In signing Medicare into law in 1965, President Lyndon Johnson stated: “There are those, alone in suffering, who will now hear the sound of some approaching footsteps coming to help.”  Yet today it’s entirely possible those approaching footsteps belong to an insurance company coming to take Medicare advantage of a suffering person. 

A June 2022 report from a federal inspector general analyzed 12,273 prior authorization denials by MA insurers – a small sampling compared to denials overall – and found an estimated 13% met Medicare coverage rules that “likely would have been approved for these beneficiaries under original Medicare[.]” 

The nickel-and-diming found can operate at the smallest level of cruelty, even denying “a request for a walker (estimated cost $112) for a 76-year-old beneficiary with post-polio syndrome.”  To put that $112 walker into perspective, the biggest MA insurer has a market capitalization of almost $500 billion.    

Unlike FFS, prior authorization is required for almost everything by MA plans, including the nursing home care that would otherwise be a post-hospitalization entitlement.  Algorithms, not your doctor, makes care decisions for you.  Indeed, AARP’s pet insurer, UnitedHealth Group, has used its algorithm to cruelly deny rehabilitation care according to a recent STAT investigation, even as reporting reveals AARP gleefully encourages suing nursing homes.

The Centers for Medicare & Medicaid Services has been notoriously laissez-faire when it comes to Medicare Advantage, likely due to the revolving door between CMS and the insurance industry.  This symbiotic relationship was most egregiously manifested when Marilyn Tavenner went straight from running CMS, where she had implemented the Affordable Care Act in ways favorable to the insurance industry, to running America’s Health Insurance Plans.

And MA beneficiaries are unlikely to see President Biden speak out on their behalf with the vigor that he expends in attacking nursing home care.  For 2020, records show candidate Biden received nearly three times as many contributions from health maintenance organizations as did President Trump.

Assuming you can access care through a MA plan, chiseling extends to your care providers.  In no case will MA pay as much as FFS, even though the Medicare Payment Advisory Commission’s annual report found that in 2020 “nonprofit plans reported a margin of 4.6%; for-profit entities reported a pre-tax margin of 6.9%” – margins that compare quite favorably to that same report’s finding that for nursing homes in 2020 “total margins would have been about – 1.8%” without one-time COVID-19 assistance.

In a survey, half of responding New Hampshire nursing homes reported being reimbursed by MA plans less than 79% of what FFS would pay, and most described MA claim denials as a “very significant” problem.  The administrative burden of trying to get lesser reimbursement is oppressive, unlike FFS.  Amidst a workforce crisis, 40% of the responding nursing homes report spending 6 or more hours on each MA enrollee jumping through prior authorization hoops and other hurdles.  As one member of mine noted, “one of the biggest issues with MA is the lower length of stay. They don’t allow us to actually provide the appropriate care and instead push us to discharge before they are ready.”

It is not just nursing home providers, or those needing nursing home care, feeling the pain.  A recent NBC News story was headlined “‘Deny, deny, deny’: By rejecting claims, Medicare Advantage plans threaten rural hospitals and patients, say CEOs.” 

And insurers can deny claims with impunity.  As a former state insurance regulator, I can attest to how fines imposed on carriers providing everyday health insurance are just part of their cost of doing business.  What’s the deterrent value of, say, a half-million-dollar fine when your company is worth a half-trillion-dollars?

During the 2009 debate over health care reform, then-Sen. Jay Rockefeller (D.-W.V.) said of insurance companies: “They’re getting away with banditry. They revel in it.”  The only thing that has changed since is that taxpayers are willingly handing over the loot.

Brendan Williams is the president and CEO of the New Hampshire Health Care Association.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

There was a certain poignancy to last month’s annual scholarship dinner, because nine of the scholarship recipients were nursing assistants studying to become licensed practical nurses (LPNs) – a profession that doesn’t matter to the Biden Administration in its proposed staffing mandate rule for nursing homes.

I’m clueless as to why these caregiving heroes are irrelevant to the Administration.  Federal data shows that in 2022 there were 700 LPNs working in New Hampshire nursing homes, making an average of $31.72 an hour, versus 470 registered nurses.  It’s an honorable, good-paying profession.  And if McKinsey & Associates is right in having estimated that by 2025 “the United States may have a gap of between 200,000 to 450,000 nurses available for direct patient care” wouldn’t we want to value every nurse currently providing bedside care? 

