Sec. 8. Enforcement

691 words·~3 min read·/bill/116/hr/555/ih/section-8

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

A civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by an individual described in paragraph

(2)in an appropriate Federal district court. The remedies and procedures set forth in this section are the remedies and procedures this Act provides to any individual who is being subjected to a violation of this Act, or who has reasonable grounds for believing that such individual is about to be subjected to such a violation. An individual with a disability shall have standing to institute a civil action under this subsection if the individual makes a prima facie showing that the individual— is an individual with an LTSS disability; and is being subjected to, or about to be subjected to, such a violation (including a violation of section 4(b)(11)). Upon application by the complainant described in paragraph

(2)and in such circumstances as the court may determine to be just, the court may appoint an attorney for the complainant and may authorize the commencement of such civil action without the payment of fees, costs, or security. Nothing in this section shall require an individual with an LTSS disability to engage in a futile gesture if such person has actual notice that a public entity or LTSS insurance provider does not intend to comply with the provisions of this Act. If the court finds that a violation of this Act has occurred or is about to occur, the court may award to the complainant— actual and punitive damages; immediate injunctive relief to prevent institutionalization; as the court determines to be appropriate, any permanent or temporary injunction (including an order to immediately provide or maintain community-based long-term services or supports for an individual to prevent institutionalization or further institutionalization), temporary restraining order, or other order (including an order enjoining the defendant from engaging in a practice that violates this Act or ordering such affirmative action as may be appropriate); and in an appropriate case, injunctive relief to require the modification of a policy, practice, or procedure, or the provision of an alternative method of providing LTSS, to the extent required by this Act. In any action commenced pursuant to this Act, the court, in its discretion, may allow the party bringing a claim or counterclaim under this Act, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs to the same extent as a private person. The Attorney General shall investigate alleged violations of this Act, and shall undertake periodic reviews of the compliance of public entities and LTSS insurance providers under this Act. The Attorney General may commence a civil action in any appropriate Federal district court if the Attorney General has reasonable cause to believe that— any public entity or LTSS insurance provider, including a group of public entities or LTSS insurance providers, is engaged in a pattern or practice of violations of this Act; or any individual, including a group, has been subjected to a violation of this Act and the violation raises an issue of general public importance. In a civil action under paragraph (1)(B), the court— may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this Act— granting temporary, preliminary, or permanent relief; and requiring the modification of a policy, practice, or procedure, or the provision of an alternative method of providing LTSS; may award such other relief as the court considers to be appropriate, including damages to individuals described in subsection (a)(2), when requested by the Attorney General; and may, to vindicate the public interest, assess a civil penalty against the public entity or LTSS insurance provider in an amount— not exceeding $100,000 for a first violation; and not exceeding $200,000 for any subsequent violation. For purposes of paragraph (2)(C), in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the public entity or LTSS insurance provider has engaged in more than one violation of this Act shall be counted as a single violation.