Happy Labor Day to all. If you’re at ECap West, come stop by and say hi.

MINIMUM STAFFING RULE:

The White House, via CMS, released their minimum staffing rule on Friday. While less severe than anticipated, the rule acts as an unfunded mandate that will be very challenging to meet, particularly in rural areas. Here’s a breakdown of all information related to the rule:

• If you're just looking for a breakdown of what's in the rule, here's is AHCA's initial member guidance that provides an overview.

• The White House announcement: In addition to the basic information about the rule, the White House also mentions the OIG’s work, announced last year, in analyzing related party transactions.

• HHS press release

• CMS press release

• CMS fact sheet

• The proposed rule will be published to the Federal Register on Tuesday, September 6^th, at which point the 60-day comment period will begin. You can download a copy of the unpublished rule here (PDF).

• HHS also released a report from ASPE (Office of the Assistant Secretary for Planning & Evaluation) on the low wages paid to direct care workers. You can download a copy here (PDF).

• Not mentioned anywhere in the proposed rule is the actual staffing study that was leaked earlier this week. The study makes no recommendation as to a minimum staffing level, and in fact, suggests that no minimum standard is universally applicable. You can download a copy of the study here (PDF).

• AHCA’s initial press release on the proposed rule.

• The Kaiser Health News reporter who broke the news about the leaked study published an analysis of the new standards, along with reaction quotes from the usual suspects. The story also ran at the NY Times.

• One article, among the many, exploring DC’s reaction to the mandate.

• President Biden wrote an op-ed on the rule.

• In addition to the public comments that will be needed, it’s also important to amplify the voices of those who recognize how challenging a minimum staffing standard is. Senator Jon Tester, a Democratic Senator from Montana, understands how difficult implementation of this rule will be. Here’s his Tweet in response to the rule.

WHITE HOUSE:

The White House focused this week on a pay increase for federal employees (a good summary here), a new effort to create jobs in the clean energy sector (via the Treasury Department), a new proposed rule related to gun safety (via the Department of Justice) and $450 million to combat the opioid overdose epidemic. Two items of interest to us:

• They announced, via the Department of Labor, a new proposed rule related to overtime that would raise the overtime salary threshold to $55,000 a year. This may impact many of your non-clinical staff (housekeeping, dietary, etc.). Please consult with your legal advisors. The Obama Administration also tried something similar, although a federal judge struck it down back in 2017.

• You can download a copy of the Notice of Proposed Rulemaking (PDF). The rule has NOT yet been scheduled for publication in the Federal Register, so for now it remains merely a notice. The formal comment period will start upon publication.

• Here’s the press release.

• Here’s the FAQ.

• Highlighting the Administration’s close ties to the unions, the Treasury Department released a new study on the “benefit of unions”. You can access a copy here (PDF). It’s something to be aware of for those of you have navigate union relationships.

CONGRESS:

With Congress finally set to return to DC next week after the August recess, little has changed on the spending front. GOP House Leader McCarthy acknowledged the need for a short-term funding bill, but House conservatives continue to angle for a government shutdown. While the Senate is charting their own path forward, mapped out by Senate Leader Schumer in a Dear Colleague letter (PDF), his efforts are complicated by a second, very public, health scare involving Minority Leader McConnell. With relationships between House and Senate Republicans frayed, the outlook for a quick resolution remains slim. Elsewhere in the political world:

• With speculation rising about Senator McConnell’s future, a detailed look at the most likely candidates to replace him as Senate Leader.

• Following up on last week’s note about Governor Kathy Hochul of New York calling out the Administration regarding the migrant crisis, the Administration formally responded. The public response, which includes details about a plan to accelerate work authorizations, doesn’t match up with the private response, which pushes back on New York.

• Rollcall took a look at 12 House races next year that are rated as a toss-up.

• Senator Schumer will be hosting several top tech leaders, including Elon Musk, Mark Zuckerberg, and others at a closed Congressional forum on AI.

• Following last week’s Republican Presidential debate, Nikki Haley is surging in polls and gathering steam as a potential candidate. While all candidates remain far behind the front-runner, 538 suggests that it’s still too early to write them off.

• A look at a lawsuit that would have significant implications on soft dollars and political campaigning.

• Politico took a hard look at the dysfunction in Pennsylvania’s state Democratic party apparatus, something especially notable with how important the state is to the Presidential election and control of the Senate.

• With the age of Congressional Members yet again in the news, a look at the 20 oldest members of Congress.

AGENCIES:

With the Medicaid unwinding continuing, and many Medicaid beneficiaries being disenrolled from state programs, CMS sent out a letter to states reminding them of their obligations to prevent disenrollments. With public pressure mounting on the Administration, there may be more action coming. You can download a copy of the letter here (PDF).

The White House released the list of the first 10 drugs selected for Medicare Price negotiation. Both CMS and HHS issued press releases. CMS’ issued a fact sheet (PDF) on the drugs. HHS published a study (PDF) on the underlying analysis of why these drugs were picked. Kaiser Health News has a good FAQ on what comes next. McKnight’s has a summary on the implications of the program for long-term care pharmacies.

HHS sent a letter to the DEA recommending that Marijuana be reclassified as a schedule III drug, which would significantly change the federal and state regulatory landscape for marijuana. Although the letter is not yet public, it follows the push by the White House to implement marijuana policy reform. Here’s a breakdown of the legal implications and timeline.

The OIG at HHS updated their guide to their strategic oversight over managed care programs. It’s available here (PDF).

Yet another lawsuit win for hospitals as they push back on CMS’ implementation of the No Surprises Act.

FROM THE NOTEBOOK:

• We’ve been looking at Medicare Advantage plans. 25 members of Congress appeared in a video to support traditional Medicare and renew their public support.

• Axios and Fox Business explored labor shortages in other industries, highlighting yet again the need for immigration reform to help with the healthcare shortage.

• Humana filed a lawsuit against CMS’ final rule that allowed the agency to clawback overpayments to Medicare Advantage plans.

• We often discuss state budget action and inaction. North Carolina, which currently has no budget in place, is continuing to evaluate their Medicaid add-on on a monthly basis.

• We’ve discussed the Moving Forward coalition’s efforts to rethink SNF care. They published an op-ed in McKnight’s this week highlighting their “Action Plans”.

z-INTEL Tool of the Month: Medicare Advantage Debt Clock

Over the last few months, the Digest has focused on the growth and challenges of Medicare Advantage. Historically, Medicare Advantage's growth was more than offset by an increase in traditional, Fee-for-Service (FFS) enrollment. Starting in 2019, the absolute number of FFS beneficiaries started to decline as beneficiaries shifted to MA plans. This Medicare Attrition Rate has reached alarming proportions across the country, topped by West Virginia's reality wherein for every 100 additional MA enrollees, FFS drops by 91 (!) potential SNF admissions.

If you want to truly understand the impact that MA is having on the SNF world, check out Ecap Intel’s "Medicare Advantage debt Clock" as we creep toward $9B lost in 2023.

Questions? Email us at support@myzpax.com.

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