RS 2199 - Violations; penalties; fines; notice; hearings; appeal; licensed entities
A.(1) For purposes of this Part, "facility" shall mean any one or more of the following: an adult day health care facility, substance abuse/addiction treatment facility, ambulatory surgery center, case management facility, urine drug screening facility, mobile cholesterol screening facility, end stage renal disease facility, supplier of portable X-ray services, home health agency, hospice, hospital, ICF/DD facility, outpatient abortion facility, or any other healthcare provider licensed or certified by the Louisiana Department of Health. (2) The opening or operation of a facility without a license or registration therefor shall be a misdemeanor, punishable upon conviction by a fine of not less than one thousand dollars nor more than five thousand dollars. Each day's violation shall constitute a separate offense.
(3) It shall be a violation to operate a facility which holds a current license, registration, or certificate if one of the following apply:
(a) As a result of a licensure or certification survey, it is determined by an agency to be in violation of one or more conditions of licensure or certification and has failed to correct such conditions of violation within the time prescribed by law or by the agency.
(b) As a result of one or more third-party complaints, it is determined by an agency to have been in violation of one or more conditions of licensure or certification resulting directly in the incident which gave rise to such third-party complaint.
(4) Any violation provided for in Paragraph (3) of this Subsection shall entitle both the facility and the complainant to an administrative appeal.
(5) A "facility" shall not include any individual healthcare provider who is licensed or certified by one of the boards under the Louisiana Department of Health. These boards include but are not limited to the Louisiana Board of Pharmacy, Louisiana Physical Therapy Board, Louisiana State Board of Medical Examiners, Louisiana Board of Dentistry, and the Louisiana State Board of Optometry Examiners.
B.(1) Any person or entity violating the provisions of Paragraph A(3) of this Section when such a violation poses a threat to the health, safety, rights, or welfare of a resident or client may be liable for 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 such as an effective corporate compliance program, and explain the treatment of continuing and repeat deficiencies.
(2) A schedule of civil fines by class of violations shall be as follows:
(a) Class A - Violations that create a condition or occurrence relating to the operation and maintenance of a facility, which result in death or serious harm to a resident or client. 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 facility which create a substantial probability that death or serious physical or mental harm to a resident or client 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 facility which create a potential for harm by directly threatening the health, safety, rights, or welfare of a resident or client. 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 or client. 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 a facility 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 offense 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 facility of any violation, for an informal reconsideration process, and for an appeal procedure including judicial review. Such appeal shall be suspensive. The facility shall have the right to a devolutive appeal.
D. The facility shall furnish, with an appeal, a 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 facility 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 action to collect fines imposed and not timely appealed. No facility may claim imposed fines or interest as reimbursable costs, nor increase charges to residents or clients as a result of such fines or interest. 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) Except as provided in Subsection G of this Section, 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 civil fines collected under the provisions of this Section shall be credited to a special fund created in the state treasury to be known as the "Health Care Facility Fund", hereinafter referred to as "the fund".
(2) The monies in the fund shall be subject to annual appropriation by the legislature and shall be available exclusively for the use by the Louisiana Department of Health for:
(a) The protection of health, welfare, rights, or property of those receiving services from the healthcare facilities licensed or certified by the Louisiana Department of Health.
(b) The enforcement of sanctions against healthcare facilities licensed or certified by the Louisiana Department of Health.
(c) Education, employment, and training of employees, staff, or other personnel of healthcare facilities licensed or certified by the Louisiana Department of Health.
(d) Programs designed to improve the quality of care in healthcare facilities.
(3) 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 end of the fiscal year shall remain in the fund.
(4) The secretary of the Louisiana Department of Health is authorized to promulgate rules and regulations in accordance with the Administrative Procedure Act to provide for the administration of the fund.
G.(1) 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 monies being placed in the state general fund, an amount equal to the civil fines collected from home health agencies under the provisions of this Section and civil fines and monetary penalties imposed or levied by the Centers for Medicare and Medicaid Services against home health agencies and remitted to the state shall be credited to a special fund hereby created in the state treasury to be known as the "Home Health Agency Trust Fund", hereinafter referred to as the "HHA Trust Fund". The monies in the HHA Trust Fund shall be invested by the treasurer in the same manner as monies in the state general fund and all interest earned from the investment of the monies in the HHA Trust Fund shall be deposited to and remain to the credit of the HHA Trust Fund. All unexpended and unencumbered monies remaining in the HHA Trust Fund at the close of the fiscal year shall remain in the HHA Trust Fund. (2) The monies in the HHA Trust Fund shall be subject to annual appropriation and shall be used solely in accordance with the provisions of 42 CFR Part 488 and subject to approval by the Centers for Medicare and Medicaid Services.
(3) The treasurer shall transfer an amount equal to any civil fines or penalties from home health agencies remitted to the state by the Centers for Medicare and Medicaid Services prior to the creation of the HHA Trust Fund into the HHA Trust Fund after the effective date of this Act.
(4) 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 HHA Trust Fund.
Acts 1997, No. 1390, §1; Acts 1999, No. 1311, §1; Acts 2001, No. 391, §1; Acts 2001, No. 1185, §4, eff. July 1, 2001; Acts 2003, No. 201, §1; Acts 2008, No. 785, §1, eff. July 7, 2008; Acts 2015, No. 113, §1, eff. June 19, 2015; Acts 2018, No. 206, §4.