411-073-0130 Notice of Civil Money Penalty/Hearing/Order for Payment (1) Contents of Notice. The notice of intent to impose a civil money penalty under these rules shall include: (a) Nature of the noncompliance; (b) Statutory basis for the penalty; (c) Amount of penalty per day of noncompliance; (d) Any factors specified in OAR 411-073-0090(3)(b) that were considered when the amount of the penalty was determined; (e) Date upon which the penalty begins to accrue; (f) Date the penalty stopped accruing or circumstances under which the penalty will stop accruing; and (g) Instructions for responding to the notice, a statement of the facility’s right to a hearing, and the implication of waiving the hearing. (2) Waiver of Hearing. (a) The facility may waive, in writing, the right to a hearing within 60 days from the date of the Division’s notice of intent to impose the civil money penalty. (b) If the facility waives the right to a hearing in accordance with subsection (2)(a) of this rule, the amount of the civil money penalty shall be reduced by 35 percent. (3) Hearing. (a) Reduction of Penalty. If the hearings officer finds the basis for imposing a civil money penalty exists, (s)he may not reduce the amount of the civil money penalty below the level required by the scope and severity of noncompliance found pursuant to OAR 411-073-0040, 411-073-0090 and Exhibit 1. (b) Issues Considered. The only issues the hearings officer may consider in reviewing the amount of the civil money penalty are: (A) The facility’s history of noncompliance, including repeated deficiencies; (B) The facility’s financial condition; (C) The factors listed in OAR 411-073-0030(2); and (D) The facility’s degree of culpability. The absence of culpability is not a mitigating circumstance in reducing the amount of the civil money penalty. (c) Standard of Review. The Division’s determination as to a facility’s level of noncompliance pursuant to OAR 411-073-0030(2) shall be upheld by the hearings officer unless (s)he determines it is clearly erroneous. (4) Order Of Payment. (a) The Division shall issue a “Final Order for Payment of Civil Money Penalty” when (A) The facility did not request a hearing; or (B) The facility waived the right to a hearing; or (C) The civil money penalty was upheld after a hearing; and (D) The facility has been determined to be in substantial compliance; or (E) The facility has been terminated from participation. (b) The final order for payment shall include: (A) The nature of the noncompliance; (B) The statutory basis of the penalty; (C) The amount of the penalty per day of noncompliance; (D) Any factors specified in OAR 411-073-0090(2)(b) that were considered when determining the amount of the penalty; (E) The dates for which the penalty was charged; (F) The total amount due; (G) The due date the penalty must be paid; and (H) The rate of interest assessed on any unpaid balance after the due date. (c) The Division may deduct the amount of the penalty from any sum then or later owed to the facility by the Division or HCFA. (d) The civil money penalty is due 15 days after the Final Order for Payment of Civil Money Penalty is mailed. (5) Interest. The Division shall assess interest on any unpaid balance of the penalty, beginning on the date the penalty is due. The interest rate is the rate established by ORS 82.010. (6) Use Of Civil Penalty Monies. Civil money penalties collected by the Division pursuant to these rules (OAR 411, division 73) shall be applied to the protection of the health and property of residents in facilities found to be deficient by the Division or HCFA. Uses may include but not be limited to: (a) Relocation costs; (b) Division costs related to temporary management; or (c) Reimbursement of resident funds or property lost at the facility as a result of actions by the facility or by employees of the facility. Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95