(a) If a provider or supplier is found to be deficient in one or more of the standards in the conditions of participation, conditions for coverage, or conditions for certification or requirements, it may participate in, or be covered under, the Medicare program only if the provider or supplier has submitted an acceptable plan of correction for achieving compliance within a reasonable period of time acceptable to CMS. In the case of an immediate jeopardy situation, CMS may require a shorter time period for achieving compliance.
(b) The existing deficiencies noted either individually or in combination neither jeopardize the health and safety of patients nor are of such character as to seriously limit the provider's capacity to render adequate care.
(c)(1) If it is determined during a survey that a provider or supplier is not in compliance with one or more of the standards, it is granted a reasonable time to achieve compliance.
(2) The amount of time depends upon the—
(i) Nature of the deficiency; and
(ii) State survey agency's judgment as to the capabilities of the facility to provide adequate and safe care.
(d) Ordinarily a provider or supplier is expected to take the steps needed to achieve compliance within 60 days of being notified of the deficiencies but the State survey agency may recommend that additional time be granted by the Secretary in individual situations, if in its judgment, it is not reasonable to expect compliance within 60 days, for example, a facility must obtain the approval of its governing body, or engage in competitive bidding.
[59 FR 56237, Nov. 10, 1994, as amended at 77 FR 67164, Nov. 8, 2012; 80 FR 29839, May 22, 2015; 86 FR 62425, Nov. 9, 2021]
Notes of Decisions
Aurora Chi. Lakeshore Hosp. v. Azar, 356 F. Supp. 3d 749 (E.D. Ill. 2018).
· cites it 3× “" Specifically, Aurora appears to contend that CMS did not give Aurora notice or the opportunity to take corrective action, as it contends is required by 42 C.F.R. § 488.28 . That section provides that if a provider is found to be deficient in one or more of the standards in the…”
Nat'l Ass'n of Psychiatric Health Sys. v. Shalala, 120 F. Supp. 2d 33 (D.D.C. 2000).
· cites it 2× “42 C.F.R. § 488.28 (a), (d). If a hospital fails, within a reasonable period of time, to implement this plan or come in compliance with the COPs, the Secretary may terminate or refuse to renew the hospital’s provider agreement for participation in the Medicare program.”
Evelyn v. v. Kings Cnty. Hosp. Ctr., 956 F. Supp. 288 (E.D.N.Y 1997).
· cites it 3× “” 42 C.F.R. § 488.28 (a). Ordinarily, a deficient hospital is expected to bring itself into compliance with federal conditions within 60 days, but the Secretary may grant additional time where appropriate.”
Beverly Health & Rehab. Servs., Inc. v. Thompson, 223 F. Supp. 2d 73 (D.D.C. 2002).
“) These cases are, however, inapposite, since the regulations governing hospices provide that the hospice must be given the opportunity to correct deficiencies (see 42 C.F.R. § 488.28 ), whereas nursing home regulations are stricter, for they do not require the granting of a…”
United States Ex Rel. Landers v. Baptist Mem'l Health Care Corp., 525 F. Supp. 2d 972 (W.D. Tenn. 2007).
“See 42 C.F.R. §§ 488.28 , 489.53 (2007). In contrast, Defendants have presented ample evidence that even assuming they failed to comply with Conditions of Participation and/or other applicable standards of care, the Government would nevertheless have continued to reimburse their…”
State ex rel. King v. Behavioral Home Care, Inc., 2015 NMCA 035 (N.M. Ct. App. 2014).
“10(B)(1), (3) NMAC; see also 42 C.F.R. § 488.28 (2013) (granting a care provider a reasonable time to achieve compliance with conditions of participation); Mikes, 274 F.”
United States ex rel. Brooks v. Stevens-Henager Coll., 174 F. Supp. 3d 1297 (D. Utah 2016).
“3d at 1220 -21 (citing 42 C.F.R. § 488.28 (a), (c) & (d)). Similarly, institutions participating in Title IV programs -may be placed on “provisional status” for violations of the 90/10 Rule, 20 U.”
Aurora Chicago Lakeshore Hosp. v. Azar (N.D. Ill. 2019).
· cites it 3× “To clarify, despite Aurora’s argument to the contrary, CMS is not required to allow a provider to correct deficiencies under 42 C.F.R. § 488.28 for condition-level noncompliance or if the noncompliance immediately jeopardizes patient health and safety.”
Aurora Chicago Lakeshore Hosp. v. AZAR (N.D. Ill. 2018).
· cites it 2× “42 C.F.R. § 488.28 (a). It further provides that if a provider is not in compliance with one or more of the standards, it is to be granted a reasonable time to achieve compliance based on the nature of the deficiency and a judgment as to the facility’s capabilities to provide…”
Aurora Chicago Lakeshore Hosp. v. Azar (N.D. Ill. 2019).
“At issue is 42 C.F.R. § 488.28 , which allows a provider to submit a plan of correction and gives the provider a reasonable amount of time to achieve compliance.”
State of New Mexico ex rel. King v. Behavioral Home Care, Inc. (N.M. Ct. App. 2014).
“If HSD determines that termination from the Medicaid program is the appropriate sanction for a provider’s non-compliance with a condition of participation, it must allow the provider notice and an opportunity to correct the identified misconduct before termination.”
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