Sec. 10.34.11.08. Mitigating and Aggravating Factors to Be Considered in the Assessment of the Sanction and Penalty

A. Depending upon the facts and circumstances of each case, and to the extent that they apply, the Board may consider the following mitigating and aggravating factors in determining whether the sanction in a particular case should fall outside the range of sanctions established by the guidelines. These factors may include, but are not limited to, the following:

(1) Mitigating Factors:

(a) The licensee’s, registrant’s, or permit holder’s lack of a prior disciplinary record;

(b) The licensee, registrant, or permit holder self-reported the violation to the Board;

(c) The licensee’s, registrant’s, or permit holder’s full and voluntary admission of misconduct to the Board and cooperation during Board proceedings;

(d) The licensee, registrant, or permit holder implemented remedial measures to correct or mitigate harm arising from the misconduct;

(e) The licensee, registrant, or permit holder made a timely good-faith effort to make restitution or to rectify the consequences of the misconduct;

(f) Evidence of rehabilitation or rehabilitative potential;

(g) Absence of premeditation to commit the misconduct;

(h) Absence of potential harm to public or adverse impact; and

(i) The licensee’s, registrant’s, or permit holder’s conduct was an isolated incident and not likely to recur; and

(2) Aggravating Factors:

(a) The licensee, registrant, or permit holder has a previous criminal or administrative disciplinary history;

(b) The violation was committed deliberately or with gross negligence or recklessness;

(c) The violation had the potential for, or caused, serious patient harm;

(d) The violation was part of a pattern of detrimental conduct;

(e) The licensee, registrant, or permit holder was motivated to perform the violation for financial gain;

(f) The vulnerability of the patient or customer;

(g) The licensee, registrant, or permit holder attempted to hide error or misconduct from patients or others;

(h) Previous attempts at rehabilitation of the licensee, registrant, or permit holder were unsuccessful; and

(i) The licensee, registrant, or permit holder committed the violation under the guise of treatment.

B. The existence of one or more of these factors does not impose on the Board or an Administrative Law Judge any requirement to articulate its reasoning for not exercising its discretion to impose a sanction outside of the range of sanctions set forth in this chapter.

C. Nothing in this regulation requires the Board or an Administrative Law Judge to make findings of fact with respect to any of these factors.