2006 Code of Virginia § 63.2-1709.2 - Enforcement and sanctions; special orders; civil penalties

63.2-1709.2. Enforcement and sanctions; special orders; civil penalties.

A. Notwithstanding any other provision of law, following a proceeding asprovided in 2.2-4019, the Commissioner may issue a special order (i) forviolation of any of the provisions of this subtitle, 54.1-3408, or anyregulation adopted under any provision of this subtitle which violationadversely affects, or is an imminent and substantial threat to, the health,safety, or welfare of the person cared for therein, or (ii) for permitting,aiding, or abetting the commission of any illegal act in an assisted livingfacility, adult day care center, or child welfare agency. Notice of theCommissioner's intent to take any of the actions enumerated in subdivisions B1 through B 7 shall be provided by the Department and a copy of such noticeshall be posted in a prominent place at each public entrance of the licensedpremises to advise consumers of serious or persistent violations. Theissuance of a special order shall be considered a case decision as defined in 2.2-4001. The Commissioner shall not delegate his authority to impose civilpenalties in conjunction with the issuance of special orders.

B. The Commissioner may take the following actions regarding assisted livingfacilities, adult day care centers, and child welfare agencies through theissuance of a special order and may require a copy of the special orderprovided by the Department to be posted in a prominent place at each publicentrance of the licensed premises to advise consumers of serious orpersistent violations:

1. Place a licensee on probation upon finding that the licensee issubstantially out of compliance with the terms of its license and that thehealth and safety of residents, participants, or children are at risk;

2. Reduce licensed capacity or prohibit new admissions when the Commissionerconcludes that the licensee cannot make necessary corrections to achievecompliance with regulations except by a temporary restriction of its scope ofservice;

3. Mandate training for the licensee or licensee's employees, with any coststo be borne by the licensee, when the Commissioner concludes that the lack ofsuch training has led directly to violations of regulations;

4. Assess civil penalties for each day the assisted living facility is or wasout of compliance with the terms of its license and the health, safety, andwelfare of residents are at risk, which shall be paid into the state treasuryand credited to the Assisted Living Facility Education, Training, andTechnical Assistance Fund created pursuant to 63.2-1803.1. The aggregateamount of such civil penalties shall not exceed $10,000 for assisted livingfacilities in any 24-month period. Criteria for imposition of civil penaltiesand amounts, expressed in ranges, shall be developed by the Board, and shallbe based upon the severity, pervasiveness, duration, and degree of risk tothe health, safety, or welfare of residents. Such civil penalties shall beapplied by the Commissioner in a consistent manner. Such criteria shall alsoprovide that (i) the Commissioner may accept a plan of correction, includinga schedule of compliance, from an assisted living facility prior to setting acivil penalty, and (ii) the Commissioner may reduce or abate the penaltyamount if the facility complies with the plan of correction within its terms.

A single act, omission, or incident shall not give rise to imposition ofmultiple civil penalties even though such act, omission, or incident mayviolate more than one statute or regulation. A civil penalty that is notappealed becomes due on the first day after the appeal period expires. Thelicense of an assisted living facility that has failed to pay a civil penaltydue under this section shall not be renewed until the civil penalty has beenpaid in full, with interest, provided that the Commissioner may renew alicense when an unpaid civil penalty is the subject of a pending appeal;

5. Assess civil penalties of not more than $500 per inspection upon findingthat the adult day care center or child welfare agency is substantially outof compliance with the terms of its license and the health and safety ofresidents, participants, or children are at risk;

6. Require licensees to contact parents, guardians, or other responsiblepersons in writing regarding health and safety violations; and

7. Prevent licensees who are substantially out of compliance with thelicensure terms or in violation of the regulations from receiving publicfunds.

C. The Board shall adopt regulations to implement the provisions of thissection.

(2005, cc. 610, 924.)