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 a provision of RSA 151 or He-P 816 in a manner which poses a
risk of harm to a student'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
816.04;
(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, 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) A licensee failed to fully
implement or continue to implement a POC that has been accepted or imposed by
the department in accordance with
He-P
816.12(c), (d) , and (e);
(7) A licensee has submitted a POC that has
not been accepted by the department in accordance with
He-P
816.12(c) (5) and has not submitted
a revised POC as required by
He-P
816.12(c) (5) ;
(8) A licensee is cited a third time under
RSA 151 or He-P 816 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) Upon inspection, the applicant's premise
is not in full compliance with RSA 151 or He-P 816;
(11) The department makes a determination
that the applicant, administrator, or licensee has been found guilty of or
plead guilty to a felony assault, theft, fraud, abuse, neglect, or exploitation
of any person, in this or any other state, or had an investigation for 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 or medical director 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 on unlicensed individuals, applicants, or
licensees 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;
(2) For a failure to cease operations after a
denial of a license, after receipt of an order to cease and desist operations,
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 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
816.14(h) , the fine for an
applicant, licensee, or unlicensed provider 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
816.11(e) , the fine shall be
$500.00;
(5) 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
816.06(b) , the fine for a license
shall be $100.00;
(6) For a failure
to notify the department prior to a change of ownership, in violation of
He-P
816.08(a) (1) , the fine shall be
$500.00;
(7) For a failure to
notify the department prior to a change in the physical location, in violation
of He-P
816.08(a) (2) , the fine for a
licensee shall be $1000.00;
(8) For
a failure to notify the department of a change in e-mail address, in violation
of He-P
816.08(q) , the fine shall be
$100.00;
(9) For a failure to allow
access by the department to the EHC's premises in violation of
He-P
816.09(a) (1) and (2) , the fine for
an applicant, individual or licensee shall be $2000.00;
(10) For a failure to provide to the
department any records maintained by the licensee and required by
He-P
816.09(a) (3) , the fine for a
licenses 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 statment of findings or
notice to correct, or by the date of an extension as granted, in violation of
He-P
816.12(c) (2) and (5) , 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
816.12(c) (8) , the fine for a
licensee shall be $1000.00;
(13)
For a failure to establish, implement, or comply with licensee policies, in
violation of He-P 816.14(b), (d), (w)
, and (x), 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 816.15(f) - (j)
, the fine for a licensee shall be
$500.00;
(15) For exceeding the
licensed capacity, if applicable, in violation of
He-P
816.14(n) , the fine for a licensee
shall be $500.00 per day multiplied by the number of unauthorized students
present;
(16) For providing false
or misleading information or documentation to the department, in violation of
He-P
816.14(g) , the fine shall be
$1000.00 per offense;
(17) For a
failure to meet the needs of the student, in violation of
He-P
816.14(j) (2) , the fine for a
licensee shall be $1000.00;
(18)
For employing an administrator or other personnel who do not meet the
qualifications for the position, in violation of
He-P
816.15(a), (c) , and (e) and
He-P
816.18(h) and (i) , the fine for a
licensee shall be $500.00;
(19) For
failure to cooperate with the inspection or investigation conducted by the
department, in violation of
He-P
816.09(a) , the fine shall be
$2000.00;
(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
816.07(a) , the fine for a licensed
facility shall be $500.00;
(21) For
occupying a renovated area of a licensed facility or new construction prior to
approval by local and state authorities as required by
He-P
816.09(b) (6) , the fine shall be
$500, 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 there
is a violation of RSA 151 or He-P 816 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-compliancey is cited within 2 years of the original area of
non-compliance, the fine 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;
(23) Each day that the individual or licensee
continues to be in violation of the provisions of RSA 151 or He-P 816 shall
constitute a separate violation and shall be fined in accordance with He-P
816.13(c); and
(24) If the
applicant or licensee is making good faith efforts to comply with (4) or (18)
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
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 well being of students 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 816 is achieved.
(i) Hearings under this section shall be
conducted in accordance with RSA 541-A and He-C 200.
(j) When an EHC's license has been denied or
revoked, if the enforcement action specifically pertained to his or her role in
the program, the applicant, licensee, administrator, or medical director shall
not be eligible to reapply for a license, or be employed as an administrator or
medical director for at least 5 years from:
(1) The date the department's decision to
revoke or deny the license became effective, if no request for an
administrative hearing is requested; or
(2) The date an order is issued upholding the
action of the department, if a request for an administrative hearing was made
and a hearing was held.
(k) 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 816.
(l) No ongoing enforcement action shall
preclude the imposition of any remedy available to the department under RSA
151, RSA 541-A, or He-P 816.
(m)
Any violations cited for the fire code may be appealed to the state fire
marshal, pursuant to RSA 151:6-a,
II.
#9193, eff
6-26-08
