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Chapter 47.32. CENTRALIZED LICENSING AND RELATED ADMINISTRATIVE PROCEDURES

Sec. 47.32.010. Purpose and applicability.

(a) The purpose of this chapter is to establish centralized licensing and related administrative procedures for the delivery of services in this state by the entities listed in (b) of this section. These procedures are intended to promote safe and appropriate services by setting standards for licensure that will reduce predictable risk; improve quality of care; foster individual and patient rights; and otherwise advance public health, safety, and welfare.

(b) This chapter and regulations adopted under this chapter apply to the following entities:

(1) ambulatory surgical centers;

(2) assisted living homes;

(3) child care facilities;

(4) child placement agencies;

(5) foster homes;

(6) free-standing birth centers;

(7) home health agencies;

(8) hospices, or agencies providing hospice services or operating hospice programs;

(9) hospitals;

(10) intermediate care facilities for the mentally retarded;

(11) maternity homes;

(12) nursing facilities;

(13) residential child care facilities;

(14) residential psychiatric treatment centers;

(15) rural health clinics;

(16) runaway shelters.

(c) The provisions of AS 47.05.300 - 47.05.390, regarding criminal history, criminal history checks, criminal history use standards, and a centralized registry, apply to entities listed in (b) of this section, as provided in AS 47.05.300 .

Sec. 47.32.020. Requirement to obtain a license.

(a) An entity may not operate a facility described in AS 47.32.010(b) without first obtaining a license under this chapter unless the entity is exempt under regulations adopted under AS 47.32.030.

(b) If an entity encompasses more than one type of activity listed in AS 47.32.010 (b), the entity shall apply for and receive a separate license under this chapter before operating that type of activity unless exempt under regulations adopted under AS 47.32.030 .

Sec. 47.32.030. Powers of the department; delegation to municipality.

(a) The department may

(1) administer and enforce the provisions of this chapter;

(2) coordinate and develop policies, programs, and planning related to licensure and operation of entities listed in AS 47.32.010 (b) as defined by regulation;

(3) adopt regulations necessary to carry out the purposes of this chapter, including regulations that

(A) establish fees for licensing of each type of entity listed in AS 47.32.010(b);

(B) impose requirements for licensure, including standards for license renewal, that are in addition to the requirements of this chapter or of any other applicable state or federal statute or regulation;

(C) impose requirements and standards on licensed entities that are in addition to those imposed by this chapter or by any other applicable state or federal statute or regulation, including

(i) requirements and standards necessary for an entity or the state to receive money from the department from any source, including federal money;

(ii) record-keeping requirements;

(iii) reporting requirements; and

(iv) requirements and standards regarding health, safety, and sanitation;

(D) provide for waivers, variances, and exemptions from the requirements of this chapter, including the requirement to obtain a license, if the department finds it necessary for the efficient administration of this chapter; and

(E) establish requirements for the operation of entities licensed under this chapter;

(4) investigate

(A) entities described in AS 47.32.010 (b);

(B) applicants for licensure, including individuals named in an application; and

(C) other persons that the department has reason to believe are operating an entity required to be licensed under this chapter, or are residing or working in an entity for which licensure has been sought under this chapter; this subparagraph does not apply to persons receiving services from an entity for which licensure has been sought under this chapter;

(5) inspect and monitor licensed entities for compliance with this chapter, regulations adopted under this chapter, and any other applicable statutes or regulations;

(6) enter into contracts and agreements necessary to carry out the functions, powers, and duties of the department under this chapter;

(7) enter into agreements with private entities, municipalities, and individuals to investigate and make recommendations to the department regarding the licensure and monitoring of entities under this chapter;

(8) require an individual who is or will be operating an entity to complete training related to the operation of the entity;

(9) waive the application requirements for an entity seeking licensure if the entity submits documentation verifying that it

(A) has a license issued by an organization or other agency that has licensing authority under state or federal law if the standards for that licensure are approved by the department under this chapter or regulations adopted under this chapter;

(B) has accreditation from a nationally recognized organization if the standards for that accreditation are equal to or more stringent than the standards for licensure under this chapter or regulations adopted under this chapter; or

(C) is an entity that federal law does not require to be licensed.

