Informal Dispute Resolution (IDR) Update
PDF Version of BQA 06-005
(PDF, 92 KB)
Date: May 5, 2006 -- BQA Memo 06-005
Supersedes DDES-BQA 04-020 and DDES-BQA 05-005
To:
Nursing Homes NH - 04, Facilities for the Developmentally Disabled
FDD
- 03
FROM: Jan Eakins, Chief, Provider Regulation & Quality
Improvement Section
Via: Otis Woods, Director, Bureau of Quality Assurance
OVERVIEW
This memo describes the revised procedure under which health care
facilities may work to informally resolve differences they have with
citations issued by the Bureau of Quality Assurance. Substantive revisions
are bolded. The procedure takes effect May 8, 2006. Significant changes
include:
1. Facilities have up to ten days following receipt of the Statement of
Deficiencies to request IDR and provide supporting documentation to MPRO.
It is no longer necessary to fax an initial request for IDR to BQA Central
Office and MPRO within three days following receipt of the SOD.
2. A copy of MPRO's recommendation will be sent to the facility upon
completion of the IDR.
On January 1, 1995, the Bureau of Quality Assurance (BQA) implemented a
standardized process for informally resolving disagreements facilities may
have with citations issued by BQA surveyor(s). Since then, we have refined
this process (BQA Memo 03-013 and 04-020). This memo reflects the MOST
RECENT changes to the process.
The Informal Dispute Resolution (IDR) process has been developed with
the expectation that all parties will act in good faith, treat others with
respect and professionalism, and recognize that there will be issues of
honest disagreement.
The goals of informal dispute resolution are to ensure that the
Statement of Deficiencies (SOD) and the federal and state data systems
accurately identify a provider's state of compliance relative to the
regulations, and to resolve differences:
- Outside of formal litigation, thereby avoiding the costs of
protracted litigation (however, the process does not preclude a
facility from requesting a hearing where applicable);
- In a timely manner, while the issues and facts are still fresh; and
- Prior to the entry of the survey results into the federal data
system.
With the approval of the Centers for Medicare and Medicaid Services
(CMS), the BQA contracted with the Michigan Peer Review Organization (MPRO,
Farmington Hills, MI) to conduct independent review of all IDR requests,
effective August 16, 2004. MPRO uses a systematic review process and a
decision algorithm to arrive at a determination. This includes reviewing
the regulatory standard, the statement of deficiency, and information
provided by the health care facility. If an expert opinion is requested,
MPRO can draw on a cadre of consultant reviewers to provide advice and
judgments on specific aspects of a cited deficiency. Upon completion of
IDR reviews, MPRO will provide the appropriate BQA Regional Office with
written recommendations that may include the following: withdraw
citations, keep citations as written, modify or withdraw examples from the
citation(s), and lower or raise the state classification.
The process of IDR renders a de novo (new) look at disputed citations.
The process does not alter or delay the required timetables associated
with licensure or certification termination or other adverse action. This
informal process does not limit the legal appeal processes that are
afforded facilities under state and federal laws and regulations.
Allegations concerning survey team conduct during the survey should not be
reported under this process, but rather to the Regional Field Operations
Director (RFOD) or Resident Care Review Section Chief.
The IDR process begins during the survey with communication between the
surveyor(s) and the facility. The survey coordinator meets with the
provider daily, or as needed, to share preliminary survey findings.
Federal survey protocols dictate the information that can be shared before
exit, especially if it impacts on the eventual scope or severity of a
deficiency. If you think this process is not occurring during a survey, we
ask that you immediately contact the Regional Field Operations Director or
Field Operations Supervisor assigned to your facility. Surveyors also meet
with the provider at the exit conference to present a preliminary summary
of the survey findings.
We encourage facilities to use these meetings to provide additional
clarifying facts and information to surveyors, so that material can be
considered in the final decision-making process. Facilities may also
provide additional information to the survey team between the date of the
exit conference and the date any deficiencies are served.
Once the SOD is received, facilities that disagree with examples,
individual citations, or all the citations, may request that differences
be resolved through IDR.
It is to everyone's benefit that the process for reviewing disputed
citations occurs as quickly as possible. The facility must follow the time
frames below if the provider is requesting IDR:
(1) Timeframes and Procedures for Requesting IDR
(a) A facility that wishes to request in-person, telephonic or desk
review must:
- Request IDR by the tenth calendar day following receipt of the SOD
(or the first working day if the due date is on a weekend or holiday).
