441—81.18 (249A) Sanctions.
	 81.18(1) Penalty for falsification of a resident assessment. An individual, who willfully and knowingly certifies a material and false statement in a resident assessment, is subject to a civil money penalty of not less than $100 or more than $1,000 for each falsified assessment. An individual who willfully and knowingly causes another individual to certify a material and false statement in a resident assessment is subject to a civil money penalty of not less than $500 nor more than $5,000 for each falsified assessment. These fines shall be administratively assessed by the department of inspections and appeals.
	  a.   	 Factors determining the size of fine. In determining the monetary amount of the penalty, the director of the department of inspections and appeals or the director’s designee may consider evidence of the circumstances surrounding the violation, including, but not limited to, the following factors:
	 (1) 	 The number of assessments willingly and knowingly falsified.
	 (2) 	 The history of the individual relative to previous assessment falsifications.
	 (3) 	 The intent of the individual who falsifies an assessment or causes an assessment to be falsified.
	 (4) 	 The areas of assessment falsified or caused to be falsified and the potential for harm to the resident.
	 (5) 	 The relationship of the falsification of assessment to falsification of other records at the time of the visit.
	  b.   	 Notification of a fine imposed for falsification of assessments or causing another individual to falsify an assessment shall be served upon the individual personally or by certified mail.
	  c.   	 Appeals of fines. Notice of intent to formally contest the fine shall be given to the department of inspections and appeals in writing and be postmarked within 20 working days after receipt of the notification of the fine. An administrative hearing will be conducted pursuant to Iowa Code chapter 17A and department of inspections and appeals rules 481—Chapter 10. An individual who has exhausted all administrative remedies and is aggrieved by the final action of the department of inspections and appeals may petition for judicial review in the manner provided by Iowa Code chapter 17A.
	 81.18(2) Use of independent assessors. If the department of inspections and appeals determines that there has been a knowing and willful certification of false assessments, or the causation of knowing and willful false assessments, the department of inspections and appeals may require that resident assessments be conducted and certified by individuals independent of the facility and who are approved by the state.
	  a.   	 Criteria used to determine the need for independent assessors shall include:
	 (1) 	 The involvement of facility management in the falsification of or causing resident assessments to be falsified.
	 (2) 	 The facility’s response to the falsification of or causing resident assessments to be falsified.
	 (3) 	 The method used to prepare facility staff to do resident assessments.
	 (4) 	 The number of individuals involved in the falsification.
	 (5) 	 The number of falsified resident assessments.
	 (6) 	 The extent of harm to residents caused by the falsifications.
	  b.   	 The department of inspections and appeals will specify the length of time that these independent assessments will be conducted and when they will begin. This determination will be based on the extent of assessments and reassessments needed and the plan submitted by the facility to ensure falsifications will not occur in the future.
	  c.   	 The individuals or agency chosen by the facility to conduct the independent assessments shall be approved by the department of inspections and appeals before conducting any assessments. The approval will be based on the ability of the individual or agency to conduct resident assessments in accordance with the applicable rules. Any costs incurred shall be the responsibility of the facility.
	  d.   	 Notice of the requirement to obtain independent assessments will be in writing and sent to the facility by certified mail or personal service. The notice shall include the date independent assessors are to begin assessments, information on how independent assessors are to be approved and the anticipated length of time independent assessors will be needed.
	  e.   	 Criteria for removal of the requirement for independent assessors.
	 (1) 	 Independent assessors shall be utilized until all residents assessed by the disciplines involved have been reassessed by the independent assessor.
	 (2) 	 The facility shall submit a plan to the department of inspections and appeals for completing its own assessments.
	 (3) 	 The department of inspections and appeals will evaluate the facility’s proposal for ensuring assessments will not be falsified in the future.
	  f.   	 Appeal procedures.
	 (1) 	 A written notice to appeal shall be postmarked or personally served to the department of inspections and appeals within five working days after receipt of the notice requiring independent assessors.
	 (2) 	 An evidentiary hearing shall be held pursuant to department of inspections and appeals rules 481—Chapter 10 no later than 15 working days after receipt of the appeal.
	 (3) 	 The written decision shall be rendered no later than ten working days after the hearing.
	 (4) 	 The decision rendered is a proposed decision which may be appealed to the director of the department of inspections and appeals pursuant to department of inspections and appeals rules 481—Chapter 50.
	 (5) 	 A notice of appeal stays the effective date of the requirement for independent assessments pending a final agency decision.
	 (6) 	 Final agency action may be appealed pursuant to Iowa Code chapter 17A.
	 81.18(3) Penalty for notification of time or date of survey. Any individual who notifies, or causes to be notified, a nursing facility of the time or date on which a survey is scheduled to be conducted shall be subject to a fine not to exceed $2,000.
	 81.18(4)  Failure to meet requirements for participation. Rescinded IAB 5/10/95, effective 7/1/95.
This rule is intended to implement Iowa Code section 249A.4.