CHAPTER 56
FINING AND CITATIONS
[Prior to 7/15/87, Health Department[470] Ch 56]
481—56.1(135C) Authority for citations. Pursuant to the authority vested in the director of the department of inspections and appeals to issue citations and assess penalties for violations of the statutes or departmental rules relating to the health care facilities, the following rules indicate the method by which citations may be issued when a particular statute or departmental rule is violated by a facility.
481—56.2(135C) Classification of violations—classes. There are three classifications for violations of statutes or departmental rules which may result in the issuance of a citation by the director of inspections and appeals and the assessment of a penalty therefor.
	56.2(1) Class I. A class I violation is one which presents an imminent danger or a substantial probability of resultant death or physical harm to the residents of the facility in which the violation occurs. A physical condition or one or more practices in a facility may constitute a class I violation;
	56.2(2) Class II. A class II violation is one that has a direct or immediate relationship to the health, safety, or security of residents of a health care facility, but which presents no imminent danger nor substantial probability of death or physical harm to them. A physical condition or one or more practices within a facility, including either physical abuse of any resident or failure to treat any resident with consideration, respect, and full recognition of the resident’s dignity and individuality, in violation of a specific rule adopted by the department, may constitute a class II violation;
	56.2(3) Class III. A class III violation is one which is not classifiable in the department’s rules nor classifiable under the criteria stated in those rules as a class I or class II violation.
481—56.3(135C) Fines. Citations which are issued by the director of the department of inspections and appeals for violations of the statutes or rules relating to health care facilities will subject the facility to the following penalties.
	56.3(1) Citation for a class I violation. The penalty shall not be less than $2,000 nor more than $10,000. The penalty for a class I violation shall be doubled when the violation is due to an intentional act by the facility in violation of a provision of Iowa Code chapter 135C or a rule adopted pursuant thereto.
	56.3(2) Citation for a class II violation. The penalty shall not be less than $100 nor more than $500. Using the criteria established in paragraph 56.3(2)“a,” the director of the department of inspections and appeals may, upon written request, waive the penalty if the class II violation is corrected within the time specified in the citation. The director shall not waive penalties related to the items listed in subrule 56.3(4).
	a. 	Criteria for waiving the penalty for a class II violation. The director shall consider the following criteria, among others, when deciding whether to grant a waiver of a class II penalty.
	(1)	The past history of the facility within the last 24 months of the violation as it relates to the nature of the violation;
	(2)	The rights of residents to make informed decisions with their doctor(s) and family/legal representative(s); and
	(3)	The financial hardship the fine will cause the facility.
	b. 	Process for requesting a waiver of the penalty for a class II violation.
	(1)	A facility shall submit documentation that supports the waiver request.
	(2)	If the facility has requested a waiver based on financial hardship, the facility must provide proof of the hardship for the individual facility, along with the parent corporation, if any. Supporting documentation shall, at minimum, include the facility’s, and the parent corporation’s, if any, most recent profit and loss statement and balance sheet.
	(3)	Requests for a waiver shall be submitted within ten working days of receipt by the facility of the notice that the violation has been corrected.
	(4)	The department shall make a decision on the waiver request or request additional information, if necessary, within ten working days of receipt of a waiver request and shall notify the facility in writing of the department’s determination by personal service, by electronic mail, or by certified mail. If additional information is requested, such information shall be provided by the facility within five working days. If additional information is necessary, the department shall make a decision on the waiver request within ten working days of receipt of the additional information requested by the department.
	(5)	If the waiver request is granted and the facility has paid the penalty, the facility shall be refunded the amount of the penalty paid that was subject to the approved waiver request.
	c. 	Denial of penalty waiver request for a class II violation. The director’s decision to deny a waiver request is not subject to appeal. The underlying citation or state statement of deficiencies is eligible for appeal.
	56.3(3) Citation for a class III violation. No penalty shall be assessed for a class III violation except as provided in rule 481—56.5(135C).
	56.3(4) Self-identification and correction of a class II or class III violation prior to the on-site inspection. If a facility self-identifies a deficient practice prior to the on-site visit inspection, there has been no complaint filed with the department related to that specific deficient practice, and the facility corrects such practice prior to an inspection, no citation shall be issued or fine assessed for class II or III violations except for those penalties arising pursuant to paragraphs “a” to “f”:
	a. 	Abuse.
