CMS revisions to CMPs aim to increase consistency

The Centers for Medicare & Medicaid Services (CMS) released a memo last week announcing revisions to how civil money penalties (CMPs) are imposed on facilities as a result of noncompliance. When noncompliance exists, enforcement remedies such as CMPs are intended to promote a swift return to substantial compliance for a sustained period of time, preventing future noncompliance.

To increase national consistency in imposing CMPs, CMS has made the following revisions to the CMP analytic tool:

  • Past noncompliance: Regional Offices (ROs) will impose a per-instance CMP for past noncompliance (i.e., something that occurred before the current survey, but has been fully addressed and put the facility back in compliance with that area.)
  • Per instance CMP is the default for noncompliance that existed before the survey: CMS ROs will generally impose a Per Instance CMP retroactively for non-compliance that still exists at the time of the survey, but began earlier. However, a Per Day will be used to address noncompliance that occurred where: (1) a resident suffers actual serious harm at the immediate jeopardy level; (2) a resident was abused; (3) or the facility had persistent deficient practices violating federal regulations.
  • Per day CMP is the default for noncompliance existing during the survey and beyond: In contrast, Per Day CMPs will be the default CMPs for noncompliance identified during the survey and beyond, because there is an urgent need to promote a swift return to substantial compliance for a sustained period of time, preventing future noncompliance. Exceptions allowing Per Instance CMPs will be made for facilities with good compliance histories, and where a single isolated incident causes harm to a resident, unless abuse has been cited.
  • Revisit timing: CMS ROs should consider the timing of the revisit survey to certify compliance when imposing the final CMP amount. CMS has added language specifying this consideration.
  • Review of high CMPs: CMS Central Office will Review CMPs of $250,000 or greater.

Older versions of the CMP analytic tool are now obsolete, with the newest version taking effect July 17, 2017.

Along with the release of interpretive guidelines for Phase 2 of the new survey process, CMS announced in a recent memo that they will delay imposing penalties (including CMPs) for noncompliance with Phase 2 requirements by one year, and will instead provide in-services during that time where noncompliance with Phase 2 requirements is determined. The implementation date for these requirements remains November 28, 2017.

CMS also published “technical and typographical errors” that they made in the final rule to reform requirements for long-term care facilities. A summary of errors can be found here.

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