441—81.55 (249A) State and federal disagreements involving findings not in agreement when there is no immediate jeopardy. This rule applies when CMS and the department of inspections and appeals disagree over findings of noncompliance or application of remedies.
	 81.55(1) Disagreement over whether facility has met requirements.
	  a.   	 The department of inspections and appeals’ finding of noncompliance takes precedence when:
	 (1) 	 CMS finds the facility is in substantial compliance with the participation requirements; and
	 (2) 	 The department of inspections and appeals finds the facility has not achieved substantial compliance.
	  b.   	 CMS’s findings of noncompliance take precedence when:
	 (1) 	 CMS finds that a facility has not achieved substantial compliance; and
	 (2) 	 The department of inspections and appeals finds the facility is in substantial compliance with the participation requirements.
	  c.   	 When CMS’s survey findings take precedence, CMS may:
	 (1) 	 Impose any of the alternative remedies specified in rule 441—81.34(249A);
	 (2) 	 Terminate the provider agreement subject to the applicable conditions of rule 441—81.54(249A); and
	 (3) 	 Stop federal financial participation to the department for a nursing facility.
	 81.55(2) Disagreement over decision to terminate.
	  a.   	 CMS’s decision to terminate the participation of a facility takes precedence when:
	 (1) 	 Both CMS and the department of inspections and appeals find that the facility has not achieved substantial compliance; and
	 (2) 	 CMS, but not the department of inspections and appeals, finds that the facility’s participation should be terminated. CMS will permit continuation of payment during the period prior to the effective date of termination, not to exceed six months, if the applicable conditions of rule 441—81.54(249A) are met.
	  b.   	 The department of inspections and appeals’ decision to terminate a facility’s participation and the procedures for appealing the termination take precedence when:
	 (1) 	 The department of inspections and appeals, but not CMS, finds that a facility’s participation should be terminated; and
	 (2) 	 The department of inspections and appeals’ effective date for the termination of the nursing facility’s provider agreement is no later than six months after the last day of survey.
	 81.55(3) Disagreement over timing of termination of facility. The department of inspections and appeals’ timing of termination takes precedence if it does not occur later than six months after the last day of the survey when both CMS and the department of inspections and appeals find that:
	  a.   	 A facility is not in substantial compliance; and
	  b.   	 The facility’s participation should be terminated.
	 81.55(4) Disagreement over remedies.
	  a.   	 When CMS or the department of inspections and appeals, but not both, establishes one or more remedies, in addition to or as an alternative to termination, the additional or alternative remedies will also apply when:
	 (1) 	 Both CMS and the department of inspections and appeals find that a facility has not achieved substantial compliance; and
	 (2) 	 Both CMS and the department of inspections and appeals find that no immediate jeopardy exists.
	  b.   	 When CMS and the department of inspections and appeals establish one or more remedies, in addition to or as an alternative to termination, only the CMS remedies apply when both CMS and the department of inspections and appeals find that a facility has not achieved substantial compliance.
	 81.55(5) One decision. Regardless of whether CMS’s or the department of inspections and appeals’ decision controls, only one noncompliance and enforcement decision is applied to the Medicaid agreement, and for a dually participating facility, that same decision will apply to the Medicare agreement.