	(1)	Rule 481—57.39(135C);
	(2)	Rule 481—58.43(135C);
	(3)	481—subrules 62.23(23) to 62.23(25);
	(4)	Rule 481—63.37(135C);
	(5)	Rule 481—64.33(235B);
	(6)	Rule 481—65.15(135C);
	(7)	481—subrules 65.25(3) to 65.25(5); and
	(8)	42 CFR Section 483.420(d).
	b. 	Personnel histories.
	(1)	Iowa Code section 135C.33;
	(2)	481—subrule 57.12(3);
	(3)	481—subrule 58.11(3);
	(4)	481—subrule 62.9(5);
	(5)	481—subrule 63.11(3);
	(6)	Rule 481—64.34(135C); and
	(7)	481—subrule 65.9(5).
	c. 	Failure to implement physician’s orders as required.
	(1)	481—paragraph 57.12(2)“d”;
	(2)	481—paragraph 58.19(2)“h”;
	(3)	481—paragraph 62.15(1)“a”;
	(4)	481—paragraph 63.11(2)“d”; and
	(5)	42 CFR Section 483.460(c)(4).
	d. 	Failure to notify the physician of any accident, injury, or adverse change in a resident’s condition.
	(1)	481—subrule 57.15(5);
	(2)	481—subrule 58.14(5); and
	(3)	481—paragraph 62.19(2)“c.”
	e. 	Failure to administer all medications as ordered by the resident’s physician.
	(1)	481—paragraph 57.12(2)“d”;
	(2)	481—paragraph 58.19(2)“a”;
	(3)	481—paragraph 63.11(2)“d”;
	(4)	481—subrule 64.4(9); and
	(5)	42 CFR Section 483.460(c)(4).
	f. 	Failure to meet the fire safety rules and regulations promulgated by the state fire marshal.
	(1)	481—paragraph 58.28(1)“a”;
	(2)	481—subrule 62.19(7);
	(3)	481—paragraph 63.23(1)“a”; and
	(4)	42 CFR Section 483.470(j).
	g. 	Process for documenting self-identification. If, during the inspection, an area of concern is identified to the facility that was self-identified and corrected by the facility prior to the inspection, no complaint has been filed, and the violation does not fall in the exemptions listed in 481—paragraphs 56.3(4)“a” to “f,” the facility shall complete a “Self-Identification and Correction Form” and submit it to the inspector(s) prior to the conclusion of the inspection, or to the department within two working days of the exit interview via E-mail, facsimile, or overnight courier. The documentation shall include:
	(1)	The nature of the problem;
	(2)	The date the problem was identified;
	(3)	Who identified the problem, i.e., family, resident, staff, physician, pharmacist;
	(4)	Action steps taken to correct the problem;
	(5)	Date the facility determined correction was completed; and
	(6)	All documentation that substantiates the above information.
	56.3(5) State penalty dismissed if the corresponding federal deficiency or citation is dismissed or removed. Any state penalty, including a fine or citation, issued as a result of a joint state and federal survey and certification process shall be dismissed if the corresponding federal deficiency or citation is dismissed or removed.
	a. 	If the federal deficiency is dismissed or removed during the federal informal dispute resolution process, the department shall remove any corresponding state fine, citation or deficiency within 20 working days of issuance of the decision.
	b. 	If the federal deficiency is dismissed or removed at the conclusion of the federal administrative hearing process, the facility shall submit to the department a copy of the decision, along with a written request for the removal of the corresponding state fine, citation, or deficiency.
	c. 	Any state penalty, including a fine or citation, shall be retained or reinstated if the federal deficiency is retained or reinstated.
	56.3(6) Reduction of fine amount by 35 percent. If a facility has been assessed a penalty, does not request a formal hearing pursuant to Iowa Code section 135C.43 and rule 481—56.17(135C), or withdraws its request for a formal hearing within 30 days of the date that the penalty was assessed, and the penalty is paid within 30 days of receipt of notice or service, the amount of the civil penalty shall be reduced by 35 percent.
