20-10-206. Civil penalties.

20-10-206. Civil penalties. (a)(1) In the case of a Class A violation, the following civil penalties shall be assessed by the Director of the Office of Long-Term Care against the long-term care facility. In Class B, Class C, or Class D violations, the director, in his or her discretion, may assess the following civil penalties or may allow a specified period of time for correction of the violation: (A)(i) Class A violations are subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for the first violation. (ii) A second Class A violation occurring within a six-month period shall be subject to a civil penalty of five thousand dollars ($5,000). (iii) The third Class A violation occurring within a six-month period from the first violation shall result in proceedings being commenced for termination of the facility's Medicaid agreement and may result in proceedings being commenced for revocation of licensure of the facility; (B)(i) Class B violations are subject to a civil penalty not to exceed one thousand dollars ($1,000). (ii) A second Class B violation occurring within a six-month period shall be subject to a civil penalty of two thousand dollars ($2,000). (iii) A third Class B violation occurring within a six-month period from the first violation shall result in proceedings being commenced for termination of the facility's Medicaid agreement and may result in proceedings being commenced for revocation of the licensure of the facility; (C) Class C violations are subject to a civil penalty to be set by the director in an amount not to exceed five hundred dollars ($500) for each violation; and (D) Class D violations are subject to a civil penalty to be set by the director in an amount not to exceed two hundred fifty dollars ($250) for each violation. (2) Each subsequent Class C and Class D violation within a six-month period from the last violation shall subject the facility to a civil penalty double that of the preceding violation until a maximum of one thousand dollars ($1,000) per violation is reached. (3) In no event may the aggregate fines assessed for violations determined in any one (1) month exceed five thousand dollars ($5,000). (b) In determining whether a civil penalty is to be imposed and in fixing the amount of the penalty to be imposed, or if a specified period of time shall be allowed for correction, the following factors shall be considered: (1) The gravity of the violation, including the probability that death or serious physical harm to a resident will result or has resulted; (2) The severity and scope of the actual or potential harm; (3) The extent to which the applicable statutes, rules, or regulations were violated; (4) The “good faith” exercised by the licensee. Indications of good faith include, but are not limited to: (A) Awareness of the applicable statutes, rules, and regulations and reasonable diligence in securing compliance; (B) Prior accomplishments manifesting the licensee's desire to comply with the requirements; (C) Efforts to correct; and (D) Any other mitigating factors in favor of the licensee; (5) Any relevant previous violations committed by the licensee; and (6) The financial benefit to the licensee of committing or continuing the violation. (c) Assessment of a civil penalty provided by this section shall not affect the right of the Office of Long-Term Care to take such other action as may be authorized by law, rule, or regulation.