Medicare and Medicaid Programs; Requirements for Long-Term Care (LTC) Facilities; Notice of Facility Closure, 9503-9512 [2011-3806]
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Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Rules and Regulations
Final rule; correcting
amendment.
ACTION:
In the November 17, 2010
issue of the Federal Register, we
published a final rule that set forth an
update to the Home Health Prospective
Payment System (HH PPS) rates,
including: The national standardized
60-day episode rates, the national pervisit rates, the nonroutine medical
supply (NRS) conversion factors, and
the low utilization payment amount
(LUPA) add-on payment amounts,
under the Medicare prospective
payment system for HHAs. This
correcting amendment corrects a
technical error identified in the
November 17, 2010 final rule.
DATES: Effective Date: This correcting
amendment is effective February 18,
2011.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Randy Throndset, (410) 786–0131.
SUPPLEMENTARY INFORMATION:
I. Background
In FR Doc. 2010–27778 (75 FR 70372),
the final rule entitled ‘‘Medicare
Program; Home Health Prospective
Payment System Rate Update for
Calendar Year 2011; Changes in
Certification Requirements for Home
Health Agencies and Hospices’’
(hereinafter referred to as the CY 2011
HH PPS final rule), there was a
technical error that is identified and
corrected in the regulations text of this
correcting amendment. The provisions
of this correcting amendment are
effective January 1, 2011.
II. Summary of Errors in the
Regulations Text
On page 70464 of the CY 2011 HH
PPS final rule, we made a technical
error in the regulation text of
§ 424.22(b)(1). That language
inadvertently deleted paragraphs
(b)(1)(i) and (ii). Accordingly, we are
adding those paragraphs in this
correcting amendment.
List of Subjects in 42 CFR Part 424
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III. Waiver of Proposed Rulemaking
and Delay in Effective Date
We ordinarily publish a notice of
proposed rulemaking in the Federal
Register to provide a period for public
comment before the provisions of a rule
take effect in accordance with section
553(b) of the Administrative Procedure
Act (APA) (5 U.S.C. 553(b)). However,
we can waive this notice and comment
procedure if the Secretary finds, for
good cause, that the notice and
comment process is impracticable,
unnecessary, or contrary to the public
interest, and incorporates a statement of
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the finding and the reasons therefore in
the notice.
Section 553(d) of the APA ordinarily
requires a 30-day delay in effective date
of final rules after the date of their
publication in the Federal Register.
This 30-day delay in effective date can
be waived, however, if an agency finds
for good cause that the delay is
impracticable, unnecessary, or contrary
to the public interest, and the agency
incorporates a statement of the findings
and its reasons in the rule issued.
Our policy on timing and signature of
recertification for home health services
in the calendar year (CY) 2011 final rule
has previously been subjected to notice
and comment procedures. These
corrections are consistent with the
discussion of this policy in the CY 2011
final rule and do not make substantive
changes to this policy. This correcting
amendment merely corrects technical
errors in the regulations text of the CY
2011 final rule. As a result, this
correcting amendment is intended to
ensure that the CY 2011 final rule
accurately reflects the policy adopted in
the final rule. Therefore, we find that
undertaking further notice and comment
procedures to incorporate these
corrections into the final rule is
unnecessary and contrary to the public
interest.
For the same reasons, we are also
waiving the 30-day delay in effective
date for this correcting amendment. We
believe that it is in the public interest
to ensure that the CY 2011 final rule
accurately states our policy on timing
and signature of recertification for home
health services. Thus delaying the
effective date of these corrections would
be contrary to the public interest.
Therefore, we also find good cause to
waive the 30-day delay in effective date.
Emergency medical services, Health
facilities, Health professions, Medicare,
Reporting and recordkeeping
requirements.
Accordingly, the Centers for Medicare
& Medicaid Services corrects 42 CFR
part 424 by making the following
correcting amendment:
PART 424—CONDITIONS FOR
MEDICARE PAYMENT
1. The authority citation for part 424
continues to read as follows:
■
Authority: Secs. 1102 and 1871 of the
Social Security Act (42 U.S.C. 1302 and
1395hh).
2. Amend § 424.22 by adding
paragraphs (b)(1)(i) and (b)(1)(ii) to read
as follows:
■
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9503
§ 424.22 Requirements for home health
services.
*
*
*
*
*
(b) * * *
(1) * * *
(i) Beneficiary elected transfer; or
(ii) Discharge and return to the same
HHA during the 60-day episode.
*
*
*
*
*
Authority: (Catalog of Federal Domestic
Assistance Program No. 93.773, Medicare—
Hospital Insurance; and Program No. 93.774,
Medicare—Supplementary Medical
Insurance Program)
Dated: February 10, 2011.
Dawn L. Smalls,
Executive Secretary to the Department.
[FR Doc. 2011–3779 Filed 2–17–11; 8:45 am]
BILLING CODE 4120–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Parts 483, 488, 489 and 498
[CMS–3230–IFC]
RIN 0938–AQ09
Medicare and Medicaid Programs;
Requirements for Long-Term Care
(LTC) Facilities; Notice of Facility
Closure
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Interim final rule with comment
period.
AGENCY:
This interim final rule
amends the requirements that a longterm care (LTC) facility must meet in
order to qualify to participate as a
skilled nursing facility (SNF) in the
Medicare program, or a nursing facility
(NF) in the Medicaid program. These
requirements implement section 6113 of
the Affordable Care Act to ensure that,
among other things, in the case of a LTC
facility closure, individuals serving as
administrators of a SNF or NF provide
written notification of the impending
closure and a plan for the relocation of
residents at least 60 days prior to the
impending closure or, if the Secretary
terminates the facility’s participation in
Medicare or Medicaid, not later than the
date the Secretary determines
appropriate.
SUMMARY:
Effective Date: March 23, 2011.
Comments: To be assured
consideration, comments must be
received at one of the addresses
provided below, no later than 5 p.m. on
April 19, 2011.
DATES:
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In commenting, please refer
to file code CMS–3230–IFC. Because of
staff and resource limitations, we cannot
accept comments by facsimile (FAX)
transmission.
You may submit comments in one of
four ways (please choose only one of the
ways listed):
1. Electronically. You may submit
electronic comments on this regulation
to https://www.regulations.gov. Follow
the instructions under the ‘‘More Search
Options’’ tab.
2. By regular mail. You may mail
written comments to the following
address only: Centers for Medicare &
Medicaid Services, Department of
Health and Human Services, Attention:
CMS–3230–IFC, P.O. Box 8010,
Baltimore, MD 21244–8010.
Please allow sufficient time for mailed
comments to be received before the
close of the comment period.
3. By express or overnight mail. You
may send written comments to the
following address only: Centers for
Medicare & Medicaid Services,
Department of Health and Human
Services, Attention: CMS–3230–IFC,
Mail Stop C4–26–05, 7500 Security
Boulevard, Baltimore, MD 21244–1850.
4. By hand or courier. If you prefer,
you may deliver (by hand or courier)
your written comments before the close
of the comment period to either of the
following addresses:
a. For delivery in Washington, DC—
Centers for Medicare & Medicaid
Services, Department of Health and
Human Services, Room 445–G, Hubert
H. Humphrey Building, 200
Independence Avenue, SW.,
Washington, DC 20201.
(Because access to the interior of the
Hubert H. Humphrey Building is not
readily available to persons without
Federal government identification,
commenters are encouraged to leave
their comments in the CMS drop slots
located in the main lobby of the
building. A stamp-in clock is available
for persons wishing to retain a proof of
filing by stamping in and retaining an
extra copy of the comments being
filed.).
b. For delivery in Baltimore, MD—
Centers for Medicare & Medicaid
Services, Department of Health and
Human Services, 7500 Security
Boulevard, Baltimore, MD 21244–1850.
If you intend to deliver your
comments to the Baltimore address,
please call telephone number (410) 786–
9994 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses
indicated as appropriate for hand or
courier delivery may be delayed and
received after the comment period.
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ADDRESSES:
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Submission of comments on
paperwork requirements. You may
submit comments on this document’s
paperwork requirements by following
the instructions at the end of the
‘‘Collection of Information
Requirements’’ section in this document.
For information on viewing public
comments, see the beginning of the
SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT:
Kadie Thomas, (410) 786–0468. Mary
Collins, (410) 786–3189.
SUPPLEMENTARY INFORMATION: Inspection
of Public Comments: All comments
received before the close of the
comment period are available for
viewing by the public, including any
personally identifiable or confidential
business information that is included in
a comment. We post all comments
received before the close of the
comment period on the following Web
site as soon as possible after they have
been received: https://
www.regulations.gov. Follow the search
instructions on that Web site to view
public comments.
Comments received timely will also
be available for public inspection as
they are received, generally beginning
approximately 3 weeks after publication
of a document, at the headquarters of
the Centers for Medicare & Medicaid
Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday
through Friday of each week from
8:30 a.m. to 4 p.m. To schedule an
appointment to view public comments,
phone 1–800–743–3951.
I. Legislative and Regulatory
Background
According to the Centers for Medicare
and Medicaid Services (CMS) data, as of
April 2010, there are 15,713 long-term
care (LTC) facilities (commonly referred
to as nursing homes) in the U.S. LTC
facilities are also referred to as skilled
nursing facilities (SNFs) in the Medicare
program and as nursing facilities (NFs)
in the Medicaid program. For the past
decade, CMS Online Survey
Certification and Reporting (OSCAR)
data have shown a decline in the
number of nursing homes, from 17,508
in 1999 to 15,713 in 2010. In 2009, there
were 231 nursing home closures. In
2010, there were 191 closures.
LTC facility closures have
implications related to access to care,
the quality of care, availability of
services, and the overall health of
residents. Therefore, having an
organized process facilities must follow
in the event of a nursing home closure
would protect residents’ health and
safety, and make the transition as
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smooth as possible for residents, as well
as family members and facility staff.
A. Current Regulatory Requirements for
Notification of Closure to Residents of
LTC Facilities
Currently, requirements for the
protection of residents’ rights in the case
of facility closure are found at 42 CFR
483.12(a), Transfer and Discharge.
Section § 483.12(a)(2), Transfer and
discharge requirements, prohibits
facilities from transferring or
discharging a resident from the facility,
except under certain circumstances,
including cessation of operations.
Section § 483.12(a)(4), Notice before
transfer, requires that before a facility
transfers or discharges a resident, the
facility must notify the resident and, if
known, a family member or legal
representative of the resident, of the
transfer or discharge and the reasons for
the move in writing and in a language
and manner they understand.
Section § 483.12(a)(5), Timing of the
notice, requires facilities to inform
residents 30 days before the resident is
transferred or discharged, except in the
case of certain specific circumstances
that include, for example, an immediate
transfer or discharge due to a resident’s
urgent medical needs. In such cases, the
notification must be made ‘‘as soon as is
practicable.’’ State laws regarding
notification of LTC facility closures
vary, with the majority of States
requiring 30 days notice prior to
closure. However, there are some States
that require up to 90 days notice, such
as Vermont, Illinois and Pennsylvania
(see (https://www.sph.umn.edu/hpm/
nhregsPlus/category_attachments/
category_admission_discharge_transfer_
rights.pdf#pagemode=
bookmarks&page=1 for information on
these States and general background on
State regulations pertaining to nursing
facility admission, transfer, and
discharge rights).
Section § 483.12(a)(6), Contents of the
notice, specifies what must be included
in such notifications, for example the
location to which the resident is being
transferred or discharged. Finally,
§ 483.12(a)(7), Orientation for transfer or
discharge, requires a facility to provide
sufficient preparation and orientation to
residents to ensure safe and orderly
transfer or discharge from the facility.
Section § 488.426 Transfer of
residents, or closure of the facility and
transfer of residents, gives authority to
the State in emergency situations.
Section 488.426 (a), which is not being
revised in this rule, requires that, in an
emergency, the State has the authority
to—(1) Transfer Medicaid and Medicare
residents to another facility; or (2) Close
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the facility and transfer the Medicaid
and Medicare residents to another
facility.
If a facility closes permanently due to
an emergency, the administrator is
required to provide proper notification.
However, if the State temporarily
relocates residents during an emergency
with the expectation that the residents
will return to the facility, we would not
regard this situation to be a facility
closure and would not require the
administrator to provide notification.
For example, CMS recently received
notification that a facility’s air
conditioning failed during a heat wave.
The State ordered the facility to relocate
all of its residents while the problem
was being investigated but did not close
the facility. Since the States customarily
provide notification under § 488.426 for
emergency-related closures, CMS is not
proposing the administrator be required
to provide such notification.
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B. Requirements for Notification of
Closure to Other Individuals or Entities
Currently, there are no Federal
regulations requiring that a LTC facility
notify the Secretary or a State’s LTC
ombudsman prior to closure of a LTC
facility and there are no Federal
requirements for submission of a plan
for closure of a LTC facility to any
individual or entity.
C. Legislative Requirements and the
Affordable Care Act Amendments
Sections 1819(b)(1)(A) of the Social
Security Act (the Act) for SNFs and
1919(b)(1)(A) of the Act for NFs both
state that a SNF/NF must care for its
residents in such a manner and in such
an environment as will promote
maintenance or enhancement of the
quality of life of each resident.
Sections 1819(c)(2)(A) and
1919(c)(2)(A) of the Act state that in
general, with certain specified
exceptions, a SNF/NF must permit each
resident to remain in the facility and
must not transfer or discharge the
resident from the facility.
