Appeal of Noncompliance That Led to Imposition of Civil Money

10005.20 - Appeal of Noncompliance That Led to Imposition of Civil Money Penalty (Rev. 221; Issued: 05-10-24; Effective: 05-10-24; Implemetation:05-10-24) Before collecting a CMP, section 1128A of the Act requires the Secretary (CMS) to conduct a hearing when properly requested by the HHA or hospice program pursuant to §498.40. An HHA or hospice program may request a hearing with the Administrative Law Judge (ALJ) on the determination of the noncompliance that is the basis for imposition of the CMP. The procedures to request a hearing specified in 42 C.F.R. § 498.40 are followed when CMS imposes a CMP on an HHA or hospice program. Once an appeal hearing is requested, CMS cannot collect the CMP until a final agency determination. Additional procedures are set forth at 42 CFR 488.845(h) for HHA and at 42 CFR 488.1245(g) for hospice programs. Per these regulations, when an ALJ or state hearing officer (or higher administrative review authority) finds that the basis for imposing a CMP exists, the reviewing authority may not— (1) Set a penalty of zero or reduce a penalty to zero; (2) Review the exercise of discretion by CMS to impose a CMP; and (3) Consider any factors in reviewing the amount of the penalty other than those specified at §488.845(b) for HHA or §488.1245(b) for hospice programs. 10005.20A – HHA or Hospice Program Waives Right to a Hearing (Rev. 221; Issued: 05-10-24; Effective: 05-10-24; Implemetation:05-10-24) An HHA or hospice program may waive the right to a hearing, in writing, within 60 days from the date of the notice imposing the CMP. If an HHA or hospice program timely waives its right to an appeal hearing within 60 calendar days of their receipt of CMS' notice imposing the CMP, CMS will approve the waiver and reduce the CMP by thirty five percent (35%). Payment of the reduced CMP must be made within 15 days of the HHA's or hospice program’s receipt of CMS's notice approving the waiver and reducing the CMP. If the HHA or hospice program does not waive its right to an appeal hearing in writing within 60 calendar days of their receipt of CMS original request for payment under §488.845(c)(2)(ii) for HHA and §488.1245(c)(2)(ii) for hospice programs, it will not receive the CMP reduction. NOTE: Each time a survey is conducted within an already running noncompliance cycle and a CMP is imposed, the HHA or hospice program is given appeal rights and may exercise its waiver of right to a hearing. When a per day CMP is imposed and then is increased or decreased at subsequent surveys during an already running noncompliance cycle, an HHA or hospice program may elect to either appeal each separate CMP imposition or waive the right to appeal each imposition. Each CMP imposition is computed separately for a set number of days. The final CMP amount is established after the final administrative decision. Example: An HHA is cited on the original recertification survey for non-compliance with 42 CFR 484.60 Condition of participation: Care planning, coordination of services, and quality of care. Findings include evidence that the HHA did not follow the plan of care, the plan of care did not include all pertinent diagnoses, and the HHA failed to notify the physician of changes in the patient’s condition. On the first revisit survey, the incidence of these deficiencies increased. On both surveys, the condition is cited as out of compliance and CMPs are imposed. The CMP will be increased following the revisit survey. The HHA may choose to appeal one or both citations, or waive one or both citations, or waive one citation and appeal the other. When several per instance CMPs are imposed during a noncompliance cycle, an HHA or hospice program may choose to appeal or waive the right to appeal one or more of the CMPs, in the same manner as illustrated above for the per day CMPs. After the facility achieves substantial compliance or its provider agreement is terminated, it is notified of the revised CMP amount due.