What is Independent Informal
Dispute Resolution?
(besides the new acronym “IIDR”)
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Linda J. Cohen
lcohen@dinse.com
Tremendous Opportunity
• Constructive, clear and ongoing communication
about the survey process
– Written record and decisions will provide better
understanding for facilities and survey team
• Facilitate resolution of differences
• Promote mutual understanding
– Enhance understanding of survey decisions
– Minimize conflict
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Federal requirement from PPACA
• Applies to all standard and complaint surveys after
1/1/12 that:
– Initiate an enforcement action for which civil monetary
penalties are imposed and subject to being put in
escrow (G and up)
• Revisit surveys are exempted
• State survey agency must offer an independent
informal dispute resolution process
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Federal Parameters
• Offer - CMS must offer IIDR to facilities with
deficiencies of D and up
• Timing - complete within 60 days from facility
accepting offer
• Opportunity to comment to involved resident, his/her
representative and VT Long Term Care Ombudsman
• Written record must be generated
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Scope of Dispute Process
• Limited to specific survey for which IIDR is offered in
CMS letter
• No questions or issues about previous surveys
• May dispute
• Factual Basis for Cited Deficiencies
• Scope and Severity ONLY IF Immediate Jeopardy
or Substandard Level of Care
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Scope of Dispute Process
• May NOT dispute:
– Scope and Severity outside of substandard or IJ
– Remedies imposed
– Survey team straying from required survey process
– Survey team is inconsistent in citing among other
facilities
– Inadequacy of IIDR or IDR process
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Filing for IIDR Does Not Delay Other
Enforcement
• Must still complete Plan of Correction
– Re-survey after POC
• CMS still moves forward on fining
– May hold in escrow
– What impact on foregoing the appeal which reduces
CMP automatically
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The Panel
• Vermont has a volunteer panel
– Jointly appointed by DLP and VHCA, from your
colleagues
• Medical director
• Administrator
• Director of Nursing
– Free of conflict of interest
– Free of financial interest
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The Panel
• Preference to seat three members, one from each
category
– If not possible, can go forward with as few as one
panel member
• Thank your colleagues for service on the Panel, this
is a very valuable service for your facilities
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The Panel
• Ex parte communications are prohibited– that is
speaking about an IIDR proceeding or its substance
with only one side
– Please don’t try to approach panel members
• Bound to keep confidences
– Proceedings are confidential, panel won’t be
discussing them, decisions or deliberations
• Needs you to inform them, bring them as much
information as you can
– Organization counts
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The IIDR
• Informal Administrative Process
– Appealing Facility Decides
• In person
• Telephone
• Written Materials Review
– Submit written materials (number pages)
• With request or within set time after
– Goal is to allow panel to know substance of the challenge
ahead of time, allows for more thoughtful questions and
consideration
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The IIDR
• Written materials
– Surveyor Guidance
– Special Alerts from CMS
– Facility policies and procedures
– Medical records – REDACT
– Staff statements
– Other materials
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The IIDR
• Informal Administrative Proceeding (in person)
– Facility will be given an opportunity to briefly state its
disagreements with survey tags D or higher and the
reasons for those disagreements
• Point out highlights of your argument
• Refer to particular deficiencies and authorities
– E.g. - See page 27 of Appendix PP
• Allow employees to speak, or provide statements
– Resident, representative or Long Term Care
Ombudsman is given an opportunity to speak
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The IIDR
• Informal Administrative Proceeding (in person)
– All comments directed to Panel, no questioning or
speaking to each other
– Panel may ask questions, seek clarification
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IIDR Participants for Facility
• Involved, quoted staff
• Supervisory staff
• May be represented by counsel, but no witness
examinations, rules of evidence, formal proceeding
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The IIDR - Phone
• All Join on Conference Call Line
– Facility given opportunity to speak, as for in-person
• Refer specifically to important authority
– All participants but Panel will be dropped from call,
Panel will discuss
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All IIDR
• Panel will prepare a written recommendation to DLP
with summary of findings for each tag
– DLP can accept and modify the survey, will tell CMS
– If DLP does not accept, and tag is G or above, Panel’s
written recommendation goes to CMS, along with
surveyor notes
• If CMS accepts, modify survey
• If CMS does not accept, relief available is through survey
appeal
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Unresolved Questions
• Extent of surveyor participation in IIDR
• Availability of surveyor notes for facility
– CMS may release on Freedom on Information Act
Request – timely response concerns
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Timeline
• Survey – complaint or regular survey
• Citations Issued on 2567 Form
– D or above eligible for IIDR
• State will send IIDR letter with Statement of Deficiencies
– Facility prepares and submits Plan of Correction
• State sends citations to CMS
– CMS can offer IIDR in its Notice of Imposition of
Penalty Letter to Facility
• Offer to Engage in IIDR
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Timeline
