2010 Session - At A Glance

April 13, 2010

The 2010 Session ended last night at midnight.  No money and an upcoming election in November made this a very challenging Session for all involved.  Below are the highlights of the budget and the bills that were followed by LifeSpan.  On April 23rd and 29th, LifeSpan will hold a detailed peer-to-peer for members regarding the Session, how to work with your elected officials outside of the legislative process and what  providers can expect this interim regarding policy initiatives as well as an overview of the federal health care reform legislation and its impact on senior care providers.  To review the seminar program and register for either date, please click HERE. 

BUDGET OVERVIEW

According to the Report of the Conference Committee, the fiscal year 2011 budget will grow by 1.1%.  Except for nursing homes, senior care providers will be level-funded, which means that no inflationary adjustment will be given and current rates will continue through June 30, 2011.  In order to raise $17 million to cover the General Fund deficit, the General Assembly supported the Governor's proposal to increase the nursing home provider tax from 2% to 4%.  In increasing the tax, the Governor has instructed DHMH to do a budget amendment to increase nursing home rates by 2%.  DHMH has also committed to fund the pay-for-performance program (set for partial implementation on July 1, 2010) with the revenue generated by the increase, a position supported by LifeSpan in order to avoid providers getting a further rate cut to fund the program.  LifeSpan opposed the increase in the provider tax because:  (1) it disproportionately harms approximately 68 nursing facilities; and 2) sets a dangerous precedent for the State to continue to use the tax as a method for balancing the budget.   On that note, it is still projected that the fiscal 2012 will have a deficit of approximately $1.5 billion. 

The General Assembly passed several reporting requirements affecting the delivery of health care as part of the fiscal 2011 budget:

• DHMH, with the local health departments, is required to report how State funds were used programmatically by the departments in fiscal 2010 and how they will be used in fiscal 2011 as well as any programmatic and budgetary changes made in response to cost containment measures in fiscal 2010 and 2011.  Report due January 1, 2011.
• DHMH is required to use an independent consultant to report on how the Medicaid program can maximize savings from minimizing claims processing and eligibility payment errors and employing additional utilization review strategies beyond efforts already undertaken by the State.  Report due December 1, 2010.
• DHMH is required to report on the replacement of the core MMIS, enhancements to the Pharmacy e-Prescriber system and the Client Automated Resource and Eligibility System and the addition of a Decision Support System.  Two possible reports are required - July 1, 2010 and November 15, 2010, if a contract award has not been made by November 1, 2010.

LEGISLATION OVERVIEW - Business Bills

PASSED:  The Governor has already signed two bills into law.  The first bill (SB106 Labor and Employment - Job Creation and and Recovery Tax Credit) provides a $5000 per employee tax credit to employers that hire "qualified" workers between March 25, 2010 through December 31, 2010.  The second bill (SB107 Unemployment Insurance - Tax Deferment, Trust Fund Solvency, and Cost-Neutral Modernization Act) makes various changes to the State unemployment insurance law, including allowing an "alternative based period" to determine eligibility, expanding eligibility for UI benefits to include individuals enrolled in a qualifying job training program, eliminating UI benefits for claimants who become sick or disabled, increasing the penalty for claimants who are dismissed for misconduct or gross misconduct, decreasing the amount of disregarded wage a claimant may earn while receiving UI benefits, allowing employers a payment plan option in calendar 2010 and 2011 and reducing the monthly interest penalty. The provisions in the bill have delayed and staggered effective dates beginning March 1, 2011. 

FAILED:  Because of administrative issues and cost implications, LifeSpan opposed several business bills this year that all received unfavorable votes.  The House Judiciary voted unfavorable the Family and Medical Leave Act (HB1272), which would have allowed employees to take family and medical leave to care for the eligible employee's brother, sister, grandparent, grandchild, or domestic partner and the son or daughter of the eligible employee's domestic partner.  The bills that would have prohibited an employer from using credit history reports in hiring practices were reported unfavorable (HB175, SB110, SB312).  HB381, which would have allowed employees to take leave for a sincerely held, bona-fide religious belief, and HB755, which would have required employers to provide certain information to employees who may qualify for the earned income tax credit, were also voted unfavorable. 

LEGISLATION OVERVIEW - Health Care Bills

PASSED:  SB279, which creates a Maryland False Health Claims Act, passed for the first time after many years of failing in the Senate.  Similar to the nursing home provider tax, the Governor introduced the fiscal 2011 budget assuming $20 million in savings from this Act.  Without passage of the Act, the fiscal 2011 budget would not have been balanced, an issue which helped the bill pass.  SB279 has been amended to clarify that the definition of "knowingly" excludes a mistake or negligent act, removes the minimum penalty of $5,000 for violations, requires the court to consider certain factors when determining a penalty and provides that if the State decides not to pursue a cause of action then any private cause of action will also be dismissed (known as the "qui tam" provision). 

