La. Admin. Code tit. 67 § V-7109

Current through Register Vol. 50, No. 11, November 20, 2024

Section V-7109 - Critical Violations/Fines

A. In accordance with R.S. 46:1430, when a provider is cited for violations in the following areas, the department may at its discretion elect to impose sanctions, revoke a license, or both:

1.§7107.A 5-8 and 14, §7107.D.4.f v, §7107.E.2 F, §7111.A.2.c ii, §7111.A.5 b, §7111.B.2.a ii, §7117.A 14.j, and/or 7124.A. - G.-criminal background check;

2.§7111.A.9.a i-v, vii, ix, or x-staffing ratios;

3.§7117.F 19-motor vehicle checks;

4.§7111.D.1.a if sections noted in §7111.D.7 also cited or §7111.D.1.b.i if sections noted in §7111.D.7 also cited or §7111.D.2 -critical incident reporting; and/or

5.§7111.A.9.a vi, §7111.A.9.a xi, §7111.A.9.a xiii-xv, §7111.A.4 c, §7123.B 5, or §7123.B 6-supervision.

6.§7107. A 8, §7107.A 9, §7107.D.4.f iv., §7107. E.2 g, §7111.A.2.c iii, §7111.A.5 c, §7111.B.2.a x, §7112 A-D, and/or §7117.A 14.k state central registry clearance effective August 1, 2021.

B. The option of imposing other sanctions does not impair the right of DCFS to revoke and/or not renew a providers license to operate if it determines that the violation poses an imminent threat to the health, safety, rights, or welfare of a resident or child of a resident. Only when the department finds that the violation does not pose an imminent threat to the health, safety, rights, or welfare of a resident or child of a resident will the department consider sanctions in lieu of revocation or non-renewal; however, the absence of such an imminent threat does not preclude the possibility of revocation or non-renewal in addition to sanctions, including fines.

C. In determining whether multiple violations of one of the above categories has occurred, both for purposes of this Section and for purposes of establishing a history of non-compliance, all such violations cited during any 24-month period shall be counted, even if one or more of the violations occurred prior to the adoption of the current set of standards. If one or more of the violations occurred prior to adoption of the current set of standards, a violation is deemed to have been repeated if the standard previously violated is substantially similar to the present rule.

D.

1. For the first violation of one of the aforementioned categories, if the department does not revoke or not renew the license, the department may issue a formal warning letter noting the departments intent to take administrative action if further violations of the same category occur.

2. The warning letter shall include a directed corrective action plan (CAP) which shall outline the necessary action and timeframe for such action that a provider shall take in order to maintain compliance with the licensing standards. The provider shall acknowledge receipt of the warning letter by submitting a written response to the CAP within 10 calendar days of receipt of the letter. Failure by the provider to submit requested information and/or failure to implement the CAP as evidenced by a repeated violation of the same category of the standards may result in either the assessment of a civil fine, revocation/non-renewal of license, or both.

E. For the second violation of one of the same aforementioned categories within a 24-month period, provider will be assessed a civil fine of up to $250 per day for a violation in each of the aforementioned categories (if same category cited twice) and fined for each day the provider was determined to be out of compliance with one of the aforementioned categories according to the following schedule of fines.

1. The base fine level for all violations shall be $200 per day. From the base fine level, factor in any applicable upward or downward adjustments, even if the adjustment causes the total to exceed $250. If the total fine after all upward and downward adjustments exceeds $250, reduce the fine for the violation to $250 as prescribed by law.

a. If the violation resulted in death or serious physical or emotional harm to a resident or child of a resident, or placed the resident or child of a resident at risk of death or serious physical or emotional harm, increase the fine by $50.

b. If the provider had a previous license revoked for the same critical violation cited, increase the fine by $25.

c. If the critical violation was cited and occurred despite the objective good faith best efforts of licensee to comply, decrease the fine by $25.

d. When the cited critical violation was for a criminal background check not being completed prior to hire as required, but obtained before the individual was on the premises and/or had access to a resident or child of a resident, the fine shall be decreased by $25.

e. When the cited critical violation was for criminal background check not being completed prior to the individual being on the premises and/or having access to a resident or child of a resident, the fine shall be increased by $25.

f. If the provider exceeds staffing ratios by more than one resident, increase the fine by $25.

g. If the provider failed to meet staffing ratios related to children of residents, increase the fine by $25.

h. If the provider self-reported the incident which caused the critical violation to be cited, decrease the fine by $25.

i. If the provider failed to self-report the incident which caused the critical violation to be cited, increase the fine by $25.

j. If a critical violation for supervision was cited due to residents or children of residents being unsupervised in a vehicle, increase the fine by $25.

k. If a critical violation for supervision was cited due to staff not knowing the whereabouts of residents to which they are assigned, increase the fine by $25.

l. When the cited critical violation was for a state central registry clearance not being completed prior to hire as required, but obtained before the individual was on the premises and/or had access to a resident or child of a resident, the fine shall be decreased by $25.

m. When the cited critical violation was for state central registry clearance not being completed prior to the individual being on the premises and/or having access to a resident or child of a resident, the fine shall be increased by $25.

F. For the third violation of one of the same aforementioned categories within a 24-month period, the providers license may be revoked.

