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.