2017 Legislative Report Letter from the President

2017 LEGISLATIVE REPORT LETTER FROM THE PRESIDENT

Dear OHCA Members, recognized experts who comprised the Purple Ribbon This Legislative Report is a comprehensive analysis of Commission, including our partners at the Alzheimer’s legislation approved by the 79th Oregon Legislative Association of Oregon. Assembly impacting long term care and senior OHCA’s government relations team – Phil Bentley, housing providers. Gwen Dayton, Chris Madden, Rosie Sontheimer, and Last fall, Governor Kate Brown won the election Walt Dawson – worked long hours to ensure that to complete the four-year term vacated by former your needs were heard and that policy decisions in Governor Kitzhaber. Democrats also retained strong Salem reflect our commitment to leading the nation in majorities in both the house and senate, although they providing quality care. were one vote shy in both chambers of the “super- And, of course, none of our success would be possible majority” needed to approve revenue raising measures without the participation and support of OHCA without Republican support. members, who sent emails and letters and made calls In January, the 2017 legislative session began to their legislators. We counted on your advocacy, and with a projected state budget deficit of $1.8 you delivered. Thank you. billion and several large issues on the agenda, Supporting our members is the most important work including tax reform following the failure of Ballot of the Oregon Health Care Association. Please never Measure 97, containing the growth in the cost of hesitate to contact us if we can be of service. government services like public employee benefits, a comprehensive transportation funding package, and a need to fill the budget hole created by the expansion Sincerely, of Medicaid under the ACA. The top priority on OHCA’s agenda was an enhanced CBC Medicaid budget request that accounted for rising labor costs and full rebasing of skilled nursing facility rates. We knew that these objectives would be Jim Carlson, challenging given that early session budget proposals President and CEO, from the Governor and legislative budget writers Oregon Health Care Association called for flat funding of Medicaid rates and cutting the medically complex add-on rate for skilled nursing. By the end of session in July, we were pleased to largely secure our budget priorities and avoid damaging cuts to long term care services and supports. We were also successful in securing continued funding for the caregiver training initiative administered by Oregon Care Partners. This was also a very active session on policy issues impacting our sector. We helped pass several bills, including the Purple Ribbon Commission bill, which will further improve the quality of care for Oregonians with a diagnosis of Alzheimer’s disease or other dementias. We are very appreciative of the nationally

2 OHCA 2017 Legislative Report WHAT’S INSIDE

BUDGET...... 4

Grassroots Campaign - Better Care Oregon OHCA’S Budget Agenda What’s Next for the Budget

POLICY...... 6

Priority Bills Other Bills Long Term Care Seniors Employment Other

LEGISLATIVE CHAMPIONS...... 11

OHCA 2017 Legislative Report 3 BUDGET

Following the defeat of Measure 97, and despite a thing but clear; however, efforts will undoubtedly con- booming economy and record state revenues, the tinue. Several ballot initiatives have already been filed state’s budget writers entered the 2017 session facing for circulation by labor and business organizations a $1.8 billion projected budget deficit. The deficit had alike. We will continue to advocate for responsible numerous drivers: increasing public employee wages treatment of long term care providers serving vulnera- and benefit costs, unfunded ballot measures passed ble Oregonians. by voters, and reduced federal funding for Medicaid Throughout the session, OHCA communicated to legis- expansion costs under the ACA. lators the critical need of an increased state investment The “Governor’s Recommended Budget,” released prior in long term care services. We specifically noted that to the start of every long legislative session, proposed decisions made in previous legislative sessions, most flat funding Medicaid reimbursement rates for skilled notably the minimum wage increase, are major cost nursing facilities and home and community-based drivers for long term care providers, and, consequent- care providers, despite the legislature’s recent ap- ly, the state needs to invest in rising caregiver wages proval of one of the highest minimum wages in the through Medicaid reimbursement rates. country. This budget also proposed a 50 percent cut We met regularly with the legislators who determine in the Complex Medical Add-on rate for skilled nursing budget priorities in human services, including subcom- facilities. Legislative budget writers released a budget mittee co-chairs Rep. Dan Rayfield and Sen. Elizabeth framework early in the session that proposed similar Steiner Hayward, and co-chairs of the full budget com- cuts to long term care funding. mittee, Sen. Richard Devlin and Rep. Nancy Nathanson. With the potential for damaging cuts to education, human services, and other essential services across the GRASSROOTS CAMPAIGN - BET- board, many Democratic legislators wanted to reform Oregon’s system of taxing businesses. The Joint Com- TER CARE OREGON mittee on Tax Reform was created to consider various OHCA launched a grassroots campaign called Better proposals, with a focus on replacing the corporate Care Oregon that united OHCA members with other income tax with a commercial activity tax. The histori- organizations and individuals across the state to sup- cally elusive goal of tax reform appeared to have a rea- port funding for caregivers and other critical care ser- sonable chance of success early on as some business vices for seniors and people with disabilities. Through and labor groups had a series of meetings to discuss this campaign we sent more than 4,000 advocacy a potential compromise package of government cost letters to Oregon lawmakers. containment measures and business tax increases. The joint committee produced a series of tax reform OHCA’S BUDGET AGENDA options in search of a proposal that could receive the necessary bipartisan support for approval. We were Despite the challenging budget environment and the successful in ensuring that Medicaid and Medicare failure of revenue reform during the session, the legis- revenues for long term care providers would not be lature largely funded our budget priorities. subject to the commercial activity tax. However, in the Cost of Living Adjustments for Home and final month of session, the effort fizzled, because most Community-Based Care - FUNDED business organizations ultimately balked at the com- The DHS budget includes a 5 percent COLA for Med- mercial activity tax proposal and labor consequently icaid reimbursement rates for home and community opposed any further reforms to the PERS system. based care providers in the first year of the biennium, The future of tax reform following this session is any- effective July 1, 2017. In addition, the budget includes

