February 7, 2021, Maggie Flynn, Skilled Nursing News - With a change in presidential administration comes changes in policy, and skilled nursing facilities should expect a shift in the approach of the federal government to regulation. As the SNF sector emerges from the devastation of COVID-19, they are also going to receive significant oversight from the administration of Democratic President Joe Biden.
And according to the head of one of the largest nursing home trade groups in the country, that’s as it should be.
“We are going to have a large amount of oversight on our sector,” Mark Parkinson, the president and CEO of the American Health Care Association (AHCA) said last week during Skilled Nursing News’s virtual Payments, Policy and Capital Summit. “And we should. I mean, we have had over 500,000 people in our buildings contract COVID, and we’ve had over 100,000 people die. The system should be analyzing what in the heck went wrong and what happened and what should we do about it in the future?”
The fact that 563,000 long-term care residents tested positive for COVID-19 needs to be put into context, he noted at the summit; there are approximately 1.2 million long-term care residents total. And this does not include independent and assisted living facilities, which have shakier data than SNFs, Parkinson noted.
The death toll in SNFs — more than double the 50,000 deaths of the Vietnam War — means that operators should expect oversight, even as they depend on government support to maintain operations and stave off closure.
The financial aid in 2020 was significant and helped keep many SNFs operating, Parkinson said; on top of the more than $10 billion that came out of the CARES Act’s Provider Relief Fund that went directly to nursing homes, the sequestration 2% cut was eliminated and another 2% increase was granted under the Patient-Driven Payment Model (PDPM) for Medicare patients. In addition, an increase in the Federal Medical Assistance Percentage (FMAP) was enacted, though only some states passed that increase on to nursing homes in the form of enhanced Medicaid rates.
Several waivers from the Centers for Medicare & Medicaid Services (CMS) made operations easier for SNFs in fighting the COVID-19 pandemic. But with occupancy in deep trouble, AHCA is going to continue “advocating for significant tranches of money to the skilled nursing sector” in Washington, D.C., not just for increases of 2% to 3%, Parkinson said at the summit.
But Parkinson emphasized that he wants the sector to be proactive in proposing solutions to the problems that emerged with horrible clarity over the course of the pandemic. And SNFs will have to be proactive to have a shot at convincing lawmakers to lend them the support they need.
“In our discussions with leadership on Capitol Hill, the advice that they have given us has consistently been the same, which is: You guys better have a plan,” Parkinson said. “If you don’t have a plan, you’re going to have a plan thrown upon you.”
Multiple unknowns remain about how the Biden administration will be approaching the nursing home sector, though Parkinson said he believes there will be a pivot away from the model of the Trump administration, which examined whether some of the Requirements of Participation “had gone too far.”
Parkinson also predicted a new focus on arbitration in the Biden administration, with the goal of slowing down or halting its use. In the Obama administration, there was a push to ban SNFs from using mandatory arbitration agreements altogether, one that drew a lawsuit from AHCA and an eventual injunction.
The Trump administration eventually overturned the Obama-era ban on arbitration, though it added several provisions for consumer protections, multiple lawyers told SNN in 2019.
Advocates, physicians, and the family members of residents all have proposed various solutions to help fix the problems in SNFs that were illuminated by the pandemic — ranging from establishing minimum staffing ratios to requiring a full-time infection preventionist on site in facilities. And many of the SNF sector’s critics will try to get enforcement increased to some degree, Parkinson predicted.
AHCA’s board is in the process of putting together a plan of action to bring to lawmakers, and though Parkinson did not delve into specifics, citing the fact that discussions are ongoing, he said the plan centers around being clear that the pandemic was not entirely? the fault of SNFs — while acknowledging the need for improvement.
“All of those ideas that have been out there in the past are going to be discussed, and have a real possibility of occurring,” he said. “So we have to make the decision as a sector: Are we going to be part of the conversation, are we just going to sit back and wait and see what’s done to us?”
The one stipulation for whatever the board comes out with is that payment is needed, Parkinson said. Boosting registered nurse coverage, for example, or adding a full-time infection preventionist, are steps that SNFs would advocate for as long as there is some kind of funding to support them.
Wages are one critical area for improvement; many certified nursing assistants (CNAs) are starting at wages of $9 or $10 per hour, “just not a livable wage,” as Parkinson noted.
“Our argument’s always been: Well, you got to pay us under Medicaid a sufficient amount so that we can pay a livable wage,” he said. “I think we’re going to be more aggressive in that, I think we’re going to say: Look, we’ve got to get these people up to a point where they’re making what you need to survive, at a minimum.”
When it comes to wages, some operators have been concerned about the potential for Congress to pass a $15-per-hour minimum wage; in several states, CNAs make much less than that, which Parkinson said was correlated to states with low Medicaid reimbursement rates.
AHCA will be calling for lawmakers to create a Medicaid mechanism that helps states meet a $15-per-hour minimum wage — if such a law is passed. A stimulus bill to likely pass in mid-March is to be debated using the reconciliation process, which requires only 51 votes in the Senate. This process can only be used for budget matters, Parkinson said, so “the prevailing view” is that a minimum wage increase cannot be passed by Democrats in a reconciliation bill.
Though that won’t be definite until the parliamentarian makes a ruling, the other question is whether all 50 Democrats would vote for such a bill; according to Parkinson, this is not clear. Meanwhile, a proposal from the Biden administration on minimum wage does increase it to $15 per hour, but only gradually, with the $15 effect not fully implemented until 2025 — a factor Parkinson said operators need to keep in mind.
“It’s not like all of a sudden, in next week’s paycheck, you have to increase to $15 an hour,” Parkinson noted. “There is a glide path, so that in most states, this really wouldn’t be that much of an issue. But I do realize that there are a few states, particularly in the South, Midwest, upper Midwest, where it would still be a problem.”
Another critical area will be overhauling facilities to allow for more private rooms. Housing multiple people in a room proved an extremely hazardous arrangement in the COVID-19 era, to say nothing of its effect on resident quality of life.
Yet this practice remains fairly widespread in the SNF space, and some states have actually started to offer funding to eliminate multi-patient rooms, Parkinson said.
“I didn’t realize coming into the pandemic, how many rooms there are that are out there that are still three and four residents to a room,” he said during the summit. “I think there’s going to be a real push by the states can come up with some way to accommodate funding, so that we don’t have those because obviously, in a pandemic, those have been problematic.”