The cut included in the 2024 Physician pay rule, which was finalized by the Centers for Medicare & Medicaid Services in November, affects doctors working in nursing homes and other long-term care settings, as well as pay for therapists and other ancillary services. 

In the last few years, Congress has moved to offset similar reductions, which don’t necessarily reflect true costs of physician services but are required if CMS decides to put a greater share of its funding toward other types of care.

The ongoing regular reductions to reimbursement are “an existential threat” to the long-term care sector’s therapists and other providers who bill Medicare Part B, said Cynthia Morton, executive vice president of advocacy group ADVION, earlier this year.

Congress included a 3% offset to conversion factor cuts for 2023 and planned another 1.25% offset for 2024 in the 2023 Consolidated Appropriations Act. But bills that would help make that 2024 change more significant have not moved forward yet this session. 

Morton told McKnight’s Long-Term Care News that the next best opportunity for a fix is  ahead of the government funding expiration on Jan. 19.

“Whatever funding vehicle will be advanced to continue that, we want to have our Physician Fee Schedule patch attached to that,” Morton said. “It’s important that Congress deal with this patient issue in January because the reductions will have already gone into place on Jan. 1.” 

Looking for silver linings

A rate correction could be made retroactive, as has happened in the past.

While ADVION and other provider groups are still advocating for a full 3.7% patch to address the cut, the Senate Finance Committee has so far passed a 1.5% patch and the House Committee on Energy and Commerce passed a 1.25% patch.

Bills that could be a vehicle for the patch are: the Preserving Seniors’ Access to Physicians Act of 2023 (H.R. 6683), which would eliminate the 3.37% conversion factor reduction; and the Strengthening Medicare for Patients and Providers Act (H.R. 2474), which would add a permanent payment update to the Medicare PFS that is tied to inflation, as measured by the Medicare Economic Index.  

There also was a bipartisan letter of almost 200 House members sent to House and Senate leadership asking them to end the 3.37% reduction, Morton noted.

Meanwhile, the American Medical Association, which represents physicians and physician practices, has warned that Congress’ inaction so far could force some providers to cut office hours or forgo treating Medicare patients.

On Monday, the AMA recommended that lawmakers transfer about $1.8 billion from the FY 2024 National Defense Authorization bill to cover the cut. It includes $2.2 billion in money shifted from the Medicare Trust Fund to a Medicare Improvement Fund, which would be more than enough to stop the cuts.

“Facing a nearly 10% reduction in Medicare payments over the past four years and rising practice costs on top of the burdens and burnout of three years of COVID-19, for many physicians, continuing down this road is unsustainable,” said AMA President Jesse M. Ehrenfeld, MD, MPH. 

“These cuts will be felt first and hardest in rural and underserved areas that continue to face significant healthcare access challenges. Medicare physicians do not receive inflationary payment updates, which is why eliminating these cuts is so crucial.”

I’ll say this for Congress: Its members sure know a thing or two about aesthetics.

Let’s say you’re a lawmaker and believe nursing homes need a closer look under the hood. Why not make that proclamation at a union rally where you will be cheered like a conquering hero, as Rep. Jan Schakowsky (D-IL) recently demonstrated. 

Yep, find a friendly crowd and a good backdrop, and you’ve got the ideal mix for a Kodak moment. One that will surely look good on your next campaign video.

Of course, if such theatrics are not convenient, a damning speech recorded after hours to an empty chamber can be an effective alternative. 

I suppose such tactics are harmless enough. But let’s face it. In the long run, the grandstanding isn’t going to amount to much more than what the old folks call a hill of beans. That’s because those carefully chosen words are doing little to change the status quo.

But don’t take my word for it. The scorekeepers reveal that more than 95% of all proposed bills are never voted into law. 

To truly understand where Congress wields its power, heed the advice of Washington Post Executive Editor Ben Bradley during the Watergate era: “Follow the money.” More precisely, follow the money Congress approves.

But don’t stop there. Also follow where it doesn’t go. I was reminded of this latter addendum while reading colleague Kim Marselas’ excellent story Friday on new Centers for Medicare & Medicaid Services plans to streamline its survey activities.

Now the official reason for streamlined surveys is that inspections will become more efficient. I suppose that is true enough, as far as it goes.