4 OHCA 2017 Legislative Report an additional 2.5 percent increase effective July 1, 2017-2019 biennium. 2018, for the second year of the biennium. Our request Going forward, however, the budget situation could was for 5 percent annual increases. As it became clear get more challenging. In the short term, there are that this was not viable following the failure of reve- efforts underway by several Republican legislators nue reform, we secured the 5 percent increase for the to refer a portion of the Medicaid expansion funding first year of the biennium to coincide with the largest package to the voters. If approved, this could have a scheduled minimum wage increase on July 1, 2017, (as big impact on this biennium’s budget. Additionally, much as $1.50 in the Portland metro area). several unions have also filed corporate transparency If the state budget climate is stable, we will continue and revenue-related ballot initiatives, setting the stage to advocate for an additional 2.5 percent Medicaid rate for another contentious and expensive campaign sea- increase for home and community based care provid- son in 2018. ers in the 2018 session. In the longer term, the cost to maintain current gov- Caregiver Training Initiative (Oregon Care ernment service levels continues to outstrip revenues. Partners) – FUNDED The Public Employee Pension System (PERS) will continue to require larger chunks of the budget, and, In 2014, the legislature approved $3.3 million in one- when the economy softens, we could see income tax time funds to provide no-cost training for professional revenues weaken at the same time the demand for and family caregivers who assist Oregonians with services increases. Alzheimer’s disease, dementia, and other aging-related challenges. Oregon Care Partners (OCP) was awarded OHCA will remain an active participant in conversa- the contract to administer this caregiver training ini- tions around the state’s revenue and budget future. tiative. The legislature continued the program for the We will be monitoring the Governor’s task force 2015-2017 biennium. seeking to reduce the unfunded PERS liability and will oppose efforts to undo the legislature’s Medicaid In 2017, the legislature approved $3.4 million to expansion funding package at the ballot. n continue this valuable program for another two years, ensuring access to valuable training to improve the quality of care for seniors residing in care communities and in their own homes. Full Rebasing of Skilled Nursing Facility Medicaid Rates/Complex Medical Add-On Rate – FUNDED The legislature approved full rebasing of skilled nursing facility Medicaid rates, consistent with the skilled nursing provider tax law. In year one, providers will receive $301.70 per patient day. In year two, the an- ticipated rate is $320.40 per patient day. Additionally, despite early budget proposals showing a 50 percent cut, the final budget does not cut the Complex Medical Add-on rate. WHAT’S NEXT FOR THE BUDGET With the help of the Medicaid expansion funding package, rising state revenue forecasts, increasing user fees, targeted budget reductions, and a few measures stemming the growth in government costs, the state’s budget writers were able to balance the budget for the

