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Conducting Thorough Investigations<p><img src="/Monthly-Issue/2021/June/PublishingImages/DeniseWinzeler.jpg" alt="Denise Winzeler" class="ms-rtePosition-1" style="margin&#58;5px;width&#58;120px;height&#58;156px;" />​When a resident at facility A sustained a bruise of unknown origin on his right forearm, the director of nursing services (DNS) completed what she felt was a thorough investigation of the injury. However, during a subsequent facility visit, surveyors did not find evidence the DNS adequately investigated the incident and cited the facility for inadequate investigation.<br></p><p>Does this scenario sound familiar? Inadequately investigating an incident can trigger repercussions, including citations for noncompliance, inadvertently supporting plaintiffs’ legal claims, and, above all, negative effects on the resident’s well-being.<br></p><p>Thoroughly investigating all allegations and incidents is vital to gain facts, prevent recurrence, and maintain resident safety. Facility leaders should implement these tips to ensure their investigations are detailed and thorough.</p><h2>Organization is Key </h2><p>Merriam-Webster defines investigation as a “study by close examination and systematic inquiry.” To inquire systematically and examine all factors thoroughly, organization is key. Facility leaders must plan and prioritize, recognizing that some parts of an investigation will require more time than others.<br></p><p>Often, facility leaders conduct multiple investigations simultaneously, because they know that all allegations and incidents should be reviewed or investigated, not just those confirmed or involving a crime.<br></p><p>An organized approach enables the thorough review necessary for regulatory requirements, even when conducting multiple investigations. The 4-step process below can help facility leadership remain organized so they can conduct thorough investigations.<br></p><h3>Step 1&#58; Determine the purpose for the investigation. </h3><p>The first step of the process is determining the purpose(s) of the investigation and answering, “Why is an investigation being conducted?” Articulating purpose helps guide the investigator to avenues the investigative process should explore. <br></p><p>For example, a bruise of unknown origin investigation may include the following purposes&#58;<br></p><ul><li>To determine why the bruise occurred</li><li>To determine if abuse occurred</li><li>If abuse occurred, to identify the perpetrator for disciplinary action</li><li>To identify other residents who may be similarly affected </li><li>To learn why a bruise of unknown origin was not promptly reported per facility policy.</li></ul><p></p><h3>Step 2&#58; Develop a plan for the investigation.</h3><p>First and foremost, facility leadership must ensure the residents involved or affected are safe. Next, facility leaders should develop an investigation plan by asking&#58;<br></p><ul><li>Were all required entities notified, such as the department of health, local authorities, boards, etc.? </li><li>Who will lead this investigation?</li><li>Will anyone else be needed to assist? </li><li>What evidence should be reviewed? </li><li>Who should be interviewed? </li><li>Who will conduct the interviews? </li><li>Are staff involved, and does that involvement require temporary suspension pending the investigation’s findings? </li></ul><p></p><h3>Step 3&#58; Review tangible evidence and conduct interviews.</h3><p>Relevant tangible evidence may include in-house documents, like medical records, billing statements, staffing records, personnel files, schedules, or policies and procedures.<br>Other documents might come from outside sources, such as hospital or emergency medical service records or police reports. Evidence like camera footage, incident reports, or digital call- light printouts may also be needed to help the investigator determine what happened and the root cause(s).<br></p><p>Tangible evidence to review for a bruise of unknown origin may include&#58;<br></p><ul><li>Resident A’s medical record, including diagnosis, recent diagnostics, nurses’ notes, </li><li>and medication and treatment sheets</li><li>Assessment and observations of </li><li>Resident A</li><li>Incident report</li><li>Visitor log</li><li>Staffing assignments and staff schedule</li><li>Equipment used to aid the resident to ensure it is in working order and does not need repairs</li><li>Assessments and medical records of residents in similar situations, often referred to as “like residents,” to determine if other residents also have similar injuries.</li></ul><p></p><h2>Conduct Interviews</h2><p>Although it may not always be possible, try having two interviewers in each interview, one to ask the questions and another to write the statement or note-take.<br></p><p>It is best practice to have at least one interviewer present for all interviews. This is important for two reasons. First is consistency, so that all interviewees are asked the questions the same way. Second is the need to assess witness credibility, especially if it is one person’s word against another. It may be necessary to interview some people multiple times, especially if there are contradictions. <br></p><p>Before the start of the interview process, the interviewer should have standard questions to ask the interviewees, such as “Have you worked on A wing in the last month?” or “Have you ever cared for Resident A?” After easing into those questions, the interviewer can probe the situation in more detail.