GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	1 

SENATE BILL 1474

Short Title:  Adult Care/Nursing Homes.	(Public)

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Sponsors: Senators Martin of Guilford; and Dannelly.

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Referred to:  Appropriations.

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June 3, 1996

A BILL TO BE ENTITLED
AN ACT TO APPROPRIATE FUNDS TO ESTABLISH A REVOLVING FUND FOR THE PURCHASE OF FIRE PROTECTION EQUIPMENT FOR ADULT CARE HOMES, GROUP HOMES, AND NURSING HOMES, TO REQUIRE THE DEPARTMENT OF HUMAN RESOURCES TO ADOPT RULES REGARDING FIRE PROTECTION SYSTEMS IN CERTAIN HOMES, AND TO CHANGE EXISTING LAW REGARDING COMMUNITY ADVISORY COMMITTEES, STAFF/RESIDENT RATIO, PENALTIES, AND CONFIDENTIALITY OF INFORMATION.
The General Assembly of North Carolina enacts:
Part I.
Revolving Loan Fund for Fire Protection.
Section 1.  (a) Chapter 122A of the General Statutes is amended by adding a new section to read:
"§ 122A-5.13.  Adult Care Home, Group Home, and Nursing Home Fire Protection Fund authorized; authority.
(a)	The North Carolina Housing Finance Agency shall establish a Adult Care Home, Group Home, and Nursing Home Fire Protection Fund (hereinafter 'Fire Protection Fund') to assist owners of adult care homes, group homes for developmentally disabled adults, and nursing homes with the purchase and installation of fire protection systems in existing and new adult care homes, group homes for developmentally disabled adults, and nursing homes.  The Fire Protection Fund shall be a revolving fund.
(b)	The Agency, in consultation with the Department of Human Resources, shall adopt rules for the management and use of the Fire Protection Fund.  These rules at a minimum shall provide for the following:
(1)	Financial incentives for owners of facilities who utilize Fire Protection Fund monies to install sprinkler systems instead of smoke detection equipment.
(2)	Maximum loan amounts of one dollar and seventy-five cents ($1.75) per square foot for advanced smoke detectors and digital communication equipment, three dollars and seventy-five cents ($3.75) per square foot for residential sprinkler systems, and six dollars ($6.00) per square foot for institutional sprinkler systems.
(3)	Interest rates from three percent (3%) to six percent (6%) for a period not to exceed 20 years for sprinkler systems and 10 years for smoke detection systems.
(4)	Documentary verification that owners of facilities obtain fire protection systems at a reasonable cost.
(5)	Acceleration of a loan when statutory fire protection requirements are not met by the facility for which the loan was made.
(6)	Loan approval priority criteria that considers the frailty level of residents at a facility.
(7)	Loan origination and servicing fees."
(b)	Proceeds from the Fire Protection Fund created in this act may be used to provide staff support to the North Carolina Housing Finance Agency for loan processing and to the Department of Human Resources for review and approval of fire protection plans and inspection of fire protection systems.
(c)	The North Carolina Housing Finance Agency shall, by October 1, 1996, adopt temporary rules to implement this section.
(d)	Effective July 1, 1996, there is appropriated from the General Fund to the North Carolina Housing Finance Agency, the sum of ten million dollars ($10,000,000) to establish the Fire Protection Fund.

Part II.
Fire Protection.
Sec. 2.  (a) The Department of Human Resources shall adopt rules to ensure that:
(1)	All licensed adult care homes with seven or more residents and nursing homes have:
a.	sprinkler systems; or 
b.	complete smoke detection systems for all spaces not subject to false alarms and rate-of-rise heat detectors in other spaces and digital communication devices connected to transmit building fire alarm signals to a 24-hour manned location in the most direct and reliable means acceptable to the local fire department.
(2)	Both new family care homes and homes for developmentally disabled adults whose plans have not been approved by the Department of Human Resources before September 1, 1996, have a supervised residential sprinkler system, automatic fire alarm system, and digital communication device connected to transmit building fire alarm signals to a 24-hour manned location in the most direct and reliable means acceptable to the local fire department.