[ARC 8433B, IAB 12/30/09, effective 2/3/10; ARC 2158C, IAB 9/30/15, effective 11/4/15]
481—56.4(135C) Time for compliance. Citations which are issued by the director of the department of inspections and appeals for violations of the statutes or rules related to health care facilities shall specify the length of time permitted for the violation to be abated or eliminated, as follows:
	56.4(1) Citation for a class I violation: The violation shall be abated or eliminated immediately, unless the department determines that a stated period of time, specified in the citation, is required to correct the violation;
	56.4(2) Citation for a class II violation: The violation shall be corrected within a stated period of time determined by the department and specified in the citation. The stated period of time specified in the citation may subsequently be modified by the department for good cause shown;
	56.4(3) Citation for a class III violation: The violation shall be corrected within a reasonable time specified by the department in the citation.
481—56.5(135C) Failure to correct a violation within the time specified—penalty. Failure to correct any class of violation within the time specified in the citation, unless the licensee shows that the failure was due to circumstances beyond the licensee’s control, shall subject the facility to a further penalty of $50 for each day that the violation continues after the time specified for correction.
481—56.6(135C) Treble and double fines.
	56.6(1) Treble fines for repeated violations. The director of the department of inspections and appeals shall treble the penalties specified in rule 481—56.3(135C) for any second or subsequent class I or class II violation occurring within any 12-month period, if a citation was issued for the same class I or class II violation occurring within that period and a penalty was assessed therefor.
	56.6(2) Double fines for intentional class I violations. The director of the department of inspections and appeals shall double the penalties specified in subrule 56.3(1) when the violation is due to an intentional act by the facility in violation of a provision of Iowa Code chapter 135C or rule adopted pursuant thereto.
	a. 	For purposes of this subrule, “intentional” means doing an act voluntarily, not by mistake or accident, and doing the act with a specific purpose in mind.
	b. 	The facts and circumstances surrounding the act shall be considered when determining whether the act was done intentionally.
	c. 	It is assumed that a person intends the natural results of the person’s act(s).
[ARC 8433B, IAB 12/30/09, effective 2/3/10]
481—56.7(135C) Notation of classes of violations. All rules relating to health care facilities, other than those which are informational in character, shall be followed by a notation at the end of each rule, or pertinent part thereof. This notation shall consist of a Roman numeral or numerals in parentheses. These Roman numerals refer to the class (either class I, class II, or class III) of violation which may be cited by the commissioner when that rule, or part of a rule carrying the notation is violated by the facility.
481—56.8(135C) Notation for more than one class of violation. In those instances where a particular rule, or part of a rule is followed by a notation consisting of more than one Roman numeral in parentheses, at the discretion of the director of the department of inspections and appeals, the director may issue a citation for a violation of that rule, or part thereof, designating any one of the multiple classes of violations specified in the notation.
481—56.9(135C) Factors determining selection of class of violation. In determining which class of violation will be designated in the citation, where more than one class is specified in the notation following the rule, the director of the department of inspections and appeals shall consider evidence of the circumstances surrounding the violation, including, but not limited to, the following factors:
	56.9(1) The frequency and length of time the violation occurred, i.e., whether the violation was an isolated or a widespread occurrence, practice, or condition;
	56.9(2) The past history of the facility within 24 months of the violation as it relates to the nature of the violation;
	56.9(3) The culpability of the facility as it relates to the reasons the violation occurred;
	56.9(4) The extent of any harm to the residents or the effect on the health, safety, or security of the residents which resulted from the violation;
	56.9(5) The relationship of the violation to any other types of violations which have occurred in the facility;
	56.9(6) The actions of the facility after the occurrence of the violation, including when corrective measures, if any, were implemented and whether the facility notified the director as required;
	56.9(7) The accuracy and extent of records kept by the facility which relate to the violation, and the availability of such records to the department;
	56.9(8) The rights of residents to make informed decisions with their doctor(s) and family/legal representative(s); and
	56.9(9) Whether the facility made a good-faith effort to address a high-risk resident’s specific needs, and whether the evidence substantiates this effort.
481—56.10(135C) Factors determining imposition of citation and fine. The director of the department of inspections and appeals may consider evidence of the circumstances surrounding the violation including, but not limited to, those factors set out in rule 481—56.9(135C) when:
	1.	Determining whether a violation will be subject to a fine or citation; and
	2.	Determining the monetary amount of the penalty to be specified in the citation, when such a fine is authorized to be levied for a particular class of violation.
