PHHPC Committee to Discuss Proposed Nursing Home Transfer of Ownership Regulations
The Department of Health (DOH) released draft regulations on Sept. 21st that would strengthen the evaluation criteria applied to applications to establish and transfer ownership of nursing homes. These regulations would apply to any application subject to establishment review. Establishment applications include not only applications to create new nursing homes, but also (among others) applications to purchase an existing nursing home, to merge existing homes, or to assume control of an existing nursing home through an active parent arrangement. The intent of the proposed regulations is to improve the transparency and consistency of establishment decisions and to strengthen the evaluation of the competence and quality of proposed operators.
The proposed regulations include new procedural requirements as well as changes in the evaluation criteria. Specifically, the regulations require:
- DOH to notify the Office of the Long Term Care Ombudsman when it acknowledges receipt of an establishment application and when the application is scheduled for Committee consideration;
- the current operator of the facility and the applicant to notify the residents and their designated representatives and the staff, including their union representatives, of an application for establishment and of the scheduling of the application for Committee review.
The draft regulations add extensive new elements to the character and competence component of the application review. Some highlights of the new review elements are:
- In addition to the 10-year lookback imposed on applicants to operate any type of facility licensed under Article 28, the proposed regulations look back seven years at any ownership and control of a nursing home among applicants to operate a nursing home. The Public Health and Health Planning Council (PHHPC) is directed to consider if any affiliated facility has a Centers for Medicare and Medicaid Services (CMS) star rating of two stars or fewer; any instance in which an affiliated facility has been decertified or terminated from Medicare or Medicaid; and any instance in which an affiliated facility has been designated a Special Focus Facility or Special Focus Facility candidate. In determining whether a substantially consistent high level of care was provided in light of these factors, the PHHPC is directed to weigh the gravity of any violation, the manner in which the applicant/operator exercised supervisory responsibility over the facility operation, and the remedial action, if any, taken after a violation was discovered, and the percentage of nursing homes in a portfolio with a two-star or less rating.
- The PHHPC is barred from approving an application if any of the following has occurred in the previous five years in a facility with which an individual applicant has been affiliated:
- Closure of a facility or a facility has closed as a result of a settlement agreement from a decertification action or licensure revocation.
- A health care-related facility, agency, or program was the subject of a decertification action or licensure revocation.
- Involuntary termination from the Medicare or Medicaid program.
- Violations found which either threatened to directly affect patient/resident health, safety, or welfare or resulted in direct, significant harm to the health, safety, or welfare of patients/residents and were recurrent or were not promptly corrected.
- A violation is recurrent if it has the same root cause as a violation previously cited within the last seven years.
- A violation is not promptly corrected if a plan of correction has not been submitted to the Department within 10 days of the issuance of the statement of deficiencies and the facility has failed to provide an acceptable date of compliance based on the violation(s) requiring correction.
- The application cannot be approved when greater than 40 percent of the nursing homes in the portfolio of any individual included in the application has a CMS star rating of two stars or less and the individual has held an ownership interest in such nursing home for 48 months or more, unless the portfolio contains fewer than five facilities. If the portfolio includes fewer than five facilities, the PHHPC may, on a case-by-case basis, make a determination to approve the application.
The draft regulations will be discussed by the PHHPC's Committee on Codes, Regulation, and Legislation at its Sept. 23rd meeting at 10:15 a.m. in the Empire State Plaza in Albany. If the PHHPC approves the regulations, they will be published in the State Register and subject to a public comment period. Meeting information is available here, and a livestream of the meeting will be available here. LeadingAge NY is analyzing the impact of these newly released draft regulations and will be submitting comments once they are published.
Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838