(3)	Both family care homes and homes for developmentally disabled adults that are currently licensed or have had plans approved by the Department of Human Resources prior to September 1, 1996 (existing facilities), have at least  120-volt smoke detectors for all spaces not subject to false alarms and rate-of-rise heat detectors in other areas of the building (such as kitchens and attics).
(4)	Existing facilities that are already required to have a manual fire alarm system by building codes have a digital communication device connected to transmit building fire alarm signals to a 24-hour manned location in the most direct and reliable means acceptable to the local fire department.
(b)	The Department of Human Resources shall adopt rules requiring that facilities required to install complete fire alarm systems or alternate sprinkler systems shall do so by July 1, 1998, unless the facility can demonstrate to the Department of Human Resources, that installation services have been sought in good faith but cannot be obtained due to shortages in installation personnel or fire protection equipment and that facilities required to install 120-volt smoke detection systems shall do so by July 1, 1997, unless the facility can demonstrate to the Department of Human Resources that installation services have been sought in good faith but cannot be obtained due to shortages in installation personnel or fire protection equipment.
(c)	The Department of Human Resources shall adopt rules to ensure that nursing homes and adult care homes train staff in fire and disaster response, have fire alarms certified by qualified persons twice a year, have sprinkler systems certified by qualified persons once a year, and comply with the National Fire Prevention Association (NFPA) guide concerning alternative approaches to life safety.
(d)	The Department of Human Resources shall adopt temporary rules to effect this Part by October 1, 1996.

Part III.
Adult Home and Nursing Home Advisory Committees.
Sec. 3.  G.S. 131D-31 reads as rewritten:
"§ 131D-31.  Adult care home community advisory committees.
(a)	Statement of Purpose. – It is the intention of the General Assembly that community advisory committees work to maintain the intent of the Adult Care Home Residents' Bill of Rights within the licensed adult care homes in this State. It is the further intent of the General Assembly that the committees promote community involvement and cooperation with adult care homes to ensure quality care for the elderly and disabled adults.
(b)	Establishment and Appointment of Committees. – 
(1)	A community advisory committee shall be established in each county that has at least one licensed adult care home.  The committee shall serve all the homes in the county, and shall work with each of these homes for the best interests of the residents. In a county that has one, two, or three adult care homes with 10 or more beds, the committee shall have a minimum of five members.
(2)	In a county with four or more adult care homes with 10 or more beds, the committee shall have a minimum of one additional member for each adult care home with 10 or more beds in excess of three.  In each county with four or more adult care homes with 10 or more beds, the committee shall establish a subcommittee of no fewer than three members from the committee for each adult care home in the county. Each member must serve on at least one subcommittee.
(3)	In counties with no adult care homes with 10 or more beds, the committee shall have a minimum of five members. Regardless of how many members a particular community advisory committee is required to have, at least one member of each committee shall be a person involved in the area of mental retardation.
(4)	The boards of county commissioners are encouraged to appoint the Adult Care Home Community Advisory Committees. Of the members, a minority (not less than one-third, but as close to one-third as possible) shall be chosen from among persons nominated by a majority of the chief administrators of adult care homes in the county. If the adult care home administrators fail to make a nomination within 45 days after written notification has been sent to them requesting a nomination, these appointments may be made without nominations. If the county commissioners fail to appoint members to a committee by July 1, 1983, the appointments shall be made by the Assistant Secretary for Aging, Department of Human Resources, no sooner than 45 days after nominations have been requested from the adult care home administrators, but no later than October 1, 1983. In making appointments, the Assistant Secretary for Aging shall follow the same appointment process as that specified for the County Commissioners.
(c)	Joint Nursing and Adult Care Home Community Advisory Committees. – Appointment to the Nursing Home Community Advisory Committees shall preclude appointment to the Adult Care Home Community Advisory Committees except where written approval to combine these committees is obtained from the Assistant Secretary for Aging, Department of Human Resources. Where this approval is obtained, the Joint Nursing and Adult Care Home Community Advisory Committee shall have the membership required of Nursing Home Community Advisory Committees and a minimum of one additional member for each adult care home with 10 or more beds licensed in the county. In counties with no adult care homes with 10 or more beds, there shall be a minimum of one additional member for every four other types of adult care homes in the county. Each member shall exercise the statutory rights and responsibilities of both Nursing Home Committees and Adult Care Home Committees. In making appointments to this joint committee, the county commissioners shall solicit nominations from both nursing and adult care home administrators for the appointment of approximately (but no more than) one-third of the members.
