[Rev. 1/10/2014 2:05:14 PM]

[NAC-439 Revised Date: 1-14]

CHAPTER 439 - ADMINISTRATION OF PUBLIC HEALTH

PETITION FOR ADOPTION, AMENDMENT OR REPEAL OF REGULATIONS

439.010            Submission of petition to Secretary of State Board of Health.

439.020            Mailing of petition to members of State Board of Health.

439.030            Action on petition by Secretary of State Board of Health.

439.040            Hearing on petition.

DECLARATORY ORDERS AND ADVISORY OPINIONS

439.100            Submission of petition to Secretary of State Board of Health.

439.110            Mailing of petition to members of State Board of Health.

439.120            Action on petition by Secretary of State Board of Health.

439.130            Permanent orders; review of advisory opinions by State Board of Health.

PROCEDURE FOR MEETINGS OF STATE BOARD OF HEALTH

439.150            Agenda; submission of material.

439.160            Incomplete applications.

439.170            Consent calendar.

439.180            Order of testimony for considering matter.

ADMINISTRATIVE HEARINGS BEFORE STATE BOARD OF HEALTH

439.190            Request for administrative hearing; contents of request; scheduling and notice of hearing; procedures at hearing.

439.195            Submission of documentary evidence; continuances.

VARIANCES FROM REGULATIONS

439.200            Eligibility of person to apply; submission of application.

439.210            Application to State Board of Health.

439.220            Public notice of application and date of hearing.

439.230            Procedure at hearing.

439.240            Approval by State Board of Health.

439.250            Written decision by State Board of Health.

439.260            Application to district board of health.

439.270            Appeals.

439.280            Schedule for compliance with regulation.

APPEALS; USE OF HEARING OFFICERS

439.300            Definitions.

439.301            “Appellant” defined.

439.302            “Board” defined.

439.304            “Disciplinary action” defined.

439.305            “Division” defined.

439.307            “Hearing officer” defined.

439.310            Scope; deviation from provisions.

439.320            Construction.

439.330            Severability.

439.340            Office of Board.

439.341            Hearing officers: Appointment; term; assignments; duties.

439.345            Notice of proposed disciplinary action: Duties of Division; contents and service of notice.

439.346            Appeal of proposed disciplinary action: Exhaustion of informal procedures required; filing request for appeal; contents of request.

439.347            Notice of hearing of appeal: Duties of hearing officer; contents of notice.

439.348            Stay of proposed disciplinary action pending appeal; exceptions.

439.350            Representation by attorney: Entry of appearance; service on attorney; withdrawal by attorney.

439.360            Pleadings.

439.370            Motions.

439.375            Hearings: Preliminary procedure; order of proceedings.

439.378            Hearings: Subpoena and examination of witnesses; admission of evidence; continuances; decision of hearing officer; record of proceedings.

439.380            Hearings: Failure of party to appear; stipulations; continuances; official notice.

439.390            Decision by hearing officer.

439.395            Judicial review of decision made by hearing officer.

SERVICES PROVIDED BY NURSES OF THE DIVISION OF PUBLIC AND BEHAVIORAL HEALTH

439.500            Sliding schedule of fees for certain services and supplies not concerning family planning.

SERVICES PERFORMED BY DIVISION OF PUBLIC AND BEHAVIORAL HEALTH IN RESPONDING TO VEHICULAR ACCIDENTS

439.610            Definitions.

439.612            “Cosmetic” defined.

439.614            “Division” defined.

439.616            “Drug” defined.

439.618            “Food” defined.

439.620            “Law enforcement agency” defined.

439.622            Determination of adulteration of or public risk from certain substances: Fee; alleviation of risk.

FEES FOR SERVICES PERFORMED BY ENGINEERS OR ENVIRONMENTAL HEALTH SPECIALISTS

439.650            Fee for collecting sample of water.

MISCELLANEOUS PROVISIONS

439.700            Appointment of deputy attorney general to represent Division of Public and Behavioral Health.

DISABILITY PRESCRIPTION PROGRAM

General Provisions

439.750            Short title.

439.751            Definitions.

439.752            “Applicant” defined.

439.753            “Contractor” defined.

439.754            “Coordination of benefits” defined.

439.755            “Department” defined.

439.756            “Disability” defined.

439.757            “Enrollee” defined.

439.758            “Hearing officer” defined.

439.759            “Household” defined.

439.760            “Household income” defined.

439.761            “Income” defined.

439.762            “Medicare Advantage plan with prescription drug coverage” and “MA-PD” defined.

439.763            “Medicare Part D” defined.

439.764            “Open enrollment” defined.

439.765            “Prescription drug plan” and “PDP” defined.

439.766            “Subsidy” defined.

439.767            “Traditional Disability Prescription Program” defined.

Application and Eligibility

439.768            Eligibility for traditional benefits.

439.769            Eligibility for coordination of benefits.

439.770            Request for information.

439.771            Requirements for application; request for waiver of eligibility requirement regarding household income.

439.772            Notice of approval or denial of application; notice of name of new enrollee.

439.773            Order of priority if there is insufficient money available; qualifying hardship; granting of subsidy to applicant on waiting list if sufficient money becomes available.

439.774            Calculation of household income; eligibility for subsidy if maximum household income exceeded.

439.775            Information and documentation: Cooperation with Department; updating.

439.776            Continuing eligibility; annual review.

439.777            Discontinuation of subsidy to enrollee: Request by enrollee; ineligibility of enrollee; granting of subsidy to applicant on waiting list if enrollee determined ineligible.

439.778            Notice to enrollee of determination regarding ineligibility.

Hearings

439.779            Request for hearing; scheduling of hearing.

439.780            Continuation of benefits pending outcome of hearing.

439.781            Denial of request for hearing; request for dismissal.

439.782            Testimony under oath.

439.783            Conducting hearing in person; representation; evidence.

439.784            Conducting hearing by telephone.

439.785            Retention of record.

439.786            Official recording of hearing; request for copy.

439.787            Decision of hearing officer.

439.788            Duties of Department if decision of Department is overturned by hearing officer.

Miscellaneous Provisions

439.789            Recoupment of subsidy paid in error; request by enrollee for waiver or reduction of amount required to be returned.

439.790            Confidentiality of records.

SENIOR PRESCRIPTION PROGRAM

General Provisions

439.800            Short title.

439.802            Definitions.

439.804            “Applicant” defined.

439.806            “Contractor” defined.

439.807            “Coordination of benefits” defined.

439.808            “Department” defined.

439.810            “Enrollee” defined.

439.812            “Hearing officer” defined.

439.813            “Household” defined.

439.814            “Household income” defined.

439.816            “Income” defined.

439.817            “Medicare Advantage plan with prescription drug coverage” and “MA-PD” defined.

439.8175          “Medicare Part D” defined.

439.818            “Open enrollment” defined.

439.819            “Prescription drug plan” and “PDP” defined.

439.820            “Senior citizen” defined.

439.822            “Subsidy” defined.

439.8225          “Traditional Senior Prescription Program” defined.

Application and Eligibility

439.823            Eligibility for traditional benefits.

439.8235          Eligibility for coordination of benefits.

439.824            Request for information.

439.826            Requirements for application; open enrollment; request for waiver of eligibility requirement regarding household income.

439.828            Notice of approval or denial of application; notice of name of new enrollee.

439.830            Order of priority if there is insufficient money available; qualifying hardship; granting of subsidy to applicant on waiting list if sufficient money becomes available.

439.831            Calculation of household income; eligibility for subsidy if maximum household income exceeded.

439.834            Information and documentation: Cooperation with Department; updating.

439.836            Continuing eligibility; annual review.

439.838            Discontinuation of subsidy to enrollee: Request by enrollee; ineligibility of enrollee; granting of subsidy to applicant on waiting list if enrollee determined ineligible.

439.840            Notice to enrollee of determination regarding ineligibility.

Hearing

439.842            Request for hearing; scheduling of hearing.

439.843            Continuation of benefits pending outcome of hearing.

439.844            Denial of request for hearing; request for dismissal.

439.846            Testimony under oath.

439.848            Conducting hearing in person; representation; evidence.

439.850            Conducting hearing by telephone.

439.852            Retention of record.

439.854            Official recording of hearing; request for copy.

439.856            Decision of hearing officer.

439.858            Duties of Department if decision of Department is overturned by hearing officer.

Miscellaneous Provisions

439.860            Recoupment of subsidy paid in error; request by enrollee for waiver or reduction of amount required to be returned.

439.862            Confidentiality of records.

IMMUNIZATION INFORMATION SYSTEM

439.870            Definitions.

439.873            “Department” defined.

439.875            “Division” defined.

439.877            “Provider” defined.

439.880            “System” defined.

439.883            Notice to parent or guardian by provider regarding System; contents; notice to provider to opt out of System.

439.885            Notice to adult by provider regarding System; contents; notice to provider by adult to opt out of System.

439.887            Inclusion of records in System for immunizations administered before July 1, 2009; requests for removal of records from System.

439.890            Reporting of information concerning immunizations administered to children; contents and form.

439.893            Reporting of information concerning immunizations administered to adult; contents and form.

439.895            Confidentiality and access.

439.897            Official certificate of immunization.

HEALTH AND SAFETY OF PATIENTS AT CERTAIN MEDICAL FACILITIES

439.900            Definitions.

439.902            “Division” defined.

439.903            “Facility-acquired infection” defined.

439.904            “Medical facility” defined.

439.905            “National Healthcare Safety Network” defined.

439.906            “Patient” defined.

439.908            “Patient safety officer” defined.

439.909            “Physician” defined.

439.910            “Provider of health care” defined.

439.912            “Sentinel event” defined.

439.915            Mandatory reports of sentinel events: Submission; form and contents.

439.916            Reporting of sentinel event by a medical facility receiving a patient who was transferred or discharged from another medical facility.

439.917            Mandatory investigation of sentinel event by medical facility; plan to remedy causes or contributing factors; confidentiality.

439.920            Patient safety committee: Establishment; composition; meetings.

439.925            Participation in National Healthcare Safety Network: Calculation of average patients per business day.

439.930            Participation in National Healthcare Safety Network: Duties of medical facility; duties of facility administrator.

439.935            Participation in National Healthcare Safety Network: Data to be submitted by each type of medical facility.

439.940            Participation in National Healthcare Safety Network: Annual report of aggregated data; confidentiality; audits.

439.945            Participation in National Healthcare Safety Network: Statement certifying data relating to facility-acquired infections.

 

 

PETITION FOR ADOPTION, AMENDMENT OR REPEAL OF REGULATIONS

      NAC 439.010  Submission of petition to Secretary of State Board of Health. (NRS 439.200)  Any interested persons who desire the adoption, filing, amendment or repeal of any regulation of the State Board of Health may petition the Board by a signed letter to the Secretary of the Board, accompanied by relevant data, views and arguments. Eight copies must be presented.

     [Bd. of Health, Admin. Procedure Reg. § 1, eff. 10-24-65; A and renumbered as § 1.0, 7-17-80]—(NAC A by R010-06, 5-4-2006)

      NAC 439.020  Mailing of petition to members of State Board of Health. (NRS 439.200)  The Secretary of the State Board of Health shall mail to each member of the Board a copy of the petition and accompanying material within 15 days after its receipt.

     [Bd. of Health, Admin. Procedure Reg. § 2, eff. 10-24-65; A and renumbered as § 2.0, 7-17-80]—(NAC A by R010-06, 5-4-2006)

      NAC 439.030  Action on petition by Secretary of State Board of Health. (NRS 439.200)

     1.  The Secretary of the State Board of Health shall, within 45 days after receipt of the letter submitted pursuant to NAC 439.010, either deny the petition in writing, stating the reasons, or initiate the procedure for the adoption, amendment or repeal of regulations.

     2.  If the petition is denied, a copy of the letter of denial must be sent to each member of the Board.

     [Bd. of Health, Admin. Procedure Reg. § 3, eff. 10-24-65; A and renumbered as § 3.0, 7-17-80; § 4, eff. 10-24-65; A and renumbered as § 4.0, 7-17-80]—(NAC A by R010-06, 5-4-2006)

      NAC 439.040  Hearing on petition. (NRS 439.190, 439.200)

     1.  If procedures for the adoption, amendment or repeal of a regulation are initiated, the Secretary of the State Board of Health shall schedule a hearing on the regulation embodying the proposal.

     2.  Notice must be given and the hearing held in accordance with NRS 233B.060.

     3.  Following the hearing, the State Board of Health may or may not adopt the regulation.

     [Bd. of Health, Admin. Procedure Reg. § 5, eff. 10-24-65; A and renumbered as § 5.0, 7-17-80; § 6, eff. 10-24-65; A and renumbered as § 6.0, 7-17-80]—(NAC A by R010-06, 5-4-2006)

DECLARATORY ORDERS AND ADVISORY OPINIONS

      NAC 439.100  Submission of petition to Secretary of State Board of Health. (NRS 439.200)

     1.  Any person with a direct and tangible interest in the applicability of any statutory provision, regulation of the State Board of Health or decision of the Division of Public and Behavioral Health of the Department of Health and Human Services who desires a declaratory order or advisory opinion as to that applicability may petition for the order or opinion by letter to the Secretary of the Board.

     2.  Eight copies of the letter must be submitted.

     [Bd. of Health, Declaratory Orders and Advisory Opinions Reg. § 1, eff. 10-24-65; A and renumbered as §§ 1 & 1.1, 7-17-80]—(NAC A by R010-06, 5-4-2006)

      NAC 439.110  Mailing of petition to members of State Board of Health. (NRS 439.200)  The Secretary of the State Board of Health shall mail to each member of the Board a copy of the letter submitted pursuant to NAC 439.100 within 15 days after its receipt.

     [Bd. of Health, Declaratory Orders and Advisory Opinions Reg. § 2, eff. 10-24-65; A and renumbered as § 2.0, 7-17-80]—(NAC A by R010-06, 5-4-2006)

      NAC 439.120  Action on petition by Secretary of State Board of Health. (NRS 439.200)

     1.  The Secretary of the State Board of Health shall, within 45 days after receipt of the letter submitted pursuant to NAC 439.100, issue a temporary declaratory order or an advisory opinion and mail it to the petitioner.

     2.  A copy of each order or opinion must be mailed to each member of the Board.

     [Bd. of Health, Declaratory Orders and Advisory Opinions Reg. § 3, eff. 10-24-65; A and renumbered as §§ 3.0 & 3.1, 7-17-80]—(NAC A by R010-06, 5-4-2006)

      NAC 439.130  Permanent orders; review of advisory opinions by State Board of Health. (NRS 439.200)

     1.  All temporary declaratory orders become permanent at the next regular or special meeting of the State Board of Health unless modified or reversed by the Board.

     2.  All advisory opinions will be reviewed by the Board at its next regular or special meeting.

     [Bd. of Health, Declaratory Orders and Advisory Opinions Reg. § 4, eff. 10-24-65; A and renumbered as § 4.0, eff. 7-17-80; § 5, eff. 10-24-65; A and renumbered as § 5.0, 7-17-80]—(NAC A by R010-06, 5-4-2006)

PROCEDURE FOR MEETINGS OF STATE BOARD OF HEALTH

      NAC 439.150  Agenda; submission of material. (NRS 439.200)

     1.  The Secretary of the State Board of Health shall mail to each member of the Board, at least 10 days before a scheduled meeting of the Board, a copy of the agenda for that meeting, with any supporting documents.

     2.  Information or material relating to an item on the agenda which is received by the Secretary of the Board after the agenda is mailed must be presented to the Board at the meeting. The Secretary shall notify the person who submits the information or material that it will be so presented.

     3.  Consideration of any material submitted to the Secretary after the agenda is mailed may be continued by the Board to the next meeting.

     (Added to NAC by Bd. of Health, eff. 5-5-86)

      NAC 439.160  Incomplete applications. (NRS 439.200)  The Secretary of the State Board of Health shall return to the applicant any incomplete application submitted to the Board with:

     1.  An explanation of the deficiencies in the application;

     2.  A request that a complete application be resubmitted;

     3.  A statement notifying the applicant that any information received by the Secretary later than 15 days before a scheduled meeting of the Board may be presented to the Board at that meeting but consideration of the matter may be continued by the Board to its next meeting; and

     4.  A statement that the Division of Public and Behavioral Health of the Department of Health and Human Services recommends the continuance of consideration of an incomplete application.

