Obamacare, SCOTUSCare, Chevron And You…


Hello, ProviderNation. By now, you’ve read (or read about) the Supreme Court’s decision, in King v. Burwell, protecting Obamacare’s health insurance subsidies across the country. As the fine folks at AHCA/NCAL point out, the decision has very little immediate economic impact, since small-business owners had already been subject to the insurance mandate beginning this year; next year, bigger businesses will have to pony up.

“The SCOTUS ruling is a clear signal that the ACA is here to stay, at least for now,” AHCA/NCAL’s inestimable Dianne De La Mare has it. “In other words, it is ‘business as usual’ in all exchanges, whether those exchanges are state-run or federally run. Currently, 34 states rely on federally run marketplaces. Another 13, plus Washington, D.C., have their own state-run exchanges, and three others have state marketplaces but use HealthCare.gov to determine subsidy eligibility. The court’s decision clarifies that subsidies will continue to be available to any individual who purchases insurance through any exchange (state-run or federally run), and earns between 100-400 percent of the federal poverty level. That means those individuals who previously had tax-credit subsidies in federally run exchanges will keep those subsidies to the extent that they continue to satisfy the subsidy requirements. Those same individuals also will stay insured.”

If some business owners think that Burwell’s endorsement of Obamacare (or, as a rather disgruntled* Justice Scalia put it, “SCOTUSCare”) means the sky is falling, some advocates for front-line care workers clearly see Burwell as manna from heaven. The average direct-care worker earns about $17,000 per year, PHI’s Matthew Ozga writes. That’s way less than the 400 percent of the federal poverty line threshold that would qualify workers for Obamacare subsidies. If owners see Obamacare as bad for business, there might still be a silver lining: Workers who can obtain health care might  just be more willing to stay in their jobs.

Chevron Deference

There’s one other potential message-in-a-bottle from Burwell. You’ll see in reading Justice Roberts’ opinion for the 6-3 majority a reference to the two-pronged Chevron test. Roberts rejects the Chevron logic, but it might be worth exploring the reference because health care observers are likely to hear about it a lot more in the future.

In 1984, energy giant Chevron appealed a lower court decision in favor of a lawsuit originally brought by the National Resources Defense Council. NRDC had gotten the lower court to agree that Reagan-era revisions to EPA’s Clean Air Act regulations were illegal. Chevron appealed to the Supreme Court. In what is a little-known but widely felt decision, the court held that, in instances where legislation was ambiguous, the courts should focus on two questions: first, whether the regulatory action directly contradicts the intent of Congress, and, if not, whether the agency’s action “is based on a permissible construction of the statute.”

“If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute,” Justice Stevens wrote for the majority, “we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”

Ever since, “Chevron Deference” has been the shibboleth of the lobbying American community here in Washington.

*You may think it unfair to refer to Scalia as “disgruntled.” Can we agree, at least, that he was far from being gruntled?

Bill Myers is Provider’s senior editor. Email him at wmyers@providermagazine.com. Follow him on Twitter, @ProviderMyers.

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AHCA/NCAL: You’re The Top…

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Hats off to AHCA/NCAL!

Groucho Marx famously quipped, “I refuse to join any club that would have me as a member.” If he worked for AHCA/NCAL, perhaps he’d feel otherwise.

Now it appears that the LT/PAC profession’s leading trade association is also getting outside recognition: The Washington Post today named it the 16th top small workplace in Washington, D.C., and the top association in the small category in its Top Workplaces for 2015. Created in 2006, the honor recognizes organizations with greater than 50 employees who out-perform their peer groups in key areas of employment and employee satisfaction. Recognition is based on an anonymous employee survey sent by the paper.

AHCA/NCAL represents more than 12,000 nonprofit and proprietary skilled nursing centers, assisted living communities, post-acute centers, and homes for individuals with intellectual and developmental disabilities. Each of the association’s 100 employees is dedicated to improving the lives of millions of people who are frail, elderly, or have disabilities and who receive long term or post-acute care in the association’s member facilities.

