The Center for Medicare Advocacy offers the following comparison of the presidential campaigns’ long-term care policies.
For the Biden campaign, the Center looks at the Democratic Party’s 2020 platform,[1] the official campaign website,[2] and a position paper on long-term care issued by the campaign.[3] Identifying the Trump campaign’s position is more difficult,[4] since the Republican Party did not release a new platform in 2020,[5] the official campaign website does not include policy positions,[6] and the campaign’s six-page Second Term Agenda, “Fighting for You!,”[7] does not address long-term care. Therefore, the comparison below describes relevant policies implemented or proposed by the Trump Administration, before and during the coronavirus pandemic, as a guide to possible or likely actions on long-term care issues during a second term.
| Issue | Trump Administration (Pre-Pandemic) | Trump Administration (During Pandemic) | Biden[8] |
| Nursing home standards, before and during pandemic | Proposed revisions (July 2019) to some Requirements of Participation (2016), including rules for antipsychotic drugs, duties of facility’s grievance official, enhanced credentials for dieticians, frequency of facility-wide assessment[9] | Waiver of resident protections, including transfer/discharge; banning of all visitors (March 2020)[10] | Ensure effective point-of-care testing; ensure optimal PPE; ensure adequate staffing and training; enhance protections against inappropriate discharges Democratic Party platform: improve quality standards |
| Staffing | Waiver of 75 hour nurse aide training requirement (March 2020)[11] | Ensure adequate staffing and training, citing recent study showing the correlation of high staffing with fewer COVID cases[12] Ensure staff have a choice to organize a union and collectively bargain; “give them pay, paid leave, career ladders, and other benefits they deserve.” Democratic Party platform: “improve nursing home staffing” | |
| Infection prevention | Proposed rule reducing required on-site time for infection preventionists (July 2019)[13] | Require infectious disease expert in every nursing facility | |
| Arbitration agreements | Promulgated final rule allowing pre-dispute arbitration agreements.[14] | Reinstate Obama-Biden ban on forced arbitration agreements | |
| Surveying | Podcast (July 2019), CMS administrator describes President’s budget as asking Congress for risk-based survey model, i.e., less than annual surveyors, in order to focus on low performing nursing facilities[15] Proposed rule (July 2019) to add requirements for informal dispute resolution and to create “constructive waiver process” (i.e., give facilities automatic 35% reduction in civil money penalty if they do not appeal)[16] | Suspend standard surveys (Mar. – Jun. 2020); conduct only focused infection control surveys or immediate jeopardy surveys[17] | “Increase the frequency and scope of surveys and data collection” |
| Enforcement | Multiple changes to surveyor guidance on enforcement, including: making per instance civil money penalties the default, rather than per day CMPs,[18] revising mandatory immediate imposition of remedies,[19] revisions to immediate jeopardy[20] | Suspend all enforcement, except for immediate jeopardy (March – June 2020)[21] | “Enhance oversight by CMS” “Restore levels of penalties needed to obtain compliance with quality standards” |
| Limitations on provider liability | “Reject limitations on liability that make it impossible to ensure individuals harmed or killed due to nursing home negligence can hold providers accountable by pursuing legal remedies” |
October 20, 2020 – T. Edelman
[1] “2020 Democratic Party Platform,” https://www.demconvention.com/wp-content/uploads/2020/08/2020-07-31-Democratic-Party-Platform-For-Distribution.pdf.
[3] “Biden-Harris Plan to Make Nursing Homes and Long-term Care Facilities Safe,” https://joebiden.com/wp-content/uploads/2020/10/Nursing-Home-Policy.pdf.
[4] Chris Farrell, “2020 Election: Trump’s Second-Term Proposals For People 50+,” Forbes (Aug. 27, 2020), https://www.forbes.com/sites/nextavenue/2020/08/27/2020-election-trumps-second-term-proposals-for-people-50/#39fd37b1277a.
[5] Republican National Committee, “Resolution Regarding the Republican Party Platform,” https://prod-cdn-static.gop.com/docs/Resolution_Platform_2020.pdf.
