CHAPTER 5. REMEDIES FOR BREACHES; PLANS OF CORRECTION
IC 16-28-5
Chapter 5. Remedies for Breaches; Plans of Correction
IC 16-28-5-1
Classification of rules
Sec. 1. The executive board shall adopt rules under IC 4-22-2 to
classify each rule adopted by the executive board to govern a health
facility under this article into one (1) of the following categories:
(1) An offense, which presents a substantial probability that
death or a life-threatening condition will result.
(2) A deficiency, which presents an immediate or a direct,
serious adverse effect on the health, safety, security, rights, or
welfare of a patient.
(3) A noncompliance, which presents an indirect threat to the
health, safety, security, rights, or welfare of a patient.
(4) A nonconformance, which is any other classified breach not
covered by subdivision (1), (2), or (3).
As added by P.L.2-1993, SEC.11. Amended by P.L.179-1993, SEC.5.
IC 16-28-5-2
Citations
Sec. 2. On a determination by the commissioner that a breach of
this article or a rule adopted under this article has occurred, the
director shall issue a citation under IC 4-21.5-3-6 to the administrator
of the health facility in which the breach occurred. The citation must
state the following:
(1) The nature of the breach.
(2) The classification of the breach.
(3) The corrective actions required of the health facility to
remedy the breach and to protect the patients of the facility.
(4) Any penalty imposed on the facility.
As added by P.L.2-1993, SEC.11.
IC 16-28-5-3
Review of citations
Sec. 3. A person aggrieved by a citation issued under this chapter
may request a review under IC 4-21.5-3-7. If a request for a hearing
is not filed within the fifteen (15) day period, the determination
contained in the citation is final.
As added by P.L.2-1993, SEC.11.
IC 16-28-5-4
Remedies for breaches
Sec. 4. (a) The commissioner shall impose the following remedies
for breaches of this article or a rule adopted under this article:
(1) For an offense, the remedies specified in subsection (b)(1)
through (b)(2). The commissioner may also impose the remedy
specified in subsection (b)(3).
(2) For a deficiency, the remedies specified in subsection (b)(1).
The commissioner may also impose the remedies specified in
subsection (b)(4).
(3) For a breach that is a repeat of the same deficiency within
a fifteen (15) month period, the remedies specified in
subsection (b)(1) through (b)(2). The commissioner may also
impose the remedy specified in subsection (b)(3).
(4) For a noncompliance, the remedies specified in subsection
(b)(5) through (b)(6).
(5) For a breach that is a repeat of the same noncompliance
within a fifteen (15) month period, the remedies specified in
subsection (b)(1). The commissioner may also impose the
remedies specified in subsection (b)(4).
(6) For a nonconformance, the remedies specified in subsection
(b)(5).
(7) For a breach that is a repeat of the same nonconformance
within a fifteen (15) month period, the remedies specified in
subsection (b)(5) through (b)(6).
(b) The remedies for breaches of this article or rules adopted
under this article are as follows:
(1) Issuance of an order for immediate correction of the breach.
(2) Imposition of a fine not to exceed ten thousand dollars
($10,000) or suspension of new admissions to the health facility
for a period not to exceed forty-five (45) days, or both.
(3) Revocation by the director of the health facility's license or
issuance of a probationary license.
(4) Imposition of a fine not to exceed five thousand dollars
($5,000) or suspension of new admissions to the health facility
for a period not to exceed thirty (30) days, or both.
(5) A requirement that the health facility comply with any plan
of correction approved or directed under section 7 of this
chapter.
(6) If the health facility is found to have a pattern of breach, the
commissioner may suspend new admissions to the health
facility for a period not to exceed fifteen (15) days or impose a
fine not to exceed one thousand dollars ($1,000), or both.
(c) If a breach is immediately corrected and the commissioner has
imposed remedies under subsection (b)(2), the commissioner may
waive not more than fifty percent (50%) of the fine imposed and
reduce the number of days for suspension of new admissions by
one-half (1/2).
