SECTION 393.3. Informal Dispute Resolution for Texas Home Living and Home and Community-based Service Providers

(a) The Texas Health and Human Services Commission (HHSC) provides an informal dispute resolution (IDR) process for Texas Home Living (TxHmL) and Home and Community-based Service (HCS) providers (hereinafter referred to collectively as "provider") through which a provider may dispute violations cited against that provider by the State survey agency.

(b) The HHSC IDR Department must receive a provider's written request for an IDR no later than the tenth calendar day after the provider's receipt of the official Statement of Licensing Violations from the State survey agency or its designee. The provider must submit its written request for an IDR on the form designated for that purpose by HHSC. HHSC makes that form publicly available, e.g., maintained on the HHSC website.

(c) Within three business days of its receipt of the provider's written request for an IDR, HHSC notifies the provider and the State survey agency of its receipt of the request.

(d) Within five calendar days of HHSC's receipt of the provider's request for an IDR, HHSC must receive from the provider the provider's rebuttal letter and attached supporting documentation. The rebuttal letter must contain:

(1) a list of the violations disputed (only those violations listed on the IDR request form and addressed in the rebuttal letter and supporting documentation are reviewed);

(2) the reason or reasons each violation is disputed; and

(3) the outcome desired by the provider for each disputed violation.

(e) The provider submits its supporting documentation or information in the following format:

(1) organize the attachments by violation and cross-reference to the disputed violation in the rebuttal letter;

(2) ensure all information is labeled and legible;

(3) highlight information relevant to the disputed violation, such as a particular portion of a narrative;

(4) describe the relevance of the documentation or information to the disputed violation; and

(5) do not de-identify documents that name individuals referenced in disputed violations.

(f) If the provider substantially complies with the procedures set out in subsections (d) and (e) of this section, HHSC proceeds with its review of the provider's IDR request.

(g) It is the provider's responsibility to present sufficient credible information to HHSC to support the outcome requested by the provider.

(h) Possible outcomes of an IDR for TxHmL and HCS are:

(1) a determination that there is insufficient evidence to sustain a violation;

(2) a determination that there is insufficient evidence to sustain a portion of or a finding of a violation;

(3) a determination that there is sufficient evidence to sustain a violation;

(4) a determination that there is insufficient evidence to sustain the violation as cited but that there is sufficient evidence to sustain a different violation;

(5) a determination that there is insufficient evidence to sustain the severity and scope assessment but that there is sufficient evidence to sustain a reduced severity and scope assessment (for Immediate Threat only); or

(6) a determination that there is sufficient evidence to sustain the severity and scope assessment as cited.

(i) HHSC will not conduct an IDR based on alleged surveyor misconduct, alleged State survey agency failure to comply with survey protocol, complaints about existing federal or State standards, or attempts to clear previously corrected citations.

(j) Upon receipt of the provider's IDR request, the State survey agency must submit the following to HHSC:

(1) resident identifier list; and

(2) Automated Survey Processing Environment (ASPEN) event ID number.

(k) HHSC makes all information related to an IDR request that it receives from either the provider or the State survey agency available to the opposing party. Parties have until the end of the second business day after receipt of such shared IDR information to respond to HHSC about that information. HHSC shares any such responses with the opposing party.

(l) HHSC may request additional information from the provider or the State survey agency. HHSC notifies both parties of the request for additional information and that they have until the end of the second business day after notification to respond to the request. HHSC provides opposing parties with copies of any such response submitted to HHSC.

(m) All responses to shared information as described in subsections (j) and (l) of this section must be received no later than the tenth calendar day after the provider's rebuttal letter and supporting documentation are submitted.

(n) Ex parte communications by the provider or by the State survey agency with HHSC personnel conducting the IDR are prohibited.

(o) A provider may participate in an IDR conference provided that the provider requested an IDR conference on the IDR request form.

(p) HHSC, or its designee, schedules the IDR conference on or before the 22nd calendar day after HHSC received the IDR request. If the provider is unable to participate on the scheduled date, the IDR conference is cancelled, and the IDR continues as though no conference had been requested.

(q) The IDR conference is an opportunity for an eligible provider to present important information previously submitted in the provider's rebuttal letter or responses to shared information. The provider and the State survey agency may attend any IDR conference, but neither party may present information that was not previously included in the Statement of Licensing Violations, submitted in the provider's rebuttal letter, or responses to shared information as set forth in subsections (j), (k), and (l) of this section.

(r) HHSC completes the IDR no later than the 30th calendar day after its receipt of the provider's written request. The IDR recommendation shall be in writing, address all the issues raised by the provider, and explain the rationale for the recommendation.

(s) The time frames designated in the IDR process shall be computed in accordance with Texas Government Code §311.014.

(t) HHSC may issue and enforce operating procedures concerning the IDR process and the conduct of IDR participants. IDR participants must comply with any such procedures. HHSC may deny an IDR request if the information submitted is incorrect, incomplete, or otherwise not in compliance with applicable HHSC operating procedures.

(u) The State survey agency may revise an IDR recommendation as a result of a review and subsequent determination that the IDR recommendation may violate a federal law, regulation, or State of Texas rule.

(v) HHSC may contract with an appropriate disinterested organization to adjudicate disputes between a provider and the State survey agency. Texas Government Code §2009.053 does not apply to the selection of an appropriate disinterested organization. For purposes of this section, a reference to HHSC with respect to HHSC's role in the IDR process includes an organization with which HHSC has contracted for the purpose of performing IDR, and a contracted organization is bound by the same requirements to which HHSC is bound for the purposes of conducting an IDR. The results of an IDR conducted by a contracted organization serve only as a recommendation to the State survey Agency. The State survey Agency maintains responsibility for and makes final IDR decisions.

Source Note: The provisions of this §393.3 adopted to be effective February 15, 2021, 46 TexReg 1031; amended to be effective March 20, 2023, 48 TexReg 1553