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TITLE 1ADMINISTRATION
PART 15TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 393INFORMAL DISPUTE RESOLUTION AND INFORMAL RECONSIDERATION
RULE §393.1Informal Dispute Resolution

(a) The Texas Health and Human Services Commission (HHSC) provides an informal dispute resolution (IDR) process for nursing facilities, intermediate care facilities for persons with mental retardation (ICFs/MR), and assisted living facilities through which a facility may dispute deficiencies/violations cited against that facility by the State survey agency or its designee. ICFs/MR are entitled to an IDR only if the cited deficiencies/violations do not pose an imminent threat of danger to the health and safety of an ICF/MR resident.

(b) HHSC must receive a facility's written request for an IDR no later than the 10th calendar day after the facility's receipt of the statement of deficiencies/violations from the State survey agency or its designee. If the 10th calendar day falls on a Saturday, Sunday, or legal holiday, the due date becomes the following business day.

  (1) The facility must submit its written request for an IDR on the form designated for that purpose by HHSC. HHSC will make that form publicly available, e.g., maintained on the HHSC website.

  (2) The facility must also file with its IDR request the registration information, as required by §531.058, Texas Government Code.

(c) The facility must concurrently provide a copy of its request for an IDR to the State survey agency's regional office (Regional Office) under which the facility operates. The facility must provide confirmation to HHSC that the Regional Office has been notified of the IDR request. HHSC will not consider an IDR request to have been received until the facility provides a fully executed IDR request form as well as confirmation that the facility provided a copy of that IDR request form to the relevant Regional Office.

(d) Within 3 business days of its receipt of the facility's written request for an IDR, HHSC will notify the facility of its receipt of the request.

(e) Within 5 calendar days of HHSC's receipt of the facility's request for an IDR, HHSC must receive from the facility 2 copies of the facility's rebuttal letter and attached supporting documentation. If the 5th calendar day falls on a Saturday, Sunday, or legal holiday, the due date becomes the following business day. The rebuttal letter must contain:

  (1) a list of the deficiencies/violations disputed (only those deficiencies/violations listed on the IDR request form and addressed in the rebuttal letter/supporting documentation will be reviewed);

  (2) the reason(s) each deficiency/violation is disputed;

  (3) the outcome desired by the facility for each disputed deficiency/violation; and

  (4) documentation or information, e.g., a witness statement, that directly demonstrates that each disputed deficiency/violation is not sustainable. Such documentation should:

    (A) be labeled and legible;

    (B) be non-duplicative;

    (C) include highlights of specific entries to be reviewed for each disputed deficiency/violation; and

    (D) describe the relevance of the documentation/information to the disputed deficiency/violation.

(f) The facility should submit its rebuttal letter, including any supporting documentation or information, in the following format:

  (1) Begin each attachment on a new page with a labeled tab or other descriptive identification.

  (2) Tab, label, or otherwise identify each with consecutive numbers or letters on the right-hand side or lower edge of the document.

  (3) Reference each tab in the rebuttal letter. An attachment must be identified in the rebuttal letter, tabbed, and labeled or otherwise identified, or HHSC will not review the attachment.

  (4) Organize the attachments by deficiency/violation and cross-reference to the disputed deficiency/violation in the rebuttal letter.

  (5) Identify which attachment(s) relate to a disputed deficiency/violation, in the event that the facility disputes more than one deficiency/violation.

  (6) Indicate, if known, whether or not any of the attachments were provided to State survey agency personnel at the time of the survey and identify the attachments that were provided, if any.

  (7) Number all pages consecutively.

  (8) Highlight information relevant to the disputed deficiency/violation, such as a particular portion of a narrative.

  (9) Address each disputed deficiency/violation in the rebuttal letter in the same order as it is addressed in the statement of deficiencies/violations from the State survey agency. Deficiencies/violations identified on the IDR request form but not addressed in the rebuttal letter or supporting documentation will not be reviewed.

  (10) Identify the facility name and survey exit date on all documents.

  (11) Set out the typewritten full name and title of any person signing an affidavit, written statement, or other document. Indicate the date on which the document was created.

  (12) Identify the resident referenced in the disputed deficiency/violation and include the resident's name on all relevant attachments.