(b) The department shall delegate the department's authority to regulate child care facilities to a municipality that has adopted an ordinance providing for child care licensing under home rule powers under AS 29.10.010 or as authorized under AS 29.35.200 - 29.35.210. The department shall make the delegation described in this subsection within 90 days after receiving a written request from the municipality to delegate the authority. A municipality receiving a delegation under this subsection may adopt additional requirements for child care facilities operating within the boundaries of the municipality if the requirements meet or exceed the requirements under state law.

(c) The issuance of a license by the department does not obligate the department to place or maintain an individual in an entity or through an entity, or to provide financial support to an entity.

Sec. 47.32.040. Application for license.

A person shall apply to the department for a license under this chapter. The application must be made to the department on a form provided by the department or in a format approved by the department, and must be accompanied by

(1) any fee established by regulation; and

(2) documents and information required by regulation.

Sec. 47.32.050. Provisional license; biennial license.

(a) The department may issue a provisional license to an entity for which application is made under AS 47.32.040 if, after inspection and investigation, the department determines that the application and the entity meet the requirements of this chapter, regulations adopted under this chapter, and any other applicable statutes or regulations. A provisional license is valid for a period not to exceed one year, except that the department may extend a provisional license for one additional period not to exceed one year.

(b) Before expiration of a provisional license issued under (a) of this section, the department shall inspect and investigate the entity to determine whether the entity is operating in compliance with this chapter, regulations adopted under this chapter, and any other applicable statutes or regulations. After inspection and investigation under this subsection and before expiration of a provisional license, the department shall issue a biennial license for the entity if the department finds that

(1) the entity meets the requirements for biennial licensure established in this chapter, regulations adopted under this chapter, and other applicable statutes and regulations;

(2) a ground for nonrenewal of a license does not exist; and

(3) any applicable fee has been paid.

(c) The department may place one or more conditions on a provisional or biennial license issued under this section in order to further the purposes of this chapter.

Sec. 47.32.060. License renewal.

(a) At least 90 days before expiration of a biennial license, a licensed entity that intends to remain licensed shall submit an application for renewal of the license on a form provided by the department or in a format approved by the department, accompanied by

(1) all documents and information identified in regulation as being required for renewal of the license; and

(2) any fee established by regulation.

(b) Before expiration of a biennial license, the department or its representative may inspect an entity that is the subject of a renewal application to determine whether the entity is operating in compliance with this chapter, regulations adopted under this chapter, and other applicable statutes or regulations. After any inspection and investigation under this subsection and before expiration of the biennial license, the department shall renew a biennial license if the department finds that

(1) the licensed entity meets the requirements for renewal;

(2) a ground for nonrenewal of a license does not exist; and

(3) any applicable fee has been paid.

(c) If an application for renewal of a license is submitted but the department is unable to complete its review of the application before the expiration of the biennial license, the license is automatically extended for six months or until the department completes its review and either approves or denies the application, whichever occurs earlier.

(d) The department may place one or more conditions on a renewed license issued under this section to further the purposes of this section.

(e) The department shall adopt regulations establishing the grounds for nonrenewal of a license for purposes of AS 47.32.050 and this section.

Sec. 47.32.070. Notice of denial or conditions; appeal.

(a) If the department denies an application for or places conditions on a provisional or biennial license or license renewal, the department shall provide the applicant or entity with a notice of the action by certified mail. The notice must contain a written statement of the reason for the action and information about requesting a hearing under (b) of this section.

(b) An applicant or entity that receives a notice of action under (a) of this section may appeal the department's decision by requesting a hearing within 15 days after receipt of the notice. The appeal must be on a form provided by the department or in a format approved by the department.

Sec. 47.32.080. Posting; license not transferable.

(a) A license issued under this chapter shall be posted in a conspicuous place on the licensed premises. Any notice of a variance issued by the department shall be posted near the license.

(b) A license issued under this chapter is not transferable unless authorized by the department.

Sec. 47.32.090. Complaints; investigation; retaliation.

(a) A person who believes that an entity has violated an applicable statute or regulation or a condition of a license issued under this chapter may file a verbal or written complaint with the department.