Section 6102 of the Affordable Care
Act of 2010 (Pub. L. 111–148, March 23,
2010) added a new section 1128I to the
Act to promote greater accountability for
LTC facilities (defined as skilled nursing
facilities and nursing facilities pursuant
to new subsection 1128I(a) of the Act).
Section 6113 of the Affordable Care Act
added an additional subsection 1128I(h)
to the Act, setting forth certain
requirements for LTC facility closures,
effective March 23, 2011, as follows:
1. Notification of Facility Closure
Section 1128I(h)(1)(A)(i) of the Act, as
added by the Affordable Care Act, states
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that in general, any individual who is
the administrator of the facility must
submit to the Secretary, the State LTC
ombudsman, residents of the facility,
and the legal representatives of such
residents or other responsible parties,
written notification of an impending
facility closure.
For informational purposes, LTC
ombudsmen are advocates for residents
of nursing homes, board and care homes
and assisted living facilities.
Ombudsmen provide information about
how to find a facility and what to do to
get quality care. They are trained to
resolve problems, and will assist
individuals with complaints; however,
unless an ombudsman is given
permission, these matters are kept
confidential. Under the Federal Older
Americans Act, every State is required
to have an Ombudsman Program that
addresses complaints and advocates for
improvements in the LTC system
(https://www.ltcombudsman.org/).
For voluntary or State-mandated
closures, the required written
notification must not be later than 60
days prior to the date of such closure.
Section 1128I(h)(1)(A)(ii) of the Act
states that if the Secretary terminates the
facility’s participation under this title,
notification must be provided no later
than the date that the Secretary
determines appropriate. Section
1128I(h)(1)(B) of the Act states that the
administrator must also ensure that the
facility does not admit any new
residents on or after the date on which
such written notification is submitted.
Finally, section 1128I(h)(1)(C) of the
Act states that LTC facilities must
include in their closure notices a plan,
approved by the State, for the transfer
and adequate relocation of residents of
the facility by a specified date prior to
closure. The notices must also include
assurances that the residents will be
transferred to the most appropriate
facility or other setting in terms of
quality, services, and location, taking
into consideration the needs, choice,
and best interests of each resident.
2. Relocation
Section 1128I(h)(2)(A) of the Act
requires a State to ensure, before a
facility in the State closes, that all
residents of the facility have been
successfully relocated to another facility
or an alternative home and communitybased setting. Because this requirement
applies to States and not the LTC
facility, we have not included it in this
rule for LTC facilities. We will
implement this statutory requirement
through sub-regulatory guidance to be
published in the State Operations
Manual (SOM) as interpretive guidance
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9505
for surveyors. We are requesting
comments on the best means of
implementing this provision.
Section 1128I(h)(2)(B) of the Act
authorizes the Secretary to continue to
make payments under this title with
respect to residents of a facility that has
submitted the required notifications
under section 1128I(h)(1) during the
period beginning on the date such
notification is submitted and ending on
the date on which the resident is
successfully relocated.
3. Sanctions
Section 1128I(h)(3) of the Act, as
added by the Affordable Care Act, states
that any individual who is the
administrator of the facility that fails to
comply with the requirements set out in
the subsection shall be subject to a civil
monetary penalty of up to $100,000,
may be subject to exclusion from
participation in any Federal health care
program (as defined in section 1128B(f)
of the Act), and shall be subject to any
other penalties that may be prescribed
by law.
Additionally, Section 1128I(h)(4) of
the Act ‘‘Procedure,’’ states that the
provisions of section 1128A of the Act
(other than subsections (a) and (b) and
the second sentence of subsection (f))
shall apply to a civil money penalty or
exclusion under paragraph (3) in the
same manner as such provisions apply
to a penalty or proceeding under section
1128A(a) of the Act.
Subsection 6113(c) of the Affordable
Care Act requires that the provisions of
new subsection 1128I(h) of the Act
become effective one year after the date
of enactment—that is, March 23, 2011.
Therefore, because of the statutory
deadline, we are implementing this rule
as an interim final rule with comment
period.
II. Health Disparities
CMS is committed to developing
regulation in a manner that focuses on
improving the quality of health care for
all persons. Therefore, we believe that it
is important in the preamble of
regulations to discuss our goal of
addressing health care disparities and to
solicit comments on how our
regulations could be used to address
such disparities.
In 1985, the Secretary of the
Department of Health and Human
Services issued a landmark report that
revealed large and persistent gaps in
health status among Americans of
different racial and ethnic groups and
served as an impetus for addressing
health inequalities for racial and ethnic
minorities in the U.S. This report led to
the establishment of the Office of
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Minority Health (OMH) within the
Department of Health and Human
Services (HHS), with a mission to
address these disparities. National
concern for these differences, termed
health disparities, and the associated
excess mortality and morbidity have
been expressed as a high priority in
national health status reviews,
including Healthy People 2000 and
2010.
Since that time, research has
extensively documented the
pervasiveness of racial and ethnic
disparities in health care and has led to
the acknowledgement of racial and
ethnic disparities as a national problem.
As a result, more populations have been
identified as vulnerable, which has
necessitated the development of
programs and strategies to reduce
disparities for vulnerable populations,
as well as the emergence of new
leadership to address such disparities.
Currently, vulnerable populations can
be defined by race/ethnicity, socioeconomic status, geography, gender, age,
disability status, sexual orientation, and
other populations identified to be at-risk
for health disparities. Other populations
at risk may include persons with visual
or hearing problems, cognitive
perceptual problems, language barriers,
pregnant women, infants, and persons
with disabilities or special health care
needs.
Although there has been much
attention at the national level to ideas
for reducing health disparities in
vulnerable populations, we remain
vigilant in our efforts to improve health
care quality for all persons by improving
health care access and by eliminating
real and perceived barriers to care that
may contribute to less than optimal
health outcomes for vulnerable
populations. For example, we are aware
that immunization rates remain low
among some minorities. Despite the
long-term implementation of some
strategies, such as the use of language
translators in hospitals, health literacy
and its impact on health care outcomes
continues to be in the forefront.
We are always seeking better ways to
address the needs of vulnerable
populations; therefore, we are
specifically requesting comments in
regard to how our LTC facility closure
requirements could be used to address
disparities among facility residents.
III. Provisions of the Interim Final Rule
With Comment Period
Based on the provisions of section
1128I(h) of the Act, as added by the
Affordable Care Act, we are revising the
current requirements for LTC facilities,
as discussed below. Under this new
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provision the administrator of the
facility will be subject to sanctions for
failure to provide proper notice
according to these new provisions.
However, in some cases, an
administrator has no control over
closure procedures. For instance, an
administrator may be hired to oversee a
facility’s impending closure, although
he or she was not present when the
decision was made to close, or the
administrator was employed fewer than
60 days prior to closure. In regards to
LTC facilities, this is the first regulation
where civil monetary penalties would
be imposed on an individual. CMS
considered the impact that this rule
would have on an administrator that
would be in a facility for an insufficient
amount of time to comply with this
regulation. We believe that the Congress
intended CMS to use sanctions as a
method to assure that the requirements
in the statue be implemented. The
language that the Congress used was ‘‘up
to $100,000.’’ They used this language to
have a maximum amount, but intended
for CMS to determine the amount of the
sanctions. Due to the many possible
combinations of violations that could be
cited gradations would be limited to the
number of offenses. Any sanctions that
have been levied against an
administrator would also be reviewed
by the State’s licensing agency for
possible disciplinary action including
suspension and termination of the
administrator’s license. Because of the
unique Federal laws applicable to the
operation of IHS and Tribal LTC
facilities under the authority of 25
U.S.C. 1621(d), the implementation of
this IFC by such facilities will be
developed in consultation with the IHS
and Tribal programs.
A. Transfer and Discharge § 483.12(a)
We are revising § 483.12(a) by
redesignating current paragraph (a)(8) as
paragraph (a)(9) and adding a new
§ 483.12(a)(8) to require that, in the case
of a facility closure, any individual who
is the administrator of the facility must
provide written notification prior to the
impending closure to the Secretary, the
State LTC ombudsman, the residents of
the facility, and the legal representatives
of such resident or other responsible
parties, as well as provide a plan for the
transfer and adequate relocation of the
residents, in accordance with new
§ 483.75(r).
We are also revising § 483.12(a)(5)(i)
‘‘Timing of the notice’’, which allows for
exceptions to the 30-day notification
requirement for closures. We are adding
a statement that newly added paragraph
(a)(8), which generally states who must
file a notice and plan and to whom the
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notice and plan must be filed in the
event of impending closure, is also an
exception to the timing requirements
found in paragraph (a)(5)(i).
B. Facility Closure-Administrator
§ 483.75(r)
We are adding a new subsection (r) to
§ 483.75. At § 483.75(r)(1), we are
requiring that any individual who is the
administrator of the facility must submit
to the Secretary, the State LTC
ombudsman, residents of the facility,
and the legal representative of such
residents (or other responsible parties)
written notification of an impending
closure at least 60 days prior to the date
of closure; or, in the case of a facility
where the Secretary terminates the
facility’s participation in the Medicare
and/or Medicaid programs, not later
than the date that the Secretary
determines appropriate for such
notification.
To understand how the Secretary may
determine a date for a notification when
the Secretary has terminated the
facility’s participation in Medicare,
Medicaid, or both, we are providing
background on facility requirements to
participate in these programs. The
Secretary may terminate a facility’s
participation if the facility fails in any
area outlined in § 489.53(a)(1) through
(a)(15). For instance, at § 489.53(a)(3),
failure to continue to meet the
appropriate conditions of participation
or requirements for SNFs and NFs set
forth elsewhere in this chapter would be
grounds for termination by CMS. In
addition, the timing of the notification
of termination by the Secretary may
vary based on the justification for the
closure. Section 489.53(d)(1) provides
the basic timing rule for notice of
termination by CMS, which is 15 days
before the effective date of termination
of the provider agreement. Section
489.53(d)(2)(ii) provides the timing rule
for closures that are the result of
deficiencies that may pose immediate
jeopardy, which is 2 days prior to the
effective date of the termination of the
provider agreement.
In addition, at § 483.75(r)(2) we are
requiring any individual who is the
administrator of the LTC facility to
ensure that the facility does not admit
any new residents on or after the date
on which such written notification is
submitted to the Secretary, the State
LTC ombudsman, and the residents,
and/or their representatives or other
responsible parties.
At § 483.75(r)(3), we are requiring that
any individual who is the administrator
of a LTC facility include in the written
notice of closure, a plan that has been
approved by the State for the transfer
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and adequate relocation of the residents
of the facility by a date that would be
specified prior to closure, including
assurances that the residents would be
transferred to the most appropriate
facility or other setting in terms of
quality, services, and location, taking
into consideration the needs, choice,
and best interests of each resident.
We would expect that the closure
plan would include sufficient detail to
clearly identify the steps the facility
would take, and the individual
responsible for ensuring the steps are
successfully carried out. As an example,
the plan might include: (among other
things):
• Assessment of residents’ care needs
and the provision of appropriate
services.
• A plan for communicating with
staff and/or unions.
• Continuation of appropriate staffing
levels and paychecks at the facility.
• Provision of necessary supplies.
• Identification of available facilities
to which residents could be transferred,
along with an assessment of the quality
of care provided by these facilities (for
example, Minimum Data Set (MDS)
OSCAR data).
• A process for relocation of
residents.
• Operation and management of the
facility and oversight of those managing
the facility.
• The roles and responsibilities of the
facility’s Administrator or replacement.
• Sources of supplemental funding to
assist in keeping a facility open until the
residents are transferred.
• A plan for communicating with the
Secretary, the State LTC ombudsman,
residents and legal representatives of
the residents or other responsible
parties.
C. Facility Closure § 483.75(s)
We are adding § 483.75(s) to require
that the facility have in place policies
and procedures that will ensure the
administrator’s duties and
responsibilities involve providing the
appropriate notices. While this
provision is not explicitly required by
section 1128I(h), we believe that it is
implicitly authorized by the terms of
section 6113 of the Affordable Care Act.
Moreover, it is explicitly permitted by
the general rulemaking authority of
sections 1819(d)(4)(B) and 1919(d)(4)(B)
of the Act, which permit the Secretary
to issue rules relating to the health,
safety and well-being of residents, and
rules concerning physical facilities. The
facility will not be sanctioned for
noncompliance with this rule; however,
it will be cited for a deficiency during
the survey process.
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D. Transfer of Residents, or Closure of
the Facility and Transfer of Residents
§ 488.426
submitted and ending on the date on
which the resident is successfully
relocated.
At § 488.426, we are revising
paragraph (b) to include a crossreference to the new requirements at
§ 483.75(r). We are also adding
paragraph (c) Required notifications
when a facility’s provider agreement is
terminated to address the required
notifications when a facility closes.
G. Notice to CMS § 489.52(a)
We are revising § 489.52(a)(1) to
provide an exception for SNFs,
redesignating paragraph (a)(2) as
paragraph (a)(3), and outlining the
requirement specific to SNF
notifications to CMS in new paragraph
(a)(2).
At § 489.52(a)(2), we are requiring that
a SNF provider that wishes to terminate
its agreement must send CMS written
notice of its intent at least 60 days prior
to the date of closure, in accordance
with § 483.75(r)(1)(i).
