In a decision that may place people with end-stage renal disease (ESRD) at risk, the Supreme Court held this week that an employer-sponsored group health plan can restrict benefits for outpatient dialysis without violating Medicare’s Secondary Payer law.
Congress extended Medicare coverage to people with ESRD, regardless of age, in 1972. The benefit now covers hundreds of thousands of beneficiaries, many of whom rely on costly dialysis treatments to stay alive. To protect these uniquely vulnerable patients, Medicare covers dialysis costs, but also requires that a patient’s group health plan continue as the primary payer for 30 months. To prevent these plans from reducing coverage for people with ESRD and shifting costs to Medicare sooner, the law also prohibits them from offering different benefits to people with ESRD and without ESRD.
In Marietta Memorial Hospital v. DaVita Inc., the employer-sponsored health plan offers very limited reimbursement rates for outpatient dialysis, treating all such providers as “out of network.” But because the plan provides the same dialysis rates for all of its participants, the Supreme Court concluded that it did not illegally “differentiate” benefits for people with ESRD. In dissent, Justice Kagan, joined by Justice Sotomayor, stated that the decision represents a “massive and inexplicable workaround” to the Medicare Secondary Payer Act. She noted that outpatient dialysis is an “almost perfect proxy” for ESRD: 97% of people with ESRD – “and hardly anyone else” – undergo outpatient dialysis. Thus, targeting the use of dialysis is tantamount to targeting people with ESRD. Kagan also found support for her position in the text of the statute, and called on Congress to “fix a statute this Court has broken.”
As explained by Dialysis Patient Citizens, Medicare’s secondary payer rules affirmed the rights of privately-insured patients to continue with employer-sponsored plans for 30 months, preserved patient choice, and incentivized insurers to detect and treat chronic kidney disease. The Court’s decision allowing group health plans to shunt ESRD patients to Medicare presents “immediate and profound risks” for kidney patients and their families. As more private health plans adopt similar inadequate dialysis reimbursement policies, the availability of dialysis nationwide may be reduced, and patients who may prefer to remain with private coverage for as long as possible – to cover family members, to access critical dental services, etc. – will not be able to do so.
The Center for Medicare Advocacy is concerned that the decision will exacerbate inequities in health care. We support patient advocates requesting that Congress amend the statute to protect Medicare beneficiaries with ESRD.
During the coronavirus pandemic and as of January 2022, nursing facilities lost 238,000 staff members, 15% of their total workforce. According to a survey by the trade association American Health Care Association (AHCA), more than 87% of facilities report insufficient numbers of staff, which they say threatens their ability to remain open. Kaiser Family Foundation reports, in its analysis of CMS COVID-19 Nursing Home Data, that, as of the week ending March 20, 2022, 28% of facilities reported that they had any staffing shortage. Regardless of the actual percentage of facilities that are short-staffed, it is undisputed that staffing levels at nursing facilities have not rebounded from the pandemic (when they were already too low) and that staffing levels remain unconscionably low. What are the solutions?
The nursing home industry supports legislative proposals to weaken training requirements for staff and to allow poor quality facilities to train nurse aides. Both proposals undermine key provisions of the 1987 Nursing Home Reform Law. Advocates for residents see these Congressional bills as significantly weakening staffing requirements at a time when residents have more intense care needs than ever and require a more professional and well-trained workforce. The bills contradict and undermine nursing facilities’ increased use of nurse practitioners and a growing field of physicians focused on nursing home care, called SNFists. Advocates propose more comprehensive solutions to the staffing crisis, including mandated minimum staffing ratios, more and better training, more and better wages and benefits, and better working conditions for all workers. The Biden Administration’s nursing home reform agenda includes these, and many additional oversight and accountability proposals, that residents’ advocates have supported for many years.
