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July 09, 2020

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CMS Increase in Mandated Nursing Facility Civil Monetary Penalties

The Centers for Medicare & Medicaid Services (CMS) recently published a letter to State Survey Agency Directors describing revisions to Chapter 7 of the State Operations Manual (SOM) to reflect mandatory disciplinary requirements for skilled nursing facilities, nursing facilities and dually participating facilities.

Effective September 1, 2016, CMS regional offices (ROs) are required to impose civil monetary penalties (CMPs) in the following circumstances:

  • A finding of immediate jeopardy (J, K or L level deficiencies)

  • A finding of deficiencies of substandard quality of care that are not immediate jeopardy

  • A finding of a G level deficiency in Resident Behavior and Facility Practices, Quality of Life, or Quality of Care

  • A finding of actual harm or above (G level deficiencies and above) on the current survey in addition to having findings of actual harm on the immediately preceding survey

  • A finding of an F level deficiency or higher at a facility classified as a Special Focus Facility

In these instances, facilities will not be provided with an opportunity to correct the deficiencies before they are assessed. Survey agencies must enter the surveys into an automated system within five days of the original notice to the facility and transfer the case to the respective RO to impose the mandatory remedies, regardless of the state recommendation and to consider if additional penalties may apply.

CMS also revised the potential remedies for less severe deficiencies, including no assessed remedies for level A, B and C citations, and the addition of “Termination” and “Temporary Management” as possible remedies under Category 2 remedies.

The revisions are the first time since the federal enforcement regulations were published that there has been an increase in situations that require mandated CMPs. These changes show a concerted effort by CMS to ensure nursing facility compliance with CMS requirements. 

© 2020 McDermott Will & EmeryNational Law Review, Volume VI, Number 257


About this Author

Patrick Callaghan, Health Care Attorney, McDermott Law Firm

Patrick Callaghan is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  He focuses his practice on health law matters.

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Monica Wallace, regulatory counseling lawyer, administrative attorney, McDermott Will Emery, law firm

Monica A. Wallace is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  She focuses her practice on complex regulatory and transactional counseling to health care organizations such as health systems, hospitals, physician groups, integrated delivery systems, durable medical equipment prosthetics and orthotics suppliers, home health agencies, and other health care providers. Monica’s regulatory practice focuses on the Anti-Kickback and Stark laws; Medicare and Medicaid reimbursement and billing; legal assessments and compliance programs; and other general regulatory matters including licensure, survey/certification, and accreditation. Her transactional practice includes mergers, acquisitions and affiliations; divestitures; hospital/physician joint ventures; and corporate reorganization.


Joel C. Rush is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office. He focuses his practice on transactional and corporate matters affecting health care organizations, including mergers and acquisitions, affiliations, joint ventures and venture capital investments.  Joel has extensive experience working on hospital and health system mergers and acquisitions. Previously, Joel was an associate in the healthcare and corporate services groups in the Washington, D.C. office of a national law firm. Joel graduated...

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