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PPACA Ruling Keeps LTC Changes Coming

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The Patient Protection and Affordable Care Act of 2010 (PPACA) may now be on track to shake up the U.S. long-term care (LTC) system as well as the acute care system.

PPACA provisions dealing with acute care attracted most of the media attention this spring when the Supreme Court heard oral arguments on the constitutionality of the law.

But, when the court ruled 5-4 last week that Congress had the authority to impose a tax on people who fail to buy a minimum level of health insurance, it appeared to clear the way for implementation, at least for now, of many PPACA provisions that could affect Medicare and Medicaid payments for post-acute care services and federal funding for federal and state programs that serve older people and people with disabilities.

Republicans are continuing to fight PPACA in Congress and in lawsuits that have not yet reached the Supreme Court.

The U.S. Department of Health and Human Services (HHS) admitted in October 2011 that it had not been able to find a way to make the best known PPACA LTC program — the Community Living Assistance and Support Services (CLASS) Act program, a voluntary, worker-funded LTC benefits program — actuarially sustainable. HHS suspended efforts to implement that program.

But PPACA includes many other provisions that could affect LTC providers and LTC users.

One section, for example, PPACA Title II, Subtitle E, is supposed to create new state LTC options.

The section created a Community First Choice program in October. The program is supposed to allocate a total of $3.7 billion in funding by 2014 for states that provide attendant services for people with disabilities who are eligible for Medicaid and are living outside LTC facilities.

Subtitle E also is supposed to pay for state efforts to remove barriers to providing home and community-based services, and it is supposed to finance state efforts to expand state aging and disability resource center programs.

In June, the U.S. Department of Health and Human Services (HHS) posted a disability resource center grant application announcement

PPACA Section 10202 is supposed to create $3 billion in incentives for states that offer home and community-based LTC services as an alternative to nursing home-based LTC services.

Other PPACA sections:

  • Set new nursing home ownership disclosure requirements and skilling nursing facility performance requirements.
  • Will require LTC hospitals, inpatient rehabilitation hospitals and hospice programs to report quality measures, starting with measures for bed sore rates and catheter-related urinary tract infections.
  • Will require the government to improve its nursing home comparison website and make it easier for consumers to file complaints through the Web.

When the Supreme Court ruled on the PPACA constitutionality case, NFIB vs. Sebelius (Case Number 11-393), it may also have had a direct effect on state Medicaid LTC programs.

Although the court upheld the constitutionality of PPACA, the majority said Congress had no right to force states to expand their Medicaid programs by threatening to withhold existing Medicaid funding streams.

The ruling affects a PPACA provision that would have required all states to open Medicaid coverage to adults earning up to 133% of the federal poverty level.

Groups with an interest in Medicaid are still studying those passages in the opinion to understand what, if any, effect they might have on the PPACA Medicaid benefits expansion provisions, according to the National Academy of Elder Law Attorneys, Washington.

The National Association for Home Care & Hospice (NAHC) Washington, a group that represents home care and hospice organizations, has supported PPACA provisions that promote increased use of home-based and community-based LTC services.

Although PPACA includes provisions promoting increased use of home care, PPACA and other laws also include Medicare budget control measures that could lead to cuts in Medicare home care reimbursement rates.

The Medicare Payment Advisory Commission, a government medical cost watchdog, reported in March that free-standing Medicare home health agencies had profit margins of about 19%.

The commission recommended in March, as it recommended in a similar report issued a year earlier, that the home health payment system should be realigned starting in 2013. “This policy would lower payments beginning in 2013,” the commission said. The commission also has recommended that Medicare base payments for therapy services on patient characteristics and reduce incentives for selection of certain types of patients.

Val Halamandaris, president of NAHC, says in the NAHC response to the Supreme Court ruling that, despite all of the talk about supporting home health services, Medicare has been imposing disproportionate cuts on home health care providers.

NAHC “will oppose the imposition of copayments or addition cuts,” Halamandaris says. “NAHC believes that a good case can be made to expand the scope of Medicare home health services to reduce hospitalization costs and improve services for the 5% of Americans who are responsible for 50% of total U.S. health care costs.”

The Paraprofessional Healthcare Institute (PHI), Bronx, N.Y., a group that says it speaks for LTC facility workers and home health care workers, notes that about 25% of the country’s LTC workers have no health coverage of their own.

The PPACA commercial coverage access and Medicaid coverage expansion provisions should help many of those workers get coverage, PHI says.

“Affordable health coverage for all will make it easier to recruit a stable, well-trained, compassionate workforce to provide these services,” PHI says.

“Though the [Supreme] Court ruled that states cannot lose all their federal Medicaid matching dollars for not expanding Medicaid coverage, we believe strongly that states will choose to participate in this unprecedented effort to ensure that all low-income Americans have access to health care,” PHI says. “In the long-run, a healthy population is more productive and less costly to our nation.”

North American Company for Life and Health Insurance, Chicago, has reacted to the news about the PPACA ruling by suggesting that agents and brokers might want to focus on helping clients get around all of the new PPACA rules by building cash reserves through mechanisms outside of the scope of PPACA, such as annuities and cash-value life insurance. The funds in the life and annuity contracts could be used to cover LTC costs as well as acute care costs, the company says.


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