Hospices Alert to CMS New Immediate Jeopardy Protocols

The U.S. Centers for Medicare and Medicaid Services (CMS) has significantly changed how the agency’s surveyors identify and analyze Immediate Jeopardy findings, applicable to hospice providers as well as all other health care services covered by Medicare or Medicaid.

An Immediate Jeopardy finding represents a situation in which the health care provider’s noncompliance with one or more Conditions of Participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a patient. The agency announced these policy changes in its recent Quality, Safety and Oversight Memo QSO-19-09-ALL.

When such an Immediate Jeopardy finding occurs, CMS surveyors give the organization a time frame in which to resolve the issue. If the health care provider doesn’t address the issue within that time frame, their Medicare certification can be revoked. The new guidance represents the most extensive revisions to the policy since it was instituted in 2014.

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“Today’s guidance is just the beginning of upcoming efforts to strengthen oversight of healthcare settings, said Seema Verma, Administrator of CMS.”It is critical that federal and state inspectors accurately identify, thoroughly investigate, and ensure immediate jeopardy situations are resolved decisively and swiftly.”

The first major change is that CMS surveyors will now consider whether the instance of noncompliance is likely to cause harm, rather than simply having the potential to cause harm. Surveyors make this determination based on their professional judgement.

Surveyors will also no longer be required to determine culpability for the noncompliance in order to cite a Immediate Jeopardy situation, and the agency will no longer recognize “automatic” Immediate Jeopardy situations, each suspected instance must be analyzed individually.

One new consideration is that CMS now requires surveyors to consider whether noncompliance has caused made likely any serious mental or psychosocial harm to the patient, using a “reasonable person” model. The surveyor would consider the impact they believe the situation would have on a reasonable person in the patient’s position.

Some of the updates are designed to make the process more transparent. Surveyors now use a standardized written reporting tool that would specify the issues that prompted the finding. Previously, the findings could be communicated to the organization verbally at any point during the survey, which often led to confusion about the areas of noncompliance and the nature of the risks.

The update also included rule changes specific to long term care, skilled nursing facilities, and laboratories certified under the Clinical Laboratories Improvement Amendments of 1988. Complete CMS guidelines for Immediate Jeopardy situations are available in Appendix Q of the agency’s State Operations Manual.