<br></p><p>Any residents involved in the incident should be interviewed unless they are semi-comatose or comatose. An investigator might erroneously not interview residents with impaired cognition, believing the impairment prevents the resident from giving any pertinent information. <br></p><p>Generally, this is mistaken. When interviewing residents, the interviewer is trying to determine if the resident perceives they have experienced harm, as well as details that help establish timelines and may identify root causes. Those with cognitive impairment can still contribute their perspective.<br></p><p>The interviewer may wish to consult with corporate staff or legal counsel before interviewing family members and visitors to receive any special instructions on how to conduct the interviews—such as who should conduct it or if the interview should occur with family members separately or as a group. <br></p><p>Each interview should yield a written statement. For people who are interviewed multiple times, prepare a separate statement for each interview and clearly mark each with the date and time. If there are contradictions in the statements, documenting this way will help to show discrepancies.<br></p><h2>Interview More People</h2><p>A common mistake investigators make is not interviewing enough people. Leadership must ensure the interview process is exhaustive and includes all who may be involved, including those who may have witnessed or been affected by the incident. For example, in the bruise of unknown origin scenario, leadership may wish to interview&#58;<br></p><ul><li>Resident A</li><li>Resident A’s roommate</li><li>Like residents</li><li>Staff and volunteers with access to Resident A who worked during the two-week period when the bruise is believed to have occurred</li><li>Visitors who had access to Resident A in the same time period.</li></ul><p></p><h3>Step 4&#58; Conclude and follow up.</h3><p>After reviewing the evidence collected and conducting interviews, the investigator conducts a root-cause analysis. Once the investigator makes a reasonable determination of cause, the facility must follow up to close the investigation. <br></p><p>Follow-up may include completing mandatory reports, such as the facility-reported incident (FRI) sent to the department of health, education needs, disciplinary actions, or policy and process changes.<br></p><p>The nursing home administrator or designee may wish to again consult corporate staff or legal counsel before conversations with family members, especially if the information being relayed is negative. Facility leaders should also inform the medical director of the investigation’s outcome. Then, update the medical record and provide any reimbursement, as necessary, in cases of theft or misappropriation.<br><br>Conducting a thorough investigation ensures no details are missed and that the voices of all involved in the allegation or incident are heard. It also mitigates risk of survey issues, litigation, and recurring safety issues. Facility leaders should prioritize thorough investigations and reassess processes now to avoid the possible repercussions of inaction or inadequacy.&#160; <br><br><strong>Denise Winzeler, BSN, RN, LNHA, DNS-CT, QCP,</strong> <em>is curriculum development specialist for the American Association of Post-Acute Care Nursing (AAPACN). She can be reached at <a href="mailto&#58;dwinzeler@aapacn.org" target="_blank">dwinzeler@aapacn.org</a>.<br></em></p><p><em><br></em></p><p style="text-align&#58;center;"><em><a href="http&#58;//aapacn.org/" target="_blank"><img src="/SiteCollectionImages/logos/AAPACN.jpg" alt="AAPACN " style="margin&#58;5px;width&#58;235px;height&#58;71px;" /></a><br></em></p><p><em><br></em></p><p><em>References<br></em></p><ul><li><em><a href="https&#58;//www.cec.health.nsw.gov.au/__data/assets/pdf_file/0018/259011/what_is_a_patient_safety_incident.pdf" target="_blank">Clinical Commission (Australia). (2014). Clinical excellence commission open disclosure handbook&#58; What is a patient safety incident? </a></em></li><li><em><a href="https&#58;//www.merriam-webster.com/dictionary/investigate" target="_blank">Merriam-Webster. Merriam-Webster.com dictionary. Retrieved March 23, 2021.</a><br></em></li><li><em><a href="https&#58;//www.compliance.com/resources/26-tips-experts-conducting-witness-interviews/" target="_blank">Strategic Management Services LLC. (2015, January). 26 Tips from experts on conducting witness interviews. Compliance.com. </a></em></li></ul>2021-06-01T04:00:00Z<img alt="" src="/Monthly-Issue/2021/June/PublishingImages/0621_Caregiving.jpg" style="BORDER&#58;0px solid;" />Caregiving;LegalDenise Winzeler, RNMerriam-Webster defines investigation as a “study by close examination and systematic inquiry.” To inquire systematically and examine all factors thoroughly, organization is key.
