The Nursing Home Reform Law authorizes nursing facilities to appeal deficiencies that are cited against them for noncompliance with federal standards of care if the Centers for Medicare & Medicaid Services (CMS) imposes a financial penalty for the deficiencies. CMS generally focuses financial penalties on facilities whose deficiencies are said to cause actual harm or immediate jeopardy to residents, the top two levels of harm out of four levels. As shown below, CMS wins most administrative appeals – 96% – that are officially released. However, as reported today in a companion Alert, it appears that many other harm and jeopardy deficiencies and their penalties are being resolved outside the formal appeals process, without any public information about the resolution of these deficiencies and penalties. More transparency about the nursing home oversight system is plainly needed.
Administrative Law Judge hearings
The Center for Medicare Advocacy analyzed the 53 decisions of Departmental Appeals Board’s Administrative Law Judges (ALJs) issued in 2020, the most recent year with complete data, that reviewed nursing facilities’ appeals.
Fifty of 53 nursing home decisions address nursing home deficiencies and remedies (two decisions dismissed facility appeals when no remedies were imposed; a third decision confirmed the effective date of a facility’s participation in Medicare.) Analysis of the 50 decisions finds:
- ALJs upheld deficiencies and civil money penalties (CMPs) in 48 decisions (96%); ALJs ruled for the facility in two decisions (4%)
- Immediate jeopardy deficiencies were cited in 29 decisions, harm, in 10 decisions. (In cases where CMS imposed per instance CMPs, ALJs do not necessarily identify whether deficiencies are classified as harm or jeopardy.)
- The most common deficiencies addressed in ALJ decisions: accident prevention/supervision (21 decisions), abuse (8 decisions), and pressure sores (6 decisions)
- California had the most decisions (12), following by Texas (10); 20 other states had one to four decisions each
- Appeals were decided by summary judgment (20 decisions); by the written record or the parties’ written exchanges (18 decisions); by a hearing (12 decisions)
- Per day civil money penalties (CMPs) were imposed in 27 cases (ranging from $18,164 to $1,449,975 and averaging $211,585), per instance CMPs in 23 cases (ranging from $7,550 to $20,964 and averaging $14,298)
- Deficiencies were most commonly cited as a result of surveys conducted in 2017: 20 decisions; in surveys conducted in 2016 and 2018: 10 decisions each
What the Data Show
CMS wins most of the appeals, with ALJs sustaining the deficiencies and CMPs. Occasionally, an ALJ rejects one of multiple deficiencies cited or reduces the duration of a per day CMP, but almost always, ALJs sustain deficiencies and CMPs in their entirety.
The deficiencies appealed by facilities are significant and reflect serious failures in care resulting in resident harm. They are most frequently related to facilities’ failure provide adequate supervision to residents – an obvious staffing issue.
Despite CMS’s guidance that CMPs “should at least exceed the amount saved by the facility by not maintaining compliance,” CMPs, especially per instance CMPs, are small in amount. The Trump Administration’s survey guidance in July 2017 that shifted the default penalty from per day to per instance led to a greater proportion of per instance CMPs.
Facility appeals are most often decided by summary judgment or by review of written filings and exchanges. Decisions are largely based on facility records. In only a minority of cases are factual disputes at issue that require evidentiary hearings.
Appeals are typically not decided until three years after the deficiencies are first cited. Facilities are not required to pay CMPs until after appeals.
The following two decisions show serious deficiencies, reflect decisions by summary judgment, illustrate that per day CMPs are considerably higher than per instance CMPs, and show a lengthy delay between the citing of the deficiency and the ALJ decision:
In a summary judgment decision in Golden Acres Living and Rehabilitation Center v. CMS, ALJ Leslie C. Rogall sustained a harm-level supervision deficiency and a per day CMP totaling $81,065 for failing to supervise a resident while she was toileting and ambulating, despite facility assessments identifying the resident’s risk for falls and care plans requiring that staff supervise her. The resident had numerous unwitnessed falls at the facility while not supervised and may have fractured two ribs from an unsupervised fall. The survey was completed April 13, 2017; the ALJ decision is dated November 23, 2020.
In a summary judgment decision in Logan Healthcare Leasing, LLC d/b/a Logan Care and Rehabilitation, ALJ Leslie A. Weyn sustained an immediate jeopardy supervision deficiency and a per instance CMP of $20,905 for failure to follow its smoking policy and to supervise a resident directly when he was smoking. The resident burned himself smoking in his room and was hospitalized with a second degree burn on his neck. The deficiency was cited in a complaint survey completed January 30, 2018; the ALJ decision is dated August 5, 2020.
February 23, 2022 – T. Edelman
 42 U.S.C. §§1395i-3(h), 1396r(h), Medicare and Medicaid, respectively; 42 C.F.R. §488.408(g)(1) (“A facility may appeal a certification of noncompliance leading to an enforcement remedy.”)
 State Operations Manual, Chapter 7, §7400.4
 CMS, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,” S&C: 17-37-NH (Jul. 7, 2017); CMS removed this memorandum when it settled National Consumer Voice for Quality Long-Term Care v. Alex M. Azar II, Case No. 21-162 (D.D.C. filed Jan. 18, 2021). See Center for Medicare Advocacy, “Per Day Civil Money Penalties are Back for Nursing Facilities” (CMA Alert, Jul. 29, 2021), https://medicareadvocacy.org/per-day-civil-money-penalties-are-back-for-nursing-facilities/
 42 C.F.R. §§488.440(b). 488.442(a)(1)-(3)
 Docket No. C-17-1109, Decision No. CR5767 (Nov. 23, 2020), https://www.hhs.gov/about/agencies/dab/decisions/alj-decisions/2020/alj-cr5767/index.html
 Docket No. C-19-8, Decision No. CR5677 (Aug. 5, 2020), https://www.hhs.gov/about/agencies/dab/decisions/alj-decisions/2020/alj-cr5677/index.html