| (a) The Texas Health and Human Services Commission
(HHSC) provides an informal dispute resolution (IDR) process for nursing
facilities and intermediate care facilities for individuals with an
intellectual disability or related conditions (ICF/IID) (hereinafter
referred to collectively as "facility") through which a facility may
dispute deficiencies/violations cited against that facility by the
State survey agency, or its designee.
(b) The HHSC IDR Department must receive a facility's
written request for an IDR no later than the tenth calendar day after
the facility's receipt of the official statement of deficiencies/violations
from the State survey agency, or its designee. 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.
(c) Within three business days of its receipt of the
facility's written request for an IDR, HHSC will notify the facility
and the State survey agency's regional office under which the facility
operates of its receipt of the request.
(d) Within five calendar days of HHSC's receipt of
the facility's request for an IDR, HHSC must receive from the facility
the facility's rebuttal letter and attached supporting documentation.
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 and supporting documentation
will be reviewed);
(2) the reason or reasons each deficiency/violation
is disputed; and
(3) the outcome desired by the facility for each disputed
deficiency/violation.
(e) The facility submits its supporting documentation
or information in the following format.
(1) Organize the attachments by deficiency/violation
and cross-reference to the disputed deficiency/violation in the rebuttal
letter.
(2) Ensure all information is labeled and legible.
(3) Highlight information relevant to the disputed
deficiency/violation, such as a particular portion of a narrative.
(4) Describe the relevance of the documentation or
information to the disputed deficiency/violation.
(5) Do not de-identify documents that name residents
referenced in disputed deficiencies/violations.
(f) If the facility substantially complies with the
procedures set out in subsections (d) and (e) of this section, HHSC
will proceed with its review of the facility's IDR request.
(g) It is the facility's responsibility to present
sufficient credible information to HHSC to support the outcome requested
by the facility.
(h) Possible outcomes of an IDR for nursing facilities
and ICF/IID are:
(1) a determination that there is insufficient evidence
to sustain a deficiency/violation;
(2) a determination that there is insufficient evidence
to sustain a portion of or a finding of a deficiency/violation;
(3) a determination that there is sufficient evidence
to sustain a deficiency/violation;
(4) a determination that there is insufficient evidence
to sustain the deficiency/violation as cited but that there is sufficient
evidence to sustain a different citation;
(5) a determination that there is insufficient evidence
to sustain the severity and scope assessment but that there is sufficient
evidence to sustain a reduced severity and scope assessment (for Immediate
Jeopardy or Substandard Quality of Care only); or
(6) a determination that there is sufficient evidence
to sustain the severity and scope 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 the following supporting documentation:
(1) resident identifier list;
(2) report of contact; and
(3) Automated Survey Processing Environment (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 opposing 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 opposing 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 and have until the end of
the second business day after notification to respond to the request.
The opposing party will be provided with copies of the response submitted
to HHSC.
(m) All responses to shared information as described
in subsections (j) and (k) of this section must be received no later
than the tenth calendar day after the facility's rebuttal letter and
supporting documentation are submitted.
(n) Ex parte communications by the facility or by the
State survey agency with HHSC personnel conducting the IDR are prohibited.
(o) An eligible facility may participate in an IDR
conference provided that the facility requested an IDR conference
on the IDR request form.
(p) Any IDR conference will be scheduled by HHSC, or
its designee 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.
(q) The IDR conference is an informal opportunity for
an eligible facility to present important information previously submitted
in the facility's rebuttal letter or responses to shared information.
The facility and the State survey agency may attend any IDR conference,
but neither party may present information that was not previously
included in the Statement of Deficiencies/Licensing Violations, submitted
in the provider's rebuttal letter, or responses to shared information
as set forth in subsections (j), (k), and (l) of this section. While
the facility may ask clarifying questions related to the information
in the Statement of Deficiencies/Licensing Violations, the questions
are strictly limited to the review in question.
(r) HHSC will complete the IDR no later than the 30th
calendar day after its receipt of the facility's written request.
The IDR recommendation shall be in writing, address all the issues
raised by the facility, and explain the rationale for the recommendation.
(s) The time frames designated in the IDR process shall
be computed in accordance with Texas Government Code §311.014.
(t) 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.
(u) The State survey agency may revise an IDR recommendation
as a result of a review and subsequent determination that the IDR
recommendation may violate a federal law, regulation, or the CMS State
Operations Manual.
(v) HHSC may contract with an appropriate disinterested
organization to adjudicate disputes between a facility and the State
survey agency. Texas Government Code §2009.053 does not apply
to the selection of an appropriate disinterested organization. For
purposes of this section, a reference to HHSC with respect to HHSC's
role in the IDR process includes an organization with which HHSC has
contracted for the purpose of performing IDR, and a contracted organization
is bound by the same requirements to which HHSC is bound for the purposes
of conducting an IDR. The results of an IDR conducted by a contracted
organization serve only as a recommendation to the State survey Agency.
The State survey Agency maintains responsibility for and makes final
IDR decisions.
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| Source Note: The provisions of this §393.1 adopted to be effective February 17, 2004, 29 TexReg 1345; amended to be effective January 1, 2015, 39 TexReg 10395; amended to be effective February 15, 2021, 46 TexReg 1031 |