But the announcement does beg a deeper question. Namely, what else is going on here? In a nutshell, Congress has been squeezing and continues to squeeze funding to CMS. And as a result, federal regulators are being forced to cut back on their activities, such as inspecting skilled care facilities.

I can’t imagine many skilled nursing operators are crying in their Cheerios over this particular development. Fewer, less intense surveys? Oh, that really is too bad, isn’t it?

But this episode does highlight how Congress serves as a significant agent of change. When lawmakers turn a funding spigot on or off, they really are making quite a statement.

Even if it’s one that’s unlikely to be captured in a photo op.

John O’Connor is editorial director for McKnight’s Senior Living and its sister media brands, McKnight’s Long-Term Care News, which focuses on skilled nursing, and McKnight’s Home Care. Read more of his columns here.

The 61 senators and 233 Representatives signed a letter to the Centers for Medicare & Medicaid Services urging the agency to continue its recent efforts to “lessen administrative burden for providers.”

Chief among the proposals highlighted in the Wednesday request was a call for a real-time mechanism supporting quick electronic prior authorization (PA) decisions for routinely approved services.

“This mechanism would improve patient care and reduce provider burden while avoiding unnecessary delays,” reads the letter, which was spearheaded by Sens. John Thune (R-SD) and Sherrod Brown (D-OH). “Hundreds of organizations representing patients, physicians, hospitals and other healthcare experts have put their support behind an e-PA proposal that includes a real-time process for items and services that are routinely approved.”

In a 2024 Medicare and Medicare Advantage rule finalized in April, CMS began to initiate some changes to prior authorization requirements that have been broadly criticized by skilled nursing providers as blocking access to nursing home care that would be covered by traditional Medicare benefits. One long-time SNF payment expert told McKnight’s Long-Term Care News that nursing home stays and MRIs are the top two services denied by MA’s prior-authorization process.

The 2024 rule limits MA insurers to using prior authorizations only in cases when a diagnosis is unclear, which was expected to lead to easier transfers of hospital patients to nursing homes.

The lawmakers are asking CMS to adopt policies that further that effort and ensure immediate access to all kinds of care by:

• creating a deadline of 24 hours for MA plans to respond to prior authorization requests for urgently needed care, and 
• requiring detailed transparency metrics

Tackling dangerous practices

Thune, in a press release, noted that transparency efforts reflect elements of the Improving Seniors’ Timely Access to Care Act, which was backed by some 500 provider groups when it passed the House last year. Those included LeadingAge, the National Association for the Support of Long-Term Care (now ADVION), the American Geriatrics Society and other groups working with seniors.

The legislation has been reintroduced in both chambers of Congress this session. MA tactics have continued to draw the attention of Congress this year, with “impossible” denials and the use of artificial intelligence in decision-making about SNF stays decried at a May Senate hearing.

“Prior authorization remains an enormous burden on doctors’ practices and a threat to patient care, as insurers often provide no evidence of overutilization for targeted procedures and treatments,” the lawmakers wrote Wednesday. “Insurers continue to delay and even deny covering necessary care and overstep medical decision-making while increasing their profits.”

The fiscal 2024 rules went  into effect June 5.

The lawmakers also said that faster approvals would offer an incentive to providers, too.

“Based on industry growth (due to market demand), robust evidence continues to demonstrate that implementing real-time decisions produces cost savings for healthcare providers and health plans,” they noted.

Their letter also underscored that today’s prior-authorization process, which can take up to 72 hours under current regulation, could create life-or-death situations.

“We are concerned that delaying care for up to three days could jeopardize a patient’s life, health, or ability to regain maximum function,” the letter stated.

Ensuring Seniors’ Access to Quality Care Act in the Senate by Sens. Mark Warner (D-VA) and Tim Scott (R-SC) would remove a blanket lockout that has stopped many facilities from providing training when they’ve been cited for too many deficiencies.

Since its passage in 1987, the lockout provision has confounded providers as being counterintuitive for those who have typically exhibited a demonstrable need for more staff training, not less.

Its existence has been increasingly problematic during the pandemic, as nursing homes have lost more than 210,000 workers, many of them certified nurse aides. A waiver allowing temporary nurse aides to work longer without completing all training and testing requirements has also expired, adding pressure on providers to find new ways to improve training access.