Juxtapose this attempted regulatory erasure of LPNs with U.S. Health and Human Services Secretary Xavier Beccera’s nonsensical grandstanding in a Facebook event: “If you’re going to be a nursing home you better have a nurse in your employment.”  Just transcribing that statement made me dumber.   

Another of our scholarship recipients that wouldn’t matter to the Biden Administration has worked at the same rural nursing home for 42 years in a variety of roles, including nursing assistant, and is now its maintenance director.  He began work at the facility when his grandmother was a resident, as he wanted her to have family close to her.  But because he’s not working as a nursing assistant or a registered nurse (RNs) his love for, and dedication to, long-term care would be immaterial to the proposed mandate.

Instead, that same facility, in a town of 3,218 that is the second biggest in its sprawling rural county, will have to find more registered nurses and nursing assistants.  Good luck with that.

Surely continuity, and quality, of care matters as much as the quantity of caregivers.  In fact, that was the finding of a Journal of the American Medical Association study synopsis reported Oct. 9.  I bought the article to dig deeper.  The findings may seem obvious to all but the more-bodies-equals-better-care crowd at the Centers for Medicare & Medicaid Services (CMS): “High rates of staff turnover may reduce care quality by disrupting continuity of care; inhibiting the formation of relationships between residents and staff, which are important to the delivery of person-centered care; and limiting the acquisition of skills and institutional knowledge through on-the-job experience.” 

Thus, retaining staff, and to me that goes beyond just direct care, is as important as adding to it.  And if retaining staff is an important goal, we might ask how that goal could possibly be achieved if a mandate piles an unfunded annual cost of between $4.06 billion (the CMS estimate) to $6.8 billion (the CliftonLarsonAllen LLP estimate) upon nursing homes. 

The CMS bean-counters are only counting beans, not quality or tenure.  No New Hampshire facility not currently meeting the proposed staffing ratios has reported it would be able to hire the staff to do so.  Instead, the minority of facilities that would not simply deny admissions to improve their staffing ratios would be forced to use nurse staffing agencies, which could only demoralize their existing caregivers and, perhaps, inspire them to jump ship to agencies.  How would this Staffing Agency Enrichment Rule – to call it what it truly is – serve “continuity of care” or assist “the formation of relationships between residents and staff”?

What more empirical evidence do we need to prove this proposed mandate is an utter fraud masquerading as a fix? 

Brendan Williams is the president & CEO of the New Hampshire Health Care Association.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

This came after publicity over the agency’s own study finding no “clear evidence basis for setting a minimum staffing level” and acknowledging that “nursing homes are currently very challenged in hiring and retaining direct care workers, because of workforce shortages and competition from higher-paying agency positions.”

In 2016, CMS, under the Obama Administration, acknowledged in a 184-page rule that mandating staff ratios would have the effect of “stifling innovation, and would not result in the improved quality and person-centered care that we seek in facilities.”  It warned, presciently, with respect to a suggested 24/7 registered nurse requirement, that “geographic disparity in supply could make such a mandate particularly challenging in some rural and underserved areas.” It stated it did “not agree that a ‘one size fits all’ approach is best.”

Yet, seven years later, the Biden Administration is embracing that approach and also requiring 24/7 RN staffing despite the well-documented shortage of RNs that has greatly worsened since 2016 due to retirements and the pandemic.  Laughably, the administration boasts of the $75 million it would provide “to make it easier for individuals to enter careers in nursing homes[.]”  This from an administration that, under one analysis, is letting its pet Medicare Advantage insurers overbill this year by $75 billion. 

In a grotesquely demagogic USA Today op-ed, President Biden declared “we’re delivering a clear message to the nursing home industry: no more padding profits on the backs of residents and nurses” and impliedly blamed the sector for the fact that “more than 200,000 nursing home residents and workers died from COVID-19” – ignoring, yet again, the empirical finding that “older Medicaid HCBS recipients (ages sixty-five and older)” had a worse excess mortality rate. 

This recurring blame game comes from a president who lavishly praised New York Governor Andrew Cuomo for “a helluva job” after his resignation, despite the well-documented tragedy of Cuomo having forced nursing homes to admit those positive for COVID-19 and then concealing the consequences.  In contrast, Biden couldn’t spare a single positive word about providers in his USA Today diatribe. 