E. Administrator Sanctions: Long-Term
Care Facility Closures § 488.446
As required by Section 6113 of the
Affordable Care Act, new § 488.446 will
subject any administrator of a facility
that fails to comply with the
requirements at § 483.75(r) to sanctions.
Such individual—
(1) Would be subject to a civil
monetary penalty as follows: A
minimum of $500 for the first offense;
a minimum of $1,500 for the second
offense; and a minimum of $3,000 for
the third and subsequent offenses. The
three levels of civil monetary penalties
(CMPs) represent a minimum amount
for each offense; however, an
administrator could be subject to higher
amounts of CMPs (not to exceed
$100,000) based on criteria that CMS
will identify in interpretative
guidelines. If it is determined that an
administrator of record completely fails
to take the necessary and timely actions
to adhere to the Notice of Facility
Closure thus causing unjustified harm to
the resident, family, and visitors, then
the administrator could be subject to
additional CMPs. For example, the
administrator abandons his or her
responsibility as set forth in the Notice
of Facility Closure for the purpose of
personal gain (financial) by devoting his
or her energies to keeping the facility
open rather than working on a safe and
timely closure.
(2) Could be subject to exclusion from
participation in any Federal health care
program (as defined in section 1128B(f)
of the Act); and
(3) Would be subject to any other
penalties that may be prescribed by law.
F. Period of Continued Payments
§ 488.450(c)
At § 488.450(c), we are renumbering
this section to add paragraphs (1) and
(2). Current § 488.450(c) corresponds
with new § 488.450(c)(1), and new
paragraph (2) provides that the
Secretary may, as deemed appropriate,
continue to make payments under this
title with respect to residents of an LTC
facility that has submitted a notification
of closure during the period beginning
on the date such notification is
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H. Skilled Nursing Facility Closure
§ 489.53(d)(3)
At § 489.53(d)(3), we are revising and
redesignating the section to state that
when CMS terminates a facility’s
participation under Medicare or
Medicaid, CMS will determine the date
of the required notifications. We are also
revising § 489.53(d)(1) to reflect this
change.
I. Exceptions to Effective Date of
Termination § 489.55
When a notification is made as
required at § 483.75(r), the new
requirements authorize the Secretary to
continue to make payments to the SNF
or, for a NF, to the State, as the
Secretary considers appropriate, during
the period beginning at the time the
notification is submitted and until the
resident is successfully relocated. We
renumbered this section to redesignate
paragraphs (a) and (b) as paragraphs (1)
and (2), and added a new paragraph (b)
to implement this requirement.
J. Scope and Applicability § 498.3
We are adding § 498.3(a)(2)(iv) to
clarify that CMS may also impose
sanctions on NF administrators for
noncompliance with § 483.75(r). In
addition, we are adding a new
subparagraph § 498.3(a)(3)(ii) to indicate
that the appeals process applies to NFs
as well as SNFs.
We are adding to § 498.3(b) Initial
determinations by CMS, a new
paragraph (18) to indicate that a
sanction imposed on a SNF or NF
administrator for noncompliance with
the requirements set out at § 483.75(r)
constitutes an initial determination of
the agency.
K. Appeal Rights § 498.5
At § 498.5, we are adding paragraph
(m) Appeal rights of an individual who
is the administrator of a SNF or NF to
establish appeal rights for administrator
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sanctions for noncompliance with the
requirements set out at § 483.75(r).
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IV. Response to Comments
Because of the large number of public
comments we normally receive on
Federal Register documents, we are not
able to acknowledge or respond to them
individually. We will consider all
comments we receive by the date and
time specified in the DATES section of
this preamble, and, when we proceed
with a subsequent document, we will
respond to the comments in the
preamble to that document.
V. Waiver of Proposed Rulemaking
We ordinarily publish a notice of
proposed rulemaking in the Federal
Register and invite public comment on
the interim final rule in accordance with
5 U.S.C. 553(b) of the Administrative
Procedure Act (APA). The notice of
proposed rulemaking includes a
reference to the legal authority under
which the rule is proposed, and the
terms and substances of the interim
final rule or a description of the subjects
and issues involved. This procedure can
be waived, however, if an agency finds
good cause that a notice-and-comment
procedure is impracticable,
unnecessary, or contrary to the public
interest and incorporates a statement of
the finding and its reasons in the rule
issued.
Section 6113 of the Affordable Care
Act, effective March 23, 2011, added
new section 1128I(h) of the Act, which
requires that the administrator of a
facility follow specified procedures
prior to closure of a facility. The Act
requires any individual who is the
administrator to provide written
notification to the Secretary, the State
LTC ombudsman, residents of the
facility, and the legal representatives of
such residents or other responsible
parties, of an impending facility closure.
As mentioned above, LTC facility
closures have implications for access,
the quality of care provided, availability
of services, and the overall health of
residents, necessitating that an
organized process be followed in the
event of a nursing home closure. The
Congress mandated at subsection
6113(c) of the Affordable Care Act that
these amendments take effect one year
after the date of the enactment of this
Act.
We believe that, in mandating a 1 year
effective date, the Congress was
acknowledging the importance of
protecting the vulnerable elderly
residents of LTC facilities. Advance
notice of facility closure allows a
resident and his or her legal
representative or interested family
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member to prepare for the move to
another facility, which can prove very
traumatic to the resident. A move
uproots a resident from a familiar
environment, including a roommate and
other residents, as well as assigned care
providers, sometimes including the
resident’s physician. LTC facility
closures require critical adjustments and
create difficult issues for residents and
their families and representatives. The
Affordable Care Act under section
1128I(h) mandates specific procedures
in the event of a closure of a nursing
home. These procedures help protect
the resident, the resident’s family, and
visitors because it requires the facility to
provide an organized plan that allows
the resident, family, and visitors to
make the necessary adjustments within
a reasonable time frame. At present, no
Federal rule exists for facility closure.
Delaying the implementation of the rule
would continue to cause unjustified
harm to the resident, family, and
visitors.
We believe that to publish this rule as
a proposed rule would jeopardize the
safety of these individuals and the
fulfillment of the mandated
implementation date of March 23, 2011.
Thus, we find that the Congressional
directive renders adherence to the
normal notice of proposed rulemaking
requirements under the APA both
impracticable and contrary to the public
interest. Therefore, we find good cause
to waive the notice of proposed
rulemaking and to issue this final rule
on an interim basis. We are providing a
60-day public comment period. In
accordance with section 1871(a)(3) of
the Act, all Medicare interim final rules
must be finalized within three years.
VI. Collection of Information
Requirements
Under the Paperwork Reduction Act
of 1995, we are required to provide
60-day notice in the Federal Register
and solicit public comment before a
collection of information requirement is
submitted to the Office of Management
and Budget (OMB) for review and
approval. In order to fairly evaluate
whether an information collection
should be approved by OMB, section
3506(c)(2)(A) of the Paperwork
Reduction Act of 1995 requires that we
solicit comment on the following issues:
• The need for the information
collection and its usefulness in carrying
out the proper functions of our agency.
• The accuracy of our estimate of the
information collection burden.
• The quality, utility, and clarity of
the information to be collected.
• Recommendations to minimize the
information collection burden on the
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affected public, including automated
collection techniques.
We are soliciting public comment on
each of these issues for the following
sections of this document that contain
information collection requirements
(ICRs):
The revisions at § 483.12(a)(8) require
any individual who is the administrator
of the facility to submit to the Secretary,
the State LTC ombudsman, residents
and their legal representatives or other
responsible parties, written notification
of an impending closure at least 60 days
prior to such closure; or not later than
the date that the Secretary deems
appropriate in the case of a facility
where the Secretary terminates the
facility’s participation under this title.
Current regulations at § 483.12(a)(5)
require notification of transfer or
discharge to a resident and, if known, a
family member or legal representative,
in writing. Except in certain specified
circumstances, notification must be
made at least 30 days prior to transfer
or discharge. Facility closure is not a
circumstance that permits a facility to
make notification in fewer than 30 days.
Although the requirement extends the
time period for notification from 30
days to 60 days (or a date determined
by the Secretary in case of CMS
termination of the facility), we do not
believe the change in the time period for
reporting imposes any additional
burden. In addition, notification of
transfer or discharge to residents and
their representatives is already a usual
and customary business practice.
Therefore, in accordance with 5 CFR
1320.3(b)(2), we will not include this
activity in the ICR burden analysis.
Although there are no existing Federal
regulatory requirements for LTC
facilities to notify other individuals or
entities of an impending closure,
according to feedback to CMS from State
surveyors for LTC facilities, nearly all
States already require LTC facilities to
notify the State within 30 to 90 days.
Because we have found that
notifications of impending closure are a
standard business practice for most LTC
facilities, we believe that this
requirement would impose burden on
only a small number of facilities.
Each facility that does not already
notify the State and the State LTC
ombudsman must develop a process for
doing so. We estimate that the burden
associated with complying with this
requirement would be due to the
resources required to develop a process
for notifying the State and the State LTC
ombudsman and the time it takes to
notify those entities. We expect that
such a notification process would
involve the administrator of the facility
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and administrative support person and
an attorney to review the plan.
We anticipate that, on average, it will
take 7 hours for a total burden of
$5,584,400.16.
The revisions at § 483.75(r)(2) require
that the administrator of the facility
ensure that the facility does not admit
any new residents on or after the date
written notification is submitted. We do
not anticipate any ICR burden
associated with this requirement.
Section 483.75(r)(3) requires the
administrator of the facility to include
in the notice the plan for the transfer
and adequate relocation of the residents
of the facility by a date that is specified
by the State prior to closure, including
assurances that the residents would be
transferred to the most appropriate
facility or other setting in terms of
quality, services, and location, taking
into consideration the needs, choice,
and best interests of each resident.
Section 483.75(s) requires the facility
to have in place policies and procedures
to ensure that the administrator’s duties
and responsibilities include the
provision of the appropriate notices in
the event of a facility closure.
In our experience, based on feedback
to CMS from State surveyors of LTC
facilities, most facilities already have
plans for transfer of residents, regardless
of whether closure of the facility is
expected. For example, most facilities
have plans for transfer of residents to
another facility in the event of an
emergency. Also based on our
experience, nearly all facilities
anticipating closure develop plans for
the relocation of residents and other
closure-related activities. Many States
require such plans. For example,
Vermont requires that the State
licensing agency and the LTC
ombudsman be notified by the
administrator of the facility 90 days
prior to the proposed date of closure. In
addition, the facility administrator is
required to provide to the State
licensing agency and LTC ombudsman a
written transfer plan 60 days prior to
closure.
Because we have found that transfer
plans are a standard business practice
for most LTC facilities, we believe that
this requirement would impose burden
on only a small number of facilities.
Each facility that does not already
have a plan in place must develop a
plan for the transfer and adequate
relocation of residents of the facility. We
estimate that the burden associated with
complying with this requirement would
be due to the resources required to
develop and review a new plan or, if
necessary, modify an existing plan for
the transfer of residents in the event of
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facility closure. We expect that
development of such a plan would
involve the administrator of the facility,
an administrative support person, and
an attorney to review the plan.
LTC facilities are currently required to
have a plan under § 483.12 for discharge
and transfer of residents. A facility must
provide sufficient preparation and
orientation to residents to ensure safe
and orderly transfer or discharge from
the facility. Therefore, we anticipate
that, on average, it will take 3 hours to
develop the plan, 1 hour to ensure that
the administrator’s duties include
policies and procedures relating to
facility closures, 2 hours for an
administrative support person to
prepare the document(s), and 1 hour for
an attorney to review the document(s),
for a total estimated burden of 7 hours
per facility. We also believe that the
burden would remain approximately the
same for the first year and beyond.
Currently, there are 15,713 LTC
facilities in the U.S. Based on an hourly
rate of $58.17 for a nursing home
administrator, we estimate that
development of the plan and
incorporating facility closure policies
and procedures into the administrator’s
duties would cost $3,656,100.80 (15,713
facilities × 4 hours per facility) × $58.17
per hour). Based on an hourly rate of
$20.11 for an administrative assistant,
we estimate that preparing the plan
documents would cost $631,976.86
((15,713 facilities × 2 hours per facility)
× $20.11 per hour). Finally, based on an
hourly rate of $82.50 for an attorney, we
estimate that reviewing the plan
document would cost $1,296,322.50
((15,713 facilities × 1 hour per facility)
× $82.50 per hour). The salary estimates
include 33 percent of the mean hourly
rate for overhead and fringe benefits
(Source: BLS.gov).
If you comment on these information
collection and recordkeeping
requirements, please submit your
comments electronically as specified in
the ADDRESSES section of this interim
final rule.
VII. Regulatory Impact Analysis
A. Statement of Need
Executive Order 13563 directs
agencies to consider and discuss
qualitatively values that are difficult to
quantify, including equity, human
dignity, fairness and distributive
impacts. This IFC will implement the
Affordable Care Act under section
1128I(h) that mandates specific
procedures in the event of a closure of
a nursing home. LTC facility closure
procedures have implications related to
access to care, the quality of care, and
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9509
the overall health of residents. These
procedures help protect the resident, the
resident’s family, and visitors because it
requires the facility to provide an
organized plan that allows the resident,
family, and visitors to make the
necessary adjustments within a
reasonable time frame.
