REGULATORY INTELLIGENCE YEAR-END REPORT - 2021 Health Policy Tracking Service - Issue Briefs Long-Term Care Funding and Insurance This Issue Brief was written by Louise W. Seiler, B.A., a contributing writer. 12/20/2021 I]. OVERVIEW Long-term care services include a broad range of services and supports that meet both the medical and non-medical needs of people with a chronic illness or disability, over an extended period of time. Non-medical needs include Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs). ADLs include bathing, dressing, using the toilet, transferring to or from a bed or chair, incontinence care, and eating. IADLs include housework, managing money, taking medication, meal preparation, and cleanup, shopping for necessities, using a telephone or other communication device, pet care, and response to emergency alerts. [FN2] A RAND Corporation study found that the average American's lifetime risk of using a nursing home is greater than previous research has suggested. Among persons 57 to 61, 56% will stay in a nursing home at least one night during their lifetime, according to findings published online by the journal Proceedings of the National Academy of Sciences, the RAND press release says. [FNS] Previous studies generally corroborated U.S. Department of Health and Human Services' estimate that only 35% of older Americans would need to use a nursing home. Only about one-third of Americans between the ages of 57 and 61 will spend any of their money on nursing home care over their lifetimes, while 43% will be completely covered by private or public insurance, the study found. Most people will experience short stays in nursing facilities at a relatively affordable cost; the recent shift toward shorter stays may account for the higher estimate of nursing home use. The study found that nursing home stays of short duration (21 nights or fewer) rose from 28% in 1998 to nearly 34% in 2010. Long-term care services can be provided in a variety of settings, both institutional and home- or community-based. The National Center for Health Statistics reports that in 2014, 9 million people in the United States received care provided by 4,800 adult day services centers, 12,400 home health agencies, 4,000 hospices, 15,600 nursing homes, and 30,200 assisted living and similar residential care communities. Further, NCHS found that in 2014 there were 282,200 participants enrolled in adult day services centers, 1,369,700 residents in nursing homes, and 835,200 residents in residential care communities; in 2013, about 4,934,600 patients received services from home health agencies, and 1,340,700 patients received services from hospices. [FN4] The proposition of getting long-term care is becoming more costly every year, according to the 17th annual Genworth Cost of Care Survey, IFN5! released in February 2021. Genworth has conducted the survey for 17 years. The most recent report looks at the increasing cost trends that have occurred between 2004 and 2020. Over that time, care settings have seen increases in costs ranging from 30% for home health care to 79% for assisted living facilities. Annual national median costs broken down by category, and total percentage increase since 2004 are as follows: * Assisted living facilities: $51,600, up 79.17% (averaging $1,425/yr) * Nursing home ? private room: $105,850, up 62.38% ($2,542/yr) * Home health aide: $54,912, up 30.22% ($797/yr) * Homemaker services: $53,768, up 41.14% ($980/yr). Why are costs rising? A number of factors are driving up the cost of care, according to the survey. Key among them: ¢ Shortage of skilled workers ¢ Personal protective equipment (PPE) costs THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. ¢ Regulatory changes (including updated CDC guidelines) ¢ Employee recruitment and retention challenges « Wage pressures; and ¢ Supply and demand. A majority of Americans 40 and older are unsure how they'll pay for long-term care, according to the recent Associated Press-NORC Center for Public Affairs Research survey. IFN6] The survey of 1,117 respondents in all 50 states and the District of Columbia was conducted between February 18 and April 9, 2016. Key findings include: * Nearly 4 in 10 mistakenly expect to rely on Medicare to pay for their long-term care needs as they age. ¢ 77% would prefer to receive care for themselves in their own home and 67% would prefer for their loved ones to receive care in a home setting. ¢ One-third say they have done no planning at all for their own long-term care needs. ¢ 72% support state-paid family leave programs to help Americans providing care to a loved one. « A majority support a number of policies to help Americans finance long-term care; tax breaks are especially popular. The AP-NORC Center has conducted annual surveys since 2013 to investigate experiences and attitudes regarding long-term care. The surveys have revealed that a majority of American adults hold a number of misconceptions about the extent of the long-term care services that they are likely to need in the future, and the cost of those services. In contrast to the limited long-term care coverage offered by private medical insurance and Medicare, Medicaid pays for many long- term care services. However, eligibility and the extent of coverage vary from state to state. Additionally, the federal Deficit Reduction Act IFN71 (DRA), which became law in February 2006, influences the extent of Medicaid coverage. This omnibus bill reduced spending for many federal programs, including long-term care. The legislation encourages states to refrain from using federal Medicaid dollars to fund costly institutional long-term care and creates incentives to redirect services to a more community-oriented setting. One of the provisions of the DRA requires states to expand the 'look-back" period for asset transfers from three years to five years. Another provision makes individuals with a home equity over $500,000 to $750,000 (as determined by each state) ineligible for coverage. Furthermore, annuities must be disclosed, and the state must be named as a remainder beneficiary. States also must take into account all income of institutionalized spouses to meet the minimum monthly maintenance needs allowance for spouses remaining in the community. Exceptions from penalties can be applied where health or life is endangered. [FN8] How states deliver services-such as home care, assisted living, nursing home care, and supports for family caregivers-was assessed in a report compiled by AARP's Public Policy Institute, joined by The Commonwealth Fund and The SCAN Foundation, entitled 'Advancing Action, 2020: A State Scorecard on Long-Term Services and Supports for Older Adults, People with Physical Disabilities, and Family Caregivers." IFNS] Released on September 24, 2020, the report examines five key dimensions of LTSS system performance: (1) affordability and access, (2) choice of setting and provider, (3) quality of life and quality of care, (4) support for family caregivers, and effective transitions. States that rank highest overall-Minnesota, Washington, Wisconsin, Oregon, Vermont, California, and Connecticut-often do well in multiple dimensions but have opportunities to improve, the report found. Lagging states that scored in the bottom quartile overall (Mississippi, Nevada, Louisiana, Tennessee, Indiana, Arkansas, Oklahoma, Kentucky, South Carolina, Alabama, West Virginia, and Florida) have among the lowest median incomes and highest rates of both poverty and disability, and many are in the South. States that scored in the second or third quartiles have opportunities to improve, having scored in the top quartile on at least one dimension (e.g., Nebraska, Arizona, Ohio, Illinois, Alaska, and Texas). The report also found that a wide variation exists within dimensions and indicators, with low-performing states being markedly different from those that score high. Often, low-performing states have not adopted public policies to increase access to services, or that enable consumers to exercise choice and control. The costs of long-term services and supports (LTSS) have historically been covered by Medicaid, private insurance, personal savings, and direct unpaid care provided by friends and family members, according to a report by the Bipartisan Policy Center. Recent analyses suggest that roughly 52 percent of individuals turning age 65 will require LTSS at some point in their lives. Noting that LTSS would more than double over the next 35 years, the report raised concerns about the sustainability of those traditional financing mechanisms. [FN10] To address these concerns, the Bipartisan Policy Center (BPC) launched a Long-Term Care Initiative under the leadership of former Senate Majority Leaders Tom Daschle and Bill Frist, former Congressional Budget Office Director Dr. Alice Rivlin, and former Wisconsin Governor and HHS Secretary Tommy Thompson. The result of their findings was published in a report released in 2016. [FN11] Key recommendations of the LTC funding plan include: * Increasing the availability and affordability of private long-term care insurance to extend existing resources; ¢ Expanding options at home and in the community for older Americans and individuals with disabilities under Medicaid; THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. ¢ New option for working individuals with disabilities using a Medicaid 'buy-in'; and ¢ Addressing the needs of Americans with significant LTSS needs by providing a public insurance program. Il. IMPACT OF COVID-19 ON LONG-TERM CARE Operators Concerned About Surviving Financial Challenges According to a new survey from the American Health Care Association/National Center for Assisted Living, [FN12] only a quarter of long- term care operators are confident they can last a year or longer, due to the financial challenges caused by the COVID-19 pandemic. Survey findings showed that 54% of nursing home operators reported they are currently operating at a loss, while 49% have had to make cuts due to increased expenses and lost revenue in 2021. The top three costs incurred by facilities due to COVID-19 are: additional pay for staff, hiring additional employees, and personal protective equipment (PPE). Additionally, 84% of respondents reported they're also losing revenue due to fewer post-acute patients coming from hospitals; 83% cited financial losses due to fewer residents seeking long-term care; and 37% said their losses are attributed to residents/patients moving out. Mark Parkinson, AHCA/NCAL president and CEO, said in a statement, 'Lawmakers and public officials across the country must prioritize the residents and caregivers in our nursing homes and assisted living communities. This starts by sending immediate resources through what remains of the Provider Relief Fund, and it continues by finally addressing the chronic underfunding of Medicaid, which only covers 70 to 80 percent of nursing home care." The survey was based on responses from 616 nursing homes and 122 assisted living communities across the United States. Waivers of Regulations Under Section 1135 of the Social Security Act, the HHS Secretary is authorized to waive certain Medicare, Medicaid, and Children's Health Insurance Program program requirements and conditions of participation once the President has declared an emergency through the Stafford Act IFN'13] and the Secretary has declared a Public Health Emergency. President Trump issued such an emergency declaration on March 13, 2020, and the HHS Secretary issued a PHE on January 31, 2020, in response to the spread of COVID-19. As a result of this authority, CMS can grant waivers to ease certain requirements for affected providers. CMS has approved hundreds of waiver requests from healthcare providers, state governments, and state hospital associations in 15 states. On March 30, 2020, CMS announced an array of blanket waivers and new rules designed to help healthcare providers respond to the COVID-19 outbreak. '*"4! with the announcement of blanket waivers, other states and providers do not need to apply for these waivers and can begin using the flexibilities immediately. The temporary waiver for Medicare's three-day hospital stay and other so-called 1135 waivers will continue at least into January 2022, after the COVID-19 public health crisis designation was extended by HHS Secretary Xavier Becerra on October 15, 2021. IFN15] The waivers will continue to apply until at least January 16, 2022. In addition to the 1135 waivers, CMS on October 20 also extended a waiver giving providers more time to comply with fire safety standards adopted prior to the pandemic. Since mid-2016, nursing homes have been required to meet standards included in the 2012 Life Safety Code and the 2012 Health Care Facilities Code, or use the National Fire Protection Association's 2013 Fire Safety Evaluation System (FSES) as an alternative. In a memo sent to state survey agencies, CMS officials said providers using FSES and operating under a time-limited waiver to correct certain deficiencies will have an additional two years to comply. The deadline is now November 1, 2023. Other waivers that apply to nursing facilities include: * Telehealth services. CMS is now paying for more than 80 additional services supplied via telehealth, including initial nursing home and discharge visits. Providers also are now allowed to evaluate beneficiaries who have only audio phones. ¢ 3-Day Prior Hospitalization. CMS is waiving the requirement for a 3-day prior hospitalization for coverage of an SNF stay, which provides temporary emergency coverage of SNF services without a qualifying hospital stay, for those people who experience dislocations, or are otherwise affected by COVID-19. In addition, for certain beneficiaries who recently exhausted their SNF benefits, it authorizes renewed SNF coverage without first having to start a new benefit period. ¢ Reporting Minimum Data Set. CMS is waiving the timeframe requirements for Minimum Data Set assessments and transmission. ¢ Pre-Admission Screening and Annual Resident Review (PASARR) waived. CMS is waiving 42 CFR 483.20(k) allowing states and nursing homes to suspend these assessments for new residents for 30 days. ¢ Physical Environment. Provided that the state has approved the location as one that sufficiently addresses safety and comfort for patients and staff, CMS is waiving requirements under 42 CFR 483.90 to allow for a non-SNF building to be temporarily certified and available for use by a SNF in the event there are needs for isolation processes for COVID-19 positive residents, which may not be feasible in the existing SNF structure to ensure care and services during treatment for COVID-19 are available while protecting other vulnerable adults. CMS will waive certain conditions of participation and certification requirements for opening a nursing facility if the state determines there is a need to quickly stand up a temporary COVID-19 isolation and treatment location. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. ¢ Patient rooms. CMS is also waiving requirements to temporarily allow for rooms in a long-term care facility not normally used as a resident's room, to be used to accommodate beds and residents for resident care in emergencies and situations needed to help with surge capacity. ¢ Resident Groups. CMS is waiving the requirements that residents can participate in-person in resident groups. This waiver would only permit the facility to restrict in-person meetings during the national emergency given the recommendations of social distancing. ¢ Training and Certification of Nurse Aides. CMS is waiving the requirements that a SNF not employ anyone for longer than four months unless they have met the training and certification requirements under 42 CFR 483.35(d), to assist in potential staffing shortages seen with the COVID-19 pandemic. Facilities must still ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents' needs, as identified through resident assessments, and described in the plan of care. ¢ Physician Visits in Skilled Nursing Facilities/Nursing Facilities. CMS is waiving the requirement for physicians and non-physician practitioners to perform in-person visits for nursing home residents and allow visits to be conducted via telehealth options. ¢ Resident roommates and grouping. CMS is waiving the requirements in 42 CFR 483.10(e) (5), (6), and (7) solely for the purposes of grouping or cohorting residents with respiratory illness symptoms and/or residents with a confirmed diagnosis of COVID-19, and separating them from residents who are asymptomatic or tested negative for COVID-19. ¢ Resident Transfer and Discharge. CMS is waiving certain requirements to allow an LTC facility to transfer or discharge residents to another LTC facility solely for the following cohorting purposes: 1. Transferring residents with symptoms of a respiratory infection or confirmed diagnosis of COVID-19 to another facility that agrees to accept each specific resident, and is dedicated to the care of such residents; 2. Transferring residents without symptoms of a respiratory infection or confirmed to not have COVID-19 to another facility that agrees to accept each specific resident, and is dedicated to the care of such residents to prevent them from acquiring COVID-19; or 3. Transferring residents without symptoms of a respiratory infection to another facility that agrees to accept each specific resident to observe for any signs or symptoms of a respiratory infection over 14 days. [FN16] Nurse practitioners will be allowed to conduct certain medical exams on Medicare patients at nursing homes for the first time under a new policy announced on April 9 by CMS. 'It's all hands on deck during this crisis. All frontline medical professionals need to be able to work at the highest level they were trained for," CMS Administrator Seema Verma said. [FN17] jy addition, doctors can now directly care for patients at rural hospitals, across state lines if necessary, via phone, radio, or online communication, without having to be physically present. The greater flexibility is part of a campaign to continue to meet patient needs, whether COVID-19 related or not, in the face of increased care demands. CMS's workforce changes apply immediately and address supervision, licensure and certification, and other limitations in various healthcare settings. They are part of an array of temporary regulatory waivers and new rules issued recently by CMS and intended to help the American healthcare system respond to COVID-19. CMS Rule Requires Education and Vaccines As part of the ongoing response to address the COVID-19 pandemic, and to improve health care access and reduce the risk of severe illness and death from COVID-19, the Centers for Medicare & Medicaid Services (CMS) issued a rule on May 11, 2021, to ensure that long-term care (LTC) facilities educate and offer the COVID-19 vaccine to residents, clients, and staff. The requirements apply to Long-Term Care (LTC) facilities and Intermediate Care Facilities for Individuals with Intellectual Disabilities, or ICFs-IID, and align with existing requirements for influenza and pneumococcal vaccines in LTC facilities, according to an agency press release. [FN18] LTC facilities are also required to report weekly COVID-19 vaccination status data for both residents and staff, under the rule. The new vaccination reporting requirement will not only assist in monitoring uptake among residents and staff, but will also aid in identifying facilities that may be in need of additional resources and/or assistance to respond to the pandemic. LTC facilities are already required to report COVID-19 testing, case, and mortality data to the National Healthcare Safety Network (NHSN) for residents and staff, but have not been required to report vaccination data. To ensure LTC facilities receive support for vaccination efforts, facilities are now required to report weekly vaccination data of residents and staff to the Centers for Disease Control and Prevention's NHSN, the nation's most widely used healthcare-associated infection tracking system. As data becomes available, CMS will post facility-specific vaccination status information reported to the NHSN for viewing by facilities, stakeholders, and the public on CMS' COVID-19 Nursing Home Data website. Vaccination of Staff and Residents January 4, 2022 Deadline. Long-term care staff must be fully vaccinated against COVID-19 by January 4 under a new healthcare worker vaccination rule issued by CMS that took effect November 5, 2021. IFN19] Broviders were required to establish a policy by December 5 ensuring that all eligible staff have received the first dose of a two-dose vaccine regimen, or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by the January deadline. The much-anticipated rule requires that all eligible staff receive either two doses of Pfizer or Moderna or one dose of the Johnson & Johnson vaccine no later than the first Tuesday of 2022. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. CMS said it will compel compliance with the new requirements through established survey and enforcement processes. Exemptions based on recognized medical conditions or religious beliefs, observances or practices will be allowed, but operators must develop their own processes for allowing those exemptions. In addition, companies with more than 100 employees will also be mandated to require COVID-19 vaccinations for their workers or do regular testing by January 4, the Department of Labor's Occupational Safety and Health Administration announced on November 4. The emergency temporary standard is designed to protect more than 84 million U.S. workers, officials said. The new CMS requirements will apply to approximately 76,000 providers and cover more than 17 million healthcare workers, the agency said. The regulation 'will create a consistent standard within Medicare and Medicaid while giving patients assurance of the vaccination status of those delivering care," it added. Organizations that have vaccination requirements have seen their vaccination rates increase by more than 20 percentage points and have routinely seen their share of fully vaccinated workers rise above 90%, according to a recent White House report sharing an analysis of healthcare systems, educational institutions, public-sector agencies and private businesses. President Biden Mandate. Prior to the CMS rule, President Biden announced on August 18 that he has directed all nursing homes to require their staff be vaccinated against COVID-19 or risk losing Medicare and Medicaid funding. [FN20] He also directed HHS to draft new regulations making employee vaccination a condition for nursing homes to participate in Medicare and Medicaid. The decision marked the first time President Biden threatened to withhold federal funds to get people vaccinated. Of the estimated 1.3 million people employed by the more than 15,000 nursing homes that participate in Medicare and Medicaid, about 62% were vaccinated nationwide, according to CMS data, varying from 44% to 88%, depending on the state. Booster Shots Recommended. On September 24, 2021, CDC Director Rochelle Walensky, endorsed the recommendation made by the Advisory Committee on Immunization Practices (ACIP) to give the COVID-19 booster shot to select adult populations, including residents living in long-term care facilities and seniors aged 65 and older. IFN21] The CDC recommends these groups receive the shot at least 6 months after their first series of shots. The agency also overruled ACIP and recommended the booster for those who work in high-risk and institutional settings, like healthcare workers. CMS Launches Tool to Compare Vaccination Rates. CMS is making it easier to check COVID-19 vaccination rates for nursing home staff and residents with a new feature on Medicare.gov. Announced on September 21, 2021, IFN22] the tool makes vaccination data available in a user-friendly format to help people make informed decisions when choosing a nursing home for themselves or a loved one, according to the agency press release. CMS and the Centers for Disease Control and Prevention are also continuing to use this data to monitor vaccine uptake among residents and staff and to identify facilities that may need additional resources or assistance to respond to the pandemic. Medicare and Medicaid-certified nursing homes have been required to report weekly COVID-19 vaccination data for both residents and staff since May 2021, and CMS has been posting the information on the CMS COVID-19 Nursing Home Data website. According to the press release, the addition of this new consumer-friendly data feature is another valuable tool for patients, residents, and families to understand the quality of nursing homes when making health care decisions. New CMS Quality Measure. CMS is proposing a new quality measure for skilled nursing facilities to track COVID-19 vaccination coverage among its workers. The new measure was included in the agency's FY 2022 SNF Prospective Payment System proposal released on April 8, 2021. The measure would require SNFs to submit data through the Centers for Disease Control and Prevention's National Healthcare Safety Network. To establish a facility-wide vaccination rate, they would report both the total number of eligible workers working at the facility in a given week and the number that had received a complete COVID-19 vaccination course. SNFs would be required to submit the vaccination data for at least one week each month. If SNFs submit data from multiple weeks within a month, their most recent week's data would be used to calculate the measure. With the new measure, the CDC would calculate a summary measure of COVID-19 vaccination coverage each quarter, and the facility's quarterly rate would be publicly reported on the Care Compare website. The proposed measure would be made public with the FY 2023 SNF Quality Reporting Program. SNFs would begin reporting the data on October 1, 2021. AHCA/NCAL Push for Mandatory Vaccination. The American Health Care Association and National Center for Assisted Living (AHCA/ NCAL) has joined LeadingAge in calling for long-term care workers to get vaccinated against COVID-19. The organizations other senior care advocates are pushing providers to adopt mandatory vaccinations for their personnel as a condition of employment moving forward. Federal workers will also be required to verify they've been vaccinated against the virus or face mandatory masking, weekly testing, and other rules, the Biden administration announced Thursday, according to an Associated Press report. [FN23] AHCA/NCAL represents more than 14,000 nursing homes and long-term care facilities across the country, and urges each one to protect their residents, staff, and others in the community by ensuring that everyone who works in their building is vaccinated. AHCA reports a steady increase in vaccination rates since launching its #GetVaccinated campaign last December but admits 'more needs to be done." The vaccine protects against workers unknowingly carrying the disease to work and spreading it to others, it added. 'As the highly contagious Delta variant spreads, unvaccinated individuals remain at high-risk and can spread the virus to others, THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. including vaccinated individuals," according to a statement released by AHCA/NCAL on July 29, 2021. 'Our residents are some of the most vulnerable individuals to the consequences of contracting COVID-19.... We renew our call for state and federal governments to enact solutions to help address these long-standing workforce challenges." CMS reports that the national percent of vaccinated residents in nursing homes is up to 81.3% while the percent of vaccinated staff is 61.51%. Louisiana and Florida rank last in terms of the percent of current staff with completed COVID-19 vaccinations, at 44% and 44.44% respectively, while California's numbers are just below its resident vaccination rate, with 78.94% of its health care personnel vaccinated, according to data submitted as of July 18, 2021. [FN24] Religious Exemption. Updated guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) on October 25, 2021, [FN25] requires employees and applicants to inform their employers if they want an exception to an employer's COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance. Title VII of the Civil Rights Act of 1964 requires employers to consider requests for religious accommodations, but they are not required to protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement. The guidance also states that employers that demonstrate 'undue hardship" are not required to accommodate an employee's request for religious accommodation. The EEOC cautions, however, that the guidance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers, employees, and applicants. New York State Guidance. New state guidance in New York requires long-term care facilities to offer new hires an opportunity to receive a COVID-19 vaccine within two weeks of their employment. The advisory was issued April 15, 2021, by the state's Department of Health. The mandate requires providers to offer the shot to all residents and staff by April 29, and to new hires or admissions within two weeks of them arriving at the facility. The 'emergency" move is seen as a way to increase pressure to do more to elevate employee vaccination rates, according to a state health department spokesperson quoted in a local report. Nursing homes are 'inexplicably . . . letting vaccine doses sit on shelves," the spokesperson added. Operators could face a fine of up to $2,000 per violation if they don't comply. Currently, about 60% of the state's long-term care workers have opted into receiving a COVID-19 vaccine. [FN26] Salaries Rise across the Board Staff and administrator salaries jumped over the past year, likely a result of industry-wide staffing shortages due to the COVID-19 pandemic, according to results from a major survey, published in July. The 44th annual HCS Nursing Home Salary & Benefits Report, published by the Hospital & Healthcare Compensation Service (HCS), covers skilled nursing and long-term care facility salaries of executive staff, nursing, therapy, aides, dietary, activities, social services, maintenance, and administrative staff. The data is reported by bed size, revenue size, profit type, region, state, and Core based Statistical Area, covering 1,613 nursing homes and 147,900 employees. Salary increases by job category ranged from just over 2% to nearly 9% as of March 2021 (year over year): * Nursing home administrators: 2.9%, to $120,695; assistant administrators: 2.27%, to $74,294. * Directors of Nursing: 3.09%, to $105,104; assistant DONs: 3.36%, to $80,364. * Certified nurse aides (CNAs): 7.13%, to $15.23/hour,; non-certified aides: 7.98%, to $12.60/hour. The study also found that turnover for CNAs increased significantly to 51.4% in 2021 (compared to 39.4% in 2020). Overall, the national turnover rate for all nursing home employees was 38.7% (up from 35.4% in 2020). Text of the full report is available for purchase from the Hcs, N27] Infection and Mortality Rates Drop in Nursing Homes The effects of COVID-19 infections in the nation's nursing homes have been dire: as of early 2021, 1.2 million infections resulted in the deaths of 147,000 residents and staff members. Long-term care residents have consistently accounted for 40 percent of total U.S. deaths from the COVID-19 pandemic. !FN78l As improved therapeutics and supportive care in hospitals reduced COVID-19 mortality over the course of 2020, a new study [FN29] found that for residents with COVID-19, thirty-day mortality rates declined from a high of 20.9 percent in early April to 11.2 percent in early November. The authors examined nursing home data in large providers of postacute and long-term care services in twenty- four states through November 15, 2020. In addition, the proportion of COVID-19 cases that were asymptomatic increased over time because of improvements in surveillance testing and the wider availability of personal protective equipment. With the availability of vaccines and government prioritization of long-term care facility residents and staff, the drop in infection and mortality rates has been remarkable. For the week ending February 21, 2021, 93% of skilled nursing facilities reported no new COVID-19 cases, up 28 percentage points from the 65% recorded on December 20, 2020. [FNS] Wark Parkinson, president and CEO of the American Health Care Association expressed his astonishment at the drop of new cases, during a CNN interview, attributing the THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. success to state and local governments prioritizing long-term care residents and staff for the shots, and just how well the vaccine is working. [FNS1] In one of the first studies to examine the effect of the COVID-19 vaccines on spread of the virus among residents and staff in long-term care facilities, researchers found a 48% decline in new cases three weeks after the first vaccination clinic, the week of December 18, 2020. FN%2I The federal government initiated the Pharmacy Partnership for Long-Term Care Program to vaccinate residents and staff in long-term care facilities. The government enlisted CVS, Walgreens, and other long-term care pharmacies to schedule on-site clinics and administer the vaccine starting one week after the FDA issued emergency use authorization for the Pfizer vaccine. Researchers compared the weekly rate of new COVID infections among staff and residents in nursing homes that had held a vaccine clinic to nursing homes in the same county that had not yet held a clinic, to examine if new positive-test cases (e.g., spread or transmission) decreased. They found that COVID-19 cases decreased at a faster rate among both residents and staff associated with nursing homes that had completed their first clinic, compared to those nursing homes that had not yet administered the vaccine. Looking at 797 nursing homes that conducted their first vaccination clinic from December 18, 2020 to December 27, 2020, and comparing them to nursing homes in the same county that had not yet conducted a clinic (1,709 facilities), the vaccinated nursing homes experienced a 48% decline in new resident cases three weeks after the first clinic, compared to a 21% decline among nonvaccinated nursing homes located in the same county. Similarly, new staff cases declined by 33% in vaccinated nursing homes compared to 18% in non-vaccinated facilities. Data over the past year indicate that U.S. nursing homes are currently 'the safest places to be" for frail older adults, who are most susceptible to the virus. According to new data from the National Investment Center for Seniors Housing & Care (NIC), COVID-19 cases at skilled nursing facilities have declined 98% since mid-December (when vaccinations started). In fact, nursing home infections have accounted for just 0.3% of all cases in the U.S. since mid-May 2021. According to the NIC, the drop in nursing home cases has outpaced the drop in case counts among surrounding populations, which in some areas were on the rise, even as vaccines become more readily available. In December 2020, new nursing home fatalities accounted for about 74% of overall fatalities for older adults over 85 years of age. By April 2021, that share dropped to 28%. Currently, more fatalities are occurring in the general population of older adults over 85 years of age than in those living in nursing homes. [FN33] Funding for Nursing Facilities The Department of Health and Human Services (HHS) has released details on its COVID-19 performance-based relief funding for nursing homes. [FN4] This distribution is the latest update in the previously announced $5 billion in planned support to nursing homes grappling with the impact of the pandemic. In order for a facility to be eligible for payment, it must pass two initial gateway qualification tests on both their rate of infection and rate of mortality: * First, a facility must demonstrate a rate of COVID infections that is below the rate of infection in the county in which they are located. * Second, the facility must also have a COVID death rate that falls below a nationally established performance threshold for mortality among nursing home residents infected with COVID. Nursing homes eligible for the funding will then have their performance measured, based on the infection and mortality measures. The infection measure accounts for 80% of the incentive payment dollars and will be calculated by taking the total number of non-admission COVID-19 infections divided by their total number of resident-weeks as reported in National Healthcare Safety Network, the Centers for Disease Control and Prevention's tracking system that is receiving COVID-19 data from nursing homes. It will also be compared to the county infection rate. The mortality measure will account for 20% of the incentive payment and will be assessed for facilities who have at least one non-admission COVID-19 infection. On August 27, 2020, HHS announced that it has distributed nearly $2.5 billion of a planned $5 billion to nursing homes to support increased testing, staffing, and personal protective equipment (PPE) needs. IFNS5] The funding allocation was made through the Health Resources and Services Administration (HRSA) as a targeted distribution from the $175 billion Provider Relief program funded through the bipartisan CARES Act and the Paycheck Protection Program and Health Care Enhancement Act. The distribution of almost $2.5 billion in additional funding to over 15,000 nursing homes nationwide supplements the $4.9 billion that was previously distributed to skilled nursing facilities, the agency said. HHS plans on distributing another $2 billion to nursing homes later this fall based on certain performance indicators (to be provided in the future). Starting September 29, 2021, providers can begin applying for their share of an additional $25.5 billion in COVID-19 relief funds, the Department of Health and Human Services announced on September 10. The announcement follows months of waiting and is welcome news for long-term care providers dealing with cash and labor shortages, and desperately needing additional help to confront COVID-19. The funding includes $8.5 billion in American Rescue Plan resources for providers who serve rural Medicaid, Children's Health Insurance Program or Medicare patients, and an additional $17 billion for Provider Relief Fund (PRF) Phase 4 for providers who can THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. document revenue loss and expenses associated with the pandemic. The Phase 4 PRF payments will be based on lost revenues and expenditures between July 1, 2020, and March 31, 2021. 