OHCA 2017 Legislative Report 5 POLICY

OHCA reviewed thousands of bills and actively mon- Immediate Suspension: In cases of “imminent danger” itored hundreds of bills for potential impacts on our to the health and safety of residents, facility licenses members. The session yielded several policy achieve- can be suspended immediately, with a hearing to con- ments, and we were successful in avoiding many test the suspension to follow. potentially negative policies. Acuity Based Staffing Tool: DHS will develop and make available an acuity based staffing tool. ALF/RCFs PRIORITY BILLS may use the tool for their staffing determinations and HB 3359 – Purple Ribbon Commission Bill – education, and DHS must use the tool if there is a dis- agreement about whether staffing is appropriate. PASSED Prescription Drug Packaging: Drugs dispensed to The Purple Ribbon Commission was brought together residents must be in unit dose packages like blister in 2016 by the Alzheimer’s Association Oregon Chapter packs. and the Oregon Health Care Association as a proac- tive step to further advance quality dementia care DHS Enforcement Accountability: To ensure more for Oregonians and their caregivers. The Commission consistent regulatory enforcement, DHS must publish consists of aging and dementia experts in Oregon, na- a framework for assessing compliance with RCF rules tionally-recognized dementia researchers, Alzheimer’s and impose corrective action in a manner that accu- and aging experts, academics, and care providers. The rately and equitably measures compliance, update the Commission produced legislative recommendations compliance guidelines, and track incidents of abuse that were included in House Bill 3359. that are self-reported by providers. House Speaker Tina Kotek convened a work-group on Conditions on Licensure: When imposing a condition long-term care reforms that included Rep. Alissa Keny- on licensure, DHS is subject to the following require- Guyer, Rep. Caddy McKeown, the Governor’s policy ments: advisor, OHCA, DHS, and the Ombudsman. The group • The condition on licensure must be imposed in met for several months before reaching agreement a scope and manner designed to remediate the on a variety of policy proposals. The final product of finding that led to the condition. the work-group is contained in House Bill 3359, which • DHS must inform the provider with specifics of includes: what is required for the condition to be removed. Quality Measurement: ALF/RCFs must annually report • A restriction on admission can only be imposed in quality metrics to the state starting in January 2020 cases of immediate jeopardy. for the 2019 calendar year. DHS will compile an annual statewide report and make individual facility data • DHS must comply with timelines for re-inspection available publicly online. and respond to an assertion of substantial compliance, or the condition is automatically removed. Increased Staff Training and Competency: ALF/RCFs shall provide increased caregiver training on demen- Increasing Fines and Fees: Licensing fees for skilled tia to new employees, and caregivers must complete nursing and residential care providers will increase, six continuing education hours annually on dementia and a new civil monetary penalties structure will be care. The training must be approved by an entity with imposed that includes scope and severity criteria with expertise. higher fine ranges. Enhanced Oversight and Supervision: Under-per- SB 487, SB 737, HB 2807 – Noneconomic forming ALF/RCFs could be subject to more frequent Damages Cap Increase - FAILED surveys by DHS. A priority for the Oregon Trial Lawyers Association,

6 OHCA 2017 Legislative Report Rep. Nancy Nathanson (D-Eugene) and Rep. Jennifer Williamson (D-Portland)

several bills were introduced to increase the $500,000 • Requires clear and conspicuous disclosures to cap on noneconomic damages in tort lawsuits, with the consumer, including a privacy policy, how the last proposal to increase it to $10 million. Opposi- the agent is compensated for their services, and tion in the senate prevented these bills from passing whether they only refer to communities they con- this session. OHCA coordinated our opposition with tract with other health care providers and business groups. We • Prevents personal information from being shared anticipate the concept will return in future legislative or sold without express permission of the client sessions. • Prevents agents from referring to a community SB 53 – In-Home Care and Hospice Licensing they, or an immediate family member, has an own- Fees – PASSED ership interest, known as “self-referrals” Requested by the Oregon Health Authority (OHA), • Requires that referral agents register with DHS and Senate Bill 53 increases licensing fees for hospice and pay a registration fee in-home care providers. OHCA objected to the first ver- OHCA participated in work-group meetings, advocat- sion of the proposed fee increases and then agreed to ing for consumer protections that do not limit consum- a compromise that better balances funding the agen- er choice. cy’s regulatory functions with the financial impact on care providers. Licensing fees had not been increased in almost a decade. OTHER BILLS HB 2661 – Senior Care Referral Agencies – PASSED LONG TERM CARE House Bill 2661 was brought forward by the Oregon HB 3262 – Psychotropics – PASSED Senior Referral Agency Association (OSRAA). The final House Bill 3262 creates a new requirement for phy- version: sicians prescribing anti-psychotic medications for

