441—81.50 (249A) Civil money penalties—amount of penalty.
	 81.50(1) Amount of penalty. The penalties are within the following ranges, set at $50 increments:
	  a.   	 Upper range—$3,050 to $10,000. Penalties in the range of $3,050 to $10,000 per day are imposed for deficiencies constituting immediate jeopardy, as specified in 81.50(4)“b.”
	  b.   	 Lower range—$50 to $3,000. Penalties in the range of $50 to $3,000 per day are imposed for deficiencies that do not constitute immediate jeopardy, but either caused actual harm, or caused no actual harm, but have the potential for more than minimal harm.
	 81.50(2) Basis for penalty amount. The amount of penalty is based on the department of inspections and appeals’ assessment of factors listed in subrule 81.50(6).
	 81.50(3) Decreased penalty amounts. Except as specified in 81.50(4)“b,” if immediate jeopardy is removed, but the noncompliance continues, the department of inspections and appeals shall shift the penalty amount to the lower range.
	 81.50(4) Increased penalty amounts.
	  a.   	 Before the hearing, the department of inspections and appeals may propose to increase the penalty amount for facility noncompliance which, after imposition of a lower level penalty amount, becomes sufficiently serious to pose immediate jeopardy.
	  b.   	 The department of inspections and appeals shall increase the penalty amount for any repeated deficiencies for which a lower level penalty amount was previously imposed, regardless of whether the increased penalty amount would exceed the range otherwise reserved for nonimmediate jeopardy deficiencies.
	  c.   	 Repeated deficiencies are deficiencies in the same regulatory grouping of requirements found at the last survey, subsequently corrected, and found again at the next survey.
	 81.50(5) Review of the penalty. When an administrative law judge (or director of the department of inspections and appeals) finds that the basis for imposing a civil money penalty exists, the administrative law judge (or director) may not:
	  a.   	 Set a penalty of zero or reduce a penalty to zero.
	  b.   	 Review the exercise of discretion by the department of inspections and appeals to impose a civil money penalty.
	  c.   	 Consider any factors in reviewing the amount of the penalty other than those specified in subrule 81.50(6).
	 81.50(6) Factors affecting the amount of penalty. In determining the amount of penalty, the department of inspections and appeals shall take into account the following factors:
	  a.   	 The facility’s history of noncompliance, including repeated deficiencies.
	  b.   	 The facility’s financial condition.
	  c.   	 The factors specified in rule 441—81.33(249A).
	  d.   	 The facility’s degree of culpability. Culpability includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.