After the prior administration many took hope in Biden’s promise that his administration would place its faith in science.  He stated: “Science is discovery. It’s not fiction.”  So why is this major policy change – to be achieved by administrative fiat and not congressional action – based on fiction?  Why is it so nakedly political, and not empirical?

A nonprofit Catholic nursing home near my home was forced to spend $1.4 million last year on staffing agencies, which Biden refuses to crack down on despite a request from almost 200 House members.  Would he have us believe this facility is “padding profits”?   How about two county-owned New Hampshire facilities which, even while incurring budget-busting staffing agency costs, have wait lists of over 100 prospective residents apiece?  One, with a wait list of 134, informed me that to meet the Biden mandate – even while keeping 50 of 150 beds offline – it would need to hire 30 full-time nursing assistants so as not to use an agency.  Whether facilities are for-profit or nonprofit, access to care is already imperiled and workers are impossible to find.

After news of the mandate broke on Sept. 1, I conducted a quick survey of New Hampshire nursing homes, with half responding.  To meet the mandate, 53% would restrict admissions, despite the nation’s second-oldest population, while 39% would use staffing agencies.  The rest would simply close.  Thus, it’s perverse that in the best-case scenario the Biden proposal would, in the name of “quality,” either deny care access or further enrich staffing agencies (and put more strangers by the bedside).  In no way is the permanent direct care workforce expanded.

The Biden proposal is a regulatory Death Star aimed at nursing homes that is fatally undermined by its bad engineering.  Let’s hope the resistance blows it up.

Brendan Williams is the president & CEO of the New Hampshire Health Care Association.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

A net gain of $1.4 billion for a sector comprised of over 15,000 nursing homes somewhat pales in comparison to a looming CMS staffing mandate estimated to cost nursing homes $11.3 billion a year.

The coming federal fiscal year will also be the second, and final, year of a “parity adjustment” intended to claw-back inadvertent overpayments under the Patient Driven Payment Model (PDPM) methodology.  As was explained in last year’s payment rule, CMS, mercifully, spread out the parity adjustment, “taking a more cautious approach in order to mitigate the potential negative impacts on providers, such as the potential for facility closures or disproportionate impacts on rural and small facilities.”

That this adjustment has been made is consistent with the fact that the transition to PDPM was “not intended to result in an increase or decrease in the aggregate amount of Medicare Part A payment to SNFs.” 

While I do not suggest this budget neutrality intent be ignored, the zeal with which CMS has pursued nursing home overpayments is in marked contrast to its laissez-faire attitude elsewhere.

Specifically, a June analysis by University of Southern California researchers estimated overpayments to Medicare Advantage insurers may be “$75 billion or more” in 2023 alone, which is almost three times higher than the apocalyptic figure that had been estimated ($27 billion) by the Medicare Payment Advisory Commission. Taxpayer subsidization of Medicare Advantage has started to look less like a rational payment program and more like the 1978 Lufthansa Heist.  Last February, the federal government even admitted in a rule that it was forfeiting claim to an estimated “$2 billion in improper payments” to insurers from 2011-17.

By itself, that generous gift easily exceeds the net Medicare gain nursing homes will see in the coming federal fiscal year.  The juxtaposition also makes jarring the CMS rejection in this year’s nursing home payment rule of the suggestion from “[a] few commenters . . . that the PDPM parity adjustment be delayed, reduced, cancelled or be phased in over an additional 2 years” to ease the burden upon providers besieged by costs.  

Not content to chisel only taxpayers, Medicare Advantage gluttony is also occurring at the expense of beneficiaries in nursing homes and their providers alike.  Marc Zimmet, president of Zimmet Healthcare Services Group, has created a dynamic “debt clock” calculating the losses from Medicare Advantage across the skilled nursing sector and broken out to the average facility.  This year’s aggregate loss will easily exceed the cost of the $11.3 billion staffing mandate scenario.    

Indeed, the day may come when the annual, much-anticipated Medicare payment rule – the product of so much concern and input by providers and their advocates – is largely irrelevant.  After all, it speaks to fee-for-service payments at a time when most Medicare beneficiaries will soon be in managed care. 

