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Are You Doing Enough to Ensure Compliance with CMS’ Conditions of Participation (CoPs)?

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By Kate Fenner, RN, PhD


For hospitals, the consequences of noncompliance with the Conditions of Participation can be enormous, especially when surveyors determine that Immediate Jeopardy exists. IJ has the potential to lead to termination by the Centers for Medicare and Medicaid Services (CMS), even the threat of which can have significant consequences for the hospital, ranging from the loss of public goodwill to denial of Medicare and Medicaid funding. Prior to the termination date, CMS must notify the public that the hospital may be excluded from Medicare and Medicaid on a specific date. This notification attracts significant media attention, is usually published in local newspapers and has the potential to damage the hospital’s reputation.


While some hospitals believe that a finding of IJ could never happen to them, the fact is that many hospitals, including nationally recognized, high-quality hospitals have been cited for IJ conditions. While most hospitals are able to respond quickly and remove the IJ conditions before termination becomes imminent, the process is neither easy nor painless. When an IJ condition exists, the hospital has 23 days to file a plan of correction, remove the IJ situation that led to the threat of termination, and undergo a follow-up survey to validate that the IJ conditions have been abated. This process can derail routine operations and requires significant commitment of staff and management resources. Furthermore, the public notification may result in the need to allocate resources to public relations efforts to minimize loss of reputation.


The process for surveying hospitals is funded by CMS, but is actually performed by state governments under contract with the federal government. Although there is variation, surveys have become more rigorous and more frequent in some states. In light of CMS’ growing attention to quality and patient safety, it is likely that CMS will require all states to become more diligent in enforcing the Conditions of Participation (CoPs).


CMS established hospitals standards for patient care which are called the Conditions of Participation. Hospitals are expected to comply with these conditions completely, as CMS views these standards as minimum expectations of hospitals. So, hospital executives and Board members must ensure that their organizations comply completely with CMS regulations to avoid the financial and public relations ramifications of adverse survey results. In fact, one of the most often cited deficiencies is that the Governing Body has failed to ensure that the organization is compliant with the CoPs.


This four-part series will provide hospital leaders with information about how to detect early warning signs that indicate their organizations are not doing enough to ensure compliance with CMS’ Conditions of Participation. It will cover;

  • Board Issues
  • Medical Staff
  • Use of Data

Because there are many requirements within the Conditions of Participation, it is beyond the scope of this series to explain the far-reaching topics that must be affirmatively managed to assure compliance. However, there are “symptoms” of regulatory vulnerability that can be observed in “at risk” organizations.


There are 7 critical issues involving the Board.

1. The Board spends most of its time on finance and business development, and dedicates little attention to clinical operations, outcomes, or patient and physician satisfaction.

It is not surprising that Boards like to focus on the financials and business development. Most Board members are familiar with financial and business issues, but have little familiarity with clinical operations or the indicators of clinical performance. People, especially successful people like Board members, tend to spend time on things that they understand and have mastered. When talking about familiar issues, one feels comfortable asking questions and making a contribution to the discussion. But talking about finances isn’t going to ensure that the organization complies with the CoPs. While every business needs to be financially successful, the business of the hospital is, at its core, clinical. Patients, like business customers, aren’t attracted to a hospital because it has a great balance sheet. They come because the hospital can care for them and their medical problems. Finances are important, but a Board that focuses on finances to the exclusion of the primary business is acting like a Finance Committee, rather than a true Governing Body. Managing a hospital by just watching the finances is like managing a baseball team by watching the scoreboard. The scoreboard doesn’t help you win the game; it only shows that you are winning or losing.

2. Board members are overwhelmed with “quality” data.

Management may provide the Board with reams of detailed reports on clinical care that are rich in data with attractive graphs. Often, however, there is little meaningful information in these reports. There is little explanation of what the results mean, what is driving the results, and how they relate to oversight responsibilities. Board members often have limited understanding of what they are looking at or how to improve the results. But, it is not the job of the Board to know what to do. It is their job to inquire as to whether the hospital’s management knows what to do. Effective Boards ensure that management has an understanding of how clinical results relate to organizational oversight. In addition, an effective Board holds management accountable for working on identified problems and making progress. Seeing the same unsatisfactory results time after time is a warning sign. Never seeing the same data set twice is also a sign that consistency and progress in measuring important clinical outcomes is missing. Data should be used as information to assess progress against goals and objectives. Consequently, data presentation to the Board should inform the Board’s responsibility to hold hospital management accountable for the core mission, patient care quality.

3. The Board does not spend much time learning about its role in the organization.

Most Board members are new to the organization or their roles on the Board. Yet, their orientation to those roles tends to be limited. For many Board members, including those from the Medical Staff, there is no organizational orientation that emphasizes mission, value and vision. Similarly, most Board members have little prior experience in understanding the breadth of their clinical responsibilities (e.g., CMS holds the Board responsible for the care of every patient who presents themselves to the hospital). While many may have relevant prior experiences, being a member of a hospital Board is a new and unique responsibility. Even physicians are unlikely to have the breadth of experiences that they will need to do a good job as Board members. Yet, at most hospitals, Board training is short in duration, limited in scope, and isn’t seen as an ongoing activity beyond initial orientation. Learning to be an effective Board member requires more than attending meetings—it requires a commitment to personal and group education on healthcare issues. Board members should require management to provide assistance in obtaining an ongoing pathway for learning and development. Similarly, Boards need self-assessment to encourage enhanced performance. Board development planning should focus on assessed areas of need and always loop back to oversight of care delivery.


End Part 1

>Achieving Regulatory Compliance in the Clinical Environment – More Important and More Difficult Than Ever

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