1 Tex. Admin. Code § 393.1 - Informal Dispute Resolution for Nursing Facilities and Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IID)
(a) The Texas
Health and Human Services Commission (HHSC) provides an informal dispute
resolution (IDR) process for nursing facilities and intermediate care
facilities for individuals with an intellectual disability or related
conditions (ICF/IID) (hereinafter referred to collectively as "facility")
through which a facility may dispute deficiencies/violations cited against that
facility by the State survey agency, or its designee.
(b) The HHSC IDR Department must receive a
facility's written request for an IDR no later than the tenth calendar day
after the facility's receipt of the official statement of
deficiencies/violations from the State survey agency, or its designee. The
facility must submit its written request for an IDR on the form designated for
that purpose by HHSC. HHSC will make that form publicly available, e.g.,
maintained on the HHSC website.
(c)
Within three business days of its receipt of the facility's written request for
an IDR, HHSC will notify the facility and the State survey agency's regional
office under which the facility operates of its receipt of the
request.
(d) Within five calendar
days of HHSC's receipt of the facility's request for an IDR, HHSC must receive
from the facility the facility's rebuttal letter and attached supporting
documentation. The rebuttal letter must contain:
(1) a list of the deficiencies/violations
disputed (only those deficiencies/violations listed on the IDR request form and
addressed in the rebuttal letter and supporting documentation will be
reviewed);
(2) the reason or
reasons each deficiency/violation is disputed; and
(3) the outcome desired by the facility for
each disputed deficiency/violation.
(e) The facility submits its supporting
documentation or information in the following format.
(1) Organize the attachments by
deficiency/violation and cross-reference to the disputed deficiency/violation
in the rebuttal letter.
(2) Ensure
all information is labeled and legible.
(3) Highlight information relevant to the
disputed deficiency/violation, such as a particular portion of a
narrative.
(4) Describe the
relevance of the documentation or information to the disputed
deficiency/violation.
(5) Do not
de-identify documents that name residents referenced in disputed
deficiencies/violations.
(f) If the facility substantially complies
with the procedures set out in subsections (d) and (e) of this section, HHSC
will proceed with its review of the facility's IDR request.
(g) It is the facility's responsibility to
present sufficient credible information to HHSC to support the outcome
requested by the facility.
(h)
Possible outcomes of an IDR for nursing facilities and ICF/IID are:
(1) a determination that there is
insufficient evidence to sustain a deficiency/violation;
(2) a determination that there is
insufficient evidence to sustain a portion of or a finding of a
deficiency/violation;
(3) a
determination that there is sufficient evidence to sustain a
deficiency/violation;
(4) a
determination that there is insufficient evidence to sustain the
deficiency/violation as cited but that there is sufficient evidence to sustain
a different citation;
(5) a
determination that there is insufficient evidence to sustain the severity and
scope assessment but that there is sufficient evidence to sustain a reduced
severity and scope assessment (for Immediate Jeopardy or Substandard Quality of
Care only); or
(6) a determination
that there is sufficient evidence to sustain the severity and scope assessment
as cited.
(i) HHSC will
not conduct an IDR based on alleged surveyor misconduct, alleged State survey
agency failure to comply with survey protocol, complaints about existing
federal or State standards, or attempts to clear previously corrected
deficiencies/violations.
(j) Upon
receipt of the facility's IDR request, the State survey agency must submit to
HHSC the following supporting documentation:
(1) resident identifier list;
(2) report of contact; and
(3) Automated Survey Processing Environment
(ASPEN) event ID number.
(k) Any information related to an IDR request
that is received by HHSC from either the facility or the State survey agency
will be made available by HHSC to the opposing party. Parties have until the
end of the second business day after receipt of such shared IDR information to
respond to HHSC about that information. HHSC will share any responses with the
opposing party.
(l) HHSC may
request additional information from the facility and/or the State survey
agency. Both parties will be notified of the request for additional information
and have until the end of the second business day after notification to respond
to the request. The opposing party will be provided with copies of the response
submitted to HHSC.
(m) All
responses to shared information as described in subsections (j) and (k) of this
section must be received no later than the tenth calendar day after the
facility's rebuttal letter and supporting documentation are
submitted.
(n) Ex parte
communications by the facility or by the State survey agency with HHSC
personnel conducting the IDR are prohibited.
(o) An eligible facility may participate in
an IDR conference provided that the facility requested an IDR conference on the
IDR request form.
(p) Any IDR
conference will be scheduled by HHSC, or its designee on or before the 22nd
calendar day after HHSC received the IDR request. If the facility is unable to
participate on the scheduled date, the IDR conference will be cancelled, and
the IDR will continue as though no conference had been requested.
(q) The IDR conference is an informal
opportunity for an eligible facility to present important information
previously submitted in the facility's rebuttal letter or responses to shared
information. The facility and the State survey agency may attend any IDR
conference, but neither party may present information that was not previously
included in the Statement of Deficiencies/Licensing Violations, submitted in
the provider's rebuttal letter, or responses to shared information as set forth
in subsections (j), (k), and (l) of this section. While the facility may ask
clarifying questions related to the information in the Statement of
Deficiencies/Licensing Violations, the questions are strictly limited to the
review in question.
(r) HHSC will
complete the IDR no later than the 30th calendar day after its receipt of the
facility's written request. The IDR recommendation shall be in writing, address
all the issues raised by the facility, and explain the rationale for the
recommendation.
(s) The time frames
designated in the IDR process shall be computed in accordance with Texas
Government Code §
311.014.
(t) HHSC may issue and enforce operating
procedures concerning the IDR process and the conduct of IDR participants. IDR
participants must comply with any such procedures. HHSC may deny an IDR request
if the information submitted is incorrect, incomplete, or otherwise not in
compliance with applicable HHSC operating procedures.
(u) The State survey agency may revise an IDR
recommendation as a result of a review and subsequent determination that the
IDR recommendation may violate a federal law, regulation, or the CMS State
Operations Manual.
(v) HHSC may
contract with an appropriate disinterested organization to adjudicate disputes
between a facility and the State survey agency. Texas Government Code §
2009.053 does not
apply to the selection of an appropriate disinterested organization. For
purposes of this section, a reference to HHSC with respect to HHSC's role in
the IDR process includes an organization with which HHSC has contracted for the
purpose of performing IDR, and a contracted organization is bound by the same
requirements to which HHSC is bound for the purposes of conducting an IDR. The
results of an IDR conducted by a contracted organization serve only as a
recommendation to the State survey Agency. The State survey Agency maintains
responsibility for and makes final IDR decisions.
Notes
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