[Federal Register Volume 76, Number 34 (Friday, February 18, 2011)]
[Rules and Regulations]
[Pages 9503-9512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3806]
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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.
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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 http://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: http://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 (http://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 http://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
0
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
0
2. Section 483.12 is amended by--
0
A. Revising paragraph (a)(5)(i);
0
B. Redesignating paragraph (a)(8) as paragraph (a)(9).
0
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).
* * * * *
0
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
0
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
0
5. Section 488.426 is amended by--
0
A. Revising paragraph (b).
0
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.
0
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.
0
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
0
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
0
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.
* * * * *
0
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.
* * * * *
0
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
0
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 requirements at Sec. 483.75(r) of this chapter, and the
appropriate sanction to be imposed under Sec. 488.446 of this chapter.
* * * * *
0
14. Section 498.5 is amended by adding a new paragraph (m) to read as
follows:
Sec. 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 Sec. 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