Happy Hump Day eve! There is so much going on right now with the economy, government shutdown (whew, avoided that one for a bit) dynamics, election news, and health policy that it is becoming difficult to parse topics into stuff of value. Hopefully, a couple of quick updates will make room for more insightful analysis as things march forward.
Jimmo v. Sebelius: A story on Jimmo caught my attention and prompted me to drop an update on this important case, ten years later. Jimmo was a case that settled in January of 2013 in the U. S. District Court of Virginia. The core of the case is the interpretation of Medicare coverage in post-acute environments such that coverage continuation (for benefits) requires improvement in health status. The fact sheet from the settlement is available here: JimmoFactsheet-04032013-final
Glenda Jimmo was a blind woman with diabetes who was denied home health benefits under Medicare because her health status was not improving. She sued the Secretary of Health and Human Services (Kathleen Sebelius) and CMS and ultimately, achieved a settlement on the grounds that no requirement existed in any Medicare manual for continued benefits/coverage. Essentially, CMS and its intermediaries have been applying a non-existent “improvement in function or health status”.
Federal law has long made it clear that skilled nursing (home health or SNF) can be used to prevent deterioration or preserve current functioning. As a result of the Jimmo settlement, CMS was required to ensure access to skilled nursing and therapy services would be supported in nursing homes, home health and outpatient settings.
CMS revised its Medicare policy manuals to reflect that clarification, and later created an educational website after a federal judge found in 2016 that the agency still hadn’t done enough to explain and enforce, maintenance coverage criteria. In 2021, CMS again issued a memo as “improvement” denials continued. In reality, Medicare coverage and benefits could continue for the maximum benefit period if the care delivered, is to maintain functional status (100 days in an SNF).
The challenge for providers is two-fold. First, the various trade associations and the providers therein need to continue to lobby legislative officials and CMS to uphold the Jimmo settlement terms. Second, providers need to gain confidence and the education necessary to assess and then document care delivery, consistent with maintenance of functionality, where skilled services are necessary for the prevention of decline.
Nursing Home Staffing Mandate: On September 1, CMS issued its proposed minimum staffing (nursing, direct care) rule, long awaited. The Biden Administration made the development of a staffing “mandate” a centerpiece of its health policy platform. A fact sheet on the proposed rule is available here: https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-minimum-staffing-standards-long-term-care-facilities-and-medicaid
When the proposed rule was released, I wrote a post about it on this site. It is available here: https://rhislop3.com/2023/09/01/cms-releases-rule-on-snf-staffing-mandate/
What has driven industry fury, aside from an official “mandate”, is how such staffing condition can be met given the likely cost and the limited availability of staff, particularly Registered Nurses, to meet the requirements. Various cost estimates have floated around starting with CMS’ estimated price tag of $4 billion for compliance.
Late last week, AHCA (American Health Care Association), an SNF (primarily) industry trade group, issued an updated analysis of the proposed rule’s costs. The analysis was conducted by CLA (Clifton Larson Allen). The key findings are below. The AHCA press release of the CLA report is available here: https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/New-Analysis-Finds-Federal-Staffing-Mandate-Would-Require-100,000-Additional-Nurses-and-Nurses%E2%80%99-Aides,-Cost-$6-8-Billion-Pe.aspx
- Nursing homes would need to hire an estimated 102,154 additional full-time employees (80,077 nurse aides and 22,077 RNs).
- The proposed mandate would cost nursing homes approximately $6.8 billion per year – higher than the $4 billion per year estimate from the Centers for Medicare and Medicaid Services (CMS).
- Ninety-four percent of nursing homes are currently not meeting at least one of the three proposed staffing requirements: the 2.45 nurse aide HPRD, the 0.55 RN HPRD, and the 24/7 RN.
- Of the 94 percent, 36 percent of facilities are not meeting all three requirements; 34 percent are not meeting two of the requirements; and 24 percent are not meeting one of the requirements.
- Nursing homes that did not meet at least one of the requirements were more likely to have a majority of their residents relying on Medicaid (56 percent average Medicaid census) compared to facilities that met the criteria (43 percent).
- If nursing homes are unable to increase their workforce to meet these new requirements, more than 280,000 nursing home residents, or nearly one-quarter of all residents, could be impacted by census reductions.