A. Nothing in this part shall prohibit the department commissioner from exercising its his responsibility and authority to enforce the regulation, including proceeding directly to imposition of administrative sanctions, when the quality of care or the quality of life has been severely compromised.

B. The commissioner may impose such administrative the following sanctions or take such actions as are appropriate for violation of any of the standards or statutes or for abuse or neglect of persons in care . Such sanctions include :

1. Restricting or prohibiting new admissions to any a nursing facility;

2. Petitioning the court to impose a civil penalty or to appoint a receiver, or both; or

3. Revoking or suspending the license of a nursing facility.

a. The commissioner shall notify the Department of Medical Assistance Services within 48 hours when any license issued pursuant to Chapter 5 of Title 32.1 of the Code of Virginia (§ 32.1-123 et seq.) is revoked or suspended.

b. If a license of any nursing facility issued pursuant to Chapter 5 (§ 32.1-123 et seq.) is revoked, the commissioner may issue a new license after (i) satisfactory evidence is submitted to the commissioner that the conditions upon which revocation was based have been corrected; and (ii) proper inspection has been made and compliance with all provisions of Chapter 5 (§ 32.1-123 et seq.) and applicable state and federal laws and regulations has been obtained.

C. The following reasons may be considered by the department for the imposition of administrative sanctions or the imposition of civil penalties:

1. Failure to demonstrate or maintain compliance with applicable standards or for violations of the provisions of the Code of Virginia;

2. Permitting, aiding, or abetting the commission of any illegal act in the nursing facility; or

3. Deviating significantly from the program or services for which a license was issued without obtaining prior written approval from the OLC, or failure to correct such deviations within a specified time.

D. C. Violations which in the judgment of the OLC commissioner jeopardize the health and safety of residents shall be sufficient cause for immediate imposition of subsection B of this section.

D. The commissioner may impose the following sanctions in response to findings made during a state licensure inspection conducted within the previous 24 months and for which such findings have been communicated to the nursing facility within 14 business days of the inspection end date:

1. Imposing a civil monetary penalty of $500 per violation per day.

a. A civil monetary penalty shall not exceed $10,000 for a series of related incidents of noncompliance.

b. Civil penalties collected pursuant to this subdivision shall be paid to the Nursing Scholarship and Loan Repayment Fund established pursuant to § 54.1-3011.2 of the Code of Virginia; and

2. Placing on probation any license issued pursuant to Chapter 5 of Title 32.1 of the Code of Virginia (§ 32.1-123 et seq.).

E. The licensee will receive a notice of the department's intent to impose sanctions. The notice shall describe the reasons for imposing the sanction. The commissioner may not impose sanctions pursuant to subsection D of this section:

1. For violations deemed more severe than a level 2 deficiency under the Centers for Medicare and Medicaid Services deficiency severity definitions under federal law; or

2. If a nursing facility has been sanctioned by the Centers for Medicare and Medicaid Services for conduct that also subjects the nursing facility to sanctions pursuant to subsection D of this section.

a. If the Centers for Medicare and Medicaid Services fails to issue a sanction to a nursing facility in the Commonwealth for conduct described in subsection D of this section within 60 days, the commissioner may issue a sanction under subsection D of this section if the commissioner determines that issuing such sanction is necessary to protect the public health and welfare or the health and safety of residents of the nursing facility.

b. If the Centers for Medicare and Medicaid Services issues a sanction on a violation for which the commissioner has issued a sanction pursuant to this section, the sanction issued by the commissioner shall be nullified with any civil penalty imposed refunded to the nursing facility within 60 days.

F. Upon receipt of the notice to impose a sanction, the licensee has the right and the opportunity to appeal according to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). The procedures for filing an appeal shall be outlined in the notice. A nursing facility sanctioned by the commissioner pursuant to this section shall retain responsibility for the health, safety, and welfare of any person under the nursing facility's care, including the timely transfer or relocation of any persons under the nursing facility's care.

A. Before imposing sanctions pursuant to 12VAC5-371-90 D, the commissioner shall require the nursing facility subject to disciplinary action to submit to the commissioner, and comply with, a plan of correction within 90 days.

1. If the commissioner concludes that a lack of training has led directly to noncompliance, the plan of correction shall include mandated training for the nursing facility's employees at the expense of the nursing facility.

2. Upon expiration of the initial plan of correction, the commissioner may extend the time period for the plan of correction or may impose sanctions pursuant to 12VAC5-371-90 D.

B. The commissioner may not impose a sanction on a nursing facility before the commissioner provides the nursing facility with reasonable notice of imposition of sanctions, which shall describe the reasons for imposing the sanction. The facility shall be provided an opportunity to be heard within no fewer than 30 days from the day of such notice by the commissioner’s presiding officer in accordance with § 2.2-4019 of the Code of Virginia.

1. All requests for an opportunity to be heard following a notice of the imposition of such sanction shall be received in writing within 15 days of the date of receipt of such notice.

2. All administrative proceedings regarding the potential imposition of sanctions pursuant to subsection D of 12VAC5-371-90 shall be separate from the Office of Licensure and Certification. The Commissioner shall appoint an individual to serve as a presiding officer.

a. The presiding officer shall make decisions regarding the conduct of the conference, regulate the procedures at the conference, review all information presented, and recommend a case decision to the commissioner.

b. The presiding officer may require the exchange of documents before the informal conference.

c. The presiding officer shall contact the facility within five business days of being appointed to schedule the informal conference and to ascertain whether legal counsel shall represent the facility at the conference.

d. The presiding officer shall schedule the conference no later than 90 days after being appointed, unless all parties jointly agree to a later date.

3. The respondent has the following rights at an informal fact finding conference:

a. Reasonable notice of the conference;

b. Appearance in person and representation by counsel;

c. Receipt of notice of adverse facts or information upon which the department may rely in making its determination; and

d. To be informed briefly and generally in writing of the factual or procedural basis for an adverse decision.

4. After the informal conference, the presiding officer shall provide a recommendation to the commissioner, including findings of fact, conclusions, and appropriate disciplinary action.

5. The commissioner may affirm, modify, or reverse such recommendation and shall issue a final case decision.

C. Any person aggrieved by the final case decision of the Commissioner to impose disciplinary action is entitled to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).