Tennessee § 68-11-213 - Injunctions and penalties — Promulgation of regulations.

§ 68-11-213. Injunctions and penalties — Promulgation of regulations.

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. 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 this part, rules, regulations or orders issued under this part, or terms and conditions of the license. 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. Based upon a complaint that a home for the aged, assisted-care living facility, adult care home or traumatic brain injury residential 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. 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. Inspections conducted pursuant to this section shall be conducted in a manner so as to minimize disruption. If a determination is made by the department that a facility or entity 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 must 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 civil penalties that may be assessed for unlicensed operation of a facility under this part. Failure of a facility or entity requiring licensure 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 a facility or entity. In addition to requiring that a facility or entity 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 direct the facility or entity to immediately cease and desist operations when the health, safety, or welfare of the patients or residents requires emergency action. If the facility or entity does not comply with the directive to cease and desist, then the department may initiate proceedings for injunctive relief and any other relief available in law or equity. 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. A violation of this requirement is a Class B misdemeanor. Each day of operation without a license constitutes a separate offense. 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, home for the aged, adult care home, or traumatic brain injury residential home without having the license required by this chapter. Each day of operation is a separate violation. 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, homes for the aged, adult care homes, and traumatic brain injury residential homes that are in serious violation of state laws and regulations, resulting in endangerment to the health, safety, and welfare of residents. All penalties for adult care homes or traumatic brain injury residential 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 and traumatic brain injury residential home providers, resident managers, substitute caregivers and staff. The commissioner of finance and administration shall determine the appropriate use for these funds. 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. 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. 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. The board is authorized to conduct contested cases regarding appeals of the penalties assessed pursuant to this subsection (j). After notification of deficiencies following a licensure or complaint survey, any facility licensed under this part has ten (10) days from the date of notification to submit an acceptable plan of correction. Should the facility submit a plan of correction that is deemed unacceptable by the department, then the facility has an additional ten (10) days from the date of notification that the plan of correction is unacceptable to submit an acceptable plan of correction. The department shall provide a facility with no less than three (3) opportunities to submit an acceptable plan of correction and provide clear guidelines so that the facility understands what a plan of correction must include to be deemed acceptable. If a facility is not able to submit an acceptable plan of correction after three (3) attempts, then a representative from the facility shall appear before the board and submit a plan of correction for the board's approval. After receipt of an acceptable plan of correction, the department shall promptly revisit a facility or conduct an administrative review within fourteen (14) business days, unless waived by the facility or licensee, to determine whether the cited deficiencies have been corrected in accordance with the plan. If the same or different deficiencies are cited on the third revisit survey, then the department may pursue disciplinary action against the facility before the board, including seeking reimbursement for the unrecouped costs associated with subsequent revisit surveys that were incurred by the department. 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; 2012, ch. 1086, §§ 19-22; 2018, ch. 655, §§ 10-12. Compiler's Notes. Acts 2001, ch. 438, §§ 14-16 purported to amend (a)(1), (2), and (b)(1) respectively, by adding renal dialysis clinics to the facilities listed in those subdivisions; however, Acts 2001, ch. 285, §§ 11-13, respectively, modified the language intended to be amended and the amendment by Acts 2001, ch. 438 was not implemented. Nevertheless, renal dialysis clinics are included in the facilities covered by the affected subdivisions prior to their licensure on July 1, 2002. Acts 2008, ch. 1190, § 20 provided that, except as otherwise specified, the commissioner is authorized to promulgate rules and regulations to effectuate the purposes of the act. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Acts 2008, ch. 1190, § 24 provided that the board for licensing health care facilities is authorized to promulgate rules and regulations pertaining to licensure of assisted-care living facilities as set forth in §§ 68-11-201(4) and (5) and 68-11-213(i)(3) , including any changes necessary to ensure the health and safety of assisted-care living facility residents with higher levels of need. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. For the Preamble to the act regarding long-term care, please refer to Acts 2008, ch. 1190. Acts 2009, ch. 579, § 1 provided that the title of the act is, and may be cited as the “Critical Adult Care Home Act of 2009.” Acts 2012, ch. 1086, § 1 provided that the act, which amended subsections (b), (g), and (i), shall be known and may be cited as the “Traumatic Brain Injury Residential Home Act of 2012.” Amendments. The 2018 amendment rewrote (e)-(g) which read: “(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.“(g) In addition to requiring that the home for the aged, assisted-care living facility, adult care home or traumatic brain injury residential 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, adult care home or traumatic brain injury residential home to immediately cease and desist operations when the health, safety or welfare of the patients or residents requires emergency action.”; inserted “home for the aged” in the first sentence of (i)(1); inserted “homes for the aged” in (i)(2); and added (k) and (l ). Effective Dates. Acts 2018, ch. 655, § 15. July 1, 2018. Cross-References. Injunctions, generally, title 29, ch. 23. Penalty for Class B misdemeanor, § 40-35-111 .