Section He-P 802.13 - Enforcement Actions and Hearings(a) As specified in this section, the department shall take the following enforcement actions for violation of RSA 151, He-P 802, or other applicable licensing rules: (2) Impose a fine in accordance with (e) below; (3) Deny the application for a renewal of a license in accordance with (c) and (d) below; (4) Immediately suspend a license; or(5) Revoke the license in accordance with (c) and (d) below.(b) At the time of issuing a warning, imposing a fine, or denying, revoking, or suspending a license, 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 deficiency 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.(c) The department shall deny an application or revoke a license if: (1) An applicant or a licensee has violated provisions of RSA 151 or He-P 802, which poses a risk of to harm a patient's health, safety, or well-being; (2) An applicant or a licensee has failed to pay a 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 on an application, an applicant or licensee fails to submit an application that meets the requirements of He-P 802.04; or(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 or interferes, or fails to cooperate with any inspection or investigation conducted by the department; orc. 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 802.12(c) and (d) ; (7) The licensee is cited a third time under RSA 151 or He-P 802 for the same violations within the last 5 inspections; (8) A licensee, its corporate officers, or its board members has had a license revoked and submits an application during the 5-year prohibition period specified in (l) below; (9) Upon inspection, the applicant's premises are not in compliance with RSA 151 or He-P 802 and a waiver has not been granted; (10) The department makes a determination that the administrator, licensee, medical director, or applicant are guilty of one or more of the offenses listed in He-P 802.05(f) and a waiver has not been granted; (11) The applicant or licensee employs an administrator who does not meet all of the qualifications listed in He-P 802.16(b) and a waiver has not been granted; or(12) The applicant, administrator, licensee, or medical director has had a license revoked by any division of the department 5 years prior to the filing of the application.(d) 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 or RSA 151:2-e, the fine shall be $2,000.00 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 immediately, in violation of RSA 151:2, RSA 151:2-e, 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 provider, or a licensee shall be $2,000.00; (3) For advertising services or otherwise representing that the facility has a license to provide services it is not licensed to provide, in violation of RSA 151:2, III, the fine for an applicant, licensee or unlicensed provider shall be $500.00; (4) For a failure to transfer a patient whose needs exceeds the services or programs provided by the licensee in violation of RSA 151:5-a, the fine shall be $500.00; (5) For admission of a patient whose needs exceed the services or programs authorized by the license classification, in violation of RSA 151:5-a, II, and He-P 802.18, the fine for a licensee shall be $1,000.00; (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 802.11, He-P 802.13, or He-P 802.14, the fine shall be $500.00; (7) For a failure to submit a renewal application for a license prior to the expiration date, in violation of He-P 802.06(b) , the fine shall be $500.00; (8) For a failure to notify the department prior to a change of ownership, in violation of He-P 802.08(a) (1) , the fine 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 802.08(a) (2) , the fine shall be $500.00; (10) For a failure to notify the department of a change in e-mail address as required by He-P 802.08(m) , the fine for a licensee shall be $500.00; (11) For a failure to allow access by the department to the licensee's premises, programs, services or records, in violation of He-P 802.09(a) , the fine for an individual or licensee shall be $2,000.00; (12) For a failure to submit a POC or revised POC, within 21 or 14 days, respectively, in violation of He-P 802.12(c) (2) or (c) (5), the fine for a licensee shall be $500.00 unless an extension has been granted by the department; (13) For a failure to implement or maintain corrective action set forth in any POC that has been accepted or issued by the department, in violation of He-P 802.12(c) , the fine for a licensee shall be $1,000.00; (14) For a failure to establish, implement, or comply with all policies generated by the licensee as required under this rule, the fine for a licensee shall be $1,000.00; (15) For a failure to provide services or programs required by the licensing