On July 7, the Survey and Certification Group (S&C) at the Centers for Medicare & Medicaid Services (CMS) issued memorandum S&C: 17-37-NH, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool.” The S&C memo provides a summary of revisions to the CMP Analytic Tool, including how CMPs are applied in instances of past noncompliance, the use of Per Instance versus Per Day CMPs, the timing of the revisit survey to certify compliance, and CMS Central Office (CO) review of high CMPs.

CMS is releasing a new CMP Analytic Tool, which is included in the memo document that all CMS Regional Offices (ROs) must use to choose the appropriate CMP type and amount to impose when the RO determines that a CMP is the appropriate remedy to impose. CMS notes that statute and regulations outline a variety of federal enforcement remedies to address compliance and encourages the use of the remedy that will best achieve swift and sustained compliance.

The new CMP guidance goes into effect July 17, 2017, for all enforcement cases where the CMS RO determines that a CMP is an appropriate enforcement remedy. 

Background

CMS imposes two types of CMPs – Per Day and Per Instance. Per Day CMPs are divided into lower and upper level ranges. Lower ranges are to be used for instances of actual harm to residents or potential for more than minimal harm, and upper ranges are reserved for instances of immediate jeopardy (IJ) to resident health and safety.

ROs review the survey findings to determine which type of enforcement remedy is most appropriate. If the RO determines a CMP is most appropriate, it should use the CMP Analytical Tool and guidance to determine the type and amount of the CMP to be imposed.

CMS notes that CMPs may vary based on factors such as the date of noncompliance and the timing of the revisit survey, and is revising the CMP Analytical Tool and guidance to improve consistency. 

Revised CMP Policies and Analytic Tool

The CMP Analytic Tool instructs ROs on how to use Per Day and Per Instance CMPs depending on the timing of the noncompliance in relation to the survey, whether residents were harmed/abused, whether the facility has a good compliance history, and whether the noncompliance was an isolated event or persistent deficient practices were identified. 

CMS is revising the CMP Analytical Tool in several ways:

• Past noncompliance: ROs will use Per Instance CMPs for past noncompliance, when a CMP would be recommended (for example, when something occurred before the survey, but the issue has been fully addressed and the facility is back in compliance).
• Default for noncompliance that existed before the survey: ROs will generally impose a Per Instance CMP retroactively for noncompliance that still exists at the time of the survey, but began earlier. However, a Per Day CMP will be used to address instances of noncompliance when:
  -There is actual serious harm at an IJ level; 
  -There was abuse; or 
  -The facility had persistent deficient practices violating federal regulations.
• Default for noncompliance existing during the survey and beyond: Per Day CMPs will be the default CMP for noncompliance identified during the survey and beyond. However, exceptions allowing Per Instance CMPs will be made for facilities with good compliance history and where a single isolated incident causes harm (unless abuse is cited).
  -Factors that will be considered in determining a good compliance history include whether the facility is a Special Focus Facility; whether it has not had findings a scope and severity of “G” or above within the past three calendar years, unless those were cited as past noncompliance; whether the facility has a pattern of achieving compliance prior to or at the time of the first revisit; and/or the facility has a history/pattern of sustaining compliance with previously cited deficiencies (that is, no repeat deficiencies).
• Revisit timing: ROs should consider the timing of the revisit survey to certify compliance when imposing the final CMP amount.
• Review of high CMPs: CO will Review CMPs of $250,000 or greater.

AHCA has had ongoing discussions with CMS officials, Administrator Seema Verma, and Secretary of Health and Human Services Tom Price about trends in the use of outsized CMPs and about returning to the regulatory intent of using enforcement remedies to help facilities return as quickly as possible to compliance, rather than as punishment. Some of these policy changes, including an emphasis on Per Instance rather than Per Day CMPs and on considering a facility’s good compliance history in determining CMPs, indicate that CMS is taking steps that respond to our concerns.  CMS has assured us that they are also preparing updated information to address additional concerns we raised during our most recent meeting with them at the end of April. 

Please direct any questions or concerns to AHCA’s Sara Rudow or Lyn Bentley, or contact the CMS DNH triage team here.