     (Added to NAC by Bd. of Health, eff. 5-5-86; A by R010-06, 5-4-2006)

      NAC 439.170  Consent calendar. (NRS 439.200)

     1.  The Secretary of the State Board of Health may place on a consent calendar each uncontested item which receives a recommendation of approval from the Division of Public and Behavioral Health of the Department of Health and Human Services.

     2.  Any item placed on the consent calendar may be removed from that calendar for more detailed consideration. Related items will be considered together.

     (Added to NAC by Bd. of Health, eff. 5-5-86; A by R010-06, 5-4-2006)

      NAC 439.180  Order of testimony for considering matter. (NRS 439.200)  In considering a matter, the State Board of Health will hear from interested persons in the following order:

     1.  Reports and recommendations of the Division of Public and Behavioral Health of the Department of Health and Human Services.

     2.  Comments by the person who is requesting action by the Board, or the person’s representative.

     3.  Comments from the general public.

     4.  Comments by the members of the Board.

     (Added to NAC by Bd. of Health, eff. 5-5-86; A by R010-06, 5-4-2006)

ADMINISTRATIVE HEARINGS BEFORE STATE BOARD OF HEALTH

      NAC 439.190  Request for administrative hearing; contents of request; scheduling and notice of hearing; procedures at hearing. (NRS 439.190, 439.200)

     1.  Except as otherwise provided in this section, in any administrative hearing that the State Board of Health is required to hold, the procedures for hearing officers set forth in NAC 439.300 to 439.395, inclusive, apply.

     2.  In any administrative hearing that the State Board of Health is required to hold:

     (a) A request for a hearing must be addressed to the Administrator as the Executive Secretary of the Board and must be received within the period prescribed by statute or regulation. The request must specify the reasons that the appellant is requesting a hearing.

     (b) Upon receipt of the request for a hearing, the Executive Secretary shall schedule the matter to be heard at a public hearing held:

          (1) At the next regularly scheduled meeting of the Board;

          (2) At the next meeting of the Board held in Las Vegas or Reno, as requested by the appellant; or

          (3) As soon thereafter as the schedule of the Board allows.

     (c) Written notice of the date of the hearing must be served by personal delivery to the appellant or by mailing the notice by registered or certified mail to the last known residential or business address of the appellant.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.195  Submission of documentary evidence; continuances. (NRS 439.190, 439.200)

     1.  Except as otherwise provided in subsection 2, documentary evidence may not be submitted at any hearing convened by the State Board of Health unless it is submitted to the Board’s Secretary at least 15 days before the date scheduled for the hearing.

     2.  The Board may waive the provisions of subsection 1 if:

     (a) The party in good faith, exercising due diligence, was unable to secure the documentary evidence before the 15-day deadline; and

     (b) The Board is satisfied that the submittal of the documentary evidence at the hearing will result in a substantial benefit to the Board in rendering an informed decision.

     3.  The Board may continue the hearing to a date certain if it determines additional time is needed to review an authorized submittal of documentary evidence before rendering a decision.

     (Added to NAC by Bd. of Health, eff. 7-22-87)—(Substituted in revision for NAC 439.445)

VARIANCES FROM REGULATIONS

      NAC 439.200  Eligibility of person to apply; submission of application. (NRS 439.200)

     1.  Any person who, because of unique circumstances, is unduly burdened by a regulation of the State Board of Health and thereby suffers a hardship and the abridgment of a substantial property right may apply for a variance from the regulation.

     2.  An application for such a variance must be made to the State Board of Health unless the regulation is enforced by a district board of health, in which case the application must be made to the appropriate district board.

     [Bd. of Health, Variances Reg. §§ 1.1 & 1.2, eff. 10-16-80; A 2-5-82; 1-19-84]

      NAC 439.210  Application to State Board of Health. (NRS 439.150, 439.200)

     1.  An application to the State Board of Health for a variance must be:

     (a) Submitted in writing to the Secretary of the Board at the Division of Public and Behavioral Health of the Department of Health and Human Services, Carson City, Nevada.

     (b) Except as otherwise provided in subsection 3, accompanied by a payment of the actual cost to provide public notice of the application and notice of the date of the public hearing.

     2.  The Division of Public and Behavioral Health of the Department of Health and Human Services shall:

     (a) Update, at least quarterly, the actual cost to provide public notice of the application and notice of the public hearing for purposes of paragraph (b) of subsection 1; and

     (b) Post the information on the website of the Division.

     3.  The Secretary of the Board may waive the requirement that the applicant pay the costs set forth in paragraph (b) of subsection 1 upon a showing of extreme economic hardship.

     [Bd. of Health, Variances Reg. §§ 2.1-2.1.2, eff. 10-16-80]—(NAC A 9-13-91; R010-06, 5-4-2006)

      NAC 439.220  Public notice of application and date of hearing. (NRS 439.190, 439.200)

     1.  The Secretary of the State Board of Health shall provide public notice of the application and the date of the public hearing by publishing the notice in one or more newspapers of general circulation within the area affected by the requested variance.

     2.  The notice must be published at least once, not less than 10 days before the hearing and must specify the time, date and place of the hearing, the nature of the application and the regulation involved.

     3.  The Board will hold a public hearing on the application 40 or more days after the date on which the Secretary receives the application. The hearing will be held:

     (a) At its next regularly scheduled meeting;

     (b) At its next meeting in Carson City, Las Vegas or Reno, as requested by the applicant in the application; or

     (c) As soon as the schedule of the Board permits.

     [Bd. of Health, Variances Reg. §§ 2.2 & 2.3, eff. 10-16-80; A 2-5-82; 1-19-84]—(NAC A by R010-06, 5-4-2006)

      NAC 439.230  Procedure at hearing. (NRS 439.190, 439.200)  The following procedures apply to the hearing:

     1.  The staff of the Division of Public and Behavioral Health of the Department of Health and Human Services shall submit to the State Board of Health a report, including relevant data and a recommendation, concerning the application. A copy of the report must be mailed to the applicant at least 5 days before the hearing.

     2.  Members of the Board may ask relevant questions of any person.

     3.  Any person with a demonstrated interest in the application may present evidence but not testimony which is argumentative or redundant.

     4.  The applicant has the burden of proof as to the necessity for the variance.

     5.  At the conclusion of the hearing and after consideration of all the evidence presented concerning the requested variance, the Board will:

     (a) Grant the variance;

     (b) Deny the variance; or

     (c) If further information is needed, continue the hearing until such time as the information is obtained.

     6.  In granting a variance, the Board may impose such conditions as it deems necessary or desirable.

     7.  Failure of the applicant to comply with any of the conditions imposed by the Board constitutes grounds for immediate revocation of the variance.

     [Bd. of Health, Variances Reg. §§ 2.4-2.6.1, eff. 10-16-80]—(NAC A by R010-06, 5-4-2006)

      NAC 439.240  Approval by State Board of Health. (NRS 439.150, 439.190, 439.200)

     1.  The State Board of Health will grant a variance from a regulation only if it finds from the evidence presented at the hearing that:

     (a) There are circumstances or conditions which:

          (1) Are unique to the applicant;

          (2) Do not generally affect other persons subject to the regulation;

          (3) Make compliance with the regulation unduly burdensome; and

          (4) Cause a hardship to and abridge a substantial property right of the applicant; and

     (b) Granting the variance:

          (1) Is necessary to render substantial justice to the applicant and enable the applicant to preserve and enjoy his or her property right; and

          (2) Will not be detrimental or pose a danger to public health and safety.

     2.  Whenever an applicant for a variance alleges that he or she suffers or will suffer economic hardship by complying with the regulation, the applicant must submit evidence demonstrating the costs of compliance with the regulation. The Board will consider the evidence and determine whether those costs are unreasonable.

     [Bd. of Health, Variances Reg. §§ 2.7-2.8, eff. 10-16-80; A 2-5-82; 1-19-84]

      NAC 439.250  Written decision by State Board of Health. (NRS 439.190, 439.200)

     1.  Within 14 days after the hearing, the State Board of Health will provide the applicant with a written decision concerning the variance.

     2.  The decision will contain the Board’s findings of fact on the matters described in NAC 439.240 and, if the variance is granted, will specify any conditions imposed by the Board and, in a case where appropriate, the date on which the variance expires.

     [Bd. of Health, Variances Reg. §§ 2.9 & 2.9.1, eff. 10-16-80]—(NAC A by R010-06, 5-4-2006)

      NAC 439.260  Application to district board of health. (NRS 439.200)

     1.  An application to a district board of health for a variance must be:

     (a) Submitted in writing to the district health officer.

     (b) Accompanied by payment in full of the cost of publication of notice of the application and the date of the public hearing on it. The district health officer may waive the requirement that the applicant pay the cost of publication upon a showing of extreme economic hardship.

     2.  The district health officer shall have notice of the application and the date of the public hearing on it published in a newspaper of general circulation within the health district.

     3.  The notice must be published at least once, not less than 14 days before the hearing, and must specify the time, date and place of the hearing, the nature of the application and the regulation involved.

     4.  The district board of health or a hearing board designated by it shall hold a public hearing on the application at the next regularly scheduled meeting which is 40 or more days after the district health officer receives the application, or as soon thereafter as the schedule of the district board or hearing board permits.

     5.  If a hearing board designated by the district board conducts the hearing, the hearing board acts in an advisory capacity only and shall make a recommendation concerning the variance, including findings of fact and any conditions which should be imposed, to the district board not later than 10 days after the hearing. The district board shall consider the recommendation at its next regularly scheduled meeting, or as soon thereafter as its schedule permits, and may affirm the recommendation, reject the recommendation or refer the recommendation back to the hearing board for further consideration.

     6.  The district board or hearing board shall comply with the applicable procedures for public hearings set forth in NAC 439.230, 439.240 and 439.250 and the criteria for granting variances in NAC 439.240.

     7.  The record of the district board’s hearing on an application for a variance must include:

     (a) The application;

     (b) Proof of publication of notice concerning the public hearing on the application;

     (c) All documentary evidence submitted and testimony heard;

     (d) Written findings of fact;

     (e) The decision; and

     (f) If applicable, a statement of any condition imposed by the board in granting the variance.

     8.  The record may be entirely in writing or may be written in part and electronically recorded in part.

     9.  Within 10 days after the date of a decision by the district board of health on an application for a variance, the district health officer shall notify the Division of Public and Behavioral Health of the Department of Health and Human Services of that decision.

     [Bd. of Health, Variances Reg. §§ 3.1-3.7, eff. 10-16-80; A 2-5-82; 1-19-84]

      NAC 439.270  Appeals. (NRS 439.190, 439.200)

     1.  Any person who is aggrieved by a decision of a district board of health on an application for a variance from a regulation of the State Board of Health may appeal in writing to the State Board of Health within 30 days after the date of the decision, but the State Board will not review the decision of a district board concerning any regulation adopted by the district board.

     2.  Upon receipt of the appeal, the Secretary of the State Board shall request a copy of the district board’s record of its hearing on the application.

     3.  The district health officer shall forward the record to the Secretary within 14 days after receipt of the request.

     4.  The State Board of Health will hold a public hearing on the appeal not later than 40 days after the date on which the Secretary of the Board receives the written appeal. The hearing will be held:

     (a) At its next regularly scheduled meeting;

     (b) At its next meeting in Carson City, Las Vegas or Reno, as requested by the applicant in the application; or

     (c) As soon thereafter as the schedule of the Board permits.

     5.  At the hearing the State Board will limit its consideration of evidence to the evidence contained in the record of the district board’s hearing and will affirm or reverse the decision of the district board or refer the application back to the district board for its further consideration.

     6.  The State Board of Health will render a written decision on an appeal within 14 days after the date of the hearing on the appeal.

     [Bd. of Health, Variances Reg. §§ 4.1-4.4, eff. 10-16-80; A 2-5-82; 1-19-84]

      NAC 439.280  Schedule for compliance with regulation. (NRS 439.200)

     1.  The provisions of NAC 439.200 to 439.270, inclusive, do not preclude a person who is temporarily unable to comply or unable to comply fully with a regulation from negotiating a schedule for compliance.

     2.  A district health officer may postpone the enforcement of a regulation of the State Board of Health enforced by the district board and agree with such a person to a schedule for compliance with the regulation. If the period needed by such a person to comply exceeds 30 days, the schedule must be submitted to the district board of health for approval.

     3.  In those areas of the State which are not in a health district, or in case of a regulation enforced exclusively by the State Board of Health, the Chief Medical Officer may postpone the enforcement of and agree to a schedule for compliance with the regulation. If the period needed by such a person to comply exceeds 45 days, the schedule must be submitted to the State Board of Health for approval.

     [Bd. of Health, Variances Reg. §§ 5.1-5.1.2, eff. 10-16-80]—(NAC A by R010-06, 5-4-2006)

APPEALS; USE OF HEARING OFFICERS

      NAC 439.300  Definitions. (NRS 439.200)  As used in NAC 439.300 to 439.395, inclusive, unless the context otherwise requires, the words and terms defined in NAC 439.301 to 439.307, inclusive, have the meanings ascribed to them in those sections.

     [Bd. of Health, License Hearings Rule 3, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.301  “Appellant” defined. (NRS 439.200)  “Appellant” means a person who appeals proposed disciplinary action against him or her by the Division.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.302  “Board” defined. (NRS 439.200)  “Board” means the State Board of Health.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.304  “Disciplinary action” defined. (NRS 439.200)  “Disciplinary action” includes, without limitation:

     1.  Administrative sanctions; and

     2.  The denial, suspension or revocation of a license, permit, certificate, endorsement, approval, registration, charter, designation or other similar grant of permission to operate that is issued to a person, facility or governmental entity by the Division.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.305  “Division” defined. (NRS 439.200)  “Division” means the Division of Public and Behavioral Health of the Department of Health and Human Services.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.307  “Hearing officer” defined. (NRS 439.200)  “Hearing officer” means a person appointed by the Administrator of the Division to preside at a hearing conducted pursuant to NAC 439.300 to 439.395, inclusive.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.310  Scope; deviation from provisions. (NRS 439.200)

     1.  All hearings concerning appeals of proposed disciplinary actions by the Division are governed by the provisions of NAC 439.300 to 439.395, inclusive, unless the applicable practice or procedure is specifically provided by law or another regulation of the Board.

     2.  In special cases, where good cause appears, the hearing officer may allow deviation from these provisions if he or she finds compliance with the provisions to be impractical or unnecessary.

     [Bd. of Health, License Hearings Rule 1, §§ 1.1 & 1.3, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.320  Construction. (NRS 439.200)  The provisions of NAC 439.300 to 439.395, inclusive, will be liberally construed to secure just, speedy and economical determination of all issues presented to the hearing officer.

     [Bd. of Health, License Hearings Rule 1, § 1.2, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.330  Severability. (NRS 439.200)  The provisions of NAC 439.300 to 439.395, inclusive, are severable. If any provision of these regulations or any application to any person, thing or circumstance is held invalid, the Board intends that such invalidity not affect the remaining provisions or applications to the extent that they can be given effect.

     [Bd. of Health, License Hearings Rule 1, § 1.4, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.340  Office of Board. (NRS 439.200)  The principal office of the Board is the office of the Administrator of the Division. The office of the Administrator is open during regular business hours.

     [Bd. of Health, License Hearings Rule 2, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.341  Hearing officers: Appointment; term; assignments; duties. (NRS 439.200)

     1.  The Administrator shall appoint three permanent employees of the Division to act as hearing officers. The hearing officers shall perform their duties in addition to their regularly assigned duties.

     2.  An employee appointed as a hearing officer must be appointed for a term of 2 years.

     3.  The Administrator of the Division shall rotate the assignment of appeals among the hearing officers. Upon receipt of a request for an appeal to be heard by a hearing officer, the Administrator shall assign the appeal to the next hearing officer in the rotation unless that hearing officer has a conflict of interest or is otherwise disqualified from hearing the appeal.

