THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY STERN, MUNDY, FLECK, GEIST, GINGRICH, HESS, HORNAMAN, KAUFFMAN, MAJOR, MOUL, MURT, O'NEILL, PHILLIPS, READSHAW, SIPTROTH, SWANGER, VULAKOVICH, WATSON AND YOUNGBLOOD, DECEMBER 9, 2009

REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES, DECEMBER 9, 2009  

AN ACT

Establishing an informal dispute resolution process for long-

term care nursing facilities and an informal dispute

resolution panel within the Department of Health; and

providing for membership of the panel, for the scope of

informal resolution review and for data collection.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Long-Term

Care Nursing Facility Informal Dispute Resolution Act.

Section 2.  Purpose.

The purpose of this act is to give long-term care nursing

facilities the opportunity to refute deficiencies cited in a

department survey.

Section 3.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Deficiency."  A long-term care nursing facility's failure to

meet a requirement of the Social Security Act (49 Stat. 620, 42

U.S.C. § 301 et seq.), 42 CFR Pt. 483 Subpt. B (relating to

requirements for states and long term care facilities), the act

of July 19, 1979 (P.L.130, No.48), known as the Health Care

Facilities Act, or 28 Pa. Code Pt. IV Subpt. C (relating to

long-term care facilities).

"Department."  The Department of Health of the Commonwealth.

"Facility."  A long-term care nursing facility.

"Findings."  Examples of noncompliance noted on a statement

of deficiencies.

"IDR."  Informal dispute resolution as provided for in this

act.

"Immediate jeopardy."  A situation in which a deficiency has

caused or is likely to cause serious injury to, harm to,

impairment of or death of a resident.

"Long-term care nursing facility."  A facility that provides

either skilled or intermediate nursing care or both levels of

care to more than one patient unrelated to the licensee for a

period exceeding 24 hours. The term does not include an

intermediate care facility exclusively for the mentally

retarded, commonly called ICF/MR.

"Panel."  The informal dispute resolution panel established

in section 4(a).

"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 might be affected

by the deficient practice, what measures will be used or

systemic changes made to ensure that the deficient practice will

not recur and how the facility will monitor to ensure that

solutions are sustained.

"Qualified geriatrician."  A physician who meets the

requirements of the American Medical Directors Certification

Program and:

(1)  is a certified medical director; or

(2)  has successfully completed a geriatric fellowship

approved by the American Geriatrics Society.

"Remedies."  Enforcement actions, including termination of a

provider agreement with Medicare, Medicaid, or both; denial of

payment for new admissions; denial of payment for all residents;

imposition of a temporary manager; civil money penalties;

monitoring; directed plan of correction; directed in-service

training or other alternative enforcement actions.

"Scope."  The degree to which a pattern or widespread

deficiencies throughout a facility are isolated.

"Severity."  Whether deficiencies constitute:

(1)  no actual harm with potential for minimal harm;

(2)  no actual harm with a potential for more than

minimal harm, but not immediate jeopardy;

(3)  actual harm which is not immediate jeopardy; or

(4)  immediate jeopardy to resident health or safety.

"Statement of deficiencies."  Written notice by the

department to a facility specifying the deficiencies found upon

inspection.

"Substandard quality of care."  A deficiency relating to

requirements for resident behavior and facility practice,

quality of life or quality of care which constitutes:

(1)  immediate jeopardy to resident health or safety;

(2)  a pattern of or widespread actual harm which is not

immediate jeopardy; or

(3)  a widespread potential for more than minimal harm,

but less than immediate jeopardy, with no actual harm.

"Survey."  An inspection of a facility conducted by

representatives of the department in accordance with procedures

outlined in Chapter 7 of the Federal State Operations Manual,

relating to survey and enforcement process for skilled nursing

facilities and nursing facilities.

Section 4.  Informal dispute resolution process.

(a)  Establishment of panel.--The department shall establish

an informal dispute resolution panel to determine whether a

cited deficiency as evidenced by a statement of deficiencies

against a facility should be upheld.

