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TITLE 1ADMINISTRATION
PART 15TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 393INFORMAL DISPUTE RESOLUTION AND INFORMAL RECONSIDERATION
RULE §393.2Informal Dispute Resolution for Assisted Living Facilities

(a) The Texas Health and Human Services Commission (HHSC) provides an informal dispute resolution (IDR) process for assisted living facilities (ALFs) through which an ALF may dispute violations cited against that ALF by the State survey agency or its designee.

(b) HHSC must receive the ALF's written request for an IDR no later than the 10th calendar day after the ALF's receipt of the statement of 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. The ALF 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 ALF's written request for an IDR, HHSC will notify the ALF and the State survey agency's regional office under which the ALF operates of its receipt of the request.

(d) Within 15 calendar days of HHSC's receipt of the ALF's request for an IDR, HHSC must receive from the ALF two copies of the ALF's rebuttal letter and attached supporting documentation. If the 15th 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 violations disputed (only those violations listed on the IDR request form and addressed in the rebuttal letter/supporting documentation will be reviewed);

  (2) the reason(s) each violation is disputed; and

  (3) the outcome desired by the ALF for each disputed violation.

(e) The ALF submits its supporting documentation or information in the following format:

  (1) organize the attachments by violation and cross-reference to the disputed violation in the rebuttal letter;

  (2) ensure all information is labeled and legible;

  (3) highlight information relevant to the disputed violation, such as a particular portion of a narrative;

  (4) describe the relevance of the documentation/information to the disputed violation;

  (5) do not de-identify documents that name residents referenced in disputed deficiencies/violations; and

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

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

(g) HHSC will give full consideration to all factual arguments raised during the IDR process that are:

  (1) supported by references to specific information that the ALF or State survey agency relies on to dispute or support findings in the statement of violations; and

  (2) provided by the proponent of the argument to HHSC and the opposing party.

(h) IDR staff will give full consideration to the information provided by the ALF and the State survey agency.

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

  (1) a determination that there is insufficient evidence to sustain a violation;

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

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

  (4) a determination that there is insufficient evidence to sustain the violation as cited but that there is sufficient evidence to sustain a different citation.

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

(k) Upon receipt of the ALF'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) Automated Survey Processing Environment (ASPEN) event ID number.

(l) Any information related to an IDR request that is received by HHSC from either the ALF 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.

(m) HHSC may request additional information from the ALF 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.

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

(o) An eligible ALF may receive a telephone or face-to-face IDR conference provided that the ALF requested an IDR conference on the IDR request form.

(p) Any telephone or face-to-face IDR conference will be scheduled on or before the 30th calendar day after HHSC received the IDR request. If the ALF 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 opportunity for an eligible ALF to emphasize important information previously submitted in the ALF's rebuttal letter or response(s) to shared information. The ALF and the State survey agency may attend any IDR conference but neither party may present new information.

(r) HHSC will complete the IDR no later than the 90th calendar day after receipt of the ALF's written request. If the 90th 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 ALF, and explain the rationale for the decision.

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

(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.


Source Note: The provisions of this §393.2 adopted to be effective January 1, 2015, 39 TexReg 10395

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