Effective 28 Aug 2009

198.545. Definitions — contracting with third parties — department to establish IDR process, procedures — rulemaking authority. — 1. This section shall be known and may be cited as the "Missouri Informal Dispute Resolution Act".

2. As used in this section, the following terms shall mean:

(1) "Deficiency", a facility's failure to meet a participation requirement or standard, whether state or federal, supported by evidence gathered from observation, interview, or record review;

(2) "Department", the department of health and senior services;

(3) "Facility", a long-term care facility licensed under this chapter;

(4) "IDR", informal dispute resolution as provided for in this section;

(5) "Independent third party", the federally designated Medicare Quality Improvement Organization in this state;

(6) "Plan of correction", a facility's response to deficiencies which explains how corrective action will be accomplished, how the facility will identify other residents who may be affected by the deficiency practice, what measures will be used or systemic changes made to ensure that the deficient practice will not reoccur, and how the facility will monitor to ensure that solutions are sustained;

(7) "QIO", the federally designated Medicare Quality Improvement Organization in this state.

3. The department of health and senior services shall contract with an independent third party to conduct informal dispute resolution (IDR) for facilities licensed under this chapter. The IDR process, including conferences, shall constitute an informal administrative process and shall not be construed to be a formal evidentiary hearing. Use of IDR under this section shall not waive the facility's right to pursue further or additional legal actions.

4. The department shall establish an IDR process to determine whether a cited deficiency as evidenced by a statement of deficiencies against a facility shall be upheld. The department shall promulgate rules to incorporate by reference the provisions of 42 CFR 488.331 regarding the IDR process and to include the following minimum requirements for the IDR process:

(1) Within ten working days of the end of the survey, the department shall by certified mail transmit to the facility a statement of deficiencies committed by the facility. Notification of the availability of an IDR and IDR process shall be included in the transmittal;

(2) Within ten calendar days of receipt of the statement of deficiencies, the facility shall return a plan of correction to the department. Within such ten-day period, the facility may request in writing an IDR conference to refute the deficiencies cited in the statement of deficiencies;

(3) Within ten working days of receipt for an IDR conference made by a facility, the QIO shall hold an IDR conference unless otherwise requested by the facility. The IDR conference shall provide the facility with an opportunity to provide additional information or clarification in support of the facility's contention that the deficiencies were erroneously cited. The facility may be accompanied by counsel during the IDR conference. The type of IDR held shall be at the discretion of the facility, but shall be limited to:

(a) A desk review of written information submitted by the facility; or

(b) A telephonic conference; or

(c) A face-to-face conference held at the headquarters of the QIO or at the facility at the request of the facility.

­­If the QIO determines the need for additional information, clarification, or discussion after conclusion of the IDR conference, the department and the facility shall be present.

5. Within ten days of the IDR conference described in subsection 4 of this section, the QIO shall make a determination, based upon the facts and findings presented, and shall transmit the decision and rationale for the outcome in writing to the facility and the department.

6. If the department disagrees with such determination, the department shall transmit the department's decision and rationale for the reversal of the QIO's decision to the facility within ten calendar days of receiving the QIO's decision.

7. If the QIO determines that the original statement of deficiencies should be changed as a result of the IDR conference, the department shall transmit a revised statement of deficiencies to the facility with the notification of the determination within ten calendar days of the decision to change the statement of deficiencies.

8. Within ten calendar days of receipt of the determination made by the QIO and the revised statement of deficiencies, the facility shall submit a plan of correction to the department.

9. The department shall not post on its website or enter into the Centers for Medicare & Medicaid Services Online Survey, Certification and Reporting System, or report to any other agency, any information about the deficiencies which are in dispute unless the dispute determination is made and the facility has responded with a revised plan of correction, if needed.

10. Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2009, shall be invalid and void.

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(L. 2009 H.B. 395)