N.H. Admin. Code § He-P 810.12

Current through Register No. 45, November 7, 2024

Section He-P 810.12 - Administrative Remedies

(a) The department shall impose administrative remedies for violations of RSA 151, He-P 810, or other applicable licensing rules, including:

(1) Requiring a licensee to submit a POC in accordance with (c) below;

(2) Imposing a directed POC upon a licensee in accordance with (d) below;

(3) Imposing conditions upon a license;

(4) Imposing fines upon an unlicensed individual, applicant, or licensee in accordance with (f) below; or

(5) Monitoring of a licensee.

(b) When administrative remedies are imposed, the department shall provide written notice, as applicable, which:

(1) Identifies each area in which the licensee is not in compliance with RSA 151 or a provision of these rules;

(2) Identifies the specific remedy(s) that has been imposed; and

(3) Provides the following information:

a. The right to a hearing in accordance with RSA 541-A and He-C 200 prior to the imposition of a fine; and

b. The automatic reduction of a 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 noncompliance has been corrected, or a POC has been accepted and approved by the department.

(c) A POC shall be developed and complied with in the following manner:

(1) Upon receipt of a statement of findings or a notice to correct, the licensee shall submit its POC for each item, written in the appropriate place on the statement or notice and containing:

a. How the licensee intends to correct each area of noncompliance;

b. What measures will be put in place, or what system changes will be made to ensure that the noncompliance does not recur; and

c. The date by which each area of noncompliance shall be corrected;

(2) The licensee shall submit a written POC to the department within 21 days of the date on the letter that transmitted the statement of findings or notice to correct unless the licensee requests, either verbally or in writing, and the department agrees, to extend that deadline, based on the following criteria:

a. The licensee demonstrates that he or she has made a good faith effort to develop and submit the POC within the 21-calendar day period but has been unable to do so; and

b. The department determines that the health, safety, or well-being of a client will not be jeopardized as a result of granting the extension;

(3) The department shall review and accept each POC that:

a. Achieves compliance with RSA 151 and He-P 810;

b. Addresses all areas of noncompliance as cited in the statement of findings or notice to correct;

c. Prevents a new violation of RSA 151 or He-P 810 as a result of the implementation of the POC; and

d. Specifies the date upon which the areas of noncompliance will be corrected;

(4) If the POC is acceptable, the department shall issue a license certificate or provide written notification of acceptance of the POC, whichever is applicable;

(5) If the POC is not acceptable:

a. The department shall notify the licensee in writing of the reason for rejecting the POC;

b. The licensee shall develop and submit a revised POC within 14 days of the date of the written notification from the department that states the original POC was rejected unless, within the 14 day period, the licensee requests an extension, via telephone or in writing, and the department grants the extension, based on the following criteria:

1. The licensee demonstrates that he or she has made a good faith effort to develop and submit the POC within the 14 day period but has been unable to do so; and

2. The department determines that the health, safety, or well being of a client will not be jeopardized as a result of granting the extension;

c. The revised POC shall comply with (c) (1) above and be reviewed in accordance with (c) (3) above; and

d. If the revised POC is not acceptable to the department, or is not submitted within 14 days of the date of the written notification from the department that states the original POC was rejected, or as extended under (5) b. above, the licensee shall be subject to a directed POC in accordance with (d) below and a fine in accordance with (f) (11) below;

(6) The department shall verify the implementation of any POC that has been submitted and accepted by:

a. Reviewing materials submitted by the licensee;

b. Conducting a follow-up inspection; or

c. Reviewing compliance during the next annual inspection;

(7) Verification of the implementation of any POC shall only occur after the date of completion specified by the licensee in the plan; and

(8) If the POC or revised POC has not been implemented by the completion date at the time of the next inspection, the licensee shall be:

a. Notified by the department in accordance with He-P 810.12(b) ; and

b. Issued a directed POC in accordance with (d) below and shall be subject to a fine, as appropriate, in accordance with (f) (12) below.

(d) The department shall develop and impose a directed POC that specifies corrective actions for the applicant or licensee to implement when:

(1) As a result of an inspection or investigation, areas of noncompliance were identified that require immediate corrective action to protect the health and safety of the clients and personnel;

(2) A revised POC is not submitted within 14 days of the written notification from the department or such other date as applicable if an extension was granted by the department; or

(3) A revised POC submitted by the licensee or administrator has not been accepted.

