198.067. Noncompliance with law--injunction, when--civil penalties, how calculated, where deposited.
Noncompliance with law--injunction, when--civil penalties, howcalculated, where deposited.
198.067. 1. An action may be brought by the department, or by theattorney general on his or her own volition or at the request of thedepartment or any other appropriate state agency, to temporarily orpermanently enjoin or restrain any violation of sections 198.003 to 198.096,to enjoin the acceptance of new residents until substantial compliance withsections 198.003 to 198.096 is achieved, or to enjoin any specific action orpractice of the facility. Any action brought pursuant to the provisions ofthis section shall be placed at the head of the docket by the court, and thecourt shall hold a hearing on any action brought pursuant to the provisions ofthis section no less than fifteen days after the filing of the action.
2. The department may bring an action in circuit court to recover acivil penalty against the licensed operator of the facility as provided bythis section. Such action shall be brought in the circuit court for thecounty in which the facility is located. The circuit court shall determinethe amount of penalty to be assessed within the limits set out in thissection. Appeals may be taken from the judgment of the circuit court as inother civil cases.
3. The operator of any facility which has been cited with a violation ofsections 198.003 to 198.096 or the regulations established pursuant thereto,or of subsection (b), (c), or (d) of Section 1396r of Title 42 of the UnitedStates Code or the regulations established pursuant thereto, is liable to thestate for civil penalties of up to twenty-five thousand dollars for each daythat the violations existed or continue to exist. Violations shall bepresumed to continue to exist from the time they are found until the time thedepartment of health and senior services finds them to have been corrected.When applicable, the amount of the penalty shall be determined as follows:
(1) For each violation of a class I standard when applicable pursuant tosubdivision (6) of this subsection, not less than one thousand dollars normore than ten thousand dollars;
(2) For each violation of a class II standard, not less than two hundredfifty dollars nor more than one thousand dollars;
(3) For each violation of a class III standard, not less than fiftydollars nor more than two hundred fifty dollars;
(4) For each violation of a federal standard which does not alsoconstitute a violation of a state law or regulation, not less than two hundredfifty dollars nor more than five hundred dollars;
(5) For each specific class I violation by the same operator at aparticular facility which has been previously cited within the pasttwenty-four months and for each specific class II or III violation by the sameoperator at a particular facility which has been previously cited within thepast twelve months, double the amount last imposed;
(6) In accordance with the provisions of this section, if the departmentimposes a civil monetary penalty for a class I violation, the liability forsuch penalty shall be incurred immediately upon the imposition of the penaltyfor the violation regardless of any subsequent correction of the violation bythe facility. For class II or III violations, if the department imposes acivil monetary penalty, the liability for such penalty shall be incurred if abreach of a specific state or federal standard or statute remains uncorrectedand not in accord with the accepted plan of correction at the time of thereinspection conducted pursuant to subsection 3 of section 198.026 or theregulations established pursuant to Title 42 of the United States Code.
A judgment rendered against the operator of a facility pursuant to thissubsection shall bear interest as provided in subsection 1 of section 408.040,RSMo.
4. Any individual who willfully and knowingly certifies pursuant tosubsection (b)(3)(B)(i) of Section 1396r of Title 42 of the United States Codea material and false statement in a resident assessment is subject to a civilpenalty of not more than one thousand dollars with respect to each assessment. Any individual who willfully and knowingly causes another individual tocertify pursuant to subsection (b)(3)(B)(i) of Section 1396r of Title 42 ofthe United States Code a material and false statement in a resident assessmentis subject to a civil penalty of not more than five thousand dollars withrespect to each assessment.
5. The imposition of any remedy provided for in sections 198.003 to198.186 shall not bar the imposition of any other remedy.
6. Twenty-five percent of the penalties collected pursuant to thissection shall be deposited in the elderly home-delivered meals trust fund asestablished in section 143.1002, RSMo. Twenty-five percent of the penaltiescollected pursuant to this section shall be deposited in the nursing facilityquality of care fund established in section 198.418 to be used for the solepurpose of supporting quality care improvement projects within the office ofstate ombudsman for long-term care facility residents, established pursuant tosection 660.603, RSMo. The remaining fifty percent of the penalties collectedpursuant to this section shall be deposited into the nursing facility qualityof care fund to be used by the department for the sole purpose of developing aprogram to assist qualified nursing facilities to improve the quality ofservice to their residents. The director of the department shall, by rule,develop a definition of qualified facilities and shall establish proceduresfor the selection of qualified facilities. Any rule or portion of a rule, asthat term is defined in section 536.010, RSMo, that is created under theauthority delegated in this section shall become effective only if it complieswith and is subject to all of the provisions of chapter 536, RSMo, and, ifapplicable, section 536.028, RSMo. This section and chapter 536, RSMo, arenonseverable and if any* of the powers vested with the general assemblypursuant to chapter 536, RSMo, to review, to delay the effective date, or todisapprove and annul a rule are subsequently held unconstitutional, then thegrant of rulemaking authority and any rule proposed or adopted after August28, 2003, shall be invalid and void. Such penalties shall not be considered acharitable contribution for tax purposes.
7. To recover any civil penalty, the moving party shall prove by clearand convincing evidence that the violation occurred.
8. The licensed operator of a facility against whom an action to recovera civil penalty is brought pursuant to this section may confess judgment asprovided in section 511.070, RSMo, at any time prior to hearing. If suchlicensed operator agrees to confess judgment, the amount of the civil penaltyrecommended by the moving party in its petition shall be reduced bytwenty-five percent and the confessed judgment shall be entered by the circuitcourt at the reduced amount.
9. The amount of any civil penalty assessed by the circuit courtpursuant to this section shall be reduced by the amount of any civil monetarypenalty which the licensed operator of the facility may establish it has paidpursuant to the laws of the United States for the breach of the same federalstandards for which the state action is brought.
10. In addition to the civil penalties specified in subdivision (1) ofsubsection 3 of this section, any facility which is cited with a violation ofa class I standard pursuant to subsection 1 of section 198.085, when suchviolation results in serious physical injury or abuse of a sexual naturepursuant to subdivision (1) of section 198.006, to any resident of thatfacility shall be liable to the state for a civil penalty of one hundreddollars multiplied by the number of beds licensed to the facility, up to amaximum of ten thousand dollars pursuant to subsections 1 and 2 of thissection. The liability of the facility for civil penalties pursuant to thissection shall be incurred immediately upon the citation of the violation andshall not be affected by any subsequent correction of the violation. For thepurposes of this section, "serious physical injury" means physical injury thatcreates a substantial risk of death or that causes serious disfigurement orprotracted loss or impairment of the function of any part of the body.
11. The department shall not impose a fine for self-reporting class IIand class III violations so long as each violation is corrected within aspecified period of time as determined by the department and there is noreoccurrence of the particular violation for twelve months following the dateof the first self-reporting.
12. If a facility is sold or changes its operator, any civil penaltyassessed shall not be sold, transferred, or otherwise assigned to thesuccessor operator but shall remain the sole liability of the operator at thetime of the violation.
(L. 1979 S.B. 328, et al. § 22, A.L. 1989 S.B. 203 & 270, A.L. 1996 H.B. 781, A.L. 1999 H.B. 316, et al. merged with S.B. 326, A.L. 2003 S.B. 556 & 311)*Word "an" appears in original rolls.