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Interim Final Rule Increases Civil Monetary Penalty Amounts

As reported in Provider, the Centers for Medicare & Medicaid Services (CMS) has begun immediately imposing civil monetary penalties (CMPs) and other federal remedies before giving skilled nursing facilities an opportunity to correct deficiencies.

In a related move, the Department of Health and Human Services (HHS) issued an interim final rule increasing CMP amounts, consistent with the requirements of the Bipartisan Budget Act of 2015. This rule is effective immediately.

The rule includes increases to CMPs that can be imposed by CMS, the Office of Inspector General, and Administration for Children and Families. This initial increase includes a “catch-up adjustment” based on inflation since the last time the CMP was modified or adjusted. Relevant regulations are also amended to provide for continued annual CMP adjustments for inflation.

An interim final rule allows agencies to publish a final rule that becomes effective soon after publication—without going through the proposed rule stage and bypassing public notice and comment. HHS says the statutory requirement for these increases “provides a clear formula for adjustment of the civil money penalties, leaving agencies little room for discretion.”

Following is a summary of new penalties related to Skilled Nursing Facility and Nursing Facility survey and certification CMPs.

Penalty for failure of covered individuals to report to the secretary and one or more law enforcement officials any reasonable suspicion of a crime against a resident or individual receiving care from a long term care facility:

  • Prior maximum penalty: $200,000
  • New maximum penalty: $217,490

Penalty for failure of covered individuals to report to the secretary and one or more law enforcement officials any reasonable suspicion of a crime against a resident or individual receiving care from a long term care facility if such failure exacerbates the harm to the victim of the crime or results in the harm to another individual:

  • Prior maximum penalty: $300,000
  • New maximum penalty: $326,235

Penalty for a long term care facility that retaliates against any employee because of lawful acts done by the employee or files a complaint or report with the state professional disciplinary agency against an employee or nurse for lawful acts done by the employee or nurse:

  • Prior maximum penalty: $200,000
  • New maximum penalty: $217,490

Penalty per day for a Skilled Nursing Facility or Nursing Facility that has a Category 2 violation of certification requirements:

  • Prior minimum penalty: $50
  • New minimum penalty: $103
  • Prior maximum penalty: $3,000
  • New maximum penalty: $6,188

Penalty per instance of Category 2 noncompliance by a Skilled Nursing Facility or Nursing Facility:

  • Prior minimum penalty: $1,000
  • New minimum penalty: $2,063
  • Prior maximum penalty: $10,000
  • New maximum penalty: $20,628

Penalty per day for a Skilled Nursing Facility or Nursing Facility that has a Category 3 violation of certification requirements:

  • Prior minimum penalty: $3,050
  • New minimum penalty: $6,291
  • Prior maximum penalty: $10,000
  • New maximum penalty: $20,628

Penalty per instance of Category 3 noncompliance by a Skilled Nursing Facility or Nursing Facility:

  • Prior minimum penalty: $1,000
  • New minimum penalty: $2,063
  • Prior maximum penalty: $10,000
  • New maximum penalty: $20,628

Penalty per day and per instance for a Skilled Nursing Facility or Nursing Facility that has Category 3 noncompliance with Immediate Jeopardy:

  • Prior per day (minimum): $3,050
  • New per day (minimum): $6,291
  • Prior per day (maximum): $10,000
  • New per day (maximum): $20,628
  • Prior per instance (minimum): $1,000
  • New per instance (minimum): $2,063
  • Prior per instance (maximum): $10,000
  • New per instance (maximum): $20,628

Penalty per day of a Skilled Nursing Facility or Nursing Facility that fails to meet certification requirements. These amounts represent the upper range per day:

  • Prior minimum penalty: $3,050
  • New minimum penalty: $6,291
  • Prior maximum penalty: $10,000
  • New maximum penalty: $20,628

Penalty per day of a Skilled Nursing Facility or Nursing Facility that fails to meet certification requirements. These amounts represent the lower range per day:

  • Prior minimum penalty: $50
  • New minimum penalty: $103
  • Prior maximum penalty: $3,000
  • New maximum penalty: $6,188

Penalty per instance of a Skilled Nursing Facility or Nursing Facility that fails to meet certification requirements:

  • Prior minimum penalty: $1,000
  • New minimum penalty: $2,063
  • Prior maximum penalty: $10,000
  • New maximum penalty: $20,628

Grounds to prohibit approval of Nurse Aide Training Program—if assessed a penalty of not less than $5,000. (Not CMP authority, but a specific CMP amount that is the triggering condition for disapproval.):

  • Prior penalty amount: $5,000
  • New penalty amount: $10,314

Grounds to waive disapproval of Nurse Aide Training Program—reference to disapproval based on imposition of CMP not less than $5,000. (Not CMP authority but CMP imposition at this level determines eligibility to seek waiver of disapproval of Nurse Aide Training Program.):

  • Prior penalty amount: $5,000
  • New penalty amount: $10,314