Section He-P 823.13 - 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 a 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 823 in a manner which poses a risk of harm to a patient's health, safety, or well-being;(2) An applicant or licensee has failed to pay an administrative fine imposed by the department;(3) An applicant or 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, or schedule an initial inspection the applicant or licensee fails to submit an application that meets the requirements of He-P 823.04;(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 inspection conducted by the department; orc. Fails to provide requested files or documents to the department;(6) A licensee failed to implement or continue to implement a POC that has been accepted or imposed by the department in accordance with He-P 823.12(c),(d) , and (e);(7) A licensee has submitted a POC that has not been accepted by the department in accordance with He-P 823.12(c) (5) and has not submitted a revised POC as required by He-P 823.12(c) (5) ;(8) The licensee is cited a third time under RSA 151 or He-P 823 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 (j) below;(10) Unless a waiver has been granted, upon inspection, the applicant or licensee is not in compliance with RSA 151 or He-P 823;(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, theft, fraud, 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 employs an administrator or medical director who does not meet the qualifications for the position under circumstances in which the department has not granted a waiver; or(13) The applicant has had a license revoked by any division or unit of the department within 5 years prior to 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 provider;(2) For a failure to cease operations after a denial of a license or 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, for an applicant, unlicensed entity, or a licensee the fine 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 823.14(g) the fine for an applicant, licensee, or unlicensed entity 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 823.11(e) (4) , the fine for an unlicensed provider or a licensee shall be $500.00;(5) For a failure to submit a renewal application for a license prior to the expiration date, in violation of He-P 823.06(e) , the fine for a licensee shall be $100.00;(6) For a failure to notify the department prior to a change of ownership, in violation of He-P 823.08(a) (1) , the fine for a licensee shall be $500.00;(7) For a failure to notify the department prior to a change in the physical location, in violation of He-P 823.08(a) (2) , the fine for a licensee shall be $1000.00;(8) For a failure to notify the department of a change in e-mail address, in violation of He-P 823.08(o) , the fine shall be $100.00;(9) For a failure to allow access by the department to the HHCP's premises, programs, services, patients, or records, in violation of He-P 823.09(a) (1) -(3) , the fine for an applicant, unlicensed individual or licensee shall be $2000.00;(10) For a 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, or the date of an extension as granted, in violation of He-P 823.12(c) (2) and (5) , the fine for a licensee shall be $100.00;(11) 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 823.12(c) (8) , the fine for a licensee shall be $1000.00;(12) For a failure to establish, implement or comply with licensee policies, as required by He-P 823.14(b), (d) , and (s), the fine for a licensee shall be $500.00;(13) For a failure to provide services or programs required by the licensing classification and specified by He-P 823.14(c) , the fine for a licensee shall be $500.00;(14) For a failure to transfer a patient whose needs exceeds the services or programs provided by the HHCP, in violation of RSA 151:5-a, the fine for a licensee shall be $500.00;(15) For providing false or misleading information or documentation to the department, in violation of He-P 823.14(f) , the fine shall be $1000.00 per offense;(16) For a failure to meet the needs of the patient, in violation of He-P 823.15(e) , the fine for a licensee shall be $1000.00 per patient;(17) For employing an administrator or other personnel who do not meet the qualifications for the position, in violation of He-P 823.14(i) (5) -(6) , the fine for a licensee shall be $500.00;(18) When an inspection determines that a violation of RSA 151 or He-P 823 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 double the original fine, but not to exceed $1000.00; orb. 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 triple the original fine, but not to exceed $2000.00;(19) Each day that the individual or licensee continues to be in violation of the provisions of RSA 151 or He-P 823 shall constitute a separate violation and shall be fined in accordance with He-P 823.13(c); and(20) If the applicant or licensee is making good faith efforts to comply with (14) or (16) 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 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 well-being of a patient is in jeopardy and emergency action is required in accordance with RSA 541:A-30.(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 823 is achieved.(i) Hearings under this section shall be conducted in accordance with RSA 541-A and He-C 200.(j) When an HHCP's license has been denied or revoked, the applicant, family member, 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 823.(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, or He-P 823.N.H. Admin. Code § He-P 823.13
Amended by Volume XXXVII Number 19, Filed May 11, 2017, Proposed by #12168, Effective 4/29/2017, Expires 10/26/2017.Amended by Volume XXXVIII Number 45, Filed November 8, 2018, Proposed by #12642, Effective 10/9/2018, Expires 10/9/2028.