HB278/SB429 requires DHMH to report any proposed changes to the nursing facility level of care to the to the Senate Finance Committee and the House Health and Government Operations Committee as well as the Medicaid Advisory Committee 90 days prior to making the change.  HB659 Loretta's Law provides a statutory form power of attorney and an optional form for use by an agent to certify facts concerning a power of attorney.  HB384/SB655 extends the Task Force to Study Financial Matters Relating to LTC Facilities until January 1, 2012.  The Governor recently made the appointments to this Task Force in January of 2010. 

HB536 seeks to provide greater uniformity and accountability within the Long-Term Care Ombudsman Program.  Many of the provisions included in the bill parallel federal requirements.  HB1302/SB719 allow a dental hygienist to practice dental hygiene under the general supervision of a licensed dentist in a nursing home or an assisted living program.  HB849 provides that DHMH may not deny an individual access to a HCBS waiver due to a lack of funding if the individual is living in a nursing facility at the time of application, the individual meets all eligibility criteria, the HCBS would qualify for federal matching funds and at least 30 consecutive days of the individual's nursing facility stay are eligible to be paid by the Program rather than requiring 30 days to be paid for by the Program. 

At the request of LifeSpan, SB266/HB302 changes the composition of the Board of Nursing to include an LPN from a nursing facility and a delegating nurse working in a group living setting (includes assisted living).  The CNA Advisory Committee has also been amended to include a CNA working in medical adult day care. As originally introduced, this bill altered the nomination process for vacancies on the Board of Nursing.   HB179 allows the Board to issue a temporary license to an RN or LPN provided that the individual has taken and passed an examination but is waiting for the completion of the criminal history records check. 

SB776, which would have mandated that nursing facilities and assisted living communities conduct a State criminal history records check and a sex offenders registry check, was amended to require the current Sexual Offender Advisory Board in the Department of Public Safety and Correctional Services to review the policies and procedures relating to ensuring the protection of residents in nursing homes and assisted living facilities.  The report is not due until December 1, 2011. 

FAILED:  The General Assembly failed to take action on HB1019 Vera's Law, which would have allowed individuals in nursing homes and assisted living communities to install electronic monitoring equipment in their rooms.  A nursing facility has expressed an interest in serving as a pilot site to determine the pros and cons of electronic monitoring.  SB144/HB137, which would have extended the Board of Examiners for Nursing Home Administrators from 2013 to 2017 failed.  It is our understanding that the House Health and Government Operations Committee wanted to see more issues from the previous sunset report addressed prior to extending the Board.  The bills that would have established a Blue Ribbon Commission on Alzheimer's failed (HB897/SB797).  SB812, which would have replicated current law requiring a health care facility to provide information on the right of individuals to make advance directives failed.  HB1162, which would have created an abuser registry for health care workers, failed. 

Unfortunately, HB706/SB715, which would have provided a private cause of action for nursing homes when an individual failed to apply for or cooperate with Medicaid, failed to receive a vote.  LifeSpan worked with HFAM and several stakeholder groups, including the Attorney General's Office, on this bill.  Unfortunately, consensus could not be achieved.  LifeSpan is committed to examining this issue and the related eligibility issues over the summer and requesting that the bill be re-introduced. 

INTERIM ACTIVITIES

Even though Session just ended yesterday, the interim is already shaping up to be very busy.  LifeSpan's Legislative Policy Committee will be holding its first interim meeting in mid-May to discuss and plan LifeSpan's policy initiatives for the interim.  A few of the larger issues LifeSpan will continue to work on this interim include:

• the Continuing Care Advisory Committee within the Department of Aging.  The Committee is scheduled to begin recommending changes to the laws beginning late summer.
• the L-PAC within the Department of Health and Mental Hygiene, which is required to report on recommendations for changing the reimbursement system for LTC providers by October 1, 2010.
• the workgroup to examine the delivery of long-term care services in Maryland, which is required to report to the General Assembly on recommendations by December 1, 2010.
• an overview of the assisted living regulations that took effect December 2009 and LifeSpan's recommendations for making necessary changes.
• the Medicaid eligibility determination delays and the underlying problems associated with the delays.
• the partial implementation of the pay-for-performance program for nursing homes July 1, 2010.
• and much, much more!