ISDH Establishes a New Independent Informal Dispute Resolution Process for Long Term Care Facilities

by Zach Cattell, JD, IHCA General Counsel

On December 30, 2011 the ISDH issued a new ISDH Division of Long Term Care Policy and Procedure implementing the Federal requirement to establish an Independent Informal Dispute Resolution (IIDR) process for long term care facilities. The new IIDR process has been established to provide long term care facilities an opportunity, without cost to facilities, for an entity independent of the State Survey Agency to review certain aspects of survey deficiencies.

The ISDH IIDR Policy and Procedure includes two attachments, one with contact information for the ISDH IIDR lead and one with a timeline of the IIDR process (click here for the documents: IIDR Policy and Procedure; Attachment A – Contact Information; Attachment B – Timeline). The ISDH has also established a Informal Dispute Resolution Information Center at http://www.in.gov/isdh/25304.htm.

Applicability of the New IIDR Process

The new IIDR process is an option for facilities to elect if the facility is the subject of a Civil Money Penalty (CMP) that may be collected and placed in an escrow account. Until further notice from Federal and State regulators only those deficiencies that cite actual harm or immediate jeopardy (G or above) will be subject to the CMP collection and escrow and only those deficiencies will trigger the opportunity for IIDR. Any CMPs imposed for D, E and F deficiencies will be collected under the current informal dispute resolution process run by the ISDH and are not subject to the new IIDR process.

In the December 30, 2011 ISDH Newsletter, the ISDH provided the following key components to the ISDH-developed IIDR process:

1. The new ISDH Informal Dispute Resolution Policy and Procedure is effective January 1, 2012.

2. The ISDH will continue to offer traditional informal dispute resolution for all licensing and certification surveys conducted at comprehensive care facilities. The "informal dispute resolution" process refers to the review process conducted by ISDH Long Term Care Supervisors. The informal dispute resolution process may be either a paper review or a face-to-face review as requested by the facility. There is no fee to the facility for the informal dispute resolution process.

3. Effective January 1, 2012, an independent informal dispute resolution process is available to skilled nursing facilities (SNF) and nursing facilities (NF) that meet certain requirements related to a civil money penalty (CMP) imposed by the Centers for Medicare and Medicaid Services (CMS). The process is conducted by a CMS-approved "independent entity" that has contracted with the ISDH to provide this service. There is no fee to the facility for the independent informal dispute resolution process.

4. The Independent Informal Dispute Resolution process will only apply to standard (annual) and/or complaint surveys begun on or after January 1, 2012, that initiate an enforcement action for which a civil money penalty is imposed and subject to being placed in escrow. Any revisit survey conducted on or after January 1, 2012, that is associated with standard or complaint surveys begun prior to January 1, 2012, will not be subject to the Independent Informal Dispute Resolution Process.

5. Only civil money penalties which are imposed based on a deficiency or deficiencies cited for actual harm or immediate jeopardy to resident health or safety (i.e., at a scope and severity level of G or above) will be subject to civil money penalty collection and escrow provisions. Those deficiencies which result in the imposition of such civil money penalties will trigger a facility's opportunity to participate in the independent informal dispute resolution process. CMS will provide notice of the opportunity to participate in the independent informal dispute resolution process. The facility will request an independent informal dispute resolution through the ISDH.

6. The ISDH will be contracting with an independent entity for the independent informal dispute resolution process. The ISDH will provide contact and process information for that entity when a facility requests the independent process.

Independent Informal Dispute Resolution Entity

As noted by the ISDH in item #6 above and in the December 30, 2011 ISDH Newsletter, the State has not yet awarded a contract as proposals to the State were due on January 5, 2012. The ISDH believes that the independent entity will be in place in time for use by facilities.

Additional Considerations

The new IIDR process, with its requirements and timing limitations, is untested in Indiana or anywhere else in the country and there will undoubtedly be questions that arise. Due to the timing limitations (the process must be completed within 60 days from a facility’s request for IIDR), the new IIDR process for Indiana facilities will be entirely paper-based and no in-person meetings will occur. For the traditional ISDH-led informal dispute resolution process, a facility can choose either paper-based review or in-person review.

Because the ISDH will continue to administer the ISDH-led informal dispute resolution process and because facilities will not be able to go through both the ISDH-led process and the new IIDR process for the same deficiencies, the ISDH will not schedule an ISDH-led informal dispute resolution process, if requested, until a determination of whether CMP will be imposed that can trigger a facility’s right to the new IIDR. It will be key that a facility submit all supporting documentation to the ISDH through the ISDH Survey Report System when electing the ISDH-led process as requests for that process will not be considered until all documentation is submitted. Once it is known whether CMP is to be imposed for a deficiency, then a facility can choose either the ISDH-led process or the new IIDR process.

In addition, facilities and their counsel should consider how the IIDR process will impact any decision to request or waive a formal hearing on cited deficiencies. CMS and ISDH have been clear that the new IIDR process is not and will not be used to delay timing of the formal hearing process. Request for a formal hearing will likely have to occur near the same time that an IIDR is requested due to timing requirements.

IHCA will continue to monitor the development of Indiana’s IIDR process. For additional information please contact Zach Cattell at zcattell@ihca.org or 317-616-9001.