The day the facility receives the SOD is Day 0; and
- Provide supporting documentation to MPRO by the tenth calendar day
following receipt of the SOD (or the next working day if the due date
is on a weekend or holiday). The day the facility receives the SOD is
Day 0.
Materials received after Day 10 will not be considered during the
IDR review.
(b) The request for IDR should be made by FAX and directed to BQA
Central Office, Attention: IDR Intake. (Phone and FAX numbers are listed
at the end of this memo. The fax line is available 24 hours/day). The
request for IDR should also be included in the IDR review packet received
by MPRO on or before Day 10.
(c) The request for IDR must be on a fully completed IDR Request Form
(DDE-2514, Revised 2006) appended to the SOD transmittal letter.
(d) Upon receipt of the request for IDR, MPRO will note the type of
review requested (desk, telephonic, or in-person) and assign an IDR
reviewer.
(e) The facility should mail the IDR review packet to MPRO at 22670
Haggerty Road, Suite 100, Farmington Hills, MI, 48335-2611, Attention: IDR
Review Specialist.
NOTE: The State Operations Manual allows facilities ten calendar days
from receipt of the SOD to submit a written request for IDR, and to
document why they are disputing specific federal deficiencies. The
CMS-2567 survey packet must be sent to the federal Centers for Medicare
and Medicaid Services (CMS) within 45 days of the date of exit. This short
time frame means that requests for IDR and supporting documentation
received by MPRO after Day 10 will not be considered for IDR.
(2) Submitting Documentation to MPRO:
(a) The IDR review packet must include:
- A fully completed IDR Request Form (DDE-2514 Revised 2006) appended
to the SOD transmittal letter;
- An original signed Wisconsin IDR Service Agreement form;
- Two copies of the SOD without a Plan of Correction; and
- Two complete copies of your supporting documentation for IDR review.
(b) When submitting supporting documentation to MPRO, the facilities
must include the following information:
- The specific reason each federal tag or state code is being
disputed, e.g., disagreement with the tag or code that was chosen,
disagreement with the state classification, availability of supporting
information that disputes or further clarifies the facts, or errors in
documentation on the SOD. Reasons for dispute must be highlighted on
submitted documents, or a cover letter must be included detailing the
points of contention, or both.
- The desired outcome for each disputed federal tag and state code,
e.g., withdraw the citation, change state classification, withdraw
specific examples, or change federal tag or state code.
- The relevance of the documentation to the dispute. Material that
does not highlight or identify specific entries to be reviewed for
each disputed citation, or that does not explain the relevance of the
documentation to the dispute will not be considered. The facility
should explain why the material was not shown to the survey team
during the discussion of survey findings.
Note: If requested, MPRO will sign and return a Business Associate
Agreement received from a facility requesting a telephonic or in-person
review. Please mail a Business Associate Agreement directly to MPRO, 22670
Haggerty Road, Suite 100, Farmington Hills, MI, 48335, Attention: IDR
Project Specialist.
(3) The IDR Session
(a) The type of IDR review will depend on your selection on the IDR
request form, with the following exception:
- If IDR is requested, MPRO will conduct only desk reviews for federal
citations at a scope and severity level of A, B, and C - Grid Level l
citations, and state stand-alone correction orders and notations.
(b) Two qualified reviewers will review citations of substandard
quality of care, immediate jeopardy, conditions of participation, and
repeat standards in order to agree upon a decision.
(c) A facility may request a review by a consultant with expertise
related to specific concerns that are identified in the statement of
deficiency. MPRO will provide these consultants and bill the facility for
their services at a rate of $105.00 per hour, with a ½ hour minimum of
review time. Please refer to the Wisconsin IDR Service Agreement document
attached to this memo [via the PDF version
of this memo
(PDF, 92 KB)].
(d) After receiving a timely request for an in-person or telephonic IDR,
the MPRO IDR Reviewer will schedule the meeting as soon as practicable. If
schedules conflict, the call or meeting will be held on a
mutually-agreed-upon date. The MPRO IDR Reviewer will choose the site of
the IDR meeting. MPRO IDR Reviewers will share some travel responsibility
but may choose to conduct some cases at the nearest public meeting place
(library, schools, universities), at the facility requesting the IDR, a
regional office, or their homes, which may allow them to conduct several
cases on the same day. They may at times travel to other regions to
conduct IDRs. MPRO's policy will allow its IDR Reviewers to meet their
obligations with flexibility.
