CMP Analytic Tool >> Instructions
All CMS locations are required to use the following instructions and CMP Analytic Tool: (1) to choose the appropriate type or types of CMPs 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 locations must complete all sections of the tool that apply to the type of CMP selected.
Consistent with CMS policy on immediate imposition of remedies, CMS locations must evaluate each case and consider whether or not to impose a CMP in addition to or instead of other remedies for deficiencies with a scope and severity (S/S) of "G" or above, and for deficiencies with a S/S of "F" when Substandard Quality of Care (SQC) is cited. For deficiencies cited at other S/S levels, the CMS location should consider imposing alternative remedies other than a CMP as appropriate.
For cases in which the State Survey Agency fails to recommend a CMP, the CMS location must evaluate whether or not a CMP remedy is warranted. In such cases, the CMS location must review the survey findings and impose the appropriate remedy(ies) regardless of a State's recommendation or lack thereof.
CMS locations must use this tool in the calculation of each new or changed1 CMP imposed on a facility within a noncompliance cycle2. Each time a survey is conducted within an already running noncompliance cycle and a CMP is imposed, the facility is given appeal rights and may exercise its waiver of right to a hearing (refer to section 7526 of the State Operations Manual (SOM), Chapter 7).
This tool is not dispositive, and does not replace professional judgment or the application of other pertinent information in arriving at a final CMP amount. However, it does provide logic, structure, and defined factors for mandatory consideration in the determination of CMPs. The tool should be used with this protocol, which more fully explains factors that lead to final CMP amounts.
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.
Note: Never impose Per Day and Per Instance CMPs for the same survey. If the tool leads you to impose both (for example you have past noncompliance at F314 and IJ with harm at F223 on the same survey) impose only the Per Day CMP for F223 and not the Per Instance CMP for the F314 tag.
Notes: Only impose multiple Per Instance CMPs for different tags, not for the same tag. Singular Event is a one-time event in which one resident was harmed in an isolated incident (one incident) that is not the result of a pattern or widespread issues. Singular event is an event that is not the result of a system breakdown but one in which an unforeseen incident still occurred. For example, there were systems in place to prevent an incident, but one staff did not follow the system. A "good compliance history" means that the facility has not had a S/S "G" level deficiency or above in the past three (3) calendar years.
Notes: Abuse is usually cited at the primary abuse tag, F600 (F223 in the original F-tag system). However, if abuse occurred and is cited at other tags, such as F606 or F607, (F225/F226 in the original F-tag system), then impose a Per Day CMP on the earliest date the facility staff engaged in deficient practices in relation to that tag. Please refer to the official crosswalk of original F-tags to new F-tags. The current survey can be any type of survey (complaint, recertification, revisit or life safety code).
Notes: Examples of situations where the Per Day CMP could begin on the first day of the survey include: All S/S "G" level tags that are not abuse; IJ tags where no resident was harmed (if the same tag was not cited at S/S "G" level or above within the last calendar year).
Past noncompliance identified during the current survey means a deficiency citation at a specific survey data tag (F-tag or K-tag) (with a S/S at "G" or above, or SQC findings at a S/S at "F") that meets all of the following three criteria:
See the State Operations Manual, Chapter 7, Section 7510.1 for additional information.
If the CMS location believes that the circumstances involved in the specific case require an adjustment to the CMP amount which was calculated using this Tool, the CMS location may increase or reduce the CMP by NO MORE THAN 35 percent. If the CMS location makes such an adjustment, in each instance, it must provide a rationale for that adjustment when completing the tool. An adjustment to the CMP is not the same thing as imposing a different CMP based on different or new deficiencies. Whenever such an adjustment is made, the analyst will annotate the tool when calculating the original CMP to explain why an adjustment was made. For a newly imposed or revised CMP within the same noncompliance cycle, a separate tool is to be completed.
Note: If the CMS location believes that a calculated CMP should be adjusted by more than 35 percent, it must consult with and obtain prior approval from the Survey and Operations Group leadership before making the adjustment.
A 35 percent adjustment that the CMS location may make is not the same as, and does not affect, the 35 or 50 percent reductions made to the total CMP amount based on 42 CFR 488.436 and 488.438. The facility will receive a 35 percent reduction if it timely waives its right to an Administrative Hearing. The facility should be notified that it will receive a 50 percent reduction if all of the following conditions are met:
If you have any questions regarding the memorandum, Tool or guidance, please contact CMS Baltimore.
Effective Date: Immediately for all enforcement cases when the CMS location determines that a CMP is an appropriate enforcement remedy. This guidance should be communicated to all CMS location and State Survey Agency survey, certification and enforcement staff, their managers and the State/CMS location training coordinators within 30 days of this memorandum.
The following information provides some examples of situations in which the Departmental Appeals Board (DAB) and/or the DAB Administrative Law Judges (ALJs) determined that there was facility culpability. The DAB and ALJ decisions cited below were issued before the 2016 update to the federal regulations, so the regulatory references listed below are those that existed at the time those decisions were issued.
Physical Environment: 42 CFR 483.70
Quality of Care: 42 CFR 483.25
Resident Behavior and Facility Practices: 42 CFR 483.13
Quality of Life: 42 CFR 483.15