Understanding CMS “Immediate Jeopardy” Investigations in Healthcare Facilities

When it comes to ensuring patient safety, healthcare facilities operate under a complex regulatory framework, including oversight from the Centers for Medicare & Medicaid Services (CMS). One of the more intense processes CMS oversees is investigating the existence of conditions that create the potential for “immediate jeopardy” to patients. While many professionals in the healthcare industry may be familiar with this process, it’s not uncommon to encounter confusion, especially for those facing it for the first time. Here’s a primer on what to expect and how to navigate it effectively.

What Is “Immediate Jeopardy”?

CMS describes “immediate jeopardy” as a situation where a healthcare facility has placed the health and safety of patients at risk for “serious injury, serious harm, serious impairment, or death.” Importantly, a finding of immediate jeopardy doesn’t require actual harm—just the potential for harm is enough to trigger an investigation.

While this designation most commonly affects skilled nursing facilities, it can extend to any healthcare facility, including behavioral health facilities and hospitals.

How Does the Process Work?

An investigation into immediate jeopardy can be triggered by self-reported events or reports from external parties. Once triggered, the CMS regional office or the state Medicaid agency moves swiftly, employing a multi-faceted approach that includes:

• Observation: Examining facility operations and patient interactions.
• Records Review: Analyzing documentation and compliance with CMS guidelines.
• Interviews: Speaking with providers and staff to assess awareness and adherence to protocols.

These investigations are rapid and thorough, often catching facility staff off guard due to their intensity and speed.

What Comes Out of the Investigation?

Following the investigation, CMS issues an Immediate Jeopardy report. This document identifies:

• The harm or potential harm.
• The immediacy and severity of the risk.
• The culpability of the facility and, in some cases, individual providers or administrators.

It also outlines required corrective actions, or “abatement” steps, to address the immediate jeopardy. These steps can include:

• Terminating individuals responsible for the failure.
• Implementing new policies and procedures.
• Taking other corrective measures.

Failure to comply with abatement measures can lead to severe consequences, including termination of CMS provider agreements.

Public Reporting and Legal Implications

CMS maintains a publicly searchable database that includes information about facilities with immediate jeopardy findings. This transparency means facilities cannot shield these findings under patient safety work product or peer review privileges, although internal investigations and associated findings may still be protected.

Legal’s Role in Navigating Immediate Jeopardy

Surprisingly, legal teams are not always involved in the immediate jeopardy process. In many cases, risk management teams at the facility level handle the investigation. This can lead to significant gaps in knowledge and response.

Lessons for Risk Management and Legal Teams

Given the potential consequences, legal teams should be aware of CMS immediate jeopardy investigations early in their internal investigation stages. Here are some best practices:

1. Train Staff and Paralegals: Ensure they know how to identify immediate jeopardy information in CMS databases or client records.
2. Collaborate with Risk Management: Establish clear communication channels with the facility’s risk management team to stay informed about investigations.
3. Proactively Monitor: Regularly review CMS reports and databases to identify any immediate jeopardy designations for your client facilities.

Conclusion

CMS immediate jeopardy investigations are a whirlwind process with high stakes. Whether you’re representing a skilled nursing facility, a hospital, or another type of healthcare organization, understanding this process is crucial for mitigating risks and ensuring compliance. Legal teams, in particular, can play an essential role in bridging knowledge gaps and guiding clients through this challenging process.

For more insights on risk management, investigations, and compliance in the healthcare sector, feel free to reach out to our team. We’re here to help.

Nikki Nesbitt is Goodell DeVries’s Managing Partner and a member of our Risk Management, Investigations, and Compliance team. She represents clients facing investigations from the U.S. Department of Justice and state and federal regulatory bodies, especially in the healthcare, business, and employment sectors. She can be reached at knn@gdld.com.