Staying out of Harms Way - Avoiding a Citation of Immediate Jeopardy

In a 2003 appeal to an administrative law judge (ALJ), Rolling Hills Health Care Center (Facility) contested an immediate jeopardy citation involving a hospice patient being given the wrong medications by Facility staff. Rolling Hills Health Care Center v. Centers for Medicare & Medicaid Services, Decision No. CR1073. The Facility was cited for quality-of-care deficiency. The state agency concluded that the patient had not received care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being because the Facility failed to update the patient’s physician about the decline in his condition over the morning and early afternoon of February 4, 2001.

Although the Facility initially informed the physician of the medication error, they failed to update the physician on the patient’s declining status. The Facility did, however, follow up with the hospice nurse. The ALJ did not reverse the deficiency on appeal, concluding that “… the fact that a patient or resident is under hospice care does not mean that the patient or resident need not receive appropriate medical care or that the resident or patient’s doctor need not be consulted about what that care should be.” The ALJ’s decision does not mention if the hospice was also cited for failing to coordinate care, as the hospice nurse was contacted by the Facility numerous times.

A series of nursing notes beginning the morning of the medication error shows that the patient’s physician was initially notified of the errors. However, the physician was not notified of the patient’s declining status over the next few hours. The Facility staff did notify the hospice of the patient’s declining status on several occasions throughout the day, and the hospice instructed the Facility staff to keep the patient comfortable. The patient subsequently died later that afternoon; however, it is not clear whether the medication error actually contributed to the patient’s death.

Hospice agency staff responsible for quality improvement must be especially alert in helping to identify clinical practices and situations that may place patients in “immediate jeopardy.” For example, because it is assumed that hospice patients will decline, it may not always be clear to hospice staff or nursing facility staff (if the hospice patient resides in a facility) when the patient’s physician should be contacted regarding a change in the patient’s health status. In failing to notify the physician, the hospice and/or nursing facility may be cited for failing to coordinate care and patients may be determined to be in immediate jeopardy.

Federal regulations define immediate jeopardy as “a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment or death…” 42 CFR 489.3 It goes without saying that when such a situation occurs, the provider must take immediate action to correct the situation. In training to state survey offices the following guiding principles were provided by the Centers for Medicare & Medicaid Services (CMS) to the surveyors:  

• Actual harm does not have to occur before considering immediate jeopardy.
• Immediate jeopardy includes the potential of physical or psychological harm.
• Harm can result from either abuse or neglect.
• A potential immediate jeopardy situation is a situation likely to occur in the near future, if no action is taken. (Immediate Jeopardy Decision Algorithm, CMS Hospice Surveyor Training, December 18-20, 2008)

Using the CMS Immediate Jeopardy Decision Algorithm, surveyors must ascertain if harm has occurred that has caused serious injury, harm, impairment or death or if there is the likelihood of potential harm and, if so, is the harm or potential harm likely to recur if immediate action is not taken. The surveyors must also determine if the provider had actual knowledge, or should have known, of the situation – in other words, was the provider culpable? 

1. If yes, when did the provider first become aware?
2. Did the provider then:

• Thoroughly investigate the circumstances?
• Promptly implement corrective action?
• Reevaluate the corrective measures to ensure that the situation was corrected?

Failing to provide (and document) care coordination was cited by the North Carolina Division of Health Service Regulation five times out of eight total hospice surveys conducted under the new Conditions of Participation between December 2008 and October 2009. While citations of immediate jeopardy have occurred in other health care settings, they have rarely been issued for hospices. Nevertheless, hospice quality improvement staff must be familiar with the term and the consequences of receiving such a citation, which could occur when the hospice fails to coordinate care appropriately.