Current through Register No. 40, October 3, 2024
(a) Prior to
taking enforcement action against an applicant or licensee, the department
shall send to the applicant or licensee a written notice that sets forth:
(1) The reasons for the proposed
action;
(2) The action to be taken
by the department;
(3) If a fine is
imposed, the automatic reduction by 25% if the fine is paid within 10 days of
the date on the written notice from the department, and the area of
non-compliance has been corrected, or a POC has been accepted and approved by
the department; and
(4) The right
of an applicant or licensee to an administrative hearing in accordance with
RSA
151:8 or
RSA
541-A:30, II as applicable,
before the enforcement action becomes final.
(b) The department shall deny an application
or revoke a license if:
(1) An applicant or a
licensee has violated provisions of RSA 151 or He-P 808, which violations have
the potential to harm a patient's or employee's health, safety, or
well-being;
(2) An applicant or a
licensee has failed to pay a fine imposed under an enforcement
action;
(3) An applicant or a
licensee has had a check returned to the department for insufficient funds and
has not re-submitted the outstanding fee in the form of cash, money order, or
certified check;
(4) After being
notified of and given an opportunity to supply missing information, an
applicant or licensee fails to submit an application that meets the
requirements of He-P 808.04;
(5) An applicant, licensee, or any
representative or employee of the applicant or licensee:
a. Provides false information to the
department;
b. Prevents,
interferes, or fails to cooperate with any inspection or investigation
conducted by the department; or
c.
Fails to provide requested files or documents to the department;
(6) The licensee failed to
implement or continue to implement a POC that has been accepted or imposed by
the department in accordance with
He-P
808.12(c), (d), and (e);
(7) The licensee has submitted a POC that has
not been accepted by the department in accordance with
He-P
808.12(c)(6) and has not submitted a
revised POC in accordance with
He-P
808.12(c)(6)b.;
(8) The licensee is cited a third time under
RSA 151 or He-P 808 for the same violation(s) within the last 5
inspections;
(9) A licensee,
including corporation or its corporate officers or board members, has had a
license revoked and submits an application during the 5-year prohibition period
specified in (i) below;
(10) Unless
a waiver has been granted, upon inspection, the applicant's premises is not in
compliance with RSA 151 or He-P 808;
(11) Unless a waiver has been granted, the
department makes a determination that the applicant, administrator, or
licensee, has been found guilty of or pled guilty to a felony assault, fraud,
theft, abuse, neglect, or exploitation adjudicated and founded by the
department or any administrative agency in this or any other state;
(12) Unless a waiver has been granted, the
applicant or licensee fails to employ a qualified administrator or laboratory
director; or
(13) The applicant has
had a license revoked by the department within 5 years prior to the
application.
(c) The
department shall impose fines as follows:
(1)
For failure to cease providing unlicensed services after being notified by the
department of the need for a license, in violation of
RSA
151:2, the fine shall be $2000 for an
applicant or unlicensed provider;
(2) For failure to cease operations after a
denial of a license or after receipt of an order to cease and desist, in
violation of RSA 151 and
RSA
541-A:30 the fine for an unlicensed
individual, applicant, unlicensed provider, or a licensee shall be
$2000.00;
(3) For advertising
services or otherwise representing themselves as having a license to provide
services that the licensee is not licensed to provide, in violation of
RSA
151:2, III, the fine for an
applicant, licensee, or unlicensed individual or a licensee shall be
$500.00;
(4) For a failure to
comply with the directives of a warning issued by the department, in violation
of RSA
151:7-a and
He-P
808.11(e), the fine for an unlicensed
provider or a licensee shall be $500.00;
(5) For a failure to submit a renewal
application prior to the expiration date, in violation of
He-P
808.06(b), the fine for a licensee
shall be $100.00;
(6) For failure
to notify the department prior to a change of ownership, in violation of
He-P
808.08(a)(1), the fine for a licensee
shall be $500.00;
(7) For failure
to notify the department, prior to a change of location, in violation of
He-P
808.08(a)(2), the fine for a licensee
shall be $500.00;
(8) For a failure
to allow access by the department to the laboratory's premises, programs,
services, patients, or records, in violation of
He-P
808.09(a)(1)-(3), the fine for an
applicant, unlicensed individual, or licensee shall be $2000.00;
(9) For failure to submit a POC or revised
POC within 21 or 14 days, respectively, of the date on the letter that
transmits the inspection report, in violation of
He-P
808.12(c)(2) and (6), the fine for a
licensee shall be $100.00;
(10) For
failure to implement or maintain the corrective action set forth in any POC
that has been accepted or issued by the department, in violation of
