(1) Interim Final Rule; Adjustment of Civil Monetary Penalties for Inflation (9/6/16) – Department of Health and Human Services (HHS) Office of the Assistant Secretary for Financial Resources; Centers for Medicare & and Medicaid Services (CMS); Office of the Inspector General (OIG); Administration for Children and Families; (2) CMS Memo – Notice of Interim Final Rule (IFR) Adjusting Civil Monetary Penalties (CMPs) [9/8/16].
This Interim Final Rule (IFR) adjusts CMP amounts for inflation for nursing homes, home health agencies (HHAs) and other providers and suppliers. The Centers for Medicare and Medicaid Services (CMS) Letter provides background on the IFR and includes Appendix A – Calculation of CMP Adjustments.
- The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) was signed into law on November 2, 2015. The 2015 Act amends the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), “…enacted to improve the effectiveness of federal CMPs.”
- Prior to the 2015 Act, CMPs authorized under the Social Security Act were exempt from inflation adjustments.
- Section 4(b) of the 2015 Act requires HHS agencies to adjust the level of applicable CMPs with an initial “catch-up” adjustment through an interim final rule (IFR) and to make subsequent annual adjustments for inflation.
- The “catch-up” adjustments are to be based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year a CMP was originally established, and the CPI-U for October 2015.
- Subsequent annual adjustments are to be based on the percentage change of the CPI-U for the month of October of a current year that exceeds the CPI for the month of October of the previous year.
- The annual adjustments are to be published in the Federal Register no later than January 15 of each calendar year beginning in 2017.
The 9/6/16 IFR includes an initial catch-up adjustment for CMPs that may be imposed for noncompliance by SNF/NFs, HHAs, and Clinical laboratories. The catch-up adjustments are reflected in a table showing how all CMPs are increased in new section 45 CFR Part 102 [See Appendix A – Calculation of CMP Adjustments].
- The new CMP amounts are applicable to any CMP imposed on or after 9/6/16 (effective date of the IFR) for noncompliance that occurred on or after 11/2/15 [enactment of the 2015 amendments].
- CMS advises the new amounts are applicable on or after 11/2/15 ‘…regardless of when the noncompliance was identified.’ “For example, if a survey identifying noncompliance is completed 7/25/16, but the CMP isn’t imposed until after 9/6/16, the new CMP amounts will be used to calculate the penalty imposed on the provider.”
- For SNFs, NFs and SNF/NFs, the CMP Tool instructions and calculations will be updated to reflect these changes.
- CMP amounts will also be posted on the Survey and Certification website.
Special thanks to Evvie Munley for this article. Learn more on the LeadingAge site here.
