What is Independent Informal Dispute Resolution? (besides the new acronym “IIDR”) Linda J. Cohen

1. What is Independent Informal Dispute Resolution? (besides the new acronym “IIDR”) Linda J. Cohen lcohen@dinse.com 1

2. Tremendous Opportunity • Constructive, clear and ongoing communication about the survey process • Written record and decisions will provide better understanding for facilities and survey team • Facilitate resolution of differences • Promote mutual understanding • Enhance understanding of survey decisions • Minimize conflict 2

3. Federal requirement from PPACA • Applies to all standard and complaint surveys after 1/1/12 that: • Initiate an enforcement action for which civil monetary penalties are imposed and subject to being put in escrow (G and up) • Revisit surveys are exempted • State survey agency must offer an independent informal dispute resolution process 3

4. Federal Parameters • Offer - CMS must offer IIDR to facilities with deficiencies of D and up • Timing - complete within 60 days from facility accepting offer • Opportunity to comment to involved resident, his/her representative and VT Long Term Care Ombudsman • Written record must be generated 4

5. Scope of Dispute Process • Limited to specific survey for which IIDR is offered in CMS letter • No questions or issues about previous surveys • May dispute • Factual Basis for Cited Deficiencies • Scope and Severity ONLY IF Immediate Jeopardy or Substandard Level of Care 5

6. Scope of Dispute Process • May NOT dispute: • Scope and Severity outside of substandard or IJ • Remedies imposed • Survey team straying from required survey process • Survey team is inconsistent in citing among other facilities • Inadequacy of IIDR or IDR process 6

7. Filing for IIDR Does Not Delay Other Enforcement • Must still complete Plan of Correction • Re-survey after POC • CMS still moves forward on fining • May hold in escrow • What impact on foregoing the appeal which reduces CMP automatically 7

8. The Panel • Vermont has a volunteer panel • Jointly appointed by DLP and VHCA, from your colleagues • Medical director • Administrator • Director of Nursing • Free of conflict of interest • Free of financial interest 8

9. The Panel • Preference to seat three members, one from each category • If not possible, can go forward with as few as one panel member • Thank your colleagues for service on the Panel, this is a very valuable service for your facilities 9

10. The Panel • Ex parte communications are prohibited– that is speaking about an IIDR proceeding or its substance with only one side • Please don’t try to approach panel members • Bound to keep confidences • Proceedings are confidential, panel won’t be discussing them, decisions or deliberations • Needs you to inform them, bring them as much information as you can • Organization counts 10

11. The IIDR • Informal Administrative Process • Appealing Facility Decides • In person • Telephone • Written Materials Review • Submit written materials (number pages) • With request or within set time after • Goal is to allow panel to know substance of the challenge ahead of time, allows for more thoughtful questions and consideration 11

12. The IIDR • Written materials • Surveyor Guidance • Special Alerts from CMS • Facility policies and procedures • Medical records – REDACT • Staff statements • Other materials 12

13. The IIDR • Informal Administrative Proceeding (in person) • Facility will be given an opportunity to briefly state its disagreements with survey tags D or higher and the reasons for those disagreements • Point out highlights of your argument • Refer to particular deficiencies and authorities • E.g. - See page 27 of Appendix PP • Allow employees to speak, or provide statements • Resident, representative or Long Term Care Ombudsman is given an opportunity to speak 13

14. The IIDR • Informal Administrative Proceeding (in person) • All comments directed to Panel, no questioning or speaking to each other • Panel may ask questions, seek clarification 14

15. IIDR Participants for Facility • Involved, quoted staff • Supervisory staff • May be represented by counsel, but no witness examinations, rules of evidence, formal proceeding 15

16. The IIDR - Phone • All Join on Conference Call Line • Facility given opportunity to speak, as for in-person • Refer specifically to important authority • All participants but Panel will be dropped from call, Panel will discuss 16

17. All IIDR • Panel will prepare a written recommendation to DLP with summary of findings for each tag • DLP can accept and modify the survey, will tell CMS • If DLP does not accept, and tag is G or above, Panel’s written recommendation goes to CMS, along with surveyor notes • If CMS accepts, modify survey • If CMS does not accept, relief available is through survey appeal 17

18. Unresolved Questions • Extent of surveyor participation in IIDR • Availability of surveyor notes for facility • CMS may release on Freedom on Information Act Request – timely response concerns 18

19. Timeline • Survey – complaint or regular survey • Citations Issued on 2567 Form • D or above eligible for IIDR • State will send IIDR letter with Statement of Deficiencies • Facility prepares and submits Plan of Correction • State sends citations to CMS • CMS can offer IIDR in its Notice of Imposition of Penalty Letter to Facility • Offer to Engage in IIDR 19

