Appendix — Boswell, Inc. v. Harkins
Supreme Court brief1982
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No. 81-2383
IN THE SUPREME COURT OF
October Term,
on
BOSWELL, INC. d/b/a
Appellant,
Vv. =m -
DEPARTMENT OF HEALTH AND
ON APPEAL FROM THE SUPREME COURT OF KANSAS
APPENDIX TO
MOTION TO DISMISS
Emily E. Cameron
(Counsel of Record)
Kansas Department of
Health and Environment
Porbes Field
, Kansas 66620
(913) 862-9360
Attorney for Appellee
APPENDIX
TABLE OF CONTENTS
Page
APPENDIX ..cccscccccccccccsess Al-A118
CASE:
No. 80-1, Before the Kansas
Department of Health and
Environment, In the Matter
ure and Certi:
Licensure and Certification
(Jan. Ve 1980) eeeeeeeeeee Al-A20
No. 80-1, Before the Kansas
Department of Health and
Environment, In the Matter
of the Licensure and Certi-
fication of Broadacres
4 e eo chinson,
sas, rming
Secretary's Denial Order for
Licensure and Certification,
(Aug. 25, 1980) eeeeeeeeee A21-A49
No. 80-1, Before the Kansas
Department of Health and
Environment, In the Matter
: Tc chin
Fa a. Conclusions of fae tend
Recommendations (July 17,
1980) e*eeeeeeeeeeeneeeneeeee A25-A49
ii
Page
No. 80-2, Before the Kansas
Department of Health and
RAVESORNERE In The Matter
ure ala Certi
A50-A88
No. 80-2, Before the Kansas
Department of Health and
Environment, In the Matter
of the Licensure and Certi-
Secretary, (Jan. 15,
1980) eeeee ee eee eeeeeeeeee A53-A88
STATE REGULATION:
K.A.R. 28-39-33 (1978) ... A89-Al16
FEDERAL REGULATION:
42 C.F.R. §442.251 (1979). Al17,A118
Al
APPENDIX
BEFORE THE KANSAS DEPARTMENT OF
HEALTH AND ENVIRONMENT
In The Matter Of The Licensure
And Certification Of The
Broadacres Adult Care Home _ 80-1
Of Hutchinson, Kansas
DENIAL ORDER FOR LICENSURE
AND CERTIFICATION
Now on this 7th day of January, 1980,
the Secretary of the Kansas Department of
Health and Environment, Joseph F. Harkins,
considers the application filed on
October 25, 1979, by the operators of the
subject facility for a license to operate
an intermediate care adult care home and
also their application for certification
as meeting Medicaid Regulatory Require-
ments filed on or about October 31, 1979.
A2
The Secretary finds, upon further
examination of his files, that the facil-
ity was inspected, or surveyed, on
November 13 and 14, 1979, for purposes of
licensure and certification; the results
of that inspection were provided to the
administrator of tle facility during a
so-called “exit interview" on November 21,
1979. A report of that inspection has
been submitted to the Secretary's office
and is before the Secretary.
The Secretary finds that the applica-
tion for licensure of the Broadacres
Adult Care Home should be denied for the
reason that the facility is in substantial
failure to comply with the requireiuents,
standards and regulations promulgated by
the Secretary. The Secretary finds that
the applicant is not in substantial com-
pliance with the following state licensure
regulations:
A3
1. K.A.R. 28-39-31 Licensing proce-
dure; (F) Modification of struc-
ture. Letter of approval for
change of physical therapy roon,
clean utility room and soiled
utility room is not on file in
facility.
2. K.A.R. 28-39-33 Administration;
(A) Management. Policies and
procedures are available but do
not always fit this particular
facility and cannot be used as
written.
3. K.A.R. 28-39-33 Same; (C) Person-
nel Policies and Procedures. Some
of the job descriptions need to
be revised to fit this facility.
development. Orientation for all
new employees besides nursing
personnel needs to be done and
7.
.
A4
kept on file.
K.A.R. 28-39-33 Same; (D) Staff
development. Personnel records
need to be kept current as to
placement of employees, orienta-
tion to other areas when employee
changed positions, termination
and employment dates.
K.A.R. 28-39-33 Same; (E) Use of
outside resources and (F) Admis-
sion policy. Mentally retarded
resident is retainei in facility
and appropriate program is not
2 * OV a» ‘*
weA.R. 28-39-33 Same; (K) Devel-
Opment and review of resident
care policies. Resident care
policies have not been reviewed
and revised by the professional
advisory board to fit this fa-
cility. Person responsible in
10.
ll.
AS
writing such policies is not
qualified.
K.A.R. 28-39-33 Same; (J) Resi-
dent rights. Window curtains do
not provide privacy at all times.
K.A.R. 28-39-36 Rehabilitative
services; (B) Provision of ser-
vices. Occupational Therapist's
contract states she will be in
facility two or three hours each
two months--has only provided one
hour every two months.
K.A.R. 28-39-38 Activities ser-
vices; (A) Programming. Activity
Plan and Program needs to be
expanded to meet the needs and
interests of each resident.
K.A.R. 28-39-38 Same; (A) Same;
Activity plan of care is not
developed as a useful tool for
resident care.
A6
12. K.A.R. 28-39-39 Physician ser-
vices; (C) Resident supervision
' Pharmaceutical services (D) Review.
One resident record, checked,
lacked physician's progress note
and one lacked physician's review
of medications every 60 days.
(Corrected on November 21, 1979)
13. K.A.R. 28-39-40 Health services;
(A) Health services supervisor.
Unable to verify that Health Ser-
vice Supervisor is working full
time (time clock not working
properly is part of the problem).
14. K.A.R. 28-39-40 Same; (D) Nursing
home aide qualifications. All
nurse aides are not qualified by
training and copies of certifi-
cates are not always on file to
verify training.
15.
16.
17.
18.
A7
trition and Menu Planning. Tray
identification system needs to be
left on trays (therapeutic), to
insure diet is taken as ordered.
K.A.R. 28-39-41 Same; (B) Same.
Food supplies are not always on
hand to serve diets as ordered.
Equal substitution for caloric
and nutritional content needs to
be made.
K.A.R. 28-39-41 Same; (B) Same.
Standardized recipes need to be
used for number of residents in
the facility.
K.A.R. 28-39-41 Same; (D) Prepa-
ration and service. Ice machine
needs to be repaired or replaced.
Rinse faucet at dishwasher needs
to be repaired or replaced.
Toaster needs to be repaired or
A8
replaced. (Repaired as of
November 21, 1979.)
19. K.A.R. 28-39-41 Same; (D) Same.
Steam table needs to keep hot
food at 140°F.
20. K.A.R. 28-39-42 Pharmaceutical
services. a. Stop order policy
does not specify narcotic stop-
page.
b. Pharmaceutical policies and
procedures need to be revised
to fit facility.
c. All prescription drugs in
facility need to be properly
labeled (insulin is an example).
a. Soiled and illegible labels
need to be returned to pharmacy
for relabeling.
e. Medication cups need to be
kept clean and nondrug room items
need to be stored in clean and
21.
22.
23.
Ag
soiled utility rooms.
f. Emergency drug box needs to
be sealed and dated and handled
in accordance with K.S.A. 65-
1630.
g- Nonsterile disposable supplies
need to be removed fron Greg room
and destroyed.
K.A.R. 28-39-42 Same; (E) Adminis-
tration of medications. Drugs
need to be properly stored. Each
resident's stored separately. Drug
room needs to be kept clean and
free from items to be stored in
utility rooms. .
K.A.R. 28-39-43 Resident record;
(A) Record keeping. Discharge
records are not organized.
K.A.R. 28-39-43 Same; (D) Staffing.
Verification that medical records
Al1O
designee is a full-time employee
is not available.
24. K.A.R. 28-39-44 Infection control
and sanitation; (A) Infection
control committee. Isolation
policies and procedures need to
be revised to fit this facility.
25. K.A.R. 28-39-44 Same; (F) Main-
tenance of equipment and building.
Drinking fountain water pressure
is not adequate and dripping fau-
cet in resident's room needs
repaired.
26. K.A.R. 28-39-44 Same; (B) Aseptic
and isolation technigues. Isola-
tion equipment is not available
according to procedures to carry
out isolation.
The exit interview for the following
deficiencies was held on December 11,
1979.
All
These deficiencies pertain to in-
fection control and sanitation. The
Secretary finds that the applicant is not
in compliance with the additional
following state licensure regulations:
27.
29.
30.
K.A.R. 28-39-44 Infection control
and sanitation; (C) Housekeeping.
Laundry; no exhaust fan in soiled
linen room.
K.A.R. 28-39-44 Same; (F) Mainte-
nance of equipment and building.
Dietary Department; the ice
machine needed to be repaired or
replaced. |
K-A.R. 28-39-44 Same; (F) Same.
Wall joint board in dining room
missing.
K.A.R. 28-39-44 Same; (F) Same.
B-Hall; walls need repairing;
shower needs cleaning. Room 26,
faucet broken.
Al2
The Secretary finds that the appli-
cant should be denied certification for
the reason that the facility is not in
compliance with the following federal
regulations:
1. 42 C.FP.R. 442.251 State Licen-
sure. Facility is not currently
licensed.
2. 42 C.F.R. 442.302 Staffing. All
nurse aides are not qualified by
training and copies of certifi-
cates are not in personnel files.
3. 42 C.F.R. 442.303 and 42 C.F.R.
442.305 Administration and Poli-
¢ies and Procedures. Policies
and procedures need to be revised
to fit actual facility in accor-
dance with K.A.R. 28-39-33(K).
