Sec. 10.07.02.70. Civil Money Penalties — Imposition

A. A civil money penalty may be imposed when:

(1) A deficiency exists; or

(2) An ongoing pattern of deficiencies exist in a nursing facility.

B. In determining whether a civil money penalty is to be imposed, the Department shall consider the following factors:

(1) The number, nature, and seriousness of the deficiencies;

(2) The extent to which the deficiency or deficiencies are part of an ongoing pattern during the preceding 24 months;

(3) The degree of risk to the health, life, or safety of the residents of the nursing facility caused by the deficiency or deficiencies;

(4) The efforts made by, and the ability of, the nursing facility to correct the deficiency or deficiencies;

(5) A nursing facility's prior history of compliance in general and specifically with reference to the cited deficiencies; and

(6) Such other factors as justice may require.

C. When the Department determines that a deficiency or an ongoing pattern of deficiencies exists, the Department shall notify the nursing facility of the deficiency or deficiencies and may:

(1) Impose a per day civil money penalty until sustained compliance has been achieved;

(2) Permit the facility the opportunity to correct the deficiencies by a specific date; or

(3) Impose a per instance civil money penalty for each instance of violation.

D. When the Department permits a facility the opportunity to correct the deficiencies by a specific date, and the facility fails to comply with this requirement, the Department may impose a per day civil money penalty for each day of violation until correction of the deficiency or deficiencies has been verified and sustained compliance has been maintained.

E. When a civil money penalty is imposed, the Department shall issue an order which includes the:

(1) Deficiency or deficiencies on which the order was based;

(2) Amount of civil money penalty to be imposed; and

(3) Manner in which the amount of civil money penalty was calculated.

F. An order issued pursuant to §E of this regulation is void unless issued within 60 days of the inspection or reinspection at which the deficiency or deficiencies are identified.