New Regulations, and a New Look at the Informal Dispute Resolution Process

Recent changes to Colorado’s assisted living regulations, 6CCR 1011-1, Chapter 7, will make the Informal Dispute Resolution (“IDR”) process more appealing.

The changes to the penalty structures imposed by the Colorado Department of Public Health and Environment have increased for all levels of deficiencies and intermediate conditions.

”For all cases where the deficiency list includes Level C, D, or E deficiencies, the assisted living residence . . . shall be assessed a civil fine . . . within the following ranges:

Level C = between $100 and $5,000.

Level D = between $500 and $7,500.

Level E – likelihood of serious injury, serious harm, serious impairment, or death = between $1,000 and $10,000 with the additional penalties where there is actual serious injury, serious harm, serious impairment, or death = between $2,000 and $10,000, except that the Department may exceed $10,000 for any egregious violation(s) or ongoing pattern of egregious violations resulting in serious injury or death.”

Apart from the Dark Ages notion that we can produce better healthcare through threats and punishment, the penalty structure will increase the number of request for Informal Dispute Resolution, and possibly appeals. You can read more about the IDR process here, and here.

Contesting Survey Findings: Available Pathways

There are two main avenues for contesting survey findings: the Informal Dispute Resolution (IDR) process and administrative hearings. The nature of the deficiency finding typically influences the choice of method for contestation.

Survey findings are categorized into two types: deficiencies and intermediate conditions. Deficiencies, or "deficient practice" findings, suggest that the provider has not met certain regulatory requirements. On the other hand, "Intermediate Condition" findings indicate more serious issues. The CDPHE may mandate a variety of corrective actions, which can include:

- Hiring a consultant to implement corrective measures

- Departmental monitoring for a specified period

- Additional training for employees, owners, or operators

- Adherence to a directed written plan to rectify the violation

- Paying a civil fine of up to two thousand dollars

The Informal Dispute Resolution (IDR) Process

Providers can dispute survey findings through an IDR review. The IDR is conducted by a five-member panel, which includes two providers selected by CDPHE, one state surveyor not involved in the deficiency, a representative from the Health Care Policy and Financing (HCPF), and an ombudsman.

Contents of the IDR Request

An IDR request must follow strict guidelines. CDPHE may return the request for revision or remove "prohibited commentary, argument, or documentation." The request must specify whether the dispute is under state licensure regulations, state certification regulations, or both. It should identify which factual statements in the deficiency are believed to be incorrect, explain why they are incorrect, describe any supporting documents, and state whether these documents were provided to the surveyors at the time of the survey.

The IDR request cannot be used to challenge the survey process or the professional judgment of the survey team. Specifically, it must not challenge:

- The level, extent, scope, and severity of deficiencies, except where a successful challenge would not alter the scope or severity

- The remedy imposed, except for intermediate conditions under Section 25-27-105 C.R.S.

- Non-compliance by the survey team with the survey process requirements

- Inconsistencies in citing deficiencies among providers

- The adequacy or accuracy of the IDR process

The IDR process is narrowly focused on factual disputes. For instance, if a deficiency states, "The residence agreement states that residents shall be provided cable TV at no charge. Resident 10 stated that they have been charged for internet," the provider could challenge this by presenting redacted resident invoices showing no charges for cable TV.

The IDR request form must be completed with precision to avoid having responses removed by CDPHE. While legal counsel can assist in preparing the IDR request, providers may not be represented by counsel during the informal review. Providers can request a 30-minute presentation summarizing their responses to the factual statements in the deficiency report.

After the informal review, CDPHE will issue a report and conclusions. Any negative findings that survive the review will become a matter of public record unless further appealed in an administrative hearing, which is conducted by an administrative law judge. In such hearings, CDPHE and the survey team bear the burden of proving the allegations in the deficiency report.

If you have questions about the IDR or administrative hearing processes in Colorado, contact us or your attorney. We appreciate the work you do for our seniors and encourage you to continue your dedicated service.

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.

Look for additional blog posts on topics of interest related to assisted living and group homes. We welcome topic suggestions! Write to brian@pinkowskilaw.com if you are curious to learn more about a certain topic impacting assisted living or other group housing concerns.