'This funding critically helps healthcare providers who have endured demanding workloads and significant financial strains amidst the pandemic," HHS Secretary Xavier Becerra said in a statement on September 9, according to the announcement. 'The funding will be distributed with an eye towards equity, to ensure providers who serve our most vulnerable communities will receive the support they need." Providers can use a single portal to apply for either or both types of funds through the Health Resources and Services Administration. HHS officials said HRSA will use existing Medicaid, CHIP, and Medicare claims data in calculating payments. IFN36] Support for healthcare providers fighting the COVID-19 pandemic is provided through the bipartisan CARES Act and the Paycheck Protection Program and Health Care Enhancement Act, which supplies $175 billion in relief funds to hospitals and other healthcare providers on the front lines of the coronavirus response. The reporting window for the COVID Provider Relief Fund will be calculated from the time funds are first received according to a notice issued by HHS (through the Health Resources and Services Administration). IFNS7] The updated requirements allow long-term care providers more flexibility in spending the relief funds. Prior to the revisions, providers had been required to spend all of their relief funds by June 30, 2021, or return any unused amounts. Providers now have a 90-day period to complete reporting rather than the previous 30-day reporting period. Further, the reporting requirements are now applicable to those who received funding from the Skilled Nursing Facility and Nursing Home Infection Control Distribution, in addition to general and other targeted distributions. The COVID-19 pandemic has impacted the viability of SNFs in a variety of ways. Since the beginning of 2020, SNFs have experienced up to a 6 percent decline in their patient population as current and potential residents choose other care settings, or as current residents pass away, the press release notes. In addition to nursing home residents, many SNF employees have also been diagnosed with COVID-19. These additional funds may help nursing homes address critical needs such as labor, scaling up their testing capacity, acquiring personal protective equipment and a range of other expenses directly linked to this pandemic. According to the release, HHS will make relief fund distributions to SNFs based on both a fixed basis and variable basis. Each SNF will receive a fixed distribution of $50,000, plus a distribution of $2,500 per bed. All certified SNFs with six or more certified beds are eligible for this targeted distribution. Nursing home recipients must attest that they will only use Provider Relief Fund payments for permissible purposes, as set forth in the Terms and Conditions, and agree to comply with future government audit and reporting requirements. Funding to Address Health Care Workforce Burnout On July 16, 2021, the U.S. Department of Health and Human Services (HHS) through the Health Resources and Services Administration (HRSA), announced the availability of an estimated $103 million in American Rescue Plan funding over a three-year period to reduce burnout and promote mental health among the health workforce. The funding, which takes into particular consideration the needs of rural and medically underserved communities, will help health care organizations establish a culture of wellness among the health and public safety workforce and will support training efforts that build resiliency for those at the beginning of their health careers. According to the statement, the programs announced today will support the implementation of evidence-informed strategies to help organizations and providers respond to stressful situations, endure hardships, avoid bumout and foster healthy workplace environments that promote mental health and resiliency. There are three funding opportunities accepting applications: Promoting Resilience and Mental Health Among Health Professional Workforce (approximately 10 awards will be made totaling approximately $29 million over three years to health care organizations to support members of their workforce); Health and Public Safety Workforce Resiliency Training Program (approximately 30 awards will be made totaling approximately $68 million over three years for educational institutions and other appropriate state, local, Tribal, public or private nonprofit entities training those early in their health careers); and Health and Public Safety Workforce Resiliency Technical Assistance Center (one award will be made for approximately $6 million over three years to provide tailored training and technical assistance to HRSA's workforce resiliency programs). Applications are due August 30, 2021. [FN38] Coverage of Testing, Provider Reimbursement for Vaccines On February 26, 2021, in accordance with the Executive Order President Biden signed on January 21, 2021, CMS, together with the Department of Labor and the Department of the Treasury, issued new guidance removing barriers to COVID-19 diagnostic testing and vaccinations and strengthening requirements that plans and issuers cover diagnostic testing without cost sharing. The guidance makes clear that private group health plans and issuers generally cannot use medical screening criteria to deny coverage for COVID-19 diagnostic tests for individuals with health coverage who are asymptomatic, and who have no known or suspected exposure to COVID-19. Such testing must be covered without cost sharing, prior authorization, or other medical management requirements imposed by the plan or issuer. For example, the press release says, covered individuals wanting to ensure they are COVID-19 negative prior to visiting a family member would be able to be tested without paying cost sharing. The guidance also includes information for THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. providers on how to get reimbursed for COVID-19 diagnostic testing or for administering the COVID-19 vaccine to those who are uninsured, /FNS®l Nursing Homes Get $333M for Curbing Infections On October 28, 2020, the Department of Health and Human Services (HHS), through the Health Resources and Services Administration (HRSA), announced it will distribute approximately $333 million in the first round of performance payments to 10,631 nursing homes. [FN40] The nursing homes are being recognized for demonstrating significant reductions in COVID-19 related infections and deaths between August and September. More than three fourths (77%) of eligible nursing homes qualified for payment. Overall, the nursing homes contributed to 5,000 fewer COVID-19 infections in nursing homes in September than in August. Against both the infection control and mortality criteria, 10,501 nursing homes, or 76 percent, qualified for payments and contributed to 1,200 fewer COVID-19 related nursing home deaths between August and September, HHS said. The $2 billion incentive funding plan was announced in August. It is divided into five performance cycles. This performance-based payment structure will reward nursing homes for keeping new COVID-19 infection and mortality rates among residents lower than the communities they serve, as analyzed against CDC data. Nursing homes will receive September quality incentive payments during the first week of November, and will have four more opportunities to receive additional incentive payments. [FN41] $94B Losses Projected for Long-Term Care over 2020-2021 The COVID-19 pandemic has hit long-term care facilities especially hard financially. Additional costs for routine testing to hiring additional staff and purchasing personal protective equipment (PPE) have forced providers to dedicate extensive resources to fight the virus. The American Health Care Association and National Center for Assisted Living (AHCA/NCAL) conducted an analysis and estimates that the long-term care industry will lose $94 billion over a two-year period (2020-2021). In 2020, nursing homes spent roughly $30 billion on PPE and additional staffing alone. Contributing to the losses is the drop in occupancy-going from 71% to 67% in just the last three months. The analysis also estimates that, without immediate assistance, over 1,600 nursing homes could close in 2021-about one tenth of the closures in 2020. '*N42] Effect on Occupancy Rates Senior housing occupancy increased in the third quarter of 2021 to 80.1%, according to new NIC MAP? data. IFN43] This is a 1.4 percentage point increase from its pandemic-related low of 78.7% in the second quarter. The occupancy rate increase is attributed to a significant rebound in demand and modest increase in supply, the report finds. Demand increased by 12,318 units in NIC MAP's Primary Markets (the strongest unit increase since NIC MAP Vision began reporting the data in 2005) while inventory increased by 3,441 units and the number of units under construction were the fewest since 2015. * Occupancy increased for assisted living, independent living, and nursing care properties, but still fell short of pre-pandemic levels. According to the report: ¢ Assisted living occupancy increased to 76.9%, up from its pandemic low of 75.4% in the first quarter of 2021 but still below its pre- pandemic level of 85.0%. « Independent living occupancy increased to 83.2%, up from its pandemic low of 81.8% in the first quarter of 2021 but still below its pre- pandemic level of 89.7%. * Nursing care occupancy increased to 76.3%, up from its pandemic low of 74.1% in the first quarter of 2021 but still below its pre- pandemic level of 86.6%. CMS Relaxes Visitation Rules for Nursing Homes CMS, in collaboration with the Centers for Disease Control and Prevention (CDC), issued updated guidance on March 10, 2021, for nursing homes to safely expand visitation options during the COVID-19 pandemic public health emergency. This latest guidance comes as more than three million doses of vaccines have been administered within nursing homes, following the U.S. Food and Drug Administration's (FDA) authorization for emergency use of COVID-19 vaccines. According to the updated guidance, facilities should allow responsible indoor visitation at all times and for all residents, regardless of vaccination status of the resident, or visitor, unless certain scenarios arise that would limit visitation for: ¢ Unvaccinated residents, if the COVID-19 county positivity rate is greater than 10 percent and less than 70 percent of residents in the facility are fully vaccinated; * Residents with confirmed COVID-19 infection, whether vaccinated or unvaccinated, until they have met the criteria to discontinue transmission-based precautions; or * Residents in quarantine, whether vaccinated or unvaccinated, until they have met criteria for release from quarantine. The updated guidance also emphasizes that 'compassionate care" visits should be allowed at all times, regardless of a resident's vaccination status, the county's COVID-19 positivity rate, or an outbreak. Compassionate care visits include visits for a resident whose health has sharply declined or is experiencing a significant change in circumstances. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. At the same time, CMS continues to recommend facilities, residents, and families adhere to the core principles of COVID-19 infection control, including maintaining physical distancing and conducting visits outdoors whenever possible. This continues to be the safest way to prevent the spread of COVID-19, particularly if either party has not been fully vaccinated. [FN44] Community Spread Triggers COVID-19 Cases COVID-19 cases are soaring in nursing homes, particularly in the Midwest, due to community spread, according to a report released on November 2 by the American Health Care Association and National Center for Assisted Living, McKnight's reports. [FN45] The increase is prompting calls for increased funding for long-term care, as well as the need to take proper mitigation measures. CEO and president of AHCA/NCAL, Mark Parkinson, has appealed to Congress to pass COVID-19 stimulus funding during its lame-duck session. At the same time, new COVID-19 cases in the general U.S. population rose by 61%, to 391,527 new cases the week of October 18, 2020, according to the AHCA report. A correlating uptick in new cases in nursing homes occurred when cases in the surrounding community started rising back in mid-September, AHCA found. After seven weeks of declining cases in nursing homes, nursing home cases began to increase mid-September as more than 35 states started to see a rising level of COVID-19 cases, the report said. During the week of October 18, 43% of new COVID-19 cases in nursing homes were from Midwest states with major spikes in community spread in the upper parts of the region. CDC Confirms Spread of Coronavirus by Asymptomatic Carriers Researchers with the Centers for Disease Control and Prevention concluded that at least 50% of new coronavirus cases stem from asymptomatic carriers based on study reported in Jama last week. IFN46] The study found that 59% of all disease transmission came from asymptomatic individuals, comprising 35% from presymptomatic individuals and 24% from individuals who never developed symptoms. The researchers estimated that, based on their analytical model of multiple scenarios of proportions of asymptomatic individuals with COVID-19, and infectious periods, that transmission from asymptomatic individuals accounted for more than half of all transmissions. The findings suggest that identifying and isolating symptomatic COVID-19 patients alone will not control the spread of the disease; that measures such as wearing masks, hand hygiene, social distancing, and strategic testing of people who are not ill is essential in slowing the spread of COVID-19. The findings support an October study IFN47] that called on nursing homes to consider testing their workers more frequently than federal standards mandate (that are based on community positivity rates). CMS Freezes Star Ratings On March 23, 2020, CMS adopted a targeted inspection plan designed to help keep nursing home residents safe in the face of the COVID pandemic, greatly reducing the number of nursing homes inspected, and changing how the inspections are conducted. Since the number and manner of inspections would over-weight and impact the ratings of those facilities that are inspected, and would disrupt the Nursing Home Five Star Quality Rating System, CMS has decided to temporarily maintain and hold constant the health inspection domain of the rating system. A memorandum released by CMS on April 24 [FN48] explains that results of health inspections conducted after March 4, 2020, will be posted publicly, but will not be used to calculate a nursing home's star ratings, effective April 29, 2020. SNF Occupancy Slips New data from the National Investment Center for Seniors Housing & Care (NIC) IFN49] veveals that occupancy at skilled nursing facilities fell by over 2% in April following the onset of the coronavirus pandemic. Following several quarters of stabilization, the NIC Intra-Quarterly Snapshot, released on May 19, 2020, found that occupancy for nursing care facilities fell to 84.7% in April, the first full month of the pandemic. In April 2019, stabilized occupancy was 87% for nursing care. Stabilized occupancy is the occupancy rate of properties that are at least two years old, or, if less than two years old, have achieved occupancy of at least 95% since their opening. The large declines reflected the effects of the COVID-19 pandemic, with a larger toll seen in skilled nursing, than in seniors housing, according to the report. Occupancy Rates Post-COVID According to one expert, skilled nursing operators seeing steep drops in occupancy since the start of the pandemic aren't expecting those numbers to rebound any time soon. 'For facilities that lost existing occupancy due to a COVID-19 outbreak, when coupled with a reduced incoming stream of residents, skilled nursing leaders expect it may be 18 months before their occupancy can recover to pre- COVID levels," Cory Rutledge, managing principal at CliftonLarsonAllen, told McKnight''s Long-Term Care News. [FNSO} Median occupancy rates for skilled nursing providers have fallen as low as 75% in each of the three most recently reported weeks, according to weekly occupancy data trends from the federal government's National Healthcare Safety Network's database. That's a drop from the 84.5% 2018 median occupancy rate CLA reported in its most recent SNF trends report. Legislation Federal THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -10- A proposal by four Democratic senators would provide nearly $1 billion to assist nursing homes with infection control and help manage COVID-19 care for residents. The legislation, called the COVID-19 Nursing Home Protection Act, was announced Tuesday by Democratic Sens. Bob Casey (PA), Raphael Warnock (GA), Sheldon Whitehouse (RI), Richard Blumenthal (CT), and Cory Booker (NJ). It would send $750 million to states to establish nursing home strike teams and guarantee another $210 million for the Department of Health and Human Services to contract with Quality Improvement Organizations (QIOs) to provide infection control assistance to providers. The proposed support is a significant increase compared to what's been included in the House-proposed coronavirus relief package currently under review. That $450 million measure specifically calls for $200 million for ensuring skilled nursing facilities get sufficient help with COVID-related infection control measures through QIOs, and an allocation of $250 million to states for developing strike teams. Booker said in a statement that the strategies are aimed at 'giving states what they need - funding for "strike' teams to help address staffing shortages in nursing homes and assist with vaccinations in these settings." Senate Aging Subcommittee Chairman Bob Casey (D-PA) lists the American Health Care Association and Alzheimer's Association as two of the proposal's supporters. [FNS1] 2021 CONG US HR 5094, introduced August 24, 2021, the 'Nursing Home Workforce Support and Expansion Act of 2021," would provide additional funding to states and long-term care providers to hire and retain workers, to strengthen wages and benefits for long-term care workers. States would be required to use the money to provide wage subsidies to employees in post-acute and long- term care settings, student loan repayment or tuition assistance, guarantee affordable and accessible childcare and transportation assistance to eligible workers. Alabama 2021 AL H.B. 521 (NS), adopted May 18, 2021, to set minimum standards for visitation at a health care facility when visitation may be limited due to a public health emergency, subject to reasonable restrictions, and to provide civil immunity; allowing family or caregiver presence in end-of-life care situations. Arkansas ¢ 2021 AR H.B. 1061 (NS), adopted March 10, 2021, to create the No Patient Left Alone Act, conceming visitation rights of patients. ¢ 2021 AR H.B. 1919 (NS), introduced April 13, 2021, to require nursing homes to disclose liability insurance status when potential residents sign contracts for care. * 2021 AR S.B. 301 (NS), engrossed February 22, 2021, to require state agencies to return fines collected under ? 20-7-101 during the public health emergency for a failure to comply with rules, orders, or directives to mitigate or prevent the spread of Coronavirus 2019 (COVID-19). California ¢ 2021 CAA.B. 279 (NS), introduced January 21, 2021, would prohibit the owner of a skilled nursing facility from ceasing to deliver or making significant changes to the nature of residential care services, or from transferring a resident to another facility, during any declared state of emergency relating to the coronavirus disease 2019 (COVID-19), except if the owner files for bankruptcy. The bill would require, upon termination of the same type of state of emergency, the owner of an SNF to issue a 6-month advance notice of any proposed sale or termination of the licensed operation of the facility to each resident before the sale or termination goes into effect. The bill would also prohibit during the same type of state of emergency, any changes in all conditions for the sale of assets imposed by the Attorney General, except if the owner of an SNF files for bankruptcy. By expanding the requirements and prohibitions imposed on a licensee of an SNF, the failure to comply with would be a crime, this bill would impose a state-mandated local program. ¢ 2021 CAA.B. 523 (NS), vetoed by the governor October 6, 2021, would have required the department to make permanent the specified PACE program flexibilities instituted, on or before January 1, 2021, in response to the state of emergency caused by COVID-19 by means of all-facility letters or other similar instructions taken without regulatory action, with prescribed modifications, such as instead limiting a PACE organization's use of telehealth to specified services, including conducting assessments for eligibility for enrollment in the PACE program, subject to the federal waiver process. * 2021 CAA.B. 1585 (NS), amended/substituted August 18, 2021, would revise the required qualifications for Infection Preventionists at skilled nursing facilities to require an IP to have primary professional training as a licensed nurse, medical technologist, microbiologist, epidemiologist, public health professional, or other health care related field. The bill would also require the IP to be qualified by education, training, clinical or healthcare experience, or certification, and to have completed specialized training in infection prevention and control. Connecticut 2021 CT H.B. 6470 (NS), adopted July 7, 2021, to ease health care access by making permanent certain changes related to hospice home health care agency and home care agency services, telehealth and utilization review in the medical assistance program that were implemented by executive order during the COVID-19 public health emergency. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -11- Georgia ¢ 2021 GAH.B. 290 (NS), amended/substituted March 3, 2021, policy of hospitals and nursing homes during a declared public health emergency that limits patients' abilities to be visited by designated family members and friends. * 2021 GAH.B. 649 (NS), introduced February 26, 2021, visitation by essential visitors to patients to hospitals and residents in long- term care facilities. Hawaii 2021 HI S.B. 237 (NS), introduced January 22, 2021, raises the standard of care for the State's veteran homes, long term care facilities and nursing homes in response to the COVID-19 pandemic by describing requirements for care facility licensing and leadership, implementing standards of recordkeeping, creating protocols for emergencies and personal protective equipment, and establishes a hotline for complaints. Illinois ¢ 2021 IL H.B. 1830, introduced February 17, 2021, provides that a health care provider shall not be liable for civil damages for causing or contributing to the death or injury of an individual as a result of the health care provider's acts or omissions while providing or arranging health care in support of the State's response to COVID-19. ¢ 2021 IL H.B. 3147 (NS), adopted August 16, 2021, requires long-term care facilities and hospitals to facilitate at least one phone call or video call between a resident or patient and a family member of the resident or patient each day during a pandemic or other public health emergency. Indiana ¢ 2021 IN S.B. 202 (NS), introduced January 7, 2021, requires health facilities and residential care facilities (facilities) to allow visitation of a resident in a compassionate care situation, including end of life situations; requires the state department of health to implement the essential family caregiver program during a declared emergency, a public health emergency, or similar crisis; and requires facilities to participate in the program. * 2021 IN S.B. 229 (NS), introduced January 7, 2021, establishes essential family caregiver status; requires each health facility and residential care facility to permit visitation by an essential family caregiver despite restricted visitation during compassionate care situations, including end-of-life situations; specifies eligibility requirements for caregiver status; allows the administrator of a facility or the administrator's designee to determine whether or not to award caregiver status to a selected individual. lowa ¢ 2021 IA H.F. 190 (NS), introduced January 22, 2021, relating to cross-over visitation between residents or tenants in a shared campus long-term care facility during a national public health emergency or public health disaster. ¢ 2021 IA S.F. 192 (NS), introduced February 1, 2021, creating a line of duty reimbursement for COVID-19 pandemic-related health care costs of qualified volunteer emergency services providers, providing an appropriation, and providing effective and applicability dates. ¢ 2021 IA S.F. 507 (NS), introduced march 2, 2021, relating to long-term care facility and hospital practices including patient visitation and protections, and providing civil penalties. * 2021 IA S.C.R. 5 (NS), introduced February 16, 2021, encouraging the United States Congress to provide flexibility to the states in determining visitation practices in nursing facilities. Kansas 2021 KS H.B. 2126 (NS), introduced January 25, 2021, providing immunity from civil liability for COVID-19 claims for adult care facilities. Kentucky * 2021 KY H.B. 1 (NS), introduced January 9, 2021, to provide relief to businesses and individuals during the COVID-19 state of emergency; provide guidelines for visitation at long-term care facilities during the COVID-19 state of emergency. ¢ 2021 KY H.B. 276 (NS), introduced January 13, 2021, to require the Department for Medicaid Services to accept the employment of temporary COVID-19 personal care attendants as meeting necessary training for State Registered Nurse Aides; require the Department for Medicaid Services to apply for any Medicaid waivers or state plan amendments necessary; incorporate the provisions into the nurse aide training and competency evaluation program requirements; promulgate any necessary administration regulations. * 2021 KY S.B. 2 (NS), adopted September 10, 2021, to require visitation in long-term care facilities and residential long-term care facilities to be allowed by family members, legal guardians, outside caregivers, friends, or volunteers who provided regular care and support to the resident prior to the pandemic, who are designated as being important to the mental, physical, or social well-being of a resident in critical situations, such as end of life. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -12- * 2021 KY S.B. 3 (NS), adopted September 9, 2021, Direct the use of a total of $69,268,300 of American Rescue Plan Act State Fiscal Recovery funds in fiscal year 2021-2022 to address the continuing COVID-19 pandemic and the resulting pressures that have been experienced in the healthcare, long-term care, and school systems. Maine 2021 ME H.P. 817 (NS), introduced March 18, 2021, to authorize and regulate visitation of essential caregivers at long-term care facilities. Massachusetts ¢ 2021 MA H.D. 2410 (NS), filed February 17, 2021, ensuring access to PPE for eldercare providers. ¢ 2021 MA S.D. 1550 (NS) and 2021 MA H.D. 3834 (NS), filed February 19, 2021, filed February 17, 2021, relative to infection control in nursing facilities, authorizing the Department of Health to use Civil Monetary Penalty monies to establish an Infection Preventionist training grant program for certified nursing facilities. Missouri 2021 MO H.B. 1015 (NS), introduced February 2, 2021, relating to the establishment of protocols for visiting family members in hospitals and long-term care facilities during an outbreak of a contagious illness. New Hampshire 2021 NH S.B. 132 (NS), amended/substituted March 4, 2021, establishing a COVID-19 micro enterprise relief fund; requiring a COVID-19 needs assessment of nursing homes and long-term care facilities and making an appropriation therefor. New Jersey ¢ 2020 NJ A.B. 3999 (NS) and 2020 NJ S.B. 2380 (NS), amended/substituted on July 27, 2020, concerning employment benefits and coronavirus disease 2019 infections contracted by essential employees, including long-term care and skilled nursing facility employees. ¢ 2020 NJ A.B. 4136 (NS), introduced May 11, 2020, requiring coronavirus disease 2019 testing for the patients and staff of long-term care facilities. ¢ 2020 NJ A.B. 4015 (NS), introduced May 4, 2020, and 2020 NJ S.B. 2432 (NS), introduced May 7, 2020, would establish the 'Long- Term Care Facility Infectious Disease Preparedness and Home Health Care Study Commission.' * 2020 NJ A.B. 4282 (NS), adopted December 14, 2020, requires long-term care facilities and hospitals to maintain minimum supply of personal protective equipment. ¢ 2020 NJ A.B. 4290 (NS), introduced June 22, 2020, would establish communication and notification requirements for long-term care facilities. Specifically, the bill requires that long-term care facilities provide daily updates concerning the resident's health status to a resident's guardian, or if the resident does not have a guardian, to a family member who requests such information. ¢ 2020 NJ A.B. 4430 (NS) and 2020 NJ S.B. 2798 (NS), amended/substituted October 22, 2020, would revise requirements for long- term care facilities to establish outbreak response plans. ¢ 2020 NJ A.B. 4479 (NS), amended/substituted August 24, 2020, and 2020 NJ S.B. 2788 (NS), amended/substituted August 25, 2020, would provide supplemental payments to long-term care facility staff providing direct care services during COVID-19 pandemic. « 2020 NJ A.B. 4485 (NS) and 2020 NJ S.B. 2784 (NS), amended/substituted September 24, 2020, would dedicate personal protective equipment to long-term care facilities, home health agencies, and certain community-based providers during a public health emergency. * 2020 NJ A.B. 4657 (NS), introduced September 17, 2020, and 2020 NJ S.B. 2897 (NS), introduced September 14, 2020, 'Sally's Law,' would establish testing and visitation requirements and employment restrictions for long-term care facilities in response to outbreaks of infectious disease. * 2020 NJ A.B. 4767 (NS) and 2020 NJ S.B. 3006 (NS), introduced October 8, 2020, would restore civil liability of nursing homes and related facilities, including hospice, during public health emergency. ¢ 2020 NJ A.B. 4813 (NS), introduced October 19, 2020, would make information related to a public health emergency accessible, with certain limited exceptions. * 2020 NJ A.B. 4861 (NS), adopted November 8, 2021, requires the Department of Health to publish total number of COVID-19 deaths and cases in long-term care facilities. * 2020 NJ A.B. 5129 (NS), introduced December 10, 2020, would provide gross income tax credit to essential employees working during the COVID-19 pandemic. ¢ 2020 NJ S.B. 2566 (NS), amended/substituted September 14, 2020, would require nursing homes to maintain a certain supply of personal protection equipment for residents. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -13- ¢ 2020 NJ S.B. 2677 (NS), introduced July 6, 2020, requiring hospitals and long-term care facilities to maintain a 90-day supply of personal protection equipment during the coronavirus disease 2019 pandemic. ¢ 2020 NJ S.B. 2751 (NS), introduced July 28, 2020, would make information related to a public health emergency accessible with certain limited exceptions. ¢ 2020 NJ S.B. 2784 (NS), introduced July 30, 2020, would dedicate personal protective equipment to long-term care facilities during public health emergency. ¢ 2020 NJ S.B. 2798 (NS), adopted August 5, 2021, revises requirements for long-term care facilities to establish outbreak response plans. ¢ 2020 NJ S.B. 2813 (NS), introduced August 10, 2020, would authorize a temporary rate adjustment for certain nursing facilities; appropriate $62.3 million. ¢ 2020 NJ S.B. 2871 (NS), introduced September 14, 2020, would establish a PPE Resource Planning Unit in the Office of Emergency Management in the Department of Law and Public Safety in order to maximize, enhance, and effectuate the coordination of personal protective equipment resources necessary for health care workers, long-term care and other health care facilities, and emergency responders to operate and provide services in a safe manner during a state of emergency or public health emergency declared by the Governor; requires Office of Emergency Management to maintain 90-day supply of personal protective equipment for use in declared emergency; appropriates $20 million. ¢ 2020 NJ S.B. 3032 (NS), adopted November 8, 2021, requires the Department of Health to develop a Statewide plan for infection control and prevention infrastructure improvements in nursing homes. * 2020 NJ S.B. 3269 (NS), introduced December 14, 2020, would provide gross income tax credit to essential employees working during COVID-19 pandemic. New York ¢ 2021 NY A.B. 3162 (NS), introduced January 22, 2021, and 2021 NY S.B. 2067 (NS), introduced January 19, 2021, establishes a temporary state commission to study and investigate the effects of the COVID-19 pandemic response on deaths in nursing homes; and providing for the repeal of such provisions upon expiration thereof. ¢ 2021 NY A.B. 6057 (NS), introduced March 5, 2021, directs the department of health to establish and implement an infection inspection audit and checklist on residential care facilities, nursing homes and long-term care facilities. ¢ 2021 NY S.B. 1783 (NS), introduced January 15, 2021, directs the department of health to establish and implement an infection inspection audit and checklist on residential care facilities, nursing homes and long-term care facilities. ¢ 2021 NY S.B. 2543 (NS), introduced January 21, 2021, provides for insurance reimbursement for expenses related to the provision of personal protective equipment (PPE) for direct care workers, care recipients and an emergency inventory of a ninety-day supply of PPE for home- and community-based long-term care services. ¢ 2021 NY S.B. 6782 (NS), introduced May 17, 2021, establishing a frontline healthcare workers tax credit for clinical and non-clinical frontline healthcare workers and certain long-term care facility workers, including hospice care, during the novel coronavirus, COVID-19 pandemic. North Carolina ¢ 2021 NC H.B. 351 (NS), adopted September 10, 2021, Clifford's Law, directing the Secretary of the Department of Health and Human Services to establish visitation protocols for nursing homes, combination homes, and adult care homes, including family care homes, during declared disasters and emergencies and requiring these facilities to adhere to the established visitation protocols during declared disasters and emergencies when normal visitation policies are suspended or curtailed. ¢ 2021 NC S.B. 191 (NS), engrossed May 5, 2021, providing patient visitation rights in hospitals, nursing homes, hospice, and other care facilities will not be impacted during declared disasters and emergencies and directing the department of health and human services to impose a civil penalty for any violation of those rights. North Dakota 2021 ND H.B. 1175 (NS), adopted April 23, 2021, relating to business immunity from COVID-19 liability claims for skilled nursing facilities, hospitals, and other health care facilities. Ohio 2021 OH H.B. 120 (NS), introduced February 16, 2021, to permit compassionate care visits in long-term care facilities during the COVID-19 state of emergency. Oklahoma * 2021 OK H.B. 1677 (NS), engrossed March 1, 2021, relating to long-term care, providing for designation of compassionate caregivers for long-term care facility and assisted living residents; requiring access to residents by certain people; providing precautions that THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -14- may be taken in certain situations; allowing revocation of compassionate caregiver status under certain circumstances; prohibiting elimination of visitation. ¢ 2021 OK H.B. 2566 (NS), introduced February 1, 2021, relating to long-term care, providing for visitation of residents in long-term care facilities; providing for health care provider access to residents of long-term care facilities; allowing restrictions by the State Department of Health; prohibiting unilateral elimination of visitation. «2021 OK S.B. 674 (NS), introduced February 1, 2021, requiring certain coverage of health care services provided through telemedicine; prohibiting certain exclusion of service for coverage; requiring reimbursement; prohibiting application of certain deductible; requiring equivalence of copayment or coinsurance; prohibiting imposition of certain limits or maximums. Pennsylvania ¢ 2021 PA H.B. 208 (NS), introduced January 22, 2021, providing for the disclosure of communicable diseases in certain facilities during disaster emergencies. ¢ 2021 PA H.B. 368 (NS), introduced February 3, 2021, imposing duties on employers for the health and safety of employees relating to limiting exposure to COVID-19; and providing for right to bring own personal protective equipment, for notification of illness in the workplace, for whistleblower protection and for enforcement. ¢ 2021 PA H.B. 649 (NS), introduced February 24, 2021, providing for access to long-term care facilities for essential caregivers, for additional safety requirements for residents of long-term care facilities, for suspension of access for essential caregivers and for personal protective equipment for essential caregivers. * 2021 PA H.B. 996 (NS), amended/substituted May 4, 2021, providing for access to long-term care facilities for members of the clergy, for additional safety requirements for residents, for suspension of access for members of the clergy and for personal protective equipment for members of the clergy. * 2021 PA S.B. 190 (NS), introduced March 23, 2021, providing for essential family caregivers in facilities, including hospice, during disaster emergencies. ¢ 2021 PA S.B. 385 (NS), amended/substituted June 8, 2021, providing for a long-term care facility ventilation grant program. Rhode Island * 2021 RI H.B. 5543 (NS), adopted July 16, 2021, requires the Department of Health to promulgate rules and regulations providing for the designation of essential caregivers to provide in-person physical or emotional support to a resident of a nursing home or long- term care facility during the period of fifteen (15) days after the declaration of disaster emergency and until sixty (60) days after the termination of the declaration of disaster emergency. ¢ 2021 RI H.R. 6472 (NS), adopted June 25, 2021, requiring essential caregivers for residents of nursing homes and long-term care facilities during health disaster emergencies. ¢ 2021 RI S.B. 6 (NS), adopted July 8, 2021, would require the department of health to promulgate rules and regulations providing for the designation of essential caregivers to provide in-person physical or emotional support to a resident of a nursing home or long- term care facility during the period of fifteen (15) days after the declaration of disaster emergency and until sixty (60) days after the termination of the declaration of disaster emergency. South Carolina 2021 SC H.B. 3227 (NS), introduced January 12, 2021, relating to rights of residents of long-term care facilities, so as to add the right of residents to communicate with persons by videotelephonic or web-based video communication technologies. South Dakota 2021 SD H.B. 1216 (NS), introduced February 3, 2021, to appropriate coronavirus relief fund moneys for family visitation rooms in long- term care and congregate homes. Texas ¢ 2021 TX H.J.R. 110 (NS), introduced February 25, 2021, proposing a constitutional amendment establishing a right for residents of certain long-term care facilities to designate an essential caregiver who is provided meaningful access to the resident during public health emergencies. ¢ 2021 TX H.B. 1221 (NS), introduced January 20, 2021, relating to communicable disease and infection prevention and control measures for certain long-term care facilities. ¢ 2021 TX S.B. 25 (NS), adopted June 14, 2021, to ensure that residents of long-term care facilities and other residences have a guaranteed right to visitation by family members, friends, caregivers, and other individuals. * 2021 TX S.B. 39 (NS), introduced September 22, 2021, relating to health care facility reporting of COVID-19 data. * 2021 TX S.B. 87 (NS), introduced August 23, 2021, relating to health care facility reporting of COVID-19 data. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -15- ¢ 2021 TX S.B. 572 (NS), amended/substituted May 12, 2021, relating to in-person visitation of religious counselors with certain health care facility patients and residents during stressful and end-of-life situations in the course of a public health emergency. Virginia * 2020 VA H.B. 5140 (NS), introduced August 26, 2020, would provide that during a declared public health emergency related to a communicable disease of public health threat, every hospital, nursing home, nursing facility, hospice, and assisted living facility shall allow visits from a patient's or resident's family members or any person designated by the patient when the patient has been diagnosed with a terminal condition or illness and the patient's death is expected to be imminent. * 2020 VA H.B. 5121 (NS), introduced August 24, 2020, and 2020 VA S.B. 5042 (NS), amended/substituted August 27, 2020, would require each nursing home, certified nursing facility, and hospice facility to allow every patient to receive visits, either virtually or in person, at least once per week from family or any person designated by the patient. If such visits are conducted virtually, each such facility shall provide access to equipment and staff support that (i) allows each patient the ability to schedule and receive no less than one virtual visit per week and (ii) provides both visual and sound technology allowing the patient to interact with persons outside the facility, unless the patient or power of attorney of the patient waives such rights to virtual visitation and such waiver is noted in the care plan for the patient. Any person visiting a patient in person may be required to comply with all reasonable requirements of such facility adopted to protect the health and safety of patients and staff of the facility. Each such facility shall publish on its website or provide written communication of its plan for providing virtual or in-person family visits. 2020 VA S.B. 1356 (NS), adopted April 7, 2021, requires the Board of Health to include in regulations governing hospitals, nursing homes, certified nursing facilities, and hospices and the Board of Social Services to include in regulations governing assisted living facilities a requirement that, during a public health emergency related to a communicable disease of public health threat, each such facility establish a protocol to allow patients to receive visits from a rabbi, priest, minister, or clergy of any religious denomination or sect consistent with guidance from the CDC and CMS and subject to compliance with any executive order, order of public health, Department of Health guidance, or any other applicable federal or state guidance having the effect of limiting visitation. The measure provides that such protocol may restrict the frequency and duration of visits and may require visits to be conducted virtually using interactive audio or video technology when use of interactive audio or video technology is determined to be necessary to comply with any applicable federal or state guidance or to protect the health and safety of the person, patients or staff. Additionally, the protocol may require the person visiting a patient to comply with all reasonable requirements of the facility adopted to protect the health and safety of the person, patients, and staff. Washington ¢ 2021 WAH.B. 1196 (NS), amended/substituted February 3, 2021, relating to audio-only telemedicine. ¢ 2021 WAH.B. 1462 (NS), introduced February 2, 2021, relating to the total compensation for telemedicine services, including skilled nursing facilities. ¢ 2021 WA S.B. 5294 (NS), introduced January 20, 2021, concerning the creation of statewide epidemic preparedness and response guidelines for long-term care facilities. Wisconsin ¢ 2021 WI A.B. 215 (NS), introduced March 31, 2021, visitation of a long-term care facility resident or hospital patient by an essential visitor or member of the clergy. * 2021 WI S.B. 230 (NS), introduced March 24, 2021, visitation of a long-term care facility resident or hospital patient by an essential visitor or member of the clergy. Ill. MEDICAID FUNDING The Medicaid program is jointly funded by the federal government and states. The federal government pays states for a specified percentage of program expenditures, called the Federal Medical Assistance Percentage (FMAP). FMAPs are used in determining the amount of Federal matching funds for State expenditures for assistance payments for certain social services, and State medical and medical insurance expenditures. The Social Security Act requires the Secretary of Health and Human Services to calculate and publish the FMAPs each year. Section 1905(b) of the Act specifies the formula for calculating Federal Medical Assistance Percentages. FMAP varies by state based on criteria such as per capita income. The regular average state FMAP is 57%. It ranges, however, from 50% in wealthier states up to 75% in states with lower per capita incomes (the maximum regular FMAP is 82%). FMAPs are adjusted for each state on a three-year cycle to account for fluctuations in the economy, and are published annually in the Federal Register. [FNS2] States must ensure they can fund their share of Medicaid expenditures for the care and services available under their state plan. Recognized sources of funding for the state share of Medicaid payments include: * Legislative appropriations to the single state agency « Inter-governmental transfers (IGTs) THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -16- * Certified public expenditures (CPEs) ¢ Permissible taxes and provider donations Before the CMS approves a state plan amendment, they must verify that state funding sources meet statutory and regulatory requirements so they can authorize federal financial participation (FFP) for the covered services. States can establish their own Medicaid provider payment rates within federal requirements. States generally pay for services through fee-for-service or managed care arrangements. Under fee-for-service arrangements, states pay providers directly for services. States may develop their payment rates based on: the costs of providing the service, a review of what commercial payers pay in the private market, and a percentage of what Medicare pays for equivalent services. Under managed care arrangements, states contract with organizations to deliver care through networks and pay providers. Approximately 70% of Medicaid enrollees are served through managed care delivery systems, where providers are paid on a monthly capitation payment rate. Payment rates are often updated based on specific trending factors, such as the Medicare Economic Index or a Medicaid-specific trend factor that uses a state-determined inflation adjustment rate. The methodologies for service rates are described in the Medicaid State Plan. To change the way they pay Medicaid providers, states must submit a State Plan Amendment (SPA) for CMS review and approval. Before the amendment's effective date, the state must also issue a public notice of the change. The notification is intended to widely inform providers and other stakeholders of changes to Medicaid payment rates. CMS periodically reviews SPA reimbursement methodologies for consistency with the Social Security Act and other federal statutes and regulations. States must 'assure that payments are consistent with efficiency, economy and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.' An analysis of recent trends in nursing facilities compiled by the Kaiser Family Foundation IFNS3] finds that Medicaid is the primary source for most certified nursing facility residents, with more than six in ten (62%) residents-about 832,000 people-having Medicaid as their primary payer in 2016. States in the East, particularly the Southeast, have higher shares of residents with Medicaid as their primary payer than other states. The relatively high cost of care in the long-term care delivery system, that includes home and community based services, has led it to become the focus of attention from policymakers. Researchers drew on data from the federal On-line Survey, Certification, and Reporting system (OSCAR) and Certification and Survey Provider Enhanced Reports (CASPER) on nursing facility characteristics, staffing, and deficiencies, by state, from 2009 to 2016. Key findings include: ¢ The number of nursing facility beds has been fairly consistent since 2009, reaching 1.6 million certified beds in 2016 (with an average of 109 beds per facility). However, nursing facility occupancy rates declined slightly from 2009 to 2016, from 84% in 2009 to 81% in 2016. ¢ The share of nursing facilities that were for-profit increased slightly, from 67% in 2009 to 69% in 2016, while the share that were non- profit declined slightly from 26% in 2009 to 24% in 2016. ¢ On average, in 2016, residents' level of need for assistance with activities of daily living scored 5.8 on a scale from 3 to 9, and levels of need have been fairly stable since 2009. * In 2016, total nursing hours (including RNs, LPN/LVNs, and NAs) averaged 4.1 hours per resident day, an increase from 3.9 in 2009, although there was wide state variation in average nursing hours per resident day. Nationwide, many of these hours are accounted for by non-licensed nursing care (i.e., nursing assistants). * Nursing facility deficiencies have declined between 2009 and 2016 (though there is still much state variation in rates of deficiencies). Long-Term Care Services and Supports (LTSS) The Medicaid program allows for the coverage of Long Term Care Services through several vehicles and over a continuum of settings that include Institutional Care and Home- and Community-Based Long Term Services and Supports. As states face rising Medicaid costs and continuing fiscal pressures, state Medicaid programs are increasingly considering risk-based contracting with managed care organizations (MCOs) to provide long-term supports and services (LTSS) to those enrollees. While the fixed payment structure helps make Medicaid costs more predictable for states, they may create incentives for plans to restrict access to services for individuals who have costly health care needs. This potential risk highlights the importance of state oversight to ensure that MCOs comply with all contract requirements-including the provision of all LTSS required to provide optimal care to their enrollees. This potential risk highlights the importance of state oversight to ensure that MCOs comply with all contract requirements-including the provision of all LTSS required to provide optimal care to their enrollees. Institutional Long-Term Care Medicaid covers certain inpatient comprehensive services as institutional benefits as authorized in the Social Security Act. These include hospital services, Intermediate Care Facilities for People with Mental Retardation (ICF/MR), nursing facilities, Preadmission THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -17- Screening & Resident Review (PASRR), inpatient psychiatric services for individuals under age 21, and services for individuals age 65 or older in an institution for mental diseases. Features of institutional benefits include: * Residential facilities that assume total care of the individuals who are admitted. * Comprehensive care including room and board. « Comprehensive service is billed and reimbursed as a single bundled payment. ¢ Institutions must be licensed and certified by the state, according to federal standards. « Institutions are subject to survey at regular intervals to maintain their certification and license to operate. * Eligibility for Medicaid may be figured differently for residents of an institution, and therefore access to Medicaid services for some individuals may be tied to need for institutional level of care. Home- and Community-Based Long-Term Services & Supports Home- and community-based services (HCBS) provide opportunities for Medicaid beneficiaries to receive services in their own home or community. These programs serve a variety of targeted populations groups, such as people with mental illnesses, intellectual disabilities, and/or physical disabilities. CMS is working in partnership with states, consumers and advocates, providers, and other stakeholders to create a sustainable, person-driven long-term support system in which people with disabilities and chronic conditions have choice, control, and access to a full array of quality services that assure optimal outcomes, such as independence, health, and quality of life, "N° For additional information on HCBS funding and policies, see Health Policy Tracking Service, Long-Term Care: Home- and Community- Based Services, a service of Thomson Reuters. Waivers Waivers are vehicles states can use to test new or existing ways to deliver and pay for health care services in Medicaid and the Children's Health Insurance Program (CHIP). There are four primary types of waivers and demonstration projects: * Section 1115 Research & Demonstration Projects: States can apply for program flexibility to test new or existing approaches to financing and delivering Medicaid and CHIP. * Section 1915(b) Managed Care Waivers: States can apply for waivers to provide services through managed care delivery systems or otherwise limit people's choice of providers. ¢ Section 1915(c) Home- and Community-Based Services Waivers: States can apply for waivers to provide long-term care services in home and community settings rather than institutional settings. ¢ Concurrent Section 1915(b) and 1915(c) Waivers: States can apply to implement two types of waivers to provide a continuum of services to the elderly and people with disabilities, as long as all federal requirements for both programs are met. Medicaid Expenditures Increasing Medicaid costs associated with long-term care have prompted federal and state legislators to seek alternatives to institutional long-term care. A recent legislative trend has been to allocate greater resources to fund home-and community-based services (HCBS), which seek to support individuals in need of long-term care in their homes and communities as opposed to institutions, as an alternate form of long-term care. [FN55] Transportation Services, Non-Emergency CMS has delayed consideration of a rule that would make it optional for states to cover non-emergency transportation services, as part of a larger bid to cut $143 billion from Medicaid. According to a regulatory agenda included in the White House budget, a new deadline in late 2021 has been set for a proposed rule allowing states to opt out of the coverage. Such transportation services-often used for dialysis, doctor visits, or physical therapy-have been mandatory since Medicaid's inception. CMS, however, has granted states such as Indiana and lowa waivers to cut back on the offering. Medicaid vs. Long-Term Care Insurance Long-term care is expensive. In 2017, the national averages for long-term care expenses range from $47,840 for a full-time home health aide to over $100,000 for a private room in a nursing home. A study conducted by researchers at the Center for Retirement Research at Boston College examines the options that single individuals over 65 face, and the value of purchasing long-term care insurance. The main funding sources for long-term care are Medicare, private LTC insurance, and Medicaid. Medicare covers short- term stays for noncustodial care, for up to 100 days. Private long-term care insurance is purchased by few single individuals in the U.S., only about 13%. For those that are uninsured, Medicaid bears much of the cost of skilled nursing care once an individual's assets have been exhausted and the means test is met. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -18- The researchers found that while the risk of needing long-term care is greater than research previously indicated, average stays are shorter. Using monthly rather than annual figures, they pointed out that 50% of men and 39% of women don't stay in a skilled nursing facility longer than three months: the average nursing home stay for a man is less than a year; for women, 17 months. With the availability of Medicare and Medicaid, and lower chances that one will endure an expensive, long illness that will bankrupt them, the investigators concluded that 'rational, far-sighted, well-informed" single people would be smart to avoid paying long-term care insurance premiums. [FN56] Recent Legislative Activity Arkansas 2021 AR H.B. 1847 (NS), adopted April 26, 2021, to amend the eligibility for long-term care Medicaid assistance; to ensure that beneficiaries on the low-income disabled working person category of Medicaid can transition to other categories in the Arkansas Medicaid program. Colorado * 2021 CO H.B. 1187 (NS), adopted May 1, 2021, concerning the implementation of case management redesign to ensure conflict-free case management for members eligible for long-term services and supports under the Medicaid program, including hospice services. ¢ 2021 CO H.B. 1227 (NS), adopted May 27, 2021, concerning medical assistance program requirements for nursing facilities, and, in connection therewith, establishing a demonstration of need. Connecticut ¢ 2021 CT S.B. 7 (NS), introduced January 8, 2021, to increase the amount of money residents of long-term care institutions who receive medical assistance may keep for personal needs. * 2021 CT S.B. 196 (NS), introduced January 22, 2021, increasing the personal needs allowance of certain residents of long-term care facilities. ¢ 2021 CT S.B. 418 (NS), amended/substituted February 16, 2021, to increase the amount of personal income a long-term care facility resident who receives medical assistance may keep and authorize a deduction for conservator expenses from the amount of income a Medicaid recipient must apply toward the cost of his or her care. ¢ 2021 CT S.B. 419 (NS), introduced January 27, 2021, increasing the personal needs allowance for certain long-term care facility residents and eliminating the Medicaid applied income penalty for conservator expenses. Delaware 2021 DE S.B. 109 (NS), engrossed June 24, 2021, relating to Medicaid reimbursement rates for home health-care services. Florida 2021 FL S.B. 1830 (NS), filed February 26, 2021, using funds appropriated by the Legislature, requiring long-term care managed care plans to pay assisted living facilities certain rates and to calculate and make special payments for certain residents; requiring plans to pay assisted living facilities for claims within a specified timeframe; providing minimum requirements and specifications for training of medication technicians; requiring the agency to authorize online materials and courses to be used for such training. Hawaii ¢ 2021 HI H.C.R. 42 (NS), introduced February 22, 2021, and 2021 HI S.C.R. 41 (NS), introduced February 23, 2021, urging the department of human services to study the feasibility of increasing payment to Hawaii's Community Care Foster Family Homes (CCFFH) and expanded adult residential care homes (e-arch) for Medicaid recipients. ¢ 2021 HI H.C.R. 46 (NS), introduced February 23, 2021, requesting the Department of Human Services to study the feasibility of increasing the Medicaid reimbursement payment rate for Hawaii's community care foster family homes and expanded adult residential care homes for Medicaid recipients. ¢ 2021 HI H.R. 37 (NS), introduced February 23, 2021, requesting the Department of Human Services to study the feasibility of increasing the Medicaid reimbursement payment rate for Hawaii's community care foster family homes and expanded adult residential care homes for Medicaid recipients. Illinois ¢ 2021 IL H.B. 1422 (NS), introduced February 17, 2021, makes a technical change in a section concerning Medicaid payment rates for nursing facility and ICF/DD services in nursing facilities. ¢ 2021 IL H.B. 3899 (NS), introduced February 22, 2021, amends the Medical Assistance Article of the Illinois Public Aid Code; provides that the Department of Healthcare and Family Services shall implement no later than July 1, 2021 a reimbursement system that uses the Medicare PDPM nursing component rate and takes into account transparency, accountability, actual staffing as reported under the THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -19- federally required Payroll Based Journal system, changes to the minimum wage, adequacy in coverage of the cost of care, quality star rating, staffing star rating, and a quality component that rewards quality improvements. ¢ 2021 IL S.B. 110 (NS), adopted July 9, 2021, provides that, in applying the regional wage adjuster component of the Medicaid RUG-IV 48 reimbursement methodology, no adjuster shall be lower than 0.95. ¢ 2021 IL S.B. 1040 (NS), introduced February 25, 2021, makes a technical change in a Section concerning Medicaid payment rates for nursing facility and ICF/DD services in nursing facilities. Indiana ¢ 2021 IN H.B. 1157 (NS), introduced January 7, 2021, requires the office of Medicaid policy and planning to annually calculate the annual index factor for reimbursement of aged and disabled waiver assisted living providers and specifies the manner in which to make the calculation; requires the annual index factor to be posted on the office's Internet web site; requires the new payment rates to be implemented before July 1 of each year. ¢ 2021 IN H.B. 1158 (NS), introduced January 7, 2021, Medicaid reimbursement of assisted living services-requires the office of the secretary of family and social services to, beginning July 1, 2021, reimburse for home- and community-based services provided to a Medicaid recipient beginning on the date of the individual's Medicaid application (current law allows rather than requires the reimbursement). ¢ 2021 IN S.B. 235 (NS), introduced January 7, 2021, requires a provider to include the service facility location in order to obtain Medicaid reimbursement from the office of the secretary of family and social services or a managed care organization. lowa ¢ 2021 IA H.F. 447 (NS), introduced February 9, 2021, relating to the evaluation of Medicaid-managed care long-term services and supports. ¢ 2021 IA S.F. 154 (NS), introduced January 25, 2021, relating to reimbursement of hospitals for days awaiting placement through private insurance and the Medicaid program. ¢ 2021 IA S.F. 190 (NS), introduced January 28, 2021, relating to long-term services and supports provided under the Medicaid program. ¢ 2021 IA S.F. 379 (NS), introduced February 16, 2021, relating to reimbursement rates for Medicaid long-term services and supports providers. Louisiana ¢ 2021 LAH.C.R. 118 (NS), introduced June 2, 2021, to authorize and direct the Louisiana Department of Health to report certain data relating to Medicaid estate recovery cases to the House Committee on Appropriations, the Senate Committee on Finance, and the legislative committees on health and welfare. * 2021 LA H.R. 185 (NS), adopted June 9, 2021, to authorize and direct the Louisiana Department of Health to report certain data relating to Medicaid estate recovery cases to the House Committee on Appropriations and the House Committee on Health and Welfare. Maine ¢ 2021 ME H.R. 40 (NS), introduced January 11, 2021, resolved, to ensure appropriate personal needs allowances for persons residing in long-term care facilities. ¢ 2021 ME S.R. 292 (NS), introduced March 10, 2021, to Increase MaineCare Reimbursement Rates for Services Provided by Direct Care Workers. Massachusetts ¢ 2021 MA H.D. 1538 (NS), draft/request, February 9, 2021, for the purpose of ensuring a living wage for nursing facility direct care staff, MassHealth shall annually fund a living wage rate add-on for direct care staff of licensed nursing homes, including, but not limited to, certified nurse aides, housekeeping, laundry, dietary, plant operations, and clerical staff. Funds shall cover a living wage, and associated payroll benefits and related employee costs. ¢ 2021 MA S.D. 771 (NS), draft/request, February 5, 2021, increasing the personal needs allowance for residents of long-term care facilities. ¢ 2021 MA S.D. 1524 (NS), filed February 17, 2021, increasing the personal care allowance for long-term care residents. ¢ 2021 MA S.D. 1771 (NS), filed February 18, 2021, relative to stabilizing the Commonwealth's nursing facilities by recognizing inflationary costs in adjusting nursing home allowable resident care base year costs, recognizing current labor and resident care costs in setting Medicaid rates, and other. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -20- ¢ 2021 MA S.D. 1788 (NS), filed February 18, 2021, relative to the nursing home quality jobs initiative, ensuring a living wage for nursing facility direct care staff, MassHealth shall annually fund a living wage rate add-on for direct care staff of licensed nursing homes, including, but not limited to, certified nurse aides, housekeeping, laundry, dietary, plant operations, and clerical staff. Funds shall cover a living wage, and associated payroll benefits and related employee costs. MassHealth shall, subject to appropriation, adjust the annual living wage add-on with an inflation adjustment consistent with the annual unadjusted Skilled Nursing Facility Market Basket Update as established by the Centers for Medicare & Medicaid in the Medicare Skilled Nursing Facility prospective payment system rule. Minnesota ¢ 2021 MN S.F. 984 (NS), introduced February 15, 2021, personal care assistance program modification. ¢ 2021 MN S.F. 2103 (NS), introduced March 15, 2021, establishing a funding mechanism for the programs for all-inclusive care for the elderly (PACE) program. Mississippi 2021 MS H.B. 1007 (NS), introduced January 18, 2021, providing for certain provider assessments used for funding the Medicaid program. Nebraska ¢ 2021 NE L.B. 101 (NS), adopted 4-21-2021, relating to the Medical Assistance Act; to change the limitation on addition of long-term care services and supports to the Medicaid managed care program. ¢ 2021 NE L.R. 145 (NS), introduced May 12, 2021, to study the adequacy of current aged and disabled Medicaid waiver assisted-living provider rates. New Hampshire 2021 NH S.B. 149 (NS), amended/substituted June 3, 2021, regarding Medicaid spend-down requirements, automated pharmacy systems for long-term care and other residential facilities, and blanket CMS waivers for health care during a declared emergency. New Jersey ¢ 2020 NJ A.B. 2648 (NS), introduced February 13, 2020, would establish a Medicaid demonstration project to cover room and board services for certain terminally ill patients in the home or other non-institutional setting. ¢ 2020 NJ A.B. 4237 (NS), introduced June 8, 2020, would require Medicaid fee-for-service coverage of managed long-term services and supports when beneficiary is pending enrollment in a managed care organization. * 2020 NJ S.B. 2813 (NS), introduced August 10, 2020, would authorize a temporary rate adjustment for certain nursing facilities; appropriate $62.3 million. * 2020 NJ S.B. 3350 (NS), introduced January 12, 2021, requires Medicaid fee-for-service coverage of managed long term services and supports when beneficiary is pending enrollment in managed care organization. New York ¢ 2021 NY A.B. 1060 (NS), introduced January 7, 2021, authorizes the commissioner of health to adjust medical assistance rates of payment for certified home health agencies, managed long-term care plans, hospices, long-term home health care programs, licensed home care services agencies and other entities for recruitment, training and retention of direct care workers for services in shortage areas and by shortage disciplines. ¢ 2021 NY S.B. 2542 (NS), amended/substituted April 23, 2021, relating to the definition of the 'look-back period" for the determination of eligibility of an individual for medical assistance benefits. * 2021 NY S.B. 4965 (NS), introduced February 19, 2021, relating to the automatic enrollment and recertification simplification for Medicaid eligible recipients in Medicaid managed care and long-term care plans. ¢ 2021 NY S.B. 5345 (NS), introduced March 2, 2021, authorizes one or more demonstration projects that permit a managed long-term care plan to enroll persons that are permanently placed in a nursing home in rural areas. ¢ 2021 NY S.B. 5374 (NS), introduced March 3, 2021, enacting provisions to provide minimum wages for home care aides; requiring at least 150% of minimum wage or other set minimum; directing the commissioner of health to set regional minimum rates of reimbursement for home care aides under Medicaid and managed care plans Ohio 2021 PA H.B. 2067 (NS), introduced November 9, 2021, further providing for State participation in cooperative Federal programs; in public assistance, further providing for income for the community spouse, for medical assistance payments for institutional care, for medical assistance payments for home health care, for other medical assistance payments and for medical assistance benefit packages and coverage, copayments, premiums and rates; providing for the Office of Independent Medical Assistance Director. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -24- Oklahoma 2021 OK H.B. 2119 (NS), engrossed March 2, 2021, relates to nursing facility reimbursement; providing for enhanced FMAP payments when certain funds are made available. Pennsylvania 2021 PA H.B. 1693 (NS), introduced June 24, 2021, providing for notice of legal representation to assist with applying for medical assistance (Medicaid) long-term care benefits. Rhode Island ¢ 2021 RI H.B. 5792 (NS), introduced February 24, 2021, requires the executive office of health and human services to adjust the per diem reimbursement rate to nursing facilities every 3 years; and provides that any time state minimum wage is increased, the reimbursement rate increases by the same percentage. * 2021 RI S.B. 793 (NS), introduced April 8, 2021, requires nursing facilities per diem rates to be adjusted every 3 years or the rate shall automatically increase by 3%. Requires Medicaid rates paid to nursing facilities be increased by the same percentage of any minimum wage increase. Texas ¢ 2021 TX H.B. 270 (NS), introduced February 25, 2021, relating to the personal needs allowance for certain Medicaid recipients who are residents of long-term care facilities. ¢ 2021 TX H.B. 941 (NS), introduced March 1, 2021, relating to the creation of a work group to study uniform quality measures under a value-based program for long-term services and supports. ¢ 2021 TX H.B. 4194 (NS), introduced March 12, 2021, relating to the provision of home health care services under the Medicaid managed care program. Vermont 2021 VT H.B. 153 (NS), engrossed March 25, 2021, to establish an annual inflation factor to be applied to the Medicaid rates for providers of home- and community-based service providers. It would also direct the Department of Vermont Health Access and the Department of Disabilities, Aging, and Independent Living to study the Medicaid reimbursement rates paid to home- and community- based service providers (including hospice), their adequacy, and the methodologies underlying the rates. Virginia * 2020 VA H.B. 902 (NS), amended/substituted January 30, 2020, would provide that every individual who applies for community or institutional long-term care services and supports as defined in the state plan for medical assistance services may choose to receive services in a community or institutional setting and may choose the setting and provider of long-term care services and supports from a list of approved providers. The bill also clarifies requirements related to the performance of such long-term care services and supports screenings. * 2020 VA H.B. 925 (NS), introduced January 8, 2020, would direct the Department of Medical Assistance Services (DMAS) to establish a process for (i) conducting a comprehensive needs assessment of a person who is eligible to participate in the Medicaid Works waiver program but is not yet participating in such program to determine the services the person may need to continue to live independently and engage in employment; and (ii) developing a plan of care for such person that describes the types of services and amount of each such service the person will receive should they choose to participate in the Medicaid Works waiver program so that persons considering transitioning from the Home and Community-Based Services waiver program to the Medicaid Works waiver program have sufficient information to make an informed choice regarding such transition. The bill would also require DMAS to develop processes to (i) enable a person who transitions from a Home and Community-Based Services (HCBS) waiver service to the Medicaid Works waiver program to retain their HCBS waiver slot for up to 180 days following the date of such transition; and (ii) give priority to individuals previously receiving services through such waiver program who transitioned to the Medicaid Works waiver program and who subsequently seek to return to receiving services through the HCBS waiver program. ¢ 2020 VA S.B. 902 (NS), amended/substituted February 11, 2020, would provide that every individual who applies for community or institutional long-term care services and supports as defined in the state plan for medical assistance services may choose to receive services in a community or institutional setting and may choose the setting and provider of long-term care services and supports from a list of approved providers. The bill would also clarify requirements related to the performance of such long-term care services and supports screenings. ¢ 2020 VA S.B. 1102 (NS), amended/substituted January 26, 2021, requires the Department of Medical Assistance Services to establish within its Long-Term Care Division an orientation program for all personal care aides who provide self-directed services through the Medicaid program Washington ¢ 2021 WAH.B. 1275 (NS), introduced January 19, 2021, relating to nursing facility Medicaid rate rebasing, inflation, and case mix. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -29- ¢ 2021 WA S.B. 5311 (NS), introduced January 20, 2021, adjusting the skilled nursing Medicaid rate methodology to provide an annual inflationary adjustment. IV. HOME- AND COMMUNITY-BASED SERVICES FUNDING Home- and community-based services (HCBS) provide opportunities for Medicaid beneficiaries to receive services in their own home or community. These programs serve a variety of targeted populations groups, such as people with mental illnesses, intellectual disabilities, and/or physical disabilities. CMS is working in partnership with states, consumers and advocates, providers and other stakeholders to create a sustainable, person-driven long-term support system in which people with disabilities and chronic conditions have choice, control, and access to a full array of quality services that assure optimal outcomes, such as independence, health, and quality of life. [FNS7] Many patients prefer HCBS because they provide them with the freedom to remain in their homes or communities instead of institutions. In addition, many studies indicate that HCBS offer significant savings for insurers as compared to institutional settings. Federally funded Medicaid support, in the form of Medicaid waivers and direct personal assistance services (PAS), provides another significant reason for the rising popularity of HCBS. Section 1915(c) of the Social Security Act IFNS8] offers states a federally-supported alternative to providing long-term care services in institutional settings by allowing them the option to waive Medicaid provisions in order to offer individuals HCBS. PAS allow Medicaid beneficiaries receiving personal care or HCBS to supervise, manage, and personalize their care. Baby boomers may be more willing to receive long-term care outside the home than was commonly thought, however, according to a LeadingAge poll released in March 2019. IFNS8] More than 1,200 older adults between age 60 and 72 participated in the poll, which asked them about late-life care preferences. Up to 40% of respondents would want to live somewhere other than their current home or apartment if they had a physical disability that required them to need help with daily activities, the survey found. Earlier studies and surveys reported that the majority (76% or more) of adults say they want to stay in their own home. These earlier studies do not target older baby boomers and they do not ask for separate responses depending on whether the impairment is physical or cognitive. Asked what would be important if they were in a position of needing help with daily activities, being safe was ranked the most important consideration, higher even than being around family or friends. About 14% of the respondents indicated they would move to a place that is staffed to provide healthcare along with the help with daily activities in the presence of a physical disability. That number swelled to 42% if help was required due to dementia. While most people (over 60%) want to live with their spouse or partner if they need help due to a physical or cognitive disability, becoming a burden on family members was cited as the biggest worry among participating baby boomers. Affordability was seen as the biggest challenge to purchasing care among all respondents. Kaiser Health News reports that nearly every state reported actions to increase the use of HCBS settings for people needing long-term care. The report surveyed individual states, and found that 42 took actions in FY 2016 to move and keep more people who require long- term care services in home or community settings, including 23 states that opted to expand their Program of All-Inclusive Care for the Elderly (PACE). PACE provides comprehensive medical and social services to certain frail, elderly individuals who qualify for nursing home care but, at the time of enrollment, can still live safely in the community. The majority of participants served by PACE are dually eligible for both Medicare and Medicaid. More than 45,000 older adults are currently enrolled in more than 100 PACE organizations in 31 states, and enrollment in PACE has increased by over 120% since 2011. On May 28, 2019, CMS finalized a rule to update and modemize PACE. This rule-the first major update to the PACE since 2006- reflects updates based upon best practices in caring for frail and elderly individuals, according the agency's fact sheet. IFN6O] The final rule revises and updates the requirements for the PACE program under Medicare and Medicaid, including: ¢ Strengthening protections and improving care for PACE participants; and ¢ Providing administrative flexibility and regulatory relief for PACE organizations. The changes provide greater operational flexibility, remove redundancies and outdated information, and codify existing practice, the fact sheet states. Funding for Medicaid long-term care home and community-based services (HCBS) versus institutional care is widely regarded as beneficial. However, according to a study reported in Health Affairs, [FN61] little is known about the outcomes of these services, especially for racial and ethnic minority groups, whose members tend to use the services more than whites do, and for people with dementia who may need high-intensity care. Using national Medicaid claims data on older adults enrolled in both Medicare and Medicaid, investigators found that overall hospitalization rates were similar for HCBS and nursing facility users, although nursing facility users were generally sicker as reflected THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -23- in their claims history. Among HCBS users, blacks were more likely to be hospitalized than non-Hispanic whites were, and the gap widened among blacks and whites with dementia, according to the researchers. The study also found that, conditional on receiving HCBS, Medicaid HCBS spending was higher for whites than for nonwhites, and higher Medicare and Medicaid hospital spending for blacks and Hispanics did not offset this difference. The study's findings suggest that HCBS needs to be carefully targeted to avoid adverse outcomes and that the racial/ethnic disparities in access to high-quality institutional long-term care are also present in HCBS. Policy makers should consider the full costs and benefits of shifting care from nursing facilities to home and community settings and the potential implications for equity. For additional information on HCBS funding and policies, see Health Policy Tracking Service, Long-Term Care: Home- and Community- Based Services, a service of Thomson Reuters. Recent Legislative Activity Federal 2021 CONG US HR 5514, introduced October 8, 2021, to improve extended care services by providing Medicare beneficiaries with an option for cost-effective home-based extended care under the Medicare program. Arizona 2021 AZ S.B. 1466 (NS), adopted April 5, 2021, provides for the family caregiver grant program. California * 2021 CAA.B. 523 (NS), vetoed by the governor October 6, 2021, would have required the department to make permanent the specified PACE program flexibilities instituted, on or before January 1, 2021, in response to the state of emergency caused by COVID-19 by means of all-facility letters or other similar instructions taken without regulatory action, with prescribed modifications, such as instead limiting a PACE organization's use of telehealth to specified services, including conducting assessments for eligibility for enrollment in the PACE program, subject to the federal waiver process. ¢ 2021 CAS.B. 171 (NS), adopted September 23, 2021, requires the State Department of Health Care Services to implement activities and expenditures to enhance, expand, or strengthen home and community-based services (HCBS) under the Medi-Cal program, as specified. Connecticut 2021 CT S.B. 493 (NS), introduced January 27, 2021, to implement the recommendations of the Nursing Home and Assisted Living Oversight Working Group concerning the establishment of an essential caregiver program. Delaware 2021 DE S.C.R. 44 (NS), adopted May 20, 2021, creating an aging-in-place working group to develop recommendations related to home and community based services. Florida ¢ 2021 FL S.B. 984 (NS), filed February 1, 2021, specifying information the Social Services Estimating Conference must develop related to the home-based and community-based Medicaid waiver services program. ¢ 2021 FL S.B. 1830 (NS), introduced March 10, 2021, using funds appropriated by the Legislature, requiring long-term care managed care plans to pay assisted living facilities certain rates and to calculate and make special payments for certain residents; requiring plans to pay assisted living facilities for claims within a specified timeframe; providing minimum requirements and specifications for training of medication technicians; requiring the agency to authorize online materials and courses to be used for such training. * 2021 FL S.B. 1880 (NS), introduced March 10, 2021, removing provisions requiring that a portion of the punitive damages awarded for claims relating to nursing homes and assisted living facilities be deposited into the Quality of Long-Term Care Facility Improvement Trust Fund. ¢ 2022 FL H.B. 2227 (NS), filed October 14, 2021, providing an appropriation for the Dementia Alzheimer's Community Based Long Term Care Services - CSG Home Healthcare Services. Hawaii ¢ 2021 HI H.C.R. 46 (NS), introduced February 23, 2021, requesting the Department of Human Services to study the feasibility of increasing the Medicaid reimbursement payment rate for Hawaii's community care foster family homes and expanded adult residential care homes for Medicaid recipients. ¢ 2021 HI H.R. 37 (NS), introduced February 23, 2021, requesting the Department of Human Services to study the feasibility of increasing the Medicaid reimbursement payment rate for Hawaii's community care foster family homes and expanded adult residential care homes for Medicaid recipients. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -24- ¢ 2021 HI S.C.R. 41 (NS), introduced February 23, 2021, urging the Department of Human Services to study the feasibility of increasing payment to Hawaii's community care foster family homes (CCFFH) and expanded adult residential care homes (e-ARCH) for Medicaid recipients. ¢ 2021 HI H.B. 491 (NS), introduced January 25, 2021, and 2021 HI S.B. 838 (NS), introduced January 22, 2021, allows the executive office of aging to relax the thirty-hour employment requirement for qualified caregivers under the Kupuna Caregivers Program during a state-declared state of emergency; adds the option of Kupuna caregiver-directed services to the Kupuna caregivers program; includes assisting the care recipient and caregiver with the enrollment process as the duty of a coach; allows funds under the Kupuna Caregivers Program to be issued to the care recipient's financial management service provider. ¢ 2021 HI S.B. 59 (NS), introduced January 21, 2021, requires operators of adult residential care homes, assisted living facilities, long- term care facilities, nursing homes, and community care facilities to establish and implement infectious disease control and prevention training and other related protocols; requires the Department of Health to ensure compliance with infectious disease control and prevention training programs prior to the issuance or renewal of a license; authorizes the Department of Health to conduct random audits to determine compliance with infectious disease control and prevention training program or course. Illinois 2021 IL S.B. 1977 (NS), adopted August 20, 2021, requires the Department of Healthcare and Family Services to apply for all available federal funding to promote community inclusion and integration for persons with disabilities, regardless of age, and older adults so that those persons have the option to transition out of institutions and receive long-term care services and supports in the settings of their choice. Indiana ¢ 2021 IN H.B. 1157 (NS), introduced January 7, 2021, requires the office of Medicaid policy and planning to annually calculate the annual index factor for reimbursement of aged and disabled waiver assisted living providers and specifies the manner in which to make the calculation; requires the annual index factor to be posted on the office's Internet web site; requires the new payment rates to be implemented before July 1 of each year. * 2021 IN H.B. 1158 (NS), introduced January 7, 2021, Medicaid reimbursement of assisted living services-requires the office of the secretary of family and social services to, beginning July 1, 2021, reimburse for home- and community-based services provided to a Medicaid recipient beginning on the date of the individual's Medicaid application (current law allows rather than requires the reimbursement). Maryland 2021 MD H.B. 599 (NS) and 2021 MD S.B. 652 (NS), adopted May 30, 2021, to develop and publish materials to assist State residents with long-term care family planning; requiring materials to meet certain requirements. Massachusetts ¢ 2021 MA H.D. 2507 (NS), filed February 17, 2021, establishing a livable home modification grant program. ¢ 2021 MA H.D. 2522 (NS), filed February 17, 2020, increasing awareness of community-based PACE programs for older adults. ¢ 2021 MA S.D. 757 (NS), draft/request, February 5, 2021, directing the administration to amend the Frail Elder Home and Community- Based Waiver to permit eligible older adults to choose to reside in Certified Assisted Living Residences. * 2021 MA S.D. 1476 (NS), filed February 17, 2021, to increase awareness of community-based PACE programs for older adults. Minnesota ¢ 2021 MN S.F. 671 (NS), introduced February 4, 2021, modifying payment rates for home health services and home care nursing services. ¢ 2021 MN S.F. 2306 (NS), introduced March 25, 2021, human services rates for services under elderly waiver and disability waiver modifications. Nevada 2021 NV S.B. 340 (NS), adopted June 9, 2021, to establish a home care employment standards board under certain circumstances; prescribing the membership of a home care employment standards board; requiring such a board to conduct an investigation into certain matters relating to the employment of home care employees; requiring such a board to develop recommendations concerning the minimum wage for home care employees or the working conditions of such employees; authorizing the Director to adopt regulations implementing such recommendations; revising provisions governing the administration and enforcement of provisions governing the minimum wage paid to employees in the state. New Jersey ¢ 2020 NJ A.B. 5648 (NS), introduced May 12 2021, establishes 'Home Repair and Modification for Aging Parents Program'; appropriates $5 million. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -25- * 2020 NJ S.B. 407 (NS), introduced January 14, 2020, would establish the 'Naturally Occurring Retirement Community' pilot program; appropriate $250,000. New Mexico 2021 NM S.B. 152 (NS), introduced January 31, 2021, requiring providers to include closure plan descriptions in continuing care contracts; requiring the Attorney General to accept and review alleged violations of the Continuing Care Act reported from any source. New York ¢ 2021 NY A.B. 1060 (NS), introduced January 7, 2021, authorizes the commissioner of health to adjust medical assistance rates of payment for certified home health agencies, managed long-term care plans, hospices, long-term home health care programs, licensed home care services agencies and other entities for recruitment, training and retention of direct care workers for services in shortage areas and by shortage disciplines. ¢ 2021 NY A.B. 1137 (NS), introduced January 7, 2021, requires contracts with home care service providers to provide sufficient resources to ensure compensation to a qualified workforce providing high quality care. ¢ 2021 NY A.B. 1342 (NS), introduced January 8, 2021, makes assisted living programs eligible for access funding under the vital access provider program. ¢ 2021 NY A.B. 2588 (NS), introduced January 19, 2021, relates to a moratorium on new licensed home care service agency approvals. ¢ 2021 NY A.B. 3626 (NS), introduced January 28, 2021, enacts the 'independent senior housing resident freedom of choice act' to authorize persons in independent housing, shelters and residences to receive services they could otherwise receive if they resided in a private residence. ¢ 2021 NY A.B. 6329 (NS), introduced March 16, 2021, relating to fair pay for home care aides under Medicaid and managed care plans. ¢ 2021 NY S.B. 5839 (NS), introduced March 19, 2021, relates to a moratorium on new licensed home care service agency approvals. ¢ 2021 NY S.B. 6526 (NS), adopted July 16, 2021, amends the definition of social adult day services to include community or home settings which are pursuant to a person-centered service plan. ¢ 2021 NY S.B. 6664 (NS), introduced May 11, 2021, establishing a state-level program of all-inclusive care for the elderly for persons 55 years of age or older, qualifying for nursing home levels of care who wish to remain in their community. North Carolina ¢ 2021 NC H.B. 727 (NS), introduced April 29, 2021, establishing a licensure by accreditation process for adult care homes; exempting adult care homes that are licensed by virtue of accreditation from routine inspections and the star rating program for assisted living facilities; and appropriating funds for an assisted living accreditation grant program and for a comparison of resident outcomes in accredited versus non-accredited adult care homes. ¢ 2021 NC H.B. 777 (NS), introduced May 4, 2021, appropriating funds for expansion of the project caregiver alternatives to running on empty (project C.A.R.E.) program, for caregivers of persons with dementia. ¢ 2021 NC S.B. 191 (NS), adopted October 15, 2021, the No Patient Left Alone Act, providing patient visitation rights will not be impacted during declared disasters and emergencies and directing the department of health and human services to impose a civil penalty for any violation of those rights. Oregon * 2021 OR H.B. 2394 (NS), relating to preventing the social isolation of individuals in community-based care settings during public emergencies. * 2021 OR H.B. 2981 (NS), introduced January 21, 2021, requires the Oregon Health Authority to establish and administer a program to provide palliative care services and support provision of home- and community-based end-of-life care; specifies eligibility, services, and provider qualifications. Rhode Island ¢ 2021 RI H.B. 5072 (NS), introduced January 22, 2021, would require health insurance plans to provide coverage for accessible residence modifications when those modifications are determined to be medically necessary, but only after a physician makes a determination that absent the accessible modifications, the patient would have to move into a long-term care residential facility. * 2021 RI S.B. 158 (NS), amended/substituted June 24, 2021, would establish the livable home modification program for home modification and accessibility enhancements to construct, retrofit and/or renovate residences to allow individuals with significant disabilities to remain in community settings, and qualify them for a grant of fifty percent (50%) of the total cost. * 2021 RI S.B. 972 (NS), amended/substituted June 29, 2021, would increase wages for direct care workers employed by home nursing care, home care, and hospice providers licensed by the Rhode Island department of health, under the state Medicaid program. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -26- Tennessee 2021 TN S.B. 582 (NS), filed February 9, 2021, changes from February 1 to January 15, the date by which the bureau of TennCare must report to the general assembly a separate accounting of long-term expenditures for nursing facility services, home and community-based services made under the CHOICES long-term healthcare program, and employment and Community First CHOICES services. Texas 2021 TX H.J.R. 14 (NS), introduced March 1, 2021, proposing a constitutional amendment authorizing the legislature to exempt from ad valorem taxation the total assessed value of the residence homestead of an unpaid caregiver of an individual who is eligible to receive long-term services and supports under the Medicaid program while the individual is on a waiting list for the services and supports. Utah 2021 UT H.B. 226 (NS), introduced January 22, 2021, long-term care patient and consumer rights, regulating assisted living and nursing home facilities. Vermont 2021 VT H.B. 153 (NS), introduced January 29, 2021, relating to Medicaid reimbursement rates for home- and community-based service providers. Virginia 2020 VA S.J.R. 293 (NS), adopted February 24, 2021, requests the Joint Commission on Health Care to study available data regarding assisted living and auxiliary grants and develop a blueprint for implementing recommendations that will allow the Commonwealth to provide a more realistic system of addressing housing and care needs. V. MEDICARE FUNDING Medicare Part A covers medically necessary skilled nursing care in a skilled nursing facility for a limited time, provided certain conditions are met. It does not cover custodial care if it is the only kind of care needed. Generally, skilled care is available for up to 100 days, following hospitalization. In 2021, Medicare Part A beneficiaries living in skilled nursing facilities will see their daily coinsurance rates for days 21 through 100 of extended care services during the benefit period rise from $176 in 2020 to $185.50 in 2021. [FN62] For fiscal 2021, nursing homes will receive a 2.2% Medicare pay increase, federal officials announced on July 31, 2020. [FN63] The rate reflects a 0.1% change from the net 2.3% market basket update originally proposed by the Centers for Medicare & Medicaid Services (CMS) on April 10. Due to the COVID-19 crisis, CMS also announced that it has limited annual SNF rulemaking required by statute to essential policies, including Medicare payment to SNFs. CMS estimates that the increase amounts to an additional $750 million for FY 2021 compared to FY 2020. The increase begins on October 1, 2020, the start of the 2021 fiscal year. Technically speaking, the estimated increase is attributable to a 2.2 percent market basket increase factor, adjusted by a 0.0 percentage point productivity adjustment. The final rule also adopts revised geographic delineations provided by the Office of Management and Budget to identify a provider's status as an urban or rural facility and to calculate the wage index, applying a 5 percent cap on any decreases in a provider's wage index from FY 2020 to FY 2021. The rule also includes minor administrative changes related to the SNF Value-Based Purchasing (VBP) Program. Home health payment rates for calendar year (CY) 2020 and home infusion therapy rates for CY 2021 were finalized by CMS on October 31, 2019. IFN64] The rule modifies payment regulations pertaining to the home health plan of care; allows therapist assistants to furnish maintenance therapy; and finalizes policies related to the split percentage payment approach under the Home Health Prospective Payment System (HH PPS). The rule also includes final policies related to implementation of the permanent home infusion therapy benefit in CY 2021, including payment categories, amounts, and required and optional adjustments. Comments on options to enhance future efforts to improve policies related to coverage of eligible drugs for home infusion therapy are also solicited. On July 13, 2021, CMS released its proposed calendar year 2022 Medicare Physician Fee Schedule, including pay levels for long- term care therapy providers. IFN65] Under the proposal, payments to therapy providers would drop, but only by about one-fourth of the expected levels, McKnight's reports. [FN66] According to preliminary analysis of the proposed rule, including changes to the Conversion Factor, therapy pay rates will result in about 2% cuts, compared to 9% cuts last year. Furthermore, portable x-ray suppliers would see a 10% rise in total allowed charges under the proposed rule. And, although CMS is moving forward with the 15% differential pay cuts for physical and occupational therapy assistants, it has proposed modifications to billing minutes to minimize the cuts. The new rates take effect January 1, 2022. Quality measures: Set for FY 2018 and FY 2020, CMS has introduced four new quality and resource use measures for skilled nursing facilities, in accordance with the Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act). Three new claims-based measures, effective in FY 2018, included discharge to community, Medicare spending per beneficiary, and potentially THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -27- preventable 30-day post-discharge readmission measure for skilled nursing facilities. A fourth, assessment-based measure was added for FY 2020, and will cover drug regimen reviews conducted with a follow-up for any identified issues. Quality Reporting Program (QRP): The SNF QRP applies to freestanding SNFs, SNFs affiliated with acute care facilities, and all non- CAH swing-bed rural hospitals. Beginning with fiscal year 2018, and each subsequent year, if an SNF does not submit required quality data, their payment rates for the year are reduced by 2% for that fiscal year. Application of the 2% reduction may result in an update that is less than 0.0 for a fiscal year and in payment rates for a fiscal year being less than such payment rates for the preceding fiscal year, according to the memo. Penalties will begin October 1 (the start of fiscal 2018) for skilled nursing facilities that don't submit quality data. On July 29, 2021, CMS announced that it will delay adjustments to Patient Driven Payment Model (PDPM) pay rates for nursing homes until next year in its final rule for FY 2022. CMS stated that it would raise the SNF prospective payment system (PPS) pay rate just 1.2% for FY 2022, less than the 1.3% hike it proposed in April. The 1.2% increase adds $410 million in Medicare Part A payments in fiscal 2022. It derives from an initial 2.7% proposed pay raise, trimmed by a forecast error correction of 0.8% and a productivity adjustment of 0.7%. CMS added that market basket impact figures do not incorporate the SNF VBP reductions that are estimated to be $184.25 million in FY 2022. The new rule also updates metrics used in the SNF Quality Reporting Program. SNFs that do not meet reporting requirements for any of the metrics can be subject to a 2% reduction in their annual update. Starting in FY 2023, facilities will have to report healthcare- associated infections, or HAls, requiring hospitalization. Sepsis, urinary tract infection, and pneumonia are among the kinds of infections CMS will track, noting that HAls often result from 'inadequate patient management following a medical intervention, such as surgery or device implementation, or poor adherence to protocol and antibiotic stewardship guidelines." The agency said it wants to be able to monitor characteristics associated with facilities that have notably higher HAI rates to encourage 'improved quality of care." CMS will also use COVID-19 vaccination rates among healthcare personnel as a new metric 'to assess whether SNFs are taking steps to limit the spread of COVID-19 among their HCP, reduce the risk of transmission within their facilities, and help sustain the ability of SNFs to continue serving their communities throughout the COVID-19 PHE and beyond." [FN67] In FY 2020, CMS adopted two new quality measures to assess how health information is provided by the SNF at the time of transfer or discharge. The two measures are: 1) Transfer of Health Information to the Provider-Post-Acute Care and 2) Transfer of Health Information to the Patient-Post-Acute Care. On October 28, 2020, CMS announced that new skilled nursing facility performance data, featuring six additional measures, [FN68] i, now on the Nursing Home Compare website. The updated SNF Quality Reporting Program (QRP) data was published during the October 2020 quarterly refresh of the site. The updates include quality data from January 1, 2019, to December 31, 2019, for quality assessment data, and from October 1, 2017, to September 30, 2019, for claims-based measures. Starting October 2020, the six new measures being publicly reported are: * changes in skin integrity post-acute care: pressure ulcer/injury, * drug regimen review conducted with follow-up for identified issues, ¢ application for IRF functional outcome measure: change in self-care, ¢ application for IRF function outcome measure: change in mobility, * application for IRF functional outcome measure: change in discharge self-care score, and * application of IRF functional outcome measure: discharge mobility score. CMS noted that the October 2020 refresh of the QRP data on the Nursing Home Compare/Care Compare sites is the last scheduled refresh of the data until January 2022. SNF Value-Based Purchasing Program (VBP) CMS began rewarding SNFs with incentive payments based on their quality measure performance on October 1, 2018. The program currently scores SNFs on an all-cause measure of hospital readmissions, and in the future, will transition to a measure of potentially preventable hospital readmissions. As required by statute, the program reduces SNFs' Medicare payments by 2%, then redistributes 60% of those funds as incentive payments. In the final rule, the SNF VBP Program is changing the name of the program's measure to the 'Skilled Nursing Facility Potentially Preventable Readmissions after Hospital Discharge" (SNFPPR) measure, and also includes an update to the public reporting requirements to ensure that CMS publishes accurate performance information for low-volume SNFs. Currently under the VBP program, SNFs automatically lose 2% of their Medicare reimbursements, which they can win back by sufficiently reducing hospital readmissions. In some cases, the highest-performing operators can actually take in more than the cut amount. The first round of results, however, saw 73% of the nation's more than 15,000 nursing homes lose at least some amount of money, with just 27% pulling in a bonus payment. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -28- MedPAC Proposal: A proposal offered by the Medicare Payment Advisory Commission to replace the current value-based purchasing program for skilled nursing facilities with a more equitable, value-incentive model would benefit both providers and residents, according to a leading healthcare policy expert, McKnight's reports. [FN6S] MedPAC on June 15, 2021, delivered its annual report to Congress on issues affecting the Medicare program and the healthcare delivery system. The recommendation to eliminate the current SNF VBP with an alternative incentive model that rewards providers more evenly based on the quality of care they provide was approved unanimously by the commission in April. Flaws of the current VBP program include: assessing SNF performance based on a single outcome measure (hospital readmissions); not fully distributing all withheld funds; no accounting for social risk factors in payment; and the rewards are too small to encourage all providers to improve quality of care, commissioners have said. In contrast, the proposed replacement would score SNFs based on multiple performance measures focused on patient outcomes, distribute all withheld funding each year to providers, and account for social risk factors. 'The proposed SNF VIP model addresses all of these flaws by incorporating a range of quality measures, building in strategies to ensure reliable results, distributing rewards across all facilities, accounting for differences in patients' social risk factors and distributing the entire provider-funded pool of dollars," Harvard's David Grabowski, Ph.D., told McKnight's Long-Term Care News on June 16. The commission in the past has also argued the switch would ultimately result in more equitable payments across SNFs with different mixes of patients. The change would be budget neutral if adopted. Civil monetary penalties Effective February 3, 2017, HHS has updated its regulations to reflect required annual inflation-related increases to CMPs, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015. Skilled nursing providers will face slightly fines for noncompliance, the first time that CMPs were adjusted since 1987. The adjusted civil penalty amounts apply to civil penalties assessed on or after February 3, 2017, when the violation occurred after November 2, 2015. If the violation occurred prior to November 2, 2015, or a penalty was assessed prior to September 6, 2016, the pre-adjustment civil penalty amounts in effect prior to September 6, 2016 will apply. As published in the Federal Register, [FN70] the rule includes a chart that lists the updated civil monetary penalties and the penalty amounts administered by all the agencies in HHS. Coronavirus (COVID-19) Response Older adults and people who have severe chronic medical conditions like heart, lung, or kidney disease seem to be at higher risk for more serious COVID-19 illness, according to the Centers for Disease Control and Prevention (CDC). Older people may be twice as likely to have serious COVID-19 illness. This means that most people with Medicare are at higher risk. FN71] In response, CMS has expanded Medicare coverage of healthcare needs related to COVID-19. They include: ¢ Coverage of lab tests for COVID-19. Beneficiaries pay no out-of-pocket costs. * All medically necessary hospitalizations are covered. This includes if you're diagnosed with COVID-19 and might otherwise have been discharged from the hospital after an inpatient stay, but instead you need to stay in the hospital under quarantine. * Although there's no vaccine for COVID-19, if one becomes available, it will be covered by all Medicare Prescription Drug Plans (Part D). ¢ If you have a Medicare Advantage Plan, you have access to these same benefits. Medicare allows these plans to waive cost-sharing for COVID-19 lab tests. ¢ Telehealth: Medicare has temporarily expanded its coverage of telehealth services to respond to the current public health emergency. According to Medicare.gov, 'these services expand the current telehealth covered services, to help you have access from more places (including your home), with a wider range of communication tools (including smartphones), to interact with a range of providers (such as doctors, nurse practitioners, clinical psychologists, and licensed clinical social worker). During this time, you will be able to receive a specific set of services through telehealth including evaluation and management visits (common office visits), mental health counseling and preventive health screenings. This will help ensure you are able to visit with your doctor from your home, without having to go to a doctor's office or hospital, which puts you and others at risk of exposure to COVID-19." * Medicare pays for 'virtual check-ins"-brief, virtual services with your established physician or certain practitioners where the communication isn't related to a medical visit within the previous 7 days and doesn't lead to a medical visit within the next 24 hours (or soonest appointment available). * Medicare also pays for you to communicate with your doctors using online patient portals without going to the doctor's office. ¢ If you live in a rural area, you may use communication technology to have full visits with your doctors. The law requires that these visits take place at specified sites of service, known as telehealth originating sites, and get services using a real-time audio and video communication system at the site to communicate with a remotely located doctor or certain other types of practitioners. Medicare pays for many medical visits through this telehealth benefit. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -29- CMS has established new codes to allow providers to properly bill for services related to the diagnosis and treatment of COVID-19. Additionally, nursing homes and hospitals have been instructed to review their infection control procedures. Additionally, to limit the transmission of COVID-19 in nursing homes, facilities are required to restrict visitation of ai! visitors and non- essential care personnel, except for certain compassionate care situations, such as an end-of-life situation. Health care workers and CMS and state agency surveyors are excepted. IFN72] Coverage of Vaccine CMS Administrator Seema Verma said the agency is coming up with a plan to make sure Medicare beneficiaries were covered once a coronavirus vaccine is developed. [FN73] LS. officials have said they expect private insurers to cover the cost of a vaccine with no co- pay for patients. Under the Affordable Care Act, most health plans are required to cover certain preventive services, such as vaccines, without cost-sharing. The CARES Act, signed into law in March, also requires free COVID-19 immunizations approved for emergency use. Verma said CMS would ensure the fees Medicare pays for administration of the vaccine are appropriate, taking into account some of the complexities of the coronavirus vaccine, including that it will likely require two doses. Normally, it would take Medicare between one and three years to ensure it is paying adequately for a new treatment. Coverage of Antibody Treatment CMS announced on November 11, 2020, that coverage of monoclonal antibody therapy for COVID-19 treatments will be available to beneficiaries who live in a variety of healthcare settings, including nursing homes. The treatment will be available at no cost during the public health emergency. Medicare's coverage will apply to bamlanivimab, an investigational monoclonal antibody therapy. On November 10, 2020, the Food and Drug Administration issued an emergency use authorization (EUA) for bamlanivimab to treat mild to moderate COVID-19 in adults and pediatric patients who are at high risk for progressing to severe COVID-19 and/or hospitalization. CMS added that Medicare will cover and pay for the infusions 'the same way it covers and pays for COVID-19 vaccines," once approved and ready for distribution. However, the program will not pay for products that providers receive for free. 