441—81.35(249A) Selection of remedies.
	81.35(1) Categories of remedies. Remedies specified in rule 441—81.34(249A) are grouped into categories and applied to deficiencies according to the severity of noncompliance.
	81.35(2) Application of remedies. After considering the factors specified in rule 441—81.33(249A), if the department of inspections and appeals applies remedies, as provided in paragraphs 81.35(3)“a,”81.35(4)“a,” and 81.35(5)“a,” for facility noncompliance, instead of, or in addition to, termination of the provider agreement, the department of inspections and appeals shall follow the criteria set forth in 81.35(3)“b,”81.35(4)“b,” and 81.35(5)“b,” as applicable.
	81.35(3) Category 1.
	a. 	Category 1 remedies include the following:
	(1)	Directed plan of correction.
	(2)	State monitoring.
	(3)	Directed in-services training.
	b. 	The department of inspections and appeals shall apply one or more of the remedies in Category 1 when there:
	(1)	Are isolated deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy; or
	(2)	Is a pattern of deficiencies that constitutes no actual harm with a potential for more than minimal harm but not immediate jeopardy.
	c. 	Except when the facility is in substantial compliance, the department of inspections and appeals may apply one or more of the remedies in Category 1 to any deficiency.
	81.35(4) Category 2.
	a. 	Category 2 remedies include the following:
	(1)	Denial of payment for new admissions.
	(2)	Civil money penalties of $50 to $3,000 per day.
	b. 	The department of inspections and appeals shall apply one or more of the remedies in Category 2 when there are:
	(1)	Widespread deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy; or
	(2)	One or more deficiencies that constitute actual harm that is not immediate jeopardy.
	c. 	Except when the facility is in substantial compliance, the department of inspections and appeals may apply one or more of the remedies in Category 2 to any deficiency.
	81.35(5) Category 3.
	a. 	Category 3 remedies include the following:
	(1)	Temporary management.
	(2)	Immediate termination.
	(3)	Civil money penalties of $3,050 to $10,000 per day.
	b. 	When there is one or more deficiencies that constitute immediate jeopardy to resident health or safety, one or both of the following remedies shall be applied:
	(1)	Temporary management.
	(2)	Termination of the provider agreement.
In addition the department of inspections and appeals may impose a civil money penalty of $3,050 to $10,000 per day.
	c. 	When there are widespread deficiencies that constitute actual harm that is not immediate jeopardy, the department of inspections and appeals may impose temporary management, in addition to Category 2 remedies.
	81.35(6) Plan of correction.
	a. 	Except as specified in paragraph “b,” each facility that has a deficiency with regard to a requirement for long-term care facilities shall submit a plan of correction for approval by the department of inspections and appeals, regardless of:
	(1)	Which remedies are applied.
	(2)	The seriousness of the deficiencies.
	b. 	When there are only isolated deficiencies that the department of inspections and appeals determines constitute no actual harm with a potential for minimal harm, the facility need not submit a plan of correction.
	81.35(7) Appeal of a determination of noncompliance.
	a. 	A facility may request a hearing on a determination of noncompliance leading to an enforcement remedy. The affected nursing facility, or its legal representative or other authorized official, shall file the request for hearing in writing to the department of inspections and appeals within 60 days from receipt of the notice of the proposed denial, termination, or nonrenewal of participation, or imposition of a civil money penalty or other remedies.
	(1)	A request for a hearing shall be made in writing to the department of inspections and appeals within 60 days from receipt of the notice.
	(2)	Hearings shall be conducted pursuant to department of inspections and appeals rules 481—Chapter 10 and rule 481—50.6(10A), with an administrative law judge appointed as the presiding officer and with the department of inspections and appeals as the final decision maker, with subject matter jurisdiction.
	b. 	A facility may not appeal the choice of remedy, including the factors considered by the department of inspections and appeals in selecting the remedy.
	c. 	A facility may not challenge the level of noncompliance found by the department of inspections and appeals, except that in the case of a civil money penalty, a facility may challenge the level of noncompliance found by the department of inspections and appeals only if a successful challenge on this issue would affect the range of civil money penalty amounts that the department could collect.
	d. 	Except when a civil remedy penalty is imposed, the imposition of a remedy shall not be stayed pending an appeal hearing.