Even New York City tried to dump a quarter-million municipal retirees and their dependents into Medicare Advantage to save the city $600 million a year – an effort that has, to date, been blocked by a judge’s ruling.  Zimmet had estimated this single change alone could cost nursing homes $100 million annually.

As I write this, the prospective CMS staffing mandate is still abstract.  However, the pain inflicted upon the skilled nursing sector by Medicare Advantage is quantifiable, unchecked, and will only grow.

Brendan Williams is the president & CEO of the New Hampshire Health Care Association.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

This is yet another fact that runs contrary to what has been conventional wisdom, as reflected by wild rhetoric from the Biden Administration, which, in an infamous “Fact Sheet” dated October 21, 2022, opened: “For far too long, nursing home residents have been victims of an industry with little accountability to keep American seniors safe and protected.  COVID-19 has laid bare the challenges in America’s nursing homes, with over 200,000 residents and staff dying from COVID-19.”

Victims, really?  An overlooked study, based on a vast amount of data, reported this January in Health Affairs assessed COVID-19 mortality in home and community-based settings (HCBS), and stated: “As a proportion of expected mortality, excess mortality rates for older recipients and nursing home residents were comparable.” 

In fact, digging into the paywalled study (yes, I’m that kind of nerd), one finds that the excess mortality rate for “older Medicaid HCBS recipients (ages sixty-five and older)” was slightly greater than “among nursing home residents in the same age group (+31 percent versus +28 percent, respectively).”  As the authors noted, reporting was required early in the pandemic on nursing home mortality – which “garnered media attention, and helped inform critical policy discussions and responses. Unfortunately, similar reporting was not required for people receiving Medicaid HCBS.”

In the opinion of the authors, this is a serious oversight, as they point out that, as of 2019 data, the portion of those receiving Medicaid long-term care nationally “in nursing homes and other institutions” was only around 21% the size of the Medicaid HCBS population.

I do not share all this information to pillory home care.  My wife works in the sector, and my two nephews with disabilities benefitted from in-home care.  I will leave demagogic generalizations to the Biden Administration and others with some ax to grind for political gain (though, looking at the polling, that gain is indiscernible).  Instead, these studies reveal the truth that, in the face of an unprecedented virus, a beleaguered care sector did the best it could to protect care recipients, performing that vital duty as well, if not better, than another.  So why is just one sector being attacked by federal policymakers?

In New Hampshire, we enjoyed an unprecedented success this past legislative session in obtaining a major investment in Medicaid long-term care funding this biennium.  However, we achieved this by working in partnership with the home care sector.  In fact, I called attention in newspaper op-eds to the needs of home care, noting two major providers were threatening to leave the Medicaid program unless funding significantly improved – an exit strategy that, obviously, does not exist for nursing homes.

Where some might see competition, I see interdependence.  As I wrote in one op-ed, “If we think of services for those in greatest medical need as a three-legged stool — home and community-based services (HCBS), nursing home care, and hospital care — two of the legs are so wobbly as to cause the third to collapse too.”  And our hospitals answered the call, agreeing to forego their own Medicaid increases so that the HCBS and nursing home care settings could receive more.

This funding influx could be the bridge that takes us from an excruciatingly difficult time to what we hope will be improved circumstances, yet New Hampshire’s success born of collaboration is in jeopardy if the Biden Administration, based on an objectively false narrative, singles out nursing home care for a crushing new regulatory burden.  And, if that happens, home care and hospitals will suffer too.

Brendan Williams is the president & CEO of the New Hampshire Health Care Association.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

I must be talking about nursing homes, right?  After all, the ownership of nursing homes appears to be the Biden administration’s number one healthcare obsession.

But I’m not. For one thing, regardless of its ownership, a nursing home can’t jack up prices because its prices are fixed by government payments, largely Medicaid. Instead, I am talking about private equity reportedly buying healthcare staffing agencies or, as was detailed in a thorough recent Washington Post investigation, monopolizing anesthesiology practices.

The Post investigation was revealing, reporting on “private-equity funds acquiring hundreds of physician practices across America and, according to multiple academic studies, raising prices while returning billions to investors.”