     4.  A hearing officer shall not hear requests for variances from the requirements of a regulation.

     5.  The Administrator may revoke the appointment or change the assignment of a hearing officer for good cause.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.345  Notice of proposed disciplinary action: Duties of Division; contents and service of notice. (NRS 439.200)

     1.  Except as otherwise provided by specific statute or regulation or in the case of an emergency or a summary suspension, if the Division intends to take disciplinary action, the Division shall notify the applicant for or holder of a license, permit, certificate, endorsement, approval, registration, charter, designation or other similar grant of permission to operate or other affected person of the proposed disciplinary action, in writing, at least 11 business days before the effective date of the disciplinary action. The notice must include, without limitation:

     (a) A citation of the statutory and regulatory authority for the disciplinary action;

     (b) The facts on which the disciplinary action is based;

     (c) A description of any circumstances that the Division considered in taking the disciplinary action;

     (d) Instructions for responding to the notice, including, without limitation, a statement of the right to any internal informal procedures for appeal, the right to a hearing, the period during which a hearing must be requested and the consequences of waiving a hearing; and

     (e) The effective date of the disciplinary action.

     2.  The Division shall serve the notice by personal delivery to the applicant, holder or other affected person or by mailing the notice by registered or certified mail to his or her last known residential or business address.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.346  Appeal of proposed disciplinary action: Exhaustion of informal procedures required; filing request for appeal; contents of request. (NRS 439.200)

     1.  A person who wishes to file an appeal with a hearing officer contesting proposed disciplinary action by the Division must first exhaust all internal informal procedures for appeals.

     2.  A request for an appeal must be addressed to the Administrator of the Division and must be received by the Administrator not later than 10 business days after the date on which the appellant received notice of the proposed disciplinary action pursuant to NAC 439.345. The request must specify:

     (a) The disciplinary action to be contested;

     (b) The name of the officer or employee of the Division who proposed the disciplinary action; and

     (c) The reasons that the appellant believes the disciplinary action is incorrect.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.347  Notice of hearing of appeal: Duties of hearing officer; contents of notice. (NRS 439.200)  Upon receipt of an appeal, the hearing officer assigned to hear the appeal must provide notice of the hearing to the appellant. The notice must include:

     1.  The date, time, place and subject matter of the hearing;

     2.  A citation of the statutory and regulatory authority and jurisdiction pursuant to which the hearing is to be held; and

     3.  A brief and concise statement of the matters asserted.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.348  Stay of proposed disciplinary action pending appeal; exceptions. (NRS 439.200)  Except as otherwise provided in NAC 449.99908 or in the case of an emergency or a summary suspension, the effective date of the disciplinary action is stayed upon receipt of an appeal until the hearing officer renders a decision regarding the appeal.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

      NAC 439.350  Representation by attorney: Entry of appearance; service on attorney; withdrawal by attorney. (NRS 439.200)

     1.  A party is entitled to be represented by counsel. Counsel for a party must enter an appearance by submitting written notice of the representation to the Administrator of the Division.

     2.  Following the entry of an appearance by an attorney for a party, all notices, pleadings and orders to be served thereafter upon the party must be served upon his or her attorney, and such service is for all purposes considered valid service upon the party represented.

     3.  Any attorney of record wishing to withdraw from a proceeding before a hearing officer shall, in writing, immediately notify the hearing officer, the party whom he or she represented and any other parties to the proceeding.

     [Bd. of Health, License Hearings Rule 4, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.360  Pleadings. (NRS 439.200)

     1.  A pleading before the hearing officer must be styled a “petition” or “response.”

     2.  The hearing officer may, when the substantial rights of the parties are not involved, allow a pleading to be amended or corrected or any omission in it to be supplied.

     3.  All pleadings will be liberally construed to effect justice between the parties, and the hearing officer may, at every stage of any proceeding, disregard errors or defects in the pleadings or proceedings which do not affect the substantial rights of the parties.

     [Bd. of Health, License Hearings Rule 5, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.370  Motions. (NRS 439.200)

     1.  All motions, unless made during a hearing, must be in writing.

     2.  Each written motion must set forth the nature of the relief sought, the grounds for the relief and citations of applicable authority.

     3.  A party desiring to oppose a motion may serve and file a written response to the motion within 10 days after receiving the motion.

     4.  The moving party may serve and file a written reply within 5 days after a written response to the motion has been served and filed.

     5.  A decision on a motion will be rendered without oral argument unless the hearing officer requires an oral argument, and in that event the hearing officer shall set a date and time for hearing the argument.

     [Bd. of Health, License Hearings Rule 6, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.375  Hearings: Preliminary procedure; order of proceedings. (NRS 439.200)

     1.  The hearing officer shall call the hearing to order, state the appearances of the parties and their respective counsel and act upon any pending motions, stipulations and preliminary matters.

     2.  All testimony must be under oath administered by the hearing officer. Unless otherwise indicated by the hearing officer, the hearing must proceed in the following manner:

     (a) Opening statement for Division;

     (b) Opening statement for appellant;

     (c) Presentation of Division’s case, followed by cross-examination;

     (d) Responsible presentation by appellant, followed by cross-examination;

     (e) Rebuttal testimony for Division;

     (f) Rebuttal testimony for appellant;

     (g) Surrebuttal testimony for Division;

     (h) Closing argument for Division;

     (i) Closing argument for appellant;

     (j) Rebuttal closing argument for Division; and

     (k) Submission of case to the hearing officer.

     3.  At the conclusion of the hearing, the hearing officer shall take the case under submission and shall notify the parties in writing of his or her findings of fact, conclusions of law and decision in the matter.

     [Bd. of Health, Appellate Practice Rule § 3, eff. 4-1-74]—(NAC A by R037-97, 10-30-97)—(Substituted in revision for NAC 439.440)

      NAC 439.378  Hearings: Subpoena and examination of witnesses; admission of evidence; continuances; decision of hearing officer; record of proceedings. (NRS 439.200)

     1.  All requests for an appeal must be addressed to the Administrator of the Division.

     2.  Except as otherwise provided in this subsection, hearings on appeals must be open to the public. Upon the motion of a party, the hearing officer, in his or her discretion, may exclude from the hearing room any witnesses in the matter not at the time under examination except a party or parties to the proceeding or his or her counsel.

     3.  The hearing officer shall determine the evidence upon the charges and specifications as set forth by the Division in its letter of notice of violation describing the nature of the violation and the action taken or to be taken, or as contained in other appropriate documents, and must not consider any additional evidence beyond the scope of the charges.

     4.  The technical rules of evidence do not apply. All testimony and exhibits offered must be relevant and bear upon the matter in contention. Any testimony or exhibits considered by the hearing officer as not meeting this criterion may properly be excluded. The hearing officer shall also consider the objection of either side to the introduction of evidence, whether oral testimony or exhibit. Competence and relevance are the primary test in ruling on such objections.

     5.  The hearing officer shall base his or her decision on the weight of the evidence presented at the hearing. Findings of fact, conclusions of law and decisions must be based on substantial evidence.

     6.  At the beginning of his or her testimony, each witness who has not previously testified in the hearing shall be required to state his or her name and business, employment or position.

     7.  Any letter, paper or object offered in evidence must be properly authenticated and, if received, must be marked by the hearing reporter with a distinguishing number or letter, such as “Division’s Exhibit 1” or “Licensee’s Exhibit A.”

     8.  Testimony may be presented in statement or question and answer form.

     9.  Good cause appearing, hearings may be continued beyond the period originally scheduled or recessed until a future date agreeable to the hearing officer and the parties.

     10.  Witnesses may be subpoenaed by either party to the hearing and shall receive the fees and mileage allowed a witness in a civil case.

     11.  A record of the proceedings must be kept but need not be transcribed unless the decision is appealed or a transcript is requested by an interested party, who shall bear the cost of transcription.

     [Bd. of Health, Appellate Practice Rule § 2, eff. 4-1-74]—(NAC A by R037-97, 10-30-97)—(Substituted in revision for NAC 439.430)

      NAC 439.380  Hearings: Failure of party to appear; stipulations; continuances; official notice. (NRS 439.200)

     1.  If a party fails to appear at a hearing scheduled by the hearing officer and no continuance has been granted, the hearing officer may hear the evidence and proceed to consider the matter and dispose of it on the basis of the evidence before the hearing officer. If the subject matter of the hearing is proposed disciplinary action and the appellant fails to appear at the hearing and fails to reply to the notice, the charges specified in the proposed finding are presumed to be true.

     2.  With the approval of the hearing officer, the parties may stipulate as to any fact at issue, either by a written stipulation introduced in evidence as an exhibit or by oral statements shown upon the record. Any such stipulation is binding upon all parties so stipulating and may be regarded by the hearing officer as evidence at the hearing.

     3.  The hearing officer may, before or during a hearing, upon a proper showing, grant a continuance for submission of additional proof or other reasonable purpose.

     4.  In addition to the facts mentioned in subsection 5 of NRS 233B.123, the hearing officer may take official notice of:

     (a) Regulations, official reports and decisions and orders of the Board or any other regulatory agency of the State of Nevada.

     (b) Contents of certificates and permits issued by the Division.

     (c) Any provision of the Nevada Revised Statutes.

     [Bd. of Health, License Hearings Rule 7, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.390  Decision by hearing officer. (NRS 439.200)

     1.  An order or decision with separately stated findings of fact and conclusions of law will be rendered by the hearing officer after the completion of the hearing.

     2.  A proceeding stands submitted for decision by the hearing officer after the taking of evidence, the filing of briefs or the presentation of such oral or written arguments as may have been allowed by the hearing officer.

     [Bd. of Health, License Hearings Rule 8, eff. 6-24-80]—(NAC A by R037-97, 10-30-97)

      NAC 439.395  Judicial review of decision made by hearing officer. (NRS 439.200)  The decision of a hearing officer made pursuant to the procedures set forth in NAC 439.300 to 439.395, inclusive, is a final decision in a contested case. Any person aggrieved by such a decision is entitled to judicial review of the decision pursuant to NRS 233B.130.

     (Added to NAC by Bd. of Health by R037-97, eff. 10-30-97)

SERVICES PROVIDED BY NURSES OF THE Division of Public and Behavioral Health

      NAC 439.500  Sliding schedule of fees for certain services and supplies not concerning family planning. (NRS 439.150, 439.200)

     1.  Except as otherwise provided in NAC 442.222 for services and supplies concerning family planning, a community health nursing clinic established by the Division of Public and Behavioral Health shall charge and collect fees for the services and supplies provided to a client by a nurse of the Division in an amount set forth in the sliding schedule of fees established by the Division pursuant to this section.

     2.  The Division of Public and Behavioral Health shall establish a sliding schedule of fees which is based on:

     (a) A cost analysis of the services and supplies provided by the community health nursing clinics; and

     (b) A ratio between the annual gross income of a household and the federally designated level signifying poverty for a household of that size as determined by the United States Department of Health and Human Services and published annually in the Federal Register.

     3.  The Division of Public and Behavioral Health shall renew and, if necessary, revise the sliding schedule of fees established pursuant to this section:

     (a) According to generally accepted accounting principles; and

     (b) As needed, to account for modifications to:

          (1) The community health nursing program; and

          (2) The federally designated levels signifying poverty.

     4.  The sliding schedule of fees established pursuant to this section and any revisions to the sliding schedule of fees become effective upon approval of the sliding schedule of fees by the State Board of Health.

     5.  The Division of Public and Behavioral Health shall make the sliding schedule of fees established pursuant to this section available:

     (a) On the Internet website of the Division and in each community health nursing clinic; and

     (b) To any person upon request.

     6.  If the annual gross income of the household of a client who is not able to pay a fee for services or supplies provided by a nurse of the Division of Public and Behavioral Health is less than the federally designated level signifying poverty, the community health nursing clinic shall not deny the services or supplies to the client.

     7.  Except as otherwise provided in subsection 6, a community health nursing clinic may deny services or supplies to a client if the client has not paid a fee owed for services or supplies previously provided to the client from such a clinic.

     8.  As used in this section, “household” means an association of persons who live together as a single economic unit, regardless of whether they are related.

     (Added to NAC by Bd. of Health, eff. 10-14-82; A 7-16-85, eff. 8-1-85; 1-31-90; 9-6-91; 9-1-93; R038-97, 10-30-97; R118-03, 12-4-2003; R145-11, 5-30-2012)

SERVICES PERFORMED BY DIVISION OF PUBLIC AND BEHAVIORAL HEALTH IN RESPONDING TO VEHICULAR ACCIDENTS

      NAC 439.610  Definitions. (NRS 439.200)  As used in NAC 439.610 to 439.622, inclusive, unless the context otherwise requires, the words and terms defined in NAC 439.612 to 439.620, inclusive, have the meanings ascribed to them in those sections.

     (Added to NAC by Bd. of Health by R192-03, eff. 1-22-2004)

      NAC 439.612  “Cosmetic” defined. (NRS 439.200)  “Cosmetic” has the meaning ascribed to it in NRS 585.060.

     (Added to NAC by Bd. of Health by R192-03, eff. 1-22-2004)

      NAC 439.614  “Division” defined. (NRS 439.200)  “Division” means the Division of Public and Behavioral Health of the Department of Health and Human Services.

     (Added to NAC by Bd. of Health by R192-03, eff. 1-22-2004)

      NAC 439.616  “Drug” defined. (NRS 439.200)  “Drug” has the meaning ascribed to it in NRS 585.080.

     (Added to NAC by Bd. of Health by R192-03, eff. 1-22-2004)

      NAC 439.618  “Food” defined. (NRS 439.200)  “Food” has the meaning ascribed to it in NRS 585.100.

     (Added to NAC by Bd. of Health by R192-03, eff. 1-22-2004)

      NAC 439.620  Law enforcement agency” defined. (NRS 439.200)  “Law enforcement agency” means an agency, office or bureau, the primary duty of which is to enforce the law.

     (Added to NAC by Bd. of Health by R192-03, eff. 1-22-2004)

      NAC 439.622  Determination of adulteration of or public risk from certain substances: Fee; alleviation of risk. (NRS 439.150, 439.200)

     1.  If a law enforcement agency requests the services of the Division in responding to an accident involving a vehicle used to transport or hold food, drugs or cosmetics in commerce or a vehicle used for septic tank pumping purposes, the Division shall charge and collect an hourly fee of $90 from the manufacturer, producer, jobber or seller of the food, drugs or cosmetics or the owner of the vehicle used for septic tank pumping purposes to determine whether, as a result of the accident:

     (a) The food, drugs or cosmetics:

          (1) Have been adulterated and must be quarantined, condemned or destroyed; or

          (2) Have not been adulterated and may be provided to the public for use or consumption.

     (b) The contents of the vehicle used for septic tank pumping purposes constitute a risk to the health or safety of the public. If the Division determines there is a risk to the health or safety of the public, it must provide guidance to the law enforcement agency to alleviate such risk.

     2.  The hourly fee set forth in subsection 1:

     (a) Applies to a period beginning at the time the law enforcement agency provides notice of the accident to the personnel of the Division; and

     (b) Includes only the time actually spent by the personnel of the Division in response to the accident, including, without limitation, travel to the site of the accident and any investigation related to the accident.

     (Added to NAC by Bd. of Health by R192-03, eff. 1-22-2004)

FEES FOR SERVICES PERFORMED BY ENGINEERS OR ENVIRONMENTAL HEALTH SPECIALISTS

      NAC 439.650  Fee for collecting sample of water. (NRS 439.150, 439.200)  When an entity or person requests the services of the Division of Public and Behavioral Health of the Department of Health and Human Services in collecting a sample of water, the Division shall charge and collect a fee of $133 from the requester for each visit to the site by an employee of the Division.

     (Added to NAC by Bd. of Health, eff. 7-22-87; A 8-31-89; 7-16-92; R192-03, 1-22-2004; R096-10, 2-20-2013)

MISCELLANEOUS PROVISIONS

      NAC 439.700  Appointment of deputy attorney general to represent Division of Public and Behavioral Health. (NRS 439.190, 439.200)  The Division of Public and Behavioral Health of the Department of Health and Human Services may request, at least 10 days before a hearing, that the Attorney General appoint a deputy attorney general, separate from the deputy attorney general representing the State Board of Health, to represent the Health Division before the Board.

