CDC Health Advisory on Influenza Antiviral Medications for this Influenza Season

On December 19, CDC issued new interim recommendations for the use of influenza antiviral medications this year because preliminary data indicates that the prevalence of influenza A (HINI) virus strains resistant to the antiviral mediation oseltamivir is high. When influenza A (H1N1) virus infection or exposure is suspected, use of zanamivir or a combination of oseltamivir and rimantadine are acceptable alternatives. Amantadine can be substituted for rimantadine if rimantadine is unavailable. Local influenza surveillance data and laboratory testing can help with physician decision-making regarding the choice of antiviral agents for their patients.
The 2008-09 influenza vaccine is expected to be effective in preventing or reducing the severity of illness with currently circulating influenza viruses, including oseltamivir-resistant influenza A (H1N1) virus strains. Since influenza activity remains low and is expected to increase in the weeks and months to come, CDC recommends that influenza vaccination efforts continue.
For more information, go to http://www2a.cdc.gov/HAN/ArchiveSys/ViewMsgV.asp?AlertNum=00279.

CMS Transmittal on Influenza Pandemic Policy

On December 5, CMS issued a transmittal on certain emergency policies and procedures that may be implemented for the Medicare program in the event of an influenza pandemic. The policies, in the form of questions and answers (Q&A), are pending until CMS declares the policies to be in effect, i.e., an influenza pandemic emergency and public health emergency are declared. The Q&As relay policy on accelerated/advance payments, waiving interest on debts, and medical record documentation requirements. While the policy provided in the transmittal is limited, we are pleased that CMS is beginning to provide at least some advance policies that could become applicable during an influenza pandemic.

The Transmittal may be accessed at http://www.cms.hhs.gov/transmittals/downloads/R411OTN.pdf. The Q&As are in Attachment B.

OSHA Issues Final Rule Establishing Per-Employee Citations for PPE Violations

OSHA will publish in the December 12 Federal Register the final rule “Clarification of Employer Duty to Provide Personal Protection Equipment and Train Each Employee.”
AHCA/NCAL commented on this rule in September, and our comments can be read at http://www.ahcancal.org/facility_operations/Documents/ViolationForPPE.pdf.

Although OSHA did not agree with all of AHCA/NCAL’s comments, we are pleased with some of the clarifications made. Below is a summary of the contents of the final rule which most apply to long term care, followed by AHCA/NCAL’s opinions:

1) Employers will be required to provide personal protective equipment (PPE,) [including respirators, foot, hand and eye protection] to every employee whose position requires such PPE, and can be cited for noncompliance on a per-employee basis.

2) Employers shall institute a training program for PPE for every employee whose position requires it, and must ensure employee participation in the program. Such training can be done in a group setting. Each failure to train an employee may be considered a separate violation.

3) The above requirements also apply to temporary workers.

4) The employer can argue that employee non-compliance led to lack of/inappropriate PPE use, and that per-employee violations are not appropriate. However, this does not ensure that per-employee violations will not be cited.

Per our comments on the proposed rule, AHCA/NCAL is pleased that group employee training for respirators, bloodborne pathogens, etc. will be recognized as meeting the needs to educate each employee. However, we are concerned that documentation of training alone does not protect the employer from per instance violations if employees are non-compliant.

In addition, despite our comments, OSHA did not agree that its CPL 2.80 Directive (1990), “Handling of Cases to be Proposed for Violation-by-Violation Penalties,” which stated that only flagrant violations of the Occupational Safety and Health Act (the “Act”) are appropriate bases for “per instance” violations, should apply to this final rule as the directive is not a standard or regulation. If this directive was recognized, per-employee violations would only be applied to flagrant violations.

In order to be in compliance with the final rule, AHCA/NCAL recommends that members:

1) Continue to provide PPE to applicable employees, permanent or temporary, and train them as a group or individually.

2) Make sure to document provision of PPE and training.

3) If OSHA does issue per-employee violations for employee non-compliance, show OSHA your training records and clearly state why per employee violations are not appropriate.

