CMS Issues Update to the Independent IDR Process

On Dec. 2, the Centers for Medicare and Medicaid Services (CMS) issued a new survey and certification letter updating the guidance to state agencies on the development and implementation of the Independent Informal Dispute Resolution (IIDR). 

The IDDR, applicable to all standard and complaint surveys begun on or after Jan. 1, 2012, must be offered to nursing homes when a civil money penalty (CMP) is imposed and the funds are subject to collection and placement in an escrow account. Revisit surveys conducted on or after January 1 that are associated with standard or complaint surveys completed before that date will not be subject to the IIDR process even if a CMP is imposed after January 1. 

The letter, Federal Requirements for the Independent Informal Dispute Resolution (Independent IDR) Process for Nursing Homes – Interim Advance Guidance, replaces the previous CMS letter of Oct. 14, and further clarifies the applicability and Key Elements of the IDDR process.  

CMS provides the interim advanced guidance to be included in the State Operations Manual (SOM) regarding the Federal requirements for the IIDR.

What's in the Letter

• Section 611 of the Patient Protection and Affordable Care Act (ACA) of 2010 provides facilities with the opportunity for an IIDR when a CMP is imposed and the funds are subject to being collected and placed in an escrow account, i.e., the IIDR “…must be offered to nursing homes for deficiencies that lead to the imposition of a civil money penalty (CMP) and for which notice has been provided to the nursing home that the CMP will be collected and placed in escrow.”

• The Federal requirements for IIDR will apply to all standard and/or complaint surveys begun on or after January 1, 2012 that initiate an enforcement action for which a civil money penalty (CMP) is imposed and is subject to being placed in escrow.
  • Any revisit survey conducted on or after January 1, 2012, that is associated with standard or complaint surveys completed before January 1, 2012 will not be subject to the IIDR process even if a CMP is imposed after January 1, 2012.
   
• The letter includes interim advanced guidance to be included in the State Operations Manual (SOM) regarding the Federal requirements for the IIDR.

• States may not charge facilities for the IIDR. Costs incurred by State Agencies (SAs) for conducting IIDRs are eligible for federal funding using existing/standard cost allocation principles.  In situations where the IIDR process is not required, but is provided by the State directly at its option, the State may choose to charge a facility a user fee for those processes.

Advanced SOM Guidance - 7313. 1 – 7213.11 

• A SA does not need to create any new or additional processes for IIDR if its existing process meets the requirements at 42 CFR 488.331 and 488.431 and described throughout §7213.

• An opportunity for IIDR must be provided within 30 calendar days of the notice of imposition of a CMP that is subject to collection and placement in escrow.

• IDDRs will –
  • Be completed within 60 calendar days of a facility’s request, if requested timely.
  • Generate a written record prior to the collection of the penalty;
  • Include notification to an involved resident or resident representative, as well as the State’s long term care ombudsman, to provide opportunity for written comment;
  • ‘Be approved by CMS and conducted by the State or an entity approved by the State and CMS, or by CMS or its agent in the case of surveys conducted only by Federal surveyors where the State IIDR process is not used, and which has no conflict of interest, such as:
    • A component of an umbrella State Agency provided the component is organizationally separate from the SA, or
    • An independent entity with a specific understanding of Medicare and Medicaid program requirements selected by the State and approved by CMS, and,
    • Not include survey findings that have already been the subject of an IDR for the particular deficiency citations at issue in the IIDR, unless the IDR was completed prior to the imposition of the CMP.

• The IIDR, as established by the SA and approved by CMS must be in writing and available for review upon request. If an IIDR entity provides services in multiple States and/or CMS Regions, each State and its CMS Regional Office (RO) must approve the process and procedures.
   
• Each SA must submit its written process and procedures, including subsequent changes, to the  CMS RO for review and prior approval.

• Beginning January 1, 2012, CMS may collect and place imposed CMPs in an escrow account on whichever of the following occurs first:
  • The date the IIDR process is completed, or
  • 90 calendar days after the date of the notice of imposition of the CMP.

• The IIDR is conducted upon the facility’s request, i.e., within 10 calendar days of receipt of the offer.

• To phase in the CMP collection and escrow provisions, CMS initially intends to collect and escrow ‘…only those penalties imposed as a result of the most serious deficiencies.” Beginning January 1, 2012, and until further notice, only CMPs imposed for a deficiency or deficiencies cited for actual harm or immediate jeopardy (i.e., level of G or above) will be subject to the CMP collection and escrow provisions and IIDR.
  • For deficiencies less than G (i.e., D, E, and F), CMPs imposed will continue to be collected under the current IDR process without a requirement for IIDR.

• A facility may request IIDR for each survey that cites deficiencies at G or above for which a CMP has been imposed and will be collected and placed in escrow. However, the facility cannot raise questions or issues regarding a previous survey.
   
• The IIDR process does not delay the imposition of any remedies, including a CMP.
   
• A facility may dispute the factual basis of the cited deficiencies for which it requested IIDR, but may not challenge other aspects, such as:
  • Scope or severity, with the exception substandard quality of care or immediate jeopardy;
  • Remedy(ies) imposed;
  • Alleged failure of the survey team to comply with a requirement of the survey process;
  • Alleged inconsistency of the survey team in citing deficiencies among other facilities;
  • Alleged inadequacy or inaccuracy of the IDR or IIDR process.

• While States have discretion to limit participation by attorneys or other parties, notice to facilities should indicate that IIDR constitutes an informal administrative process that in no way is to be construed as a formal evidentiary hearing.
   