     (Added to NAC by Bd. of Health, eff. 5-5-86)

DISABILITY PRESCRIPTION PROGRAM

General Provisions

      NAC 439.750  Short title. (NRS 439.735)  NAC 439.750 to 439.790, inclusive, may be referred to as the Disability Prescription Program.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.751  Definitions. (NRS 439.735)  As used in NAC 439.750 to 439.790, inclusive, unless the context otherwise requires, the words and terms defined in NAC 439.752 to 439.767, inclusive, have the meanings ascribed to them in those sections.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.752  “Applicant” defined. (NRS 439.735)  “Applicant” means a person who applies to the Department to receive a subsidy for coverage for prescription drugs and pharmaceutical services pursuant to NRS 439.755.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.753  “Contractor” defined. (NRS 439.735)  “Contractor” means:

     1.  A private insurer with whom the Department has entered into a contract pursuant to NRS 439.745 to make available, at a reasonable cost, policies of health insurance that provide coverage to certain persons with disabilities for prescription drugs and pharmaceutical services; or

     2.  An entity with which the Department has entered into a contract to manage pharmaceutical benefits, including, without limitation, processing and paying claims for pharmaceutical benefits on behalf of the Department.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.754  “Coordination of benefits” defined. (NRS 439.735)  “Coordination of benefits” means the coordination of the Disability Prescription Program with Medicare Part D in a manner that:

     1.  Maximizes coverage for prescription drugs and pharmaceutical services for persons in this State;

     2.  Minimizes disruptions in the enrollment of persons in this State in state and federal programs that provide coverage for prescription drugs and pharmaceutical services;

     3.  Minimizes disruptions in the eligibility of persons in this State for state and federal programs that provide coverage for prescription drugs and pharmaceutical services;

     4.  Minimizes out-of-pocket expenses for prescription drugs and pharmaceutical services for Medicare beneficiaries in this State; and

     5.  Maximizes federal funding for coverage for prescription drugs and pharmaceutical services for persons in this State.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.755  “Department” defined. (NRS 439.735)  “Department” means the Department of Health and Human Services.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.756  “Disability” defined. (NRS 439.735)  “Disability” has the meaning ascribed to it in NRS 426.068.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.757  “Enrollee” defined. (NRS 439.735)  “Enrollee” means a person who the Department has determined is eligible to receive a subsidy for coverage for prescription drugs and pharmaceutical services pursuant to NRS 439.745.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.758  “Hearing officer” defined. (NRS 439.735)  “Hearing officer” means a person who:

     1.  Did not participate in the decision of the Department that is the subject of the hearing; and

     2.  Is appointed by the Director of the Department or a designee thereof to preside at a hearing conducted pursuant to NAC 439.779 to 439.787, inclusive.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.759  “Household” defined. (NRS 439.735)  “Household” means an applicant and the spouse of the applicant.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.760  “Household income” defined. (NRS 439.735)  “Household income” has the meaning ascribed to it in NRS 427A.480.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.761  “Income” defined. (NRS 439.735)  “Income” has the meaning ascribed to it in NRS 427A.485.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.762  “Medicare Advantage plan with prescription drug coverage” and “MA-PD” defined. (NRS 439.735)  “Medicare Advantage plan with prescription drug coverage” or “MA-PD” means health benefits coverage, including, without limitation, qualified prescription drug coverage, offered pursuant to 42 C.F.R. § 423.4 under a policy or contract with Medicare by a Medicare Advantage organization as described in 42 C.F.R. § 422.2.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.763  “Medicare Part D” defined. (NRS 439.735)  “Medicare Part D” means the federal prescription drug benefit established pursuant to Part 423 of Title 42 of the Code of Federal Regulations.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.764  “Open enrollment” defined. (NRS 439.735)  “Open enrollment” means a period prescribed by the Department during which an application for a subsidy may be filed.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.765  “Prescription drug plan” and “PDP” defined. (NRS 439.735)  “Prescription drug plan” or “PDP” means coverage for prescription drugs that is offered under a policy, contract or plan which has been approved as specified in 42 C.F.R. § 423.272 and which is offered by a sponsor that has a contract with the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services that meets the contract requirements under Subpart K of Part 423 of Title 42 of the Code of Federal Regulations.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.766  “Subsidy” defined. (NRS 439.735)  “Subsidy” means the amount of money that the Department may pay to a contractor, prescription drug plan or Medicare Advantage plan with prescription drug coverage or to the State Plan for Medicaid on behalf of a person with a disability who meets the criteria for receiving a subsidy set forth in NRS 439.745 for coverage for prescription drugs and pharmaceutical services.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.767  “Traditional Disability Prescription Program” defined. (NRS 439.735)  “Traditional Disability Prescription Program” means the prescription drug benefits available to eligible applicants who are not also eligible for Medicare Part D.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

Application and Eligibility

      NAC 439.768  Eligibility for traditional benefits. (NRS 439.735)  Persons with disabilities who are not eligible for Medicare Part D may be eligible for traditional benefits under the Disability Prescription Program, based on the availability of funding and contractual agreements with a pharmacy benefit manager selected by the Department through a formal bidding process.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.769  Eligibility for coordination of benefits. (NRS 439.735)  A person with a disability who is eligible for Medicare Part D may be eligible for assistance with out-of-pocket expenses for prescription drugs and pharmaceutical services. The availability of such coverage is subject to the availability of funding and legislative approval of state subsidies that are intended to maximize federal benefits and, to the extent possible, minimize out-of-pocket expenses for prescription drugs and pharmaceutical services. Eligibility for such coverage is subject to requirements that are similar, but not identical, to the requirements for the Traditional Disability Prescription Program, including, without limitation, all the following requirements:

     1.  An applicant must be at least 18 years of age but not more than 61 years of age.

     2.  An applicant must have a verifiable disability.

     3.  An applicant must have an annual income that is less than the amount set forth in NRS 439.745.

     4.  An applicant who is eligible for Medicare Part D must enroll in Medicare Part D and a prescription drug plan or Medicare Advantage plan with prescription drug coverage.

     5.  An applicant who is eligible for any federal subsidy under Medicare Part D must apply for and use any such subsidy before requesting such coverage through the Disability Prescription Program.

     6.  An applicant who is not eligible for full Medicaid in this State must meet a 1-year residency requirement as set forth in NRS 439.745.

     7.  An applicant who is enrolled in full Medicaid in this State is not required to meet the 1-year residency requirement for a subsidy approved by the Legislature. Depending upon the technical aspects of the coordination of benefits, the Department may allow such an applicant to receive such coverage without actually enrolling in the Disability Prescription Program.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.770  Request for information. (NRS 439.735)  Upon request, the Department will provide information to an applicant relating to the criteria for receiving a subsidy, including, without limitation, any documentation that the Department may require the applicant to provide to the Department to verify that the applicant is eligible to receive a subsidy.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.771  Requirements for application; request for waiver of eligibility requirement regarding household income. (NRS 439.735)

     1.  In addition to meeting the criteria for receiving a subsidy set forth in NRS 439.745, an applicant who wishes to receive a subsidy must file a properly completed application for a subsidy with the Department during a period of open enrollment.

     2.  The application must be made:

     (a) On a form prescribed by the Department; and

     (b) Under oath as required pursuant to NRS 439.755.

     3.  The Department may require an applicant to provide, with the application, proof of his or her:

     (a) Disability by submitting:

          (1) A copy of a disability determination letter issued by a public agency or private organization, approved by the Department, whose programs or services are based at least in part on disability;

          (2) Any other appropriate documentation satisfactory to the Department, including, without limitation, the statement of a physician; or

          (3) Any combination of the proof required pursuant to subparagraph (1) or (2);

     (b) Income by submitting a copy of his or her income tax returns, a copy of his or her Social Security Form SSA-1099, copies of wage statements, copies of dividend statements or other appropriate documentation satisfactory to the Department of any other sources of income received by the applicant in the 12 months immediately preceding the date of the application;

     (c) Assets by submitting a copy of income tax returns, copies of savings account statements, copies of stock certificates or other appropriate documentation satisfactory to the Department; and

     (d) Continuous residency in this State for at least the 12 months immediately preceding the date of the application by submitting a copy of utility bills, rental agreements or any other appropriate documentation satisfactory to the Department.

     4.  Each applicant shall provide the Department with his or her social security number.

     5.  Each applicant shall provide the following information about his or her status regarding Medicare Part D:

     (a) Each applicant must declare whether he or she is eligible for and enrolled in Medicare Part D, whether in a PDP or MA-PD, and, if so, must provide the name of the plan.

     (b) Each applicant who is eligible for Medicare Part D must avail himself or herself of that benefit and apply for any applicable federal low-income subsidy before seeking additional assistance through the Disability Prescription Program.

     (c) If the applicant is not enrolled in Medicare Part D because the applicant missed the period of open enrollment, such an applicant must state the reason for missing the period of open enrollment. Depending upon the circumstances, such an applicant may be considered for temporary enrollment in the Traditional Disability Prescription Program. The applicant must then enroll in Medicare Part D and a PDP or MA-PD at the next available opportunity or the applicant will be terminated from the Disability Prescription Program.

     (d) By checking “Yes” or “No” in the appropriate place, the applicant must decide whether to grant the Disability Prescription Program the authority to act as his or her authorized representative and, as such, to enroll the applicant in an appropriate PDP or MA-PD. Such authority does not preclude the applicant from changing his or her PDP or MA-PD before implementation of Medicare Part D on January 1, 2006, or during subsequent periods of open enrollment if the applicant is not satisfied with the assignment made by the Disability Prescription Program.

     6.  An application shall be deemed received by the Department on the date that the completed application is received by the Department.

     7.  An application shall be deemed properly completed if the application:

     (a) Is submitted on the form prescribed by the Department and filled out completely;

     (b) Includes the documentation described in subsection 3, if such documentation is required by the Department; and

     (c) Includes the social security number of the applicant as required pursuant to subsection 4.

Ê The Department will return any incomplete application to the applicant with a designation that the application has not been processed by the Department.

     8.  If an applicant or enrollee requests a waiver of the eligibility requirement regarding household income pursuant to subsection 5 of NRS 439.745 because of an illness or disability or extreme financial hardship, the applicant or enrollee must include with that request a written statement signed by a licensed physician certifying the illness or disability or other appropriate documentation that satisfies the Department that an extreme financial hardship exists. The Department will consider each request for such a waiver on a case-by-case basis.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.772  Notice of approval or denial of application; notice of name of new enrollee. (NRS 439.735)

     1.  Within 45 days after receiving an application for a subsidy, the Department will provide written notice to the applicant of its approval or denial of the application.

     2.  If the application is approved, the notice must state:

     (a) The amount of the subsidy that the Department will pay to a contractor, PDP or MA-PD, or to the State Plan for Medicaid on behalf of the applicant;

     (b) The amount of the annual household income on which the eligibility was based; and

     (c) If the applicant is deemed eligible but there is insufficient money available from the amount allocated for subsidies by the Department, that the applicant has been placed on a waiting list in the order of priority described in NAC 439.773.

     3.  If the application is denied, the notice must state:

     (a) The reason for the denial;

     (b) The procedure for requesting a hearing to review the decision of the Department as set forth in NAC 439.779; and

     (c) The procedures for a hearing before the Department as set forth in NAC 439.779 to 439.787, inclusive.

     4.  Within 30 days after the Department approves an application, the Department will provide the name of the new enrollee whose application was approved to the contractor or any other entity necessary to ensure appropriate coordination of benefits.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.773  Order of priority if there is insufficient money available; qualifying hardship; granting of subsidy to applicant on waiting list if sufficient money becomes available. (NRS 439.735)

     1.  Except as otherwise provided in subsections 2, 3 and 4, if there is insufficient money available for each applicant from the amount allocated for subsidies by the Department, the Department will rank the applicants whose applications are approved based on their household income. The applicant with the lowest household income will receive priority over the other applicants. If the household income of two applicants is exactly the same amount, the applicant whose application was received earlier by the Department will receive priority over the other applicant.

     2.  If an applicant documents a medical condition that will deteriorate rapidly if prescribed medications are not taken, the applicant will receive priority over other applicants on the waiting list, regardless of income level. If two applicants document such emergent medical conditions, the applicant whose application was received earlier by the Department will receive priority over the other applicant.

     3.  If the Department determines that an applicant whose income exceeds the established limits has a qualifying financial hardship, the applicant will be ranked on the priority list at his or her adjusted income level, which is the applicant’s actual income minus medical costs or the cost of another qualifying hardship.

     4.  If, at any time, the Department determines that there is sufficient money available from the amount allocated for subsidies by the Department for more applicants, the Department may grant a subsidy to an applicant on the waiting list in the order of priority described in this section. If the Department grants a subsidy pursuant to this subsection, the Department will provide written notice to the applicant in the manner set forth in NAC 439.772.

     5.  For the purposes of this section, an applicant shall be deemed to have a qualifying hardship if the applicant submits to the Department:

     (a) Documentation satisfactory to the Department that verifies that the monthly cost of prescription drugs, pharmaceutical services or out-of-pocket medical expenses, or any combination thereof, for the applicant’s household is causing a hardship; or

     (b) Documentation satisfactory to the Department that verifies any other hardship of the applicant that the Department determines is a qualifying hardship.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.774  Calculation of household income; eligibility for subsidy if maximum household income exceeded. (NRS 439.735)

     1.  For the purposes of determining whether an applicant satisfies the eligibility requirement set forth in NRS 439.745 regarding household income, the Department:

     (a) Will calculate the monthly household income for the month in which an application is filed with the Department pursuant to NAC 439.771 and multiply that number by 12; or

     (b) May, if the household income fluctuates from month to month:

          (1) Add the monthly household income over a period of at least 2 months;

          (2) Divide the sum calculated pursuant to subparagraph (1) by the number of months within the period described in subparagraph (1); and

          (3) Multiply the quotient calculated pursuant to subparagraph (2) by 12.

     2.  Except as otherwise provided in subsection 8 of NAC 439.771, an applicant is not eligible for a subsidy if the household income of the applicant for the year in which the applicant submits his or her application exceeds the maximum household income set forth in NRS 439.745.

     3.  For the purposes of subsection 2, the year in which the applicant submits the application:

     (a) Is not tied to the calendar year or fiscal year; and

     (b) Begins with the month that the application is submitted and carries forward through the succeeding 12 months.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.775  Information and documentation: Cooperation with Department; updating. (NRS 439.735)

     1.  An applicant or enrollee shall cooperate with the Department in securing all information and documentation necessary to determine or confirm the eligibility of the applicant or continued eligibility of the enrollee to receive a subsidy. If the applicant or enrollee fails to cooperate, the Department will deny the application or will deem the enrollee ineligible to receive a subsidy.

     2.  An enrollee shall update the information contained in the application filed with the Department pursuant to NAC 439.771 that relates to his or her eligibility to receive a subsidy, including, without limitation, a change in his or her:

     (a) Name;

     (b) Address;

     (c) Telephone number;

     (d) Household income;

     (e) Marital status;

     (f) Eligibility for Medicare Part D;

     (g) Enrollment in a PDP or MA-PD or the selection of a different PDP or MA-PD;

     (h) Eligibility for Medicaid; or

     (i) Eligibility for supplemental security income,

Ê by notifying the Department in writing within 20 days after the information becomes available to him or her.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.776  Continuing eligibility; annual review. (NRS 439.735)

     1.  If the Department approves an application for a subsidy, the enrollee remains eligible to receive the subsidy as long as he or she continues to meet the criteria for receiving a subsidy set forth in this chapter and chapter 439 of NRS.

     2.  The Department will review the eligibility of each enrollee at least annually. In conducting this review, the Department will compare the information it has received from the enrollee with information concerning the enrollee that is maintained by other federal, state, county and local agencies, as well as other organizations that administer programs for low-income persons or persons with disabilities.

     3.  If the Department is unable to determine the continuing eligibility of the enrollee in the manner set forth in subsection 2, the Department may require the enrollee to provide additional documentation, including, without limitation, a copy of the income tax returns of the enrollee.

