TENNESSEE HEALTH CARE ASSOCIATION/ TENNESSEE CENTER FOR ASSISTED LIVING Legislative2013 Report A report to members on long-term care legislation acted upon during the 2013 session of the 108th Tennessee General Assembly TABLE OF CONTENTS President’s Message 2 Workers’ Compensation 5 Nursing Home Assessment Fee 3 Health Services and Development Agency 6 Certificate of Need Moratorium 3 Tennessee State Veterans’ Home Board 6 Medicaid Expansion 3 Assault Against a Health Care Provider 6 Health Care Decisions 3 Guardians and Conservators 6 Tort Liability 4 Tennessee Adult Protection Act 7 Hospital Assessment 5 Nursing Home Assessment Fee Payments 7 Medicaid False Claims Act 5 Controlled Substance Database Reporting 7 PRESIDENT’S MESSAGE THE FIRST YEAR OF THE 108TH GENERAL ASSEMBLY ended in record time with lawmakers completing their business and adjourning for the year on April 19. For the first time ever, Republicans held a supermajority in both houses. Ultimately, they did not need a single Democrat to meet, suspend rules or otherwise conduct their business. The session started with the election of leadership and the appointment of standing committees. The Senate re-elected Lt. Gov. Ron Ramsey (R-Blountville) as speaker, and in the House Speaker Beth Harwell (R-Nashville) retained her post as leader of the lower chamber. House members elected Rep. Curtis Johnson (R-Clarksville) to serve as speaker pro tem. Changes to the committees included Sen. Brian Kelsey (R-Germantown) serving as chair Phyllis Cherry of the Senate Judiciary Committee. In the House, the speaker made several changes, including naming Rep. Bob Ramsey (R-Maryville) as chair of the full Health & Human Resources Committee and Rep. Barrett Rich (R-Somerville) as the subcommittee chair. The House Judiciary Committee was divided into two committees: Civil Justice, chaired by Rep. Jon Lundberg (R-Bristol), and Criminal Justice, chaired by Rep. Eric Watson (R-Cleveland). The House also made several rule revisions, including limiting members to only 15 bills per session. Previously, lawmakers could introduce as many bills as they wanted. The Legislature also re-elected the constitutional officers: Justin Wilson, comptroller of the treasury; David Lillard, treasurer; and Tre Hargett, secretary of state. Before leaving town, both chambers approved a $32.6 billion spending plan to fund state government programs for fiscal year 2013-14. The budget represents a .8 percent increase over last year, and includes a .25 percent reduction on the sales tax on food and further relief for those subject to the Hall income tax and the inheritance tax. It also includes a 1.5 percent salary increase for state employees and teachers, fully funds the funding formulary for K-12 education, and puts $100 million in the rainy day fund. For the TennCare program, the budget recognizes increased costs due to the implementation of the federal health care law in 2014, but did not include the expansion of the Medicaid program. It includes $94 million for medical inflation and enrollment growth. The impact of the budget on TennCare nursing home rates for next fiscal year is not yet known; however, there are no built-in TennCare cuts. For nursing homes, the session went well. The association saw both of its initiatives passed as well as other issues dealing with the Health Services and Development Agency (HSDA), end-of-life decision making, conservator and guardianship revisions, workers’ compensation and tort liability. I invite you to review this report and learn more about the actions of the General Assembly in 2013. I also want to thank you for your support throughout the year. I am very proud of the efforts of our association, and I know it would not be possible without your help. Please refer any questions to THCA’s Government Affairs staff. 2 NURSING HOME ASSESSMENT FEE SB 430/HB 342 by Sen. Doug Overbey (R-Maryville) and Rep. Mike Harrison (R-Rogersville) Enacted as Public Chapter 356, effective July 1, 2013 THCA supported this bill as part of its 2013 legislative initiatives that continues the nursing home bed tax for one year until June 30, 2014. For the past several years, the tax had been renewed every two years. In consideration of the increased federal scrutiny of states’ uses of provider fees and the fact that the General Assembly currently votes on the hospital assessment every year, THCA only asked for a one year renewal. Additionally, this year’s bill renamed the tax the annual assessment fee. The $2,225 per-bed, per-year fee generates about $235 million for the TennCare nursing home budget. This amount represents about a quarter of the overall TennCare funding for nursing homes and therefore continuation of the fee was a top priority for the association. CERTIFICATE OF NEED (CON) MORATORIUM SB 431/HB 345 by Sen. Doug Overbey (R-Maryville) and Rep. Mike Harrison (R-Rogersville) Enacted as Public Chapter 311, effective July 1, 2013 