How Colorado ALRs Can Reduce the Risk of Survey Penalties
Pinkowski Law is working to make sure that the assessment of penalties associated with “Immediate Jeopardy” (“IJ”) deficiencies is more objective and fair for Colorado assisted living operators. This blog explains changes under a new Colorado law, upcoming regulatory revisions, and how you can get involved.
The Colorado Department of Public Health and Environment (“Department”) is in the process of redrafting Chapter 7 to bring it in line with the new law “Increasing Safety in Assisted Living Residences.” This law, also known as SB22-154, was signed into law in June of 2022 and imposes additional requirements for discharge of residents, changes administrator requirements, and significantly increases the Department’s authority to issue penalties.
Previously, penalties were capped $2,000 per year for all fines related to intermediate conditions and restrictions. Under the new law, fines can be as much as $10,000 or more per violation, with no annual cap.
This dramatic increase in penalty authority is a matter of concern because the Department has a history of being subjective and inconsistent in determining “Immediate Jeopardy” (“IJ”) deficiencies which, under the new law, puts Colorado assisted living operators at risk of significant financial penalties. However, there is an opportunity for Colorado ALR owners to effect a change and Pinkowski Law will be helping in this effort.
Specifically, with the revisions to Chapter 7, the Department can align its regulation regarding IJs with more concrete standards issued by the U.S. Department of Health & Human Services, Centers for Medicare & Medicaid (“CMS”).
Currently, the Department’s regulations define Level E (Immediate Jeopardy) deficiencies as
. . . actual or potential for serious injury or harm for one or more residents.
6 CCR 1011-1, Chapter 7, Section 3.11, Citing Deficiencies.
However, the language commonly used by Department Surveyors looks more like this:
“Serious bodily injury and possible death could occur.”
In our view, “could” is more speculative and leaves open the possibility of outcomes that are merely imaginable, rather than outcomes that have an appreciable likelihood of actually developing and becoming real. CMS agrees with our viewpoint and took steps to eliminate the ambiguity and strengthen the focus on “likelihood of occurring.” Unfortunately, the Department did not keep up with this change.
The Immediate Jeopardy standard flows from the U.S. Department of Health & Human Services, Centers for Medicare & Medicaid (“CMS”) State Operation Manuel (“SOM”). The Department adopted SOM for long term care facilities, and uses the terminology and the forms meant to guide state regulators in determining if a deficiency is an IJ. However, the Department’s regulations have not kept pace with changes implemented by CMS.
CMS recognized the subjectivity problem with determining IJs and changed the SOM in March 2019.
Immediate jeopardy 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. Immediate jeopardy represents the most severe and egregious threat to the health and safety of recipients, as well as carries the most serious sanctions for providers, suppliers, and/or laboratories.
CMS provides guidance to surveyors for citing immediate jeopardy in Appendix Q of the SOM. The version of Appendix Q that is being replaced was drafted in 2004 and is being updated to clarify and increase consistency for identifying immediate jeopardy. These revisions apply to all provider and supplier types. The revisions also include subparts that are focus on specific concerns with nursing homes and clinical laboratories.
. . .
Likelihood instead of potential – The previous version of Appendix Q suggested that a potential for serious harm might constitute immediate jeopardy. Core Appendix Q[1] makes it clear that in order to cite immediate jeopardy in situations where recipients have not already suffered serious injury, harm, impairment or death, the nature and/or extent of the identified noncompliance creates a likelihood (reasonable expectation) that such harm will occur if not corrected, not simply the potential for that level of harm to occur.
[Emphasis added.]
Although the Department has revised the regulations as recently as June 14, 2021, they did not update the Chapter 7 regulations to capture the CMS change at that time. The current regulatory process presents an opportunity for the Department to bring its IJ and penalty related regulations into sync with CMS.
There will be several opportunities for Colorado’s ALR community to get involved and contribute their comments to the Department during the regulations drafting process. We encourage the community to bring this issue to the Department’s attention. Pinkowski Law certainly will be doing so.
For additional resources on handling survey deficiencies, please see the following articles:
Other resources:
How to Appeal a Bad Survey in Colorado:
How to Request Informal Dispute Resolution
Immediate Jeopardy – Question 1: Did the Department Share the IJ Template With You?
Informal Dispute Resolution vs. Plan of Correction - https://www.pinkowskilaw.com/assisted-living-blog/2022/4/14/informal-dispute-resolution-vs-plan-of-correction
Appendix Q – Core Guidelines for Determining Immediate Jeopardy (Rev. 187, Issued: 03-06-19)
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 us if you would like to discuss how the appeal process might work for you.
[1] “Core Appendix Q” and “Appendix Q” are an appendix in the SOM addressing immediate jeopardy determinations.