(d)	Terms of Office. – Each committee member shall serve an initial term of one year. Any person reappointed to a second or subsequent term in the same county shall serve a two- or three-year term at the county commissioners' discretion to ensure staggered terms of office.
(e)	Vacancies. – Any vacancy shall be filled by appointment of a person for a one-year term. If this vacancy is in a position filled by an appointee nominated by the chief administrators of adult care homes within the county, then the county commissioners shall fill the vacancy from persons nominated by a majority of the chief administrators. If the adult care home administrators fail to make a nomination by registered mail within 45 days after written notification has been sent to them requesting a nomination, this appointment may be made without nominations. If the county commissioners fail to fill a vacancy, the vacancy may be filled by the Assistant Secretary for Aging, Department of Human Resources no sooner than 45 days after the commissioners have been notified of the appointment or vacancy.
(f)	Officers. – The committee shall elect from its members a chair, to serve a one-year term.
(g)	Minimum Qualifications for Appointment. – Each member must be a resident of the county which the committee serves. No person or immediate family member of a person with a financial interest in a home served by the committee, or employee or governing board member of a home served by the committee, or immediate family member of a resident in a home served by the committee may be a member of that committee. Any county commissioner who is appointed to the committee shall be deemed to be serving on the committee in an ex officio capacity. Members of the committee shall serve without compensation, but may be reimbursed for actual expenses incurred by them in the performance of their duties. The names of the committee members and the date of expiration of their terms shall be filed with the Division of Aging, Department of Human Resources.
(h)	Training. – The Division of Aging, Department of Human Resources, shall develop training materials, which shall be distributed to each committee member. Each committee member must receive training as specified by the Division of Aging prior to exercising any power under G.S. 131D-32. The Division of Aging, Department of Human Resources, shall provide the committees with information, guidelines, training, and consultation to direct them in the performance of their duties.
(i)	Any written communication made by a member of adult care home advisory committee within the course and scope of the member's duties, as specified in G.S. 131D-32, shall be privileged to the extent provided in this subsection. This privilege shall be a defense in a cause of action for libel if the member was acting in good faith and the statements and communications do not amount to intentional wrongdoing.
To the extent that any adult care home advisory committee or any member is covered by liability insurance, that committee or member shall be deemed to have waived the qualified immunity herein to the extent of indemnification by insurance."
Sec. 4.  G.S. 131E-128 reads as rewritten:
"§ 131E-128.  Nursing home advisory committees.
(a)	It is the purpose of the General Assembly that community advisory committees work to maintain the intent of this Part within the nursing homes in this State, including nursing homes operated by hospitals licensed under Article 5 of G.S. Chapter 131E. It is the further purpose of the General Assembly that the committees promote community involvement and cooperation with nursing homes and an integration of these homes into a system of care for the elderly.
(b)	(1)	A community advisory committee shall be established in each county which has a nursing home, including a nursing home operated by a hospital licensed under Article 5 of G.S. Chapter 131E.  This committee shall serve all the homes in the county, and shall work with each home in the best interest of the persons residing in each home. In a county which has one, two, or three nursing homes, the committee shall have a minimum of five members. In a county with four or more nursing homes, the committee shall have a minimum of one additional member for each nursing home in excess of three.
(2)	In each county with four or more nursing homes, the committee shall establish a subcommittee of no fewer than three members from the committee for each nursing home in the county. Each member must serve on at least one subcommittee.
(3)	Each committee shall be appointed by the board of county commissioners. Of the members, a minority (not less than one-third, but as close to one-third as possible) must be chosen from among persons nominated by a majority of the chief administrators of nursing homes in the county and of the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes. If the nursing home administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes fail to make a nomination within 45 days after written notification has been sent to them by the board of county commissioners requesting a nomination, these appointments may be made by the board of county commissioners without nominations.
