AMERICAN HEALTH LAWYERS ASSOCIATION LONG TERM CARE AND THE LAW

AMERICAN HEALTH LAWYERS ASSOCIATION LONG TERM CARE AND THE LAW February 27-29, 2012 C. Legislative and Regulatory Update for All Providers of Long Term Care, Services and Supports Marsha R. Greenfield, J.D. Vice-President, Legislative Affairs Jennifer L. Hilliard, J.D., M.M.H. Public Policy Attorney LeadingAge (formerly AAHSA) LEGISLATIVE DEVELOPMENTS INTRODUCTION 2011 marked the end of three years of intense Congressional focus on health care, beginning with the debates during the 2008 Presidential campaign, continuing through 2009 with the battle over passage of the Affordable Care Act and 2010 with the battle to pass and then repeal the ACA. Rather, the major issues confronting Congress and the Administration throughout 2011 were budgetary deficit, debt ceiling and entitlement programs like Medicare and Medicaid were viewed through the prism of budget rather than healthcare. Some of this emphasis arose out of the results of the 2010 election, which brought a large contingent of budget-minded Representatives and Senators to Congress individuals with a strong commitment to reducing the size of the federal government. Some came from private or Presidentially-appointed or Congressionally-created commissions Rivlin-Domineci, Bowles-Simpson, Gang of 6. 1

As a result, very little non-budgetary legislation passed during this second and final year of the 112 th Congress. The great debates over how best to reduce cost, increase quality, and improve delivery of healthcare services, Medicare, Medicaid and private, ceded priority to how to reduce federal spending, and great battles over spending and taxes. Nonetheless, these budget battles had both a direct and indirect impact on mandatory healthcare programs (Medicare and Medicaid) and discretionary spending programs affecting home and community-based services and senior housing. I. Most Significant Legislation Passed in 112 th Congress (Feb. 2011-Jan. 2012) 1. P.L. 112-25: Budget Control Act of 2011(S. 365) (signed into law August 2, 2011) (http://www.gpo.gov/fdsys/pkg/plaw- 112publ25/pdf/PLAW-112publ25.pdf) This is the most significant and far-reaching legislation that passed this Congress. Authorizes extension of borrowing authority [debt limit]; creates process for additional debt limit extensions; enacts discretionary spending caps for FY 2012-2021; creates Super Committee to develop additional spending cuts and fast-track process for Congress to enact/defeat; creates automatic sequestration for discretionary and mandatory spending if Super Committee fails, Congress rejects or President vetoes; limits sequestration cuts to Medicare program to 2% of program expenditures; provides for votes in both Houses on Balanced Budget Amendments Title I: Ten-Year Discretionary Caps with Sequester (Sec. 101) Amends the Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act) to revise sequestration requirements for enforcement of discretionary spending limits (spending caps), establishing specific discretionary spending limits for FY 2012-FY 2021 (which were incorporated into FY 2012 Appropriations). Increase in discretionary spending authorized/mandated for: (1) emergency appropriations or Overseas Contingency Operations/Global War on Terrorism, (2) health care fraud and abuse control, and (3) disaster relief. (Sec. 103) Requires discretionary preview and final sequestration reports by OMB to specify estimates for the 2

current year and each subsequent year through 2021 of the applicable discretionary spending limits for each category and an explanation of any adjustments in such limits. Requires: (1) sequestration update reports to include a preview estimate of the adjustment for disaster funding for the upcoming fiscal year, and (2) final sequestration reports for the current year and each subsequent year through 2021 to include a final estimate of the adjustment for disaster funding. (Sec. 104) Makes the Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act) permanent. (Sec. 105) Amends the Congressional Budget and Impoundment Control Act of 1974 to allow the chairman of the Budget Committee of the House of Representatives or of the Senate to make appropriate budgetary adjustments of new budget authority and outlays in the same amount required by the Gramm-Rudman-Hollings Act. Makes it out of order in both chambers to consider any legislation or motion that would cause the discretionary spending limits to be exceeded (designed to force budget discipline) (Sec. 106) Provides that, for purposes of enforcing the BCA through April 15, 2012 (when FY 2013 budget due), and enforcing budgetary points of order in prior concurrent budget resolutions, the allocations, aggregates, and levels established in this Act shall apply in the Senate in the same manner as for a concurrent budget resolution for FY2012 with appropriate budgetary levels for FY2011, and FY2013-FY2021. Applies after April 15, 2012, and for the same purposes, such allocations, aggregates, and levels in the Senate in the same manner for a concurrent budget resolution for FY2013 with appropriate budgetary levels for FY2012, and FY2014-FY2022. Prescribes administrative procedures for committee allocations, aggregates, and levels. Eliminates the applicable requirements of this section if a concurrent budget resolution for FY2012 or for FY2013 is agreed to by both chambers (leaves Congress an out if it can come to agreement) Applies half of cuts to Defense; half to non-defense. 3

