10A NCAC 13G .0216. ADMINISTRATIVE PENALTY DETERMINATION PROCESS

(a)  The county department of social services or the Division of Health Service Regulation shall identify areas of non-compliance resulting from a complaint investigation or monitoring or survey visit which may be violations of residents' rights contained in G.S. 131D-21 or rules contained in this Subchapter.  If the county department of social services or the Division of Health Service Regulation decides that the violation is a Type B violation as defined in G.S. 131D-34(a)(2), it shall require a plan of correction pursuant to G.S. 131D-34(a)(2).  If the county department of social services or the Division of Health Service Regulation decides that the violation is a Type A violation as defined in G.S. 131D-34(a)(1), it shall follow the procedure required in G.S. 131D-34(a)(1)(a-c) and prepare an administrative penalty proposal for submission to the Department.  The proposal shall include a copy of the written confirmation required in G.S. 131D-34(a)(1)(c) and documentation that the licensee was notified of the county department of social services' or the Division of Health Service Regulation's intent to prepare and forward an administrative penalty proposal to the Department; offered an opportunity to provide additional information prior to the preparation of the proposal; after the proposal is prepared, given a copy of the contents of the proposal; and then extended an opportunity to request a conference with the agency proposing the administrative penalty, allowing the licensee 10 days to respond prior to forwarding the proposal to the Department.  The conference, if requested of the county department of social services, shall include the county department director or his designee.  The licensee may request a conference and produce information to cause the agency recommending the administrative penalty to change its proposal.  The agency recommending the administrative penalty may rescind its proposal; or change its proposal and submit it to the Department or submit it unchanged to the Department pursuant to G.S. 131D-34(c2).

(b)  An assistant chief of the Adult Care Licensure Section shall receive the proposal, review it for completeness and evaluate it to determine the penalty amount.

(1)           If the proposal is complete, the assistant chief shall make a decision on the amount of penalty to be submitted for consideration and whether to recommend training in lieu of an administrative penalty pursuant to G.S. 131D-34(g1).

(2)           If the proposal is incomplete, the assistant chief shall contact the agency that submitted the proposal to request necessary changes or additional material.

(3)           When the proposal is complete and the amount of penalty determined, the assistant chief shall forward the proposal to the administrative penalty monitor for processing.  If the assistant chief recommends training in lieu of an administrative penalty pursuant to G.S. 131D-34(g1), the recommendation shall be forwarded with the proposal.

(c)  The Department shall notify the licensee by certified mail within 10 working days from the time the proposal is received by the administrative penalty monitor that an administrative penalty is being considered.

(d)  The licensee shall have 10 working days from receipt of the notification to provide both the Department and the county department of social services any additional information relating to the proposed administrative penalty.

(e)  If a facility fails to correct a Type A or a Type B violation within the time specified on the plan of correction, an assistant chief of the Adult Care Licensure Section shall make a decision on the amount of penalty pursuant to G.S. 131D-34(b)(1) and (2) and submit a penalty proposal for consideration by the Penalty Review Committee.

(f)  The Penalty Review Committee shall consider Type A violations and Type A and Type B violations that have not been corrected within the time frame specified on the plan of correction.  Providers, complainants, affected parties and any member of the public may attend Penalty Review Committee meetings.  Upon written request of any affected party for reasons of illness or schedule conflict, the department may grant a delay until the following month for Penalty Review Committee review.  The Penalty Review Committee chair may ask questions of any of these persons, as resources, during the meeting.  Time shall be allowed during the meeting for individual presentations which provide pertinent additional information.  The order in which presenters speak and the length of each presentation shall be at the discretion of the Penalty Review Committee chair.

(g)  The Penalty Review Committee shall have for review the entire record relating to the penalty recommendation shall make recommendations after review of administrative penalty proposals, any supporting evidence, any additional information submitted by the licensee as described in Paragraph (d) and the factors specified in G.S. 131D-34(c).

(h)  There shall be no taking of sworn testimony or cross-examination of anyone during the course of the Penalty Review Committee meetings.

(i)  If the Penalty Review Committee determines that the licensee has violated applicable rules or statutes, the Penalty Review Committee shall recommend an administrative penalty for each violation pursuant to G.S. 131D-34.  Recommendations for adult care home penalties shall be submitted to the Chief of the Adult Care Licensure Section who shall have five working days from the date of the Penalty Review Committee meeting to determine and impose administrative penalties for each violation or require staff training pursuant to G.S. 131D-34(g1) and notify the licensee by certified mail.

(j)  The licensee shall have 60 days from receipt of the notification to pay the penalty or must file a petition for a contested case with the Office of Administrative Hearings within 30 days of the mailing of the notice of penalty imposition as provided by G.S. 131D-34.

 

History Note:        Authority G.S. 131D‑2; 131D‑34; 143B‑153;

Eff. December 1, 1992;

Amended Eff. March 1, 1995; December 1, 1993;

Temporary Amendment Eff. December 8, 1997;

Amended Eff. April 1, 1999.