| (a) The Texas Health and Human Services Commission
(HHSC) provides an informal dispute resolution (IDR) process for Texas
Home Living (TxHmL) and Home and Community-based Service (HCS) providers
(hereinafter referred to collectively as "provider") through which
a provider may dispute violations cited against that provider by the
State survey agency.
(b) The HHSC IDR Department must receive a provider's
written request for an IDR no later than the tenth calendar day after
the provider's receipt of the official Statement of Licensing Violations
from the State survey agency or its designee. The provider must submit
its written request for an IDR on the form designated for that purpose
by HHSC. HHSC makes that form publicly available, e.g., maintained
on the HHSC website.
(c) Within three business days of its receipt of the
provider's written request for an IDR, HHSC notifies the provider
and the State survey agency of its receipt of the request.
(d) Within five calendar days of HHSC's receipt of
the provider's request for an IDR, HHSC must receive from the provider
the provider's rebuttal letter and attached supporting documentation.
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
and supporting documentation are reviewed);
(2) the reason or reasons each violation is disputed;
and
(3) the outcome desired by the provider for each disputed
violation.
(e) The provider 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 or
information to the disputed violation; and
(5) do not de-identify documents that name individuals
referenced in disputed violations.
(f) If the provider substantially complies with the
procedures set out in subsections (d) and (e) of this section, HHSC
proceeds with its review of the provider's IDR request.
(g) It is the provider's responsibility to present
sufficient credible information to HHSC to support the outcome requested
by the provider.
(h) Possible outcomes of an IDR for TxHmL and HCS 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 of or a finding of a violation;
(3) a determination that there is sufficient evidence
to sustain a violation;
(4) a determination that there is insufficient evidence
to sustain the violation as cited but that there is sufficient evidence
to sustain a different violation;
(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
Threat 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 citations.
(j) Upon receipt of the provider's IDR request, the
State survey agency must submit the following to HHSC:
(1) resident identifier list; and
(2) Automated Survey Processing Environment (ASPEN)
event ID number.
(k) HHSC makes all information related to an IDR request
that it receives from either the provider or the State survey agency
available 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 shares any such responses
with the opposing party.
(l) HHSC may request additional information from the
provider or the State survey agency. HHSC notifies both parties of
the request for additional information and that they have until the
end of the second business day after notification to respond to the
request. HHSC provides opposing parties with copies of any such response
submitted to HHSC.
(m) All responses to shared information as described
in subsections (j) and (l) of this section must be received no later
than the tenth calendar day after the provider's rebuttal letter and
supporting documentation are submitted.
(n) Ex parte communications by the provider or by the
State survey agency with HHSC personnel conducting the IDR are prohibited.
(o) A provider may participate in an IDR conference
provided that the provider requested an IDR conference on the IDR
request form.
(p) HHSC, or its designee, schedules the IDR conference
on or before the 22nd calendar day after HHSC received the IDR request.
If the provider is unable to participate on the scheduled date, the
IDR conference is cancelled, and the IDR continues as though no conference
had been requested.
(q) The IDR conference is an opportunity for an eligible
provider to present important information previously submitted in
the provider's rebuttal letter or responses to shared information.
The provider 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 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.
(r) HHSC completes the IDR no later than the 30th calendar
day after its receipt of the provider's written request. The IDR recommendation
shall be in writing, address all the issues raised by the provider,
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 State of
Texas rule.
(v) HHSC may contract with an appropriate disinterested
organization to adjudicate disputes between a provider 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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