A component of the minimum staffing proposal that has received little notice thus far is that labor unions may have some weight in determining the staffing levels needed for a particular building.
This feature was the source of discussion among attendees at the annual conference for the American Health Care Association and National Center for Assisted Living (AHCA/NCAL). As operators develop facility assessments to address the specific needs of each resident unit to align with the minimum staffing requirements, it might benefit them to note that the Biden Administration’s staffing proposal encourages unions to provide input.
The addition has flown somewhat under the radar, with nursing home operators focusing more on the 24/7 registered nurse rule, lackluster funding support and the absence of licensed practical nurses (LPNs) from the minimum staffing proposal released on Sept. 1.
“I’ve never seen this kind of thing in a proposed rule,” said Cynthia Morton, executive vice president of ADVION, which represents professional medical service providers working in long-term care facilities. While the rule doesn’t require union participation with assessments and staffing levels, Morton said there’s some “really interesting language” suggesting how much of a help unions can be.
Along with the impact of the minimum staffing proposal, ADVION experts shared insights and updates on upcoming policies relevant for its members during ADVION’s 34th annual meeting in Denver, taking place alongside the AHCA/NCAL conference this week. These included care policies related to dementia, updates on the proposed Physician Fee Schedule, and legislation tied to IT and managed care.
Union voice through minimum staffing proposal
The Biden administration’s inclusion of unions in the minimum staffing proposal isn’t entirely surprising, Morton continued, given President Biden’s pro-union stance on wider topics.
“He wants us to know, he is the union president … as we’ve seen through the UAW strike over the last couple of weeks, and then the president going to the picket line, and all of this rhetoric leading up to that,” said Morton.
Even when Biden was a member of the Senate, and as a lobbyist, his support for labor unions was a big part of his position and his platform, she added.
Sticking with the minimum staffing proposal, Morton said ADVION may join in the American Health Care Association’s campaign to obtain at least 10,000 comment letters by Nov. 6 in response to the potential rule – an effort termed as the “groundswell of support.”
“CMS does have to read all those [comments] which could cause more time to be taken for CMS to finalize such a rule,” added Morton. “I don’t not think this rule is going to be out really quick. CMS is going to have to give it a lot of thought and consideration.”
The campaign coincides with action from Congress as well. A group of Senators sent a letter to CMS urging the Biden administration to rescind the federal staffing mandate.
The proposal calls for Medicare- and Medicaid-certified nursing home to provide a minimum of 0.55 hours of care from an RN per resident per day and 2.45 hours of care from a nurse aide per resident per day, with non-rural nursing homes having 3 years and rural nursing homes have 5 years to meet these standards.
Physician fee schedule and inflation
The physician fee schedule (PFS) was another major talking point for ADVION, given that it’s a rule that is yet to be finalized. For now, providers are facing a 3.6% cut in the proposed PFS rule first announced in July, which translates to a $1.53 billion loss for 2024. Only the PFS and home health agency rules are pending finalization.
By contrast, the SNF final rule has been finalized and offers a 4% bump in pay for 2024, a $1.4 billion infusion CMS has said was added to account for inflation.
And yet, the PFS hasn’t received any such consideration for inflation resulting in groups including MedPAC, a nonpartisan federal policy agency, calling for reform.
“Even MedPAC said that [CMS] really ought to add an inflationary update to the Physician Fee Schedule,” said Morton. “All of the Part A programs have it, we get that cost of living update under Part A for SNFs, home health, so it’s considered, it’s in statute, but the fee schedule does not have an inflationary update tied to it. That’s why we’re in this problem.”
In April, a bipartisan policy titled the Strengthening Medicare for Patients and Providers Act was introduced in Congress. And while ADVION endorses it, Morton said it’s not “ready for primetime” yet.
“It’s gaining support, we’re pushing it in our grassroots efforts but we need to get co-sponsors onto that bill,” she said. It’s more of a messaging vehicle, noted Morton. There isn’t a lot of consensus on how to reform the PFS, other than having an inflation update tied to it.
And, the cost for reform would be in the “double-digit billions” – making the bill difficult to push forward at the moment, she said.
Another bill to keep an eye on, Morton said, is one that more directly affects therapy providers. It’s known as Enabling More of the Physical and Occupational Workforce to Engage in Rehabilitation, or the EMPOWER Act.
The legislation allows general supervision of physical therapist assistants and occupational therapy assistants under Medicare Part B outpatient practices. The policy also requires the U.S. Government Accountability Office (GAO) to look into how a previous 15% payment differential for these roles has impacted access to therapy services in rural and medically underserved areas since its implementation last year.