• The IIDR process provides recommendations to the State and CMS and are not subject to appeal.
   
• The documents and written report created by the IIDR entity, the State and CMS, other than the final decision, are pre-decisional and deliberative, and are therefore protected from disclosure under the deliberative process privilege.

• At a minimum, IIDR must provide the following:
   
• Opportunity for IIDR within 30 calendar days of CMS’s notice of imposition of a CMP that will be collected and placed in an escrow account. The CMS RO will communicate the offer in its initial Notice of Imposition of a Penalty letter to a facility.
  • The notice will provide SA contact information, including the person, agency, or office the facility must contact to request IIDR.
  • The Notice of Imposition of a Penalty letter must be sent to the facility by certified mail return receipt requested and may also be sent by e-mail and/or fax. The Statement of Deficiencies (Form CMS-2567) may be included. A copy will also be sent to the SA.

• Upon a facility’s timely request, the SA or IIDR entity will provide the following information:
  • Information on the IIDR process including where, when and how the process may be accomplished, e.g., by telephone, in writing, or a face-to-face meeting, and
  • Contact information, including the name, address, phone number and e-mail of the person(s) who will conduct the IIDR, if known.

• As with the current IDR process, the Independent IDR process will be available to a facility at no charge.
  • Collected CMP funds may not be used to cover State expenses for IDR or IIDR. A portion of collected CMP funds may be used for activities that protect or improve quality of care for residents.

• The facility must request IIDR, in writing, within 10 calendar days of receipt of the offer. Requests must include copies of any documents or other information, redacted to protect resident confidentiality, on which it relies in disputing the survey findings.  

• IIDR must be completed within 60 days of the facility’s request. However, failure to comply with the IIDR process does not invalidate any deficiencies or remedies imposed.

• The IIDR process is completed no later than 60 calendar days from receipt of the request. IIDR is considered completed if a facility does not timely request or chooses not to do so, or when a final decision has been made, a written record generated, AND the SA has sent the facility written notice of the final decision.

• Once a facility requests IIDR, the SA must notify the involved resident or resident representative, and long term care ombudsman of their opportunity to submit written comment.
   
• At a minimum, the notification must include:
• A brief description of the noncompliance and reference to the survey date;
• Information on when, where, and how comments must be submitted;
• A designated contact person to answer questions/concerns;
• Contact information for the State’s long term care Ombudsman.
 
• The IIDR entity must generate a written record no later than 10 calendar days of completing its review.
   
• The written record shall include:
  • A list of each disputed deficiency or survey finding;
  • A summary of the IIDR recommendation for each deficiency or finding and the rationale;
  • Documents submitted by the facility;
  • Any comments submitted.
   
• Upon receipt of the IIDR written record, the SA will review the recommendation(s) and:
  • If the SA agrees and no changes will be made to the disputed survey findings, the SA will send written notification of the final decision to the facility within 10 calendar days from receipt of the written record.
  • If the SA disagrees with one or more of the recommendations, the complete written record will be sent to the CMS RO for review and final decision.
  • No later than 10 calendar days, the CMS RO will provide written notification to the SA of the final decision. The SA will send written notification of the final decision to the facility within 10 calendar days from receipt of the final decision.
   
• If the SA agrees with the recommendation(s) or has received a final decision from the CMS RO and changes will need to be made, the SA will provide written notification of the results and final decision to the facility within 10 calendar days from receipt of the written record and will:
  • Change deficiency(ies) citation content findings, as recommended.
  • Adjust the scope and severity assessment for deficiencies, if warranted by CMS policy;
  • Annotate deficiency(ies) citations as “deleted as recommended.”
  • A SA manager or supervisor will sign and date the revised CMS Form-2567.
  • The SA will promptly recommend to CMS that any enforcement action(s) imposed solely because of deleted or altered deficiency citations be reviewed, changed or rescinded.
   
• Any Form CMS-2567 and/or plan of correction that is revised as a result of IIDR must be disclosed to the State long term care ombudsman.
   
• Deficiencies pending IDR or IIDR will not be used to calculate the 5-Star score, posted to Nursing Home Compare, or available for public reporting until the IDR and/or IIDR is fully processed and successfully uploaded to the national repository.

• To be approved as an IIDR entity:
  • The entity must have an understanding of Medicare and Medicaid program requirements including, but not limited to:

a) 42 CFR Part 483, Subpart B, and Part 488, Subparts A, E and F;

b) The State Operations Manual (SOM), including;

1) Chapter 7, Definitions and §§ 7212, 7213 and 7900;

2) Appendix P, Appendix PP, Appendix Q;

• Applicable standards of practice, health care management, and/or life safety code knowledge and experience, relevant to the disputed issues.
• The IDDR entity –
  • Has no financial or other conflict of interest;
  • May be a component of an umbrella State agency provided the component is organizationally separate from the SA;
  • May be an independent entity with an understanding of specific Medicare and Medicaid program requirements selected by the State and approved by CMS.

• The CMS RO will review and approve all written policies and procedures of the State’s IIDR process.
   
• The SA and IIDR entity must enter into a written contract or Memorandum of Understanding (MOU) ensuring compliance with all qualifications and responsibilities set forth and all applicable Federal laws and regulations concerning protected health information and the survey process or the IIDR.
   
• An IIDR entity must not disclose to the public any information related to the facility, including the results of the IIDR review.