G. The aggregate fines assessed for violations determined in any consecutive 12-month period shall not exceed $2,000 as prescribed by law. If a critical violation in a different category is noted by DCFS that warrants a fine and the provider has already reached the maximum allowable fine amount that could be assessed by the department in any consecutive 12-month period and the department does not revoke or not renew the license, the department may issue a formal warning letter noting the departments intent to take administrative action if further violations of the same category re-occur. The warning letter shall include a directed CAP which shall outline the necessary action and timeframe for such action that a provider shall take in order to maintain compliance with the licensing standards. The provider shall acknowledge receipt of the warning letter by submitting a written response to the CAP within 10 calendar days of receipt of the letter. Failure by the provider to submit requested information and/or failure to implement the CAP as evidenced by a repeated violation of the same category of the standards may result in revocation/non-renewal of license.

H. Departmental Reconsideration and Appeal Procedure for Fines

1. When a fine is imposed under these standards, the department shall notify the program director or owner by letter that a fine has been assessed due to deficiencies cited at the residential home and the right of departmental reconsideration. The notification may be sent by certified mail or hand delivered to the residential home. If the program director or owner is not present at the residential home, delivery of the written reason(s) for such action may be made to any staff of the residential home. Notice to a staff shall constitute notice to the residential home of such action and the reasons therefore. The letter shall specify the dates and the violation cited for which the fine(s) shall be imposed. Fines are due within 30 calendar days from the date of receipt of the letter unless the provider request a reconsideration of the fine assessment. The provider may request reconsideration of the assessment by asking DCFS for such reconsideration in writing within 10 calendar days from the date of receipt of the letter. A request for reconsideration shall include a copy of the letter from the Licensing Section that notes the reasons for assessment of the fine together with the specific reasons the provider believes assessment of the fine to be unwarranted and shall be mailed to Department of Children and Family Services, Licensing Section, P.O. Box 260036 Baton Rouge, LA 70826. If the provider withdraws the request for reconsideration, the fine is payable within 7 calendar days of the withdrawal or on the original date that the fine was due, whichever is later.

2. The department shall advise the program director or owner by letter of the decision of DCFS after reconsideration and the right to appeal. The notification may be sent by certified mail or hand delivered to the residential home. If the program director or owner is not present at the residential home, delivery of the written decision may be made to any staff of the residential home. Notice to a staff shall constitute notice to the residential home of such action.

a. If DCFS finds that the Licensing Sections assessment of the fine is justified, the provider shall have 15 calendar days from the receipt of the reconsideration letter to appeal the decision to the Division of Administrative Law (DAL). A request for appeal shall include a copy of the letter from the Licensing Section that notes the reasons for assessment of the fine and a copy of the reconsideration decision letter together with the specific areas of the decision the appellant believes to be erroneous and/or the specific reasons the decision is believed to have been reached in error, and shall be mailed to Department of Children and Family Services, Appeals Section, P.O. Box 2944, Baton Rouge, LA 70821-9118.

b. The DCFS Appeals Section shall notify the DAL of receipt of an appeal request. DAL shall conduct a hearing in accordance with the Administrative Procedure Act and shall render a decision. The appellant will be notified by letter from DAL of the decision, either affirming or reversing the department's decision.

c. If the provider has filed a timely appeal and the departments assessment of fines is affirmed by an administrative law judge of the DAL, the fine shall be due within 30 calendar days after mailing notice of the final ruling of the administrative law judge or, if a rehearing is requested, within 30 calendar days after the rehearing decision is rendered. The provider shall have the right to seek judicial review of any final ruling of the administrative law judge as provided in the Administrative Procedure Act. If the appeal is dismissed or withdrawn, the fines shall be due and payable within 7 calendar days of the dismissal or withdrawal. If a judicial review is denied or dismissed, either in district court or by a court of appeal, the fines shall be due and payable within 7 calendar days after the providers suspensive appeal rights have been exhausted.

3. If the provider does not appeal within 15 calendar days of receipt of the departments reconsideration decision, the fine is due within 30 calendar days of receipt of the departments reconsideration decision and shall be mailed to Department of Children and Family Services, Licensing Section, P.O. Box 260036 Baton Rouge, LA 70826. If the provider files a timely appeal, the fines shall be due and payable on the date set forth in Subparagraph H.2.c of this Section. If the provider withdraws the appeal, the fine is payable within 7 calendar days of the withdrawal or on the original date that the fine was due, whichever is later.

4. If the provider does not pay the fine within the specified timeframe, the license shall be immediately revoked and the department shall pursue civil court action to collect the fines, together with all costs of bringing such action, including travel expenses and reasonable attorney fees. Interest shall begin to accrue at the current judicial rate on the day following the date on which the fines become due and payable.

La. Admin. Code tit. 67, § V-7109

Promulgated by the Department of Children and Family Services, Licensing Section, LR 43:258 (February 2017), amended LR 43:1725 (September 2017), Amended by the Department of Children and Family Services, Licensing Section, LR 45521 (4/1/2019), effective 5/1/2019, Amended LR 46674 (5/1/2020), effective 6/1/2020, Amended LR 47, Amended by the Department of Children and Family Services, Licensing Section, LR 471845 (12/1/2021).

AUTHORITY NOTE: Promulgated in accordance with R.S. 46:1401 et seq.