DOH Issues Guidance on Informal Dispute Resolution and New Disclosure Requirements
On June 23rd, the Department of Health (DOH) issued two nursing home Dear Administrator Letters (DALs) – one addressing the Informal Dispute Resolution (IDR) process and one addressing new disclosure requirements. Highlights of the letters are summarized below.
Informal Dispute Resolution (DAL NH 22-14)
DAL NH 22-14 outlines the various IDR options available to nursing homes that are interested in disputing deficiencies issued in a DOH survey. Depending on the scope and severity (S/S) of the deficiency and whether a Civil Money Penalty (CMP) has been imposed, a provider has the option of an Administrative IDR, a Panel IDR, or an Independent IDR (IIDR).
Administrative IDR Requests may be made for deficiencies of S/S B – F, excluding Substandard Quality of Care (SQC). The request must be received with the facility's Plan of Correction (POC) within 10 calendar days of receipt of Form Centers for Medicare and Medicaid Services (CMS)-2567. The facility must submit the completed electronic IDR/IIDR Form to idr@health.ny.gov, and all relevant supporting documentation (labeled appropriately), Form CMS-2567, and the POC.
Panel IDR Requests may be made for deficiencies of SQC and S/S of G and above (and any other deficiencies in the Statement of Deficiencies (SOD) that are being disputed at a S/S below G). The request must be received with the facility's POC within 10 calendar days of receipt of Form CMS-2567. The facility must submit the completed IDR/IIDR Form to idr@health.ny.gov, and all relevant supporting documentation (labeled appropriately), Form CMS-2567, and the POC.
Panel IIDR Requests may be made for S/S of G and above within 30 days of notice of imposition of a CMP from CMS. The facility must submit the completed electronic IDR/IIDR Form to idr@health.ny.gov, and all relevant supporting documentation (labeled appropriately) and Form CMS-2567.
The forms and instructions for submission of an IDR request are provided with the DAL.
New Disclosure Requirements and Data Collection Surveys (DAL NH 22-15)
DOH also issued DAL NH-22-15 advising providers of changes to Section 2803, 2803-x, and 2829 of the New York State Public Health Law (PHL) that became effective Oct. 1, 2021. All residential health care facilities (RHCFs) are required to inform residents and their families regarding the availability of facility compliance information as part of an intake application. The new requirements are intended to increase awareness among both residents and families as to the availability of compliance information maintained by DOH with regard to RHCFs.
According to the DAL, among the requirements of these laws are the following disclosures:
- Provide directions on how to look up complaints, citations, inspections, enforcement actions, and penalties taken against the facility;
- Provide the web address for the New York State Nursing Home Profiles website maintained by DOH;
- Provide the web address for the Nursing Home Compare website maintained by the U.S. Department of Health and Human Services (HHS), if applicable;
- Post the maximum rates to be charged for residency and services on a publicly accessible website;
- Update the posting on an annual basis no later than April 1st of each year;
- Detail rates for each non-governmental payer source;
- Publicly list all owners on a website maintained by the facility;
- Submit to the Department information within 30 days of any change or transaction affecting ownership;
- Publicly disclose on the facility's website and regularly update the name and business address of any landlord of the facility's premises; and
- Publicly provide a summary of all contracts for provision of goods or services for which the facility pays with any portion of Medicaid or Medicare funds or other agreements entered into by the nursing home on its website within 30 days of execution of such agreement or contract.
The DAL also references two surveys accessible through the Health Commerce System (HCS) for submission of information pertaining to contracts for goods or services generally ("the contract survey") and related entity contracts ("the common or family ownership survey"). The contract survey provides a mechanism for notifying DOH of contractual agreements related to the sale or disposition of the real property of the facility or related to consulting, staffing agency, or other operations of the facility and attesting to the accuracy of the information provided. Notably, although not specified in the DAL but noted in the contract survey, nursing homes are required to notify DOH at least 90 days prior to executing a letter of intent or other contractual agreement related to the sale or disposition of the real property of the facility or to consulting, staffing agency, or other entity to operations of the facility. The common or family ownership survey provides a platform for notifying DOH of any "common or familial ownership of an entity or individual providing services to the operator of the facility" and attesting to this information annually.
LeadingAge NY recognizes that these surveys are difficult to interpret and complete for non-profit and public nursing homes. Terms such as "operator," "familial or common relationship," and "owning entity" are not defined. It is unclear whether services provided by a sponsoring entity, a related hospital or physician practice, a business with a relationship to a board member, a state or local government agency, a religious order, etc. must be reported. We also recognize that publicly detailing rates from non-governmental payer sources may violate your contracts with payers and raise antitrust issues. And, we share your concern that providing 90 days prior notice of staffing agency contracts is simply infeasible in the context of a health care workforce emergency. We have raised these questions with DOH and will notify members as soon as we have a response.
Contact: Elliott Frost, efrost@leadingageny.org, 518-441-8761 or Karen Lipson, klipson@leadingageny.org