     4.  If the Department is unable to obtain the additional documentation required pursuant to subsection 3, the Department will deem the enrollee ineligible to receive a subsidy.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.777  Discontinuation of subsidy to enrollee: Request by enrollee; ineligibility of enrollee; granting of subsidy to applicant on waiting list if enrollee determined ineligible. (NRS 439.735)

     1.  If an enrollee who is receiving a subsidy wishes to discontinue receiving the subsidy, the enrollee must submit a written request to that effect to the Department and notify the contractor in writing.

     2.  If, based on information the Department receives, the Department reasonably believes that an enrollee no longer meets the criteria for receiving a subsidy because one of the circumstances set forth in subsection 3 applies to the enrollee, the Department shall provide the enrollee with notice as set forth in NAC 439.778 and an opportunity for a hearing.

     3.  The circumstances in which an enrollee no longer meets the criteria for receiving a subsidy include, without limitation, that:

     (a) The enrollee is eligible for coverage for prescription drugs and pharmaceutical services through Medicare Part D, but the enrollee declines to enroll in that program or in a PDP or MA-PD, or the enrollee declines to apply for any federal subsidy available to him or her, or both;

     (b) The enrollee is eligible for coverage for prescription drugs and pharmaceutical services through Medicare Part D and qualifies for a federal low-income subsidy as a “very low-income beneficiary”;

     (c) The household income of the enrollee exceeds the maximum household income set forth in NRS 439.745;

     (d) The enrollee knowingly provided incorrect information on the application that he or she filed with the Department pursuant to NAC 439.771 and failed to correct the information within a reasonable time as determined by the Department;

     (e) The enrollee failed to maintain residency in this State; or

     (f) The enrollee failed to respond timely to a request for verification of the income of the enrollee or of any other annual eligibility requirement.

     4.  The Department will deem an enrollee to be ineligible to receive a subsidy if the enrollee does not request a hearing within 30 days after the date of the notice provided to the enrollee pursuant to subsection 2.

     5.  If an enrollee no longer meets the criteria for receiving a subsidy because one of the circumstances set forth in subsection 3 applies to the enrollee, the Department will grant a subsidy to an applicant on the waiting list, if any, in the order of priority described in NAC 439.773.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.778  Notice to enrollee of determination regarding ineligibility. (NRS 439.735)  If the Department determines that an enrollee no longer meets the criteria for receiving a subsidy set forth in this chapter and chapter 439 of NRS, it will notify the enrollee in writing that the enrollee is ineligible to receive a subsidy. The notice must inform the enrollee:

     1.  Of the reason that the enrollee is ineligible to receive a subsidy;

     2.  Of the procedures set forth in NAC 439.779 for requesting a hearing to review the decision of the Department; and

     3.  Of any free or inexpensive legal services available in the area and must provide telephone numbers of the organizations providing those services.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

Hearings

      NAC 439.779  Request for hearing; scheduling of hearing. (NRS 439.735)

     1.  An applicant or enrollee who is aggrieved by a decision of the Department concerning a subsidy and who wishes to have a hearing before the Department must file a written request for a hearing with the Department within 30 days after the date of the notice of the decision from the Department.

     2.  The Department will schedule a hearing within 45 days after it receives the request for a hearing.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.780  Continuation of benefits pending outcome of hearing. (NRS 439.735)

     1.  Benefits of an existing enrollee may be continued pending the outcome of the hearing if the enrollee requests such continuation within 10 days after the date of the decision by the Department.

     2.  The Department will deny a request for continuation of benefits if the request for a hearing is also denied pursuant to NAC 439.781.

     3.  If benefits are continued and the decision of the hearing officer upholds the decision of the Department, the Department may require the enrollee to reimburse the Department for benefits paid on behalf of the enrollee.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.781  Denial of request for hearing; request for dismissal. (NRS 439.735)

     1.  The Department will deny a request for a hearing received pursuant to NAC 439.779 if:

     (a) The sole issue being contested is an issue that may only be resolved by amending the provisions of NRS 439.705 to 439.795, inclusive;

     (b) The sole issue being contested is that the Department denied an application for a subsidy, discontinued paying a subsidy or reduced the amount of a subsidy, if that action by the Department was based only upon the limits of the money available from the amount allocated for subsidies by the Department;

     (c) The sole issue being contested is an issue that relates to a determination of the coverage of a policy of health insurance under which an enrollee is covered and the enrollee has failed to complete a process for resolving disputes established by the contractor; or

     (d) The request is not received by the Department within the limit on time set forth in NAC 439.779.

     2.  If a person who filed a request for a hearing wishes to have the hearing dismissed, the person must submit a written request for the dismissal of the hearing, signed by him or her, to the hearing officer before the date of the hearing. Upon receipt of the request for dismissal, the hearing officer shall dismiss the hearing and notify the person requesting the dismissal and the Department of the dismissal.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.782  Testimony under oath. (NRS 439.735)  All testimony to be considered in a hearing must be taken under oath. Except as otherwise provided in NAC 439.784, before testifying, a person must swear or affirm before the hearing officer to the truthfulness of the testimony he or she is about to give in the hearing.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.783  Conducting hearing in person; representation; evidence. (NRS 439.735)

     1.  Except as otherwise provided in NAC 439.784, a hearing must be conducted in person by a hearing officer.

     2.  An applicant or enrollee may represent himself or herself or may, in writing, authorize a person to represent him or her at the hearing, including, without limitation, an attorney.

     3.  Upon request, each party to the hearing shall submit to the hearing officer before the hearing copies of any evidence or exhibit that the party will present during the hearing. The provisions of this subsection do not preclude:

     (a) A party from presenting additional evidence during the hearing; or

     (b) An applicant or enrollee from presenting additional evidence after the hearing if requested by the hearing officer.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.784  Conducting hearing by telephone. (NRS 439.735)

     1.  The hearing officer may conduct the hearing over the telephone if he or she determines it is in the best interest of each party to the hearing to do so.

     2.  A hearing that is conducted over the telephone must be conducted at the office of a state agency or another location approved by the hearing officer in advance of the hearing, at which a representative of the Department will:

     (a) Be available to answer the telephone call the hearing officer places to begin the hearing;

     (b) Administer the oath required pursuant to NAC 439.782 to the applicant or enrollee; and

     (c) Receive any additional evidence that the applicant or enrollee wishes to submit and transmit it to the hearing officer by facsimile machine.

     3.  As used in this section, “facsimile machine” means a device that sends or receives a reproduction or facsimile of a document or photograph which is transmitted electronically or telephonically by telecommunications lines.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.785  Retention of record. (NRS 439.735)

     1.  The Department will produce a record of the hearing and retain it for 3 years after the date the decision of the hearing officer is issued or until the resolution of any judicial review of the decision, whichever occurs later.

     2.  As used in this section, “record of the hearing” means:

     (a) All the documents filed with the Department concerning the hearing;

     (b) The official recording of the hearing or a summary of the hearing prepared by a person designated by the Director of the Department;

     (c) All the evidence presented at the hearing and, if requested by the hearing officer pursuant to NAC 439.783, after the hearing; and

     (d) The decision of the hearing officer.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.786  Official recording of hearing; request for copy. (NRS 439.735)

     1.  The hearing officer presiding over a hearing conducted pursuant to NAC 439.779 to 439.787, inclusive, shall cause the hearing to be recorded on audiotape or any other means of sound reproduction. The Department will consider that recording to be the official recording of the hearing.

     2.  A person may obtain a copy of the official recording of a hearing in which the person was a party if he or she submits to the Department:

     (a) A written request; and

     (b) The fee charged by the Department for an official recording.

     3.  The fee for the official recording must not be more than the actual cost to the Department of the audiotape or other medium of sound reproduction used to record the hearing, plus the cost of shipping and handling if applicable.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.787  Decision of hearing officer. (NRS 439.735)

     1.  The decision of a hearing officer must be in writing and be based exclusively on evidence presented at the hearing or, if requested by the hearing officer pursuant to NAC 439.783, after the hearing.

     2.  Within 30 days after the date of the hearing, the Department will send the decision of the hearing officer by certified mail to the applicant or enrollee and to his or her authorized representative, if any.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.788  Duties of Department if decision of Department is overturned by hearing officer. (NRS 439.735)

     1.  If a hearing officer overturns a decision of the Department to deny a subsidy or a decision that an enrollee is ineligible to receive a subsidy, the Department will:

     (a) Reimburse the applicant or the enrollee for the actual out-of-pocket expenses for prescription drugs or pharmaceutical services incurred from the date that the applicant or the enrollee appealed the decision of the Department to the date that the decision of the hearing officer was issued;

     (b) Pay the amount of the subsidy due a contractor from the date that the applicant or the enrollee appealed the decision of the Department to the date that the decision of the hearing officer was issued; and

     (c) Reimburse the applicant or the enrollee, upon receipt of proof of payment for any premium paid to a contractor for a policy of health insurance from the date that the applicant or the enrollee appealed the decision of the Department to the date that the decision of the hearing officer was issued.

     2.  The provisions of this section apply regardless of whether the Department appeals the decision of the hearing officer.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

Miscellaneous Provisions

      NAC 439.789  Recoupment of subsidy paid in error; request by enrollee for waiver or reduction of amount required to be returned. (NRS 439.735)

     1.  Except as otherwise provided in subsections 4 and 5, the Department will pursue all legal remedies for the collection of debt, including, without limitation, those remedies set forth in chapter 353C of NRS, to recoup a subsidy that was paid in error from the contractor or enrollee determined by the Department to be responsible for the error, including, without limitation, a subsidy that was paid:

     (a) To a contractor who was not entitled to receive payment of the subsidy;

     (b) For an enrollee whose application for a subsidy was submitted with fraudulent intent; or

     (c) For an enrollee who was otherwise not qualified to receive the subsidy.

     2.  The Department will deposit all money it collects for a subsidy that was paid in error with the State Treasurer for credit to the Fund for a Healthy Nevada.

     3.  The Department may offset any amount due the Department from a contractor because the contractor was not entitled to receive payment of a subsidy or was paid an amount in excess of that which he or she was entitled to receive for payment of a subsidy against any amount owing to that contractor by the Department for the payment of any subsidy.

     4.  The provisions of paragraph (c) of subsection 1 do not apply if the amount of the subsidy that was paid is $100 or less.

     5.  Except as otherwise provided in this subsection, if the Department determines that an enrollee has received a subsidy in an amount that is in excess of the amount which he or she was entitled to receive, the Department will recoup the amount in excess from the enrollee in accordance with this section. An enrollee may request a waiver or reduction of the amount in excess which he or she is required to return to the Department based on hardship. Such a request must be submitted in writing to the Department. The Department will consider each request for such a waiver or reduction on a case-by-case basis. The Department will not consider a request for such a waiver or reduction if the application for a subsidy which resulted in an amount in excess being received by the enrollee was submitted with fraudulent intent.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.790  Confidentiality of records. (NRS 439.735)  The records of the Department relating to an applicant or enrollee are confidential and are considered protected health information under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (HIPAA). Any use or release of protected health information must comply with the HIPAA Privacy Manual established by the Department, which reflects the provisions of Part 164 of Title 45 of the Code of Federal Regulations.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

SENIOR PRESCRIPTION PROGRAM

General Provisions

      NAC 439.800  Short title. (NRS 439.655)  NAC 439.800 to 439.862, inclusive, may be referred to as the Senior Prescription Program.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.802  Definitions. (NRS 439.655)  As used in NAC 439.800 to 439.862, inclusive, unless the context otherwise requires, the words and terms defined in NAC 439.804 to 439.8225, inclusive, have the meanings ascribed to them in those sections.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.804  “Applicant” defined. (NRS 439.655)  “Applicant” means a person who applies to the Department to receive a subsidy for coverage for prescription drugs and pharmaceutical services pursuant to NRS 439.670.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004)

      NAC 439.806  “Contractor” defined. (NRS 439.655)  “Contractor” means:

     1.  A private insurer with whom the Department has entered into a contract pursuant to NRS 439.665 to make available, at a reasonable cost, policies of health insurance that provide coverage to senior citizens for prescription drugs and pharmaceutical services; or

     2.  An entity with which the Department has entered into a contract to manage pharmaceutical benefits, including, without limitation, processing and paying claims for pharmaceutical benefits on behalf of the Department.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.807  “Coordination of benefits” defined. (NRS 439.735)  “Coordination of benefits” means the coordination of the Senior Prescription Program with Medicare Part D in a manner that:

     1.  Maximizes coverage for prescription drugs and pharmaceutical services for persons in this State;

     2.  Minimizes disruptions in the enrollment of persons in this State in state and federal programs that provide coverage for prescription drugs and pharmaceutical services;

     3.  Minimizes disruptions in the eligibility of persons in this State for state and federal programs that provide coverage for prescription drugs and pharmaceutical services;

     4.  Minimizes out-of-pocket expenses for prescription drugs and pharmaceutical services for Medicare beneficiaries in this State; and

     5.  Maximizes federal funding for coverage for prescription drugs and pharmaceutical services for persons in this State.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.808  “Department” defined. (NRS 439.655)  “Department” means the Department of Health and Human Services.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.810  “Enrollee” defined. (NRS 439.655)  “Enrollee” means a person who the Department has determined is eligible to receive a subsidy for coverage for prescription drugs and pharmaceutical services pursuant to NRS 439.665.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004)

      NAC 439.812  “Hearing officer” defined. (NRS 439.655)  “Hearing officer” means a person who:

     1.  Did not participate in the decision of the Department that is the subject of the hearing; and

     2.  Is appointed by the Director of the Department or a designee thereof to preside at a hearing conducted pursuant to NAC 439.842 to 439.856, inclusive.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R200-03, 9-17-2004)

      NAC 439.813  “Household” defined. (NRS 439.655)  “Household” means an applicant and the spouse of the applicant.

     (Added to NAC by Dep’t of Human Resources by R143-01, eff. 12-17-2001)

      NAC 439.814  “Household income” defined. (NRS 439.655)  “Household income” has the meaning ascribed to it in NRS 439.640.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.816  “Income” defined. (NRS 439.655)  “Income” has the meaning ascribed to it in NRS 439.645.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.817  “Medicare Advantage plan with prescription drug coverage” and “MA-PD” defined. (NRS 439.735)  “Medicare Advantage plan with prescription drug coverage” or “MA-PD” means health benefits coverage, including, without limitation, qualified prescription drug coverage, offered pursuant to 42 C.F.R. § 423.4 under a policy or contract with Medicare by a Medicare Advantage organization as described in 42 C.F.R. § 422.2.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.8175  “Medicare Part D” defined. (NRS 439.735)  “Medicare Part D” means the federal prescription drug benefit established pursuant to Part 423 of Title 42 of the Code of Federal Regulations.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.818  “Open enrollment” defined. (NRS 439.655)  “Open enrollment” means a period prescribed by the Department during which an application for a subsidy may be filed.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001)

      NAC 439.819  “Prescription drug plan” and “PDP” defined. (NRS 439.735)  “Prescription drug plan” or “PDP” means coverage for prescription drugs that is offered under a policy, contract or plan which has been approved as specified in 42 C.F.R. § 423.272 and which is offered by a sponsor that has a contract with the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services that meets the contract requirements under Subpart K of Part 423 of Title 42 of the Code of Federal Regulations.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.820  “Senior citizen” defined. (NRS 439.655)  “Senior citizen” has the meaning ascribed to it in NRS 439.650.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.822  “Subsidy” defined. (NRS 439.655)  “Subsidy” means the amount of money that the Department may pay to a contractor on behalf of a senior citizen who meets the criteria for receiving a subsidy set forth in NRS 439.665 for coverage for prescription drugs and pharmaceutical services.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004)

      NAC 439.8225  “Traditional Senior Prescription Program” defined. (NRS 439.735)  “Traditional Senior Prescription Program” means the prescription drug benefits available to eligible applicants who are not also eligible for Medicare Part D.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

Application and Eligibility

      NAC 439.823  Eligibility for traditional benefits. (NRS 439.735)  Senior citizens who are not eligible for Medicare Part D may be eligible for traditional benefits under the Senior Prescription Program, based on the availability of funding and contractual agreements with a pharmacy benefit manager selected by the Department through a formal bidding process.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.8235  Eligibility for coordination of benefits. (NRS 439.735)  A senior citizen who is eligible for Medicare Part D may be eligible for assistance with out-of-pocket expenses for prescription drugs and pharmaceutical services. The availability of such coverage is subject to the availability of funding and legislative approval of state subsidies that are intended to maximize federal benefits and, to the extent possible, minimize out-of-pocket expenses for prescription drugs and pharmaceutical services. Eligibility for such coverage is subject to requirements that are similar, but not identical, to the requirements for the Traditional Senior Prescription Program, including, without limitation, all the following requirements:

     1.  An applicant must be 62 years of age or older.

     2.  An applicant must have an annual income that is less than the amount set forth in NRS 439.665.

     3.  An applicant who is eligible for Medicare Part D must enroll in Medicare Part D and a prescription drug plan or Medicare Advantage plan with prescription drug coverage.