Watch Out for Wage-Hour Minefields<div>​</div> <div> In the struggle to attract and keep good employees in today’s competitive job market, many long term care facilities offer creative incentive packages. Employers that do so without fully understanding wage and hour implications put themselves at risk for devastating liability. Federal law makes it easy for employees to pursue claims as a group and provides successful plaintiffs automatic doubling of back pay. Simple mistakes can create liability in excess of $100,000, and, occasionally, over $1 million. <br></div> <div><br></div> <div>As staffing challenges grow, maintaining appropriate levels is more important and complex than ever. The Centers for Medicare &amp; Medicaid Services’ (CMS’) Five-Star Quality Rating System is based partly on nursing staff per resident. In 2019, CMS updated staffing ratios and added an automatic downgrade to one star for facilities that report at least four days per quarter with no registered nurse on site. Many states also impose stringent staffing ratios. <br></div> <div><br></div> <div>Employers that rely on payroll companies for wage calculations retain responsibility. Vendors can—and do—make errors, especially when employers don’t understand the overtime implications on incentives and bonuses.</div> <div><br></div> <div>Following are some issues and potential pitfalls that long term care employers and their payroll and human resources departments should watch for.</div> <h2 class="ms-rteElement-H2">Fair Labor Rules</h2> <div>The general rule under the Fair Labor Standards Act says employers must pay overtime to non-exempt workers for all hours over 40 in a work week at not less than one and one-half times the employee’s regular rate, as spelled out in Title 29 of the U.S. Code of Federal Regulations (CFR). That “regular rate” is not necessarily the employee’s base rate. <br></div> <div><br></div> <div>To calculate the regular rate, divide total renumeration in a work week by the total hours worked (including overtime hours). Do not include dollars or hours paid but not worked, such as vacation.&#160;</div> <div><ul><li>Shift Differentials/Incentives. Generally, shift differentials must be included in the employee’s regular rate of pay for determining overtime. The same is true for incentives offered to fill open shifts or work certain days.</li> <li>Payroll Pointer. Premium pay for working on a “special day” (holiday, weekend, or scheduled day off) that is not less than the employee’s overtime rate can be excluded from the regular rate and counted toward the employer’s overtime obligation in some circumstances, according to the CFR. Given the complexity of this determination, employers should consult with legal counsel.</li> <li>Payroll Pointer. Employers can limit the need for some complex rate calculations by carefully structuring bonuses to be based on a percentage of total earnings before the employee provides the services. In that case, per federal code, the employer does not need to recalculate overtime on the bonus payment.</li></ul></div> <div>For example, the employer could offer a retention bonus of 15 percent of the employee’s annual straight-time and overtime earnings. Because the percentage applies to the employee’s overtime earnings, no further calculation is needed. <br></div> <div><ul><li>Multiple Rates. When different rates are paid for two different jobs, the default rule is to pay overtime based on the weighted average (that is, total compensation divided by total hours worked).</li> <li>Discretionary Bonuses. Payments made to employees without obligation or prior promises may be excluded from the regular rate and not subject to overtime calculations. Discretionary bonuses are uncommon; think twice before excluding any bonus from the regular rate.</li> <li>Nondiscretionary Bonuses. Most nondiscretionary bonuses must be included in the regular rate for the weeks when the bonus was earned. Referral bonuses do not need to be included, according to U.S. Department of Labor guidelines, if “1.) participation is strictly voluntary; 2.) recruitment efforts do not involve significant time; and 3.) the activity is limited to after-hours solicitation done among friends, relatives, neighbors, and acquaintances.”</li></ul></div> <div><img src="/Monthly-Issue/2020/February/PublishingImages/legal_staff-chart.jpg" class="ms-rteImage-1" alt="" style="margin&#58;5px;" /><br><br>A bonus is considered nondiscretionary under federal regulations if the employer has promised, agreed, or even implied that it would pay it. Examples include attendance, production, quality, and retention bonuses. The employer must identify each work week during which the employee earned overtime and calculate the additional overtime due.</div> <div><br></div> <h2 class="ms-rteElement-H2">Adding it Up</h2> <div>Fictional employee, Pat, works for a center as both a certified nurse assistant (CNA) and as a certified medical assistant (CMA). Pat earns $13.00/hour as a CNA and $15.00/hour as a CMA. All nursing department employees receive a $1.00 per hour shift differential for hours between 2 p.m. and 10 p.m. and a “pick-up” premium for filling vacant shifts, which varies based on the urgency of the need. Pat’s schedule for a recent workweek is on the facing page.</div> <div><br></div> <div>Pat also received a $30.50 attendance bonus for this work week. In total, Pat worked 49 hours and earned $808.50 in straight-time wages.