Assisted Living Rule Review – Response to Survey Report

In the last rule review, we covered the various surveys and procedures as well as receipt of insufficiencies and preparing a plan of correction. This month, we will cover the assisted living programs’ options following receipt of the final report. If a program disagrees with insufficiencies cited during the survey process, there are options for a program to contest the insufficiencies. The options and instructions are included in 481-67.14.

Within 20 business days after the program receives the final report of insufficiencies and any assessment of fines as applicable the program must respond to the final report in one of the following manners. The first option is not contesting the insufficiencies cited or fines assessed. While you may not agree that the actions included in the insufficiency evidence rose to the level of insufficiency, you are not going to contest the insufficiency or findings. If a civil penalty (or fine) is issued, assisted living programs can reduce the total fine by 35% if they are not going to the contest any insufficiencies or fines. Civil penalties are addressed in another section of the rules which will be covered at a later date.  

If you plan to contest the insufficiencies cited and civil penalty, if applicable, during the survey, you must submit a written request for an informal conference There are two options for you to choose from and the decision must be included in the written notice, including an informal conference with an independent reviewer or a contested case hearing.

Informal Conference:

When requesting an informal conference to dispute insufficiencies and penalty if issued, the assisted living program must include in the written notice:

• Identification of the regulatory insufficiency cited that is being disputed.
• The type of informal conference requested such as a face-to-face or telephone conference, and
• A request for the program to receive the monitor’s notes for the regulatory insufficiencies being disputed if desired. The notes will provide the program with insight into the evidence collected that supports the insufficiency being cited such as who was interviewed, what records the person reviewed, and what observations were completed. This is important to understand what evidence you may need to collect or provide to support that the insufficiency did not exist.

Documentation Required:

Within 10 working days from the date of the program’s written request for an informal conference, the program must submit:

• The names of those who will be attending the informal conference, including legal counsel. Note that since protected information may be discussed, attendance may be limited to the informal conference.  
• Documentation supporting the program’s position that the insufficiency did not exist. The program must highlight or use some other means to identify written information pertinent to the disputed regulatory insufficiency(ies). Supporting documentation that is not submitted with the request for an informal conference will not be considered, except as otherwise permitted by the independent reviewer upon good cause shown.
  • Good cause means substantial or adequate grounds for failing to submit documentation in a timely manner. In determining whether the program has shown good cause, the independent reviewer shall consider what circumstances kept the program from submitting the supporting documentation within the required time frame.

Informal Conference:

Either a face-to-face or telephone conference will be scheduled within 10 business days of the receipt of the written request, all supporting documentation, and the plan of correction. If you do not submit supporting documentation the conference will still be scheduled based on the written request. The face-to-face or telephone conference will be scheduled for one hour. The program will have the opportunity informally present information and an explanation concerning the contested insufficiency(ies) and then the department will have the opportunity to present their evidence.

If the independent reviewer requests additional information during the informal conference, two business days will be allowed to submit the requested information. If there are extenuating circumstances that do not allow for the conference to be held face-to-face a telephone conference will be held or an opportunity to reschedule the face-to-face conference.

Results

The results of the informal conference will generally be issued in writing and within 10 business days of the informal conference or within 10 days of additional information receipt, if requested. There are three possible results of the informal conference including:

• Affirmation – the independent reviewer sided with the department and the insufficiency was justified.
• Modification – the department will issue a revised findings document based on the modifications indicated by the independent reviewer.
• Dismissal – the independent reviewer sided with the Assisted Living program that the insufficiency did not occur.

If the findings report is amended based on the independent reviewers determination, a new report will be issued to the program within 10 calendar days. The program will then be required to submit a new plan of correction within 10 calendar days. If the findings of the information conference indicate the deficiency did not exist, any associated Civil Penalties will be removed also.

If the findings include a Civil Penalty and the independent reviewer either affirms or modifies the final report, the program must submit the Civil Penalty within five business days.