Title II: Vote on the Balanced Budget Amendment (Sec. 201) Requires the House and the Senate, after September 30, 2011, and by December 31, 2011, to vote on passage of a joint resolution proposing a balanced budget amendment to the Constitution (both Houses did vote; H.J. Res. 2 failed House; S.J. Res. 10 failed in Senate). Title III: Debt Ceiling Disapproval Process (Sec. 301) Authorizes the President, by December 31, 2011, to certify to Congress that the public debt is within $100 billion of the $14.294 trillion public debt limit and that further borrowing is required to meet existing commitments. Authorizes the Secretary of the Treasury to borrow an additional $900 billion, subject to the enactment of a joint resolution of disapproval (was done timely) Prescribes similar procedures for the Secretary to borrow an additional $1.2 trillion, or $1.5 trillion if the Archivist of the United States has submitted to the states for their ratification a balanced budget amendment resolution, or if a joint committee bill to achieve an amount greater than $1.2 trillion in deficit reduction is enacted, the amount of such deficit reduction, but not greater than $1.5 trillion, unless such resolution has been submitted to the states for ratification. Prohibits the debt limit from being raised (except for the $400 billion increase) if, within 50 calendar days after Congress receives a presidential certification or within 15 calendar days after Congress receives such additional certification (regardless of whether Congress is in session), there is enacted into law a joint resolution disapproving the President's exercise of authority with respect to such additional amount. Requires OMB, if the President signs the joint resolution or allows it to become law without his signature, or Congress overrides a veto of it, to implement a sequestration to reduce spending by $400 billion. (Sec. 302) Amends the Gramm-Rudman-Hollings Act to revise the discretionary spending limits and to reduce the discretionary appropriations and direct spending specified in this Act unless a joint committee bill achieving an amount greater than $1.2 trillion in deficit reduction is enacted by January 15, 2012. Effective FY 2013-2021. Half of reduction 4

comes from defense, half from non-defense. Medicare reduction no more than 2%, excess taken out of non-defense spending. Medicaid program excluded, along with certain other poverty programs. (Sequestration provision if Super Committee fails, which it did). Title IV: Joint Select Committee on Deficit Reduction created, charged with goal of reducing the deficit by at least $1.5 trillion or more over FY2012-FY2021. (Sec. 401) Requires the committee to provide recommendations and legislative language that will significantly improve the short-term and long-term fiscal imbalance of the federal government. (Sec. 402) Prescribes legislative procedures for consideration in both chambers of the Joint Committee's recommendations. Makes such legislative procedures inapplicable to the Joint Committee's bill if: (1) the Committee fails to vote on the report or proposed legislative language by November 23, 2011; or (2) the bill does not pass both chambers by December 23, 2011. Super-Committee failed to agree on cuts/revenue, which means that Sequestration presumably will go into effect. Or not. Supporters of defense funding object to projected cuts. Stay tuned. Some questions to ponder: if Congress rejects cuts to defense spending but doesn t reduce the $1.2T figure, will all the cuts then come from non-defense? What will be the impact on housing and health programs? Will the 2% limit on Medicare be changed? II. Other Public Laws Affecting LTSS Providers 1. P.L. 112-9 (H.R.4) : Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011. Signed into law April 14, 2011 (http://www.gpo.gov/fdsys/pkg/plaw- 112publ9/pdf/PLAW-112publ9.pdf) This is the only legislation that passed repealing specific provisions in Affordable Care Act. Amends the Internal Revenue Code to: (1) repeal requirements in the ACA for the reporting by businesses to the IRS of payments of $600 or more to corporations that are not tax-exempt and of gross proceeds paid in consideration for any type of property; (2) repeal requirements for reporting payments made with respect to rental property which is not part of a trade or business; and (3) increase, for 5

