Section 6111 of the Affordable Care Act added new section (IV)(aa) to sections 1819(h)(2)(B)(ii) of the Social Security Act (Act). This new section provided for timely collection and escrow of CMPs. The provision also afforded facilities with the opportunity to request an Independent IDR when the Centers for Medicare and Medicaid Services (CMS) imposes a CMP against the facility and the CMP amounts are subject to being collected and placed in an escrow account. This Information Bulletin must be read in conjunction with CMS requirements:

Medicare and Medicaid program requirements found in the CMS State Operations Manual (SOM), including Chapter 7 (PDF) definitions and 7212, 7213, and 7900; Appendix P (PDF); Appendix PP (PDF); and Appendix Q (PDF).
Federal Requirements for the Independent Informal Dispute Resolution (Independent IDR) Process for Nursing Homes (S&C:12-08-NH) (PDF) and
Escrow and Independent Informal Dispute Resolution (Independent IDR) Process for Nursing Homes – Applicable to All Civil Money Penalties (CMPs) (S&C:13-57-NH) (PDF).

How to Request a CMP-IIDR

All requests for a CMP-IIDR of federal deficiencies where CMS issued a Notice of Imposition of a CMP letter to the facility must be submitted via the web: Nursing Home Dispute Resolution

You must notify MDH at the website above of your request for a CMP-IIDR within 10 calendar days of receipt of CMS’ letter offering the CMP-IIDR.

Supporting documentation for the CMP-IIDR must be mailed within 10 calendar days of receipt of CMS letter offering a CMP-IIDR to:

Nursing Home Informal Dispute Process
Minnesota Department of Health
Health Regulation Division
P.O. Box 64900
St. Paul, MN 55164-0900

Facility Responsibility in the CMP-IIDR Process

List in writing the deficiency(ies) that the facility disputes, where the CMP was imposed.

State whether the CMP-IIDR will be conducted in writing, by telephone, or in person.
Provide dates when the facility is not able to participate in the CMP-IIDR.
State if the facility has an attorney, and the estimated number of persons that will be attending the CMP-IIDR if it will be conducted in person or by telephone. The facility is not required to appear with an attorney, but if it intends to do so, it must indicate that fact in its request so that MDH may also have counsel present if it wishes.
Attempt to limit the in-person or telephone CMP-IIDR meeting to approximately two hours. The in-person reviews will be conducted by the Office of Administrative Hearings (OAH) in Saint Paul, MN.
Provide any information it intends to rely upon to MDH no later than ten (10) calendar days after receipt of the notice from the OAH regarding the CMP-IIDR date.
Provide the administrative law judge (ALJ), and copy MDH, with any information the facility intends to rely upon in the CMP-IIDR three (3) business days prior to the date of the CMP-IIDR.
For any information sent by mail, sufficient time must be allotted for delivery of the information at least three (3) business days prior to the CMP-IIDR.

MDH Responsibilities in the CMP-IIDR Process

After the Minnesota Department of Health Department (MDH) receives the facility request for the CMP-IIDR, the MDH will:

No later than three (3) business days after receipt of the facility request, file the facility request with the Office of Administrative Hearings (OAH) by email, fax or mail, requesting the appointment of an administrative law judge (ALJ) to review the request.
Inform OAH by letter, facsimile or electronic mail message of the date MDH received the CMP-IIDR request and whether the deficiency(ies) in dispute was issued by MDH or CMS.
MDH will verify that each CMP-IIDR does not include the survey findings which have already been the subject of an informal dispute resolution under 42 CFR. 488.331 for the particular deficiency citations at issue in the CMP-IIDR, unless the IDR was completed prior to the imposition of the CMP.
Inform, in writing, the Office of the Ombudsman for Long-term Care that a CMP-IIDR request has been received and offer an opportunity to comment.
Notify, in writing, the involved resident(s) or the appropriate resident representative(s) that a CMP-IIDR request has been received and offer an opportunity to comment.
Consistent with the requirements of Freedom of Information Act, 5 U.S.C. 552 (FOIA), provide the facility with survey information MDH intends to rely upon no later than ten (10) calendar days after receipt of the notice from OAH regarding the CMP-IIDR date.
Provide the ALJ and copy the facility with information MDH intends to rely upon in the CMP-IIDR meeting at least three (3) business days prior to the CMP-IIDR.
For deficiencies issued by MDH, within ten (10) calendar days of receipt of the ALJ findings to the MDH and within 60 calendar days of receipt of the CMP-IIDR request, the commissioner will mail a final decision to the facility noting whether the survey agency accepts or rejects the recommendations of the ALJ consistent with Medicare and Medicaid requirements along with a summary of the CMP-IIDR decision for each disputed deficiency and supporting rationale for the decision. For MDH issued deficiencies, MDH will make a decision based on the written record of the CMP-IIDR process and will provide final results to the facility which shall contain the result for each deficiency challenged in the CMP-IIDR process and a brief summary of the rationale for that result.
If the deficiency, issued by MDH, is not valid as determined through the CMP-IIDR and decision by the survey agency, MDH will mark the deficiency “deleted,” sign and date the survey report form; and recommend to CMS the rescission of any CMS remedies resulting from that deficiency citation; or adjust the scope and severity assessment, if necessary to reflect the determination of the CMP-IIDR, consistent with federal procedures. If changes to the deficiencies would modify findings in any state correction order, the MDH shall modify those orders consistent with the CMP-IIDR final decision.
Issue a revised statement of deficiencies within ten (10) days of the final decision.
MDH will reimburse the OAH for the costs incurred by that Office for the CMP-IIDR.
If a request for supporting survey documentation through FOIA is received, MDH will be responsible to assure that the release of data under this provision conforms to requirements contained in the licensure rules, the provisions of the Data Practices Act, provisions of the Vulnerable Adult Abuse Reporting Act and federal requirements, including FOIA.

Office of Administrative Hearings (OAH) Responsibilities in the CMP-IIDR Process

The Office of Administrative Hearings will:

Assign an administrative law judge (ALJ) that meets qualifications of an Independent IDR entity in Chapter 7 of the CMS State Operating Manual (SOM).
Assign an ALJ that has attended or reviewed the federal training provided by the MDH on the CMP-IIDR. The training provided by MDH conforms with all CMS training requirements in Chapter 7 of the SOM.
Within three (3) business days of receipt of the MDH request for a CMP-IIDR, send the facility and MDH notice of the date and location of the face-to-face CMP-IIDR, or the date of the telephone CMP-IIDR, and the date by which the facility and MDH must have all of their argument and supporting information to the ALJ for consideration. The CMP-IIDR date will optimally occur within twenty-one (21) to twenty-eight (28) calendar days of the date OAH receives the request for a CMP-IIDR from MDH.
Conduct an in-person or telephone CMP-IIDR that the parties will attempt to limit to approximately two (2) hours in length consistent with Chapter 7 of the SOM.
Issue a recommended decision consistent with Medicare and Medicaid requirements within ten (10) calendar days of the CMP-IIDR meeting and mail the findings and recommended decision to the facility and MDH.
Submit a written record to MDH that includes:
- Each deficiency or survey finding that was disputed;
- A summary of the CMP-Independent IDR recommendation for each deficiency or finding and the rationale for that result;
- Documents submitted by the facility to dispute a deficiency, to demonstrate that a deficiency should not have been cited, or to demonstrate a deficient practice should not have been cited as immediate jeopardy or as substandard quality of care; and,
- Any written comments submitted by the Ombudsman and/or residents or residents representatives.
For deficiencies issued as a result of a federal survey, conducted by CMS, OAH will mail the ALJ findings and the written record to CMS Region 5. That Office will make a decision based on the written record of the CMP-IIDR process and will provide the final results to the facility.

The recommendation of the ALJ is not binding on the commissioner or CMS.

Questions?

Submit your written questions to:

Nursing Home Informal Dispute Process
Minnesota Department of Health
Health Regulation Division
P.O. Box 64900
St. Paul, MN 55164-0900

Email us with questions: health.fpc-web@state.mn.us