Criteria for Mandatory Immediate Imposition of Federal

7304.1 - Criteria for Mandatory Immediate Imposition of Federal Remedies Prior to the Facility's Correction of Deficiencies (Rev. 244; Issued: 06-26-26; Effective: 06-26-26; Implementation: 06-26-26) CMS will impose federal remedies and the survey will be identified as a “No Opportunity to Correct” if the situation meets any one or more of the following criteria: • Immediate Jeopardy (IJ) (scope and severity levels J, K, and L) is identified on the current survey; OR • Any deficiency from the current survey at levels “G, H or I” that falls into any of the regulatory sections that constitute Substandard Quality of Care (SQC); OR • Any deficiency at “G” or above on the current survey AND if there were any deficiencies at “G” or above on the previous standard health or LSC survey or if there was any deficiency at “G” or above on any type of survey between the current survey and the last standard health or LSC survey. These surveys (standard health or LSC, complaint, revisit) must be separated by a certification of compliance, i.e., they must be from different noncompliance cycles. For instance, level G or above deficiencies from multiple surveys within the same noncompliance cycle must not be combined to make this a “double G or higher” determination; OR • A facility classified as a Special Focus Facility (SFF) AND has a deficiency citation at level “F,” (excluding any level “F” citations under tags F812, F813 or F814) or higher for the current health survey or “G” or higher for the current Life Safety Code (LSC) survey. The remedies to be imposed by statute do not change, (e.g., 3-month automatic Denial of Payment for new admissions (DPNA), 23-day termination when IJ is present and 6-month termination). In addition to these statutory remedies, the CMS Location must also immediately impose one or more additional remedies for any situation that meets the criteria identified above. The State Survey and/or Medicaid Agencies shall not permit changes to this policy. Use of Federal Remedies in Immediate Jeopardy (IJ) Citations - When IJ is identified on the current survey that resulted in serious injury, harm, impairment or death, a CMP must be imposed. For IJ citations where there is no resultant serious injury, harm, impairment or death but the likelihood is present, the CMS Location must impose a remedy or remedies that will best achieve the purpose of attaining and sustaining compliance. CMPs may be imposed, but they are not required. NOTE: “Current” survey is whatever Health and/or LSC survey is currently being performed, e.g., standard, revisit, or complaint. “Standard” survey (which does not include complaint or revisit surveys) is a periodic, resident-centered inspection that gathers information about the quality of service furnished in a facility to determine compliance with the Requirements of Participation. Process for State Enforcement Recommendations - While States are not required to recommend the types of remedies to be imposed, they are encouraged to do so since States may be more familiar with a facility’s history and the specific circumstances in the case at hand. The CMS Location will consider these recommendations but ultimately makes the enforcement determination. To ensure effective communication and exchange of information, CMS encourages that all documentation is included in iQIES or any subsequent system. Regardless of a State’s recommendation, the CMS Location must take the necessary actions to impose a remedy or multiple remedies, based on the seriousness of the deficiencies following the criteria set forth in 42 C.F.R. §488.404. Also refer to §§7400.5.1 and 7400.5.2 of this chapter. In addition to any statutorily imposed remedy, additional remedies should be selected that will bring about compliance quickly and encourage facilities to achieve and maintain compliance. When making remedy choices, the CMS Location should consider the extent to which the noncompliance is the result of a one-time mistake, larger systemic concerns, or an intentional action of disregard for resident health and safety. The surveyor investigation and corresponding CMS-2567 should provide evidence to assist with that determination. The State Agency is authorized to both recommend and impose one or more Category 1 remedies, in accordance with §7314 of this Chapter. CATEGORY 1 remedies include: • Directed plan of correction, • State monitoring, and • Directed in-service training. Types of Remedies - The choice of remedy is made that best achieves the purpose of attaining and sustaining compliance based on the circumstances of each case and recommendations from the State. Federal remedies are summarized