taxable years ending after December 31, 2013, the advance applicable dollar amount of the tax credit for health care premium assistance for taxpayers whose household income is less than 400% of the poverty line. 2. P.L. 112-78 (H.R.3765) : Temporary Payroll Tax Cut Continuation Act of 2011. Signed into law 12/23/2011 (http://www.gpo.gov/fdsys/pkg/bills-112hr3765rds/pdf/bills- 112hr3765rds.pdf) Social Security tax reduction, Doc fix and therapy cap exceptions process extended through 02/29/2012. House had passed H.R. 3630 providing for 2-year extensions, plus other provisions, which Senate did not pass, this bill was the compromise to prevent, among other things, implementation of the payment formula for physicians and implementation of caps on outpatient therapy. Title I: Temporary Payroll Tax Relief - (Sec. 101) Amends the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 to extend: (1) the reduction in the rate of the self-employment tax on self-employed individuals through 2012; and (2) the reduction in the rate of the employment tax on employees until February 29, 2012 Title III: Temporary Extension of Health Provisions - (Sec. 301) Amends title XVIII (Medicare) of the Social Security Act (SSA) to set the update to the single conversion factor in the formula for the physicians' fee schedule for the first two months of 2012 at zero (thus freezing the physician payment update for the first two months of 2011). Requires the conversion factor for the remaining portion of 2012 and subsequent years to be computed as if the zero update for the first two months of 2012 had never applied. (Sec. 303) Extends through February 29, 2012 the 1.0 floor on geographic indexing adjustments to the work portion of the physician fee schedule. (Sec. 304) Extends through February 29, 2012, the process allowing exceptions to limitations on medically necessary therapy caps. (The Balanced Budget Amendment of 1997 placed caps on out-patient therapy pending creation of a more accurate payment system. No system has been developed to date. Congress created a new process to attempt to control out-patient therapy costs, the exceptions process, which must be renewed periodically.) House and Senate agree to conference H.R. 3630, 12 members appointed (6 House, 6 Senate, equally divided by party). 6

H.R. 3630 contains the following provisions of specific interest to longterm care providers and beneficiaries, in addition to extending the doc fix (http://www.gpo.gov/fdsys/pkg/bills-112hr3630eh/pdf/bills- 112hr3630eh.pdf ) Sec. 2203: Medicare Payment For Outpatient Therapy Services extends exceptions process through Dec. 31, 2013; applies therapy caps and exceptions process to hospital out-patient therapy; requires request for exceptions to contain appropriate modifier evidencing medical necessity; provides that exceptions above $3,700 threshold be subject to manual review (calculated separately for PT/language and OT); orders MedPAC report by Mar. 2013 on recommendations on reforming payment system; orders HHS to collect data to better understand patient condition and outcomes; orders GAO report by May 2013 on implementation of manual review process. (Both House and Senate have popular, bipartisan bills that would simply repeal the caps H.R. 1546, introduced by Rep. Jim Gerlach (R-PA) and S. 829, introduced by Sen. Ben Cardin (D-MD).) Sec. 2204: Reduction of Bad Debt Treated as an Allowable Cost: reduces percentage of bad debt reimbursable by Medicare from 70% in 5% increments to 55% (commencing FY 2013-FY 2015), applicable to hospitals (we believe this was the intended fiscal target) and SNFs. For SNFs, essentially repeals provision in statute that allows for full reimbursement for dual eligibles where the State does not fully pay under Medicaid. Applies same formula as for private pay co-pays. III. Budget Resolutions: FY 2011 The first four months of 2011 were devoted to finalizing the FY 2011 budget, with the major debates being over how much to reduce/cut discretionary funding. 1. P.L. 112-4 (H.J.RES.44) : Further Continuing Appropriations Amendments, 2011(extended FY 2011 CR from Mar. 4 through Mar.15, 2012) 2. P.L. 112-6 (H.J.RES.48) : Additional Continuing Appropriations Amendments, 2011(extended FY 2011 CR from Mar. 15 through Apr. 8, 2012 7

