CMS updates immediate jeopardy guidance: 4 key changes

In late November, CMS revised guidance for surveyors and healthcare providers regarding immediate jeopardy — the most serious type of warning for noncompliance deficiencies that place organizations at risk of losing federal funding. 

Surveyors use the Core Appendix Q guidance for all provider and supplier types to determine when situations warrant an immediate jeopardy citation. The guidance was originally drafted in 2004 and was previously updated in 2019. The latest revisions are meant to "clarify and increase consistency in identifying immediate jeopardy," CMS said in a memo. 

Here are four key guidance changes, per the memo: 

1. To issue an immediate jeopardy in situations where individuals have not already experienced serious harm, there must be a "likelihood" that serious injury, harm, impairment or death will occur if the identified noncompliance is not corrected. CMS refers to "likelihood" as a "reasonable expectation" that serious harm will occur. This is a shift from the 2019 version of the guidance, which suggested that "potential" for serious harm could warrant an immediate jeopardy.
   
   
2. The revised guidance eliminates "culpability" as a required element for immediate jeopardy citations. Instead, surveyors must focus on whether noncompliance caused, or is likely to cause, serious harm. CMS noted this aligns with regulatory definitions that emphasize the role of noncompliance over assigning blame.
   
   
3. Surveyors must assess whether deficiencies have "caused or made likely serious mental or psychosocial harm," according to the guidance. In cases where it may be difficult to determine whether individuals have suffered serious psychosocial harm, surveyors should apply the reasonable person concept when making that determination. "The reasonable person approach considers how a reasonable person in the recipient's position would be impacted by the noncompliance," CMS said.
   
   
4. The guidance specifies that there are no automatic immediate jeopardy citations: Each individual citation should be decided independently. 

The full 30-page memo on the updated guidance, which also includes subpart revisions that apply specifically to nursing homes and laboratories, can be found here.