New Long Term Care Facility Closure Notice Requirements

Centers for Medicare & Medicaid Services (“CMS”) published an interim final rule on February 18, 2011 to implement the Affordable Care Act’s provision regarding notice for closure of long term care facilities. The interim final rule requires a Health Facility Administrator (“HFA”) to submit to the U.S. Secretary of Health and Human Services (“Secretary”), the state LTC Ombudsman, residents and legal representatives of residents’ written notification of impending closure of a facility. The interim final rule is effective on March 23, 2011 and may be later revised based on comments received by CMS.

Notice of impending closure must be issued 60 days prior to the closure date or on a date not later than determined by the Secretary in the event of the facility’s participation in Medicare and/or Medicaid. The notice must include a plan for transfer and relocation of residents and include “assurances” that residents are transferred to the most appropriate facility in terms of quality, services and location, taking the resident’s needs and choices. In addition, the HFA must ensure that no new residents are admitted to the facility after the notification of closure is issued. Facilities must also develop and have a policy and procedure in place to ensure that the HFA performs the required facility closure notice duties described above.

The facility notice closure requirement is personal to HFAs and failure to comply may result in Civil Monetary Penalties being levied against the HFA (minimum of: $500 – first violation,
$1,500 – second violation and $3,000 – third violation) and potential exclusion from participation in Federal health care programs. Facilities will also be subject to deficiency citation during surveys for failure to maintain policies and procedures designed to ensure the HFA’s completion of the facility notice closure requirement. Comments on the interim final rule are being accepted by CMS until 5:00 p.m. on April 19, 2011. For more information about how to comment, see the left column on page 9504 of the Proposed Rule, or contact Zach Cattell at 317-616-9001 or zcattell@ihca.org.