October 2019 – Capitol Beat

Title VIII Legislation Passes House, Advances to Senate Floor

At the end of October, there were 7,679 bills introduced in the U.S. House of Representatives and the U.S. Senate.

With so many pieces of important legislation constantly in front of lawmakers and staff, it makes the fact that H.R. 728, the Nursing Workforce Reauthorization Act, was passed unanimously in the House that much more exciting.

As you may recall, nurses lobbied their members of Congress during ANA’s Hill Day in June to urge their lawmakers to cosponsor this legislation. With your tireless advocacy, you can now say your work on Title VIII is completed in the House.

Additionally, on the other side of the Capitol, the Senate has been working just as hard on Title VIII. During the same week of House passage, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on S. 1399, the Nursing Workforce Reauthorization Act. We are pleased to report the legislation successfully went through the committee process and the next step is for a vote on the Senate floor.

With all eyes on the Senate, we ask you to reach out to your Senators and ask them to consider cosponsoring S. 1399. If they are already a cosponsor, ask them to talk to Senate Leadership to bring Title VIII for a vote this year.

While this week has been focused on Title VIII reauthorization, we are continuing to advocate for additional priorities such as the Home Health Planning Improvement Act (S. 296/H.R. 2150) and the Workplace Violence Prevention for Health Care and Social Service Workers Act (S. 851/ H.R. 1309), and additional important pieces of legislation.

Executive Order for Medicare Accelerates APRN Reforms and CMS Delivers

Last week’s Capitol Beat offered a 10,000-foot review of the Administration’s Executive Order on Protecting and Improving Medicare for Our Nation’s Seniors. This week, we take a deeper dive and connect the dots with ANA advocacy and a new success story expanding scope for advance practice registered nurses (APRNs) in Medicare.

Among other provisions, the Executive Order directs the federal Medicare agency to remove certain billing rules that can get in the way of providers caring for their patients. The initiative specifically targets Medicare practice rules that are more stringent than state laws. Medicare must propose new rules within a year’s time. This is welcome news for many APRNs participating in Medicare, who are subject to an array of confusing federal rules that keep them from practicing at the top of their profession in caring for Medicare beneficiaries.

ANA has long advocated for administrative reforms to lift separate Medicare practice restrictions on APRNs, who are subject to state licensing authorities where they practice. Most recently, in a letter to Medicare officials on September 24, 2019, ANA emphasized that federal payment rules applied to APRNs should not have the effect of restricting patient access and choice, and that Medicare beneficiaries are increasingly relying on APRNs for primary care. We also cautioned that federal restrictions on APRN practice can have systemic consequences, especially in rural, underserved, and appointment shortage areas, where new approaches are sorely needed to improve access and care experience.

We are therefore excited to see signs in the Executive Order that nurses’ voices are being heard when it comes to health care reform. ANA and our members look forward to engaging with Medicare in the months ahead to identify some of the most troublesome barriers to APRN practice.

It is also encouraging to see that Medicare is already taking small steps to dismantle barriers to APRN care. The Centers for Medicare and Medicaid (CMS), starting next year, will allow nurse practitioners (NPs) in the state of Maryland to certify when their patients need home health care. This is a significant waiver of current law which requires an NP to bring in a physician, even when they are qualified under state practice authority to make such a decision.

The home health certification waiver in Maryland relates to a larger pilot program, which is testing a new payment system for Medicare in that state. Because of this pilot, CMS is able to authorize changes to existing law that are limited to the Maryland pilot. An act of Congress will be required to change the rules for the rest of the country. ANA supports the bipartisan Home Health Care Planning Improvement Act (H.R. 2150 / S. 296), which will allow NPs, clinical nurse specialists (CNSs), and certified nurse midwives (CNMs) to order home health care services without physician approval.

There is much work to be done to craft appropriate policies that expand access to APRN care and reward APRNs for the high-quality care they provide. ANA acknowledges and applauds the commitment of federal partners who are working with nurses to bring about the best possible results for our members and their patients.

What Does Trump’s New Executive Order Mean for Nurses?

President Trump signed a new executive order (EO) on October 3 relating to new policies the administration intends to implement in the Medicare program. The EO on Protecting and Improving Medicare for Our Nation’s Seniors builds upon a previous EO from October 2017, Promoting Healthcare Choice and Competition Across the United States, and the subsequent report, Reforming America’s Healthcare System Through Choice and Competition. The EO is intended to reform the Medicare program overall. The policy proposals address Medicare Advantage plans which are granted more flexibility under law in determining coverage and payment, as well as the traditional fee-for-service program.

Section 5 of the EO affects advanced practice registered nurses (APRN) and physician assistants (PA) in significant ways that the administration hopes will allow patients to spend more time with their providers. This section directs the Secretary of Health and Human Services (Secretary), within one year, to propose reforms to the Medicare program that would:

Eliminate excessive supervision requirements that prevent APRNs and PAs from delivering appropriate diagnosis and quality care;
Provide equal pay for equal work, with Medicare reimbursing APRNS and PAs at the same level as physicians for the same procedures;
Remove certain unspecified conditions of participation (CoP) requirements; and
Enable APRNs and PAs to practice to the full extent of their education and clinical training.

EO’s are typically broad and don’t get into the finer details of what is being proposed or the actions that will be taken. While we can make logical assumptions with some instructions in the EO, there are others that are less clear and we will work with the administration to clarify these issues as proposals are developed.

The subsections of the EO that would eliminate the unspecified supervision requirements, conditions of participation requirements, and licensure requirements in Medicare that limit clinicians from practicing at the top of their profession, would be done through the federal regulatory process. This involves the Secretary writing a “proposed rule” (i.e. regulation) and allowing for a 60-day public comment period. After which, the Secretary will publish a “final rule” and the new regulations will move into the implementation process. ANA will be engaging with the Secretary throughout the process to get the best regulatory results for nurses.

The third subsection dealing with pay disparities between physicians and other clinicians only instructs the Secretary to conduct a comprehensive review of regulatory policies. Currently, the Medicare statute stipulates that nurse practitioners and clinical nurse specialists are paid at 85 percent of the physician fee amounts that are set annually by CMS for fee-for-service. Based on previous actions and communications with the Secretary, we expect he will do what he can to eliminate pay disparities in certain parts of Medicare through regulation and also advise Congress to eliminate the pay disparities through legislation. Any legislation would need to be introduced and go through the normal legislative process.

One wild card in this proposal is the elimination of unspecified CoP requirements. CoP are federal regulations that certain health care facilities must comply with in order to be reimbursed by Medicare and Medicaid. While we would like to see some CoPs go, like the one that requires a certified registered nurse anesthetist to be supervised by a physician, there are others that positively benefit nurses and patients alike.

ANA is pleased that the Administration recognizes the value of APRN services to health care consumers and the Medicare program. We look forward to working with the Administration and Congress on on the development and implementation of these policies through the regulatory and legislative processes.