“The Greater Washington area is full of extremely talented and bright individuals, and our members have given us the tools and ability to go out and recruit the best minds in the country,” said Mark Parkinson, AHCA/NCAL President and CEO. “Our employees are the heart and soul of the association, and we strive to create an environment that allows them to develop professionally and be successful. Only through this can we achieve our mission to improve lives by delivering solutions for quality care.”

This mission statement is taken to heart by all the employees. Not only do they talk the talk, they also walk the walk, as the past several months have shown.

In April, AHCA/NCAL successfully lobbied and was instrumental in the passage of legislation to fix the sustainable growth rate or “doc fix” bill. In May, the association also formally launched its expanded Quality Initiative as well as announced its Bronze Medal National Quality Award Program recipients. This month, over 400 advocates attended AHCA/NCAL’s Congressional Briefing and took to the Hill to speak to members of Congress and their staffs.

Groucho Marx also once said, “No man goes before his time—unless the boss leaves early.” AHCA/NCAL staff don’t follow this practice. Whether it’s prepping for a meeting with CMS or a congressional member, proofing the latest issue of Provider, or playing ball with the press, staffers put in long hours for the cause.

Congratulations, AHCA/NCAL–you’re the top!

Jackie Oberst is Provider’s managing editor. Email her at joberst@providermagazine.com. Follow her on Twitter, @ProviderMag.


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Mr. Parkinson Goes To Washington…

Provider advocates have come to Washington for AHCA/NCAL's annual Congressional Briefing.

Provider advocates have come to Washington for AHCA/NCAL’s annual Congressional Briefing.

Good morning, ProviderNation. The fine folks at AHCA/NCAL, apparently deprived of malarial heat in their own native climes, are coming to D.C.

They’ll gather in the capitol for what has become an annual rite of lobbying and organizing. “We will make sure the message is clear,” AHCA/NCAL President and CEO Mark Parkinson says. “And we will continue our work to improve lives by delivering solutions for quality care.”

As has been the case since Parkinson took over five years ago, provider advocates say they’re coming not to ask, but to offer. Parkinson and his team have gambled that what some folks might call “constructive engagement”—offering up proposals that address Big Picture concerns without sacrificing core mission (or funds) stuff—will pay off.

The dice have come up and it’s been all sevens so far: Already, AHCA/NCAL have successfully lobbied for a permanent repeal to the doc fix, they’ve answered the call on provider agreements and they’ve seen increasing momentum to scrap (or fix) the noxious observation stay loophole.

AHCA/NCAL wants you to know that they’re not resting on their laurels. In fact, this year they’ll not just be talking quality, but also pushing observation stays and reminding Congress-types about their thin operating margins.

Here’s the thing, though: Whatever political tempests providers find themselves tossed into (and it was ever thus), there’s no doubt that many have rethought their own attitudes towards the capitol. Michael Wylie, an executive at Genesis HealthCare in Pennsylvania and an AHCA/NCAL board member sums it up thusly:

“We’re a little more than a year in, and 2015 has already seen us clear some pretty sizable legislative hurdles. Through it all, we have viewed our role in Washington as partners in this process – working with lawmakers and regulators alike to make the strong case on why our members are at the forefront of quality care delivery,” he says.

If the Washington trip used to be a drag for many advocates (who, after all, have a lot to do on their own), that, too, may be changing and a growing sense of confidence is palpable among them.

“This week, we will bring another record number of individuals who cherish this profession and strive every day to make it the best it can be,” Wylie tells us. “I know Capitol Hill will be impressed.”

And The Winners Are… 

Speaking of impressiveness, mad props to Robin Hillier, Barry Lazarus and Bob Van Dyk, all of whom will be feted at Congressional briefing this year. They’re recipients of the Joe Warner Patient Advocacy Award, which is given annual to those who’ve done so much “to educate members of Congress about the needs of long term and post-acute care patients and to advance quality care.”

