CMS Needs to Come Clean on Immediate Jeopardy

All hospitals try to avoid situations that cause immediate jeopardy to the health and safety of any patient – that's a given. And it's right that when those tragedies occur, hospitals suffer serious penalties.

But the proposed Value Based Purchasing regulations that would exclude hospitals that receive federal IJs from earning Medicare incentive payments has some officials extremely, and in my opinion justifiably, upset.

There's concern that the rules under which these citations are imposed from state to state are not fairly or equitably interpreted or applied. And as of July 1, there's a huge amount of money at stake. That's when the first performance period for VBP incentives would begin. Any hospital that gets an IJ within the following nine months is automatically disqualified for that fiscal year.

These are serious citations, but incomprehensibly, neither the Centers for Medicare & Medicaid Services which issues them, nor the states whose survey teams investigate these incidents, will say which hospitals have received them, for what kinds of harm, nor will they say how many occur in a given year or in a given region. A spokesman for CMS says the agency doesn't know because it just doesn't track them.

But some hospital trade groups in various states are talking among themselves and discerning that these penalties are skewed toward some states and away from others.

The North Carolina Hospital Association explains the problem:

"We have had IJ issues here, and it seems to us in talking to our colleagues around the southeast, that IJs were much more frequent in North Carolina than in other southeastern states," said Don Dalton, spokesman for the NCHA. "We asked CMS to count them, and tell us how many of these are handed out, but nobody seems to be able to give us the data."

"The federal government doesn't count them, the state government doesn't count them, and they were not intended to be used in the reimbursement arena at all," Dalton says.

Of concern is what he called the "wide latitude" the federal immediate jeopardy definition gives state surveyors to call an IJ, if they feel like it.

For example, Dalton says, survey teams in some parts of the country or in some states may level IJs only when serious physical harm or death to a patient has occurred. But for survey teams in other states, an IJ might be levied when the harm is only psychological.

Neglect can provoke an IJ in some states, but not others. The possibility of harm might be applied in one region, but not another. The rules for what is and what isn't an IJ go on for 36 pages.

"It's unreasonable to start punishing hospitals economically for things that are somebody's perception of a situation," Dalton says.

He adds that it might appear North Carolina hospitals are worse than those in other southeastern states, when North Carolina enforces some of the most stringent quality outcome and process measure criteria in the country.

Danielle Lloyd, senior director for reimbursement policy with Premier Healthcare Alliance, a purchasing group that includes more than 2,400 hospitals, says she's hearing similar concerns. In particular, objections are coming from California, where hospital officials "think they're getting a lot more IJs than other states," Lloyd says.

California is noteworthy because it has a separate state government infrastructure in which state teams investigating complaints of serious harm in hospitals can impose immediate jeopardy citations under state laws that carry hefty fines up to $100,000. The concern is that in California, the same teams generally conduct similar investigations under federal rules – under contract with CMS – under a state infrastructure that already exists.

Perhaps in that situation, more complaints are investigated and referred to CMS for action because the state teams have already done most of the work.

For example, according to the California Department of Public Health's website, in the 18-month period from July 1, 2009 to Dec. 31, 2010, some 62 hospitals – roughly one in six acute care facilities in the state – received state immediate jeopardy citations.

But California state officials could not tell me how many hospitals that received state immediate jeopardy citations also received federal IJ citations.

"You are requesting data that does not exist within our system or a tabulation that does not exist. The Public Records Act does not require us to make that tabulation for you," Ralph Montano, public information officer for the California Department of Public Health, said in an e-mail.

Jack Cheevers, spokesman for CMS in San Francisco's federal Region IX, which includes California, also said in an e-mail, CMS "appreciates the hospitals concerns and will carefully consider them."

He says, however, "Our survey and certification database for hospitals doesn't track immediate jeopardy citations, so we can't provide any data on IJ citations of hospitals.
 
"Absent this data, we can't determine whether or not state-by-state differences exist in rates of citing immediate jeopardy."

He later added: "In any process involving a lot of humans doing the same job, there's likely to be some degree of inconsistency. But the regulations contain safeguards designed to keep any inconsistencies in CMS-sanctioned hospital inspections to a minimum."

CMS regional supervisors make sure that state survey teams in each state within that region apply the rules as consistently as possible, he explains. But I asked Cheevers how each region knows how the rules are being applied in other regions of the country if CMS doesn't keep the data.

"The CMS regional offices strive to enforce consistency in all of the states," he replied.

The California Hospital Association, as well as many other state hospital trade groups, say they want CMS to "address state-by-state inequities in the review of hospitals to ensure that variation in survey practice does not adversely affect one state or another."

The groups want CMS to provide additional training for their surveyors and "implement a review process by which any immediate jeopardy citations are reviewed by a second level beyond the state surveyor before being made final.  As the implications of this citation increase, it accordingly becomes more and more critical that they be made only when appropriate."

For other parts of the proposed VBP regulations, such as process and outcome measures as well as patient experience scores, hospitals know how they look because those metrics have been posted on Hospital Compare for at least a year.

But that's not so for immediate jeopardies. It just seems like a big secret.

Several years ago, while reporting on a federal investigation of a particularly egregious lapse at one Southern California hospital,  I was assured by Cheevers that plans were in place to post these reviews in one place on a federal website. It would happen soon, he said.

I'm still waiting.

Again, I think it's important that hospitals that fail to prevent harm to patients, or even fail to remedy potential harm, be punished or disincentivized accordingly. But until hospitals and the public know how these rules are being interpreted across the country, the system does seem quite a bit unfair.