“Intermediate Conditions” Imposed by the Health Department - What are they and what are your options?
Assisted living is under more scrutiny than usual due to COVID-19.
If you are in the assisted living business, you will at some point be inspected, or “surveyed” by the Colorado Department of Public Health and Environment. This is part of life in the assisted living business and may occur randomly or as part of a license application or renewal.
If the surveyor feels that there is a condition existing in an assisted living residence that does not comply with the regulations, they will cite it as a deficiency. A deficiency or “deficient practice” finding alleges that the assisted living operator has failed to comply with a regulatory requirement. Deficiencies can be minor and easily corrected by the assisted living operator, or more serious, resulting in the imposition of an Intermediate Condition. The term “Intermediate Condition” refers to the authority of CDPHE to impose a restriction or condition on the right to have an assisted living license.
The Colorado legislature provides a list of the options available to CDPHE to correct the alleged situation. The range of solutions imposed on the operator may include any and all of the list below:
· Retaining a consultant to address corrective measures;
· Monitoring by the department for a specific period;
· Providing additional training to employees, owners, or operators of the residence;
· Complying with a directed written plan to correct the violation; or
· Paying a civil fine as high as two thousand dollars.
Contesting an Intermediate Condition Finding
An operator may contest an Intermediate Condition by requesting an Informal Dispute Resolution Panel (“IDR”) and/or going directly to an administrative court. A request for an IDR or an administrative hearing must be made within 10 days of receiving the Statement of Deficiencies from CDPHE.
An IDR panel is a five-member committee composed of two assisted living providers, one Division representative, one Ombudsman, and one representative from HCPF. The assisted living provider that wants to challenge all or a portion of the Statement of Deficiencies must submit a detailed statement identifying the deficiencies being disputed and which factual statement(s) in the deficiency the provider believes to be incorrect. The provider must also explain why the factual statement is believed to be incorrect, describe which documents, if any, the provider is enclosing to support its position, and state whether the documents were provided to the surveyors at the time of the survey.
The IDR panel itself begins with the provider offering a summary of the factual objections contained in their request for the IDR. This presentation is optional for the provider and must be requested in advance. Moreover, a summary of the provider’s presentation must be given to CDPHE three days in advance. Thus, CDPHE will have the provider’s detailed objection to the Statement of Deficiencies and the provider’s presentation before the panel meets.
The provider will not be given CDPHE’s documentary written response or CDPHE’s presentation. However, the provider will have an opportunity to hear CDPHE’s response to the provider’s objections during the panel meeting.
The panel meeting starts with the presentation by the provider, if requested. This is followed by a rebuttal presentation by CDPHE. The Department will rebut the factual objections in the IDR request. The panel will often provide its recommendations at the end of the presentations. CDPHE will then decide what to do with the panel’s recommendations and provide its determination to the provider in a decision letter.
It may have caught your attention that CDPHE will have had two weeks or more to prepare its response to the provider’s factual objections. Understandably, a provider might conclude that the IDR process is biased in favor of CDPHE and that they should skip that process entirely and go directly to the administrative court, where the process follows a standard court procedure. This is a reasonable choice for an assisted living provider to make.
However, there are advantages to going through the IDR panel first: the provider will get to hear what facts CDPHE is offering to rebut the provider’s factual objections, and the provider can begin organizing their materials in anticipation of the administrative court.
What happens next?
“In the event a licensee is not satisfied with the result of the informal review or chooses not to seek informal review, no intermediate restriction or condition on the licensee shall be imposed until after an opportunity for a hearing has been afforded the licensee pursuant to 24-4-105. [The Administrative Hearings procedure.]”
C.R.S. 25-27-106(2)(III)(B and C).
The term “hearing” refers to an administrative hearing before an administrative court. Thus, if you get “tagged” with an Intermediate Condition that includes a fine, you may request that payment of the fine be delayed until you have completed your challenge of the finding. If you request a delayed payment, the Department must grant the request.
“In addition the licensee may request and the Department shall grant a stay in payment of the fine until final disposition of the restriction or condition.”
If the provider loses a challenge of the finding in the Informal Dispute Resolution panel and chooses not to go to the Administrative Court, the fine is due upon issuance of the finding from CDPHE.
A request for appeal to the administrative court must be submitted within 30 days from the date of receipt of the CDPHE decision letter.
There is more to discuss about the procedures leading to and including the administrative court hearing, but let us conclude here by addressing a question we often get from providers. “If there is a fine, when do I have to pay it?”
Payment of the Fine
The law governing payment of the Intermediate Conditions fine (civil fine) is straightforward.
“If the restriction or condition requires payment of a civil fine . . . the licensee may request that the informal review be conducted in person. In addition the licensee may request and the Department shall grant a stay in payment of the fine until final disposition of the restriction or condition.”
If the provider chooses to go through the Informal Dispute Resolution process and the Administrative Hearing, the fine is due upon receiving an unfavorable ruling by the court.
Imposition of Intermediate Conditions can be a disturbing event for assisted living operators. We hope this helps you understand your rights.