Where is the administration’s outcry over this development? Instead of acting, its Federal Trade Commission is slumbering. It may be that to acknowledge the incentives toward anti-competitive consolidation unleashed by the Affordable Care Act would be to admit that the ACA falls somewhere short of perfection. In fact, according to Bureau of Labor Statistics’ data, the inflation rate for medical care in the last half of 2022 was twice as high as it was in the last half of 2013, the first year the ACA was fully operational. It was only because the Inflation Reduction Act dumped an extra $20.9 billion into health insurers’ pockets for 2022 alone that ACA marketplace health insurance premiums didn’t skyrocket. 

This assistance was cunningly extended through the 2024 presidential election with another barrowful of $20.9 billion, after which the boom can be lowered. It still did not prevent individual market rate increases of as high as 16% from being approved in Washington, considered a progressive state for healthcare.

Because the sentimental part of me still yearns for an idealistic view of government, a favorite movie is “The American President.” In that movie, the fictional president Andy Shephard, played by Michael Douglas, discusses his adversary, Sen. Bob Rumson, played by Richard Dreyfus, and says: “We have serious problems to solve, and we need serious people to solve them. And whatever your particular problem is, I promise you, Bob Rumson is not the least bit interested in solving it. He is interested in two things and two things only: making you afraid of it and telling you who’s to blame for it.”

That blame game, singularly aimed at nursing home care, has been abundantly on display during the Biden administration, but it, too obscures serious problems in the entire healthcare system. I am by no means suggesting that nursing homes owned by private equity are beyond reproach, but they cannot be painted with a broad brush, any more than the massive settlements paid out in progressive states like Massachusetts or New Jersey somehow define state-run nursing home care.

In fact, if the Biden administration is so concerned about private equity investors acquiring nursing homes, it could mitigate that possibility by not rubber-stamping Medicaid State Plan Amendments that objectively fail to pay care costs — leaving only deeper pockets with a tolerance for risk, and ability to ride things out until a hoped-for brighter future, able to sustain nursing home operations.

It would also not impose an unfunded staffing mandate that would be yet another crippling blow for a sector looking to rebuild its workforce, and potentially force sales of even more facilities that cannot weather any more financial pain — pain that would, ironically, further force them into the cruel embrace of staffing agencies owned by private equity.

To paraphrase President Biden’s fictional counterpart, we have serious problems in healthcare.  But to fixate on bludgeoning nursing home care is to ignore them.

Brendan Williams is the president & CEO of the New Hampshire Health Care Association.

It was a 5-4 decision based on dubious reasoning, as two leading health law professors wrote in Health Affairs: “In his opinion for the Court, Justice Scalia reached the astonishing conclusion that Congress had ‘implicitly’ precluded access to the courts, an approach to the question of when Congress bars judicial review that has virtually no precedent.”        

Indeed, former officials with the U.S. Department of Health and Human Services had submitted a brief in which they argued that:

“Not only has HHS historically understood and accepted that the Medicaid Act is privately enforceable, it has come to rely on that fact. Every aspect of the Department’s administration of the Medicaid program — from its regulations to its annual budget — is premised on the understanding that private parties will shoulder much of the enforcement burden.”

Fast forward to 2023. In the face of an unprecedented pandemic, Medicaid long-term care providers are on the ropes, with nursing homes severely beset. Yet, providers have no right of access to federal courts to seek redress for being objectively underfunded by state governments.

This makes it all the more jarring that in Health and Hospital Corp. v. Talevski seven members of the U.S. Supreme Court just declared private parties may sue publicly-owned nursing homes under the Federal Nursing Home Reform Act (FNHRA). This ruling came despite the Biden Administration arguing “administrative enforcement mechanisms appropriately protect the rights the statute confers” and that damage awards “paid to a particular resident” would be “in conflict with Congress’s judgment in FNHRA that monetary penalties collected from noncompliant facilities should be used to benefit residents generally.”

The Indiana facility in the Talevski case was county-run, and here in New Hampshire, each county also operates its own nursing homes, which, like private facilities, suffer the effects of state Medicaid underfunding. Some have wait lists of over 100 prospective residents because they cannot find staff within Medicaid means. So now, these taxpayer-owned facilities can face both civil monetary penalties (and other sanctions) and damages from private suits? Talk about double jeopardy! 

