Section He-P 808.13 - 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 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, II 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 has violated provisions of RSA 151 or He-P 808, which violations have the potential to harm a patient's or employee's health, safety, or well-being;(2) An applicant or a licensee has failed to pay a fine imposed under an enforcement action;(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, an applicant or licensee fails to submit an application that meets the requirements of He-P 808.04;(5) An applicant, licensee, or any representative or employee of the applicant or licensee: a. Provides false information to the department;b. Prevents, 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 808.12(c), (d), and (e);(7) The licensee has submitted a POC that has not been accepted by the department in accordance with He-P 808.12(c)(6) and has not submitted a revised POC in accordance with He-P 808.12(c)(6)b.;(8) The licensee is cited a third time under RSA 151 or He-P 808 for the same violation(s) within the last 5 inspections;(9) A licensee, including corporation or its corporate officers or board members, has had a license revoked and submits an application during the 5-year prohibition period specified in (i) below;(10) Unless a waiver has been granted, upon inspection, the applicant's premises is not in compliance with RSA 151 or He-P 808;(11) Unless a waiver has been granted, the department makes a determination that the applicant, administrator, or licensee, has been found guilty of or pled guilty to a felony assault, fraud, theft, abuse, neglect, or exploitation adjudicated and founded by the department or any administrative agency in this or any other state;(12) Unless a waiver has been granted, the applicant or licensee fails to employ a qualified administrator or laboratory director; or(13) The applicant has had a license revoked by the department within 5 years prior to the application.(c) The department shall impose fines as follows:(1) For 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 for an applicant or unlicensed provider;(2) For failure to cease operations after a denial of a license or after receipt of an order to cease and desist, in violation of RSA 151 and RSA 541-A:30 the fine for an unlicensed individual, applicant, unlicensed provider, or a licensee shall be $2000.00;(3) For advertising services or otherwise representing themselves as having a license to provide services that the licensee is not licensed to provide, in violation of RSA 151:2, III, the fine for an applicant, licensee, or unlicensed individual or a licensee 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 808.11(e), the fine for an unlicensed provider or a licensee shall be $500.00;(5) For a failure to submit a renewal application prior to the expiration date, in violation of He-P 808.06(b), the fine for a licensee shall be $100.00;(6) For failure to notify the department prior to a change of ownership, in violation of He-P 808.08(a)(1), the fine for a licensee shall be $500.00;(7) For failure to notify the department, prior to a change of location, in violation of He-P 808.08(a)(2), the fine for a licensee shall be $500.00;(8) For a failure to allow access by the department to the laboratory's premises, programs, services, patients, or records, in violation of He-P 808.09(a)(1)-(3), the fine for an applicant, unlicensed individual, or licensee shall be $2000.00;(9) For 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, in violation of He-P 808.12(c)(2) and (6), the fine for a licensee shall be $100.00;(10) For 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 808.12(c)(9), the fine for a licensee shall be $1000.00;(11) For a failure to establish, implement, or comply with licensee policies, as required by He-P 808.14(e), the fine for a licensee shall be $500.00;(12) For a failure to provide services or programs required by the licensing classification and specified by He-P 808.14(d), the fine for a licensee shall be $500.00;(13) For false or misleading information or misleading information or documentation, in violation of He-P 808.13(b)(5), the fine for an applicant shall be $500.00 per offense;(14) For employing an administrator or a laboratory director who do not meet the qualifications for the position, without having a waiver granted by the department in accordance with He-P 808.10 in violation of He-P 818.18(h)-(j), the fine for a licensee shall be $500.00;(15) 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 808.07(a), the fine for a licensed facility shall be $500.00;(16) For occupying a renovated area of a licensed facility or a new construction prior to approval by local and state authorities, as required by He-P 808.09(b)(5), the fine shall be $500.00 which shall be assessed daily if the facility fails to vacate the renovated area immediately upon receiving notice from the department;(17) When an inspection determines that a violation of RSA 151 or He-P 808 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: a. If the same deficiency is cited within 2 years of the original deficiency, the fine for a licensee shall be double the original fine, but not to exceed $2000.00; orb. 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 original fine, but not to exceed $2000.00;(18) Each day that the licensee continues to be in violation of the provisions of RSA 151 or He-P 808 shall constitute a separate violation and shall be fined in accordance with He-P 808.12; and(19) If the licensee is making good faith efforts, as verified by documentation or other means, to obtain a license in (1) above or comply with warnings in (4) above, 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 cash, check, or money order for the exact amount due;(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; and(3) When payment is made in a form other than cash, it shall be made payable to the "Treasurer - State of New Hampshire."(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 welfare of patients 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 808 is achieved.(i) Hearings under this section shall be conducted in accordance with RSA 541-A and He-C 200.(j) When a laboratory's license has been denied or revoked, the applicant, licensee, administrator, or laboratory director shall not be eligible to reapply for a license or be employed as a laboratory director for 5 years, if the enforcement action pertained to their role in the laboratory.(k) The 5-year period referenced in (i) above shall begin on: (1) The date of the department's decision to revoke or deny the license, if no request for an administrative hearing is requested; 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, as verified by documentation or other means, 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 808.(m) RSA 541 shall govern further appeals of department decisions under this section.(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 808.N.H. Admin. Code § He-P 808.13
#2192, eff 11-25-82; ss by #3193, eff 1-28-86; ss by #5317, EMERGENCY, eff 1-29-92, EXPIRED: 5-28-92
New. #5758, eff 12-20-93, EXPIRED: 12-20-99
New. #8409, eff 8-19-05; ss by #8852, eff 3-24-07; ss by #10267, eff 2-2-13
Amended by Number 37, Filed September 14, 2023, Proposed by #13710, Effective 8/2/2023, Expires 8/2/2033