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April 25, 2016

DPH adopts amendments to LTCF licensure regulations for sales and closures

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Effective January 1, 2016, the Department of Public Health ("DPH”) adopted new rules that significantly change the process nursing facilities must follow for any proposed sale or voluntary closure. These rules implement changes that were mandated by statute passed in 2014.

Sale of Majority Interest

The new requirements apply to any proposed sale of at least a majority interest in a nursing facility. As previously required, the party intending to acquire at least a majority interest in a nursing facility must file notice of its intent to acquire at least 90 days in advance of the proposed transfer date. The new rules expand the opportunity for a public hearing on the proposed sale. Previously only facilities that are located in Southeastern Massachusetts were subject to a public hearing if at least 50 residents of that area petitioned to DPH to hold a hearing on the proposed sale. Under the new regulations, DPH will consider any written testimony submitted on all proposed transfers. A hearing also may be held if requested by any 10 Massachusetts residents.

Voluntary Closure

The new requirements extend the timeline for DPH review of a proposed nursing facility closure, provide certain parties with expanded notice rights and mandate a public hearing be held for every closure. Previously when a nursing facility intended to close, it was required to notify DPH at least 70 days prior to the proposed closure date. A public process was not involved. Under the new regulations, a nursing facility must notify DPH of its intent to close at least 120 days prior to the intended closure date and must provide a copy of the notice to residents, families, staff and other stakeholders, including local officials (together, “interested parties”). In addition, a public hearing now must be held at least 90 days in advance of every closure. Following the hearing, the facility must submit a draft closure plan to the Department, post the plan in the facility and provide a copy of the plan to interested parties. The draft closure plan is subject to DPH approval, and must include a discussion of the following elements: the means for final notification to interested parties, psychological preparation or counseling for residents, consultation with residents or their representatives and efforts to find alternate placements, notification of times for family meetings, steps that will be taken to assist facility staff in preparing for closure, storage of medical records, timeline for freezing admissions, and the process for re-admitting residents from hospitals. At least 60 days prior to closing, the facility must post a closure notice and a copy of the approved closure plan at the facility and formally notify residents, family and staff. During the closure process, the facility must provide weekly updates to DPH on the status of closure activities.

About the Author

Crystal Bloom

Crystal Bloom is a partner and a senior healthcare regulatory attorney in Donoghue Barrett & Singal's Health Law group. She provides state and federal regulatory guidance and corporate legal services to healthcare providers. You can find her on LinkedIn.

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