Informal Dispute Resolution vs. Plan of Correction
How many assisted living owners know the difference between an IDR and an POC? It is possible that following an inspection (also known as a “survey”), the assisted living owner may need to learn the distinction between those abbreviations and act on it quickly.
After the inspection is held, the owner (also known as “licensee”), will receive either a statement that no deficiencies were found (in which case we applaud you), or a Statement of Deficiencies (also known as a “SOD”). This notice will be sent via email only, so watch your spam folder since time to act on the notice is very short.
Whether that SOD is accompanied by a notice that either:
1) the matter has been referred to the Enforcement Division and that you should not submit a POC at this time, or
2) if it requests a Plan of Correction (also known as a “POC”) within 10 days, the licensee has a right to file an Informal Dispute Resolution (“IDR”) within ten (10) days following receipt of the SOD.
Do not always trust the deadline date on the letter issued by the Department of Health. We have found instances where the Department of Health’s cover letter indicated a deadline that was shorter than the method of counting days set forth by Arizona law. Filing an IDR will extend the due date for submission of the POC until after the IDR is resolved.
Because the submission deadline for an IDR is so soon after receipt of the SOD (even when the deadline is calculated properly), licensees should not wait to seek legal advice to determine if filing an IDR is recommended. The IDR process pertains to those rules cited in the SOD which the licensee believes it was in compliance with as of the date of the inspection. It is not an avenue to contest the accuracy of the investigation findings, nor challenge the judgment of the surveyor regarding the cited deficiency. Where a licensee has a good-faith claim that the particular SOD should not have been issued, however, it is their only opportunity to have that deficiency removed from the public record of citations against their license. Thus, it is important to act quickly if a licensee believes that a deficiency is unfairly being issued against them.
Example 1: An inspection is conducted less than a year after the owner has held its license.
The owner receives an SOD relating to A.C.C. R9-10-811.C.17 concerning documentation that the resident or their representative must be aware of the availability of annual onsite vaccinations for flu and pneumonia according to A.R.S. § 36-406(1)(d).
The owner admittedly does not have a signed acknowledgment in the resident’s file in accordance with the above-referenced statute and Rule.
However, the full measure of time (i.e. 1 year) has not elapsed for the owner to obtain that documentation. Thus, this SOD should not be cited against the licensee and the licensee should not have to submit a POC concerning it. The licensee should thus submit an IDR requesting removal of that SOD.
Example 2: The surveyor requested personnel documentation that the owner had in personnel records in its main office, but the Manager onsite did not have access to copies of the documentation while the inspection was being conducted. The owner was hospitalized/on vacation/otherwise unavailable within the two (2) hour timeframe following the inspection allowable to submit the personnel documents requested. Those records that existed at the time of the inspection can be submitted as part of the IDR process.
While the IDR is under consideration by the Department of Health Services, any remaining SODs that the licensee is not challenging will be stayed pending the IDR resolution. The rationale is that if the Department refuses to remove the SOD, they want a POC to be submitted on the entirety of the investigation findings, rather than piecemeal replies. Similarly, if the Department does agree that the SOD should be deleted from the findings, then the licensee will not have to submit a POC concerning it.
It should be noted that an IDR is also not the same thing as an ISC, Informal Settlement Conference. ISCs will be addressed in a future article.
At Pinkowski Law & Policy Group, LLC we speak “acronym-ese” and understand the importance of filing an IDR where it is warranted. We know that receipt of an SOD is a distressing event, and that the natural response is to put it on the back burner until closer to the deadline date for submitting the POC. However, even after the Department accepts your POC, that citation is still reported online against the licensee. Moreover, if that same deficiency is cited in a later inspection, it will be considered a repeat violation, which may result in civil penalties or other enforcement action, costing you more in the future. Thus, the goal is to legitimately defeat as many SODs as possible through the IDR process each and every time. To do so, fast action is required.
Look for more weekly blog posts on topics of interest to Arizona Assisted Living and Behavioral Health operators. The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to our firm if you would like specific advice on this topic. We welcome topic suggestions! Write to info@pinkowskilaw.com to recommend a particular subject for us to explore.