ACA Repeal and Replace Update

Esq.. Stephen B. Hanse and Lauren Pollow in Legislative

AHCA has provided a detailed update on the Senate’s effort to draft ACA Repeal and Replace legislation, as noted below: 

SENATE STILL DIVIDED ON REPEAL AND REPLACE

BUT WE CAN'T LET UP

As we head into the weekend, I wanted to give you the latest information from D.C. on repeal and replace. In a nutshell, the Senate is no closer to a solution. In fact, they are further away from 50 votes than when the Members left D.C. one week ago. Nevertheless, we can't let up. We all saw how quickly the House came together after failing three months ago and that could happen in the Senate.

THE STATUS OF THE SENATE EFFORT 

You may recall that Senate Majority Leader Mitch McConnell announced on Tuesday, June 27, just before the July 4 recess, that there would be no Senate vote that week. The plan then became to work over the next three days to develop a consensus plan that they could have the Congressional Budget Office (CBO) evaluate during the week of the July 4 recess. That plan also failed and there is no consensus plan under review. 

Instead, there are at least three different plans that CBO is either reviewing or that Senators are discussing among themselves. All have received considerable press attention, but each may put the Senate further from passage. I have provided a short summary of the various plans below.

  1. The Senate Conservatives, led by Senator Ted Cruz (R-TX), want an amendment that provides consumers the ability to buy a limited benefit package. This would compete with the fully compliant policy. I won't get into the policy arguments behind this, but Senate Leadership staff has indicated that there would be at least 30 Republican "no" votes to the overall legislation if Senator Cruz's amendment is successfully added.
  2. The moderates, led by Senator Rob Portman (R-OH), want to make improvements to Medicaid financing compared to what was in the Senate discussion draft, including fixing the growth rate issue and eliminating the cuts to provider assessments that we have identified as concerns. If Senator Portman succeeds in this effort, at least three conservative Republicans are likely "no" votes and it's not clear that these changes would be enough to earn the votes of all the moderates.
  3. The President has floated the idea of repealing the Affordable Care Act now and replacing it later. The CBO has already scored this and predicts that it would result in even more Americans losing coverage than under the House Bill, among other challenges.

Since it is unclear whether any of these approaches can pass, the Senate effort is again delayed. Any hope of a quick vote when the Senate returns next Tuesday has been shattered. For procedural reasons, getting a vote anytime the week of July 10 will be tough. If everything came together, it's possible that a vote could occur the week of July 17, but even that is pushing it.

After that time, the calendar becomes a big problem. Congress is currently scheduled to leave for the August recess on July 31 and they do not return until September 5. There are only 13 legislative days between now and the August recess. In fact, there are only 61 legislative days between now and the end of the year.

There is talk of delaying or cancelling the August recess. That could occur but there are problems with that approach as well. Most members plan trips during the recess, both official and personal, and getting them on board with a delay will not be easy. On the other hand, the threat of cancelling could prove to be leverage to get members in line. 

WHAT DO WE DO?

That's easy. We keep fighting! All of the Senate proposals mentioned in this memo represent the greatest threat to Medicaid in our lifetimes, and many of them simply put us out of business.

The facts are simple. The Senate Medicaid growth rate of CPI-urban would ultimately result in states spending at least 20% less on Medicaid. If we take an average amount of that cut, the nationwide loss is approximately $600,000 per skilled nursing building. You don't have to guess what the impact is to you. Look at your Medicaid revenue and imagine a world where you are caring for the same number of residents with 20% less revenue. It's ridiculous.

And we're talking about a 20% cut to all long term services and supports. So, if you're an assisted living provider who accepts Medicaid, home and community-based services (HCBS) will feel this pinch as well. States could further restrict Medicaid eligibility, cut reimbursement rates, and create longer wait lists for HCBS.

The Senate restriction on provider assessments would result in cuts to 28 states and the District of Columbia starting in 2020. It would preclude any other state from raising their assessments above 5%. You can find information about the impact on your state here. For a complete, detailed analysis of the impact of the Senate plans, click here.

Even the House plan was challenging. While the House plan had a better growth rate and no restrictions on provider assessments, the plan would have still restricted state Medicaid spending. Despite those restrictions, the changes in the House plan were far less devastating for most members.

To ensure our success, we need you to continue your outreach efforts. 

  1. If your Senator has announced they are opposed to the Senate repeal and replace proposal, please send them an email to thank them.
  2. If your Senator has yet to take a position, call them and use the talking points we have developed specifically for your state. Keep explaining the devastating impacts this legislation would have. Both the New York Times and the NBC Nightly News have highlighted the serious threat to long term care for the middle class. We need to continue reinforcing that nearly one in three people over age 65 will eventually live in a nursing home and 75% of them will eventually need Medicaid when they exhaust their personal resources.
  3. It's important to call House Republican members as well. If the Senate does pass a bill, it will then come back to the House for a vote. The House members need to know that the Senate bill is much worse for us than the House version of repeal and replace.
  4. Finally, please be sure to register for our online advocacy system through this link.

It is important that we contact every Senate and House Republican in every state. Don't sugar coat the impact of the Senate repeal and replace proposals. Deep reductions in Medicaid will eventually result in most of the skilled nursing sector going out of business. We need to ensure the House and Senate members have your numbers so they know this isn't hyperbole. We cannot let up on our efforts to communicate this message.

REGULATORY RELIEF

While this is not part of the Senate repeal and replace effort, I want to assure you know that we are fighting on this front as well and pushing for much needed regulatory relief. We hope to receive good news in the next month on the survey and civil monetary penalty process. We are also pushing for CMS and HHS to delay the SNF Requirements of Participation while it evaluates them. Just last week CMS issued the interpretive guidance on the Phase 2 Requirements that are scheduled to go into effect on November 28, 2017. While we appreciate the delay in imposing CMPs and Denial of Payments for some of the Phase 2 Requirements, we do not believe this is enough. We believe CMS should delay the entire process. We will continue to advocate for that change. Meanwhile, you need to prepare and operate under the assumption that the new survey process and Phase 2 Requirements starts in November, but we will be pushing for further delay. 

TOGETHER WE CAN WIN

We appreciate and understand how tough it is out there right now. The survey process combined with this attack on Medicaid has made this one of the most challenging times in our history. But we also know we are making a tremendous impact. Collectively, we made the House bill better and the 100,000 plus contacts that we've made on the Senate side have made a difference as well. Many of the Senators are citing the impact to nursing facilities and centers as having an impact on their votes.

Please continue to make the push and together we can win this.

Sincerely,

Mark Parkinson
President & CEO

NYSHFA/NYSCAL CONTACTS:

Stephen B. Hanse, Esq.
President & CEO
518-462-4800 x11

Lauren Pollow
Director, Government Affairs
518-462-4800 x25