&#160;</div> <div><br></div> <div>Pat’s regular rate of pay for overtime calculation purposes is $16.50/hr. ($808.50 divided by 49 hours). This regular rate calculation is where payroll often trips up, failing to include the bonus amount or using one hourly rate instead of the weighted average. Incorrect calculations can result in liability for underpayments, or in the alternative, consistently overpaying employees on top of their costly incentives.</div> <div><br></div> <div>Beware, users of outside payroll companies—many may default to using the hourly rate the employee happens to be working when the overtime hours occur without telling the employer they are doing so. In order to legally use this method instead of the weighted average rate, the employer and employee need an advance agreement, according to 29 CFR. Sec. 778.419. <br></div> <div><br></div> <div>Additionally, since many work weeks end over the weekend (when premium pay is more likely), using that method will base overtime pay on a rate higher than the weighted average. <br></div> <div><br></div> <div>Total compensation can be determined with the formula (40 hours x Regular Rate) + (OT hours x 1.5 x Regular Rate). Here’s how the math works out for Pat in this example&#58; </div> <div>40 hours x $16.50 = $660. </div> <div>9 hours x 1.5 x $16.50 = $222.75</div> <div>Total compensation owed is $882.75. </div> <div>Calculating instead just additional overtime due (Regular Rate x 1.5 x OT hours) and then adding in straight-time wages would reach the same total amount. <br></div> <div><br></div> <div>An easier path? Not so fast&#58; The Labor Department recently proposed revisions and clarifications to the “fluctuating work week” (FWW) method of determining overtime for non-exempt employees who receive bonuses, which allows employer and workers to agree to a weekly base for all hours worked with only additional half-time pay for hours above 40.</div> <div><br></div> <div>While the proposal would extend FWW rules to bonus payments, the new model is not likely to have broad applications in long term care staffing where non-exempt employees generally have set base and variable OT hours. Long term care employers that may need workers to stay late or meet surge needs may find it difficult to convince employees to work an overtime hour for what may feel to them like a half-hour’s pay. </div> <h2 class="ms-rteElement-H2">Getting it Right</h2> <div>These are just a few of the many rules and approaches to properly attract and retain workers through properly calculated bonuses and overtime. There are other compensation arrangemewnts that can alter calculations and allow employers to fully pay and motivate employees while controlling labor costs. There could be state and local regulations, too.</div> <div><br></div> <div>But the headaches of getting it right usually pass with experience, attention to detail, and some help from experts when needed. The pain of getting it wrong while scrambling to keep fully staffed through creative overtime and bonus and incentive packages can last much, much longer. </div> <div>&#160;</div> <div><em>Michaelle L. Baumert is a principal in the Omaha office of Jackson Lewis. She is a seasoned litigator and has extensive experience in human resources counseling with an emphasis on wage and hour issues. She can be reached at Michaelle.Baumert@jacksonlewis.com or&#160;402-827-4270. Catherine A. Cano is an associate in the Omaha office of Jackson Lewis, representing management in all areas of labor and employment law. She can be reached at Catherine.Cano@jacksonlewis.com or 402-391-1991. </em></div>2020-02-01T05:00:00Z<img alt="" src="/Monthly-Issue/2020/February/PublishingImages/legal_t.jpg" style="BORDER&#58;0px solid;" />Legal;WorkforceMichaelle L. Baumert and Catherine A. CanoIn the struggle to attract and keep good employees in today’s competitive job market, many long term care facilities offer creative incentive packages.
Compliance in Patient Care Comes Into Focus<div>​</div> <div> The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) recently updated its Work Plan to add an additional topic focusing on nursing facilities that receive Medicare and Medicaid reimbursement. </div> <div>&#160;</div> <div>The Work Plan provides a summary of new, revised, and continuing reviews for HHS programs and operations, including Medicare and Medicaid. It describes ongoing audits, evaluations, and specific legal and investigative matters. In addition, within the first four months of 2019, OIG has issued two reports and one data brief regarding nursing facilities. </div> <h2 class="ms-rteElement-H2"> An Opportunity for Review</h2> <div>The release of these reports and the addition to the Work Plan provide an opportunity for nursing facilities to review their own operations and practices while comparing them to the objectives in the Work Plan in order to identify areas for compliance improvement.</div> <div><br></div> <div>OIG conducts investigative activities that involve allegations of fraud, waste, and abuse in all HHS programs. Medicare and Medicaid constitute a significant portion of its work. Areas that OIG can investigate include billing for services not rendered, provision of medically unnecessary and misrepresented services, patient harm, and the solicitation and receipt of kickbacks. <br></div> <div><br></div> <div>In addition to performing investigations, OIG is also involved in facilitating compliance in the health care industry and the exclusion of individuals and entities from participation in Medicare, Medicaid, and other federal health care programs.