(b) The department may investigate a complaint filed under this section. The department may decline to investigate a complaint if the department reasonably concludes and documents that the complaint is without merit based on information available to the department at the time of the complaint. The department may consolidate complaints if the department concludes that a single investigation would further the efficient administration of this chapter.

(c) A licensed entity may not take retaliatory action against a person who files a complaint. Except as provided in AS 47.05.350 and AS 47.32.160, a complainant against whom a retaliatory action has been taken may recover treble damages in a civil action upon a showing that the action was taken in retaliation for the filing of a complaint.

Sec. 47.32.100. Cooperation with investigation.

An entity shall cooperate with an investigation initiated by the department. An investigated entity shall

(1) permit representatives of the department to inspect the entity; review records, including files of individuals who received services from the entity; interview staff; and interview individuals receiving services from the entity; and

(2) upon request, provide the department with information and documentation regarding compliance with applicable statutes and regulations.

Sec. 47.32.110. Right of access and inspection.

(a) A designated agent or employee of the department shall have right of access to an entity

(1) to determine whether an application for licensure or renewal is appropriate;

(2) to conduct a complaint investigation;

(3) to conduct a standard inspection;

(4) to inspect documents, including personnel records, accounts, the building, or the premises;

(5) to interview staff or residents; or

(6) if the department has reasonable cause to believe that the entity is operating in violation of this chapter or the regulations adopted under this chapter.

(b) If an entity denies access, the department may petition the court for an order permitting access, or the department may seek to revoke the entity's license under AS 47.32.140 .

(c) Upon petition of the department and after a hearing held upon reasonable notice to the entity, the court shall issue an order to an officer or employee of the department authorizing the officer or employee to enter for any of the purposes described in (a) of this section.

Sec. 47.32.120. Report.

(a) Within 10 working days after completing an investigation or inspection under AS 47.32.090 - 47.32.110, the department shall prepare a report of the results of the investigation or inspection and mail a copy of the report to the entity. The report shall include a description of

(1) any violation, including a citation to each statute or regulation that has been violated; and

(2) any enforcement action the department intends to take under AS 47.32.130 or 47.32.140.

(b) An entity that receives a copy of a report under this section may submit a written response to the report to the department. The department may require an entity to submit a response to a report received under this section.

(c) Within 14 days after the entity receives a copy of the report under this section, upon request of the complainant, the department shall provide a copy of the report to the complainant.

Sec. 47.32.130. Enforcement action: immediate revocation or suspension.

(a) If the department's report of investigation or inspection under AS 47.32.120 concludes that the department has reasonable cause to believe that a violation of an applicable statute or regulation has occurred that presents an immediate danger to the health, safety, or welfare of an individual receiving services from the entity, the department, without an administrative hearing and without providing an opportunity to cure or correct the violation, may immediately revoke or suspend the entity's license or, if the entity is not licensed under this chapter, may revoke the entity's ability to become licensed under this chapter or to provide services as an entity exempted under this chapter. A suspension or revocation under this subsection takes effect immediately upon initial notice to the entity from the department, is in addition to any enforcement action under AS 47.32.140 , and continues until a final determination under (c) of this section or AS 47.32.150 .

(b) Notice under this section shall be provided as follows:

(1) the department shall provide initial notice to the entity at the time the department determines that an immediate suspension or revocation is required; initial notice may be oral, except that, if an entity representative is not present at the entity, the department shall post written notice on the front door of the entity; the initial notice must provide information regarding the entity's appeal rights;

(2) the department shall provide formal written notice to the entity within 14 working days after the immediate revocation or suspension decision; formal written notice must include

(A) a copy of the department's report under AS 47.32.120 , a statement of the entity's right to submit a written response to the report, and any department requirement that the entity submit a written response to the report;

(B) a description of any enforcement action the department intends to take under AS 47.32.140 (d) or (f); and

(C) information regarding the entity's appeal rights.