Indiana and 16 other states had, in their brief, relied on Armstrong, and argued, “government enforcement actions represent policy assessments of their own by politically accountable actors. Private enforcement actions have no such built-in accountability limits.” 

Yet, in their own amicus brief, leading Democratic members of Congress essentially argued the position rejected in Armstrong: “Congress and the states depend on private enforcement of rights encapsulated in these statutes to protect vulnerable individuals and groups. Limiting Congress’ ability to establish such private-enforcement mechanisms will leave federal-state programs with modest oversight.” 

To the credit of these members of Congress, they were at least consistent, having offered fundamentally the same argument before the Court in Armstrong, a precedent very conspicuously omitted in their Talevski brief. And I completely agreed with that position in Armstrong. 

Yet, with the private right-of-action ship having been sunk in Armstrong, I’m dumbfounded as to how it is so incongruously set afloat in Talevski. 

In a brief relying on cherry-picked anecdotes — anecdotes in no way focused on government-run facilities — AARP argued for private litigation “against government-run facilities” by asserting “inadequacy of government oversight of nursing facilities” — which is rich considering the “inadequacy of government oversight of” the Medicare Advantage plan AARP peddles. 

Yet if, in fact, there are deficiencies in government oversight, and I do not question there can be, then government must correct them, rather than society relying on a scattershot approach of private lawsuits — perhaps taking years to finally resolve, given appeals, with uncertain outcomes — to systemically redress any failures. 

Instead, the mind reels at the paradox the Court birthed: No private remedy exists for the government’s knowing neglect of nursing home care writ large, but now you can sue individual government nursing homes. What’s next?

Brendan Williams is the president and CEO of the New Hampshire Health Care Association and author of “The Enemy Within: Medicare Advantage and The Future of U.S. Healthcare” in the Quinnipiac Health Law Journal.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

To quickly enumerate: a lack of Medicaid support in most states; a workforce shortage fueled by “Great Resignation” effects of the COVID-19 pandemic; the decades-long congressional impasse over immigration, and the lowest jobless rate in over a half-century; an imminent federal staffing mandate that ignores the foregoing dynamics; and, finally, inflation, which remains high despite several Federal Reserve interest rate hikes intended to curb it.

Yet a sleeper threat hides in plain sight. It is Medicare Advantage (MA), which soon will pass a tipping point where it eclipses fee-for-service (FFS) Medicare in enrollment. Through overpayments, the federal government has effectively created unbeatable competition to the FFS model, which President Lyndon Johnson signed into existence in 1965. But at what cost to consumers and providers? 

As the New York Times reported last spring, “every year, tens of thousands of people enrolled in private Medicare Advantage plans are denied necessary care that should be covered under the program, federal investigators concluded in a report[.]” 

During the August 2021 surge of the COVID-19 Delta variant, the American Medical Rehabilitation Providers Association alleged MA plans used prior authorization to deny over half of admissions to inpatient rehabilitation facilities. For those beneficiaries, the plans deign to provide coverage for “risk-score gaming” to make them seem sicker, and boost payments, is, in the opinion of experts, a key strategy.

The federal government, by its own admission, recently surrendered claim to an estimated “$2 billion in improper payments” to MA insurers, though it’s going after every nickel in unintentional overpayments to nursing homes from the transition to the Patient Driven Payment Model. 

As a former insurance regulator, I find this unsurprising. Look at the revolving door between the Centers for Medicare & Medicaid Services and the health insurance industry. Like so many state insurance regulators I knew, the dream is to monetize your regulatory experience, and being too heavy-handed a regulator will not endear you to prospective employers.

Thus, in the face of a powerful insurance lobby, who will stick up for MA beneficiaries and those providing their care? It is easier to identify who will not.

AARP, the marketing juggernaut and self-styled voice for seniors, pushed the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, which rebranded the Medicare Part C plans in effect since the 1997 Balanced Budget Act as “Medicare Advantage” – an advantage lost on the late Senator Ted Kennedy, who was reported complaining, presciently, that “Congress would provide lavish subsidies to private health plans, giving them an unfair advantage in competition with the government-run Medicare program.” In 2007, AARP entered a deal with the UnitedHealthcareGroup to promote its insurance products.

