Developing a Request for Informal Dispute Resolution (IDR) Ari J. Markenson, J.D., M.P.H.

1. Developing a Request for Informal Dispute Resolution (IDR) Ari J. Markenson, J.D., M.P.H. Associate General Counsel Cypress Health Care Management

2. Part 1 – Informal Dispute Resolution Basics Part 2 - Practical Tips on Developing a Request Part 3 - Future Issues: Hearings and Litigation Presentation Outline

3. What is the purpose of IDR? Taking the first step in the process to challenge a deficiency citation Disputing the facts and findings that allegedly support a deficiency Potentially challenging scope and severity for SQC or IJ. Informal Dispute Resolution (“IDR”) Basics

4. Should I submit this to IDR? What’s the scope and severity of the deficiency? What are the consequences of the deficiency being sustained? Do I have an argument that is supportable and appropriate? Are the administrative and financial resources worth it? Are their future hearing or litigation consequences? Basic Preliminary Issues

5. The right to IDR is guaranteed by federal regulation. (42 CFR §488.331 See also, CMS SOM §7212) A facility must be notified in the State Agency letter enclosing the Statement of Deficiencies (“SOD” or “CMS 2567”) of its right to IDR An IDR request is due within ten (10) days of receipt of the SOD. Informal Dispute Resolution (“IDR”) Basics

6. The State Agency Letter explaining the right to IDR must explain: How IDR can be accomplished Who will conduct the IDR An IDR will not delay the imposition of remedies Source: CMS SOM §7212 Informal Dispute Resolution (“IDR”) Basics

7. Facilities get only one (1) opportunity for IDR unless: On revisit the deficiency still exists A new deficiency is found on revisit or cited at the original IDR A new example of a deficiency is found on revisit or as a result of an IDR Source: CMS SOM §7212 Informal Dispute Resolution (“IDR”) Basics

8. An IDR is unfortunately not a forum for several issues: Facility disputes with respect to the survey process or the IDR process cannot be addressed at IDR Scope and severity cannot be challenged except for deficiencies that are SQC or IJ Cannot challenge remedies that are imposed Source: CMS SOM §7212 Informal Dispute Resolution (“IDR”) Basics

9. When a facility is unsuccessful at IDR the State Agency must provide written notification of the result of the IDR. When a facility is successful at IDR: The State Agency must delete the deficiency from its system; Any enforcement action(s) imposed solely because of that deficiency citation must be rescinded; As necessary, the scope and severity must be revised to reflect the outcome of the IDR; The facility has a right to a new “Clean” SOD assuming it has filed a new POC as well; and If applicable, only remaining deficiencies should be entered into the Online Survey, Certification and Reporting System (“OSCAR”). Source: CMS SOM §7212 Informal Dispute Resolution (“IDR”) Basics

10. An effective IDR request is: Readable Persuasive Concise Based upon the facts and applicable regulations Submitted appropriately, i.e. timely and following State Agency guidelines Based upon an argument with sufficient merit Developing an IDR Request

11. Readable Use full sentences; Use paragraphs that have a beginning a middle and an end; Point the reader to appropriate exhibits; Quote exhibits where the text is not too long; and Highlight particularly important points. Developing an IDR Request

12. Persuasive Make an argument don’t simply recite different facts. Explain your position and relate it to the facts. Discount facts in the SOD that are not relevant. Explain facts in the SOD that are relevant and/or need additional detail. Refrain from being rudely adversarial. Developing an IDR Request

13. Concise Use your argument and information wisely. The longer your IDR submission, the less likely it will be reviewed appropriately. Leave out irrelevant material. Don’t attempt to explain why something happened, explain why a regulatory violation did NOT occur. Developing an IDR Request

14. Just the Facts and the Regs Mam… The facts relating to the alleged deficiency are the single most important issue. The facts must be identifiable and verified. Know what the regulation requires. Determine whether a violation was present independently of what is in the SOD. Use the interpretive guidelines to your advantage. Developing an IDR Request

15. Submit an IDR appropriately and Timely Follow the State Agency process to the letter. Submit it in ten (10) days from the SOD unless you have an extension of time. Developing an IDR Request

16. Submit an IDR that is supportable and has merit If the deficiency is valid, don’t IDR it because you have a novel argument or because you didn’t like the way it was cited. The facility can lose credibility with surveyors. One inappropriate IDR can take away from the argument relating to other deficiencies that are worth pursuing. Developing an IDR Request

17. Review and Practical Tips: Address the regulatory citation and how it pertains to the facts presented. Don’t take the facts and findings in the SOD for granted. Independently investigate Verify the facts and findings Determine the accuracy and relationship of the facts and findings to the regulatory requirements. Developing an IDR Request

18. Review and Practical Tips: Use the facts and findings verification process efficiently. Make copies of relevant documents and highlight relevant information because this material will become part of your IDR submission. Review the entire chart for supporting documentation. Simply because an issue is not documented in one part of the record does not mean it cannot be substantiated through other records. Developing an IDR Request

19. Review and Practical Tips: If the facility requests an extension of time to file the IDR and it is granted, the facility should ensure that it receives written confirmation. All correspondence with the State Agency throughout the survey process should be documented. Phone calls should be followed up with written correspondence. Developing an IDR Request

20. Departmental Appeals Board (‘DAB”)Hearing Issues IDR request will NOT toll the time period for filing a DAB hearing request Jackson Manor Health Care, Inc. v. HCFA, CR545 Preston Health Care v. CMS, CR 953 Cary Health and Rehabilitation Center v. HCFA, CR 685 Prospect Heights Care Center v. CMS, CR802 John Knox Village Care Center v. CMS, CR963 Concourse Nursing Home v. CMS, CR 927 Hearings and Litigation

21. Departmental Appeals Board (‘DAB”)Hearing Issues IDR development process can and should be used as “Dry Run” for hearing request, etc. CMS has argued that evidence not raised during the exit interview or during IDR is suspect. Price Hill Nursing Home v. HCFA, CR745 Libbie Convalescent Center v. HCFA, CR 589 Antelope Valley Convalescent Hospital v. HCFA, CR511 Hearings and Litigation

22. Future Civil Litigation SODs are increasingly being used in civil litigation. There are still questions as to their evidentiary use. States have treated them very differently. IDR may become a necessity if its clear the issue will result in litigation. Has the facility been contacted by counsel acting on behalf of the resident or family? Has the facility received a summons and complaint? Has the family or resident threatened litigation? Hearings and Litigation