“Certified nurse aides are integral to the quality care that nursing homes provide; more are desperately needed,” Katie Smith Sloan, president and CEO of LeadingAge, said in a statement after the bill’s Thursday night introduction.

“In addition to providing a solid educational foundation, [on-site] training programs also serve as an introduction to aging services, exposing students to nursing homes’ daily work routines and community cultures. They’re critical,” Sloan added. “Particularly now, when nursing homes are in dire need of more staff, we must leverage every possible opportunity to bring qualified workers into the sector and build pipelines to help deliver quality care for our country’s aging population.”

The bill is a companion to a House version introduced on May 11, 2023. That bill had not picked up any co-sponsors as of Friday, a spokesman for one of the two initial sponsors told McKnight’s Long-Term Care News. Both the House and Senate versions have bipartisan lead sponsors.

Both the Senate and the House bills modify the training suspension mandated by the Omnibus Budget Reconciliation Act of 1987 (OBRA). A two-year suspension is required for fines that pass a certain threshold, even if they are unrelated to the quality of care or are unrelated to the nursing home’s CNA training program.

They would grant CMS greater flexibility in reinstating CNA training programs if providers avoid other major citations and can prove they’ve returned to compliance on past issues.

Nursing homes’ on-site CNA training programs are often free to the job candidate, versus programs at community colleges or other institutions that require entry level workers to invest thousands of dollars before being hired.

A similar measure last year never passed.

Such a program could bring more stability to a struggling subset of nursing homes, much as it has for about two-thirds of the nation’s rural hospitals.

Certified critical access hospitals are paid based on their costs, rather than on patient lengths of stay or services. This creates a reliable funding source to help sustain providers with potentially low patient volumes. The special designation originated in the 1990s after a string of rural hospital closures in the previous decade.

A similar program has never been created for nursing homes, but some providers believe now could be an ideal time. Many skilled nursing operators, especially those in some rural states, were squeezed hard by stagnant Medicaid rates even before the pandemic. Now, they are inching ever closer to closure amid continuing COVID-19 precautions and staffing shortages.

“Policymakers need to understand ‘rural’ doesn’t mean low-cost. We are unique and the unique needs for providing care in rural communities need to be addressed,” said Mark McKenzie, CEO of Focused Post-Acute Partners, which operates 29 skilled nursing communities in Texas. Twenty of those are in rural areas, some in towns with as few as 3,000 residents. “Years ago, it wasn’t a detriment to be a rural SNF provider, but COVID process mandates had a real and lingering negative impact on staffing and overall costs.”

Solution for mounting costs?

While McKenzie said he has seen the idea of a SNF critical access program creep into more conversations since raising the issue with McKnight’s Long-Term Care News last fall, he said it’s not driving enough significant political discourse yet. Many providers and state advocacy groups remain focused on other priorities: immediate increases in Medicaid funding and an expected to staffing ratio, to name a few.

Bloomberg Law reported on the concept Wednesday morning, noting that nursing home groups are “calling” for such a designation.

A LeadingAge spokeswoman told McKnight’s there was significant interest in a critical access program among that organization’s members. 

“Increasingly, for too many older adults and families — particularly those who live in less populated areas — access to and availability of the much-needed 24/7 care that nursing homes provide is no longer an option,” said Katie Smith Sloan, president and CEO. “Multiple issues, from insufficient reimbursement that does not cover the cost of care, and continued staffing challenges plus rising operating costs — for recruitment, wages, as well as inflation-fueled price increases for food and other commodities — are simply too much for some providers. They cannot keep their doors open.”

A critical access nursing home program “could help to level the playing field” for operators in rural areas where it can be even more challenging and expensive to hire required workers, and where closures are already sending displaced residents far from home for needed care.

Without the kind of stability a critical access payment reform could bring to rural providers, McKenzie said, “skilled nursing facilities will close and that will create an enormous gap in local access. If that happens, families may be 45 to 90 miles from the next long-term care setting.  That is really shortchanging rural communities.”

Other priorities first

While American Health Care Association President Mark Parkinson was quoted extensively in the Bloomberg article, a spokeswoman for the nation’s largest provider group told McKnight’s it doesn’t have a formal proposal on the concept.

