§ 122C-24.1. Penalties; remedies.
§ 122C‑24.1. Penalties;remedies.
(a) ViolationsClassified. The Department of Health and Human Services shall impose anadministrative penalty in accordance with provisions of this Article on anyfacility licensed under this Article which is found to be in violation ofArticle 2 or 3 of this Chapter or applicable State and federal laws andregulations. Citations issued for violations shall be classified according tothe nature of the violation as follows:
(1) "Type AViolation" means a violation by a facility of the regulations, standards,and requirements set forth in Article 2 or 3 of this Chapter or applicableState or federal laws and regulations governing the licensure or certificationof a facility which results in death or serious physical harm, or results insubstantial risk that death or serious physical harm will occur. Type AViolations shall be abated or eliminated immediately. The Department shallrequire an immediate plan of correction for each Type A Violation. The personmaking the findings shall do the following:
a. Orally andimmediately inform the administrator of the facility of the specific findingsand what must be done to correct them, and set a date by which the violationmust be corrected;
b. Within 10 workingdays of the investigation, confirm in writing to the administrator theinformation provided orally under sub‑subdivision a. of this subdivision;and
c. Provide a copy ofthe written confirmation required under sub‑subdivision b. of thissubdivision to the Department.
TheDepartment shall impose a civil penalty in an amount not less than five hundreddollars ($500.00) nor more than ten thousand dollars ($10,000) for each Type AViolation in facilities or programs that serve six or fewer persons. TheDepartment shall impose a civil penalty in an amount not less than one thousanddollars ($1,000) nor more than twenty thousand dollars ($20,000) for each TypeA Violation in facilities or programs that serve seven or more persons.
(2) "Type BViolation" means a violation by a facility of the regulations, standards,and requirements set forth in Article 2 or 3 of this Chapter or applicableState or federal laws and regulations governing the licensure or certificationof a facility which present a direct relationship to the health, safety, orwelfare of any client or patient, but which does not result in substantial riskthat death or serious physical harm will occur. The Department shall require aplan of correction for each Type B Violation and may require the facility toestablish a specific plan of correction within a specific time period toaddress the violation.
(b) Penalties forFailure to Correct Violations Within Time Specified.
(1) Where a facility hasfailed to correct a Type A Violation, the Department shall assess the facilitya civil penalty in the amount of up to one thousand dollars ($1,000) for eachday that the deficiency continues beyond the time specified in the plan ofcorrection approved by the Department or its authorized representative. TheDepartment or its authorized representative shall ensure that the violation hasbeen corrected.
(2) Where a facility hasfailed to correct a Type B Violation within the time specified for correctionby the Department or its authorized representative, the Department shall assessthe facility a civil penalty in the amount of up to four hundred dollars($400.00) for each day that the deficiency continues beyond the date specifiedfor correction without just reason for the failure. The Department or itsauthorized representative shall ensure that the violation has been corrected.
(3) The Department shallimpose a civil penalty which is treble the amount assessed under subdivision(1) of subsection (a) of this section when a facility under the samemanagement, ownership, or control has received a citation and paid a penaltyfor violating the same specific provision of a statute or regulation for whichit received a citation during the previous 12 months.
(c) Factors to BeConsidered in Determining Amount of Initial Penalty. In determining theamount of the initial penalty to be imposed under this section, the Departmentshall consider the following factors:
(1) The gravity of theviolation, including the fact that death or serious physical harm to a clientor patient has resulted; the severity of the actual or potential harm, and theextent to which the provisions of the applicable statutes or regulations wereviolated;
(2) The gravity of theviolation, including the probability that death or serious physical harm to aclient or patient will result; the severity of the potential harm, and theextent to which the provisions of the applicable statutes or regulations wereviolated;
(3) The gravity of theviolation, including the probability that death or serious physical harm to aclient or patient may result; the severity of the potential harm, and theextent to which the provisions of the applicable statutes or regulations wereviolated;
(4) The reasonablediligence exercised by the licensee to comply with G.S. 131E‑256 andother applicable State and federal laws and regulations;
(5) Efforts by thelicensee to correct violations;
(6) The number and typeof previous violations committed by the licensee within the past 36 months;
(7) The amount ofassessment necessary to ensure immediate and continued compliance; and
(8) The number ofclients or patients put at risk by the violation.
(d) The facts found tosupport the factors in subsection (c) of this section shall be the basis indetermining the amount of the penalty. The Department shall document thefindings in written record and shall make the written record available to allaffected parties including:
(1) The licenseeinvolved;
(2) The clients orpatients affected; and
(3) The family membersor guardians of the clients or patients affected.
(e) The Departmentshall impose a civil penalty on any facility which refuses to allow anauthorized representative of the Department to inspect the premises and recordsof the facility.
(f) Any facilitywishing to contest a penalty shall be entitled to an administrative hearing asprovided in Chapter 150B of the General Statutes. A petition for a contestedcase shall be filed within 30 days after the Department mails a notice ofpenalty to a licensee. At least the following specific issues shall be addressedat the administrative hearing:
(1) The reasonablenessof the amount of any civil penalty assessed, and
(2) The degree to whicheach factor has been evaluated pursuant to subsection (c) of this section to beconsidered in determining the amount of an initial penalty.
If a civil penalty is found tobe unreasonable or if the evaluation of each factor is found to be incomplete,the hearing officer may recommend that the penalty be adjusted accordingly.
(g) Any penalty imposedby the Department of Health and Human Services under this section shallcommence on the day the violation began.
(h) The Secretary maybring a civil action in the superior court of the county wherein the violationoccurred to recover the amount of the administrative penalty whenever a facility:
(1) Which has notrequested an administrative hearing fails to pay the penalty within 60 daysafter being notified of the penalty, or
(2) Which has requestedan administrative hearing fails to pay the penalty within 60 days after receiptof a written copy of the decision as provided in G.S. 150B‑36.
(i) In lieu ofassessing an administrative penalty, the Secretary may order a facility toprovide staff training if:
(1) The penalty would befor the facility's only violation within a 12‑month period preceding thecurrent violation and while the facility is under the same management; and
(2) The training is:
a. Specific to theviolation;
b. Approved by theDepartment of Health and Human Services; and
c. Taught by someoneapproved by the Department and other than the provider.
(j) The clear proceedsof civil penalties provided for in this section shall be remitted to the StateTreasurer for deposit in accordance with State law.
(k) In consideringrenewal of a license, the Department shall not renew a license if outstandingfines and penalties imposed by the Department against the facility or programhave not been paid. Fines and penalties for which an appeal is pending areexempt from consideration for nonrenewal under this subsection. (2000‑55, s. 4; 2005‑276,ss. 10.40A(e), 10.40A(f).)