December 1, 2000 | by Richard Peck

The Legislative Year: Ups and (Way) Downs

By Richard L. Peck, Editor
 
From the standpoint of long-term care, was the last year of the 106th Congress a good or bad year? It depends on how you look at it. Coming to a screeching halt at press time was progress toward important Medicare restorations ($1.6 billion for skilled nursing), repeal of consolidated Part B billing and continued postponement (for a third year) of $1,500 per year Medicare rehab caps. All of these had been adopted with bipartisan support and apparent presidential blessings, but they got stuck on the legislative "omnibus" with such politically contentious issues as education and tax relief. All of this might have been worked out by the time you read this, but whatever the outcome, the idea that these industry-critical items could be kicked around so blithely, without significant public outcry, was unsettling.
The good news, on the other hand, is that those key legislative items made it as far as they did. Long-term care industry lobbyists could rightfully take pride in these genuine achievements. Furthermore, there was progress in other areas. An important but little commented upon part of the Medicare legislation were so-called "return to home" rules, guaranteeing return of residents from acute care back to their facilities of origin, backed strongly by the American Association of Homes and Services for the Aging (AAHSA). The year had also seen the adoption, as law, of a plan offering private long-term care insurance as part of the Federal Employees Benefits Plan-"a key first step," says American Health Care Association (AHCA) government relations specialist John Shaeffler, "toward moving long-term care away from Medicaid and in the direction of personal responsibility." And if you go back to 1999, this Congress's first year, there was the adoption of the Balanced Budget Refinement Act (BBRA), which began the process of restoring the fiscal damage done by the Medicare Prospective Payment System (PPS).
Still in the legislative picture just prior to Election Day were two items that threatened to become troublesome for long-term care providers. The first was a mandate on the Health Care Financing Administration (HCFA) to issue final rules phasing out "intergovernmental transfers," a Medicaid loophole allowing states to boost their Medicaid rates to attract more federal matching funds, with the states then recouping the "extra" money to spend on various programs. Although some states poses, several have invested the badly needed funds into enhancing their long-term care systems. Critics have called this a "boondoggle" or, more kindly, a backdoor approach to government- financed long-term care. Whatever it's called, elimination of the transfers could deprive long-term care of billions of dollars.
 
A second troublesome issue was the continued viability of the OSHA Ergonomics Standard, which President Clinton attempted to revive from its Congress-induced slumber at the last minute (much as Robert O. Andres, PhD, CPE, suggested might happen in his Nursing Homes/Long Term Care Management article, "The OSHA Ergonomics Standard: Status Report," September 2000, p. 22). This proved to be one of the major stumbling blocks to a session-ending agreement between Congress and the president. The outcome was uncertain at press time but, at the very least, it appears as though the ergonomics standard-opposed by the industry as inadequately documented and too expensive-will nonetheless be very much a "live" issue among the legislators next year.
Providers have long been braced for the congressionally approved $1 an hour increase in the minimum wage (spread over two years), but it, too, was caught in the year-end partisan warfare, with uncertain prospects.
A legislative "dark horse" was the $1 billion long-term care staffing grant legislation proposed by President Clinton, introduced by Senators Charles Grassley (R-IA) and John Breaux (D-LA) and supported by the major provider organizations despite reservations about a minimum staffing ratio requirement slated for 2002. Though not prominently featured in the last-minute headbutting between Clinton and the Congress, the bill and its high-powered sponsors had generated considerable buzz on Capitol Hill and, if it is not adopted this year, promises to figure prominently on the 107th Congress's agenda.
Stepping back for a more global view of the legislative arena, long-term care providers can only be encouraged. Observers point to growing evidence that Washington's powers-that-be seem at last to be taking long-term care seriously. There is recognition of the financial shortfalls of Medicare and Medicaid, and even the beginnings of a re-evaluation of the entire long-term care system. "This is so," says AHCA's Shaeffler, "because there is a growing awareness by the public because they are living it every day."
Michael Rodgers, outgoing senior vice-president at AAHSA (he will have joined the Catholic Health Association as of publication), agrees. "There is growing recognition, spearheaded by such congresspeople as Nancy Johnson [R-CT] and Earl Pomeroy [D-ND], and by former Senator [David] Durenberger, who heads Citizens for Long Term Care, that our current system is badly flawed. What's more, government services for health and housing of the elderly are terribly fragmented. Medicare, Medicaid, the Administration on Aging, the Social Services Block Grant, HUD congregate care and service coordination, among others, are all involved, but seldom communicate or collaborate. All we've been doing so far is tinkering around the edges. We need to come together for a more unified vision."
Rodgers suggests that long-term care restructuring might best be accomplished incrementally, rather than by Big Government fiat. "We need to pull people together to work at individual steps until, 10 years later, you look back and find that the pieces are starting to fit together more rationally."
Whatever the 106th Congress did or didn't do, its members can fairly claim credit for one thing: While they might not have had the "final answers," they were starting to ask some very good questions.

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