On April 1, 2011, the Centers for Medicare & Medicaid Services (CMS) issued S&C: 11-18-NH (attached) concerning an interim final rule that has new requirements for notification of closures and relocation plans. The interim final rule is not a proposed rule and provides directions for statutory provisions that are currently in effect. The final rule should be issued by February 2014. This AFL Letter outlines both the interim final rule and state requirements for relocation plans and notification of closures.

State law requires specific assessments of residents to be completed for residents as part of the relocation plan and before transferring residents. The interim final rule does not provide specific guidance regarding relocation plans.

Interim Final Rule

Under this interim final rule, the administrator of a Skilled Nursing Facility (SNF) or Nursing Facility (NF) is required to notify the CDPH, the State Long-Term Care Ombudsman, residents of the facility, and the legal representatives of the residents or other responsible parties regarding the transfer and adequate relocation of the residents specified in the plan for closure. The interim final rule requires that the SNF or NF must also meet the following requirements:

• Require the administrator to give notice 60 days prior to the date of closure.
• Ensure that the facility does not admit any new residents after the date of the written closure notification.
• Ensure that the plan provides for the transfer and adequate relocation of the residents of the facility 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.
• However, if the Secretary of the United States Department of Health & Human Services terminates the facility's participation in Medicare or Medicaid, the written closure notification is still required. Under this rule, the Secretary has the discretion to give the facility an appropriate time for a written closure notification and the facility is required not later than the date that the Secretary deems appropriate to provide the written closure notification. If the California Department of Health Care Services closes a decertified facility or CMS terminates a facility's provider agreement, CDPH must arrange for the safe and orderly transfer of all Medicare and Medicaid residents to another facility.
• Ensure that the facility's policies and procedures specify that the administrator's duties and responsibilities involve providing the appropriate notices in the event of a facility closure.
• Notify the administrator of a facility that the failure to comply with these requirements will subject the administrator to personal liability for a civil monetary penalty (CMP) 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.
• Advise the administrator that he/she could be subject to higher amounts of CMPs (not to exceed $100,000) based on criteria that CMS will identify in future interpretative guidelines.

State Law

In order to approve a relocation plan, the facility should have valid reasons for a transferring a resident to another facility as listed in Title 42 Code of Federal Regulations Section 483.12. Regardless of the reasons for relocating a resident to another facility, before the relocation occurs the facility must submit a relocation plan for approval. The facility must also conduct specific assessments of the resident as part of the relocation plan, as specified in HSC Section 1336.2. The facility must also provide those assessments to the resident, the legal representative, or the family member.

As part of the relocation plan, the facility must conduct the following before a resident is transferred:

• The resident's attending physician or the facility medical director completes a medical assessment of the resident's condition and susceptibility to adverse health consequences, including psychosocial effects, in the event of transfer.
• Provide recommendations including counseling, follow-up visits and other recommended services by designated health professionals as part of the assessment.
• The facility nursing staff and activity director completes an assessment of the social and physical functioning of the resident based on the minimum data set.
• Evaluate the relocation needs of the resident including proximity to the resident's representative and determine the most appropriate and available type of future care and services for the resident.
• Discuss the evaluation and medical assessment with the resident and/or resident's representative.
• Make the evaluation and assessment part of the resident's medical record for transfer.
• Inform the resident or resident's responsible party of alternative facilities that are available and adequate to meet the resident and family needs, at least 60 days in advance of the transfer.
• Arrange for appropriate future medical care and services, unless the resident or resident's representative has otherwise made arrangements.

Please note that the assessment is not considered complete unless recommendations are provided to prevent or ameliorate the potential adverse health consequences in the event of a transfer and for the type of facility that will best meet the resident's needs.

The facility must submit the plan to CDPH's District Office 15 days prior to the required written transfer notification. CDPH must approve the plan within ten days.

Differences between State Law and the Interim Final Rule

The facility will meet both state and federal guidelines if the facility notifies residents or their representatives of a facility closure at least 60 days in advance. While HSC Section 1336.2(g) only requires a transfer plan when 10 or more residents are likely to be transferred, the federal guidance applies when a single resident is transferred. California requires specific assessments of a resident as part of the relocation plan of residents. These assessments are necessary to ensure the health, safety and well-being of a resident before a facility closes and before a patient is transferred to another facility.

The information in this AFL is a brief summary of the notification and relocation plan requirements contained in PL 111-148 and HSC 1336.2. Facilities should refer to the full text of state and federal law and regulations to ensure state and federal compliance. CDPH's failure to expressly notify facilities of legislative or regulatory changes does not relieve facilities of their responsibility for following all laws and regulations.

If you have any questions, please contact your local District Office.

Sincerely,

Original Signed by Debby Rogers

Debby Rogers, RN, MS, FAEN
Deputy Director
Center for Health Care Quality

Attachment: S&C: 11-18-NH