He-P
808.12(c)(9), the fine for a licensee
shall be $1000.00;
(11) For a
failure to establish, implement, or comply with licensee policies, as required
by He-P
808.14(e), the fine for a licensee
shall be $500.00;
(12) For a
failure to provide services or programs required by the licensing
classification and specified by
He-P
808.14(d), the fine for a licensee
shall be $500.00;
(13) For false or
misleading information or misleading information or documentation, in violation
of He-P
808.13(b)(5), the fine for an
applicant shall be $500.00 per offense;
(14) For employing an administrator or a
laboratory director who do not meet the qualifications for the position,
without having a waiver granted by the department in accordance with
He-P
808.10 in violation of
He-P
818.18(h)-(j), the fine for a
licensee shall be $500.00;
(15) For
failure to submit architectural plans or drawings, when applicable, prior to
undertaking construction or renovation of the licensed facility in violation of
He-P
808.07(a), the fine for a licensed
facility shall be $500.00;
(16) For
occupying a renovated area of a licensed facility or a new construction prior
to approval by local and state authorities, as required by
He-P
808.09(b)(5), the fine shall be
$500.00 which shall be assessed daily if the facility fails to vacate the
renovated area immediately upon receiving notice from the department;
(17) When an inspection determines that a
violation of RSA 151 or He-P 808 has the potential to jeopardize the health,
safety, or well-being of a patient, in addition to any other enforcement
actions taken by the department, the fines assessed shall be as follows:
a. If the same deficiency is cited within 2
years of the original deficiency, the fine for a licensee shall be double the
original fine, but not to exceed $2000.00; or
b. If the same deficiency is cited a third
time within 2 years of being fined in a. above, the fine for a licensee shall
be triple the original fine, but not to exceed $2000.00;
(18) Each day that the licensee continues to
be in violation of the provisions of RSA 151 or He-P 808 shall constitute a
separate violation and shall be fined in accordance with
He-P
808.12; and
(19) If the licensee is making good faith
efforts, as verified by documentation or other means, to obtain a license in
(1) above or comply with warnings in (4) above, the department shall not issue
a daily fine.
(d)
Payment of any imposed fine to the department shall meet the following
requirements:
(1) Payment shall be made in
the form of cash, check, or money order for the exact amount due;
(2) Cash, money order, or certified check
shall be required when an applicant or licensee has issued payment to the
department by check, and such check was returned for insufficient funds;
and
(3) When payment is made in a
form other than cash, it shall be made payable to the "Treasurer - State of New
Hampshire."
(e) An
applicant or licensee shall have 30 days after receipt of the notice of
enforcement action to request a hearing to contest the action.
(f) If a written request for a hearing is not
made pursuant to (e) above, the action of the department shall become
final.
(g) The department shall
order the immediate suspension of a license and the cessation of operations
when it finds that the health, safety, or welfare of patients is in jeopardy
and requires emergency action in accordance with
RSA
541-A:30, III.
(h) If an immediate suspension is upheld, the
licensee shall not resume operating until the department determines through
inspection that compliance with RSA 151 and He-P 808 is achieved.
(i) Hearings under this section shall be
conducted in accordance with RSA 541-A and He-C 200.
(j) When a laboratory's license has been
denied or revoked, the applicant, licensee, administrator, or laboratory
director shall not be eligible to reapply for a license or be employed as a
laboratory director for 5 years, if the enforcement action pertained to their
role in the laboratory.
(k) The
5-year period referenced in (i) above shall begin on:
(1) The date of the department's decision to
revoke or deny the license, if no request for an administrative hearing is
requested; or
(2) The date a final
decision upholding the action of the department is issued, if a request for a
hearing is made and a hearing is held.
(l) Notwithstanding (k) above, the department
shall consider an application submitted after the decision to revoke or deny
becomes final, if the applicant demonstrates that circumstances have changed to
the extent that the department now has good cause, as verified by documentation
or other means, to believe that the applicant has the requisite degree of
knowledge, skills, and resources necessary to maintain compliance with the
provisions of RSA 151 and He-P 808.
(m) RSA 541 shall govern further appeals of
department decisions under this section.
(n) No ongoing enforcement action shall
preclude the imposition of any remedy available to the department under RSA
151, RSA
541-A:30, III, or He-P
808.
#2192, eff 11-25-82; ss by #3193, eff 1-28-86; ss by
#5317, EMERGENCY, eff 1-29-92, EXPIRED: 5-28-92
New. #5758, eff 12-20-93,
EXPIRED: 12-20-99
New. #8409, eff 8-19-05; ss by
#8852, eff 3-24-07; ss by #10267, eff
2-2-13
