§ 488.438 Civil money penalties: Amount of penalty. ( a ) *Amount of penalty.* ( 1 ) The penalties are within the following ranges, set at $50 increments: ( i ) *Upper range.* Penalties in the range of $3,050-$10,000 as adjusted annually under 45 CFR part 102 per day are imposed for deficiencies constituting immediate jeopardy, and as specified in paragraph (d)(2) of this section.
( ii ) *Upper range.* Penalties in the range of $50-$3,000 as adjusted annually under 45 CFR part 102 per day are imposed for deficiencies that do not constitute immediate jeopardy, but either caused actual harm, or caused no actual harm, but have the potential for more than minimal harm.
( 2 ) *Per instance penalty.* When penalties are imposed for an instance of noncompliance, the penalties will be in the range of $1,000-$10,000 as adjusted annually under 45 CFR part 102 per instance.
( b ) *Basis for penalty amount.* The amount of penalty is based on CMS's or the State's assessment of factors listed in paragraph (f) of this section.
( c ) *Decreased penalty amounts.* ( 1 ) Except as specified in paragraph (d)(2) of this section, if immediate jeopardy is removed, but the noncompliance continues, CMS or the State will shift the penalty amount imposed per day to the lower range.
( 2 ) When CMS determines that a SNF, dually-participating SNF/NF, or NF-only facility subject to a civil money penalty imposed by CMS self-reports and promptly corrects the noncompliance for which the civil money penalty was imposed, CMS will reduce the amount of the penalty by 50 percent, provided that all of the following apply — ( i ) The facility self-reported the noncompliance to CMS or the State before it was identified by CMS or the State and before it was reported to CMS or the State by means of a complaint lodged by a person other than an official representative of the nursing home;
( ii ) Correction of the self-reported noncompliance occurred on whichever of the following occurs first: ( A ) 15 calendar days from the date of the circumstance or incident that later resulted in a finding of noncompliance; or
( B ) 10 calendar days from the date the civil money penalty was imposed;
( iii ) The facility waives its right to a hearing under § 488.436;
( iv ) The noncompliance that was self-reported and corrected did not constitute a pattern of harm, widespread harm, immediate jeopardy, or result in the death of a resident;
( v ) The civil money penalty was not imposed for a repeated deficiency, as defined in paragraph (d)(3) of this section, that was the basis of a civil money penalty that previously received a reduction under this section; and
( vi ) The facility has met mandatory reporting requirements for the incident or circumstance upon which the civil money penalty is based, as required by Federal and State law.
( 3 ) Under no circumstances will a facility receive both the 50 percent civil money penalty reduction for self-reporting and correcting under this section and the 35 percent civil money penalty reduction for waiving its right to a hearing under § 488.436.
( d ) *Increased penalty amounts.* ( 1 ) Before a hearing requested in accordance with § 488.431(d) or § 488.432(a), CMS or the State may propose to increase the per day penalty amount for facility noncompliance which, after imposition of a lower level penalty amount, becomes sufficiently serious to pose immediate jeopardy.
( 2 ) CMS does and the State must increase the per day penalty amount for any repeated deficiencies for which a lower level penalty amount was previously imposed, regardless of whether the increased penalty amount would exceed the range otherwise reserved for nonimmediate jeopardy deficiencies.
( 3 ) Repeated deficiencies are deficiencies in the same regulatory grouping of requirements found at the last survey, subsequently corrected, and found again at the next survey.
( e ) *Review of the penalty.* When an administrative law judge or State hearing officer (or higher administrative review authority) finds that the basis for imposing a civil money penalty exists, as specified in § 488.430, the administrative law judge or State hearing officer (or higher administrative review authority) may not— ( 1 ) Set a penalty of zero or reduce a penalty to zero;
( 2 ) Review the exercise of discretion by CMS or the State to impose a civil money penalty; and
( 3 ) Consider any factors in reviewing the amount of the penalty other than those specified in paragraph (f) of this section.
( f ) *Factors affecting the amount of penalty.* In determining the amount of penalty, CMS does or the State must take into account the following factors: ( 1 ) The facility's history of noncompliance, including repeated deficiencies.
( 2 ) The facility's financial condition.
( 3 ) The factors specified in § 488.404.
( 4 ) *The facility's degree of culpability. Culpability* for purposes of this paragraph includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.
[59 FR 56243, Nov. 10, 1994, as amended at 64 FR 13360, Mar. 18, 1999; 68 FR 46072, Aug. 4, 2003; 76 FR 15127, Mar. 18, 2011; 81 FR 61563, Sept. 6, 2016]