4. 42 C.F.R. 442.306 Written Policy
and Procedure Admission. Mentally
retarded resident is retained in
5.
7.
Al3
facility and appropriate program
is not provided.
42 C.P.R. 442.314(a) Staff Training
Program. Orientation of all new
employees, besides nursing person-
nel, needs to be done and kept on
file. Job descriptions need to be
revised to fit this facility.
42 C.F.R. 442.314(c) Same. Person-
nel records need to be kept cur-
rent as to placement of employees,
orientation to other areas when
employees change position, and
termination and employment dates.
42 C.F.R. 442.315 Health and
Safety Laws. Facility does not
have letter of approval for change
of physical therapy area and
utility (clean and soiled) rooms.
42 C.F.R. 442.317 Arrangements
with Outside Resources. Occupa-
10.
ll.
Al4
tional Therapist's contract
states she will be in the facil-
ity two to three hours each two
months--she has provided only
one hour every two months.
. 42 C.F.R. 442.318 Resident
Records System. Closed records
need to be organized.
42 C.F.R. 442.331(b) Sanitary
Conditions. Ice machine needs
repaired or replaced. Rinse
faucet at dishwasher needs to
be repaired or replaced. Steam
table needs to keep hot food at
140°F.
42 C.F.R. 442.332(a) Menu Plan-
ning and Supervision. Standard-
ized menus need to be used for
number of residents in this fa-
cility.
Tray identification system needs
12.
Al5
to be left on trays to point of
return on therapeutic diets to
insure diets are taken.
42 C.F.R. 442.333 Pharmacist.
Pharmaceutical policies and pro-
cedures need to be revised to
fit facility and implemented.
All prescription drugs in facil-
ity need to be properly labeled.
Soiled and illegible labels need
to be returned to pharmacy for
relabeling.
Medication cups need to be kept
clean and nondrug items need to
be stored in clean and soiled
utility rooms. Emergency drug
box needs to be sealed and dated
and handled in accordance with
K.S.A. 66-1630.
Nonsterile disposable supplies
need to be removed from drug
a eee wee
Alé
room and destroyed.
13. 42 C.F.R. 442.339 Health Service
Supervisor. Documentation does
not show that Health Service
Supervisor is working full time.
14. 42 C.F.R. 442.345(a) Activities
Program. A plan for activity
needs to be expanded to meet the
needs and interests of each
resident.
15. 42 C.F.R. 442.345(c) Same. Activ-
ity Plan has not been developed
into a useful tool for resident
care.
The Secretary further finds that the
subject licensure application should be
denied, in addition to the grounds above
stated, because the applicant has repeat-
edly violated provisions of law or rules
and regulations adopted by the Secretary
pursuant to Article 9 of Chapter 39 of
Al?
the Kansas Statutes Annotated, within the
meaning and scope of K.S.A. 1979 Supp. 39-
93la. The violations which have been
observed in the subject facility are as
follows:
Regulation Dates of
Violated Repeated Violation
1. K.A.R. 28-39-33 September 28, 1978
Administration October 13, 1978
May 24, 1979
July 12, 1979
November 13, 1979
2. K.A.R. 28-39-34 October 13, 1978
Resident Ser- July 12, 1979
vices
3. K.A.R. 28-39-35 September 28, 1978
Diagnostic and October 13, 1978
Dental Services
4. K.A.R. 28-39-36 September 28, 1978
Rehabilitative October 13, 1978
, soaviess May 24, 1979
7.
K.A.R. 28-39-37
Social Services
K.A.R. 28-39-38
Activities Ser-
vices
K.A.R. 28-39-39
Physician Ser-
vices
K.A.R. 28-39-40
Health Services
Als
July 12, 1979
September 28, 1978
October 13, 1978
May 24, 1979
July 12, 1979
November 13, 1979
September 28, 1978
October 13, 1978
May 24, 1979
July 12, 1979
November 13, 1979
May 24, 1979
November 13, 1979
September 28, 1978
May 24, 1979
July 12, 1979
October 13, 1979
November 13, 1979
10.
ll.
AlL9
K.A.R. 28-39-41
Dietetic Ser-
vices
K.A . R. 28-39-42
Pharmaceutical
Services
K.A.R. 28-39-43
Resident Record
: K.A.R. 28-39-44
Infection Con-
trol and Sanita-
tion
K.A.R. 28-39-45
Disaster Pre-
paredness
September 28, 1978
October 13, 1978
May 24, 1979
November 13, 1979
September 28, 1978
October 13, 1978
May 24, 1979
July 12, 1979
November 13, 1979
October 13, 1978
May 24, 1979
July 12, 1979
November 13, 1979
September 28, 1978
May 24, 1979
July 12, 1979
November 13, 1979
September 25, 1978
September 28, 1978
July 12, 1979
A20
It is therefore by the Secretary
ordered that the subject application for
licensure and certification for the
Broadacres Adult Care Home be denied.
IT IS BY THE SECRETARY SO ORDERED.
Dated this 15th day of January,
{s/ Joseph F. Harkins
Joseph F. Harkins, Secretary
Kansas Department of Health
and Environment
(Omitting Certificate of Mailing)
A21
BEFORE THE KANSAS DEPARTMENT OF
HEALTH AND ENVIRONMENT
In The Matter Of The Licensure
And Certification Of
Broadacres Adult Care Home, Case No. 80-1
Hutchinson, Kansas
ORDER AFFIRMING SECRETARY'S DENIAL
ORDER FOR LICENSURE AND CERTIFICATION
On this 25th day of August, 1980, the
Secretary of the Kansas Department of
‘Health and Environment, Joseph F. Harkins,
reviews the report of Hearing Officer
John R. Martin in the above entitled
matter. The Administrative hearing was
held on April 16, 1980, May 8, 1980,
June 2, 24, 1980, on the appeal from the
Secretary's order of denial for licensure
and certification which was issued on
January 7, 1980.
A22
The Secretary has before him the
written findings and recommendation as
well as the amended findings of fact and
conclusions of law and recommendations
that were submitted to him by Hearing
Officer John R. Martin as well as the
exhibits introduced at the administrative
hearing and Mr. Taylor's written comments
on the hearing officer's report. The
secretary hereby approves the amended
findings of fact, conclusions of law and
recommendations submitted by the hearing
officer, which are attached hereto and
made a part of this order. The Secretary
adopts the amended findings of fact, con-
clusions of law and recommendations of
the hearing officer as his own. The Secre-
tary finds ‘that the grounds for the sub-
ject order of denial were and are correct
and therefore, the Secretary finds that
A23
his order of denial should be affirmed
and the appeal of Broadacres Adult Care
Home of Hutchinson, Kansas, be denied.
The Secretary finds that the allegation
of bias against Hearing Officer John R.
Martin is unsubstantiated and without
merit.
It is the Secretary's understanding
that Broadacres Adult Care Home is not
presently being used as an adult care home
and the Secretary is ordering that it shall
not be used as an adult care home until it
has been licensed pursuant to K.S.A. 39-923,
et seq.
Further, the Secretary acknowledges
receipt of the "Facility's Written Comments
To Hearing Officer's Report". The Secre-
tary has reviewed said comments and given
due consideration to them. In determining
whether the facility was in substantial
compliance with statutes and regulations
A24
for adult care homes is not a numerical
determination as to the number of deficien-
cies, but is a discretionary decision for
the Secretary to be made from the serious-
ness of the deficiencies and the effect the
deficiencies have on the overall patient
care.
The applicant shall have 15 days after
receipt of a copy of this order if she so
desires to appeal the Secretary's decision
to District Court.
IT IS THEREFORE BY THE SEC-
RETARY that his order of denial for li-
censure and certification dated January 7,
1980, is hereby affirmed and that this
facility shall not be used as an adult
care facility until after it is properly
licensed.
This order entered and made effec- —
tive this 25th day of August, 1980.
{s/f Joseph F. Harkins
Joseph F. Harkins
A25
BEFORE THE KANSAS DEPARTMENT OF
HEALTH AND ENVIRONMENT
In the Matter of the )
Licensure and Certi- )
fication of the Broadacres ) Case No. 80-1
Adult Care Home of ).
Hutchinson, Kansas )
AMENDED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDATIONS
This matter is before the Hearing
Officer upon an appeal by the Broadacres
Adult Care Home of Hutchinson, Kansas,
from an Order by the Secretary of the
Kansas Department of Health and ®nviron-
ment, dated January 7, 1980, denying its
application for a license to operate an
intermediate care facility and an appli-
cation for certification as meeting
Medicare regulatory requirements.
A26
A hearing has been held upon the
appea’. The facility was represented
by Robert Taylor; the Department, by
Robert Corbett. In the Order of Denial,
the Secretary found that the facility was
not in compliance with a number of regula-
tory requirements.
In deficiency number one, citing
K.A.R. 28-39-31(f), the Department alleges
that the facility lacked a letter of
approval for change of a physical therapy
room, a clean utility room and a soiled
utility room. Mrs. Hanson, who surveyed
the facility, testified that these facili-
ties were located in an unlicensed por-
tion of the building which was formerly
occupied by an apartment provided for the
administrator. She further testified that
if approval had been requested, it might
well have been denied on the ground that
it was too distant from residents’ quarters,
A27_
and lacked proper equipment. The testimony
was undisputed that these changes had not
been approved by the licensing agency, and
it is my recommendation that this deficiency
constitutes substantial noncompliance with
the cited regulation.
The second alleged deficienc’, cited
under K.A.R. 28-39-33(A) alleges that the
policies and procedures are available,
but do not always fit this particular
facility and cannot be used as written.
The referenced regulation requires that
the facility adopt and enforce acceptable
policies and procedures. Mrs. Hanson
cited a number of instances in which either
policies or procedures were inadequate.
