ENFORCEMENT REMEDIES

 

8:43E-3.1       Enforcement remedies available

 

(a) Pursuant to N.J.S.A. 26:2H-13, 14, 15, 16 and 38, the Commissioner or his or her designee may impose the following enforcement remedies against a health care facility for violations of licensure regulations or other statutory requirements:

 

  1. Civil monetary penalty;

 

  1. Curtailment of admissions;

 

  1. Appointment of a receiver or temporary manager;

 

  1. Provisional license;

 

  1. Suspension of a license;

 

  1. Revocation of a license;

 

  1. Order to Cease and Desist operation of an unlicensed health care facility; and

 

  1. Other remedies for violations of statutes as provided by State or Federal law, or as authorized by Federal survey, certification, and enforcement regulations and agreements.

 

8:43E-3.2       Notice of violations and enforcement actions

 

The Commissioner shall serve notice to a facility of the proposed assessment of civil monetary penalties, suspension or revocation of a license, or placement on a provisional license, setting forth the specific violations, charges or reasons for the action. Such notice shall be served on a licensee or its registered agent in person or by certified mail.

 

8:43E-3.3       Effective date of enforcement actions

 

The assessment of civil monetary penalties, or revocation of a license, or the placement of a license on provisional status shall become effective 30 days after the date of mailing or the date personally served on a licensee, unless the licensee shall file with the Department a written answer to the charges and give written notice to the Department of its desire for a hearing in which case the assessment, suspension, revocation or placement on provisional license status shall be held in abeyance until the administrative hearing has been concluded and a final decision is rendered by the Commissioner. Hearings shall be conducted in accordance with N.J.A.C. 8:43E-4.1.

 

8:43E-3.4       Civil monetary penalties

 

  • Pursuant to N.J.S.A. 26:2H-13 and 14, the Commissioner may assess a penalty for violation of licensure regulations in accordance with the following standards:

 

  1. For operation of a health care facility without a license, or continued operation of a facility after suspension or revocation of a license, $1,000 per day from the date of initiation of services;

 

  1. For violation of an order for curtailment of admissions, $250.00 per patient, per day from the date of such admission to the date of discharge or lifting of the curtailment order;

 

  1. For failure to obtain prior approval from the Inspections, compliance and Complaints Program or the Long Term Care Assessment and Survey Program, as applicable, for occupancy of an area or initiation of a service following construction or application for licensure, $250.00 a day;

 

  1. For construction or renovation of a facility without the Department of Community Affairs’ approval of construction plans, $1,000 per room or area renovated and immediate suspension of use in the room or area from the date of initial use until determined by the Department to be in compliance with licensure standards. This determination shall take into account any waivers granted by the Department.

 

  1. For the transfer of ownership of a health care facility without prior approval of the Department, $500.00 per day from the date of the transfer of interest to the date of discovery by the Such fine may be assessed against each of the parties at interest;

 

  1. For maintaining or admitting more patients or residents to a facility than the maximum capacity permitted under the license, except in an emergency as documented by the facility in a contemporaneous notice to the Department,

$25.00 per patient per day plus an amount equal to the average daily charge collected from such patient or patients;

 

  1. For violations of licensure regulations related to patient care or physical plant standards that represent a risk to the health, safety, or welfare of patients or residents of a facility or the general public, $500.00 per violation where such deficiencies are isolated or occasional and do not represent a pattern or widespread practice throughout the facility;

 

  1. Where there are multiple deficiencies related to patient care or physical plant standards throughout a facility, and/or such violations represent a direct risk that a patient’s physical or mental health will be compromised, or where an actual violation of a resident’s or patient’s rights is found, a penalty of $1,000 per violation may be assessed for each day noncompliance is found;

 

  1. For repeated violations of any licensing regulation within a 12-month period or on successive annual inspections, or failure to implement an approved plan of correction, where such violation was not the subject of a previous penalty assessment, $500.00 per violation, which may be assessed for each day noncompliance is found. If the initial violation resulted in the assessment of a penalty, within a 12-month period or on successive annual inspections, the second violation shall result in a doubling of the original fine, and the third and successive violations shall result in a tripling of the original fine;

 

  1. For violations resulting in either actual harm to a patient or resident, or in an immediate and serious risk of harm, $2,500 per violation, which may be assessed for each day noncompliance is found;

 

  1. For failure to report information to the Department as required by statute or licensing regulation, after reasonable notice and an opportunity to cure the violation, $250.00 per day;

 

  1. For failure to implement a Certificate of Need condition of approval,

$1,000 per day, which shall be assessed either from the date specified in the Certificate of Need for implementation of the specific condition of approval, if identified, or from the date on which the Certificate of Need was considered to be implemented; or

 

  1. For violations of regulations governing the prohibition of mandatory overtime contained in N.J.A.C. 8:43E-8, $1,000 per violation, which may be assessed for each day noncompliance is

 

  • Except for violations deemed to be immediate and serious threats, the Department may decrease the penalty assessed in accordance with (a) above, based on the compliance history of the facility; the number, frequency and/or severity of violations by the facility; the measures taken by the facility to mitigate the effects of the current violation, or to prevent future violations; the deterrent effect of the penalty; and/or other specific circumstances of the facility or the violation.