B. Overall Impact
1. Executive Order 12866
We have examined the impacts of this
rule as required by Executive Order
12866 on Regulatory Planning and
Review (September 30, 1993), Executive
Order 13563 on Improving Regulation
and Regulatory Review (February 2,
2011), the Regulatory Flexibility Act
(RFA) (September 19, 1980, Pub. L. 96–
354), section 1102(b) of the Social
Security Act, the Unfunded Mandates
Reform Act of 1995 (March 22, 1995;
Pub. L. 104–4), Executive Order 13132
on Federalism (August 4, 1999) and the
Congressional Review Act (5 U.S.C.
804(2)).
Executive Order 12866 directs
agencies to assess all costs and benefits
of available regulatory alternatives and,
if regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety effects, distributive impacts,
and equity). A regulatory impact
analysis (RIA) must be prepared for
major rules with economically
significant effects ($100 million or more
in any 1 year). This rule does not qualify
as a major rule as the estimated
economic impact. We estimate that
these requirements will cost $355
(5,584,400/15,713) per facility the first
year and each year thereafter.
2. Regulatory Flexibility Act (RFA)
The RFA requires agencies to analyze
options for regulatory relief of small
businesses, if a rule has a significant
impact on a substantial number of small
entities. For purposes of the RFA, small
entities include small businesses,
nonprofit organizations, and small
government jurisdictions. The great
majority of hospitals and most other
health care providers and suppliers are
small entities, either by being nonprofit
organizations or by meeting the SBA
definition of a small business (having
revenues of less than $7.0 million to
$34.5 million in any 1 year). For
purposes of the RFA, most physician
practices, hospitals and other providers
are small entities, either by nonprofit
status or by qualifying as small
businesses under the Small Business
Administration’s size standards
(revenues of less than $7.0 to $34.5
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million in any 1 year). States and
individuals are not included in the
definition of a small entity. For details,
see the Small Business Administration’s
Web site at https://ecfr.gpoaccess.gov/
cgi/t/text/text-idx?c=ecfr&
sid=2465b064ba6965
cc1fbd2eae60854b11&
rgn=div8&view=text&node=13:
1.0.1.1.16.1.266.9&idno=13. A rule has a
significant economic impact on the
small entities it affects, if it significantly
affects their total costs or revenues.
Under statute we are required to assess
the compliance burden the regulation
will impose on small entities. Generally,
we analyze the burden in terms of the
impact it will have on entities’ costs if
these are identifiable or revenues. As a
matter of sound analytic methodology,
to the extent that data are available, we
attempt to stratify entities by major
operating characteristics such as size
and geographic location. If the average
annual impact on small entities is 3 to
5 percent or more, it is to be considered
significant.
We estimate that these requirements
will cost $355 ($5,584,400/15,713
facilities) per facility initially and $355
($5,584,400/15,713 facilities) thereafter.
This clearly is much below 1 percent;
therefore, we do not anticipate it to have
a significant impact. We do not have
any data related to the number of LTC
facilities that have facility closure plans
in place; however, we are aware through
our experience with LTC facilities and
the survey process that most facilities
have a plan for closure either because
they are required to have such a plan in
place at the State level or because of
their understanding that this is a
standard business practice.
require spending in any 1 year of $100
million in 1995 dollars, updated
annually for inflation. In 2010, that
threshold is approximately $135
million. This rule would not have a
significant impact on the governments
mentioned or on private sector costs.
The estimated economic effect of this
rule is $5,584,400 the first year and
$5,584,400 thereafter. These estimates
are derived from our analysis of burden
associated with these requirements in
section IV, ‘‘Collection of Information
Requirements.’’
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has Federalism implications.
This rule would not have any effect on
State or local governments.
3. Social Security Act
In addition, section 1102(b) of the
Social Security Act requires us to
prepare a regulatory impact analysis if
a rule may have a significant impact on
the operations of a substantial number
of small rural hospitals. This analysis
must conform to the provisions of
section 604 of the RFA. For the
purposes of section 1102(b) of the Act,
we define a small rural hospital as a
hospital that is located outside of a
metropolitan statistical area and has
fewer than 100 beds. This rule would
impact only SNFs and NFs. Therefore,
the Secretary has determined that this
interim final rule would not have any
impact on the operations of small rural
hospitals.
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
also requires that agencies assess
anticipated costs and benefits before
issuing any rule whose mandates
2. Effects on Other Providers
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C. Anticipated Effects
1. Effects on LTC Facilities
The purpose of this rule is to ensure
that, among other things, in the case of
a facility closure, any individual who is
the administrator of the facility provide
written notification of the closure and
the plan for the relocation of residents
at least 60 days prior to the impending
closure or, if the Secretary terminates
the facility’s participation in Medicare
or Medicaid, not later than the date the
Secretary determines appropriate. This
would protect residents’ health and
safety and make the transition to closure
as smooth as possible for residents, as
well as family members and facility
staff.
This rule is expected to allow for a
smoother transition when a facility
closes. It requires facilities and facility
administrators to prepare in advance for
closure so, in the event of a closure, the
facility is equipped to protect resident
rights and continue to provide quality
care to residents who must be relocated.
This interim final rule would also
improve coordination of care between
the LTC facility where the residents are
transferred from and the LTC facility
they are transferred to. We anticipate
that only LTC facilities would be
affected.
3. Effects on the Medicare and Medicaid
Programs
This rule would require that CMS and
the State be notified in the case of a
facility closure and provides them with
the ability to make determinations
regarding the timing of termination of
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provider agreements and continuation
of payments to LTC facilities. This rule
would also support efforts directed
toward broad-based improvements in
the quality of health care furnished by
Medicare and Medicaid providers.
D. Alternatives Considered
We considered the effects of not
addressing specific requirements for the
notification of facility closures in LTC
facilities, although these requirements
are statutory and only allow limited
discretion on the part of the Secretary.
However, we do believe that to improve
quality and ensure consistency in the
provision of care in LTC facilities, it is
important to ensure that residents rights
are protected in LTC facilities and that
they are relocated appropriately, taking
into consideration the needs, choice and
best interest of each resident should a
facility closure take place. We expect
that these requirements would result in
improvement in the quality of services
provided to LTC residents when they
need to be involuntarily relocated.
E. Conclusion
This interim final rule ensures that,
among other things, in the case of a
facility closure, any individual who is
the administrator of the facility provide
written notification of the closure and
the plan for the relocation of residents
at least 60 days prior to the impending
closure or, if the Secretary terminates
the facility’s participation in Medicare
or Medicaid, not later than the date the
Secretary determines appropriate.
It is consistent with the requirements
set forth in section 6113 of the
Affordable Care Act and the
Administration’s efforts toward broadbased improvements in the quality of
health care furnished by Medicare and
Medicaid providers.
This interim final rule clarifies the
responsibility of the administrator of a
facility, which is to ensure that the
specified parties are notified of an
impending closure in a specified
timeframe and identifies penalties for
non-compliance. It also clarifies the
responsibility of the administrator of the
facility to ensure that no new residents
are admitted after written notice is
submitted and that the notice of closure
must include a plan for transfer and
adequate relocation to another facility.
These facilities must take into
consideration the needs, choices and
best interests of each resident.
In accordance with the provisions of
Executive Order 12866, this regulation
was reviewed by the Office of
Management and Budget.
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residents or other responsible parties, as
well as the plan for the transfer and
adequate relocation of the residents, as
required at § 483.75(r).
*
*
*
*
*
■ 3. Section 483.75 is amended by
adding a new paragraph (r) and
paragraph (s) to read as follows:
List of Subjects
42 CFR Part 483
Grant programs—Health, Health
facilities, Health professions, Health
records, Medicaid, Medicare, Nursing
homes, Nutrition, Reporting and
recordkeeping requirements, Safety.
42 CFR Part 488
Administrative practice and
procedure, Health facilities, Medicare,
Reporting and recordkeeping
requirements.
42 CFR Part 489
Health facilities, Medicare, Reporting
and recordkeeping requirements.
42 CFR Part 498
Administrative practice and
procedure, Health facilities, Health
professions, Medicare, Reporting and
recordkeeping requirements.
For the reasons set forth in the
preamble, the Centers for Medicare &
Medicaid Services amends 42 CFR
Chapter IV as set forth below:
PART 483—REQUIREMENTS FOR
STATES AND LONG TERM CARE
FACILITIES
1. The authority citation for part 483
is revised to read as follows:
■
Authority: Secs. 1102, 1128I and 1871 of
the Social Security Act (42 U.S.C. 1302 and
1395hh).
Subpart B—Requirements for Long
Term Care Facilities
2. Section 483.12 is amended by—
A. Revising paragraph (a)(5)(i);
B. Redesignating paragraph (a)(8) as
paragraph (a)(9).
■ C. Adding a new paragraph (a)(8).
The revisions and additions read as
follows:
■
■
■
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§ 483.12 Admission, transfer and
discharge rights.
(a) * * *
(5) Timing of the notice. (i) Except as
specified in paragraphs (a)(5)(ii) and
(a)(8) of this section, the notice of
transfer or discharge required under
paragraph (a)(4) of this section must be
made by the facility at least 30 days
before the resident is transferred or
discharged.
*
*
*
*
*
(8) Notice in advance of facility
closure. In the case of facility closure,
the individual who is the administrator
of the facility must provide written
notification prior to the impending
closure to the Secretary, the State LTC
ombudsman, residents of the facility,
and the legal representatives of the
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13:14 Feb 17, 2011
Jkt 223001
§ 483.75
Administration.
*
*
*
*
*
(r) Facility closure-Administrator.
Any individual who is the administrator
of the facility must:
(1) Submit to the Secretary, the State
LTC ombudsman, residents of the
facility, and the legal representatives of
such residents or other responsible
parties, written notification of an
impending closure:
(i) At least 60 days prior to the date
of closure; or
(ii) In the case of a facility where the
Secretary or a State terminates the
facility’s participation in the Medicare
and/or Medicaid programs, not later
than the date that the Secretary
determines appropriate;
(2) Ensure that the facility does not
admit any new residents on or after the
date on which such written notification
is submitted; and
(3) Include in the notice the plan for
the transfer and adequate relocation of
the residents of the facility by a date
that would be specified by the State
prior to closure, including assurances
that the residents would be transferred
to the most appropriate facility or other
setting in terms of quality, services, and
location, taking into consideration the
needs, choice, and best interests of each
resident.
(s) Facility closure. The facility must
have in place policies and procedures to
ensure that the administrator’s duties
and responsibilities involve providing
the appropriate notices in the event of
a facility closure, as required at
paragraph (r) of this section.
PART 488—SURVEY, CERTIFICATION,
AND ENFORCEMENT PROCEDURES
4. The authority citation for part 488
is revised to read as follows:
■
Authority: Secs. 1102, 1128I and 1871 of
the Social Security Act, unless otherwise
noted (42 U.S.C. 1302 and 1395hh); Pub. L.
110–149, 121 Stat. 1820.
Subpart F—Enforcement of
Compliance for Long-Term Care
Facilities With Deficiencies
5. Section 488.426 is amended by—
A. Revising paragraph (b).
B. Adding a new paragraph (c).
The revisions and additions read as
follows:
■
■
■
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
9511
§ 488.426 Transfer of residents, or closure
of the facility and transfer of residents.
*
*
*
*
*
(b) Required transfer when a facility’s
provider agreement is terminated. When
the State or CMS terminates a facility’s
provider agreement, the State will
arrange for the safe and orderly transfer
of all Medicare and Medicaid residents
to another facility, in accordance with
§ 483.75(r) of this chapter.
(c) Required notifications when a
facility’s provider agreement is
terminated. When the State or CMS
terminates a facility’s provider
agreement, CMS determines the
appropriate date for notification, in
accordance with § 483.75(r)(1)(ii) of this
chapter.
6. Add a new § 488.446 to read as
follows:
■
§ 488.446 Administrator sanctions: longterm care facility closures.
Any individual who is or was the
administrator of a facility and fails or
failed to comply with the requirements
at § 483.75(r) of this chapter—
(a) Will be subject to a civil monetary
penalty as follows:
(1) A minimum of $500 for the first
offense.
(2) A minimum of $1,500 for the
second offense.
(3) A minimum of $3,000 for the third
and subsequent offenses.
(b) May be subject to exclusion from
participation in any Federal health care
program (as defined in section 1128B(f)
of the Act); and
(c) Will be subject to any other
penalties that may be prescribed by law.
7. Section 488.450 is amended by
revising paragraph (c) to read as follows:
■
§ 488.450 Continuation of payments to a
facility with deficiencies.
*
*
*
*
*
(c) Period of continued payments—
(1) Non-compliance. If the conditions in
paragraph (a)(1) of this section are met,
CMS may continue payments to a
Medicare facility or the State for a
Medicaid facility with noncompliance
that does not constitute immediate
jeopardy for up to 6 months from the
last day of the survey.
(2) Facility closure. In the case of a
facility closure, the Secretary may, as
the Secretary determines appropriate,
continue to make payments with respect
to residents of a long-term care facility
that has submitted a notification of
closure during the period beginning on
the date such notification is submitted
to CMS and ending on the date on
which the resident is successfully
relocated.
*
*
*
*
*
E:\FR\FM\18FER1.SGM
18FER1
9512
Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Rules and Regulations
PART 489—PROVIDER AGREEMENTS
AND SUPPLIER APPROVAL
8. The authority for part 489 is revised
to read as follows:
■
Authority: Secs. 1102, 1128I and 1819,
1820(e), 1861, 1864(m), 1866, 1869, and 1871
of the Social Security Act (42 U.S.C. 1302,
1351i–3, 1395x, 1395aa(m), 1395cc, 1395ff,
and 1395hh).
