Mandatory Elements of Informal Dispute Resolution

7212.3 - Mandatory Elements of Informal Dispute Resolution (Rev. 244; Issued: 06-26-26; Effective: 06-26-26; Implementation: 06-26-26) The following elements must be included in each informal dispute resolution process offered: 1. Upon their receipt of the official Form CMS-2567, facilities must be offered an informal opportunity, to dispute deficiencies with the entity that conducted the survey. 2. Facilities may not use the informal dispute resolution process to delay the formal imposition of remedies or to challenge any other aspect of the survey process, including the: • Scope and severity assessments of deficiencies with the exception of scope and severity assessments that constitute substandard quality of care or immediate jeopardy; • Remedy(ies) imposed by the enforcing agency; • Alleged failure of the survey team to comply with a requirement of the survey process; • Alleged inconsistency of the survey team in citing deficiencies among facilities; • Alleged inadequacy or inaccuracy of the informal dispute resolution process. 3. Facilities must be notified of the availability of informal dispute resolution in the letter transmitting the official Form CMS-2567. (See Exhibit 139 in this manual for transmission of Form CMS-2567.) Notification of this process should inform the facility: • That it may request the opportunity for informal dispute resolution, and that if it requests the opportunity, the request must be submitted in writing along with an explanation of the specific deficiencies that are being disputed. The request must be made within the same 10 calendar day period the facility has for submitting an acceptable plan of correction to the surveying entity; • Of the name, address, and telephone number of the person the facility must contact to request informal dispute resolution; • How informal dispute resolution may be accomplished in that State, e.g., by telephone, in writing, or in a face-to-face meeting. • Of the name and/or the position title of the person who will be conducting the informal dispute resolution, if known. States should be aware that CMS holds them accountable for the legitimacy of the informal dispute resolution process including the accuracy and reliability of conclusions that are drawn with respect to survey findings. This means that while States may have the option to involve outside persons or entities they believe to be qualified to participate in this process, it is the States, not outside individuals or entities that are responsible for informal dispute resolution decisions. So, when an outside entity conducts the informal dispute resolution process, the results may serve only as a recommendation of noncompliance or compliance to the State. The State will then make the final informal dispute resolution decision and notify the facility of that decision. CMS will look to the States to assure the viability of these decision-making processes and holds States accountable for them. Since CMS has ultimate oversight responsibility relative to a State’s performance, it may be appropriate for CMS to examine specific informal dispute resolution decisions or the overall informal dispute resolution process to determine whether a State is arriving at a correct result. For dually participating or Medicare-only facilities, informal dispute findings are in the manner of recommendations to CMS and, if CMS has reason to disagree with those findings, it may reject the conclusions from informal dispute resolution and make its own binding determinations of noncompliance. 4. The informal dispute resolution process will be completed within 60 calendar days of a facility’s request, if an informal dispute resolution is requested timely by the facility. Failure to complete informal dispute resolution timely will not delay the effective date of any enforcement action against the facility. 5. When a facility is unsuccessful during the process at demonstrating that a deficiency should not have been cited, the surveying entity must notify the facility in writing that it was unsuccessful. The final informal dispute resolution decision to the facility shall contain the result for each deficiency challenged and a brief summary of the rationale for that result. 6. When a facility is successful during the informal dispute resolution process at demonstrating that a deficiency should not have been cited: • On the CMS Form-2567, annotate deficiency (ies) citations as “deleted” and/or change deficiency (ies) citation findings, as recommended. A State agency manager or supervisor will sign and date the revised CMS Form-2567. • Adjust the scope and severity assessment for deficiencies, if warranted and in accordance with CMS policy. • The State agency will promptly recommend to CMS that any enforcement action(s) imposed solely because of deleted or altered deficiency citations be reviewed, changed or rescinded. The facility has the option to request a clean (new) copy of the Form CMS-2567. However, the clean copy will be the releasable copy only when a clean (new) plan of correction is both provided and signed by the facility. The original Form CMS-2567 is disclosable when a clean plan of correction is not submitted and signed by the facility. Any Form CMS-2567 and/or plan of correction that is revised or changed as a result of informal dispute resolution must be disclosed to the ombudsman in accordance with §7904. Deficiencies pending informal dispute resolution should be entered into iQIES within ten (10) calendar days of receiving the request for an informal dispute resolution. This information however will not be used to calculate the facility’s star rating until informal dispute resolution has been completed. 7. A facility may request informal dispute resolution for each survey that cites deficiencies. However, if informal dispute resolution is requested for deficiencies cited at a subsequent survey, a facility may not challenge the survey findings of a previous survey for which the facility either received informal dispute resolution or had an opportunity for it. The following table indicates when informal dispute resolution may be requested based on the results of a revisit or as a result of the previous informal dispute resolution outcome. Situation Eligibility for Informal Dispute Resolution Continuation of same deficiency at revisit Yes Situation Eligibility for Informal Dispute Resolution New deficiency (i.e., new or changed facts, new tag) at revisit or as a result of an informal dispute resolution Yes New instance of deficiency (i.e., new facts, same tag) at revisit or as a result of an informal dispute resolution. Yes Different tag but same facts at revisit or as a result of an informal dispute resolution No, unless the new tag constitutes substandard quality of care 8. Written description of the surveying entity’s informal dispute resolution process must be made available to a facility upon the facility’s request. 9. States are encouraged to include in the informal dispute resolution process, at least one person as part of the decision making process who was not directly involved in the survey. This may include, but is not limited to, another surveyor, ombudsman, a member of another survey team, etc.