N.H. Admin. Code § He-P 827.13

Current through Register No. 45, November 7, 2024

Section He-P 827.13 - Enforcement Actions and Hearings

(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.

N.H. Admin. Code § He-P 827.13

(See Revision Note at part heading for He-P 827) #12751, eff 3-26-19

Adopted by Volume XXXIX Number 16, Filed April 18, 2019, Proposed by #12751, Effective 3/26/2019, Expires 3/26/2029.