Fla. Admin. Code Ann. R. 65D-30.0038 - Violations; Imposition of Administrative Fines; Grounds

Current through Reg. 48, No. 66; April 5, 2022

This rule establishes the grounds under which the Department shall issue an administrative fine, as well as the uniform system of procedures to impose disciplinary sanctions.

(1) The Department shall impose an administrative fine for the violation of any provision of rule chapter 65D-30, F.A.C. or of chapter 397, F.S., by a licensed service provider, as described in the Substance Use Treatment Facility Licensing Standards Classification of Violations, CF-MH Form 4039, June 2019, which is incorporated by reference. A copy of the Substance Use Treatment Facility Licensing Standards Classification of Violations may be obtained from the Department's website at http://www.myflfamilies.com/general-information/publications-forms or from the following links: http://www.myflfamilies.com/service-programs/substance-abuse/licensure-regulation, or http://www.flrules.org/Gateway/reference.asp?No=Ref-10904. Each standard violation has an assigned classification based on the nature or severity of the violation(s) as identified in CF-MH Form 4039.
(2) The Department shall indicate the classification on the written notice of the violation. The aggregate amount for all fines shall not exceed $20,000 per inspection.
(3) Definitions.
(a) "Day" means a calendar day in which the program is operating for business.
(b) "Standards" are requirements for the operation of a licensed facility, as provided in statute or in rule.
(c) "Violation" means a finding of noncompliance by the Department of a licensing standard.
(d) Class "I" violations are defined in section 397.411, F.S., and include all instances where the Department has verified that the licensee is responsible for abuse, neglect, or abandonment of a child or abuse, neglect, or exploitation of a vulnerable adult. "Class I violations" are incidents of noncompliance with a Class I standard as described in CF-MH Form 4039.
(e) Class "II" violations are defined in section 397.411, F.S. "Class II Violations" are incidents of noncompliance with a Class II standard as described in CF-MH Form 4039.
(f) Class "III" violations are defined in section 397.411, F.S. "Class III Violations" are incidents of noncompliance with a Class III standard as described on CF-MH Form 4039.
(g) Class "IV" violations are defined in section 397.411, F.S. "Class IV Violations" are incidents of noncompliance with a Class IV standard as described on CF-MH Form 4039.
(4) Regardless of the class of violation cited, the Department may impose a sanction on a provider, in addition to the fine, if the operation of any service component or location of the provider has one (1) or more of the violations present as established by sections 397.415(1)(c) and (d), F.S.
(5) Disciplinary sanctions for licensing violations shall be enforced as follows:
(a) Class I Violations.
1. For the first violation of a Class I standard, the Department shall issue the provider an interim license and impose an administrative fine in an amount not less than $400 and not exceeding $500 per day for each violation and may impose other disciplinary sanctions in addition to the fine.
2. For the second and subsequent violation of the same Class I standard, the Department shall suspend, deny, or revoke the license. The Department may also levy a fine not less than $400 and not exceeding $500 per day for each violation in addition to any other disciplinary sanction.
(b) Class II Violations.
1. For the first violation of a Class II standard, the Department shall impose a fine not less than $300 and not exceeding $400 per day for each violation.
2. For the second violation of the same Class II standard, the Department shall issue the provider an interim license and impose an administrative fine in an amount not less than $300 and not exceeding $400 per day for each violation and may impose other disciplinary sanctions in addition to the fine, including suspending, denying, or revoking the license.
3. For the third and subsequent violation of the same Class II standard, the Department shall suspend, deny, or revoke the license. The Department may also levy a fine not less than $300 and not exceeding $400 per day for each violation in addition to any other disciplinary sanction.
(c) Class III Violations. When a Class III violation is not corrected within the time specified in the Department's written notice of the violation, the Department shall impose a fine not less than $200 and not exceeding $300 per day for each violation.
(d) Class IV Violations. When a Class IV violation is not corrected within the time specified in the Department's written notice of the violation, the Department shall impose a fine not less than $100 and not exceeding $200 per day for each violation.
(6) Each day of continuing violation after the date fixed for termination of the violation, as specified by the Department, constitutes an additional, separate, and distinct violation. A grace period is provided, wherein a violation that occurred more than two years prior to a subsequent violation of the same standard will not be counted for purposes of discipline. However, for the purposes of continued licensure, the provider's violation history will be considered.
