What is a nursing home complaint and how does it come before MAHS?
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, a rule promulgated thereunder, or a federal certification regulation 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.
If a complaint is filed, the Bureau of Community and Health Systems (Bureau) will assist the individual in completing a written complaint. The Bureau will assign a specially trained nursing home investigator to the complaint. After conducting an investigation, the investigator will create a report that will be sent to the Complainant, unless the complaint was anonymous. The Bureau will provide a copy of the report to the nursing home facility without stating the names of the Complainant or resident at issue. If the investigator finds violations of the Code, rules or federal requirements, the Bureau can take further action against the license of the nursing home facility. MCL 333.21799a.
Opportunity for hearing under state law:
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 the Bureau, 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).
If a hearing is requested, it will be sent to the Michigan Administrative Hearing System (MAHS). Then, 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, Mich Admin Code, R 792.10101, et seq.
What happens at the nursing home investigation hearing?
The hearing will be conducted with the Complainant (Petitioner) versus the Nursing Home (Respondent). At the hearing, the Complaintant may be represented by an attorney of his or her own choosing and at their own expense, or the Complaintant may represent him or herself. The Respondent facility may be represented by an attorney of its own choosing and at its own expense. The Attorney General’s office has a right to intervene in the case on behalf of the Bureau. The Bureau may choose to intervene if no one appears on behalf of the Respondent facility.
What are the possible outcomes of the hearing process?
The ALJ must determine whether the Bureau adequately investigated the Complaintant's allegations against Respondent facility, or whether re-investigation should be ordered under Sections 20176 and 21799a of the Michigan Public Health Code. The Complainant has the burden of proving by a preponderance of evidence (more probable than not) that the determination or investigation by the Bureau 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, propose that the Bureau be ordered to conduct a re-investigation. The ALJ cannot impose fines, make decisions about the quality of care received by a resident, or decide whether a resident got what was 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 Department Director then enters the final decision at the administrative level. The Department 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.