below. Refer to §§7500 - 7556 of this chapter for more detail on these remedies. Civil Money Penalties (CMPs) - Federal CMPs may only be imposed by the CMS Location. If a CMP is imposed, it must be done in accordance with instructions in the CMP Analytic Tool and §§7510 through 7536 of this chapter. Directed In-Service Training – Refer to §7502 of this chapter. Consider this remedy in cases where the facility has deficiencies where there are knowledge gaps in standards of practice, staff competencies or the minimum requirements of participation and where education is likely to correct the noncompliance. Depending on the topic(s) that need to be addressed, and the level of training needed, facilities should consider using programs developed by well-established centers of geriatric health services such as schools of medicine or nursing, centers for the aging, and area health education centers which have established programs in geriatrics and geriatric psychiatry. If it is willing and able, a State may provide special consultative services for obtaining this type of training. The State or CMS Location may also compile a list of resources that can provide directed in- service training and could make this list available to facilities and interested organizations. Facilities may also utilize the ombudsman program to provide training about residents’ rights and quality of life issues. Directed Plan of Correction - Refer to §7500 of this chapter. This remedy provides for directed action(s) from either the State or CMS Location that the facility must take to address the noncompliance or a directed process for the facility to more fully address the root cause(s) of the noncompliance. Achieving compliance is ultimately the facility’s responsibility, whether or not a directed plan of correction is followed. Temporary Management - Refer to 42 CFR §§488.408 and 488.410. This is the temporary appointment by CMS or the State of a substitute facility manager or administrator with authority to hire, terminate or reassign staff, obligate facility funds, alter facility procedures, and manage the facility to correct deficiencies identified in the facility's operation. A temporary manager may be imposed anytime a facility is not in substantial compliance but may also be imposed when a facility’s deficiencies constitute IJ or widespread actual harm and a decision is made to impose an alternative remedy in lieu of termination. It is the temporary manager’s responsibility to oversee correction of the deficiencies and assure the health and safety of the facility’s residents while the corrections are being made. The temporary manager’s term can extend beyond the time which deficiencies are corrected by agreement of the facility and the temporary manager. A temporary manager remedy may also be imposed to oversee orderly closure of a facility. The State will select the temporary manager when the State Medicaid Agency is imposing the remedy and will recommend a temporary manager to the CMS Location when CMS is imposing the remedy. Each State should compile a list of individuals who are eligible to serve as temporary managers. These individuals do not have to be located in the State where the facility is located. Denial of Payment for all New Medicare and Medicaid Admissions (DPNA) - See §7506 of this chapter. This remedy may be imposed alone or in combination with other remedies to encourage quick compliance. Regardless of any other remedies that may be imposed, a mandatory denial of payment for new admissions must be imposed when the facility is not in substantial compliance three months after the last day of the survey identifying deficiencies, or when a facility has been found to have furnished substandard quality of care on the last three consecutive standard surveys (see 42 CFR 488.414). Timeliness of Mandatory DPNA Notification for Nursing Homes – The SA must adhere to enforcement processing timeframes so that mandatory DPNA is imposed when a nursing home is not in substantial compliance three months after the date of the original survey. The SA must transfer the enforcement case to CMS by the 70th day or the imposition notice is sent by the SA to the provider by the 70th day (as authorized by CMS). However, there may be other instances in which cases should be immediately transferred to the CMS Location (i.e. enhanced enforcement). Contact your CMS Location for additional information. This excludes cases involving Medicaid-only nursing homes. Denial of all Payment for all Medicare and Medicaid Residents (DPAA) (Discretionary). - See §7508 of this chapter. Only CMS has the authority to deny all payment for Medicare and/or Medicaid residents. This is in addition to the authority to