IHCA/INCAL

News

Click here to access archived news articles.

ARTICLE

Date ArticleType
9/7/2016 Regulatory
Interim Final Rule Announced - Civil Monetary Penalties to Increase


This week, the Department of Health and Human Services (HHS) issued an interim final rule. The rule increases Civil Money Penalty (CMP) amounts, consistent with the requirements of Bipartisan Budget Act (BBA) of 2015.
 
According to the Office of Information and Regulatory Affairs, "interim final rules" are rules that are typically issued in conformity with statutory provisions allowing agencies to publish a final rule that becomes effective soon after publication - without going through the proposed rule stage. The "good cause" exception in the Administrative Procedure Act allows agencies to bypass public notice and comment on a rule when it would be impracticable, unnecessary, or contrary to the public interest. This process typically allows for public comment after the rule is published so that the agency still has an opportunity to consider public input and revise the rule accordingly. The HHS reason for issuing an interim final rule is because the statutory requirement for these increases "provides a clear formula for adjustment of the civil money penalties leaving agencies little room for discretion" (p. 61538 Federal Register / Vol. 81, No. 172).
 
This rule is effective immediately.
 
New Penalties
NOTE: The information below includes only those increases related to skilled nursing facility and nursing facility survey & certification CMPs.
 
- Penalty for failure of covered individuals to report to the Secretary and one or more law enforcement officials any reasonable suspicion of a crime against a resident or individual receiving care from a long-term care facility:

• Prior maximum penalty: $200,000        
• New maximum penalty: $217,490
 
- Penalty for failure of covered individuals to report to the Secretary and one or more law enforcement officials any reasonable suspicion of a crime against a resident or individual receiving care from a long-term care facility if such failure exacerbates the harm to the victim of the crime or results in the harm to another individual:

• Prior maximum penalty: $300,000         
• New maximum penalty: $326,235
 
- Penalty for a long-term care facility that retaliates against any employee because of lawful acts done by the employee or files a complaint or report with the State professional disciplinary agency against an employee or nurse for lawful acts done by the employee or nurse:

• Prior maximum penalty: $200,000         
• New maximum penalty: $217,490
 
- Penalty per day for a Skilled Nursing Facility or Nursing Facility that has a Category 2 violation of certification requirements:

• Prior minimum penalty: $50      
• New minimum penalty: $103

• Prior maximum penalty: $3,000
• New maximum penalty: $6,188
 
- Penalty per instance of Category 2 noncompliance by a Skilled Nursing Facility or Nursing Facility:

• Prior minimum penalty: $1,000             
• New minimum penalty: $2,063

• Prior maximum penalty: $10,000           
• New maximum penalty: $20,628
 
- Penalty per day for a Skilled Nursing Facility or Nursing Facility that has a Category 3 violation of certification requirements:

• Prior minimum penalty: $3,050             
• New minimum penalty: $6,291

• Prior maximum penalty: $10,000                      
• New maximum penalty: $20,628
 
- Penalty per instance of Category 3 noncompliance by a Skilled Nursing Facility or Nursing Facility:

• Prior minimum penalty: $1,000             
• New minimum penalty: $2,063

• Prior maximum penalty: $10,000           
• New maximum penalty: $20,628
 
- Penalty per day and per instance for a Skilled Nursing Facility or Nursing Facility that has Category 3 noncompliance with Immediate Jeopardy:

• Prior per day (Minimum): $3,050          
• New per day (Minimum): $6,291

• Prior per day (Maximum): $10,000        
• New per day (Maximum): $20,628

• Prior per instance (Minimum): $1,000   
• New per instance (Minimum): $2,063

• Prior per instance (Maximum): $10,000 
• New per instance (Maximum): $20,628
 
- Penalty per day of a Skilled Nursing Facility or Nursing Facility that fails to meet certification requirements. These amounts represent the upper range per day:

• Prior minimum penalty: $3,050             
• New minimum penalty: $6,291

• Prior maximum penalty: $10,000           
• New maximum penalty: $20,628
 
- Penalty per day of a Skilled Nursing Facility or Nursing Facility that fails to meet certification requirements. These amounts represent the lower range per day:

• Prior minimum penalty: $50
• New minimum penalty: $103

• Prior maximum penalty: $3,000            
• New maximum penalty: $6,188
 
- Penalty per instance of a Skilled Nursing Facility or Nursing Facility that fails to meet certification requirements:

• Prior minimum penalty: $1,000             
• New minimum penalty: $2,063

• Prior maximum penalty: $10,000           
• New maximum penalty: $20,628
 
- Grounds to prohibit approval of Nurse Aide Training Program-if assessed a penalty in 1819(h)(2)(B)(i) or 1919(h)(2)(A)(ii) of ''not less than $5,000'' [Not CMP authority, but a specific CMP amount (CMP at this level) that is the triggering condition for disapproval]:

• Prior penalty amount: $5,000                
• New penalty amount: $10,314
 
- Grounds to waive disapproval of nurse aide training program-reference to disapproval based on imposition of CMP ''not less than $5,000'' [Not CMP authority but CMP imposition at this level determines eligibility to seek waiver of disapproval of nurse aide training program]:

• Prior penalty amount: $5,000                
• New penalty amount: $10,314