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 827 which poses a risk of harm
to the health, safety, or well-being of a patient;
(2) An applicant or licensee has failed to
pay an administrative fine imposed by the department;
(3) An applicant or licensee 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 827.04 or fails to schedule an inspection;
(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 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 827.12(c), (d), and (e);
(7) The licensee has submitted a POC that has
not been accepted by the department in accordance with He-P 827.12(c) (5) and
has not submitted a revised POC in accordance with He-P 827.12(c) (5)
b.;
(8) The licensee is cited a
third time under RSA 151 or He-P 827 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 (k) below;
(10) Unless a waiver has been granted, upon
inspection, the applicant is not in compliance with RSA 151 or He-P
827;
(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, fraud, theft, 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 fails to employ a qualified administrator; or
(13) The applicant has had a license revoked
or denied 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 entity;
(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 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, and He-P 827.14(h), the fine for an
applicant, licensee, or unlicensed entity shall be $500.00;
(4) For a failure to transfer a patient whose
needs exceed the services or programs provided by the FMRTF, in violation of
RSA
151:5-a, the fine for a licensee shall be
$500.00;
(5) For admission of a
patient whose needs at the time of admission exceed the services or programs
authorized by the FMRTF licensing classification, in violation of
RSA
151:5-a, II, and He-P
827.16(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 827.11(e), the fine for an
unlicensed provider or a licensee shall be $500.00;
(7) 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 827.06(b), the fine for a licensee shall be
$100.00;
(8) For a failure to
notify the department prior to a change of ownership, in violation of He-P
827.08(a) (1), the fine for a licensee 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 827.08(a) (2)
, the fine for a licensee shall be $1000.00;
(10) For a failure to notify the department
of a change in e-mail address as required by He-P 827.08(n), the fine for a
licensee shall be $100.00;
(11) For
a failure to allow access by the department to the FMRTF's premises, programs,
services, or records, in violation of He-P 827.09(a), the fine for an
applicant, unlicensed entity, or licensee shall be $2000.00;
(12) For a failure to submit a timely POC in
violation of He-P 827.12(c) (2), or a timely or acceptable revised POC in
violation of He-P 827.12(c) (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 827.12(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 827.14(d) and (s),
827.16(c), 827.17(c), (r), and (v), 827.18(H) (2) g. and (x), 827.19(d) and
(h), and 827.20(c), (l), and (n), 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 827.14(c), the fine for a licensee shall be
$500.00;
(16) For providing false
or misleading information or documentation, in violation of He-P 827.14(g), the
fine for an applicant or licensee shall be $1000.00 per offense;
(17) For a failure to meet the needs of a
patient, as described in He-P 827.14(j), the fine for a licensee shall be
$1000.00 per patient;
(18) 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 827.10, in violation of He-P 827.18(h), the
fine for a licensee shall be $500.00;
(19) 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 827.07(a), the fine
for a licensed facility shall be $500.00;
(20) 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 827.09(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;
(21) When an inspection determines that there
is a violation of RSA 151 or He-P 827 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 $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;
(22) Each day
that the individual or licensee continues to be in violation of the provisions
of RSA 151 or He-P 827 shall constitute a separate violation and shall be
subject to fines in accordance with He-P 827.13(c); and
(23) If the applicant or licensee is making
good faith efforts to comply with (4),(6), and (15) 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 welfare of a patient 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 827 is achieved.
(i) Hearings under this section shall be
conducted in accordance with RSA 541-A and He-C 200.
(j) When a FMRTF's license has been denied or
revoked, the applicant, 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 827.
(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:30,
III, or He-P 827.
(o) Any violations cited for fire code shall
be appealed to the New Hampshire state fire marshal.
(See Revision Note at part heading for He-P 827) #12751,
eff 3-26-19
