Edge: Food and Nutrition Can Trigger an Immediate Jeopardy in a CMS Survey
By Brenda Richardson, MA, RDN, LD, FAND
This Nutrition Connection CE article appeared in the 2023 September/October issue of Nutrition & Foodservice Edge magazine. To view a PDF of this article click HERE.
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Food and Nutrition Can Trigger an Immediate Jeopardy in a CMS Survey
By: Brenda Richardson, MA, RDN, LD, FAND
RECENTLY I WAS ASKED IF CITED NUTRITION DEFICIENCIES could ever result in an Immediate Jeopardy (IJ) finding with a CMS survey. I can attest to the fact that it most certainly can and does.
Several years ago, I provided consultant services to assist a long-term care facility correct IJ survey deficiencies related to food and nutrition. In addition to having specific food and nutrition-related FTags, there were more than 20 additional FTags cited as not being in compliance. The facility was determined to be in Immediate Jeopardy and was receiving civil monetary penalties daily. These penalties were in excess of $50,000 per day, which included $30,000 ($10,000 per day per resident) for three residents on enteral feedings. These civil monetary penalties accrued until it was determined by an onsite visit that the deficiencies had been corrected.
Achieving compliance took a facility-wide “team approach” to correct multiple processes and systems throughout the organization. The systems and processes were put into place and the facility achieved survey compliance. The revised Continuous Quality Program was a critical component of improvement which has resulted in sustained compliance for this facility.
Nutritional services are a vital part of quality of life and quality of care. Healthcare providers need to understand what “Immediate Jeopardy” means and the impact on facility residents and staff. Certainly, the best plan is prevention of any compliance issues; however, if an IJ does occur, then it is important to understand how to proactively respond to the survey findings.
This article presents general background information with some specific food and nutrition-related areas included in Immediate Jeopardy determination. Examples of specific IJ food and nutrition citations are provided.
IMMEDIATE JEOPARDY (IJ) CITATIONS: GUIDELINES AND COMPONENTS
The Centers for Medicare and Medicaid Services (CMS) State Operations Manual Appendix PP – Guidance to Surveyors for Long Term Care Facilities (Rev. 211, 02-03-23) is the primary resource used by surveyors in determining compliance with regulations. Surveyors will then use State Operations Manual Appendix Q – Core Guidelines for Determining Immediate Jeopardy (Rev. 187, Issued: 03-06-19) in analyzing the findings and making the decision as to whether the facility meets the core components.
IJ is a situation in which a recipient of care has suffered or is likely to suffer serious injury, harm, impairment, or death as a result of a provider’s, supplier’s, or laboratory’s noncompliance with one or more health and safety requirements. IJ represents the most severe and egregious threat to the health and safety of recipients, and carries the most serious sanctions for providers, suppliers, and/or laboratories.
DEFINITIONS: It is important to know the definitions used in Appendix Q. (See sidebar)
To determine that IJ exists, the following three elements must be present:
- Surveyors must establish that the nursing home failed to meet one or more requirements of participation and provide sufficient evidence to support the noncompliance.
- Serious injury, serious harm, serious impairment, or death has occurred or is likely to occur. If harm is likely, surveyors do not need to prove when the serious harm will occur or that it will occur within a certain timeframe. Furthermore, surveyors do not have to show that the noncompliance is the sole factor contributing to the adverse outcome or making a serious adverse outcome likely. It is enough for the noncompliance to be a factor in using or making such an outcome likely. Harm to residents is not limited to physical harm. Appendix Q provides guidance about determining psychosocial and/or mental harm.
- Immediate action is needed. The surveyors must decide if corrective action must be taken right away so that the serious adverse outcome will not occur or recur. Action must be taken even if the resident is no longer in the facility or has died.
CALLING IMMEDIATE JEOPARDY
Surveyors are required to use an “IJ Template” included in Appendix Q to determine if Immediate Jeopardy exists. The IJ Template identifies the three key components of IJ and requires surveyors to identify their substantiation of each as “yes/no,” and to provide a preliminary fact analysis to support the existence of a key component.
After determining the presence of Immediate Jeopardy, the survey team must consult with their State Agency (SA) for confirmation that IJ exists and seek direction. In some cases, the CMS Regional Office (RO) is also contacted for confirmation. Surveyors then must immediately notify the nursing home administrator and deliver the completed IJ Template.
REMOVING IMMEDIATE JEOPARDY: THE REMOVAL PLAN
The facility must complete a “removal plan” which:
- identifies the residents who have suffered, or are likely to suffer, a serious adverse outcome as a result of the noncompliance;
- specifies the action the entity will take to change the process or system failure to prevent a serious adverse outcome from occurring or recurring; and
- indicates the date the action will be complete.
The removal plan differs from a plan of correction because the facility does not have to correct all noncompliance – just the noncompliance contributing to the serious harm.
The State Agency, or the survey team in consultation with the SA, determines whether, if implemented appropriately, the removal plan will remove the Immediate Jeopardy. To remove IJ, surveyors must determine onsite that the nursing home took immediate action to prevent a serious adverse outcome from occurring or recurring and no resident is currently experiencing serious injury, serious harm, or serious impairment; and/or serious injury, serious harm, serious impairment, or death is not likely.
If the plan is not fully implemented, the IJ will continue until the removal plan is fully implemented and the likelihood of serious injury, harm, impairment, or death no longer exists. Offsite desk/telephone review for removal of IJ is not permitted.
