A. Any person, other legal entity, or any governmental agency may bring a civil action to restrain a provider of home care services, or a person acting on behalf of the provider or under the provider's control from, or for the collection of damages caused by:

1. Making or enforcing unconscionable terms or provisions of a provider agreement;

2. Fraudulent or unconscionable conduct in inducing a patient to enter into an agreement; or

3. Fraudulent or unconscionable conduct in collecting fees for services.

B. In an action brought pursuant to this section, the court may grant relief if it finds:

1. That the defendant has made unconscionable agreements or has engaged in or is likely to engage in a course of fraudulent or unconscionable conduct;

2. That the agreements or conduct of the defendant has caused or is likely to cause injury to a patient; or

3. That the defendant has been able to cause or will be able to cause injury primarily because of the nature of the services involved.

C. In applying this section, consideration shall be given to each of the following factors:

1. Belief by the defendant at the time the services were provided that there was no reasonable probability of injury;

2. Knowledge by the defendant at the time the services were provided of the inability of the patient to receive substantial benefit from the services provided;

3. Gross disparity between the price of the services provided measured by the price at which similar services are readily available or obtainable by like patients;

4. The fact that the defendant contracted for or received separate or additional charges for services with the effect of making the cost for the services provided, considered as a whole, unconscionable;

5. The fact that the defendant has knowingly taken advantage of the inability of the patient reasonably to protect the patient's interests by reason of physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of the agreements or similar factors; and

6. Any other fact.

D. In an action brought pursuant to this section, conduct, a charge, or a practice expressly specified in this section shall not in itself be deemed unconscionable.

E. With respect to an action brought to restrain actions pursuant to the provisions of the Home Care Act, or unconscionable agreements or fraudulent or unconscionable conduct, a person may apply to the court for temporary relief against a defendant, pending final determination. If the court finds after a hearing held upon notice to the defendant that there is reasonable cause to believe that the defendant should be restrained, it may grant any temporary relief or restraining order it deems appropriate.

F. In addition, after demand, a person, other legal entity or governmental agency may bring a civil action against a provider of home care services, or a person acting on behalf of the provider or under the provider's control, to recover damages incurred as a result of any action taken by the provider or such person, subject to the provisions of this section.

G. The provisions of this section shall not affect any other remedies available under other principles of law or equity.

Added by Laws 1996, c. 349, § 5, eff. Nov. 1, 1996.