classification and specified by He-P 802.18, the fine for a licensee shall be $500.00; (16) For exceeding the maximum number of patients, in violation of He-P 802.14(m) , the fine for a licensee shall be $500.00 per day; (17) For creating or providing false or misleading information contained on an application or on any records required to be maintained for licensing, in violation of He-P 802.14(h) , the fine shall be $1,00.00 per offense; (18) For a failure to meet the needs of the patient, in violation of He-P 802.14(k) (1) , the fine for a licensee shall be $1,000.00 per patient; (19) For employing, contracting with, or engaging an administrator, medical director, or other personnel who do not meet the qualifications for the position as set forth in this rule and a waiver was not received, the fine for a licensee shall be $500.00; (20) For placing a patient in a room that has not been approved or licensed by the department, in violation of He-P 802.27, the fine for a licensee shall be $500.00; (21) For failure to report an adverse event as required by He-P 802.15, the fine for a licensee shall be $2,000.00 per occurrence; (22) For failure to report infections and process measures as identified and required by He-P 802.22, the fine for a licensee shall be $1,000.00 per occurrence; (23) For failure to submit architectural plans or drawings prior to undertaking construction or renovation of the licensed facility in violation of He-P 802.07(a) , the fine for a licensed facility shall be $500.00; (24) 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 802.09(b) (6) , the fine shall be $500 per day; or(25) For failing to comply with any provision of He-P 802 where a patient's health, safety, or well-being is placed in jeopardy, the fine shall be $1,000.(e) When an inspection determines that a violation of RSA 151 or He-P 802 has the potential to jeopardize the health, safety, or well-being of a patient, in addition to any other enforcement actions taken by the department, the fines assessed shall be as follows: (1) If the same deficiency is cited within 2 years of the original deficiency, the fine for a licensee shall be double the initial fine, but not to exceed $2,000.00; and (2) If the same deficiency is cited a third time within 2 years of being fined in a. above, the fine for a licensee shall be triple the fine, but not to exceed $2,000.00.(f) Each day that the individual or licensee continues to be in violation of the provisions of RSA 151 or He-P 802 shall constitute a separate violation and shall be fined in accordance with He-P 802.12(f) . If the applicant or licensee is making good faith efforts to comply with He-P 802, the department shall not issue a daily fine.(g) 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.(h) 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.(i) If a written request for a hearing is not made pursuant to (h) above, the action of the department shall become final.(j) The department shall order the immediate suspension of a license, the cessation of operations, and the transfer of care of patients when it finds that the health, safety, or welfare of patients is in jeopardy and requires emergency action in accordance with RSA 541-A:30, III.(k) 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 802 is achieved.(l) Hearings under this section shall be conducted in accordance with RSA 541-A and He-C 200.(m) When a license has been revoked for a reason listed in (c) or (d) above, the licensee shall not be eligible to reapply for a license for at least 5 years.(n) If a license is revoked, the administrator or medical director: (1) Shall not be employed as an administrator or medical director for at least 5 years if the enforcement action pertained to their role in the hospital; and(2) Shall be reported to the appropriate licensing board.(o) The 5-year period referenced in (m) and (n) above shall begin on: (1) The date of the department's decision to revoke or deny the license, if no request for a hearing is requested pursuant to (h) above; 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.(p) Notwithstanding (o) 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 802.(q)RSA 151:8 and RSA 541-A shall govern further appeals of department decisions under this section.(r) 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 802.N.H. Admin. Code § He-P 802.13
#2044, eff 6-3-82; ss by #3193, eff 1-28-86, EXPIRED: 1-28-92; ss by #5317, EMERGENCY, eff 1-29-92, EXPIRED 5-28-92
New . #5846, eff 6-22-94, EXPIRED: 6-22-00
New. #9580, eff 10-24-09
Amended by Volume XXXVII Number 45, Filed November 09, 2017, Proposed by #12407, Effective 10/24/2017, Expires 4/22/2018.Amended by Volume XLI Number 6, Filed February 11, 2021, Proposed by #13166, Effective 1/28/2021, Expires 1/28/2031.