Vol. 17, No. 5
June 7, 2017

CMS Proposal to Reverse Arbitration Agreements in Long-term Care Facilities

CMS/HHS is set to publish a proposed regulation reversing an Obama Administration ban on binding pre-dispute arbitration agreements in long-term care facilities. The proposal, to appear in the June 8 Federal Register, comes in the wake of a November, 2016 U.S. District Court decision that had enjoined the department from implementing the ban, indicating it would most likely not pass muster under the Federal Arbitration Act (FAA). “We believe,” the department states in the to-be-published proposal, “that arbitration agreements are, in fact, advantageous to both providers and beneficiaries because they allow for the expeditious resolution of claims without the costs and expense of litigation.” Meanwhile, in a related development, a near-unanimous U.S. Supreme Court decision (7-1, with newly installed Justice Gorsuch not participating) voided power-of-attorney holders’ challenges to Kentucky-based nursing home arbitration agreements on the grounds that the FAA forbids singling out such agreements for disfavored treatment (Kindred Nursing Centers, LP v. Clark, 2017, No.16-32). 

Medicaid Standards of Care Extended to 2022

CMS announced on May 9 that it was extending from 2019 to 2022 the deadline for states to demonstrate compliance with home and community-based settings criteria set forth in 2014 and designed to facilitate more than 3 million Medicaid enrollees engaging in community life, controlling their own money, enjoying greater privacy, and seeking employment in competitive settings. “We anticipate that this additional three years will be helpful to states to ensure compliance activities are collaborative, transparent and timely,” CMS’s announcement stated. As California Health Line’s Phil Galowitz reported, the extension has been met with contrasting reactions. For Gary Blumenthal—CEO of the Association of Developmental Disabilities Providers, “the delay in implementing the federal role is a victory for the status quo and for states reluctant to embrace the new standards.” But Matt Salo, executive director of the National Association of Medicaid Directors, applauded the delay. “We have long been on record saying that the regulation was hopelessly unrealistic in its time frame. Delaying it actually helps consumers because the underlying regulation was going to push too many changes too fast into a system that wasn’t ready.” Eric Carlson, a directing attorney at advocacy organization Justice In Aging’s Los Angeles office, added that “(California, for one) is going to have to pick up the pace to meet the even more relaxed deadlines. Even the current timeline doesn’t give us much margin for error.”


With Congress returning from its Memorial Day recess, speculation continued to swirl over important health policy matters, including Republican efforts to dismantle Obamacare and President Trump’s plans regarding health insurance market stabilization. Receiving a major share of advocates’ attention was the future direction of Medicaid and how its 74 million beneficiaries could be impacted by the outcome of the Capitol Hill struggle. The Center on Budget and Policy Priorities, Health Affairs Journal bloggers, the Commonwealth Fund and others weighed in with multiple assessments of AHCA’s implications for Medicaid.

Impact of Per Capita Spending Limits

In a CBPP brief Judith Solomon and Jessica Schubel argue that home and community-based services would be severely impacted by AHCA’s proposed imposition of per capita spending limits. “Unlike nursing home care, which must be provided to all financially eligible beneficiaries who meet functional and medical criteria, states can control their expenditures for HCBS based on the fiscal and organizational capacity to support the services. States usually do this by limiting the number of slots available for people served by HCBS waivers and creating waiting lists, and they would likely further limit HCBS services under a per capita cap. Cutbacks would be likely even though they could ultimately lead more seniors and people with disabilities to be forced into nursing homes, worsening the quality of life and raising long-term state costs.”

Rural America Will Hurt if AHCA Inacted

CBPP analysts Jesse Cross-Call, Tara Straw, Arloe Sherman, and Matt Broaddus raise similar concerns regarding AHCA’s impact on rural health care. “Populations tend to be older and sicker than urban populations. For example, people in rural areas are more likely to die from heart disease, cancer, unintentional injury, chronic lower respiratory disease, and stroke then their urban counterparts. For these reasons rural residents likely benefited disproportionately from Obamacare’s protections against discrimination based on medical history–and they could be disproportionately harmed by removing those protections, as well as by the other major provisions of the House bill.”

