The Centers for Medicare & Medicaid Services is no longer issuing fines to nursing homes solely on a per-instance basis, reversing 2017 guidance issued under the Trump administration. 

The agency announced the decision to remove the previous guidance from its repository in a memo issued late Wednesday, allowing surveyors to impose per-day or per-incident penalties. 

Federal guidelines were updated in 2017 that set per-instance CMPs as the default penalty, as opposed to per-day fines that could add up quickly as providers tried to make operational adjustments.

“Upon further consideration, CMS has determined that the agency should retain the discretion at this time to impose a per-day penalty where appropriate to address specific circumstances of prior noncompliance,” the agency wrote.

“We will work within CMS operations to apply such discretion, and any final notice of noncompliance will set forth the penalty, and the reason(s) for imposing per-instance or per-day penalties,” it added. 

Both long-term care and consumer advocates said the move would result in larger fines handed down against providers, according to a New York Times report.

The American Health Care Association, in a statement to the news outlet, said per-day fines “only take precious resources away from an already underfunded industry, especially during an unprecedented time when nursing homes need every support to protect their residents.”

A late June analysis by the National Investment Center for Seniors Housing & Care found that per-instance fines levied against providers increased more than eight-fold from 2016 to 2020 as a result of the updated 2017 federal guidelines.

NIC Senior Principal Ryan Brooks explained that per-day penalties are often applied retrospectively and can accumulate to significant fines, and the shift in 2017 allowed providers to be protected from higher fines. 

“As per-day penalties can be applied retrospectively and accumulate to significant amounts, operators benefitted during these years, as they were sheltered from penalties above the per-incident maximum fine of $20,965. There is no cap on the accumulation of per-day penalties,” he explained.