Perhaps unsurprisingly, the majority of nursing home legislation introduced or passed this year had to do with staffing.
At the national level, Congressional efforts to block the federal minimum staffing proposal gained steam at the end of the year. State legislation ran the gamut, with California raising the minimum wage to $25 per hour for nursing home staff, while a slew of states enacted staffing agency-related laws.
“From helping Congress members and the Biden Administration understand our nonprofit nursing home members’ needs and challenges, to promoting common sense policy introductions or reform, our end goal is to ensure that older adults and families can access needed care and services,” Todd Adams, director of legislative affairs for LeadingAge, said of legislative efforts this year.
Here’s a roundup of state and federal legislation covered by Skilled Nursing News this year that may affect nursing homes. While not comprehensive, the list covers some heavy hitters from 2023.
Federal traction against staffing mandate
The Protecting Rural Seniors’ Access to Care Act gained major traction toward the end of the year. Sen. Deb Fischer (R-Neb.) introduced the bill on the Senate floor in December with support from eight other Senators.
Rep. Michelle Fischbach (R-Minn.) originally introduced the House bill in October and had the support of national nursing home associations including LeadingAge and the National Health Care Association (AHCA).
The legislation would stop the Centers for Medicare & Medicaid Services (CMS) from finalizing the minimum staffing proposal, along with requiring that a nursing homes workforce advisory panel be created.
The proposal calls for Medicare- and Medicaid-certified nursing homes to provide a minimum of 0.55 hours of care from registered nurse 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.
“The CMS proposed nursing home staffing requirement is the wrong approach. By prohibiting this unrealistic and unfunded mandate, the Protecting Rural Seniors’ Access to Care Act will help to ensure older adults can get the care and services they need and also fend off more nursing home closures,” said Katie Smith Sloan, president and CEO of LeadingAge.
Nate Schema, president and CEO of the Evangelical Lutheran Good Samaritan Society, said bipartisan support for the bill reinforces that the minimum staffing proposal is “out of touch with reality.”
“It signals a broad recognition among lawmakers that the focus needs to turn to more meaningful solutions – like creating a path for virtual RN coverage in rural nursing homes and bolstering the nursing workforce pipeline,” Schema said in a statement. “We are grateful for Sen. Fischer’s leadership on this issue and look forward to continuing to fight to ensure seniors have access to the high-quality care they need and deserve regardless of their zip code.”
Federal focus on education
Adams highlighted a couple other pieces of legislation that nursing home operators should keep their eye on, starting with the certified nursing aide (CNA) training bill: Ensuring Seniors’ Access to Quality Care Act.
LeadingAge worked with the House and Senate to reintroduce the legislation, which would address the two-year CNA training lockout caused by civil monetary penalties (CMPs). Facilities would allow reinstatement of such programs once CMS determines it to be in substantial compliance.
In terms of immigration reform and staffing, Adams said LeadingAge is working closely with regulatory agencies and Congressional offices to advance and support common sense immigration policies to streamline and expedite the visa application process.
“In addition to providing comments to proposed rule setting to update H1B and H2B visa requirements, we also worked cooperatively with the stakeholder groups and relevant federal agencies, highlighting the needs of healthcare providers and those serving older adults,” Adams said.
Two bills to expand and support access to educational opportunities among low-income individuals were successfully passed out of the Committee on Education and Workforce on Dec. 12, added Adams.
The Bipartisan Workforce Pell Act and A Stronger Workforce for America Act collectively allow students to use the Pell Grant program for short-term workforce programs and make improvements to the Workforce Innovation and Opportunity Act.
Bills to enhance SNF access via easing 3-day hospital stays, telehealth
Aside from legislative efforts to support clinical workers, Congress is also working on improving access to nursing homes.
The Improving Access to Medicare Coverage Act was reintroduced as well, Adams said, potentially mandating that all time spent in a hospital, regardless of admission status, would count toward the 3-day stay required for SNF services under Medicare.
Unfortunately, legislation aiming to modernize and bring more transparency to the prior authorization process used by Medicare Advantage plans lost steam once it was fitted with a large price tag, he said, referring to the Health Care Price Transparency Act.
Lastly, telehealth has allowed greater access to patients, particularly those in rural communities. Legislation aimed at improving use of telehealth such as the Expanded Telehealth Access Act and CONNECT for Health Act would allow certain therapy specialists to bill such services via telehealth permanently while expanding the list of providers. And this legislative effort would also add federal financial support to ensure interoperability of Health Information Technology in the long-term and post-acute care sector specifically.
“The ongoing question is how to capitalize on the progress made and lessons learned during the pandemic, which in many ways has served as the ‘demo’ of telehealth that many have asked for in the past,” Adams said of telehealth legislation; these bills so far have only been introduced in Congress.
Legislation to rein in staffing agencies
Several pieces of legislation across various states are also significant for putting limits on staffing agency practices.
State legislation proposed this year aims to establish complaint registries – mostly for new staffing agencies that popped up during the pandemic. Other bills intend to tackle exorbitant buyout clauses, or conversion fees for operators looking to make an agency worker permanent.
Indiana successfully passed legislation this spring that put boundaries on staffing agencies that were engaged in questionable practices by establishing a complaint process. The legislation also prohibited conversion fee clauses starting July 1.
“This was a member-driven charge to try and put some of those guardrails or safeguards in place,” Peaper said. “There are a lot of good actors out there, but these additional guardrails will hopefully root out the bad actors.”
During the pandemic, temp agencies grew at a fast pace, and it was often the newcomers to the scene that seemed to cause trouble.