Weakening Training Requirements
At the beginning of the pandemic, the Centers for Medicare & Medicaid Services (CMS) gave blanket waivers (that is, automatic and universal waivers) to nursing homes for many longstanding statutory and regulatory standards, including the requirement that nurse aides be trained in a state-approved program of at least 75 hours. Many states authorized a temporary nurse aide (TNA) program, which allowed workers to provide care to residents after receiving considerably less training, often just an eight-hour on-line training developed and offered by AHCA. Mark Parkinson, AHCA’s president and CEO, told participants at a Skilled Nursing News webinar on March 31, 2022, that more than 300,000 people were trained as TNAs and that 200,000 were working in facilities as TNAs. CMS has now lifted the blanket waiver of nurse aide training requirements, effective June 6, 2022. However, many facilities are attempting to convert their TNAs into permanent certified nurse aides, even though these workers have not participated in their states’ full training program.
Legislation to extend the nurse aide training waiver for 24 months was introduced in Congress. The “Building America’s Health Care Workforce Act,” H.R. 7744, introduced by Congressman Brett Guthrie (R, KY), Madeline Dean (D, PA), and David B. McKinley (R, WV), also weakens nurse aide training requirements by allowing time worked in a facility as a TNA to count towards the federal minimum of 75 hours of training. AHCA supports the legislation.
Allowing Facilities That Provide Poor Care to Train New Aides
Under current law, a nursing facility is barred from conducting a nurse aide training program for two years if it has operated under a waiver of the requirement for one registered nurse (RN) 40 hours per week, has had an extended or partial extended survey, or has been assessed a civil money penalty of $5000 or more (now, more than doubled to reflect cost-of-living increases in civil money penalties). The purpose of the ban is to ensure that facilities are prohibited from conducting a nurse aide training program directly if they fail to meet a minimal nurse staffing standard and some minimal level of compliance with federal standards of care.
However, extensive waivers permit even these poorly performing facilities to conduct nurse aide training programs under certain circumstances. Federal law authorizes a waiver of the two-year nurse aide training ban if the state “determines that there is no other such program offered within a reasonable distance of the facility,” “assures, through an oversight effort, that an adequate environment exists for operating the program in the facility,” and “provides notice of such determination and assurances to the State long-term care ombudsman.” The Secretary may also waive the nurse aide training ban if the civil money penalty was not related to quality of care.
“Ensuring Seniors’ Access to Quality Care Act,” introduced in 2019 as S.2993 and recently reintroduced by Senators Mark Warner (D, VA) and Tim Scott (R, SC), repeals the automatic statutory two-year ban that prohibits certain understaffed and poorly-performing facilities from directly conducting their own nurse aide training programs.
LeadingAge, the trade association of not-for-profit providers, endorses the “Ensuring Seniors’ Access to Quality Care Act.” AHCA supports the legislation as well. The Center for Medicare Advocacy supports the law’s current requirement that facilities without an RN or with serious care problems, or both, not train new workers in how to perform aide duties.
Reducing Training for Staff Endangers Staff and Residents
Working as an aide in a nursing home is dangerous. Analyzing data from the federal Bureau of Labor Statistics, PHI reports that “nursing assistants are injured more than three times more frequently than the typical American worker.” A study using 2004 data from the National Nursing Assistant Survey and the National Nursing Home Survey found that 60.2% of all certified nursing assistants nationally reported a work-related injury in the year before the survey and 65.8% reported being injured more than once.
Untrained or minimally trained workers are more likely to be injured than workers who have been trained. The researchers found:
As for all types of injuries, CNAs who were new to the profession and to the facility, as well as those working mandatory overtime and those who rated their initial training as poor preparation for their work in the facility, were at higher odds of developing musculoskeletal injuries.
CNAs who report being generally better prepared for the job are able to handle many other challenging aspects of direct care better, resulting in fewer injuries.
Allowing minimally or poorly trained aides to provide care to residents will mean more worker injuries and, inevitably, poorer care for residents and increased resident injuries.
