CMS Urges States to Consider Civil Monetary Penalties for Illegal Discharges

Regulation | January 09, 2018 | by Janine Finck-Boyle

On December 22nd, 2017, CMS posted Survey and Certification (S&C) Memo 18-08-NH, outlining an initiative to address facility inititiated discharges that violate federal regulations.

According to the memo, discharges which violate Federal regulations continue to be one of the most frequent complaints made to the State Long-Term Care Ombudsman Programs.  CMS has begun an initiative to examine and mitigate facility-initiated discharges that violate federal regulations.  They will:

  • Develop training for surveyors
  • Identify best practices for nursing homes 
  • Evaluate enforcement options for violations

CMS is encouraging States to consider civil money penalties(CMPs) reinvestment proposals that would utilize funds to prevent improper facility-initiated discharges. Projects may include but are not limited to:

  • Projects designed to educate residents and families on their rights in relation to facility initiated discharge
  • Projects creating teams of health professionals who could provide immediate support to facilities around the state to reduce the risk of harm to self or others when a resident is exhibiting expressions or indications of distress. Such support may include consultation, resident assessments, and/or creating a more person-centered plan of care. This may be accomplished through in-person consultation or remotely with telemedicine;
  • Projects designed to educate facility staff on best practices for engaging residents and families in collaborative strategies such as person-centered environments and care plans to reduce resident distress
  • Formation and support of a collaborative group focusing on nursing home issues such as resident placement or transitional care, residents expressing or indicating distress, or medically complex residents such as those with dementia or delirium. Group members may consist of nursing homes, ombudsman, local hospitals, providers of long-term services and supports, the regional QIN-QIO, and other stakeholders who have a vested interest in the protection and quality of care nursing home residents receive. Appropriate use of CMP funds for this project may include but are not limited to a meeting space, facilitator, or administrative support for the group. Examples of organizations that could qualify include but are not limited to consumer advocacy organizations, resident or family councils, professional or state nursing home associations, private contractors, etc. We note that funds cannot be used to supplant activities that are already required or funded. For example, it may be appropriate for representatives from QIN-QIO or ombudsman organizations to participate in activities related to these projects, but their specific engagement shouldn’t be funded through CMP funds.