Per Day Civil Money Penalties are Back for Nursing Facilities

In important news for nursing home quality care, the Center for Medicare & Medicaid Services (CMS) has rescinded 2017 guidance, allowing the reinstatement of per day civil money penalties (CMPs) for deficiencies that reflect past noncompliance.[1]  The rescission also removes the CMP Analytic Tool, which CMS locations (formerly known as Regional Offices) use in determining when and how to impose CMPs against facilities.

CMS describes the change, which it made in early July but did not announce publicly,[2] as follows:

CMS is hereby removing the July 7, 2017 Memo (S&C 17-37-NH) from its guidance repository. In that memo, CMS instructed CMS Locations (formerly “Regional Offices”) to impose civil monetary penalties for prior noncompliance solely on a per-instance basis. Upon further consideration, CMS has determined that the agency should retain the discretion at this time to impose a per-day penalty where appropriate to address specific circumstances of prior noncompliance. We will work within CMS operations to apply such discretion, and any final notice of noncompliance will set forth the penalty, and the reason(s) for imposing per-instance or per-day penalties.[3]

Although the text of the rescission refers only to the imposition of CMPs for deficiencies reflecting past noncompliance, CMS’s simultaneous rescission of the CMP Analytic Tool suggests that CMS may be more broadly revising the Trump Administration’s July 7, 2017 sub-regulatory guidance.

The survey and certification letter released on July 7, 2017 explicitly withdrew the CMP Analytic Tool issued by the Obama Administration in 2014,[4] which made per day CMPs the default CMP in all situations.  Reversing the Obama policy, the 2017 guidance made lower per instance CMPs the default.  The guidance also dramatically limited per day CMPs, when they were used.  Per day CMPs could start only at the time of the survey, rather than at an earlier time when the facility’s noncompliance actually began, as the federal regulations permit,[5] and could not be used when the facility had a “good compliance history” or when only a “single isolated incident causes harm to a resident.” The 2017 guidance and tool made other changes that were intended to reduce the imposition and size of financial penalties, and they did. Since the July 2017 guidance, a larger number per instance CMPs than per day CMPs have been imposed, as reported on the federal website Quality, Certification & Oversight Reports (QCOR).[6]

Year	Total number of per day CMPs	Average per day CMP	Total number of per instance CMPs	Average per instance CMP
2016	2,004	$61,223.92	1,072	$3,695.25
2018	1,255	$66,466.39	2,029	$9,470.62
2019	1,482	$69,032.22	1,916	$9,865.73

On January 19, 2021, the National Consumer Voice for Quality Long-Term Care and California Advocates for Nursing Home Reform, represented by the AARP Foundation and Constantine Cannon, filed a lawsuit challenging the limitation on CMPs for past noncompliance.[7]

The AARP Foundation applauded the Biden Administration’s action. The Center for Medicare Advocacy joins in the thanks and looks forward to more Biden Administration actions undoing the Trump Administration’s dismantling of the nursing home oversight system.

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[1] CMS, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,”  https://www.hhs.gov/guidance/document/revision-civil-money-penalty-cmp-policies-and-cmp-analytic-tool.  The State Operations Manual, Chapter 7, describes “past noncompliance” as a deficiency that occurred and was fully corrected by the facility between surveys.  State Operations Manual, Chapter 7, §7510.1, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.
[2] Reed Abelson, “Nursing Homes May Face Steeper Safety Fines; The Biden administration has quietly undone a Trump policy that severely restricted penalties imposed on facilities that violated safety standards,” The New York Times (Jul. 29, 2021), https://www.nytimes.com/2021/07/28/health/biden-nursing-homes-safety-fines.html?searchResultPosition=1
[3] “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,”  https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Policy-and-Memos-to-States-and-Regions-Items/Survey-and-Cert-Letter-17-37
[4] CMS, “Civil Money Penalty (CMP) Analytic Tool and Submission of CMP Tool Cases,” S&C: 15-16-NH (Dec. 19, 2014), https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-16.pdf
[5] 42 C.F.R. §488.440(a)(1) (“The per day civil money penalty may start accruing as early as the date that the facility was first out of compliance, as determined by CMS or the State.”)
[6] https://qcor.cms.gov/enf_cmp.jsp?which=0&report=enf_cmp.jsp
[7] National Consumer Voice for Quality Long-Term Care v. Alex M. Azar II, Case No. 21-162 (D.D.C. filed Jan. 18, 2021).  The complaint is available at https://www.aarp.org/content/dam/aarp/aarp_foundation/litigation/2021/nat-consumer-voice-v-us-dept-hhs-complaint.pdf