Skilled nursing facilities have long been subject to civil money penalties (CMPs).  Depending on where the facility is located, it could mean CMPs of hundreds of thousands of dollars or less than $10,000 (with a waiver) for the same type of deficiency.   No longer.  Effective April 1, 2013, Regional Offices (RO) for the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) will now be required to:

  • Use CMS’s Guidance and CMP Analytical Tool when the RO has determined that a CMP is the appropriate enforcement;
  • Must evaluate each case where is deficiency is cited at a scope and severity of “G” or above or an “F” when it constitutes substandard quality of care to determine whether to impose a CMP in addition to or instead of other available remedies; and
  • Use the new tool to calculate new or changed CMPs imposed on a facility within a noncompliance survey cycle.
This directive in NOT found on CMS’s website but is available here.  Additionally, CMS’s CMP Analytical Tool is available here.
Although CMS notes that its tool is not “dispositive” and “does not replace professional judgment or the application of other pertinent information in arriving at a CMP form and amount,” it is clear that CMS expects the ROs to use the calculator to conform with other regions.  According to CMS, the calculator provides a logic, structure, and defined factors for mandatory consideration in the determination of CMPs.

CMS notes that failure of a State to recommend a CMP or other remedy, or a State policy for not recommending CMP, are not acceptable reasons for not imposing such remedies.

Our Insight. Your Advantage.  We have represented skilled nursing facilities throughout the country and have seen the wide variations in CMPs.  In one part of the country, when a ”per day” fine is imposed, the CMP was $600,000 whereas in another part of the country, where a “per instance” CMP was imposed, the CMP was only $10,000 under very similar circumstances.  When very large fines are involved, often the matter can be settled for less than the automatic 35% reduction allowed for waiving the right to appeal.  Nursing facilities will need to consider their options carefully but also take care not to miss any filing deadlines.