House Bill 1920 and Senate Bill 845, which were introduced during the 2001 General Assembly Session, provided statutory requirements and resident protections that would apply to any long-term care facility which chose to voluntarily close or "not to renew its license or Medicare or Medicaid provider agreement...." HB 1920 was left in the House Committee on Health, Welfare and Institutions; SB 845 was left in the Senate Committee on Education and Health. The House Committee on Health, Welfare and Institutions agreed to refer HB 1920 to the Joint Commission on Health Care (JCHC) for further study. The Senate Committee on Education and Health approved a motion to refer the issues presented in SB 845 for consideration by JCHC's Long-Term Care Subcommittee.

Based on our research and analysis during this review, we concluded the following:

• For nursing facilities, federal regulations require nursing facilities certified to receive Medicare or Medicaid to give residents 30 days notice prior to transfer or discharge. The Code a/Virginia Title 32 requires licensed nursing facilities to give residents "reasonable advance written notice" prior to any transfer or discharge from the facility. Virginia Department of Health (VDH) licensing regulations require nursing facilities to provide written notification to VDH 30 working days prior to any licensing change including closure.

• In Virginia, very few nursing facilities have closed in recent years. No nursing facility has been involuntarily closed in the last eight years. There have been ten voluntary relocations and closures in the last four years.

• For assisted living facilities, the Code of Virginia in Title 63.1 provides that a resident may be "discharged only when provided with a statement of reasons, or for nonpayment for his stay and is given reasonable advance notice...." Department of Social Services (DSS) licensing standards regarding admission and retention require that resident notification will be given at least 14 calendar days prior to the date of discharge including discharge due to the facility's voluntary closure.

• DSS indicated that 198 assisted living facilities in Virginia closed or changed ownership from FY 1997 through FY 2000. While DSS tracks closures for licensing purposes, little information regarding the circumstances of the closures is automated. DSS estimated that 80 percent of the closures were voluntary in nature.

• HB 1920 and SB 845 were introduced at the request of the Jefferson Area Board for Aging (JABA). JABA staff expressed concerns regarding the adequacy of resident protections when a long-term car& facility decides to voluntarily close. JABA staff assisted in the closing of Jefferson Park Center during the summer of 2000. Jefferson Park Center representatives established a 90-day timeframe for relocating all residents and subsequently closing. JABA staff indicate that the 90-day timeframe did not allow for sufficient time for Jefferson Park Center residents to make an informed choice as to where to move. In addition, concern was expressed that Jefferson Park Center residents were encouraged to transfer to Oak Hill, a facility which was owned by the same parent company. Oak Hill had been cited in March 2000 and again in June 2000 by VDH for deficiencies related to federal certification requirements. All deficiencies were corrected by August of 2000.

• Both VDH and Department of Medical Assistance Services (DMAS) staff indicated that they were not aware of any problems occurring during the closing of Jefferson Park Center and that no complaints were received from residents or their families regarding the closure. VDH and DMAS staff indicated that they would not favor additional statutory requirements as adequate resident protections are provided by federal regulations and because limited financial resources are typically available to the closing facility.

• DSS staff indicated that while they were not aware of problems during the closing of Jefferson Park Center's assisted living facility, a number of closures have been quite problematic. DSS staff indicated that the provisions of HB 1920 and SB 845 generally do not address the problems of assisted living facility closures and that in some cases the bill provisions may exacerbate the problems. DSS staff stated that it is often best to move assisted living residents as quickly as possible to ensure that their quality of care does not suffer.

• Industry representatives also indicated concerns about the bills' provisions. One concern was that new statutory requirements could provide new grounds for lawsuits and negatively affect the cost and availability of liability insurance. A second concern was that a facility closing due to financial problems would not have the resources to provide quality care and remain open at low resident capacities.

A number of policy options were offered for consideration by the Joint Commission on Health Care regarding the issues discussed in this report. These policy options are listed on pages 37 and 38. Public comments were solicited on the draft report. A summary of the public comments is attached at Appendix D.

On behalf of the Joint Commission on Health Care and its staff, I would like to thank the Jefferson Area Board for Aging, the Virginia Department of Health, the Department of Medical Assistance Services, the Department of Social Services, the Office of the State Long-Term Care Ombudsman and the other agencies and associations who provided input and information during this study.

Patrick W Finnerty
Executive Director
January 2002