3. P.L. 112-8 ( H.R.1363) : Further Additional Continuing Appropriations Amendments, 2011(extended FY 2011 CR from Apr. 8 through Apr. 15, 2012)(avoiding government shut-down) 4. P.L. 112-10 (H.R. 1473): Department of Defense and Full-Year Continuing Appropriations Act, 2011(FY 2011 CR) (signed 4/15/2011) IV. Budget Resolutions: FY 2012 Having concluded the battle over FY 2011 in April (some 6 months into the fiscal year), Congress turned to the budget for FY 2012. Battle lines were drawn when Rep. Paul Ryan (R-WI) introduced the House budget, which included extensive restructuring of Medicare, Medicaid and Social Security (described in Sec. V.6, below). While the House passed the Ryan budget, the Senate did not. Complicating battles over deficit reduction and entitlement programs was the realization that the federal government would exceed its borrowing power to pay down federal debt on August 2. New members of Congress, elected to reduce federal spending, revolted against increasing the debt limit, and the summer of 2011 saw almost non-stop debate and disagreement, brinksmanship and efforts at bi-partisan compromise, leading to the Budget Control Act, discussed above. Although BCA instructed the appropriators on reductions for FY 2012, continued disagreement over other policy issues dogged the effort to finalize appropriations for FY 2012, leading to another near-shutdown. 1. P.L. 112-33 (H.R.2017) : Continuing Appropriations Act, 2012 (CR through 10/4/11) (another government shutdown averted) 2. P.L. 112-36 (H.R.2608) : Continuing Appropriations Act, 2012 (CR through 11/18/11) 3. P.L. 112-55 (H.R.2112) : Consolidated and Further Continuing Appropriations Act, 2012 ( minibus ) (funds Agriculture, Rural Development, FDA, T-HUD, Commerce, Justice, Science; CR for other agencies through 12/16)(eliminates capital funding for HUD 202 housing programs) 4. P.L. 112-67 (H.J.RES.94) : Making further continuing appropriations for fiscal year 2012, and for other purposes. (extends CR through 12/17) 5. P.L. 112-68 (H.J.RES.950 : Making further continuing appropriations for fiscal year 2012, and for other purposes (extends CR from 12/17 through 12/23) 6. P.L. 112-74 (H.R.2055) : Consolidated Appropriations Act, 2012 (full Appropriations for FY 2012) (signed 12/23/2011) 8

V. Bills of Interest Introduced but Not (Yet) Passed into Law 1. Bills to Repeal the Affordable Care Act H.R. 2: Repealing the Job-Killing Health Care Law Act, introduced by Rep. Eric Cantor (R-VA) on Jan. 5, 2011; passed House, Jan. 19, 2011 (http://www.gpo.gov/fdsys/pkg/bills-112hr2pcs/pdf/bills- 112hr2pcs.pdf ). Sent to Senate, see below. Related bills: H.R. 141, H.R. 215, H.R. 145, H.R. 215, H.R. 429, H.R. 636 (all repeal ACA, all referred to various Committees, without further action) S. 192: Repealing the Job-Killing Health Care Law Act, introduced by Sen. Jim DeMint (R-SC), Jan. 26, 2011, placed on calendar, no further action. Incorporated into S. 1720 as Title I, Sec. 3101, introduced by Sen. John McCain, Oct. 17, 2011, same result. 2. CLASS Act Repeal: H.R. 1173: Fiscal Responsibility and Retirement Security Act of 2011, introduced by Rep. Charles Boustany (R-LA) on Mar. 17, 2011, reported out of Energy & Commerce and Ways & Means Committees, expected to be voted on by full House the week of Jan. 30, 2012 (http://www.gpo.gov/fdsys/pkg/bills-112hr1173rh/pdf/bills- 112hr1173rh.pdf ); S. 720, Repeal the CLASS Entitlement Act, introduced by Sen. John Thune on Apr. 4, 2011, referred to Senate Finance, effort to bring to Senate floor by unanimous consent failed, future in Senate of either S. 720 or H.R. 1173 is unclear. Both bills repeal Title VIII of the Affordable Care Act, which created the CLASS insurance program for long-term services and supports. Both bills picked up steam when the Department of Health and Human Services announced in October 2011 that it was not moving forward with CLASS at this time because HHS concluded that it did not have the authority to make certain changes to the law as enacted that HHS concluded would be necessary to create a fiscallysustainable program. 3. Long Term Care Insurance: H.R. 63: Long-Term Care Insurance Reform Act of 2011, introduced by Rep Lloyd Doggett (D-TX); referred to House Energy & Commerce Committee (http://www.gpo.gov/fdsys/pkg/bills-112hr63ih/pdf/bills- 112hr63ih.pdf); S. 159, Confidence in Long-Term Care Insurance Act of 2011,introduced by Sen. Herb Kohl (D-WI), referred to Senate Finance Committee. 9