While nursing home providers are begrudged making any money, with perhaps only break-even solvency acceptable to many policymakers, it’s fine for health insurance executives to make fantastical sums of money – even though, as fiscal intermediaries, they provide no actual healthcare. 

Thus, the CEO of UnitedHealthGroup reportedly earned over $20 million in 2022, a robust 13% pay raise from the prior year, and the company itself reported a 15% increase in year-over-year revenue in its first quarter report this year. 

Such figures compare favorably to an all-payer margin for nursing home care that would have been -1.5% in 2021, without pandemic-related funds, according to the March report of the Medicare Payment Advisory Commission known as MedPAC (even with one-time assistance, MedPAC found “40 percent of SNFs had negative total margins” in 2021). 

In that report, MedPAC acknowledged “chronically low payments from Medicaid” and, in a familiar annual complaint, stated that “Medicare payments to SNFs, financed by taxpayer contributions to the Part A Trust Fund, subsidize payments from other payers, most notably Medicaid.” However, the report cited one survey finding that “Medicare’s FFS per day payments were 25% higher than MA rates” concluding that “[t]he payment differential between MA and FFS SNF rates indicates that facilities accept lower payments to treat MA enrollees who are not much different from FFS beneficiaries.”

That is a dangerous conclusion. The fact that providers squeezed by insurers “accept” lower payments speaks to a lack of choice, not volition. And if MA becomes the only game in town, as it’s on track to becoming, the cross-subsidization cushion MedPAC complains of will evaporate, and providers will be chiseled into bankruptcy by an industry whose familiar tactics are to delay, and deny, claims, and assume any risk of meager regulatory fines as the price of business. 

Brendan Williams is the president and CEO of the New Hampshire Health Care Association and author of “The Enemy Within: Medicare Advantage and The Future of U.S. Healthcare” in the Quinnipiac Health Law Journal.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Talk of a staffing mandate is so out of touch with such realities as to seem farcical. A December 2022 state-commissioned study in Montana, where 12 facilities closed last year, a shocking one-fifth of all facilities, found nursing homes need a 34% Medicaid rate increase, an unlikely outcome in the conservative legislature. 

To their credit, both of Montana’s U.S. senators were among a bipartisan group of 13 who sent a January letter to the Centers for Medicare & Medicaid Services noting that “sweeping staffing mandates do not account for individual facilities’ operational capabilities and local workforce conditions.”

Our priorities are askew.

The federal government recently made it clear it will act as guarantor for bank deposits of any amount from tech moguls and cryptocurrency speculators, no matter how risky the bank is. Airlines got a $54 billion bailout during the COVID-19 pandemic, and how is that working out for passengers? 

In contrast, the targeted provider relief for nursing homes gave them a measure of operational freedom for an initial $4.8 billion split among 12,806 facilities on a per-bed basis, while $4.6 billion in other relief was highly conditional and at least partly, if not entirely, inaccessible for many facilities.

Compare that parsimony to the largesse lavished upon the Medicare Advantage insurers that are hollowing out the half-century-old program like weevils in a grain silo. They were recently forgiven even the overpayments they received from 2011 to 2017, prompting Kaiser Health News to proclaim: “Government Lets Health Plans That Ripped Off Medicare Keep the Money.” In its benevolence, the federal government estimated it was forfeiting “the collection of approximately $2 billion in improper payments[.]”

But what’s $2 billion among friends?

To the list of the federal government’s most favored entities, we must now add nurse staffing agencies. After all, fifteen months ago, a bipartisan group of almost 200 House members asked the Biden Administration to investigate the price-gouging, anti-consumer practices of these agencies, to no avail. 

The ideological breadth of those seeking action was impressive, from liberal Democrats to Freedom Caucus members. Two of the very conservative Republicans are now U.S. senators, Ted Budd in North Carolina and Markwayne Mullin in Oklahoma. These legislators of divergent views on other issues all united in recognizing that the “free market” is being subverted by staffing agencies.  

In New Hampshire, facilities offering high wages still must use agencies. One county-run facility, for example, is paying nursing assistants $17 to $24.61 an hour, with up to an $8,000 signing bonus, and yet cannot find enough staff. Another county-run facility that pays its nursing assistants up to $24.83 an hour has a waitlist of 138 residents because of its workforce shortage. It has paid as much as $89 an hour for an agency nursing assistant. And it’s worth noting that it’s not just nursing staff recruitment and retention that is an issue – the facility just lost a dietary aid making $13 an hour to a distribution warehouse paying $21. How can you compete in an overheated labor market within Medicaid means?

