C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER G—STANDARDS AND CERTIFICATION › PART 488—SURVEY, CERTIFICATION, AND ENFORCEMENT PROCEDURES › Subpart F—Enforcement of Compliance for Long-Term Care Facilities with Deficiencies

42 C.F.R. § 488.408

Selection of remedies

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(a) Categories of remedies. In this section, the remedies specified in § 488.406(a) are grouped into categories and applied to deficiencies according to how serious the noncompliance is.

(b) Application of remedies. After considering the factors specified in § 488.404, as applicable, if CMS and the State choose to impose remedies, as provided in paragraphs (c)(1), (d)(1) and (e)(1) of this section, for facility noncompliance, instead of, or in addition to, termination of the provider agreement, CMS does and the State must follow the criteria set forth in paragraphs (c)(2), (d)(2), and (e)(2) of this section, as applicable.

(c) Category 1. (1) Category 1 remedies include the following:

(i) Directed plan of correction.

(ii) State monitoring.

(iii) Directed in-service training.

(2) CMS does or the State must apply one or more of the remedies in Category 1 when there—

(i) Are isolated deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy; or

(ii) Is a pattern of deficiencies that constitutes no actual harm with a potential for more than minimal harm but not immediate jeopardy.

(3) Except when the facility is in substantial compliance, CMS or the State may apply one or more of the remedies in Category 1 to any deficiency.

(d) Category 2. (1) Category 2 remedies include the following:

(i) Denial of payment for new admissions.

(ii) Denial of payment for all individuals imposed only by CMS.

(iii) Civil money penalties of $50-3,000 as adjusted annually under 45 CFR part 102 per day.

(iv) Civil money penalty of $1,000-$10,000 as adjusted annually under 45 CFR part 102 per instance of noncompliance.

(2) CMS applies one or more of the remedies in Category 2, or, except for denial of payment for all individuals, the State must apply one or more of the remedies in Category 2 when there are—

(i) Widespread deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy; or

(ii) One or more deficiencies that constitute actual harm that is not immediate jeopardy.

(3) CMS or the State may apply one or more of the remedies in Category 2 to any deficiency except when—

(i) The facility is in substantial compliance; or

(ii) CMS or the State imposes a civil money penalty for a deficiency that constitutes immediate jeopardy, the penalty must be in the upper range of penalty amounts, as specified in § 488.438(a).

(e) Category 3. (1) Category 3 remedies include the following:

(i) Temporary management.

(ii) Immediate termination.

(iii) Civil money penalties of $3,050-$10,000 as adjusted annually under 45 CFR part 102 per day.

(iv) Civil money penalty of $1,000-$10,000 as adjusted annually under 45 CFR part 102 per instance of noncompliance.

(2) When there are one or more deficiencies that constitute immediate jeopardy to resident health or safety—

(i) CMS does and the State must do one or both of the following:

(A) Impose temporary management; or

(B) Terminate the provider agreement;

(ii) For each instance of noncompliance, CMS and the State may impose a civil money penalty of $3,050-$10,000 (as adjusted annually under 45 CFR part 102) per day, $1,000-$10,000 (as adjusted annually under 45 CFR part 102) per instance of noncompliance, or both, in addition to imposing the remedies specified in paragraph (e)(2)(i) of this section. For multiple instances of noncompliance, CMS may impose any combination of per instance or per day civil money penalties for each instance within the same survey. The aggregate civil money penalty amount may not exceed $10,000 (as adjusted annually under 45 CFR part 102) for each day of noncompliance.

(3) When there are widespread deficiencies that constitute actual harm that is not immediate jeopardy, CMS and the State may impose temporary management, in addition to Category 2 remedies.

(f) Plan of correction. (1) Except as specified in paragraph (f)(2) of this section, each facility that has a deficiency with regard to a requirement for long term care facilities must submit a plan of correction for approval by CMS or the State, regardless of—

(i) Which remedies are imposed; or

(ii) The seriousness of the deficiencies.