She cited a conflicting policy on self-
medication, one portion of which prohib-
ited and another portion of which per-
mitted it. One policy called for double
water soluble bags to be available from
A28
central supply for isolation of linents.
The policy was inappropriate, she testi-
fied, because it was one adapted for a
large hospital, and in addition, was not
being carried out because no such bags
were available. Certain policies were
unacceptably vague, referring, e.g., to
an “appropriate” solution without giving
guidance as to what solutions were to be
used. She testified that there were no
policies and procedures for activity
programs. The housekeeping policy pro-
vided, in one instance, that nurses'
aides on the eleven-to-seven shift would
clean bathrooms - a policy which consti-
tuted a serious breach of infection con-
trol. She testified that pharmaceutical
policies needed to be rev‘sed to fit the
facility, and to be implemented. That
policy provided, in part, for a unit
dosage plan, which was not in use at the
A29
facility. The resident care policy was
inconsistent, she stated, providing on
the one hand that the administrator was
responsible, and elsewhere that the
resident care director was responsible
therefor. The testimony of the Depart-
ment fully supports the finding of a
substantial violation of the referenced
regulation in regard to deficiency number
two.
Regarding deficiency number three,
it is alleged that some job descriptions
needed to be revised to fit the facility,
with specific reference to the Director
of Nurses, Resident Care Coordinator, and
Resident Health Services Director. The
nature of the needed clarification is not
clear from the record, and I cannot find
substantial noncompliance on this point.
In deficiency number four, citing
K.A.R. 28-39-33(D), the Department alleges
A30
that the orientation for all new employees,
besides nursing personnel, needed to be
provided, and records thereof, to be kept
on file. Mrs. Hanson cited eight employees
whose files lacked any record of orientation
in the departments to which they were
assigned. The record supports a finding
of substantial noncompliance on this
deficiency.
The fifth deficiency likewise relates
to K.S.A. 38-39-33(D), citing the failure
of the facility to keep personnel records
current as to the placement of employees,
orientation to other areas when they change
positions, termination and employment dates.
The Department cites instances involving
eight employees whose personnel records
were not kept current. The testimony, in
my judgment, supports a finding of substan-
tial noncompliance on this score.
A3l1
In deficiency number six, the Secre-
tary cited K.A.R. 28-39-33(F), subsection
(2), of which provides that a nursing home
shall admit only those residents whose
nursing care and physical needs can be
provided by the staff and facility. Mrs.
Hanson testified that a mentally retarded
resident was retained in the facility,
and that an appropriate program was not
provided. The facility introduced Exhib-
its 4, 5 and 6, including a psychological
and psychiatric evaluation which indicated
that the resident was provided appropriate
care in the facility. In my judgment, the
evidence on this point does not support a
finding that an appropriate program was
not provided for this resident.
In deficiency number seyen, the fa-
cility is cited for failure to have
resident care policies which were reviewed
A32
and revised by the professional advisory
board to fit this facility, and for
failure to have a qualified person respon-
sible for the administration of such
policies. The referenced regulation,
K.A.R. 28-39-33(K), requires that the
facility appoint in writing, a physician,
registered nurse or medical staff to be
responsible, whereas, in fact, the admini-
strator, who lacked these qualifications,
was identified as the responsible party.
The evidence supports a finding of sub-
stantial noncompliance on this point.
In deficiency number eight, the fa-
cility is cited for window curtains which
did not provide adequate privacy to the
residents. Mrs. Hanson testified that
certain windows had very sheer curtains,
and no blinds, such that, at night,
residents would not be afforded adequate
ptivacy fron the outside. She testified
A33
that in rooms 42 and 43, there were no
curtains at all. The facility denied
having a room 43. Marshall Stauffer, for
the facility, testified that all rooms,
but number 27, had curtains, and it was
being used as a storage room. He testi-
fied that blinds were installed in all
occupied rooms, except rooms one and four.
The facility introduced a number of curtain
fabrics as exhibits, as to some of which
Mrs. Hanson testified that they were not.
hanging in the facility on the date of the
survey. Appellants’ Exhibits 26, 27, 28
and 29 were offered as representative of
the curtains hanging in the facility at
the time. Appellant's Exhibits 25 and 30
were offered as representative of 30 of
the rooms, and 26 through 29 as represen-
tative of four of them. Mrs. Hanson
testified that she did not see all of the
A34
exhibit curtains hanging, that some of
those which were hanging were cotton and
sheers, and were excessively sheer.
Viewing the testimony as a whole, the
exhibit curtains do not conclusively dis-
pute the testimony and judgment of the
surveyor, that those in place at the time
of the survey were excessively sheer.
However, she also testified that the
curtains she saw were unacceptable unless
blinds were installed in the rooms, and
Marshall Stauffer testified that blinds
were installed in all the rooms which
were occupied. Viewing the evidence and
testimony as a whole, I cannot find a
substantial violation on this score.
In deficiency number nine, citing
K.A.R. 28-39-36, the Secretary found that
the occupational therapist was retained
under a contract which called for her
A35
presence at the facility for two to three
hours each two months, but that she pro-
vided services only for one hour every
two months. The referenced regulation,
subsection (B), requires that the “facility
shall maintain a rehabilitative progran,
either directly or through euvengenente
with qualified outside resources." While
the consulting therapist apparently per-
formed fewer hours of service than called
for by her contract, it is not clear that
the services which were provided were, in
fact, adequate to meet the needs of the
residents. Thus, I cannot find a sub-
stantial violation on this question.
The facility is cited under K.A.R.
28- 9-38(A) for failure to maintain an
activity plan and program which meet the
needs and interests of the residents.
Mrs. Hanson testified that at the time
of the survey, there were 16 residents
A36
and one full-time activity director. She
testified, on direct examination, that
there were no activities scheduled for
the days she was there, and that there
were no activity plans for any of the
sixteen residents. She stated that the
only activity available was watching
television, that the color was in
extremely poor adjustment and caused
discomfort to several residents.
The facility introduced a number of
activity care plans prepared by Carol
Stahl. activity director. Mrs. [sic] Stauffer
testified that they had been prepared
prior to the survey, and that he had
assisted Ms. Stahl in their preparation.
Mrs. Hanson testified that she had exten-
sive conversations with Ms. Stahl about
activity plans at the time of the survey,
who told her that she had not developed
activity plans for many residents. She
A37
testified that on the survey dates, there
was some crafts, some exercise, and tele-
vision watching. She stated that resi-
dents complained of having too little to
do. Regarding Appellant's Exhibit 7,
which she could not recall affirmatively
having seen during the survey, she stated
that they were not being carried out.
The testimony of the witnesses for
the Department supports the finding that
the activity program and plans of care on
the date of the survey were not sufficient
to meet the needs and interests of the
residents. Mrs. Hanson testified that
during the exit interview, she advised
the staff that what they had was "good,"
but that there were not enough activities.
In my judgment, the evidence supports a
finding of substantial noncompliance in
the provision and furnishing of an ade-
quate activity program and plan of care.
A38
In deficiency number fifteen, the
“facility is cited for a violation of
K.A.R. 28-39-41(B), that tray identifica-
tion cards were removed from trays at the
steam table. This is a violation of
subsection (E) (19), rather than subsection
(B). However, the facts of the violation
were not substantially disputed, and the
record supports a finding of substantial
noncompliance on this deficiency.
In deficiency number sixteen, the De-
partment alleges that food supplies were
not always on hand to serve diets as
ordered, that equal substitutes of caloric
and nutritional content were not furnished.
One meal was observed during the survey, on
November 13, 1979. At that meal, pickled
carrots were substituted for cole slaw
because there was no cabbage on hand to
prepare cole slaw. This substitution was
not of equal nutritive value. Also, blue
A39
plums were listed on the menu but because
of an inadequate supply, peaches were sub-
stituted.
The question may be raised whether
this demonstrates substantial noncompli-
ance, with the referenced regulation,
K.A.R. 28-39-41(B) (4). Monitoring of
compliance is necessarily based upon
random surveys, which seek to determine
the operation of the facility on a randon,
but representative fashion. mess, in one
meal, food supplies were inadequate to
serve two separate dishes. In my estima-
tion, this demonstrates substantial non-
compliance with the referenced regulation.
In deficiency number seventeen, the
facility is cited for failure to use
standardized recipes appropriate for the
number of residents. K.A.R. 28-39-41 (B)
is cited, whereas subsection (D) (1)
imposes this requirement. Mrs. Hanson
AA40
testified that too much food was being
prepared due to failure to use standard-
ized recipes, resulting in excessive
leftover food, some of which was served
as leftovers. The testimony on this
point was substantially undisputed, and
the record supports a finding of substan-
tial noncompliance on this point.
In deficiency number eighteen, the
facility is cited for violating K.A.R.
28-39-41(D), due to an inoperative ice
machine, a defective rinse faucet at the
dishwashing facility, and a defective
toaster. The toaster was repaired by
November 21, 1979. Subsection (D)(9) re-
quires that “ice shall be available for
meal and room service." Testimony that
the ice machine was inoperative was sub-
stantially undisputed. Mrs. Hanson ex-
pressed concern that transporting ice
into the facility posed a risk of contami-
Adl
nation, and construed the regulation to
require that ice be furnished from equip-
ment in the facility. The regulation
requires that ice be available for meal
and room service, but not expressly that
ice-making facilities be provided. There
is no evidence that ice was not available
as the regulation requires. I can find |
no substantial noncompliance on this
point.
