§ 40:2009.11 — Violations; penalties; notice; hearings; appeal; collection and distribution of fines

Louisiana § 40:2009.11

• Jurisdiction: Louisiana
• Title 40: Public Health and Safety

Text

§2009.11. Violations; penalties; notice; hearings; appeal; collection and distribution of fines
A. The opening or operation of a nursing home as herein defined without a license
therefor shall be a misdemeanor, punishable upon conviction by a fine of not less than one
thousand dollars nor more than five thousand dollars, and each day's violation shall constitute
a separate offense.
B.(1) No person shall operate a nursing home as herein defined in violation of any
provision of R.S. 40:2009.1 through 40:2009.11 or any other state or federal statute,
regulation, or any department rule adopted pursuant to the Administrative Procedure Act
which govern the administration of nursing home care.
(2) Any person or entity violating these requirements when such violation poses a
threat to the health, safety, rights, or welfare of a nursing home resident may be liable to civil
fines in addition to any criminal action which may be brought under other applicable laws.
The department shall adopt rules in accordance with the Administrative Procedure Act which
define specific classifications of violations, articulate factors in assessing civil fines
including mitigating circumstances, and explain the treatment of continuing and repeat
deficiencies. A schedule of civil fines by class of violation shall be as follows:
(a) Class A - Violations that create a condition or occurrence relating to the operation
and maintenance of a nursing home which result in death or serious harm to a resident. Civil
fines shall not exceed two thousand five hundred dollars for the first violation and shall not
exceed five thousand dollars per day for repeat violations.
(b) Class B - Violations that create a condition or occurrence relating to the operation
and maintenance of a nursing home which create a substantial probability that death or
serious physical or mental harm to a resident will result from the violation. Civil fines shall
not exceed one thousand five hundred dollars for the first violation and shall not exceed three
thousand dollars per day for repeat violations.
(c) Class C - Violations that create a condition or occurrence relating to the operation
and maintenance of a nursing home which create a potential for harm by directly threatening
the health, safety, rights, or welfare of a resident. Civil fines shall not exceed one thousand
dollars for the first violation and shall not exceed two thousand dollars per day for repeat
violations.
(d) Class D - Violations related to administrative and reporting requirements that do
not directly threaten the health, safety, rights, or welfare of a resident. Civil fines shall not
exceed one hundred dollars for the first violation and shall not exceed two hundred fifty
dollars per day for repeat violations.
(e) Class E - Violations for failure of any nursing home to submit a statistical or
financial report in a timely manner as required by regulation. Civil fines shall not exceed
fifty dollars for the first violation and shall not exceed one hundred dollars per day for repeat
violations.
(3) The aggregate fines assessed for violations determined in any one month shall
not exceed five thousand dollars, except that the aggregate fines assessed for Class A repeat
violations shall not exceed twenty thousand dollars in any one month, and the aggregate fines
assessed for Class B repeat violations shall not exceed fifteen thousand dollars in any one
month.
C. The department shall adopt rules and regulations in accordance with the
Administrative Procedure Act to provide for notice to the nursing home of any violation, for
an informal reconsideration process, and for an appeal procedure including judicial review.
Such appeal shall be suspensive.
D. The nursing home shall furnish, with an appeal, bond in the minimum amount of
one and one half times the amount of the fine imposed by the department. The bond
furnished shall provide in substance, that it is furnished as security that the nursing home will
prosecute its appeal, that any judgment against it, including court costs, will be paid or
satisfied from the amount furnished or that otherwise the surety is liable for the amount
assessed against the facility. The appeal shall be heard in a summary proceeding which shall
be given precedence over other pending matters.
E. The department may institute all necessary civil court action to collect fines
imposed and not timely appealed. No nursing home may claim imposed fines as
reimbursable costs, nor increase charges to residents as a result of such fines. Interest shall
begin to accrue at the current judicial rate on the day following the date on which any fines
become due and payable.
F.(1) Civil fines collected under the provisions of this Section shall be deposited
immediately into the state treasury.
(2) After compliance with the requirements of Article VII, Section 9(B) of the
Constitution of Louisiana relative to the Bond Security and Redemption Fund, and prior to
the monies being placed in the state general fund, an amount equal to the amount deposited
as provided in Paragraph (1) of this Subsection shall be credited to a special fund hereby
created in the state treasury to be known as the "Nursing Home Residents' Trust Fund",
hereinafter referred to as "the fund". The monies in the fund shall be subject to annual
appropriation and shall be used solely as mandated by the Omnibus Budget Reconciliation
Act of 1987 (P.L. 100-203), including but not limited to reimbursement of evacuation
expenses incurred by nursing homes, subject to approval by the Centers for Medicare and
Medicaid Services. The monies in the fund shall be invested by the treasurer in the same
manner as the monies in the state general fund, and all interest earned from the investment
of monies in the fund shall be deposited in and remain to the credit of the fund. All
unexpended and unencumbered monies remaining in the fund at the close of the fiscal year
shall remain in the fund.
(3) The secretary of the Louisiana Department of Health is authorized to promulgate
rules in accordance with the Administrative Procedure Act to provide for the administration
of the fund.
G, H. Repealed by Acts 1990, No. 859, §2.

Legislative History

Added by Acts 1958, No. 188, §1. Acts 1984, No. 730, §1; Acts 1987, No. 727, §1, eff July 16, 1987; Acts 1990, No. 859, §§1 and 2; Acts 1993, No. 947, §1; Acts 2008, No. 785, §1, eff. July 7, 2008.