2009 North Carolina Code
Chapter 131E - Health Care Facilities and Services.
§ 131E-129. Penalties.

§ 131E‑129.  Penalties.

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

(1)        "Type A Violation" means a violation by a facility's licensee of the regulations, standards, and requirements set forth in G.S. 131E‑117, or applicable State or federal laws and regulations governing the licensure or certification of a facility which results in death or serious physical harm, or results in substantial risk that death or serious physical harm will occur. Type A Violations shall be abated or eliminated immediately. The Department shall require an immediate plan of correction for each Type A Violation. The person making the findings shall do the following:

a.         Orally and immediately inform the administrator of the facility of the specific findings and what must be done to correct them and set a date by which the violation must be corrected;

b.         Within 10 working days of the investigation, confirm in writing to the administrator the information provided orally under sub‑subdivision a. of this subdivision; and

c.         Provide a copy of the written confirmation required under sub‑subdivision b. of this subdivision to the Department.

The Department shall impose a civil penalty in an amount not less than five hundred dollars ($500.00) nor more than ten thousand dollars ($10,000) for each Type A Violation.

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

(b)        Penalties for failure to correct violations within time specified.

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

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

(3)        The Department shall impose a civil penalty on a facility's licensee which is treble the amount assessed under subdivision (1) of subsection (a) when a facility under the management, ownership, or control of that same licensee has received a citation and paid a penalty for violating the same specific provision of a statute or regulation for which the facility's licensee has received a citation during the previous 12 months. The counting of the 12‑month period shall be tolled during any time when the facility is being operated by a court‑appointed temporary manager pursuant to Article 13 of this Chapter.

(c)        Factors to be considered in determining amount of initial penalty. In determining the amount of the initial penalty to be imposed under this section, the Department shall consider the following factors:

(1)        The gravity of the violation, including the fact that death or serious physical harm to a resident has resulted; the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or regulations were violated;

(1a)      The gravity of the violation, including the probability that death or serious physical harm to a resident will result; the severity of the potential harm, and the extent to which the provisions of the applicable statutes or regulations were violated;

(1b)      The gravity of the violation, including the probability that death or serious physical harm to a resident may result; the severity of the potential harm, and the extent to which the provisions of the applicable statutes or regulations were violated;

(2)        The reasonable diligence 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 the licensee to correct violations;

(3)        The number and type of previous violations committed by the licensee within the past 36 months;

(4)        The amount of assessment necessary to insure immediate and continued compliance; and

(5)        The number of patients put at risk by the violation.

(c1)      The facts found to support the factors in subsection (c) of this section shall be the basis in determining the amount of the penalty. The Secretary shall document the findings in written record and shall make the written record available to all affected parties including:

(1)        The penalty review committee;

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

(3)        The licensee involved;

(4)        The residents affected; and

(5)        The family members or guardians of the residents affected.

(c2)      Local county departments of social services and Division of Health Service Regulation personnel shall submit proposed penalty recommendations to the Department within 45 days of the citation of a violation.

(d)        The Department shall impose a civil penalty on any facility's licensee which refuses to allow an authorized representative of the Department to inspect the premises and records of the facility.

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

(1)        The reasonableness of the amount of any civil penalty assessed, and

(2)        The degree to which each factor has been evaluated pursuant to subsection (c) of this section to be considered in determining the amount of an initial penalty.

If a civil penalty is found to be 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 may bring a civil action in the superior court of the county wherein the violation occurred to recover the amount of the administrative penalty whenever a facility's licensee:

(1)        Which has not requested an administrative hearing fails to pay the penalty within 60 days after being notified of the penalty; or

(2)        Which has requested an administrative hearing fails to pay the penalty within 60 days after receipt of a written copy of the decision as provided in G.S. 150B‑36.

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

(g1)      In lieu of assessing an administrative penalty, the Secretary may order a facility to provide staff training if:

(1)        The cost of training does not exceed one thousand dollars ($1,000);

(2)        The penalty would be for the facility's only violation within a 12‑month period preceding the current violation and while the facility is under the same management; and

(3)        The training is:

a.         Specific to the violation;

b.         Approved by the Department of Health and Human Services; and

c.         Taught by someone approved by the Department and other than the provider.

(h)        The Department shall not assess an administrative penalty against a facility under this section if a civil monetary penalty has been assessed for the same violation under federal enforcement laws and regulations.

(i)         The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty 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.)