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593
1 ‘‘(bb) in the case where the
2 penalty is imposed for each day
3 of noncompliance, shall not im-
4 pose a penalty for any day during
5 the period beginning on the ini-
6 tial day of the imposition of the
7 penalty and ending on the day on
8 which the informal dispute reso-
9 lution process under item (aa) is
10 completed;
11 ‘‘(cc) may provide for the
12 collection of such civil money
13 penalty and the placement of
14 such amounts collected in an es-
15 crow account under the direction
16 of the Secretary on the earlier of
17 the date on which the informal
18 dispute resolution process under
19 item (aa) is completed or the
20 date that is 90 days after the
21 date of the imposition of the pen-
22 alty;
23 ‘‘(dd) may provide that such
24 amounts collected are kept in

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594
1 such account pending the resolu-
2 tion of any subsequent appeals;
3 ‘‘(ee) in the case where the
4 facility successfully appeals the
5 penalty, may provide for the re-
6 turn of such amounts collected
7 (plus interest) to the facility; and
8 ‘‘(ff) in the case where all
9 such appeals are unsuccessful,
10 may provide that some portion of
11 such amounts collected may be
12 used to support activities that
13 benefit residents, including as-
14 sistance to support and protect
15 residents of a facility that closes
16 (voluntarily or involuntarily) or is
17 decertified (including offsetting
18 costs of relocating residents to
19 home and community-based set-
20 tings or another facility), projects
21 that support resident and family
22 councils and other consumer in-
23 volvement in assuring quality
24 care in facilities, and facility im-
25 provement initiatives approved by

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595
1 the Secretary (including joint
2 training of facility staff and sur-
3 veyors, technical assistance for
4 facilities under quality assurance
5 programs, the appointment of
6 temporary management, and
7 other activities approved by the
8 Secretary).
9 ‘‘(VIII) PROCEDURE.—The pro-
10 visions of section 1128A (other than
11 subsections (a) and (b) and except to
12 the extent that such provisions require
13 a hearing prior to the imposition of a
14 civil money penalty) shall apply to a
15 civil money penalty under this clause
16 in the same manner as such provi-
17 sions apply to a penalty or proceeding
18 under section 1128A(a).’’.
19 (2) CONFORMING AMENDMENT.—The second
20 sentence of section 1819(h)(5) of the Social Security
21 Act (42 U.S.C. 1395i–3(h)(5)) is amended by insert-
22 ing ‘‘(ii),’’after ‘‘(i),’’.
23 (b) NURSING FACILITIES.—
24 (1) PENALTIES IMPOSED BY THE STATE.—

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596
1 (A) IN GENERAL.—Section 1919(h)(2) of
2 the Social Security Act (42 U.S.C. 1396r(h)(2))
3 is amended—
4 (i) in subparagraph (A)(ii), by strik-
5 ing the first sentence and inserting the fol-
6 lowing: ‘‘A civil money penalty in accord-
7 ance with subparagraph (G).’’; and
8 (ii) by adding at the end the following
9 new subparagraph:
10 ‘‘(G) CIVIL MONEY PENALTIES.—

11 ‘‘(i) IN GENERAL.—The State may

12 impose a civil money penalty under sub-
13 paragraph (A)(ii) in the applicable per in-
14 stance or per day amount (as defined in
15 subclause (II) and (III)) for each day or
16 instance, respectively, of noncompliance (as
17 determined appropriate by the Secretary).
18 ‘‘(ii) APPLICABLE PER INSTANCE

19 AMOUNT.—In this subparagraph, the term

20 ‘applicable per instance amount’ means—
21 ‘‘(I) in the case where the defi-
22 ciency is found to be a direct proxi-
23 mate cause of death of a resident of
24 the facility, an amount not to exceed
25 $100,000.

