Author: Jonah Mainzer

2023 Regulatory Advocacy Roundup

  

Over the past year, ANA has been the voice of nursing in a diverse array of regulatory issues. ANA’s regulatory engagements, though sometimes overlooked, are an important part of our advocacy on behalf of more than 5 million nurses in the U.S. Not surprisingly, the main focus of advocacy is the federal Department of Health and Human Services (HHS) and its subagency, the Centers for Medicare and Medicaid Services (CMS). However, ANA engages other HHS subagencies, such as the Food and Drug Administration (FDA), and government agencies including the Veterans Affairs Administration (VA), Department of Labor (DOL), and the Federal Trade Commission (FTC) as well.

In 2023, nurse advocacy recorded real progress at the federal policy and program administration level: 

  • CMS is changing the way they refer to various types of health care providers. Instead of using limiting language in regulatory publications and guidance documents, e.g., referring to physicians, advanced practice registered nurses (APRN), physician’s assistants, or any other providers by name, CMS is using the more generic term of practitioner, unless restricted by statute. CMS’ definition of practitioner specifically includes any clinician (including APRNs) that is eligible to bill for a particular service. This change is of enormous importance as it signals CMS’ intention to recognize APRN care, as it does physician care, to the extent of its regulatory authority. 
  • CMS is also implementing provisions of the Balance Budget Act (BBA) and allowing nurse practitioners (NPs) to bill for cardiac and pulmonary rehabilitation services. These services are within an NPs scope of practice, which Congress realized when the legislation passed. CMS is now implementing this legislation, which took effect on January 1, 2024.  
  • CMS is strengthening the Medicare Diabetes Prevention Program (MDPP), which ANA supports. Specifically, CMS is extending telehealth flexibilities for the MDPP for another four years and is re-aligning payments. The MDPP program presents opportunities for nurses to show their value in providing patient-centered education and health promotion to beneficiaries at risk of developing diabetes.  
  • Also in 2023, CMS released a long-awaited proposal to establish minimum staffing requirements in nursing facilities. The final rule is still pending; however, the proposed rule broke new ground in recognizing the role of RNs in safe staffing and patient well-being. ANA will advocate for a robust final rule, which could go a long way toward improving work environments in long-term care. 
  • CMS finalized adoption of a long-term care quality measure that APRNs can leverage to show their value to operators of skilled nursing facilities (SNFs) that opt to be considered for value-based payment. The Long-Stay Hospitalization Measure is aimed at improving facility-based care, specifically to reduce hospitalization for long-stay residents. APRN care in nursing facilities has a demonstrated positive impact on this metric. While this measure does not take effect until 2027, the lead time gives nurse advocates a head start to educate SNFs about this payment incentive and how nurses can help them be rewarded for results. 
  • The VA continues to move forward with their proposal to nationalize standards of practice for non-physicians. This has been a long process, and the VA has so far not proposed standards for the two covered nursing specialties—RNs and certified registered nurse anesthetists (CRNAs). Other APRNs already have standards that were codified in 2016. ANA has taken part in VA listening sessions on the proposed standards, and while there has been strong opposition to some of the standards, the RN standard has not garnered the same attention. 
  • ANA saw progress on workplace violence prevention at the DOL in its subagency, the Occupational Safety and Health Administration (OSHA). This year OSHA finally made a first step forward in creating a Workplace Violence Prevention for Health Care and Social Assistance Standard. In May 2023, OSHA conducted a Small Business Review of a proposed standard. ANA submitted comments during this review, emphasizing that nurses across the country need and deserve a set of standards tailored to their risks on the job. We continue watching OSHA to ensure they follow through with completing this standard as soon as possible. 
  • ANA members submitted hundreds of letters to OSHA on their COVID-19 final rule. Members across the country submitted letters to OSHA urging them to release their final COVID-19 in Healthcare Settings Rule. This rule was weakened in December 2021 and nurses deserve the fullest respiratory protections at work. ANA continues to press OSHA to release this final rule.
  • Another agency which heard from ANA’s regulatory staff in 2023 is the FTC. The FTC has proposed to ban non-compete agreements in the employment sector generally. The proposal has not moved forward, but ANA’s voice was heard, and staff were quoted in publications about the proposed rule. 

