Medication in an adult care home may be administered by designated, trained staff. Smaller adult care homes that provide care to two to six unrelated residents are commonly called family care homes.

“Nursing Homes” are for people who need chronic or rehabilitative care, who, on admission are not acutely ill and who do not usually require special facilities such as an operating room, X-ray facilities, laboratory facilities, and obstetrical facilities. A “nursing home” provides care for people who have remedial ailments or other ailments, for which medical and nursing care are indicated; who, however, are not sick enough to require general hospital care. Nursing care is their primary need, but they will require continuing medical supervision.

Regarding Violations & Penalties in Adult Care Homes

Pursuant to G.S. 131-D-34 (a), the Department shall impose an administrative penalty in accordance with provisions of the Article on any facility which is found to be in violation of requirements of G.S. 131D-21 or applicable State and federal laws and regulations. Citations for violations shall be classified and penalties assessed according to the nature of the violation.

Type A1 and A2 Violations & Penalties: A monetary penalty fine may be imposed when a “Type A1” or “Type A2” violation has occurred.

• “Type A1 Violation” means a violation by a facility of applicable laws and regulations governing a facility which results in death or serious physical harm, abuse, neglect, or exploitation of a resident. 
• “Type A2 Violation” means a violation by a facility of applicable laws and regulations governing the licensure of a facility which results in substantial risk that death or serious physical harm, abuse, neglect, or exploitation will occur.
• For family care homes (licensed for two to six beds), the penalty amount may range from $500.00 to $10,000 for each Type A violation.
• For adult care homes (licensed for seven beds or more), the penalty amount may range from $2000.00 to $20,000 for each Type A violation.

Examples of a Type A1 violation may include the following:

• The facility failed to provide supervision to a confused resident who exhibited wandering and exit seeking behaviors resulting in the resident leaving the facility unsupervised and without the knowledge of the facility’s staff. The resident was hit by a car and sustained multiple injuries causing death.
• The facility failed to administer an antibiotic medication for 7 days as ordered for a resident discharged from the hospital with diagnoses including pneumonia. The resident required a subsequent 11-day hospitalization for diagnoses including respiratory failure and an infection in the bloodstream.

 Examples of a Type A2 violation may include the following:

• The facility failed to send a resident to the hospital for evaluation after the resident drank approximately 24 ounces of hand sanitizer on one occasion; drank approximately 8 ounces of body wash and ate an unknown amount of solid deodorant on a second occasion; and failed to notify the resident’s primary care provider of the resident drinking non-consumable substances on more than one occasion which placed the resident at substantial risk of serious physical harm and neglect.
• A resident was administered medications that belonged to another resident. The medications administered had the strong potential of adverse side effects. The resident required emergent evaluation and treatment in the emergency department of the local hospital which placed the resident at substantial risk of serious physical harm.

Unabated Violations and Penalties:

If a facility has failed to correct any violation within the specified date of correction (30 days for Type A violations; 45 days for Type B violations), these are “unabated violations.” Additional penalty fines may be imposed for unabated violations.

Unabated Type A1 and A2 Violations & Penalties:

When a facility has failed to correct a “Type A1” or “Type A2” violation within 30 days, a monetary penalty fine may be imposed in the amount of up to $1,000 for each day that the Type A1 or Type A2 violation continued to occur beyond the date specified for correction.

The Department has legal authority to impose a monetary fine for:

• The inspection in which the Type A1 or Type A2 violation was first identified and
• Additional monetary penalty fines as a result of each inspection in which the unabated Type A1 violation or unabated Type A2 violation continued to occur beyond the specified date of correction

Unabated Type B Violations & Penalties:

Another unabated violation that could result in the imposition of penalty fines is a “Type B” violation that has not been corrected by the facility within the specified correction date (45 days per regulatory authority), known as an Unabated B violation.

• A “Type B” violation means a violation by a facility of applicable laws and regulations governing a facility which is detrimental to the health, safety, or welfare of any resident, but which does not result in substantial risk that death or serious physical harm, abuse, neglect, or exploitation will occur.
• The range of the fine for an Unabated “Type B” violation that was not corrected is up to $400.00 for each day that the violation continues beyond the date specified for correction.
• Additional penalty fines may be imposed as a result of each inspection in which the unabated Type B violation continued to occur beyond the specified date of correction.

Examples of Unabated Type B violations may include the following:

• Several residents have orders to receive pain medications every evening but on one evening, staff forget to give the residents the ordered pain medications. One resident suffers from shoulder pain and could not sleep from the missed dose. Subsequent doses are given as ordered. The facility is cited a Type B violation for the non-compliance and on a follow-up visit, additional medication errors are noted; therefore, the facility is fined up to $400/day until compliance with medication administration is determined, which must be verified by another follow-up inspection.
• The facility’s pest management program is not effective, and roaches are noted in a couple of the residents’ rooms on one out of two halls in the facility. The facility is cited a Type B violation for the non-compliance and on a follow-up visit, additional roaches and insects are noted; therefore, the facility is fined up to $400/day until compliance with pest management is determined, which must be verified by another follow-up inspection.

The Department will determine whether each violation has been corrected.

Pursuant to Chapter 150B and N.C. Gen. Stat. § 131D-34(e), adult care homes have the legal right to appeal the imposition of a penalty fine by filing a petition for contested case within 30 days after the Department mails a notice of the penalty imposition decision to a Licensee.

Once a penalty has been imposed, payment is due within 60 days unless an appeal is timely filed at the at the Office of Administrative Hearings (OAH).

If a penalty is appealed, it will go to a hearing at the Office of Administrative Hearings (OAH). Alternatively, the Department and the Licensee may agree to resolve the penalty by executing a settlement agreement.

I emphasize, if you disagree with the sanction and/or the accusation, APPEAL. I have been successful in eliminating severe penalties that a residential home, nursing home, or adult care homes by arguing at the OAH. Just remember, DHSR can accuse anything of happening to constitute “abuse or neglect” of a consumer. But DHSR must prove it to a Judge!