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New CMS Immediate Jeopardy Process

The Centers for Medicare and Medicaid (CMS) issued a new approach to Immediate Jeopardy on March 6, 2019, found in State Operations Manual, Appendix Q: Core Guidelines for Determining Immediate Jeopardy (IJ). The introduction states: “Immediate Jeopardy (IJ) represents a situation in which entity noncompliance has placed the health and safety of recipients in its care at risk for serious injury, serious harm, serious impairment or death.” The previous definition stated that IJ was a situation in which the provider’s noncompliance was likely to cause serious injury, harm, impairment or death. This change from individual compliance to entity compliance broadens the reach of the surveyor’s investigation when there is potential for an IJ situation.
While the new approach has revised definitions, be aware of the key components that are essential for surveyors to determine IJ. These include: 1) noncompliance, 2) serious adverse outcome or likely serious adverse outcome as a result of the noncompliance, and 3) need for immediate action to correct noncompliance and prevent occurring or recurring harm.

Key Components in Determining IJ Include:
• Noncompliance: An entity has failed to meet one or more federal health, safety, and/or quality regulations;
• Serious Adverse Outcome or Likely Serious Adverse Outcome: As a result of the identified noncompliance, serious injury, serious harm, serious impairment or death has occurred, is occurring, or is likely to occur to one or more identified recipients at risk;
Need for Immediate Action: The noncompliance creates a need for immediate corrective action by the provider/supplier to prevent serious injury, serious harm, serious impairment or death from occurring or recurring.
Determining noncompliance requires the survey team to gather enough evidence through observation, interview, and record review to support the citation of noncompliance, and to understand the extent, nature and scope of noncompliance, as well as the impact or likely impact of risk to others. Surveyors must identify and analyze noncompliance against all relevant regulations or tags.
CMS expects surveyors to identify when the IJ began if possible, to learn how long the IJ existed before action was taken to correct it. An example provided suggest that a power outage may have relatively minor consequences to the general population of recipients yet could have life-threatening consequences for ventilator-dependent recipients if adequate contingencies had not been in place.

Immediate Jeopardy Template
Surveyors must use the IJ template to document their determination of IJ and will rely on these definitions:
• Likely/Likelihood means the nature and/or extent of the identified noncompliance creates a reasonable expectation that an adverse outcome resulting in serious injury, harm, impairment, or death will occur if not corrected.
• Noncompliance means failure to meet one or more federal health, safety, and/or quality regulations.
• Recipient at Risk is a recipient who, as a result of noncompliance, and in consideration of the recipient’s physical, mental, psychosocial or health needs, and/or vulnerabilities, is likely to experience a serious adverse outcome.
• needs, and/or vulnerabilities, is likely to experience a serious adverse outcome.
Serious injury, serious harm, serious impairment or death are adverse outcomes which result in, or are likely to result in:
• death; or
• a significant decline in physical, mental, or psychosocial functioning, (that is not solely due to the normal progression of a disease or aging process); or
• loss of limb, or disfigurement; or
• avoidable pain that is excruciating, and more than transient; or
• other serious harm that creates life-threatening complications/conditions.
*NOTE: IJ does not require serious injury, harm, impairment or death to occur. It is enough that non-compliance makes serious injury, harm, impairment or death likely to occur to one or more recipients.

Removing Immediate Jeopardy
When the survey teams determine that that entity noncompliance rises to the level of IJ, the team consults with the State Agency and notifies the administrator of the entity. The team uses the IJ template to clearly and concisely communicate the finding of IJ. The entity responds by developing a Removal Plan that focuses on assuring that serious harm will not occur or recur. The entity includes the immediate actions the entity will take to address the noncompliance, prevent serious harm from occurring or recurring, and keep recipients safe and free from harm.

By Judy Courtemanche March 26, 2019


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