At any hearing requested by a facility that challenges the
appropriateness of any penalty imposed by the Department, the facility may
present evidence as to any or all of the following factors. The Director will
then consider any evidence presented by the facility, or any evidence otherwise
available to the Department, regarding the following factors in determining
whether a penalty is to be imposed and in determining the amount of the penalty
to be imposed, if any, for a violation.
a)
The gravity of the violation,
including the probability that death or serious physical or mental harm to a
resident will result or has resulted, the severity of the actual or potential
harm, and the extent to which the provisions of the Act or this Part
were violated. A penalty will be assessed when the Director
finds that death or serious physical or mental harm to a
resident has occurred or that the facility has knowingly subjected
residents to potential serious harm.
b)
The reasonable diligence exercised
by the licensee and efforts to correct violations. The Director will
assess a monetary penalty if he or she finds that the violation recurred or
continued, is widespread throughout the facility, or evidences flagrant
violation of the Act or this Part.
c)
Any previous violations committed
by the licensee. The Director will assess a penalty when he or she
finds that the facility has been cited for similar violations and has failed to
correct those violations as promptly as practicable or has failed to exercise
diligence in taking necessary corrective action. The Director will also
consider any evidence that the violations constitute a pattern of deliberate
action by the facility. Any change in the ownership and management of the
facility will be considered in relation to the seriousness of previous
violations.
d)
The
financial benefit to the facility of committing or continuing the
violation. These benefits include, but are not limited to, diversion
of costs associated with physical plant repairs, staff salaries, consultant
fees, or direct patient care services. (Section 3-306 of the Act)