'If providers begin to purchase monoclonal antibody products, Medicare anticipates setting the payment rate for the product, which will be 95 percent of the average wholesale price for many health care providers, consistent with usual vaccine payment methodologies. Additionally, Medicare anticipates establishing codes and rates for the administration of the product," CMS explained in a memo, which also lays out guidelines on how to code for the treatment. [FN74] Moratorium on Medicare Sequestration Cuts Extended On April 14, President Biden signed legislation extending the moratorium on Medicare sequestration, after the U.S. House of Representatives passed the Medicare Sequester Relief Act, which extended mandated 2% Medicare cuts to healthcare providers until the end of 2021. The Partnership for Home Healthcare said the extension will give providers additional breathing room as they continue to battle fallout from the COVID-19 pandemic and adapt to the new Patient Driven Grouping Model (PDGM) payment system. 'While the COVID-19 crisis has underscored the value of care delivery in the home, providers continue to struggle with the impacts of the 4.3% PDGM payment cut that took effect in 2020 and again in 2021," Joanne Cunningham, executive director of the Partnership, said. 'The sequestration moratorium provided by Congress has been incredibly valuable to the home health sector due to the challenges of providing care during the (public health emergency), coupled with the PDGM payment cuts this year and last. The continued relief will help stabilize the delivery of home care to Medicare's most vulnerable seniors," In March of 2020, Congress temporarily halted the 2% Medicare cuts until the end of last year as part of the Coronavirus Aid Relief and Economic Security (CARES) Act. It extended them again until March 31. A few days before the cuts were to take effect again, the Senate voted overwhelmingly to extend them further. Sequestration was part of the Budget Control Act of 2011. The cut is imposed on the 80% allowed charge that healthcare providers received directly from Medicare. 'N75 Medicare Advantage Rates The growth of Medicare Advantage's market penetration represents a major threat to skilled nursing providers, McKnight's reports. [FN76] Some providers find themselves clearing less per resident day through MA plans than they do in state Medicaid programs. Speaking at the 2021 Legislative and Regulatory Conference hosted by the National Association for the Support of Long Term Care, a panel of nursing home and senior living executives called for more oversight in the face of the continuing shift. 'This transfer of risk from the government to Part C Medicare Advantage plans ... threatens our financial stability," Phil Fogg, Jr., CEO and president of Marquis Companies said. The increased preference of beneficiaries for MA coverage has been eating away at skilled nursing's bottom line for years now. In 2020, about 39% of all Medicare beneficiaries enrolled in Medicare Advantage plans, a 9% increase over 2019. While the Congressional Budget Office has estimated that the MA share will hit 51% by 2030, Fogg noted that MA shares have already hit 63% in the Western U.S., where Marquis is based. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -30- National HealthCare Corporation CEO and inside director Stephen F Flatt says the rise of Medicaid Advantage helped undermine the company's growth model, with MA payments 12% to 25% below Medicare Part A levels. In half the states where National HealthCare operates, after netting out ancillary expenses from Medicare Advantage per diem, Medicaid is a better payer from a margin perspective, Flatt added. In the case of MA patients who can't pay their co-pays, providers are left holding even more of the cost. Flatt has seen per- patient day MA payments come in at $180 in states where Medicaid pays $220 per patient day. In addition to low rates, MA payers continue to push for even shorter lengths of stay and create excess paperwork with routine audits. In its eastern Tennessee operations, which have a 52% MA penetration, National HealthCare facilities had 860 post-payment audits in a single year that resulted in an error rate of less than 8%, netting the insurer just $60,000, Flatt said. And while the managed care system has long been touted as delivering benefits for high-quality providers, with payments affected by quality outcomes, Flatt said, 'I've not seen any of that. We've been told blatantly by the MA companies, we don't care what your star rating is, there's really no interest in rehospitalization rates. It's, "Here's the rate. Here's the patient. Take it, or we'll find somebody else.' State Performance Standards Every year, CMS conducts a formal assessment of each State Agencies' (SAs') performance relative to measures included in the State Performance Standards System (SPSS) program. CMS works with the SAs to strengthen oversight so that the care provided in nursing homes and/or by providers and suppliers is of the highest quality, according to the guidance cover letter. [FN77] In April 2018, CMS launched an initiative to evaluate the SPSS process and identify ways to improve how we monitor and ultimately the SA performance. Through this FY 2020 guidance, the agency begins implementing changes to the SPSS. According to CMS, these changes reflect the use of improved, current datasets with consistent and objective oversight. For example, since implementing the new long term care survey process in 2017, CMS now has more robust data to monitor and improve performance. The resulting updates to the SPSS aim to enable CMS and SAs to address areas of concern more effectively, and ultimately improve beneficiary safety and the quality of their care. Below is a summary of the changes for the 2020 fiscal year: ¢ Established State Performance Indicators to help identify the underlying causes for inadequate performance in one or more of the scored performance measures. ¢ Added the ability to include state specific measures, to tailor the program and address state-specific issues. ¢ Improved the process by which the program operates. For example, for some performance issues, SAs will be given 18 to 24 months to make correction. CMS will also be leveraging centralized data sources and hubs to access data and avoid redundant or duplicative data reporting. ¢ Included a new measure for cases where immediate jeopardy is cited that indicates if the survey agency delivered the IJ template at the exit conference, per Appendix Q of the State Operations Manual. ¢ CMS also plans to significantly enhance oversight of how SAs handle complaints and facility-reported incidents (FRIs), including how each state prioritizes reports of abuse or neglect, the timeliness of the investigation of reports, and the quality of these investigations. ¢ Abuse and neglect: CMS has included some updates in the SPSS guidance to strengthen oversight in this area. In addition, to ensure that SAs respond to allegations in a timely and thorough manner, CMS will be revising policies for SAs to investigate complaints and FRIs in Chapter 5 of the State Operations Manual. CMS will update the SPSS guidance once those revisions take place. Three-Day Hospitalization Rule Medicare beneficiaries must have inpatient status at a hospital for three consecutive days to qualify for coverage of subsequent skilled nursing care. Currently, many beneficiaries spend extended periods of time in a hospital under observation stay status, which does not count toward that three-day threshold. In a rule issued on August 16, 2013, CMS clarified hospital inpatient status, which is likely to boost the number of seniors receiving Medicare coverage for skilled nursing services. The final CMS rule clarified when inpatient status should be conferred, triggering Medicare Part A coverage: 'We are specifying that for those hospital stays in which the physician expects the beneficiary to require care that crosses two midnights and admits the beneficiary based upon that expectation, Medicare Part A payment is generally appropriate," the rule states. 'Conversely, we are specifying that hospital stays in which the physician expects the patient to require care less than two midnights, payment under Medicare Part A is generally inappropriate." This rule is expected to increase Medicare reimbursements to hospitals for inpatient stays by $220 million annually, CMS estimated. The final rule appears in the August 19, 2013 Federal Register. "N"®l The increasing use of hospital observation stays has resulted in increased costs for Medicare beneficiaries, as they are classified and billed as outpatient care. Patients pay a copayment of 20% for outpatient care (under Medicare Part B), compared to a fixed deductible of $1,200 for inpatient care (under Part A). Bipartisan Legislation to End Requirement THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -31- Representatives Joe Courtney (CT-02), Glenn "GT' Thompson (PA-15), Susan DelBene (WA-01), and Ron Estes (KS-04) re-introduced the bipartisan Improving Access to Medicare Coverage Act of 2021, legislation to fix an arbitrary Medicare policy that excludes coverage of skilled nursing care for certain patients, resulting in exorbitant and unexpected out-of-pocket costs. Sherrod Brown (D-OH) plans to introduce a companion bill in the Senate in the coming days, according to the press release. [FN79 Under current Medicare policy, a beneficiary must have an 'inpatient' hospital stay of at least three days for Medicare to cover skilled nursing care. Hospitals are increasingly holding patients under 'observation status"-an 'outpatient' designation. Under outdated Medicare rules, patients who receive hospital care on 'observation status" do not qualify for the benefit of skilled nursing care, even if their hospital stay lasts longer than three days and even if their care team prescribes it. The Improving Access to Medicare Coverage Act of 2021 would ensure Medicare covers this doctor-recommended, post-acute care even after the pandemic concludes by counting the time spent under 'observation status" towards the requisite three-day hospital stay for coverage of skilled nursing care. Coronavirus (COVID-19) Waiver In response to the Coronavirus outbreak, CMS is waiving the 3-day hospitalization rule for those people who need to be transferred as a result of the effect of a disaster or emergency. During the COVID-19 public health emergency (PHE), an SNF has the option to apply the 3-Day Prior Hospitalization waiver in order to furnish Medicare Part A services without a qualifying hospital stay, or to obtain an additional 100-day benefit period without a 60-day break in spell of illness (Benefit-Period waiver) if certain conditions are met. In addition, for certain beneficiaries who recently exhausted their SNF benefits, the waiver authorizes renewed SNF coverage without first having to start a new benefit period. [FN80] On June 26, 2020, the agency released updated guidance [FN81] on the SNF benefit period waiver for providers. The guidance explains that the benefit waiver period would not apply to beneficiaries that receive ongoing care in the SNF that is 'unrelated to the emergency." CMS explained in an MLN Matters article: 'For example, if the patient has a continued skilled care need (such as a feeding tube) that is unrelated to the COVID-19 emergency, then the beneficiary cannot renew his or her SNF benefits." It added that in that situation would fall under continued skilled care in the SNF 'rather than the emergency that is preventing the beneficiary from beginning the 60 day "wellness period." When making determinations, a SNF resident's ongoing skilled care is considered to be emergency-related unless it is altogether unaffected by the COVID-19 emergency itself, CMS explained. The temporary waiver for Medicare's three-day hospital stay requirement will continue at least into January 2022 after the COVID-19 public health crisis designation was extended by HHS Secretary Xavier Becerra on October 15, 2021. [FN82] The waiver will continue to apply until at least January 16, 2022. Waiver under Shared Savings Program Under the Medicare Shared Savings Program, CMS waives the requirement for a 3-day inpatient hospital stay prior to post-hospital extended care in a skilled nursing facility. On June 2, 2017, CMS issued an updated guidance document IFN83] to include coverage of the Medicare ACO Track 1+ Model (Model). The Model tests a payment design that incorporates more limited downside risk than is currently present in Tracks 2 or 3 of the Medicare Shared Savings Program. According to a CMS fact sheet, [FN84] the Model is designed to encourage more practices, especially small practices, to advance to performance-based risk, and also allows hospitals, including small rural hospitals, to participate. Beginning in 2018, the new Model will allow clinicians to join an Advanced Alternative Payment Model (APM) to improve care and potentially earn an incentive payment under the Quality Payment Program, which implements the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). Stakeholders, including physician groups, have requested this type of ACO model be added to the portfolio of options, and CMS used feedback from stakeholders to design the Model. On January 7, 2019, CMS issued updated guidance on the Medicare Shared Savings Program SNF 3-Day Rule Waiver. The purpose of the document is to describe the policies for waivers of the SNF 3-Day Rule. Specifically, the document provides background of the rule, waiver eligibility criteria for Accountable Care Organizations, and SNF affiliates, as well as information on how to apply for a waiver. Overpayments CMS likely overpaid about $84 million for posthospital extended care services during a two-year period, according to a report issued by the HHS Office of the Inspector General on February 14, 2019. IFN85] tn a sampling of 99 skilled nursing facility claims, OIG found that CMS improperly paid 65 of the claims, where the '3-day rule" was not met. Based on that sample, the OIG estimated that the federal government improperly paid more than $84 million for SNF services from 2013 to 2015. Under federal law, to be eligible for coverage of posthospital extended care services, a Medicare beneficiary must be an inpatient in a hospital for not less than 3 consecutive calendar days before being discharged from the hospital. OIG attributes the improper payments to the absence of a coordinated notification mechanism among the hospitals, beneficiaries, and skilled nursing facilities to ensure compliance with the 3-day rule. It noted that hospitals did not always provide correct inpatient stay information to SNFs, and SNFs knowingly or unknowingly reported erroneous hospital stay information on their Medicare claims to meet the 3-day rule. SNFs used a combination of inpatient and non-inpatient hospital days to determine whether the 3-day rule was met. In addition, because CMS THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -32- allowed SNF claims to bypass the Common Working File (CWF) qualifying stay edit during our audit period, the SNF claims were not matched with the associated hospital claims that reported inpatient stays of less than 3 days, the report found. OIG recommends that CMS ensure that the CWF qualifying inpatient hospital stay edit for SNF claims is enabled when SNF claims are processed for payment. In addition, CMS should require hospitals to provide beneficiaries a written notification of the number of inpatient days of care provided during the hospital stay and whether the hospital stay qualifies subsequent SNF care for Medicare reimbursement so that beneficiaries are aware of their potential financial responsibility before consenting to receive SNF services. CMS should also require SNFs to obtain a written notification from the hospital and retain it as a condition of payment for their claims, OIG states in the report. Further, CMS should educate both hospitals and SNFs about verifying and documenting the 3-day inpatient hospital stay relative to supporting a Medicare claim for SNF reimbursement. Long-term Care Hospitals Researchers find that Medicare could save about $4.6 billion per year-with no harm to patients-by not allowing hospital discharges to long-term care hospitals (LTCHs). LTCHs began in the 1980s as a regulatory carve-out from normal payment rules for a few dozen specialty hospitals. LTCHs treated patients with tuberculosis and chronic diseases and could earn far more money than traditional hospitals and nursing homes, if they cared for patients who stayed with them for an average of 25 days. Since then, the number of LTCHs has ballooned to over 400 and annual Medicare spending of $5.4 billion in 2014. For years, analysts and policymakers have questioned the value of these hospitals. Several analyses have suggested that Medicare may be overpaying for LTCH services. [FN86] A recent study, covering 1990 to 2014, took a close look at what happened to patients as new LTCHs opened across the country in places that had none. The researchers, at the Massachusetts Institute of Technology, Stanford University, and the University of Chicago, found that when an LTCH opened, the odds increased that very sick patients leaving a normal hospital would end up going next to an LTCH, generating increasing costs for Medicare and for the patients themselves. Without the LTCH, the patients would have received care at skilled nursing facilities (SNFs)}-post-acute care facilities that provide medically similar care but are paid significantly less. The researchers found that 'substitution to LTCHs leaves patients unaffected or worse off on all measurable dimensions." [FN87] LTCHs offer no benefit when it comes to patients' chances of dying or going home within 90 days. Shared Savings Program The Medicare Shared Savings Program was established by the Affordable Care Act (ACA). IFN88] The Shared Savings Program is a key component of the Medicare delivery system reform initiatives included in the ACA and is a new approach to the delivery of health care, according to CMS. [FN8S] Congress created the program to facilitate coordination and cooperation among providers to improve the quality of care for Medicare Fee-For-Service (FFS) beneficiaries and reduce unnecessary costs. Eligible providers, hospitals, and suppliers may participate in the program by creating or participating in an Accountable Care Organization (ACO). ACOs are groups of doctors and other health care providers who voluntarily work together with Medicare to provide high quality service to Medicare beneficiaries. To fulfill the intent of the ACA, the program aims to improve beneficiary outcomes and increase value of care by providing better care for individual, better health for populations, and lowering growth in expenditures. The Shared Savings Program rewards ACOs that lower their growth in health care costs while meeting performance standards on quality of care and putting patients first. Participation in an ACO is purely voluntary. A recent study published in JAMA found that, for ACOs entering in 2012, participation in the Medicare Shared Savings Program was associated with a 9% differential reduction in postacute spending by 2014. The study, using fee-for-service Medicare claims, found that the spending reductions were driven by discharges to facilities, length of facility stays, and acute inpatient care. The reductions were smaller for later entrants and similar for ACOs with and without financial ties to hospitals, the report says. Researchers concluded that participation in the MSSP has been associated with significant reductions in spending without deterioration in quality of care. 'Spending reductions were more consistent with clinicians working within hospitals and SNFs to influence care for ACO patients than with hospital- wide initiatives by ACOs or use of preferred SNFs." IFN90] Under the Medicare Shared Savings Program, CMS waives the requirement for a 3-day inpatient hospital stay prior to post-hospital extended care in a skilled nursing facility. On June 2, 2017, CMS issued an updated guidance document IFN91] t9 include coverage of the ACO Track 1+ Model (Model). The Model tests a payment design that incorporates more limited downside risk than is currently present in Tracks 2 or 3 of the Medicare Shared Savings Program. According to a CMS fact sheet, IFN92] the Model is designed to encourage more practices, especially small practices, to advance to performance-based risk, and also allows hospitals, including small rural hospitals, to participate. Beginning in 2018, the new Model will allow clinicians to join an Advanced Alternative Payment Model (APM) to improve care and potentially earn an incentive payment under the Quality Payment Program, which implements the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). Stakeholders, including physician groups, have requested this type of ACO model be added to the portfolio of options, and CMS used feedback from stakeholders to design the Model. ACOs will have the opportunity to join the Track 1+ Model as part of the 2018, 2019 and 2020 Shared Savings Program application cycles. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -33- A recent study finds that providers taking part in the Medicare Shared Savings Program saved money by transferring care away from skilled nursing facilities and other settings to physician services. [FN83] Conducted by the consulting firm Leavitt Partners and the Duke-Margolis Center for Health Policy, the study examined data from the program, which rewards providers for better coordinating care. Researchers found that money spent on SNFs, as well as what's spent on ambulance services and durable medical equipment, decreased between 2013 and 2016. Money spent on physician services in accountable care organizations, meanwhile, increased. Researchers concluded that ACOs can shift spending in ways that reduce overall costs, and that a need for further understanding of how ACOs have made these changes, which could help the healthcare system rein in costs, and that this tactic may be pursued by other ACOs as a strategy to achieve greater reductions in overall spending without compromising quality. Rural Health Pilot Program The Frontier Community Health Integration Project Demonsiration is a new pilot program begun by CMS to bring specialized nursing services to sparsely populated rural counties. The goals of the project are to improve health outcomes and reduce Medicare expenditures. CMS received applications from critical access hospitals (CAHs) in Montana, Nevada, and North Dakota. The demonstration lasts for three years. It began on August 1, 2016. The goal of the FCHIP Demonstration is to test whether enhanced payments for certain services will enhance access to care for patients, increase the integration and coordination of care among providers within the community, and reduce avoidable hospitalizations, admissions, and transfers, therefore improving the quality of care for Medicare beneficiaries and lowering costs, according to a fact sheet. [FNO4] 9 specific objective is to support the CAH and local delivery system in keeping patients within the community who might otherwise be transferred to distant providers. The Demonstration is projected to be budget neutral. Hospital Readmissions On October 1, 2012, Medicare began fining nearly two-thirds of hospitals that have high numbers of patients who are readmitted within 30 days of discharge for heart attacks, heart failure, and pneumonia. The readmission penalties, estimated to cost the average hospital about $125,000 per year, are part of an Affordable Care Act initiative aimed at improving quality and lowering government costs. Some experts believe that the penalty is still low enough that hospitals will opt to pay it rather than change readmission policies. However, others believe the initiative holds opportunity for nursing homes because it encourages hospitals to partner with quality post- acute providers as a means of reducing readmissions. 'We are also spreading our wings a little and reaching outside the hospital, to the extent that we can, to make sure patients are getting the ongoing treatment they need,' Nancy Foster, the American Hospital Association's vice president for quality and safety, told the Associated Press. Currently, readmission penalties are capped at 1% ofa hospital's Medicare payments for the first year, but will eventually rise to 3% under the ACA. IFN9S] In a study published by JAMA Surgery, Julia R. Berian, M.D., and colleagues at the American College of Surgeons in Chicago examined loss of independence among older patients after surgical procedures, and its association with readmission and death after discharge. 'Loss of independence" is defined as a decline in function or mobility, increased care needs at home, or discharge to a nonhome destination. The study included 5,077 patients aged 65 years and older with known baseline function, mobility, and living situation undergoing inpatient operations from January 2014 to December 2014 at 26 hospitals. In this group, LOI increased with age, occurring in 50% of patients aged 65 to 74 years, 67% of patients 75 to 84 years of age, and 84% of patients 85 years and older. Hospital readmission occurred in 10.2% of patients. After serious postoperative complication, LOI was the second most important factor associated with readmission, increasing the risk by 70%. Death after discharge occurred in 1.4% of patients. When examining death after discharge, LOI was associated with a 6.7-fold increased risk. Additional significant factors included surrogate-signed consent and emergency operations, as well as advancing age. Postoperative complications were not significantly associated with death after discharge. Researchers noted that 'Patient-centered outcomes such as LOI can, and should, be collected in multi-institutional data registries. Loss of independence is a potential target for intervention, and future work should move beyond its use as a factor for prognostication. To best serve the aging population, clinical initiatives must focus on efforts to minimize LOI and better understand its association with discrete outcomes like readmission and death after discharge.' IFN96] Hospital discharge planners may direct patients to higher-quality long-term care facilities in the future, under ideas being considered by MedPAC. Current rules prohibit hospitals from directing patients to specific nursing homes. Almost half of skilled nursing residents had five or more higher-quality facilities available in their area that they were not directed to by their hospital, and just under 15% of residents were discharged to the facility with the highest quality rating within a 15-mile radius, according to members at the September MedPAC meeting. That's compared to the 46.8% of residents that may have missed out on going to a higher-rated quality provider. Members point out that encouraging patients to choose higher-quality facilities could boost care outcomes while lowering costs and readmissions. "N97 Increasing Medicare reimbursements to nursing facilities. Researchers at the Regenstrief Institute and Indiana University Center for Aging Research are testing whether providing nursing homes and the doctors and nurse practitioners who care for their residents with increased Medicare payments can further reduce avoidable hospitalizations. IFN98] The study is part of the second phase of the OPTIMISTIC model of care created as part of a national CMS Demonstration Project in September 2012 at Indiana University. The goal THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -34- is to improve nursing home care and create better outcomes for residents by keeping them out of the hospital and in the hands of on- site RNs and NPs. The first phase saw a significant 33% improvement, which did not include a financial incentive. In phase two, 40 nursing homes are reimbursed for onsite treatment of the six most common conditions of older nursing home residents linked to unnecessary hospitalizations: pneumonia, urinary tract infections, congestive heart failure, dehydration, skin ulcers, and chronic obstructive pulmonary disease. The goal is to provide long-stay residents with more comprehensive quality care where they live and avoid disruptive and expensive hospitalizations. A CMS payment model which incentivizes nursing facilities, as well as their medical staffs, to provide higher levels of care on site. Under the current CMS payment system, nursing facilities do not receive additional reimbursement to provide the care needed by residents who become sicker, unless the nursing home sends them to the hospital and then readmits them to the nursing home under the Medicare post-acute care benefit. There is no mechanism in place for CMS to pay nursing homes for ramping up nursing care and other care services needed when a resident becomes sicker. Therapy Coverage Medicare Part B (Medical Insurance) helps pay for medically necessary outpatient physical and occupational therapy, and speech- language pathology services. The Balanced Budget Act of 1997 imposed an arbitrary limit on the annual amount of Medicare coverage available for beneficiaries receiving outpatient therapy services. Two distinct caps were placed on therapy services. Since 1997, Congress acted 16 times to prevent this policy from taking effect by creating a temporary 'exceptions process" which gives beneficiaries permission to go beyond the cap and maintain Medicare coverage. In February 2018, with passage of the 2018 tax reform bill, the therapy caps were repealed. Medicare law no longer limits how much Medicare pays for medically necessary outpatient therapy services in a calendar year. An analysis commissioned by the American Occupational Therapy Association found that nearly 6 million Medicare beneficiaries used outpatient therapy services in 2015. IFNSS] Rehabilitative care often allows older Americans to maintain their independence and remain at home rather than go to a nursing home or other long-term care facility. In the 2022 Physician Fee Schedule, CMS finalized a 15% payment reduction for physical and occupational therapy assistants, and extended temporary telehealth services under Medicare, added during the COVID-19 pandemic. The agency announced the final rule on November 2, 2021. The final rule confirms the 15% payment cut for outpatient occupational therapy services and outpatient physical therapy services that are provided, in whole or in part, by a physical therapist assistant or occupational therapy assistant. New payment modifiers applied to claims on those services, however, could minimize the blow, providers previously theorized. The new regulations become effective Jan. 1, 2022. The final rule also confirmed that certain services added to the Medicare telehealth services list will remain at least through December 21, 2023, to give federal health officials additional time to evaluate whether to retain them permanently. The rule also removes the geographic restrictions and added the beneficiary's home as a permissible originating site for telehealth services when used for diagnosis, evaluation, or treatment of mental disorders. The rule also requires that for these services there must be an in-person, non- telehealth service with the physician or practitioner within six months prior to the initial telehealth service. The federal government will be required to establish frequency guidelines for subsequent in-person visits. The finalized rule also limits the use of audio-only telecommunications systems to mental health services furnished by practitioners who have the capability to furnish two-way, audio/video communications, but where the beneficiary is not capable of, or does not consent to, the use of two-way, audio/video technology. CMS issued three final rules on November 2, including one focused on home health's pay increase that also touched directly on further nursing home policy. The rule also finalizes revisions to infection control requirements for nursing homes in the Medicare and Medicaid programs, including extending mandatory COVID-19 reporting requirements through December 31, 2024. It also incorporates into regulation several existing Medicare provider enrollment policies; and finalizes certain survey and enforcement requirements for hospice programs to implement provisions of the Consolidated Appropriations Act, 2021. A fact sheet on the final home health rule notes that it codifies expansion of the Home Health Value-Based Purchasing (HHVBP) Model and updates Medicare's home health PPS and home infusion therapy services payment rates for calendar 2022. As part of the new physician fee schedule rule, beginning January 1, 2022, CMS will pay $30 per dose for the administration of the influenza, pneumococcal, and hepatitis B virus vaccines. The agency will also continue a $40 per dose pay rate for administering COVID-19 vaccines until the end of the year when the current public health emergency is declared over. The rates will then be recalculated to align with pay rates for other Part B preventive vaccines, officials said. [FN100] The GAO has determined that Medicare paid about $5.7 billion to provide outpatient therapy services for 48 million beneficiaries in 2011. Rising Medicare spending for outpatient therapy services, including physical therapy, occupational therapy, and speech- language pathology, has long been of concer. Congress established per person spending limits, or 'therapy caps," for nonhospital outpatient therapy, which took effect in 1999. The Middle Class Tax Relief and Job Creation Act of 2012 extended exceptions provided in earlier statutes and required CMS to conduct Manual Medical Reviews (MMRs) of requests for exceptions for outpatient services provided on or after October 1, 2012, over an annual threshold of $3,700. CMS implemented two types of MMRs during the last three months of 2012-reviews of preapproval requests and reviews of claims submitted without preapproval, a report by the THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -35- Government Accountability Office (GAO) has found. [FN101] CMS did not issue complete guidance at the start of the MMR process, causing implementation challenges for the Medicare Administrative Contractors (MACs), and the MACs were unable to fully automate systems for tracking the reviews of preapproval requests in the time allotted, the report states. As a result, some MACs handled the review process differently than others. This created confusion and hampered efforts to collect information about the outcomes of these reviews, the report finds. CMS responses are included in the report, commenting that it managed the new workload without additional funding and within a short time frame, and that the MACs shifted staff from other responsibilities to the MMR process. Outpatient therapy manual reviews were extended for 2013 and, according to HHS, CMS streamlined the MMRs of therapy services by transitioning the responsibility for these reviews from the MACs to the agency's recovery audit contractors (RACs) as of April 1, 2013. The RACs are conducting prepayment review of claims at the $3,700 threshold in California, Florida, Illinois, Louisiana, Michigan, Missouri, New York, North Carolina, Ohio, Pennsylvania, and Texas, and are conducting immediate postpayment reviews in all other states. Maintenance therapy. |n 2013, a settlement agreement was approved in the case of Jimmo v. Sebelius, to ensure that more nursing home residents receive coverage for skilled therapies that help them maintain critical functions and the quality of life. At issue was the inappropriate use of the 'improvement standard" under which a claim would be denied due to the beneficiary's lack of restoration potential, even though the beneficiary did in fact require a covered level of skilled care in order to prevent or slow further deterioration in his or her clinical condition, N12! According to a fact sheet on the Jimmo v. Sebelius settlement agreement issued by the CMS, [FN 103] providers must sufficiently document the need for skilled care in order to obtain Medicare coverage for so-called 'maintenance therapy." CMS never established an 'improvement standard" that said Medicare payments would be withheld for treatment given strictly to maintain, rather than improve, a resident's condition, the agency states in the fact sheet. Therefore, the settlement in Jimmo did not eliminate the improvement standard or otherwise expand Medicare coverage. In determining whether a particular maintenance treatment is eligible for Medicare coverage, providers must demonstrate that the needs of the resident can only be met through skilled rather than nonskilled care, the document says. 'Any Medicare coverage or appeals decisions concerning skilled care coverage must reflect this basic principle," according to the fact sheet. 