The year ahead for long-term care: Views from legislative advocates and analysts. (Cover Feature).

It's been said that September 11, 2001, changed everything. That's certainly been true for those who are charged with shepherding long-term care legislation through Congress and for those who analyze their campaigns. Suddenly on that date, advocates pushing--with some effectiveness--for government-sponsored initiatives to improve staffing and provide regulatory relief were confronted by a Congress preoccupied with national defense, economic revival and personal safety from anthrax. Major healthcare initiatives such as Medicare prescription drug coverage and a patients' bill of rights withered in the face of a new congressional emphasis on bipartisanship. Yet, for some long-term care issues, hope remained. The problems threatening to cripple long-term care haven't gone away, and the demand by the elderly and disabled for high-quality services continues to grow. It also helps that the Congress that left this year is the same Congress that is returning next year; there is no substitute for familiarity with the i ssues.

What does this mean for long-term care in 2002? Although predictions are hazardous, especially in this day and age, Nursing Homes/Long Term Care Management asked some key observers of the legislative wars to focus on likely developments in the coming year.

"It is definitely not business as usual in Washington, D.C.--perhaps especially in Washington. About 95% of Congress's attention was focused on current events this fall, and there's been a 'good taste' issue involved in how far we can push on specific issues. Some of the big, controversial issues like a patients' bill of rights and Medicare prescription drug coverage have been tabled, though, and there are new opportunities for some smaller issues to get attention.

"Right now we're repositioning ourselves on the issues of workforce, Medicaid, Medicare, and survey certification and enforcement. Just a couple of comments on each:

"Workforce. An important initiative is the legislation sponsored by Senator Edward Kennedy (D-Mass.) and Tim Hutchinson (R-Ark.), providing $5,000 training grants for workers displaced by the economy. We know that there are 100,000 positions available in long-term care today, and this could be an excellent opportunity for facilities to strengthen their staffs. We also foresee progress on single-task workers and a federally funded criminal background check system integrating with the various state programs.

"Medicaid. If you look at the $3.3 billion shortfall shown by the Lubarsky study [see "NH News Notes" November 2001, p.9] and the $3.1 billion that would be needed to meet the 2.75 hours per resident per day staff ratio that's been talked about, that's a $6.4 billion 'ask' for Medicaid. That's huge but appropriate, based on the data disclosed by Lubarsky. The governors are becoming concerned about Medicaid expenses as they see surpluses vanish and revenues drop, and there's general agreement in the states that the federal government has got to step up on this issue. Meanwhile, we need to partner with the National Governors Association and the Republican and Democratic governors' associations and see if there is some way to link Medicaid with welfare reform. We also need a lot of grass-roots activity by our members in all the states. Eventually there could be a Medicaid swap, with the federal government taking over all long-term care Medicaid and the states handing the rest, and this has realistic prospects in view of the states' budget problems.

"Medicare. The fiscal relief we got for the Medicare PPS sunsets in October, and we're going to be working hard for a one-year extension. We're working with CMS (the Centers for Medicare and Medicaid Services) on marketbasket calculations, but a concern is that if CMS goes through with some of the PPS refinements it's discussed, that would lead to additional reductions that the profession is not prepared to withstand.

"Survey certification and enforcement. One thing is for sure: Any proposal to dismantle the survey system is dead on arrival. We need common-sense reforms, and we have a chance at that with the Medicare Education and Regulatory Fairness Act (MERFA). Although it is not a sure thing, we think there's a chance for progress on expedited appeals for survey violations, and we'll be working hard on that.

"In general, we have to find a way to make long-term care issues generate the same kind of political interest and activity as the patients' bill of rights and Medicare prescription drug coverage did, in order to make progress on the reform we really need."

Bruno: "Congress has focused almost exclusively on national security issues, and there's been bipartisan agreement to jettison virtually anything controversial this year. Because congressional focus has changed so much, we've repackaged our agenda. For example, we've always advocated strongly for legislation designed to help recruit and retain nurses and nurse assistants, but now we can also link this issue to the national call for health preparedness. On regulatory reform, we're continuing to push for national policies that offer incentives for high-quality providers and relief from some of the punitive and counterproductive sanctions under current law. More comprehensively, we're hoping that, through waivers, states will be able to demonstrate successful alternatives to the current survey system."

Weiss: "We're looking for this to be a broad process involving consumers, as well as providers.

"We are also looking for broad reforms in Medicare and Medicaid. For example, for the Medicare PPS, we need an outlier policy--that is, payment to reimburse adequately for unusually expensive cases that fall outside normal expectations. As for Medicaid, we don't just need better rates, we need a new system. For starters, we need a mandatory federal floor on state payments for direct care. We're convening a special task force next year to review how the entire Medicaid system operates and ways to improve it. I don't see any legislative initiatives coming out of this, though, until late next year or 2003. Meanwhile, we're working closely with state legislatures to point out where certain cuts they might be contemplating could be 'resident-unfriendly.'

"As for liability insurance, this is difficult to deal with right now, primarily because the insurance companies themselves don't know where they stand after September 11. They'll know better after the reinsurance treaties are negotiated in January, but there could be big changes. That's why we're taking two courses: We're encouraging our members to reduce their risks by using continuous quality improvement (CQI) approaches, and to encourage risk management, the Continuing Care Accreditation Commission has developed a risk management standard that we believe will be applicable across a wide spectrum of long-term care continuums. Second, we're encouraging the insurance industry to stick with long-term care because of the continuing growth of demand for this industry's services.

"Finally, in view of the U.S. Supreme Court's Olmstead decision mandating care of the disabled in the 'least restrictive environment,' we're pushing for greater involvement of nursing homes with home- and community-based services (HCBS). There will always be a need for nursing homes, although probably with greater lengths of stay for higher-acuity residents. But they do have to become involved with HCBS--and it's interesting to see the degree to which our members have done just that. In a survey we just completed on AAHSA members and the long-term care continuum [see "NH News Notes," p. 10], we found that 47% of the respondents, representing more than 2,300 facilities, offer multiple levels of services or are part of a campus that does so."

Bruno: "We're also placing a big emphasis on our members continuing with the 'Congress-to-Home' visits by legislators to their facilities. These play a major role in getting our agenda to the forefront."

"The conflicts faced by state governments today revolve around their reduced revenues and resulting pressure to cut Medicaid spending. Home- and community-based services (HCBS) could be seen as either a cost substitute for higher-cost nursing homes or a cost increase. Despite this uncertainty, states are very interested in expanding HCBS programs. CMS recently offered $64 million in grant awards to support Medicaid system changes, consumer-directed programs and nursing home transitions. These grants, coupled with the Olmstead decision, support expectations of states increasing spending on community services while slowing the growth in nursing home spending and reducing nursing home utilization."

"So-called lifecare communities will continue to grow and services will be offered in people's homes to support independent living. In the future, a smaller percentage of older adults will enter nursing homes prematurely, thanks to an array of in-home assisted living services. Those who do enter nursing homes will likely be older and more frail.

"Today's system of financing long-term care is a national disgrace. As the baby boomers age and their parents become more involved with long-term care, one hopes that the problem will be viewed in a more comprehensive way, resulting in a plan that allows everyone to receive appropriate care at every stage of need.

"One very significant step toward building the needed continuum is some recently introduced legislation that would add community-based services to Medicare through the social HMO. This would be Medicare's first true venture into long-term care. The bill would also make social HMOs a permanent option for people enrolled in Medicare + Choice. We will be working very hard to get this legislation adopted--if not this year, then next."