(2) When there are only isolated deficiencies that CMS or the State determines constitute no actual harm with a potential for minimal harm, the facility need not submit a plan of correction.

(g) Appeal of a certification of noncompliance. (1) A facility may appeal a certification of noncompliance leading to an enforcement remedy.

(2) A facility may not appeal the choice of remedy, including the factors considered by CMS or the State in selecting the remedy, specified in § 488.404.

[59 FR 56243, Nov. 10, 1994; 60 FR 50118, Sept. 28, 1995, as amended at 64 FR 13360, Mar. 18, 1999; 81 FR 61563, Sept. 6, 2016; 89 FR 64162, Aug. 6, 2024]
Notes of Decisions
Cited in 33 cases (2 in the last 5 years), 1996–2025 · leading case: BEECHWOOD RESTORATIVE CARE CENTER v. Thompson
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BEECHWOOD RESTORATIVE CARE CENTER v. Thompson (2007) nywd · cites it 7× “chwood’s right to equal protection because CMS has imposed only civil money penalties (“CMPs”), or other remedies short of termination, against similarly-situated facilities elsewhere; (5) there were due process and other violations in connection with the imposition of CMPs by…”
Bryn Mawr Care, Incorporated v. Kathleen Sebelius (2014) ca7 · cites it 4× “42 C.F.R. § 488.408 provides that “each facility that has a deficiency .”
United States Ex Rel. Absher v. Momence Meadows Nursing Center, Inc. (2014) ca7 “See 42 C.F.R. § 488.408 (b). Such a result would be absurd.”
Grace Healthcare v. United States Department of Health (2010) ca8 · cites it 2× “§§ 1395i—3(h)(2)(B)®, 1396r(h)(3)(C)(ii); 42 C.F.R. §§ 488.408 , 488.438. A finding of immediate jeopardy exposes the Medicare provider to a broader set of enforcement remedies, including substantially greater civil monetary penalties of $3,050 to $10,000 per day.”
Crestview Parke Care Center v. Tommy Thompson United States Department of Health and Human Services (2004) ca6 “See 42 C.F.R. §§ 488.408 (g)(1), 498.5(k) (establishing the appeals process).”
Earl McLemore v. Elizabethton Medical Investors, Limited Partnership d/b/a Life Care Center of Elizabethton (2012) tennctapp “; 42 C.F.R. § 488.408 (e)(2)(ii); 42 C.F.R.”
Fairfax Nursing Home, Incorporated v. United States Department of Health & Human Services (2002) ca7 “See 42 C.F.R. §§ 488.408 , 488.438. The upper range, permitting CMPs of $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a resident or, under some circumstances, repeated deficiencies.”
Beverly Health & Rehabilitation Services, Inc. v. Thompson (2002) dcd “42 C.F.R. §§ 488.408 (e), 488.410. As for other types of deficiencies, HCFA and the state agency have a range of available remedies depending on the level of the deficiency, as well as other relevant factors.”
Livingston Care Center v. United States Department of Health and Human Services (2004) ca6 “42 C.F.R. § 488.408 provides that Livingston, like every other skilled nursing facility, is subject to a monetary penalty if there are “[widespread deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy; or .”
Meadowwood Nursing Home v. United States Department of Health and Human Services, and Tommy Thompson, Secretary of Hhs (2004) ca6 “MeadowWood disputed the findings of non-compliance and filed a request for hearing in accordance with 42 C.F.R. §§ 488.408 (g). An administrative law judge held a four-day hearing and sustained the imposition of the penalty.”
Emerald Shores Health Care Associates, LLC v. United States Department of Health & Human Services (2008) ca11 “See 42 C.F.R. § 488.408 (a). A facility would be in “substantial compliance” if “individual deficiencies pose no greater risk to resident health or safety than the potential for causing minimum harm.”
Mediplex of Massachusetts, Inc. v. Shalala (1999) mad “See 42 C.F.R. § 488.408 (g) (a facility may appeal a finding of noncompliance administratively, but “may not appeal the choice of remedy”).”
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