K.S.A. § 39-2016 — KS Code / Chapter 39 / Article 20 / Section 39-2016
39-2016 - Correction orders; assessment of civil penalty, notice required; appeal of assessment.
Status: in_force

39-2016. Correction orders; assessment of civil penalty, notice required; appeal of assessment. (a) A correction order may be issued by the secretary or the secretary's designee to a licensee whenever the state fire marshal or the marshal's representative or a duly authorized representative of the secretary inspects or investigates a center, facility, hospital or provider and determines that the center, facility, hospital or provider is not in compliance with the provisions of this act or article 59 of chapter 75 of the Kansas Statutes Annotated, and amendments thereto, or rules and regulations adopted by the secretary pursuant to such authority and such non-compliance is likely to adversely affect the health, safety, nutrition or sanitation of the individuals or the public. The correction order shall be served upon the licensee either personally or by certified mail, return receipt requested. The correction order shall be in writing, shall state the specific deficiency, cite the specific statutory provision or rule and regulation alleged to have been violated and shall specify the time allowed for correction.

(b) If upon re-inspection by the state fire marshal or the marshal's representative or a duly authorized representative of the secretary, it is found that the licensee has not corrected the deficiency or deficiencies specified in the correction order, the secretary may assess a civil penalty in an amount not to exceed $500 per day, per deficiency, against the licensee for each subsequent day following the time allowed for correction of the deficiency as specified in the correction order, the maximum assessment shall not exceed $2,500. A written notice of assessment shall be served upon the licensee either personally or by certified mail, return receipt requested. Such notice of assessment shall advise the licensee of the opportunity to be heard in accordance with the Kansas administrative procedure act and to appeal such order in accordance with the provisions of the Kansas judicial review act.

(c) Before the assessment of a civil penalty, the secretary shall consider the following factors in determining the amount of the civil penalty to be assessed:

(1) The severity of the violation;

(2) the good faith effort exercised by the center, facility, hospital or provider to correct the violation; and

(3) the history of compliance of the licensee of the center, facility, hospital or provider with the rules and regulations. If the secretary finds that some or all deficiencies cited in the correction order have also been cited against the center, facility, hospital or provider as a result of any inspection or investigation which occurred within 18 months prior to the inspection or investigation which resulted in such correction order, the secretary may double the civil penalty assessed against the licensee, the maximum not to exceed $5,000.

(d) All civil penalties assessed shall be due and payable within 10 days after written notice of assessment is served on the licensee, unless a longer period of time is granted by the secretary. If a civil penalty is not paid within the applicable time period, the secretary may file a certified copy of the notice of assessment with the clerk of the district court in the county where the center, facility, hospital or provider is located. The notice of assessment shall be enforced in the same manner as a judgment of the district court.

(e) Any licensee against whom a civil penalty has been assessed, may appeal such assessment to the secretary within 10 days after receiving a written notice of assessment by filing a written notice of appeal with the office of administrative hearings specifying why such civil penalty should not be assessed. Such appeal shall not operate to stay the payment of the civil penalty. Upon receipt of the notice of appeal, the office of administrative hearings shall conduct a hearing in accordance with the provisions of the Kansas administrative procedure act. If the initial order issued by the office of administrative hearings finds in favor of the appellant and the secretary affirms the initial order, any civil penalties collected shall be refunded to the appellant licensee. Either party may appeal the final order in accordance with the Kansas judicial review act.

(f) All civil penalties collected pursuant to the provisions of this act shall be deposited with the state treasurer in accordance with K.S.A. 75-4215, and amendments thereto. Upon receipt the state treasurer shall deposit the entire amount in the state general fund.