Massachusetts implemented conversion fee bans early, but the state’s Department of Health and Human Services issued an advisory warning to agencies of violating payment rules.
Colorado also passed legislation putting limitations on conversion fees in May. The law allows the hiring of temporary employees into the permanent workforce without incurring fees – as long as that employee worked for a month or more at the facility.
Illinois eliminated its buyout clauses last year. The state also made amendments to the Illinois Nurse Staffing Act so as to effectively ban conversion fees as of last summer.
On the national level, nursing home associations pushed the Government Accountability Office (GAO) to conduct a study on staffing agency practices during the pandemic.
California’s wage law will take a decade
Skilled nursing facility staff, along with other health care workers in California, will see their hourly wage increase to $25 over the next decade as part of a new law that Gov. Gavin Newsom signed in October.
The increase is a result of years of lobbying by labor unions which have significant sway in the state. Newsom’s decision comes on the heels of an approved minimum wage hike for fast food workers to $20 per hour.
The law preempts moves by several city councils in the state to raise the minimum wage for health care workers.
Health care industry leaders and labor unions had been working to come up with a compromise in the final days of the state’s legislative session. Unions expect increased wages to allow some nursing home workers to leave the state’s Medicaid program along with other government support programs for food and expenses.
Almost half of low-wage health care workers have had to use such programs, according to a study by the University of California, Berkeley Labor Center.
Minnesota plans a wage board, infrastructure spending deal
Another state working toward increasing nursing home wages is Minnesota – legislators passed a bill to create a regulatory board to set compensation levels for SNF staff. The state had initially declined to increase wages.
The Minnesota Nursing Home Workforce Standards Board will set initial wage limits and working hours by Aug. 1, 2024, which will become effective January 2025. The board will also be responsible for setting minimum employment standards, certifying worker organizations to provide training, and creating curriculum training requirements.
Nursing home associations, including the Care Providers of Minnesota, are against the creation of a regulatory board. Patti Cullen, CEO of Care Providers, said that the board will be able to enact standards that nursing homes in the state will be unable to afford – and without support from the Legislature.
Minnesota lawmakers also reached a $2.6 billion infrastructure spending deal that includes $300 million for struggling nursing homes, or $75 million annually in additional aid over the next four years.
Florida CNA responsibilities
A measure that allows certified nursing assistants (CNAs) to administer routine medications was signed into law in June.
CNAs will undergo training to become qualified medication aides (QMAs) – the move is intended to free up registered nurses (RNs) to provide other needed care. Aides would be limited to administering oral, transdermal, ophthalmic, otic, inhaled or topical prescription medication under nurse supervision.
The Florida Health Care Association (FHCA) applauded the decision, adding that it will help address the workforce shortage by enhancing job satisfaction and offering CNAs higher wages and added career paths.
CNAs with at least one year of experience are eligible for additional training to become a qualified medication aide.
Texas legislation on Medicaid, Ombudsman program, Alzheimer’s care
A Texas senate bill will require nursing homes to meet the state’s direct care payment ratio. The legislation passed the state senate in April and was placed on the General State Calendar after being introduced in the House this spring.
The legislation will force Texas nursing homes through the state’s Medicaid managed care program to ensure 80% of the medical assistance reimbursement amount received is spent on direct care expenses.
Another bill introduced in the state House and passed in May, will refine rules governing the Long-Term Care Ombudsman program, including how the office will train, address complaints and allow access to resident records.
The ombudsman bill was introduced in the state senate and referred to the state Health & Human Services.
Another Texas bill concerns Alzheimber’s training in long-term care. Signed into law on June 13, the new policy requires assisted living facilities to provide their workers with four hours of Alzheimer’s and dementia training before handling patients with those conditions.
Louisiana eases consequences for inadequate emergency plans
Louisiana Gov. John Bel Edwards in May signed a bill into law that allows nursing homes to continue operating even if their emergency preparedness and evacuation plans fail to meet state standards.
The law became effective in August and rids the state of a provision added in 2022 which forced automatic shut down of a nursing home if officials rejected its emergency plan.
The move was facilitated in part by tragedy during Hurricane Ida when the owner of seven nursing homes was arrested in 2022 on felony charges in connection with the death of residents who were evacuated to a warehouse before Hurricane Ida.
In the wake of this scandal, Louisiana imposed new nursing homes evacuation rules, which may be on the way out.
Privatizing the survey process in Arizona
A bill introduced in the state senate may let nursing homes and assisted living facilities be surveyed by a third party to conduct annual and complaint surveys, essentially privatizing the process.
The legislation passed in February, but it doesn’t seem to have moved on to the House this year. The state’s Department of Health would contract with a third party entity to conduct all inspections, complaint investigations and survey duties related to long-term care facilities, according to the bill’s text.
Nursing home associations are against the legislation, saying it would double inspections and would not really serve the state.
Connecticut Gov. Ned Lamont in June signed into law bipartisan legislation with a slew of updates to state nursing home regulations.
As part of the reform package, a two-part study will be conducted of Medicaid rates of reimbursement, with interim reports no later than Feb. 1 2024 and Jan. 1 2025, giving updates on various subsections included in the study.
The legislation also requires that Connecticut nursing homes notify the state Ombudsman when a nursing home plans to involuntarily transfer or discharge a patient.
State SNFs must also establish a grant program for transportation of non-ambulatory nursing home residents to the homes of family members, change waiting list requirements, require transparent cost reporting, and impose stricter penalties for violations.