Some key IJ triggers related to food and nutrition while not conclusive include:
- Improper feeding/positioning of an individual with known aspiration risk.
- Food supply that is inadequate to meet the needs of the individual.
- Failure to provide adequate nutrition and hydration resulting in malnutrition.
- Withholding nutrition and hydration without advance directive.
- Lack of potable water supply.
- Unsafe dietary practices resulting in high potential for foodborne illnesses.
REGULATORY AND BEST PRACTICE GUIDELINES
As noted earlier, the CMS State Operations Manual Appendix PP – Guidance to Surveyors for Long Term Care Facilities is the primary resource used by surveyors in determining compliance. Within Appendix PP are examples provided to surveyors for Severity Level 4 Noncompliance related to food and nutrition such as:
Assisted nutrition and hydration: Examples of Severity Level 4 Noncompliance: Immediate Jeopardy to Resident Health or Safety include but are not limited to:
- Repeated, systemic failure to assess and address a resident’s nutritional status and to implement pertinent interventions based on such an assessment resulted in continued significant or severe weight loss and functional decline; Repeated failure to assist a resident who required assistance with meals and drink resulted in or made likely the development of life-threatening symptom(s), or the development or continuation of severely impaired nutritional status;
- Dietary restrictions or downgraded diet textures, such as mechanical soft or pureed textures, were provided by the facility against the resident’s expressed preferences and resulted in substantial and ongoing decline in food intake resulting in significant or severe unplanned weight loss with accompanying irreversible functional decline to the point where the resident was placed on hospice; or
- The failure to provide an ordered potassium-restricted therapeutic diet resulted in evidence of cardiac dysrhythmias or other changes in medical condition due to hyperkalemia.
Menus and nutritional adequacy: Examples of Level 4, immediate jeopardy to resident health and safety include but are not limited to:
- The facility only maintains a one day supply of foods and drink on hand to prepare and serve their planned menus. This supply did not include foods to meet the nutritional needs or choices of residents. Several residents reported that they were often hungry and were told by staff that no snacks or other food was available.
- Facility staff failed to follow a menu for a resident on a puree diet. The wrong texture of diet was provided which resulted in a choking incident for this resident. This placed the resident at risk for potential death or brain damage due to lack of oxygen from choking.
Food safety requirements: Examples of Level 4, immediate jeopardy to resident health and safety include but are not limited to:
- A 10-quart covered stock pot with 8 quarts of cooked beans was in the refrigerator. The internal temperature of the beans at the time of survey was measured at 68 degrees F. The cook stated these beans had been cooked the day before and were going to be served at the next meal, unaware they had been improperly cooled. Improperly cooled beans are at risk for growing toxin-producing bacteria that are not destroyed in the reheating process.
- A roast (raw meat) thawing on a plate in the refrigerator had bloody juices overflowing and dripping onto uncovered salad greens on the shelf below. The contaminated salad greens were used to make salad for the noon meal.
- The facility had a recent outbreak of Norovirus after the facility allowed a food worker who was experiencing vomiting and diarrhea to continue preparing food.
Nutritional services are a vital part of quality of life and quality of care. Healthcare providers need to understand what Immediate Jeopardy (IJ) means and the impact to the facility residents and staff. It is imperative to review and monitor systems and processes to maintain compliance with regulations and “best practice.” Certainly, the best plan is preventing any compliance issues during a survey. However, if an IJ does occur, then it is critically important to proactively respond to survey findings to achieve compliance.
DEFINITIONS YOU SHOULD KNOW
It is important to know the definitions used in State Operations Manual Appendix Q, which include:
- Likely/Likelihood means the nature and/or extent of the identified noncompliance creates reasonable expectation that an adverse outcome resulting in serious injury, harm, impairment, or death will occur if not corrected.
- Noncompliance means failure to meet one or more federal health, safety, and/or quality regulations.
- Psychosocial refers to the combined influence of psychological factors and the surrounding social environment on physical, emotional, and/or mental wellness.
- Recipient is a person (patient, resident, or client) who receives care and/or services from a Medicare and/or Medicaid participating provider/supplier, or a patient or individual served by a laboratory subject to CLIA.
- Recipient at Risk is a recipient who, as a result of noncompliance, and in consideration of the recipient’s physical, mental, psychosocial or health needs, and/or vulnerabilities, is likely to experience a serious adverse outcome.
- Removal Plan/Immediate Action includes all actions the entity has taken or will take to immediately address the noncompliance that resulted in or made serious injury, serious harm, serious impairment, or death likely.
- Serious injury, serious harm, serious impairment, or death are adverse outcomes which result in, or are likely to result in:
- a significant decline in physical, mental, or psychosocial functioning (that is not solely due to the normal progression of a disease or aging process); or
- loss of limb, or disfigurement; or
- avoidable pain that is excruciating, and more than transient; or
- other serious harm that creates life-threatening complications/conditions.
- Substantial Compliance is:
- One or more standard-level deficiencies with an acceptable Plan of Correction (PoC); or
- A deficiency cited at severity Level One for SNFs or NFs (i.e., Scope and Severity A, B, or C)with an acceptable PoC for B and C level deficiencies.
About the Author
Brenda Richardson, MA, RDN, LD, FAND
Brenda Richardson is a lecturer, author, and owner/president of Brenda Richardson, LLC. She is a long-time RDN consultant in long-term care, and also serves as an Independent Auditor for the Gluten-Free Certification Organization.