CMS Revised Immediate Jeopardy Guidance

The Centers for Medicare & Medicaid Services (CMS) has issued guidance addressing immediate jeopardy, or violations of health and safety regulations that cause serious harm or death to a patient and require immediate action to prevent further serious harm. The guidance in the revised Appendix Q of the State Operations Manual clarifies what information is needed to identify immediate jeopardy cases and includes an administrative tool that helps surveyors make sure they have the evidence needed to meet criteria for immediate jeopardy. CMS has also posted online training on this new guidance, available here.
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Key Changes in the Core Appendix Q include:

• Likelihood instead of potential – The previous version of Appendix Q suggested that a potential for serious harm might constitute immediate jeopardy. Core Appendix Q makes it clear that in order to cite immediate jeopardy in situations where recipients have not already suffered serious injury, harm, impairment or death, the nature and/or extent of the identified noncompliance creates a likelihood (reasonable expectation) that such harm will occur if not corrected, not simply the potential for that level of harm to occur.
  
• Culpability has been removed – The previous version of Appendix Q made culpability a required component to cite immediate jeopardy. Because the regulatory definitions of immediate jeopardy do not require a finding of culpability, that requirement has been removed and has been replaced with the key component of noncompliance, since the definitions of immediate jeopardy require noncompliance to be the cause of the serious injury, harm, impairment or death, or the likelihood thereof.
  
• Psychosocial harm – Core Appendix Q includes a section instructing surveyors to consider whether noncompliance has caused or made likely serious mental or psychosocial harm to recipients. In situations where the psychosocial outcome to the recipient may be difficult to determine or incongruent with what would be expected, the guidance instructs surveyors to use the reasonable person concept to make that determination. The reasonable person approach considers how a reasonable person in the recipient’s position would be impacted by the noncompliance (i.e. consider if a reasonable person in a similar situation could be expected to experience a serious psychosocial adverse outcome as a result of the same 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.
  

If you have questions or need additional information, contact Sarah Chestnut at sarah@inarf.org.