Subpart E—Termination of Agreement
and Reinstatement After Termination
9. Section 489.52 is amended by
revising paragraph (a) to read as follows:
■
§ 489.52
Termination by the provider.
(a) Notice to CMS. (1) A provider that
wishes to terminate its agreement,
except for a SNF as specified in
paragraph (a)(2) of this section, must
send CMS written notice of its intention
in accordance with paragraph (a)(3) of
this section.
(2) A SNF that wishes to terminate its
agreement due to closure of the facility
must send CMS written notice of its
intention at least 60 days prior to the
date of closure, as required at § 483.75(r)
of this chapter.
(3) The notice may state the intended
date of termination which must be the
first day of the month.
*
*
*
*
*
■ 10. Section § 489.53 is amended by—
■ A. Revising paragraph (d)(1).
■ B. Redesignating paragraph (d)(3) and
paragraph (d)(4) as paragraph (d)(4) and
paragraph (d)(5).
■ C. Adding a new paragraph (d)(3).
The revisions and additions read as
follows:
§ 489.53
Termination by CMS.
*
*
*
*
(d) Notice of termination—(1) Timing:
basic rule. Except as provided in
paragraphs (d)(2) and (d)(3) of this
section, CMS gives the provider notice
of termination at least 15 days before the
effective date of termination of the
provider agreement.
*
*
*
*
*
(3) Notice of LTC facility closure. In
the case of a facility where CMS
terminates a facility’s participation
under Medicare or Medicaid in the
absence of immediate jeopardy, CMS
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*
VerDate Mar<15>2010
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Jkt 223001
determines the appropriate date for
notification.
*
*
*
*
*
■ 11. Section § 489.55 is revised to read
as follows:
§ 489.55 Exceptions to effective date of
termination.
(a) Payment is available for up to
30 days after the effective date of
termination for:
(1) Inpatient hospital services
(including inpatient psychiatric hospital
services) and posthospital extended care
services (except as specified in
paragraph (b) of this section with
respect to LTC facilities) furnished to a
beneficiary who was admitted before the
effective date of termination; and
(2) Home health services and hospice
care furnished under a plan established
before the effective date of termination.
(b) The Secretary may, as the
Secretary determines is appropriate,
continue to make payments with respect
to residents of a long-term care facility
that has submitted a notification of
closure as required at § 483.75(r) of this
chapter during the period beginning on
the date such notification is submitted
and ending on the date on which the
residents are successfully relocated.
PART 498—APPEAL PROCEDURES
FOR DETERMINATIONS THAT AFFECT
PARTICIPATION IN THE MEDICARE
PROGRAM AND FOR
DETERMINATIONS THAT AFFECT THE
PARTICIPATION OF ICFs/MR AND
CERTAIN NFs IN THE MEDICAID
PROGRAM
12. The authority citation for part 498
is revised to read as follows:
■
Authority: Secs. 1102, 1128I and 1871 of
the Social Security Act (42 U.S.C. 1302 and
1395hh).
Subpart A—General Provisions
13. Section 498.3 is amended by—
A. Adding a new paragraph (a)(2)(iv).
B. Revising paragraph (a)(3)
introductory text and (a)(3)(ii).
■ C. Adding a new paragraph (b)(18).
The revisions and additions read as
follows:
■
■
■
§ 498.3
Scope and applicability.
(a) * * *
PO 00000
Frm 00018
(2) * * *
(iv) CMS’s determination to impose
sanctions on the individual who is the
administrator of a NF for failure to
comply with the requirements at
§ 483.75(r) of this chapter.
(3) The following parts of this chapter
specify the applicability of the
provisions of this part 498 to sanctions
or remedies imposed on the indicated
entities or individuals:
*
*
*
*
*
(ii) Part 488, subpart E (§ 488.330(e))
and subpart F (§ 488.446)—for SNFs and
NFs and their administrators.
*
*
*
*
*
(b) * * *
(18) The level of noncompliance
found by CMS with respect to the
failure of an individual who is the
administrator of a SNF to comply with
the requirements at § 483.75(r) of this
chapter, and the appropriate sanction to
be imposed under § 488.446 of this
chapter.
*
*
*
*
*
■ 14. Section 498.5 is amended by
adding a new paragraph (m) to read as
follows:
§ 498.5
Appeal rights.
*
*
*
*
*
(m) Appeal rights of an individual
who is the administrator of a SNF. An
individual who is the administrator of a
SNF who is dissatisfied with the
decision of CMS to impose sanctions
authorized under § 488.446 of this
chapter is entitled to a hearing before an
ALJ, to request Board review of the
hearing decision, and to seek judicial
review of the Board’s decision.
(Catalog of Federal Domestic Assistance
Program No. 93.773, Medicare—Hospital
Insurance; and Program No. 93.774,
Medicare—Supplementary Medical
Insurance Program)
Dated: November 18, 2010.
Donald M. Berwick,
Administrator, Centers for Medicare &
Medicaid Services.
Approved: February 15, 2011.
Kathleen Sebelius,
Secretary.
[FR Doc. 2011–3806 Filed 2–17–11; 8:45 am]
BILLING CODE 4120–01–P
Fmt 4700
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E:\FR\FM\18FER1.SGM
18FER1
Agencies
[Federal Register Volume 76, Number 34 (Friday, February 18, 2011)]
[Rules and Regulations]
[Pages 9503-9512]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3806]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 483, 488, 489 and 498
[CMS-3230-IFC]
RIN 0938-AQ09
Medicare and Medicaid Programs; Requirements for Long-Term Care
(LTC) Facilities; Notice of Facility Closure
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Interim final rule with comment period.
-----------------------------------------------------------------------
SUMMARY: This interim final rule amends the requirements that a long-
term care (LTC) facility must meet in order to qualify to participate
as a skilled nursing facility (SNF) in the Medicare program, or a
nursing facility (NF) in the Medicaid program. These requirements
implement section 6113 of the Affordable Care Act to ensure that, among
other things, in the case of a LTC facility closure, individuals
serving as administrators of a SNF or NF provide written notification
of the impending closure and a plan for the relocation of residents at
least 60 days prior to the impending closure or, if the Secretary
terminates the facility's participation in Medicare or Medicaid, not
later than the date the Secretary determines appropriate.
DATES: Effective Date: March 23, 2011.
Comments: To be assured consideration, comments must be received at
one of the addresses provided below, no later than 5 p.m. on April 19,
2011.
[[Page 9504]]
ADDRESSES: In commenting, please refer to file code CMS-3230-IFC.
Because of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one
of the ways listed):
1. Electronically. You may submit electronic comments on this
regulation to https://www.regulations.gov. Follow the instructions under
the ``More Search Options'' tab.
2. By regular mail. You may mail written comments to the following
address only: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-3230-IFC, P.O. Box 8010,
Baltimore, MD 21244-8010.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address only: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-3230-IFC, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
4. By hand or courier. If you prefer, you may deliver (by hand or
courier) your written comments before the close of the comment period
to either of the following addresses:
a. For delivery in Washington, DC--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Room 445-G, Hubert
H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC
20201.
(Because access to the interior of the Hubert H. Humphrey Building
is not readily available to persons without Federal government
identification, commenters are encouraged to leave their comments in
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing
by stamping in and retaining an extra copy of the comments being
filed.).
b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, 7500 Security
Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address,
please call telephone number (410) 786-9994 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
Submission of comments on paperwork requirements. You may submit
comments on this document's paperwork requirements by following the
instructions at the end of the ``Collection of Information
Requirements'' section in this document.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Kadie Thomas, (410) 786-0468. Mary
Collins, (410) 786-3189.
SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments
received before the close of the comment period are available for
viewing by the public, including any personally identifiable or
confidential business information that is included in a comment. We
post all comments received before the close of the comment period on
the following Web site as soon as possible after they have been
received: https://www.regulations.gov. Follow the search instructions on
that Web site to view public comments.
Comments received timely will also be available for public
inspection as they are received, generally beginning approximately 3
weeks after publication of a document, at the headquarters of the
Centers for Medicare & Medicaid Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an appointment to view public comments,
phone 1-800-743-3951.
I. Legislative and Regulatory Background
According to the Centers for Medicare and Medicaid Services (CMS)
data, as of April 2010, there are 15,713 long-term care (LTC)
facilities (commonly referred to as nursing homes) in the U.S. LTC
facilities are also referred to as skilled nursing facilities (SNFs) in
the Medicare program and as nursing facilities (NFs) in the Medicaid
program. For the past decade, CMS Online Survey Certification and
Reporting (OSCAR) data have shown a decline in the number of nursing
homes, from 17,508 in 1999 to 15,713 in 2010. In 2009, there were 231
nursing home closures. In 2010, there were 191 closures.
LTC facility closures have implications related to access to care,
the quality of care, availability of services, and the overall health
of residents. Therefore, having an organized process facilities must
follow in the event of a nursing home closure would protect residents'
health and safety, and make the transition as smooth as possible for
residents, as well as family members and facility staff.
A. Current Regulatory Requirements for Notification of Closure to
Residents of LTC Facilities
Currently, requirements for the protection of residents' rights in
the case of facility closure are found at 42 CFR 483.12(a), Transfer
and Discharge.
Section Sec. 483.12(a)(2), Transfer and discharge requirements,
prohibits facilities from transferring or discharging a resident from
the facility, except under certain circumstances, including cessation
of operations.
Section Sec. 483.12(a)(4), Notice before transfer, requires that
before a facility transfers or discharges a resident, the facility must
notify the resident and, if known, a family member or legal
representative of the resident, of the transfer or discharge and the
reasons for the move in writing and in a language and manner they
understand.
Section Sec. 483.12(a)(5), Timing of the notice, requires
facilities to inform residents 30 days before the resident is
transferred or discharged, except in the case of certain specific
circumstances that include, for example, an immediate transfer or
discharge due to a resident's urgent medical needs. In such cases, the
notification must be made ``as soon as is practicable.'' State laws
regarding notification of LTC facility closures vary, with the majority
of States requiring 30 days notice prior to closure. However, there are
some States that require up to 90 days notice, such as Vermont,
Illinois and Pennsylvania (see (https://www.sph.umn.edu/hpm/nhregsPlus/category_attachments/category_admission_discharge_transfer_rights.pdf#pagemode=bookmarks&page=1 for information on these States
and general background on State regulations pertaining to nursing
facility admission, transfer, and discharge rights).
Section Sec. 483.12(a)(6), Contents of the notice, specifies what
must be included in such notifications, for example the location to
which the resident is being transferred or discharged. Finally, Sec.
483.12(a)(7), Orientation for transfer or discharge, requires a
facility to provide sufficient preparation and orientation to residents
to ensure safe and orderly transfer or discharge from the facility.
Section Sec. 488.426 Transfer of residents, or closure of the
facility and transfer of residents, gives authority to the State in
emergency situations. Section 488.426 (a), which is not being revised
in this rule, requires that, in an emergency, the State has the
authority to--(1) Transfer Medicaid and Medicare residents to another
facility; or (2) Close
[[Page 9505]]
the facility and transfer the Medicaid and Medicare residents to
another facility.
If a facility closes permanently due to an emergency, the
administrator is required to provide proper notification. However, if
the State temporarily relocates residents during an emergency with the
expectation that the residents will return to the facility, we would
not regard this situation to be a facility closure and would not
require the administrator to provide notification. For example, CMS
recently received notification that a facility's air conditioning
failed during a heat wave. The State ordered the facility to relocate
all of its residents while the problem was being investigated but did
not close the facility. Since the States customarily provide
notification under Sec. 488.426 for emergency-related closures, CMS is
not proposing the administrator be required to provide such
notification.
B. Requirements for Notification of Closure to Other Individuals or
Entities
Currently, there are no Federal regulations requiring that a LTC
facility notify the Secretary or a State's LTC ombudsman prior to
closure of a LTC facility and there are no Federal requirements for
submission of a plan for closure of a LTC facility to any individual or
entity.
C. Legislative Requirements and the Affordable Care Act Amendments
Sections 1819(b)(1)(A) of the Social Security Act (the Act) for
SNFs and 1919(b)(1)(A) of the Act for NFs both state that a SNF/NF must
care for its residents in such a manner and in such an environment as
will promote maintenance or enhancement of the quality of life of each
resident.
Sections 1819(c)(2)(A) and 1919(c)(2)(A) of the Act state that in
general, with certain specified exceptions, a SNF/NF must permit each
resident to remain in the facility and must not transfer or discharge
the resident from the facility.
Section 6102 of the Affordable Care Act of 2010 (Pub. L. 111-148,
March 23, 2010) added a new section 1128I to the Act to promote greater
accountability for LTC facilities (defined as skilled nursing
facilities and nursing facilities pursuant to new subsection 1128I(a)
of the Act). Section 6113 of the Affordable Care Act added an
additional subsection 1128I(h) to the Act, setting forth certain
requirements for LTC facility closures, effective March 23, 2011, as
follows:
1. Notification of Facility Closure
Section 1128I(h)(1)(A)(i) of the Act, as added by the Affordable
Care Act, states that in general, any individual who is the
administrator of the facility must submit to the Secretary, the State
LTC ombudsman, residents of the facility, and the legal representatives
of such residents or other responsible parties, written notification of
an impending facility closure.
