On Feb. 18, 2011, the Centers for Medicare and Medicaid Services (CMS) issued
an interim final rule (Interim Rule) implementing Section 6113 of the Patient
Protection and Affordable Care Act (PPACA) that becomes effective March 23,
2011. It requires administrators of long-term care facilities (LTCF), including
skilled nursing facilities (SNF) eligible for reimbursement under Medicare and
nursing facilities (NF) eligible for reimbursement under Medicaid, to submit
prior written notification of an impending LTCF closure to the Secretary of the
U.S. Department of Health and Human Services (Secretary), the state's long-term
care ombudsman, and residents of the facility and their legal representatives or
other responsible parties.
LTCF administrators that do not comply with the new notice requirements may
face sanctions, including civil monetary penalties of up to $100,000 and
exclusion from participation in federal healthcare programs. LTCFs must also
have related policies in place to avoid being cited for survey deficiencies.
Notification of Facility Closure
Prior to promulgation of the Interim Rule, federal regulations did not
require LTCFs to notify federal or state agencies prior to an LTCF closure, even
though many states have such notice requirements. The Interim Rule, however,
requires written notice to be submitted 60 days prior to the date of closure of
a LTCF, or, in the case of termination of a LTCF from participation in Medicare
and/or Medicaid, not later than the date specified by the Secretary.
Moreover, LTCFs should note that the Interim Rule places the responsibility
for complying with this notice requirement squarely on an LTCF’s administrator.
The Interim Rule establishes minimum penalties for failure to comply with the
notice requirement of $500 for the first offense, $1,500 for the second offense,
and $3,000 for the third offense, but CMS suggests that higher penalties (up to
$100,000) may be applied based on criteria it identifies in interpretative
The Interim Rule does not specify under what circumstances a LTCF
administrator would face exclusion from federal healthcare programs, as a result
of failing to comply with the notice requirements. CMS also notes that any
sanctions levied against an administrator would also be reviewed by the state’s
licensing agency for possible disciplinary action proceedings against an
Relocation of Residents
The Interim Rule also requires an LTCF administrator to provide, along with
the written notice of facility closure discussed above, a plan for the transfer
and adequate relocation of facility residents. The plan must be pre-approved by
the state and “include sufficient detail to clearly identify the steps the
facility would take, and the individual responsible for ensuring the steps are
successfully carried out.” The Interim Rule provides several examples of
elements that an adequate plan might include.
PPACA Section 6113 also requires states to ensure that prior to a LTCF
closure, all facility residents have been successfully relocated to another
facility or an alternative home and community-based setting. CMS intends to
implement this statutory requirement through sub-regulatory guidance to be
published in the State Operations Manual (SOM) as interpretive guidance for
Other Important Provisions in the Interim Rule
Other provisions related to the implementation of Section 6113 of PPACA,
- LTCF administrators must ensure that no new patients are admitted to the
facility on or after the date on which written notification of facility
closure is submitted to the Secretary and the other necessary parties.
- LTCFs must implement policies and procedures to
ensure an administrator’s duties and responsibilities involve providing
appropriate closure notices and complying with other relevant requirements
of Section 6113 of PPACA. Failure to adopt such policies may result in
citation of an LTCF during the survey process.
- CMS establishes appeal rights for LTCF administrator sanctions for
noncompliance with these new regulatory requirements.
Key Dates & Considerations
While the effective date of the Interim Rule is March 23, 2011, CMS will
accept comments on the Interim Rule through April 19, 2011.
Please contact one of the authors if you need assistance implementing written
policies and procedures, if you have questions regarding the Interim Rule, or if
you are considering submitting written comments regarding the Interim Rule to