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Immediate jeopardy: True or false?

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Probably no two words strike more fear in the hearts and minds of nursing home owners and operators than “immediate jeopardy.” And, for good reason. When immediate jeopardy is alleged by a survey team, a cascade of painful consequences is about to unfold. 

When a survey team cites immediate jeopardy, it must notify the Centers for Medicare and Medicaid Services (CMS). The clock begins to tick: CMS will terminate a nursing home’s Medicare provider agreement within 23 calendar days if the immediate jeopardy is not removed.

Termination as a Medicare provider will lead to removal from the Medicaid program as well, and few nursing facilities can survive once that happens. In addition to possibly losing their business, nursing facilities cited with immediate jeopardy face huge civil money penalties (CMP), frequently exceeding $1 million.

Immediate Jeopardy

Federal regulations define immediate jeopardy 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.” (42 CFR 488.301). Thus, in order for immediate jeopardy to exist, there must have been noncompliance with a requirement of participation that either: 1) caused serious injury, harm or death to a resident, or 2) “is likely” to cause such harm.

The first part of the definition is usually simple to determine: Either a facility’s noncompliance, also called a “deficiency,” caused serious harm or death, or it did not. But the second prong of the definition, whether an alleged deficiency was “likely” to cause harm, often becomes a legal battle that is fought and resolved in the various stages of an appeal.

CMS publishes the State Operations Manual (SOM) as “guidance” to surveyors. The SOM helps surveyors interpret and understand the regulations, but it does not have the force of law. CMS has published Appendix Q of the SOM, Guidelines for Determining Immediate Jeopardy in order to help surveyors understand what constitutes immediate jeopardy.

Appendix Q notes that there are three components to immediate jeopardy: 1) harm – either actual or that which “is likely” to occur, 2) culpability, and 3) “immediacy.” Notably, Appendix Q informs surveyors that if serious harm or death has not already occurred, it is considered “likely” if it is likely to occur “in the very near future.” Appendix Q repeats the phrase “in the very near future” multiple times.

If something has not occurred for a year or say, seven months, is it really “likely to occur in the very near future”? CMS thinks so. In spite of its explicit guidance in Appendix Q, CMS has been known to argue that immediate jeopardy existed for many months even if there is no harm at any level during that period.

The problem for providers is that in such cases, CMS has often already imposed a CMP in excess of $1 million, which must be collected and placed in escrow. Unfortunately, an appeal can take years before a final decision is rendered.

Getting Justice

There is a silver lining for providers who wish to challenge immediate jeopardy determinations where CMS claims that immediate jeopardy existed for many months even in the complete absence of any harm or even a minor bruise to any resident.

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Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

www.agg.com

Alan C. Horowitz, Esq., is a partner at...

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