Long Term Care Civil Money Penalty (CMP) Analytic Tool

Introduction

CMS locations have a variety of enforcement remedies to choose from in addressing noncompliance by a facility. These remedies include civil money penalties, denial of payment for all individuals, discretionary denial of payment for new admissions, mandatory denial of payment (new admissions 3-months), directed in-service training, directed plan of correction, discretionary termination, mandatory termination, state monitoring, temporary management, transfer of residents, and transfer of residents/closure of facility. Not all situations require the same remedies. The CMS location should use the enforcement remedy most appropriate in considering the level/severity of harm to the resident, the context behind the facility noncompliance, and the type of enforcement that has the best chance of the facility achieving future compliance.

All CMS locations are required to use the following CMP Analytic Tool and Instructions (opens in a new window): (1) to choose the appropriate type of CMP to be imposed; and (2) to calculate the CMP amount, when the CMS location determines that a CMP is an appropriate remedy to impose. The CMS location must complete all sections of the tool that apply to the type of CMP selected. The CMP Analytic Tool steps and instructions are also available in the CMP Analytic Tool User's Guide (PDF). Though remedies are usually imposed on Level 3 and Level 4 deficiencies, depending upon the circumstances, CMS locations may impose CMPs for level 2 deficiencies based on the factors listed in 42 CFR 488.404 and 488.438(f).

Notes: Use a separate calculation for each Life Safety Code (LSC) CMP, Health Survey CMP, or any new or changed CMP within a noncompliance cycle. For factors that may result in an increase in the CMP (e.g., culpability, facility history of noncompliance, etc.), only calculate those factors one time for each survey. Apply the added dollar amounts to each CMP you impose per survey, unless otherwise instructed. Always use the tool and User's Guide at this site (save in your bookmarks/favorites) for the most current version. Required fields are marked with an asterisk.*

Select the Calculation Type

Calculation Type:

Select "Final" if in compliance or terminated.

Enter the Case Information

Enter full name (first and last name).

Enter the date in mm/dd/yyyy format.

Select the CMP Type (Per Day or Per Instance)

Reference: Section 1819(h)(2)(B)(ii) of the Social Security Act; 42 CFR 488.404 and 488.438.

The factors to consider in this tool for each type of CMP are intended to determine amounts for each CMP to be imposed. Also, if a Life Safety Code (LSC) deficiency is the basis for the CMP, the whole Tool algorithm applies to the LSC deficiencies, not the health deficiencies.

Note: After deciding that a CMP will be imposed, CMS locations must use the tool and its guidance to decide whether to impose a Per Instance (PI) CMP versus a Per Day (PD) CMP, regardless of the State Survey Agency's recommendation. See additional instructions to determine Per Day or Per Instance selection.

Note: This tool is to be used to calculate an amount for each new or changed CMP imposed against a facility within a noncompliance cycle.

CMP Type:

For each instance where a CMP will be imposed for a facility, select only one CMP Type to be used: Per Day or Per Instance.

Select the CMP Start and End Dates (Only for Per Day CMPs)

Per Day CMP Start Date - Per Day CMPs will either begin on the entry date of the survey or before the survey began, specifically on the earliest date the facility staff engaged in deficient practices in relation to the tag that is driving the CMP. Refer to the "Select the CMP Type" to determine when Per Day CMPs start. If the tool directs you to start a CMP before the survey began, but you cannot determine that date by reviewing the 2567, start the CMP on the entry date of the survey.

Per Day CMP End Date - Per Day CMPs should end the day before the date substantial compliance is achieved. For IJs that last one day only, impose the IJ-level CMP for that day. For IJs that last more than one day, do not impose the IJ level CMP on the day that IJ was removed.

Enter the date in mm/dd/yyyy format.

Enter the date in mm/dd/yyyy format. The CMP End Date is required for Final Calculations.

Select the CMP Base Amount

Reference: 42 CFR 488.404(b).

Select the highest S/S level for the base Calculated CMP Amount.

Calculated CMP Amount: $

Is There a History of Facility Noncompliance?

Reference: 42 CFR 488.438(f)(1).

If a facility has a had any deficiencies cited at a S/S of "G" or above on any survey (standard, complaint, or revisit) conducted in the past 3 calendar years, add an amount indicated below based on the S/S pattern/trend of a facility's noncompliance history.

Select the amount to add to the Calculated CMP Amount.

Calculated CMP Amount: $

Are There Repeated Deficiencies?

Reference: 42 CFR 488.438(d)(2)(3).

Increase the CMP penalty amount for any repeated deficiencies for which a CMP penalty was previously imposed. "Repeated Deficiencies" are deficiencies within the same regulatory grouping of requirements under which deficiencies were cited at the last survey of the same survey type (Health, LSC, EP), subsequently corrected, and cited again at the next survey.

Select the amount to add to the Calculated CMP Amount based on the highest S/S level of the repeat deficiencies.

Calculated CMP Amount: $

Are There Multiple Deficiencies?

Reference: 42 CFR 488.404(c)(1).

Survey findings that include multiple deficiencies can indicate a systemic problem relating to the noncompliance, as opposed to a survey that identifies a singular or a few incident(s) of noncompliance. For surveys with 7 or more deficiencies, add an amount between the ranges indicated below. The scope and severity of the deficiencies should also be considered. As the number increases, and/or the level of S/S increases, the amount added should increase.

Select the amount to add to the Calculated CMP Amount based on the guidance above.

Calculated CMP Amount: $

Is Facility Culpability a Factor?

Reference: 42 CFR 488.438(f)(4).

Add an amount indicated below if culpability is a factor above the base level of noncompliance, and is evidenced in the 2567. Culpability as defined in the regulation refers to situations which include, but are not limited to, neglect, indifference, or disregard for resident care, comfort or safety.

Select the amount to add to the Calculated CMP Amount based on the highest S/S level cited.

Calculated CMP Amount: $

Is an Additional Adjustment to the Calculated CMP Amount Necessary?

The Calculated CMP Amount may be adjusted by no more than 35%. If an Adjusted Calculated CMP Amount is used, provide a rationale below. If the CMS location believes that the Calculated CMP Amount should be adjusted by more than 35%, they must consult with and obtain prior approval from the Survey and Operations Group leadership before making any further adjustment using this tool.

Select a Percentage to Adjust the Calculated CMP Amount:

Enter a dollar amount (no cents).

Adjusted Calculated CMP Amount Rationale:

Adjusted Calculated CMP Amount: $

Does the Calculated CMP Amount or Adjusted Calculated CMP Amount Exceed the Maximum Regulatory Amount?

Select the highest permissible CMP amount.

Reduced Calculated CMP Amount: $

Determine the Final Calculated CMP Amount

The Final Calculated CMP Amount is determined using one of the following:

Final Calculated CMP Amount, Per Day: the above amount multiplied by the Total CMP Days, less any Discount.

Final Calculated CMP Amount, Per Instance: The above amount, less any Discount.

Discounts Applied to Final Calculated CMP Amount:

Final Calculated CMP Amount: $

Enter Any Additional Case-Related Information (Optional)

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