(e) The IDR meeting will be limited to one hour, unless the MPRO IDR
Reviewer agrees to an extension. The duration of the IDR will be
established prior to the start of the IDR based on the number and
complexity of identified issues. To make the best use of the available
time, facilities are encouraged to prioritize their concerns and present
new information succinctly.
(f) The IDR meeting is intended to be an open, good faith negotiation
between parties who wish to resolve their differences. The purpose of this
conference is to allow the facility to provide a brief overview of the
material it has submitted, and to answer any questions that MPRO may have
about the material. This is an informal meeting or phone conference. The
MPRO IDR Reviewer will describe the purpose of the meeting. The provider
may explain how and why it disagrees with the survey team's conclusions.
The provider should be able to identify the specific parts of the
Statement of Deficiencies with which he/she disagrees. The disagreement
may be with either statement of fact or surveyor conclusions.
(g) BQA Regional Field Operation Directors (or their designees) and/or
attorneys representing the facility may participate in the IDR. In some
cases, an Ombudsman from the Board on Aging and Long-Term Care, a
representative from CMS or WDHFS, or a MPRO project manager may request to
attend an IDR. The MPRO reviewer will inform facilities prior to, or upon
convening, the IDR if an Ombudsman, federal representative or MPRO manager
will be present. The IDR session can be taped by any party wishing to do
so. In this case, a copy should be made available to the other party. All
participants will be notified at the start of the IDR that a tape is being
made, and that a copy of the tape will be made available to those wishing
a copy. A copy of the tape and its transcription, if transcribed, will be
made a part of the permanent record.
(4) Post-IDR Session
(a) MPRO will submit their IDR recommendations to the appropriate BQA
Regional Office no later than 21 calendar days following receipt of the
SOD.
(b) As directed by CMS, BQA will retain the responsibility to review,
and the authority to overturn, MPRO's IDR recommendation(s). BQA will
review the recommendation(s) and will communicate the final IDR decision,
including MPRO's recommendation(s) to the facility no later than 24
calendar days following receipt of the SOD. A copy of the MPRO Independent
Review Recommendation will be sent to the facility upon completion of the
IDR process.
(c) Amending the Statement of Deficiency: When changes are made to the
SOD, the MPRO IDR Reviewer will ask whether the facility is requesting a
"clean" SOD rather than an "amended" SOD. The request
for a "clean" SOD MUST be made at this time. A "clean"
SOD means the original SOD is withdrawn and a second SOD is generated by
the computer after the changes have been entered into the system. A
facility is responsible for ensuring its Plan of Correction is transferred
to the "clean" SOD. A "clean" SOD will not be
generated for superficial errors or minor inconsistencies in the SOD such
as:
- A minor typographic error;
- A staff, resident or surveyor identifier number is incorrect (it may
be appropriate to clarify and update the identifier list), or
- For simple wording changes, e.g., the facility desires language to
read "rule out possible pulmonary emboli" rather than what
was stated on the SOD as "rule out pulmonary emboli."
In these cases, or where a request is not made by the facility for a
"clean" SOD, BQA will revise its survey findings by amending the
original SOD. An amended SOD means that additions or deletions are made on
the original SOD by crossing out or inserting text, and noting in the
margin of the SOD that the changes are the results of IDR. .
For SODs alleging a Class A, B, or C violation, any appeal of the
original SOD is eliminated when the original SOD is withdrawn. An appeal
of the original SOD does not carry over or transfer to the
"clean" SOD. The facility must file a new request for hearing if
the "clean" SOD is subject to appeal and the facility wishes to
appeal it.
(5) Availability of IDR
(a) For both nursing homes and FDDs, the availability and use of IDR:
- Applies to all citations issued by BQA. It does not apply to a
re-cited citation where (a) the re-cited facts are identical to the
facts on the previous citation; and (b) the previous citation has
already gone through IDR. In general, this exception will apply to
structural deficiencies. For example, a facility that was re-cited for
not replacing an improperly rated fire door could not request a second
IDR because the situation ("the door") remained the same. On
the other hand, a facility may be able to request IDR on a re-cited
activity deficiency because activities are fluid and changeable. A
re-cited deficiency will have different facts because it may address
different residents, different frequencies of participation, or
different activities in which a resident did or did not participate.
Upon receipt of an IDR request for a citation for which IDR is not
applicable, BQA will notify MPRO.
