What is a nursing home complaint and how does it come before MOAHR?
The Michigan Public Health Code (Code) allows an individual who believes that a nursing home facility may have violated Part 217, Article 17 of the Code, or a rule promulgated thereunder, applying to a nursing home 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.
The Bureau of Survey and Certification (BSC) within the Department of Licensing and Regulatory Affairs (LARA) accepts and processes complaints against various state-licensed and federally certified health facilities, agencies, and programs. BSC will only investigate allegations where a provider may be violating federal certification requirements. State licensing complaints will be referred to the Bureau of Community and Health Systems (BCHS), also within the Department of LARA, for investigation. If a provider is both state-licensed and federally certified, BSC will first investigate any allegation under its federal authority unless the allegation is specific solely to a state regulation requirement.
For investigations pertaining to alleged violations of the Michigan Public Health Code (rather than federal regulations), if the Complainant is dissatisfied with the determination or investigation by BCHS, the Complainant may request a hearing within 30 days of the mailing of the written notice of the review or investigation. MCL 333.21799a(10). A Complainant’s request for hearing is submitted directly to the Bureau.
The Bureau then forwards the request for hearing to the Michigan Office of Administrative Hearings and Rules (MOAHR). Then, a MOAHR 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, Mich Admin Code, R 325.45101 et seq., and hearing procedural rules. See MOAHR Administrative Hearing Rules, Mich Admin Code, R 792.10101, et seq.
What happens at the nursing home investigation hearing?
At the hearing, a Complainant may represent themselves or be represented by an attorney at their own expense. The State Licensed Nursing Home may also be represented by an attorney at its own expense.
The Complainant has the burden of proving by a preponderance of evidence (i.e., that an alleged fact or conclusion is more probable than not) that the Bureau’s determination or investigation was inadequate.
After the parties have had the opportunity to present evidence and argument in support of their positions, the ALJ will prepare a written Proposal for Decision based on the facts and evidence presented.
What are the possible outcomes of the hearing process?
The ALJ’s authority is limited to addressing whether the Bureau adequately investigated the Complainant's allegations and whether the Bureau should reinvestigate the complaint under Sections 20176 and 21799a of the Michigan Public Health Code. While the ALJ can issue a Proposal for Decision recommending that the Bureau be ordered to reinvestigate the complaint against the State Licensed Nursing Home, the ALJ may not impose fines, make determinations about the quality of care provided to a resident, or determine whether paid-for services were provided.
The ALJ’s written Proposal for Decision will include findings of facts, conclusions of law, and a recommendation. The parties may file written Exceptions (objections) to the Proposal for Decision. The Director of the Michigan Department of Licensing and Regulatory Affairs (LARA) or the Director’s designee then enters the final decision at the administrative level. The Director’s decision may be appealed to circuit court within a set timeframe.