(7) Any action taken to correct a violation shall be documented in writing by the owner or administrator of the facility and verified through follow-up visits by Department personnel. The Department shall impose a fine and revoke or deny a service provider's license when an administrator fraudulently misrepresents action taken to correct a violation.
(8) The Department shall impose an administrative fine for a violation that is not designated as a Class I, Class II, Class III, or Class IV violation. The amount of the fine shall be $500 for each violation. Unclassified violations include:
(a) Violating any term or condition of a license;
(b) Violating any provision of applicable rules or authorizing statutes;
(c) Providing services beyond the scope of the license;
(d) Violating a moratorium imposed pursuant to section 397.415, F.S.;
(e) Failure to submit required incident reports;
(f) Violations that occurred or were identified during the current or preceding licensure year;
(g) Operating a service without a license; and
(h) Failing to inform the Department of a change in ownership within the specified timeframe in accordance with rule 65D-30.0034, F.A.C.
(9) For purposes of this section, in determining if a penalty is to be imposed for an unclassified violation, the Department shall consider the following factors:
(a) The gravity of the violation, including the probability that death or serious physical or emotional harm to an individual receiving services will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;
(b) Actions taken by the owner or administrator to correct violations;
(c) Any previous violations;
(d) The financial benefit to the facility of committing or continuing the violation; and,
(e) The licensed capacity of the facility, if applicable.
(10) Scope of Violations. Each violation of a class standard as described on CF-MH Form 4039 shall be cited as isolated, patterned, or widespread. The scope shall be indicated on the face of the notice of deficiencies in accordance with section 397.411, F.S. The scope shall determine the fine amount as follows:
(a) For violation(s) cited as isolated, the minimum fine amount for that class standard as allowed under this rule shall be imposed.
(b) For violation(s) cited as patterned, an increase of $50 from the minimum fine for that class standard amount as allowed under this rule shall be imposed.
(c) For violation(s) cited as widespread, the maximum fine amount for that class standard as allowed under this rule shall be imposed.
(11) Disciplinary sanctions in addition to the fine.
(a) If one or more Class I or Class II licensing violations require the provider to halt service delivery while the violation is remedied, then the license shall be suspended or revoked.
(b) The Department shall consider the factors outlined in section 397.415(1)(d), F.S. when determining whether a provider's license will be suspended, revoked, or denied renewal.
(c) If as a result of the investigation, the Department makes a decision not to revoke, suspend, or deny further licensure, the Department shall require the provider to prepare a written corrective action plan to correct the deficiencies.
1. The plan shall be in writing and signed by the executive director or designee of the provider;
2. The plan must be approved by the Department before implementation;
3. Failure of the provider to timely comply with the corrective action plan may result in suspension, denial of re-licensure, or revocation of the license.
(d) If as a result of the investigation the Department makes a decision to revoke, suspend, or deny further licensure, notice shall be delivered via personal service or certified mail pursuant to section 120.60(5), F.S., which shall include the statutory and rule violations that were found, shall advise of the action to be taken, and the right to challenge the action through an administrative proceeding as provided in chapter 120, F.S.
(12) Documentation Requirements Prior to Administrative Action.
(a) Before making a determination that a license shall be denied, suspended, or revoked, the following shall be documented in the licensing file:
1. All qualifying abuse reports and all reports of licensing violations, and the outcome of any investigations;
2. List of all deficiencies or conditions which compromise the safety or well-being of the individuals in treatment;
3. The length of time and frequency of the noncompliance with the licensing requirements or deficiencies;
4. The date of written notification to the licensee as to the deficiencies and time given to the licensee to correct the deficiencies;
5. The Department's efforts to help the licensee come into compliance; and
6. Barriers, if any, which prohibit the licensee from correcting the deficiencies.
(b) All license revocations and denials shall comply with requirements of chapter 120, F.S.
(c) All documentation shall be reviewed by the Department's legal counsel prior to administrative action. The notice of revocation or denial shall not be sent to the provider without approval of the Department's legal counsel, except in instances when the Department determines that conditions present a threat to the health, safety, or welfare of an individual in treatment or the public.

Notes

Fla. Admin. Code Ann. R. 65D-30.0038

Rulemaking Authority 397.321(5), 397.410(2) FS. Law Implemented 397.410, 397.411 FS.

Adopted by Florida Register Volume 45, Number 157, August 13, 2019 effective 8/29/2019.

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