This letter now gets more confusing
– Expect to see a section offering IIDR
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Example
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Example
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Timeline
• If you get both State letter and CMS offer of IIDR,
measure from the one you received earlier and get
your request and written materials in within 10 days
of that
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Timeline
• Facility has TEN DAYS from receipt of Notice of
Imposition of Penalty Letter to ask for IIDR
– Request should include copies of any documents or
information to support dispute as to survey
– Request is sent, per instructions in letter, but we think
to DLP and CMS
• Specify
– In person
– Phone
– Written
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Timeline
• Hearing must take place within 30 CALENDAR days
of Notice of Imposition of Penalty letter
• Whole process must be completed within 60
CALENDAR days of facility’s request
– Hearing
– Decision to DLP –within 10 days of hearing
– DLP decides
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Timeline
• If DLP agrees, with one or more recommendations,
will notify
– Facility
– IIDR Panel
– CMS
– Ombudsman
– Resident/Representative
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Timeline
• If DLP does not agree with recommendation (10 days
to look at it) AND disputed tag is G or higher
– Send complete written record to CMS Region I office
for review and final decision
– CMS responds back to DLP
– DLP sends CMS decision to facility within 10 days
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Timeline
• If DLP does not agree with IIDR recommendation
AND tag is F or lower
– DLP reviews with surveyor notes and makes final
decision
– Provides to facility, IIDR Panel, resident/representative
and ombudsman within 10 days
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Timeline
• Taking more than 60 days does not invalidate survey
deficiencies
• IIDR considered completed if
– No request
– Facility chooses not to participate
– Final decision made with written record and written
notice to participants
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Decision
• Written Record
– List of each deficiency challenged/disputed
• Select carefully
– Summary of Panel recommendation for each tag
• Rationale and result
– Documents submitted by facility to dispute deficiency
or it scope and severity ranking
– Comments from resident, representative or Long-Term
Care Ombudsman
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How to Prepare for IIDR
• Start with your Statement of Deficiencies
– Do you have tags of D or above?
• If not, no IIDR, proceed with Plan of Correction and CMS
Directives
– Penalty payments
– Do you disagree with tags of D or above?
• Start planning how to support a challenge, why do you
disagree?
• Continue with Plan of Correction and CMS Directives
– Penalty Payments – release appeal for lessened fine
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How to Prepare for IIDR
• Statement of Deficiencies
– Do you have G or above tags cited?
• Do you agree with the scope and severity ranking –
evaluate this in addition to the substance of the tag?
– Check the Surveyor Guidance regarding tags cited
• Appendix PP –
http://cms.hhs.gov/manuals/Downloads/som107ap_pp_gu
idelines_ltcf.pdf
– Do citations meet this guidance?
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How to Prepare for IIDR
• Step into the surveyor’s shoes
– Identify Deficiency
• Assess effect on resident outcomes, number of residents
potentially or actually affected
– Use these results to determine if there is substantial
compliance
• Assess Severity Level 1-4
• Assess Scope – isolated through widespread
• Make sure evidence is credible
• Classify to the highest scope and severity levels
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How to Prepare for IIDR
• Statement of Deficiencies
– Are there any special papers on your subject
• Surveyor Guidance outside of Appendix PP
• FDA or HHS guidance
– E.g. bedrails
• Professional Association Papers
• Model Policies and Procedures
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How to Prepare for IIDR
• If Immediate Jeopardy Citation – does it meet
guidelines in Appendix Q?
– http://cms.hhs.gov/manuals/Downloads/som107ap_q_i
mmedjeopardy.pdf
• Three Components for IJ
– Harm actual or potential
• Actual – noncompliance caused serious injury, harm,
impairment or death
• Potential – noncompliance likely to cause serious injury,
harm, impairment or death
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How to Prepare for IIDR
• Components of Immediate Jeopardy
– Immediacy – harm or potential harm is likely to occur
in the very near future if no immediate action
– Culpability – did the facility know; should it have
known; was there a thorough investigation, corrective
measures; re-evaluation
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Example
• Discuss Scope and Severity – Allowed because substandard
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Scope and Severity
• Pyschosocial Outcome Severity Guide
– Publication 100-07, State Operations, Provider
Certification
• To determine scope and severity, surveyors will use the
standard of a reasonable person in the affected resident’s
situation when:
– Unable to evaluate the resident’s actual response due to
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Poor documentation
Cognitive impairment
Injury or death
Physical Impairment
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Psychosocial Scope and Severity
• Use reasonable person standard
– When resident’s reaction is markedly incongruent with
reasonable person
• Negative psychosocial outcome must be a result of
noncompliance
– Connection to be established by observation, record
review and/or interviews
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Questions?
Linda J. Cohen
Dinse, Knapp & McAndrew
209 Battery Street
P.0. Box 988
Burlington, Vermont 05402-0988
Phone: (802) 864-5751
Direct: (802) 859-7011
Email: lcohen@dinse.com
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