OHCA 2017 Legislative Report 7 residents in long term care facilities to consult with the House Bill 2919 included “senior community residenc- patient’s primary care physician. The legislation says es” in the definition of “restaurant establishment.” long-term care facilities must demonstrate that: (A) a Though the bill would not have applied to licensed person-centered assessment has been performed to care settings, it could have required food service in determine potential non-pharmacological interven- independent living communities to comply with tions that could be employed to alleviate the need for OHA rules established for restaurants, including food psychotropic medications, (B) the interventions have handler cards for food service employees and regular been employed prior to the prescription of the psy- inspections by county health officials. The bill died in chotropic, and (C) the facility or home will continue the senate. to attempt the interventions in conjunction with the HB 3370 – Housing with Services – PASSED administration of the psychotropic medication. It is unclear how this legislation will be implemented. The House Bill 3370 creates a definition of “housing with legislation is subject to rule-making by the agency and services” and requires communities that meet the a stakeholder group to flush out details of its imple- definition to register with DHS. In its original form, the mentation. bill was overly broad and inclusive of most senior living communities. The final bill does not include assisted HB 2114 – Opioid Prescriptions – PASSED living facilities, but it will impact some independent The original version of this bill limited initial opioid pre- senior living communities. scriptions to no more than a 7-day supply. The bill was HB 3292 - Long Term Care Insurance Premium heavily amended. The bill requires the state’s licensing Tax Credit - FAILED boards for medical practitioners to provide licensees with guidelines and recommendations on opioid pre- House Bill 3292 proposed reinstating the long-term scriptions. care insurance premium tax credit, which was eliminat- ed in 2015. Studies found that the prior tax credit had HB 2919 – Food Service in Senior Communities not significantly incentivized individuals to purchase – FAILED long term care insurance and had not produced sav-

8Sen. OHCA Tim Knopp2017 Legislative (R-Bend), Report right ings to the Medicaid long term care system. SB 71 – Non-injectable Medications in Long Term Care – PASSED Senate Bill 71 clarifies the legislative intent around “non-injectable medications” in long term care settings, ensuring that nursing assistants are permitted to administer the medications. SB 239 – Individually Based Limitations – FAILED Senate Bill 239 would have established a process under the home and community-based standards for limiting the rights of individuals who have been deemed inca- pacitated. OHCA was involved in negotiations around Rep. David Gomberg (D-Central Coast) and the bill, seeking to balance the residents’ rights with Rep. Dan Rayfield (D-Corvallis) protecting their well-being when incapacity makes it impossible for them to consent. The bill raised challenging questions, and various groups like Disability Rights Oregon and Right to Life were unable to reach an agreement this session. SB 48 – Suicide Prevention Training – PASSED Senate Bill 48 requires specified health care practi- SENIORS tioners to participate in continuing education in sui- SB 494 – Advanced Directives – FAILED cide prevention, as mandated by their licensing board. After failing in the 2015 and 2016 legislative sessions, The list of health care practitioners is long and includes advocates once again brought a bill to update the nurse practitioners, clinical nurse specialists, occupa- advanced directive form. Senate Bill 494 would have tional therapists, physical therapists and assistants, removed the form from statute and allowed it to be physicians, and regulated social workers. The obliga- updated by a committee to make it more user-friendly. tion will be on health care practitioners to adhere to Despite the consensus of nearly all stakeholders, the the requirements. bill ended up facing strong opposition from Oregon SB 56 – Cannabis Business Licenses – PASSED Right to Life. After making it across the senate floor, the Senate Bill 56 deals with cannabis retail and growing bill stalled on the house side. OHCA will remain en- licenses. Proposed amendments would have expressly gaged with interested stakeholders in the interim. permitted topical cannabis products for use in skilled SB 59 – Fiduciaries of Residents – PASSED nursing facilities. The amendments were not adopted. Senate Bill 59 allows the long term care ombudsman HB 2979 – Enrollment in Coordinated Care to seek the removal of a guardian or other fiduciary Organizations – FAILED through the protected proceedings process if the Introduced by Rep. Cedric Hayden, House Bill 2979 guardian is not acting in the best interests of the res- deals with enrollment requirements for coordinated ident. With technical assistance from OHCA’s general care organizations (CCO). OHCA staff noticed a draft- counsel, the bill was heavily amended in the senate ing error in the introduced bill that removed critical before passing in both chambers. existing statutory language regarding long term care HJM 4 – RAISE Family Caregivers Act – PASSED funding. With assistance from Rep. Hayden and a vari- A priority bill for AARP, House Joint Memorial 4 urges ety of stakeholders, we had the bill amended to delete Congress to pass the RAISE Family Caregivers Act. The the potentially serious error. The final bill did not pass. Act would require the Department of Health and Hu-

