§ 131D-34. Penalties; remedies.
§ 131D‑34. Penalties;remedies.
(a) ViolationsClassified. The Department of Health and Human Services shall impose anadministrative penalty in accordance with provisions of this Article on anyfacility which is found to be in violation of requirements of G.S. 131D‑21or applicable State and federal laws and regulations. Citations issued forviolations shall be classified according to the nature of the violation asfollows:
(1) "Type AViolation" means a violation by a facility of the regulations, standards,and requirements set forth in G.S. 131D‑21 or applicable State or federallaws and regulations governing the licensure or certification of a facilitywhich results in death or serious physical harm, or results in substantial riskthat death or serious physical harm will occur. Type A Violations shall beabated or eliminated immediately. The Department shall require an immediateplan of correction for each Type A Violation. The person making the findingsshall 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 the informationprovided 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 homes licensed for six or fewer beds. The Department shall imposea civil penalty in an amount not less than one thousand dollars ($1,000) normore than twenty thousand dollars ($20,000) for each Type A Violation infacilities licensed for seven or more beds.
(2) "Type BViolation" means a violation by a facility of the regulations, standardsand requirements set forth in G.S. 131D‑21 or applicable State or federallaws and regulations governing the licensure or certification of a facilitywhich present a direct relationship to the health, safety, or welfare of anyresident, but which does not result in substantial risk that death or serious physicalharm will occur. The Department shall require a plan of correction for eachType B Violation and may require the facility to establish a specific plan ofcorrection within a reasonable time period to address the violation. Therequired plan cannot exceed requirements imposed by existing rule or law.
(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 such 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) when a facility under the same management, ownership, orcontrol has received a citation and paid a penalty for violating the samespecific provision of a statute or regulation for which it received a citationduring the previous 12 months. The counting of the 12‑month period shallbe tolled during any time when the facility is being operated by a court‑appointedtemporary manager pursuant to Article 4 of this Chapter.
(c) Factors to beconsidered in determining amount of initial penalty. In determining the amountof the initial penalty to be imposed under this section, the Department shallconsider the following factors:
(1) The gravity of theviolation, including the fact that death or serious physical harm to a residenthas resulted; the severity of the actual or potential harm, and the extent towhich the provisions of the applicable statutes or regulations were violated;
(1a) The gravity of theviolation, including the probability that death or serious physical harm to aresident will result; the severity of the potential harm, and the extent towhich the provisions of the applicable statutes or regulations were violated;
(1b) The gravity of theviolation, including the probability that death or serious physical harm to aresident may result; the severity of the potential harm, and the extent towhich the provisions of the applicable statutes or regulations were violated;
(2) The reasonablediligence exercised by the licensee to comply with G.S. 131E‑256 and G.S.131E‑265 and other applicable State and federal laws and regulations;
(2a) Efforts by thelicensee to correct violations;
(3) The number and typeof previous violations committed by the licensee within the past 36 months;
(4) The amount ofassessment necessary to insure immediate and continued compliance; and
(5) The number ofpatients put at risk by the violation.
(c1) The facts found tosupport the factors in subsection (c) of this section shall be the basis indetermining the amount of the penalty. The Secretary shall document thefindings in written record and shall make the written record available to allaffected parties including:
(1) The penalty review committee;
(2) The local departmentof social services who is responsible for oversight of the facility involved;
(3) The licenseeinvolved;
(4) The residentsaffected; and
(5) The family membersor guardians of the residents affected.
(c2) Local county departmentsof social services and Division of Health Service Regulation personnel shallsubmit proposed penalty recommendations to the Department within 45 days of thecitation of a violation.
(d) 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.
(d1) The Department shallimpose a civil penalty on any applicant for licensure who provides falseinformation or omits information on the portion of the licensure applicationrequesting information on owners, administrators, principals, or affiliates ofthe facility. The amount of the penalty shall be as is prescribed for a Type AViolation.