(c)	Each committee member shall serve an initial term of one year. Any person reappointed to a second or subsequent term in the same county shall serve a three-year term. Persons who were originally nominees of nursing home chief administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes, or who were appointed by the board of county commissioners when the nursing home administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes failed to make nominations, may not be reappointed without the consent of a majority of the nursing home chief administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes within the county. If the nursing home chief administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes fail to approve or reject the reappointment within 45 days of being requested by the board of county commissioners, the commissioners may reappoint the member if they so choose.
(d)	Any vacancy shall be filled by appointment of a person for a one-year term. Any person replacing a member nominated by the chief administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes or a person appointed when the chief administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes failed to make a nomination shall be selected from among persons nominated by the administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes, as provided in subsection (b). If the county commissioners fail to appoint members to a committee, or fail to fill a vacancy, the appointment may be made or vacancy filled by the Secretary or the Secretary's designee no sooner than 45 days after the commissioners have been notified of the appointment or vacancy if nomination or approval of the nursing home administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes is not required. If nominations or approval of the nursing home administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes is required, the appointment may be made or vacancy filled by the Secretary or the Secretary's designee no sooner than 45 days after the commissioners have received the nomination or approval, or no sooner than 45 days after the 45-day period for action by the nursing home administrators and the governing bodies of the hospitals licensed under Article 5 of G.S. Chapter 131E, which operate nursing homes.
(e)	The committee shall elect from its members a chair, to serve a one-year term.
(f)	Each member must be a resident of the county which the committee serves. No person or immediate family member of a person with a financial interest in a home served by a committee, or employee or governing board member or immediate family member of an employee or governing board member of a home served by a committee, or immediate family member of a patient in a home served by a committee may be a member of a committee. Membership on a committee shall not be considered an office as defined in G.S. 128-1 or G.S. 128-1.1. Any county commissioner who is appointed to the committee shall be deemed to be serving on the committee in an ex officio capacity. Members of the committee shall serve without compensation, but may be reimbursed for the amount of actual expenses incurred by them in the performance of their duties. The names of the committee members and the date of expiration of their terms shall be filed with the Division of Aging, which shall supply a copy to the Division of Facility Services.
(g)	The Division of Aging, Department of Human Resources, shall develop training materials which shall be distributed to each committee member and nursing home. Each committee member must receive training as specified by the Division of Aging prior to exercising any power under subsection (h) of this section. The Division of Aging, Department of Human Resources, shall provide the committees with information, guidelines, training, and consultation to direct them in the performance of their duties.
(h)	(1)	Each committee shall apprise itself of the general conditions under which the persons are residing in the homes, and shall work for the best interests of the persons in the homes. This may include assisting persons who have grievances with the home and facilitating the resolution of grievances at the local level.
(2)	Each committee shall quarterly visit the nursing home it serves. For each official quarterly visit, a majority of the committee members shall be present. In addition, each committee may visit the nursing home it serves whenever it deems it necessary to carry out its duties. In counties with four or more nursing homes, the subcommittee assigned to a home shall perform the duties of the committee under this subdivision, and a majority of the subcommittee members must be present for any visit.
(3)	Each member of a committee shall have the right between 10:00 A.M. and 8:00 P.M. to enter into the facility the committee serves in order to carry out the members' responsibilities. In a county where subcommittees have been established, this right of access shall be limited to homes served by those subcommittees to which the member has been appointed.
(4)	The committee or subcommittee may communicate through its chair with the Department or any other agency in relation to the interest of any patient. The identity of any complainant or resident involved in a complaint shall not be disclosed except as permitted under the Older Americans Act of 1965, as amended, 42 U.S.C. § 3001 et seq.
(5)	Each home shall cooperate with the committee as it carries out its duties.
(6)	Before entering into any nursing home, the committee, subcommittee, or member shall identify itself to the person present at the facility who is in charge of the facility at that time.
(i)	Any written communication made by a member of a nursing home advisory committee within the course and scope of the member's duties, as specified in G.S. 131E-128, shall be privileged to the extent provided in this subsection. This privilege shall be a defense in a cause of action for libel if the member was acting in good faith and the statements or communications do not amount to intentional wrongdoing.
To the extent that any nursing home advisory committee or any member thereof is covered by liability insurance, that committee or member shall be deemed to have waived the qualified immunity herein to the extent of indemnification by insurance."