 

  • The Department may increase the penalties in (a) above up to the statutory maximum per violation per day in consideration of the economic benefit realized by the facility for

 

8:43E-3.5       Failure to pay a penalty; remedies

 

  • Within 30 days after the mailing date of a Notice of Proposed Assessment of a Penalty, a facility which intends to challenge the enforcement action shall notify the Department of its intent to request a hearing pursuant to the Administrative Procedure

 

  • The penalty becomes due and owing upon the 30th day from mailing of the Notice of Proposed Assessment of Penalties, if a notice requesting a hearing has not been received by the Department. If a hearing has been requested, the penalty is due 45 days after the issuance of a Final Agency Decision by the Commissioner, if the Department’s assessment has not been withdrawn, rescinded, or reversed, and an appeal has not been timely filed with the New Jersey Superior Court, Appellate Division pursuant to New Jersey Court Rule

2:2-3.

 

  • Failure to pay a penalty within 30 days of the date it is due and owing pursuant to (b) above may result in one or more of the following actions:

 

  1. Institution of a summary civil proceeding by the State pursuant to the Penalty Enforcement Law (N.J.S.A. 2A:58-1 et seq.); or

 

  1. Placing the facility on a provisional license

 

8:43E-3.6       Curtailment of admissions

 

  • The Department may issue an order curtailing all new admissions and readmissions to a health care facility in the following circumstances:

 

  1. Where violations of licensing regulations are found that have been determined to pose an immediate and serious threat of harm to patients or residents of a health care facility;

 

  1. Where the Department has issued a Notice of Proposed Revocation or Suspension of a health care facility license, for the purpose of limiting the census of a facility if patients or residents must be relocated upon closure;

 

  1. Where the admission or readmission of new patients or residents to a health care facility would impair the facility’s ability to correct serious or widespread violations of licensing regulations related to direct patient care and cause a diminution in the quality of care; or

 

  1. For exceeding the licensed or authorized bed or service capacity of a health care facility, except in those instances where exceeding the licensed or authorized capacity was necessitated by emergency conditions and where immediate and satisfactory notice was provided to the

 

  • The order for curtailment may be withdrawn upon a survey finding that the facility has achieved substantial compliance with the applicable licensing regulations or Federal certification requirements and that there is no immediate and serious threat to patient safety, or in the case of providers exceeding licensed capacity, has achieved a census equivalent to licensed and approved levels. Such order to lift a curtailment may reasonably limit the number and priority of patients to be admitted by the facility in order to protect patient

 

8:43E-3.7       Appointment of a receiver

 

  • Pursuant to N.J.S.A. 26:2H-42 et seq., the Department may seek an order or judgment in a court of competent jurisdiction, directing the appointment of a receiver for the purpose of remedying a condition or conditions in a residential health care facility, assisted living facility, or long-term care facility, that represent a substantial or habitual violation of the standards of health, safety, or resident care adopted by the Department or pursuant to Federal law or regulation.

 

  • The Department shall review and approve the receiver’s qualifications prior to submission for court approval. The receiver shall have experience and training in long-term care, assisted living, or residential health care, as appropriate, and, if the facility is a licensed long-term care provider, the receiver shall possess a current New Jersey license as a nursing home administrator and be in good standing. The Department shall maintain a list of interested and approved

 

  • No receiver may be a current owner, licensee, or administrator of the subject facility or a spouse or immediate family member

 

8:43E-3.8       Suspension of a license

 

  • Pursuant to N.J.S.A. 26:2H-14, the Commissioner may order the summary suspension of a license of a health care facility or a component or distinct part of a facility upon a finding that violations pertaining to the care of patients or to the hazardous or unsafe conditions of the physical structure pose an immediate threat to the health, safety, and welfare of the public or the residents of the

 

  • Upon a finding described in (a) above, the Commissioner or the Commissioner’s authorized representative shall serve notice in person or by certified mail to the facility or its registered agent of the nature of the findings and violations and the proposed order of suspension. Except in the case of a life- threatening emergency, the notice shall provide the facility with a 72-hour period from receipt to correct the violations and provide proof to the Department of such correction.

