Health and Disability

Under the federal Nursing Home Reform Law, the Centers for Medicare & Medicaid Services (CMS) has authority and the “responsibility”[1] to impose Civil Money Penalties (CMPs) and other enforcement actions at nursing homes that are found to violate federal standards of care (which are called Requirements of Participation).[2]  For the first time in more than 20 years – since the federal enforcement regulations were published in 1994[3] – CMS has increased the numbers and types of situations when CMPs must be imposed against facilities, without first giving the facilities an opportunity to correct their noncompliance.

Effective for all nursing home surveys completed on or after September 1, 2016, CMS’s new national policy mandates, under additional specified circumstances, the immediate imposition of CMPs at nursing homes.[4]  The new policy will be implemented through revisions to Chapter 7 of the State Operations Manual (SOM), Pub. 100-07.[5]

The most striking changes are requirements that CMS impose immediate CMPs when a facility is cited with:

(1) A harm-level deficiency (level G or above)[6] in three specified areas:

• 42 C.F.R. §483.13, Resident Behavior and Facility Practices [restraints],
• 42 C.F.R. §483.15, Quality of Life, or
• 42 C.F.R. §483.25, Quality of Care, and

(2) A harm-level deficiency in any other regulatory requirement on a previous survey, whether the prior survey was an annual survey, a Life Safety Code survey, or a complaint survey. 

These revisions to the so-called “double G” policy, which currently limits the immediate imposition of CMPs to facilities that were cited with G-level deficiencies in two consecutive annual surveys,[7] are significant, especially when viewed historically.