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New Focus on Immediate Jeopardy: Revisions to Appendix Q

on Wednesday, 3 April 2019 in Health Law Advisory: Zachary J. Buxton, Editor

Appendix Q to the State Operations Manual sets out surveyor guidance regarding Immediate Jeopardy findings. The revised guidance published by CMS in a Quality, Safety and Oversight Memo on March 5, 2019, includes a “Core” Appendix Q applicable to all provider and supplier types. Two subparts, applicable to nursing homes and clinical laboratories, have been added because those provider types have specific immediate jeopardy policies.

CMS summarizes the key changes to Core Appendix Q as falling into four categories:

  1. Likelihood instead of potential. Previously, Appendix Q stated that a “potential” for serious harm could trigger an immediate jeopardy finding. The revised version increases the risk profile to be a “likelihood” (reasonable expectation) that serious injury, harm, impairment or death will occur if not corrected.
  2. Culpability no longer a factor. Appendix Q used to include culpability as a required element of an immediate jeopardy finding. This requirement was not part of the regulations so has now been removed from the revised Appendix Q and replaced with noncompliance as the cause of the likelihood (or actual) serious injury, harm, impairment or death.
  3. Psychosocial harm. Appendix Q adds a section instructing surveyors to assess whether or not the noncompliance that gave rise to immediate jeopardy could include a component of psychosocial harm (i.e., if a reasonable person in a similar situation could be expected to experience a serious psychosocial adverse outcome as a result of the noncompliance).
  4. No automatic immediate jeopardy citations. Each citation must be determined independently based on the definitions. There are no automatic citations.

In addition to the separate subparts of Core Appendix Q that are applicable to nursing facilities and clinical laboratories, CMS has prepared an Immediate Jeopardy Template for use by surveyors.

The Immediate Jeopardy Template guides the surveyor’s thought process regarding noncompliance; evidence or likelihood of serious injury, serious harm, serious impairment or death; and the need for immediate action. The template is strictly a work paper. Only CMS Form 2567 may be used to document official survey findings.

The principal impact of these revisions is to focus Immediate Jeopardy findings on serious events that have occurred or that have a likelihood of occurring so that they can be swiftly investigated and corrected. Surveyors are directed to use the template for decision-making in calling an Immediate Jeopardy finding and to contact the State Agency at minimum, and in some cases, the CMS Regional Office to confirm the correctness of the finding. If the State Agency and the Regional Office disagree, the Regional Office opinion takes precedence.

Julie A. Knutson

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