(a) The commission has the power and authority, after notice and an opportunity for a hearing, to impose a civil monetary penalty against a person who performs, offers to perform, or holds such person out as performing an activity for which a certificate of need is required, without first obtaining a valid certificate of need.
Terms Used In Tennessee Code 68-11-1616
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
Certificate of need: means a permit granted by the health facilities commission to a person for those services specified as requiring a certificate of need under §. See Tennessee Code 68-11-1602
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
(b) The executive director shall initiate a civil penalty proceeding by filing a petition with the commission. The proceeding must be conducted as a contested case hearing in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.(c) The civil penalty is in an amount not less than one hundred dollars ($100) nor more than five hundred dollars ($500) per day of continued activity or operation. Once a civil penalty has been imposed, the violator has the burden of submitting verifiable evidence satisfactory to the commission that the violator has discontinued the activity for which the civil penalty was imposed. The penalty begins to accrue on the date the commission notified the violator of the violation or violations, and continues to accrue until such evidence of discontinuance is received at the commission office.(d) An appeal of a final order imposing a civil penalty must be conducted in accordance with the Uniform Administrative Procedures Act.(e) In determining whether to impose a civil penalty and the amount of the penalty, the commission may consider the following factors:
(1) The economic benefits gained from the activities in question. The commission does not have to show that the violator would not have been granted a certificate of need had one been sought;(2) Whether the civil penalty and the amount of the penalty will be a substantial economic deterrent to the violator and others;(3) The circumstances leading to the violation, and whether the violator had notice that the activity was in violation of the certificate of need laws or commission regulations;(4) The financial resources of the violator, and the violator’s ability to pay the penalty; and(5) The failure to meet a quality standard applicable to the violator.