For informational purposes, LTC ombudsmen are advocates for
residents of nursing homes, board and care homes and assisted living
facilities. Ombudsmen provide information about how to find a facility
and what to do to get quality care. They are trained to resolve
problems, and will assist individuals with complaints; however, unless
an ombudsman is given permission, these matters are kept confidential.
Under the Federal Older Americans Act, every State is required to have
an Ombudsman Program that addresses complaints and advocates for
improvements in the LTC system (http:[sol][sol]www.ltcombudsman.org/).
For voluntary or State-mandated closures, the required written
notification must not be later than 60 days prior to the date of such
closure. Section 1128I(h)(1)(A)(ii) of the Act states that if the
Secretary terminates the facility's participation under this title,
notification must be provided no later than the date that the Secretary
determines appropriate. Section 1128I(h)(1)(B) of the Act states that
the administrator must also ensure that the facility does not admit any
new residents on or after the date on which such written notification
is submitted.
Finally, section 1128I(h)(1)(C) of the Act states that LTC
facilities must include in their closure notices a plan, approved by
the State, for the transfer and adequate relocation of residents of the
facility by a specified date prior to closure. The notices must also
include assurances that the residents will be transferred to the most
appropriate facility or other setting in terms of quality, services,
and location, taking into consideration the needs, choice, and best
interests of each resident.
2. Relocation
Section 1128I(h)(2)(A) of the Act requires a State to ensure,
before a facility in the State closes, that all residents of the
facility have been successfully relocated to another facility or an
alternative home and community-based setting. Because this requirement
applies to States and not the LTC facility, we have not included it in
this rule for LTC facilities. We will implement this statutory
requirement through sub-regulatory guidance to be published in the
State Operations Manual (SOM) as interpretive guidance for surveyors.
We are requesting comments on the best means of implementing this
provision.
Section 1128I(h)(2)(B) of the Act authorizes the Secretary to
continue to make payments under this title with respect to residents of
a facility that has submitted the required notifications under section
1128I(h)(1) during the period beginning on the date such notification
is submitted and ending on the date on which the resident is
successfully relocated.
3. Sanctions
Section 1128I(h)(3) of the Act, as added by the Affordable Care
Act, states that any individual who is the administrator of the
facility that fails to comply with the requirements set out in the
subsection shall be subject to a civil monetary penalty of up to
$100,000, may be subject to exclusion from participation in any Federal
health care program (as defined in section 1128B(f) of the Act), and
shall be subject to any other penalties that may be prescribed by law.
Additionally, Section 1128I(h)(4) of the Act ``Procedure,'' states
that the provisions of section 1128A of the Act (other than subsections
(a) and (b) and the second sentence of subsection (f)) shall apply to a
civil money penalty or exclusion under paragraph (3) in the same manner
as such provisions apply to a penalty or proceeding under section
1128A(a) of the Act.
Subsection 6113(c) of the Affordable Care Act requires that the
provisions of new subsection 1128I(h) of the Act become effective one
year after the date of enactment--that is, March 23, 2011. Therefore,
because of the statutory deadline, we are implementing this rule as an
interim final rule with comment period.
II. Health Disparities
CMS is committed to developing regulation in a manner that focuses
on improving the quality of health care for all persons. Therefore, we
believe that it is important in the preamble of regulations to discuss
our goal of addressing health care disparities and to solicit comments
on how our regulations could be used to address such disparities.
In 1985, the Secretary of the Department of Health and Human
Services issued a landmark report that revealed large and persistent
gaps in health status among Americans of different racial and ethnic
groups and served as an impetus for addressing health inequalities for
racial and ethnic minorities in the U.S. This report led to the
establishment of the Office of
[[Page 9506]]
Minority Health (OMH) within the Department of Health and Human
Services (HHS), with a mission to address these disparities. National
concern for these differences, termed health disparities, and the
associated excess mortality and morbidity have been expressed as a high
priority in national health status reviews, including Healthy People
2000 and 2010.
Since that time, research has extensively documented the
pervasiveness of racial and ethnic disparities in health care and has
led to the acknowledgement of racial and ethnic disparities as a
national problem. As a result, more populations have been identified as
vulnerable, which has necessitated the development of programs and
strategies to reduce disparities for vulnerable populations, as well as
the emergence of new leadership to address such disparities. Currently,
vulnerable populations can be defined by race/ethnicity, socio-economic
status, geography, gender, age, disability status, sexual orientation,
and other populations identified to be at-risk for health disparities.
Other populations at risk may include persons with visual or hearing
problems, cognitive perceptual problems, language barriers, pregnant
women, infants, and persons with disabilities or special health care
needs.
Although there has been much attention at the national level to
ideas for reducing health disparities in vulnerable populations, we
remain vigilant in our efforts to improve health care quality for all
persons by improving health care access and by eliminating real and
perceived barriers to care that may contribute to less than optimal
health outcomes for vulnerable populations. For example, we are aware
that immunization rates remain low among some minorities. Despite the
long-term implementation of some strategies, such as the use of
language translators in hospitals, health literacy and its impact on
health care outcomes continues to be in the forefront.
We are always seeking better ways to address the needs of
vulnerable populations; therefore, we are specifically requesting
comments in regard to how our LTC facility closure requirements could
be used to address disparities among facility residents.
III. Provisions of the Interim Final Rule With Comment Period
Based on the provisions of section 1128I(h) of the Act, as added by
the Affordable Care Act, we are revising the current requirements for
LTC facilities, as discussed below. Under this new provision the
administrator of the facility will be subject to sanctions for failure
to provide proper notice according to these new provisions. However, in
some cases, an administrator has no control over closure procedures.
For instance, an administrator may be hired to oversee a facility's
impending closure, although he or she was not present when the decision
was made to close, or the administrator was employed fewer than 60 days
prior to closure. In regards to LTC facilities, this is the first
regulation where civil monetary penalties would be imposed on an
individual. CMS considered the impact that this rule would have on an
administrator that would be in a facility for an insufficient amount of
time to comply with this regulation. We believe that the Congress
intended CMS to use sanctions as a method to assure that the
requirements in the statue be implemented. The language that the
Congress used was ``up to $100,000.'' They used this language to have a
maximum amount, but intended for CMS to determine the amount of the
sanctions. Due to the many possible combinations of violations that
could be cited gradations would be limited to the number of offenses.
Any sanctions that have been levied against an administrator would also
be reviewed by the State's licensing agency for possible disciplinary
action including suspension and termination of the administrator's
license. Because of the unique Federal laws applicable to the operation
of IHS and Tribal LTC facilities under the authority of 25 U.S.C.
1621(d), the implementation of this IFC by such facilities will be
developed in consultation with the IHS and Tribal programs.
A. Transfer and Discharge Sec. 483.12(a)
We are revising Sec. 483.12(a) by redesignating current paragraph
(a)(8) as paragraph (a)(9) and adding a new Sec. 483.12(a)(8) to
require that, in the case of a facility closure, any individual who is
the administrator of the facility must provide written notification
prior to the impending closure to the Secretary, the State LTC
ombudsman, the residents of the facility, and the legal representatives
of such resident or other responsible parties, as well as provide a
plan for the transfer and adequate relocation of the residents, in
accordance with new Sec. 483.75(r).
We are also revising Sec. 483.12(a)(5)(i) ``Timing of the
notice'', which allows for exceptions to the 30-day notification
requirement for closures. We are adding a statement that newly added
paragraph (a)(8), which generally states who must file a notice and
plan and to whom the notice and plan must be filed in the event of
impending closure, is also an exception to the timing requirements
found in paragraph (a)(5)(i).
B. Facility Closure-Administrator Sec. 483.75(r)
We are adding a new subsection (r) to Sec. 483.75. At Sec.
483.75(r)(1), we are requiring that any individual who is the
administrator of the facility must submit to the Secretary, the State
LTC ombudsman, residents of the facility, and the legal representative
of such residents (or other responsible parties) written notification
of an impending closure at least 60 days prior to the date of closure;
or, in the case of a facility where the Secretary terminates the
facility's participation in the Medicare and/or Medicaid programs, not
later than the date that the Secretary determines appropriate for such
notification.
To understand how the Secretary may determine a date for a
notification when the Secretary has terminated the facility's
participation in Medicare, Medicaid, or both, we are providing
background on facility requirements to participate in these programs.
The Secretary may terminate a facility's participation if the facility
fails in any area outlined in Sec. 489.53(a)(1) through (a)(15). For
instance, at Sec. 489.53(a)(3), failure to continue to meet the
appropriate conditions of participation or requirements for SNFs and
NFs set forth elsewhere in this chapter would be grounds for
termination by CMS. In addition, the timing of the notification of
termination by the Secretary may vary based on the justification for
the closure. Section 489.53(d)(1) provides the basic timing rule for
notice of termination by CMS, which is 15 days before the effective
date of termination of the provider agreement. Section 489.53(d)(2)(ii)
provides the timing rule for closures that are the result of
deficiencies that may pose immediate jeopardy, which is 2 days prior to
the effective date of the termination of the provider agreement.
In addition, at Sec. 483.75(r)(2) we are requiring any individual
who is the administrator of the LTC facility to ensure that the
facility does not admit any new residents on or after the date on which
such written notification is submitted to the Secretary, the State LTC
ombudsman, and the residents, and/or their representatives or other
responsible parties.
At Sec. 483.75(r)(3), we are requiring that any individual who is
the administrator of a LTC facility include in the written notice of
closure, a plan that has been approved by the State for the transfer
[[Page 9507]]
and adequate relocation of the residents of the facility by a date that
would be specified prior to closure, including assurances that the
residents would be transferred to the most appropriate facility or
other setting in terms of quality, services, and location, taking into
consideration the needs, choice, and best interests of each resident.
We would expect that the closure plan would include sufficient
detail to clearly identify the steps the facility would take, and the
individual responsible for ensuring the steps are successfully carried
out. As an example, the plan might include: (among other things):
Assessment of residents' care needs and the provision of
appropriate services.
A plan for communicating with staff and/or unions.
Continuation of appropriate staffing levels and paychecks
at the facility.
Provision of necessary supplies.
Identification of available facilities to which residents
could be transferred, along with an assessment of the quality of care
provided by these facilities (for example, Minimum Data Set (MDS) OSCAR
data).
A process for relocation of residents.
Operation and management of the facility and oversight of
those managing the facility.
The roles and responsibilities of the facility's
Administrator or replacement.
Sources of supplemental funding to assist in keeping a
facility open until the residents are transferred.
A plan for communicating with the Secretary, the State LTC
ombudsman, residents and legal representatives of the residents or
other responsible parties.
C. Facility Closure Sec. 483.75(s)
We are adding Sec. 483.75(s) to require that the facility have in
place policies and procedures that will ensure the administrator's
duties and responsibilities involve providing the appropriate notices.
While this provision is not explicitly required by section 1128I(h), we
believe that it is implicitly authorized by the terms of section 6113
of the Affordable Care Act. Moreover, it is explicitly permitted by the
general rulemaking authority of sections 1819(d)(4)(B) and
1919(d)(4)(B) of the Act, which permit the Secretary to issue rules
relating to the health, safety and well-being of residents, and rules
concerning physical facilities. The facility will not be sanctioned for
noncompliance with this rule; however, it will be cited for a
deficiency during the survey process.
D. Transfer of Residents, or Closure of the Facility and Transfer of
Residents Sec. 488.426
At Sec. 488.426, we are revising paragraph (b) to include a cross-
reference to the new requirements at Sec. 483.75(r). We are also
adding paragraph (c) Required notifications when a facility's provider
agreement is terminated to address the required notifications when a
facility closes.
E. Administrator Sanctions: Long-Term Care Facility Closures Sec.
488.446
As required by Section 6113 of the Affordable Care Act, new Sec.
488.446 will subject any administrator of a facility that fails to
comply with the requirements at Sec. 483.75(r) to sanctions. Such
individual--
(1) Would be subject to a civil monetary penalty as follows: A
minimum of $500 for the first offense; a minimum of $1,500 for the
second offense; and a minimum of $3,000 for the third and subsequent
offenses. The three levels of civil monetary penalties (CMPs) represent
a minimum amount for each offense; however, an administrator could be
subject to higher amounts of CMPs (not to exceed $100,000) based on
criteria that CMS will identify in interpretative guidelines. If it is
determined that an administrator of record completely fails to take the
necessary and timely actions to adhere to the Notice of Facility
Closure thus causing unjustified harm to the resident, family, and
visitors, then the administrator could be subject to additional CMPs.
For example, the administrator abandons his or her responsibility as
set forth in the Notice of Facility Closure for the purpose of personal
gain (financial) by devoting his or her energies to keeping the
facility open rather than working on a safe and timely closure.
(2) Could be subject to exclusion from participation in any Federal
health care program (as defined in section 1128B(f) of the Act); and
(3) Would be subject to any other penalties that may be prescribed
by law.
F. Period of Continued Payments Sec. 488.450(c)
At Sec. 488.450(c), we are renumbering this section to add
paragraphs (1) and (2). Current Sec. 488.450(c) corresponds with new
Sec. 488.450(c)(1), and new paragraph (2) provides that the Secretary
may, as deemed appropriate, continue to make payments under this title
with respect to residents of an LTC facility that has submitted a
notification of closure during the period beginning on the date such
notification is submitted and ending on the date on which the resident
is successfully relocated.