Residents’ Advocates’ Staffing Solutions
Advocates for residents understand that improving staffing in nursing facilities requires multiple actions, simultaneously implemented. Paying workers a living wage and benefits, ensuring that staff receive sufficient and appropriate training, employing sufficient numbers of workers, establishing career ladders, and treating staff respectfully and as important members of the resident care team are key actions that enable facilities to recruit and retain permanent staff.
Studies repeatedly show, as did a study of staffing in rural communities, that staff need “better wages, better health insurance, and better pensions, as well as improved training, supervision, and mentoring.”
In an April 2022 report, PHI identifies eight solutions, including 24 specific state policy strategies, for stabilizing the direct care workforce. These solutions include increasing compensation for direct care workers, whose median income is now about $20,200. Specific strategies for this solution include implementing wage reforms, offering supplemental or hazard pay, and improving benefits. Milbank Memorial Fund similarly identifies comprehensive recommendations for strengthening the direct care workforce in Direct Care Workforce Policy and Action Guide.
When the Nursing Home Reform Law was enacted in 1987, half of the states did not require that aides receive any training before they provided care to residents. One of the major changes made by the Reform Law was the requirement that aides be trained and pass a state competency evaluation in order to become certified caregivers. The federal bills supported by the nursing home industry would be an enormous step backwards in public policy. The Center for Medicare Advocacy supports the President’s comprehensive nursing home reform agenda as a better way of improving staffing and quality of care for residents.
 Bureau of Labor Statistics, “Nursing Homes Have Lost 238,000 Caregivers Since Start of Pandemic,” BLS January  Job Report
 The American Health Care Association (AHCA), the larger nursing home trade association, released a survey finding that 87% of nursing facilities face “moderate or high staffing shortages” and only 2% of facilities are fully staffed. 73% express concern that staffing issues may force them to close. AHCA, “State of the Nursing Home Industry: Survey of 759 nursing home providers show industry still facing major staffing and economic crisis” (Jun. 2022), https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/SNF-Survey-June2022.pdf
 Nancy Ochieng, Priya Chidambaram, and MaryBeth Musumeci, “Nursing Facility Staffing Shortages During the COVID-19 Pandemic,” Kaiser Family Foundation (Apr. 4, 2022), https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/#:~:text=Staff%20shortages%20were%20nearly%20as,this%20data%20in%20May%202020
 Amy Stulick, “How the Nurse Practitioner Has Become ‘Front and Center’ as I-SNPs Demand More Complex Care,” Skilled Nursing News (Jun. 15, 2022), https://skillednursingnews.com/2022/06/how-the-nurse-practitioner-has-become-front-and-center-as-i-snps-demand-more-complex-care/
 Hye -Young Jung, Hyunkyung Yn, Eloise O’Connell, Lawrence P. Casalino, Mark Aaron Unruh, Paul R. Katz, “Defining the Role and Value of Physicians Who Primarily Practice in Nursing Homes: Perspectives of Nursing Physicians,” JAMDA (2022), abstract available at https://www.jamda.com/article/S1525-8610(22)00239-0/pdf
 White House, “FACT SHEET: Protecting Seniors by Improving Safety and Quality of Care in the Nation’s Nursing Homes” (Feb. 28, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/
 CMS, “Long Term Care Facilities (Skilled Nursing Facilities and/or Nursing Facilities): CMS Flexibilities to Fight COVID-19” (Mar. 28, 2020) Federal requirements for nurse aide training programs are extensive and comprehensive, addressing federal standards that state nurse aide training programs must meet; minimum number of training hours; qualifications of instructors; and designated subject areas of training. 42 C.F.R. §483.152
 Who’s Providing Care for Nursing Home Residents? Nurse Aide Training Requirements during the Coronavirus Pandemic (CMA Special Report, Jul. 23, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/07/Report-Nurse-Aide-Training.pdf
 CMS, “Update to COVID-19 Emergency Declaration Blanket Waivers for Specific Providers,” QSO-22-15-NH & NLTC & LSC (Apr. 7, 2022), https://www.cms.gov/files/document/qso-22-15-nh-nltc-lsc.pdf
 Who Provides Care for Nursing Home Residents? An Update on Temporary Nurse Aides (Special Report, Sep. 15, 2021), https://medicareadvocacy.org/wp-content/uploads/2021/09/SNF-TNA-Report-09-2021.pdf
 AHCA, “AHCA/NCAL Issues Statement in Support of Building America’s Health Care Workforce Act” (Press Release, May 13, 2022), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Issues-Statement-in-Support-of-Building-America%E2%80%99s-Health-Care-Workforce-Act.aspx