481—56.11(135C) Class I violation not specified in the rules. The director of the department of inspections and appeals may issue a citation for a class I violation when a physical condition or one or more practices exist in a facility which are not in violation of a specific statute or rule, but which constitute an imminent danger or a substantial probability of resultant death or physical harm to the residents of the facility.
481—56.12(135C) Class I violation as a result of multiple lesser violations. The director of the department of inspections and appeals may issue a citation for a class I violation when a physical condition or one or more practices exist in a facility which are a result of multiple lesser violations of the statutes or rules, but which taken as a whole constitute an imminent danger or a substantial probability of resultant death or physical harm to the residents of the facility.
481—56.13(135C) Form of citations. Each citation issued by the director of the department of inspections and appeals shall contain the following information:
	56.13(1) A description of the nature of the violation;
	56.13(2) A statement of the Code section or subsection or the rule or standard violated. (In the case of class I violations as described in 481—56.11(135C), a statement of the specific physical condition or one or more practices may be made in lieu of this statement.);
	56.13(3) A statement of the classification of the violation, as specified in 481—56.2(135C);
	56.13(4) When appropriate, a statement of the period of time allowed for correction of the violation, which shall in each case be the shortest period of time the department deems feasible; and
	56.13(5) A statement that the fine may be reduced by 35 percent pursuant to Iowa Code section 135C.43A and subrule 56.3(6).
[ARC 8433B, IAB 12/30/09, effective 2/3/10]
481—56.14(135C) Licensee’s response to a citation. Within 20 business days after service of a citation, the facility shall respond in the following manner, according to the type of citation issued.
	56.14(1) If the facility does not desire to seek an informal conference or contest the citation, the facility shall remit to the department of inspections and appeals the amount specified by the department of inspections and appeals in the citation unless:
	a. 	The violation was issued in conjunction with a federal civil money penalty, and the department holds the fine issued pursuant to this chapter in abeyance pursuant to Iowa Code section 249A.57, or
	b. 	The class II violation for which the penalty was imposed has been waived pursuant to subrule 56.3(2).
	56.14(2) For each class II or class III violation, the facility shall send a written response to the department of inspections and appeals, acknowledging that the citation has been received and stating that the violation will be corrected within the specified period of time allowed by the citation.
	56.14(3) If the facility desires to contest a citation for a class I, class II or class III violation, the facility shall notify the department of inspections and appeals in writing that the facility desires to contest such citation and shall do one of the following:
	a. 	Request an informal conference with an independent reviewer pursuant to rule 481—56.15(135C); or
	b. 	Request a contested case hearing in the manner provided by Iowa Code chapter 17A for contested cases.
[ARC 8433B, IAB 12/30/09, effective 2/3/10; ARC 1047C, IAB 10/2/13, effective 1/1/14; ARC 2158C, IAB 9/30/15, effective 11/4/15]
481—56.15(135C) Informal conference. An informal conference will be held concurrently with any informal dispute resolution held pursuant to 42 CFR Section 488.331 for those health care facilities certified under Medicare or the medical assistance program.
	56.15(1) Definition. For purposes of these rules, “independent reviewer” means an attorney licensed in the state of Iowa who is not currently employed by the department, has not been employed by the department in the past eight years, and has not appeared in front of the department on behalf of a health care facility in the past eight years. Preference shall be given to an attorney with background knowledge, experience or training in long-term care.
	56.15(2) Request for informal conference. The request for an informal conference must be in writing, addressed to the compliance officer and include the following:
	a. 	Identification of the citation(s) being disputed;
	b. 	The type of informal conference requested: face-to-face or telephone conference; and
	c. 	A request for surveyor worksheets for the citation(s) being disputed, if desired.
	56.15(3) Submission of documentation. Within the same ten-day period required for submission of a plan of correction pursuant to 481—subrule 50.10(7), the facility shall submit the following:
	a. 	The names of those who will be attending the informal conference, including legal counsel; and
	b. 	Documentation supporting the facility’s position. The facility must highlight or use some other means to identify written information pertinent to the disputed deficiency(ies). Supporting documentation that is not submitted within the required time frame will not be considered, except as otherwise permitted by the independent reviewer upon good cause shown. “Good cause” means substantial or adequate grounds for failing to submit documentation in a timely manner. In determining whether the facility has shown good cause, the independent reviewer shall consider what circumstances kept the facility from submitting the supporting documentation within the required time frame.
