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 a 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 818 which poses a risk of harm
to a participant'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
818.04;
(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
818.12(c), (d) , and (e);
(7) The licensee is cited a third time under
RSA 151 or He-P 818 for the same violation(s) within the last 5
inspections;
(8) A licensee, or its
corporate officers, has had a license revoked and submits an application during
the 5-year prohibition period specified in (k) below;
(9) Upon inspection, the applicant's premise
is not in compliance with RSA 151 or He-P 818;
(10) The department makes a determination
that the applicant, administrator, licensee, or a household member 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;
(11) 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
(12) 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;
(2) For a failure to cease operations after a
denial of a license, after receipt of an order to cease and desist immediately,
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
818.14(h) , the fine for an
applicant, licensee or unlicensed provider shall be $500.00;
(4) For a failure to transfer a participant
whose needs exceeds the services or programs provided by the ADP, 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
818.11(f) , 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
818.06(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
818.08(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
818.08(a) (2) , the fine shall be
$1000.00;
(9) For a failure to
notify the department of a change in e-mail address, in violation of
He-P
818.08(q) , the fine shall be
$100.00;
(10) For a failure to
allow access by the department to the ADP's premises, programs, services or
records, in violation of
He-P
818.09(a) , the fine for an
applicant, individual, or licensee shall be $2000.00;
(11) For a failure to provide to the
department any records maintained by the licensee and required by
He-P
818.14(u) , the fine for a 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 statment of findings or notice to
correct, or by the date of an extension as granted, in violation of
He-P
818.12(c) (2) and (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
818.12(c) (8) , the fine for a
licensee shall be $1000.00;
(14)
For a failure to establish, implement or comply with licensee policies, in
violation of He-P 818.14(d)
, 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 818.14(c)
, the fine for a licensee shall be
$500.00;
(16) For exceeding the
maximum number of occupants, in violation of
He-P
818.14(l) , the fine for a licensee
shall be $500.00;
(17) For
providing false or misleading information or documentation in violation of
He-P
818.14(g) , the fine shall be
$1000.00 per offense;
(18) For a
failure to meet the needs of a participant or participants, in violation of
He-P
818.14(j) (1) , the fine for a
licensee shall be $1000.00 per participant;
(19) For employing an administrator or other
personnel who do not meet the qualifications for the position, in violation of
He-P
818.15(a) (1) , 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
818.07(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
818.09(b) (5) , 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 a
violation of RSA 151 or He-P 818 has the potential to jeopardize the health,
safety or well-being of a participant, 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 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 per area of non-compliance;
(23) Each day that the individual
or licensee continues to be in violation of the provisions of RSA 151 or He-P
818 shall constitute a separate violation and shall be fined in accordance with
He-P 818.13(c); and
(24) If the
applicant or licensee is making good faith efforts to comply with (4), (5) or
(19) 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 welfare of participants 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 818 is achieved.
(i) Hearings under this section shall be
conducted in accordance with RSA 541-A and He-C 200.
(j) When an ADP'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 ADP.
(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 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 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 818.
(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 individual and will retain ownership, management authority, or both, the
department shall deny the application.
(n) RSA 541 shall goern 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, or He-P 818.
(p)
Any violations cited for the fire code may be appealed to the state fire
marshal, pursuant to RSA 151:6-a,
II.
#9106, eff
3-18-08