</div> <h2 class="ms-rteElement-H2">The New Topic</h2> <div>Recently, OIG added a new topic to the Work Plan focusing on post-hospital skilled nursing facility (SNF) care to individuals eligible for Medicare and Medicaid, or dually eligible individuals.</div> <div><br></div> <div>Similar to topics added in the past, OIG noted previous reviews as the basis for the addition. Here, OIG references previous reviews that showed some residents who lived in and received Medicaid-covered nursing facility care were admitted to a hospital, discharged, and then returned to the same facility to receive Medicare-covered post-hospital SNF care.&#160;</div> <div><br></div> <div>OIG found that nursing facility physicians certified that individuals needed skilled care even though the hospital discharged the individual home to a Medicaid facility rather than a SNF. This is concerns the Centers for Medicare &amp; Medicaid Services (CMS) because of a belief that nursing facilities have a financial incentive to increase the level of care since Medicare pays more for SNF care than Medicaid pays for nursing facility care. </div> <h2 class="ms-rteElement-H2">Increased Scrutiny</h2> <div>With this new topic, OIG will be examining the level of care requirements for post-hospital SNF care provided to dually eligible beneficiaries. Specifically, OIG will be determining whether&#58;</div> <ul><li>The SNF level of care was certified by a physician or a physician extender; </li> <li>The condition treated at the SNF was a condition for which the individual received inpatient hospital services or was a condition that arose while the individual was receiving care in a SNF for an eligible stay; </li> <li>Daily skilled care was required; </li> <li>The services delivered were reasonable and necessary for the treatment of an illness or injury; and </li> <li>The Medicare payments made were improper.</li></ul> <div>In one report, OIG determined that CMS improperly paid claims for SNF services when the Medicare three-day inpatient hospital stay rule was not met. OIG attributed those improper payments to several factors, including the failure of hospitals to provide correct inpatient stay information and SNFs reporting erroneous hospital stay information with their claims. </div> <h2 class="ms-rteElement-H2">Addressing the Issues</h2> <div>CMS concurred with several recommendations from OIG to address the issues from this report. </div> <div>The first was to confirm that the Common Working File qualifying inpatient stay edit is enabled during the processing of SNF claims for payment. Also, CMS concurred with OIG’s recommendation for the provision of additional education to hospitals and SNFs about three-day inpatient stay documentation.</div> <div><br></div> <div>The second report issued by OIG addressed the need for the improvement of CMS guidance to State Survey Agencies (SSAs) on verifying correction of deficiencies to help ensure the health and safety of residents. Specifically, OIG found that seven of nine state agencies did not always verify the correction of deficiencies by nursing facilities and that the state agencies did not consistently obtain or maintain evidence of the corrections.&#160;</div> <div><br></div> <div>Ultimately, OIG determined that CMS guidance to SSAs regarding the verification of correction of deficiencies and the maintenance of documentation to support that verification needs to be improved. </div> <h2 class="ms-rteElement-H2">Deficiency Trends</h2> <div>Complementing that report from February, OIG issued a data brief in April that identified and analyzed trends in the deficiencies identified by SSAs in nursing facility surveys nationwide. Of note, several of the trends identified by OIG include that approximately 31 percent of nursing facilities had a repeat deficiency in the four-year review period and that the top 10 deficiency types comprised more than 40 percent of all the deficiencies reviewed. </div> <div><br></div> <div>The top 10 deficiency categories identified by OIG were&#58; free of accident hazards; establish an infection control program; provide care and services for highest well-being; food and sanitary; develop comprehensive care plans; drug regimen free from unnecessary drugs; drug records, label, store drugs, and biologicals; resident records; dignity and respect of individual; and investigate, report allegations, and individuals.</div> <div><br></div> <div>These audits, evaluations, and reports by OIG serve as an important reminder that nursing facilities must remain vigilant with their documentation, level of care certifications, and provision of services. The Work Plan provides insight into the areas that could come under scrutiny and ultimately can help guide internal compliance activities for a nursing facility. In addition to the Work Plan topics, the recent reports and data brief by OIG provide further confirmation of this increased review activity. </div> <div><br></div> <div>The recommendations, trends, and topics identified by OIG serve as helpful hints for nursing facilities when reviewing their own operations and compliance activity. For example&#58;</div> <ul><li>Nursing facilities need to ensure that physician