We have a bill pending in the legislature to simply require registration of nurse staffing agencies and forbid some specific bad practices – like double-booking the same worker and forcing a bidding war – and it has drawn reasonable questions from legislators. One, for example, was why facilities don’t negotiate better contracts with agencies. What such a question fails to apprehend, however, is the enormous imbalance of power between a provider and an agency, which agencies leverage to their advantage. These are take-it-or-leave-it contracts of adhesion, not agreements negotiated between equal parties. It is a marketplace of desperation.   

We cannot find workers. If even government-run facilities, including veterans’ homes, cannot staff without the use of agencies, why would the federal government, through a staffing mandate, further force facilities into the unloving embrace of pirates? If it does, it must at least be honest that further fueling the grotesque profitability of staffing agencies was its aim, not the betterment of nursing home care.

Brendan Williams is the president and CEO of the New Hampshire Health Care Association.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Surely, you might think, this has prompted a federal response.  After all, the federal government, through the Centers for Medicare & Medicaid Services, approves Medicaid State Plan Amendments.  The federal government is currently footing 69.33% of Medicaid costs in Iowa until the enhanced Federal Medical Assistance Percentage (adding an extra 6.2%) dating to the Families First Coronavirus Response Act of 2020 is phased out.  So, whether Medicaid funding covers care costs for Iowa’s most vulnerable citizens should be of some federal interest.

It isn’t.  Instead, the federal government has chosen to bail out Silicon Valley Bank, and another institution, Signature Bank, upon whose board sat former US Rep. Barney Frank.  Both banks were objectively risky, whether relying on a shaky tech sector or taking in considerable cryptocurrency deposits (reportedly $3.3 billion from one company alone in Silicon).  Yet, unlike, say, your sagging 401(k), the feds are rescuing all of these banks’ customers with deposits more than the $250,000 government insures. 

As Andrew Ross Sorkin, a masterful chronicler of the “Great Recession” precipitated by financial institutions in 2008, wrote in the New York Times: “Banking is now officially a government-backed business, if it wasn’t before.  Let’s admit it: Once the government guarantees all deposits, the ‘business’ of banking isn’t much of a business[.]”  Sorkin also noted that “[t]he venture capital community, a group that includes a vocal group of libertarians, was just bailed out.”  In other words, government-haters begged for a government rescue and got it.

As for the Iowa residents and staff displaced by nursing home closures?  Well, “Qu’ils mangent de la brioche!”  Shame on them for not being politically powerful!

In New Hampshire, we have not yet seen the closures tragically afflicting Iowa and other states.  Instead, we see atrophy, bed by unavailable bed, unit by offline unit, wing by closed wing.  We have, according to February AARP data, the nation’s fourth-worst nursing home staffing shortage, and it is shutting the doors to those in need. 

Simply to not turn away veterans our state Veterans Home needed a $7.6 million contract with a California staffing agency, because starting nursing assistants out at no less than $29,536 a year, with government benefits, evidently just wasn’t cutting it.  Last I checked, a county-owned home had a wait list of 135 prospective residents.  I have a member nonprofit facility that exclusively serves nuns, all poor as you can imagine, forced to pay a staffing agency $43 an hour for the services of a nursing assistant (a relative bargain, given what some are forced to pay), remitting checks to Texas.  In one rural county alone, the average staffing agency utilization cost went from 71 cents a resident day in 2019 to $14.57 in 2021, an increase of over 2,000 percent.

And what might the federal response be to this crisis?  A bailout?  Or, given that a state like Iowa ignores one-fifth of care costs in its Medicaid parsimony, perhaps simply requiring states to pay such costs, which CMS is empowered to do?  Don’t be silly.  The response will be a new pile of unfunded expectations creating even greater reliance on staffing agencies.  Because, you see, to be a politically connected financial institution means never facing real accountability (just one banker went to jail after 2008), while to be a nursing home provider, with government willfully underpaying you to care for the poor, is to be blamed for everything wrong with the world.

Brendan Williams is the president and CEO of the New Hampshire Health Care Association.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.