LeadingAge National Government News: October 23, 2024

On October 18, LeadingAge and fellow plaintiffs in the lawsuit challenging the CMS nursing home staffing final rule filed a motion for summary judgment, along with a supporting memorandum of law, asking the court to grant judgment in their favor on their claims that the staffing requirements must be invalidated. The motion argues that the staffing requirements must be set aside because they exceed CMS’ statutory authority and because the rule is arbitrary and capricious.  

“CMS has not even tried to claim that the statutory provisions in which Congress explicitly addressed staffing requirements empower the agency to enact these sweeping new mandates,” the memorandum argues.  

Links to the filings are available in the Nursing Home Staffing Mandates: What You Need to Know Serial Post.  

On October 18, the Federal Trade Commission (FTC) appealed a federal court ruling that invalidated a rule relating to non-compete agreements. On August 20, Judge Ada Brown, of the U.S. District Court for the Northern District of Texas, struck down an FTC rule that would have banned nearly all non-compete agreements nationwide. This LeadingAge article provides additional background and analysis, but in short: Judge Brown ruled that the FTC lacked the statutory authority to issue the non-compete rule, and that the rule is arbitrary and capricious under the Administrative Procedure Act. As such, the court held the rule to be unlawful and set it aside with nationwide effect.  

The latest update is that the FTC on October 18 filed notice of appeal to the U.S. Court of Appeals for the Fifth Circuit. For now, the noncompete ban is still enjoined under Judge Brown’s August ruling, and it will remain blocked unless and until the Fifth Circuit reverses that ruling. LeadingAge will follow the progress of the appeal over the coming months. 

On October 17, the Senate Permanent Subcommittee on Investigations chaired by Senator Richard Blumenthal (D-CT) released a report, Refusal of Recovery: How Medicare Advantage Insurers Have  Denied Patients Access to Post-Acute Care. The report underscored trends and patterns that LeadingAge has been reporting on and advocating against regarding practices that Medicare Advantage (MA) plans are utilizing in relation to post-acute care – and the report finds that the plans the Permanent Subcommittee on Investigations looked at are doing so in pursuit of cost savings.  

The Senate team looked at 280,000 pages of documentation related to practices undertaken between 2019 – 2022 by United Healthcare (UHC), CVS/Aetna, and Humana. These three plans make up 60% of the MA market. A telling quote from the report is: “The data obtained so far is troubling regardless of whether the decisions reflected in the data were the result of predictive technology or human discretion. It suggests Medicare Advantage insurers are intentionally targeting a costly but critical area of medicine – substituting judgment about medical necessity with a calculation about financial gain.”  

In addition to plans’ use of predictive technology, the report examined trends in prior authorization both in terms of initial denials but also in terms of volume of prior authorizations requested. LeadingAge will provide a more detailed analysis of the report in the coming days, but some key findings include: 

• In 2022, UHC and CVS/Aetna denied prior authorization requests for post-acute care at rates 3x higher than their overall rates of denial; Humana denied post-acute care service requests at a rate 16x higher than its overall rate of denial.  

• UHC’s denial rate for skilled nursing facility care increased by a factor of nine between 2019 and 2022, from an initial denial rate of 1.4% in 2019 to an initial denial rate of 12.6% in 2022. 

• A number of findings around UHC’s AI driven algorithm embedded within the product naviHealth, which is also used by Humana. These findings included the use of naviHealth to determine length of stay regardless of the person’s actual clinical need, the use of naviHealth’s portal function to avoid speaking to providers about authorization decisions – in fact instructing naviHealth employees NOT to speak to providers about certain items and using naviHealth to restrict home health visits and duration of care even if initial approvals for home health were higher than for skilled nursing or other post-acute care. 

• CVS/Aetna was found to have a higher initial rate of denial in the study period so that remained steady, but the volume of prior authorizations detected increased by 57.5% over the study period.  

LeadingAge’s press statement on the report can be found here. We look forward to continuing our advocacy on these issues and that effort is bolstered by this report. 

The Health & Human Services (HHS) Office of Inspector General (OIG) updated its Recommendations Tracker with the Top Unimplemented Recommendations of 2024 on October 17. Of thirty-three unimplemented recommendations, four relate directly to nursing homes including two recommendations related to psychotropic drug use, one recommendation related to infection control, and one recommendation related to facility-initiated discharges. Updates on all four recommendations are expected in the coming months. 

Recent weather-related crises and major disasters underscore the importance of conducting a Hazard Vulnerability Analysis (HVA), a crucial component of any emergency preparedness plan. An updated HVA can help identify potential hazards, assess the likelihood and impact of these threats, and ensure that mitigation strategies are in place. Review this article’s outline on how to update your organization’s HVA. LeadingAge has also developed emergency preparedness tools and resources that will help in preparation, policy creation, and testing and training. Incorporating regular drills and reviewing local and regional emergency trends will also enhance your organization’s readiness for unexpected events. 

At its latest meeting, the Healthcare Interpretations Task Force (HITF), a coalition of leading organizations instrumental in shaping fire protection policies for the healthcare sector, reviewed interpretations of the Life Safety Code. This summary highlights key issues pertinent to long-term care providers. These revisions are essential for ensuring compliance with current standards and enhancing the overall safety of nursing home residents and staff. Providers are encouraged to review the latest interpretations and implement necessary changes to their facilities. 

An October 17 Skilled Nursing Facilities (SNF) Open Door Forum answered questions related to new nursing home requirements for reporting of ownership, management, and related party data. CMS urged providers to review newly released and updated guidance on the updated Form 855A and stated that guidance will continue to be updated as new questions and need for clarification emerge. If questions remain after reviewing guidance, providers can reach out to CMS via a new HelpDesk email: SNFDisclosures@cms.hhs.gov. 

In October, new hospice CAHPS survey quality assurance guidelines were released following the FY2025 Hospice Wage Index final rule which updates the survey items as well as the administration protocols. In each chapter of the guidance document, a new section has been added called “New for QAG V11.0” which outlines any changes made in the survey protocol. 

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