Part IV.
Staff/Resident Ratio.
Sec. 5.  (a) Chapter 131D of the General Statutes is amended by adding a new section to read:
"§ 131D-5.1.  Adult care home staffing requirements.
Adult care homes shall be required to have one aide on duty for every 30 residents during the third (night)	shift."
(b) This Part becomes effective October 1, 1996.

Part V.
Increased Penalties.
Sec. 6.  G.S. 131D-34 reads as rewritten:
"§ 131D-34.  Penalties; remedies.
(a)	Violations Classified. – The Department of Human Resources shall impose an administrative penalty in accordance with provisions of this Article on any facility which is found to be in violation of requirements of G.S. 131D-21 or applicable State and federal laws and regulations. Citations issued for violations shall be classified according to the nature of the violation as follows:
(1)	'Type A Violation' means a violation by a facility of the regulations, standards, and requirements set forth in G.S. 131D-21 or applicable State or federal laws and regulations governing the licensure or certification of a facility which creates substantial risk that death or serious physical harm to a resident will occur or where such harm has occurred. Type A Violations shall be abated or eliminated immediately. The Department shall impose a civil penalty in an amount not less than five hundred dollars ($500.00) nor more than ten thousand dollars ($10,000) for each Type A Violation.
(2)	'Type B Violation' means a violation by a facility of the regulations, standards and requirements set forth in G.S. 131D-21 or applicable State or federal laws and regulations governing the licensure or certification of a facility which present a direct relationship to the health, safety, or welfare of any resident, but which does not create substantial risk that death or serious physical harm will occur. The Department shall require a plan of correction for each Type B Violation.  The Department may direct the facility to establish a specific plan of correction within a specific time period to address any Type B Violation.
(b)	Penalties for failure to correct violations within time specified.
(1)	Where a facility has failed to correct a Type A Violation, the Department shall assess the facility a civil penalty in the amount of up to five hundred dollars ($500.00) for each day that the deficiency continues beyond the time specified in the plan of correction approved by the Department or its authorized representative. The Department or its authorized representative shall ensure  that the violation has been corrected.
(2)	Where a facility has failed to correct a Type B Violation within the time specified for correction by the Department or its authorized representative, the Department shall assess the facility a civil penalty in the amount of up to two hundred dollars ($200.00) for each day that the deficiency continues beyond the date specified for correction beyond the time specified in the plan of correction approved by the Department or its authorized representative without just reason for such failure. The Department or its authorized representative shall ensure that the violation has been corrected.
(3)	The Department shall impose a civil penalty which is treble the amount assessed under subdivision (1) of subsection (a) when a facility under the same management, ownership, or 
	control has received a citation and paid a 
	fine
	for violating the same specific provision of a statute or regulation for which it received a citation during the previous 12 months. The counting of the 12-month period shall be tolled during any time when the facility is being operated by a court-appointed temporary manager pursuant to Article 4 of this Chapter.
(c)	Factors to be considered in determining amount of initial penalty. In determining the amount of the initial penalty to be imposed under this section, the Department shall consider the following factors:
(1)	The gravity of the violation, including the probability that death or serious physical harm to a resident will result or has resulted; the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or regulations were violated;
(2)	The reasonable diligence exercised by the licensee and efforts to correct violations;
(3)	The number and type of previous violations committed by the licensee;
(4)	The amount of assessment necessary to insure immediate and continued compliance; and
(5)	The number of patients put at risk by the violation.
(d)	The Department shall impose a civil penalty on any facility which refuses to allow an authorized representative of the Department to inspect the premises and records of the facility.
(e)	Any facility wishing to contest a penalty shall be entitled to an administrative hearing as provided in the Administrative Procedure Act, Chapter 150B of the General Statutes. A petition for a contested case shall be filed within 30 days after the Department mails a notice of penalty to a licensee. One issue at the administrative hearing shall be the reasonableness of the amount of any civil penalty assessed by the Department. If a civil penalty is found to be unreasonable, the hearing officer may recommend that the penalty be modified accordingly.
(f)	Notwithstanding the notice requirements of G.S. 131D-26(b), any penalty imposed by the Department of Human Resources under this section shall commence on the day the violation began.
