1. (1) The Department may, in addition to or in lieu of any other lawful disciplinary action, assess a civil penalty for each separate violation of a licensure law or rule.

2. (2) The procedure for imposing a civil penalty shall be as follows:

   1. (a) Department staff shall verbally notify a licensee that a civil penalty may be imposed due to the licensee violation of a licensure law or rule;
   2. (b) Within six (6) business days of the verbal notification, the licensee shall be notified in writing of the basis for the civil penalty and the amount imposed.
   3. (c) The civil penalty shall be effective beginning on the date the written notification of the decision is issued.
   4. (d) The Department may impose a penalty for each day a licensee remains in violation of a licensure rule, regulation, ordinance or law. Each licensure law, rule, regulation or ordinance violated shall constitute a separate offense.

3. (3) In determining the amount of the daily penalty, the commissioner may consider the following:

   1. (a) The severity of the violation and the harm or risk of harm to the service recipient;
   2. (b) The willfulness of the violation;
   3. (c) The circumstances leading to the violation;
   4. (c) The efforts made by the facility to attain compliance;
   5. (d) Any extraordinary enforcement cost incurred by the Department;
   6. (e) The interest of the public; and
   7. (f) Whether the civil penalty imposed will be an economic deterrent to the non-compliant activity.

4. (4) The Department may impose a civil penalty in accordance with the following schedule:

   1. (a) First Offense

      1. i. Priority 1/Critical Offenses $ 500 ii. All other offenses $ 250

         1. (b) Second or subsequent offense of same type within 12-month period:

            1. i. Priority 1/Critical Offense $ 2500 to $ 5000 ii. All other offenses $ 500 to $ 2500

               1. (5) The Department may continue to work with a licensee to seek compliance with any licensure law or rule. The Department may waive any penalty determined by the Department to impose a hardship. A hardship waiver of a civil penalty may be granted only when strict enforcement of a particular requirement would not be in the best interest of service recipients.
               2. (6) A “Priority 1 offense” for the purposes of these rules is defined as a substantiated investigation involving the death of a service recipient; neglect physical or sexual abuse of the service recipient by the licensee or staff; and/or a serious injury to a service recipient. A “critical offense”, for purposes of these rules, is defined as those Department-designated administrative rules whose violation could result in serious harm to the service recipient.

Authority: §§ 4-4-103, 33-1-302, 33-1-303, 33-1-305, 33-1-309, 33-2-301, 33-2-302, 33-2-403, 33-2-404, 33-2-407, 33-2-409, 33-2-412, 33-2-414, 33-2-416, and 33-2-417. Administrative History: Original rule filed February 3, 2014; effective May 4, 2014.