How States May Respond to Medicaid Spending Caps

From Health Affairs blogger Vernon K. Smith comes another warning about per capita Medicaid caps. “Given that Medicaid is already lean, as a result of a perennial state focus on Medicaid cost controls, it is impossible to imagine how states could respond to the challenge of massive reductions in federal Medicaid support to states proposed in the AHCA without harming current beneficiaries. The proposed shift in fiscal responsibility from the federal government to the states is so large, no amount of new flexibility, could allow a response that wouldn’t include large state tax increases or severe reductions in coverage that would affect the medical services needed by the children, pregnant women, persons with disabilities, the elderly, and other adults now served by Medicaid.”

Medicare Won’t Be Left Unscathed

The Commonwealth Fund’s Cindy Mann and Allison Orris shift the focus from AHCA’s treatment of Medicaid alone, arguing that the legislation could have a profound impact on the 11 million Medicare beneficiaries also rely on Medicaid for key components of their care. “For example,” they write,  “reducing the availability of Medicaid-financed home care services that help people manage their complex health conditions could mean that more dually eligible individuals wind up in the hospital more often. Those costs would be borne by Medicare. The AHCA may on paper leave Medicare alone, but millions of Medicare beneficiaries and their families –and indeed the Medicare program itself–would feel its impact.”

Medicaid’s Problems Stem from Medical Costs

Yet another perspective on Medicaid’s future comes from Milbank Memorial Fund president Christopher F. Koller. Kollor first exonerates per person cost as the culprit in financing the program. “The evidence is clear,” he states, “that state administrators are pretty effective managers of the public purse—total state and federal per-person expenditures for Medicaid are rising more slowly than they are for Medicare or for private insurance.” The real problem, Kohler suggests, quoting Warren Buffett, “is that medical costs are ‘the tapeworm of American economic competiveness.’ As long as the cost management strategies employed by public and private payers consist of cost shifting–from the federal government to state governments, from employers to employees and among payers and providers, we are just distracting ourselves from the fact that prices for medical care are higher than any other country and are projected to rise 3% annually over the next 10 years. And that is before taking into account the effects of aging and increases in utilization.”

Demographic Trends to Push Medicaid Costs Upward

On Kohler’s last point—demographic trends—AARP’s Public Policy Institute has something to say in a new fact sheet entitled Capped Financing for Medicaid Does Not Account for the Growing Aging Population. “As a result of the demographic shift within the 65+ population,” Institute analysts Brendan Flinn and Ari  Houser observe, “the cost per older adult to  Medicaid is likely to increase as the Boomer generation ages. This cost increase will likely occur faster than the per capita growth rate proposed by the AHCA will allow. The PPI project, based on current Medicaid enrollment trends and U.S. Census population projections, that by 2050, the cost for Medicaid beneficiary age 65+ will be about 1.63 times the cost per beneficiary age 65 to 74. This represents a 12% increase in per-person spending due to the aging of the population.”

Six States Show Interest in AHCA Waivers

While the AHCA debate unfolds in Washington, six states that are moving aggressively to take advantage of HHS’s recently announced receptivity to Medicaid waiver requests have their proposals profiled by Mattie Quinn in Governing. The profiles examine undertakings in six states: Arizona, Arkansas, Florida, Kentucky, Maine, and Wisconsin.

Opportunities States Could Consider to Improve Medicaid Programs

Finally, McKinsey and Company consultants offer a series of proposals and considerations regarding Medicaid’s future in “Looking Ahead in Medicaid: Options for states and the implications for payers and providers.” The wide-ranging report details a variety of steps that states could consider with respect to care delivery and innovation, operational improvements, greater program efficiency, and modifications to enrollment, benefits and rates.

For our recommendation list of organizations tracking the repeal of the ACA, visit www.caregiver.org/aca-repeal.