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597
1 ‘‘(II) in each case of a deficiency
2 where the facility is cited for actual
3 harm or immediate jeopardy, an
4 amount not less than $3,050 and not
5 more than $25,000; and
6 ‘‘(III) in each case of any other
7 deficiency, an amount not less than
8 $250 and not to exceed $3050.
9 ‘‘(iii) APPLICABLE PER DAY

10 AMOUNT.—In this subparagraph, the term

11 ‘applicable per day amount’ means—
12 ‘‘(I) in each case of a deficiency
13 where the facility is cited for actual
14 harm or immediate jeopardy, an
15 amount not less than $3,050 and not
16 more than $25,000 and
17 ‘‘(II) in each case of any other
18 deficiency, an amount not less than
19 $250 and not to exceed $3,050.
20 ‘‘(iv) REDUCTION OF CIVIL MONEY

21 PENALTIES IN CERTAIN CIR-

22 CUMSTANCES.—Subject to clauses (v) and

23 (vi), in the case where a facility self-re-
24 ports and promptly corrects a deficiency
25 for which a penalty was imposed under

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598
1 subparagraph (A)(ii) not later than 10 cal-
2 endar days after the date of such imposi-
3 tion, the State may reduce the amount of
4 the penalty imposed by not more than 50
5 percent.
6 ‘‘(v) PROHIBITION ON REDUCTION

7 FOR CERTAIN DEFICIENCIES.—

8 ‘‘(I) REPEAT DEFICIENCIES.—

9 The State may not reduce under

10 clause (iv) the amount of a penalty if
11 the State had reduced a penalty im-
12 posed on the facility in the preceding
13 year under such clause with respect to
14 a repeat deficiency.
15 ‘‘(II) CERTAIN OTHER DEFI-

16 CIENCIES.—The State may not reduce

17 under clause (iv) the amount of a pen-
18 alty if the penalty is imposed for a de-
19 ficiency described in clause (ii)(II) or
20 (iii)(I) and the actual harm or wide-
21 spread harm that immediately jeop-
22 ardizes the health or safety of a resi-
23 dent or residents of the facility, or if
24 the penalty is imposed for a deficiency
25 described in clause (ii)(I).

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599
1 ‘‘(III) LIMITATION ON AGGRE-

2 GATE REDUCTIONS.—The aggregate

3 reduction in a penalty under clause
4 (iv) may not exceed 35 percent on the
5 basis of self-reporting, on the basis of
6 a waiver or an appeal (as provided for
7 under regulations under section
8 488.436 of title 42, Code of Federal
9 Regulations), or on the basis of both.
10 ‘‘(iv) COLLECTION OF CIVIL MONEY

11 PENALTIES.—In the case of a civil money

12 penalty imposed under subparagraph
13 (A)(ii), the State—
14 ‘‘(I) subject to subclause (III),
15 shall, not later than 30 days after the
16 date of imposition of the penalty, pro-
17 vide the opportunity for the facility to
18 participate in an independent informal
19 dispute resolution process which gen-
20 erates a written record prior to the
21 collection of such penalty, but such
22 opportunity shall not affect the re-
23 sponsibility of the State survey agency
24 for making final recommendations for
25 such penalties;

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600
1 ‘‘(II) in the case where the pen-
2 alty is imposed for each day of non-
3 compliance, shall not impose a penalty
4 for any day during the period begin-
5 ning on the initial day of the imposi-
6 tion of the penalty and ending on the
7 day on which the informal dispute res-
8 olution process under subclause (I) is
9 completed;
10 ‘‘(III) may provide for the collec-
11 tion of such civil money penalty and
12 the placement of such amounts col-
13 lected in an escrow account under the
14 direction of the State on the earlier of
15 the date on which the informal dis-
16 pute resolution process under sub-
17 clause (I) is completed or the date
18 that is 90 days after the date of the
19 imposition of the penalty;
20 ‘‘(IV) may provide that such
21 amounts collected are kept in such ac-
22 count pending the resolution of any
23 subsequent appeals;
24 ‘‘(V) in the case where the facil-
25 ity successfully appeals the penalty,

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