High-level citations could be on the rise since new requirements for transfers and discharges went into effect on April 28.

Immediate jeopardy (IJ) citations, for instance, that are dreaded by nursing home operators and are often the result of the many benign and avoidable ways facility staff can misunderstand the citation, can increase with the added layer of complexity.

The tighter scrutiny also heightens the concern that the survey process, which is already rife with subjectivity depending on the surveyor and state, is going to become even more inconsistent.

This is according to Michelle Stuercke, chief clinical officer for Transitional Care Management, and Jody O’Mara, chief nursing officer at Indiana-based operator Journey.

If the surveyor finds a discharge or refusal to admit was inappropriate, and there is proof of physical and psychosocial harm, lower level violations could rise in severity, O’Mara and Stuercke told Skilled Nursing News.

Moreover, commonly triggered IJs can stem from something as innocuous as a dietary tag, where food preparation is surveyed to pose an immediate threat of harm, said Iowa Health Care Association CEO Brent Willett. It could be that the food wasn’t diced into small enough pieces, and poses prospective harm, he said.

To make matters more complicated, there tends to be inconsistencies across state lines in what constitutes an IJ, noted Stuart Lindeman, CEO of Mission Health Communities in Florida. 

“An IJ in one state may not be an IJ in another state, and I think that inconsistency in itself creates a lot of issues for both the providers and the regulators,” said Lindeman.

Also, different ways an IJ can be issued could get confusing for staff, with past compliance issues warranting an IJ, or an IJ based on a self-reported patient or family complaint, compared to IJs issued for something that happened during the survey itself.

In some cases an IJ can stem from self-reports that have been already corrected by the time surveyors arrive, and yet these linger on a facility’s record.

And so it’s important for facility staff to keep these all straight.

“You don’t want any IJs either way, but many do come in, and many do happen on a self report [by residents], something that has happened by the time [the surveyor has] come in,” said Lindeman. “It could be a month later or several weeks later, and it was corrected immediately. You may go into immediate jeopardy, but it’s already corrected.”

Common misconceptions around IJs, and pitfalls

Another common misconception that can lead to IJs stems from an assumption that such citations are only linked to serious harm or death, when the objective of an IJ issuance is more based on flagging for potential for serious harm or death, said Stuercke.

This could lead to a lack of preparedness, if staff think IJ citations could only result from actual death or harm rather than the potential for it.

And so, it should be made clear to staff that acknowledging an IJ is based on the potential for serious harm or death rather than actual harm or death occurring.

In one case, a staff member was surprised an IJ was issued when the patient was fine, but the citation was given because the patient eloped and the facility was on a busy street, resulting in the staff not realizing the patient was missing until the patient was a block and a half away.

Experts also pointed out that if a facility is flagged for past noncompliance, staff needs to identify the issue prior to the complaint survey where such noncompliance would be brought up. The issue echoes back to blurred lines between how, and when, IJs are issued, as Lindeman said.

Journey’s O’Mara said that it is essential that an issue is resolved before the next survey.

“That has to be fully abated so the education, the immediate fix, all of those components have to be worked and back in place prior to that survey starting,” noted O’Mara.

All this doesn’t mean the surveyor can’t still cite and fine a facility even after a facility has taken all the precautions and believes its completely compliant, said Heather Haberhern, senior vice president of quality for Health Dimensions Group.

Often, this can be due to the subjective nature of the process, which can be as subjective as each individual surveyor, and also vary by state.

“We did all the things that we needed to and the surveyors didn’t feel the same way,” Haberhern said of one past noncompliance citation. “There’s some subjectivity to the citations. I think it varies state to state on who’s willing to review past noncompliance.”

It might help, Haberhern said, to provide additional information while the survey is still happening, but before an exit meeting is called between the surveyor and staff to review findings.

Still, it can be an uphill battle even if the surveyor is getting additional documentation, or staff is forthcoming about the fact that information is still being collected on an incident.

“Typically, by the time they call their supervisor, it’s an already made decision,” she said.

Haberhern said it’s extremely important to give surveyors as much information as possible at the time of the survey, and not wait until the exit meeting between state and operator. Or, facilities can be forthcoming with the fact that they’re still trying to gather information, said Haberhern.

O’Mara agreed that once they’ve called an IJ into their supervisor, it’s too late to get them to overturn it, especially in the states Journey operates in.

In some cases, surveyors say they came to a facility to write an IJ, before they’ve even looked at anything, Stuercke said. It feels like a “guilty until proven innocent” situation sometimes, she said.

“It’s almost more work for them if they don’t find enough. They have to then prove to their state, to their bosses, that an IJ doesn’t exist, right? It’s sometimes even more difficult for them,” said Stuercke.

How to prepare for IJs, and state action

It’s difficult to write an abatement plan that’s attainable and achievable, and approved by the state, if a facility hasn’t received an IJ before. Hiring a consultant might be the right move for a first-time IJ, said Haberhern.

Staff can get intimidated when a surveyor walks through the door, so trained staff that are ready to manage a surveyor is something nursing homes can’t miss out on, said Haberhern. A workforce that knows what to do when the state surveyor walks in is extremely important to survey success, she said, like checking resident halls.

In addition to preparedness on the facility end through education and consultants, there’s still more that can be done in terms of state-industry cooperation, operators said.

“I think it should be more about collaboration. The surveyors found something, and then the administrator and director of nursing regional staff can refute, add their side of what’s going on with the patient and that system,” said O’Mara.

Legislation in Iowa is seeking to do something similar, to give nursing homes a second chance by allowing them to contest the violation before an IJ is issued. It’s a technical fix passed by the state Senate to a law passed in 2024, which at the time allowed review and additional context only after the citation was issued.

From a provider perspective, the legislation helps ensure operators have a voice and an opportunity to present new evidence that may not have been part of the initial IJ finding, said Willett.

“When we really unpack this at its core level, we have an immediate, serious situation in a nursing home that, by its nature, necessitates immediate action, and so this conference [between facility and state] allows providers to provide additional evidence that’s necessary, but immediately identify exactly what the surveyor has found,” said Willett.

The facility can then react to the situation in real time and develop a plan of correction, rather than wait for a surveyor to report back.

So far, IJs are down slightly in the state, Willett said. But that may be less because of the 2024 law and more due to providers gaining a better understanding of what the department and what surveyors are looking for when it comes to an IJ.