OHCA 2017 Legislative Report 9 man Services to develop strategies to support family Senate Bill 949 was brought forward by SEIU. The caregivers. OHCA was pleased to support the bill. bill makes noncompetition agreements or similar covenants with “home care workers” voidable by the EMPLOYMENT worker. The definition of “home care worker” narrows the scope of the law. Note that under current law, non- SB 828 – Predictable Scheduling – PASSED competition agreements are not permitted between Senate Bill 828 is the so-called “predictable scheduling” an in-home care agency and their caregivers. bill. Among other requirements, the original draft of SB 301 – Marijuana and Employment – FAILED the bill would have required providers to pay their employees “on-call pay” for changes in their schedule with Senate Bill 301 would have prohibited employers from less than 24 hours’ notice. Changes to the bill limited maintaining a “drug free” workplace by not permitting its provisions to large employers in specific sectors that employees to use marijuana outside the workplace. An do not include long term care. amendment limited the scope of the bill to permit employers from discriminating against those employees HB 2005 – Pay Equity - PASSED with a medical marijuana card. The bill did not get out House Bill 2005 is the “pay equity” bill. After a heated of the senate. We are likely to see this concept again in debate and narrow passage in the house, the senate future sessions. heavily amended the bill which, despite upsetting proponents, allowed it to pass through both chambers OTHER unanimously. The final bill includes a variety of compo- nents for long term care providers: HB 2004 – No-Cause Evictions and Rent Stabilization – FAILED • Prohibits employer from seeking a salary history until an offer of employment is made that includes House Bill 2004 was part of a package of bills intro- compensation and the prospective employee produced by the Speaker of the House to address rising vides written authorization rents. While it would not have impacted licensed long term care settings, independent living communities • Requires the employer to post a notice of pay eq- were subject to its provisions. The bill originally con- uity requirements, to be provided by the Bureau of tained a “rent stabilization” component, but the bill Labor and Industries was amended to only ban “no-cause evictions” under • Expands the remedies for pay equity violations certain circumstances. The amended bill stalled in the and retaliation for wage inquiries and wage claims senate this session, but we anticipate the concept will under Oregon’s unlawful employment discrimina- return in future sessions. tion laws to include the right to compensatory and HB 2664 – Licensing for Extended Stay Centers punitive damages and a jury trial – FAILED HB 3087 – Paid Family and Medical Leave – House Bill 2664 would have created a pilot project al- FAILED lowing ambulatory surgical centers to create extended House Bill 3087 would have created a paid family and stay centers for patients to recover for up to 48 hours. medical leave insurance program. While the bill gath- Citing patient safety concerns, the Oregon Hospital ered considerable publicity during the session, the Association strongly opposed the bill. HB 2664 died in immense cost to the state ultimately led to its failure. the budget committee. n We anticipate that this concept will return in future sessions. SB 949 – Noncompetition Agreements for Home Care Workers – PASSED

10 OHCA 2017 Legislative Report LEGISLATIVE CHAMPIONS

OHCA would like to recognize the following legislators for their extraordinary commitment to supporting Ore- gon’s long term care system: Senate President Peter Courtney (D-Salem) Sen. Richard Devlin (D-Tualatin) Sen. Elizabeth Steiner Hayward Sen. Jackie Winters (R-Salem) (D-NW Portland/Beaverton) Sen. Jackie Winters (R-Salem) Sen. Tim Knopp (R-Bend) Sen. Mark Hass (D-Beaverton) Speaker of the House Tina Kotek Rep. Tina Kotek (D-Portland) (D-Portland) Rep. Nancy Nathanson (D-Eugene) Rep. Dan Rayfield (D-Corvallis) Rep. Alissa Keny-Guyer (D-Portland) Rep. Caddy McKeown (D-Coos Bay) Rep. Andy Olson (R-Albany) Sen. Richard Devlin (D-Tualatin) Rep. Greg Smith (R-Heppner)

OHCA 2017 Legislative Report 11 2017-2018 KEY DATES

Tuesday, January 23, 2018 – Special Election Monday, February 5, 2018 – First Day of 2018 Session Tuesday, May 15, 2018 – Oregon Primary Election Tuesday, November 6, 2018 – General Election

GOVERNMENT RELATIONS TEAM

Phil Bentley, J.D. Senior Vice President for Government Relations

Gwen Dayton, J.D. Executive Vice President & General Counsel

Chris Madden Government Relations Associate

Rosie Sontheimer Director of Marketing & Communications

Walt Dawson, D. Phil Director of Research and Analytics