(c) An entity to which a notice has been provided under this section may appeal the department's decision to impose the enforcement action, including an enforcement action the department intends to take under AS 47.32.140 (d) or (f), by filing a written request for a hearing, on a form provided by the department, within 15 days after receipt of the notice. If a hearing is not timely requested under this subsection, the department's notice constitutes a final administrative order for which the department may seek the court's assistance in enforcing.

Sec. 47.32.140. Enforcement actions.

(a) If the department's report of investigation or inspection under AS 47.32.120 concludes that the department has reasonable cause to believe that a violation of an applicable statute or regulation has occurred, the department shall provide notice to the entity of the violation and an opportunity to cure the violation within a reasonable time specified by the department. The notice must include a copy of the department's report under AS 47.32.120 , a statement that the entity may submit a written response to the report, any department requirement that the entity submit a written response to the report, a description of any enforcement action the department intends to take under (d) or (f) of this section, and information regarding the entity's appeal rights.

(b) An entity receiving a notice under (a) of this section, or a notice under AS 47.32.130 (b)(2) that contains the information specified in AS 47.32.130 (b)(2)(B), shall submit a plan of correction to the department for approval. Once it has cured its violations, the entity shall submit to the department an allegation of compliance. Upon receipt of the allegation of compliance, the department may conduct a follow-up investigation or inspection to determine compliance. The department may take one or more enforcement actions under (d) and (f) of this section regardless of whether the entity achieves compliance under this subsection.

(c) If the department believes that an entity has not voluntarily corrected the violation or entered into a plan of correction with the approval of the department, the department may require that the entity participate in a plan of correction under regulations of the department. Once the entity has cured its violations, it shall submit to the department an allegation of compliance. Upon receipt of the allegation of compliance, the department may conduct a follow-up investigation or inspection to determine compliance. The department may take one or more enforcement actions under (d) and (f) of this section regardless of whether the entity achieves compliance under this subsection.

(d) The department may take one or more of the following enforcement actions under this section:

(1) delivery of a warning notice to the licensed entity and to any additional person who was the subject of the investigation or inspection;

(2) modification of the term or scope of the entity's existing license, including changing a biennial license to a provisional license or adding a condition to the license;

(3) suspension of the entity's operations for a period of time set by the department;

(4) suspension of or a ban on the entity's provision of services to individuals not already receiving services from the entity for a period of time set by the department;

(5) nonrenewal of the entity's license;

(6) revocation of the entity's license or, if the entity is not licensed under this chapter, revocation of the entity's ability to become licensed under this chapter;

(7) issuance of an order requiring closure, immediate or otherwise, of the entity regardless of whether the entity is licensed or unlicensed;

(8) denial of payments under AS 47.07 for the entity's provision of services to an individual not already receiving services from the entity;

(9) assumption of either temporary or permanent management of the entity or pursuit of a court-ordered receiver for the entity;

(10) reduction of the number of individuals receiving services from the entity under the license;

(11) imposition of a penalty authorized under law;

(12) inclusion in the registry established under AS 47.05.330 ;

(13) requirement that the entity prepare and submit a plan of correction.

(e) The department may not take action under (d)(9) of this section unless the commissioner has reasonable cause to believe that continued management by the entity while the entity is attempting to cure a violation would be injurious to the health, safety, or welfare of an individual who is receiving a service from the entity.

(f) In addition to any other enforcement actions the department may take under this section, the department may assess a civil fine against an entity for a violation of an applicable statute or regulation, taking into account the type and size of the entity and the type and severity of the violation. A fine assessed under this subsection may not exceed $2,500 a day for each day of violation for a continuing violation or $25,000 for a single violation.

(g) An entity to which a notice has been provided under this section regarding an enforcement action under (d) or (f) of this section may appeal the department's decision to impose the enforcement action by filing a written request for a hearing, on a form provided by the department, within 15 days after receipt of the notice of the enforcement action.

(h) An enforcement action under (d) or (f) of this section may not be imposed until

(1) the time period for requesting a hearing under AS 47.32.130 (c) or under (g) of this section, as applicable, has passed without a hearing being requested; or

(2) a final agency decision has been issued following a hearing requested under AS 47.32.130 (c) or under (g) of this section, as applicable.