     4.  An applicant who is eligible for any federal subsidy under Medicare Part D must apply for and use any such subsidy before requesting such coverage through the Senior Prescription Program.

     5.  An applicant who is not eligible for full Medicaid in this State must meet a 1-year residency requirement as set forth in NRS 439.665.

     6.  An applicant who is enrolled in full Medicaid in this State is not required to meet the 1-year residency requirement for a subsidy approved by the Legislature. Depending upon the technical aspects of the coordination of benefits, the Department may allow such an applicant to receive such coverage without actually enrolling in the Senior Prescription Program.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.824  Request for information. (NRS 439.655)  Upon request, the Department will provide information to an applicant relating to the criteria for receiving a subsidy, including, without limitation, any documentation that the Department may require the applicant to provide to the Department to verify that the applicant is eligible to receive a subsidy.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.826  Requirements for application; open enrollment; request for waiver of eligibility requirement regarding household income. (NRS 439.735)

     1.  In addition to meeting the criteria for receiving a subsidy set forth in NRS 439.665, an applicant who wishes to receive a subsidy must file a properly completed application for a subsidy with the Department during a period of open enrollment.

     2.  The application must be made:

     (a) On a form prescribed by the Department; and

     (b) Under oath as required by NRS 439.670.

     3.  The Department may require an applicant to provide, with the application, proof of his or her:

     (a) Age by submitting a copy of his or her birth certificate, driver’s license, social security letter, Medicare card, military discharge papers or other appropriate document satisfactory to the Department;

     (b) Income by submitting a copy of his or her income tax returns, a copy of his or her Social Security Form SSA-1099, copies of wage statements, copies of dividend statements or other appropriate documentation satisfactory to the Department of any other sources of income received by the applicant in the 12 months immediately preceding the date of the application;

     (c) Assets by submitting a copy of income tax returns, copies of savings account statements, copies of stock certificates or other appropriate documentation satisfactory to the Department; and

     (d) Continuous residency in this State for at least the 12 months immediately preceding the date of the application by submitting a copy of utility bills, rental agreements or any other appropriate documentation satisfactory to the Department.

     4.  Each applicant shall provide the Department with his or her social security number.

     5.  Each applicant shall provide the following information about his or her status regarding Medicare Part D:

     (a) Each applicant must declare whether he or she is eligible for and enrolled in Medicare Part D, whether in a PDP or MA-PD, and, if so, must provide the name of the plan.

     (b) Each applicant who is eligible for Medicare Part D must avail himself or herself of that benefit and apply for any applicable federal low-income subsidy before seeking additional assistance through the Senior Prescription Program.

     (c) If the applicant is not enrolled in Medicare Part D because the applicant missed the period of open enrollment, the applicant must state the reason for missing the period of open enrollment. Depending upon the circumstances, such an applicant may be considered for temporary enrollment in the Traditional Senior Prescription Program. The applicant must then enroll in Medicare Part D and a PDP or MA-PD at the next available opportunity or the applicant will be terminated from the Senior Prescription Program.

     (d) By checking “Yes” or “No” in the appropriate place, the applicant must decide whether to grant the Senior Prescription Program the authority to act as his or her authorized representative and, as such, to enroll the applicant in an appropriate PDP or MA-PD. Such authority does not preclude the applicant from changing his or her PDP or MA-PD before implementation of Medicare Part D on January 1, 2006, or during subsequent periods of open enrollment if the applicant is not satisfied with the assignment made by the Senior Prescription Program.

     6.  Each year in which there is money available from the amount allocated for subsidies by the Department, the Department will designate at least one period of open enrollment.

     7.  An application shall be deemed received by the Department on the date that the completed application is received by the Department.

     8.  An application shall be deemed properly completed if the application:

     (a) Is submitted on the form prescribed by the Department and filled out completely;

     (b) Includes the documentation described in subsection 3, if such documentation is required by the Department; and

     (c) Includes the social security number of the applicant as required pursuant to subsection 4.

Ê The Department will return any incomplete application to the applicant with a designation that the application has not been processed by the Department.

     9.  If an applicant or enrollee requests a waiver of the eligibility requirement regarding household income pursuant to subsection 5 of NRS 439.665 because of an illness or disability or extreme financial hardship, the applicant or enrollee must include with that request a written statement signed by a licensed physician certifying the illness or disability or other appropriate documentation that satisfies the Department that an extreme financial hardship exists. The Department will consider each request for such a waiver on a case-by-case basis.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.828  Notice of approval or denial of application; notice of name of new enrollee. (NRS 439.735)

     1.  Within 45 days after receiving an application for a subsidy, the Department will provide written notice to the applicant of its approval or denial of the application.

     2.  If the application is approved, the notice must state:

     (a) The amount of the subsidy that the Department will pay to a contractor, PDP or MA-PD, or to the State Plan for Medicaid on behalf of the applicant;

     (b) The amount of the annual household income on which the eligibility was based; and

     (c) If the applicant is deemed eligible but there is insufficient money available from the amount allocated for subsidies by the Department, that the applicant has been placed on a waiting list in the order of priority described in NAC 439.830.

     3.  If the application is denied, the notice must state:

     (a) The reason for the denial;

     (b) The procedure for requesting a hearing to review the decision of the Department as set forth in NAC 439.842; and

     (c) The procedures for a hearing before the Department as set forth in NAC 439.842 to 439.856, inclusive.

     4.  Within 30 days after the Department approves an application, the Department will provide the name of the new enrollee whose application was approved to the contractor or any other entity necessary to ensure appropriate coordination of benefits.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.830  Order of priority if there is insufficient money available; qualifying hardship; granting of subsidy to applicant on waiting list if sufficient money becomes available. (NRS 439.655)

     1.  Except as otherwise provided in subsections 2, 3 and 4, if there is insufficient money available for each applicant from the amount allocated for subsidies by the Department, the Department will rank the applicants whose applications are approved based on their household income. The applicant with the lowest household income will receive priority over the other applicants. If the household income of two applicants is exactly the same amount, the applicant whose application was received earlier by the Department will receive priority over the other applicant.

     2.  If an applicant documents a medical condition that will deteriorate rapidly if prescribed medications are not taken, the applicant will receive priority over other applicants on the waiting list, regardless of income level. If two applicants document such emergent medical conditions, the applicant whose application was received earlier by the Department will receive priority over the other applicant.

     3.  If the Department determines that an applicant whose income exceeds the established limits has a qualifying financial hardship, the applicant will be ranked on the priority list at his or her adjusted income level, which is the applicant’s actual income minus medical costs or the cost of another qualifying hardship.

     4.  If the Department determines that an applicant has a qualifying hardship, the applicant will receive priority over the other applicants. If two or more applicants have qualifying hardships, the Department will determine the order of priority as between each of those applicants based on the needs of each applicant.

     5.  If, at any time, the Department determines that there is sufficient money available from the amount allocated for subsidies by the Department for more applicants, the Department may grant a subsidy to an applicant on the waiting list in the order of priority described in this section. If the Department grants a subsidy pursuant to this subsection, the Department will provide written notice to the applicant in the manner set forth in NAC 439.828.

     6.  For the purposes of this section, an applicant shall be deemed to have a qualifying hardship if the applicant submits to the Department:

     (a) Documentation satisfactory to the Department that verifies that the monthly cost of prescription drugs, pharmaceutical services or out-of-pocket medical expenses, or any combination thereof, for the applicant’s household is causing a hardship;

     (b) A written statement signed by a licensed physician certifying that, because of the applicant’s need for a prescription drug or pharmaceutical service, the failure of the applicant to take the prescription drug will place the life of the applicant in imminent danger; or

     (c) Documentation satisfactory to the Department that verifies any other hardship of the applicant that the Department determines is a qualifying hardship.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.831  Calculation of household income; eligibility for subsidy if maximum household income exceeded. (NRS 439.655)

     1.  For the purposes of determining whether an applicant satisfies the eligibility requirement set forth in NRS 439.665 regarding household income, the Department:

     (a) Will calculate the monthly household income for the month in which an application is filed with the Department pursuant to NAC 439.826 and multiply that number by 12; or

     (b) May, if the household income fluctuates from month to month:

          (1) Add the monthly household income over a period of at least 2 months;

          (2) Divide the sum calculated pursuant to subparagraph (1) by the number of months within the period described in subparagraph (1); and

          (3) Multiply the quotient calculated pursuant to subparagraph (2) by 12.

     2.  Except as otherwise provided in subsection 9 of NAC 439.826, an applicant is not eligible for a subsidy if the household income of the applicant for the year in which the applicant submits his or her application exceeds the maximum household income set forth in NRS 439.665.

     3.  For the purposes of subsection 2, the year in which the applicant submits the application:

     (a) Is not tied to the calendar year or fiscal year; and

     (b) Begins with the month that the application is submitted and carries forward through the succeeding 12 months.

     (Added to NAC by Dep’t of Human Resources by R143-01, eff. 12-17-2001; A by R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.834  Information and documentation: Cooperation with Department; updating. (NRS 439.735)

     1.  An applicant or enrollee shall cooperate with the Department in securing all information and documentation necessary to determine or confirm the eligibility of the applicant or continued eligibility of the enrollee to receive a subsidy. If the applicant or enrollee fails to cooperate, the Department will deny the application or will deem the enrollee ineligible to receive a subsidy.

     2.  An enrollee shall update the information contained in the application filed with the Department pursuant to NAC 439.826 that relates to his or her eligibility to receive a subsidy, including, without limitation, a change in his or her:

     (a) Name;

     (b) Address;

     (c) Telephone number;

     (d) Household income;

     (e) Marital status;

     (f) Eligibility for Medicare Part D;

     (g) Enrollment in a PDP or MA-PD or selection of a different PDP or MA-PD;

     (h) Eligibility for Medicaid; or

     (i) Eligibility for supplemental security income,

Ê by notifying the Department in writing within 20 days after the information becomes available to him or her.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.836  Continuing eligibility; annual review. (NRS 439.655)

     1.  If the Department approves an application for a subsidy, the enrollee remains eligible to receive the subsidy as long as he or she continues to meet the criteria for receiving a subsidy set forth in this chapter and chapter 439 of NRS.

     2.  The Department will review the eligibility of each enrollee at least annually. In conducting this review, the Department will compare the information it has received from the enrollee with information concerning the enrollee that is maintained by other federal, state, county and local agencies, as well as other organizations that administer programs for low-income persons or persons with disabilities.

     3.  If the Department is unable to determine the continuing eligibility of the enrollee in the manner set forth in subsection 2, the Department may require the enrollee to provide additional documentation, including, without limitation, a copy of the income tax returns of the enrollee.

     4.  If the Department is unable to obtain the additional documentation required pursuant to subsection 3, the Department will deem the enrollee ineligible to receive a subsidy.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.838  Discontinuation of subsidy to enrollee: Request by enrollee; ineligibility of enrollee; granting of subsidy to applicant on waiting list if enrollee determined ineligible. (NRS 439.735)

     1.  If an enrollee who is receiving a subsidy wishes to discontinue receiving the subsidy, he or she must submit a written request to that effect to the Department and notify the contractor in writing.

     2.  If, based on information the Department receives, the Department reasonably believes that an enrollee no longer meets the criteria for receiving a subsidy because one of the circumstances set forth in subsection 3 applies to the enrollee, it shall provide the enrollee with notice as set forth in NAC 439.840 and an opportunity for a hearing.

     3.  The circumstances in which an enrollee no longer meets the criteria for receiving a subsidy include, without limitation, that:

     (a) The enrollee is eligible for coverage for prescription drugs and pharmaceutical services through Medicare Part D, but the enrollee declines to enroll in that program or in a PDP or MA-PD, or the enrollee declines to apply for any federal subsidy available to him or her, or both;

     (b) The enrollee is eligible for coverage for prescription drugs and pharmaceutical services through Medicare Part D and qualifies for a federal low-income subsidy as a “very low-income beneficiary”;

     (c) The enrollee is eligible for coverage for prescription drugs and pharmaceutical services through Medicaid;

     (d) The household income of the enrollee exceeds the maximum household income set forth in NRS 439.665;

     (e) The enrollee knowingly provided incorrect information on the application that he or she filed with the Department pursuant to NAC 439.826 and failed to correct the information within a reasonable time as determined by the Department;

     (f) The enrollee failed to maintain residency in this State; or

     (g) The enrollee failed to respond timely to a request for verification of the income of the applicant or of any other annual eligibility requirement.

     4.  The Department will deem an enrollee to be ineligible to receive a subsidy if the enrollee does not request a hearing within 30 days after the date of the notice provided to the enrollee pursuant to subsection 2.

     5.  If an enrollee no longer meets the criteria for receiving a subsidy because one of the circumstances set forth in subsection 3 applies to the enrollee, the Department will grant a subsidy to an applicant on the waiting list, if any, in the order of priority described in NAC 439.830.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

      NAC 439.840  Notice to enrollee of determination regarding ineligibility. (NRS 439.655)  If the Department determines that an enrollee no longer meets the criteria for receiving a subsidy set forth in this chapter and chapter 439 of NRS, it will notify the enrollee in writing that the enrollee is ineligible to receive a subsidy. The notice must inform the enrollee:

     1.  Of the reason that the enrollee is ineligible to receive a subsidy;

     2.  Of the procedures set forth in NAC 439.842 for requesting a hearing to review the decision of the Department; and

     3.  Of any free or inexpensive legal services available in the area and must provide telephone numbers of the organizations providing those services.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

Hearing

      NAC 439.842  Request for hearing; scheduling of hearing. (NRS 439.655)

     1.  An applicant or enrollee who is aggrieved by a decision of the Department concerning a subsidy and who wishes to have a hearing before the Department must file a written request for a hearing with the Department within 30 days after the date of the notice of the decision from the Department.

     2.  The Department will schedule a hearing within 45 days after it receives the request for a hearing.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.843  Continuation of benefits pending outcome of hearing. (NRS 439.655)

     1.  Benefits of an existing enrollee may be continued pending the outcome of the hearing if the enrollee requests such continuation within 10 days after the date of the decision by the Department.

     2.  The Department will deny a request for continuation of benefits if the request for a hearing is also denied pursuant to NAC 439.844.

     3.  If benefits are continued and the decision of the hearing officer upholds the decision of the Department, the Department may require the enrollee to reimburse the Department for benefits paid on behalf of the enrollee.

     (Added to NAC by Dep’t of Health & Human Services by R157-05, eff. 11-17-2005)

      NAC 439.844  Denial of request for hearing; request for dismissal. (NRS 439.655)

     1.  The Department will deny a request for a hearing received pursuant to NAC 439.842 if:

     (a) The sole issue being contested is an issue that may only be resolved by amending the provisions of NRS 439.635 to 439.690, inclusive;

     (b) The sole issue being contested is that the Department denied an application for a subsidy, discontinued paying a subsidy or reduced the amount of a subsidy, if that action by the Department was based only upon the limits of the money available from the amount allocated for subsidies by the Department;

     (c) The sole issue being contested is an issue that relates to a determination of the coverage of a policy of health insurance under which an enrollee is covered and the enrollee has failed to complete a process for resolving disputes established by the contractor; or

     (d) The request is not received by the Department within the limit on time set forth in NAC 439.842.

