135C.38 - INSPECTIONS UPON COMPLAINTS.
135C.38 INSPECTIONS UPON COMPLAINTS.
1. a. Upon receipt of a complaint made in accordance with
section 135C.37, the department or resident advocate committee shall
make a preliminary review of the complaint. Unless the department or
committee concludes that the complaint is intended to harass a
facility or a licensee or is without reasonable basis, the department
or committee shall make or cause to be made an on-site inspection of
the health care facility which is the subject of the complaint within
the time period determined pursuant to the following guidelines,
which period shall commence on the date of receipt of the complaint:
(1) For nursing facilities, an on-site inspection shall be
initiated as follows:
(a) Within two working days for a complaint determined by the
department or committee to be an alleged immediate jeopardy
situation.
(b) Within ten working days for a complaint determined by the
department or committee to be an alleged high-level, nonimmediate
jeopardy situation.
(c) Within forty-five calendar days for a complaint determined by
the department or committee to be an alleged nonimmediate jeopardy
situation, other than a high-level situation.
(2) For all other types of health care facilities, an on-site
inspection shall be initiated as follows:
(a) Within two working days for a complaint determined by the
department or committee to be an alleged immediate jeopardy
situation.
(b) Within twenty working days for a complaint determined by the
department or committee to be an alleged high-level, nonimmediate
jeopardy situation.
(c) Within forty-five calendar days for a complaint determined by
the department or committee to be an alleged nonimmediate jeopardy
situation, other than a high-level situation.
b. The complaint investigation shall include, at a minimum,
an interview with the complainant, the alleged perpetrator, and the
victim of the alleged violation, if the victim is able to
communicate, if the complainant, alleged perpetrator, or victim is
identifiable, and if the complainant, alleged perpetrator, or victim
is available. Additionally, witnesses who have knowledge of facts
related to the complaint shall be interviewed, if identifiable and
available. The names of witnesses may be obtained from the
complainant or the victim. The files of the facility may be reviewed
to ascertain the names of staff persons on duty at the time relevant
to the complaint. The department shall apply a preponderance of the
evidence standard in determining whether or not a complaint is
substantiated. For the purposes of this subsection, "a
preponderance of the evidence standard" means that the evidence,
considered and compared with the evidence opposed to it, produces the
belief in a reasonable mind that the allegations are more likely true
than not true. "A preponderance of the evidence standard" does
not require that the investigator personally witnessed the alleged
violation.
c. The department may refer to the resident advocate
committee of a facility any complaint received by the department
regarding that facility, for initial evaluation and appropriate
action by the committee.
2. a. The complainant shall be promptly informed of the
result of any action taken by the department or committee in the
matter. The complainant shall also be notified of the name, address,
and telephone number of the designated protection and advocacy agency
if the alleged violation involves a facility with one or more
residents with developmental disabilities or mental illness.
b. Upon conclusion of the investigation, the department shall
notify the complainant of the results. The notification shall
include a statement of the factual findings as determined by the
investigator, the statutory or regulatory provisions alleged to have
been violated, and a summary of the reasons for which the complaint
was or was not substantiated.
c. The department shall mail the notification to the
complainant without charge. Upon the request of the complainant, the
department shall mail to the complainant, without charge, a copy of
the most recent final findings regarding compliance with licensing
requirements by the facility against which the complaint was filed.
d. A person who is dissatisfied with any aspect of the
department's handling of the complaint may contact the long- term
care resident's advocate, established pursuant to section 231.42, or
may contact the protection and advocacy agency designated pursuant to
section 135C.2 if the complaint relates to a resident with a
developmental disability or a mental illness.
3. An inspection made pursuant to a complaint filed under section
135C.37 need not be limited to the matter or matters included in the
complaint. However, the inspection shall not be a general inspection
unless the complaint inspection coincides with a scheduled general
inspection or unless in the course of the complaint investigation a
violation is evident to the inspector. Upon arrival at the facility
to be inspected, the inspector shall show identification to the
person in charge of the facility and state that an inspection is to
be made, before beginning the inspection. Upon request of either the
complainant or the department or committee, the complainant or the
complainant's representative or both may be allowed the privilege of
accompanying the inspector during any on-site inspection made
pursuant to this section. The inspector may cancel the privilege at
any time if the inspector determines that the privacy of any resident
of the facility to be inspected would otherwise be violated. The
protection and dignity of the resident shall be given first priority
by the inspector and others.
4. If upon an inspection of a facility by its resident advocate
committee pursuant to this section, the committee advises the
department of any circumstance believed to constitute a violation of
this chapter or of any rule adopted pursuant to it, the committee
shall similarly advise the facility at the same time. If the
facility's licensee or administrator disagrees with the conclusion of
the committee regarding the supposed violation, an informal
conference may be requested and if requested shall be arranged by the
department as provided in section 135C.42 before a citation is
issued. If the department thereafter issues a citation pursuant to
the committee's finding, the facility shall not be entitled to a
second informal conference on the same violation and the citation
shall be considered affirmed. The facility cited may proceed under
section 135C.43 if it so desires. Section History: Early Form
[C77, 79, 81, § 135C.38] Section History: Recent Form
87 Acts, ch 234, § 430; 89 Acts, ch 241, § 4; 91 Acts, ch 107, §
5, 6; 99 Acts, ch 129, §7, 8; 2000 Acts, ch 1180, §2; 2007 Acts, ch
93, §2
Referred to in § 135C.16, 135C.25, 135C.39