§ 63-1-1940. Violations declared public nuisance - Injunction - Complaints.

A.  The operation or maintenance of a facility in violation of the Nursing Home Care Act or rules promulgated by the State Board of Health, pursuant thereto, is hereby declared a public nuisance, inimical to the public welfare.

B.  The State Commissioner of Health or the Department of Human Services, in the name of the people of the state, through the Attorney General, or the district attorney of the county in which the facility is located, may, in addition to other remedies herein provided, bring action for an injunction to restrain such violation or to enjoin the future operation or maintenance of any such facility.

C.  1.  Any person with personal knowledge or substantial specific information who believes that the Nursing Home Care Act, a rule promulgated thereto, or a federal certification rule applying to a facility may have been violated may file a complaint.

2.  The complaint may be submitted to the State Department of Health, in writing, by telephone, or personally.  An oral complaint shall be reduced to writing by the Department.

3.  Any person who willfully or recklessly makes a false complaint or a report without a reasonable basis in fact for such a complaint, under the provisions of the Nursing Home Care Act, shall be liable in a civil suit for any actual damages suffered by a facility for any punitive damages set by the court or jury which may be allowed in the discretion of the court or jury when deemed proper by the court or jury.

4.  The substance of the complaint shall be provided to the licensee, owner or administrator no earlier than at the commencement of the on-site inspection of the facility which takes place pursuant to the complaint.

5.  Upon receipt of a complaint pursuant to this subsection, the Department shall determine whether the Nursing Home Care Act, a rule promulgated pursuant thereto, or a federal certification rule for facilities has been or is being violated and whether the Department has jurisdiction over the complaint area.  If the Department does not have jurisdiction over the complaint area, the complaint shall not be investigated by the Department and notice of the decision not to investigate shall be given to the complainant.  The complaint shall be immediately referred to the appropriate agency having jurisdiction over the complaint area.  A report summarizing the complaint investigation shall be made in writing.  The Department shall give priority to investigations of complaints which allege continuing violations or which threaten the health and safety of residents.

6.  In all cases, the Department shall inform the complainant of its findings within ten (10) working days of its determination unless otherwise indicated by the complainant.  The complainant may direct the Department to send a copy of such findings to one other person.  The notice of such findings shall include a copy of the written determination, the remedial action taken, if any, and the state licensure or federal certification, or both, on which the violation is listed.

D.  1.  Upon receipt of a complaint submitted to the State Department of Health by the Department of Human Services or the Attorney General which alleges a violation of the Nursing Home Care Act, any rule promulgated thereto, or federal certification rules, and which also alleges that such violation is a serious threat to the health, safety and welfare of a resident of a nursing facility, the State Department of Health shall take immediate action to remedy the violation based upon the complaint of the Department of Human Services.

2.  The Department of Human Services or the Attorney General as applicable shall be deemed a party pursuant to the Administrative Procedures Act for purposes of any complaint made by the Department of Human Services or the Attorney General as applicable to the State Department of Health for violations of the Nursing Home Care Act, rules promulgated thereto or federal certification rules.

a.              Within thirty (30) days of receipt of a final investigative report submitted by the Department of Human Services or the Attorney General as applicable pursuant to this section, the State Department of Health shall provide the Department of Human Services with a written summary of any action taken pertaining to the complaint including, but not limited to, any inspection or actions which may be taken by the State Department of Health.

b.              Whenever the Department of Human Services or the Attorney General as applicable believes that the conditions giving rise to a complaint alleging a serious threat to the health, safety and welfare of a resident of a nursing facility have not been adequately addressed, the Department of Human Services may request a hearing on the complaint as provided by Section 309 of Title 75 of the Oklahoma Statutes.

E.  A written determination, notice of violation and remedial action taken concerning a complaint shall be available for public inspection at the facility.

F.  The Department shall seek any remedial action provided under  the Nursing Home Care Act for violations documented during complaint investigations.

G.  The State Board of Health shall promulgate rules governing the receipt, investigation and resolution of complaints and reports of violations.  The rules promulgated by the Board shall provide for the expeditious investigation and resolution of a complaint or report including, but not limited to:

1.  An easily understood and readily accessible method of submitting complaints and reports regarding complaints;

2.  Actions to be taken upon the receipt of a complaint or report of a complaint;

3.  Establishing a priority for investigations of complaints.  Specifically, the Department shall give higher priority to investigations of complaints which allege continuing violations or which threaten the health, safety or welfare of residents;

4.  The timely investigation of the complaint or report of a complaint;

5.  Written reports to the complainants or persons filing the complaint report;

6.  Any necessary or appropriate remedial action as determined by the findings of the investigation;

7.  The protection of the identity of the complainant, provided that the person is a current or past resident or resident’s representative or designated guardian or a current or past employee of a facility;

8.  Specific information to be included in investigative protocols which must include at a minimum an interview with:

a.the complainant,

b.the resident, if possible, and

c.any potential witness, collateral resource or affected resident; and

9.  Any additional rules necessary for the timely and thorough investigation and resolution of complaints.

H.  The Department is authorized to employ hearing officers, and hire attorneys to represent the Department and Commissioner to ensure that this and other laws pertaining to the Department are properly executed.

Added by Laws 1980, c. 241, § 40, eff. Oct. 1, 1980.  Amended by Laws 1995, c. 230, § 19, eff. July 1, 1995; Laws 2000, c. 340, § 17, eff. July 1, 2000; Laws 2001, c. 379, § 1, emerg. eff. June 4, 2001.

Note

NOTE:  Laws 2001, c. 393, § 4 repealed by Laws 2002, c. 22, § 34, emerg. eff. March 8, 2002.