(g)	The Secretary may bring a civil action in the superior court of the county wherein the violation occurred to recover the amount of the administrative penalty whenever a facility:
(1)	Which has not requested an administrative hearing fails to pay the penalty within 60 days after being notified of the penalty, or
(2)	Which has requested an administrative hearing fails to pay the penalty within 60 days after receipt of a written copy of the decision as provided in G.S. 150B-36.
(h)	The Secretary shall establish a penalty review committee within the Department, which shall review administrative penalties assessed pursuant to this section and pursuant to G.S. 131E-129. The Secretary shall ensure that departmental staff review of local departments of social services' penalty recommendations along with prepared staff recommendations for the penalty review committee are completed within 60 days of receipt by the Department of the local recommendations. The Secretary shall ensure that the Nursing Home/Adult Care Home Penalty Review Committee established by this subsection is comprised of nine members. At least one member shall be appointed from each of the following categories:
(1)	A licensed pharmacist;
(2)	A registered nurse experienced in long-term care;
(3)	A representative of a nursing home;
(4)	A representative of an adult care home; and
(5)	Two public members. One shall be a 'near' relative of a nursing home patient, chosen from a list prepared by the Office of State Long-Term Care Ombudsman, Division of Aging, Department of Human Resources. One shall be a 'near' relative of a rest home patient, chosen from a list prepared by the Office of State Long-Term Care Ombudsman, Division of Aging, Department of Human Resources. For purposes of this subdivision, a 'near' relative is a spouse, sibling, parent, child, grandparent, or grandchild.
Neither the pharmacist, nurse, nor public members appointed under this subsection nor any member of their immediate families shall be employed by or own any interest in a nursing home or adult care home.
Each member of the Committee shall serve a term of two years. The initial terms of the members shall commence on August 3, 1989. The Secretary shall fill all vacancies. Unexcused absences from three consecutive meetings constitute resignation from the Committee."
Sec. 7.  G.S. 131E-129 reads as rewritten:
"§ 131E-129.  Penalties.
(a)	Violations classified. – The Department shall impose an administrative penalty in accordance with provisions of this Part on any facility which is found to be in violation of the requirements of G.S. 131E-117 or applicable State and federal laws and regulations. Citations issued for violations shall be classified according to the nature of the violation as follows:
(1)	'Type A Violation' means a violation by a facility of the regulations, standards, and requirements set forth in G.S. 131E-117, or applicable State or federal laws and regulations governing the licensure or certification of a facility which creates substantial risk that death or serious physical harm to a resident will occur or where such harm has occurred. Type A Violations shall be abated or eliminated immediately. The Department shall impose a civil penalty in an amount not less than five hundred dollars ($500.00) nor more than ten thousand dollars ($10,000) for each Type A Violation.
(2)	'Type B Violation' means a violation by a facility of the regulations, standards and requirements set forth in G.S. 131E-117 or applicable State or federal laws and regulations governing the licensure or certification of a facility which presents a direct relationship to the health, safety, or welfare of any resident, but which does not create substantial risk that death or serious physical harm will occur. The Department shall require a plan of correction for each Type B Violation.  The Department may direct the facility to establish a specific plan of correction within a specific time frame to address any Type B Violation.
(b)	Penalties for failure to correct violations within time specified. – 
(1)	Where a facility has failed to correct a Type A Violation, the Department shall assess the facility a civil penalty in the amount of up to five hundred dollars ($500.00) for each day that the deficiency continues beyond the time specified in the plan of correction approved by the Department or its authorized representative. The Department or its authorized representative shall ensure that the violation has been corrected.
(2)	Where a facility has failed to correct a Type B Violation within the time specified for correction by the Department or its authorized representative, the Department shall assess the facility a civil penalty in the amount of up to two hundred dollars ($200.00) for each day that the deficiency continues beyond the time specified in the plan of correction approved by the Department or its authorized representative without just reason for such failure. The Department or its authorized representative shall ensure that the violation has been corrected.
(3)	The Department shall impose a civil penalty which is treble the amount assessed under subdivision (1) of subsection (a) when a facility under the same management, ownership, or 
	control has received a citation and paid a 
	fine
	for violating the same specific provision of a statute or regulation for which it has received a citation during the previous 12 months. The counting of the 12-month period shall be tolled during any time when the facility is being operated by a court-appointed temporary manager pursuant to Article 13 of this Chapter.
