Legislative prospects are dim. (View on Washington).
* The President's original proposal to provide a medication benefit for Medicare, lost in a combination of Democratic party opposition and rising federal deficits. A far more modest benefit that rests on the generosity of managed Medicare plans was proposed in the 2003 State of the Union address and has received tepid support in Congress.
* A legislative initiative to increase the participation of faith-based organizations in healthcare recently transformed into the use of administrative regulations to accomplish the same purpose. In either form, the proposal has little impact on long-term care, where religious groups already are very active in operating skilled nursing facilities, assisted-care residences, and home health programs for the elderly.
* A proposed limit on civil liability for medical malpractice, strongly supported by the American Association of Homes and Services for the Aging (AAHSA), American Health Care Association (AHCA), and AHCA's National Center for Assisted Living (NCAL), is still a live prospect. Rep. Jim Greenwood (R-Pa.) introduced the Help Efficient, Accessible, Low-Cost, Timely Health Care (HEALTH) Act in the last Congress to move the President's agenda in this area, but the HEALTH Act could not overcome opposition from the Democratic majority in the Senate at the end of 2002.
However, of these three items, the HEALTH Act has the best chance of becoming law during the 108th Congress. Greenwood reintroduced the bill as HR 5 on February 5, retaining its limit on punitive damages, lawyers' contingency fees, and liability for FDA-approved products. Many Democrats probably will continue to oppose the HEALTH Act, but their party no longer controls the agenda of either the House or the Senate. Furthermore, AHCA and AAHSA have documented that long-term care facilities in some states can no longer afford insurance coverage to protect them against lawsuits, with insurers who continue to renew and/or write new liability coverage increasing premium rates by as much as five times the cost of the same coverage just a year ago. The arguments of suffering long-term care providers, combined with concerted action by other healthcare professionals, might be able to convince enough Senate Democrats to allow the HEALTH Act to come to a vote--even if it means a victory for President Bush.
AAHSA, AHCA, and NCAL have some additional suggestions for a legislative agenda that, like the HEALTH Act, are viewed as important to the survival and financial solvency of long-term care. All three organizations support restoring funds lost from Medicare reimbursements in October. Since January, a majority of the members of the House and six freshmen GOP senators have written their respective leadership asking for a solution to the Medicare-reimbursement crisis. Sen. Charles Grassley (R-Iowa), chair of the Senate Finance Committee, reportedly has proposed to resolve the issue by transferring the authority to adjust reimbursement rates to the Centers for Medicare and Medicaid Services. This simple solution was adopted recently for physicians as a provision of the huge federal appropriations bill that passed in February. Congress may balk, though, at applying the same principle to nursing homes and other healthcare providers because there isn't enough money to provide fair reimbursement rates to all providers while funding the President's tax cut proposals.
AAHSA and AHCA both include federal assistance to Medicaid as part of their legislative wish lists, as well. They agree that Medicaid, which pays for two-thirds of nursing home residents throughout the nation, is dangerously underfunded. They disagree somewhat, however, on the solution. AHCA reportedly hopes that a new state waiver program proposed by the Bush administration could make new Medicaid resources available for FY 2004. AHCA also supports passage of the State Budget Relief Act of 2003 (HR 816/S 138), a bipartisan bill to provide $10 billion in short-term help to enable states to pay for essential Medicaid programs.
AAHSA, in contrast, focuses on a permanent "fix" in the form of a larger percentage of Medicaid funding from the federal treasury. According to Barbara Gay of AAHSA's Advocacy Division, proposed changes in the "match" between federal and state funds are needed because "a lot of states are really, really hurting." The Bush administration vehemently opposes changing the federal match, but most Republican governors reportedly have joined Democrats in lobbying for the relief.
AHCA and NCAL ask that Congress emphasize policies that make it easier to improve the long-term care workforce. These include reauthorization of the Nurse Education Act (Title VII of the Public Health Act) and enactment of national criminal background checks, funded by the federal government. The administration does not appear to be strongly opposed to either of these measures but is reputedly concerned about their cost.
AAHSA's own special legislative priority is HR 787 (also recently endorsed by AHCA), the Medicare and Medicaid Nursing Facility Quality Improvement Act, introduced by Rep. Dave Camp (R-Mich.) on February 13. HR 787 was, by its timing, virtually a regulatory Valentine's Day greeting to the long-term care field. It provides incentives for facilities with good survey records to acquire facilities that fail to meet standards. It requires survey teams to defer to the diagnoses and treatment plans of attending physicians rather than using their own opinions to judge the appropriateness of care. Additional provisions of HR 787 encourage informal dispute resolutions and a simplified appeals process, and opportunities for eight states to test replacing the current survey procedures with an alternative approach to regulatory oversight.
The Bush administration has already signaled that it wants no part of HR 787. The White House itself squashed discussion of survey-process reform last year when it appeared that Democrats might use the issue to win points in the 2002 elections. After all, the same Bush 'White House has been notably generous in relaxing regulatory restrictions on logging, mining, and oil drilling, with most Republicans who go along with this doubting they'll ever win much support from fervent environmentalists anyway. Senior citizens and their family members are a much more important "swing" constituency, though, which means that needed changes in the punitive nursing home survey system might continue to be held hostage to Republicans' fears that Democrats will charge them with weakening regulatory protection for elderly nursing home residents.
Predictions always are risky business on Capitol Hill, but a quick glance at the wish lists of the national associations of long-term care providers suggests that their Christmas stockings will remain fairly empty of legislative delights this December--and next December, too, for that matter.
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