(e) If, at the time of the next inspection, the directed POC referenced in (d) above has not been implemented by the completion date stated in the directed POC, the department shall, as appropriate:

(1) Impose a fine;

(2) Deny an application for a renewal of a license in accordance with He-P 810.13; or

(3) Revoke the license in accordance with He-P 810.13.

(f) 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 for an applicant or unlicensed provider shall be $2000.00;

(2) For failure to cease operations after a denial of a license or after receipt of an order to cease and desist operations immediately, in violation of RSA 151:2 and RSA 541-A:30, the fine for the applicant, unlicensed provider, or 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 provider shall be $500.00;

(4) For failure to transfer a client whose needs change such that the needs exceed the services or programs authorized by the license, in violation of RSA 151:5-a and He-P 810.14(k) , the fine for a licensee shall be $500.00;

(5) For acceptance or admission of a client whose needs exceed the services or programs authorized by the licensee's licensing classification, in violation of RSA 151:5-a and He-P 810.14(j) , the fine for a licensee shall be $1000.00;

(6) For failure to comply with the directives of a warning issued by the department, in violation of RSA 151:7-a and He-P 810.11(j) , the fine for an unlicensed provider or licensee shall be $500.00;

(7) For submitting a renewal application for a license less than 120 days prior to the expiration date, in violation of He-P 810.06(b) , the fine for the licensee shall be $100.00;

(8) For failure to notify the department prior to a change of ownership, in violation of He-P 810.08(a) (1) , the fine for a licensee shall be $500.00;

(9) For failure to notify the department prior to a change in the physical location, in violation of He-P 810.08(a) (2) , the fine for a licensee shall be $500.00;

(10) For failure to allow access by the department to a birthing center's programs, services or records, in violation of He-P 810.14(n) , the fine for an applicant, unlicensed provider, or licensee shall be $2000.00;

(11) For failure to submit a POC or a revised POC, within 21 or 14 days, respectively, of the date on the letter that transmits the statement of findings or notice to correct, in violation of He-P 810.12(c) (2) or He-P 810.12(c) (5) b., the fine for a licensee shall be $100.00;

(12) For failure to implement any POC that has been accepted or issued by the department, in violation of He-P 810.12(c) (8) , the fine for a licensee shall be $1000.00;

(13) For failure to establish, implement, or comply with licensee policies, as required by He-P 810.14(b) and He-P 810.14(h) (2) , the fine for a licensee shall be $500.00;

(14) For failure to provide medical services required by the license and specified by He-P 810.15(d) , the fine for a licensee shall be $500.00;

(15) For exceeding the licensed capacity of the birthing center, in violation of He-P 810.14(l) , the fine for a licensee shall be $500.00 per day, multiplied by the number of unauthorized clients present;

(16) For furnishing or making false or misleading statements or reports to the department, or for falsification of information contained on an application or of any records required to be maintained for licensing, in violation of He-P 810.14(e) , the fine for an applicant or licensee shall be $500.00 per offense;

(17) For failure to meet the needs of the client, in violation of He-P 810.14(h) (3) , the fine for a licensee shall be $500.00;

(18) For employing an administrator or other personnel who do not meet the qualifications for the position, in violation of He-P 810.15(a) and He -P 810.18(d), respectively, or under circumstances where the department has not granted a waiver in accordance with He-P 810.10, 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 810.07(a) , the fine for a licensed facility shall be $500.00;

(20) When an inspection determines that a violation of RSA 151 or He-P 810 has the potential to jeopardize the health, safety, or well-being of a client, in addition to any other enforcement actions taken by the department, the fines assessed shall be as follows:

a. If the same area of noncompliance is cited within 2 years of the original area of noncompliance the fine for a licensee shall be $1000.00; and

b. If the same area of noncompliance is cited for a third time within 2 years of being fined in a. above, the fine for a licensee shall be $2000.00 per area of noncompliance;

(21) Each day that the individual or licensee continues to be in violation of the provisions of RSA 151 or He-P 810 shall constitute a separate violation and shall be fined in accordance with He-P 810.12; and

(22) If the applicant or licensee is making good faith efforts to comply with (4), (6) and (15) above, 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.

N.H. Admin. Code § He-P 810.12

#8957, eff 7-27-07

Amended by Volume XXXVI Number 36, Filed September 8, 2016, Proposed by #11161, Effective 8/20/2016, Expires 8/20/2026.