It seems that it is more common than ever to read a news item that mentions a hospital in trouble with the Centers for Medicare and Medicaid Services (CMS) for violating one or more Conditions of Participation (CoP). This is a very big deal, as many hospitals have seen critical Medicare reimbursement streams threatened, and some have even lost this source of support. But the issues that triggered investigation are rarely unknown to the organization; few are true surprises. So, how does the issue snowball to an Immediate Jeopardy (IJ) finding?
The CoPs are black and white statements that define clinical and environmental minimum expectations that must be maintained at all times. Compliance with the CoPs is necessary to participate in Medicare and Medicaid. The focus of the CoPs—to ensure that care is provided in a consistently safe environment—is nothing fancy or particularly sophisticated. Nevertheless, dozens of hospitals fail to demonstrate compliance each month and, as a result, are confronted with the task of response and recovery, having to rapidly determine corrective actions to fix gaps in addressing the CoPs.
How does this happen? How can you prevent this crisis and resultant organizational disruption?
In our experience, threats of CMS termination often begin with what seems to be an insignificant occurrence—a perceived patient care error occurs, and an unhappy patient or family member or even a disgruntled staff member alerts CMS, either through a complaint to The Joint Commission or, more frequently, a grievance lodged with the state agency that contracts with CMS to provide CoP compliance oversight. Adverse coverage in local or regional news can also initiate scrutiny. Regardless, a regulatory agency inquiry results as a response to assure CMS that continued participation is merited.
And then the institutional scramble begins.
A CMS investigation of a complaint is a stressful and distracting process. Once in-house for an investigation, surveyors are expected to follow their findings and examine any or all potential CoP-related deficiencies. Consequently, a patient complaint about rough or rude treatment by a clinician might lead to an examination of restraint usage, emergency room management, or provision of behavioral health services.
Once the door to further examination has been opened, the surveyor will investigate any deviation that pops into view. Several institutions have found themselves responding to a series of inquiries and even Immediate Jeopardy (IJ) findings even though an initial investigation found little merit related to the original complaint because surveyors uncovered other condition-level findings.
The rule to follow: because a survey is a potential show-stopper, there is no such thing as a minor clinical compliance issue.
Senior executives will not be able to personally and continuously monitor CoP compliance—this is why hospitals have Compliance and/or Performance Improvement functions. However, senior executives must establish the expectation that clinical compliance issues will be reported when discovered and that vigilance on patient grievances, unexpected clinical outcomes, and sentinel events (and near misses) will result in preparation for regulatory evaluation, as well as addressing systemic root causes.
Just as a financial auditor alerts the senior team of indications of divergence from accepted financial practices, compliance “auditors” should be sending alerts about clinical vulnerabilities. The organizational rule should be one of “no surprises” because when this is true, the organization is prepared to demonstrate its management of trigger events if CMS scrutiny occurs.
A good practice for ensuring that senior executives are informed about clinical compliance is a monthly briefing of key indicators. An even better practice is conducting periodic CoP compliance audits and using key performance measures and reported incidents to uncover vulnerabilities.
It is said that the best defense is a good offense—staying vigilant to the potential triggers for survey, monitoring overall compliance, and ensuring smooth and efficient communication throughout leadership best prepares hospital for CMS, state agency, and accreditation scrutiny.
