OAR 411-073-0090: Civil Money Penalties

(1) When Imposed. The Division may impose a civil money penalty for each day a facility is or was not in substantial compliance with one or more requirements of participation. The penalty may be imposed in any situation under which a category 2 or 3 remedy is required or optional in Exhibit 1. (2) Required Action. (a) Amount. (A) Except as otherwise provided by this rule, if deficiencies do not constitute immediate jeopardy but cause actual harm or have potential of causing more than minimal harm, the penalty shall be an amount not less than $50 nor more than $3,000 per day of violation (amounts set in $50 increments). (B) If deficiencies constitute immediate jeopardy, the penalty shall be an amount not less than $3,050 nor more than $10,000 per day of violation (amounts set in $50 increments). (C) Except as otherwise provided by this rule, if deficiencies constituting immediate jeopardy are resolved and immediate jeopardy is removed but noncompliance continues, the daily penalty shall be reduced to an amount not less than $50 nor more than $3,000, as determined by the Division. (D) If deficiencies not constituting immediate jeopardy become more serious and immediate jeopardy exists, the daily penalty shall be increased to an amount not less than $3,050 nor more than $10,000, as determined by the Division. (E) If the Division determines a facility is not complying with a requirement of participation and a civil money penalty was imposed during or subsequent to the previous standard survey for deficiencies within the same requirement of participation, the Division shall issue another civil money penalty for a higher amount. Penalties for such repeat deficiencies may exceed the range established by paragraphs (2)(a)(A) and (C) of this rule. (F) The Division shall discontinue accrual of the civil money penalty on the day the Provider Agreement is terminated or on the day the Division determines substantial compliance was achieved, whichever is sooner. (b) Factors to Consider. In setting the amount of the civil money penalty within the ranges established by subsection (2)(a) of this rule, the Division shall consider: (A) The facility’s noncompliance history; (B) The facility’s financial condition (the facility shall be responsible for supplying the Division with financial information if the facility believes its financial condition should be a mitigating factor); (C) The factors described in section (2) of OAR 411-073-0030; and (D) The facility’s degree of culpability including, but not limited to, neglect, indifference, or disregard to resident care, comfort, health and safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the civil money penalty.