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(1) Upon receipt by the department of a timely written request for informal dispute resolution complying with the requirements of this chapter, the department shall designate an individual who was not directly involved in the certification survey for which informal dispute resolution was requested to serve as the presiding official.

(2) If the facility has requested an in-person or telephone conference, the presiding official will schedule the informal dispute resolution conference and provide at least ten calendar days advance notice to the facility and state survey agency of the date, time and place or telephone conference call information set for the informal dispute resolution. Each party to the informal dispute resolution shall be given one reasonable opportunity to reschedule a telephonic or in-person informal dispute resolution conference.

(3) If the facility has requested a record review, the presiding official will set a deadline for submission of substantiating or relevant information and materials by the facility and the state survey agency.

(4) All in-person conferences will be held in Helena, Montana.

(5) All facility costs associated with the informal dispute resolution process, including, but not limited to, witness and attorney fees, shall be borne by the facility, regardless of the outcome of the informal dispute resolution.

(6) The presiding official will conduct the informal dispute resolution conference in a way that allows for an orderly presentation of facts. The presiding official may:

(a) limit testimony and/or rebuttal of information by either the facility or the state survey agency that is irrelevant, redundant or beyond the scope of the informal dispute resolution;

(b) determine whether facility and state survey agency witnesses will be allowed to ask each other questions and limit those questions in accordance with (6)(a);

(c) ask questions as deemed appropriate;

(d) request additional documentation; and

(e) permit a facility or the state survey agency to submit additional substantiating materials at the informal dispute resolution in the case of an in-person or telephone conference, or after the deadline set by the presiding official in the case of a record review, but only if the presiding officer is satisfied that, despite diligent efforts, the facility or the state survey agency was unable to comply with the time limits for submission of materials established by this chapter. All additional substantiating materials presented must meet the requirements of ARM 37.5.606, and two copies of the materials must be presented, one for the presiding official and one for the other party.

(7) The informal dispute resolution will be confined to disputes over the factual basis of the deficiency citations and the subsequent application of federal or state laws and regulations governing the survey and certification processes. The informal dispute resolution may not be used to challenge the:

(a) adequacy, accuracy, or fairness of the state or federal regulations;

(b) classification of deficiencies as to scope and severity unless the state survey agency is alleging substandard quality of care or immediate jeopardy;

(c) remedies imposed as a result of the certification survey;

(d) survey team compliance with a requirement of the survey process unless this failure by the survey team has a significant impact on the relevance of the deficiency; or

(e) consistency of the survey team in citing deficiencies in previous surveys of this facility or of other facilities.

(8) After reviewing all materials and information presented by the parties, the presiding official shall determine whether:

(a) the facility has demonstrated that any disputed deficiency should not have been cited;

(b) whether any deficiency should be deleted, amended, or modified;

(c) whether the scope and severity of any deficiency should be changed;

(d) whether any deficiency should be cited under a different tag; and

(e) whether any additional deficiencies should be cited.

(9) The presiding official shall provide the state survey agency and the facility with a written opinion stating his or her recommendation.

(10) The deficiency citation form shall be amended as specified in ARM 37.5.607 based on the determination of the presiding official or the determination of CMS. If any amendments are made, the amended deficiency citation form will be sent to the facility and CMS.

(11) Determinations made by the presiding official shall be limited to the particular facts surrounding the disputed deficiency citation. No precedent will be set by the presiding official's determination, and no presiding official determination shall be binding upon the state survey agency in subsequent surveys or informal dispute resolution proceedings, nor shall any such determination be binding upon the presiding official presiding over any subsequent informal dispute resolution proceeding.

History: 53-6-109, 53-6-113, MCA; IMP, 53-6-109, 53-6-113, MCA; NEW, 2004 MAR p. 736, Eff. 4/9/04.

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