(And please don’t think I put Robin Hillier first on the list because she’s my favorite tweep. I mean, I put her first because she’s my favorite tweep, but I don’t want you to think that.)

So welcome to Washington, ProviderNation. Enjoy the sights, but try to stay in the shade.

Bill Myers is Provider’s senior editor. Email him at wmyers@providermagazine.com. Follow him on Twitter, @ProviderMyers.


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New Rules, New Policies (And Old Time Hockey)…

The doc fix has become a Stragelove-ian script.

CMS is expanding the Pioneer ACO model

Good morning, ProviderNation. I’m sure you’re anxious about the mixed results from last week’s most important news in the history of last week, but just calm yourself for 17 seconds. Further, it has been exciting to watch, no? And if this series doesn’t lead to a Constitutional amendment against dump-and-chase, well, then I weep for the future.

Pioneer Rules

In other news, the fine folks at CMS are clearly in a hurry to expand its Medicare Shared Savings program. Late last week, the agency published a final rule that the Obama administration hopes will “encourage the delivery of high-quality care for Medicare beneficiaries and build on the early successes of the program and of the Pioneer Accountable Care Organization (ACO) Model. This final rule is an effort to provide support for the care provider community in creating a delivery system with better care, smarter spending, and healthier people.”

Among other things, CMS is hoping that the final rule will create a new “Track 3” program, which attempts to Xerox the Pioneer model by offering higher rates of shared savings, prospective assignment of beneficiaries, and new care coordination tools. CMS says the rule will also “streamline” the flow of information between ACOs and the agency, refine some of the benchmarks to offer strong incentives to improve patient care and save money, and offer a waiver of the three-day rule for ACOs that join the Track 3 program, CMS says.

The last matter is likely to get the most attention from provider types. The American Health Care Association’s invaluable James Michel says the waiver may be “the most significant change” for post-acute care providers.

“Under the new rules,” Michel says, “ACOs who opt into the new ‘Track 3’ of the program will be able to submit an application to CMS requesting a waiver of the three-day stay requirement. ACOs must identify their desired SNF partners up front in the application, and the partner SNFs also must submit a letter of intent that must be included with the application.

“Additionally,” Michel adds, “SNFs will be eligible to apply for the waiver with the ACO only if they meet certain criteria, including having an overall rating of at least three stars on Nursing Home Compare.”

The new rules for the waiver take effect at the beginning of 2017, Michel says, “to give CMS enough time to issue additional sub-regulatory guidance outlining in more detail how to apply for and implement the waiver.” Stay tuned.

AGS, LGBT, You And Me

Speaking of new ways of thinking, you may have seen that the fine folks at the American Geriatric Society have published a new policy statement on the care of aging gay, lesbian, bisexual, and transgendered people. It urges provider types to take concrete steps to make sure that everyone is treated equally while under their care.

The statement itself is hardly revolutionary. But, rather like the dog walking on its hind legs, what matters is that it’s happening at all.

“All points covered aren’t groundbreaking, but it is great that they have taken an official stand,” says the Great Dayne Duvall, chief operating officer of the National Certification Board for Alzheimer Care. “I’m also glad that they cited studies and resources, especially the Joint Commission, CMS, and Institute of Medicine.”

The society’s policy statement is pushing on an open door as far as the National Center for Assisted Living’s board chair, Pat Giorgio, is concerned. “We long term care providers pride ourselves on person-centered care, and we must do all that we can to truly embody that effort,” she tells ProviderNation. “Each unique individual in our communities, regardless of sexual preference or orientation, is a person we are committed to serve.”

For all of that, Duvall says there is an unanswered question: What’s to be done about those elders who aren’t quite, um, on board with LGBT? (After all, it was barely a decade ago that a majority of voters in several states were showing up to ban gay marriage.)

Duvall nonetheless sees a paradox coming: If providers commit to person-centered care, doesn’t that mean that care has to be delivered equally to those who don’t share the majority’s view of equality? Putting it another way, what does a care center do when an orthodox Christian asks not to be cared for by an LGBT staffer?

