Home Health & Hospice Week

Will you say goodbye to some onerous regulatory burdens?

Whether you were cheering or booing when presidential election results were announced, you can be sure of one thing: a Donald Trump Administration is likely to bring some big changes to the Medicare world for home care and hospice.

Predicting how a new President’s term will affect day-to-day operations for home health agencies and hospices is always dicey. But this year, it’s even more speculative due to Trump’s unorthodox campaign. The President-Elect has famously not been big on specifics when presenting his ideas, and that extends to health care, observers say.

Trump and other Republican candidates were specific about repealing “Obamacare,” i.e. the Affordable Care Act. “With Republicans still controlling the House and Senate, repeal is possible,” says Jonathan Keyserling, Senior VP and Counsel with the National Hospice & Palliative Care Organization. “However, Democrats still control 47-49 seats, and might have enough support to filibuster or block any ACA repeal. So it’s unclear whether Trump would be able to deliver on this promise,” Keyserling said at press time.

“Many think that a complete repeal may not be viable — like coverage for people with pre-existing conditions,” notes attorney Liz Pearson with Pearson & Bernard in Edgewood, Ky.

Political experts agree that a front-runner for Health and Human Services Secretary is physician Ben Carson, and Carson is clearly an ACA critic. In a controversial quote, Carson said in 2013 that “Obamacare is really, I think, the worst thing that has happened in this nation since slavery. And it is, in a way — it is slavery in a way because it is making all of us subservient to the government.” In 2014, he said Obamacare was worse than 9/11.

Other HHS Secretary possibilities are Florida Gov. Rick Scott and former House Speaker Newt Gingrich. Another influence on Medicare and Medicaid policy might be Vice President-Elect Mike Pence, whose state administration has proven reasonable in resolving Medicaid payment issues, reports attorney Robert Markette Jr. with Hall Render in Indianapolis.

Scrapping the ACA, if it happens, could have a huge impact on home care and hospice providers. ACA components include bundling programs such as the Comprehensive Care for Joint Replacement Model, the Medicare Shared Savings Program including Accountable Care Organizations, the Employer Mandate requiring businesses to furnish employee health insurance or pay a penalty, and more.
The ACA “authorized the Center for Medicare and Medicaid Innovation (CMMI), which is home to a number of initiatives relevant to our community,” Keyserling points out. If Trump and lawmakers take a targeted approach to repeal, “which parts will go, which parts will stay?” Markette asks.

Republican administrations are also typically seen as more pro-small-business and espouse easing regulatory burdens. But the Trump presidency is likely to be anything but typical, observers point out.
Potential pros: Getting rid of ACA requirements such as the Employer Mandate and bundling programs could save agencies money and give them more control, Markette predicts.

And easing up on regulatory burdens could translate to eliminating the reviled face-to-face requirement in home health. “Who wouldn’t love to see that?” Markette asks. Ditto for the hated PreClaim Review demonstration.

Regulatory relief could even extend to the Department of Labor rolling back the companionship exemption restriction on the exception to minimum wage and overtime laws, Markette says. “It’s not out of the question.” Likewise, elimination of Value-Based Purchasing might be on the table.

Trump has repeatedly said he won’t cut Medicare benefits, Pearson observes. “So, the idea that co-pays for home health may come into play, could be less likely now,” Pearson offers. On the other hand, other Republication lawmakers have supported home health copays in one form or another.

Pearson also hopes that former neurosurgeon Carson, if appointed HHS Secretary, “could be a good friend to home health, upsetting the ingrained bias that exists at HHS & CMS.”

Potential cons: In anticipation of bundling, ACOs, and other similar programs, many home care providers have invested serious resources in building partnerships with hospitals and other colleagues.
That money and effort could be wasted if those ACA payment structures disappear, Markette says.

And while enforcement activity is typically lower in Republican administrations, “no politician is pro-crime,” Markette notes. So any effect on programs such as HEAT task forces is unclear.
In fact, “Donald Trump has talked about being very aggressive on fraud, so there is the potential for more scrutiny on the industry,” suggests attorney Jennifer Colagiovanni with the Law Offices of Fehn, Robichaud & Colagiovanni in Troy, Mich.

Crystal Ball Cloudy

There’s one thing observers agree on: no one knows what’s coming next.

Trump has “indicated that he will replace Obamacare, though it is really unclear at this point what that replacement would look like,” Colagiovanni says.

“There is just not enough there to make a clear prediction,” Pearson concludes. “So much will depend on his advisors I think. And, unraveling all the programs in play — bundled payments, ACOs, etc. The most I think we can hope for in the initial stages of his presidency is a more favorable/less punitive attitude towards home health.”

“Obviously, much remains to be seen once the new administration is in and running,” Keyserling says. “Either way, hospice and palliative care is fortunate to enjoy broad, bipartisan support on Capitol Hill, and our hope is to continue to promote public policy that promotes expanded use of palliative care and early access to hospice services.”