- Applies to any new citation issued as a result of IDR. A
"new" citation means a deficiency or violation (a) that was
not known before the IDR, because new facts were learned during the
IDR; or (b) that was substantially changed as a result of IDR. A
deficiency is substantially changed when facts are materially altered
and the information is cited under a different federal or state
regulation. Upon receipt of an IDR request for a citation for which
IDR is not applicable, BQA will notify MPRO.
- Does not prevent providers licensed under ch. HFS 132 or ch. HFS 134
from filing a formal state appeal under section 50.04(4) (e), Wis.
Stats. Appeals must be made within ten calendar days of receipt of the
SOD. If, as a result of IDR, a facility continues to disagree with
BQA's decisions, the appealed citations will remain in dispute and may
proceed to full litigation and hearing. As stated in paragraph (4) (b)
and (c) above, the issuance of a "clean" SOD results in
withdrawal of the original SOD. The original appeal does not transfer
automatically to the new "clean" SOD. A new state appeal
request is required if the facility wishes to appeal the
"clean" SOD.
- Does not exempt a facility from submitting an acceptable Plan of
Correction for each citation within ten calendar days from receipt of
the SOD.
- An acceptable Plan of Correction must explain how deficient
practices will be corrected vis-à-vis residents identified on the
SOD, how other residents who are at risk will be identified, what
measures will be put into place to ensure that the deficient practice
will not recur, and how the facility will monitor its corrective
actions to ensure that the deficient practice is being corrected and
will not recur.
- No Plan of Correction from any licensed provider may malign an
individual. Failure to submit an acceptable Plan of Correction for
each federal tag and state code will prompt the Bureau to initiate a
recommendation for termination of the provider agreement, revocation
of state license, or both. For federally certified nursing homes,
failure to submit an acceptable Plan of Correction for a federal
deficiency may also lead to the imposition of alternative enforcement
remedies.
(b) For federally certified nursing homes, the IDR process cannot, in
general, be used solely to challenge the scope and severity of a
particular citation without challenging the underlying facts and examples
containing therein. If the underlying facts and examples change as a
result of IDR, a by-product of the dispute may be a change in the scope
and severity designation. Scope and severity can be directly challenged
without challenging the underlying facts and examples, if a change in
scope and severity will change a designation of substandard quality of
care, or will lower the category of a Civil Money Penalty.
IDR REQUESTS:
If you wish to request IDR, please fax the IDR intake form to:
BQA, Central Office,
Provider Regulation & Quality Improvement (PRQI) -
IDR Intake, Attention: Gail Hansen
Ph: 608-266-2966
Fax: 608-267-7119
REGIONAL FIELD OPERATIONS DIRECTORS (RFODs)
For all other issues related to the survey and enforcement process,
please contact the appropriate Regional Field Operations Director.
Contacts are listed below:
Joanne Powell, Northeastern Regional Office
200 North Jefferson Street, Suite 211
GREEN BAY, WI 54301
(920) 448-5249
FAX (920) 448-5254
PowelJM@dhfs.state.wi.us
Joanne Powell, Northern Regional Office
1853 N. Stevens Street, Suite B
RHlNELANDER WI 54501
(715) 365-2802
FAX (715) 365-2815
PowelJM@dhfs.state.wi.us
Katherine Friend, Southeastern Regional Office
819 N. 6th Street, Room 609B
MILWAUKEE WI 53203
(414) 227-4908
FAX (414) 227-4139
FrienKA@dhfs.state.wi.us
Pat Virnig, Southern Regional Office
2917 International Lane, Suite 210
MADISON WI 53704
(608) 243-2379
FAX (608) 243-2389
VirniPE@dhfs.state.wi.us
Joe Bronner, Western Regional Office
610 Gibson Street, Suite 1
EAU CLAIRE WI 54701
(715) 836-4753
FAX (715) 836-2535
BronnJA@dhfs.state.wi.us
Attachments [access these via the PDF
version of this memo
(PDF, 92 KB)]:
- Attachment A - IDR Process Flow Chart
- Attachment B - Informal Dispute Resolution Request Form DDE-2514
(Revised 2006)
- Attachment C - Wisconsin IDR MPRO Service Agreement Form
This memo with attachments can be accessed on the Internet at:
http://dhfs.wisconsin.gov/rl_DSL/Publications/BQAnodMems.htm
PDF: The free Acrobat Reader®
software is needed to view and print portable document format (PDF) files.
Learn more.
|
