68-11-213 - Injunctions and penalties Promulgation of regulations. [Amended effective January 1, 2010. See the Compiler's Notes.] - Tennessee Statutes

68-11-213. Injunctions and penalties Promulgation of regulations. [Amended effective January 1, 2010. See the Compiler's Notes.]

(a)  (1)  The department is authorized to initiate proceedings seeking injunctive and any other form of relief available in law or equity against any person who owns, operates, manages or participates in the operation of or management of any facilities required to be licensed under this part, or any resident or residents in any facility required to be licensed under this part, without having the license required by this part.

     (2)  The department may also seek such relief against any person who owns, operates, manages or participates in the operation or management of any facility required to be licensed under this part, if such person or facility violates the provisions of this part, rules, regulations or orders issued under this part, or terms and conditions of the license.

     (3)  Proceedings under this section may be initiated in the chancery court of Davidson County or the chancery court of the county in which all or part of the activities complained of occur. [Amended effective January 1, 2010. See the Compiler's Notes.]

(b)  Based upon a complaint that a home for the aged, assisted-care living facility or adult care home, subject to licensure under this part may be operating without a license, the department, with consent of an owner, operator, manager, or person who participates in the operation, or patient or resident, or the guardian of the patient or resident, may enter the facility in order to investigate or inspect the complaint for the necessity of or compliance with licensure under this part.

(c)  If consent is not obtained and the area sought to be inspected is a closed or non-public area, right of entry and inspection shall not be made by the department, unless a civil warrant, upon probable cause, is first obtained authorizing such entry or inspection.

(d)  Inspections conducted pursuant to this section shall be conducted in a manner so as to minimize disruption.

(e)  If a determination is made by the department that a home for the aged, assisted-care living facility or alcohol and drug treatment center is subject to the requirements of licensure under this part, a notice shall be issued by the department stating the determination and requiring that application for licensure shall be made to the department within thirty (30) days of the receipt of that notice. The thirty-day application period does not serve to waive any and all civil penalties that may be assessed for unlicensed operation of a facility under this part.

(f)  Failure of the home for the aged, assisted-care living facility or alcohol and drug treatment center to make application to the department for licensure within thirty (30) days from the date of the receipt of the notice may result in the initiation of injunctive relief and any other relief available in law or equity against any person who owns, operates, manages or participates in the management of the facility. [Amended effective January 1, 2010. See the Compiler's Notes.]

(g)  In addition to requiring that the home for the aged, assisted-care living facility or adult care home make application for licensure, the department may immediately initiate a petition for injunctive relief or any other relief available in law or equity. The department may recommend and direct the home for the aged, assisted-care living facility or adult care home to immediately cease and desist operations when the health, safety or welfare of the patients or residents requires emergency action.

(h)  (1)  It is unlawful for any person to receive or accept any patient or patients or any resident or residents in any facility required to be licensed under this part without having applied for and obtained a license as required by this part.

     (2)  A violation of this requirement is a Class B misdemeanor.

     (3)  Each day of operation without a license constitutes a separate offense. [Amended effective January 1, 2010. See the Compiler's Notes.]

(i)  (1)  The department may assess a civil penalty not to exceed five thousand dollars ($5,000) against any person or entity operating an assisted-care living facility or adult care home without having the license required by this chapter. Each day of operation is a separate violation.

     (2)  The board for licensing health care facilities is authorized to establish as part of its comprehensive system of quality assurance and enforcement a system for assessing civil monetary penalties, including appropriate due process, for assisted-care living facilities and adult care homes that are in serious violation of state laws and regulations, resulting in endangerment to the health, safety and welfare of residents.

     (3)  All penalties for adult care homes shall be deposited by the department with the state treasurer to a general fund account specifically designated for the purpose of providing adult care home educational training programs and continuing education requirements for adult care home providers, resident managers, substitute caregivers and staff. The commissioner of finance and administration shall determine the appropriate use for these funds.

     (4)  Beginning one hundred eighty (180) days after the promulgation of regulations under this part by the department, the department may assess a civil penalty not to exceed three thousand dollars ($3,000) against any licensed assisted-care living facility for admitting or retaining residents not meeting the definition of assisted-care facility resident set forth in this chapter. Each such resident shall constitute a separate violation.

(j)  (1)  The department may assess a civil penalty not to exceed one thousand dollars ($1,000) against any person or entity operating a prescribed child care facility without the license required by this chapter or in violation of any other statute or regulation promulgated under this chapter. Each day of operation is a separate offense.

     (2)  The board is specifically authorized to promulgate regulations for the assessment and procedures to be used in the assessment of civil penalties against a prescribed child care center, including, but not limited to, a schedule of the minimum and maximum penalties, factors to be considered in making the assessment, procedures to be used in the assessment, appeals, and finality of assessments.

     (3)  The board is authorized to conduct contested cases regarding appeals of the penalties assessed pursuant to this subsection (j).

[Acts 1947, ch. 13, § 15; mod. C. Supp. 1950, § 5879.14 (Williams, § 4432.15); Acts 1953, ch. 113, § 28; 1968, ch. 522, §§ 2, 5; 1971, ch. 225, § 8; 1975, ch. 276, § 12; 1976, ch. 471, §§ 12-14; T.C.A. (orig. ed.), § 53-1314; Acts 1984, ch. 880, § 8; 1989, ch. 591, § 112; 1993, ch. 234, § 18; 1994, ch. 747, § 5; 1996, ch. 674, § 8; 1996, ch. 818, § 4; 1998, ch. 1021, § 4; 2000, ch. 981, §§ 90, 91; 2001, ch. 285, §§ 11-13; 2001, ch. 438, §§ 14-16; 2004, ch. 846, § 1; 2008, ch. 1190, § 23; 2009, ch. 186, § 14; 2009, ch. 579, §§ 15-17.]