CMS Proposed Rules for Immediate Jeopardy Situations for Providers Other than SNFs and NFs

In the April 5th Federal Register, the Center for Medicare and Medicaid Services (CMS) proposed new rules relating to immediate jeopardy situations for providers or suppliers that are not Skilled Nursing Facilities (SNFs) or Nursing Facilities (NFs). The proposed rules were published in April of 2013 in the Federal Register and generally apply to the oversight of accrediting organizations, but CMS also proposed a changed to the rule on providers and suppliers, other than SNFs and NFS, with deficiencies.

The proposed language addresses deficiencies in meeting Medicare’s requirements for participation that amount to immediate jeopardy situations. Immediate jeopardy is defined by CMS as a situation in which the provider’s or supplier’s non-compliance with one or more Medicare requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident or patient. Currently, the term, immediate jeopardy, is only used in reference to SNFs and NFs. The proposed rules would expand the definition of the term to apply to all providers and suppliers subject to Medicare’s requirements of participation and no longer be limited to SNFs and NFs.

In addition to expanding the definition of immediate jeopardy, the proposed rules alter the current regulation relating to how a non-SNF/NF provider is treated in a deficiency situation. The current regulation states that if a provider or supplier (other than SNFs and NFs) is found to be deficient in meeting one or more of the requirements to participate in the Medicare program, that provider or supplier may still participate in, or be covered under Medicare if it submits to CMS an acceptable plan of correction within a reasonable time. The proposed rule adds that in an immediate jeopardy situation, CMS may require a shorter time period for achieving compliance. Therefore, in an immediate jeopardy situation, CMS is not required to give the deficient provider or supplier a “reasonable” time for compliance, but may require compliance within any period of time.

The current rule states that a “reasonable” period of time can vary depending upon the nature of the deficiency and the facility’s ability to provide adequate and safe care, but ordinarily, a provider or supplier is expected to achieve compliance within 60 days. With the proposed revision of the rule, in an immediate jeopardy situation, CMS could require compliance within less than 60 days, with the exact time period to be determined by CMS on a case-by-case basis.

According to CMS, the change is not a deviation from current practices. CMS claims that the proposed change is consistent with their longstanding enforcement of immediate jeopardy situations involving providers and suppliers that are not SNFs or NFs; the revision will only make the enforcement practice explicit.

The comment period on these new regulations ends on June 4, 2013. A final rule is expected to be published shortly thereafter.

You can get a copy of the Proposed Rule here —> IJ Proposed Rule

For more information on the Proposed Rule or related issues, please feel free to contact Kate Frech or  Ari Markenson or any member of our health care practice group for a further discussion.

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