Basis for Imposing Civil Money Penalties

10005.1 - Basis for Imposing Civil Money Penalties (Rev. 221; Issued: 05-10-24; Effective: 05-10-24; Implemetation:05-10-24) CMS may impose a CMP against an HHA or hospice program based on noncompliance with one or more CoPs found through a survey or on the presence of repeat deficiencies (i.e., looking at the HHA’s or hospice program’s overall compliance history per 42 CFR 488.815(c) and 42 CFR 488.1215(c)). Enforcement sanctions/remedies may be applied regardless of whether the HHA’s or hospice program’s deficiencies pose IJ to patient health and safety. CMS may impose a CMP for the number of days that an HHA or hospice program is not in substantial compliance with one or more CoPs, or for each instance that an HHA or hospice program is not in substantial compliance. In the case of unremoved IJ situations, the existing 23-day termination timeline still applies (See also Appendix Q of the State Operations Manual for IJ timelines). Management* management limitations, or When current management oversight is likely to impair the facility’s ability to return to full compliance, or When needed, based on the above situations, to oversee orderly involuntary termination/closure and safe transfer of patients to another local HHA or hospice. Directed Plan of Correction (DPOC) When the HHA or hospice program has deficiencies that warrant direction for the provider to take specific actions, or When the HHA or hospice program fails to develop an acceptable plan of correction for condition-level deficiencies. Directed In-Service Training When education is likely to correct the deficiencies and help the HHA or hospice program achieve substantial compliance. * For HHAs only: Please note that the imposition of one or more of these sanctions could prohibit an HHA from conducting home health aide training and competency evaluation program as noted in 42 CFR 484.80(f). The CMP amounts are based on §488.845 for HHAs and §488.1245 for hospice programs which lay out the ranges and amounts for CMPs. However, CMS is required by law to annually adjust the CMP amounts based on inflation in accordance with 45 CFR part 102. Therefore, while the original CMP amounts are located in the regulations, CMS Location staff will use the annually adjusted amounts that CMS posts on its website on the Quality, Safety & Oversight Group webpage (https://www.cms.gov/Medicare/Provider-Enrollment-and- Certification/SurveyCertificationGenInfo/Civil-Monetary-Penalties-Annual-Adjustments.html) to calculate the penalty. The maximum CMP amount is also posted on this website and will be regularly updated when annual inflation adjustments are made. CMS may impose a CMP against an HHA or hospice program for either the number of days (per day CMP) the facility is not in compliance with one or more CoPs or for each instance (per instance CMP) that the facility is not in compliance. Per Day CMP “Per day” means a CMP imposed for the number of days a facility is not in substantial compliance with the CoPs. Surveyors may come across information during the survey that identifies past noncompliance, but evidence exists that the noncompliance was corrected and is not an issue during the current survey. While we do not cite to past noncompliance (deficiencies identified and corrected since the last survey), if a surveyor finds current noncompliance and can trace the start of noncompliance back to a specific date prior to this current survey, a per day CMP may be imposed. In general, the CMS Location may impose a per day CMP from the time when the noncompliance occurred through the time when the noncompliance was corrected. For example, CMS may impose a CMP for the number of days an IJ situation exists. The range of per day penalties is set forth at §488.845(b)(3)-(5) for HHAs and §488.1245(b)(3)-(5) for hospice programs. These base amounts are adjusted annually for inflation and are posted on the CMS website. The CMP range amounts are based on three levels of seriousness—upper, middle, and lower. The lower range of permitted per day CMP amounts enables CMS to better correlate the seriousness of noncompliance with the amount of the CMP. The expanded lower end of the range may be particularly important if CMS imposes a CMP that begins at the lower or middle range and then increases in amount over time the longer the noncompliance remains uncorrected. In such a case, prompt remedial action by the HHA or hospice program can limit the total amount of per day CMP that accrues (See also 77 FR 67150). Per Instance CMP “Per instance” is defined at §488.805 and 42 CFR 488.1205 and means a single event of noncompliance identified and corrected during a survey, for which the statute authorizes CMS to impose a sanction/remedy. For example, during a survey, CMS or a state may identify several instances of noncompliance, each in distinct regulatory areas. Generally, we anticipate imposing per instance penalties only in the situation where a surveyor identifies a condition-level deficiency during the survey and the HHA or hospice program took sufficient action to correct the deficiency during the time of the survey (see also 77 FR 67150). The range of per instance penalties is set forth at §488.845(b)(6) for HHA and §488.1245(b)(6) for hospice programs, and the penalty amounts are adjusted annually for inflation and are posted on the CMS website. The terminology “per instance” is not used to suggest that only one instance of condition-level noncompliance may be assigned a CMP. There can be more than one instance of condition-level noncompliance identified during a survey where the SA/CMS Location utilizes the per instance CMP as a sanction/remedy. However, the total dollar amount of the CMP for the instance or multiple instances of condition-level noncompliance may not exceed the maximum $10,000 (as adjusted for inflation) for each day of that specific survey, and may not be less than $1,000 (as adjusted for inflation) per instance. NOTE: A per day and a per instance civil money penalty cannot be used simultaneously for the same deficiency in conjunction with a survey (i.e., standard, revisit, complaint). However, both types of CMPs may be used during a noncompliance cycle if more than one survey takes place, and the per day CMP was not the CMP initially imposed. When a per day CMP is the CMP sanction initially imposed, a per instance CMP cannot be imposed on a subsequent survey within the same noncompliance cycle. For HHAs Only: Please note that the imposition of a $5,000 or more CMP on an HHA would prohibit that HHA from conducting health aide training and competency evaluation program for 2 years from the date this sanction is imposed (see also 42 CFR 484.80(f)). See Appendix B of the State Operations Manual for additional information for eligible home health aide training and competency evaluation organizations at §484.80(f).