Termination and Closure of Poor Quality Nursing Homes

1. Termination and Closure of Poor Quality Nursing Homes Erica Wood ABA Commission on Legal Problems of the Elderly for the AARP Public Policy Institute

2. Study Objectives • How termination & closure come about; Which homes • Use of sanctions • Focus on temporary management & receivership • Federal-state decision-making process • Resident relocation • Recommendations

3. Study Approach • Profiled 7 involuntarily terminated and closed facilities in 6 states (1996-2000) • Background interviews -- CMS, state regulators, ombudsmen, providers • Data collection on sanctions, termination, closures

4. 7 homes; 7 stories • Cobbs Creek -- PA 1998 • Venoy -- MI 1998 • Belle Woods -- MI 1999 • Audubon -- WI 2000 • Snapper Creek -- FL 1996 • Laurel Glen -- CA 2000 • Greenbelt -- MD 1999

5. Troubled, At-risk Facilities • Compliance cycles, including multiple terminations before closure • Financial strains; bankruptcy • 128 involuntary terminations 1997-2000; 33 closed; 7 studied • Concerns with closure -- resident relocation (eviction) & loss of beds

6. Legal Basis for Involuntary Termination • Two triggers -- immediate jeopardy & 6-month rule • 6-month rule predominant reason • CMS Regional Office/State roles • Differing perspectives

7. Intermediate Sanctions • Infrequent use • GAO study • Harrington study • This study confirmed • Which sanctions for which circumstances at what points??

8. Temporary Management - fluid term • Federal vs state • Voluntary vs involuntary • Judicial vs administrative • Individual vs team • Intermediate sanction vs closure • Enforcement vs consultation • Differing degrees of authority

9. Temporary Management --more • SOM scope of authority • State lists of LTC managers • Infrequent use • Harrington study • This study

10. Temporary Management -- Barriers • Lack of funds • Insufficient operation authority • Uncertainty about triggers, when to use • Too much trouble, uncertainty • Lack of qualified candidates

11. Long-Term Care Receivership • State statutory tool based on traditional equitable remedy • 27 states • Differing triggers • Differing duration • Differing powers & duties • Infrequent use

12. Resident Relocation • Differing gerontological studies • Varying judicial recognition • Federal regulatory response • State regulatory response • Role of ombudsman -- segue to next part

13. Study Recommendations • Strengthen data on enforcement & public access to data • Study effectiveness of intermediate sanctions • Initiate a temporary management demonstration project • Develop protocol for use of temporary management • Develop national database of temporary managers

14. Recommendations -- more • Couple limited flexibility in 6-month rule with temporary management • Strengthen LTC receivership statutes • Judicial education on temporary management & receivership • Funds for temp management, receivership & resident relocation • Guidance & best practices on resident relocation • Uniform protocol for tracking relocated residents

15. Role of ombudsman- termination • Get state data on at-risk facilities • Study state TM & receivership remedies • Communicate with CMS Regional Office; state regulators • Check state list of temporary managers • Encourage judicial education • Push for funding for TM & relocation

16. Role of ombudsman -- relocation • Advocate for strong closure protocol • Adequate notice • Resident assessment, interviews • Role of ombuds • Role of family councils • No placement in at-risk facilities • Olmstead • Post relocation tracking • Murtiashaw report -- on site role • New CMS voluntary closure memo