(d) The commissioner may, with the concurrence of a licensed
physician, impose the following:
(1) For an omission of care or an act that does not fall within a
classification of a rule under this section and that the facility
should reasonably have known would present a substantial
probability that death or a life threatening condition will result,
one (1) or any combination of the remedies specified in
subsection (b)(1) through (b)(3).
(2) For an omission of care or an act that:
(A) does not fall within a classification of a rule under this
section; and
(B) the facility should reasonably have known would result
in an immediate or a direct, serious adverse effect on the
health, safety, security, rights, or welfare of a patient;
the remedies specified in subsection (b)(1) or (b)(4), or both.
As added by P.L.2-1993, SEC.11. Amended by P.L.179-1993, SEC.6.
IC 16-28-5-5
Determination of remedies
Sec. 5. (a) In determining appropriate remedies or waivers under
section 4 of this chapter, the commissioner shall consider the
following:
(1) Whether the breach occurred for reasons outside of the
health facility's control.
(2) Whether the health facility has demonstrated that the health
facility has taken the appropriate steps to reasonably ensure that
the breach will not recur.
(3) The history of breaches by the health facility.
(4) The effect of the breach on the patient.
(b) If the health facility furnishes sufficient relevant financial
information, the commissioner may consider the following in
determining appropriate remedies or waivers under section 5 of this
chapter:
(1) Whether any financial savings or benefit accrued to the
health facility as a result of the breach.
(2) The cost incurred by the health facility in correcting the
breach.
As added by P.L.2-1993, SEC.11. Amended by P.L.179-1993, SEC.7.
IC 16-28-5-6
Correction of breaches; time allowed
Sec. 6. An order for immediate correction under section 4(b)(1)
of this chapter shall state a specific date by which the correction shall
be made. The date shall be set by the commissioner according to the
circumstances of the breach but may not exceed five (5) days from
the time the health facility receives written notification from the
commissioner.
As added by P.L.2-1993, SEC.11.
IC 16-28-5-7
Corrective period
Sec. 7. (a) A plan of correction submitted to the commissioner for
approval and acceptance shall contain a fixed time within which the
correction must be made.
(b) When accepting or directing a corrective period, the
commissioner shall consider the following:
(1) A reasonable amount of time needed by a health facility to
achieve compliance.
(2) The effects of the continuing breach on patients.
(3) Temporary measures that will be taken to protect patients
during the time allowed for correction.
As added by P.L.2-1993, SEC.11. Amended by P.L.179-1993, SEC.8.
IC 16-28-5-8
Plans of correction; actions; notices of rejection; reports of
correction
Sec. 8. (a) A plan of correction may be:
(1) accepted;
(2) modified upon agreement between the commissioner and the
health facility; or
(3) rejected by the commissioner.
(b) If a plan of correction is rejected, the commissioner:
(1) shall send notice of the rejection and the reasons for the
rejection to the health facility; and
(2) may impose a directed plan of correction on the health
facility.
(c) If a breach was corrected before submission and approval of
a plan of correction, the health facility may submit a report of
correction in place of a plan of correction.
As added by P.L.2-1993, SEC.11. Amended by P.L.179-1993, SEC.9.
IC 16-28-5-9
Modification of plans of correction
Sec. 9. (a) A directed plan of correction imposed on a health
facility by the commissioner may also be modified upon agreement
between the commissioner and the health facility.
(b) A petition for modification of an approved plan of correction
must be filed with the commissioner before the expiration of the
correction time period approved by the commissioner. The burden of
proof is on the petitioner to show good cause for not complying
within the approved correction time.
As added by P.L.2-1993, SEC.11. Amended by P.L.179-1993,
SEC.10.
IC 16-28-5-10
Failure to correct breaches; additional penalties
Sec. 10. If:
(1) a breach is not corrected within the time fixed by the order
of correction or is not corrected within the time fixed by the
plan of correction; and
(2) an extension has not been granted under section 9 of this
chapter;
the commissioner may find a new breach that may be subject to the
imposition of additional penalties as the class would warrant.
As added by P.L.2-1993, SEC.11.