Termination Procedures - Immediate Jeopardy to Patient Health

3010 - Termination Procedures - Immediate Jeopardy to Patient Health and Safety (Medicare) (Rev. 1, 05-21-04) (See §§7307 - 7309 for SNFs/NFs.) 3010A - Substantial Noncompliance With Program Requirements Which Poses Immediate Jeopardy to Patient Health or Safety (Rev. 1, 05-21-04) “Immediate Jeopardy” is interpreted as a crisis situation in which the health and safety of patients is at risk. Generally, it is a deficient practice that indicates the operator’s inability to furnish safe care and services, although it may not have resulted in actual harm. The threat of probable harm is real and important and could be perceived as something that will result in potentially severe temporary or permanent injury, disability, or death. Therefore, it must be perceived as something that is likely to occur in the very near future. If the patients are not protected effectively from the threat, or if the threat is not removed, there is a high probability that serious harm or injury could occur at any time or already has occurred and may occur again. A list of operational definitions of what can constitute an immediate jeopardy to patient health and safety is presented as a guide to be used by all surveyors. (See Appendix Q.) Generally, the criteria applies to most providers and suppliers, although some criteria may apply to only certain types of providers or suppliers. The operational definitions are not intended to be all-inclusive, nor are they intended to inhibit the professional judgment of the surveyors. Surveyors may find that an immediate jeopardy does not exist when the definitions seem to apply or that such a threat does exist even though the definitions do not address the situation or condition observed by the surveyors. The key factor in the use of the immediate jeopardy termination authority is, as the name implies, limited to immediate and serious. The threat must be present when you are onsite and must be of such magnitude as to seriously jeopardize a patient’s health and safety. There should be no other application of immediate jeopardy terminations. Do not use these procedures to enforce compliance quickly on more routine deficiencies. 3010B - Processing of Immediate Jeopardy Terminations (Rev. 123, Issued: 10-03-14, Effective: 10-03-14, Implementation: 10-03-14) When an immediate jeopardy to patient health or safety is documented, the SA and RO complete termination procedures within 23 calendar days. Processing times given here are the maximum allowed. Do not postpone or stop the procedure unless compliance is achieved and documented through onsite verification. If there is a credible allegation that the threat or deficiency has been corrected, the SA conducts a revisit prior to termination if possible. Deemed Providers/Suppliers: See Chapter 5, Section 5110.2, for the procedures and timelines applicable when an SA validation survey identifies an immediate jeopardy in a deemed provider or supplier. Special Procedures for IJ in Psychiatric Hospital Surveys Conducted by CMS’ Contract Surveyors When a psychiatric hospital survey is conducted by CMS contract surveyors and they identify immediate jeopardy to patient health or safety, the RO will make the final determination as to whether or not there is an immediate jeopardy situation. The CMS contract surveyors will notify the RO during survey if possible that immediate jeopardy to patient health or safety is identified. On the last day of the survey, CMS contract surveyors contact the CMS Central Office (CO) and the applicable RO to certify noncompliance and that an immediate jeopardy exists. The CMS contract surveyors discuss their findings with the provider and tell the providers that they are mailing the RO by overnight express mail completed Forms CMS-1537A and CMS-2567. A copy is also mailed to CO for review. The RO reviews the survey package (Forms CMS-1537A and CMS-2567), and if it determines noncompliance, it mails Form CMS-2567 to the provider. After doing so, the RO follows the 23 calendar day termination procedure as outlined below beginning with the fifth working day. All Other SA Surveys with IJ Findings: 23-Day Termination Procedures 1. Date of Survey - The date of the survey is the date on which the entire survey is completed, regardless of when the exit conference is held. 2. Second Working Day - No later than 2 working days following the survey date. The SA: • Telephones the RO that it is certifying noncompliance and that an immediate jeopardy exists; and • Notifies the provider/supplier (by overnight express mail, FAX or e-mail) of its deficiencies and informs the provider/supplier that it is recommending termination to the RO, which will issue a formal notice. The notice advises the provider/supplier of its right to due process, the expected schedule for termination action, and that the deficiency must be corrected and verified by the SA to halt the termination. If the provider also participates in Medicaid, the SA notifies the SMA of its certification of noncompliance. 3. Third Working Day - The SA forwards all supporting documentation to the RO (e.g., statement of deficiencies, correspondence, contact reports, Form CMS- 1539). The SA forwards the information by overnight mail to assure that the RO receives it in time to meet the 5-working-day deadline. Upon receipt of the SA information, the RO reviews the documents and makes its determination of noncompliance. 4. Fifth Working Day - The provider/supplier and the public are then notified by the RO of the proposed termination action by the most expeditious means available. A press release to the radio and television stations serving the area in which the provider/supplier or institution is located is acceptable if a newspaper notice cannot be arranged in the time allotted. Notice must be made at least 2 calendar days prior to the effective date of termination. (See 42 CFR 488.456(c).) 5. Tenth Working Day - If the SA only sent notification of the IJ deficiencies on the second working day to the provider/supplier and RO, and there are other, non-IJ deficiencies, (non-IJ condition and standard level), then the SA must write up another 2567 with the non-IJ deficiencies and forward copies to the provider/supplier, the RO and SMA within ten working days. The SA retains a copy for its records. 6. Twenty-Third Calendar Day - The termination takes effect unless compliance is achieved or threat is removed. If the threat has been removed, but deficiencies still exist at the Condition level, the SA gives the provider/supplier up to 67 more calendar days, or 90 calendar days total (23 plus 67). These dates are maximum times, and participation may be terminated earlier if processing allows. However, the RO must adhere to both the provider/supplier and public notice timeframes. If the RO disagrees based upon its review of the documentation, the RO discusses the results of the review with the SA and solicits further evidence to support the SA’s recommendation. The RO confers with the SA as to the appropriate action to be taken. Should the RO and the SA fail to agree that an immediate jeopardy exists, a revisit will be conducted by the RO and the SA together to ascertain whether or not immediate jeopardy to the patient’s health and safety exists or has been removed. If the RO and SA agree that an immediate jeopardy exists, no revisit is necessary by the RO. Under no circumstances should the RO reverse a SA recommendation that an immediate jeopardy has been removed or not removed unless the determination is made on the basis of an onsite determination by Federal surveyors. Medicaid agreements with facilities that concurrently participate in Medicare should be terminated on the same date the Medicare agreement is terminated. For NFs that also participate as SNFs (i.e., dually-participating), the State’s timing of termination shall control if it does not occur later than six months after the last day of the survey when both CMS and the State find that a facility is not in substantial compliance and the facility’s participation should be terminated. (See 42 CFR 488.452.) For NFs, ICFs/IID, Medicaid-only hospitals and Medicaid-only psychiatric hospitals, where State law or the State Medicaid plan permits, Medicaid-only facilities with an immediate jeopardy situation should be terminated by the State Medicaid Agency within the above time limits.