Back in 2019, CMS issued revisions to Appendix Q of the State Operations Manual pertaining to Immediate Jeopardy considerations (on the part of surveyors) and ultimately, citation decisions. This guidance was relevant for all provider and supplier types participating in Medicare (hospitals, home health, SNFs, etc.).
In late October, CMS issued guidance on penalties. What is interesting is that his update is following a path that appears to have CMS becoming more diligent and intentional in finding, defining, and then, citing what is determined by CMS, to be non-compliance. My original post on the penalties and remedies issue is available here: https://rhislop3.com/2024/10/31/snf-survey-and-certification-update/
The updated guidance, per CMS, is designed to ensure greater continuity in interpreting situations that may arise to the Immediate Jeopardy level. The definition of Immediate Jeopardy, per CMS is as follows:
Immediate jeopardy is a situation in which a recipient of care has suffered or is likely to suffer serious
injury, harm, impairment, or death as a result of a provider’s, supplier’s, or laboratory’s noncompliance
with one or more health and safety requirements. Immediate jeopardy represents the most severe and
egregious threat to the health and safety of recipients, as well as carries the most serious sanctions for
providers, suppliers, and/or laboratories.
The CMS Memo from November 21 is available here QSO19-09 Memo Appendix Q SOM .
The key changes that CMS has made to Appendix Q (available to download here QSO19-09 Memo Appendix Q SOM , full text changes start on page 5) are,
- Likelihood instead of potential – The previous version of Appendix Q suggested that a potential for serious harm might constitute immediate jeopardy. Core Appendix Q makes it clear that in order to cite immediate jeopardy in situations where recipients have not already suffered serious injury, harm, impairment or death, the nature and/or extent of the identified noncompliance creates a likelihood (reasonable expectation) that such harm will occur if not corrected, not
simply the potential for that level of harm to occur.
- Culpability has been removed – The previous version of Appendix Q made culpability a required component to cite immediate jeopardy. Because the regulatory definitions of immediate jeopardy do not require a finding of culpability, that requirement has been removed and has been replaced with the key component of noncompliance, since the definitions of immediate jeopardy require noncompliance to be the cause of the serious injury, harm, impairment or death, or the likelihood thereof.
- Psychosocial harm – Core Appendix Q includes a section instructing surveyors to consider whether noncompliance has caused or made likely serious mental or psychosocial harm to recipients. In situations where the psychosocial outcome to the recipient may be difficult to determine or incongruent with what would be expected, the guidance instructs surveyors to use the reasonable person concept to make that determination. The reasonable person approach considers how a reasonable person in the recipient’s position would be impacted by the noncompliance (i.e. consider if a reasonable person in a similar situation could be expected to experience a serious psychosocial adverse outcome as a result of the same noncompliance).
- No automatic immediate jeopardy citations – Core Appendix Q makes it clear that each immediate jeopardy citation must be decided independently, and there are no automatic immediate jeopardy citations.
As readers/followers know, most of my work concentrates in the post-acute industry. I do work broader but historically, my focus has been in senior living, senior housing, and post-acute care. The result is that as I read through the Appendix Q changes, I paid close attention to that which is relevant to long-term care. They are found in Subpart X.
Noticeably, the definition of IJ did not change but the methodology for determining what may rise to this level, seems a bit more contrived and intentional. Again, here is the definition found in 42 CFR 488.301.
“Immediate Jeopardy means a situation in which the provider’s noncompliance
with one or more requirements of participation has caused or is likely to cause
serious injury, harm, impairment, or death to a resident.”
Per the changes, serious harm does NOT have to occur before considering IJ. Surveyors are instructed to consider both likely
and actual serious harm when reviewing the triggers in the table (below).
The table below provides a listing of examples of resident outcomes or facility staff action that would trigger further investigation into IJ. For the purposes of identifying an IJ trigger, surveyors do not have to identify that both a resident outcome and a staff/facility action has occurred.