 

  • If the Department determines the violations have not been corrected, and the facility has not filed notice requesting a hearing to contest the notice of suspension within 48 hours of receipt of the Commissioner’s notice pursuant to
  • below, then the license shall be deemed suspended. Upon the effective date of the suspension, the facility shall cease and desist the provision of health care services and effect an orderly transfer of

 

  • The Department shall approve and coordinate the process to be followed during an evacuation of the facility or cessation of services pursuant to an order for suspension or

 

  • If the facility requests a hearing within 48 hours of receipt of the Notice of Proposed Suspension of License in accordance with N.J.S.A. 26:2H-14, the Department shall arrange for an immediate hearing to be conducted by the Commissioner and a final agency decision shall be issued within 48 hours by the Commissioner. If the Commissioner shall affirm the proposed suspension of the license, the order shall become final. The licensee may apply for injunctive relief against the Commissioner’s order in the New Jersey Superior Court, in accordance with the provisions set forth in N.J.S.A. 26:2H-14.

 

  • Notwithstanding the issuance of an order for proposed suspension of a license, the Department may concurrently or subsequently impose other enforcement actions pursuant to these

 

  • The Department may rescind the order for suspension upon a finding that the facility has corrected the conditions which were the basis for the

 

8:43E-3.9       Revocation of a license

 

  • A Notice of the Proposed Revocation of a health care facility license may be issued in the following circumstances:

 

  1. The facility has failed to comply with licensing requirements, posing an immediate and serious risk of harm or actual harm to the health, safety, and welfare of patients or residents, and the facility has not corrected such violations in accordance with an approved plan of correction or subsequent to imposition of other enforcement remedies issued pursuant to these rules;

 

  1. The facility has exhibited a pattern and practice of violating licensing requirements, posing a serious risk of harm to the health, safety and welfare of residents or patients. A pattern and practice may be demonstrated by the repeated violation of identical or substantially-related licensing regulations during three consecutive surveys, or the issuance of civil monetary penalties pursuant to

N.J.A.C. 8:43E-3.4 or other enforcement actions for unrelated violations on three or more consecutive surveys;

 

  1. Failure of a licensee to correct identified violations which had led to the issuance of an order for suspension of a license, pursuant to N.J.A.C. 8:43E-3.6 or 3.8; or

 

  1. Continuance of a facility on provisional licensure status for a period of 12 months or more.

 

  • The notice shall be served in accordance with N.J.A.C. 8:43E-3.2, and the facility has a right to request a hearing pursuant to N.J.A.C. 8:43E-4.1.

 

8:43E-3.10    Provisional license

 

  • The Department may place a health care facility on provisional license status in the following circumstances:

 

  1. Upon issuance of a Notice for Revocation or Suspension of a License, pursuant to N.J.A.C. 8:43E-3.8 or 3.9, for a period extending through final adjudication of the action;

 

  1. Upon issuance of an order for curtailment of admissions pursuant to

N.J.A.C. 8:43E-3.6, for a minimum period of three months and for a maximum period extending through 90 days following the date the Department finds the facility has achieved substantial compliance with all applicable licensing regulations;

 

  1. For failure to satisfy a civil penalty due and owing pursuant to N.J.A.C. 8:43E-3.4; or

 

  1. Upon a recommendation to the Federal government or the New Jersey Division of Medical Assistance and Health Services for termination of a provider agreement for failure to meet the Federal certification

 

  • A facility placed on provisional license status shall be placed on notice of same, in accordance with the notice requirements set forth in N.J.A.C. 8:43E-

3.2. Provisional license status is effective upon receipt of the notice, although the facility may request a hearing to contest provisional license status in accordance with the requirements set forth in N.J.A.C. 8:43E-4.1. Where a facility chooses to contest provisional license status by requesting a hearing in accordance with the provisions set forth herein and in N.J.A.C. 8:43E-4.1, provisional license status remains effective at least until the final decision or adjudication (as applicable) of the matter, or beyond in instances where the Department’s action is upheld, in accordance with these rules. In addition, provisional license status remains effective in cases where the underlying violations which caused the issuance of provisional licensure status are the subject of appeal and/or litigation, as applicable, in accordance with these rules.

 

  • While a facility is on provisional license status, the following shall

occur:

 

  1. Withholding of authorization or review of any application filed with the Department for approval of additional beds or services;

 

  1. Notification of the action to the Certificate of Need Program, for consideration during any pending application. It may result in withholding of Certificate of Need approval or denial of the Certificate of Need, in accordance with Certificate of Need rules at N.J.A.C. 8:33, or applicable licensing regulations; and

 

  1. Notification of facility placement on provisional license status to any public agency that provides funding or third party reimbursement to the facility or that has statutory responsibility for monitoring the quality of care rendered to patients or

 

  • A facility placed on provisional license status shall post the provisional license in a location within the facility which is

 

8:43E-3.11    Cease and desist order

 

  • Pursuant to N.J.S.A. 26:2H-14 and 15, the Commissioner or his or her designee may issue an order requiring the operation of an unlicensed or unauthorized care facility or service to cease and

 

  • The Commissioner may also impose other enforcement actions pursuant to these rules for operation of an unlicensed health care

 

  • The Department may maintain an action in the New Jersey Superior Court to enjoin any entity from operation of a health care facility without a license or after the suspension or revocation of a license pursuant to these

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