Policy Corner: September 10, 2021

House Committees Release Draft Language on Build Back Better Act

House committees released draft language this week for provisions of the Build Back Better Act. The language includes provisions for paid family and medical leave, increased penalties on employers that violate federal labor law, funding for home- and community-based services (HCBS) for people with disabilities and older adults, and lawful permanent status for Dreamers and Temporary Protected Status recipients. This language is in keeping with the House budget resolution passed last month, which instructed 13 House committees to write a proposal that would deliver a $3.5 trillion investment in jobs, education, and human services.

House Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-N.J.) announced yesterday that the Energy and Commerce Committee will hold a full committee markup Sept. 13 on legislative recommendations for its budget reconciliation instructions. Of particular interest is the $190 billion for HCBS, which includes supports for caregivers and help with recruiting and retaining the direct care workforce. This amount is less than the $400 billion proposed by the Biden-Harris Administration.

Last month, the the Senate passed a $3.5 billion budget resolution, S. Concurrent Resolution 14, and the House approved a $3.5 trillion budget resolution. The budget resolution provides a framework for the Better Care Better Jobs Act, S. 2210, sponsored by Sen. Robert Casey, Jr. (D-Pa.) along with 39 co-sponsors including Sens. Ron Wyden (D-Ore.), Chuck Schumer (D-N.Y.), Patty Murray (D-Wash.), Tammy Duckworth (D-Ill), Margaret Hassan (D-N.H.), and Sherrod Brown (D-Ohio). An identical bill, H.R. 4131, was introduced in the House of Representatives by Rep. Debbie Dingell (D-Mich.).

Lawmakers Introduce Bill to Update Nursing Home Policy

House Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-N.J.) and House Ways and Means Committee Chairman Richard E. Neal (D-Mass.) introduced legislation to update federal nursing home policy to improve quality of care and oversight. Senate Finance Committee Chairman Ron Wyden (D-Ore.) and Senate Aging Committee Chairman Bob Casey (D-Pa.) released a companion version in the Senate last month.

The Nursing Home Improvement and Accountability Act would require nursing homes to meet minimum staffing standards, ensure a registered nurse is available 24 hours a day, require a full-time infection control and prevention specialist, and provide additional resources through Medicaid to raise wages and support these care and staffing improvements. The bill also takes a number of steps to increase transparency and accountability by improving data collection, providing better information to residents and their families, and enhancing the effectiveness of state surveys.

Lawmaker Introduces Bills Relating to Employment and People with Disabilities

Rep. Glenn Grothman (R-Wis.) recently introduced two bills relating to employment for people with disabilities. The Employment Choice for Adults with Disabilities Act, H.R. 4761, was introduced to recognize the rights of adults with disabilities to be treated with dignity and respect in their choices. The Workplace Choice and Flexibility for Individuals with Disabilities Act, H.R. 4762, was introduced to expand employment opportunities for people with disabilities.

BIAA Expresses Concerns Regarding Payment Models for Home Health Care and Associated Therapies

As a steering committee member of the Coalition to Preserve Rehabilitation (CPR), the Brain Injury Association of America (BIAA) supported comments in an Aug. 27 letter to Chiquita Brooks-LaSure, Centers for Medicare & Medicaid Services (CMS) Administrator.  The letter was in response to proposed rules for the 2022 Home Health Prospective Payment System Rate, Health Value-Based Purchasing (HHVBP) Model Requirements and Proposed Model and Expansion, and Home Health Quality Reporting Requirements. The comments focused on two primary aspects of the rule: the ongoing impact of the Patient-Driven Groupings Model (PDGM), which has resulted in decreased access to care including therapy/therapist cuts, earlier discharges, fewer therapy minutes, and lack of access to maintenance therapy; and the new proposal to expand the Home Health Value-Based Purchasing Model nationwide, which CPR believes disincentivizes the provision of maintenance therapy.

The rule proposes to expand the HHVBP nationwide to all Medicare-certified home health agencies beginning Jan. 1, 2022. CPR has long been concerned about the provision of maintenance therapy in the home health system, which is covered by Medicare as affirmed under the Jimmo v. Sebelius class-action settlement, but is often at risk of being cut or provided insufficiently by home health agencies. “Maintenance” therapy assists patients to maintain or prevent deterioration of their functional status, as opposed to improving their functional abilities.

Under the current home health payment system, Medicare beneficiaries receiving home health care have faced increasing barriers to accessing maintenance therapy or other complex care for serious, chronic conditions including brain injury. With regard to PDGM, all of the major rehabilitation therapy associations have expressed concerns that, in the months leading up to and soon after the implementation of the PDGM, HHAs across the country began to eliminate therapist positions and drastically reduce hours for employed therapists due to the payment changes inherent in the PDGM. Organizations representing therapists have also received reports from their members that remaining therapists have been directed to decrease the therapy minutes provided and that certain patients have been rejected or terminated due to their categorization under the new Home Health Resource Groups (HHRG). Additionally, patients are being discharged earlier –after the higher-paid, early period of care expires.

ACL Awards TBI State Partnership Program Grants

The Administration for Community Living (ACL) recently awarded 28 five-year cooperative agreements under the new funding opportunity for ACL’s Traumatic Brain Injury (TBI) State Partnership Program. The goal of the ACL program is to create and strengthen systems of services and supports that maximize the independence, health, and well-being of people with TBI across the lifespan, their family members, and their support networks. Grantee work is supported by the TBI Technical Assistance and Resource Center to maximize the program’s impact nationally.

Each grantee is to support a state TBI advisory board, at least 50% of which is made up of individuals with brain injury, create a TBI state plan based on stakeholders’ unmet needs, and connect people with TBIs and their families to comprehensive services and supports across relevant systems.

Administration Expands Vaccine Requirement Beyond Nursing Facilities

The Biden-Harris Administration announced that it will require COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities to protect both staff and patients from the virus and its more contagious Delta variant. Facilities across the country should make efforts now to get health care staff vaccinated to make sure they are in compliance when the rule takes effect.

In collaboration with the Centers for Disease Control and Prevention, CMS announced that emergency regulations requiring vaccinations for nursing home workers will expand to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs. The decision was based on the continued and growing spread of the virus in health care settings, especially in parts of the U.S. with higher incidences of COVID-19. CMS is using its authority to establish vaccine requirements for all providers and suppliers that participate in the Medicare and Medicaid programs.

BIAA gratefully acknowledges the Centre for Neuro Skills and Avanir Pharmaceuticals for their support for legislative action. Click here to read past issues of Policy Corner.