Long Term Care Civil Money Penalty (CMP) Analytic Tool

Instructions for Use and Completion of the CMP Analytic Tool

All CMS locations are required to use the following instructions and the 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 applicable sections of the tool for the selected CMP type.

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 rather than a CMP, as appropriate.

In cases where the State 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 right to waive 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 provides logic, structure, and defined factors for mandatory consideration in the determination of CMPs. The tool should be used with this protocol, which provides a more detailed explanation of factors that lead to final CMP amounts.

Choosing the Type of CMP to be Imposed

After deciding to impose a CMP, 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 Agency's recommendation.

If a CMS location believes a Per Day CMP is warranted, it must obtain approval from the Survey and Operations Group leadership before imposing it.

  1. Impose a Per Instance CMP for past noncompliance.
  2. Impose one or more Per Instance CMPs:

    1. For findings of noncompliance that are cited at S/S of "G" or "J" and the deficient practice was a "singular event" of noncompliance and not abuse; or
    2. Where a facility has a good compliance history, and the noncompliance does not meet the criteria in the first Per Day CMP type below, a. through d.
    3. For noncompliance identified during the current survey that existed prior to the survey entry date and does not meet the criteria in the first Per Day CMP type below, a. through d.

    Note: Multiple Per Instance CMPs may be imposed per survey; refer to the Imposing Multiple Per Instance CMPs section below. 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. A 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 member did not follow the system. A "good compliance history" means that the facility has not had a S/S "G" level deficiency or above on any survey conducted in the past three (3) calendar years.

  3. Impose a Per Day CMP beginning on the earliest date the facility staff engaged in deficient practices in relation to the tag that is driving the CMP until substantial compliance is achieved if:

    1. IJ is cited with harm to a resident that is not a "singular event"; or
    2. Abuse (F600) was cited at actual harm or IJ and one or more residents suffered level 3 or 4 harm; or
    3. IJ is cited on the current survey, and the same tag was cited at a S/S of "G" or above on any prior survey within the last calendar year of the current survey; or
    4. Deficiencies at a S/S of "H" or "I"

    Note: 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.

  4. Impose a Per Day CMP beginning on the entry day of the survey until substantial compliance is achieved for all other situations.

    5. Note: 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).

CMPs for Past Noncompliance

Past noncompliance identified during the current survey means a deficiency citation at a specific survey F-tag or K-tag (with an S/S at "G" or above, or SQC findings at an S/S at "F") that meets all of the following three criteria:

  1. The facility was not in compliance with the specific regulatory requirement(s) (as referenced by the specific F-tag or K-tag) at the time the situation occurred;
  2. The noncompliance occurred after the exit date of the last standard (recertification) survey and before the survey (standard, complaint, or revisit) currently being conducted; and
  3. There is sufficient evidence to determine that the facility corrected the noncompliance and is in substantial compliance at the time of the current survey for the specific regulatory requirement(s), as referenced by the specific F-tag or K-tag.

See the State Operations Manual, Chapter 7, Section 7510.1 for additional information.

Default CMP Types

Per Instance CMPs

CMS Locations will generally impose a Per Instance CMP for noncompliance that still exists at the time of the survey but existed prior to the survey entry date.

However, Per Day CMPs will be imposed to address noncompliance where: (1) immediate jeopardy is cited with harm to a resident that is not a singular event; (2) abuse was cited at actual harm or immediate jeopardy, and one or more residents suffered level 3 or 4 harm; (3) immediate jeopardy is cited on the current survey, and the same tag was cited at a scope and severity of "G" or above on any prior survey within the last calendar year; or (4) deficiencies are cited at a scope and severity of "H" or "I."

Per Day CMPs

Per Day CMPs will be the default CMP imposed for noncompliance identified during the current survey and continuing thereafter that meets the above per day criteria.

Exceptions allowing Per Instance CMPs will be made for facilities with: (1) findings of noncompliance that are cited at scope and severity (S/S) of "G" or "J" and the deficient practice was a "singular event" of noncompliance and not abuse; or (2) facilities with good compliance histories.

