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 What is New with Revised Appendix Q

Under new guidance, surveyors must make an immediate jeopardy identification onsite and communicate that finding before departing.

 

The Centers for Medicare & Medicaid Services (CMS) recently completed an overhaul of Appendix Q of the Medicare State Operations Manual (SOM), which provides the guidance for survey agencies in identifying and citing conditions of immediate jeopardy for providers. The guidance was reorganized to include a main core that will used by surveyors of all provider types and subparts that focus on specific concerns for nursing facilities and clinical laboratories.

The stated purpose of the revised guidance is to standardize the key components of immediate jeopardy. It provides some additional clarity by defining key terms and including an immediate jeopardy template that must be completed by surveyors in every immediate jeopardy situation and shared with administrators.
However, the definitions of “psychosocial harm” and “likelihood” remain somewhat broad and lend themselves to surveyor discretion, which will make identification of immediate jeopardy still subject to surveyor interpretation.

A Standardized Format

The definition of immediate jeopardy has remained unchanged in the guidance. It is defined 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.”

The revised guidance says in the introduction that “an immediate jeopardy situation is one that is clearly identifiable due to the severity of harm or likelihood for serious harm and the immediate need for it to be corrected to avoid further or future serious harm.”

It goes on to say that surveyors are expected to make an immediate jeopardy identification onsite and that such finding should be immediately communicated to the facility administrator in writing, using the template that outlines the elements of immediate jeopardy.

The purpose of requiring a standardized format for determining when immediate jeopardy exists and providing definitions of the various concepts included in the immediate jeopardy elements is to promote more consistency in the process. To that end, several significant changes were made and are outlined below.

Changes to Note

First, the revised guidance clearly outlines the three elements of immediate jeopardy:
  • Noncompliance.
  • Noncompliance has caused or created a “likelihood” of serious injury, harm, or death.
  • Immediate action is necessary to prevent occurrence or recurrence of the serious harm or death.
Previously, an element of immediate jeopardy was facility culpability, but this element has been removed. However, whether or not the facility was culpable for the immediate jeopardy situation was rarely taken into consideration by most survey agencies anyway, so the failure to include the concept likely does not constitute a major change.

“Likelihood” is defined in the revised guidance as follows: “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.”

This definition is meant to better define when an “immediate jeopardy” to a resident exists by saying that jeopardy does not exist because there is a mere possibility of serious harm or death but because there is a reasonable expectation that serious harm or death will occur if immediate corrective action is not taken.

Whether this definition contributes to more consistent and narrowly drawn immediate jeopardy findings remains to be seen. It is important to note that the guidance specifically states that surveyors do not need to prove when serious harm will occur or that it will occur within a specific time frame. 
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The Timely Template

Once the elements of immediate jeopardy are found to be met by the surveyors, they must document their findings in a template and share those findings with the administrator. This will represent an improvement in the process since facilities have historically been concerned with issues of timely notification of the immediate jeopardy as well as lack of clear understanding of the basis for the immediate jeopardy, which made it difficult to timely draft and implement an effective removal plan.

A written template precisely outlining the immediate jeopardy should eliminate this concern.

Additionally, the revised guidance makes it clear that surveyors are expected to identify the immediate jeopardy to the provider prior to exit. While there is language that acknowledges the possibility that a jeopardy could be determined by the state agency or by CMS to exist post-exit, these circumstances are described as “rare.”

Thus, the longstanding problems relating to being told about the jeopardy weeks or even months after exit should theoretically be eliminated or at least minimized.

Other Definition Issues

The definition of serious harm also represents a change that may be helpful to all parties in determining when a jeopardy exists. The definition indicates that the adverse outcome or likely adverse outcome must result in death; a significant decline in physical, mental, or psychosocial functioning; loss of limb; disfigurement; or life-threatening complications.

Finally, the issue of “stacking” immediate jeopardies, that is, citing multiple jeopardies under different tags based on the same set of facts, was also addressed. Revised Appendix Q now clearly states the surveyors cannot cut and paste facts to support multiple jeopardy citations, and that each citation must be independently supported.

In other words, an immediate jeopardy finding at one tag does not automatically trigger an immediate jeopardy finding at a related tag (for example, an immediate jeopardy for pressure ulcers, abuse, or elopement) that was also cited under Administration, Quality Assurance, or even multiple abuse tags.
The revised guidance makes it clear that independent examination of the facts under each tag must be made before jeopardy involving the same events can be cited under multiple tags.

Toward More Accountability

Based on the revisions made to the guidance, more consistency and accountability is expected on the part of surveyors and state agencies in making immediate jeopardy determinations. Further, the number of immediate jeopardy findings should be reduced as a result of the elimination of the practice of “stacking” jeopardy citations.

Where multiple immediate jeopardy tags are cited based on “cut and pasted” facts from the Statement of Deficiencies, providers should consider challenging them. They could pursue an Informal Dispute Resolution (IDR) request or an Independent Informal Dispute Resolution (I-IDR) request to have the additional cited deficiencies either deleted or reduced in severity, since each immediate jeopardy citation constitutes at least 50 points (75 if a substandard quality of care tag). Such scores can contribute to a poor survey profile and land a provider on the Special Focus Facility list.

Removing Immediate Jeopardies

Providers should also be better informed about the nature of the immediate jeopardy findings as a result of the template and thus be able to establish and implement a removal plan more quickly. It is important to remember that if a provider can prove that the noncompliance existed after the exit of the last standard survey, but was completely corrected before the current survey, the facility should be eligible for a finding of “past noncompliance,” which results in only 20 survey points in the CMS Five-Star Program and does not require a plan of correction or revisit.

In addition, when the surveyors are contemplating whether the facts and circumstances constitute immediate jeopardy to one or more residents in the facility, the provider should consider whether the harm or threatened harm is “serious” as defined by the guidance or “likely” as defined by the guidance and argue accordingly at the time of survey or on survey appeal.
 
Finally, CMS has an online training course on this revised Appendix Q, which is available to both providers and surveyors, at https://surveyortraining.cms.hhs.gov/. It is recommended that providers access this training to understand what CMS believes are the most significant changes and aspects of this newly revised SOM. 

Carol RolfCarol Rolf, Esq., is senior partner at Rolf Goffman Martin Lang. She focuses her practice on long term care regulatory matters. She has also served on the Survey/Regulatory and Legal Committees for the American Health Care Association for many years. She can be reached at Rolf@RolfLaw.com or 216-682-2115.

Nichele Conroy
Michele Conroy, RN, BSN, Esq., is a partner at Rolf Goffman Martin Lang. She frequently speaks at the state and national level on the areas of survey and enforcement and licensure and certification for post-acute providers. Conroy also has more than 19 years of nursing experience, which provides her with a unique perspective on issues affecting health care providers. She can be reached at 216-682-2131 or Conroy@RolfLaw.com.

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