(b)  Minimum requirements of process.--The department shall

promulgate regulations which shall incorporate by reference the

provisions of 42 CFR § 488.331 (relating to informal dispute

resolution) and shall contain the following minimum requirements

of the IDR process:

(1)  Within ten business days of the end of the survey,

the department shall transmit to the facility a statement of

deficiencies committed by the facility, by certified mail or

the department intranet, if the facility is connected to the

intranet.

(2)  Within ten days of receipt of the statement of

deficiencies, the facility shall return a plan of correction

to the department. The facility may request an IDR conference

to refute the deficiencies cited in the statement of

deficiencies. The request must be submitted in writing within

the same ten-day period that the facility has for submission

of the plan of correction.

(3)  Within 14 days of receipt of the request for an IDR

conference made by a facility, the panel shall hold the IDR

conference. The IDR conference shall afford the facility the

opportunity to provide additional information or

clarification in support of the facility's contention that

the deficiencies were erroneously cited. This opportunity

shall be at the option of the facility:

(i)  a review of written information submitted by the

facility; or

(ii)  either a conference call or a face-to-face

meeting at the headquarters office of the Division of

Nursing Care Facilities.

(4)  Within five calendar days of the IDR conference, the

panel shall make a determination, based upon the facts and

findings presented, and shall transmit the decision to the

facility.

(5)  If the panel rules that the original statement of

deficiencies should be changed as a result of the conference,

the department shall transmit a revised statement of

deficiencies to the facility with the notification of the

determination.

(6)  Within ten calendar days of receipt of the

determination made by the department and the revised

statement of deficiencies, the facility shall submit a plan

of correction to the department.

(7)  The department may not post on its Internet website

or enter into the Centers for Medicare and Medicaid Services

Online Survey, Certification and Reporting System any

information about deficiencies which are in dispute unless

the dispute determination is made and the facility has

responded with a revised plan of correction, if needed.

Section 5.  Informal dispute resolution panel.

(a)  Membership.--The panel shall consist of three members

who shall be separate from the Informal Dispute Resolution Unit

within the Division of Nursing Care Facilities of the

department. Panel members must meet the minimum surveyor

qualifications, and at least one of the members must be a

registered nurse. A member of the State Board of Examiners of

Nursing Home Administrators shall be an ex-officio member of the

panel.

(b)  Qualified geriatrician.--If a deficiency under dispute

involves physician decision making, the panel shall consult with

a qualified geriatrician to provide information and

recommendations regarding physician practice.

(c)  Additional consultants.--Additional consultants,

requested by the panel or the facility, may be consulted if

specific expertise is needed to address deficiencies under

dispute.

(d)  Panel decisions.--A decision of the panel shall be

forwarded to the director of the Bureau of Facility Licensure

and Certification who shall notify the facility of the decision.

Section 6.  Scope of informal dispute resolution review.

(a)  Matters not subject to challenge.--A facility may not

challenge:

(1)  the scope and severity assessments of deficiencies,

except for the scope and severity assessments which

constitute substandard quality of care or immediate jeopardy;

(2)  remedies imposed;

(3)  alleged failure of a survey team to comply with a

requirement of the survey process;

(4)  alleged inconsistency of the survey team in citing

deficiencies among facilities; or

(5)  alleged inadequacy or inaccuracy of the IDR process.

(b)  Matters subject to challenge.--A facility may challenge

individual findings which lead to the assessment of scope and

severity.

Section 7.  Data collection.

The department shall collect and maintain data regarding:

(1)  The number of IDR requests made on an annual basis.

(2)  The number of written reviews.

(3)  The number of conference calls and face-to-face

meetings under section 4(b)(3)(ii).

(4)  The number of requests in which no change was made.

(5)  The number of requests in which a deficiency was

removed.

(6)  The number of requests in which a deficiency was

downgraded.

This information shall also be maintained per deficiency.

Section 20.  Effective date.

This act shall take effect in 60 days.