Imposing Multiple Per Instance CMPs

CMS Locations can impose a Per Instance CMP for each instance(s) of noncompliance, or both per day and per instance CMPs may be imposed for the same survey. When multiple Per Instance CMPs are imposed for a survey, the total dollar amount of all CMPs for noncompliance on any single day may not exceed the statutory and regulatory maximum amount. It may not be less than the statutory and regulatory minimum amount for each day. When multiple per instance CMPs are imposed for different days of noncompliance, the total aggregate amount of all CMPs imposed for the survey may exceed the statutory and regulatory maximum (the statutory maximum applies only to the CMP amount for any single day). Refer to examples in Section 7301.1 of the State Operations Manual (Chapter 7), which illustrate how to impose a Per Day, or a Per Instance, or both CMPs.

Note: An Instance or instances of noncompliance means a factual and temporal occurrence(s) when a facility is not in substantial compliance with the requirements for participation. Each instance of noncompliance is sufficient to constitute a deficiency, and a deficiency may comprise multiple instances of noncompliance. (42 CFR 488.401)

Required Prior Approval for Any Adjustment to Calculated CMP Amount of More than Thirty-five Percent (35%)

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 as imposing a different CMP based on different or new deficiencies. Whenever such an adjustment is made, the analyst will annotate the tool during the original CMP calculation to explain the adjustment. 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 applied 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:

Note: When a CMS Location determines that a facility has failed to comply with the reporting requirement under F-Tag 609 (Reporting of Alleged Violations), as mandated by 42 CFR 483.12(c)(1) - Freedom from abuse, neglect, and exploitation, the CMS Location will increase the CMP by 10 percent.

If you have any questions, please contact the CMS Baltimore Enforcement Team.

For Training and General Examples ONLY3

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

  1. Life Safety Code (LSC) and/or maintenance issues considered detrimental to the health, safety and welfare of the residents. DAB CR3000

Quality of Care: 42 CFR 483.25

  1. Repeated failure to timely follow or clarify doctor's treatment orders (including for pressure sores). DAB 2390 and 2299
  2. Repeated failure to notify doctor of significant changes. DAB 2479 and 2304
  3. Repeated failure to notify physician of change which exposed resident to high likelihood of suffering grave harm. DAB 2304 and 2300
  4. Repeated failure to properly assess pressure sores. DAB 2426
  5. Multiple residents with severe weight loss (> 5% in a month) not detected or addressed despite care plan. DAB 2511
  6. Repeated failure to timely provide testing, care, treatment & services for residents receiving anticoagulant therapy. DAB 2411
  7. Repeated failure to closely monitor resident with compromised respiratory status, or failure to have necessary oxygen equipment. DAB, 2511, 2344, 2327, and 2299
  8. Failure to administer CPR to "full code" resident. DAB 2396 and 2336
  9. Repeated failure to implement interventions and supervise to prevent falls for resident with history of falls. DAB 2470, 2380, and 2357
  10. Repeated failure to adequately supervise resident with known choking problems to provide prompt intervention. DAB 2520 and 2192
  11. Repeated failure to provide blood sugar monitoring and care as ordered as ordered by physician. DAB 2375
  12. Repeated failure to supervise residents with known history of elopement. DAB 2450, 2446, 2434, and 2288
  13. Repeated transfer of residents by one aide despite care plan requiring two aides for transfer. DAB CR1863

Resident Behavior and Facility Practices: 42 CFR 483.13

  1. Staff failure to promptly report physical, verbal or sexual abuse. DAB 2256

Quality of Life: 42 CFR 483.15

  1. Egregious dignity issues. DAB 2513

 

Footnotes
  1. A CMP is changed when the circumstances initiating the original CMP imposed have changed and an increase or decrease to the original CMP may be warranted. For example, a facility has corrected some but not all of the original deficiencies and is still within its noncompliance cycle and the remaining deficiencies warrant an increase or decrease in the original CMP imposed. See section 7516.3 of the SOM.
  2. A noncompliance cycle begins with a recertification, complaint or temporary waiver revisit survey that finds noncompliance and ends when substantial compliance is achieved or the facility is terminated (or voluntarily terminates) from the Medicare and Medicaid programs. The noncompliance cycle cannot exceed 6 months. Once a remedy is imposed, it continues until the facility is in substantial compliance (and in some cases, until it can demonstrate that it can remain in substantial compliance), or is terminated from the programs.
  3. Note this information is provided only by way of providing some examples in which the DAB found culpability in the past.