The second law continued by the Legislature this year and supported by THCA is the certificate of need (CON) moratorium on new nursing home beds. The moratorium prevents the addition of new nursing home beds with the exception of a statewide pool totaling 125 Medicare beds. An applicant can request up to 30 beds at a time from the pool. The moratorium does not apply to replacement facilities. The moratorium will expire on June 30, 2014. The moratorium is an effective tool in controlling TennCare expenditures, and with declining occupancy rates, the association has not seen a need to lift the moratorium. MEDICAID EXPANSION Last summer the U. S. Supreme Court rendered a decision on the federal health care reform legislation, or the Affordable Care Act (ACA). The Supreme Court upheld most of the law but ruled that the federal government could not force states to expand their Medicaid programs up to 138 percent of the federal poverty level. The costs of expansion are fully covered by the federal government for the first three years. The court’s decision was unexpected and left the nation’s hospitals fighting at the state level for the expansion. During negotiations on the ACA, hospitals agreed to both Medicare cuts and reductions in disproportionate share payments in exchange for more insurance coverage – a portion of which comes from the Medicaid expansion. In support of expansion, Tennessee’s hospitals estimated that the cuts will be $5.6 billion over 10 years and without Medicaid expansion to help mitigate those cuts, rural hospitals will see the cost of uncompensated care jeopardize their financial viability. They estimated the impact to the economy to be the loss of 90,000 jobs and $13.3 billion in recessionary impact over the next 10 years. The discussion of whether to expand took up considerable time this session, not only with legislators but with the Haslam administration as well. Several bills were introduced on both sides of the issue – generally, Democratic members of the Legislature supported expansion and Republican lawmakers opposed it. In late March, Gov. Haslam addressed a joint session of the General Assembly announcing his decision on Medicaid expansion. The governor said he would not include in his proposed fiscal year 2013-2014 budget the recognition of federal funding for the state to expand its TennCare program. He said the state is in the process of negotiating with the federal government for what he calls the “Tennessee plan” that seeks to use federal money to buy private insurance for the expansion population instead of adding those individuals to the TennCare rolls. HEALTH CARE DECISIONS SB 257/HB 1019 by Sen. Rusty Crowe (R-Johnson City) and Rep. Cameron Sexton (R-Crossville) Enacted as Public Chapter 254, effective July 1 THCA with several other health care provider groups including the Tennessee Hospital Association (THA) 3 supported this bill that updates the statute to reflect the use of the Physician Orders for Scope of Treatment (POST) form as the universal do-not-resuscitate (DNR) order that must be used by a facility when transferring a patient to another facility. The new law also provides that nurse practitioners, clinical nurse specialists and physician assistants may sign the POST forms in nursing homes, but only when the patient is being transferred to another facility. The nurse practitioner, clinical nurse specialist or physician assistant can only sign the POST on transfer in the following circumstances: 1. The physician is not available; 2. The authority to sign the POST is contained in the nurse practitioner’s, clinical nurse specialist’s or physician assistant’s protocols; and 3. The nurse has the informed consent of the patient. Until the Board for Licensing Health Care Facilities (BLHCF) can promulgate rules to effect the changes under this new law, the board took action recently to allow a nurse practitioner or physician assistant to sign the current form. The individual should mark out “physician” on the physician signature line and sign it with his or her credentials. SB 884/HB 1073 by Sen. Joey Hensley (R-Hohenwald) and Rep. Barrett Rich (R-Hickory Withe) Enacted at Public Chapter 238, effective July 1 This legislation brought by THCA member Tennessee Health Management (THM) authorizes a person's surrogate under the Tennessee Health Care Decisions Act to apply for voluntary admission to a hospital or treatment resource for diagnosis, observation and treatment of a mental illness or serious emotional disturbance. The bill provides that no person may be admitted by a surrogate for more than 21 consecutive days unless: • A petition has been filed for non-emergency involuntary admission to inpatient treatment pursuant to present law, or; • A person authorized to apply for voluntary admission other than the surrogate applies for voluntary admission subsequent to an application by a surrogate for voluntary admission under this bill.