§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.

            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.