CMS issued a new QSO memo this past month, QSO 19-09. It details the dreaded subject of immediate jeopardy determination. Appendix Q of the State Operations Manual describes the IJ process. In fact, this may be a step in the right direction. The memo suggests that there will be more consistency and structure used to determine immediate jeopardy.
Immediate Jeopardy Determination
CMS describes three key components which must be present for an immediate jeopardy determination. These include:
- Caused harm or created a likelihood of serious harm, impairment or death to patients. “Likelihood” is further defined as “a reasonable expectation that harm would occur”
- Immediate corrective action is necessary
In addition, the prior concept of culpability has been removed.
CMS states that the term culpability is not in the underlying regulations. So, they removed it. Also, in our opinion, the concept of blame worthiness is likely not pertinent at a hospital level. Since the patient is in your care, if something goes wrong you own the issue, regardless of culpability.
In section V of the memo, CMS further clarifies non-compliance. To avoid an organization’s finding of noncompliance, hospitals may not claim that properly trained and supervised individuals acted as rogue employees and violated a regulation. CMS also discusses psychosocial harm as one of the forms of harm that could rise to the immediate jeopardy level.
CMS describes that it is difficult to make this determination in some instances. For example, when the patient has cognitive impairments and the surveyor cannot interview family or a representative of the patient. In such circumstances CMS advises that surveyors should apply a “reasonable person approach.”
We will refrain from any editorial commentary on this concept. But, we assume readers may have their own opinions.
Additional Structure Guides The Process
To add structure to the process, Section VI describes the procedures that surveyors should undertake to declare an immediate jeopardy situation. On the last page of the transmittal, CMS provides a template for surveyors to use that documents the noncompliance. It includes the injury or likely risk of injury and the need for immediate action to be taken. This will enable the surveyors to think through the details. And then, CMS requires the on-site surveyors to call their respective state agency for authorization to declare the immediate jeopardy situation. CMS notes that some state agencies require consultation with the CMS regional office, while other states make this determination themselves.
Furthermore, CMS states that the team should identify the IJ while onsite at the organization. But, CMS also notes that in “rare” instances, the state or regional office may identify the IJ after the survey team has left the organization.
Removing Immediate Jeopardy
Section VII discusses removal of the IJ. CMS requires that the survey team should confirm the IJ with the state agency or regional office, if required by the state and inform the organization immediately. CMS calls for a “removal plan” from the organization. This describes the steps they will take to ensure that no patients are suffering or likely to suffer serious harm, serious impairment or death as a result of the noncompliance. Unlike a plan of correction, CMS further states that it’s not necessary to eliminate all noncompliance before removal of the IJ. But, the steps must ensure that serious harm or likelihood of harm will not occur. Furthermore, the removal plan must include a date by which the organization states it will eliminate the likelihood for harm.
As is often the case, if implementing a removal plan isn’t possible for the exit conference, the IJ will continue. Instead, verifying elimination of the IJ will occur on a revisit date. And, the onsite follow up surveyors will verify implementation of all steps in a manner that eliminates the likelihood for harm.
Learn More About The Process
Would you like to learn more about this IJ process? CMS created an online training website, intended for surveyors, but also open to organizations. You may obtain the training here.
With this process conducted by 50 different state agencies, we assume there will be some variability in application of this memo. The training will help surveyors. But, we have already noticed some variation in the process since publication of the memo on March 5.
While the training is open to organizations, there is a downside to becoming more expert in the expected process. It depends on how you choose to “correct” the surveyors in the actual required process. In addition, the IJ situation is a situation more than 95% of our readers should never experience. And if you do, there will be further revisions to the process. Instead, spending more time on the top ten most frequently scored standards might be a better use of time.
Patton Healthcare Consulting
Immediate Jeopardy (IJ), Immediate Threat to Life (ITL) or Preliminary Denial Of Accreditation (PDA) notifications all require you to move swiftly, we will work with you to immediately mitigate risk, implement corrective action plans and forge successful long term solutions. Patton Healthcare Consulting team members are experts at preparing your staff for a smooth, successful outcome in a follow up survey.
In addition, we provide Joint Commission Compliance Assistance and a full range of pre-survey and post survey services including support developing healthcare’s reporting culture.