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COMMITTEE REPORT
April 22, 2004
H. 4747
Introduced by Reps. Simrill, Delleney, Kirsh, McCraw, Moody-Lawrence and Richardson
S. Printed 4/22/04--H. [SEC 4/26/04 11:35 AM]
Read the first time February 11, 2004.
To whom was referred a Bill (H. 4747) to amend the Code of Laws of South Carolina, 1976, by adding Section 43-1-85 so as to authorize the Department of Social Services to impose licensure, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking Section 43-1-85 as contained in SECTION 1, beginning on page 1, and inserting:
/ Section 43-1-85. (A) When the department determines that a facility is in violation of any statutory provision or regulation relating to the operation or maintenance of the facility, the department, upon proper notice, may require corrective action, deny, or revoke a license or other operating permit, or impose a monetary penalty. For purposes of this section, the term 'facility' refers to child caring institutions, children's residential group homes, and child daycare facilities.
(B) Violations determined pursuant to subsection (A) are classified as follows:
(1) Class I violations are those that the department determines to present an imminent danger to the health, safety, or well-being of persons in the facility or a substantial probability that death or serious physical harm could result therefrom. A physical condition or one or more practices, means, methods, or operations in use in a facility may constitute such a violation. The condition or practice constituting a Class I violation must be abated or eliminated immediately unless a fixed period of time, as stipulated by the department, is required for correction. Each day the violation exists after expiration of the time established by the department is considered a subsequent violation.
(2) Class II violations are those, other than Class I violations, that the department determines to have a negative impact on the health, safety, or well-being of children in the facility. The citation of a Class II violation must specify the time within which the violation must be corrected. Each day such violation exists after expiration of this time is considered a subsequent violation.
(3) Class III violations are those that are not classified as Class I or II. The citation of a Class III violation must specify the time within which the violation is required to be corrected. Each day the violation exists after expiration of this time is considered a subsequent violation.
(C) In arriving at a decision to take enforcement actions, the department shall consider the following factors:
(1) specific conditions and their impact or potential impact on health, safety, or well-being of the children;
(2) efforts by the facility to correct cited violations;
(3) behavior of the operator or licensee that would reflect negatively on the operator's or the licensee's character such as illegal/illicit activities;
(4) overall conditions;
(5) history of compliance and history of violations; and
(6) any other conditions pertinent to standards found in statutes and regulations.
(D) A facility must have an opportunity to correct a violation before enforcement action is imposed unless the department determines that because of the frequency or severity of violations or the severity of a single violation, an opportunity to cure would not provide adequate protection to children, or that providing an opportunity to cure would be futile.
(E) When the department requires corrective action, the facility and the department shall enter into a written plan of correction. The corrective action plan shall describe:
(1) the actions taken or to be taken to correct each cited deficiency;
(2) the actions taken or to be taken to prevent recurrences (actual and similar); and
(3) the actual or expected completion dates of those actions.
The department has the discretion to accept, reject, or modify corrective action proposed by the facility.
(F) When a decision is made to impose monetary penalties, the following schedule must be used as a guide to determine the dollar amount: Frequency of violation of standard within a 36-month period:
FREQUENCY CLASS I CLASS II CLASS III
1st $500-1,500 $300-800 $100-300
2nd 1,000-3,000 500-1,500 300-800
3rd 2,000-5,000 1,000-3,000 500-1,500
4th 5,000 2,000-5,000 1,000-3,000
5th 7,500 5,000 2,000-5,000
6th 10,000 7,500 5,000
(G) Any enforcement action taken by the department may be appealed in the manner provided for in statute or regulation for appeal of revocations and denials.
(H) Notwithstanding any other provision of law providing for the crediting of monetary penalty revenues, all penalty revenues attributable to enforcement actions pursuant to this section must be credited to the general fund of the State. /
Renumber sections to conform.
Amend title to conform.
ROBERT W. HARRELL, JR. for Committee.
EXPLANATION OF IMPACT:
The Department of Social Services states that this bill would have no impact on the General Fund of the State as it merely codifies current agency authorization as contained in Proviso 13.10 of the FY2003-04 Appropriation Act. This proviso allows the agency to impose fees based on a fee schedule approved by the Budget and Control Board. Any costs associated with the implementation of this bill would be covered by the fees collected through the licensure, permitting and renewal of applicants in the programs regulated by the department.
SPECIAL NOTES:
The Department of Social Services estimates that $858,000 would be raised from licensure and registry check fees. The Board of Economic Advisors is the appropriate entity to address any official revenue estimate associated with this bill.
Approved By:
Don Addy
Office of State Budget
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 43-1-85 SO AS TO AUTHORIZE THE DEPARTMENT OF SOCIAL SERVICES TO IMPOSE LICENSURE, PERMIT, AND RENEWAL FEES ON APPLICANTS IN PROGRAMS THE DEPARTMENT REGULATES, TO AUTHORIZE THE DEPARTMENT TO IMPOSE MONETARY PENALTIES FOR VIOLATIONS PERTAINING TO THESE PROGRAMS, TO PROVIDE THAT THE DEPARTMENT SHALL PROVIDE FOR THE USE OF FEES AND PENALTIES COLLECTED, AND TO REQUIRE THE DEPARTMENT TO PROMULGATE REGULATIONS TO CARRY OUT THESE PROVISIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 1, Title 43 of the 1976 Code is amended by adding:
"Section 43-1-85. (A) The department may impose fees on applicants for licenses and any other types of permits, registrations, approvals, or certificates the department issues in programs that the department regulates. The department may collect these fees at the time of initial application and at renewal. The department shall retain these fees shall use them to operate the department's licensing and regulatory programs. The department shall establish the amount of the fees and provide for collection of the fees in regulation.
(B) The department may impose monetary penalties against a person, facility, or other entity for violation of statutes or regulations pertaining to programs that the department regulates. Penalties collected must be retained by the department and used to pay for technical assistance and training to benefit regulated individuals and programs. The department shall promulgate regulations for each program in which penalties may be imposed. The regulations must include guidance on the decision to assess a penalty, the effect of failure to pay a penalty timely, and a schedule of penalty ranges that takes into account severity and frequency of violations. These regulations must provide for notice of the penalty and the right to a contested case hearing before a designee of or panel appointed by the state director. Judicial review of the final agency decision concerning a penalty must be in accordance with statutes or regulations that apply to judicial review of final revocation and denial decisions in that particular program. The department, in accordance with regulations promulgated pursuant to this section, has discretion in determining the appropriateness of assessing a monetary penalty against a person or facility and the amount of the penalty. The authority to assess monetary penalties is in addition to other statutory provisions authorizing the department to seek injunctive relief or to deny, revoke, suspend, or otherwise restrict or limit a license or other types of operating or practice registrations, approvals, or certificates."
SECTION 2. This act takes effect upon approval by the Governor.
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