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 of the fine 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,
III, 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 a provision of RSA 151 or He-P 812, which violations have
the potential to harm a patient's health, safety, or well-being;
(2) An applicant or a licensee has failed to
pay an administrative fine imposed by the department;
(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 or fine in the form of cash, money order, or
certified check;
(4) After being
notified of and given an opportunity to supply missing information, or schedule
an initial inspection, an applicant, or licensee fails to submit an application
that meets the requirements of
He-P
812.04;
(5) An applicant, licensee, or any
representative or employee of the applicant or licensee:
a. Provides false or misleading information
to the department;
b. Prevents or
interferes with, 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 812.12(c), (d)
, and (e);
(7) The licensee has submitted a POC that has
not been accepted by the department in accordance with
He-P 812.12(c) (5)
and has not submitted a revised POC in
accordance with
He-P 812.12(c) (5) (b)
;
(8) The licensee is cited a third time under
RSA 151 or He-P 812 for the same violations within the last 5
inspections;
(9) A licensee, or its
corporate officers, has had a license revoked and submits an application during
the 5-year prohibition period specified in (j) below;
(10) Unless a waiver has been granted, upon
inspection, the applicant's premise is not in compliance with RSA 151 or He-P
812;
(11) Unless a waiver has been
granted, the department makes a determination that the applicant,
administrator, licensee, or a household member 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) The
applicant or licensee employs an administrator who does not meet the
qualifications for the position under circumstances in which the department has
not granted a waiver; or
(13) The
applicant has had a license revoked by any division or unit of the department
within 5 years prior to the application.
(c) The department shall impose fines as
follows:
(1) For a 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 $2000.00 for an
applicant or unlicensed provider;
(2) For a failure to cease operations after a
denial of a license or after receipt of an order to cease and desist, in
violation of
RSA
151:2 and
RSA
541-A:30, or continuing to operate after a
failure to renew the license by the expiration date, the fine for an applicant,
unlicensed entity, or a licensee shall be $2000.00;
(3) For advertising services or otherwise
representing themselves as having a license to provide services that they are
not licensed to provide, in violation of
RSA 151:2,
III, the fine for an applicant, licensee, or
unlicensed provider shall be $500.00;
(4) For a failure to transfer a patient whose
needs exceed the services or programs provided by the ASC, in violation of
RSA
151:5-a, the fine shall be $500.00;
(5) For admission of a patient whose needs
exceed the services or programs authorized by the ASC, in violation of
RSA
151:5-a, II and
He-P 812.15(a)
, the fine for a licensee shall be
$1000.00;
(6) 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 812.11(e)
, the fine for an unlicensed provider or
licensee shall be $500.00;
(7) For
a failure to submit a renewal application for a license prior to the expiration
date, in violation of
He-P
812.06(b) , the fine shall be
$100.00;
(8) For a failure to
notify the department prior to a change of ownership, in violation of
He-P
812.08(a) (1) , the fine shall be
$500.00;
(9) For a failure to
notify the department prior to a change in the physical location, in violation
of
He-P
812.08(a) (2) , the fine shall be
$500.00;
(10) For a failure to
notify the department of a change in e-mail address, in violation of
He-P
812.08(n) , the fine shall be
$100.00;
(11) For a refusal to
allow access by the department to the ASC's premises, programs, services or
records, in violation of
He-P 812.09(a)
, the fine for an applicant, unlicensed
entity, or licensee shall be $2000.00;
(12) For a 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, or the date of an extension as granted, in
violation of
He-P 812.12(c) (2) or (5)
, the fine for a licensee shall be $500.00;
(13) For a 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 812.12(c) (8)
, the fine for a licensee shall be
$1000.00;
(14) For a failure to
establish, implement or comply with licensee policies, as required by
He-P 812.18(b) and (f)
, the fine for a licensee shall be $500.00;
(15) For a failure to provide
services or programs required by the licensing classification and specified by
He-P 812.18,
the fine for a licensee shall be $500.00;
(16) For providing false or misleading
information or documentation, in violation of
He-P
812.14(g) , the fine shall be
$1,000.00 per offense;
(17) For a
failure to meet the needs of a patient or patients, as described in
He-P
812.14(j) , the fine for a licensee
shall be $1,000.00 per patient;
(18) For placing a patient in a room that has
not been approved or licensed by the department, in violation of
He-P 812.09(b) (5)
, the fine for a licensee shall be
$500.00;
(19) For employing an
administrator or other personnel who do not meet the qualifications for the
position, without having a waiver granted by the department in accordance with
He-P 812.10, in violation
of
He-P 812.16(b)
, the fine for a licensee shall be $500.00;
(20) 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
812.07(a) , the fine for a licensed
facility shall be $500.00;
(21) 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 812.09(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;
(22) When an inspection determines that a
violation of RSA 151 or He-P 812 for which a fine was previously imposed, in
addition to any other enforcement actions taken by the department, the fines
assessed shall be as follows:
a. If the same
area of non-compliance is cited within 2 years of the original non-compliance,
the fine shall be $1,000.00; or
b.
If the same area of non-compliance is cited a third time within 2 years of
being fined in (a) above, the fine for a licensee shall be $2000.00;
and
(23) Each day that
the individual or licensee continues to be in violation of the provisions of
RSA 151 or He-P 812 shall constitute a separate violation and shall be fined in
accordance with
He-P 812.12(c)
, provided that if the applicant or licensee
is making good faith efforts to comply with the provisions of RSA 151 or He-P
807, as verified by documentation or other means, 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 check or money order made payable to the "Treasurer, State of New
Hampshire", or cash in the exact amount due; and
(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.
(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 812 is achieved.
(i) Hearings under this section shall be
conducted in accordance with RSA 541-A and He-C 200.
(j) When an ASC's license has been denied or
revoked, the applicant, licensee, or administrator shall not be eligible to
reapply for a license or be employed as an administrator for at least 5 years,
if the enforcement action pertained to their role in the ASC.
(k) The 5-year period referenced in (j) above
shall begin on:
(1) The date of the
department's decision to revoke or deny the license, if not filed; 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 (j) 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 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 812.
(m) If the department has reasonable
information or evidence that a licensee, applicant, administrator, or others
are circumventing (l) above by applying for a license through an agent or other
individual and will retain ownership, management authority, or both, the
department shall deny the application.
(n) No ongoing enforcement action shall
preclude the imposition of any remedy available to the department under RSA
151, RSA 541-A, or He-P 812.
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