There are Two Main Ways to Contest a Deficiency Survey in Colorado

Contents Requesting Informal Dispute Resolution

Surveys are a fact of life in the assisted living business.

Assisted living providers may sometimes feel that survey results are unfair.

Providers often object to unfair survey findings because the language of the deficiency stays in the CDPHE public record and is available to potential residents and their families, and potential investors.

There are two principal pathways to contesting survey findings: The Informal Dispute Resolution Process and Administrative hearings. The category of deficiency finding will influence a provider’s decision on the method of contesting the findings.

Survey findings fall into two categories: deficiencies or intermediate conditions. The deficiencies or “deficient practice” based findings allege that the provider (assisted living operator) has failed to meet regulatory requirements in some manner.

The term “Intermediate Condition” indicates that the alleged deficiencies are more serious. A range of solutions may be directed by CDPHE to correct the situation. The range of solutions may include any and all of the list below:

  • Retaining a consultant to address corrective measures;

  • Monitoring by the department for a specific period;

  • Providing additional training to employees, owners, or operators of the residence;

  • Complying with a directed written plan, to correct the violation;  or

  • Paying a civil fine as high as two thousand dollars.

There are two main options available to providers who want to object to survey findings: 1. Request an Informal Dispute Resolution (“IDR”) review, and 2. Request an administrative hearing.  We will describe the administrative hearing request and process in a separate blog.

The IDR takes place in an Informal Review. The Informal Review is conducted by a five member panel comprised of: two providers (selected by CDPHE), one state surveyor (not involved in the deficiency at issue), one representative from the Health Care Policy and Financing (HCPF), and one ombudsman.

Contents of the IDR Request

The request for an IDR must meet narrow guidelines and will be returned for revision, or CDPHE may remove “prohibited commentary, argument or documentation.” The IDR request must identify whether you are disputing deficiencies under state licensure regulations, state certification regulations, or both, and must identify which factual statements in the deficiency you believe to be incorrect. You must explain why the factual statement is incorrect, describe which documents, if any, the provider included to support its position, and state whether the documents were provided to the surveyors at the time of the survey.

Challenges to deficiency findings in your IDR request ARE NOT PERMITTED TO CHALLENGE THE SURVEY PROCESS OR PROFESSIONAL JUDGEMENT OF THE SURVEY TEAM. More specifically, you must not use the IDR request to challenge:

  • The level, extent, scope and severity of deficiencies except in situations where a successful challenge would not change scope or severity;

  • The remedy sought to be imposed except when the remedy involves an intermediate condition imposed pursuant to Section 25-27-105 C.R.S.;

  • The failure of the survey team to comply with a requirement of the survey process;

  • The inconsistency of the survey team in citing deficiencies among providers; or

  • The inadequacy or inaccuracy of the IDR process.

In other words, a provider may not use the IDR request to challenge the seriousness of an alleged finding, whether the survey team was being cross or antagonistic, whether they ignored the same issue at other facilities, or whether it is unjust.

The IDR process is narrowly targeted to challenge questions of fact. For example, supposing that a stated deficiency claims “The residence agreement states that residents shall be provided cable TV at no charge. Resident #10 stated that they have been charged for internet.” In this example, a provider would challenge the statement in the IDR request by showing redacted resident invoices indicating that no cable TV was charged to the resident.

The form of the IDR request is very specific and must be completed with precision to prevent your responses from being removed by CDPHE.

While  you may use legal counsel to assist in your preparation of the IDR request, you may not be represented by counsel at the informal review. You may request a 30 minute presentation summarizing your responses to the factual statements in the deficiency report.

At some point after the informal review, you will receive a report and conclusions from CDPHE on the informal review. Any negative survey findings surviving the informal review will become a matter of public record unless the provider appeals further for an administrative hearing, conducted by an administrative law judge. The burden of proving the allegations in the deficiency report in an administrative hearing rests on CDPHE and the survey team.

If you have questions about how the IDR and administrative hearing processes apply to your circumstances, we are happy to help.

As always, we admire the work  you do for our seniors and encourage you to carry on.

 

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Assisted Living, Policy & Regulation, Public HealthBrian Pinkowskiassisted living, regulation, policy, Public Health