  (13) Do not de-identify documents that name residents referenced in disputed deficiencies/violations.

  (14) Submit supporting documentation or information by regular mail, hand delivery, or overnight delivery only. HHSC will not review supporting documentation submitted by facsimile transmission.

(g) If the facility substantially complies with the procedures set out in subsections (e) and (f) of this section, HHSC will proceed with its review of the facility's IDR request.

(h) It is the facility's responsibility to present sufficient credible information to HHSC to support the outcome requested by the facility. Possible outcomes of an IDR are:

  (1) a determination that there is insufficient evidence to sustain a deficiency/violation; and/or

  (2) a determination that there is insufficient evidence to sustain a portion or a finding of a deficiency/violation; and/or

  (3) a determination that there is sufficient evidence to sustain a deficiency/violation; and/or

  (4) a determination is made that there is insufficient evidence to sustain the deficiency/violation as cited but that there is sufficient evidence to sustain a different citation; and/or

  (5) for Nursing Facilities Only: a determination is made that there is insufficient evidence to sustain the scope and severity assessment but that there is sufficient evidence to sustain a reduced scope and severity assessment (for Immediate Jeopardy or Substandard Quality of Care only); and/or

  (6) for Nursing Facilities Only: a determination is made that there is sufficient evidence to sustain the scope and severity assessment as cited.

(i) HHSC will not conduct an IDR based on alleged surveyor misconduct, alleged state survey agency failure to comply with survey protocol, complaints about existing federal or state standards, or attempts to clear previously corrected deficiencies/violations.

(j) Upon receipt of the facility's IDR request, the State survey agency must submit to HHSC by means allowing confirmation of HHSC's receipt, e.g., overnight delivery or electronic mail, the following supporting documentation as specified in the IDR operating procedures:

  (1) resident identifier list;

  (2) report of contact; and

  (3) ASPEN event ID number.

(k) Any information related to an IDR request that is received by HHSC from either the facility or the State survey agency will be made available by HHSC to the other party. Parties have until the end of the second business day after receipt of such shared IDR information to respond to HHSC about that information. HHSC will share any responses with the other party.

(l) HHSC may request additional information from the facility and/or the State survey agency. Both parties will be notified of the request for additional information, have until the end of the second business day after notification to respond to the request, and be provided copies of the response submitted to HHSC.

(m) Ex parte communications by the facility or by the State survey agency with HHSC personnel conducting the IDR are prohibited.

(n) An eligible facility may receive a telephone or face-to-face IDR conference provided that:

  (1) the facility requested an IDR conference on the IDR request form; and

  (2) the State survey agency's survey visit resulted in deficiencies/violations for which remedies are to be imposed or adverse action has been recommended; or

  (3) the State survey agency's survey visit resulted in deficiencies/violations in which immediate jeopardy or immediate threat was identified.

(o) Any telephone or face-to-face IDR conference will be scheduled on or before the 22nd calendar day after HHSC received the IDR request. If the facility is unable to participate on the scheduled date, the IDR conference will be cancelled, and the IDR will continue as though no conference had been requested.

(p) The IDR conference is an opportunity for an eligible facility to emphasize important information previously submitted in the facility's rebuttal letter and/or response(s) to shared information. The facility may not present any new information at an IDR conference. The State survey agency may attend, but may not present information.

(q) HHSC will complete the IDR no later than the 30th calendar day after receipt of the facility's written request. If the 30th calendar day falls on a Saturday, Sunday or legal holiday, the due date becomes the following business day. The IDR decision shall be in writing, address all the issues raised by the facility, and explain the rationale for the decision.

(r) The time frames designated in the IDR process shall be computed in accordance with §311.014, Texas Government Code.

(s) HHSC may issue and enforce operating procedures concerning the IDR process and the conduct of IDR participants. IDR participants must comply with any such procedures. HHSC may deny an IDR request if the information submitted is incorrect, incomplete, or otherwise not in compliance with applicable HHSC operating procedures.

(t) HHSC will revise an IDR decision as a result of a review, requested by the State survey agency, and subsequent determination that the IDR decision may violate a federal law, regulation, or the CMS State Operations Manual.


Source Note: The provisions of this §393.1 adopted to be effective February 17, 2004, 29 TexReg 1345

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