In deficiency number nineteen, the
facility was cited for failure to maintain
hot food in the steam table at 140 degrees
F. Although the facility introduced evi-
dence questioning whether the temperature
measurement was accurate, the facility
failed to discredit the method used b» the
surveyor in measuring the temperature of
the food on the hot table at the time of
the survey. The record supports a finding
of substantial noncompliance on this point.
A42
Regarding deficiency number twenty,
Mrs. Hanson testified that the pharmaceu-
tical policies and procedures were designed
for a unit dose system, which was not being
used by the facility. She testified that
glass medicine cups were stored, unwashed,
in a cabinet, that some medicine was im-
properly labeled, and lacked prescription
numbers or directions for use. She also
testified that some labels were soiled and
illegible; that non-drug items were stored
in the pharmacy room, and that the stop
order did not specify narcotic stoppage.
The facility offered evidence that no
narcotics were being used in the facility
at the time. The record abundantly sup-
ports a finding of substantial noncompli-
ance on this point, for the Department's
testimony regarding these deficiencies was
largely and substantially undisputed.
Likewise, the testimony supports a finding
A43
of substantial noncompliance regarding
deficiency number twenty-one, for it indi-
cated that residents’ medications were not
stored separately, and that nondrug
materials were stored in the drug room.
Regarding deficiency number twenty,
Mrs. Hanson testified that she requested
the resident records for all those resi-
dents who died or were discharged during
3 the preceeding year, and that she found
them in a disorganized and jumbled condi-
tion, in violation of K.A.R. 28-39-43(A),
which requires maintenance of an organized
record system in accordance with accepted
professional standards and practices. The
facility offered certain records to dis-
pute this allegation, but Mrs. Hanson
testified cha« when she inspected them x
the date of the survey, they were not in
the filed and bound condition in which
A44
they were offered at the hearing. The
record supports a f inding of substantial
noncompliance on this score.
Likewise, the record supports a
finding of substantial noncompliance re-
garding deficiency number twenty-three,
which requires that the medical records
designee be a full-time employee. The
testimony indicated that Trudy Stauffer
was identified as the medical records
designee, and that she was not a full-
time employee of the facility.
Regarding deficiency number twenty-
four, the facility is cited under K.A.R.
28-39-44(A) for isolation policies and
procedures which were in need of revision
to fit this facility. Mrs. Hanson stated
that three or four policies had been
borrowed from other facilities, had been
combined in an awkward fashion, and that
A45
they were in need of clarification to
assure that there was a single, clear
policy. The policy regarding cultures
was incomplete, regarding flu was not
workable, and there were no adequate in-
structions regarding cleaning materials,
she testified. The regulation requires
that written policies and procedures for
investigating, controlling and preventing
infection in the facility be adopted, and
necessarily, that they be adequate and
effective. The facility offered Exhibit
‘4s, as infection control policies and
procedures. The deficiencies cited by
Mrs. Hanson were not substantially re-
butted by the facility, and the record
supports a finding of substantial non-
compliance on this score.
In deficiency number twenty-five,
the facility is cited under K.A.R. 29-
A46
39-44(F) for maintaining inadequate
water erescure in a water fountain, and
a dripping faucet in one resident's room.
The existence of these deficiencies are
not substantially disputed. However, it
is not clear that these are other than
routine and incidental conditions of dis-
repair. The record does not support a
finding of substantial noncompliance on
this point.
Deficiencies numbered twenty-seven
through thirty pertain to sanitation and
infection control deficiencies. The fa-
cility was cited for having no exhaust
fan in the soiled laundry room, under
K.A.R. 28-39-44(C), and for the defective
ice machine, a missing well joint board
in the dining room, and an uncleaned
shower, hole in a wall, and broken faucet
ir one resident's room, all under sub-
A4?
section (F). The existence of a defective
ice machine was undisputed, and supports a.
finding of substantial failure to maintain
mechanical equipment in good repair and
operating condition. The testimony indi-
cated that the shower which needed cleaning
showed signs of neglect and inattention,
resulting from more than occasional over-
sight or inadvertence. In my judgment,
the record supports a finding of substan-
tial noncompliance with regard to defi-
ciencies numbered twenty-eight and thirty.
The deficiencies in number twenty-seven
and twenty-nine, while undisputed, do not
appear to be substantial in nature.
The Secretary also found noncompli-
ance in certain respects of a number of
cited federal regulations, sufficient to
support denial of certification. In
large measure, the cited violations
A48
parallel those discussed above. Accord-
ingly, it is unnecessary to recite again
the evidentiary presentations respecting
those violations. The record supports a
finding of substantial noncompliance
respecting deficiencies numbered one,
two, three, five, six, seven, nine, ten,
eleven, twelve, thirteen, fourteen and
fifteen.
In addition, the evidence offered
by the Department supports the findings
of the Secretary respecting repeated
violations of law or rules and regula-
tions adopted by the Secretary respecting
the operation of intermediate care facil-
ities.
Accordingly, and on the basis of the
foregoing, it is my recommendation to the
Secretary that the Order of January 8,
1980 denying the application for licensure
A49
and for certification for the Broadacres
Adult Care Home of Hutchinson, Kansas be
affirmed.
July 17, 1980 /3/ John R. Martin
Date John R. Martin
Hearing Officer
(Omitting Certificate of Service)
ASO
BEFORE THE KANSAS DEPARTMENT OF
HEALTH AND ENVIRONMENT
In The Matter Of The
Licensure and Certi-
fication of the Reno Case No. 80-2
County Adult Care
Home Facility of
Hutchinson, Kansas
ORDER DENYING APPEAL
On this 9th day of May, 1980, the
Secretary of the Kansas Department of
Health and Environment, Joseph F. Harkins,
receives the written report of Hearing
Officer Arthur E. Palmer in this matter.
Hearing Officer Palmer held hearings on
March 10, 11, 12, 19 and 26, 1980, on the
appeal from the Secretary's Order of
Denial which was issued on January 15,
1980.
The Secretary has before him the
AS1
written report of Hearing Officer Palmer
as well as a transcript of the proceeding,
including exhibits. The Secretary hereby
approves the hearing officer's report,
attaches it to this Order as Exhibit A
and incorporates it herein. The Secre-
tary adopts the findings and conclusions
of the hearing officer as his own. The
Secretary finds that the grounds for the
subject Order of Denial were and are cor-
rect except as modified by the hearing
officer's report and therefore, the Secre-
tary finds that his Order of Denial should
be affirmed and the appeal of the Reno
County Adult Care Facility be denied.
The Reno County Adult Care Facility
shall be given fifteen (15) days after
this decision is mailed to comply with
the Secretary's Order as provided in
K.S.A. 1979 Supp. 39-931.
A52
The applicant shall have fifteen (15):
days after receipt of a copy of this Order
to appeal the Secretary's decision to
District Court.
IT IS THEREFORE ORDERED BY THE SECRE-
TARY that the appeal of the Reno County
Adult Care Facility be, and the same is,
hereby denied.
This Order entered and made effective
this 19th day of May, 1980.
/s/ Joseph F. Harkins
Joseph F. Harkins, Secre-
tary
(Omitting Certificate of Mailing)
A53
BEFORE THE KANSAS DEPARTMENT OF
HEALTH AND ENVIRONMENT
In the Matter of the
Licensure and Certi-
fication of the Reno Case No. 80-2
County Adult Care
Home Facility of
Hutchinson, Kansas.
HEARING OFFICER'S REPORT
TO THE SECRETARY
Prel Statement
Following a field survey concluded
November 15, 1979, the Secretary entered
his order on January 15, 1980, denying a
license and certification as an interme-
diate care adult home to the Reno County
Adult Care Home Facility of Hutchinson,
Kansas (hereafter the "Facility"). A
timely notice of appeal was filed by the
Pacility pursuant to K.S.A. 39-931,
AS54
specifying that the Secretary's Order was
arbitrary and capricious, illegal or un-
just because:
(1)
(2)
(3)
(4)
The minimal level of care for
residents required by statute
is provided at the Facility:
The violations of regulations
cited by the Secretary do not
affect the level of care pro-
vided residents;
It was unreasonable to deny the
Facility a license for viola-
tion of regulations when other
facilities similarly situated
are licensed;
The Secretary applies the Rules
and Regulations pertaining to
adult care homes in an arbi-
trary manner and arbitrarily
applies the statutory standard
A55
of substantial compliance
(K.S.A. Supp. 39-931) in
licensing decisions;
(5) The facts do not support the
deficiencies cited;
(6) The repeated violations of the
regulations cited in the Secre-
tary’s Order of January 15, 1980,
are not repeat violations within
the meaning of K.S.A. 39-93la(b)
(1).
(See, Transcript, Vol. I, pp. 13-
19 and the Notice of Appeal.)
The Secretary appointed a hearing
officer on January 31, 1980, and scheduled
the appeal for February 11, 1980. On
motion of the Facility, that hearing was
continued by the Secretary, and at the
Pacility's request, another hearing of-
ficer was appointed on March 4, 1980. At
A56
that time the hearing was rescheduled to
March 10, 1980.
Evidence was heard on this appeal on
March 10, 11, 12, 19 and 26, 1980, result-
ing in approximately 747 pages of tran-
script and the receipt of 23 exhibits and
four files of the Department concerning
other facilities. The parties waived oral
argument. The Facility has submitted a
brief and suggested findings of fact and
conclusions of law within the time therefor
allowed by‘ the Hearing Officer. The De-
partment waived submission of a brief and
suggested findings of fact and conclusions
of law.
