Factors to be considered by Board in imposing disciplinary action or sanction.

1. In imposing disciplinary action or sanctions, the Board will consider the following factors: (a) Whether the licensee has violated a duty owed to a patient, to the public or to the profession; (b) Whether the licensee acted intentionally, knowingly or negligently; (c) The amount of the actual or potential injury caused by the misconduct of the licensee; and (d) The existence of any aggravating or mitigating factors. 2. Using the factors set forth in paragraphs (a), (b) and (c) of subsection 1, the Board will determine a baseline or presumptive sanction. The Board may then consider any aggravating or mitigating factors to increase or decrease the sanction. 3. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. The following list of examples is illustrative and is not exclusive: (a) Previous disciplinary offenses; (b) Dishonest or selfish motive; (c) A pattern of misconduct; (d) Multiple offenses; (e) Bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders; (f) Submission of false evidence, false statements or other deceptive practices during the disciplinary hearing; (g) Refusal to acknowledge the wrongful nature of the conduct; (h) Vulnerability of the victim; (i) Substantial experience in the practice of optometry; (j) Indifference to making restitution; and (k) Illegal conduct, including conduct that involves the use of controlled substances. 4. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. The following list of examples is illustrative and is not exclusive: (a) Absence of a previous disciplinary record; (b) Absence of a dishonest or selfish motive; (c) Personal or emotional problems; (d) Timely and good faith effort to make restitution or to rectify the consequences of the misconduct; (e) Full and free disclosure to the disciplinary authority or a cooperative attitude toward proceeding; (f) Inexperience in the practice of optometry; (g) Character or reputation; (h) The licensee is a person with a physical disability; (i) The licensee is a person with a mental illness or with an alcohol or other substance use disorder when: (1) There is medical evidence that the licensee is a person with a mental illness or with an alcohol or other substance use disorder; (2) The mental illness or alcohol or other substance use disorder caused the misconduct; (3) The recovery of the licensee from the condition creating the mental illness or from the alcohol or other substance use disorder is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) The recovery arrested the misconduct and recurrence of that misconduct is unlikely; (j) Delay in disciplinary proceedings; (k) Interim rehabilitation; (l) Imposition of other penalties or sanctions; (m) Remorse; and (n) Remoteness of previous offenses. 5. Factors that should not be considered as either aggravating or mitigating include, without limitation: (a) Forced or compelled restitution; (b) Agreeing to the demand of a patient for improper behavior; (c) Withdrawal of a public complaint against the licensee; (d) Resignation before the completion of disciplinary proceedings; (e) Any recommendation by the complainant or aggrieved patient as to sanction; and (f) The failure of a complainant or an aggrieved patient to complain.