What is a nursing home complaint and how does it come before MAHS?
The Public Health Code (Code) allows an individual who believes that a nursing home (NH) may have violated a rule developed under the Code or a federal certification regulation to request an investigation of the nursing home. See Public Health Code, 1978 PA 368, as amended, MCL 333.1101 et seq., at Sections 20176 and 21799a.
If a complaint is filed, the Bureau of Community and Health Services (BCHS or Bureau) will assist the individual in completing a written complaint. BCHS will assign a specially trained Nursing Home Investigator (NHI) to the complaint. After conducting an investigation, the NHI will create a report that will be sent to the complainant, unless the complaint was anonymous. The BCHS will provide a copy of the report to the licensee (NH) without the names of the complainant or resident. If the NHI finds violations of the Code, rules or federal requirements, the BCHS can take further action against the NH license. MCL 333.21799a.
If the complainant is dissatisfied with the determination or investigation by the department, the complainant may request a hearing within 30 days of the mailing of the NHI report. MCL 333.21799a(10).
If a hearing is requested, it will be sent to the Michigan Administrative Hearing System (MAHS). A MAHS Administrative Law Judge (ALJ) will be assigned to the matter and hold a hearing under the provisions of the Administrative Procedures Act (APA) of 1969, 1969 PA 306, as amended, being MCL 24.201 et seq., the rules related to Nursing Homes (2014 AACS R 325.22346 - 325.22363) and hearing procedural rules. See MAHS Administrative Hearing Rules, 2015 MR 1, R 792.10101, et seq, eff. Jan 15, 2015.
What happens at the nursing home investigation hearing?
The hearing will be the Complainant (Petitioner) versus the Nursing Home (Respondent). At the hearing, the individual may be represented by an attorney of their choosing and at their own expense, or the individual may represent him or herself. The Nursing Home in question can be represented by an attorney. The Attorney General’s office has a right to intervene in the case on behalf of the BCHS inasmuch as the Bureau has the statutory responsibility to make certain that nursing home complaints are looked into and that an adequate report was generated by a NHI. The BCHS almost always intervenes if no one appears from the nursing facility.
What relief can MAHS provide?
The ALJ must determine whether the Bureau (the NHI) adequately investigated Petitioner’s complaint against Respondent facility, or whether re-investigation should be ordered under Sections 20176 and 21799a of the Code. The Complainant has the burden of proving by a preponderance of evidence (more probable than not) that the action and report of the NHI was inadequate. After all sides have entered the evidence, each side then has an opportunity to provide a statement (closing argument) supporting why the ALJ should, based upon the facts presented, find in favor of their side of the case.
The ALJ can only find that the investigation was adequate or, if it was not, order the Bureau to complete another investigation. The ALJ cannot impose fines, make decisions about the quality of care received by a resident, or decide whether a resident got what they paid for.
After the hearing is completed, the ALJ prepares a Proposal for Decision (PFD) that includes the ALJ’s findings of fact, conclusions of law, and a recommendation. Exceptions to the PFD may be filed. The Division Director then enters the final decision. The Division Director’s decision may be appealed to Circuit Court.
Links - Survey Guidelines
The federal procedural guidelines for nursing home surveys are codified at 42 CFR 488.110.
The federal care guidelines used by nursing home surveyors are codified at 42 CFR 488.115.
The federal State Operations Manual -- Appendix PP -- Guidance to Surveyors for Long Term Care Facilities, (Center for Medicare and Medicaid Services, January 2011), is available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf
The State Operations Manual – Appendix P details the certification and survey process in Michigan.