Iowa Department of Inspections and Appeals

Iowa Department of Inspections and Appeals

Division of Health Facilities

Federal Informal Dispute Resolution / State Informal Conference on Contested Citation

QUICK REFERENCE GUIDE
·  The Federal IDR process is not available to all of the recipients of this instruction sheet.
·  The Federal IDR process is only available to NFs, SNFs, and NF/SNFs.
·  This instructional sheet addresses both the Federal IDR process and the State IC process.
·  Every facility licensed under Iowa Code chapter 135C can utilize the State IC process. This includes; NFs, SNFs, NF/SNFs, RCFs, RCFs/MRs, RCF/PMIs, RCF 3-5 beds, ICF/MRs.

1.  Introduction – Both Federal and State law provide a mechanism to informally challenge certain Department actions. These informal challenges are very different than formal “contested case proceedings.” The Federal mechanism is called Informal Dispute Resolution (IDR). The State mechanism is called Informal Conference on Contested Citation (IC).

According to Federal (42 CFR 488.331) and State (Iowa Code section 135C.42) requirements, the Department is to provide a facility with one opportunity for IDR/ IC after the official Statement of Deficiencies (CMS-2567) and/or Class I, Class II or Class III violations are received by the facility.

In order to maximize efficiency for the Department and facilities, the Federal IDR and the State IC will occur at the same time. Additionally, even though both Federal and State law only require a single informal mechanism, the Department has permitted, and will continue to permit, either “face to face” or written “desk” review. Telephone conferences are also permitted.

2.  Purpose – The purpose of IDR is to give providers a single opportunity to refute cited Federal deficiencies after a survey, outside of the formalities of a contested case proceeding. Similarly, the purpose of IC is to allow providers an opportunity to informally raise challenges concerning certain State citations.

The federal IDR/state IC process is not a substitute for good communication and exchange of information between the facility and surveyors throughout the survey process and the exit conference. In fact, “mini-exits” may occur in the later stages of the survey process to facilitate communication and the exchange of information, including documentation. Further, nothing precludes a facility from communicating with the Program Coordinator (PC) after the exit, but prior to the issuance of the CMS-2567 and/or the State Statement of Deficiencies. Consequently, facility documents presented for the first time at either desk review or face-to-face proceedings will be scrutinized for relevance and reliability. The goal is to focus on directly relevant documents that are timely presented to clarify and/or refute findings. Relevance, materiality and timeliness of documents will assure their consideration.

3.  General IDR Information – According to the State Operations Manual (SOM), section 7212, facilities may not use the IDR process to delay the formal imposition of remedies or to challenge any other aspect of the survey process, including the:

a.  Scope and severity assessments of deficiencies (with the exception of scope and severity assessments that constitute substandard quality of care or immediate jeopardy);

b.  Remedy (ies) imposed by the enforcing agency;

c.  Alleged failure of the survey team to comply with a requirement of the survey process;

d.  Alleged inconsistency of the survey team in citing deficiencies among facilities; or

e.  Alleged inadequacy or inaccuracy of the IDR process.

Additionally, the IDR may not be used to delay the requirement to submit an acceptable Plan of Correction (POC) within ten (10) calendar days of receipt of the Statement of Deficiencies. Since the law requires submission of an acceptable POC within ten (10) calendar days of receipt of the Statement of Deficiencies, but the Department allows five (5) days for mailing, count fifteen (15) days from the date of the letter transmitting the CMS-2567 as the deadline to file your request for IDR.

Any request by a provider for surveyor worksheets will not delay the IDR process. The Department will strive to make available copies of surveyor worksheets via compact disk, or otherwise, within one (1) business day of a request.

4.  General IC Information – Although the State Statement of Deficiencies is not legally subject to informal review, if you are a facility entitled to the IDR process, and the IDR process results in a change that would also impact the State Statement of Deficiencies, the Department will, when appropriate, make the corresponding adjustment. The State Statement of Deficiencies remains subject to formal contested case proceedings. A request to formally contest a State Statement of Deficiencies must be made within 30 days of receipt of the State Statement of Deficiencies.

5.  Time Frames – IDR/IC

IDR The Department must receive the written request for IDR (and the POC) within 15 calendar days of the date on the letter transmitting the CMS-2567.