RAISE and Credit for Caring Acts

Two pieces of proposed federal legislation affecting family caregivers are under active consideration. In the Senate the RAISE Act (S. 1028, the Recognize, Assist, Include, Support and Engage Act) has garnered unanimous support from the Health, Education, Labor and Pensions committee, thereby sending it on to the full Senate for a vote. Meanwhile, a bipartisan coalition of House and Senate members have introduced H.R. 2505, the Credit for Caring Act, designed to provide working family caregivers with a nonrefundable tax credit of up to $3000 to assist with out-of-pocket expenses related to caregiving. “As a daughter with two parents living with Alzheimer’s disease I understand the burden this responsibility places on family caregivers in similar situations all across the country,” co-sponsor Linda Sanchez (D-CA) said. “The Credit for Caring Act will help alleviate some of that burden by providing a tax credit for services such as home care and adult day care.”

CMS Calling for Comments on Reimbursement Changes for SNFs

The Center for Medicare Advocacy has sounded an alarm over a CMS Advance Notice of Proposed Rulemaking that calls for comments on possible changes to the reimbursement system for skilled nursing facilities. In CMA’s view, the proposed Resident Classification System, if implemented, would dramatically change the financial incentives for SNFs. “SNFs would receive higher reimbursement if they provided 15 or fewer days of Medicare coverage and only one form of therapy (and not three). Medicare reimbursement will also be higher if 50 to 75% of a SNF’s Medicare days were billed as non-rehabilitation. In contrast Medicare reimbursement would be lower for SNFs providing care to the oldest resident residents (age 90 plus), to residents receiving three types of therapy, or to residents having 31 or more days of care paid by Medicare.”

Threats to Medicare Home Health Coverage

CMA is also active on the home care front. It has issued an alert on threats to the now settled requirement that Medicare skilled nursing services cover care that is required to maintain beneficiaries’ condition. At the same time CMA has announced the availability of Part Three of a comprehensive issue brief series on all aspects of home health care coverage.


SB 562: The Healthy California Act

California’s Senate-introduced SB 562 passed the Senate on June 1 and is now moving to the Assembly. This bill would create the Healthy California program allowing for comprehensive, universal single-payer health care coverage for all Californians. 

AB 1513: Registered Home Care Aides: Disclosure of Contact Information 

Currently, there are over 111,000 registered home care aides and only 90,000 are searchable in the Home Care Aide Registry for California. This bill would require the Department of Social Services (DSS) to create a list of home care aides that are registered so it may be available to specific entities to use. This will increase the care home aides are able to provide to the state’s aging population. 

SB 147: Mobile Home Parks: Residency  

The goal of this bill is to make it easier for mobile homeowners to rent out rooms in mobile homes to their residents who have a person who lives in their home as a caregiver. By doing so, SB 147 clarifies the requirements to have an in-home caregiver for mobile home resident to provide documentation for the need of live-in care.

AJR 8: Public Social Services: Social Security, Medicare, and Medicaid  

This resolution addresses California’s Congressional Representatives to vote against any Medicaid, Medicare, and Social Security program cuts and advises the President of the United States to veto any legislation that will cut these programs too. These programs protect over 15 million California’s and 4 million of this population is retired workers, and over 700,000 are workers with disabilities. It is important to make sure these programs continue to exist to provide adequate health care to California’s most vulnerable populations.

AB 237: In-Home Supportive Services   

According to the recent State Auditor report on In-Home Support Services (IHSS), recommendations were made to improve payroll systems due to increases in payment delay that have negatively effected care givers that provide services and don’t get paid in a timely manner. This bill will establish the IHSS program to define payroll periods to exist every two weeks and regulate personal care services.


H 593: Equal Access to Community Care

This act supports equal access to community care for elders and disabled individuals. Support services will include Medicaid and Supplemental Security Income.


SB 26: Allow Patients of a Facility to Use Therapeutic Cannabis for Medical Treatment

Recently signed into law, SB 26 defines a “facility caregiver” as a residential care facility, nursing home, hospital, or hospice home that has agreed to allow patients of a facility to use therapeutic cannabis for medical treatment.