AHCA has been busy advocating for state-rate increases and potential staffing solutions, which it says are the main influences on closures nationwide.

Bloomberg characterized Parkinson as saying a critical access program for SNFs could be a “life line,” even if it paid just 1% on top of operating, which is how participating hospitals are funded.

McKenzie said he would “absolutely” participate in a plan with those conditions.

“It enhances our ability to ensure access to these populations, as well as enhances our ability to recruit — which I could do with that 1%. However, exploration of a different methodology should be considered as well. If providers are in an environment with an adequate Medicaid rate, a Critical Access designation could include targeted funding just [for] administrative costs and labor, as an example,” he said. 

He acknowledged that the effort to drive policy forward on this could be stymied by a perception that a rural program would take federal dollars away from other providers.

But some see value in protecting access in urban areas too. A report last month from LeadingAge LTSS Center urged lawmakers to pursue financing and other solutions that support challenged urban operators.

Also, a report commissioned by AHCA early last year found that facilities most likely to close during the pandemic tended to be smaller, with fewer than 100 beds, and in urban settings where residents rely on Medicaid.

For any new payment designation, providers would be beholden to Congress. CMS has no authority to create classes of providers outside of its current payment rules.

“Before there is movement in this direction — if it gains momentum — we need a practical definition of a Critical Access SNF and a clear understanding how any reimbursement adjustment would be managed,” McKenzie said.

The odds of a sweetheart relationship are dead on arrival. But whether it was Mom or a special interest group, somebody put you up to going through the motions anyway.

So is that the case with this week’s reintroduction of a bill that would waive certain training requirements for certified nurse aides for two years after the public health emergency is ended? Not exactly.

Reps. Brett Guthrie (R-KY) and Madeleine Dean (D-PA) made a big splash in provider circles Wednesday when they reintroduced the Building America’s Health Care Workforce Act. 

An earlier version rounded up 44 cosponsors — 10% of the US House — but it died on the vine, never advancing out of committee.

The status quo has changed, however. Guthrie is now chairman of the House Energy and Commerce Committe’s health subcommittee. Leaders of committees can hold tremendous sway. 

Perhaps the most powerful recent reminder of this is when then-Senate Majority Leader Mitch McConnell refused in 2016 to allow a confirmation hearing for Merrick Garland, who was then-President Obama’s choice to fill a vacant Supreme Court seat. McConnell, who was echoed by the 11 Republicans on the Judiciary Committee, said it did not matter that Obama still had 11 months left in his presidency and that there were still nine months before the election to determine who would succeed him. Garland, a veteran jurist who had enjoyed support from both sides of the aisle previously, never got as much as a pre-hearing interview on his nomination.

The stakes and leverage aren’t quite as dramatic now with Guthrie and the nurse-aide training bill. But the point that the game has changed — if players want to take it in a new direction — is well taken.

Critics might point out that keeping lesser-trained aides on the floor could be dangerous, but Guthrie pointed out that competency checks have been put in place.

Others will note that the federal Centers for Medicare & Medicaid Services has granted waivers to more than a dozen states. But needy pockets exist in every state and a federal standard should blanket the country.

Proponents of the extension  — who include the major nursing home associations and their minions — remind that in many instances this is merely an administrative issue. There are many trained, experienced aides awaiting clearance testing. The capacity to assess them, however, doesn’t exist.

Which brings up another of the elephants in the room: Without allowing more aides to stay on the floor, there will be even fewer floors and corridors to service needy seniors. Financial struggles and staffing shortages have continued to shrink the US’s skilled nursing capacity.

Overseers, including lawmakers and federal regulators, seem to have acknowledged that the skilled nursing business is not merely a bunch of burger joints fighting for market share.

Now it’s up to them to start acting like it, in the best interests of their frail and elderly citizens — and those who want to take care of them under reasonable conditions.

James M. Berklan is McKnight’s Executive Editor.

Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.

The report, released Dec. 29, called drugmaker Biogen’s launch plans of Aduhelm “aggressive,” its pricing too high and the FDA’s decision to approve it unorthodox. In a key clinical finding, investigators criticized the FDA’s broad label indication for Aduhelm and Biogen’s acceptance of that label, “despite a lack of clinical data on all Alzheimer’s disease stages and Biogen’s reservations.”

