Allow for more certified nurse aide training. Expand telehealth. Renew the commitment to elder justice. These are just a few items on long-term care providers’ crowded legislative agenda this year.
The work that major provider associations and lobbyists want to accomplish in 2020 runs the gamut from workforce development to technology to the perpetually thorny issue of hospital observation days.
While providers are not necessarily pinning their hopes on any one bill for passage, they have some clear goals in mind. But they also have tempered expectations. Beyond having a split, highly partisan Congress, it’s an election year, so the appetite among federal lawmakers to pass much legislation may be meager at best.
Training lockout in focus
One top legislative priority this year for for-profit and not-for-profit providers is relaxing the restrictive certified nursing assistant training lockout. The Ensuring Seniors Access to Quality Care Act, S. 2993, introduced by Sens. Mark Warner (D-VA) and Tim Scott (R-SC) in December, and the Nursing Home Workforce Quality Act, H.R. 4468, sponsored by Reps. Dwight Evans (D-PA) and Ron Estes (R-KS), would address this issue.
The bills would modify the law that puts a two-year hold on a nursing home’s ability to train students in-house to be CNAs if that facility has been found to have a deficiency and received a civil monetary penalty over $10,000.
The current law is problematic, providers argue, because it does not take into account the reason for the fine or consider when the provider fixes the deficiency. Needless to say, training is particularly critical for CNAs, who provide so much direct care to residents. A CNA shortage doesn’t help.
“This is incredibly important to us because of staffing challenges, driven in part by the good economy … in addition to the attrition we deal with when the economy isn’t so good,” Clifton Porter II, senior vice president of government relations at the American Health Care Association, the largest nursing home association, offers. “We are really struggling as a sector around workforce [issues], and these bills would help.”
Ruth Katz, senior vice president for policy at LeadingAge, the association representing wholly not-for-profit providers, also says that passing this legislation is a major focus for her members this year. The legislation, which also would allow operators to use the National Practitioner Data Bank to conduct background checks, could be a stand-alone bill or part of a larger reconciliation bill in May, she adds.
“We think it’s really important that it has bipartisan support,” she points out.
A spokeswoman from Warner’s office says the Senate Finance Committee likely will take on this effort at some point as the body realizes how important the bill is to Warner and Scott.
“The senator believes this [training lockout] provision in the bill will help improve the ability of facilities to train and retain quality staff,” spokeswoman Rachel Cohen says. “It’s also important to note that the legislation includes much-needed patient protections to ensure that facilities with serious and repeat deficiencies are not allowed to conduct training programs.”
Elder Justice Act reboot
There is another key bill that all providers are advocating for this year: reauthorization of the Elder Justice Act. AHCA would like the act to include provider access to the Health Resources and Services Administration database, a federal information trove for licensed clinical personnel. Access would help providers be aware of legal actions taken against workers’ licenses anywhere in the country.
As part of the act, AHCA would like clear definitions of abuse and neglect stated and ensure that these definitions are consistent across settings. Porter points out that hospitals don’t report abuse and neglect the same way as nursing homes. A key component of the act would be a “cohesive, online reporting structure,” he says.
LeadingAge agrees that the act should identify and address elder abuse and neglect where it happens and not disproportionately target nursing homes.
Tackling the shortage
Solving the workforce shortage is a key focus of LeadingAge. It is supporting IMAGINE, a proposal to create “an aging-forward immigration system that would engage foreign-born workers to address the workforce crisis faced by many nursing homes and aging services providers.”
“We are lobbying hard and building coalitions for a guest worker program … that would provide guest workers that could come into the country for a set number of years to provide aging services,” Katz explains.
LeadingAge also is supporting the enactment of the EMPOWER for Health Act of 2019 (H.R. 2781) and the Direct CARE Opportunity Act (S. 2521 and H.R. 4397). The latter would direct the Department of Labor to award grants to recruit and provide advancement opportunities to direct care workers. Reauthorization of the Older Americans Act, with provisions focused on the direct care workforce and training older workers in long-term services and supports, is another association objective.
Telehealth and more
While it may not be as pressing as CNA training or elder abuse definitions, technology is still front of mind for providers this year. One piece of legislation that the National Association for the Support of Long Term Care would like Congress to pass is the CONNECT for Health Act of 2019 (S. 2741, H.R. 4932). It would promote increased access to care and reduced spending in Medicare through the expansion of telehealth services.
Specifically, the bill would allow the secretary of the Department of Health and Human Services to waive certain prohibitions regarding the practice of telehealth, says Cynthia Morton, executive vice president of NASL.
“We are a proponent of rehab therapists using telehealth to deliver certain therapy services,” she points out. “It would help in rural and some urban areas where there are not enough therapists.”
NASL also is lobbying for the Improving Access to Medicare Coverage Act (H.R. 1682, S. 753), which would mandate that all time spent in a hospital, regardless of admission status, would count toward the three-day qualifying stay required for skilled nursing facilities under the Medicare benefit. It’s about time that the observation stay issue is resolved, Morton says.
“The whole community has been working on that for many years now,” she notes.
It’s quite a shock when a resident or family finds out they have to pay for a SNF stay because their stay in the hospital did not count toward a three-day qualifying stay.
“That’s a bitter pill to swallow,” she notes.
Associations are pressing on several other legislative fronts — from issues related to finance, quality, value-based payment and even regulatory matters, such as the Patient Driven Payment Model (PDPM).
Ballot blockade
While there is no shortage of legislation to pass, Congress may be less apt to act in a presidential election year, stakeholders admit.
“How many controversial issues will Congress want to tackle?” Morton poses. “Sometimes they don’t want to stick their necks out too far in an election year, so it’s unclear how much progress we’ll be able to achieve on these legislative priorities.”
Katz agrees that the election may dampen the desire to pass larger pieces of legislation, such as a guest worker program, which would require accompanying immigration reform.
Porter seconds that assessment.
“Again, as always, the election cycle tends to be distracting and there is less significant, less transformative legislation introduced in an election season,” he explains.
But he actually is less concerned about legislative threats than administrative ones this year. Substantial changes to Medicaid, through supplemental payment programs and block grants, are weighing heavily on his mind.
“We are seeing all this administrative activity,” he observes, “where there are attempts to do significant things to the Medicaid program.”