(i) If a hearing is not timely requested under AS 47.32.130 (c) or under (g) of this section, as applicable, the department's notice regarding an enforcement action under (d) or (f) of this section constitutes a final administrative order. The department may seek the court's assistance in enforcing the final administrative order.

(j) An entity against which an enforcement action under (d) or (f) of this section has been taken may not apply for a license or license renewal until after the time period set by the department in its final administrative order under AS 47.32.130 (c), this section, or AS 47.32.150 , as applicable. If a time period has not been set, a final administrative order against the entity has the effect of a permanent revocation, and the entity may not apply for a license or license renewal. If the ownership, control, or management of an entity changes, the department may allow the entity to seek licensure if the entity submits documents showing the change.

(k) Assessment of a civil fine under this section does not preclude imposition of a criminal penalty under AS 47.32.170 .

Sec. 47.32.150. Hearings.

(a) Upon receipt of a timely request for a hearing by an entity regarding an enforcement action under AS 47.32.130 (a) or 47.32.140(d)(3), (5), (6), (7), or (9), the department shall request the chief administrative law judge appointed under AS 44.64.020 to appoint an administrative law judge employed or retained by the office of administrative hearings to preside over a hearing conducted under this section. AS 44.62.330 - 44.62.630 and AS 44.64.060 apply to the hearing.

(b) Upon receipt of a timely request for a hearing by an entity regarding an enforcement action under AS 47.32.070 or 47.32.140(d)(1), (2), (4), (8), (10), (11), (12), or (13), the department shall conduct a hearing in front of an officer appointed by the commissioner. A hearing under this subsection may be conducted on the record, in an informal manner, and may not be conducted under AS 44.62 or AS 44.64. The appointed hearing officer may be a state employee.

(c) The decision following a hearing conducted under (a) or (b) of this section constitutes a final agency administrative order.

(d) A hearing conducted under this section shall take place within 120 days after the department's receipt of the request for hearing. A hearing may be held on an expedited basis upon a showing of good cause. An expedited hearing shall be held within 60 days after the department's receipt of the request for a hearing.

Sec. 47.32.160. Immunity.

(a) The department, its employees, and its agents are not liable for civil damages as a result of an act or omission in the licensure process, the monitoring of a licensed entity, or any activities under this chapter.

(b) A volunteer who works for a hospice program licensed under this chapter is not liable for damages for personal injury, wrongful death, or property damage for an act or omission committed in the course of hospice-related duties unless the act or omission constitutes gross negligence, recklessness, or intentional misconduct.

Sec. 47.32.170. Criminal penalty.

A person who intentionally or with criminal negligence violates a provision of this chapter or a regulation adopted under this chapter related to the health and safety of persons served by an entity required to comply with this chapter is guilty of a class B misdemeanor.

Sec. 47.32.180. Confidentiality; release of certain information.

(a) Except as otherwise provided by law, the following are confidential and may not be disclosed to the public without a court order: complaints; investigations; inspections; records related to a complaint, investigation, or inspection; and the identity of a complainant and of individuals receiving services from an entity.

(b) With the exception of information that identifies a complainant or a recipient of services from an entity, a copy of the department's report of investigation or inspection under AS 47.32.120 , an entity's written response to the report, and information regarding any department imposition of an enforcement action under AS 47.32.130 or 47.32.140 are public records under AS 40.25. The department shall make this information available to the public for inspection and copying within timeframes specified in AS 40.25 or regulations adopted under AS 40.25 after the

(1) entity receives its copy of the report of investigation under AS 47.32.120, if the department has determined that an enforcement action under AS 47.32.130 or 47.32.140 will not be taken regarding the entity;

(2) department's notice of enforcement action under AS 47.32.130 or 47.32.140 becomes a final administrative order without a hearing under AS 47.32.130 (c) or 47.32.140(i); or

(3) issuance of a decision following a hearing under AS 47.32.150 .

Sec. 47.32.190. Access to information.

Notwithstanding any contrary provision of law, the divisions of the department assigned public health and public assistance functions shall have access to any information compiled or retained by other divisions within the department, regardless of the nature of the information or whether the information is considered confidential, in order to assist in administering the provisions of this chapter.

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