The final rule can be read in its entirety at http://op.bna.com/dlrcases.nsf/id/vros-7m7lxb/$File/Final%20PPE%20Rule.pdf.

CMS Releases Final Rule on State Flexibility for Medicaid Benefit Packages

CMS released a final rule to implement Section 6044 of the Deficit Reduction Act (DRA) that allows states flexibility to define the scope of covered Medicaid medical services by offering benchmark benefit packages or benchmark-equivalent packages in place of the standard Medicaid benefit package. While this is very important because states that utilize this DRA provision would no longer be required to offer a minimum standard benefit package to eligible populations, the impact for individuals in long term care facilities is lessened because under the law, these vulnerable populations are exempt from mandatory enrollment in a benchmark or benchmark-equivalent benefit package.

When AHCA/NCAL commented on the proposed rules, we asked that CMS strengthen the requirements relating to the exemption of vulnerable populations. CMS agreed with AHCA/NCAL and revised the final rule to require that states must “effectively” inform individuals that enrollment is voluntary and CMS states in the preamble that, To the extent that the informed choice process continues to raise concerns, we may issue guidance as to what process are necessary to insure that the informed choice process in effective. In addition, in response to our concern that exempt individuals will be automatically enrolled without their expressed consent, CMS amended the final rule to clarify that “informed choice” must take place before enrollment in the benchmark plan and require that the individual’s file is documented to reflect that an exempt individual is fully informed and had ample time for an informed choice. The final rule may be accessed at http://edocket.access.gpo.gov/2008/pdf/E8-28330.pdf.

DOL Releases the FMLA Final Rule

The U.S. Department of Labor (DOL) has released a final rule amending the Family Medical Leave Act of 1993 (FMLA), that provides eligible employees the right to take job-protected, unpaid leave for absences due to the birth or adoption of a child or to take care of other serious family health care matters. See http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf. The final rule is effective January 16, 2009 and clarifies the meaning of a qualifying "serious health condition" and changes notice requirements. AHCA/NCAL is pleased that the final adopts arguments that we made to DOL in our commnts on the FMLA proposed rule (see http://www.ahcancal.org/advocacy/Letters/BrennanLetterFMLAof1993PR.pdf), specifically that an employee who returns to work in a light duty position should only retain reinstatement rights to his or her full duty position for the remainder of the weeks remaining in the employee's 12 week FMLA entitlement. DOL also modified the final rule to state that employers that have employee handbooks or other written materials concerning benefits and leave can use these written materials as general notice information but no annual notification is required.

DHS Releases No Match Rule

In late October, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (DHS) issued a supplemental final rule, Safe Harbor Procedures for Employers Who Receive a No-Match Letter: Final Regulatory Flexibility Analysis (see http://edocket.access.gpo.gov/2008/pdf/E8-25544.pdf), that provides additional background and analysis to the agency's No-Match rule. The regulation, clarifies what steps responsible employers can take to resolve discrepancies identified in "no-match" letters issued by the Social Security Administration (SSA). The rule also provides guidance to help businesses comply with legal requirements intended to reduce the illegal employment of unauthorized workers. The rule calls for immediate implementation; however, DHS acknowledges it must refrain from enforcing the rule until the injunction is lifted in current litigation. To obtain a more complete history and explanation of the supplemental final rule, please see AHCA's Legislative Counsel, GreenbergTraurig's Immigration Alert at http://newsmanager.commpartners.com/ahcamemo/downloads/GTAlert_End_of_DHS_SSN_No_Match_Rule_Oct2008.pdf.

AHCA Vacancy & Turnover Staffing Study

AHCA has released its 2007 Nursing Position Vacancy and Turnover Study, which examined employment vacancy and turnover rates in nursing facilities nationwide. Our survey found nearly 110,000 full-time equivalent health care personnel were needed to fill vacant nursing positions, including approximately 19,400 registered nurse (RN), 24,200 licensed practical nurse (LPN), and 60,300 Certified Nurse Assistant (CNA) positions—that means long term care providers, on average, are looking to fill 1 in 6 RN, 1 in 9 LPN, and 1 in 10 CNA positions. To review AHCA's 2007 Vacancy & Turnover Survey, which calls on the incoming Congress and Administration to make addressing the long term care workforce shortage a top national priority, go to http://www.ahcancal.org/research_data/staffing/Documents/Vacancy_Turnover_Survey2007.pdf.