(e) Any facilitywishing to contest a penalty shall be entitled to an administrative hearing asprovided in the Administrative Procedure Act, Chapter 150B of the GeneralStatutes. A petition for a contested case shall be filed within 30 days afterthe Department mails a notice of penalty to a licensee. At least the followingspecific issues shall be addressed at 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.
(f) Notwithstandingthe notice requirements of G.S. 131D‑26(b), any penalty imposed by theDepartment of Health and Human Services under this section shall commence onthe day the violation began.
(g) 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 afacility:
(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.
(g1) In lieu of assessingan administrative penalty, the Secretary may order a facility to provide stafftraining if:
(1) The cost of trainingdoes not exceed one thousand dollars ($1,000);
(2) 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
(3) 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.
(h) The Secretary shallestablish a penalty review committee within the Department, which shall meet asoften as needed, but no less frequently than once each quarter of the year, toreview administrative penalties assessed pursuant to this section and pursuantto G.S. 131E‑129 as follows:
(1) The Secretary shalladminister the work of the Committee and provide public notice of its meetingsvia Web site, and provide direct notice to the following parties involved inthe penalties the Committee will be reviewing:
a. The licensedprovider, who upon receipt of the notice, shall post the notice of thescheduled Penalty Review Committee meeting in a conspicuous place available toresidents, family members, and the public;
b. The local departmentof social services that is responsible for oversight of the facility involved;
c. The residentsaffected; and
d. Those individualslawfully designated by the affected resident to make health care decisions forthe resident.
(2) The Secretary shallensure that the Nursing Home/Adult Care Home Penalty Review Committeeestablished by this subsection is comprised of nine members. At least onemember shall be appointed from each of the following categories:
a. A licensedpharmacist;
b. A registered nurseexperienced in long term care;
c. A representative ofa nursing home;
d. A representative ofan adult care home; and
e. Two public members.One shall be a "near" relative of a nursing home patient, chosen froma list prepared by the Office of State Long Term Care Ombudsman, Division ofAging, Department of Health and Human Services. One shall be a "near"relative of a rest home patient, chosen from a list prepared by the Office ofState Long Term Care Ombudsman, Division of Aging, Department of Health andHuman Services. For purposes of this subdivision, a "near" relativeis a spouse, sibling, parent, child, grandparent, or grandchild.
(3) Neither thepharmacist, nurse, nor public members appointed under this subsection nor anymember of their immediate families shall be employed by or own any interest ina nursing home or adult care home.
(4) Repealed by SessionLaws 2005‑276, s. 10.40A(l), effective July 1, 2005.
(4a) Repealed by SessionLaws 2007‑544, s. 1, effective October 1, 2007.
(4b) Prior to serving onthe Committee, each member shall complete a training program provided by theDepartment of Health and Human Services that covers standards of care andapplicable State and federal laws and regulations governing facilities licensedunder Chapter 131D and Chapter 131E of the General Statutes.
(5) Each member of theCommittee shall serve a term of two years. The initial terms of the membersshall commence on August 3, 1989. The Secretary shall fill all vacancies.Unexcused absences from three consecutive meetings constitute resignation fromthe Committee.
(6) The Committee shallbe cochaired by:
a. One member of theDepartment outside of the Division of Health Service Regulation; and
b. One member who isnot affiliated with the Department.
(i) The clear proceedsof civil penalties provided for in this section shall be remitted to the CivilPenalty and Forfeiture Fund in accordance with G.S. 115C‑457.2. (1987, c. 600, s. 3; 1989, c.556, s. 1; 1991, c. 66, s. 1; c. 572, s. 3; 1993, c. 390, s. 4; 1993 (Reg.Sess., 1994), c. 698, s. 1; 1995, c. 535, s. 16; 1995 (Reg. Sess., 1996), c.602, s. 1; 1997‑431, s. 1; 1997‑443, s. 11A.118(a); 1998‑215,s. 78(a); 2005‑276, s. 10.40A(l); 2007‑182, ss. 1, 1.1; 2007‑544,s. 1.)