THCA Notes

Volume XXXI, Number 9
September 2016

Interim Final Rule Increases CMP Amounts

The Department of Health and Human Services (HHS) issued an interim final rule increasing Civil Money Penalty (CMP) amounts, consistent with the requirements of the Bipartisan Budget Act (BBA) of 2015.

In November 2015, AHCA notified members that this provision had been included in the BBA, and we anticipated significant increases to the maximum penalties that could be imposed. The rule includes increases to CMPs that can be imposed by the Centers for Medicare & Medicaid Services (CMS), Office of the 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.

Interim Final Rules

According to the Office of Information and Regulatory Affairs, “interim final rules” are rules that are typically issued in conformity with statutory provisions allowing agencies to publish a final rule that becomes effective soon after publication – without going through the proposed rule stage. The “good cause” exception in the Administrative Procedure Act allows agencies to bypass public notice and comment on a rule when it would be impracticable, unnecessary, or contrary to the public interest. This process typically allows for public comment after the rule is published so that the agency still has an opportunity to consider public input and revise the rule accordingly. The HHS reason for issuing an interim final rule is because the statutory requirement for these increases “provides a clear formula for adjustment of the civil money penalties leaving agencies little room for discretion” (p. 61538 Federal Register / Vol. 81, No. 172).

This rule is effective immediately.

New Penalties
NOTE: The information below includes only those increases related to skilled nursing facility and nursing facility survey & certification CMPs.

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: $10

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 in 1819(h)(2)(B)(i) or 1919(h)(2)(A)(ii) of ”not less than $5,000” [Not CMP authority, but a specific CMP amount (CMP at this level) 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