On July 28, 2021, CMS issued a memo stating that they are removing the guidance they issued in 2017 that instructed CMS Locations to impose civil monetary penalties (CMPs) for prior noncompliance solely on a per-instance basis. CMS states they will now retain the discretion to impose a per-day CMP where appropriate to address specific circumstances of prior noncompliance. This news comes after a lawsuit was filed by consumer advocacy groups against CMS. The lawsuit alleges that reduced fines put nursing facility residents at risk by weakening enforcement of the Nursing Home Reform Act (NHRA).
This change in policy creates a great threat to our already underfunded industry. In Fiscal Year 2016 CMS issued 1,765 Per-day CMPs and 961 Per Instance CMPs. The average dollar amount for per-day CMPs in FY2016 was $53,871 with average days in effect of 58 days. At that time the average dollar amount of per instance CMPs issued was $3,137. This year (FY2021) the average per-day CMP dollar amount is $12,565 with an average day in effect of 6 days and the average per instance CMP dollar amount is $10,076. (Source: CMS Quality, Certification and Oversight Reports). In addition to this change the enhanced enforcement for infection control deficiencies also continues to be in effect, which includes (1) enforcement of directed plan of corrections for any Infection Control deficiency cited and (2) denial of payment for new admissions and (3) civil monetary penalties for repeat infection control citations or citations at harm or Immediate Jeopardy level.