Determining Amount of Civil Money Penalty

10005.2 - Determining Amount of Civil Money Penalty (Rev. 221; Issued: 05-10-24; Effective: 05-10-24; Implemetation:05-10-24) CMPs are intended as a tool to encourage the HHA or hospice program to rapidly return to compliance with program requirements to protect the health and safety of individuals under their care. As with all other enforcement sanctions/remedies, CMPs are a discretionary enforcement action and not required. CMS may ultimately determine that termination is the most appropriate enforcement action to ensure patient health and safety. While a provider may be given an opportunity to correct their deficiencies and return to compliance, if CMS determines that an agency cannot promptly return to compliance, termination may be preferable to an alternative sanction or enforcement remedy. CMS bases its choice of sanction/remedy on consideration of one or more factors that include, but are not limited to the following: • The extent to which the deficiencies pose IJ to patient health and safety. • The nature, incidence, manner, degree, and duration of the deficiencies or noncompliance. • The presence of repeat deficiencies, the HHA's or hospice program’s overall compliance history and any history of repeat deficiencies at either the parent or branch or multiple location. • The extent to which the deficiencies are directly related to a failure to provide quality patient care. • The extent to which the HHA or hospice program is part of a larger organization with performance problems. • An indication of any system-wide failure to provide quality care. In determining the amount of the civil money penalty, CMS considers certain factors in addition to those listed above which include: • The size of the HHA or the hospice program and its resources; • Accurate and credible resources, such as PECOS, Medicare cost reports and Medicare/Medicaid claims information that provide information on the operation and resources of the HHA; and • Evidence that the HHA or hospice program has a built-in, self-regulating quality assessment and performance improvement system to provide proper care, prevent poor outcomes, control patient injury, enhance quality, promote safety, and avoid risks to patients on a sustainable basis that indicates the ability to meet the conditions of participation and to ensure patient health and safety. In collaboration with other CMS components, CMS may consider an agency’s financial condition on a case-by-case basis, and this evaluation may be made in part by considering the HHA’s or hospice program’s size and its resources. The CMS Location may need to consult with other CMS components such as Center for Program Integrity (CPI), Centers for Medicare (CM), and/or Office of Financial Management (OFM) as part of the process to consider the above factors. CMS considers whether the HHA or hospice program has the ability to pay the CMP without having to go out of business or compromise patient health and safety. An HHA or hospice program may be expected to satisfy its obligations to the federal government before making payments to its owners. Information on the operations and resources of the HHA or hospice program may include items such as, but not limited to, historical patient census, staffing levels, and claims paid. Additionally, CMS may consider other aspects such as enforcement actions taken by CMS for enrollment or payment related issues (e.g., overpayment, pre/post-pay audits, suspensions, and revocations) and the impact these can have on HHA or hospice program resources. When several instances of noncompliance are identified at a survey, either a per day or per instance civil money penalty could be imposed. By law, CMPs may not exceed a set maximum amount per day. The maximum is a total, comprising per day and per instance penalties. This maximum amount is set forth at §488.845(b)(2)(iii) and at §488.845(b)(6) for HHA and §488.1245(b)(2)(iii) and at §488.1245(b)(6) for hospice programs, and the current adjusted maximum amount is posted on CMS’s website on the Quality, Safety & Oversight Group webpage at https://www.cms.gov/Medicare/Provider-Enrollment-and- Certification/SurveyCertificationGenInfo/Civil-Monetary-Penalties-Annual-Adjustments. Per the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, inflationary adjustments to the CMPs are published annually and are effective immediately upon publication. The first of these adjustments was published in the Federal Register on September 6, 2016, at 81 FR 61538. A table located at 45 CFR 102.3 shows how the CMPs are adjusted for inflation. In addition, these adjusted CMP amounts are posted on the CMS website on the Survey and Certification Group webpage and are updated when future inflation adjustments are made. Adjusted amounts that are in effect when the CMP is imposed by CMS shall be applied, regardless of when noncompliance is identified. This means that the CMP amount per day or per instance imposed should be calculated using the most current adjusted amount noted in 45 CFR 102.3. For example, if a survey identifies condition-level noncompliance but CMS has not imposed a CMP yet (i.e., sent notice of intent to impose a CMP) and the next annual adjustment is published, then CMS must impose a CMP amount, either per day or per instance, using the newly adjusted amounts. For example: During a survey, a situation of IJ that is unremoved at survey exit, is identified, and CMS sends notice of the intent to impose a CMP. Upon receipt of an acceptable plan of correction, a revisit survey is completed, revealing the situation of IJ was removed but noncompliance at the condition level remains. CMS would move to lower the amount of the CMP imposed per day considering the survey findings and changes to the severity of identified noncompliance. However, if the daily penalty assessment of the CMP is adjusted under existing Federal law prior to CMS notifying the facility of the reduction in the per day amount of the CMP, CMS must lower the amount per day only to an amount that meets the newly adjusted totals (see also 42 CFR 488.845(b)(2)(iii) for HHAs and 42 CFR 488.1245(b)(2)(iii) for hospice programs). In the event the ranges, minimum, and/or maximum amount of a CMP is adjusted for inflation during an entity’s cycle of noncompliance, CMS must calculate the amount based upon the date the notice of intent is issued, not the date noncompliance was identified. These adjusted amounts shall be used until the next effective date for CMP inflation adjustments occurs. The CMS Location consults with the regional attorney’s office to ensure compliance with section 1128A of the Act and Department of Justice requirements. Section 1128A of the Act requires CMS to offer a hearing before collecting, but not before imposing, a CMP.