Executive Summary
A finding of immediate jeopardy in a CMS survey creates a crisis for a healthcare facility. The hospital must react quickly to avoid losing Medicare accreditation.
• Even high-quality hospitals can have an immediate jeopardy finding.
• A patient injury is not necessary for surveyors to declare immediate jeopardy.
• Fines are increased and the time for remedies is shortened.
“Immediate jeopardy” are words you never want to see on a CMS survey report for your facility because it means you are on the brink of losing your accreditation for Medicare in a very short time, and that is only the worst of the ramifications. Immediate jeopardy also means higher fines, less time to correct problems, and extremely bad publicity.
But this only happens to hospitals that are in bad shape overall, where the administrators know that there are serious deficiencies that could lead to immediate jeopardy, right? Surely it can’t happen to hospitals that are high quality and well run.
It can happen to those top-notch facilities, say the experts. It is possible for a serious deficiency to slip through the cracks and go unnoticed until a CMS surveyor makes a fateful note in the records.
Surveyors will declare immediate jeopardy when the facility is in noncompliance with at least one condition of participation (CoP) in a way that has caused or is likely to cause serious injury, harm, impairment or death to a patient. (For more on what constitutes immediate jeopardy, see the next article in this issue.)
A wide range of situations can result in immediate jeopardy, but examples include failure to count instruments and supplies in surgery, improper use of restraints, patient-to-patient violence or sexual assault, and medication safety failures, says Susan G. Kratz, JD, shareholder and chair of the healthcare practice group with the law firm Nilan Johnson Lewis in Minneapolis. CMS surveyors, or state surveyors acting on behalf of CMS, see the immediate jeopardy finding as a way to intervene in especially dangerous situations, she says.
“They’re looking for a problem in which a patient could come to immediate harm, not just a possibility some time in the future,” Kratz says. “But it is important to remember that it is not necessary for a patient to have been harmed already.”
Infection control also is a common prompt for immediate jeopardy. Even something like poor compliance with handwashing protocols could result in immediate jeopardy, Kratz explains.
“It can be as simple as failure to follow a policy or it could be that you’re not protecting patients from physical abuse or harm from staff or from other patients,” she says.
Always a shock
Avoiding immediate jeopardy is the best strategy, of course, but there is no guaranteed way to do so, Kratz says. (See the story in this issue for prevention strategies.)
Immediate jeopardy findings are almost always a shock to the hospital, Kratz says. Hospitals may have passed recent surveys by The Joint Commission and state agencies with no problem and still find themselves facing the worst result from CMS, she says. The “highest-quality and best-run facilities” can still be hit with immediate jeopardy findings, she says.
“Usually it’s for things you wouldn’t expect. It’s not a problem that you’ve identified and have been monitoring and working to improve,” Kratz says. This absolutely happens to hospitals that have never had a deficiency and think that things are running great, and they’re running all these quality metrics that are reassuring. Then CMS comes in and finds something that shocks the hospital.”
The threat to patient safety and health is not always physical, notes Ruth Ragusa, RN, vice president of organizational effectiveness at South Nassau Communities Hospital in Oceanside, NY. Patients who feel threatened or neglected could prompt an immediate jeopardy finding, she says.
Current concerns can be targeted by surveyors, Ragusa says, and it is possible for a hospital that otherwise is performing well to slip up on a recent development or recommendation.
“Last year the hot topic they were looking at was glucometer testing because the CDC had put out some precautionary notes about how if staff don’t follow proper procedures, there is a risk of exposing patients to bloodborne pathogens,” Ragusa says. “A lot of organizations were reviewed closely for compliance with that.”
Surveyors watched the staff work with glucometers to assess whether they were following the most recent guidelines, and they cited safety risks if any step was not done correctly, Ragusa says. New policies and procedures, combined with the vagaries of individual staff performance and a surveyor’s subjective assessment, can easily lead to a serious citation, she says.
Ragusa points out that surveyors can find immediate jeopardy even if few patients are exposed to the hazard, and even if no harm has actually been done yet.
“They feel that if one patient is exposed, then there is a danger to other patients,” she says. “The definitions are very broad and left up to the surveyor, so even a hazard that has not affected any patient can still get you in trouble. As long as the hazard exists, they can say it puts patients at risk.”
Because immediate jeopardy is the result of a surveyor’s subjective assessment, it is not uncommon for the hospital leaders to be frustrated and angry with the citation. With a citation for not counting surgical instruments, for example, the surgery department leaders may be confident that other policies and procedures ensure items are not left behind in the patient. And if there has been no report of patient harm, immediate jeopardy may seem like a gross overreaction.
If you know that the surveyors are considering immediate jeopardy, it is possible to discuss the issue with them and convince them that even if there is a problem, it is not serious enough to justify immediate jeopardy. But you usually don’t get that opportunity.
“It is typical that the surveyors just announce to the hospital staff that they are issuing an immediate jeopardy finding,” Kratz says. “Once that announcement has been made, the hospital has to correct the problem or they will be terminated from Medicare in 23 days.”
Fix it fast
The notification of immediate jeopardy usually is only oral, Kratz notes. Don’t wait for or demand written notification because that will only take up valuable time.
Speed is paramount, Kratz advises. If a surveyor cites immediate jeopardy, your number-one priority should be correcting that problem as quickly as possible. CMS will require a written report that the jeopardy has been abated, but it is possible to do so even before the surveyors leave the facility that day. Remember that this does not require correcting all of the deficiencies related to the citation; you only have to eliminate the immediate threat to patient safety and health.
This may mean writing a new policy, having it approved through the required process at the hospital, and training people on it immediately. If necessary, enlist the aid of the hospital CEO or president to get people and resources directed to this emergency effort. In other cases, the hospital may have to stop doing a particular procedure because a fix is not possible immediately. In that scenario, the aim is to show the surveyors that patients are no longer at risk because you are simply not doing the procedure in question.
If you cannot abate the immediate jeopardy before the surveyors leave, CMS must visit again to confirm the improvement on site. This will count as one of your two allowed revisits, and it may be wasted on just confirming the immediate jeopardy abatement if you have other deficiencies to address from the survey.
“Immediate jeopardy used to be rare, but it’s becoming more common,” Kratz says. “There is a lot of discretion that is given to the surveyors about what constitutes immediate jeopardy, so it is hard to know when this is going to happen to you.”
SOURCES
- Susan G. Kratz, JD, Shareholder and Chair, Healthcare Practice Group, Minneapolis, MN. Telephone: (612) 305-7699. Email: [email protected].
- Ruth Ragusa, RN, Vice President of Organizational Effectiveness, South Nassau Communities Hospital, Oceanside, NY. Telephone: (516) 632-3999. Email: [email protected].
It can happen to those top-notch facilities, say the experts. It is possible for a serious deficiency to slip through the cracks and go unnoticed until a CMS surveyor makes a fateful note in the records.
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