Designed to improve oversight of private LTC insurance products; increase transparency and consumer protection, including development of and incorporation into Model NAIC LTC Insurance Act of model disclosure form; sets forth requirements related to the use of the proposed model disclosure form for marketing LTC insurance policies, including requiring states to require issuers to use such forms. Reauthorizes the National Clearinghouse for Long-Term Care Information through 2015, and requires the Clearinghouse to establish online directory of information regarding LTC insurance (to be known as LTC Insurance Compare). Amends the Internal Revenue Code to apply Medicaid partnership required model provisions to all tax-qualified LTC insurance contracts. Outlines a process for secretarial review of model provisions adopted by NAIC with respect to their application to tax-qualified LTC policies and Medicaid partnership policies to determine if updating such provisions would improve consumer protections for insured individuals. Applies 2006 NAIC model regulations to Medicaid partnerships. (Currently, 2000 NAIC model regulations apply). 4. SNF Resident Access to Pain Medication: S. 1560: Nursing Home Resident Pain Relief Act of 2011, introduced by Sen. Herb Kohl (D-WI) (http://www.gpo.gov/fdsys/pkg/bills- 112s1560is/pdf/BILLS-112s1560is.pdf) Allows SNFs to designate an individual as a facility designee to act as agent for physician-prescribers for the purpose of dispensing a controlled substance to a resident. Sets out policies and procedures for practitioner, pharmacy and LTC facility to implement. 5. Observation Status: H.R. 1543: Improving Access to Medicare Coverage Act of 2011, introduced by Rep. Joe Courtney (D-CT) (http://www.gpo.gov/fdsys/pkg/bills- 112hr1543ih/pdf/BILLS-112hr1543ih.pdf); S. 818, introduced by Sen. John Kerry (D-MA) (one of very few bi-partisan bills, co-sponsored by Sen. 10

Scott Brown (R-MA) and Sen. Olympia Snowe (R-ME)). Referred to respective committees; no action to date. Provides that in determining whether an individual completed the 3-day hospital admission to qualify for post-acute Medicare coverage, an individual receiving outpatient observation services shall be deemed to be an inpatient during such period, and the date such individual ceases receiving such services shall be deemed the hospital discharge date (unless such individual is admitted as a hospital inpatient at the end of such period). This legislation was introduced to address the problem of hospitals holding patients under observation rather than admitting them, or of patients being re-classified after their stay. The individual is not eligible for post-acute care Medicare coverage in SNFs, and must pay out-ofpocket. 6. Medical Malpractice/Tort Reform: H.R. 5: Help Efficient Accessible, low Cost, Timely Healthcare (HEALTH) Act of 2011, introduced by Rep. Phil Gingrey (R-GA) (134 cosponsors), passed out of Judiciary and Energy & Commerce, placed on the House calendar May 23, 2011 (http://www.gpo.gov/fdsys/pkg/bills-112hr5rh/pdf/bills- 112hr5rh.pdf; S. 12, S. 218, S. 1099, referred to committees, no further action noted. These bills establish national conditions for health care liability claims, generally following the California statute, MICRA, and have been introduced in each Congress since the 107 th, 2001. These bills generally pass the House, if there is a Republican majority, but have never passed the Senate. Sets 3 year statute of limitations after injury manifests or one year after discovery; $250K limit on non-economic damages; proportional liability; limits plaintiff s attorneys fees; collateral source benefits may be introduced; limits punitive damages; provides for periodic payment of future awards and continuing judicial supervision. Also includes provisions addressing states rights concerns federal statute preempts state laws that are different than HR 5 except for state laws that are more restrictive, or where states have different specific damage limits (higher or lower). Only applies to provisions in statute, not other provisions in state law. 11

