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 violated RSA 151 or He-P 815 in a manner which poses a risk of harm to
a resident'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 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
815.04;
(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,
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
815.12(c), (d), and (e);
(7) The licensee has submitted a POC that has
not been accepted by the department in accordance with
He-P
815.12 (c)(5) and has not submitted a
revised POC as required by
He-P
815.12 (c)(6);
(8) The licensee is cited a third time under
RSA 151 or He-P 815 for the same violations within the last 5
inspections;
(9) A licensee,
including corporate officers or board members, 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 815;
(11)
Unless a waiver has been granted, the department makes a determination that the
applicant, administrator, licensee, or a household member has been convicted of
or adjudicated for a sexual assault or other violent crime, theft or fraud, or
a finding of abuse, neglect or exploitation in this or any other state, or
poses a threat to the health, safety, or well-being of a resident;
(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 another division or unit of the department within a 5 year period of 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 person or entity;
(2) For a failure to cease operations after a
denial of a license or after receipt of an order to cease and desist
immediately, in violation of
RSA
151:2, or continuing to operate after a
failure to renew the license by the expiration date, the fine for an applicant,
unlicensed person or 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 and
He-P
815.14(g), the fine for an applicant,
licensee, or unlicensed person or entity shall be $500.00;
(4) For a failure to transfer an resident
whose needs exceed the services or programs provided by the ICF/IID after being
directed by the department to transfer the resident, in violation of
RSA
151:5-a, the fine shall be $500.00;
(5) 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
815.11(e), the fine shall be
$500.00;
(6) For a failure to
submit a renewal application for a license at least 120 days prior to the
expiration date, in violation of
He-P
815.06(b), the fine shall be
$100.00;
(7) For a failure to
notify the department prior to a change of ownership, in violation of
He-P
815.08(a)(1), the fine shall be
$500.00;
(8) For a failure to
notify the department prior to a change in the physical location, in violation
of He-P
815.08(a)(2), the fine shall be
$500.00;
(9) For a failure to
notify the department of a change in e-mail address, in violation of
He-P
815.08(m), the fine shall be
$100.00;
(10) For a refusal to
allow access by the department to the ICF/IID's premises, programs, services,
or records, in violation of
He-P
815.09(a), the fine for an applicant,
person, or licensee shall be $2000.00;
(11) 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 815.12(c)(2) and
(6), the fine for a licensee shall be
$500.00;
(12) 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
815.12(c)(11), the fine for a
licensee shall be $1000.00;
(13)
For a failure to establish, implement, or comply with licensee policies, as
required by He-P 815.14(b) and
(d), the fine for a licensee shall be
$500.00;
(14) For a failure to
provide services or programs required by the licensing classification and
specified by He-P 815.14(c),
the fine for a licensee shall be $500.00;
(15) For exceeding the licensed capacity in
violation of He-P 815.14(k),
the fine for a licensee shall be $500.00 per day;
(16) For providing false or misleading
information or documentation, in violation of
He-P
815.14(f), the fine shall be $1000.00
per offense;
(17) For a failure to
meet the needs of an resident, in violation of
He-P
815.14(i)(1), the fine for a licensee
shall be $1000.00 per resident;
(18) For placing a resident in a room that,
based on the floor plan required by
He-P
815.04(a)(2), has not been approved
or licensed by the department, 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
815.10, in violation of
He-P
815.14(i)(4) and (5), the fine for a
licensee shall be $500.00;
(20) For
failure to cooperate with the inspection or investigation conducted by the
department, in violation of
He-P
815.09(a), the fine shall be
$2000.00;
(21) 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
815.07(a), the fine for a licensed
facility shall be $500.00;
(22) For
occupying a renovated area of a licensed facility or new construction prior to
approval by local and state authorities, in violation of
He-P
815.09(b)(7), 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;
(23) When an inspection determines that a
violation of RSA 151 or He-P 815 has the potential to jeopardize the health,
safety, or well-being of a resident, 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 area of non-compliance, the fine for a
licensee shall be $1000.00; 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;
(24) Each day that the person or
licensee continues to be in violation of the provisions of RSA 151 or He-P 815
shall constitute a separate violation and shall be subject to fines in
accordance with He-P 815.13(c);
and
(25) If the applicant or
licensee is making good faith efforts to comply with (4), (5), or (19) above,
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,
licensee, or unlicensed entity 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 well-being of residents is in
jeopardy and emergency action is required 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 815 is achieved.
(i) Hearings under this section shall be
conducted in accordance with RSA 541-A and He-C 200.
(j) When an ICF/IID's license has been denied
or revoked, if the enforcement action specifically pertained to his or her role
in the ICF/IID, 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.
(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 no
appeal is 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 (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 reasonable information or evidence 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
815.
(m) If the department has
reasonable information or evidence that a licensee, applicant, administrator,
or others are circumventing rule (j) above by applying for a license through an
agent or other person and will retain ownership, management authority, or both,
the department shall deny the application.
(n)RSA 541-A and He-C 200 shall govern
further appeals of department decisions under this section.
(o) 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
815.
