Operators seek resolution to these issues in the new year

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Lois A. Bowers
Lois A. Bowers

As the new year begins, one of the biggest questions looming about the future of the United States is what effects the combination of a Donald Trump presidency and a Republican-controlled Congress will have. Washington has been awash in vows to overhaul healthcare and entitlement programs that benefit seniors and others.

The National Low Income Housing Coalition additionally worries that the new administration could bring billions of dollars in cuts to affordable housing and other anti-poverty programs, yet the organization also has identified six areas where affordable housing advocates and conservatives might find common ground.

Even before the White House sees new occupants, however, several existing issues remain unresolved for senior living operators. Among them:

Home- and community-based services

Senior living operators across the country are awaiting the finalization of transition plans detailing how various states plan to implement a rule covering the provision of HCBS that the Centers for Medicare & Medicaid Services issued in 2014. All states and HCBS settings must comply by March 2019. To date, only Tennessee's plan has been finalized, although plans in 19 other states have received initial approval.

The rule, which establishes new reimbursement criteria for HCBS settings, is an effort by CMS to enable Medicaid beneficiaries to receive services in settings that are integrated into the community rather than in skilled nursing facilities. Assisted living and memory care providers spent much of 2016 seeking additional clarification from CMS about what they would need to do to qualify to provide HCBS. The agency issued guidance in April and again in December.

Drug disposal

A proposed Environmental Protection Agency rule regarding the disposal of unused medications was expected to be finalized in 2016 but was not. Leaders of several organizations representing assisted living providers worried that the government's apparent lack of understanding of the difference between assisted living and skilled nursing could put some assisted living providers “perpetually in noncompliance.”

The rule as proposed would prohibit healthcare facilities (defined to include assisted living communities, continuing care retirement / life plan communities and other senior living and healthcare settings) from disposing down the toilet or drain those pharmaceuticals considered to be hazardous waste. It also would require providers, when they transport drugs off site that are not eligible for a manufacturer's credit, to ship the drugs as hazardous waste, with a hazardous waste manifest, to a Resource Conservation and Recovery Act interim status or permitted facility.

Overtime

As the new year begins, a court injunction putting a new overtime rule on hold means that many senior living operators are in a difficult position, wondering whether it would be better to put planned changes in place for affected employees or keep things as they are until the matter is resolved.

The rule, opposed by several senior living groups but finalized in May, calls for doubling the salary threshold under which most salaried workers would be guaranteed overtime pay when they work more than 40 hours per week. It originally was set to take effective Dec. 1.

The Department of Labor asked for an expedited appeal of the injunction in December, and it is not clear whether Trump will try to modify or dismiss the rule when he takes office.

Union-related communication

The destiny of a final rule requiring employers to publicly report all union-related communication with attorneys is more clear, at least for now, after a federal judge in November issued a permanent injunction preventing the Labor Department from implementing it.

The rule would have required employers to disclose agreements they entered into with third-party consultants, also known as persuaders, to try to influence the outcome of union-organizing and collective bargaining campaigns. Employers also would have been required to notify employees when they developed plans for supervisors to influence workers, created anti-union materials and led seminars against forming unions or collective bargaining.

The Labor Department could appeal the ruling. It faces several other pending court challenges, too.

Arbitration

Operators also await the ultimate fate of a new federal rule that disallows pre-dispute arbitration agreements during nursing home resident admissions. The rule originally was set to go into effect Nov. 28, but a federal court granted the American Health Care Association's motion to stop the ban from taking effect.

Representatives of AHCA's sister organization, the National Center for Assisted Living, had encouraged its members to comment on the rule when the CMS was finalizing it in 2015, fearing that a ban at the federal level also might lead to state-level prohibitions in assisted living.

In his late-November ruling, Judge Michael P. Mills of the U.S. District Court for the Northern District of Mississippi said the case put the court in an “undesirable position,” because the court believes that the ban is “based upon sound public policy.” In the end, however, Mills said, the case raises in-depth legal questions about the authority of CMS that must be addressed before the rule can take effect. The court's decision noted that CMS could show that it had the authority to ban the agreements, something it has not done so far.

Lois A. Bowers is senior editor of McKnight's Senior Living. Contact her at lois.bowers@mcknights.com. Follow her on Twitter at @Lois_Bowers.

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