PRINTER'S NO. 486
No. 422 Session of 2007
INTRODUCED BY GINGRICH, ARGALL, BOYD, CALTAGIRONE, CAPPELLI,
DENLINGER, FAIRCHILD, HARHART, HARPER, HENNESSEY, HESS,
KOTIK, MARKOSEK, MARSICO, McILHATTAN, MUSTIO, PICKETT, RAPP,
RUBLEY, SCHRODER, SIPTROTH, STERN, SWANGER AND WATSON,
FEBRUARY 13, 2007
REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES,
FEBRUARY 13, 2007
AN ACT
1 Establishing an informal dispute resolution process for long-
2 term care nursing facilities and an informal dispute
3 resolution panel within the Department of Health; and
4 providing for membership of the panel, for the scope of
5 informal resolution review and for data collection.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Short title.
9 This act shall be known and may be cited as the Long-Term
10 Care Nursing Facility Informal Dispute Resolution Act.
11 Section 2. Purpose.
12 The purpose of this act is to give long-term care nursing
13 facilities the opportunity to refute deficiencies cited in a
14 department survey.
15 Section 3. Definitions.
16 The following words and phrases when used in this act shall
17 have the meanings given to them in this section unless the
1 context clearly indicates otherwise:
2 "Deficiency." A long-term care nursing facility's failure to
3 meet a requirement of the Social Security Act (49 Stat. 620, 42
4 U.S.C. § 301 et seq.), 42 CFR Pt. 483 Subpt. B (relating to
5 requirements for long term care facilities), the act of July 19,
6 1979 (P.L.130, No.48), known as the Health Care Facilities Act,
7 or 28 Pa. Code Pt. IV Subpt. C (relating to long-term care
8 facilities).
9 "Department." The Department of Health of the Commonwealth.
10 "Facility." A long-term care nursing facility.
11 "Findings." Examples of noncompliance noted on a statement
12 of deficiencies.
13 "IDR." Informal dispute resolution as provided for in this
14 act.
15 "Immediate jeopardy." A situation in which a deficiency has
16 caused or is likely to cause serious injury to, harm to,
17 impairment of or death of a resident.
18 "Long-term care nursing facility." A facility that provides
19 either skilled or intermediate nursing care or both levels of
20 care to more than one patient unrelated to the licensee for a
21 period exceeding 24 hours. The term does not include an
22 intermediate care facility exclusively for the mentally
23 retarded, commonly called ICF/MR.
24 "Panel." The informal dispute resolution panel established
25 in section 4(a).
26 "Plan of correction." A facility's response to deficiencies
27 which explains how corrective action will be accomplished, how
28 the facility will identify other residents who might be affected
29 by the deficient practice, what measures will be used or
30 systemic changes made to ensure that the deficient practice will
20070H0422B0486 - 2 -
1 not recur and how the facility will monitor to ensure that
2 solutions are sustained.
3 "Qualified geriatrician." A physician who meets the
4 requirements of the American Medical Directors Certification
5 Program and:
6 (1) is a certified medical director; or
7 (2) has successfully completed a geriatric fellowship
8 approved by the American Geriatrics Society.
9 "Remedies." Enforcement actions, including termination of a
10 provider agreement with Medicare, Medicaid, or both; denial of
11 payment for new admissions; denial of payment for all residents;
12 imposition of a temporary manager; civil money penalties;
13 monitoring; directed plan of correction; directed in-service
14 training or other alternative enforcement actions.
15 "Scope." The degree to which a pattern or widespread
16 deficiencies throughout a facility are isolated.
17 "Severity." Whether deficiencies constitute:
18 (1) no actual harm with potential for minimal harm;
19 (2) no actual harm with a potential for more than
20 minimal harm but not immediate jeopardy;
21 (3) actual harm which is not immediate jeopardy; or
22 (4) immediate jeopardy to resident health or safety.
23 "Statement of deficiencies." Written notice by the
24 department to a facility specifying the deficiencies found upon
25 inspection.
26 "Substandard quality of care." A deficiency relating to
27 requirements for resident behavior and facility practice,
28 quality of life or quality of care which constitutes:
29 (1) immediate jeopardy to resident health or safety;
30 (2) a pattern of or widespread actual harm which is not
20070H0422B0486 - 3 -
1 immediate jeopardy; or
2 (3) a widespread potential for more than minimal harm,
3 but less than immediate jeopardy, with no actual harm.
4 "Survey." An inspection of a facility conducted by
5 representatives of the department in accordance with procedures
6 outlined in Chapter 7 of the Federal State Operations Manual,
7 relating to survey and enforcement process for skilled nursing
8 facilities and nursing facilities.