IC For facilities licensed under Iowa Code chapter 135C, the Department must receive the written request for IC within twenty (20) business days after service of the State Class I, II or III citation. (This written request is required to be submitted within the same time frame as the facility’s written response to the citation, acknowledging that the citation has been received and stating that the violation(s) will be corrected within the specified period of time allowed by the citation).

IDR/IC Because the IDR process and the IC process are ordinarily combined, the practical effect of these time frames is for facilities to submit BOTH the written request for IDR and the written request for IC within the fifteen (15) calendar day time frame from receipt of the federal and/or state letters.

6.  Types of IDR/IC - The facility can request either an informal desk review or an informal face-to-face review. Telephone conferences are also permitted. However, only one review can be requested, and only one review can occur.

Desk Review:

a.  The written request for desk review must include notation of the specific deficiency(ies) being contested, and must be accompanied by supporting documentation. A cover letter stating the basis for consideration of materials not previously submitted must accompany the written request for IDR. Two copies of the documentation must accompany the written request and the POC.

b. The review will be conducted by a Bureau Chief who is not responsible for the survey itself, and a representative of the Department will provide final review of the Bureau Chief’s recommendation.

c. The results of the desk review will generally be mailed to the provider within ten (10) business days after receiving the request. Depending upon the results of the IDR/IC, the Department will send a letter detailing any further appeal rights and providing information relative to the need for a new POC, if applicable.

d.  The Department will provide an Amended (changes in factual content) or Corrected (changes in typographical/data errors) CMS-2567 and/or State Fining and Citation if changes result from the desk review.

e.  The PC must receive a new POC for the Amended or Corrected CMS-2567 within 10 calendar days from the date of the cover letter accompanying the Amended or Corrected CMS-2567 that resulted from the desk review.

Face-to-Face Conference:

a.  The facility may request (in writing to the PC) a face-to-face conference for any cited deficiency or citation. The only deficiencies or citations that will be reviewed during the face-to-face conference will be those deficiencies or citations that are specifically referenced in the written request. The written request must specify the deficiencies or citations being contested, note whether legal counsel will be present, and include the names of those who will be attending. Four copies of the documentation supporting the facility’s position must accompany the written request and the POC. As with the Desk Review, a cover letter stating the basis for consideration of materials not previously submitted must accompany the written request and the POC.

b. The face-to-face conference will be conducted by a representative of the Department.

c. This conference will be scheduled (in consultation with the facility) to occur within 10 working days of the receipt of the written request, the POC, and all supporting documentation. Supporting documentation must be submitted with the written request in order to be considered. Failure to submit supporting documentation will not delay scheduling.

d.  The conference will be scheduled for one hour to allow the provider to informally present information and explanation concerning the contested deficiencies. Due to the confidential nature of the conference, attendance may be limited.

e.  The results of the face-to-face conference will generally be mailed within 10 business days after the date of the conference. However, if additional information is requested during the IDR process, the facility will have two business days to deliver the additional materials to the Department. The results of the IDR conference will be mailed to the provider within 10 business days after receiving the additional information, along with information concerning any further appeal rights. The Department will provide an Amended (changes in factual content) or Corrected (changes in typographical/data errors) 2567 and/or State Fining and Citation if changes result from the face-to-face conference.

f.  The facility must submit to the PC a new POC for the Amended or Corrected 2567 within ten (10) calendar days from the date of the letter conveying the results of the conference.

g.  When extenuating circumstances (such as severe weather or medical emergency) preclude a face-to-face conference, a teleconference will be held or the provider will be given one opportunity to reschedule the face-to-face conference.

CMS Oversight of IDRs

Section 7212C of the State Operations Manual reads: “Since CMS has ultimate oversight responsibility relative to a State’s performance, it may be appropriate for CMS to examine specific informal dispute resolution decisions or the overall informal dispute resolution process to determine whether a State is arriving at a correct result. For dually participating or Medicare-only facilities, informal dispute findings are in the manner of recommendations to CMS and, if CMS has reason to disagree with those findings, it may reject the conclusions from informal dispute resolution and make its own binding determinations of noncompliance.”

If CMS reviews the IDR decision, you will receive notification directly from CMS.

(revised 7/1/09)