Garlo Ward, P.C. has a very important goal: to offer only effective and efficient legal services. The first section of our mission statement illustrates this goal perfectly.
To provide high-quality, individualized, value-added legal services in a cost-effective manner with integrity, honesty and loyalty.
In carrying out this mission, we are constantly searching for the most effective methods of legal defense, risk management and settlement negotiations. Over the past year, our firm has successfully utilized one of these methods: the Informal Dispute Resolution request, or IDR. Basically, the IDR request is the facility’s response to TDHS allegations in a survey. It is written in persuasive form, addresses each tag specifically and includes exhibits.
In the past, facilities seldom attempted an IDR because TDHS seldom responded favorably. However, Garlo Ward submitted 18 IDRs this year. Out of those 18 IDR requests, 19 tags were deleted or significantly altered. Out of all IDRs, 15 had some elements of success including deletions of tags, examples and language, protection of facility’s history (abuse cases in particular), and tremendous savings in the long-term span of a case.
To give you a better idea of the benefits of an IDR, consider the following possible results:
- An entire tag is deleted. Garlo Ward has successfully deleted 5 tags.
A recent IDR request drafted by associate attorney, Nicole Matt, resulted in the complete deletion of Ftag 223. This specific allegation charged the facility with verbal and mental abuse. It has been erased entirely from the survey and from the facility’s history. Any penalties driven by this tag will be rescinded.
Other tags which have been deleted based on an IDR include: F250, F309, F329 and F495.
In addition, if a deficiency has been written and a facility is cited again for the same tag within the period of one year, the amount of administrative penalties can increase up to three (3) times the initial recommendation, even if that amount is outside of the recommended range for that level of deficiency. Removing tags through the IDR process can reduce future remedies.
- An example is deleted. Garlo Ward has successfully deleted 9 examples.
Jerri Lynn Ward, managing partner, drafted an IDR request regarding an example of Ftag 324, Quality of Care, addressing the death of a resident. The resident’s death was an accident and the IDR argued it as such. When TDHS deleted this example, all Civil Monetary Penalties imposed were rescinded, and total penalties equaled $0. The matter was closed with a total expenditure of only $3,000.
- Harmful language is deleted. Garlo Ward has successfully deleted approximately 23 instances of language.
One of the most important reasons to request an IDR is to strike harmful language from the 2567. TDHS has deleted specific alleged statements as well as details and numbers. Most recently, associate attorney, Claire Langford, authored an IDR which resulted in the deletion of the following language.
The facility’s failure to report an allegation of sexual abuse to the police and thoroughly investigate it, created an environment in which abuse could flourish.
Clearly, a statement such as this is a highly negative summary of an alleged violation regarding sexual abuse and a failure to investigate. By deleting the sentence, as well as additional language, the entire tag loses meaning, evidence and, quite possibly, the justification for penalties. The deletion runs just short of deleting the entire tag. Further, such a statement could be extremely detrimental in a nursing home liability case. The risk was eliminated with this deletion.
- Protection of the facility’s history.
Any facility cited with an Immediate Jeopardy should submit an IDR. Other than monetary penalties, the most important factor to consider is the facility’s history. In submitting the IDR, the facility has its defense on the record, right at the beginning. In essence, the facility is able to enter the plea of not guilty immediately with the evidence to support the facility’s plea.
- Reduce scope and severity.
Removing tags or reducing their scope and severity through the IDR process can result in the removal of a poor performing facility (PPF) designation. If a deficiency is in the area of Quality of Life, Quality of Care or Resident Behavior, and is written at substandard quality of care (SQC C level F, H or above) the facility will be considered a PPF. When a facility has been designated as a PPF, remedies begin immediately without a right to correct. An IDR can protect the facility’s history if the tag can be reduced to a lesser scope and/or severity. Even if actual harm existed to a single resident, eliminating other residents from that tag can reduce the scope and severity of the tag, thus removing the substandard quality of care status. This tag, at a reduced scope and severity, cannot support the imposition of CMPs immediately without the right to correct within a certain period of time (date certain).
- Long-term Cost Effectiveness. Garlo Ward has utilized the IDR for settlement negotiations and/or hearing proceedings with a minimum of 6 cases.
Many cases are not resolved immediately. It is common for cases to go through settlement negotiations, mediation and hearings. If an IDR is submitted, a substantial part of the legal work is complete.
The IDR can be transformed into a written evaluation, defense strategies or a settlement proposal in a minuscule amount of time. Essentially the introduction changes, and a settlement amount is added. When paralegals and attorneys have to evaluate the case from scratch, going back months and often years, this process is much more time consuming, and thus more expensive. In fact, we estimate the costs of preparing case evaluations without an IDR could be as much as three times more than using an IDR request from the beginning.
The IDR is written at the beginning of a case, when everything is fresh. Facility staff are aware of the incidents, and documents are much easier to find. Having to Awork backwards without an IDR is more stressful, more expensive and in some cases, less successful.
This situation has certainly proved to be true in numerous cases. At least six settlement proposals have been created almost instantaneously based on IDRs. One matter, in particular, had a total penalty amount of over $50,000. After submitting an IDR as a settlement proposal, HCFA’s first offer started at a low $22,000. Total billing is right at $11,000.
We constantly refine our approach and methods in preparing the IDR request. We are providing you with step-by-step suggestions to help save even more money exercising this option. We truly feel the best results will come when our clients feel confident and participate in the work product and strategy. Please offer your suggestions, comments and experiences. We thank you for allowing us to serve you and your facility!
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com