Final Rule Published on Notice of Facility Closure

On March 19th the Centers for Medicare & Medicaid Services (CMS) published the Final Rule on Requirements for Long-Term Care Facilities related to “Notice of Facility Closure” in the Federal Register with an effective date of April 18, 2013.   This rule adopts technical changes to the interim final rule, published on February 18, 2011, that implemented Section 6113 of the Affordable Care Act (ACA), requiring that individuals serving as Administrators of a SNF or NF provide written notification of impending closure and plan for relocation of residents at least 60 days prior to the closure or, if the Secretary terminates the facility’s participation in Medicare or Medicaid, not later than the date the Secretary determines appropriate.  The full text of the rule can be found here.  

According to an analysis provided by AHCA, the final rule has not changed substantively from the interim rule, but does include several clarifications and technical corrections.  

Clarifications include:

  • If there is a more stringent requirement (i.e., an earlier advance notification deadline) in place at the state level, then compliance with that requirement would be sufficient to meet this Federal requirement.   No pre-emption issue arises in this case because the facility complies with both state and federal law by complying with the longer notification period.
  • While there is no requirement for notice to physicians or other practitioners providing services in the facilities, CMS notes that a resident’s physician is required to be involved in the discharge plan and indicates that they will incorporate language in the SOM to specify that a resident’s practitioner must be involved as soon as the notice of closure has been sent to residents to assure that the resident is transferred to the most appropriate facility or other setting.
  • The State Survey Agency acts on behalf of the Secretary.  As such, the facility or administrator is required to provide written notification to the State Survey Agency, in addition to residents, their legal representatives or other responsible parties, and the state LTC Ombudsman.
  • CMS did not intend to make a LTC Administrator personally liable to family members or visitors for harm resulting from a failure to notify and notes that the terminology used in the interim rule, referring to “unjustified harm” does not create either a Federal or state standard of care.   CMS adds that they do not believe that any level of harm, whether based on intent or negligence, is acceptable.

Corrections include:

  • Revised language to require that written notification be submitted to the State Survey Agency in place of the reference contained in the interim rule to notification to “the Secretary”
  • A correction to the text adding the phrase, “that has been approved by the state” as a descriptor to the required plan for relocation of residents.  (CMS notes that they inadvertently omitted language regarding the statutory requirement for state approval of the plan.)
  • A technical correction to clarify that the appeal rights for administrators apply to both SNF and NF administrators.
  • Correction of several typographical errors.