“This report documents the atypical FDA review process and corporate greed that preceded FDA’s controversial decision to grant accelerated approval to Aduhelm,” Frank Pallone, Jr. (D-NJ), chairman of the Energy and Commerce Committee, said in a statement.

New drug decision in the wings

Like Aduhelm, lecanemab targets anti-amyloid plaques in the brain, a hallmark of Alzheimer’s disease. Both drugs are monoclonal antibodies that must be infused. Each has been linked to brain bleeds in a small percentage of trial participants and each requires regular brain scans to watch for signs of such problems. Deaths potentially related to these side effects have also been reported.

With demand growing for dementia treatments and more anti-amyloid antibody drugs in the pipeline, “it is crucial that FDA and drug companies adhere to established procedures and conduct themselves with the transparency necessary to earn public trust,” Pallone said. The findings should be “a wake-up call” for FDA reform and a call to action for congressional oversight of the pharmaceutical industry “to ensure they don’t put profits over patients,” he added.

House investigators, including the Oversight and Reform Committee, recommended that the FDA take “swift action” to ensure that future reviews of Alzheimer’s disease treatments do not lead to the same doubts about its integrity.

Biogen, currently looking for approval of lecanemab along with partner Eisai, “must provide more transparency into its pricing and analyses of clinical benefit to ensure that new drugs are effective and available for those who need them,” the report concluded.

Aduhelm skepticism

The FDA greenlit Aduhelm in June 2021 under a cloud of controversy, with some FDA advisers resigning in protest during the process. Various experts initially stacked up against the drug, including some leading long-term care experts who called for further evidence of its safety and efficacy before use in elderly patients. In an effort to mitigate concerns, the FDA’s approval required Biogen to conduct and report on further clinical trials.

In April 2022, Medicare decided to cover the high cost of treatment with Aduhelm only for highly qualified participants in approved clinical trials. The move to severely restrict drug coverage in this way was unusual, but appropriate for the Medicare population, officials with the Centers for Medicare & Medicare Services said at the time.

Biogen expected Aduhelm to be a burden to patients and Medicare, yet planned to spend billions to market the drug, the current report found. Its initial price of $56,000 per year was set “unjustifiably high,” with a goal to “make history” for the company, despite these projected impacts, investigators said. 

Coverage limits

Patients’ advocates, meanwhile, have been critical of the coverage and use restrictions associated with Aduhelm. As the expected approval decision for lecanemab nears, there is a push to ensure that more patients with Alzheimer’s can access anti-amyloid antibody drugs, despite their relative newness and questions surrounding their safety.

The Alzheimer’s Association, for example, in December asked CMS to provide full coverage of FDA-approved dementia drugs. The organization pointed to a growing consensus in the scientific and medical communities about the clinical benefits of amyloid removal from the brains of those living with mild cognitive impairment and early-stage Alzheimer’s disease. It also cited new clinical data demonstrating benefits from lecanemab.

Related articles:

Alzheimer’s drug lecanemab has ‘moderate’ effect on cognitive decline, new trial data show

New death in lecanemab trial raises concerns; depression drug eases Alzheimer’s agitation

The $1.7 trillion omnibus spending bill, released Monday, includes a concession on Medicare pay cuts to doctors, extends pandemic-era telehealth flexibilities, averts a hospice cap cut and Pay-As-You-Go sequestration reductions, and considers support for the senior care workforce. The legislation also increases funding for Alzheimer’s research. 

The bill must be finalized, approved by both houses of Congress and signed by President Biden, but legislators are hoping to pass the legislation by Friday, sources told medical news outlet STAT.

Under the bill’s current terms, physicians will not receive a 4.5% Medicare pay cut in 2023 as previously proposed. Instead, the cut will be limited to 2% next year and rise to 3.5% in 2024, STAT reported.

Telehealth extension, workforce support

Meanwhile, there will be a two-year extension of pandemic-era telehealth flexibilities that will open this benefit to more recipients. Employers would be able to offer telehealth services pre-deductible to people who have high deductible health plans and a health savings account, according to senior living industry advocate Argentum.