 42 U.S.C. §§1395i -3(f)(2)(B)(iii)(I)(a)-(c), 1396r(f), Medicare and Medicaid, respectively.
 42 U.S.C. §§1395i-3(f)(2)(C)(i), 1396r(f)
 42 U.S.C. §§1395i-3(f)(2)(C)(ii), 1396r(f)
 42 U.S.C. §§1395i-3(f)(2)(C)(iii), 1396r(f)
 42 U.S.C. §§1395i-3(f)(2)(D), 1396r(f)(2)
 LeadingAge, “LeadingAge Statement on the Ensuring Seniors’ Access to Quality Care Act” (Jun. 13, 2022), https://insidehealthpolicy.com/sites/insidehealthpolicy.com/files/documents/2022/jun/he2022_1546.pdf
 AHCA, “AHCA/NCAL Issues Statement following Senate Health, Education, Labor & Pension Committee Hearing On Workforce Shortages in Health Care” (Press release, May 20, 2021), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Issues-Statement-Following-Senate-Health,-Education,-Labor-&-Pension-Committee-Hearing-On-Workforce-Shortages-in-H.aspx (supporting reintroduction of the 2019 Ensuring Seniors Access to Quality Care Act)
 AnnMarie Lee Walton and Bonnie Rogers, “Workplace Hazards Faced by Nursing Assistants in the United States: A Focused Literature Review,” Int J Environ Res Public Health. 2017 May; 14(5): 544, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5451994/; Stephen Campbell, “Workplace Injuries and the Direct Care Workforce” (PHI Issue Brief, Apr. 2018), http://phinational.org/wp-content/uploads/2018/04/Workplace-Injuries-and-DCW-PHI-2018.pdf
 Id., citing U.S. Bureau of Labor Statistics (BLS), Injuries, Illnesses, and Fatalities. 2018. Occupational Injuries and Illnesses and Fatal Injuries Profiles, https://www. bls.gov/iif/ analysis by PHI (Jul. 23, 2019)
 Galinka Khatutsky, Joshua M. Wiener, Wayne L. Anderson, and Frank W. Porell, “Work-Related Injuries Among Certified Nursing Assistants Working in US Nursing Homes,” RTI Press, p. 4 (Apr. 2012), https://www.rti.org/rti-press-publication/work-related-injuries-CNAs/fulltext.pdf
 Id. 10
 Id. 11
 Gail L. Towsley, Susan L. Beck, William N. Dudley, and Ginette A. Pepper, “Staffing Levels in Rural Nursing Homes,” Research in gerontological nursing, 4(3), Jul. 2011: p. 1-14, https://libres.uncg.edu/ir/uncg/f/W_Dudley_Staffing_2011.pdf
 PHI, State Policy Strategies for Strengthening the Direct Care Workforce” (Apr. 11, 2022), reached through a link at http://www.phinational.org/resource/state-policy-strategies-for-strengthening-the-direct-care-workforce/
 Id. 9-11
 Courtney Roman, Clare Luz, Carrie Graham, Nida Joseph, and Kate McEvoy, Direct Care Workforce Policy and Action Guide (May 18, 2022), https://www.milbank.org/wp-content/uploads/2022/05/DirectCareWorker_Toolkit_final.pdf
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