The Hearing Officer reviewed the files
of other care homes as requested by the Fa-
cility at the Department on April 30, 1980,
but notes that part of the file for the
Lyndon Care Home was not available for re-
A57
view. Having considered the evidence and
the briefs of the Facility, the Hearing
Officer recommends to the Secretary the
following:
Findings of Fact
l. The Facility is in violation of
K.A.R. 28-39-33, 28-39-34, 28-39-36, and
28-39-38, for the reasons stated by the
’ Secretary in paragraphs numbered 1 through
8 on pages 1 and 2 of his January 15,
1980, Order.
2. The evidence does not support the
alleged violation of K.A.R. 28-39-33
(paragraph 9, page 2, of January 15, 1980,
Order) since the circumstances of the par-
ticular admission did not practically ad-
mit of further preparation for the patient's
(Rosa Baar) admission.
3. The Pacility is in yiolation of
K.A.R. 28-39-40 for not having documenta-
A58
tion of a nurse aide certification on file
for each emplc.ee. The Hearing Officer
credits the testimony of Mrs. Hanson that
no certificate was available for Wilimina
Garwood. (Tr. Vol.’ II, p. 112; Vol. III,
p-. 195).
4. The Pacility is in violation of
K.A.R. 28-39-41(D) (8) and (19) in that
eggs were not served at 140 degrees Fahren-
heit, and the tray identification system
was inadequate. The failure to have muffin
tins does not result in a violation of any
regulation.
5. The Facility is in violation of
K.A.R. 28-39-42 for the reasons stated in
paragraphs 12 and 13 on pages 2-3 of the
Secretary's January 15, 1980, Order.
6. The Facility is in violation of
K.A.R. 28-39-43 for the reasons stated in
paragraphs 14, 15 and 16 on page 3 of the
ASS
Secretary's January 15, 1980, Order.
7. Although an effort was made by
the Facility after the November 15, 1979,
survey to get in more fire drills, at the
time of the survey the Facility's Exhibit
E itself reveals the Facility was in vio-
lation of K.A.R. 28-39-45.
8. The Facility is in violation of
K.A.R. 28-39-41 and 28-39-44 for the rea-
sons stated in paragraphs numbered 1 and
2 on page 3 of the Secretary's January 15,
1980, Order.
9. The laundry facility is con-
structed so that it results in a violation
of K.A.R. 28-39-46(L)(d). This condition
was pointed out to the architect who
designed the Facility by letter from the
Department on September 8, 1970, but is
not mentioned in any other survey in the
record until the November 15, 1979, sur-
vey.
A60
10. The Facility is in violation of
K.A.R. 28-39-48(K) (2) because there was
no sign on the toilets for the handicapped.
il. _ The violations found in the pro-
posed findings of fact numbered 1 through
10, and the evidence introduced, support
a finding, and I so find, that the Facility
was in violation of the cited federal regu-
lations in paragraphs 2 through 19 on
pages 4-6 of the Secretary's Order of
January 15, 1980, except that I do not find
that the failure to have muffin tins vio-
lates 42 C.F.R. 442.332.
12. (a) On pages 6 and 7 of the Sec-
retary's Order of January 15, 1980, is a
compilation which recites that on surveys
from August 30, 1976, through the Novem-
ber 15, 1979, survey, certain regulations
have been cited as violated on more than
one occasion. The regulations cited
A61
usually contain many detailed subprovi-
sions. With a few exceptions in the area
of writing and maintaining adequate poli-
cies and procedures, the particular viola-
tions of the regulations are not based on
the same or similar factual circumstances
and I have wholly discounted those areas
where no violation was found in the Novem-
ber 15, 1979, survey, i.e., paragraphs
numbered 3 and 8 on pages 6-7 of the Sec-
retary's January 15, 1980, Order.
(b) Although not precluded from doing
so, the Facility offered no evidence that
the previous deficiencies cited in prior
surveys were incorrect. I therefore find
that the violations cited did occur except
for the violations cited in the March l,
1979, survey. As to that survey, the only
' violations considered are those found to
exist on appeal listed in the Hearing
A62
Officer's report of October 24, 1979, in
Pindings of Fact numbered 3 through 6.
4c) I find the following regulations
to have been repeatedly violated by the
Pacility:
(i) K.A.R. 28-39-33(A) (1)
(ii) K.A.R. 28-39-33(A) (3)
(iii) K.A.R. 28-39-38(A) (1)
(iv) K.A.R. 28-39-41(D) (8)
(v) K.A.R. 28-39-45 (B)
13. Residents at the Facility are not
in immediate danger to life or health, but
inadequate management programs clearly in-
dicate that the Facility is not prepared
to meet emergencies or untoward develop-
ments should they arise (e.g., Tr. Vol. II,
pp. 53-55).
14. Since during the time of the sur-
vey no emergencies developed, the evidence
does not show actual harm to residents from
A63
the violations found.
15. A review of the files of the Sec-
retary as requested by the Facility and a
review of the FPacility's Exhibit I do not
indicate disparate treatment of the various
facilities since in each the nature of the
deficiencies cited varies and in each the
plan of corrections offered was different,
and in one case the plan even appears to
include building a new facility to correct
structural defects.
Conclusions of Law
1. Except for paragraph 9; the last
sentence of 11, on page 2 of the January 15,
1980, Order; 1 on page 4 of the Order; and
the last sentence of 13 on page 5 of the
Order, the findings of fact made by the
Secretary are supported by the evidence.
2. The lapse of nearly ten years in
remedying the deficiency on the laundry
A64
construction (paragraph 3, page 3, of the
Order) makes reliance upon that deficiency
for any purpose other than to require its
correction unjust. Warburton v. Warkentin,
185 Kan. 468, 345 P.2d 992, Syl. 7. Of
course, the delay in citing this deficiency
does not prevent the Secretary from en-
forcing compliance. See, e.g., 73 C.J.S.,
Public Administrative Bodies, §261l.
3. Although repeated violation of
regulations exist, at least to the extent
I have indicated in Finding of Fact 12
above, I do not recommend that the Secre-
tary in his discretion invoke K.S.A. 1979
Supp., 39-93la. That statute is intended
for situations where a facility by the
same or similar facts has often violated
a particular regulatory prohibition. The
fact that since the regulations contain
many individual prohibitions and thus a
A65
particular numbered regulation may be vio-
lated by several wholly different facts
militates against use of the statute
except in cases where the facility refuses
to correct a specified deficiency. There
is no such refusal here, only an inability
for some reason to meet the requirements
for administration. I have considered,
however, and do recommend that the Secre-
tary consider, the fact that this facility
has been unable to comply with the regula-
tions on administration after repeated
deficiencies in the general area. “The
revocation of a license for repeated vio-
lations of a statute is not improper
merely because the revoking authority has
failed to revoke the licenses of other
licensees for single violations."
53 C.J.S., Licenses, §44, p. 652.
4. The statutory standard for li-
A66
censing is that a license is to be granted
unless the Secretary finds “a substantial
failure to comply with the requirements."
The inverse of substantial failure to con-
ply would seem to be “substantial compli-
ance," which requires compliance in
respect to essential matters necessary
to assure every reasonable objective of
the statute. City of Kansas City v. Board
of County Commissioners, 213 Kan. 777, 785,
518 P.2da 403 (1974). The purposes of the
licensing statutes for adult care homes
are set out in K.S.A. 1979 Supp. 39-924.
Basically, they are to promote safe and
adequate accomodations, care and treatment
of residents. Some of the deficiencies
found at the Facility could never support
a denial of licensure standing on their
own. Examples are the required signs on
handicapped toilets used by visitors,
A67
the failure to have the right piece of
paper showing one employee's licensure,
and having the administrator's home tele-
phone number in the disaster plan. How-
ever, the deficiencies taken as a whole
do show a substantial failure on the part
of the Pacility's administration to comply
with the regulations requiring policies
and procedures to prepare the staff for
untoward events such as disasters or in-
fections, or for the care and activities
of residents.
5. This facility has had over one
year to obtain the type of administration
needed to substantially comply with the
requirements for licensure and its fail-
ure cannot be forever countenanced. While
perfection in compliance with the require-
ments would appear to be a feat not like-
ly to be obtained by any facility, the
A68
Secretary must insist on a better compli-
ance than shown here when an operator has
been denied licensure (See May 3, 1979,
Order, affirmed October 24, 1979) and
reapplies.
6. The licensing statutes grant the
Secretary discretion in determining quali-
fications for a license as indicated by
the “substantial failure to comply" test
. Of K.S.A. 1979 Supp., 39-931. “The power
to exercise an honest discretion includes
the power to make an honest mistake of
judgment and the power of administrative
bodies to decide questions is not confined
to deciding them correctly." 73 C.J.S.,
Public Administrative Bodies, §61. There
is no evidence in this record of arbitrary
or capricious treatment of facilities by
the Secretary, and accepting, arguendo,
the Facility's factual claims, its argu-
A69
ment would reduce to a claim that the Sec-
retary has mistakenly granted a license to
other facilities who do not substantially
comply with the licensing requirements
and should here repeat that error. As in-
dicated above, I do not find that the Sec-
retary has in fact so acted and do not
accept the legal argument following even
if such facts were proved. Compare,
Coggins v. Public Employee Relations Board,
2 Kan.App.2d 416, 581 P.2d 817 (Syl. 3),
and Warburton v. Warkentin, 185 Kan. 468,
477, 345 P.2d 992, where the Court states:
"Certainly an administrative agency,
charged with the protection of the
public interest, is not precluded
from taking appropriate action to
that end because of mistaken action
on its part in the past."
Recommendation
The Hearing Officer recommends that:
1. The Secretary's Order of Janu-
ary 15, 1980, be affirmed as modifie/.
A70
2. The application of the Reno
County Adult Care Facility for licensure
and certification be denied.
Dated at Topeka, Kansas, this 7th
day of May, 1980.