     2.  If a person who filed a request for a hearing wishes to have the hearing dismissed, the person must submit a written request for the dismissal of the hearing, signed by him or her, to the hearing officer before the date of the hearing. Upon receipt of the request for dismissal, the hearing officer shall dismiss the hearing and notify the person requesting the dismissal and the Department of the dismissal.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004)

      NAC 439.846  Testimony under oath. (NRS 439.655)  All testimony to be considered in a hearing must be taken under oath. Except as otherwise provided in NAC 439.850, before testifying, a person must swear or affirm before the hearing officer to the truthfulness of the testimony he or she is about to give in the hearing.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.848  Conducting hearing in person; representation; evidence. (NRS 439.655)

     1.  Except as otherwise provided in NAC 439.850, a hearing must be conducted in person by a hearing officer.

     2.  An applicant or enrollee may represent himself or herself or may, in writing, authorize a person to represent him or her at the hearing, including, without limitation, an attorney.

     3.  Upon request, each party to the hearing shall submit to the hearing officer before the hearing copies of any evidence or exhibit that the party will present during the hearing. The provisions of this subsection do not preclude:

     (a) A party from presenting additional evidence during the hearing; or

     (b) An applicant or enrollee from presenting additional evidence after the hearing if requested by the hearing officer.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.850  Conducting hearing by telephone. (NRS 439.655)

     1.  The hearing officer may conduct the hearing over the telephone if he or she determines it is in the best interest of each party to the hearing to do so.

     2.  A hearing that is conducted over the telephone must be conducted at the office of a state agency or another location approved by the hearing officer in advance of the hearing, at which a representative of the Department will:

     (a) Be available to answer the telephone call the hearing officer places to begin the hearing;

     (b) Administer the oath required pursuant to NAC 439.846 to the applicant or enrollee; and

     (c) Receive any additional evidence that the applicant or enrollee wishes to submit and transmit it to the hearing officer by facsimile machine.

     3.  As used in this section, “facsimile machine” means a device that sends or receives a reproduction or facsimile of a document or photograph which is transmitted electronically or telephonically by telecommunications lines.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001)

      NAC 439.852  Retention of record. (NRS 439.655)

     1.  The Department will produce a record of the hearing and retain it for 3 years after the date the decision of the hearing officer is issued or until the resolution of any judicial review of the decision, whichever occurs later.

     2.  As used in this section, “record of the hearing” means:

     (a) All the documents filed with the Department concerning the hearing;

     (b) The official recording of the hearing or a summary of the hearing prepared by a person designated by the Director of the Department;

     (c) All the evidence presented at the hearing and, if requested by the hearing officer pursuant to NAC 439.848, after the hearing; and

     (d) The decision of the hearing officer.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.854  Official recording of hearing; request for copy. (NRS 439.655)

     1.  The hearing officer presiding over a hearing conducted pursuant to NAC 439.842 to 439.856, inclusive, shall cause the hearing to be recorded on audiotape or any other means of sound reproduction. The Department will consider that recording to be the official recording of the hearing.

     2.  A person may obtain a copy of the official recording of a hearing in which he or she was a party if the person submits to the Department:

     (a) A written request; and

     (b) The fee charged by the Department for an official recording.

     3.  The fee for the official recording must not be more than the actual cost to the Department of the audiotape or other medium of sound reproduction used to record the hearing, plus the cost of shipping and handling if applicable.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.856  Decision of hearing officer. (NRS 439.655)

     1.  The decision of a hearing officer must be in writing and be based exclusively on evidence presented at the hearing or, if requested by the hearing officer pursuant to NAC 439.848, after the hearing.

     2.  Within 30 days after the date of the hearing, the Department will send the decision of the hearing officer by certified mail to the applicant or enrollee and to his or her authorized representative, if any.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001)

      NAC 439.858  Duties of Department if decision of Department is overturned by hearing officer. (NRS 439.655)

     1.  If a hearing officer overturns a decision of the Department to deny a subsidy or that an enrollee is ineligible to receive a subsidy, the Department will:

     (a) Reimburse the applicant or the enrollee for the actual out-of-pocket expenses for prescription drugs or pharmaceutical services incurred from the date that the applicant or the enrollee appealed the decision of the Department to the date that the decision of the hearing officer was issued;

     (b) Pay the amount of the subsidy due to a contractor from the date that the applicant or the enrollee appealed the decision of the Department to the date that the decision of the hearing officer was issued; and

     (c) Reimburse the applicant or the enrollee, upon receipt of proof of payment for any premium paid to a contractor for a policy of health insurance from the date that the applicant or the enrollee appealed the decision of the Department to the date that the decision of the hearing officer was issued.

     2.  The provisions of this section apply regardless of whether the Department appeals the decision of the hearing officer.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

Miscellaneous Provisions

      NAC 439.860  Recoupment of subsidy paid in error; request by enrollee for waiver or reduction of amount required to be returned. (NRS 439.655)

     1.  Except as otherwise provided in subsections 4 and 5, the Department will pursue all legal remedies for the collection of debt, including, without limitation, those remedies set forth in chapter 353C of NRS, to recoup a subsidy that was paid in error from the contractor or enrollee determined by the Department to be responsible for the error, including, without limitation, a subsidy that was paid:

     (a) To a contractor who was not entitled to receive payment of the subsidy;

     (b) For an enrollee whose application for a subsidy was submitted with fraudulent intent; or

     (c) For an enrollee who was otherwise not qualified to receive the subsidy.

     2.  The Department will deposit all money it collects for a subsidy that was paid in error with the State Treasurer for credit to the Fund for a Healthy Nevada.

     3.  The Department may offset any amount due the Department from a contractor because the contractor was not entitled to receive payment of a subsidy or was paid an amount in excess of that which he or she was entitled to receive for payment of a subsidy against any amount owing to that contractor by the Department for the payment of any subsidy.

     4.  The provisions of paragraph (c) of subsection 1 do not apply if the amount of the subsidy that was paid is $100 or less.

     5.  Except as otherwise provided in this subsection, if the Department determines that an enrollee has received a subsidy in an amount that is in excess of the amount which he or she was entitled to receive, the Department will recoup the amount in excess from the enrollee in accordance with this section. An enrollee may request a waiver or reduction of the amount in excess which he or she is required to return to the Department based on hardship. Such a request must be submitted in writing to the Department. The Department will consider each request for such a waiver or reduction on a case-by-case basis. The Department will not consider a request for such a waiver or reduction if the application for a subsidy which resulted in an amount in excess being received by the enrollee was submitted with fraudulent intent.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by R143-01, 12-17-2001; R200-03, 9-17-2004)

      NAC 439.862  Confidentiality of records. (NRS 439.655)  The records of the Department relating to an applicant or enrollee are confidential and are considered protected health information under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (HIPAA). Any use or release of protected health information must comply with the HIPAA Privacy Manual established by the Department, which reflects the provisions of Part 164 of Title 45 of the Code of Federal Regulations.

     (Added to NAC by Dep’t of Human Resources by R069-00, eff. 3-2-2001; A by Dep’t of Health & Human Services by R157-05, 11-17-2005)

IMMUNIZATION INFORMATION SYSTEM

      NAC 439.870  Definitions. (NRS 439.200, 439.265)  As used in NAC 439.870 to 439.897, inclusive, unless the context otherwise requires, the words and terms defined in NAC 439.873 to 439.880, inclusive, have the meanings ascribed to them in those sections.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008)

      NAC 439.873  “Department” defined. (NRS 439.200, 439.265)  “Department” means the Department of Health and Human Services.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008)

      NAC 439.875  “Division” defined. (NRS 439.200, 439.265)  “Division” means the Division of Public and Behavioral Health of the Department.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008)

      NAC 439.877  “Provider” defined. (NRS 439.200, 439.265)  “Provider” means any person who is licensed, certified or otherwise authorized by the laws of this State, or the regulations adopted pursuant thereto, to administer immunizations.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008)

      NAC 439.880  “System” defined. (NRS 439.200, 439.265)  “System” means the Immunization Information System established by the Department pursuant to NRS 439.265.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008)

      NAC 439.883  Notice to parent or guardian by provider regarding System; contents; notice to provider to opt out of System. (NRS 439.200, 439.265)

     1.  A provider administering an immunization to a child shall provide notice about the System to the parent or guardian of the child on a form provided by the Division. The notice must include:

     (a) A description of the System;

     (b) A description of the information concerning the child which will be reported by the provider for inclusion in the System, including, without limitation, the immunization record of the child and the information required by NAC 439.890; and

     (c) The procedure for a parent or guardian to decline inclusion of the information concerning his or her child in the System.

     2.  The notice required by subsection 1 must be provided upon the initial visit of a child to a provider for administration of an immunization.

     3.  If a parent or guardian declines inclusion of the information concerning his or her child in the System, the parent or guardian is responsible for notifying the provider of his or her decision to opt out of the System at each subsequent visit of the child to the provider for an immunization.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008)

      NAC 439.885  Notice to adult by provider regarding System; contents; notice to provider by adult to opt out of System. (NRS 439.200)

     1.  A provider administering an immunization to an adult shall provide notice about the System to the adult on a form provided by the Division. The notice must include:

     (a) A description of the System;

     (b) A description of the information concerning the adult which will be reported by the provider for inclusion in the System, including, without limitation, the immunization record of the adult and the information set forth in NAC 439.893; and

     (c) The procedure for an adult to decline inclusion of his or her information in the System.

     2.  The notice required by subsection 1 must be provided upon the initial visit of an adult to a provider for administration of an immunization.

     3.  An adult may withdraw his or her participation in the System at any time in accordance with the procedure prescribed by the Division.

     4.  If an adult declines inclusion of his or her information in the System, the adult is responsible for notifying the provider of the decision to opt out of the System at each subsequent visit of the adult to the provider for an immunization.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008; A by R094-09, 1-28-2010)

      NAC 439.887  Inclusion of records in System for immunizations administered before July 1, 2009; requests for removal of records from System. (NRS 439.200, 439.265)

     1.  Except as otherwise provided in subsection 3, the Division shall include in the System all immunization records in the possession of the Division for immunizations of children and adults administered before July 1, 2009.

     2.  Except as otherwise provided in this subsection and subsection 3, a provider may report to the System the records of the immunizations administered to any child or adult before July 1, 2009, if such information was not previously reported. A provider may report the information concerning an adult unless the adult has declined inclusion of his or her information in the System pursuant to NAC 439.885.

     3.  The Division shall develop and make available to providers and the general public the form by which the parent or guardian of a child or an adult may request the removal of the immunization records included in the System pursuant to this section.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008; A by R094-09, 1-28-2010)

      NAC 439.890  Reporting of information concerning immunizations administered to children; contents and form. (NRS 439.200, 439.265)

     1.  In addition to the information required by NRS 439.265, a provider who administers an immunization to a child on or after July 1, 2009, shall report the following information, if available, to the Department for inclusion in the System:

     (a) The address of the child;

     (b) The county in which the child resides;

     (c) The child’s date of birth;

     (d) The state and country in which the child was born;

     (e) The full name of the child’s mother;

     (f) The manufacturer and lot number of the vaccine administered to the child;

     (g) The date on which the immunization was administered to the child; and

     (h) The information required pursuant to the Listing of Core Data Items prescribed by the Centers for Disease Control and Prevention of the United States Department of Health and Human Services. A copy of the Listing of Core Data Items may be obtained, free of charge, from:

          (1) The Centers for Disease Control and Prevention at the Internet address http://www.cdc.gov/vaccines/programs/iis/stds/coredata.htm; or

          (2) The Department by mail at 4126 Technology Way, Room 100, Carson City, Nevada 89706, or by telephone at (775) 684-4000.

     2.  The Division shall provide the form for reporting the information required by subsection 1. A provider shall report the information:

     (a) Directly to the System; or

     (b) If an undue hardship prevents the provider from reporting the information directly to the System, using the form provided by the Division.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008; A by R094-09, 1-28-2010)

      NAC 439.893  Reporting of information concerning immunizations administered to adult; contents and form. (NRS 439.200)

     1.  A provider who administers an immunization to an adult on or after July 1, 2009, shall, unless the adult has declined inclusion of his or her information in the System pursuant to NAC 439.885, report the following information, if available, to the Department:

     (a) The name and address of the person who received the immunization;

     (b) The county in which the person resides;

     (c) The person’s date of birth;

     (d) The state and country in which the person was born;

     (e) The person’s gender;

     (f) The person’s race or ethnicity;

     (g) The name, manufacturer and lot number of the vaccine administered to the person;

     (h) The date on which the immunization was administered to the person; and

     (i) The information required pursuant to the Listing of Core Data Items prescribed by the Centers for Disease Control and Prevention of the United States Department of Health and Human Services. A copy of the Listing of Core Data Items may be obtained, free of charge, from:

          (1) The Centers for Disease Control and Prevention at the Internet address http://www.cdc.gov/vaccines/programs/iis/stds/coredata.htm; or

          (2) The Department by mail at 4126 Technology Way, Room 100, Carson City, Nevada 89706, or by telephone at (775) 684-4000.

     2.  The Division shall provide the form for reporting the information required by subsection 1. A provider shall report the information:

     (a) Directly to the System; or

     (b) If an undue hardship prevents the provider from reporting the information directly to the System, using the form provided by the Division.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008; A by R094-09, 1-28-2010)

      NAC 439.895  Confidentiality and access. (NRS 439.200, 439.265)  Except as otherwise provided in NRS 439.265 or other specific statute, the information included in the System is confidential and access must be limited to:

     1.  A provider of health care as defined in NRS 439.820;

     2.  The Nevada System of Higher Education or a private college or university authorized to operate in this State;

     3.  A child care facility as defined in NRS 432A.024;

     4.  Public schools and private schools as defined in NRS 385.007 and 394.103, respectively;

     5.  The Department;

     6.  An insurer as defined in NRS 679B.540, regardless of whether the insurer directly covered the immunization;

     7.  An agency which provides child welfare services as defined in NRS 432B.030; and

     8.  The Department of Corrections.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008)

      NAC 439.897  Official certificate of immunization. (NRS 439.200, 439.265)  An immunization record provided by the System shall be deemed an official certificate of immunization, as required for enrollment in any school, college or university and child care facility in this State.

     (Added to NAC by Bd. of Health by R041-08, eff. 9-18-2008)

HEALTH AND SAFETY OF PATIENTS AT CERTAIN MEDICAL FACILITIES

      NAC 439.900  Definitions. (NRS 439.890)  As used in NAC 439.900 to 439.945, inclusive, unless the context otherwise requires, the words and terms defined in NAC 439.902 to 439.912, inclusive, have the meanings ascribed to them in those sections.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004)

      NAC 439.902  “Division” defined. (NRS 439.890)  “Division” means the Division of Public and Behavioral Health of the Department of Health and Human Services.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004; A by Bd. of Health by R044-10, 10-15-2010)

      NAC 439.903  “Facility-acquired infection” defined. (NRS 439.890)  “Facility-acquired infection” has the meaning ascribed to it in NRS 439.802.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)—(Substituted in revision for NAC 439.901)

      NAC 439.904  “Medical facility” defined. (NRS 439.890)  “Medical facility” has the meaning ascribed to it in NRS 439.805.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004)

      NAC 439.905  “National Healthcare Safety Network” defined. (NRS 439.890)  “National Healthcare Safety Network” means the secure, Internet-based surveillance system established by the Division of Healthcare Quality Promotion of the Centers for Disease Control and Prevention of the United States Department of Health and Human Services that integrates patient and health care personnel safety surveillance systems.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)

      NAC 439.906  “Patient” defined. (NRS 439.890)  “Patient” has the meaning ascribed to it in NRS 439.810.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004)

      NAC 439.908  “Patient safety officer” defined. (NRS 439.890)  “Patient safety officer” has the meaning ascribed to it in NRS 439.815.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004)

      NAC 439.909  “Physician” defined. (NRS 439.890)  “Physician” means:

     1.  A physician licensed pursuant to chapter 630 of NRS;

     2.  A homeopathic physician licensed pursuant to chapter 630A of NRS;

     3.  An osteopathic physician licensed pursuant to chapter 633 of NRS;

     4.  A chiropractic physician licensed pursuant to chapter 634 of NRS; or

     5.  A podiatric physician licensed pursuant to chapter 635 of NRS.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)

      NAC 439.910  “Provider of health care” defined. (NRS 439.890)  “Provider of health care” has the meaning ascribed to it in NRS 439.820.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004)

      NAC 439.912  “Sentinel event” defined. (NRS 439.890)  “Sentinel event” has the meaning ascribed to it in NRS 439.830.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004)

      NAC 439.915  Mandatory reports of sentinel events: Submission; form and contents. (NRS 439.835, 439.890)

     1.  A report submitted pursuant to NRS 439.835 must be submitted in the format prescribed pursuant to subsection 4 and must include, without limitation:

     (a) The unique identification code assigned to the medical facility by the Division pursuant to subsection 5;

     (b) The name of the person who is making the report;

     (c) The date on which the sentinel event occurred;

     (d) The date and time that the medical facility was notified of the occurrence of the sentinel event;

     (e) If the patient resides in this State, the county in which the patient resides;

     (f) If the patient does not reside in this State, the state or country in which the patient resides;

     (g) The date of birth of the patient;

     (h) The gender of the patient;

     (i) A description of the sentinel event; and

     (j) The department of the medical facility at which the sentinel event occurred.