deny payment for all new admissions (discretionary) noted above. This is a severe remedy. Factors to be considered in selecting this remedy include but are not limited to: 1. Seriousness of current survey findings; 2. Noncompliance history of the facility; and 3. Use of other remedies that have failed to achieve or sustain compliance. State Monitoring - Refer to §7504 of this chapter. A State monitor oversees the correction of cited deficiencies in the facility as a safeguard against further harm to residents when harm or a situation with a potential for harm has occurred. Consider imposing this remedy when, for example, there are concerns that the situation in the facility has the potential to worsen or the facility seems unable or unwilling to take corrective action. A State monitor must be used when a facility has been cited with substandard quality of care (SQC) deficiencies on the last three consecutive standard health surveys. Termination of Provider Agreement - See §7556 of this chapter. While this remedy may be imposed at any time the circumstances warrant regardless of whether IJ is present; regardless of any other remedies that may be imposed, termination of a facility’s provider agreement must be imposed when the facility is not in substantial compliance six months after the last day of the survey identifying deficiencies or within no more than 23 days if IJ is identified and not removed. Mandatory Criteria for Immediate Imposition of Federal Remedies NOTE: Denial of Payment for New Admissions - Whenever a State’s remedy is unique to its State plan and has been approved by CMS, then that remedy may also be imposed by the CMS Location against a dually participating facility in that State. Therefore, if a 1 Federal CMPs are imposed in accordance with the instructions in the CMP Analytic Tool 2 DDPNA = Discretionary Denial of Payment for New Admissions 3 This remedy shall ONLY be imposed by CMS and may not be imposed by a State Medicaid Agency. A state survey agency may only impose Category 1 remedies if authorized by the CMS Location. Mandatory Criteria for Immediate Imposition of Federal Remedies Immediate Jeopardy is identified on the current survey Any deficiency from the current survey at levels “G, H or I” that falls into any of the regulatory sections that constitute Substandard Quality of Care Deficiencies of actual harm are identified on the current survey AND deficiencies of immediate jeopardy OR actual harm were identified on any type of survey between the current survey and the last standard survey Facilities classified as a SFF AND has a deficiency citation of “F” level or higher for the current health survey or G or higher for the current LSC survey Types of Remedy(ies) that, at a minimum, should be considered for immediate imposition by CMS in addition to the CMPs when immediate jeopardy is cited, mandatory 3- month DPNA for new admissions or mandatory 6- month termination, as required. NOTE: Multiple remedies may be imposed for any situation as appropriate. 1. Termination 2. CMPs1 must be imposed immediately 3. DDPNA2 4. Temp. Mgmt. 5. State Monitoring 6. Directed Plan of Correction 7. Directed In- service 8. Denial of Payment for ALL Individuals3 1. Termination 2. CMPs 3. DDPNA 4. Directed Plan of Correction 5. Directed In- service Training 6. Denial of Payment for All Individuals 1. Termination 2. CMPs 3. DDPNA 4. Temp. Mgmt. 5. State Monitoring 6. Directed Plan of Correction 7. Directed In-service 8. Denial of Payment for All Individuals 1. Termination 2. CMPs 3. DDPNA 4. Temp. Mgmt. 5. State Monitoring 6. Directed Plan of Correction 7. Directed In- service 8. Denial of Payment for All Individuals Decisions, Responsibilities & Actions (refer to §7304.3) Within 5 business days from when the initial notice was sent to the facility the survey agency must assure that all cases that meet the criteria outlined in 7304.1 above are entered into iQIES and that all of these cases are referred to the CMS Location for their imposition of remedies. The CMS Location must take the necessary action to impose remedies as appropriate, regardless of a State’s recommendation for imposition of remedies, based on the seriousness of the deficiencies following the criteria set forth in 42 C.F.R. §488.404 - Factors to be considered in selecting remedies. Civil Money Penalties (CMPs) must be imposed in accordance with instructions in the CMP Tool. State’s ban on admissions remedy is determined to be an acceptable State alternative, it must be understood that in dually participating facilities, CMS can impose a State’s ban on admissions remedy only with regard to all Medicare/Medicaid residents. Only the State can ban admissions of private pay residents.