CMS Issues Guidance and Tool for Applying Enforcement Remedies

The Centers for Medicare & Medicaid Services (CMS) recently released an Administrative Info memo (Admins Info: 13-21-NH) to Regional Offices (ROs) with an accompanying tool and instructions for calculating Civil Monitory Penalties (CMPs) when a determination is made for imposing fines.  According to the memo, the guidance, effective April 1 for all new enforcement cases, is designed to promote more consistent application of enforcement remedies for skilled nursing facilities (SNFs), nursing facilities (NFs), and dually-certified facilities (SNF/NFs).  All ROs are instructed to use the CMP Analytic Tool as a guide to choose, impose, and calculate CMPs.  Also included is guidance for the RO to consider when determining whether to impose a CMP or an alternate remedy regardless of whether or not the State Survey Agency recommended a CMP.

The memo states that failure of a State to recommend a CMP or other remedy, or a State policy of not recommending CMPs, are not acceptable reasons for not imposing such remedies.  In such cases, the RO must review the survey findings and impose the appropriate remedy.

CMS describes this effort as a six-month pilot, to be evaluated for the usefulness and overall effectiveness of the Analytic Tool and guidance.  At the end of six months, they will assess whether or not the tool and guidance have provided greater consistency in the use and application of CMPs and assess whether or not the imposition of CMPs had an effect on a facility's ability to achieve and sustain compliance with Federal requirements.  At that point, CMS will make any needed revisions to the tool and guidance as applicable.

VHCA has communicated our concerns to AHCA related to the guidance to ROs regarding imposition of CMPs and the possible impact on Virginia facilities based on survey data analyzed in our SMART database.  We have additionally expressed concerns about anticipated delays in revisits due to the Sequestration, which has the potential for increasing the amount of fines imposed on facilities.