A 450: Wounded Warrior Caregivers Relief Act

This measure provides caregivers to be qualified for income tax credit that provide veteran care to armed service members that have physical disabilities. This bill is titled the Wounded Warrior Caregivers Relief Act.


HB 2425: Hospital Patient to Designate Caregiver to Receive Aftercare Instruction Regarding the Patient

The Texas version of the CARE Act is passed and signed in the legislative session just ending. This makes Texas the 39th state to pass this legislation.


In the wake of Republican efforts to dismantle Obama care and reduce the nation’s safety net programs, May saw publication of a number of essays grappling with some of the underlying political, policy, and philosophical arguments driving the legislative battle.

Where Will the Medical Misfits Go?

The op-ed pages of The New York Times provided a venue for several of these pieces. In an impassioned plea for support for safety net hospitals, Houston’s Ben Taub Hospital attending physician Dr. Ricardo Nuila asked “where will the medical misfits go” if facilities that care for vast numbers of uninsured patients are deprived of financial support. Nuila quotes Rice University healthcare economist Vivian Ho: “trauma isn’t just about people. After all everyone is one freak accident or lost job away from ending up as a misfit.” For uninsured patients, life-saving surgeries and treatments, along with a limited recovery period, are often covered through Emergency Medicaid funds. But, Nuila observes, “patients who don’t fit neatly into our medical system for reasons of health or finances or their social situation—the ‘medical misfits’—that anyone of us can become under the wrong circumstances meed far more long-term support. This is often where safety net hospitals step in.”

On Health and Welfare, Moral Arguments Can Outweigh Economics

Patricia Cohen delves deeply into the Obamacare drama by starting with one congressman’s comment that it was “unfair that healthy people who lead good lives should have to subsidize the insurance of unhealthier ones who presumably don’t.” “The judgment of who is deserving—as opposed to what is most effective—is at heart a moral one.” Cohen argues, as well as the crux of the social safety net debate. Cohen paints a broad historical and philosophical context for understanding competing notions of fairness and worthiness that have permeated American history—pointing to an 1874 article in the New York Times that discussed the difficulty of discriminating between “the really needy” and those “too indolent to help themselves.”

Health Insurance Benefits Should Be Equitable, Not Necessarily Equal

Three Health Affairs bloggers—Betsy Q. Cliff, Michael Rozier and A. Mark Fendrick—tackle the issue of fairness and worthiness from a more practical perspective in arguing for health insurance benefit design based on equity rather than quality. “Coverage arrangements and most insurance plans are designed under principles of the quality rather equity,” the bloggers argue. “To fully realize the benefits of medical advances, ensure access for those who could benefit most, and enhance the efficiency of our healthcare expenditures, we need to change this paradigm. Equitable benefit design recognizes that many chronic conditions offer require tailored therapies for achieving results and allows for discrimination based on clinical need. Where this has been implemented, the result has been better quality healthcare and a reduction in health disparities, often without additional cost.”

The G.O.P. Health Care Bill Is Fixable

For Republican policy advisor Avik Roy, president of the Foundation for Research on Equal Opportunity, “the GOP healthcare bill is fixable.” The problem with House Speaker Paul Ryan’s AHCA, Roy argues, is its underlying insistence on creating a “federally defined, one-size-fits-all tax credit that provides a nearly uniform level of assistance regardless of need. Republicans routinely ask the poor to work harder to lift themselves out of poverty. But under the ACA those who work longer hours or earn a raise or take a second job to cross the poverty line will be slapped with a gigantic health insurance tax. For those in their 60s, the cost of crossing the poverty line could exceed $10,000 a year. If the Senate,” Roy argues, “were simply to remove the House bill’s uniform tax credit and continue a hybrid model past 2019 through 2020 and beyond, the Senate would be able to direct more financial assistance to those who need it, whether because of old age, ill health or low income.”