Always looking forward, ANA encourages all nurses, RNs, and APRNs to register for their individual National Provider Identifier (NPI). ANA knows how hard nurses work, and now is the time for payment systems to fully recognize the value of nursing. Currently, the impact of registered nurses is hidden behind physician expenses or other service charges. By registering for an NPI, we can push systems to extract nursing services from the data and demonstrate the critical role of nurses in patient care. For more information, visit our NPI webpage. ANA also encourages all APRNs to apply for an NPI. Many APRNs bill through their employer, and while this is a perfectly acceptable way for their care to be reimbursed, it might limit future opportunities for the APRN. Additionally, obtaining an NPI does not require one to bill using it, as one may continue to bill through their employer, and would allow an APRN to open their own practice as Medicare and most private payers require an NPI for reimbursement. 

The End of the Public Health Emergency and What this Means for Nurses

  

The COVID-19 Public Health Emergency (PHE) that was declared in March 2020 is set to end on May 11, 2023, as the President has announced there will be no more extensions to the PHE. After three years of regulatory flexibility in many areas of healthcare delivery, implications of the PHE unwinding for patients, nurses, and communities will be significant. Because of specific Congressional action many of the telehealth flexibilities authorized under the PHE will continue through the end of 2024. Much of Medicare is in statute, and as a result the Administration has limited authority to expand telehealth absent Congressional action. Congress has extended the telehealth flexibility through the end of 2024, but it is unclear if it will be extended further or made permanent. Additionally, CMS is ending the requirement that the supervising clinician be immediately available at the end of the calendar year where the PHE ends. That means that this will end on December 31 of this year.

ANA has worked with the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) on making waivers permanent, but CMS believes that they do not have the authority to make any additional waivers permanent. As a result, in order for these waivers to continue, Congress must act and pass legislation making these waivers permanent.

There are a number of waivers that ANA would like to become permanent. Some of these waivers had previously expired, but ANA is still advocating to change the law and make them permanently part of the Medicare program. The main waivers are:

  • Physician Services. 42 CFR §482.12(c)(1)–(2) and §482.12(c)(4): Waiving requirements that Medicare patients admitted to a hospital be under the care of a physician, allowing APRNs to practice to the top of their licensure, while authorizing hospitals to optimize their workforce strategies.
  • Physician Visits. 42 CFR 483.30(c)(3): Allowing nurse practitioners (NPs) and clinical nurse specialists (CNS) to perform all mandatory visits in a skilled nursing facility (SNF) has enabled practices and SNFs to maximize their workforce.
  • Physician Delegation of Tasks in SNFs. 42 CFR 483.30(e)(4): Allowing APRNs to practice to the top of their licensure ensures, especially during this PHE, that patients continue to receive immediate access to high quality healthcare.
  • Responsibilities of Physicians in Critical Access Hospitals (CAHs). 42 CFR § 485.631(b)(2): Making the physician physical presence waiver permanent allows certain APRNs in CAHs to practice to the full extent of their education and clinical training and enables the entire health care team to practice to its fullest capacity in provider shortage areas.
  • Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs): Physician Supervision of NPs in RHCs and FQHCs. 42 CFR 491.8(b)(1): Waiving the physician supervision of NPs in RHCs and FQHCs has provided workforce flexibility in rural and underserved communities where provider shortages have increased the most.
  • Anesthesia Services. 42 CFR §482.52(a)(5), §485.639(c) (2), and §416.42 (b)(2): Allowing certified registered nurse anesthetists (CRNA), in accordance with a state emergency plan, to practice to the full extent of their license by permanently extending the CMS waiver removing physician supervision as a Condition of Participation.

The end of the PHE will also have an effect on the Medicaid program. During the PHE, Medicaid enrollees automatically stayed enrolled in Medicaid and did not have to constantly keep proving eligibility. The end of the PHE will end this automatic enrollment and will require enrollees to prove eligibility. Additionally, the federal government had offered an additional 6.2% match for states who met maintenance of effort criteria during the PHE. This additional match will be slowly wound down through 2023 and the federal match will be returned to what it had been prior to the PHE in January 2024.

The end of the PHE could also lead to the resumption of student loan payments that were deferred due to the pandemic. Nursing school is expensive and as a result roughly ¾ of nursing students take out federal student loans to help pay for school. However, the Administration’s superseding debt forgiveness program is still pending in the courts. Oral arguments on the program were argued before the Supreme Court on February 28, and a decision is expected this Term. So, there is some ambiguity as to when payments will be required to resume. The original date for resumption of payments is June 30 and that is still likely to continue, but if the Supreme Court issues a decision before the end of April that date would change. The Administration has stated that payments will resume either sixty days after the Supreme Court renders an opinion or June 30, whichever comes first.

You can share your story about the impact of the Public Health Emergency HERE.

For additional resources about the end of the PHE, you can visit the websites below:

https://www.cms.gov/files/document/what-do-i-need-know-cms-waivers-flexibilities-and-transition-forward-covid-19-public-health.pdf

https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html