(c)	Factors to be considered in determining amount of initial penalty. – In determining the amount of the initial penalty to be imposed under this section, the Department shall consider the following factors:
(1)	The gravity of the violation, including the probability that death or serious physical harm to a resident will result or has resulted; the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or regulations were violated;
(2)	The reasonable diligence exercised by the licensee and efforts to correct violations;
(3)	The number and type of previous violations committed by the licensee;
(4)	The amount of assessment necessary to insure immediate and continued compliance; and
(5)	The number of patients put at risk by the violation.
(d)	The Department shall impose a civil penalty on any facility which refuses to allow an authorized representative of the Department to inspect the premises and records of the facility.
(e)	Any facility wishing to contest a penalty shall be entitled to an administrative hearing as provided in the Administrative Procedure Act, Chapter 150B of the General Statutes. One issue at the administrative hearing shall be the reasonableness of the amount of any civil penalty assessed by the Department. If a civil penalty is found to be unreasonable, the hearing officer may recommend that the penalty be modified accordingly.
(f)	The Secretary may bring a civil action in the superior court of the county wherein the violation occurred to recover the amount of the administrative penalty whenever a facility:
(1)	Which has not requested an administrative hearing fails to pay the penalty within 60 days after being notified of the penalty; or
(2)	Which has requested an administrative hearing fails to pay the penalty within 60 days after receipt of a written copy of the decision as provided in G.S. 150B-36.
(g)	The penalty review committee established pursuant to G.S. 131D-34(h) shall review administrative penalties assessed pursuant to this section.
(h)	The Department shall not assess an administrative penalty against a facility under this section if a civil monetary penalty has been assessed for the same violation under federal enforcement laws and regulations."
Sec. 8.  This Part becomes effective October 1, 1996, and applies to violations occurring on or after that date.

Part VI.
Confidentiality of Records.
Sec. 9.  G.S. 131D-26 is amended by adding a new subsection to read:
"( e)	Survey, inspection, and investigation schedules developed by the Department of Human Resources are not 'public records' as defined in G.S. 132-1."
Sec. 10.  Article 1 of Chapter 131E of the General Statutes is amended by adding a new section to read:
"§ 131E-3.  Confidentiality of Department schedules.
Survey, inspection, and investigation schedules developed by the Department are not 'public records' as defined in G.S. 132-1."
Sec. 11.  Article 7 of Chapter 131E of the General Statutes is amended by adding a new section to read:
"§ 131E-161.1.  Confidentiality of patient identifying information.
Patient identifying information provided to the Department pursuant to this Article are not 'public records' as defined in G.S. 132-1 and shall not be subject to public inspection.  For purposes of this section, 'patient identifying information' means the name, address, social security number, or similar information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information."
Sec. 12.  Article 7A of Chapter 131E of the General Statutes is amended by adding a new section to read:
"§ 131E-163.  Confidentiality of patient identifying information.
Patient identifying information provided to either the Medical Care Commission or the Department pursuant to this Article are not 'public records' as defined in G.S. 132-1 and shall not be subject to public inspection.  For purposes of this section, 'patient identifying information' means the name, address, social security number, or similar information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information."
Sec. 13.  Article 56 of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143-518.  Confidentiality of patient identifying information.
Patient identifying information provided to the Department pursuant to this Article are not 'public records' as defined in G.S. 132-1 and shall not be subject to public inspection.  For purposes of this section, 'patient identifying information' means the name, address, social security number, or similar information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information."
Sec. 14.  G.S. 122C-25(c) reads as rewritten:
"(c)	The Secretary shall adopt rules regarding inspections, that, at a minimum, provide for:
(1)	A general administrative schedule for inspections; and
(2)	An unscheduled inspection without notice, if there is a complaint alleging the violation of any licensing rule adopted under this Article.
Survey, inspection, and investigation schedules developed by the Department are not 'public records' as defined in G.S. 132-1."

Part VII.
Effective Date.
Sec. 15.  Unless otherwise provided in this act, this act is effective upon ratification.