certifications are compliant with applicable requirements. </li> <li>It is essential that nursing facilities properly train billing and claims staff and that staff keep current with regulatory service provisions. </li> <li>Nursing facilities need to be sure that they obtain complete and accurate documentation to verify the three-day stay requirements and documentation. </li> <li>As SSAs work to improve their processes regarding verification of corrective actions, nursing facilities should anticipate additional follow-up and closer scrutiny regarding documentation and corrective actions. </li> <li>To be prepared, nursing facilities must thoroughly document their plans of correction. </li> <li>Further, it is important for nursing facilities to implement their corrective action items and maintain adequate records to document implementation and completion.</li></ul> <div>With these recent developments in mind, nursing facilities should review their operations and take the steps necessary to be better prepared to achieve and maintain compliance and provide proper and quality care. </div> <div>&#160;</div> <div><em>Iain Stauffer serves as Of Counsel at Poyner Spruill in the Health Law Section. He can be reached at <a href="mailto&#58;istauffer@poynerspruill.com" target="_blank">istauffer@poynerspruill.com</a>.</em></div>2019-06-01T04:00:00Z<img alt="" src="/Monthly-Issue/2019/June/PublishingImages/legal_t.jpg" style="BORDER&#58;0px solid;" />LegalIain StaufferThe HHS OIG recently updated its Work Plan to add an additional topic focusing on nursing facilities that receive Medicare and Medicaid reimbursement.
What is New with Revised Appendix Q<div>​</div> <div> The Centers for Medicare &amp; 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. </div> <div><br></div> <div>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.</div> <div>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. </div> <h2 class="ms-rteElement-H2">A Standardized Format</h2> <div>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.”</div> <div><br></div> <div>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.”</div> <div><br></div> <div>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.</div> <div><br></div> <div>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.</div> <h2 class="ms-rteElement-H2">Changes to Note</h2> <div>First, the revised guidance clearly outlines the three elements of immediate jeopardy&#58;</div> <ul><li>Noncompliance. </li> <li>Noncompliance has caused or created a “likelihood” of serious injury, harm, or death. </li> <li>Immediate action is necessary to prevent occurrence or recurrence of the serious harm or death.</li></ul> <div>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.</div> <div><br></div> <div>“Likelihood” is defined in the revised guidance as follows&#58; “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.” </div> <div><br></div> <div>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. </div> <div><br></div> <div>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.&#160;</div> <div><br></div> <h2 class="ms-rteElement-H2">The Timely Template</h2> <div>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. </div> <div><br></div> <div>A written template precisely outlining the immediate jeopardy should eliminate this concern.</div> <div><br></div> <div>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.” </div> <div><br></div> <div>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.</div> <h2 class="ms-rteElement-H2">Other Definition Issues</h2> <div>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. </div> <div><br></div> <div>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.</div> <div><br></div> <div>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.</div> <div>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. </div> <h2 class="ms-rteElement-H2">Toward More Accountability </h2> <div>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.</div> <div><br></div> <div>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.</div> <h2 class="ms-rteElement-H2">Removing Immediate Jeopardies</h2> <div>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.</div> <div><br></div> <div>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.</div> <div>&#160;</div> <div>Finally, CMS has an online training course on this revised Appendix Q, which is available to both providers and surveyors, at https&#58;//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.&#160;</div> <div><br></div> <div><em><img src="/archives/2019_Archives/PublishingImages/0519/CarolRolf_legal.png" alt="Carol Rolf" class="ms-rtePosition-1" style="margin&#58;5px 15px;" />Carol 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. <br></em></div> <div><em><br></em></div> <div><em><img src="/archives/2019_Archives/PublishingImages/0519/MicheleConroy_legal.png" class="ms-rtePosition-2" alt="Nichele Conroy" style="margin&#58;5px 10px;" /><br>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.</em><br></div>2019-05-01T04:00:00Z<img alt="" src="/Monthly-Issue/2019/May/PublishingImages/legal_t.png" style="BORDER&#58;0px solid;" />LegalCarol Rolf and Michele Conroy, RNCMS recently completed an overhaul of Appendix Q of the Medicare SOM, which provides the guidance for survey agencies in identifying and citing conditions of immediate jeopardy for providers.