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 823 in a manner which poses a
risk of harm to a patient's health, safety, or well-being;
(2) An applicant or licensee has failed to
pay an administrative fine imposed by the department;
(3) An applicant or 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, or schedule an initial inspection
the applicant or licensee fails to submit an application that meets the
requirements of
He-P
823.04;
(5) The 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 inspection conducted
by the department; or
c. Fails to
provide requested files or documents to the department;
(6) A licensee failed to implement or
continue to implement a POC that has been accepted or imposed by the department
in accordance with
He-P 823.12(c),(d)
, and (e);
(7) A licensee has submitted a POC that has
not been accepted by the department in accordance with
He-P 823.12(c) (5)
and has not submitted a revised POC as
required by
He-P 823.12(c) (5)
;
(8) The licensee is cited a third time under
RSA 151 or He-P 823 for the same violation 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 or licensee is not in compliance with RSA 151 or He-P
823;
(11) Unless a waiver has been
granted, 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 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
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, for an applicant,
unlicensed entity, or a licensee 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
823.14(g) the fine for an applicant,
licensee, or unlicensed entity 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 823.11(e) (4)
, the fine for an unlicensed provider or a
licensee shall be $500.00;
(5) For
a failure to submit a renewal application for a license prior to the expiration
date, in violation of
He-P
823.06(e) , the fine for a licensee
shall be $100.00;
(6) For a failure
to notify the department prior to a change of ownership, in violation of
He-P
823.08(a) (1) , the fine for a
licensee 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
823.08(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
823.08(o) , the fine shall be
$100.00;
(9) For a failure to allow
access by the department to the HHCP's premises, programs, services, patients,
or records, in violation of
He-P 823.09(a) (1) -(3)
, the fine for an applicant, unlicensed
individual or licensee shall be $2000.00;
(10) 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 823.12(c) (2) and (5)
, the fine for a licensee shall be
$100.00;
(11) 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 823.12(c) (8)
, the fine for a licensee shall be
$1000.00;
(12) For a failure to
establish, implement or comply with licensee policies, as required by
He-P
823.14(b), (d) , and (s), the fine
for a licensee shall be $500.00;
(13) For a failure to provide services or
programs required by the licensing classification and specified by
He-P
823.14(c) , the fine for a licensee
shall be $500.00;
(14) For a
failure to transfer a patient whose needs exceeds the services or programs
provided by the HHCP, in violation of
RSA
151:5-a, the fine for a licensee shall be
$500.00;
(15) For providing false
or misleading information or documentation to the department, in violation of
He-P
823.14(f) , the fine shall be
$1000.00 per offense;
(16) For a
failure to meet the needs of the patient, in violation of
He-P 823.15(e)
, the fine for a licensee shall be $1000.00
per patient;
(17) For employing an
administrator or other personnel who do not meet the qualifications for the
position, in violation of
He-P
823.14(i) (5) -(6) , the fine for a
licensee shall be $500.00;
(18)
When an inspection determines that a violation of RSA 151 or He-P 823 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 area of non-compliance, the fine for a
licensee shall be double the original fine, but not to exceed $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 triple the original fine, but not to exceed
$2000.00;
(19) Each day
that the individual or licensee continues to be in violation of the provisions
of RSA 151 or He-P 823 shall constitute a separate violation and shall be fined
in accordance with He-P 823.13(c); and
(20) If the applicant or licensee is making
good faith efforts to comply with (14) or (16) 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
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 a patient is in
jeopardy and emergency action is required in accordance with RSA
541:A-30.
(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
823 is achieved.
(i) Hearings under
this section shall be conducted in accordance with RSA 541-A and He-C
200.
(j) When an HHCP's license has
been denied or revoked, the applicant, family member, licensee, or
administrator shall not be eligible to apply for a license or be employed as an
administrator for 5 years if the denial or revocation specifically pertained to
their role in the program.
(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 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 823.
(m) If the department has reasonable
information or evidence that a licensee, applicant, administrator, or others
are circumventing (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) No ongoing enforcement action shall
preclude the imposition of any remedy available to the department under RSA
151, RSA 541-A, or He-P 823.
#9292, eff
10-9-08
