By Karen Goldsmith

We are frequently asked how a deficiency can be immediate jeopardy (IJ) when no one was injured or harmed in any way. Last month we focused on advance directives and the types of issues that lead to citations. Since most of these tags are IJs, we are focusing this month on why an IJ reaches that level.

For those of you who have never had one (good for you!), an IJ tag is either a “J” if one or several residents are impacted; “K” if a pattern is shown; or “L” if the issue is widespread. Dietary issues are often “L” because most residents are impacted.

First, you must understand that to be cited with an IJ, there need not be actual harm. The State Operations Manual defines 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 to a resident.” No actual harm is required, although there certainly can be harm.

Psychological harm is treated the same as physical harm. Just because a resident is cognitively impaired does not mean that resident has not been or is not likely to be harmed. The fact that the center failed to render appropriate services to that individual is enough to impute that the person could be harmed.

If the IJ relates to abuse, the abuse can come from anywhere. A visitor can abuse a resident and the surveyors can still find IJ, but only if there is some nexus between the center and the abuse. For example, if a resident frequently has bruises after a certain family member leaves, the center may be on notice of potential abuse and be required to act on it. On the other hand, if a relationship between that resident and a family member has always appeared loving and mutually enjoyed, but the family member suddenly decides to push the resident in anger, the center is unlikely to be cited because the staff had no reason to increase supervision.

An IJ does not have to occur within eyesight of the surveyors. While most IJ citations begin as an observation, sometimes medical record review turns up the issue. This means that if a deficiency which rises to IJ level is discovered in a closed record review and occurred three months before the survey, the deficiency will relate back to that date and the fine may be assessed for every day in between the date it occurred and when the IJ was abated.

In determining whether an IJ exists, the surveyors ask themselves a number of questions. Did the center create a situation where serious injury, harm, impairment or death could occur? For example, did a resident who was confused and went in another resident’s room get proper supervision after the event, thus preventing a negative interaction between the residents? Did the facility allow a dangerous situation to continue? For example, was a resident who had attempted to elope on several occasions properly supervised to avoid elopement? Third, could the center staff have corrected or prevented the issue in the future? Did you devise a plan to ensure the situation did not happen again for that resident and others similarly situated?
When an IJ deficiency is found, there is typically a citation to the Quality Assurance (QA) Committee requirement. This can be avoided by bringing all issues of serious concern to the QA Committee immediately, even when there is no injury but there is potential.

Oftentimes, an incident occurs and the center staff performs a thorough investigation and implements steps to prevent a reoccurrence. While this is precisely what should be done, it sometime backfires when the surveyors do not agree with the conclusions drawn by the center. This is an area where it behooves you to make accurate, clear and concise notes to support your findings. It may be months before those findings are challenged and only by having records to back up your sometimes very subjective determinations are you able to present your position to the survey team in a meaningful way.

As we watch the concept of advance directives evolve, the threat of an IJ in that area looms larger. It is important to know the law on advance directives and resident treatment choices. Equally important is to be knowledgeable as to what the surveyors will be looking for and to keep your documentation accurate and consistent.

Never forget that when one IJ is found, several others usually follow. Also, fines are significant — from $3,050 to $10,000 per day. Most importantly, we never want our residents to be in a position where they are at risk of serious harm.

Karen Goldsmith of Goldsmith & Grout, PA, serves as FHCA’s Regulatory Counsel. Her office is located at PO Box 875, Cape Canaveral, FL 32920.
This article originally appeared in PULSE, the Florida Health Care Association’s Member Newsletter. Republished with permission by FHCA; FHCA retains all rights.