10.58.09.05

.05 Mitigating and Aggravating Factors.

A. Depending on the facts and circumstances of each case, and to the extent that the facts and circumstances apply, the Board may consider mitigating and aggravating factors in determining whether the sanction in a particular case should fall outside the range of sanctions established by the guidelines.

B. Nothing in this regulation requires the Board or an Administrative Law Judge to make findings of fact with respect to any of these factors.

C. A departure from the guidelines set forth in this chapter is not a ground for any hearing or appeal of a Board action.

D. The existence of one or more of these factors does not impose on the Board or an Administrative Law Judge any requirement to articulate its reasoning for not exercising its discretion to impose a sanction outside of the range of sanctions set forth in this chapter.

(1) The absence of a prior disciplinary record;

(2) The offender self-reported the violation to the Board;

(3) The offender’s full and voluntary admissions of misconduct to the Board and cooperation during Board proceedings;

(4) The offender implemented remedial measures to correct or mitigate the harm arising from the misconduct;

(5) The offender made timely good-faith efforts to make restitution or to rectify the consequences of the misconduct;

(6) The offender has been rehabilitated or exhibits rehabilitative potential;

(7) The absence of premeditation to commit the misconduct;

(8) The absence of potential harm to patients or the public or other adverse impact; or

(9) The offender’s conduct was an isolated incident and is not likely to recur.

F. Aggravating factors may include, but are not limited to, the following:

(1) The offender has a previous criminal or administrative disciplinary history;

(2) The violation was committed deliberately or with gross negligence or recklessness;

(3) The violation had the potential for, or caused, serious patient or public harm;

(4) The violation was part of a pattern of detrimental conduct;

(5) The offender was motivated to perform the violation for financial gain;

(6) The vulnerability of the clients;

(7) The offender lacked insight into the wrongfulness of the conduct;

(8) The offender committed the violation under the guise of treatment;

(9) The offender attempted to hide the error or misconduct from patients or others;

(10) The offender did not cooperate with the investigation; or

(11) Previous attempts at rehabilitation of the offender were unsuccessful.