(a) Initial assessment. In order to select the appropriate remedy, if any, to apply to a facility with deficiencies, CMS and the State determine the seriousness of the deficiencies.
(b) Determining seriousness of deficiencies. To determine the seriousness of the deficiency, CMS considers and the State must consider at least the following factors:
(1) Whether a facility's deficiencies constitute—
(i) No actual harm with a potential for minimal harm;
(ii) No actual harm with a potential for more than minimal harm, but not immediate jeopardy;
(iii) Actual harm that is not immediate jeopardy; or
(iv) Immediate jeopardy to resident health or safety.
(2) Whether the deficiencies—
(i) Are isolated;
(ii) Constitute a pattern; or
(iii) Are widespread.
(c) Other factors which may be considered in choosing a remedy within a remedy category. Following the initial assessment, CMS and the State may consider other factors, which may include, but are not limited to the following:
(1) The relationship of the one deficiency to other deficiencies resulting in noncompliance.
(2) The facility's prior history of noncompliance in general and specifically with reference to the cited deficiencies.
Notes of Decisions
Bryn Mawr Care, Inc. v. Kathleen Sebelius, 749 F.3d 592 (7th Cir. 2014).
· cites it 4× “42 C.F.R. § 488.404 (c). Bryn Mawr argues that, the moment it had the deficiencies at issue in this case on its record, its legal status was altered because there was the potential that future deficiencies would be punished with a harsher remedy based on the past deficiencies.”
Beverly Health & Rehab. Servs., Inc. v. Thompson, 223 F. Supp. 2d 73 (D.D.C. 2002).
· cites it 2× “§§ 1395i — 3(h)(1), 1396r(h)(l); 42 C.F.R. §§ 488.404 , 488.406, 488.408. These include termination of a provider’s ability to participate in the Medicare or Medicaid programs, denial of payments to the provider, placement of a temporary manager or state monitor in the facility,…”
Liberty Commons Nursing v. Leavitt, 285 F. App'x 37 (4th Cir. 2008).
· cites it 4× “” 42 C.F.R. § 488.404 (b)(1)(ii). The lowest level violation is found when there is “[n]o actual harm with a potential for minimal harm.”
Clio Convalescent Ctr. v. Michigan Dep't of Consum. & Indus. Servs., 66 F. Supp. 2d 875 (E.D. Mich. 1999).
· cites it 2× “See 42 C.F.R. § 488.404 . Furthermore, the MDCIS is obligated to forward a completed “Statement of Deficiencies and Plan of Correction, HCFA Form 2567” to the HCFA “for each provider and supplier surveyed or resurveyed.”
Lakeridge Villa Health Care Ctr. v. Leavitt, 202 F. App'x 903 (6th Cir. 2006).
· cites it 2× “In imposing a CMP, CMS is required to consider (1) the facility’s history of noncomplianee; (2) the facility’s financial condition; (3) the facility’s degree of culpability; and (4) the factors listed in 42 C.F.R. § 488.404 . 42 C.F.R. § 488.438 (f).”
Century Care of Crystal Coast v. Leavitt, 281 F. App'x 180 (4th Cir. 2008).
· cites it 2× “42 C.F.R. § 488.404 (b). The severity categories range from deficiencies that result in “[n]o actual harm with a potential for minimal harm” to those that pose “[ijmmediate *183 jeopardy to resident health or safety.”
In re Bayou Shores SNF, LLC, 525 B.R. 160 (Bankr. M.D. Fla. 2014).
· cites it 2× “42 C.F.R. § 488.404 (a). The possible remedies (instead of or in addition to termination of the provider agreement) include: temporary management, denial of payment, civil monetary penalties, state monitoring, transfer of residents, closure of the facility, and directed plan of…”
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