ADA Amendments Effective 2009

President Bush recently signed the Americans with Disabilities Act Amendments Act of 2008 (ADAA), which will go into effect on January 1, 2009. The ADAA makes important changes to the definition of the term "disability" by rejecting previous holdings in the U.S. Supreme Court that narrow the interpretation of what is a protected "disability" under the law. The ADAA expands what is meant by "substantially limits" and "major life activities." Courts will now classify an individual as disabled even if their limitations are not "severe" and impairments are not "long-term or permanent." Further, the ADAA now classifies a person as disabled, even if his/her impairment does not affect major life activities because it is adequately controlled by medication or medical devices. The ADAA also will change the current U.S. Equal Employment Opportunity Commission (EEOC) ADA regulations. For more information visit the EEOC website at http://www.eeoc.gov/ada/amendments_notice.html.

Kaiser Commission Releases Policy Brief on Vermont's Medicaid Long Term Services Waiver

A new policy brief by the Kaiser Commission on Medicaid and the Uninsured analyzes the experience of Vermont’s Choices for Care (CfC) waiver in delivering long term services. Created through a five-year Medicaid waiver in 2005, the program was designed to increase access to home and community-based services (HCBS) while reducing the use of nursing facility (NF)services and controlling overall costs. The analysis found that Vermont was able to expand access to HCBS and extend some services to a “moderate need” group for the first time. But while the state has seen a shift of people and money toward community settings, it also has experienced the return of waiting lists for some populations. Because of circumstances unique to Vermont, it is unclear how appropriate this waiver approach would be for other states.

The report, Vermont's Choices for Care Medicaid Long-Term Services Waiver: Progress and Challenges As the Program Concluded its Third Year offers an objective analysis of Vermont's Section 1115 waiver program. According to the report, under CfC:

• Vermont significantly expanded the number of people receiving HCBS services, while experiencing a modest reduction in people receiving services in NFs. The report notes that VT attempts to equalize access to NF and HCBS by reducing access to NFservices for some individuals and questions if that reduction was necessary.


• Though state officials are very satisfied with the waiver program, many beneficiaries, social workers and legal advocates believe that a major consequence of CfC is that individual beneficiaries who were receiving HCBS prior to CfC experienced significant reductions in the number of hours of services in their care plans.


• CfC has led to a significant rebalancing of where individuals receive services and where the state spends its resources for long-term services and supports, although Vermont was moving forward with rebalancing prior to CfC.


• Spending growth has been modest and far below(less than half) state projections when submitting the waiver. This discrepancy likely reflects the state's effort to justify the highest cap possible and does not necessarily reflect the state's true projection of its actual spending.


• Ensuring an adequate capacity to provide services in the community, including shoring up the supply of direct care workers is a major challenge. Vermont's program is predicated on requiring individuals to obtain as much family support as possible.

Noting that state policymakers around the country who are interested in Medicaid long term care reform are watching CfC, the report cautions:

• One issue to consider is whether the reduced right to nursing home care and tight management of care plans leave needy individuals vulnerable to state economic conditions and shifting legislative priorities.


• To assess whether a federal financing cap is a reasonable trade off for a state, the level of the cap is a critical consideration. The funding cap for CfC is set at a very generous level ($1.236 billion), which made the risks of a global cap more acceptable for Vermont.


• While state officials argue that the lost guarantee of nursing home services for the "high need" population was essential, the report notes that since rebalancing is widely viewed as cost-effective and community services are seen as more responsive to consumer preferences, the state could have achieved a significant rebalancing by implementing CfC while maintaining an entitlement to nursing home services for the "high need" group.

The full report s available on the Kaiser Commission Web site at http://www.kff.org/medicaid/7838.cfm.