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27,000 comment on OBRA - but results may have to wait.

The nursing home field responded with a flood of comments and criticisms concerning the long-awaited release of draft federal regulations for enforcing OBRA reform legislation. Over 27,000 individual comments have been received on the regulations, officials of the Health Care Financing Administration (HCFA) reported to the American Association of Homes for the Aging (AAHA) annual legislative meeting in March.

According to HCFA, most of the nursing home operators' comments fell into two groups: First, the cost and sheer volume of paperwork required to document care provided under the new regulations. A nursing home operator from California claimed that already, paperwork required for inspection by enforcement survey teams cost his facility over $130,000 per year. Costs such as these are expected to rise even further in the near future, because the draft regulations propose that all necessary records be computerized at every Medicaid-eligible facility within a very short time. This will mean a bonanza for some software suppliers, but a new, unexpected expense for some small nursing home operators. And, as previously reported in this space, most states will not raise reimbursements to pay for the increased administrative costs.

The other major source of comments on the survey procedures has focused on requirements for determining the scope and severity of deficiencies found during inspection surveys. The proposed scope and severity determination gears sanctions to the survey team's determination of how many residents are affected by a given deficiency and whether the deficiency is merely a paperwork issue or a potential source of harm. In the past, the only sanctions available when a deficiency has been found were decertification or a ban on federal payments for new administrations -- depriving nursing homes of revenue just at the time a survey dictated increased spending to correct a deficiency. The proposed OBRA enforcement regulations' limited sanctions would not necessarily affect the nursing home's income.

But there is still room for controversy, as apparently many nursing home operators have recognized, i.e., the proposed regulation lacks a due process mechanism for resolving disputes between the nursing home and the survey team over the seriousness of a deficiency. HCFA claims that such due process is not necessary because scope and severity is merely an administrative aid to identifying appropriate sanctions. At the AAHA meeting, however, dozens of nursing home facility representatives pointed out that scope and severity determination could potentially mean the difference between the survival of a nursing home and decertification. Viewing the situation in that light, managers not surprisingly want an appeals mechanism.

It's too early to say whether the AAHA meeting and other exchanges between HCFA representatives and the nursing home industry will have an impact on the OBRA enforcement regulations. Throughout the sessions, the two groups continued to appear to talk past each other, with HCFA personnel responding to nursing home operators' complaints by saying that they would institute changes "if the survey process didn't generate the information they |HCFA~ wanted." In fact, though, it may be quite a while before any of this is resolved. HCFA's preoccupation with forthcoming health care reform legislation, which it is expected to play a large role in writing, will in effect put OBRA's final regulations on a back burner. Many at the AAHA meeting agreed that enforcement of OBRA is likely to remain an unresolved controversy for at least the next year.

Aging Committee Passes Away -- Unmourned?

Faced with an unexpected struggle over the chairmanship and charges that it cost too much for the work it performed, the Select Committee on Aging of the U.S. House of Representatives ceased to exist on March 31st.

The Committee on Aging, established in October 1974 largely at the initiative of the late Congressman Claude Pepper of Florida, served primarily as a forum for issues affecting senior citizens. Although unable to consider legislation, the committee has often held highly visible hearings on nursing home care.

In addition to fact-finding, the Select Committee was charged with encouraging coordination of government and private programs designed to deal with the problems of aging, and with reviewing activities of the White House Conference on Aging.

Pepper stepped down from the chairmanship in the mid-1980's, but remained a member until his death at the age of 91. He was succeeded as chairman by Edward R. Roybal (D-CA), a former health educator and social worker. Under Roybal, the House Committee on Aging maintained the reputation for dramatic fact-finding that Pepper had started. In 1992, for example, the committee conducted a well-publicized investigation of abuses in so-called "Medigap" insurance marketing to the elderly. Its findings led to inclusion of marketing controls in several long-term health care financing bills submitted in the House and Senate last year.

However, the 1992 elections devastated the Committee's membership. Roybal, aged 80, retired, along with the two most senior Republican members, Matthew Rinaldo of New Jersey and John Hammerschmidt of Arkansas. Roybal's most likely successor as chairman, Congressman Thomas Downey of Long Island, New York, lost his bid for reelection to Congress. In total, 12 of the 41 Democratic members of the committee in 1992 and 5 of the 26 Republican members failed to return to Congress.

January 1993 saw the most senior Democrat on the Aging Committee, Harold E. Ford of Tennessee, under indictment. The surviving members of the committee braced for a bitter fight for the chairmanship between two Democrats with equal seniority: William J. Hughes of New Jersey and Marilyn Lloyd, a "Reagan Democrat" from Chattanooga, Tennessee.

Meanwhile, a coalition of Republicans and conservative Democrats seized the opportunity of a new Congress to oppose continuation of all the Select Committees of the House of Representatives. The Republican leadership described such committees as luxuries too expensive for Congress to maintain.

Upon the demise of the House Select Committee on Narcotics Control and Abuse, Speaker of the House Tom Foley abruptly decided that the new Congress would gain a reputation for financial responsibility if it simply eliminated all four Select Committees: Aging, Children and Families, and Hunger, as well as Narcotics. With only a handful of senior congressmen protesting, the Democratic leadership refused to schedule further action to renew the authorization for the committees. The House Committee on Aging abruptly ended its existence without a formal vote.

In theory, permanent committees of the House of Representatives will continue the work of the Select Committee on Aging in focusing attention on the health care and housing needs of senior citizens. Former staff members of the committee, however, are doubtful. They cite the fact that not one permanent committee requested transfer of the Aging Committee's files. Nearly two decades' worth of hearing testimony and fact-finding reports on issues confronting older Americans appear destined for retirement to the congressional archives.
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Title Annotation:health reform legislation; Overseas Broadcasting Representatives Association
Author:Stoil, Michael J.
Publication:Nursing Homes
Date:May 1, 1993
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