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

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

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

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

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

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

Intermediate Sanctions n Infrequent use –GAO study –Harrington study –This study confirmed n Which sanctions for which circumstances at what points??

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

Temporary Management -- more n SOM scope of authority n State lists of LTC managers n Infrequent use –Harrington study –This study

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

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

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

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

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

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

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