High-Price Drugs Raise Costs for Seniors in Medicare Part D

Drug prices for Medicare Part D beneficiaries are soaring according to Wall Street Journal reporter Joseph Walker. The problem arises in part, his article observes, because “pharmaceutical company rebates offered to non-Medicare insured are replaced by general premium reductions for Medicare enrollees;” that, according to recently departed CMS drug spending overseer Tim Gronniger, produces a result that “relatively small premium savings aren’t worth the extremely high cost some patients bear. You’re effectively trading off the financial well-being of a sick person who has a lot of other medical costs against an average enrollee’s premium.”

How To Win The Doctor Lottery

Moving from policy debates over the future of health insurance coverage, Donna Jackson Nakazawa pens an absorbing Health Affairs essay on the significance of the individual doctor-patient relationship. “How to win the Doctor Lottery” describes Nakazawa’s journeys through both near disastrous and life-saving encounters with individual physicians. Nakazawa concludes on a somewhat hopeful note: “primary care physicians and other providers are already helping drive the types of changes that make it more likely patients will win the “lottery.” For one, they are moving toward value-based care delivery and payment models, which reward meeting quality of care targets as opposed to simply paying for the quantity of care. Team-based care, in which a doctor works as a member of a larger team (including, for instance a medical assistant, social worker, and behavioral health expert), also can create a more healing environment and ensure that all the patients’ needs are addressed. Lastly, greater attention is being paid to transitions in care, to ensure that care runs smoothly across various settings, especially when multiple providers are involved, so that life-saving information is never lost in translation. All of these strategies rely upon doctors listening to, seeing, and respecting their patients-and on measuring care not only by their actions but by their presence.”


Hospital Readmission Reduction Research Raises Some Doubt

In prepublication findings presented at the American Geriatrics Society’s 2017 scientific meeting, University of North Carolina’s Dr. Kevin Biese cast some doubt on the ability of post-emergency department discharge interactions to curb older patients’ readmissions. The intervention studied was a nurse phone call to check on medication adherence, understanding of medical instructions, and the scheduling of follow-up appointments. In the randomized controlled trial, readmission rates for both the control group and the group receiving a structured 20 minute phone call were similar. Commenting on the study outcome article by Medscape reporter Marsha Freillick, Dr. Laura Hansen, co-chair of the AGS abstract selection committee, observed that the “checking in to make sure that patients are getting their medications, that they understand the medical instructions, and that they schedule follow-up appointments are all considered best practices, and that didn’t work.”

Raising some further doubts about readmission reduction efforts, researchers led by Cedars Sinai Medical Center’s Dr. Teryl K. Nuckols concluded from a meta-analysis of 50 economic evaluations, with data on more than 16,700 patients, that “multifaceted QI interventions reduce or cause hospital readmissions but did not consistently yield net savings to the health system. Is implementing QI interventions to reduce readmissions a good value? On the one hand, the interventions are generally effective and cost neutral to cost savings to the health system. On the other hand, hospital readmissions only indirectly reflect patient health outcomes. Many readmissions are in the patient’s best interests and not avoidable. To fully assess value, a cost-effectiveness analysis would need to be performed from the societal perspective, considering health related quality of life and other implications for patients and caregivers.”

National Academy of Medicine Report: Accounting for Social Risk Factors in Medicare Payment

A final, comprehensive report by the National Academy of Medicine, released at the end of May, addresses social risk factors that affect the health outcomes of Medicare beneficiaries. The committee recommends four goals for considering such risk factors: reducing disparities in access to care, outcomes, and quality; improving care quality and efficiency for all patients; ensuring accurate and fair reporting; and fairly compensating insurers and providers. “Accounting for social risk factors,” the Academy observed, “seeks to minimize the influence of factors that are largely beyond providers control or recognize that these factors make it harder and/or more costly for providers to achieve performance benchmarks. Adjustment for social risk factors would be very similar to the adjustment for clinical risk factors in current payment models.