'In this context, it is also essential and has always been required that claims for skilled care coverage include sufficient documentation to substantiate clearly that skilled care is required, that it is in fact provided, and that the services themselves are reasonable and necessary, thereby facilitating accurate and appropriate claims adjudication." [FN104] Under terms of the Jimmo settlement, Medicare beneficiaries receiving skilled care for chronic conditions no longer have to show improvement in order to have the care covered. Many providers, however, are still refusing to provide needed treatment, claiming that Medicare will not cover it. For about 30 years, home health agencies and nursing homes that contract with Medicare have routinely terminated the Medicare coverage of a beneficiary who has stopped improving, even though nothing in the Medicare statute or its regulations says improvement is required for continued skilled care. Under the settlement, the federal government agreed to update Medicare rules to require that Medicare cover skilled care as long as the beneficiary needs skilled care, even if it would simply maintain the beneficiary's current condition or slow further deterioration. CMS agreed to educate providers and its own contractors about inappropriate use of the 'improvement standard" under the settlement agreement. Many therapists and facilities, however, are still hesitant about billing for services that help chronically ill patients receive maintenance therapies. The Center for Medicare Advocacy and Vermont Legal Aid allege that CMS has failed to comply with the settlement terms; that CMS's education campaign was insufficient. The agency hosted just one provider call on Jimmo, a lawyer for the Center for Medicare Advocacy says; although more than 3,000 people participated, only 18 were able to ask questions. [FN105] On February 1, 2017, a federal District Court [FN106] approved a corrective statement to be used by CMS to disavow the use of an 'improvement standard" for Medicare coverage of physical and occupational therapy and other skilled care. Advocates for seniors say coverage is often mistakenly denied simply because the beneficiary reaches 'a plateau" and is no longer making progress. The beneficiaries' lawyers argued that the effort had failed and additional steps were necessary. U.S. District Court Judge Christina Reiss in Vermont agreed, and approved most of the suggestions for further actions proposed by the government last month and added two more proposed by the advocates. Under the order, CMS must provide a new website devoted to the 2013 settlement that will include information on how claims should be handled, as well as a simple explanation that improvement is not a criterion for coverage. The website, unveiled in August 2017, includes wording of Medicare manual revisions to restate a 'maintenance coverage standard" for both skilled nursing and therapy services. The statement the judge accepted was largely written by the plaintiffs' lawyers and says, in part, that 'The Medicare program will pay for skilled nursing care and skilled rehabilitation services when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met)." The judge also told the government to hold a second training session on the policy for claims processors, appeals judges and others and even told them how to describe it to avoid any misunderstanding. But she rejected the plaintiffs' arguments that they should help develop the training and other messages so that the government would not repeat past mistakes. These measures must be completed by September 4, 2017, FN107] THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -36- Utilization report: McKnight's [FN108] reports concerns over skilled nursing facility residents receiving the highest levels of therapy in huge amounts have driven the CMS to turn the issue over to recovery audit contractors, CMS officials said in a new report. The SNF utilization and payment dataset, [FN109] released on March 9, 2016, shows Ultra-High Rehab billing accounted for the highest Medicare payments to SNFs, total therapy days, beneficiaries served, and average Medicare payment per beneficiary in 2013. The three Ultra High resource utilization groups amounted to over $16.6 billion in Medicare payments, and close to 36 million total therapy days provided during 2013. The Very-High RUG categories followed with $5.7 billion in payments, and 16 million therapy days. Many beneficiaries in the Ultra High and Very High RUGs barely made it over thresholds to get into those categories. More than 20% of facilities provided Ultra High and Very High therapy within 10 minutes of the minimum threshold, according to the report. Payments for these RUGs often exceed payments for other categories by 25%, CMS said. 'CMS strives to ensure that patient need, rather than payment system incentives, are driving the provision of therapy services," said Shantanu Agrawal, M.D., deputy administrator for program integrity and director of the Center for Program Integrity at CMS, in a news release. [FN110] 'These concerns have prompted us to refer this issue to the Recovery Audit Contractors (RAC) for further investigation, and our hope is that data transparency will facilitate real changes." The SNF utilization and payment report, culled from Medicare claims data from 15,055 SNFs and more than 2.5 million stays, also compared SNF costs and utilizations by geographic area. The average standardized payment amount per SNF stay was $10,919 in 2013, with an average length of stay of 28 days. Indiana, Texas, California, and several southeastern states had the highest average standardized Medicare payment, while Alaska, Maine, lowa, Minnesota, and North Dakota had the lowest. Bundled Payments for Care Initiative On January 31, 2013, CMS identified over 500 health care organizations, including many skilled nursing facilities, selected to participate in the Bundled Payments for Care Improvement (BPCI) initiative. Under the BPCI initiative, over 500 organizations would enter into payment arrangements that provide for financial and performance accountability for episodes of care. CMS hopes the new payment models will lead to higher quality, more coordinated care at a lower cost to Medicare. Traditionally, Medicare makes separate payments to providers for each of the individual services they furnish to beneficiaries for a single illness or course of treatment, which can result in fragmented care with minimal coordination across providers and health care settings. Payment rewards the quantity of services offered by providers rather than the quality of care furnished. CMS says that research has shown that bundled payments can align incentives for providers-hospitals, post-acute care providers, physicians, and other practitioners-allowing them to work closely together across all specialties and settings. The BPC initiative is comprised of four broadly defined models of care, which link payments for multiple services beneficiaries receive during an episode of care. Under the 'Retrospective Post-Acute Care Only" model, the episode of care will be triggered by an acute care hospital stay and will begin at initiation of post-acute care services with a participating skilled nursing facility, inpatient rehabilitation facility, long-term care hospital, or home health agency. Over the course of the three-year initiative, CMS works with participating organizations to assess whether the models being tested result in improved patient care and lower costs to Medicare. [FN111] Participation Requirements On September 28, 2016, CMS released the final rule revising the requirements that long-term care facilities must meet in order to participate in the Medicare and Medicaid programs. [FN112] The changes take effect on November 28, 2016, to be implemented in phases by November 28, 2016, 2017, and 2019. Key provisions include: * binding pre-dispute arbitration agreements are prohibited. ¢ 'nourishing, palatable" dietary options that meet residents' nutritional needs and preferences are required. ¢ infection prevention and control programs are mandated. * comprehensive person-centered care plan for each resident within 48 hours of admission is required, with help from a nurse aide and food and nutrition services staff member in development of the care plan. * freedom from abuse, neglect, and exploitation; facilities are required to investigate all allegations of such conduct. ¢ behavioral health care and services to be provided in accordance with plan of care. ¢ compliance and ethics program required in each facility. * training requirements that facilities are required to develop, implement, and maintain. CMS estimates that the total projected cost of the final rule will be about $831 million in the first year and $736 million per year for subsequent years, averaging $62,900 per facility in the first year, and $55,000 in subsequent years. Implementation of the provision that bans binding pre-dispute arbitration has been blocked by U.S. District Court judge Michael Mills. The American Health Care Association argued that the rule exceeds the CMS's statutory authority and is wholly unnecessary to protect THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -37- the health and safety of residents. AHCA has succeeded in achieving at least a temporary halt to the government's ban on nursing homes' pre-dispute arbitration clauses. Judge Mills said in a 40-page decision released on November 7, 2016, that: 'As sympathetic as this court may be to the public policy considerations which motivated the rule, it is unwilling to play a role in countenancing the incremental "creep' of federal agency authority beyond that envisioned by the U.S. Constitution." Throughout the opinion, Mills reiterated that while there may truly be a problem with executing arbitration contracts during the nursing home admissions, only Congress, not the CMS, can do something about it. He wrote: 'Congress' failure to enact positive legislation should not serve as an excuse for the executive branch to assume powers which are properly reserved for the legislative branch." [FN113] Accountable Care Organizations Accountable care organizations (ACOs) have been set up to provide incentives to healthcare organizations, including long-term care providers, to provide quality care for less money. They are designed around healthcare providers banding together to provide care to 5,000 or more beneficiaries. The program allows an ACO to partake in any shared savings resulting from high-quality efficient treatment. Organizations are required to follow a series of rules to qualify. Twenty-seven ACOs served an estimated 375,000 beneficiaries in 18 states in the program which began on April 1, 2012, CMS announced on April 10, 2012. Altogether, the group has over 10,000 physicians, 10 hospitals, and 13 physician-driven organizations, with 150 applications for groups slated to start July 1. ACOs are designed to provide incentives to healthcare providers by allowing them to share in savings resulting from better, cheaper care. Part of the Affordable Care Act, the ACO and bundled payment model are widely believed to be the future of federal reimbursement. Physicians largely lead the first group of Medicare Shared Savings ACOs, but long-term care facilities will be an integral part of their future success, a CMS official said. [FN114] On October 20, 2013, CMS released a final rule that boosts incentives for providers to become part of an ACO and eases a number of requirements. Modifications in the final rule include: options for providers to reduce the risk of losses or receive higher sharing rates; provision of a preliminary prospective (not retrospective) assignment method; reduction of the number of quality measures required to be reported on, from 65 measures in 5 domains to 33 measures in 4 domains; increased amount of bonuses providers may earn; electronic health record (EHR) requirement eliminated, although retained as a highly weighted quality measure; and a 'file and use" system of compliance of certified marketing materials. Additionally, it now includes incentives to groups of providers that band together to coordinate care for Medicare beneficiaries under the Medicare Shared Savings Program. Under that program, the newly created Advanced Payment Model, selected participants would receive advance payments that would be recouped from the shared savings they earn. The model is expected to produce savings for healthcare providers, particularly in reduced rehospitalizations, which is a key goal for many nursing homes. The Obama administration projected ACOs would save the government up to $940 million between 2012 and 2015, IFN115] In July 2014, CMS proposed the addition of two quality measures that are of particular interest to nursing facilities: the rate of patients who are admitted to a skilled nursing facility within 30 days of leaving the hospital; and all-cause unplanned readmissions for patients with diabetes, heart failure, or multiple chronic conditions. The 30-day window would start from the time of discharge from a hospital, critical access hospital, or psychiatric hospital to an SNF. ACOs must meet quality performance targets in order to earn bonuses in the program which was launched under a provision of the Patient Protection and Affordable Care Act. Nearly 350 organizations are included in the program, which is scheduled to expand in January 2015. ACOs in the Shared Savings Program 'often include post-acute care (PAC) settings and the addition of this measure would enhance the participation and alignment with these facilities," the proposed rule states. The proposed rule was published on July 11 in the Federal Register, at 79 Fed. Reg. 40318 (7/11/2014), IFN"18] In June 2014, MedPAC submitted a number of recommendations to CMS regarding the ACT program. The three-midnight hospitalization rule does not apply to providers in the Pioneer ACO program, and the exemption should be extended to those in the Medicare Shared Savings Program as well, MedPAC stated in a letter on June 16, 2014, to CMS Administrator Marilyn Tavenner. In their letter, MedPAC commissioners said ACOs should be able to place patients in skilled nursing facilities more quickly and communicate which SNFs are preferred providers. ACO providers also should be able to tell patients which post-acute care providers they deem best, the letter stated. Currently, providers in ACOs are not sure if they are allowed to make these recommendations and are 'presenting all options equally," according to the commissioners. This is likely due to fear of being perceived as violating anti-kickback laws. 'Where there is wide variation in terms of cost and quality, beneficiaries should retain their choice of whichever PAC provider they would like, but the ACOs providers should have the ability to clearly state which providers they believe are best and why," they wrote. MedPAC notes that nearly all ACOs in Medicare's Shared Savings Program have chosen to be at one-sided (bonus only) rather than two-sided risk. However, incentives for improvement are much stronger in a two-sided model. While moving to two-sided risk models for ACOs would be important both to strengthen incentives to control costs, 'benchmarks need to be made more equitable and ACOs need the tools to strengthen beneficiary engagement," the letter states. A source of frustration for many of the ACOs, the commissioners note, is their limited ability to engage with their beneficiaries. Although ACOs are supposed to be patient-centered, their avenues for communication with their patients are limited, the letter says. In addition, because the benefits and cost sharing in ACOs are the same as in FFS, the value that ACOs bring-such as care coordination or increased responsiveness of ACO providers-is not evident to the beneficiary. MedPAC recommends that CMS clarify what forms of THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -38- communication are allowed and continue to improve the process to make any necessary approvals simple to obtain and responsive. [FN117] New research from Avalere finds that the actual net savings from Medicare accountable care organizations under the Medicare Shared Savings Program has fallen far short of projections, by over $2 billion. The MSSP was enacted as part of the Affordable Care Act in 2010. At the time, the Congressional Budget Office estimated that the MSSP would produce $1.7 billion in savings to the federal government from 2013 to 2016. However, the MSSP increased federal spending by $384 million over that time period. Researchers found, however, evidence that individual ACO performance may improve as they gain years of experience with the program: ACOs in their fourth performance year produced net savings to the federal budget totaling $152 million from 2013 to 2016. These results suggest that the CBO's initial projections may not have taken into account the time it takes for ACOs to gain experience with the program and to start to produce consistent savings. [FN118] Electronic Health Records The Government Accountability Office in a report [FN118] tg Congress analyzed the use of electronic health records (EHRs) in post-acute care settings. GAO described five key factors affecting the use of EHRs and the electronic exchange of health information in those settings: * Cost: Stakeholders stated that facilities often have limited financial resources to cover the initial cost of an EHR and noted that additional costs may be incurred for exchanging information and for EHR maintenance. * Implementation of standards: Stakeholders expressed concerns with the variability in implementation of health data standards and the difficulty of finding health information relevant to post-acute care providers when this information is exchanged. ¢ Workflow disruptions: Stakeholders stated that implementation of EHRs requires post-acute facilities to change their daily work activities or processes, which can be disruptive. ¢ Technological challenges: Stakeholders stated that they face technological challenges, such as having EHRs that are not capable of electronically exchanging health information. * Staffing: Stakeholders noted that a lack of staff with expertise to manage EHRs and high staff turnover result in a constant need to train staff to use the technology. GAO found that HHS had not measured the effectiveness of each of its efforts to promote the use of EHRs and that it lacks a comprehensive plan to meet its goals. Accordingly, GAO recommends that HHS (1) evaluate the effectiveness of its key efforts to increase the use of EHRs and electronic information exchange, and (2) comprehensively plan for how to achieve the department's goal regarding the use of EHRs and electronic information exchange in post-acute care settings. HHS concurred with GAO's recommendations. Poll: Medicare Should Cover Long-term Care More and more, older Americans think that Medicare should cover the costs of long-term care, a poll conducted by the Associated Press-NORC Center for Public Affairs Research has found. Most mistakenly believe that they can rely on Medicare already for such care, the poll shows, and in the current political climate, it's unlikely Congress or the Trump administration would support the added cost to the Medicare program. Key findings of the poll include: * Over half of older Americans (56%) think the federal government should devote a great deal or a lot of effort to helping people with the costs of long-term care; another 30% think it should make a moderate effort to do so. ¢ 56% think Medicare should have a major role in paying for ongoing living assistance, up from 39% in 2013. ¢ growing support for government involvement in providing long-term care was indicated by the finding that 70% of older Americans say they favor a government-administered long-term care insurance program (up from 53% a year ago). * Most also favor tax policies to encourage long-term care planning, including tax breaks to encourage saving for long-term care and the ability to use nontaxable accounts like 401(k)s and IRAs to pay for long-term care insurance premiums. * Most also favor tax breaks for people who provide care to family members and employers who give paid family leave to workers. ¢ Just 25% favor requiring individuals to purchase long-term care insurance. ¢ 57% plan to rely on Medicare quite a bit or completely for their living assistance; only 25% plan to rely on Medicaid (which is more likely to cover expenses). ¢ Two-thirds of older Americans say they've done little or no planning for their own long-term care needs, and just 15% say they're very or extremely confident that they'll have the financial resources they'll need, down from 27% who said so in 2013. * A third have set aside money to pay for nursing care or home health aides, less than half have talked to their families about their preferences for receiving long-term care and most have not created a living will or advance treatment directive. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -39- ¢ Two-thirds say they are confident in being able to rely on their own families for support as they age. Those with lower incomes, however, are less likely to expect help from family members (59%) versus 74% of those with higher incomes. The survey was conducted in March of 2017, involving interviews with 1,341 people aged 40 and older nationwide who are members of NORC's probability-based AmeriSpeak panel which is designed to be representative of the population in the U.S. [FN120] Recent Legislative Activity Federal ¢ 2021 CONG US HR 4890 and 2021 CONG US §S 2576, introduced July 30, 2021, to establish a program to allow qualified group practices to furnish certain items and services at qualified skilled nursing facilities to individuals entitled to benefits under part A and enrolled under part B of the Medicare program to reduce unnecessary hospitalizations. ¢ 2021 CONG US HR 5312 and 2021 CONG US §S 2777, introduced September 21, 2021, to authorize the Secretary of Health and Human Services to make adjustments to payment rates for skilled nursing facilities under the Medicare program to account for certain unique circumstances. «2021 CONG US §S 2048, introduced June 15, 2021, to count a period of receipt of outpatient observation services in a hospital toward satisfying the 3-day inpatient hospital requirement for coverage of skilled nursing facility services under Medicare. ¢ 2021 CONG US §S 2694, introduced August 20, 2021, the 'Nursing Home Improvement and Accountability Act of 2021," to improve care furnished and to support the workforce in skilled nursing facilities under the Medicare program and in nursing facilities under the Medicaid program, would require nursing homes to meet minimum staffing standards but receive additional Medicaid funds to support workforce and care improvements. Vi. COST-SAVING MEASURES TO REDUCE FUNDING NEEDS Person-centered care (PCC) programs in healthcare organizations are more cost effective, but notably decrease how long a patient spends in a skilled nursing facility, a recent report has found. Under PCC, the person being treated is moved from the periphery of the decision-making process and placed at the center. The report, released by the SCAN Foundation on June 20, 2016, [FN121] examines PCC programs in calculating how, and who, saves money. The report found that PCC programs reduced skilled nursing stays by 20%, as well as decreased hospital admissions, readmissions and emergency department visit rates. SCAN used results from healthcare organizations that implemented the LifeCourse and Tandem365 programs in calculating the possible return on investment for organizations if they implement similar programs. SCAN's ROI calculator found that utilization costs drop from roughly $42,000 to about $25,000 per person per year - for an ROI of 307% - given the following assumptions: * The cost of the PCC program is $300 per member per month. * Hospital admissions and readmissions fall by one-third as a result of PCC. ¢ Visits to the emergency room and days in a skilled nursing facility fall by 20%. ¢ Both the average length of a hospital stay and the cost per day are reduced by 10%. * The number of outpatient visits remains constant. The program costs $300 per member per month While the report's authors acknowledge that such assumptions are just predictions, and may be 'overly optimistic," 'the potential for obtaining a positive ROI from a well-implemented PCC program will of course vary greatly from one organization to another," the authors wrote. 'Yet in general, for organizations that serve a substantial number of older adults with multiple chronic conditions and functional limitations, and that bear at least some risk for the medical utilization of these people, the business case is strong and the current Medicare payment methods are making it stronger." Vil. LONG-TERM CARE INSURANCE Private Long-Term Care Insurance Costly long-term care expenditures can be avoided through the purchase of long-term care insurance, which has been a popular option for many. The industry, however, has faced financial challenges in recent years and many insurers have decided to discontinue offering individual policies. With the rising and often overwhelming costs of long-term care, some form of long-term care insurance has become an increasingly attractive option for many Americans. A recent survey, however, reveals that many individuals mistakenly believe that Medicare or their health insurance will cover long-term care expenses. The Life and Health Insurance Foundation for Education, also known as the LIFE Foundation, released a survey in November 2009 to coincide with Long-Term Care Insurance Awareness Month. The survey revealed that nine out of 10 Americans do not have a practical plan to pay for the expenses associated with long-term care. According to the survey results, 23% of respondents said they would rely on family or friends for assistance, while 20% would rely on their health THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -40- insurance. Sixteen percent claimed that they will use Medicare to cover their long-term care expenses, 13% contend that their savings will cover long-term care costs and 11% responded that Social Security benefits will be their primary source of funding. Only 10% of Americans would rely on long-term care insurance, while 7% plan to depend on Medicaid. Genworth Financial's annual 'Cost of Care" report on the cost of nursing homes, adult day cares, home health aides, and similar services found that long-term care coverage is becoming more and more unaffordable for middle-class families. IFN122] The report found that the average cost for a private room in a nursing home is over $100,375. However, many have found that assisted living facilities tend to be more affordable with a yearly average of $48,000. [FN123] The Department of Health and Human Services reports that at least 70% of individuals over the age of 65 will need long-term care at some point during the remaining years of life. The likelihood of women needing long-term care is even higher due to the fact that women have a longer life expectancy than men. In 2017, long-term care insurance companies paid out $9.2 billion in claim benefits to some 295,000 individuals, according to the American Association for Long-Term Care Insurance. In 2016, total claims amounted to $8.65 billion paid to 280,000 individuals. The Association conducts an annual study of claims paid to policyholders who have a traditional, health-based long-term care insurance policy, [FN1241 A study conducted by researchers at the Center for Retirement Research at Boston College examines the options that single individuals over 65 face, and the value of purchasing long-term care insurance. The main funding sources for long-term care are Medicare, private LTC insurance, and Medicaid. Medicare covers short-term stays for noncustodial care for up to 100 days. Private long-term care insurance is purchased by few single individuals in the U.S., only about 13%. For those that are uninsured, Medicaid bears much of the cost of skilled nursing care once an individual's assets have been exhausted and the means test is met. The researchers found that while the risk of needing long-term care is greater than research previously indicated, average stays are shorter. Using monthly rather than annual figures, they pointed out that 50% of men and 39% of women don't stay in a skilled nursing facility longer than three months: the average nursing home stay for a man is less than a year; for women, 17 months. With the availability of Medicare and Medicaid, and lower chances that one will endure an expensive, long illness that will bankrupt them, the investigators concluded that 'rational, far-sighted, well-informed" single people would be smart to avoid paying long-term care insurance premiums. [FN125] Prices of long-term care insurance can vary significantly for individuals aged 60, according to the 2019 Long-Term Care Insurance Price Index. FN"78l wwe found a spread of over 100% between the lowest priced coverage from a top-rated insurer to another,' explains Jesse Slome, director of the American Association for Long-Term Care Insurance. According to the Association's 2019 Price Index, the average annual premium for a 60-year-old couple was $3,400. 'That may sound like a lot but each spouse would have nearly $400,000 available for their care at age 90,' Slome notes. "These policies included an option that increases the benefits by three percent annually. If the consumer selects a lower annual growth option, say 2 percent yearly, the cost of insurance would be lower.' A 60-year old male purchasing new long-term care insurance coverage can find coverage for under $2,000 a year providing nearly $400,000 in benefits at age 90 according to a cost analysis just conducted by the American Association for Long-Term Care Insurance. Married couples often benefit from a significant spousal discount, Slome explained. According to AALTCI studies, married couples or older adults living together purchase the majority of long-term care insurance policies the Association director notes. It is cheaper for individuals to purchase a long-term care policy when they are younger. The cost to a 50-year-old is $900 a year for premiums, but that cost jumps to $6,000 a year by age 79. Currently only 10% of long-term care costs are paid for by long-term care insurance. Individuals are encouraged to select policies that have annual increases in benefits because the cost of care is inevitably going to get higher. [FN127] Note: For a discussion of Medicaid funding vs. long-term care insurance, see section II. MEDICAID FUNDING, above. Tax Credits and Deductions for Long-Term Care Insurance Although more Americans are purchasing long-term care insurance, the cost of such policies is prohibitive for many individuals. In fact, the high cost of long-term care insurance is the reason most people give for not purchasing it. [FN128] 1h order to encourage individuals to acquire long-term care insurance and to offset a portion of the cost, federal and state legislators have promoted plans to provide tax credits to compensate for long-term care insurance premium payments. The U.S. Department of Health and Human Services Medicaid Commission issued a 55-page report in late 2006 which recommended tax incentives at both the state and federal level for the purchase of long-term care insurance. According to the report, such measures could save Medicaid $10 billion in costs over five years. IFN129] According to data gathered by the American Association for Long-Term Care Insurance, all but 18 states offered some sort of tax incentive as of the beginning of 2014. [FN130] The federal government offers a tax deduction for qualified long-term care policies to the extent that the premiums (along with other unreimbursed medical expenses) exceed 10% of an individual's adjusted gross income, and the individual itemizes income tax deductions. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -41- Recent Legislative Activity Federal * 2021 CONG US § 377, introduced February 23, 2021, to promote and protect from discrimination living organ donors; prohibiting discrimination against donors by long-term care and certain other insurers. ¢ 2021 Cong US S 2415, introduced July 21, 2021, the 'Long-Term Care Affordability Act," would amend the Internal Revenue Code of 1986 to expand the use of retirement plan funds to obtain long-term care insurance, and for other purposes. Alabama ¢ 2021 AL H.B. 32 (NS), adopted April 20, 2021, adoption of insurance, reinsurance, regulation and credit against reserves, similar to Credit for Reinsurance Model Law by the National Association of Insurance Commissioners. ¢ 2021 AL S.B. 24 (NS) and 2021 AL H.B. 32 (NS), introduced February 2, 2021, would make Alabama's law regulating reinsurers and the credit an insurer may apply against its otherwise required reserves substantially similar to the current version of the Credit for Reinsurance Model Law developed by the National Association of Insurance Commissioners. Arkansas ¢ 2021 AR H.B. 1240 (NS), adopted April 12, 2021, to modify the Arkansas credit for reinsurance law. ¢ 2021 AR H.B. 1242 (NS), adopted March 15, 2021, to require certain long? term care insurers to file market conduct annual statements. California 2021 CA S.B. 41 (NS), adopted October 6, 2021, would establish the Genetic Information Privacy Act, requiring a direct-to-consumer genetic testing company, as defined, to provide a consumer with certain information regarding the company's policies and procedures for the collection, use, maintenance, and disclosure, as applicable, of genetic data, and to obtain a consumer's express consent for collection, use, or disclosure of the consumer's genetic data, as specified; prohibits disclosure of a consumer's genetic data to any entity that is responsible for administering or making decisions regarding long-term care and other insurance products. Colorado 2021 CO S.B. 169 (NS), adopted July 6, 2021, to protect consumers from unfair discrimination in insurance practices, to prohibit the use of external consumer data and information sources, as well as algorithms and predictive models using external consumer data and information sources, which use has the result of unfairly discriminating based on race, color, national or ethnic origin, religion, sex, sexual orientation, disability, gender identity, or gender expression. Connecticut ¢ 2021 CT H.B. 5267 (NS), introduced January 22, 2021, establishing a personal income tax credit for long-term care insurance premium payments. ¢ 2021 CT H.B. 5471 (NS), introduced January 25, 2021, long term care insurance: to protect consumers planning for long-term care. ¢ 2021 CT H.B. 5548 (NS), introduced January 26, 2021, to (1) prohibit certain insurers from discriminating against an individual solely because the individual is a living organ donor; and (2) provide that prohibited discrimination against a living organ donor constitutes a violation of the Connecticut Unfair Insurance Practices Act. ¢ 2021 CT H.B. 6387 (NS), adopted July 12, 2201, to (1) prohibit certain insurers from engaging in certain discrimination against living organ donors; and (2) provide that prohibited discrimination against living organ donors constitutes a violation of the Connecticut Unfair Insurance Practices Act. * 2021 CT H.B. 6391 (NS), adopted July 12, 2021, requirements relating to (A) the valuation of assets or reserve credits, (B) the circumstances under which credit will be reduced or eliminated, and (C) the amounts and forms of security supporting reinsurance. ¢ 2021 CT H.B. 6392 (NS), introduced February 4, 2021, to adopt the Insurance Department's recommendations regarding credit for reinsurance. ¢ 2021 CT H.B. 6674 (NS), amended/substituted May 10, 2021, To establish a credit against the personal income tax for a portion of premium payments made for certain individual long-term care insurance policies. ¢ 2021 CT S.B. 12 (NS), introduced January 8, 2021, to establish a personal income tax deduction for premiums paid for long-term care insurance. ¢ 2021 CT S.B. 21 (NS), introduced January 8, 2021, to: (1) Cap certain long-term care insurance premium rate increases at the rate of inflation for long-term care insurance policies for three years; (2) require an insurer that purchases a group long-term care insurance policy from another insurer to honor the contractual obligations of the transferring insurer to the consumer as determined on the date that the transferring insurer delivered or issued such policy to the consumer; and (3) establish the Consumer Advocacy Group Regarding Long-Term Care Insurance to advise the General Assembly regarding long-term care insurance. