Immediate Jeopardy – Question 1: Did the Department Share the IJ Template With You?

Immediate Jeopardy: Did they give you a copy of the IJ Template?

A speedy and strategic response by an assisted living licensee to an “Immediate Jeopardy” (“IJ”) survey finding is important. Understanding an “IJ” to properly respond, or to oppose the finding, requires more information than is usually provided by the surveying agency.

On its face, the term Immediate Jeopardy, seems self-explanatory. Colorado, 6 CCR 1011-1, Chapter 7 defines “Immediate Jeopardy” (“IJ”) as “actual or potential for serious injury or harm for one or more residents.”[1] In practice, however, the meaning of “potential for serious injury or harm,” can easily slide into speculative imaginings by surveyors. When surveyors purport to find an Immediate Jeopardy, “the assisted living residence shall immediately remove the cause of the immediate jeopardy risk and provide the Department with written evidence that the risk has been removed.”[2] Thus, a licensee’s ability to identify the speculative imaginings of a surveyor, and respond with the regulations and guidance will help mitigate the drama that can arise where an IJ has been improperly assigned to residence.

Although the regulation quoted above is for Colorado, the rules for IJs flow from CMS, the Centers for Medicare & Medicaid Services, a federal agency. Guidance for the use of the term comes from the CMS “State Operations Manual, Appendix Q” or (SOM), issued to all State Survey Agency Directors, and applies anywhere CMS is involved with Long Term Care.

The SOM provides important instructions for issuance of an IJ, and guidance on how to use the IJ Template.

Survey teams must use the Immediate Jeopardy (IJ) Template to document evidence of each component of IJ; and if IJ is confirmed, the IJ Template will be used to convey information to the entity. Any information presented on this template is subject to change and does not reflect an official finding against a Medicare provider or supplier. Form CMS-2567 is the only form that contains official survey findings.

State Operations Manual, Appendix Q, Section XII.

Thus, the IJ Template commits the observations and conclusions of the surveyor to writing. While the completed IJ Template is not the final and formal finding of the regulator, it is important because it can provide the beginning of a licensee’s defense. It is not unusual to find that the form has not been completed at all, or that the form includes information revealing a misunderstanding of the law, regulations, or the IJ Template itself by the survey team.

Timing

In Colorado, Chapter 7, Section 3.16 requires that ALL cases where the Department has alleged a deficiency of Level D or E, shall include at least one “intermediate condition.” We have discussed Intermediate Conditions in previous articles that can be found here. However, it is very important to note that the Department is required to send written confirmation of the Intermediate Condition “within two business days.”[3] Thus, if an operator receives an IJ, they should receive written confirmation, and the IJ Template within two days.

If a licensee wants to understand the basis for the IJ, they need to get the completed IJ Template as soon as possible to determine if the Survey team made mistakes in favor of the licensee. Conversations with many operators reveals that they never received the completed IJ Template. Many have never heard about the form at all. This leaves them waiting 6 weeks or more to receive a written notice of the details of the alleged Immediate Jeopardy.

Understanding the regulations and federal guidelines related to Immediate Jeopardy findings will help you when surveyors come to your residence. Contact us if you would like a copy of the IJ Template form and instructions.

This article is written for informational purposes only, and is not legal advice for your specific situation, but we hope it helps you understand your rights and legal options. Contact  your attorney or Brian@PinkowskiLaw.com if you would like to discuss Immediate Jeopardy findings and your options.

[1] 6 CCR 1011-1, Chapter 7, Section 3.11.

[2] 6 CCR 1011-1, Chapter 7, Section 3.12.

[3] “The licensee shall implement the restriction r condition immediately upon receiving notice of the restriction or condition. If the department provides notice of a restriction or condition by telephone or in person, the department shall send written confirmation of the restriction or condition to the licensee within two business days.” C.R.S. 25-27-106(2)(b)(II)(B).