' /s/Arthur E. Palmer
Arthur E. Palmer,
Hearing Officer
A71
BEFORE THE KANSAS DEPARTMENT OF
HEALTH AND ENVIRONMENT
In The Matter Of The
Licensure And Certi-
fication Of The Reno 80-2
County Adult Care
Facility Of
Hutchinson, Kansas
DENIAL ORDER FOR LICENSURE
AND CERTIFICATION
Now on this 15th day of January,
1980, the Secretary of the Kansas Depart-
ment of Health and Environment, Joseph F.
Harkins, considers the application filed
on October 24, 1979 by the operators of
the subject facility for a license to
operate an intermediate care adult care
home and also their application for certi-
fication as meeting Medicaid Regulatory
Requirements filed November 1, 1979.
A772
The Secretary finds, upon further
examination of his files, that the facil-
ity was inspected, or surveyed, on Novem-
ber 15, 1979, for the purposes of licen-
sure and certification; the results of
that inspection were provided to the
administrator of the facility during a
so-called “exit interview" on November 21,
1979. A report of that inspection has
been submitted to the Secretary's office
and is before the Secretary.
The Secretary finds that the applica-
tion for licensure of the Reno County
Adult Care Facility should be denied for
the reason that the facility is in sub-
stantial failure to comply with the require-
ments, standards and regulations promul-
gated by the Secretary. The Secretary
finds that the applicant is not in sub-
stantial compliance with the following
state licensure regulations:
1.
3.
4.
A73
K.A.R. 28-39-33 Administration.
(A) Management. Policies and pro-
cedures need to be revised to fit
this facility and procedures are
needed to govern all areas and
function.
K.A.R. 28-39-33 Same. (A) Man-
agement. Administrator needs
to maintain communication with
nursing staff and other depart-
ments in regard to new admission
so person is on duty to process
admission material when new
residents are admitted.
K.A.R. 28-39-33 Same. (J) Resi-
dent rights. Policies states
that resident can be discharged
for complaining in the facility.
K.A.R. 28-39-33 Same. (K) De-
velopment and review of resident
A7a
care policies. Committee has
reviewed, but has not revised
policies to fit this facility.
K.A.R. 28-39-34 Resident services.
(B) Resident care plan. Total
care plan is not a useful tool
in management of care. All goals
need to be measureable.
K.A.R. 28-39-36 Rehabilitative
‘Services. (A) Plan of care.
No rehabilitation plan of care
available.
K.A.R. 28-39-38 Activities ser-
vices. (A) Programming. The
activity program needs to be ex-
panded to meet the needs of in-
dependent and group activities
for each resident.
K.A.R. 28-39-38 Same. (C) Recre-
ation areas. Recreation equipment
10.
ll.
A75
appropriate for residents needs to
be obtained.
K.A.R. 28-39-39 Physician services.
(B) Medical findings and physi-
cian's orders at time of admission.
Medical information for new resi-
dents needs to be processed imme-
diately upon admission so that care
may be given as ordered.
K.A.R. 28-39-40 Health services.
(D) Nursing home aide qualifica-
tions. Documentation of nurse
aide certification is not kept on
file for each employee.
K.A.R. 28-39-41 Dietetic services.
(D) Preparation and service. Hot
food (eggs) served at 112 degrees
F. Tray identification system is
not legible and is not left on
special diet trays to identify
12.
13.
14.
A76
food consumed. Muffin tins need
to be purchased so that menus can
be followed.
K.A.R. 28-39-42 Pharmaceutical
services. (B) Physician orders.
All legend drugs need to be
under prescription.
K.A.R. 28-39-42 Same. (E) Admini-
stration of medications. Drug
room needs to be kept free of all
personal care items and items that
need to be stored in clean and
soiled utility roon.
Emergency kit needs to be sealed
and dated.
Policies and procedures for emer-
gency drugs need to be followed.
Policies on self administration of
drugs needs to be clarified.
K.A.R. 28-39-43 Resident record.
A7?
(A) Record keeping. Close records
need to be organized according to
policies and procedures.
15. K.A.R. 28-39-43 Same. (B) Content.
Two of records checked lacked past
medical history.
16. K.A.R. 28-39-43 Same. (D) Staffing.
No full-time employee responsible
for medical records.
17. K.A.R. 28-39-45 Disaster prepar-
edness. (B) Fire drills. Fire
drills are not held four times a
year on 11-7 shift and 3-11 shift
is combined with day shift.
The exit interview for the following
deficiencies was held on December 11, 1979.
These deficiencies pertain to infection
control and sanitation. The Secretary
finds that the applicant is not in compli-
ance with the additional following state
licensure regulations:
1.
3.
A70
‘tion. Final rinse temp on dish-
washing machine is 160 degrees.
Must be 170 degrees F.
K.A.R. 28-39-44 Infection control
- and sanitation. (A) Infection
control committee. Policies and
procedures for investigating,
controlling and prevention of in-
fections are not appropriate for
this facility.
K.A.R. 28-39-44 Same. (C) House-
keeping. Must provide functional
separation in laundry.
K.A.R. 28-39-31 Licensing proce-
dure. (B) Renewal of license
and K.A.R. 28-39-48 Construction
requirements. (I) Codes and
standards. Need sign on handi-
capped toilets.
A79
The Secretary finds that the applicant
should be denied certification for the rea-
son that the facility is not in compliance
with the following federal regulations:
1. 42 C.F.R. 442.251 State Licensure.
Pacility has not been licensed
since 3/24/79.
2. 42 C.F.R. 442.302 Staffing. Cer-
tificate for one nurse aide is
not on file.
3. 42 C.F.R. 442.303 (b) Administra-
tor. Communication with staff
members and administration needs
to be improved to implement poli-
cies and procedures and provide
general direction.
4. 42 C.F.R. 442.303 (b) and 442.
305 Written Policies and Proce-
dures and Administrator. Poli-
cies and procedures need to be
7.
ASO
revised to fit this facility and
be in compliance with State and
Federal regulations.
42 C.F.R. 442.305 (a) Written
Policies and Procedures and
Administrator. Policies and pro-
cedures are not available to
govern all areas of service.
42 C.F.R. 442.307 (b) Written
Policies and Procedures - Trans-
fer and Discharge. Five-day
clause for notice for dismissal
is not included in discharge
policy.
42 C.F.R. 442.308 Written Policies
and Procedures and Physical and
Chemical Restraints. Physical and
chemical restraint policy and pro-
cedure did not define the use of
restraints and did not identify
A8l
the professional who may authorize
the application of restraints in
emergencies. Mechanism for moni-
toring and controlling had not
been developed.
42 C.F.R. 442.309 Written Policies
and Procedures. Resident policy
on complaints stated that "Upon
habitual and repeated complaint
from the resident and/or family
the transfer and discharge policy
will be utilized and the resident
will be required to move else-
where."
42 C.F.R. 442.313 Emergencies.
Only three fire drills have been
held during past year on the l1l-
7 shift. 3-11 shift drills need
to be held separately from 7-3
shift. Disaster plans need to be
10.
ll.
12.
13.
A82
updated including administrator's
current telephone number.
42 C.F.R. 442.318 (c) (2) Resident
Record. Two of records reviewed
lacked past medical histories.
42 C.F.R. 442.318 (c) (3) Resident
Record System. The overall plan
of care is not developed as a
useful tool in management of care.
Goals were not measurable.
42 C.F.R. 442.318 (c) (4) Resident
Record System. Follow-up notes
on PRN orders are not always
being done.
42 C.P.R. 442.332 Menu Planning
and Supervision. Eggs were served
at 112 degrees F. Tray identifica-
tion system needs to be legible
and left on tray to point of re-
turn to identify food consumed on
A83
therapeutic diets. Muffin tins
need to be purchased to serve
menus as written.
14. 42 C.F.R. 442-333 (b) Licensed
Pharmacist. Policies and proce-
dures for control of emergency
drugs needs to be followed. All
legend drugs need to be under
prescription. Emergency kit needs
to be sealed and dated. Drug
room needs to be kept free of all
personal care items that should.
be stored in clean and soiled
utility rooms.
15. 42 C.FP.R. 442.336 (a) Medication
Review. All medication reviews
need to be dated.
16. 42 C.F.R. 442.337 (b) Administra-
tion of Medications. Facility
has conflicting policies con-
17.
18.
19.
A84
cerning self administration of
medications.
42 C.F.R. 442.343 (e) Rehabilita-
‘tive Services. Facility did not
have any rehabilitation plans of
care developed for any residents.
Staff member was unaware of re-
sponsibility for this.
42 C.F.R.442.345 (c) Activities
Program. Activity plan for inde-
pendent and group activities is
not developed to meet the needs
and interests of each resident.
Relief is not provided for Acti-
vity Director when she is absent,
so program is not being carried
out.
42 C.F.R 442.345 (d) Activities
Program. Equipment and materials
are not available to carry out an
A85
activity program appropriate for
residents.
The Secretary further finds that the
subject licensure application should be
denied, in addition to the grounds above
stated, because the applicant has repeat-
edly violated provisions of law or rules
and regulations adopted by the Secretary
_ pursuant to Article 9 of Chapter 39 of
the Kansas Statutes Annotated, within the
meaning and scope of K.S.A. 1979 Supp. 39-
93la. The violations which have been
observed in the subject facility are as
follows:
Dates of prbeated
No. Regulation Violated ' Violation
1. KAR 28-39-33 August 30, 1976
Administration May 17, 1977 —
July 10, 1978
March 19, 1979
2.
3.
7.
