§ 180.90 Civil monetary penalties. ( a ) *Basis for imposing civil monetary penalties.* CMS may impose a civil monetary penalty on a hospital identified as noncompliant according to § 180.70, and that fails to respond to CMS' request to submit a corrective action plan or comply with the requirements of a corrective action plan as described in § 180.80(d).
( b ) *Notice of imposition of a civil monetary penalty.* ( 1 ) If CMS imposes a penalty in accordance with this part, CMS provides a written notice of imposition of a civil monetary penalty to the hospital via certified mail or another form of traceable carrier.
( 2 ) This notice to the hospital may include, but is not limited to, the following: ( i ) The basis for the hospital's noncompliance, including, but not limited to, the following: ( A ) CMS' determination as to which requirement(s) the hospital has violated.
( B ) The hospital's failure to respond to CMS' request to submit a corrective action plan or comply with the requirements of a corrective action plan, as described in § 180.80(d).
( ii ) CMS' determination as to the effective date for the violation(s). This date is the latest date of the following: ( A ) The first day the hospital is required to meet the requirements of this part.
( B ) If a hospital previously met the requirements of this part but did not update the information annually as required, the date 12 months after the date of the last annual update specified in information posted by the hospital.
( C ) A date determined by CMS, such as one resulting from monitoring and assessment activities specified in § 180.70, or development of a corrective action plan as specified in § 180.80.
( iii ) The amount of the penalty as of the date of the notice.
( iv ) A statement that a civil monetary penalty may continue to be imposed for continuing violation(s).
( v ) Payment instructions.
( vi ) Intent to publicize the hospital's noncompliance and CMS' determination to impose a civil monetary penalty on the hospital for noncompliance with the requirements of this part by posting the notice of imposition of a civil monetary penalty on a CMS website.
( vii ) A statement of the hospital's right to a hearing according to subpart D of this part.
( viii ) A statement that the hospital's failure to request a hearing within 30 calendar days of the issuance of the notice permits the imposition of the penalty, and any subsequent penalties pursuant to continuing violations, without right of appeal in accordance with § 180.110.
( 3 ) If the civil monetary penalty is upheld, in part, by a final and binding decision according to subpart D of this part, CMS will issue a modified notice of imposition of a civil monetary penalty, to conform to the adjudicated finding.
( c ) *Amount of the civil monetary penalty.* ( 1 ) CMS may impose a civil monetary penalty upon a hospital for a violation of each requirement of this part.
( 2 ) CMS determines the daily dollar amount for a civil monetary penalty for which a hospital may be subject as follows: ( i ) For each day during Calendar Year 2021 that a hospital is determined by CMS to be out of compliance, the maximum daily dollar amount for a civil monetary penalty to which the hospital may be subject is $300. Even if the hospital is in violation of multiple discrete requirements of this part, the maximum total sum that a single hospital may be assessed per day is $300.
( ii ) Beginning January 1, 2022, for each day a hospital is determined by CMS to be out of compliance: ( A ) For a hospital with a number of beds equal to or less than 30, the maximum daily dollar civil monetary penalty amount to which it may be subject is $300, even if the hospital is in violation of multiple discrete requirements of this part.
( B ) For a hospital with at least 31 and up to and including 550 beds, the maximum daily dollar civil monetary penalty amount to which it may be subject is the number of beds times $10, even if the hospital is in violation of multiple discrete requirements of this part.
( C ) For a hospital with a number of beds greater than 550, the maximum daily dollar civil monetary penalty amount to which it may be subject is $5,500, even if the hospital is in violation of multiple discrete requirements of this part.
( D ) ( 1 ) CMS will use the most recently available, finalized Medicare hospital cost report to determine the number of beds for a Medicare-enrolled hospital, for purposes of determining the maximum daily dollar civil monetary penalty amount under paragraph (c)(2) of this section.
( 2 ) If the number of beds for the hospital cannot be determined according to paragraph (c)(2)(ii)(D)( 1 ) of this section, CMS will request that the hospital provide documentation of its number of beds, in a form and manner and by the deadline prescribed by CMS in a written notice provided to the hospital. Should the hospital fail to provide CMS with this documentation in the prescribed form and manner, and by the specified deadline, CMS will impose on the hospital the maximum daily dollar civil monetary penalty amount according to paragraph (c)(2)(ii)(C) of this section.
( 3 ) The amount of the civil monetary penalty will be adjusted annually using the multiplier determined by OMB for annually adjusting civil monetary penalty amounts under part 102 of this title.
( d ) *Timing of payment of civil monetary penalty.* ( 1 ) A hospital must pay the civil monetary penalty in full within 60 calendar days after the date of the notice of imposition of a civil monetary penalty from CMS under paragraph (b) of this section.
( 2 ) In the event a hospital requests a hearing, pursuant to subpart D of this part, the hospital must pay the amount in full within 60 calendar days after the date of a final and binding decision, according to subpart D of this part, to uphold, in whole or in part, the civil monetary penalty.
( 3 ) If the 60th calendar day described in paragraphs (d)(1) and (2) of this section is a weekend or a Federal holiday, then the timeframe is extended until the end of the next business day.
( e ) *Posting of notice.* ( 1 ) CMS will post the notice of imposition of a civil monetary penalty described in paragraphs (b) and (f) of this section on a CMS website.
( 2 ) In the event that a hospital elects to request a hearing, pursuant to subpart D of this part: ( i ) CMS will indicate in its posting, under paragraph (e)(1) of this section, that the civil monetary penalty is under review.
( ii ) If the civil monetary penalty is upheld, in whole, by a final and binding decision according to subpart D of this part, CMS will maintain the posting of the notice of imposition of a civil monetary penalty on a CMS website.
( iii ) If the civil monetary penalty is upheld, in part, by a final and binding decision according to subpart D of this part, CMS will issue a modified notice of imposition of a civil monetary penalty according to paragraph (b)(3) of this section, to conform to the adjudicated finding. CMS will make this modified notice public on a CMS website.
( iv ) If the civil monetary penalty is overturned in full by a final and binding decision according to subpart D of this part, CMS will remove the notice of imposition of a civil monetary penalty from a CMS website.
( f ) *Continuing violations.* CMS may issue subsequent notice(s) of imposition of a civil monetary penalty, according to paragraph (b) of this section, that result from the same instance(s) of noncompliance.
[84 FR 65602, Nov. 27, 2019, as amended at 86 FR 63998, Nov. 16, 2021; 88 FR 82185, Nov. 22, 2023]