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -42- ¢ 2021 CT S.B. 51 (NS), introduced January 8, 2021, to impose an annual cap on long-term care insurance premium rate increases. ¢ 2021 CT S.B. 179 (NS), introduced January 22, 2021, establishing a tax credit for premium payments for certain long-term care insurance policies. ¢ 2021 CT S.B. 209 (NS), introduced January 22, 2021, requiring a review of the premium rate adjustment process for long-term care insurance policies. * 2021 CT S.B. 286 (NS), introduced January 25, 2021, to provide an incentive for the purchase of long-term care insurance that provides benefits for health care provided in an insured's home. ¢ 2021 CT S.B. 505 (NS), introduced January 27, 2021, imposing an annual cap on long-term care insurance premium rate increases. ¢ 2021 CT S.B. 511 (NS), introduced January 27, 2021, to establish a task force to study the long-term care insurance industry. ¢ 2021 CT S.B. 841 (NS), adopted July 7, 2021, to prohibit insurers, health care centers and fraternal benefit societies from requiring, or using the results of, genetic testing in connection with annuities and certain insurance policies; and provide that prohibited requirements for, and uses of, genetic testing violate the Connecticut Unfair Insurance Practices Act. * 2021 CT S.B. 897 (NS), amended/substituted March 2, 2021, to allow a state income tax deduction for qualified long-term care insurance premiums to the extent such deduction is allowed under federal law. ¢ 2021 CT S.B. 1046 (NS), adopted July 7, 2021, to: (1) require the Insurance Commissioner to develop and disseminate a minimum set of affordable benefit options for long-term care policies; (2) provide that an insurance company, fraternal benefit society, hospital service corporation, medical service corporation or health care center shall not deliver, issue, renew, continue or amend a long-term care policy in this state unless such company, society, corporation or center is authorized or licensed to sell long-term care insurance and at least one other line of insurance in this state; (3) require the Insurance Commissioner to refer an insurance company, fraternal benefit society, hospital service corporation, medical service corporation or health care center that files a rate filing for a long-term care policy that contains a deliberate or reckless misstatement or omission of fact to the Attorney General for investigation; (4) provide that an insurance company, fraternal benefit society, hospital service corporation, medical service corporation or health care center that files a rate filing for a long-term care policy that seeks an increase of twenty per cent or more and spreads such increase over a period of not less than three years shall not file a rate filing for an increase in premium rates for the long-term care policy during said period; (5) require an insurance company, fraternal benefit society, hospital service corporation, medical service corporation or health care center that files a rate filing for a long-term care policy to disclose to insureds the minimum set of affordable benefit options developed by the Insurance Commissioner; and (6) authorize the Attorney General to investigate a rate filing referred to the Attorney General by the Insurance Commissioner and take action to protect and secure compensation for the insured under the long-term care policy that is the subject of such rate filing. Delaware ¢ 2021 DE H.B. 111 (NS), adopted June 15, 2021, relating to discrimination by life, disability, or long-term care insurers based on pre- exposure prophylaxis medication to prevent HIV infection. ¢ 2021 DE H.B. 229 (NS), adopted July 30, 2021, adopts the Interstate Insurance Product Regulation Compact, to promote and protect the interest of consumers of individual and group annuity, life insurance, disability income, and long-term care insurance products; develop uniform standards for insurance products covered under the Compact; establish a central clearinghouse to receive and provide prompt review of insurance products covered under the Compact; give appropriate regulatory approval to those product filings and advertisements satisfying the applicable uniform standard; improve coordination of regulatory resources and expertise between state insurance departments regarding the setting of uniform standards and review of insurance products covered under the Compact; and create the Interstate Insurance Product Regulation Commission. District of Columbia 2021 DC L.B. 202 (NS), introduced April 1, 2021, to prohibit insurance companies from factoring the use of pre-exposure prophylaxis in decisions related to the issuance of disability, life, or long-term care insurance policies. Georgia 2021 GA H.B. 115 (NS), filed January 26, 2021, would prohibit long-term care and health insurers from using information derived from genetic testing for any nontherapeutic purpose in the absence of a diagnosis of a condition related to such information. Hawaii 2021 HI H.B. 489 (NS), introduced January 25, 2021, and 2021 HI S.B. 836 (NS), introduced January 22, 2021, requires the thirty-day lapse or termination notices for long-term care policies to be sent by certified mail, priority mail, or commercial delivery service, or other method of delivery requiring proof of delivery. Indiana * 2021 IN H.B. 1405 (NS), amended/substituted February 9, 2021, requires the office of the secretary of family and social services to apply before December 31, 2021, for a Medicaid state plan amendment to effectuate the federal long term care insurance partnership THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -43- program. Provides that the state's current long term care insurance program applies to policies entered into, issued, or renewed before July 1, 2022. ¢ 2021 IN S.R. 57 (NS), adopted April 20, 2021, urging the legislative council to assign the topic of long-term care insurance to the appropriate study committee. * 2021 IN S.B. 254 (NS), introduced January 11, 2021, provides that, under the long term care insurance law, for an individual to qualify for an asset disregard equal to one dollar of assets retained for each one dollar of long term insurance benefits paid out, the increase required in the maximum benefits provided by the individual's long term care policy may not be greater than 3% per year, compounded annually; eliminates a provision under which a request for health records is valid for only 60 days after the date of the request. * 2021 IN S.B. 261 (NS), amended/substituted February 16, 2021, the long term care insurance partnership program. Requires the office of the secretary of family and social services to apply before December 31, 2021, for a Medicaid state plan amendment to effectuate the federal long term care insurance partnership program (program). Requires the state plan amendment for the program to provide that the asset disregard for all policies entered into under the state's current long term insurance program will remain the same. Provides administrative, reporting, and continuing education requirements for the program. Requires a provider to provide health records upon request not more than 30 days after receiving the written request, unless the provider: (1) requests an extension of not more than 30 days in the initial 30 days; and (2) provides written notice to the patient of the reasons for the extension and the date by which the provider will provide the health records. Authorizes the state department of health to impose a civil penalty of not more than $5,000 per violation on a provider that violates the requirement to provide health records upon request. ¢ 2021 IN S.B. 295 (NS), introduced January 11, 2021, prohibits an insurer that issues a policy of life insurance, disability insurance, or long term care insurance from taking certain actions with respect to the coverage of individuals who are living organ donors; specifies that certain actions constitute an unfair and deceptive act and practice in the business of insurance when taken against a living organ donor by an insurer. Kentucky 2021 KY H.B. 75 (NS), approved March 22, 2021, to prohibit certain insurance coverage determinations based upon the status of an individual as a living organ donor; to provide that the Act applies to insurance policies issued, renewed, or declined on or after the effective date of the Act; to provide that the Act may be cited as the 'Living Organ Donor Protection Act of 2021." Louisiana 2021 LA H.B. 703 (NS), adopted June 11, 2021, relative to the use of genetic testing in underwriting for life and long-term care insurance and annuities policies; to generally prohibit insurers from considering or requiring genetic research and testing in underwriting decisions for life and long-term care insurance and annuities policies. Maine 2021 ME H.P. 800 (NS), introduced March 11, 2021, relating to the use of genetic information by long-term care and other insurers. ¢ 2021 ME S.R. 374 (NS), introduced March 18, 2021, to classify employee health insurance as a fixed cost for MaineCare reimbursement in nursing homes. Maryland ¢ 2021 MD H.B. 303 (NS), introduced January 13, 2021, prohibition on long-term care insurance premium increases. ¢ 2021 MD S.B. 120 (NS), introduced January 13, 2021, authorizing the Maryland Insurance Commissioner to adopt certain rules and regulations applicable to certain reinsurance arrangements; limiting the application of the rules and regulations to certain reinsurance; providing that the rules and regulations may require a certain insurer to use a certain manual for a certain purpose; prohibiting the regulations from applying to certain cessions to certain assuming insurers; and generally relating to insurance and reinsurance. Massachusetts ¢ 2021 MA H.D. 2190 (NS), filed February 16, 2021, relative to long term care insurance tax credit. ¢ 2021 MA S.D. 582 (NS), draft/request, February 3, 2021, relative to long-term care insurance consumer protections. ¢ 2021 MA S.D. 707 (NS), draft/request, February 4, 2021, an Act for greater fairness in insurance policies, providing that if a policy, contract, certificate, or agreement offered, issued, delivered, or renewed, whether or not in Massachusetts, that provides, backs up, reinsures, or funds, in whole or in part, life insurance, health insurance, annuities, accident insurance, long term care insurance, or disability insurance coverage for any Massachusetts resident contains a provision that reserves discretionary authority to the insurer, or an agent of the insurer, to determine eligibility for benefits or coverage, to interpret the terms of the policy, contract, certificate, or agreement, or to provide standards of interpretation or review that are inconsistent with the laws of this state, that provision is void and unenforceable. * 2021 MA S.D. 2070 (NS), filed February 19, 2021, expanding insurance options available through the group insurance commission; establishing a plan of long-term care insurance on such terms and conditions as the commission deems to be in the best interest of the commonwealth and its employees. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -44- Michigan 2021 MI S.B. 584 (NS), introduced June 30, 2021, prohibiting insurers from denying or limiting insurance to living organ donors. Minnesota ¢ 2021 MN H.F. 285 (NS), introduced January 25, 2021, and 2021 MN S.F. 463 (NS), introduced January 28, 2021, providing for expansion of long-term care insurance income tax credits. ¢ 2021 MN H.F. 1829 (NS), introduced March 4, 2021, and 2021 MN S.F. 1450 (NS), introduced February 25, 2021, prohibiting discrimination against organ or bone marrow donors by long-term care and certain other insurers. ¢ 2021 MN H.F. 1983 (NS), introduced March 8, 2021, life insurance policy sale allowed to convert to long-term care insurance policies. Missouri 2021 MO S.B. 288 (NS), introduced January 6, 2021, caps rate increases for long-term care insurance policies at the lesser of the Consumer Price Index or five percent, measured annually. New Jersey 2020 NJ A.B. 1010 (NS), introduced January 14, 2020, would provide gross income tax credit for certain taxpayers who pay tuition costs for a nurse aide in long-term care facilities training program. 2020 NJ A.B. 1598 (NS) and 2020 NJ S.B. 394 (NS), introduced January 14, 2020, would provide a gross income tax credit for certain expenses paid or incurred for care and support of qualifying senior family member; designated as Caregiver's Assistance Act. 2020 NJ A.B. 1704 (NS), introduced January 14, 2020, would require the Department of Human Services to review Medicaid reimbursements to nursing homes under the Managed Long-Term Services and Supports Program. ¢ 2020 NJ A.B. 3199 (NS), adopted April 30, 2021, prohibits discrimination against living organ donors in relation to life, health, and long-term care insurance. New York ¢ 2021 NY A.B. 2408 (NS), introduced January 19, 2021, provides a personal income tax deduction for long-term care insurance riders. ¢ 2021 NY A.B. 3123 (NS), introduced January 22, 2021, provides that health insurance contracts and policies for long term care shall be renewable unless there is nonpayment of premiums. ¢ 2021 NY A.B. 3167 (NS), introduced January 22, 2021, requires insurers that issue contracts providing long term care benefits to maintain records of policies cancelled due to increased premiums. ¢ 2021 NY A.B. 4191 (NS), introduced February 2, 2021, provides for an increased personal income tax deduction for medical expenses incurred by a New York taxpayer to include medical insurance premiums and long term care premiums. ¢ 2021 NY A.B. 4514 (NS), introduced February 4, 2021, prohibits insurers from selling policies of insurance which duplicate existing coverage relative to long term health care policies. ¢ 2021 NY A.B. 5827 (NS), introduced February 26, 2021, requires long-term care insurance carriers who propose to raise long term care insurance premiums to obtain prior approval of the superintendent of financial services. ¢ 2021 NY A.B. 6034 (NS), introduced March 4, 2021, prohibiting ownership or control of managed long-term care plans by health maintenance organizations or insurers. ¢ 2021 NY A.B. 6320 (NS), introduced March 12, 2021, raising tax credits for long-term care insurance from twenty percent to fifty percent. ¢ 2021 NY A.B. 6321 (NS), introduced March 12, 2021, relating to refunds of excess long-term care insurance credits. * 2021 NY A.B. 6631 (NS), introduced March 23, 2021, grants a state personal income tax deduction for retirement plan distributions used to purchase long-term care insurance. ¢ 2021 NY A.B. 6683 (NS), introduced March 25, 2021, eliminates the cap on the maximum amount and the gross income requirement for the long-term care insurance credit. ¢ 2021 NY A.B. 6730 (NS), introduced March 29, 2021, provides for transparency in long term care insurance rates. * 2021 NY A.B. 6991 (NS), introduced April 19, 2021, relating to tax credits for premiums paid for long-term care insurance. ¢ 2021 NY A.B. 7903 (NS), introduced May 28, 2021, establishes a state-level program of all-inclusive care for the elderly for persons 55 years of age or older, qualifying for nursing home levels of care who wish to remain in their community. ¢ 2021 NY S.B. 1162 (NS), amended/substituted February 2, 2021, requires New York state to develop and implement a plan for the distribution of COVID-19 medical countermeasures in a manner that prioritizes those communities serving the most vulnerable residents of the state, including in long-term care facilities. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -45- ¢ 2021 NY S.B. 1525 (NS), introduced January 12, 2021, provides for a personal income tax credit for ten percent of the cost of long term health care insurance premiums. ¢ 2021 NY S.B. 2526 (NS), introduced January 21, 2021, relates to payments for home- and community-based long-term care services; provides that funds appropriated to compensate for minimum wage requirements shall not be subject to managed care risk adjustment on insurers. * 2021 NY S.B. 3700 (NS), introduced January 30, 2021, establishes the 'Interstate insurance product regulation compact' to regulate certain insurance products among member states and to promote and protect the interest of consumers of individual and group annuity, life insurance, disability income and long-term care insurance products. * 2021 NY S.B. 4327 (NS), amended/substituted May 24, 2021, requires a written statement from an insurer, corporation, health maintenance organization or fraternal benefit society as to the anticipated good faith increases of premium rates for a certain policy or certificate over the next ten years and include a graphic demonstration illustrating past premium rate increases for such policy or certificate over the last ten years or, if such policy or certificate was not offered over the previous ten years, past premium rate increases for similar policies or certificates over the previous ten years. ¢ 2021 NY S.B. 4328 (NS), introduced February 3, 2021, requiring the superintendent of financial services to make public any rate filing or application submitted by long term care insurance carriers who propose to raise long term care insurance premiums. ¢ 2021 NY S.B. 4933 (NS), introduced February 18, 2021, provides that the tax credits for long-term health care insurance shall be up to $1,000 of the premiums paid for each policy of such insurance. ¢ 2021 NY S.B. 5531 (NS), introduced March 10, 2021, requires insurers which issue contracts providing long term care benefits to maintain records of policies cancelled due to increased premiums. ¢ 2021 NY S.B. 5731 (NS), introduced March 17, 2021, prohibits insurers from selling policies of insurance which duplicate existing coverage relative to long-term health care policies. ¢ 2021 NY S.B. 6442 (NS), introduced April 28, 2021, eliminates the cap on the maximum amount and the gross income requirement for the long-term care insurance credit. North Carolina 2021 NC H.B. 71 (NS), amended/substituted June 3, 2021, The Living Donor Protection Act, to protect living donors from potential insurance discrimination by long-term care and other insurers. North Dakota 2021 ND S.B. 2253 (NS), approved April 12, 2021, providing for a legislative management study relating to the long-term care insurance market. Ohio 2021 OH H.B. 188 (NS), engrossed June 25, 2021, prohibiting insurers from discriminating against living organ donors. Pennsylvania ¢ 2021 PA H.B. 168 (NS), introduced January 14, 2021, further providing for disclosure and performance standards for long-term care insurance. ¢ 2021 PA S.B. 125 (NS), introduced January 26, 2021, providing for use and restrictions in using genetic information for insurance purposes. Rhode Island * 2021 RI H.B. 5199 (NS), introduced January 27, 2021, would bring the Rhode Island Life and Health Insurance Guaranty Fund statute into conformance with the latest version of the National Association of Insurance Commissioners Model Act. ¢ 2021 RI H.B. 5201 (NS), introduced January 27, 2021, updates the long-term care insurance statute so that it is in conformance with the latest version of the National Association of Insurance Commissioners model. ¢ 2021 RI H.B. 5780 (NS) and 2021 RI S.B. 980 (NS), adopted July 8, 2021, updates the Credit for Reinsurance, Risk Based Capital and Insurance Holding Company statutes to the current National Association of Insurance Commissioners standard. * 2021 RI S.B. 984 (NS), introduced June 27, 2021, The Health Spending Transparency and Containment Act, would impose a funding contribution for each enrollee of an insurer to be determined by the secretary of health and human services not to exceed one dollar ($1.00) to the health spending transparency and containment program established to utilize health care claims data to help reduce health care costs. The program would provide annual reports to the public and recommendations to the governor and general assembly. South Carolina THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -46- 2021 SC S.B. 121 (NS), introduced January 12, 2021, to enact the 'long-term care tax credit act' so as to allow a state individual income tax credit of fifteen percent of the total amount of premiums paid by a taxpayer pursuant to a long-term care insurance contract, not to exceed two thousand dollars in a taxable year for each individual, and to prohibit a double benefit. South Dakota 2021 SD S.B. 178 (NS), adopted March 22, 2021, to prohibit certain insurers (including long-term care insurers) from using genetic information to determine eligibility for coverage, establish premiums, limit coverage, or make any underwriting decision. Texas ¢ 2021 TX H.B. 317 (NS), adopted May 24, 2021, prohibiting discrimination against living organ donors by certain insurers, including long-term care insurers. ¢ 2021 TX H.B. 3742 (NS), engrossed May 11, 2021, relating to a prohibition on the use of genetic information gathered from direct-to- consumer genetic tests by a long-term care benefit plan issuer or a life insurance company. Utah 2021 UT S.B. 227 (NS), adopted March 17, 2021, to prohibit a direct-to-consumer genetic testing company from disclosing a consumer's genetic data to an entity that offers health insurance, life insurance, or long-term care insurance. Washington 2021 WA H.B. 1438 (NS), adopted May 10, 2021, expanding eligibility for property tax exemptions for service-connected disabled veterans and senior citizens by modifying income thresholds for eligibility to allow deductions for common health care-related expenses, including long-term care insurance. Vill. Partnership Programs The Long-Term Care Partnership Program is a federally-supported, state-operated initiative that allows individuals who purchase a qualified long-term care insurance policy or coverage to protect a portion of their assets that they would typically need to spend down prior to qualifying for Medicaid coverage. Once an individual purchases a partnership policy and uses some or all of the policy benefits, the amount of the policy benefits used will be disregarded for purposes of calculating eligibility for Medicaid. This means that they are able to keep their assets up to the amount of the policy benefits that were paid under their policy or coverage. For example, ina state that chooses to participate in the Long-Term Care Partnership Program, once you have used part or all of your maximum lifetime benefit, your assets would be protected up to the amount paid under the policy. You would not need to spend those assets before qualifying for that state's Medicaid program. Long-term care insurance partnerships are joint ventures between state Medicaid programs and private insurance providers. The Deficit Reduction Act of 2005 enables states to pursue public-private partnerships to create affordable long-term care insurance coverage for moderate-income Americans. Similar pilot partnerships were started in the early 1990s in four states-California, Connecticut, Indiana, and New York-but the Omnibus Budget Reconciliation Act of 1993 curtailed the development of additional state partnership programs. The Deficit Reduction Act lifted these restrictions, allowing other states to pursue similar initiatives. In response to these new laws, the Center for Health Care Strategies, a nonprofit organization, selected 10 states-Arkansas, Colorado, Georgia, Michigan, Minnesota, Oklahoma, Ohio, South Dakota, Texas and Virginia-to participate in a partnership project supported by the Robert Wood Johnson Foundation. Under the plan, the selected states were to encourage consumers to buy private long-term care insurance policies by creating special eligibility rules under Medicaid for the consumers should they eventually exhaust their long-term private policy benefits and require additional coverage. The plan's proponents stated it would create a mutually beneficial relationship between consumers, Medicaid programs and the private insurance industry. IFN131] However, in a 2007 report examining the four partnership pilot programs set up in the early 1990s, the GAO concluded that such partnership programs are unlikely to result in Medicaid savings and may actually increase spending. [FN132] Additionally, the impact of such programs was minimal because about 80% of surveyed policyholders would have purchased long-term care policies without the availability of the partnership program. IX. ALTERNATIVE METHODS OF PAYING FOR LONG-TERM CARE As a hedge against the potential costs for long-term care, seniors are finding long-term care insurance to be an expensive alternative, and one that may never pay out, if long-term care services aren't needed. Chances are about 50-50 that those reaching the age 65 in the next year or two will eventually need long-term care, according federal government estimates cited in a Vanguard white paper. [FN133] However, 26% of those turning 65 between 2015 and 2019 will eventually incur long-term care costs of more than $100,000, and 15% of retirees can expect to pay over $250,000. An alternative to long-term care insurance has been gaining popularity: life insurance policies with 'accelerated death benefit" (ADB) riders. Under such plans, you are able, under certain circumstances, such as the need to go into a nursing home, to get access to a THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -47- portion of the policy's death benefit before you die. Then, upon your eventual death, the remainder of the death benefit is paid out to your beneficiaries. [FN134] Besides hybrid financial service products that combine the benefits of life insurance, or an annuity, with long-term care insurance, Jamie Hopkins, Director of Retirement Research at Caron Wealth suggests other types of deferred income annuities. Qualified longevity annuity contracts (QLACs) can help retirees meet their long-term care funding needs, he says. Hopkins points out that there's a large variety of annuities on the market and not all of them will be suitable for funding long-term care expenditures. However, deferred annuities, QLACs, 1035 exchanges, and hybrid long-term care annuity products can be strategically utilized to help fund long-term care expenditures. For example, one way to help fund long-term care expenditures is to stagger or layer on deferred annuities, enabling the retiree to create various levels of income for different periods of retirement, he says. These specialized, but limited, deferred annuities can help retirees avoid required minimum distributions at age 70?, increase their retirement income, provide a hedge against longevity risk, and provide a source of long-term care funding. The QLAC is a powerful tool for long-term care funding because it can be purchased inside of an IRA or 401(k), where most retirees house their retirement savings, he says. Additionally, the rules allow the QLAC to stay in the IRA without payments until age 85, at which time payments must begin. However, this can provide a very nice income source for retirees to help fund long-term care expenditures. Another strategy is to use a so-called hybrid or linked benefit contract, which combines long-term care coverage with an annuity into one product. [FN135] In addition to accelerated life insurance payments, states have begun to investigate alternative methods for individuals to pay for long- term care expenses, including innovative financing methods and universal care initiatives. Recent Legislative Activity Federal 2021 CONG US HR 5137, introduced August 31, 2021, to create senior health planning accounts funded by the proceeds of the sale or assignment of life insurance contracts. Hawaii ¢ 2021 HI H.B. 311 (NS), adopted May 28, 2021, extends the nursing facility sustainability program to 2024; specifies that the nursing facility sustainability fee limit is 5.5 per cent of overall net patient service revenue; removes the per resident daily maximum fee of $20 for each facility; specifies that facilities that meet certain exceptions shall pay a reduced daily fee in comparison to other participating facilities; allows nursing facilities sixty days to pay the nursing facility sustainability fee. «2021 HI H.B. 977, 2021 HI H.B. 978, 2021 HI S.B. 1131, and 2021 HI S.B. 1132 (NS), introduced January 27, 2021, continues the nursing facility sustainability program for two additional years; appropriates funds out of the nursing facility sustainability program special fund for fiscal years 2021-2022 and 2022-2023. ¢ 2021 HI S.C.R. 104 (NS) and 2021 H.C.R. 120 (NS), introduced March 12, 2021, urging the Department of Human Services to convene a working group to explore creation of a sustainability fund for the community care foster family home and expanded adult residential care home programs. ¢ 2021 HI S.B. 820 (NS), amended/substituted March 5, 2021, extends the nursing facility sustainability program to 2024; specifies that the nursing facility sustainability fee limit is 5.5 per cent of overall net patient service revenue; removes the per resident daily maximum fee of $20 for each facility; specifies facilities that meet certain exceptions shall pay a reduced daily fee in comparison to other participating facilities; allows nursing facilities to pay assessed fees within 60 days, instead of 30 days. Maine 2021 ME H.P. 1043 (NS), introduced April 8, 2021, to encourage family care of aging adults. Minnesota 2021 MN S.F. 556 (NS), introduced February 4, 2021, constitutional amendment creating a dedicated fund for long-term care services; tax levy on individuals with income not taxed for social security to fund long-term care services; revenues dedication; legislative implementation directive. Vermont 2021 VT H.B. 30 (NS), introduced January 7, 2021, relating to the study and design of a long-term care trust fund. Washington ¢ 2021 WAH.B. 1323 (NS), introduced January 20, 2021, relating to the long-term services and supports trust program. * 2021 WA S.B. 5234 (NS), introduced January 15, 2021, repealing the long-term services and supports trust program and the premium assessment on wages. West Virginia THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -48- 2021 WV H.B. 2653 (NS), introduced February 23, 2021, providing a tax exemption for income from a qualified retirement plan used to pay for long-term care. X. VETERANS The Department of Veterans Affairs (VA) pays for long-term care services for service-related disabilities and for certain other eligible veterans, as well as other health programs such as nursing home care and at-home care for aging veterans with long-term care needs. The VA also pays for veterans who do not have service-related disabilities, but who are unable to pay for the cost of necessary care. Co-pays may apply depending on the veteran's income level. The VA has additional programs to help veterans stay in their homes: ¢ The Housebound Aid and Attendance Allowance Program provides cash to eligible veterans with disabilities and their surviving spouses to purchase home- and community-based long-term care services such as personal care assistance and homemaker services. The cash is a supplement to the eligible veteran's pension benefits ¢ Veteran Directed Home and Community Based Services program-developed in 2008 for eligible veterans of any age, provides veterans with a flexible budget to purchase services. Counseling and other supports for veterans are provided by the Aging Network in partnership with the Veterans Administration ¢ Program of Comprehensive Assistance for Family Caregivers-In May 2010, Congress required VA to establish a program to support family caregivers of seriously injured post-9/11 veterans, and in May 2011, the Veterans Health Administration (VHA) implemented its Family Caregiver Program at all VAMCs across the country, offering caregivers an array of services, including a monthly stipend, training, counseling, referral services, and expanded access to mental health and respite care. In fiscal year 2014, VHA obligated over $263 million for the program. On September 18, 2014, GAO released a report that examines how VHA is implementing the program, including the types of issues that have been identified during initial implementation. GAO found that the VHA significantly underestimated the demand for services, and recommended that the VA and VHA: (1) expedite the process for implementing a new IT system that will enable officials to obtain workload data; (2) identify solutions to alleviate VAMCs' workload burden in advance of obtaining a new IT system, and (3) use data from the new IT system, once implemented, and other relevant data, to re-assess the program and implement changes as needed. VA has agreed with GAO's recommendations. [FN136] Additional government funding is being distributed to help keep veterans, as well as other seniors, in their homes and out of institutionalized long-term care facilities. As authorized under the Affordable Care Act, nearly every state receives a piece of the $25 million to establish Aging and Disability Resource Centers (ADRCs), meant to be a 'one-stop shop" for elderly and disabled individuals who want to receive care in their homes and communities, rather than a long-term care facility. The Veterans Health Administration will funnel an additional $27 million over three years to ADRC-funded states to help disabled veterans remain in their communities, as part of the initiative. Eight states will be selected for fast-track implementation of the program. The ADRCs will provide counseling services for those looking for services such as transportation to rehabilitation therapy, home health, and support with activities of daily living. The program is being administered through a partnership between the new Administration for Community Living, CMS, and the Department of Veterans Affairs' Veterans Health Administration, !fN197] On the rural front, VA Secretary David Shulkin told a public forum in Montana on August 21, 2017, that his agency will propose changes to make it easier for rural areas to receive funding to build nursing homes for veterans. He noted that rural areas are often bypassed, under existing agency guidelines, for awarding grants for veterans' homes. Montana veterans and lawmakers have been seeking funding for a veterans' home for the southwestern part of the state; this year the proposed home ranked 57th on the agency's priority list and the VA only funded the top 13, Shulkin explained. The agency will work to propose regulatory changes to ensure that some of the money goes specifically to rural areas. [FN138] In June 2018, the VA released ratings of some of its nursing homes after the Boston Globe and USA Today [FN139] questioned the secrecy surrounding the agency's quality statistics. According to the documents obtained, as of December 31, 2017, nearly half of VA nursing homes nationwide received the agency's lowest ranking, one out of five stars. Internal documents obtained in the investigation reveal that the VA nursing homes performed worse on average than private nursing homes on a majority of key measures: ¢ Pain reported within past 5 days: VA, 32.64%; private sector, 5.59% ¢ Anti-psychotic medicine administered: VA, 20.89%; private sector, 15.48% ¢ Decrease in abilities to perform daily activities: VA, 16.7%; private sector, 14.99% * Catheter left in bladder: VA, 11.96%; private sector, 1.83% * Bed sores in high-risk residents: VA, 8.51%; private sector, 5.57% VA officials argued that the VA nursing home system, overall 'compares closely" with private nursing homes despite caring for typically sicker residents. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -49- The worst-performing VA nursing homes were scattered across 32 states, including Pennsylvania, which had five one-star facilities, as well as Texas and California, which had four each. After learning that the Department of Veterans Affairs had given nearly half of the VA's 133 nursing homes the lowest possible score in secret, internal rankings, the House Veterans Affairs Committee has launched an investigation. Massachusetts Democratic Representative Seth Moulton applauded the committee's investigation and said he hopes the panel will hold a field hearing in his state, where the Bedford VA nursing home was rated worse than private nursing homes on 10 of 11 key quality indicators last year, including rates of pain and infection, the Bosfon Globe reports. [FN140] Recent Legislative Activity Federal 2021 CONG US S 1965, introduced June 8, 2021, to direct the Secretary of Veterans Affairs to improve long-term care provided to veterans by the Department of Veterans Affairs. Florida 2021 FL S.B. 2518 (NS), adopted June 2, 2021, revising the amount of money residents of a veterans' nursing home must receive monthly before being required to contribute to their maintenance and support. Hawaii 2021 HI S.B. 237 (NS), introduced January 22, 2021, raises the standard of care for the State's veteran homes, long term care facilities and nursing homes in response to the COVID-19 pandemic by describing requirements for care facility licensing and leadership, implementing standards of recordkeeping, creating protocols for emergencies and personal protective equipment, and establishes a hotline for complaints. New York 2021 NY A.B. 6874 (NS), introduced April 13, 2021, relating to directing the state director of veterans' affairs to submit a plan to the veterans' affairs commission for the provision of services to service-disabled veterans, including long-term care options. North Carolina 2021 NC H.B. 772 (NS), introduced May 4, 2021, directing the Department of Health and Human Services, in collaboration with the Department of Military and Veterans Affairs, to examine the state's delivery of long-term care to veterans and determine what improvements can be made to ensure exemplary services moving forward. XI. PRISON INMATES Prisoners, for the most part, age faster and have more health problems than the general population, according to various studies. And once a prisoner is released, those health issues become even harder to manage. The Marshall Project reported that the number of inmates 55 and older had quadrupled between 1995 and 2010. The American Civil Liberties Union projected that by 2030 one-third of all inmates in the nation will be older than 55. F141] As the number of elderly prisoners increases, states are looking for cost-effective ways to provide their long-term care. Providing health care to an aging prison population is becoming a large and growing cost for states. Of the 2.3 million adults in state and federal prisons, about 246,000 are 50 or older, according to the National Institute of Corrections, and that the U.S. currently spends more than $16 billion annually caring for these aging inmates, [FN142] ond their numbers are projected to grow dramatically in the next 15 years. Not only do inmates develop debilitating conditions at a younger age than people who are not incarcerated, but caring for them in the harsh environment of prisons is far more expensive than it is on the outside. Some states have tried to contract with private nursing homes to care for some of their elderly and disabled inmates under so-called 'medical parole" programs. Such programs allow prisoners to receive care outside of a prison while remaining in state custody. But few private facilities have been willing to accept them. Likewise, courts and communities have tended to resist so-called 'compassionate release," which cuts short the sentences of elderly or dying inmates so they can spend their last days on the outside. In 2012, Connecticut tried a different approach. Instead of attempting to place prisoners in nursing home beds next to someone's elderly parent, the state asked the commercial nursing home industry to provide a facility that would accept a steady stream of prison inmates and patients from the state mental hospital who required long-term nursing care. 60 West, a 95-bed, single-story facility in Connecticut is the first facility in the country to receive approval from the CMS for federal nursing home funding for paroled inmates. In December, 2016, the privately-owned facility under contract with the state was granted certification for eligibility for federal funding. As reported in Connecticut Health I-Team, [FN143}] ailing inmates who qualify for nursing home-level care, and, who the state deems not to be public safety risks, are referred to 60 West. Medicaid covers half the cost of their care, saving the state about $5 million annually. A handful of states are interested in following Connecticut's lead: Michigan is seeking industry proposals for a similar arrangement, and Kentucky and Wisconsin are considering doing the same. In other states, however, officials may lack the political will to take on THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -50- residents who don't want convicts in their midst. And even in Connecticut, it remains to be seen how far the state can take its plan, given the public backlash it already has experienced. Recent Legislative Activity New Mexico 2021 NM S.B. 114 (NS), introduced January 19, 2021, creating medical and geriatric parole procedures: inmates who are geriatric, permanently incapacitated, or terminally ill may seek parole consideration upon written application to the board or consent to submission of their application by and through a family member, attorney, or corrections department care provider. XIll. Conclusion Recent studies have shown that Medicaid long-term care spending is expected to continue to rise which will put a greater burden of long-term care costs on federal and state governments. As a result, states will likely continue to pursue other means to offset Medicaid long-term care spending, such as long-term care partnership programs and increased funding for home- and community- based services. As increasing numbers of Americans consider private long-term care insurance, the need for oversight of the industry increases. A number of states have considered legislation to regulate long-term care insurance practices and standards, and rein in ballooning premiums. At the same time, federal and state governments are struggling to contain COVID-19 infections and deal with the extraordinary costs resulting from the pandemic. © Copyright Thomson/West - NETSCAN's Health Policy Tracking Service [FN2] . U.S. Department of Health and Human Services, Administration on Aging, "What is Long-Term Care?," https:/Awww.nia.nih.gov/health/ what-long-term-care. [FN3] . 