A86
KAR 28-39-34
Resident services
KAR 28-39-35
Diagnostic &
dental services
KAR 28-39-36
Rehabilitative
services
KAR 28-39-38
Activities services
KAR 28-39-39
Physician services
KAR 28-39-40
Fealth services
November 15, 1979
March 19, 1979
November 15, 1979
July 10, 1978
March 19, 1979
March 19, 1979
November 11, 1979
August 30, 1976
May 4, 1979
May 17, 1979
March 19, 1979
November 15, i979
July 10, 1978
March 19, 1979
November 15, 1979
May 17, 1977
July 10, 1978
March 19, 1979
November 15, 1979
10.
ll.
A87
KAR 28-39-41
Dietetic services
KAR 28-39-42
' Pharmaceutical
services
KAR 28-39-43
Resident records
KAR 28-39-44
Infection control
and sanitation
12. KAR 28-39-45
Disaster
Preparedness
July 10, 1978
March 19, 1979
August 30, 1976
May 17, 1977
March 19, 1979
November 15, 1979
August 30, 1976
May 17, 1977
July 10, 1978
March 19, 1979
November 15, 1979
March 19, 1979
November 15, 1979
July 10, 1978
March 10, 1979
It is therefore by the Secretary
ordered that the subject application for
licensure and certificate for the Reno
County Adult Care Facility be denied.
A88
IT IS BY THE SECRETARY SO ORDERED.
Dated this 15th day of January, 1980.
{s/f Joseph F. Harkins
Joseph F. Harkins, Secre-
tary
(Omitting Certificate of Mailing)
A89
K.A.R. 28-39-33 (1978)
28-39-33. Administration. (A) Manage-
ment.. The licensee or designated person so
functioning shall have full legal authority
and responsibility for the operation of the
intermediate care home and compliance with
licensing requirements.
(1) The licensee, through the admini-
strator, shall adopt and enforce acceptable
policies and procedures relative to:
(a) The health care, safety, social,
psychological, and self-esteem needs of the
resident.
(b) Protection of personal and property
rights of the residents.
(c) The general operation of the facil-
ity.
(2) The licensee shall provide owner-
ship information as follows:
(a) The identity of each person who
A90
has any direct or indirect ownership inter-
est of 10 percent or more in the facility
or who is the owner (in whole or in part)
of any mortgage, deed of trust, note, or
other obligation secured (in whole or in
part) by such facility or any of the prop-
erty or assets of such facility.
(b) In case a facility is organized
as a corporation, of each officer and
director of the corporation.
(c) In case a facility is organized
as a partnership, of each partner.
(ad) Prompt reports of any changes
which would affect the current accuracy
of the information required.
(3) The licensee shall adopt effec-
tive administrative and resident care
policies and procedures governing the
operation of the facility. They shall be
ASI
reviewed and revised in writing as neces-
sary and shall be posted and available on
request to all personnel concerned and to
the general public.
(4) The licensee shall appoint a full-
time licensed administrator who is respon-
sible for the overall management of the
facility including:
(a) Enforcing the policies and proce-
dures relative to the level of health care
and safety of residents and to the protec-
tion of their personal and property rights.
(b) Planning, organizing, and direc-
ting those responsibilities delegated to
him by the licensee.
(c) Maintaining, through meetings and
periodic reports, ongoing liaison with the
licensee, medical and nursing staff, and
other professional and supervisory staff.
(a) Studying and acting upon recommen-
A92
dations made by the advisory committee and
other committees.
(e) Authorizing, in writing, a respon-
sible employee 18 years old or over to act
on his behalf in his absence.
(B) Advisory committee. (1) The facil-
ity shall have an advisory committee con-
sisting of a physician, a nurse, a reli-
gious advisor, and other local citizens who
will give advice and counsel to the admini-
strator on matters of resident and community
interest.
(2) The committee shall meet as often
as necessary but not less than once every
six months. Minutes of each meeting shall
be kept on file in the facility.
(C) Personnel policies and procedures.
(1) The licensee, through the administrator,
is responsible for implementing and main-
taining written personnel policies, proce-
A93.
dures, and job-descriptions that support
sound resident care and personnel prac-
tices.
(2) Personnel records shall be kept
current and available for each employee
and contain information to support place-
ment in the position to which the employee
is assigned.
(3) Written policies for control of
communicable disease are in effect to
ensure that employees with symptoms or
signs of communicable disease or infec-
ted skin lesions are not permitted to
work.
(4) All employees shall have a pre-
euploynent physical examination and sub-
sequent annual physical examination. The
physical examination must be completed
and the report available when the employ-
ee reports for work.
A94
(5) In case of an emergency where
the needed personal care of a resident
would suffer without the immediate en-
ployment of an individual, he may be
temporarily employed, provided a physi-
cai examination is completed within a
ten-day period.
(6) No employee shall be punished or
harrassed by the facility or by its agent
because of the efforts to avail himself
of his rights.
(7) There shall be written policies
that provide for the registration of em-
ployee complaints without threat of dis-
charge or other reprisals.
(8) Report of health examinations
will be filed in the employee's personnel
record. ,
(D) Staff development. (1) There
shall be an ongoing educational program
A95
which is planned and conducted for the
development and improvement of skills of
all the facility's personnel, including
training related to problems and needs
of the aged, ill, and disabled.
(2) Each employee shall receive ap-
propriate orientation to the facility
and its policies and to his position and
duties.
(3) There shall be inservice training
which includes at least prevention and
control of infections, fire prevention and
safety, accident prevention, cofidentiality
of resident information, psycho-social
needs of residents, restorative nursing
techniques, and preservation of resident
dignity, including protection of his pri-
vacy and personal property rights.
(4) Written records shall be main-
tained which indicate the content of and -
A95
attendance at such staff development pro-
grams.
(E) Use of outside resources. (1) If
the facility does not employ a qualified
professional person to render a specific
service to be provided by the facility, it
shall make arrangements to have such a
service provided by an outside resource, a
person or agency that will render direct
service to residents or act as a consul-
tant to the facility.
(2) The responsibilities, functions,
and objectives and the terms of agreement,
including financial arrangements and
charges of each such outside resource,
shall be delineated in writing and signed
by an authorized representative of the
facility and the person or agency provid-
ing the service.
(3) The outside resource, when acting
A97
as a consultant, shall apprise the admini-
strator of recommendations, plans for in-
plementation, and continuing assessment
through dated, signed reports which are
retained by the administrator for follow-
up action and evaluation of performance.
(4) The facility shall not accept or
shall discharge a resident requiring, ac-
cording to attending physician's orders,
the services of an unavailable qualified
consultant.
(F) Admission policy. (1) A nursing
home shall not obtain from or on behalf
of residents any release ‘rom liabilitie.
or duties imposed by the general law or |
these regulations, except as part of for-
mal settlement in litigation.
(2) A nursing home shall admit only
those residents whose nursing care and
physical needs can be provided by the
A98
staff and facility.
(3) All residents admitted shall be
under the care of a physician licensed to
practice in Kansas.
(4) Upon admission or within 48 hours
of admission, referral information must be
made available. Referral form shall include
personal and social data of the resident,
medical history, diagnosis, activities
permitted, and such other information as
to provide a continuum of care for the
resident.
(5) Prior to admission, the prospec-
tive resident or his agent shall be in-
formed in writing about the rates and
charges and the resident's obligations
regarding payment. This information shall
include refund policies.
(6) At the time of admission, the li-
censee shall execute a written agreement
A399
with the resident or his authorized agent
which describes in detail all goods and
services which the resident can expect to
receive and which sets forth any obliga-
tions which the resident has toward the
licensee.
(7) A resident who becomes mentally
disturbed or whose social or medical con-
dition changes after admission and who may
cause injury to himself or others may be
treated in the facility by appropriate
medical management and supervision. If
the resident cannot be managed, immediate
arrangements shall be made by the attending
physician for the transfer of the resident
to an appropriate facility at the earliest
practical time.
(8) As changes occur in the resident's
physical condition which necessitate a
change in care which the facility is not
A100
prepared to give, immediate arrangements
must be made to have the resident trans-
ferred to another appropriate facility
which can care for the resident.
(9) When a resident's condition
changes, it is not necessary to transfer
a resident within or between facilities
when, in the opinion of the attending
physician, such transfer might be harmful
to the physical and mental health of the
resident. The physician must document
accordingly on the resident's record.
(10) Residents with any disease in
the communicable stage shall not be
admitted to the facility.
(11) Residents who, in the opinion of
a qualified physician, are not infectious
and are receiving appropriate anti-tuber-
culosis chemotherapy may be admitted to
the facility.
Al0l
(12) A resident who develops a com-
municable disease after admission shall
be medically isolated from other resi-
dents. If he cannot or should not be
managed in the facility, immediate arrange-
ments shall be made by the attending physi-
cian for the transfer of the resident to an
appropriate facility at the earliest prac-
tical time.
(13) The fact that a resident devel-
ops a communicable disease after admission
shall be reported to the appropriate health
agencies.
(14) When a communicable disease devel-
ops, adequate steps shall be taken to deter-
mine the source and degree of dissemination
of the disease.
(15) The following persons cannot be
admitted as residents:
(a) Children under 16 years of age.
Al02
(b) Any woman who is pregnant or any
woman within three months following preg-
nancy.
(c) Any person having a communicable
disease.
(d) Any person in need of treatment
for alcoholism or drug addiction.
(e) Any person who is a disturbed
mental patient or any person for whom the
continuous use of restraints is necessary
for his protection or the protection of
others.
(G) Residents’ Personal Belongings.
(1) Inventory of personal belongings
should be completed at the time of admis-
sion.
(2) A written account shall be main-
tained on a current basis for each resi-
- dent with written receipts for all person-
al possessions and funds received or
A103
deposited with the facility and for all
expenditures and disbursements made in
behalf of the resident.
