Home Health & Hospice Week

DAB upholds California HHA's termination from Medicare.

If you're not careful it could happen to you - a survey finding of immediate jeopardy resulting in decertification from the Medicare program.
 
That scenario is on the rise, warns Mary St. Pierre with the National Association for Home Care & Hospice. The immediate jeopardy violation "is rearing its ugly head all around the country," St. Pierre says.
 
"Immediate jeopardy" is a situation in which a provider's noncompliance with one or more conditions of participation has caused, or is likely to cause, serious injury, harm, impairment or death to a patient, according to the Centers for Medicare & Medicaid Services.
 
Although CMS clarified in 2000 that immediate jeopardy violations do apply to HHAs, such violations have become more prevalent nationwide in the last year-and-a-half, St. Pierre observes.
 
One high-profile example is the Visiting Nurse Health System of Atlanta, which in 2002 was served with an immediate jeopardy citation. The finding was lifted, "but not before financial and staffing losses [were] sustained throughout the home health program," VNHS says on its Web site.
 
How to prevent it: One key to avoiding such a serious citation is by thoroughly educating staff, recommends Linda Rutman, consultant with Charlotte, NC-based LarsonAllen Health Care Group. Show them how lapses in documentation and following orders can seriously affect both patients' health and the agency's existence, Rutman urges.
 
A prime example is the recent case of Comprehensive Professional Home Visits, a former HHA based in Vallejo, CA. The CMS Departmental Appeals Board issued a decision July 26 upholding the agency's termination from Medicare based on an immediate jeopardy finding (Comprehensive Professional Home Visits v. CMS, Docket No. A-04-35, Decision No. 1934).

Two Immediate Jeopardy Violations

In June 1999, California surveyors inspected the HHA and cited G Tag 164 for immediate jeopardy based on two patients it reviewed, the decision says. Surveyors cited 42 C.F.R. 484.18(b), the COP titled "Acceptance of patients, plan of care, and medical supervision." Specifically, Comprehensive failed to review the plan of care, the state charged.
 
In the first patient's case, Comprehensive gave a diabetic patient insulin on a sliding scale basis when there were no physician orders for the regimen. Also, the agency failed to contact the physician when the patient's blood glucose level went over a pre-set limit and did not conduct a blood glucose test on every visit as ordered, surveyors charged. A diabetic coma could have resulted, the surveyors contended.
 
In the second patient's case, Comprehensive failed to confirm orders for oxygen, including its delivery mode, but administered it anyway. An incorrect oxygen concentration could have inhibited the COPD patient's ability to breathe, surveyors argued.
 
California informed Comprehensive that it would terminate the agency from Medicare if the HHA didn't correct the immediate jeopardy violations by Aug. 2, 1999. The HHA failed to do so to surveyors' satisfaction, but appealed to the administrative law judge.
 
In October 2003, the ALJ upheld the immediate jeopardy sanctions, and the DAB does the same in its recent decision.
 
Former Comprehensive administrator and owner Ellie Aguilar, who also represented the agency in the appeals, tells Eli she is considering further legal action on the matter.
 
Use these examples: HHAs can use the scenarios in the cases "as excellent examples for field staff presentation on the serious implications of failure to document all orders and failure to follow orders as written," Rutman suggests. Although the patients were not actually harmed, the potential for harm was there and was real enough to trigger the immediate jeopardy violations.
 
"Learning from 'near misses' can be an effective educational tool," Rutman says. In fact, CMS includes one of the patient examples from this case in its State Operations Manual examples of immediate jeopardy violations in Appendix Q.
 
Agencies should remember if they are slapped with immediate jeopardy citations that they have a chance to correct them before being terminated, St. Pierre notes - as the VNHS of Atlanta demonstrated in 2002. 
 
Editor's Note: For more information on immediate jeopardy violations, see SOM Appendix Q at www.cms.hhs.gov/manuals/107_som/som107ap_q_immedjeopardy.pdf.