Provisions also include $5 billion in disaster relief funding related to Hurricane Ian, language that supports older adults’ ability to use retirement savings to pay for long-term services and supports, and improvements to the healthcare workforce, reported McKnight’s Senior Living.

Federal agencies would be urged to support the expansion of the skilled nursing workforce and provide home- and community-based services to older adults and people with disabilities using education and training grant programs, and apprenticeship programs.

“This significant investment in workforce with a focus on senior care within the Department of Health and Human Services and Department of Labor will have a profound impact on our industry within the next year and decades to come,” said Maggie Elehwany, senior VP-public affairs for senior care advocate Argentum.

Two other senior living policy items did not make it into the bill: immigration reform and the expansion of access to assisted living for veterans.

Home care pluses and minuses

Home care providers called the legislation a “mixed bag.” While home health was pleased with the prevention of so-called PAYGO cuts for 2023 and 2024, it did not win a delay of Medicare cuts related to the Patient-Driven Groupings Model that are scheduled to take effect Jan. 1.

And the hospice industry received some concessions, according to the National Hospice and Palliative Care Organization, a hospice advocacy organization. The legislation does not reduce the aggregate cap for hospice payments by 20% as previously proposed. Yet it contains provisions that will slow the cap’s growth, which the NHPCO said will serve to further restrict access to hospice care for patients with Alzheimer’s disease and other dementias.

The legislation also would designate $1 million to assess the development of quality standards for bereavement and grief care, and would expand the use of marriage and family therapists and mental health counselors as part of hospice interdisciplinary teams.

Access to drugs

Beyond long-term care, the legislation will aim to help Americans transition to commercial coverage of drugs that have received emergency approval during the pandemic. These include COVID-19 vaccines and treatments and other drugs provided for free from government stockpiles, which are gradually depleting. 

Visit McKnight’s Senior Living for additional context on the legislation’s impact.

Related articles:

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Nurses back Senate legislation that would lift restrictions on APRNs’ scope of practice

LTC must provide full access to patient health data under Cures Act Final Rule

The draft bill would offset more than half of a key cut the Centers of Medicare & Medicaid Services planned to enact with the Medicare Physician Fee Schedule’s physician conversion factor starting January 1. The conversion factor could now be cut by just under 2%, rather than at the 4.47% cut CMS set earlier this year.

Skilled nursing and other provider advocates had lobbied for a full reversal of the 4.47% Conversion Factor reduction, arguing that with other cuts they could see about 10% in lost revenue amid soaring costs of doing business. For 2022, lawmakers reduced the cut by 3%, bringing it to .75%.

As reported by McKnight’s Home Care Tuesday, the bill prevents across-the-board 4% Medicare cuts for 2023 and 2024. The so-called PAYGO reductions are triggered automatically every year by an existing budget policy aimed at limiting the national deficit. 

The text of the so-called omnibus spending deal, produced after months of negotiations and lobbying, could still change as congressional negotiators work to finalize an agreement by a Friday deadline. 

As it stands, the bill also provides relief for the calendar year 2024 Physician Fee Schedule, giving 1.25% of relief toward the 2024 conversion factor yet to be calculated by CMS.

The bill does not provide any relief  to providers of the 2% sequestration that Medicare providers are currently under, Cynthia Morton, executive vice president of long-term care lobbyist Advion, told McKnight’s Long-Term Care News Tuesday. It extends the mandatory Medicare payment reductions under sequestration for the first six months of fiscal year 2032, while revising Medicare sequestration percentages to 2% for fiscal year 2030 and fiscal year 2031.

“Advocates did not anticipate that Congress would give any relief here,” she said. 

The Physician Fee Schedule as proposed by the CMS goes into effect Jan. 1. The congressional relief will be in effect if the bill passes and is signed by President Biden by the Dec. 23 deadline. The government spending authority runs out that day.

Neither of the two largest sector advocates, LeadingAge and American Health Care Association/National Center for Assisted Living, would comment on the bill Tuesday, citing the time necessary to pore through the text. Also meaningful for providers, the bill extends through the end of 2024 the pandemic flexibility to allow telehealth services to be billed by physicians and therapists.

Read more about the package and its potential effects on senior living providers in our sister media brand McKnight’s Senior Living.