9 Section 4. Informal dispute resolution process.
10 (a) Establishment of panel.--The department shall establish
11 an informal dispute resolution panel to determine whether a
12 cited deficiency as evidenced by a statement of deficiencies
13 against a facility should be upheld.
14 (b) Minimum requirements of process.--The department shall
15 promulgate regulations which shall incorporate by reference the
16 provisions of 42 CFR § 488.331 (relating to informal dispute
17 resolution) and shall contain the following minimum requirements
18 of the IDR process:
19 (1) Within ten business days of the end of the survey,
20 the department shall transmit to the facility a statement of
21 deficiencies committed by the facility, by certified mail or
22 the department intranet, if the facility is connected to the
23 intranet.
24 (2) Within ten days of receipt of the statement of
25 deficiencies, the facility shall return a plan of correction
26 to the department. The facility may request an IDR conference
27 to refute the deficiencies cited in the statement of
28 deficiencies. The request must be submitted in writing within
29 the same ten-day period that the facility has for submission
30 of the plan of correction.
20070H0422B0486 - 4 -
1 (3) Within 14 days of receipt of the request for an IDR
2 conference made by a facility, the panel shall hold the IDR
3 conference. The IDR conference shall afford the facility the
4 opportunity to provide additional information or
5 clarification in support of the facility's contention that
6 the deficiencies were erroneously cited. This opportunity
7 shall be, at the option of the facility:
8 (i) a review of written information submitted by the
9 facility; or
10 (ii) either a conference call or a face-to-face
11 meeting at the headquarters office of the Division of
12 Nursing Care Facilities.
13 (4) Within five calendar days of the IDR conference, the
14 panel shall make a determination, based upon the facts and
15 findings presented, and shall transmit the decision to the
16 facility.
17 (5) If the panel rules that the original statement of
18 deficiencies should be changed as a result of the conference,
19 the department shall transmit a revised statement of
20 deficiencies to the facility with the notification of the
21 determination.
22 (6) Within ten calendar days of receipt of the
23 determination made by the department and the revised
24 statement of deficiencies, the facility shall submit a plan
25 of correction to the department.
26 (7) The department may not post on its Internet website
27 or enter into the Centers for Medicare and Medicaid Services
28 Online Survey, Certification and Reporting System any
29 information about deficiencies which are in dispute unless
30 the dispute determination is made and the facility has
20070H0422B0486 - 5 -
1 responded with a revised plan of correction, if needed.
2 Section 5. Informal dispute resolution panel.
3 (a) Membership.--The panel shall consist of three members
4 who shall be separate from the Informal Dispute Resolution Unit
5 within the Division of Nursing Care Facilities of the
6 department. Panel members must meet the minimum surveyor
7 qualifications, and at least one of the members must be a
8 registered nurse. A member of the State Board of Examiners of
9 Nursing Home Administrators shall be an ex-officio member of the
10 panel.
11 (b) Qualified geriatrician.--If a deficiency under dispute
12 involves physician decision making, the panel shall consult with
13 a qualified geriatrician to provide information and
14 recommendations regarding physician practice.
15 (c) Additional consultants.--Additional consultants,
16 requested by the panel or the facility, may be consulted if
17 specific expertise is needed to address deficiencies under
18 dispute.
19 (d) Panel decisions.--A decision of the panel shall be
20 forwarded to the director of the Bureau of Facility Licensure
21 and Certification who shall notify the facility of the decision.
22 Section 6. Scope of informal dispute resolution review.
23 (a) Matters not subject to challenge.--A facility may not
24 challenge:
25 (1) the scope and severity assessments of deficiencies,
26 except for the scope and severity assessments which
27 constitute substandard quality of care or immediate jeopardy;
28 (2) remedies imposed;
29 (3) alleged failure of a survey team to comply with a
30 requirement of the survey process;
20070H0422B0486 - 6 -
1 (4) alleged inconsistency of the survey team in citing
2 deficiencies among facilities; or
3 (5) alleged inadequacy or inaccuracy of the IDR process.
4 (b) Matters subject to challenge.--A facility may challenge
5 individual findings which lead to the assessment of scope and
6 severity.
7 Section 7. Data collection.
8 The department shall collect and maintain data regarding:
9 (1) The number of IDR requests made on an annual basis.
10 (2) The number of written reviews.
11 (3) The number of conference calls and face-to-face
12 meetings under section 4(b)(3)(ii).
13 (4) The number of requests in which no change was made.
14 (5) The number of requests in which a deficiency was
15 removed.
16 (6) The number of requests in which a deficiency was
17 downgraded.
18 This information shall also be maintained per deficiency.
19 Section 20. Effective date.
20 This act shall take effect in 60 days.
A3L35DMS/20070H0422B0486 - 7 -