“Does he have that right?” Duvall asks. “I really don’t know. But I know that we, as a profession, better start having that conversation.”

Bill Myers is Provider‘s senior editor. Email him at myers@providermagazine.com. Follow him on Twitter, @ProviderMyers.

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Through The Observation Stay Looking Glass…

The Senate Aging Committee admits that observation stays are a

The Senate Aging Committee admits that observation stays are a “crisis.”

Good morning, ProviderNation. Hope you’re recovered from your careful attention to the week’s most important news in history. Beyond the great news from Anaheim, the better news is that the next news will come from Chicago. Even if you don’t care for what one poet called “this combination of ballet and murder,” you owe it to yourself to watch the national anthem. It is an experience like no other. Trust your reporter: you’ll thank me later.

In other news, provider advocates are increasingly confident that there is (finally) momentum behind efforts to close Medicare’s observation stays loophole. In case you missed it, the Senate Aging committee on Wednesday took testimony from executive branch types on what the committee itself is calling a “crisis.”

“The financial consequences of these stays can be devastating for these patients and their families,” Aging Chair Sen. Susan Collins, R-Maine, said in her opening statement. “Many of these patients find themselves in a Medicare twilight zone.”

The hearing itself was something of a victory for advocates, who’ve been working for years to raise awareness of the thousands of people who are being denied Medicare benefits because of a loophole that allows hospitals to classify patients as being “under observation” instead of as, um, patients.  More than a few patients have found themselves through the looking glass here. (“‘When I use a word,’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean—neither more nor less.’”)

On Wednesday, AHCA/NCAL’s Clif Porter II said he was glad to see the Senate committee focused on an ongoing (and growing) problem. “Millions are at risk for getting stuck with thousands of dollars in medical bills because of their classification status in the hospital,” he said in a statement.

The hearing comes just a week after the NOTICE Act, which would require hospitals at least to tell patients when they’re under observation, was introduced into the Senate. Collins is one of several senators who’ve signed on to additional bills that would count observation stays toward a patient’s skilled nursing benefit.

Beyond the hearing, though, advocates are feeling confident that Congress is inching closer to fixing the problem.

“We’re pleased the Senate recognizes the scale of the problem and appears poised to move on it,” says Neill Pruitt Jr., chairman and chief executive officer of UHS-Pruitt and a member of the congressionally appointed Long Term Care Commission. “We’re hopeful that movement comes quickly, and we’re ready to help in any way we can.”

Bill Myers is Provider’s senior editor. Email him at wmyers@providermagazine.com. Follow him on Twitter, @ProviderMyers.

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Bundles Of Joy…

"To prosper," Parkinson says, "providers will have to own their part of the bundle."

“To prosper,” Parkinson says, “providers will have to own their part of the bundle.”

Good morning, ProviderNation. Viva Las Bundled Payments: AHCA/NCAL honcho Mark Parkinson is keynoting a conference in Vegas on Monday, and he’s planning on telling them that—like it or not—bundled payments aren’t just coming, they’re here (and they’re staying).

Nothing says “Sin City” quite like the 2015 Healthcare Bundled Payments Congress, and Parkinson will take his audience through the latest in government plots to transcend the bad, old fee-for-service days. By 2016, the federal government wants at least 30 percent of Medicare payments to be made under alternative payment models. The percentage will rise to 50 by 2018, Parkinson will say.

“Our members and the association have been working hard to understand bundling and how it affects our profession,” Parkinson tells us in an emailed statement ahead of his speech. “Given the magnitude of this issue, and the slow but steady shifts toward bundling and other payment considerations, it’s important for us to take charge. I believe it will be vital for future success in the sector.”

Thousands of providers are already testing out new-fangled ways under the government’s Bundled Payments for Care Initiative, Parkinson says, and some of the results from the (admittedly small) samples are showing reductions in payments and lengths of stay.