In a related NAM publication a panel of four Centers for Medicare and Medicaid Services staff experts examine the development and potential application of standardized screening for health-related social needs in clinical settings. The paper focuses on CMS’s Accountable Health Communities model, a 10 question screaming tool to identify unmet needs in housing, food security, transportation, utilities, and interpersonal safety. “The impacts of unmet nonmedical health-related social needs (HR SN’s), such as homelessness, inconsistent access to food, and exposure to interpersonal violence, on growing healthcare utilization and individual health are well-established. Fortunately, evidence indicates that addressing these and other needs can help reverse their deleterious health effects.”

Report on Patients Who Refuse Home Healthcare Services

“I Can Take Care of Myself” is the title of a new report from the United Hospital Fund and the Alliance for Home Health Quality and Innovation. The publication shines a light on a little examined issue: patients who refuse home healthcare services when they are discharged from inpatient care. Such refusals can lead to higher rates of readmission to the hospital and a lower quality of life. The report points to a recent study of Medicare beneficiaries that found that “every year over 10,000 people die soon after discharge from an emergency department even though they are relatively young and have no evidence of previous life limiting illnesses.” That study’s authors identified a particular clinical ‘signature’ of discharge diagnoses linked to short-term deaths, including altered mental state, shortness of breath, and fatigue. They suggest that “it is possible that additional testing or monitoring-whether via admission, monitoring at home, or expedited outpatient follow-up-could have benefited at least some patients. Referrals to home healthcare could partially fill this role.

More Americans Would Like Feds to Cover Long-term Care

More than half of Americans, over 40–56% —favor federal government coverage of the cost of long-term care, according to a new AP-NORC poll. The growing support—up from 39% 2013—coincides with additional poll findings that found two thirds of over-40 Americans have done little or no planning for their own long-term care needs. In fact, the survey shows that if anything, older Americans feel less prepared for the cost of care than they have in recent years. Just 15% say they are very or extremely confident that they’ll have the financial resources they need to pay for any ongoing living assistance, down from 27% who said so in 2013.”

ASA Issue of ‘Generations’ on End-of-Life Care Available to Download

“Generations,” the Journal of the American Society on Aging, has published a theme issue dealing with end-of-life care and ASA is offering the 100 plus-page document free for downloading on its website. Guest editors Bill Novelli and Raca Banerjee have gathered 18 articles covering a wide range of practical and policy topics including “Caregiving at the end of life: the challenges for family caregivers” and “Patient preferences, policy, and POLST.”

CMS Quality Improvement Organizations Report

CMS has released a 26-page report detailing the activities and impacts of the Quality Improvement Organizations program in 2016. QIOs currently function in two capacities: 1) a network of 14 regional organization that operate multiple data-driven quality improvement initiatives to improve patient safety, reduce harm, engage patients and families, improve clinical care and reduce health care disparities; and 2) two organizations dividing geographic  responsibility to manage all beneficiary complaints and early discharge appeals. The report includes various vignettes of QIO projects related to such matters as infection control, medication errors, and clinical practice transformation.


Microsoft Watch Calms Parkinson’s Tremors

Through a discovery of vibration patterns sent directly to a patient’s wrist, this wearable wrist device apparently eases the tremors caused by Parkinson’s disease. Created by a Microsoft developer, the vibration pattern “disrupts the feedback loop between the brain and hand.” The Emma Watch is currently a prototype and Microsoft intends further development.


FCA to Participate in AARP Online Tech Fair

FCA Executive Director Kathy Kelly will be available for a one-hour chat on AARP’s Online Technology Fair tomorrow, June 8, at 12 noon (PT); 3 p.m. (ET). Our booth and chat is an opportunity to learn more about Family Caregiver Alliance and to learn more about FCA’s new innovation, FCA CareJourney. For more information visit our calendar page or visit AARP’s registration page. Note: To join the chat, you must register for the Tech Fair. When you visit the Tech Fair tomorrow, look for FCA’s booth in the Exhibit Hall, then click on “Special Chats.”

Professional Studies
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Contributing to Caregiving Policy Digest are Alan K. Kaplan, attorney and health policy consultant, Gabriella Ortega, Kathleen Kelly, and Francesca Pera (editing and layout).

Send your feedback and/or questions to policy_digest@caregiver.org .

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