May 16, 2022

Volume XII, Number 136

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May 16, 2022

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May 13, 2022

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Update - NC Informal Dispute Resolution and Appealing the Length of Immediate Jeopardy

Previously, we challenged the length of an immediate jeopardy citation during an informal dispute resolution (IDR). We said, consistent with federal law, that in IDR, a provider can appeal whether a deficiency citation was correct (i.e., there was actually deficient practice) and/or the scope and severity of a deficiency cited as immediate jeopardy (IJ) or substandard quality of care. We also said, again consistent with federal law, that a provider may also appeal the length of the immediate jeopardy. Since that article, the NC Department of Health and Human Services’ Division of Health Service Regulation (DHSR), responsible for conducting informal dispute resolution, has taken a contrary position, stating that it will not entertain any IDR arguments about when a provider removed an IJ based on corrective action that occurred before the date DHSR says the IJ was lifted.

DHSR asserts that a provider may challenge whether IJ ever existed but cannot dispute the duration of the jeopardy. In support of its position, DHSR cites 42 CFR § 488.331 and the CMS website which set out guidelines for the IDR process for the proposition that a facility may dispute survey findings but may not appeal the length of the jeopardy except through formal appeal at the federal level. While DHSR officials point us to the federal regs and the CMS website to support their position, officials at CMS tell us that they don’t get involved in state IDR procedures and that this decision belongs to DHSR.

We disagree with DHSR’s position, for the reasons set forth in our previous article, and are working hard on this issue. Per Section 7212C of Chapter 7 of the State Operations Manual, CMS holds the state agency accountable for the legitimacy of the IDR process, “including the accuracy and reliability of conclusions that are drawn with respect to survey findings.” DHSR’s own IDR procedures (available on its website) acknowledge that a provider is entitled to present its case at IDR if it “believes that a specific deficiency or finding(s) within a deficiency cited by a survey or complaint investigation are factually inaccurate.” Likewise, under federal law, a provider may challenge whether a deficiency cited as IJ was properly labeled jeopardy, since this affects the range of civil money penalties DHSR can recommend and CMS can impose. The natural corollary to this position is that a provider may dispute that the facts support the duration of the jeopardy cited.

In our view, DHSR’s position is untenable because in some cases, in order to have access to its statutory right to IDR, a provider could be forced to advance an argument that it doesn’t fully believe. For example, under DHSR’s position, in order to be heard at IDR, even if the provider agrees that the IJ did exist but was remedied earlier than the end date cited by DHSR, rather than arguing about the length of the IJ itself, the provider must argue that the cited deficiency never existed. As the number of large CMPs grows in N.C., a trend we are clearly seeing, this will become an important issue.

In our view, based upon our research, DHSR’s position on this issue conflicts with the provisions that clearly allow providers to appeal the length of jeopardy in a formal appeal to the Departmental Appeals Board. While we disagree with DHSR’s position, we think it is important to let you know that DHSR doesn’t agree with the position we took in last month’s article. Please note, however, that a provider may, under federal law, challenge this issue in a formal appeal before an administrative law judge.

© 2022 Poyner Spruill LLP. All rights reserved.National Law Review, Volume , Number 7
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About this Author

Kenneth L. Burgess, Health Care Litigation Attorney, Poyner Spruill Law firm
Partner

Ken is a health care attorney with more than 28 years of experience advising clients on a wide range of regulatory, reimbursement, litigation, compliance and operations issues.  His practice has focused heavily, but not exclusively, on issues affecting long term care providers.  He has advised them on a wide variety of legal planning issues arising in the skilled nursing facility setting, assisted living setting, hospice, home health and other spheres of long term care. He also frequently represents ancillary service providers (pharmacy, DME, therapy and similar...

919-783-2917
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