THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY SCARNATI, CORMAN, BROWNE, WAUGH, ROBBINS, GORDNER, ERICKSON, WARD, TOMLINSON, GREENLEAF, ALLOWAY, BRUBAKER, EARLL, ARGALL, D. WHITE, McILHINNEY, FOLMER, SMUCKER, PICCOLA, MENSCH, PIPPY, YAW, RAFFERTY, M. WHITE, BAKER, VOGEL, EICHELBERGER, BOSCOLA, SOLOBAY AND LEACH, JUNE 3, 2011

AS AMENDED ON SECOND CONSIDERATION, OCTOBER 31, 2011   

AN ACT

Establishing an independent informal dispute resolution process

for long-term care nursing facilities to dispute Department

of Health survey deficiencies; and providing for the powers

and duties of the Department of Health.

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 Independent Informal Dispute Resolution

Act.

Section 2.  Purpose and intent.

The purpose of this act is to establish an informal review

process for long-term care nursing facilities to dispute

Department of Health survey findings using an independent agent.

This informal review process is intended to ensure that a

statement of deficiencies, as maintained in Federal and State

data systems, accurately identifies a long-term care nursing

facility's actual state of compliance with applicable

regulations by providing nursing facilities with the opportunity

to redress grievances arising during the survey process prior to

the entry of the survey results in the Federal data system and

without need to engage in formal litigation.

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 alleged

noncompliance with 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 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.

"Independent IDR."  An appeal process conducted by an

independent IDR agent, in compliance with 42 CFR 488.331

(relating to informal dispute resolution), by which a long-term

care facility may challenge deficiencies cited during a survey

and certification inspection by the Department of Health.

"Independent IDR agent."  The entity designated by the

Department of Health that conducts an independent IDR on its

behalf.

"Informal dispute resolution " or "IDR."  An appeal process

within the Department of Health, in compliance with 42 CFR

488.331 (relating to informal dispute resolution), by which a

long-term care facility may challenge deficiencies cited during

a survey and certification inspection by the Department of

Health.

"Plan of correction."  A facility's response to deficiencies

that explain:

(1)  The manner by which corrective action will be

accomplished.

(2)  The manner by which the facility will identify other

residents who might be affected by the deficient practice.

(3)  The measures that will be used or systemic changes

that will be made by the facility to ensure that the

deficient practice will not recur.

(4)  The manner by which the facility will monitor its

operations to ensure that corrective actions are sustained.

"QIO."  A federally designated Medicare quality improvement

organization.

"State Operations Manual."  The Centers for Medicare and

Medicaid Services State Operations Manual.

"Statement of deficiencies."  Written notice by the

Department of Health to a facility specifying the items of

noncompliance found upon completion of a survey.

"Survey."  An inspection of a facility conducted by

representatives of the Department of Health in accordance with

procedures outlined in Chapter 7 of the Centers for Medicare and

Medicaid Services 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 an independent IDR process.--

(1)  The department shall establish an IDR process to

determine whether a cited deficiency contained in a statement

of deficiencies against a facility should be upheld.

(2)  The department shall designate Pennsylvania's QIO as 

the independent IDR agent. In the event that Pennsylvania's

QIO is unable to serve as the independent IDR agent, the

department, in consultation with the Health Policy Board,

shall designate the QIO of another state that has experience

in conducting informal dispute resolutions for a state survey

agency as the independent IDR agent. If no other QIO is

available to serve as the independent IDR agent, the

department, in consultation with the Health Policy Board,

shall designate as the independent IDR agent an independent

review organization that is accredited by the Utilization

Review Accreditation Commission. Notwithstanding any other

provision of law to the contrary, the department shall enter

into a sole source contract with the independent IDR agent as

necessary to implement the provisions of this act.

(3)  The department shall obtain all necessary approvals

from the Centers for Medicare and Medicaid Services to

contract with the independent IDR agent.

(4)  The independent IDR agent shall offer facilities

that provide the independent IDR process a choice of the

following levels of review:

(i)  desk review;

(ii)  telephone review; or

(iii)  in-person review, including the utilization of

video conferencing.

(5)  The independent IDR process may not replace or be a

substitute for the existing informal dispute resolution

process conducted by the department, but shall be an optional

process that can be selected by facilities on a fee-for-

service basis.

(6)  The fee for the independent IDR process shall be

established by the independent IDR agent, provided that the

fees are approved by the department and consistent with law.

(7)  Independent IDR recommendations made by the

independent IDR agent shall be subject to final review and

approval by the department.

(b)  Minimum requirements of the independent IDR process.--

The department shall establish written policies and procedures

governing the independent IDR process that comply with the

provisions of 42 CFR 488.331 (relating to informal dispute

resolution) and the State Operations Manual regarding the

informal dispute resolution process. The independent IDR

procedures shall include, but are not limited to, the following:

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

the department shall, by certified mail or by the intranet of

the department, if the facility is connected to the intranet,

transmit to the facility a statement of alleged deficiencies.

(2)  A facility that may request an informal dispute

resolution review be conducted by either department staff not

associated with the survey at no charge or an independent IDR

by the independent IDR agent designated by the department on

a fee-for-service basis. A facility may select only one

method of review. A facility must submit its request for an

independent IDR review and indicate its selection of the type

of review and level of review in writing within the same ten-

day period applicable to the facility for submission of the

plan of correction.

(3)  (i)  Within 45 days of receipt of the request for an

independent IDR by a facility, the independent IDR agent

shall issue a written decision to the facility based upon

its review of the facts, survey findings, State

Operations Manual and applicable law.

(ii)  If the independent IDR agent sustains the

deficiency, the independent IDR agent's written

determination shall include the rationale for its

decision and provide recommended action that the facility

can implement to achieve compliance.

(iii)  If the department disagrees with an

independent IDR agent's determination that reverses a

deficiency, the department shall provide a written

explanation for its decision to nullify the independent

IDR agent's report to the independent IDR agent and to

the facility.

Section 5.  Data collection.

The department shall collect and maintain the following data:

(1)  The total number of review requests received on an

annual basis, including the number of independent IDR

requests and the number of State informal dispute resolution

review requests.

(2)  The total number of independent IDRs completed,

including the number of reviews that resulted in the removal

of a deficiency, the number of reviews that resulted in the

downgrade of a deficiency and the number of reviews that

upheld a deficiency.

(3)  The total number of State informal dispute

resolution reviews completed, including the number of reviews

that resulted in the removal of a deficiency, the number of

reviews that resulted in the downgrade of a deficiency and

the number of reviews that upheld a deficiency.

Section 6.  Liability and responsibility.

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Except as otherwise provided in this act, nothing in this act

is intended to affect common law or statutory liability and

responsibility of licensees.

Section 20.  Effective date.

This act shall take effect in 120 days.