Tuesday, October 26, 2021
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CMS Delivers New Guidance on Immediate Jeopardy

New guidance​ from the Centers for Medicare & Medicaid Services (CMS) revises the guidelines to determine immediate jeopardy. The changes to Appendix Q of the State Operations Manual — referred to as Core Appendix Q — apply to all providers and suppliers and include subparts that focus on concerns in nursing homes and clinical laboratories.

CMS is offering a web-based training on the changes; more information is available here.

The guidance applies only to surveys assessing compliance with federal law, not to surveys assessing compliance with state law. Key changes are outlined below.

Likelihood instead of potential

Core Appendix Q makes it clear that citing immediate jeopardy in situations where recipients have not already suffered serious injury, harm, impairment, or death, the nature or extent of the identified noncompliance creates a likelihood that such harm will occur if not corrected – not simply the potential for that level of harm to occur.

Removal of culpability

The previous version of Appendix Q required culpability for citing immediate jeopardy. Because the regulatory definitions of immediate jeopardy do not require a finding of culpability, that requirement has been removed. Instead, noncompliance is now a key component, since the definitions of immediate jeopardy require it to be the cause of the serious injury, harm, impairment, or death – or the likelihood thereof.

Psychosocial harm

Core Appendix Q instructs surveyors to consider whether noncompliance has caused or made likely serious mental or psychosocial harm. According to the guidance, in situations where the psychosocial outcome may be difficult to determine or incongruent with what would be expected, surveyors should make the determination based on how a reasonable person in the recipient’s position would be impacted by the noncompliance.

No automatic immediate jeopardy citations

Core Appendix Q makes it clear that each immediate jeopardy citation must be decided independently, and there are no automatic immediate jeopardy citations.

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