In order to participate in Medicare, a skilled nursing facility (“SNF”) must comply with the participation requirements in the federal law known as 42 C.F.R. Sections 483.1-483.75 (C.F.R. stands for Code of Federal Regulations). Compliance with these requirements is verified by nursing home surveys conducted by state health agencies. 42 C.F .R. Part 488, subpart E. Survey findings are reported in a document called a Statement of Deficiencies (SOD). A “deficiency” is “any failure to meet a participation requirement.” 42 C.F.R. Section 488.301.
The Centers for Medicare and Medicaid Services (“CMS”) may impose enforcement remedies on a SNF if it determines, on the basis of survey findings, that the facility is not in “substantial compliance” with one or more participation requirements. 42 C.F .R. Section 488.402(b). A facility is not in substantial compliance when it has a deficiency that creates the potential for more than minimal harm to one or more residents. 42 C.F.R. Section 488.301 (defining “substantial compliance” to mean the “level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm”). Under the regulations, the term “noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”
Section 483.25(k) provides that facilities “must ensure” that residents receive “proper treatment and care” for “special services.” Section 483.25(k)(6). All of the special services delineated in Section 483.25(k) are subject to the general quality of care requirement in the introductory statement in Section 483.25 that “[ e ]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.” Surveyors use a system of “tag numbers” to identify deficiencies under particular regulatory requirements in preparing the SOD. Section 483.25(k) deficiencies are cited under Tag F328.
A facility’s failure to follow its own policies (as well as its failure to comply with physician orders or to provide services in accordance with a plan of care based on a resident’s comprehensive assessment) can constitute a deficiency under Section 483.25.
The enforcement remedies that CMS may impose for a SNF’s noncompliance include a civil monetary penalty (“CMP”) in the range of $1,000 to $10,000 per each finding of noncompliance. 42 C.F.R. Section 488.438(a)(2). When CMS imposes a CMP, it determines the CMP amount based on, among other factors, the “seriousness” of the SNF’s noncompliance. 42 C.F.R. Sections 488.404(b), 488.438(f). The most serious noncompliance is that which puts one or more residents in “immediate jeopardy.” 42 C.F.R. Section 488.404 sets out the levels of scope and severity that CMS considers when selecting remedies and Section 488.438(a) authorizes the highest CMPs for immediate jeopardy (“immediate jeopardy” is a situation in which the SNF’s noncompliance with one or more program requirements “has caused or is likely to cause serious injury, harm, impairment, or death to a resident.” 42 C.F.R. Section 488.301).
A SNF may request a hearing before an Administrative Law Judge (“ALJ”) to contest a finding of noncompliance that has resulted in the imposition of a CMP or other enforcement remedy. 42 C.F.R. Sections 488.408(g)(l), 498.3(b)(l3). In the proceeding, CMS has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement.
If you or a loved one were injured as a result of negligent medical care or abuse while being treated in a nursing home, visit our website to be connected with medical malpractice attorneys in your local area who may be able to investigate your potential medical malpractice claim for you. Or call us toll free 800-295-3959. Turn to us when you don’t know where to turn.