By Jerri Lynn Ward, J.D.
Posted November 28, 2001
As most of you know, the legislature has moved the IDR process to Health and Human Services. This is effective January 1, 2002. Health and Human Services has been holding a series of meetings for input in order to design the new system. Below is a description of the proposal presently on the table. As future work sessions are scheduled, this may change. However there are certain concepts about this proposal that should be retained in order to assure fairness to providers. The next IDR workgroup meeting will be held on December 5 at 9 a.m. in room 7230 of the Brown-Heatly Building located at 4900 N. Lamar. The concepts discussed below promote fairness in a system that has been viewed as unfair by many in long term care. It is important that you register your support for including them in the process.
Information Sharing during the Survey Process:
The surveyors would be required to follow the guidelines contained in the State Operations Manual which require information sharing during the survey. Thus, there should be a daily exit conference during which surveyor’s discuss any problems or deficiencies they see that day. This is important to allow the facility to quickly correct problems that affect residents. It is also important to allow the facility to gather information that would contradict the surveyor’s findings.
Enforcement Team with Legal Review:
Prior to the issuance of the 2567 citing deficiencies against a provider, the Enforcement Team will include an attorney in the process to perform a legal review of the alleged deficiencies.
This is to assure that allegations and citation of deficiencies are in accordance with law and regulation as opposed to subjective opinions of individual regions or surveyors.
Additional Time to Prepare Arguments:
Under the present system, both the request for IDR and the facility’s arguments and supporting documentation is due within 10 days of receipt of the 2567. This time frame causes hardship for facilities because it is the same time frame for the plan of correction.
The proposal would alleviate that hardship by allowing a provider to submit HHSC only with a written intent to request IDR. Then, the provider would have five additional days after submission of the request to provide back up information. If this process is approved, it appears that a provider should wait until the 10th day after the 2567 to submit the request. That would give the provider a total of 15 days to prepare arguments and back up information.
Transparency of the Process
One troubling aspect of the present system, is that the IDR reviewers at TDHS consult with the surveyors without the provider having any knowledge of what the surveyor’s tell them. Thus, there is no opportunity for the provider to refute the statements made by the surveyor’s to the IDR reviewers. On the other hand, because the provider is required to send a copy of the IDR request and documentation to the Region, there is every reason to believe that the surveyors are able to review the documentation and arguments of the provider and to tailor their comments to the reviewer accordingly. Besides being blatantly unfair, it arouses the suspicion that the surveyors and reviewers are in cahoots to defeat the provider’s arguments.
The proposed process would eliminate that and would cause the process to be an arms-length procedure. Under this proposal, both the provider and the region would know what the other is submitting. The surveyor’s will have to copy the provider on what they submit to the reviewer. Further, they will have to organize their documentation so as to demonstrate their position in a coherent manner, just as providers do now. Then, within 10 days of the receipt of the IDR information, HHSC will initiate a conference call to the parties regarding additional information that may be needed. Both parties will be aware of the request and must copy each other with the additional material.
HHSC Review and Additional Bite at the Apple:
Following the process outlined above, HHSC will then conduct a Desk Review of the submitted materials and then will provide the provider and DHS with a draft decision. As of now, the timing of when the draft must be completed and provided is unclear. However, within three days of receipt of the draft, the provider may request a telephone conference regarding additional information that the reviewer should have. Following the telephone conference, and by the 30th day after HHSC acknowledges receipt of the notice of intent to IDR, the final decision should be rendered by HHSC.
The role of Attorneys:
There was some discussion by government bureaucrats at one of the meetings about excluding attorneys from the process. That would be bad for providers. The argument posed for excluding attorneys is that this is supposed to be an “informal” process. It may be called “informal,” but it is as complicated and deadline driven as any legal process I’ve ever seen. Also, whenever someone with the government wants to deprive a citizen of legal counsel, that should be a red flag indicating that they want to take unfair advantage of you.
Further, as of yet, I am unaware of any rule that would protect the written material that the provider submits to HHSC from the eyes of Plaintiff’s attorneys. Thus, legal counsel is advisable to assure that the materials do not contain admissions or information that could be harmful to the provider in personal injury litigation.
Providers should be able to choose to have an attorney represent them in this process.
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
