§ 131E-129. Penalties. - North Carolina Statutes

§ 131E‑129.  Penalties.

(a)        Violationsclassified. The Department shall impose an administrative penalty in accordancewith provisions of this Part on any facility's licensee which is found to be inviolation of the requirements of G.S. 131E‑117 or applicable State andfederal laws and regulations. Citations issued for violations shall beclassified according to the nature of the violation as follows:

(1)        "Type AViolation" means a violation by a facility's licensee of the regulations,standards, and requirements set forth in G.S. 131E‑117, 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.

(2)        "Type BViolation" means a violation by a facility's licensee of the regulations,standards and requirements set forth in G.S. 131E‑117 or applicable Stateor federal laws and regulations governing the licensure or certification of afacility which presents a direct relationship to the health, safety, or welfareof any resident, but which does not result in substantial risk that death orserious physical harm will occur. The Department shall require a plan ofcorrection for each Type B Violation and may require the facility to establisha specific plan of correction within a specific time period to address theviolation.

(b)        Penalties forfailure to correct violations within time specified.

(1)        Where a facility'slicensee has failed to correct a Type A Violation, the Department shall assessthe facility's licensee a civil penalty in the amount of up to five hundreddollars ($500.00) for each day that the deficiency continues beyond the timespecified in the plan of correction approved by the Department or itsauthorized representative. The Department or its authorized representativeshall ensure that the violation has been corrected.

(2)        Where a facility's licenseehas failed to correct a Type B Violation within the time specified forcorrection by the Department or its authorized representative, the Departmentshall assess the facility's licensee a civil penalty in the amount of up to twohundred dollars ($200.00) for each day that the deficiency continues beyond thetime specified in the plan of correction approved by the Department or itsauthorized representative without just reason for such failure. The Departmentor its authorized representative shall ensure that the violation has beencorrected.

(3)        The Department shallimpose a civil penalty on a facility's licensee which is treble the amountassessed under subdivision (1) of subsection (a) when a facility under themanagement, ownership, or control of that same licensee has received a citationand paid a penalty for violating the same specific provision of a statute orregulation for which the facility's licensee has received a citation during theprevious 12 months. The counting of the 12‑month period shall be tolledduring any time when the facility is being operated by a court‑appointedtemporary manager pursuant to Article 13 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 reviewcommittee;

(2)        The local departmentof social services who is responsible for oversight of the facility involved;

(3)        The licenseeinvolved;

(4)        The residents affected;and

(5)        The family membersor guardians of the residents affected.

(c2)      Local countydepartments of social services and Division of Health Service Regulationpersonnel shall submit proposed penalty recommendations to the Departmentwithin 45 days of the citation of a violation.

(d)        The Departmentshall impose a civil penalty on any facility's licensee which refuses to allowan authorized representative of the Department to inspect the premises andrecords of the facility.

(e)        Any facility'slicensee wishing to contest a penalty shall be entitled to an administrativehearing as provided in the Administrative Procedure Act, Chapter 150B of theGeneral Statutes. At least the following specific issues shall be addressed atthe 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)         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's licensee:

(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.

(g)        The penalty reviewcommittee established pursuant to G.S. 131D‑34(h) shall reviewadministrative penalties assessed pursuant to this section.

(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 Departmentshall not assess an administrative penalty against a facility under thissection if a civil monetary penalty has been assessed for the same violationunder federal enforcement laws and regulations.

(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. 2; 1989, c.556, s. 2; 1993, c. 390, s. 2; 1995, c. 396, s. 1; 1995 (Reg. Sess., 1996), c.602, s. 2; 1997‑431, s. 2; 1997‑443, s. 11A.122; 1998‑215, s.78(b); 2007‑182, s. 1.1.)