CMS Direction Regarding IDR’s
The Section for Long Term Care had a conversation with CMS in 2016 regarding the IDR/IIDR Review Release Process. CMS Regions V and VII recently provided guidance on this topic. The Missouri IDR process for certified homes has been to send the Primaris decision letter along with our own letter upon review and completion of the IDR process. We have been instructed by CMS that the third party (Primaris) decision and rationale can no longer be shared with the providers. Following is an excerpt of this guidance. The S&C referenced below is attached for your review.
S&C Memo 12-08-NH provided Interim Advance Guidance for IIDRs and provided some information that is one of the bases for our decision to take this approach: “[T]he documents and written report created by the Independent IDR entity, the State and CMS, other than the final decision of the Independent IDR process, are pre-decisional and deliberative, and therefore are protected from disclosure under the deliberative process privilege. See EPA v. Mink, 410 U.S. 73, 88 (1973); see also 5 U.S.C. § 522(b)(5) (inter-agency and intra-agency memoranda and letters generated before adoption of final agency policy or decision are protected from disclosure under Exemption 5 of the Freedom of Information Act).” (Please note the correct U.S. Code citation is actually 5 U.S.C § 552(b)(5).) Therefore, CMS asserts this privilege to not disclose documents used in our deliberative processes. Although the quoted language from the S&C Memo is not in SOM Chapter 7, the rationale remains sound.
We have communicated with the IDR Contractor about this change. Primaris will no longer prepare a letter to the provider and will simply provide their decision and rationale through memo format. Our office will continue to review the Primaris information and prepare a letter to the providers with the final decision. The Section will then forward the SLCR Decision letter to the provider. At no time can we disclose the Primaris decision and rationale. This change applies only to certified facilities. The process will not change for those facilities that are state-licensed only.