7. Restructuring Medicare and Medicaid: H. Con. Res. 34: Establishing the budget for the United States Government for fiscal year 2012 and setting forth appropriate budgetary levels for fiscal years 2013 through 2021. AKA the Ryan Budget. Passes House, 4/15/2011 (235-193); Senate rejects (40-57), 5/25/2011 Introduced by Rep. Paul Ryan (R-WI), Chair of the Budget Committee, the bill is derived from his Budget Committee Report, The Path to Prosperity (http://budget.house.gov/fy2012budget/), and sets out the following basic policy regarding Medicare program (Sec. 501) (a) Findings- The House finds the following: (1) More than 46 million Americans depend on Medicare for their health security. (2) The Medicare Trustees report has repeatedly recommended that Medicare's long-term financial challenges be addressed soon. Each year without reform, the financial condition of Medicare becomes more precarious and the threat to those in and near retirement becomes more pronounced. According to the Congressional Budget Office-- (A) the Hospital Insurance Trust Fund will be exhausted in 2020 and unable to pay scheduled benefits; and (B) Medicare spending is growing faster than the economy. Medicare outlays are currently rising at a rate of 7.2 percent per year, and under CBO's alternative fiscal scenario, mandatory spending on Medicare is projected to reach 7 percent of GDP by 2035 and 14 percent of GDP by 2080. (3) Failing to address this problem will leave millions of American seniors without adequate health security and younger generations burdened with enormous debt to pay for spending levels that cannot be sustained. (b) Policy on Medicare Reform- It is the policy of this resolution to protect those in and near retirement from any disruptions to their Medicare benefits and offer future beneficiaries the same health care options available to Members of Congress. (c) Assumptions- This resolution assumes reform of the Medicare program such that: (1) Current Medicare benefits are preserved for those in and near retirement, without changes. (2) For future generations, when they reach eligibility, Medicare is reformed to provide a premium support payment and a selection of guaranteed health coverage 12

options from which recipients can choose a plan that best suits their needs. (3) Medicare will provide additional assistance for lowerincome beneficiaries and those with greater health risks. (4) Medicare spending is put on a sustainable path and the Medicare program becomes solvent over the longterm. See also, Guaranteed Choices To Strengthen Medicare And Health Security For All: Bipartisan Options For The Future, proposal announced by Sen. Ron Wyden and Rep. Ryan, which creates a modified version of the Ryan proposal consisting of premium support payments to seniors who will purchase health insurance either through the traditional Medicare program or federally-approved private insurers. http://budget.house.gov/uploadedfiles/wydenryan.pdf Neither the Ryan plan nor the Ryan/Wyden plan addresses how longterm care fits into the premium payment model. In addition to revising the basic structure for Medicare, the Ryan proposal would turn the Medicaid program into a federal block grant, starting in 2013, whereby states would receive a set amount from the federal government as their federal share, adjusted annually only to reflect population growth and inflation. Concerns about Medicaid block grants include impact of shifting costs to the states, whether funding will be adequate, whether funding would increase based on weak economy, likely weakening/elimination of federal standards for eligibility and benefits, including current mandatory nursing home benefit. Supporters of block grants believe that they give the states necessary flexibility to fashion their own program and control their own budgets. The Budget Resolution contained reduced funding for Medicaid, and in the House Report (112-58) identified block granting as preferred way to implement reduced funding. It should be noted that the President has also proposed changes to the way the federal government pays its share of the Medicaid program, replacing the rates currently in effect for Medicaid and CHIP with a single blended rate for each state. While it is not exactly clear what this will mean, it raises similar concerns as block grants shifting costs to the states that could result in reduced rates to providers or reduced services for beneficiaries. In addition, there is significant concern about the ability to calculate each state s rate fairly and accurately. 8. Home Health H.R. 2267: Home Health Care Planning Improvement Act of 2011, introduced by Rep. Greg Walden (R-OR) 13

