Health and Safety

CHAPTER 23-17.10
Administrative Penalties

SECTION 23-17.10-6

§ 23-17.10-6. Determination of administrative penalty.

In determining the amount of each administrative penalty, the director shall include, but not be limited to, the following to the extent practicable in his or her considerations:

(1) The actual and potential impact on health, safety, and welfare of the public or any member of the public of the failure to comply;

(2) The actual and potential damages suffered, and actual or potential costs incurred, by the director, or by any other person;

(3) Whether the person being assessed the administrative penalty took steps to prevent noncompliance, to promptly come into compliance, and to remedy and mitigate whatever harm might have been done as a result of the noncompliance;

(4) Whether the person being assessed the administrative penalty has previously failed to comply with any:

(i) Federal requirement for participation in the Medicare or Medicaid programs;

(ii) Rule, regulation, order, license, or approval issued or adopted by the director;

(iii) Law relating to skilled nursing or intermediate care facilities; or

(iv) Rule, regulation, or order regarding the management of infectious waste in health care facilities;

(5) Making compliance less costly than noncompliance;

(6) Deterring future noncompliance;

(7) The amount necessary to eliminate the economic advantage of noncompliance including, but not limited to, the financial advantage acquired over competitors from the noncompliance;

(8) Whether the failure to comply was intentional, willful, or knowing and not the result of error;

(9) Any amount specified by state and/or federal statute for a similar violation or failure to comply;

(10) Any other factor(s) that may be relevant in determining the amount of a penalty, provided that the other factors shall be set forth in the written notice of assessment of the penalty; and

(11) The public interest.

History of Section.
(P.L. 1988, ch. 182, § 1; P.L. 1989, ch. 543, § 2.)