(3) No nursing home administrator
shall handle a resident's personal funds
without first being requested to do so in
writing by the resident or his agent.
(H) Discharge Policy. (1) There shall
be a centralized coordinated discharge
plan to ensure that each resident has a
program of needed continuing care both
during his stay and a:iter discharge from
the facility. This plan must be developed
within seven days of admission.
(2) Except in an emergency, a resi-
dent shall not be transferred or discharged
fram the facility without prior notifica-
tion of next of kin or sponsor. Suitable
clinical notes, list of orders, and all
medications as directed by the attending
Al04 7
physician shall accompany the resident if
he is sent to another medical facility.
(I) Notification of Change in Resi-
Gent Status. (1) The facility shall have
written policies and procedures which re-
late to notification of the resident's
attending physician and other responsible
persons in the event of significant change
in the resident's physical, mental, or
emotional status or resident's charges,
billing, and related administrative
matters.
(2) Except in a medical emergency, a
resident shall not be transferred or dis-
charged, nor shall treatment be altered
radically without consultation with the
resident, or if he is incompetent, without
prior notification of next of kin or
sponsor.
(J) Resident rights. (1) The licen-
A105
see of the facility shall establish writ-
ten policies regarding the rights and the
responsibilities of residents and, through
the administrator, is responsible for de-
velopment of an adherence to procedures
implementing such policies.
(2) These policies and procedures
shall be made available to residents, any
guardians, next of kin, sponsoring agen-
cy(ices), or responsible pesaens.
(3) There shall be available to staff,
residents, consumer groups, and interested
public, the policies of the facility, in-
cluding a written outline of its objectives
and a statement of the rights of its resi-
dents. These policies must set forth the
rights of the residents and prohibit mis-
treatment and abuse of the residents.
(4) The staff of the facility shall
be trained and involved in the implementa-
A106
tion of these policies and procedures.
(5) The resident shall be fully in-
formed, as evidenced by the resident's
written acknowledgement prior to or at
the time of admission and during stay, of
these rights and of all rules and regula-
tions governing resident conduct and re-
sponsibilities.
(6) The resident shall be fully in-
formed, prior to or at the time of admis-
sion and during his stay, of services
available in the facility and of related
charges, including any charges for ser-
vices not covered under medicare or medi-
caid programs or not covered by the facil-
ity's basic rate.
(7) The physician shall inform the
resident of his medical condition unless
it is medically contraindicated (as docu-
mented in the medical record) and the
Al07
resident shall be afforded the opportunity
to participate in the planning of his
medical treatment. The resident has the
right to refuse to participate in experi-
mental research.
(8) The resident shall be transferred
or discharged only for medical reasons or
for his welfare or that of other residents
or for nonpayment for his stay. The resi-
dent shall be given advance notice to en-
sure orderly transfer or discharge. Such
actions are documented in the resident's
medical record.
(9) The resident is encouraged and
assisted throughout his period of stay to
exercise his rights as a resident and as
a citizen and to this end may voice
grievances and recommend changes in poli-
cies and services to facility staff and/
or to outside representatives of his
A108
choice, free from restraint, interference,
coercion, discrimination, or reprisal.
(10) The resident may manage his per-
sonal financial affairs.
(11) If the facility accepts the re-
sponsibility for the resident's financial
affairs, the resident must designate the
transfer of responsibility in writing. Fur-
ther, "the facility must give the resident
an accounting of all financial transactions
made on the resident's behalf. This
accounting must be done at least quarterly. ;
(12) The resident shall be free from
mental and physical abuse. The resident
shall also be free from chemical and (ex-
cept in emergencies) physical restraints,
except as. authorized in writing by a physi-
cian for a specified and limited period of
time or when it is necessary to protect
the resident from injury to himself and to
others.
A109
(13) The resident shall be assured
confidential treatment of his personal and
medical records and may approve or refuse
their release to any individual outside
the facility, except in case of his trans-
fer to another health care institution or
as required by law or third-party payment
contract.
(14) The resident shall be treated
with consideration, respect, and full
recognition of his dignity and individu-
ality, including privacy in treatment and
in care for his personal needs. |
(15) The resident shall not be re-
quired to perform services for the facil-
ity that are not included for therapeutic
purposes in his plan of care.
(16) The resident shall be permitted
to associate and communicate privately
with persons of his choice and to send and
A110
receive his personal mail uncpened, unless
medically contraindicated (as documented
by his physician in the medical record).
(17) The resident shall be permitted
to participate in social and religious ac-
tivities.
(18) The resident shall be permitted
to meet with community groups at his dis-
cretion unless medically contraindicated
(as documented by his physician in his
medical record).
(19) The resident shall be permitted
to retain and use his personal clothing and
possessions unless to do so would infringe
upon rights of other residents and unless
medically contraindicated (as documented
by his physician in his medical record).
(20) If married, the resident is as-
sured privacy for visits by his/her spouse.
If both are residents in the facility, they
Alll
are permitted to share «< room unless medi-
cally contraindicated (as documented by
the attending physician in the medical
record).
(21) The aforementioned resident
rights shall be reflected in the facility's
policies and procedures.
(22) The resident shall have the
right to choose his own pharmacy where
goods and services for personal use are
purchased except for prescription medica-
tions when the facility provides a "unit
does" or similar medication distribution
system.
(K) Development and review of resident
care policies. (1) The facility shall have
policies which are developed by the medical
director or the organized medical staff
with the advice of a group of professionali
personnel, including one or more physicians
All2
and registered nurses, in the capacity of
an advisory committee.
(2) The policies shall govern the
supervised nursing care and medical care
or other related services it provides.
(3) The policies, which shall be
available to admitting physicians, spon-
soring agencies, residents, and the public,
shall reflect awareness of and provisions
for meeting the total medical and psycho-
social needs of residents, including admis-
sion, transfer, discharge planning, and
range of services available to residents,
including frequency of physician visits.
(4) These policies shall include pro-
visions to protect residents’ personal and
property rights.
(5) Medical records and minutes of
staff and committee meetings shall reflect
that resident care is being rendered in
Al13
accordance with the written resident care
policies.
(6) The facility shall appoint in
writing a physician, a registered nurse,
or a medical staff to be responsible for
the execution of such policies.
(7) If the responsibility for day-to-
day execution of resident care policies
has been delegated to a registered nurse,
the facility shall make available an advi-
sory physician from whom she or he receives
medical guidance.
(8) These policies shall be reviewed
at least annually.
(9) The policies shall be designed to
ensure that each resident receives treat-
ments, medications, and diets as prescribed
and rehabilitative nursing care as pres-
cribed and as needed.
(10) The policies shall be designed
to assure that the resident receives pro-
All4
per care to prevent decubitus ulcers and
deformities; that the resident is kept
comfortable, clean, well-groomed, and
protected from accident, injury, and in-
fection; and that the resident is en-
couraged, assisted, and trained in self-
care and group activities. f
(L) Power of attorney and guardian-
ship. (1) "Power of attorney” and/or
guardianship shall not be assumed for
any resident by anyone employed by or
having a financial interest in the adult
care home.
(2) When there is apparent incapa-
city of a resident to manage his affairs
and there is no adverse family interest,
the administrator shall notify the family
to initiate guardianship proceedings.
(3) The administrator may initiate
guardianship proceedings on behalf of
the resident if he has no family or if
Al15
there is adverse family interest or if
the family fails to act.
(M) Reports. (1) The administrator
shall submit to the licensing agency, not
later than ten days following the month
covered, a monthly report of residents
and employees. This report shall be sub-
mitted on forms provided by the licensing
agency.
(2) A report of each accident which
involves a resident shall be filed within
24 hours following the occurrence. The
report shall be filed using forms provided
by the licensing agency.
(3) The administrator shall submit
any other reports required by statute or
regulations.
(N) Resident's mail. All incoming
mail shall be promptly delivered to the
resident intact and unopened unless con-
All6
traindicated by the resident's physician
in writing for medical reasons. All out-
going mail dispatched by a resident shall
be promptly mailed.
(0) Emergency telephone. Each facil-
ity shall maintain at least one noncoin
operated telephone accessible to employees
for use in emergencies. The names and
telephone numbers of persons and places
commonly required in emergencies shall be
posted beside the telephone.
(P) Posting of regulations. All cur-
rent regulations under the section enti-
tled HEALTH SERVICES relating to personal
hygiene and the entire section entitled
REHABILITATIVE SERVICES shall be posted
in a conspicuous location in the facility
where they can be observed by both resi-
dents and visitors. (Authorized by K.S.A.
39-932; effective Feb. 15, 1977.)
All7
42 C.F.R. §442.251 (1979)
§442.251 State licensing standards.
(a) Except as provided in paragraph
(b) of this section, an ICF must meet
standards for a State license to provide,
on a regular basis, health-related care
and services to individuals who do not
require hospital or SNF care, but whose
mental or physical condition requires
services-
(1) Above the level of room and
board; and
(2) That can he provided only by an
institution.
(b) An ICFP that formerly met State
licensing standards but does not currently
meet them may continue to receive Medicaid
payments as a qualified provider during a
period specified by the State authority
responsible for licensing the facility if,
Al18
during that period, the ICF takes the steps
needed to again meet the standards.
(c) An ICF operated by a government
agency must meet the licensing standards
that apply to the same type of facility
operated under any other ownership.
(a) In accordance with §431.110 of
this subchapter, an Indian Health Service
ICF must meet State licensing standards
although it need not obtain a license. In
making this determination, the licensing
authority may not take into account an
absence of licensure of any staff member
of the facility.
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