--- kind: "section" citation: "42 C.F.R. § 488.330" title: "42" number: "488.330" heading: "Certification of compliance or noncompliance." url: "https://uscodex.org/cfr/42/488.330" --- # §488.330. Certification of compliance or noncompliance. - (a) **General rules—** - (1) **Responsibility for certification.** - (i) The State survey agency surveys all facilities for compliance or noncompliance with requirements for long term care facilities. The survey by the State survey agency may be followed by a Federal validation survey. - (A) **The State certifies the compliance or noncompliance of non-State operated NFs.** Regardless of the State entity doing the certification, it is final, except in the case of a complaint or validation survey conducted by CMS, or CMS review of the State's findings. - (B) **CMS certifies the compliance or noncompliance of all State-operated facilities.** - (C) The State survey agency certifies the compliance or noncompliance of a non-State operated SNF, subject to the approval of CMS. - (D) **The State survey agency certifies compliance or noncompliance for a dually participating SNF/NF.** In the case of a disagreement between CMS and the State survey agency, a finding of noncompliance takes precedence over that of compliance. - (ii) In the case of a validation survey, the Secretary's determination as to the facility's noncompliance is binding, and takes precedence over a certification of compliance resulting from the State survey. - (2) **Basis for certification.** - (i) **Certification by the State is based on the survey agency findings.** - (ii) Certification by CMS is based on either the survey agency findings (in the case of State-operated facilities), or, in the case of a validation survey, on CMS's own survey findings. - (b) **Effect of certification—** - (1) **Certification of compliance.** A certification of compliance constitutes a determination that the facility is in substantial compliance and is eligible to participate in Medicaid as a NF, or in Medicare as a SNF, or in Medicare and Medicaid as a dually participating facility. - (2) **Certification of noncompliance.** A certification of noncompliance requires denial of participation for prospective providers and enforcement action for current providers in accordance with subpart F of this part. Enforcement action must include one of the following: - (i) **Termination of any Medicare or Medicaid provider agreements that are in effect.** - (ii) **Application of alternative remedies instead of, or in addition to, termination procedures.** - (c) **Notice of certification of noncompliance and resulting action.** The notice of certification of noncompliance is sent in accordance with the timeframes specified in [§ 488.402(f)](/cfr/42/488.402.md?p=f), and resulting action is issued by CMS, except when the State is taking the action for a non-State operated NF. - (d) **Content of notice of certification of noncompliance.** The notice of certification of noncompliance is sent in accordance with the timeframes specified in [§ 488.402(f)](/cfr/42/488.402.md?p=f) and includes information on all of the following: - (1) **Nature of noncompliance.** - (2) **Any alternative remedies to be imposed under subpart F of this part.** - (3) **Any termination or denial of participation action to be taken under this part.** - (4) **The appeal rights available to the facility under this part.** - (5) Timeframes to be met by the provider and certifying agency with regard to each of the enforcement actions or appeal procedures addressed in the notice. - (e) **Appeals.** - (1) Notwithstanding any provision of State law, the State must impose remedies promptly on any provider of services participating in the Medicaid program— - (i) After promptly notifying the facility of the deficiencies and impending remedy or remedies; and - (ii) Except for civil money penalties, during any pending hearing that may be requested by the provider of services. - (2) CMS imposes remedies promptly on any provider of services participating in the Medicare or Medicaid program or any provider of services participating in both the Medicare and Medicaid programs— - (i) After promptly notifying the facility of the deficiencies and impending remedy or remedies; and - (ii) Except for civil money penalties imposed on NFs-only by the State, during any pending hearing that may be requested by the provider of services. - (3) The provisions of [part 498](/cfr/42/part498.md) of this chapter apply when the following providers request a hearing on a denial of participation, or certification of noncompliance leading to an enforcement remedy (including termination of the provider agreement), except State monitoring: - (i) All State-operated facilities; - (ii) SNFs and dually participating SNF/NFs; and - (iii) **Any other facilities subject to a CMS validation survey or CMS review of the State's findings.** - (4) The provisions of [part 431](/cfr/42/part431.md) of this chapter apply when a non-State operated Medicaid NF, which has not received a CMS validation survey or CMS review of the State's findings, requests a hearing on the State's denial of participation, termination of provider agreement, or certification of noncompliance leading to an alternative remedy, except State monitoring. - (f) **Provider agreements.** CMS or the Medicaid agency may execute a provider agreement when a prospective provider is in substantial compliance with all the requirements for participation for a SNF or NF, respectively. - (g) **Special rules for Federal validation surveys.** - (1) CMS may make independent certifications of a NF's, SNF's, or dually participating facility's noncompliance based on a CMS validation survey. - (2) **CMS issues the notice of actions affecting facilities for which CMS did validation surveys.** - (3) For non-State-operated NFs and non-State-operated dually participating facilities, any disagreement between CMS and the State regarding the timing and choice of remedies is resolved in accordance with [§ 488.452](/cfr/42/488.452.md). - (4) Either CMS or the survey agency, at CMS's option, may revisit the facility to ensure that corrections are made. ## Notes ### Amendments [59 FR 56238, Nov. 10, 1994; 60 FR 50118, Sept. 28, 1995; 76 FR 15126, Mar. 18, 2011] ### Source Source: 59 FR 56238, Nov. 10, 1994, unless otherwise noted. ### Authority Authority: 42 U.S.C 1302 and 1395hh. ### Source Source: 53 FR 22859, June 17, 1988, unless otherwise noted. ### Amendments [59 FR 56238, Nov. 10, 1994; 60 FR 50118, Sept. 28, 1995; 76 FR 15126, Mar. 18, 2011]