CMS Expands Immediate Jeopardy Standards
“Immediate Jeopardy” is defined by the Centers for Medicare & Medicaid Services (CMS) as “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.” A hospital or healthcare organization that receives an Immediate Jeopardy rating must either fix the deficiency by a CMS-imposed deadline or risk losing Medicare and Medicaid funding.
The CMS State Operations Manual lists a series of “triggers” for a finding of Immediate Jeopardy in Appendix Q, including a failure to protect from abuse and a failure to prevent neglect. On March 5, 2019, CMS revised Appendix Q to include instructions for surveyors to consider whether psychosocial harm, not just physical harm, has resulted in noncompliance. A finding of psychosocial harm indicates that the noncompliance has caused, or made likely, serious mental or psychosocial harm to recipients, taking into consideration the combined influence of psychological factors and the surrounding social environment on physical, emotional, and/or mental wellness.
CMS’ revision also removes “culpability” as a required component to cite Immediate Jeopardy. Under the “culpability” standard, surveyors were required to consider whether the entity knew about the situation or should have known about the situation. CMS replaced this “culpability” standard with a strict liability “noncompliance” as a key component in order to match the regulatory definitions of Immediate Jeopardy.
On the other hand, the revision raised the standard for a finding of Immediate Jeopardy from whether the identified noncompliance creates a potential for harm to whether it creates a likelihood that serious harm will occur.
CMS’ recent revisions to the Immediate Jeopardy standards is a response to what the Administrator of CMS, Seema Verma, sees as a need for “improvements in healthcare safety and quality” after hearing “alarming stories” of abuse in health care organizations, including long-term care. Seema Verma cites CMS’ new guidance as a “key step towards making across-the-board improvements in healthcare safety and quality.”