20. Timeline This letter now gets more confusing • Expect to see a section offering IIDR 20

21. Example 21

22. Example 22

23. Timeline • If you get both State letter and CMS offer of IIDR, measure from the one you received earlier and get your request and written materials in within 10 days of that 23

24. Timeline • Facility has TEN DAYS from receipt of Notice of Imposition of Penalty Letter to ask for IIDR • Request should include copies of any documents or information to support dispute as to survey • Request is sent, per instructions in letter, but we think to DLP and CMS • Specify • In person • Phone • Written 24

25. Timeline • Hearing must take place within 30 CALENDAR days of Notice of Imposition of Penalty letter • Whole process must be completed within 60 CALENDAR days of facility’s request • Hearing • Decision to DLP –within 10 days of hearing • DLP decides 25

26. Timeline • If DLP agrees, with one or more recommendations, will notify • Facility • IIDR Panel • CMS • Ombudsman • Resident/Representative 26

27. Timeline • If DLP does not agree with recommendation (10 days to look at it) AND disputed tag is G or higher • Send complete written record to CMS Region I office for review and final decision • CMS responds back to DLP • DLP sends CMS decision to facility within 10 days 27

28. Timeline • If DLP does not agree with IIDR recommendation AND tag is F or lower • DLP reviews with surveyor notes and makes final decision • Provides to facility, IIDR Panel, resident/representative and ombudsman within 10 days 28

29. Timeline • Taking more than 60 days does not invalidate survey deficiencies • IIDR considered completed if • No request • Facility chooses not to participate • Final decision made with written record and written notice to participants 29

30. Decision • Written Record • List of each deficiency challenged/disputed • Select carefully • Summary of Panel recommendation for each tag • Rationale and result • Documents submitted by facility to dispute deficiency or it scope and severity ranking • Comments from resident, representative or Long-Term Care Ombudsman 30

31. How to Prepare for IIDR • Start with your Statement of Deficiencies • Do you have tags of D or above? • If not, no IIDR, proceed with Plan of Correction and CMS Directives • Penalty payments • Do you disagree with tags of D or above? • Start planning how to support a challenge, why do you disagree? • Continue with Plan of Correction and CMS Directives • Penalty Payments – release appeal for lessened fine 31

32. How to Prepare for IIDR • Statement of Deficiencies • Do you have G or above tags cited? • Do you agree with the scope and severity ranking – evaluate this in addition to the substance of the tag? • Check the Surveyor Guidance regarding tags cited • Appendix PP – http://cms.hhs.gov/manuals/Downloads/som107ap_pp_guidelines_ltcf.pdf • Do citations meet this guidance? 32

33. How to Prepare for IIDR • Step into the surveyor’s shoes • Identify Deficiency • Assess effect on resident outcomes, number of residents potentially or actually affected • Use these results to determine if there is substantial compliance • Assess Severity Level 1-4 • Assess Scope – isolated through widespread • Make sure evidence is credible • Classify to the highest scope and severity levels 33

34. How to Prepare for IIDR • Statement of Deficiencies • Are there any special papers on your subject • Surveyor Guidance outside of Appendix PP • FDA or HHS guidance • E.g. bedrails • Professional Association Papers • Model Policies and Procedures 34

35. How to Prepare for IIDR • If Immediate Jeopardy Citation – does it meet guidelines in Appendix Q? • http://cms.hhs.gov/manuals/Downloads/som107ap_q_immedjeopardy.pdf • Three Components for IJ • Harm actual or potential • Actual – noncompliance caused serious injury, harm, impairment or death • Potential – noncompliance likely to cause serious injury, harm, impairment or death 35

36. How to Prepare for IIDR • Components of Immediate Jeopardy • Immediacy – harm or potential harm is likely to occur in the very near future if no immediate action • Culpability – did the facility know; should it have known; was there a thorough investigation, corrective measures; re-evaluation 36

37. Example • Discuss Scope and Severity - • Allowed because substandard 37

38. Scope and Severity • Pyschosocial Outcome Severity Guide • Publication 100-07, State Operations, Provider Certification • To determine scope and severity, surveyors will use the standard of a reasonable person in the affected resident’s situation when: • Unable to evaluate the resident’s actual response due to • Poor documentation • Cognitive impairment • Injury or death • Physical Impairment 38

39. Psychosocial Scope and Severity • Use reasonable person standard • When resident’s reaction is markedly incongruent with reasonable person • Negative psychosocial outcome must be a result of noncompliance • Connection to be established by observation, record review and/or interviews 39

40. Questions? Linda J. Cohen Dinse, Knapp & McAndrew 209 Battery Street P.0. Box 988 Burlington, Vermont 05402-0988 Phone: (802) 864-5751 Direct:  (802) 859-7011 Email: lcohen@dinse.com 40