Other models under the initiative have shown that the number of days in skilled nursing centers has dropped (from 21 to 16 days), as has the average Medicare payment to skilled nursing centers (from more than $12,000 per resident to less than $7,500).

What’s important, though, is that more than half of the providers who are in the initiative are only in Phase 1. Phase 2 of the project is when providers will have to start assuming risks (i.e., do good or be docked). Currently, there are only 61 skilled nursing centers in Phase 2, which means that the reality of the bundled payment future hasn’t really hit most providers.

As Parkinson sees it, there’s simply too much mass and energy behind bundled payments to stop its momentum (for instance, the Obama administration is barely two weeks out of taking a victory lap over its Pioneer accountable care organization model, which the government is now expanding on a national scale).

If all this sounds apocalyptic, cheer up. Parkinson says it’s unlikely that they’ll be any kind of comprehensive reform until after the IMPACT Act is fully implemented, in fiscal 2022. But he also says that providers have a real opportunity not to get ahead of the curve, but to shape it.

First, providers will have to join up with health networks and carve out the post-acute care niche, he says. “The key will be showing that you add value at low cost,” Parkinson says.

And, as things stand now, “hospitalizations are the hottest metric,” Parkinson says, which means that providers who can get their clients well, and quickly, will be in the proverbial catbird seat.

“To prosper,” Parkinson will tell his audience, “you’ll need to own your part of the bundle.”

Bill Myers is Provider’s senior editor. Email him at wmyers@providermagazine.com. Follow him on Twitter, @ProviderMyers.

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The Fault In Their Stars…

CMS' fuzzy, Five Star math means that providers have to do the accounting for "low" quality.

CMS’ fuzzy, Five Star math means that providers have to do the accounting for “low” quality.


Hello, ProviderNation. Sorry to distract from the week’s most important event in history, but the fine folks at Kaiser have crunched the numbers, done the math, and added it all up. And they’re not happy. According to Kaiser’s analysis, nearly two out of every five skilled nursing center is lowly rated under the gummit’s Five Star Quality rating system.

Kaiser admits that another 45 percent of the nation’s centers have Four- or Five-Star ratings, but also finds that:

  • For-profit centers tend to have lower scores than nonprofit centers;
  • Smaller centers tend to have higher ratings than bigger centers;
  • Self-reported measures tend to be higher than measures “derived from state inspections;”
  • In 11 states, 40 percent of the centers tend to have low ratings, while in 22 other states (including the poor, benighted District of Columbia), at least 50 percent of the centers have four- or five-star ratings; and
  • States where the proportion of poor elders is higher tend to have lower-rated centers than states with more prosperous elders.

The Big Public, no doubt, will want to get into crash position. The problem, of course, is that it was my understanding that there would be no math here at the debates. (Excuse me again, my fellow Americans.)

You’ll recall that, earlier this year, the fine folks at CMS rebased their Five-Star system. By the stroke of a pen, nearly one in three of the nation’s care centers saw their quality rating fall, without quality actually falling. At the time, provider advocates worried that the CMS decision would make it even harder to tell hawk from handsaw; now, to their chagrin, they find themselves answering pointed questions that, to their way of thinking, is already more than a little question-begging.

“We worried about the Five-Star changes creating confusion, and now, unfortunately, it appears as though we were correct,” says Tom Coble, an Oklahoma provider and board vice chair of the American Health Care Association.

Gore Vidal, famously, said that “the four most beautiful words in common language” are “I told you so.” (The three most depressing words, Vidal added, were Joyce Carol Oates.) But something tells me that Coble and his friends take cold comfort from being right all along. Still, Coble tells me he’s trying to stay positive.

“Even so,” he says of the Five-Star debacle, “we’re proud that over half of all centers continue to be ranked at four stars or higher. What’s important, though, is the continuing commitment to quality care. We will never stop in that pursuit.”

Bill Myers is Provider’s senior editor. Email him at wmyers@providermagazine.com. Follow him on Twitter, @ProviderMyers.

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