(http://www.gpo.gov/fdsys/pkg/bills-112hr2267ih/pdf/bills- 112hr2267ih.pdf ), S. 227, introduced by Sen. Olympia Snowe (R-ME), both bills have extensive bi-partisan support, and are also embedded in S. 1680, a huge, multi-part bill introduced by Sen. Kent Conrad (D-ND). Allows nurse practitioners, clinical nurse specialists, certified nursemidwife, and physician s assistants to be paid to provide Medicare home health services, including face-to-face assessments. H.R. 2468: Medicare Home Health Flexibility Act of 2011, introduced by Rep. Charles Boustany (R-LA), with Rep. John Lewis (D-GA) (http://www.gpo.gov/fdsys/pkg/bills-112hr2468ih/pdf/bills- 112hr2468ih.pdf ); Similar to H.R. 2267, allows the Medicare home health agency to determine the most appropriate skilled professional to conduct the initial assessment visit and to complete the comprehensive assessment of the beneficiary, and also provides that the initial referral cannot be for occupational therapy alone. S. 501: Fostering Independence Through Technology (FITT) Act of 2011, introduced by Sen. John Thune (R-SD), with Sen. Amy Klobuchar (D-MN) (http://www.gpo.gov/fdsys/pkg/bills-112s501is/pdf/bills- 112s501is.pdf) Authorizes HHS to create pilot programs to incentivize use of home monitoring technology and telehealth by home health agencies; GAO study at conclusion; cost, including incentive payments, are to be lower than without the pilot. 9. Regulations and Paperwork Reduction: H.R. 10: Regulations From the Executive in Need of Security (REINS) Act of 2011, introduced by Rep. Geoff Davis (R-KY), passed the House on Dec. 8, 2011, ( http://www.gpo.gov/fdsys/pkg/bills-112hr10rfs/pdf/bills- 112hr10rfs.pdf ) sent to the Senate, where it was referred to Committee on Homeland Security and Governmental Affairs, hearings held on Senate version, S. 299, introduced by Sen. Rand Paul (R-KY). Also included in S. 1786, Long-Term Surface Transportation Extension Act of 2011, introduced by Sen. Orrin Hatch (R-UT), motion to proceed failed (Nov. 2, 2011) Reverses manner by which major regulations are enacted, provides that Congress must review and approve any major regulation within 70 legislative/in session days or regulation cannot take effect. Allows regulation to be in effect for 90 days pending Congressional vote if the President declares that the rule is necessary because of an imminent 14

threat to health or safety or other emergency, for the enforcement of criminal laws, for national security, or to implement an international trade agreement. Sets out process for review and consideration by both Houses. Sets out process for disapproval of non-major regulations. Interestingly, it is not clear from the legislation if the public is entitled to file comments the bills appear to eliminate the public comment process by mandating Congressional approval. VI. Selected Resources 1. Thomas, the Library of Congress website for current and past legislation: http://thomas.loc.gov/home/thomas.php 2. Kaiser Family Foundation, comprehensive resource for information on health care issues: http://www.kff.org 3. Center on Budget and Policy Priorities, liberal economic analysis: http://www.cbpp.org 4. Heritage Foundation, conservative think tank: www.heritage.org 5. American Enterprise Institute, conservative think tank: www.aei.org 6. Deficit Reduction proposals: a. The Moment of Truth: Report of the National Commission on Fiscal Responsibility and Reform, (Bowles Simpson), http://www.fiscalcommission.gov b. Restoring America s Future, (Domenici Rivlin), www.bipartisanpolicy.org c. Living Within Our Means and Investing in the Future: The President s Plan for Economic Growth and Deficit Reduction, www.whitehouse.gov 7. Senate Special Committee on Aging (www.aging.senate.gov) hearings: a. Aging in America: Future Challenges, Promise and Potential, Dec. 14, 2011 b. A Time for Solutions: Finding Consensus in the Medicare Reform Debate (discussion of the various deficit reduction proposals and impact on Medicare), Oct. 12, 2011 c. Ensuring Quality and Oversight in Assisted Living, Nov. 2, 2011 d. Roundtable: Assisted Living at the Dawn of America s Age Wave : What Have States Achieved and How is the Federal Role Evolving?, Mar. 15, 2011 e. Justice for All: Ending Elder Abuse, Neglect and Financial Exploitation, Mar. 2, 2011 15