LeadingAge National Government Updates: September 25, 2024

House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) announced on September 16 that the full committee will be holding a legislative markup of 16 bills on Wednesday, September 18, at 10:00 a.m. ET.  Among the legislation that will be considered by the full committee are five bills LeadingAge supports: 

• H.J. Res. 139, Congressional Review Act resolution of disapproval to overturn the nursing home minimum staffing rule;   

• H.R. 3227, Ensuring Seniors’ Access to Quality Care Act, to address the Certified Nursing Assistant (CNA) training lockout in nursing homes; 

• H.R. 9067, Building America’s Health Care Workforce Act, to re-establish Temporary Nurse Aide (TNA) flexibilities that expired with the public health emergency; 

• H.R. 7623, Telehealth Modernization Act of 2024, to extend certain telehealth flexibilities for Medicare beneficiaries; and 

• H.R. 8107, Ensuring Access to Medicaid Buy-in Programs Act, to eliminate the Institutional Level of Care (ILOC) requirement for receipt of Medicaid home and community-based services. An amendment is likely to be considered that would establish a pilot project testing the elimination of the ILOC requirement in five selected states. 
   

LeadingAge will be monitoring the committee markup for developments. The markup will be live streamed online at https://energycommerce.house.gov. 

In keeping with the Scheduling Order entered in the staffing standard lawsuit in which LeadingAge is a co-plaintiff, on September 13, the U.S. Department of Justice, on behalf of HHS and CMS, filed an administrative rulemaking record with the court. The record is a comprehensive compilation of the materials, data, and information the agency considered during the process of establishing the minimum staffing standard. This record will inform the court’s analysis of the legal issues in the case. The filing, in this case, consists of 75,000 pages, and includes the proposed and final rules, the comments received on the proposed rule (this material makes up approximately 90% of the record), and other material. We are also monitoring the status of an unopposed motion filed by the State of Texas on September 10 seeking to consolidate its lawsuit challenging the CMS staffing standard into the suit in which LeadingAge is a co-plaintiff. (The state’s lawsuit was originally filed August 14.)  As of September 17, the court has not yet entered a decision on the motion. We will post developments to our Serial Post as they occur.

The Quality Improvement Organizations (QIO) Facility Assessment Tool has been updated and is now available for use. This tool is an optional template that is organized in three parts: Resident Profile, Services and Care Offered, and Facility Resources Needed. Use of this tool is not required by the Centers for Medicare & Medicaid Services (CMS) and does not ensure compliance with Facility Assessment requirements. LeadingAge members can also refer to LeadingAge’s Facility Assessment Toolkit and Addendum for other helpful resources when updating the Facility Assessment.

LeadingAge, along with its Post-Acute Care (PAC) Coalition partners, engaged CMS on September 18 about our respective members’ observations that Medicare Advantage plans are not following the new prior authorization rules implemented January 1, 2024. We outlined trends we’ve observed through both anecdotal evidence and prior authorization data that our respective organizations have begun to collect from our members. We focused our remarks on 5 prior authorization provisions where we believe further regulatory guidance and clarification is needed.  CMS leadership was in attendance including Cheri Rice, Deputy Director of the Center for Medicare who leads the Medicare Advantage work; and roughly 20 other leaders and staff who oversee various aspects of the MA program such as plan contract administration, enforcement and oversight, and enrollment and appeals. On the positive side, the meeting ran into overtime with many from CMS remaining on the call. CMS staff suggested we set up subsequent meetings to continue our dialogue and help them better understand our interpretations of the rules, the specific regulations we believe plans should follow or are being ignored, and more discussion of possible solutions. Disappointingly, a deference to MA plan decisions was an underlying theme in these discussions and CMS staff said they would like to see more data/evidence of the issues we raised before making any course corrections in regulation.

Representative Raul Ruiz, M.D. (D-CA), Ranking Member of the Select Subcommittee on the Coronavirus Pandemic, announced at a September 10 hearing the introduction of the Sustained Allocations For Evaluations and Reviews of Nursing Homes Act, or the SAFER Nursing Homes Act. This bill would increase CMS’s survey and certification funding for nursing homes to $492 million in Fiscal Year 2025 (or 21% over current funding levels) and then shift funding for nursing home surveys from discretionary to mandatory funding beginning in Fiscal Year 2026. Every Democratic member of the Select Subcommittee joined Ranking Member Ruiz in introducing the SAFER Nursing Homes Act as an original cosponsor. The underlying proposal, which was included in the President’s Fiscal Year 2025 Budget Request to Congress, would help reduce backlogs and improve the survey process. LeadingAge supports these fundamental goals and the SAFER Nursing Homes Act.

As reported previously, nursing homes and assisted living communities continue to be eligible for weekly allocations of COVID test kits from the Department of Health & Human Services (HHS). To be added to the distribution or to increase your weekly allocation, send a request via email to tdx@hhs.gov with the following information: 

• A copy of the current CLIA waiver 

• Name and address of the nursing home or assisted living requesting the tests 

• Designation: nursing home or assisted living 

• Name, email, and phone number of facility point of contact 

• Number of employees 

Number of tests per week required by the requesting organization. 

LeadingAge meets with the Centers for Disease Control & Prevention (CDC) on a regular basis to discuss issues facing our members and the older adults they serve. These conversations help to inform CDC’s work, including recommendations made by the Healthcare Infection Control Practices Advisory Committee (HICPAC). Did you know that HICPAC also accepts feedback from individuals and the general public? Read on to learn more about how and why LeadingAge members should share feedback directly with HICPAC on pressing issues like COVID isolation guidelines, return to work recommendations for healthcare workers, and enhanced barrier precautions in nursing homes.

The Centers for Disease Control & Prevention (CDC) will be hosting webinars to review upcoming changes to the surveillance definition of “up to date” for COVID vaccines and a new, forthcoming combined respiratory pathogen vaccination, case, and hospitalization form for long-term care residents. Changes will go into effect the first week of Quarter 4 reporting (reporting week September 30 – October 6). Read more here. Register in advance for these webinars, to be held on September 24, October 1, and October 9.

On September 16, CMS released the Hospice Outcomes and Patient Evaluation (HOPE) final materials. Materials include the HOPE Guidance Manual v1.00, the Items sets (HOPE Admission v1.00, HOPE Update Visit (HUV) v1.00, HOPE Discharge v1.00 and HOPE ALL Item v1.00), and the HIS to HOPE v1.00 Change Table. All of these documents can be accessed from the Downloads section on the CMS HQRP here. LeadingAge will evaluate the materials and write up an article for members in the coming days. LeadingAge is also having sessions on HOPE at Annual Meeting, find out more here. 

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