	56.15(4) Face-to-face or telephone conference. A face-to-face or telephone conference, if requested, will be scheduled to occur within ten business days of the receipt by the department of the written request, all supporting documentation, and the plan of correction required by 481—subrule 50.10(7).
	a. 	Failure to submit supporting documentation will not delay scheduling.
	b. 	The conference will be scheduled for one hour to allow the facility to informally present information and explanation concerning the contested deficiencies. Due to the confidential nature of the conference, attendance may be limited.
	c. 	If additional information is requested during the informal conference, the facility will have two business days to deliver the additional materials to the department.
	d. 	When extenuating circumstances preclude a face-to-face conference, a telephone conference will be held or the facility may be given one opportunity to reschedule the face-to-face conference.
	56.15(5) Results. The results of the informal conference will generally be sent to the facility within ten business days after the date of the informal conference or, if additional information is requested, within ten business days after the department’s receipt of the additional information.
	a. 	The independent reviewer may affirm or may modify or dismiss the citation. The independent reviewer shall state in writing the specific reasons for the affirmation, modification or dismissal of the citation.
	b. 	The department will issue an amended (changes in factual content) or corrected (correction of typographical/data errors) citation if changes result from the informal conference.
	c. 	The facility must submit to the department a new plan of correction for the amended or corrected citation within ten calendar days from the date of the letter conveying the results of the informal conference.
[ARC 8433B, IAB 12/30/09, effective 2/3/10; ARC 1047C, IAB 10/2/13, effective 1/1/14; ARC 2158C, IAB 9/30/15, effective 11/4/15]
481—56.16(135C) Procedure for facility after informal conference. After the conclusion of an informal conference requested by the licensee and provided pursuant to 56.14(3):
	56.16(1) If the facility does not desire to further contest an affirmed or modified citation for a class I, class II or class III violation, the facility shall, within five business days after the informal conference, or within five business days after receipt of the written decision and explanation of the independent reviewer, whichever occurs later, comply with the provisions of subrule 56.14(1).
	56.16(2) If the facility does desire to further contest an affirmed or modified citation for a class I, class II or class III violation, the facility shall, within five business days after receipt of the written explanation of the independent reviewer, notify the department of inspections and appeals in writing of the facility’s intent to formally contest the citation.
[ARC 8433B, IAB 12/30/09, effective 2/3/10; ARC 1047C, IAB 10/2/13, effective 1/1/14; ARC 2158C, IAB 9/30/15, effective 11/4/15]
481—56.17(135C) Formal contest. The procedures for contested cases, as set out in Iowa Code chapter 17A, and the rules adopted by the department of inspections and appeals shall be followed in all cases where proper notice has been made to the department of inspections and appeals of the intent to formally contest any citation.
These rules are intended to implement Iowa Code chapters 10A and 135C.
[Filed 8/6/76, Notice 4/19/76—published 8/23/76, effective 9/27/76]1
[Filed emergency 7/1/86—published 7/16/86, effective 7/1/86]2
[Filed emergency 9/19/86—published 10/8/86, effective 9/19/86]
[Filed emergency 6/25/87—published 7/15/87, effective 7/1/87]
[Filed 3/14/91, Notice 9/19/90—published 4/3/91, effective 5/8/91]
[Filed 7/11/97, Notice 4/23/97—published 7/30/97, effective 9/3/97]
[Filed 7/24/08, Notice 4/9/08—published 8/13/08, effective 9/17/08]
[Filed ARC 8433B (Notice ARC 8190B, IAB 10/7/09), IAB 12/30/09, effective 2/3/10]
[Filed ARC 1047C (Notice ARC 0922C, IAB 8/7/13), IAB 10/2/13, effective 1/1/14]
[Filed ARC 2158C (Notice ARC 2081C, IAB 8/5/15), IAB 9/30/15, effective 11/4/15]
1	Effective date of Ch 56 delayed by the Administrative Rules Review Committee until 12/6/76, pursuant to Iowa Code section 17A.4 as amended by 66 GA, SF 1288, section 2, to allow further time to study and examine the rules.
2	See IAB Inspections and Appeals Department.