New Notice Requirements for Transfers of Nursing Home Ownership or Control Outlined in DOH Directive
The Department of Health (DOH) issued a Dear Administrator Letter (DAL 22-08) last week informing nursing homes of new notice requirements for facilities undergoing a change in operator or in the ownership of an operator. These notice requirements arise out of amendments to the Public Health Law enacted in 2021 (available here and here). Based on the underlying legislation, these requirements apply to all nursing home "establishment" applications. Thus, although it is not entirely clear, it appears that a not-for-profit or public nursing home that undergoes a change in operator as a result of a merger or active parent affiliation with another not-for-profit facility would be subject to the new notice requirements, as well as a facility seeking to sell to a proprietary entity and a proprietary entity that seeks a change in its individual owners.
According to the DAL, the current operator of the nursing home and the applicant to be established as an owner or operator of the facility must provide two notices to residents, their designated representatives, and the facility's staff and union representatives as follows:
- First Notice: Within 30 days of DOH's acknowledgment of the certificate of need (CON) application to establish the new owner/operator; and
- Second Notice: Within 24 hours of the CON application being scheduled for consideration by the Public Health and Health Planning Council (PHHPC).
The DAL specifies the information that must be included in the notices. The second notice must include instructions for providing comments on the application to the PHHPC.
The applicant and nursing home may provide joint notices, but both parties are responsible for ensuring that the notices are provided. The notices must be completed by regular mail, email, or the delivery method specified by the residents, their designated representatives, staff, and union representatives. Nursing homes must maintain records of the content and method of notification to the specified recipients regardless of the entity that sends the notices. Applicants must submit, as part of their CON application, copies of the notices and affidavits certifying that the notices were provided.
Questions regarding the notice requirements may be submitted to DOH here.
These notice requirements were enacted as part of broader changes to the nursing home establishment process and the standards for reviewing the character and competence of proposed owners and operators. DOH recently adopted new regulations implementing these changes. LeadingAge NY's comments on the new regulations are available here, the new regulations are here, and a summary of the regulations is here.
Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8383