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Attention Nursing Facilities: Immediate Imposition of Civil Money Penalties

Health Law Alert Randall R. Fearnow, Jaya F. White

Nursing homes continue to be a focus of the Centers for Medicare and Medicaid Services (CMS). CMS issued a memorandum titled, "Mandatory Immediate Imposition of Federal Remedies and Assessment Factors Used to Determine the Seriousness of Deficiencies for Nursing Homes" on July 22, 2016, which is effective September 1, 2016 for all surveys initiated thereafter. According to the memorandum, CMS' new policy requires the use of federal enforcement remedies when one or more residents suffer significant harm. 

In accordance with this guidance, CMS must issue civil money penalties whenever an immediate jeopardy (IJ) status is cited, without allowing a facility to correct deficiencies. It does not matter whether the IJ was due to past noncompliance, removed during the survey, or removed in a subsequent revisit before the twenty-third day, and CMS will impose these remedies "[i]rrespective of a state recommendation to impose or not impose a remedy."

Other circumstances will require CMS to impose remedies, including findings of actual harm or above on the current survey plus findings of actual harm or above on a prior survey (standard, life safety, or any type of survey between standard surveys), and any G level deficiency related to certain conditions of participation (resident behavior and facility practices, quality of life, or quality of care).

In making its initial assessment of the seriousness of deficiencies, CMS will at a minimum, look to whether a facility's deficiencies constitute (a) immediate jeopardy to resident health or safety, (b) actual harm that is not immediate jeopardy, (c) no actual harm with potential for more than minimum harm, but not immediate jeopardy, (d) no actual harm but with a potential for minimum harm, and (e) whether the deficiencies are isolated, constitute a pattern, or are widespread.

The memorandum also minimizes the role of the state survey agency by discounting or ignoring the state's recommendation of remedies.

For questions, please contact Randall R. Fearnow at [email protected]/(312) 715-5194, Jaya F. White at [email protected]/(312) 715-5242, or your local Quarles & Brady attorney.

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