'Average American's Risk of Needing Nursing Home Care Is Higher than Previously Estimated," RAND Corporation (Aug. 28, 2017), https:/Avww.rand.org/news/press/2017/08/28/index1 .htmI. [FN4] . Centers for Disease Control and Prevention, "Long-Term Care Providers and Services Users in the United States: Data From the National Study of Long-Term Care Providers, 201372014," Vital and Health Statistics, Series 3, No. 38 (February 2016), https:// www.cdc.gov/nchs/data/series/sr_03/sr03_038.pdf. [FN5] . "Cost of Care Trends & Insights," Genworth (Feb. 12, 2021), https:/Awww.genworth.com/aging-and-you/finances/cost-of-care/cost-of- care-trends-and-insights.html. [FN6] . "Long-Term Care in America: Expectations and Preferences for Care and Caregiving, The Associated Press-NORC Center for Public Affairs Research, available at http:/Awww.longtermcarepoll.org/PDFs/LTC2#016/AP-NORCL#ongT#ermC#are_2016.pdf. [FN7] . Pub. L. 109-171 (Feb. 8, 2006). [FN8] . Jeffrey S. Crowley, Health Policy Institute, Georgetown University, "Medicaid Long-Term Services Reforms in the Deficit Reduction Act," April 2006, www.kff.org. [FN9] . "Advancing Action, 2020: A State Scorecard on Long-Term Services and Supports for Older Adults, People with Physical Disabilities, and Family Caregivers," AARP, The Commonwealth Fund, and The Scan Foundation (Sept. 24, 2020), http:// www.longtermscorecard.org/2020-scorecard/preface. [FN10] . "Financing Long-Term Services and Supports: Seeking Bipartisan Solutions in Politically Challenging Times," Bipartisan Policy Center (July 11, 2017), https://bipartisanpolicy.org/report/financing-long-term-services-and-supports/. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -51- [FN11] . "Initial Recommendations to Improve the Financing of Long-Term Care," Bipartisan Policy Center (February 2016), http:// bipartisanpolicy.org/wp-content/uploads/2016/01/BPC-Health-Long-Term-Care.pdf. [FN12] . Survey of Nursing Homes and Assisted Living Providers Shows Long Term Care Industry Still Facing Serious Economic Crisis (Fact Sheet), American Health Care Association/National Center for Assisted Living (June 2021), https:/Awww.ahcancal.org/News-and- Communications/Fact-Sheets/FactSheets/Financial-Survey-June-2021 pdf. [FN13] . Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. ?? 512175207. [FN14] . Trump Administration Makes Sweeping Regulatory Changes to Help U.S. Healthcare System Address COVID-19 Patient Surge, CMS. gov (press release, Mar. 30, 2020), https:/Avww.cms.gov/newsroom/press-releases/trump-administration-makes-sweeping- regulatory-changes-help-us-healthcare-system-address-covid-19. [FN15] . Public Health Emergency: Renewal of Determination That a Public Health Emergency Exists, U.S. Department of Health & Human Services, Office of the Assistant Secretary for Preparedness and Response (Oct. 15, 2021) https:/Avww.phe.gov/emergency/ news/healthactions/phe/Pages/COVDI-150ct21.aspx?cm_ven=ExactTarget&cm_cat=COVID-19+Update+2#13&cm_pla=All +Subscribers&cm_ite=extended&cm_Im=1343767647&cm_ainfo=&&&&&. [FN 16] . COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers (fact sheet), CMS.gov (Apr. 3, 2020), https:// www.cms.gov/files/document/covid19-emergency-declaration-health-care-providers-fact-sheet. pdf. [FN17] . Trump Administration Acts to Ensure U.S. Healthcare Facilities Can Maximize Frontline Workforces to Confront COVID-19 Crisis, CMS.gov (Press release, Apr. 9, 2020), https:/Avww.cms.gov/newsroom/press-releases/trump-administration-acts-ensure-us- healthcare-facilities-can-maximize-frontline-workforces-confront. [FN18] . CMS Expanding Efforts to Grow COVID-19 Vaccine Confidence and Uptake Amongst Nation's Most Vulnerable, CMS.gov (Press Release, May 11, 2021), https:/Avww.cms.gov/newsroom/press-releases/cms-expanding-efforts-grow-covid-19-vaccine-confidence- and-uptake-amongst-nations-most-vulnerable. [FN19] . CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (FAQs), CMS.gov (Nov. 4, 2021), https:/Avww.cms.gov/ files/document/cms-omnibus-staff-vax-requirements-2021 .pdf. [FN20] . Jeremy Diamond and Tami Luhby, "Biden say US will require nursing homes get staff vaccinated or lose federal funds," CNN.com (Aug. 18, 2021), https:/Avww.cnn.com/2021/08/18/politics/nursing-homes-federal-funding/index.html. [FN21] . CDC Statement on ACIP Booster Recommendations (Press Release), CDC Newsroom (September 24, 2021), https:/Awww.cdc.gov/ media/releases/2021 /p0924-booster-recommendations-.html. [FN22] . CMS Launches New Medicare.gov Tool to Compare Nursing Home Vaccination Rates, CMS.gov (Press Release, Sept. 21, 2021), cms.gov/newsroom/press-releases/cms-launches-new-medicaregov-tool-compare-nursing-home-vaccination-rates. [FN23] . Alexandra Jaffee et al., "Biden orders tough new vaccination rules for federal workers," AP (July 30, 2021), https://apnews.com/article/ lifestyle-joe-biden-business-health-travel-a1670ffa08f1f2eab42c675d99f1d9ad. [FN24] THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -52- . Alex Zom, "AHCA/NCAL Strongly Urges Vaccination for Long-Term Care Workers," Skilled Nursing News (July 29, 2021), https:// skillednursingnews.com/2021/07/ahca-ncal-latest-to-call-for-mandatory-vaccines-for-long-term-care-workers/. [FN25] . EEOC Issues Updated COVID-19 Technical Assistance, U.S. Equal Employment Opportunity Commission (Press Release, Oct. 25, 2021), https:/Awww.eeoc.gov/newsroom/eeoc-issues-updated-covid-19-technical-assistance-0. [FN26] . Danielle Brown, "Providers must offer COVID vaccine to new hires or face fines: new state guidance," McKnight's Long-term Care News (April 20, 2021), https:/Avww.mcknights.com/ news/providers-must-offer-covid-vaccine-to-new-hires-or-face-fines-new-state-guidance/? utm_source=newsletter&utm_medium=email&utm_campaign=MLT_Weekly_20210423&hmSubld=GVkrCKLYrEM1&hmEmail=nluXS2jdOJO0tlG- OxiMnyzlZDo7e_i8h0&email_hash=4d7f962003231 7303f7753d76be9a357 &mpweb=1326-17629-249238. [FN27] . HCS Reports, Nursing Home Salary & Benefits Report, Hospital & Healthcare Compensation Service, https:/Avww.hhcsinc.com/hcs- reports.html. [FN28] - 'Declining COVID-19 Mortality Rates Among Nursing Home Residents," Health Affairs (Mar. 11, 2021), https:/Avww.healthaffairs.org/ do/10.1377/hblog20210310.897 113/full/. [FN29] . Cyrun M. Kosar et al., "COVID-19 Mortality Rates Among Nursing Home Residents Declined from March to November 2020," Health Affairs (Mar. 11, 2021), https:/Avww.healthaffairs.org/doi/abs/10.1377/hlthaff.2020.02191?utm_medium=press&utm_source=media- advisory&utm_campaign=ahead+of+print&utm_term=Kosar. [FN30] . Omar Zahraoui, "93% of Skilled Nursing Facilities Report No New Cases of COVID-19," NIC Notes (Mar. 10, 2021), https:// blog.nic.org/93-of-skilled-nursing-facilities-report-no-new-cases-of-covid-19. [FN31] . Danielle Brown, "Absolutely astonishing': 90% drop in COVID cases shocks Parkinson, industry leaders," McKnight's Long-Term Care News (Mar. 8, 2021), https:/Avww.mcknights.com/ news/absolutely-astonishing-90-drop-in-covid-cases-shocks-parkinson-industry-leaders/? utm_source=newsletter&utm_medium=email&utm_campaign=MLT_Weekly_20210312&hmSubld=GVkrCKLYrEM1&hmEmail=nluXS2jdOJO0tlG- OxiMnyzlZDo7e_i8h0&email_hash=4d7f962003231 7303f7753d76be9a357 &mpweb=1326- 16401 -249238. [FN32] . Marsida Domi, MPH, et al., Nursing Home Resident and Staff Covid-19 Cases After the First Vaccination Clinic, The Center for Health Policy Evaluation in Long-Term Care (Feb. 4, 2021), https://www.ahcancal.org/Data-and-Research/Center-for-HPE/Documents/CHPE- Report-Vaccine-Effectiveness-Feb2021.pdf. [FN33] . Beth Mace and Omar Zahraoui, "Nursing Homes Are Now Safe, But Data Raises Questions," N/C (June 2, 2021), https://blog.nic.org/ nursing-homes-are-now-safe-but-data-raises-questions. [FN34] . CARES Act Provider Relief Fund: General Information, HHS. gov, https:/Avww.hhs.gov/coronavirus/cares-act-provider-relief-fund/ general-information/index.html#targeted. [FN35] . Trump Administration Announces the Distribution of $2.5 Billion to Nursing Homes for COVID-19 Relief Funding, HHS.gov (Aug. 27, 2020), https:/Avww.hhs.gov/about/news/2020/08/27/trump-administration-announces-2-5-billion-to-nursing-homes-for-covid-1 9-relief- funding.html. [FN36] THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -53- . HHS Announces the Availability of $25.5 Billion in COVID-19 Provider Funding, HHS.gov (Sept. 10, 2021), https:/Awww.hhs.gov/about/ news/2021/09/10/hhs-announces-the-availability-of-25-point-5-billion-in-covid-19-provider-funding.html. [FN37] . Provider Relief Fund General and Targeted Distribution Post-Payment Notice of Reporting Requirements, Health Resources and Services Administration (June 11, 2021), https:/Avww.hhs.gov/sites/default/files/provider-post-payment-notice-of-reporting- requirements-june-2021 .pdf. [FN38] . "HHS Announces $103 Million from American Rescue Plan to Strengthen Resiliency and Address Burnout in the Health Workforce," HHS.gov (press release, July 16, 2021), https:/Awww.hhs.gov/about/news/2021/07/16/hhs-announces-103-million-arp-funding-to- address-health-workforce-burnout.html. [FN39] . 'Biden Administration Strengthens Requirements that Plans and Issuers Cover COVID-19 Diagnostic Testing Without Cost Sharing and Ensures Providers are Reimbursed for Administering COVID-19 Vaccines to Uninsured," CMS.gov (press release, Feb. 26, 2021), https:/Avww.cms.gov/newsroom/press-releases/biden-administration-strengthens-requirements-plans-and-issuers-cover-covid-19- diagnostic-testing. [FN40] . Trump Administration Distributes Incentive Payments to Nursing Homes Curbing COVID-19 Deaths and Infections, HHS.gov (Press Release, Oct. 28, 2020), https:/Avww.hhs.gov/about/news/2020/1 0/28/trump-administration-distributes-incentive-payments-to-nursing- homes-curbing-covid-19-deaths-and-infections.html. [FN41] . A state-by-state breakdown on incentive payments from this first cycle is available at: https:/Avww.hhs.gov/sites/default/files/provider- relief-fund-nursing-home-quality-incentive-payment-allocations. pdf. HHS will update this data to capture all recipients as payment disbursements continue. [FN42] . 'Long Term Care Faces Worst Financial Crisis in Years; Closures Loom Without Additional Funding," AHCA NCAL (Feb. 11, 2021), https:/Avww.ahcancal.org/News-and-Communications/Press-Releases/Pages/Long-Term-Care-Faces-Worst-Financial-Crisis-In-Years;- Closures-Loom-Without-Additional-Funding.aspx. [FN43] . Senior Housing Occupancy Increases in Third Quarter-Industry sees new signs of recovery from the COVID-19 pandemic, N/C (News & Press Releases, Oct. 2021), https:/Awww.nic.org/news-press/year/2021/. [FN44] . "CMS Updates Nursing Home Guidance with Revised Visitation Recommendations," CMS.gov (Press Release, Mar. 10, 2021), https:// www.cms.gov/newsroom/press-releases/cms-updates-nursing-home-guidance-revised-visitation-recommendations. [FN45] . Liza Berger, "Community spread triggers growing number of COVID-19 cases in nursing homes: AHCA," McKnight's Long-term Care News (Nov. 3, 2020), https:/Avwww.mcknights.com/news/community-spread-triggers-growing-number-of-covid-1 9-cases-in-nursing- homes-ahca. [FN46] . Michael A. Johansson, PhD et al., "SARS-CoV-2 Transmission From People Without COVID-19 Symptoms," JAMA Network (Jan. 7, 2021), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2774707. [FN47] . Justin Blackburn, PhD, et al., "Community Coronavirus Disease 2019 Activity Level and Nursing Home Staff Testing for Active Severe Acute Respiratory Syndrome Coronavirus 2 Infection in Indiana," JAMDA (Oct. 28, 2020), https:/Awww.jamda.com/article/ $1525-8610(20)30930-0/fulltext#.# [FN48] THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -54- - Nursing Home Five Star Quality Rating System updates, Nursing Home Staff Counts, and Frequently Asked Questions, Centers for Medicare & Medicaid Services, memorandum (Apr. 24, 2020), https:/Avww.cms.gov/files/document/qso-20-28-nh. pdf. [FN49] . Stabilized Occupancy for Both Seniors Housing and Skilled Nursing Drops in April Following Onset of COVID-19 Pandemic, NIC Intra-Quarterly Snapshot, National Investment Center for Seniors Housing & Care (April 2020), https://info.nic.org/ hubfs/NIC_Intra_Quarterly_Snapshot_April_2020.pdf?hsCtaTracking=72a05e9b-8b6f-45bb-8c2b-730b5cfeb793@f1 7ca694- ac6e-41d7-92d4-7139c541 9ef8. [FN50] . Danielle Brown, 'Operators Worried It Might Be 18 Months Before Skilled Nursing Occupancy Recovers,' McKnight's Long-Term Care News (July 13, 2020), https:/Avww.mcknights.com/ news/operators-worried-it-might-be-18-months-before-skilled-nursing-occupancy-recovers/? utm_source=newsletter&utm_medium=email&utm_campaign=MLT_Weekly_20200717&hmSubld=GVkrCKLYrEM1&hmEmail=nluXS2jdOJ0tlG- OxiMnyzlZDo7e_i8h0&email_hash=4d7f962003231 7303f7753d76be9a35/7 &mpweb=1326-10387-249238. [FN51] . Danielle Brown, "Senators' $1B would more than double House-proposed funding to help nursing homes," McKnight's Long-term Care News Feb. 24, 2021), https:/Avwww.mcknights.com/ news/senators-1b-would-more-than-double-house-proposed-funding-to-help-nursing-homes/? utm_source=newsletter&utm_medium=email&utm_campaign=MLT_DailyUpdate_20210226&hmSubld=GVkrCKLYrEM1&hmEmail=nluxS2jdOJ0 OxiMnyzlZDo7e_i8h0&email_hash=4d7f962003231 7303f7753d76be9a357 &mpweb=1326-15709-249238. [FN52] . Tables displaying federal financial participation matching rates for each of the 50 states and territories are available at http:// aspe.hhs.gov/health/fmap.htm. [FN53] . Charlene Harrington et al., "Nursing Facilities, Staffing, Residents and Facility Deficiencies, 2009 Through 2016, Kaiser Family Foundation (Apr. 3, 2018), https:/Awww.kff.org/medicaid/report/nursing-facilities-staffing-residents-and-facility-deficiencies-2009- through-2016/. [FN54] . CMS Medicaid and CHIP Program Information, http:/Avww.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term- Services-and-Support/Long-Term-Services-and-Support.html. [FN55] . The funding of home- and community-based services is discussed in greater detail in the Long-Term Care: Home- and Community- Based Services Issue Brief. [FN56] . Leora Friedberg et al., "Long-Term Care: How Big A Risk?, Center for Retirement Research at Boston College (Nov. 2014, No. 14-18), http://crr.bc.edu/briefs/long-term-care-how-big-a-risk/. [FN57] . CMS Medicaid and CHIP Program Information, http:/Avww.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term- Services-and-Support/Long-Term-Services-and-Support.html. [FN58] . 42 U.S.C.A. ? 1396n. [FN59] . 'How Do Older Baby Boomers Envision Their Quality of Life If They Need Long-Term Care Services?", LeadingAge (March 2019), https://leadingage.org/sites/default/files/HOWD#OOLDERB#ABYB#OOMERSENVISION_FINAL.pdf. [FN60] . Programs of All-Inclusive Care for the Elderly (PACE) Final Rule (CMS-4168-F) (Fact sheet), CMS.gov Newsroom (May 28, 2019), https:/Avww.cms.gov/newsroom/fact-sheets/programs-all-inclusive-care-elderly-pace-final-rule-cms-4168-f. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -55- [FN61] . Rebecca J. Gorges, Prachi Sanghavi, and R. Tamara Konetzka, "A National Examination of Long-Term Care Setting, Outcomes, And Disparities Among Elderly Dual Eligibles," Health Affairs Vol. 38, No. 7 (Research Article, July 1, 2019), https:/Avww.healthaffairs.org/ doi/abs/10.1377/hithaff.2018.054097?journalCode=hithaff. [FN62] . "2020 Medicare Parts A & B Premiums and Deductibles" (fact sheet), CMS.gov (Nov. 8, 2019), https:/Awww.cms.gov/newsroom/fact- sheets/2020-medicare-parts-b-premiums-and-deductibles. [FN63] . Fiscal Year 2021 Payment and Policy Changes for Medicare Skilled Nursing Facilities (CMS-1737-F), CMS.gov (Fact sheet, Jul. 31, 2020), https:/Awww.cms.gov/newsroom/fact-sheets/fiscal-year-2021-payment-and-policy-changes-medicare-skilled-nursing-facilities- cms-1737-f. [FN64] . CMS Finalizes Calendar Year 2020 Payment and Policy Changes for Home Health Agencies and Calendar Year 2021 Home Infusion Therapy Benefit (fact sheet), CMS.gov Newsroom (Oct. 31, 2019), https:/Avww.cms.gov/newsroom/fact-sheets/cms-finalizes-calendar- year-2020-payment-and-policy-changes-home-health-agencies-and-calendar-year. [FN65] . Calendar Year (CY) 2022 Medicare Physician Fee Schedule Proposed Rule, CMS.gov (fact sheet, July 13, 2021), https:// www.cms.gov/newsroom/fact-sheets/calendar-year-cy-2022-medicare-physician-fee-schedule-proposed-rule. [FN66] . James M. Berklan, "CMS surprises with therapy pay levels in 2022 Medicare physician fee rule," McKnight's Long-Term Care News (July 14, 2021), https:/Avww.mcknights.com/news/cms-surprises-with-therapy-pay-levels-in-2022-medicare-physician-fee-rule/. [FN67] . James M. Berklan, "CMS shaves 2022 PPS pay rates to 1.2%, won't mess with PDPM cuts - for now," McKnight's Long-Term Care News (July 30, 2021), https:/Avww.mcknights.com/news/cms-shaves-2022-pps-pay-rates-to-1-2-wont-mess-with-pdpm-cuts-for-now/. [FN68] . Skilled Nursing Facility (SNF) Quality Reporting Program (QRP) Public Reporting, CMS.gov (Oct. 28, 2020 update), https:// www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualitylnits/Skilled-Nursing-Facility-Quality- Reporting-Program/SNF-Quality-Reporting-Program-Public-Reporting. [FN69] . Danielle Brown, "A win-win:' Med PAC officially makes recommendation to replace SNF VBP with new incentive model," McKnight's Long-term Care News (June 17, 2021), https://www.mcknights.com/news/a-win-win-medpac-officially-makes-recommendation-to- replace-snf-vbp-with-new-incentive-model/. [FN70] . Annual Civil Monetary Penalties Inflation Adjustment, Health and Human Services Department, 82 Fed. Reg. 9174 (Feb 3, 2017). 2017 WL 446303. [FN71] . Medicare & Coronavirus, Medicare.gov, https:/Awww.medicare.gov/medicare-coronavirus. [FN72] . For details, see Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes (Revised), CMS Center for Clinical Standards and Quality/Quality, Safety & Oversight Group (Memorandum, QSO-20-14-NH, Mar. 13, 2020), https:/Avww.cms.gov/files/document/qso-20-14-nh-revised.pdf. [FN73] . Elise Reuter, 'CMS promises a plan for Medicare to cover coronavirus vaccine, MedCity News (Oct. 13, 2020), https:// medcitynews.com/2020/10/cms-coming-up-with-a-plan-for-medicare-to-cover-a-coronavirus-vaccine/. [FN74] THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -56- . Medicare Monoclonal Antibody COVID-19 Infusion Program Instruction, Centers for Medicare & Medicaid Services, https:// www.cms.gov/files/document/covid-medicare-monoclonal-antibody-infusion-program-instruction.pdf. [FN75] . Diane Estabrook, "Medicare sequestration moratorium officially extended," McKnight's Long-term Care News (April 15, 2021), https:// www.mcknightsseniorliving.com/home/news/home-care-daily-news/medicare-sequestration-moratorium-officially-extended/. [FN76] . Kimberly Marselas, "As Medicare Advantage drives rate lower, fed-up CEOs embrace strategies that limit carriers' influence," McKnight's Long-term Care News (Apr. 26, 2021), https:/Avww.mcknights.com/news/as-medicare-advantage-drives-rate-lower-fed-up- ceos-embrace-strategies-that-limit-carriers-influence/. [FN77] . Fiscal Year 2020 State Performance Standards System Guidance, Center for Clinical Standards and Quality, Quality, Safety & Oversight Group, Centers for Medicare & Medicaid Services (Oct. 17, 2019), https:/Awww.cms.gov/Medicare/Provider-Enrollment-and- Certification/SurveyCertificationGenInfo/Downloads/AdminInfo-20-02-ALL. pdf. [FN78] . The final rule is available at https:/Avww.federalregister.gov/articles/201 3/08/19/2013-18956/medicare-program-hospital-inpatient- prospective-payment-systems-for-acute-care-hospitals-and-the. [FN79] . Reps. Courtney And Thompson Lead Bipartisan Introduction Of Legislation To End Surprise Bills, Improve Affordability And Outcomes For Medicare Patients, Press Release, U.S. Congressman Joe Courtney (June 1, 2021), https://courtney.house.gov/media-center/ press-releases/reps-courtney-and-thompson-lead-bipartisan-introduction-legislation-end. [FN80] . COVID-19 Emergency Declaration-Health Care Providers Fact Sheet, CMS.gov (Mar. 13, 2020), https:/Avww.cms.gov/files/ document/covid19-emergency-declaration-health-care-providers-fact-sheet.pdf. [FN81] . Medicare Fee-For-Service (FFS) Response to the Public Health Emergency on the Coronavirus (COVID-19), MLN Matters Number $E20011 (June 30, 2020), https:/Awww.cms.gov/files/document/se2001 1. pdf. [FN82] . Public Health Emergency: Renewal of Determination That a Public Health Emergency Exists, U.S. Department of Health & Human Services, Office of the Assistant Secretary for Preparedness and Response (Oct. 15, 2021) https:/Avww.phe.gov/emergency/ news/healthactions/phe/Pages/COVDI-150ct21.aspx?cm_ven=ExactTarget&cm_cat=COVID-19+Update+2#13&cm_pla=All +Subscribers&cm_ite=extended&cm_Im=1343767647&cm_ainfo=&&&&&. [FN83] . Medicare Shared Savings Program, Skilled Nursing Facility 3-day Rule Waiver Guidance Document (June 2017, Version #3), https:// www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/sharedsavingsprogram/Downloads/SNF-Waiver-Guidance.pdf. [FN84] . 'New Accountable Care Organization Model Opportunity: Medicare ACO Track 1+ Model," Centers for Medicare & Medicaid Services fact sheet (May 2017), https:/Avwww.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/sharedsavingsprogram/Downloads/New- Accountable-Care-Organization-Model-Opportunity-Fact-Sheet. pdf. [FN85] . "CMS Improperly Paid Millions of Dollars for Skilled Nursing Facility Services When the Medicare 3-Day Inpatient Hospital Stay Requirement Was Not Met," U.S. Department of Health and Human Services Office of Inspector General (Audit (A-05-16-00043), Feb. 14, 2019), https://oig.hhs.gov/oas/reports/region5/51600043.asp. [FN86] . Margot Sanger-Katz, "How to Tame Health Care Spending? Look for One-Percent Solutions." The New York Times (Aug. 27, 2018), https:/Avww.nytimes.com/201 8/08/27/upshot/rising-health-care-costs-economists-propose-small-solutions. html. THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -57- [FN87] . Liran Einav, Amy Finkelstein, Neale Mahoney, "Long-Term Care Hospitals: A Case Study in Waste," the National Bureau of Economic Research (Aug. 31, 2018), http:/Awww.nber.org/papers/w24946. [FN88] . Patient Protection and Affordable Care Act, Pub. L. No. 111-148, ? 3022. [FN89] . Centers for Medicare & Medicaid Services, "Shared Savings Program, hittps:/Awww.cms.gov/Medicare/Medicare-Fee-for-Service- Payment/sharedsavingsprogram/index.html. [FN90] . Changes in Postacute Care in the Medicare Shared Savings Program, The JAMA Network (April 2017), http://jamanetwork.com/ journals/jamainternalmedicine/article-abstract/2601418?resultClick=1. [FN91] . Medicare Shared Savings Program, Skilled Nursing Facility 3-day Rule Waiver Guidance Document (June 2017, Version #3), https:// www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/sharedsavingsprogram/Downloads/SNF-Waiver-Guidance.pdf. [FN92] . 'New Accountable Care Organization Model Opportunity: Medicare ACO Track 1+ Model," Centers for Medicare & Medicaid Services fact sheet (May 2017), https:/Awww.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/sharedsavingsprogram/Downloads/New- Accountable-Care-Organization-Model-Opportunity-Fact-Sheet. pdf. [FN93] . David B. Muhlestein, et al., "Medicare Accountable Care Spending Patterns: Shifting Expenditures Associated With Savings," The American Journal of Accountable Care (March 2018), http:/Avww.ajmc.com/journals/ajac/2018/2018-vol6-n1/medicare-accountable- care-spending-patterns-shifting-expenditures-associated-with-savings?p=2. [FN94] . Frontier Community Health Integration Project (FCHIP) Demonstration, CMS fact sheet (Aug. 4, 2016), https:/Avww.cms.gov/ Newsroom/MediaReleaseDatabase/Fact-sheets/2016-Fact-sheets-items/2016-08-04.html. [FN95] . 'Medicare's hospital readmission penalties kick in," McKnight's Long-Term Care News & Assisted Living (Oct. 1, 2012), http:// www.mcknights.com/medicares-hospital-readmission-penalties-kick-in/article/261588/?7DCMP=EMC-MCK_Weekly. [FN96] . 'Loss of independence after surgery for older patients associated with increased risk of hospital readmission," Medical Xpress (July 13, 2016), http://medicalxpress.com/news/2016-07-loss-independence-surgery-older-patients.html. [FN97] . Emily Mongan, "MedPAC mulls bigger role for hospital discharge planners," McKnight's Long-term Care News (Oct. 6, 2017), http:// www.mcknights.com/news/medpac-mulls-bigger-role-for-hospital-discharge-planners/article/697867/. [FN98] . "Shaking up how nursing homes and their clinicians are paid to care for sick residents," Regenstrief Institute (News, Oct. 8, 2018), https:/Avww.regenstrief.org/article/optimistic-nursing-homes-phase-2/. [FN99] . Megan O'Reilly and Andrew Scholnick, "Medicare Beneficiaries Needing Outpatient Therapy Face Higher Costs in 2018," AARP (Jan. 23, 2018), https://blog.aarp.org/2018/01/23/medicare-beneficiaries-needing-outpatient-therapy-face-higher-costs-in-201 8/. [FN100] . Danielle Brown and James M. Berklan, "CMS finalizes therapy pay cuts in 2022 Physician Pay Rule, and extends COVID reporting period," McKnight's Long-Term Care News (Nov. 2, 2021), https:/Awww.mcknights.com/ news/breaking-cms-finalizes-therapy-pay-cuts-in-2022-physician-pay-rule-and-extends-covid-reporting-period/? THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -58- utm_source=newsletter&utm_medium=email&utm_campaign=MLT_Weekly_20211112&hmSubld=GVkrCKLYrEM1&hmEmail=nluxXS2jdOJ0tlG- OxiMnyzlZDo7e_i8h0&email_ hash=4d7f9620032317303f7753d76be9a357 &mpweb=1 326-2295 1-249238. [FN101] . 'Medicare Outpatient Therapy: Implementation of the 2012 Manual Medical Review Process," U.S. Government Accountability Office Report to Congressional Committees (July 2013), http:/Avww.gao.gov/assets/660/655806. pdf. [FN102] . Jimmo v. Sebelius Settlement Agreement Fact Sheet, Centers for Medicare and Medicaid Services, https:/Avww.cms.gov/medicare/ medicare-fee-for-service-payment/SNFPPS/downloads/jimmo-factsheet.pdf. [FN103] . The "Jimmo v. Sebelius Settlement Agreement Fact Sheet" is available at https:/Awww.cms.gov/Medicare/Medicare-Fee-for-Service- Payment/SNFPPS/Downloads/Jimmo-FactSheet. pdf. [FN104] . Tim Mullaney, "Medicare coverage of 'maintenance therapy' determined by need for skilled care, CMS clarifies in Jimmo document," McKnight's Long-Term Care News & Assisted Living (April 16, 2013), http:/Awww.mcknights.com/medicare-coverage-of-maintenance- therapy-determined-by-need-for-skilled-care-cms-clarifies-in-jimmo-document/article/288953/?D CMP=EMC-MCK_Weekly. [FN105] . Kimberly Marselas, "Room for improvement," McKnight's (Aug. 5, 2016), http:/Avww.mcknights.com/news/room-for-improvement/ article/514332/. [FN106] . Jimmo v. Burwell, Case No. 5:11-cv-17 (Vt. D.C. Feb. 1, 2017), https://kaiserhealthnews.files.wordpress.com/201 7/02/reiss-jimmo- decision-020117.pdf. [FN107] . Susan Jaffe, "Judge Accepts Medicare's Plan to Remedy Misunderstanding on Therapy Coverage," Kaiser Health News (Feb. 3, 2017), http://khn.org/news/judge-accepts-medicares-plan-to-remedy-misunderstanding-on-therapy-coverage/. [FN108] . Emily Mongan, "Ultra High therapy billing prompts investigation, CMS says," McKnight's (Mar. 9, 2016), http:/Awww.mcknights.com/ news/ultra-high-therapy-billing-prompts-investigation-cms-says/article/482194/. [FN109] . Medicare Skilled Nursing Facility (SNF) Transparency Date (CY2013), CMS.gov (3/9/2016), https:/Awww.cms.gov/Newsroom/ MediaReleaseDatabase/Fact-sheets/2016-Fact-sheets-items/2016-03-09.html. [FN110] . News release: CMS releases Skilled Nursing Facility utilization and payment data (3/9/2016), https:/Avww.cms.gov/Newsroom/ MediaReleaseDatabase/Press-releases/2016-Press-releases-items/2016-03-09.html. [FN111] . Additional information is available on CMS's website, at http://innovation.cms.gov/initiatives/Bundled-Payments/ and http://tinyurl.com/ b33ycnm. [FN112] . Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, Centers for Medicare & Medicaid Services (81 Fed. Reg. 68688, Oct. 4, 2016). 2016 WL 5687478(F.R.). [FN113] . American Health Care Ass'n v. Burwell, Civ. Action No. 3:16-CV-00233 (N.D. Miss. Nov. 7, 2016) (unreported), https:// cases. justia.com/federal/district-courts/mississippi/msndce/3:2016cv00233/38801/44/0.pdf?ts=1478603752. [FN114] THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -59- . "Jon Blum, Deputy Administrator, Centers For Medicare And Medicaid Services, Holds a News Teleconference on Accountable Care Organizations Related to the Medicare Shared Savings Program," Financial Markets Regulation Wire (Roll Call, Inc., Apr. 10, 2012). 4/10/12 Fin. Markets Reg. Wire 00:00:00. [FN115] . Acomparison of the proposed and final versions of the rule can be found at http:/Avww.cms.gov/ACO/Downloads/Appendix-ACO- Table.pdf. [FN116] . Full text of the proposal is available at: http:/Avww.gpo.gov/fdsys/pkg/FR-2014-07-1 1/pdf/2014-15948. pdf. [FN117] . The letter is available at: http:/Awww.medpac.gov/documents/06162014_ACO_issue_letter_2014_COMMENT.pdf. [FN118] . Josh Seidman et al., "Medicare Accountable Care Organizations Have Increased Federal Spending Contrary to Projections That They Would Produce Net Savings," Avalere (press release, Mar. 29, 2018), http://avalere.com/expertise/managed-care/insights/medicare- accountable-care-organizations-have-increased-federal-spending-con. [FN119] . "Electronic Health Records: HHS Needs to Improve Planning and Evaluation of Its Efforts to Increase Information Exchange in Post- Acute Care Settings," U.S. Government Accountability Office Report to Congressional Requesters (January 2017), http:/Awww.gao.gov/ assets/690/682337 pdf. [FN120} . Emily Swanson, "Poll: Most older Americans want Medicare for long-term care," The Chronicle (June 5, 2017), http:// www.chroniclenewspaper.com/apps/pbcs.dll/article? AID=/201 70605/NEWS01/170609990/0/Thisisap#aragraph/Poll:-Most-older- Americans-want-Medicare-for-long-term-care. [FN121] . Tabbush, Victor, et al., "Person-Centered Care: The Business Case," The SCAN Foundation, June 2016, http:// www.thescanfoundation.org/person-centered-care-todays-health-care-environment-business-case-stronger-ever-issue-brief. [FN122] . ""Genworth's 15th Annual Cost of Care Survey Shows Continuing Rise in Long Term Care Costs," Genworth (Oct. 16, 2018), https:// www.genworth.com/aging-and-you/finances/cost-of-care.html. [FN123] . Conor Griffith, "Aging costs on the rise, survey says," Dominion Post (Morgantown WV), April 20, 2015, 2015 WLNR 11460878. [FN124] . "Long Term Care Insurance Industry Paid $9.2 Billion in Claims in 2017," American Association for Long-Term Care Insurance (Jan. 17, 2018), http:/Avww.aaltci.org/news/long-term-care-insurance-association-news/long-term-care-insurance-industry-paid-9-2-billion-in- claims-in-2017. [FN125] . Leora Friedberg et al., "Long-Term Care: How Big A Risk?, Center for Retirement Research at Boston College (Nov. 2014, No. 14-18), http://crr.bc.edu/briefs/long-term-care-how-big-a-risk/. [FN126] . 2019 National Long-term Care Insurance Price Index, American Association for Long-Term Care Insurance, hitp:/Avww.aaltci.org/ news/wp-content/uploads/2019/01/2019-Price-Index-LTC.pdf. [FN127] . Ray Martin, "The case for buying long-term care insurance," CBS MONEYWATCH, April 9, 2015 available at http:// www.cbsnews.com/news/the-case-for-buying-long-term-care-insurance/. [FN128] THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -60- . 'Long-Term Care Insurance Fact Sheet," American Association of Retired Persons, June 2007, www.aarp.org. [FN129] . U.S. Department of Health and Human Services, Medicaid Commission, "Final Report and Recommendations," Dec. 29, 2006, www.aspe.hhs.gov/medicaid/122906rpt. pdf. [FN130] . 'Long-Term Care Insurance Tax-Deductibility Rules-LTC Tax Rules," American Association for Long-Term Care Insurance, hittp:// www.aaltci.org/long-term-care-insurance/learning-center/tax-for-business.php. [FN131] . "Ten States Selected to Participate in Long-Term Care Partnership Expansion Project," Center for Health Care Strategies, May 14, 2007, www.chcs.org. See aiso Robert Wood Johnson Foundation, "Long-Term Care Partnership Expansion: A New Opportunity for States," May 2007, www.rwijf.org. [FN132] . U.S. Government Accountability Office, "Long-Term Care Insurance: Partnership Programs Include Benefits That Protect Policyholders and Are Unlikely to Result in Medicaid Savings," Report GAO-07-231, May 2007, www.gao.gov. [FN133] . Planning for health care costs in retirement, Vanguard Research (June 2018), https://pressroom.vanguard.com/nonindexed/Research- Planning-for-healthcare-costs-in-retirement_061918.pdf. [FN134] . Mark Hulbert, "New ways to pay for long-term care could help seniors-and their heirs," MarketWatch (Oct. 5, 2018), https:// www.marketwatch.com/story/new-solutions-for-financing-long-term-care-could-help-seniors-and-their-heirs-2018-10-05. [FN135] . Jamie Hopkins, "Annuities Offer Long-Term Care Funding Flexibility," Forbes (Oct. 1, 2019), https:/Avww.forbes.com/sites/ jamiehopkins/2017/10/17/annuities-offer-long-term-care-funding-flexibility/438e902b82529. [FN136] . "VA HEALTH CARE: Actions Needed to Address Higher-Than-Expected Demand for the Family Caregiver Program," U.S. Government Accountability Office (GAO-14-675, Sept. 18, 2014), www.gao.gov/products/GAO-14-675. [FN137] . 'Affordable Care Act designates $52 million to help disabled, veterans avoid nursing homes," McKnight's Long Term Care News & Assisted Living (June 1, 2012), http:/Awww.mcknights.com/affordable-care-act-designates-52-million-to-help-disabled-veterans-avoid- nursing-homes/article/243641/?7DCMP=EMC-MCK_Weekly. Additional information is available at http:/Awww.medicaid.gov/Medicaid- CHIP-Program-Information/By-Topics/Long-Term-Services-and-Support/Balancing/Balancing-Incentive-Program.html. [FN138] . Matt Volz, "VA seeks to funnel more nursing home money to rural areas," The Washington Post (Aug. 21, 2017), https:/Avww.washingtonpost.com/national/health-science/va-seeks-to-funnel-more-nursing-home-money-to-rural- areas/2017/08/21/733ae44c-86c0-11e7-96a7-d178cf3524eb_story.html?utm_term=.18106b62a31b. [FN139] . Donovan Slack, USA TODAY, and Andrea Estes, The Boston Globe, "Secret VA nursing home ratings hide poor quality care from the public," USA TODAY (June 17, 2018), https:/Avww.usatoday.com/story/news/politics/2018/06/1 7/secret-va-nursing-home-ratings-hide- poor-quality-care/674829002/. [FN140] . Andrea Estes and Donovan Slack, "Congress launches investigation of alleged poor care at VA nursing homes," The Boston Globe (July 17, 2018), https:/Avww. bostonglobe.com/metro/201 8/07/17/congress-launches-investigation-alleged-poor-care-nursing-homes/ KJdSUCNG5GPYsDAFwLPXsM/story.html. [FN141] THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -61- . Maura Ewing, "When Prisons Need to Be More Like Nursing Homes," The Marshall Project (Aug. 27, 2015), https:// www.themarshallproject.org/2015/08/27/when-prisons-need-to-be-more-like-nursing-homes#.BCn6gEpHV. [FN142] . "For Aging Inmates, Care Outside Prison Walls," PEW Charitable Trusts (Aug. 12, 2014), http:/Avww.pewtrusts.org/en/research-and- analysis/blogs/stateline/201 4/08/1 2/for-aging-inmates-care-outside-prison-walls. [FN143] . Adam Wisnieski, "Model' Nursing Home for Paroled Inmates To Get Federal Funds," Connecticut Health I-Team (April 25, 2017), http://c-hit.org/2017/04/25/model-nursing-home-for-paroled-inmates-to-get-federal-funds/. Produced by Thomson Reuters Accelus Regulatory Intelligence 24-Jan-2022 THOMSON REUTERS © 2022 Thomson Reuters. No claim to original U.S. Government Works. -62-