     2.  Within 45 days after receiving notification or becoming aware of the occurrence of a sentinel event pursuant to subsection 1 or 2 of NRS 439.835, the patient safety officer of the medical facility in which the sentinel event occurred must submit a second report to the Division. A report required by this subsection must be submitted in the format prescribed pursuant to subsection 4 and must include, without limitation:

     (a) The factors that contributed to the sentinel event, including, without limitation:

          (1) Any medical or other condition of the patient;

          (2) Any policy, procedure or process of the medical facility;

          (3) Any environmental condition of the medical facility;

          (4) Any behavior of a member of the staff of the medical facility;

          (5) Any situation present at the medical facility; and

          (6) Any problem involving communication or documentation at the medical facility.

     (b) The corrective actions, if any, identified pursuant to NAC 439.917 that will be taken by the medical facility to address the factors that contributed to the sentinel event, including, without limitation:

          (1) A review of the policies, procedures or processes of the medical facility;

          (2) Any change or development of the policies, procedures or processes of the medical facility;

          (3) Any disciplinary actions taken against a member of the staff of the medical facility by the medical facility;

          (4) Any environmental or equipment changes made in the medical facility;

          (5) Any education or retraining provided to the staff of the medical facility;

          (6) The date by which each corrective action will be completed; and

          (7) The title of the person who is responsible for overseeing each corrective action.

     (c) A copy of the plan to remedy the causes or contributing factors, or both, of the sentinel event developed pursuant to subsection 3 of NAC 439.917 or the statement prepared pursuant to subsection 4 of that section.

     3.  A report submitted pursuant to subsection 1 must indicate the date and time that the report was submitted to the Division. Proof satisfactory to the Division of the date and time that a report was submitted includes:

     (a) The postmark on the package in which the report was submitted to the Division;

     (b) The time stamp created by a facsimile machine used to transmit the report to the Division;

     (c) The electronic time stamp created by a program of electronic mail used to transmit the report to the Division; and

     (d) Any other evidence acceptable to the Division, as indicated on the form created by the Division pursuant to subsection 4.

     4.  The Division shall develop the format for each report required by subsection 1 or 2, which must require, without limitation, the reporting of information relating to events on the list of serious reportable events contained in the most recent version of “Serious Reportable Events in Healthcare,” issued by the National Quality Forum, which is hereby adopted by reference. The Division shall distribute copies of the forms created pursuant to this subsection to each medical facility in this State. The Division shall notify medical facilities that an update to a form is available within 30 days after making a change to a form.

     5.  The Division shall assign a unique identification code to each medical facility in this State, to be used on the reports required by subsections 1 and 2.

     6.  The most recent edition of “Serious Reportable Events in Healthcare,” which is adopted by reference in subsection 4, may be obtained free of charge from the National Quality Forum, 601 13th Street, N.W., Suite 500 North, Washington, D.C. 20005 or on the Internet at http://www.qualityforum.org/Publications.aspx. If the State Board of Health determines that a revision is not suitable for this State, the Board will:

     (a) Hold a public hearing to review its determination within 6 months after the date of the publication of the revision; and

     (b) Give notice of that hearing.

Ê If, after the hearing, the Board does not revise its determination, the Board will give notice within 30 days after the hearing that the revision is not suitable for this State. If the Board does not give such notice, the revision becomes part of the publication adopted by reference in subsection 4.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004; A by Bd. of Health by R044-10, 10-15-2010)

      NAC 439.916  Reporting of sentinel event by a medical facility receiving a patient who was transferred or discharged from another medical facility. (NRS 439.835, 439.890)

     1.  If a medical facility that receives a patient who was transferred or discharged from another medical facility believes that a sentinel event affecting the patient occurred at the other medical facility, the medical facility that received the patient shall report the sentinel event to the facility from which the patient was transferred or discharged.

     2.  A medical facility that is informed of a sentinel event pursuant to subsection 1 shall report the sentinel event pursuant to NRS 439.835 and NAC 439.900 to 439.945, inclusive.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)

      NAC 439.917  Mandatory investigation of sentinel event by medical facility; plan to remedy causes or contributing factors; confidentiality. (NRS 439.837, 439.841, 439.890)

     1.  Within 45 days after reporting a sentinel event pursuant to NRS 439.835, the medical facility shall conduct an investigation of the causes or contributing factors, or both, of the sentinel event.

     2.  The investigation conducted pursuant to this section must:

     (a) Determine whether changes in the policies, procedures or processes of the medical facility are necessary to prevent a subsequent sentinel event under similar circumstances.

     (b) Follow a nationally recognized methodology for conducting an analysis of the root cause of the sentinel event, including, without limitation, the methodology prescribed by:

          (1) The Joint Commission; or

          (2) The United States Department of Veterans Affairs National Center for Patient Safety.

     (c) Be provided to the Division upon request.

     3.  Except as otherwise provided in subsection 4, a medical facility shall, after conducting an investigation pursuant to this section, develop and implement a plan to remedy the causes or contributing factors, or both, of the sentinel event. The plan must:

     (a) State how each finding of the investigation will be addressed and, if necessary, corrected by the medical facility;

     (b) Identify the changes and corrective actions that will be implemented by the medical facility to reduce risk to patients or provide an explanation for not implementing any changes or corrective actions;

     (c) Provide the title of the person responsible for implementing each change and corrective action identified in the plan;

     (d) Provide a timeline for implementing the plan, including, without limitation, when each change or corrective action will be implemented by the medical facility;

     (e) Provide for an evaluation of the effectiveness of the plan and a method for making revisions to the plan based on the evaluation;

     (f) Establish a schedule for monitoring and assessing the continued effectiveness of the plan; and

     (g) Provide the title of the person who is responsible for monitoring the overall plan.

     4.  If, after conducting an investigation pursuant to this section, a medical facility determines that a plan to remedy the causes or contributing factors, or both, of the sentinel event is not necessary, the medical facility shall prepare a written statement documenting the reasons for making such a determination.

     5.  Except as otherwise provided in this section and NRS 239.0115, information provided to the Division relating to the plan developed pursuant to subsection 3 or the statement prepared pursuant to subsection 4 and any additional information requested by the Division is confidential, not subject to subpoena or discovery and not subject to inspection by the general public.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)

      NAC 439.920  Patient safety committee: Establishment; composition; meetings. (NRS 439.875, 439.890)

     1.  A medical facility that has fewer than 25 employees and contractors shall establish a patient safety committee composed of:

     (a) The patient safety officer of the medical facility;

     (b) At least two providers of health care who treat patients at the medical facility, including, without limitation, one member of the medical staff and one member of the nursing staff of the medical facility; and

     (c) The chief executive officer or chief financial officer of the medical facility.

     2.  A patient safety committee established pursuant to this section must meet at least once every calendar quarter.

     (Added to NAC by Health Div. by R118-04, eff. 11-4-2004)

      NAC 439.925  Participation in National Healthcare Safety Network: Calculation of average patients per business day. (NRS 439.847, 439.890)  For purposes of subsection 1 of NRS 439.847, to determine whether a medical facility provides medical services and care to an average of 25 or more patients during each business day in the immediately preceding calendar year, the Division shall:

     1.  For a hospital described in NRS 439.805, divide the total number of inpatients admitted to the hospital during the preceding calendar year by 365.

     2.  For a medical facility other than a hospital, divide the total number of patients seen by the medical facility in the immediately preceding calendar year by the total number of days on which the medical facility was open for business during that calendar year.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)

      NAC 439.930  Participation in National Healthcare Safety Network: Duties of medical facility; duties of facility administrator. (NRS 439.847, 439.890)

     1.  Each medical facility that participates in the National Healthcare Safety Network shall:

     (a) Subscribe to the National Healthcare Safety Network user group designated by the Division.

     (b) Comply with the requirements of the Centers for Disease Control and Prevention of the United States Department of Health and Human Services for enrolling and maintaining enrollment in the National Healthcare Safety Network.

     (c) Comply with all definitions, methods, requirements and procedures established by the Centers for Disease Control and Prevention when collecting and submitting data to the National Healthcare Safety Network.

     (d) Designate a person employed by the medical facility to act as the facility administrator for the National Healthcare Safety Network.

     (e) Designate the persons at the medical facility who are authorized to access the National Healthcare Safety Network, if the medical facility determines that such access is necessary.

     (f) Complete all training required by the Centers for Disease Control and Prevention for participation in the National Healthcare Safety Network and ensure that the facility administrator designated pursuant to paragraph (d) and each person who is authorized to access the National Healthcare Safety Network pursuant to paragraph (e) have been properly trained.

     2.  The person designated as the facility administrator for the National Healthcare Safety Network pursuant to paragraph (d) of subsection 1 is the person at the medical facility who is primarily responsible for accessing the National Healthcare Safety Network and submitting the required data to the National Healthcare Safety Network. The facility administrator must:

     (a) Have authority to access all data of the medical facility that is required for submitting information to the National Healthcare Safety Network;

     (b) Be able to certify authorized users who have been designated pursuant to paragraph (e) of subsection 1 by the medical facility to access the National Healthcare Safety Network and assist those persons in accessing the National Healthcare Safety Network; and

     (c) Be responsible for accepting official documents and correspondence from the Centers for Disease Control and Prevention and the administrator of the National Healthcare Safety Network.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)

      NAC 439.935  Participation in National Healthcare Safety Network: Data to be submitted by each type of medical facility. (NRS 439.847, 439.890)

     1.  Each hospital described in NRS 439.805 that is required to participate in the National Healthcare Safety Network shall:

     (a) Submit data to the National Healthcare Safety Network relating to all central line-associated bloodstream infection events.

     (b) Commencing not later than February 1, 2011, submit data to the National Healthcare Safety Network relating to the nosocomial methicillin-resistant Staphylococcus aureus infection rate of patients for each patient care location within the hospital that has been identified by the Centers for Disease Control and Prevention.

     (c) Commencing not later than February 1, 2011, submit to the National Healthcare Safety Network the incident rate of hospital-onset methicillin-resistant Staphylococcus aureus bloodstream infections, which must be based on clinical cultures, for each patient care location within the hospital that has been identified by the Centers for Disease Control and Prevention.

     (d) Commencing not later than February 1, 2011, implement the Antimicrobial Use and Resistance Option within the Medication-Associated Module of the Patient Safety Component of the National Healthcare Safety Network.

     (e) Commencing not later than June 1, 2012, submit data to the National Healthcare Safety Network concerning surgical site infections relating to a:

          (1) Coronary artery bypass graft with both chest and donor site incisions;

          (2) Hip prosthesis;

          (3) Knee prosthesis; and

          (4) Laminectomy.

Ê Each hospital shall continue to report the information required pursuant to this subsection to the National Healthcare Safety Network at the times and in the manner prescribed by the National Healthcare Safety Network for submission of that information.

     2.  Each surgical center for ambulatory patients described in NRS 439.805 that is required to participate in the National Healthcare Safety Network shall submit data to the National Healthcare Safety Network concerning surgical site infections relating to a:

     (a) Gallbladder surgery;

     (b) Open reduction of a fracture;

     (c) Herniorrhaphy; and

     (d) Breast surgery.

Ê Each surgical center for ambulatory patients shall continue to report the information required pursuant to this subsection to the National Healthcare Safety Network at the times and in the manner prescribed by the National Healthcare Safety Network for submission of that information.

     3.  Each independent center for emergency medical care described in NRS 439.805 that is required to participate in the National Healthcare Safety Network shall submit data to the National Healthcare Safety Network concerning the influenza vaccination rate of the health care personnel of the center. Each independent center for emergency medical care shall continue to report the information required pursuant to this subsection to the National Healthcare Safety Network at the times and in the manner prescribed by the National Healthcare Safety Network for submission of that information.

     4.  Each obstetric center described in NRS 439.805 that is required to participate in the National Healthcare Safety Network shall submit data to the National Healthcare Safety Network concerning the influenza vaccination rate of the health care personnel of the center. Each obstetric center shall continue to report the information required pursuant to this subsection to the National Healthcare Safety Network at the times and in the manner prescribed by the National Healthcare Safety Network for submission of that information.

     5.  A physician who performs a medical procedure at a medical facility that is required to report to the National Healthcare Safety Network shall report to the medical facility any facility-acquired infection which is diagnosed at a follow-up examination of the patient and which resulted from the medical procedure performed at the medical facility.

     6.  A medical facility shall report all confirmed and all suspected instances of a facility-acquired infection acquired at another medical facility to the medical facility in which the infection was acquired. The medical facility which reports a confirmed or suspected instance of a facility-acquired infection pursuant to this subsection shall keep a record of that report for not less than 3 years after making such report.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)

      NAC 439.940  Participation in National Healthcare Safety Network: Annual report of aggregated data; confidentiality; audits. (NRS 439.847, 439.890)

     1.  Except as otherwise provided in this section and NRS 239.0115, information provided to the Division through the National Healthcare Safety Network and any additional information requested by the Division is confidential, not subject to subpoena or discovery and not subject to inspection by the general public.

     2.  The Division shall annually prepare and post on the Internet website maintained by the Division a report of aggregated data provided to the National Healthcare Safety Network.

     3.  The Division may prepare and post on the Internet website maintained by the Division a report of the data provided by a specific medical facility, including, without limitation, infections tracked by the medical facility, infection rates reported by the medical facility and the name of the medical facility, if:

     (a) The medical facility has given the Division permission to make such a report available to the public; and

     (b) The data released pursuant to this subsection does not reveal the identity or otherwise compromise the confidentiality of a medical facility that is included in the report of aggregated data posted pursuant to subsection 2 and which has not given the Division permission to report data specific to that medical facility.

     4.  The Division shall:

     (a) Ensure that the name and other personally identifying information regarding each patient are kept confidential when preparing the report.

     (b) Adhere to standard methods of suppressing protected health information and reporting to ensure that the identity of a patient is not revealed and to preserve patient confidentiality.

     5.  The Division may, at such times as it deems necessary, audit a medical facility that participates in the National Healthcare Safety Network to ensure the accuracy of information submitted by the medical facility, including, without limitation, data relating to facility-acquired infections, health care records and tests.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)

      NAC 439.945  Participation in National Healthcare Safety Network: Statement certifying data relating to facility-acquired infections. (NRS 439.847, 439.890)

     1.  If a medical facility participates in the National Healthcare Safety Network, the chief executive officer of the medical facility, or the officer’s designee, shall, on or before March 1 of each year, submit to the Division a signed statement certifying that the medical facility has processes in place to ensure that the data relating to facility-acquired infections submitted to the National Healthcare Safety Network is accurate and meets the requirements of NAC 439.900 to 439.945, inclusive.

     2.  The signed statement required by subsection 1 must be mailed to the Bureau of Health Care Quality and Compliance, 727 Fairview Drive, Suite E, Carson City, Nevada 89701.

     (Added to NAC by Bd. of Health by R044-10, eff. 10-15-2010)