G. Notice to CMS Sec. 489.52(a)
We are revising Sec. 489.52(a)(1) to provide an exception for
SNFs, redesignating paragraph (a)(2) as paragraph (a)(3), and outlining
the requirement specific to SNF notifications to CMS in new paragraph
(a)(2).
At Sec. 489.52(a)(2), we are requiring that a SNF provider that
wishes to terminate its agreement must send CMS written notice of its
intent at least 60 days prior to the date of closure, in accordance
with Sec. 483.75(r)(1)(i).
H. Skilled Nursing Facility Closure Sec. 489.53(d)(3)
At Sec. 489.53(d)(3), we are revising and redesignating the
section to state that when CMS terminates a facility's participation
under Medicare or Medicaid, CMS will determine the date of the required
notifications. We are also revising Sec. 489.53(d)(1) to reflect this
change.
I. Exceptions to Effective Date of Termination Sec. 489.55
When a notification is made as required at Sec. 483.75(r), the new
requirements authorize the Secretary to continue to make payments to
the SNF or, for a NF, to the State, as the Secretary considers
appropriate, during the period beginning at the time the notification
is submitted and until the resident is successfully relocated. We
renumbered this section to redesignate paragraphs (a) and (b) as
paragraphs (1) and (2), and added a new paragraph (b) to implement this
requirement.
J. Scope and Applicability Sec. 498.3
We are adding Sec. 498.3(a)(2)(iv) to clarify that CMS may also
impose sanctions on NF administrators for noncompliance with Sec.
483.75(r). In addition, we are adding a new subparagraph Sec.
498.3(a)(3)(ii) to indicate that the appeals process applies to NFs as
well as SNFs.
We are adding to Sec. 498.3(b) Initial determinations by CMS, a
new paragraph (18) to indicate that a sanction imposed on a SNF or NF
administrator for noncompliance with the requirements set out at Sec.
483.75(r) constitutes an initial determination of the agency.
K. Appeal Rights Sec. 498.5
At Sec. 498.5, we are adding paragraph (m) Appeal rights of an
individual who is the administrator of a SNF or NF to establish appeal
rights for administrator
[[Page 9508]]
sanctions for noncompliance with the requirements set out at Sec.
483.75(r).
IV. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, when we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
V. Waiver of Proposed Rulemaking
We ordinarily publish a notice of proposed rulemaking in the
Federal Register and invite public comment on the interim final rule in
accordance with 5 U.S.C. 553(b) of the Administrative Procedure Act
(APA). The notice of proposed rulemaking includes a reference to the
legal authority under which the rule is proposed, and the terms and
substances of the interim final rule or a description of the subjects
and issues involved. This procedure can be waived, however, if an
agency finds good cause that a notice-and-comment procedure is
impracticable, unnecessary, or contrary to the public interest and
incorporates a statement of the finding and its reasons in the rule
issued.
Section 6113 of the Affordable Care Act, effective March 23, 2011,
added new section 1128I(h) of the Act, which requires that the
administrator of a facility follow specified procedures prior to
closure of a facility. The Act requires any individual who is the
administrator to provide written notification to the Secretary, the
State LTC ombudsman, residents of the facility, and the legal
representatives of such residents or other responsible parties, of an
impending facility closure. As mentioned above, LTC facility closures
have implications for access, the quality of care provided,
availability of services, and the overall health of residents,
necessitating that an organized process be followed in the event of a
nursing home closure. The Congress mandated at subsection 6113(c) of
the Affordable Care Act that these amendments take effect one year
after the date of the enactment of this Act.
We believe that, in mandating a 1 year effective date, the Congress
was acknowledging the importance of protecting the vulnerable elderly
residents of LTC facilities. Advance notice of facility closure allows
a resident and his or her legal representative or interested family
member to prepare for the move to another facility, which can prove
very traumatic to the resident. A move uproots a resident from a
familiar environment, including a roommate and other residents, as well
as assigned care providers, sometimes including the resident's
physician. LTC facility closures require critical adjustments and
create difficult issues for residents and their families and
representatives. The Affordable Care Act under section 1128I(h)
mandates specific procedures in the event of a closure of a nursing
home. These procedures help protect the resident, the resident's
family, and visitors because it requires the facility to provide an
organized plan that allows the resident, family, and visitors to make
the necessary adjustments within a reasonable time frame. At present,
no Federal rule exists for facility closure. Delaying the
implementation of the rule would continue to cause unjustified harm to
the resident, family, and visitors.
We believe that to publish this rule as a proposed rule would
jeopardize the safety of these individuals and the fulfillment of the
mandated implementation date of March 23, 2011. Thus, we find that the
Congressional directive renders adherence to the normal notice of
proposed rulemaking requirements under the APA both impracticable and
contrary to the public interest. Therefore, we find good cause to waive
the notice of proposed rulemaking and to issue this final rule on an
interim basis. We are providing a 60-day public comment period. In
accordance with section 1871(a)(3) of the Act, all Medicare interim
final rules must be finalized within three years.
VI. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995, we are required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
We are soliciting public comment on each of these issues for the
following sections of this document that contain information collection
requirements (ICRs):
The revisions at Sec. 483.12(a)(8) require any individual who is
the administrator of the facility to submit to the Secretary, the State
LTC ombudsman, residents and their legal representatives or other
responsible parties, written notification of an impending closure at
least 60 days prior to such closure; or not later than the date that
the Secretary deems appropriate in the case of a facility where the
Secretary terminates the facility's participation under this title.
Current regulations at Sec. 483.12(a)(5) require notification of
transfer or discharge to a resident and, if known, a family member or
legal representative, in writing. Except in certain specified
circumstances, notification must be made at least 30 days prior to
transfer or discharge. Facility closure is not a circumstance that
permits a facility to make notification in fewer than 30 days. Although
the requirement extends the time period for notification from 30 days
to 60 days (or a date determined by the Secretary in case of CMS
termination of the facility), we do not believe the change in the time
period for reporting imposes any additional burden. In addition,
notification of transfer or discharge to residents and their
representatives is already a usual and customary business practice.
Therefore, in accordance with 5 CFR 1320.3(b)(2), we will not include
this activity in the ICR burden analysis.
Although there are no existing Federal regulatory requirements for
LTC facilities to notify other individuals or entities of an impending
closure, according to feedback to CMS from State surveyors for LTC
facilities, nearly all States already require LTC facilities to notify
the State within 30 to 90 days. Because we have found that
notifications of impending closure are a standard business practice for
most LTC facilities, we believe that this requirement would impose
burden on only a small number of facilities.
Each facility that does not already notify the State and the State
LTC ombudsman must develop a process for doing so. We estimate that the
burden associated with complying with this requirement would be due to
the resources required to develop a process for notifying the State and
the State LTC ombudsman and the time it takes to notify those entities.
We expect that such a notification process would involve the
administrator of the facility
[[Page 9509]]
and administrative support person and an attorney to review the plan.
We anticipate that, on average, it will take 7 hours for a total
burden of $5,584,400.16.
The revisions at Sec. 483.75(r)(2) require that the administrator
of the facility ensure that the facility does not admit any new
residents on or after the date written notification is submitted. We do
not anticipate any ICR burden associated with this requirement.
Section 483.75(r)(3) requires the administrator of the facility to
include in the notice the plan for the transfer and adequate relocation
of the residents of the facility by a date that is specified by the
State prior to closure, including assurances that the residents would
be transferred to the most appropriate facility or other setting in
terms of quality, services, and location, taking into consideration the
needs, choice, and best interests of each resident.
Section 483.75(s) requires the facility to have in place policies
and procedures to ensure that the administrator's duties and
responsibilities include the provision of the appropriate notices in
the event of a facility closure.
In our experience, based on feedback to CMS from State surveyors of
LTC facilities, most facilities already have plans for transfer of
residents, regardless of whether closure of the facility is expected.
For example, most facilities have plans for transfer of residents to
another facility in the event of an emergency. Also based on our
experience, nearly all facilities anticipating closure develop plans
for the relocation of residents and other closure-related activities.
Many States require such plans. For example, Vermont requires that the
State licensing agency and the LTC ombudsman be notified by the
administrator of the facility 90 days prior to the proposed date of
closure. In addition, the facility administrator is required to provide
to the State licensing agency and LTC ombudsman a written transfer plan
60 days prior to closure.
Because we have found that transfer plans are a standard business
practice for most LTC facilities, we believe that this requirement
would impose burden on only a small number of facilities.
Each facility that does not already have a plan in place must
develop a plan for the transfer and adequate relocation of residents of
the facility. We estimate that the burden associated with complying
with this requirement would be due to the resources required to develop
and review a new plan or, if necessary, modify an existing plan for the
transfer of residents in the event of facility closure. We expect that
development of such a plan would involve the administrator of the
facility, an administrative support person, and an attorney to review
the plan.
LTC facilities are currently required to have a plan under Sec.
483.12 for discharge and transfer of residents. A facility must provide
sufficient preparation and orientation to residents to ensure safe and
orderly transfer or discharge from the facility. Therefore, we
anticipate that, on average, it will take 3 hours to develop the plan,
1 hour to ensure that the administrator's duties include policies and
procedures relating to facility closures, 2 hours for an administrative
support person to prepare the document(s), and 1 hour for an attorney
to review the document(s), for a total estimated burden of 7 hours per
facility. We also believe that the burden would remain approximately
the same for the first year and beyond.
Currently, there are 15,713 LTC facilities in the U.S. Based on an
hourly rate of $58.17 for a nursing home administrator, we estimate
that development of the plan and incorporating facility closure
policies and procedures into the administrator's duties would cost
$3,656,100.80 (15,713 facilities x 4 hours per facility) x $58.17 per
hour). Based on an hourly rate of $20.11 for an administrative
assistant, we estimate that preparing the plan documents would cost
$631,976.86 ((15,713 facilities x 2 hours per facility) x $20.11 per
hour). Finally, based on an hourly rate of $82.50 for an attorney, we
estimate that reviewing the plan document would cost $1,296,322.50
((15,713 facilities x 1 hour per facility) x $82.50 per hour). The
salary estimates include 33 percent of the mean hourly rate for
overhead and fringe benefits (Source: BLS.gov).
If you comment on these information collection and recordkeeping
requirements, please submit your comments electronically as specified
in the ADDRESSES section of this interim final rule.
VII. Regulatory Impact Analysis
A. Statement of Need
Executive Order 13563 directs agencies to consider and discuss
qualitatively values that are difficult to quantify, including equity,
human dignity, fairness and distributive impacts. This IFC will
implement the Affordable Care Act under section 1128I(h) that mandates
specific procedures in the event of a closure of a nursing home. LTC
facility closure procedures have implications related to access to
care, the quality of care, and the overall health of residents. These
procedures help protect the resident, the resident's family, and
visitors because it requires the facility to provide an organized plan
that allows the resident, family, and visitors to make the necessary
adjustments within a reasonable time frame.
B. Overall Impact
1. Executive Order 12866
We have examined the impacts of this rule as required by Executive
Order 12866 on Regulatory Planning and Review (September 30, 1993),
Executive Order 13563 on Improving Regulation and Regulatory Review
(February 2, 2011), the Regulatory Flexibility Act (RFA) (September 19,
1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the
Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4),
Executive Order 13132 on Federalism (August 4, 1999) and the
Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). A regulatory impact
analysis (RIA) must be prepared for major rules with economically
significant effects ($100 million or more in any 1 year). This rule
does not qualify as a major rule as the estimated economic impact. We
estimate that these requirements will cost $355 (5,584,400/15,713) per
facility the first year and each year thereafter.
2. Regulatory Flexibility Act (RFA)
The RFA requires agencies to analyze options for regulatory relief
of small businesses, if a rule has a significant impact on a
substantial number of small entities. For purposes of the RFA, small
entities include small businesses, nonprofit organizations, and small
government jurisdictions. The great majority of hospitals and most
other health care providers and suppliers are small entities, either by
being nonprofit organizations or by meeting the SBA definition of a
small business (having revenues of less than $7.0 million to $34.5
million in any 1 year). For purposes of the RFA, most physician
practices, hospitals and other providers are small entities, either by
nonprofit status or by qualifying as small businesses under the Small
Business Administration's size standards (revenues of less than $7.0 to
$34.5
[[Page 9510]]
million in any 1 year). States and individuals are not included in the
definition of a small entity. For details, see the Small Business
Administration's Web site at https://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=2465b064ba6965cc1fbd2eae60854b11&rgn=div8&view=text&node=13:1.0.1.1.16.1.266.9&idno=13. A rule has a significant economic impact
on the small entities it affects, if it significantly affects their
total costs or revenues. Under statute we are required to assess the
compliance burden the regulation will impose on small entities.
Generally, we analyze the burden in terms of the impact it will have on
entities' costs if these are identifiable or revenues. As a matter of
sound analytic methodology, to the extent that data are available, we
attempt to stratify entities by major operating characteristics such as
size and geographic location. If the average annual impact on small
entities is 3 to 5 percent or more, it is to be considered significant.
We estimate that these requirements will cost $355 ($5,584,400/
15,713 facilities) per facility initially and $355 ($5,584,400/15,713
facilities) thereafter. This clearly is much below 1 percent;
therefore, we do not anticipate it to have a significant impact. We do
not have any data related to the number of LTC facilities that have
facility closure plans in place; however, we are aware through our
experience with LTC facilities and the survey process that most
facilities have a plan for closure either because they are required to
have such a plan in place at the State level or because of their
understanding that this is a standard business practice.
