---
kind: "section"
citation: "42 C.F.R. § 422.760"
title: "42"
number: "422.760"
heading: "Determinations regarding the amount of civil money penalties and assessment imposed by CMS."
url: "https://uscodex.org/cfr/42/422.760"
---

# §422.760. Determinations regarding the amount of civil money penalties and assessment imposed by CMS.

- (a) **Determining the appropriate amount of any penalty.** In determining the amount of penalty imposed under 422.752(c)(1), CMS will consider as appropriate:
  - (1) The nature of the conduct;
  - (2) The degree of culpability of the MA organization;
  - (3) The adverse effect to enrollees which resulted or could have resulted from the conduct of MA organization;
  - (4) The financial condition of the MA organization;
  - (5) The history of prior offenses by the MA organization or principals of the MA organization; and,
  - (6) Such other matters as justice may require.
- (b) **Amount of penalty imposed by CMS.** CMS may impose civil money penalties in the following amounts:
  - (1) If the deficiency on which the determination is based has directly adversely affected (or has the substantial likelihood of adversely affecting) one or more MA enrollees—up to $25,000 as adjusted annually under [45 CFR part 102](/cfr/45/part102.md) for each determination.
  - (2) If the deficiency on which the determination is based has directly adversely affected (or has the substantial likelihood of adversely affecting) one or more MA enrollees, CMS may calculate a CMP of up to $25,000 as adjusted annually under [45 CFR part 102](/cfr/45/part102.md) for each MA enrollee directly adversely affected (or with the substantial likelihood of being adversely affected) by a deficiency.
  - (3)
    - (i) **Definitions for calculating penalty amounts—**
      - (A) **Per determination.** The penalty amounts calculated under [paragraph (b)(1)](#b-1) of this section.
      - (B) **Per enrollee.** The penalty amounts calculated under [paragraph (b)(2)](#b-2) of this section.
      - (C) **Standard minimum penalty.** The per enrollee or per determination penalty amount that is dependent on the type of adverse impact that occurred.
      - (D) **Aggravating factor(s).** Specific penalty amounts that may increase the per enrollee or per determination standard minimum penalty and are determined based on criteria under [paragraph (a)](#a) of this section.
    - (ii) **CMS sets minimum penalty amounts in accordance with paragraphs (b)(1) and (2) of this section.**
    - (iii) CMS announces the standard minimum penalty amounts and aggravating factor amounts for per determination and per enrollee penalties on an annual basis.
    - (iv) CMS has the discretion to issue penalties up to the maximum amount under paragraphs [(b)(1)](#b-1) and [(2)](#b-2) of this section when CMS determines that an organization's non-compliance warrants a penalty that is higher than would be applied under the minimum penalty amounts set by CMS.
  - (4) For each week that a deficiency remains uncorrected after the week in which the MA organization receives CMS' notice of the determination—up to $10,000 as adjusted annually under [45 CFR part 102](/cfr/45/part102.md).
  - (5) If CMS makes a determination that a MA organization has terminated its contract other than in a manner described under 422.512 and that the MA organization has therefore failed to substantially carry out the terms of the contract—$250 as adjusted annually under [45 CFR part 102](/cfr/45/part102.md) per Medicare enrollee from the terminated MA plan or plans at the time the MA organization terminated its contract, or $100,000 as adjusted annually under [45 CFR part 102](/cfr/45/part102.md), whichever is greater.
- (c) **Amount of penalty imposed by CMS or OIG.** CMS or the OIG may impose civil money penalties in the following amounts for a determination made under [§ 422.752(a)](/cfr/42/422.752.md?p=a):
  - (1) Civil money penalties of not more than $25,000 as adjusted annually under [45 CFR part 102](/cfr/45/part102.md) for each determination made.
  - (2) With respect to a determination made under § [422.752(a)(4)](/cfr/42/422.752.md?p=a-4) or [(a)(5)(i)](/cfr/42/422.752.md?p=a-5-i), not more than $100,000 as adjusted annually under [45 CFR part 102](/cfr/45/part102.md) foreach such determination, except with respect to a determination made under [§ 422.752(a)(5)](/cfr/42/422.752.md?p=a-5), an assessment of not more than the amount claimed by such plan or MA organization based upon the misrepresentation or falsified information involved.
  - (3) Plus with respect to a determination made under [§ 422.752(a)(2)](/cfr/42/422.752.md?p=a-2), double the excess amount charged in violation of such paragraph (and the excess amount charged must be deducted from the penalty and returned to the individual concerned).
  - (4) Plus with respect to a determination made under [§ 422.752(a)(4)](/cfr/42/422.752.md?p=a-4), $15,000 as adjusted annually under [45 CFR part 102](/cfr/45/part102.md) for each individual not enrolled as a result of the practice involved.

## Notes

### Amendments

[72 FR 68726, Dec. 5, 2007, as amended at 74 FR 1542, Jan. 12, 2009; 79 FR 29960, May 23, 2014; 81 FR 61562, Sept. 8, 2016; 86 FR 6103, Jan. 19, 2021; 86 FR 29528, June 2, 2021; 89 FR 30827, Apr. 23, 2024]

### Source

Source: 63 FR 35115, June 26, 1998, unless otherwise noted.

### Authority

Authority: 42 U.S.C. 1302, 1306, 1395w-21 through 1395w-28, and 1395hh.

### Source

Source: 63 FR 18134, Apr. 14, 1998, unless otherwise noted.

### Amendments

[72 FR 68726, Dec. 5, 2007, as amended at 74 FR 1542, Jan. 12, 2009; 79 FR 29960, May 23, 2014; 81 FR 61562, Sept. 8, 2016; 86 FR 6103, Jan. 19, 2021; 86 FR 29528, June 2, 2021; 89 FR 30827, Apr. 23, 2024]