[6] https://secure.winred.com/djt/2020-standing-with-president-trump/?
utm_medium=ad&utm_source=dp_googlesearch&utm_campaign=20200427_
na_trumpgenerickws_djt_djtfund_ocpmypur_bh_audience0726_na_na_us_b_18-
99_gsn_all_na_lp0424_fund_conversion_search_na_na_na&utm_content=fun
&gclid=CjwKCAjwiaX8BRBZEiwAQQxGx57ye8pLhVRykZv3I-
lbfs86z3roVXR_5Ba4XcBwtuYAgoJ4uqnGqRoCzk8QAvD_BwE.
[7] Trump Campaign Announces President Trump’s 2nd Term Agenda: Fighting for You!, https://www.donaldjtrump.com/media/trump-campaign-announces-president-trumps-2nd-term-agenda-fighting-for-you/.
[8] Except as otherwise noted, positions are taken from “Biden-Harris Plan to Make Nursing Homes and Long-term Care Facilities Safe,” https://joebiden.com/wp-content/uploads/2020/10/Nursing-Home-Policy.pdf.
[9] Fed. Reg. (Jul. 2019).
[10] CMS, “Long Term Care Facilities (Skilled Nursing Facilities and/or Nursing Facilities): CMS Flexibilities to Fight COVID-19” (Mar. 28, 2020), https://www.cms.gov/files/document/covid-long-term-care-facilities.pdf.
[11] Id.
[12] Jose F. Figueroa, et al, “Association of Nursing Home Ratings on Health Inspections, Quality of Care, and Nurse Staffing With COVID-19 Cases,” JAMA. 2020;324(aa):1103-1105, https://jamanetwork.com/journals/jama/fullarticle/2769437.
[13] CMS, “Medicare and Medicaid Programs: Requirements for Long-Term Care Facilities: Regulatory Provisions To Promote Efficiency, and Transparency,” CMS-3347-P. 84 Fed. Reg. 34737, 34746 (Jul. 18, 2019), https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14946.pdf. .
[14] CMS, “Medicare and Medicaid Programs; Revision of Requirements for Long term Care Facilities: Arbitration Agreements,” 84 Fed Reg. 34718 (Jul. 18, 2019), https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14945.pdf.
[15] CMS, Episode 5: Nursing Home Strategy Part 1 – Strengthening Oversight (Jul. 31, 2019), https://www.cms.gov/podcast/episode-5-nursing-home-strategy-part-1-strengthening-oversight.
[16] CMS, “Medicare and Medicaid Programs: Requirements for Long-Term Care Facilities: Regulatory Provisions To Promote Efficiency, and Transparency,” CMS-3347-P. 84 Fed. Reg. 34737 (Jul. 18, 2019), https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14946.pdf.
[17] CMS, “Prioritization of Survey Activities,” QSO-20-20-All (Mar. 20, 2020) https://www.cms.gov/files/document/qso-20-20-all.pdf; CMS, “Suspension of Survey Activities,” QSO-20-12-All (Mar. 4, 2020), https://www.cms.gov/files/document/qso-20-12-allpdf.pdf-1.
[18] CMS, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,” S&C: 17-37-NH (Jul. 7, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-37.pdf.
[19] CMS, “Mandatory Immediate Imposition of Federal Remedies and Assessment Factors Used to Determine the Seriousness of Deficiencies for Nursing Homes,” SUC: 16-31-NH (Jul. 22, 2016, rev. 7.29.16), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-31.pdf.
[20] CMS, “Revisions to Appendix Q, Guidance on Immediate Jeopardy,” QSO-19-09-ALL (Mar. 5, 2019), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/QSO19-09-ALL.pdf.
[21] CMS, “Prioritization of Survey Activities,” QSO-20-20-All (Mar. 20, 2020) https://www.cms.gov/files/document/qso-20-20-all.pdf; CMS, “Suspension of Survey Activities,” QSO-20-12-All (Mar. 4, 2020), https://www.cms.gov/files/document/qso-20-12-allpdf.pdf-1.