31-8-126. Violation of rights; cause of action; civil and criminal penalty.

Any person or persons aggrieved because a long-term care facility has violated or failed to provide any right granted under this article shall have a cause of action against such facility for damages and such other relief as the court having jurisdiction of the action deems proper. No person shall be prohibited from maintaining such an action for failure to exhaust any rights to administrative or other relief granted under this article.#

In addition to other penalties or remedies that may be imposed by this article or other law, the department is authorized to impose civil penalties as follows:#

1. (1)

   If a violation has occurred, the department shall order the facility to correct such violation. Upon failure to correct such violation within a reasonable period of time, the department may order the facility to discontinue admitting residents until such violation is corrected; and#

2. (2)

   In cases of violations repeated by a facility under the same license within a 12 month period, the department shall be authorized to assess a civil penalty not to exceed $75.00 per violation for each day in which the violation continues, except that the maximum civil penalty for each violation shall not exceed $2,500.00. In imposing such civil penalties the department shall consider all relevant factors including, but not limited to:#

   1. (A)

      The amount of assessment necessary to ensure immediate and continued compliance;#

   2. (B)

      The character and degree of impact of the violation of the health, safety, and welfare of any resident in the nursing home;#

   3. (C)

      The conduct of the person or facility against whom the citation is issued in taking all feasible steps or procedures necessary or appropriate to comply or to correct the violations; and#

   4. (D)

      Any prior violations by the facility of statutes, regulations, or orders administered, adopted, or issued by the department.#

Any such civil penalty shall be imposed by the department only after notice and hearing as provided in Article 1 of Chapter 5 of this title.#

Any person or facility subject to a civil penalty under this Code section is entitled to judicial review in accordance with Article 1 of Chapter 5 of this title.#

All civil penalties recovered by the department under this Code section shall be paid into the state treasury.#

Nothing in this Code section shall be construed to preempt any other law or to deny to any individual any rights or remedies which are provided by or under any other law.#

Code Section 31-5-8 shall apply fully to any willful violation of this chapter.#