3. Social Security Act
In addition, section 1102(b) of the Social Security Act requires us
to prepare a regulatory impact analysis if a rule may have a
significant impact on the operations of a substantial number of small
rural hospitals. This analysis must conform to the provisions of
section 604 of the RFA. For the purposes of section 1102(b) of the Act,
we define a small rural hospital as a hospital that is located outside
of a metropolitan statistical area and has fewer than 100 beds. This
rule would impact only SNFs and NFs. Therefore, the Secretary has
determined that this interim final rule would not have any impact on
the operations of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2010, that
threshold is approximately $135 million. This rule would not have a
significant impact on the governments mentioned or on private sector
costs. The estimated economic effect of this rule is $5,584,400 the
first year and $5,584,400 thereafter. These estimates are derived from
our analysis of burden associated with these requirements in section
IV, ``Collection of Information Requirements.''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This rule would not have any effect on State or local
governments.
C. Anticipated Effects
1. Effects on LTC Facilities
The purpose of this rule is to ensure that, among other things, in
the case of a facility closure, any individual who is the administrator
of the facility provide written notification of the closure and the
plan for the relocation of residents at least 60 days prior to the
impending closure or, if the Secretary terminates the facility's
participation in Medicare or Medicaid, not later than the date the
Secretary determines appropriate. This would protect residents' health
and safety and make the transition to closure as smooth as possible for
residents, as well as family members and facility staff.
2. Effects on Other Providers
This rule is expected to allow for a smoother transition when a
facility closes. It requires facilities and facility administrators to
prepare in advance for closure so, in the event of a closure, the
facility is equipped to protect resident rights and continue to provide
quality care to residents who must be relocated. This interim final
rule would also improve coordination of care between the LTC facility
where the residents are transferred from and the LTC facility they are
transferred to. We anticipate that only LTC facilities would be
affected.
3. Effects on the Medicare and Medicaid Programs
This rule would require that CMS and the State be notified in the
case of a facility closure and provides them with the ability to make
determinations regarding the timing of termination of provider
agreements and continuation of payments to LTC facilities. This rule
would also support efforts directed toward broad-based improvements in
the quality of health care furnished by Medicare and Medicaid
providers.
D. Alternatives Considered
We considered the effects of not addressing specific requirements
for the notification of facility closures in LTC facilities, although
these requirements are statutory and only allow limited discretion on
the part of the Secretary. However, we do believe that to improve
quality and ensure consistency in the provision of care in LTC
facilities, it is important to ensure that residents rights are
protected in LTC facilities and that they are relocated appropriately,
taking into consideration the needs, choice and best interest of each
resident should a facility closure take place. We expect that these
requirements would result in improvement in the quality of services
provided to LTC residents when they need to be involuntarily relocated.
E. Conclusion
This interim final rule ensures that, among other things, in the
case of a facility closure, any individual who is the administrator of
the facility provide written notification of the closure and the plan
for the relocation of residents at least 60 days prior to the impending
closure or, if the Secretary terminates the facility's participation in
Medicare or Medicaid, not later than the date the Secretary determines
appropriate.
It is consistent with the requirements set forth in section 6113 of
the Affordable Care Act and the Administration's efforts toward broad-
based improvements in the quality of health care furnished by Medicare
and Medicaid providers.
This interim final rule clarifies the responsibility of the
administrator of a facility, which is to ensure that the specified
parties are notified of an impending closure in a specified timeframe
and identifies penalties for non-compliance. It also clarifies the
responsibility of the administrator of the facility to ensure that no
new residents are admitted after written notice is submitted and that
the notice of closure must include a plan for transfer and adequate
relocation to another facility. These facilities must take into
consideration the needs, choices and best interests of each resident.
In accordance with the provisions of Executive Order 12866, this
regulation was reviewed by the Office of Management and Budget.
[[Page 9511]]
List of Subjects
42 CFR Part 483
Grant programs--Health, Health facilities, Health professions,
Health records, Medicaid, Medicare, Nursing homes, Nutrition, Reporting
and recordkeeping requirements, Safety.
42 CFR Part 488
Administrative practice and procedure, Health facilities, Medicare,
Reporting and recordkeeping requirements.
42 CFR Part 489
Health facilities, Medicare, Reporting and recordkeeping
requirements.
42 CFR Part 498
Administrative practice and procedure, Health facilities, Health
professions, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services amends 42 CFR Chapter IV as set forth below:
PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES
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1. The authority citation for part 483 is revised to read as follows:
Authority: Secs. 1102, 1128I and 1871 of the Social Security
Act (42 U.S.C. 1302 and 1395hh).
Subpart B--Requirements for Long Term Care Facilities
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2. Section 483.12 is amended by--
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A. Revising paragraph (a)(5)(i);
0
B. Redesignating paragraph (a)(8) as paragraph (a)(9).
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C. Adding a new paragraph (a)(8).
The revisions and additions read as follows:
Sec. 483.12 Admission, transfer and discharge rights.
(a) * * *
(5) Timing of the notice. (i) Except as specified in paragraphs
(a)(5)(ii) and (a)(8) of this section, the notice of transfer or
discharge required under paragraph (a)(4) of this section must be made
by the facility at least 30 days before the resident is transferred or
discharged.
* * * * *
(8) Notice in advance of facility closure. In the case of facility
closure, the individual who is the administrator of the facility must
provide written notification prior to the impending closure to the
Secretary, the State LTC ombudsman, residents of the facility, and the
legal representatives of the residents or other responsible parties, as
well as the plan for the transfer and adequate relocation of the
residents, as required at Sec. 483.75(r).
* * * * *
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3. Section 483.75 is amended by adding a new paragraph (r) and
paragraph (s) to read as follows:
Sec. 483.75 Administration.
* * * * *
(r) Facility closure-Administrator. Any individual who is the
administrator of the facility must:
(1) Submit to the Secretary, the State LTC ombudsman, residents of
the facility, and the legal representatives of such residents or other
responsible parties, written notification of an impending closure:
(i) At least 60 days prior to the date of closure; or
(ii) In the case of a facility where the Secretary or a State
terminates the facility's participation in the Medicare and/or Medicaid
programs, not later than the date that the Secretary determines
appropriate;
(2) Ensure that the facility does not admit any new residents on or
after the date on which such written notification is submitted; and
(3) Include in the notice the plan for the transfer and adequate
relocation of the residents of the facility by a date that would be
specified by the State prior to closure, including assurances that the
residents would be transferred to the most appropriate facility or
other setting in terms of quality, services, and location, taking into
consideration the needs, choice, and best interests of each resident.
(s) Facility closure. The facility must have in place policies and
procedures to ensure that the administrator's duties and
responsibilities involve providing the appropriate notices in the event
of a facility closure, as required at paragraph (r) of this section.
PART 488--SURVEY, CERTIFICATION, AND ENFORCEMENT PROCEDURES
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4. The authority citation for part 488 is revised to read as follows:
Authority: Secs. 1102, 1128I and 1871 of the Social Security
Act, unless otherwise noted (42 U.S.C. 1302 and 1395hh); Pub. L.
110-149, 121 Stat. 1820.
Subpart F--Enforcement of Compliance for Long-Term Care Facilities
With Deficiencies
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5. Section 488.426 is amended by--
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A. Revising paragraph (b).
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B. Adding a new paragraph (c).
The revisions and additions read as follows:
Sec. 488.426 Transfer of residents, or closure of the facility and
transfer of residents.
* * * * *
(b) Required transfer when a facility's provider agreement is
terminated. When the State or CMS terminates a facility's provider
agreement, the State will arrange for the safe and orderly transfer of
all Medicare and Medicaid residents to another facility, in accordance
with Sec. 483.75(r) of this chapter.
(c) Required notifications when a facility's provider agreement is
terminated. When the State or CMS terminates a facility's provider
agreement, CMS determines the appropriate date for notification, in
accordance with Sec. 483.75(r)(1)(ii) of this chapter.
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6. Add a new Sec. 488.446 to read as follows:
Sec. 488.446 Administrator sanctions: long-term care facility
closures.
Any individual who is or was the administrator of a facility and
fails or failed to comply with the requirements at Sec. 483.75(r) of
this chapter--
(a) Will be subject to a civil monetary penalty as follows:
(1) A minimum of $500 for the first offense.
(2) A minimum of $1,500 for the second offense.
(3) A minimum of $3,000 for the third and subsequent offenses.
(b) May be subject to exclusion from participation in any Federal
health care program (as defined in section 1128B(f) of the Act); and
(c) Will be subject to any other penalties that may be prescribed
by law.
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7. Section 488.450 is amended by revising paragraph (c) to read as
follows:
Sec. 488.450 Continuation of payments to a facility with
deficiencies.
* * * * *
(c) Period of continued payments-- (1) Non-compliance. If the
conditions in paragraph (a)(1) of this section are met, CMS may
continue payments to a Medicare facility or the State for a Medicaid
facility with noncompliance that does not constitute immediate jeopardy
for up to 6 months from the last day of the survey.
(2) Facility closure. In the case of a facility closure, the
Secretary may, as the Secretary determines appropriate, continue to
make payments with respect to residents of a long-term care facility
that has submitted a notification of closure during the period
beginning on the date such notification is submitted to CMS and ending
on the date on which the resident is successfully relocated.
* * * * *
[[Page 9512]]
PART 489--PROVIDER AGREEMENTS AND SUPPLIER APPROVAL
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8. The authority for part 489 is revised to read as follows:
Authority: Secs. 1102, 1128I and 1819, 1820(e), 1861, 1864(m),
1866, 1869, and 1871 of the Social Security Act (42 U.S.C. 1302,
1351i-3, 1395x, 1395aa(m), 1395cc, 1395ff, and 1395hh).
Subpart E--Termination of Agreement and Reinstatement After
Termination
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9. Section 489.52 is amended by revising paragraph (a) to read as
follows:
Sec. 489.52 Termination by the provider.
(a) Notice to CMS. (1) A provider that wishes to terminate its
agreement, except for a SNF as specified in paragraph (a)(2) of this
section, must send CMS written notice of its intention in accordance
with paragraph (a)(3) of this section.
(2) A SNF that wishes to terminate its agreement due to closure of
the facility must send CMS written notice of its intention at least 60
days prior to the date of closure, as required at Sec. 483.75(r) of
this chapter.
(3) The notice may state the intended date of termination which
must be the first day of the month.
* * * * *
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10. Section Sec. 489.53 is amended by--
0
A. Revising paragraph (d)(1).
0
B. Redesignating paragraph (d)(3) and paragraph (d)(4) as paragraph
(d)(4) and paragraph (d)(5).
0
C. Adding a new paragraph (d)(3).
The revisions and additions read as follows:
Sec. 489.53 Termination by CMS.
* * * * *
(d) Notice of termination--(1) Timing: basic rule. Except as
provided in paragraphs (d)(2) and (d)(3) of this section, CMS gives the
provider notice of termination at least 15 days before the effective
date of termination of the provider agreement.
* * * * *
(3) Notice of LTC facility closure. In the case of a facility where
CMS terminates a facility's participation under Medicare or Medicaid in
the absence of immediate jeopardy, CMS determines the appropriate date
for notification.
* * * * *
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11. Section Sec. 489.55 is revised to read as follows:
Sec. 489.55 Exceptions to effective date of termination.
(a) Payment is available for up to 30 days after the effective date
of termination for:
(1) Inpatient hospital services (including inpatient psychiatric
hospital services) and posthospital extended care services (except as
specified in paragraph (b) of this section with respect to LTC
facilities) furnished to a beneficiary who was admitted before the
effective date of termination; and
(2) Home health services and hospice care furnished under a plan
established before the effective date of termination.
(b) The Secretary may, as the Secretary determines is appropriate,
continue to make payments with respect to residents of a long-term care
facility that has submitted a notification of closure as required at
Sec. 483.75(r) of this chapter during the period beginning on the date
such notification is submitted and ending on the date on which the
residents are successfully relocated.
PART 498--APPEAL PROCEDURES FOR DETERMINATIONS THAT AFFECT
PARTICIPATION IN THE MEDICARE PROGRAM AND FOR DETERMINATIONS THAT
AFFECT THE PARTICIPATION OF ICFs/MR AND CERTAIN NFs IN THE MEDICAID
PROGRAM
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12. The authority citation for part 498 is revised to read as follows:
Authority: Secs. 1102, 1128I and 1871 of the Social Security
Act (42 U.S.C. 1302 and 1395hh).
Subpart A--General Provisions
0
13. Section 498.3 is amended by--
0
A. Adding a new paragraph (a)(2)(iv).
0
B. Revising paragraph (a)(3) introductory text and (a)(3)(ii).
0
C. Adding a new paragraph (b)(18).
The revisions and additions read as follows:
Sec. 498.3 Scope and applicability.
(a) * * *
(2) * * *
(iv) CMS's determination to impose sanctions on the individual who
is the administrator of a NF for failure to comply with the
requirements at Sec. 483.75(r) of this chapter.
(3) The following parts of this chapter specify the applicability
of the provisions of this part 498 to sanctions or remedies imposed on
the indicated entities or individuals:
* * * * *
(ii) Part 488, subpart E (Sec. 488.330(e)) and subpart F (Sec.
488.446)--for SNFs and NFs and their administrators.
* * * * *
(b) * * *
(18) The level of noncompliance found by CMS with respect to the
failure of an individual who is the administrator of a SNF to comply
with the requirem