Some Supreme Court justices on Wednesday signaled their willingness to give courts more discretion in interpreting “ambiguous” federal statutes rather than leaving that work to the agencies tasked with implementation.

Abandonment of the so-called Chevron doctrine could have implications for nearly every US sector and industry, including long-term care. Existing practice requires courts to give federal regulators deference when a statute is unclear or could be interpreted two ways, but experts said a change could embolden more lawsuits challenging key rules affecting senior living and skilled nursing providers.

A decision overruling Chevron likely would require Congress to craft more detailed legislation that delegates powers more specifically. It also could “have a significant impact” in keeping administrative agencies from overreaching when such delegation doesn’t exist, said Mark Reagan, managing shareholder of Hooper, Lundy & Bookman.

“This will have impact across the entire regulated economy, including Medicare, Medicaid and other healthcare legislation,” he told McKnight’s. “If overruled, I would expect there to be serious consideration in some quarters to reverse prior decisions made in reliance on Chevron in the healthcare industry, particularly those involving complex Medicare reimbursement methodologies.”

In the long-term care sector, Reagan said the Centers for Medicare & Medicaid Services might have to change how it approaches its requirements of participation and reimbursement rules.

That might not constrain CMS, Reagan said, but instead could lead to more opportunities for successful litigation if the agency’s presumed authority “is far from clear.”

Two fishy cases 

Many conservatives have cheered the possibility of a reversal, which is being pursued by a group of herring fisheries that argue their livelihood is threatened by a Commerce Department rule requiring them to pay for overfishing monitors onboard their boats.

Those fishermen took two separate cases to the court for almost four hours of hearings Wednesday. The full court will weigh Relentless v. Department of Commerce, but Justice Ketanji Brown Jackson had to recuse herself from Loper Bright Enterprises v. Raimondo, in which she heard lower court arguments.

The court’s conservative majority peppered US Solicitor General Elizabeth Prelogar with questions about Chevron’s ability to create regulatory unreliability, or the idea that existing rules can be routinely “flipped” by agencies without any warning to the businesses they regulate. 

“The reality of how this works is, Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in, whether it’s communications law, securities law or competition law or environmental law. It goes from pillar to post,” said Justice Brett Kavanaugh. “It’s just massive change. That is at war with reliance. That is not stability.”

Lawyers for the fisheries argued that courts could review contested agency actions for their persuasiveness, rather than reflexively deferring to the agency’s interpretation. That approach appeared to be favored by the court’s conservatives, too, Reagan noted. 

Liberal leanings

The court’s decision likely will be split, as several more liberal justices appeared inclined to let the 40-year-old doctrine stand.

Justice Elena Kagan used real-life cases ranging from classifying a product for the Food & Drug Administration and possible legislation on artificial intelligence to illustrate why courts might not be the best final arbiters.

“There are just some times when you look at a statute, and the most honest reading is that there is a gap there because of the limits of language, because of the limits of our ability to predict the future. And so who fills that gap?” she asked. “It’s best to defer to people [agency staff] who do know, who have long experience on the ground, who have seen a thousand of these kinds of situations. Judges should know what they don’t know.”

Kagan argued that the intent of Congress is to have the agencies it empowered make those decisions, not a series of federal courts that could conflict with each other based on their geography and political leanings.

Others, including conservative justice Samuel Alito, also questioned whether a revised approach might lead to more judicial activism. He referred to Chevron’s initial popularity when it was adopted by the Court in 1984 as a conservative tool to stymie a liberal DC Circuit Court.

That policy-making concern resonated with Brendan Williams, an attorney and president and CEO of the New Hampshire Health Care Association, the state affiliate of the American Health Care Association/National Center for Assisted Living.

“Those providers looking to the courts for salvation under a new approach should consider Health and Hospital Corp. of Marion County, Indiana v. Talevski, last year’s 7-2 Supreme Court decision that, in my opinion, fabricated out of whole cloth a right to sue publicly-owned nursing homes,” he said. “When courts, even conservative courts, are allowed to make policy, the consequences could be chaotic and unpredictable.”

Williams added that he was nervous that the conservative majority appears ready to institute an older precedent that was effective in the New Deal’s regulatory-building heyday.

“These days, with an utterly inert Congress, the complex task of governance could unravel if those with lifetime appointments, unaccountable in any way to the public, can second-guess agency scientific analyses,” he added. “Though it perhaps seems improbable, the day may come when an agency interprets an ambiguous statute in a ‘reasonable’ way beneficial to nursing homes, and those hostile to the sector challenge that rule before a judge who is also hostile to the sector. …That judge no longer must offer any deference to that agency.  So it cuts both ways.”

Decisions in the two cases are expected before the court adjourns in June.

Home health agencies that do not have electronic health record systems in place are at a disadvantage, but many still lack this technology, according to a recent study published in the journal Home Health Care Management and Practice.

Among a sample of more than 1,500 Medicare home health providers, approximately 10% did not use EHRs. Some instead used paper and pencil for clinical documentation, whereas others explored other means of transmitting patients’ health information, such as by using telephone calls. EHR tools, however, were found to be the most effective, whereas the alternatives led to challenges for the providers and the patients they served.

Those challenges included operational and administrative slowdowns. Paper charting was found to be less efficient and more time-consuming than electronic means, and as a result, providers using those outdated means experienced more challenges coordinating care with patients’ other providers.

Those providers without EHR systems in place tended to be smaller, and were more often for-profit rather than nonprofit entities. Those without EHRs also had lower Star Ratings and weaker Home Health Consumer Assessment of Healthcare Providers and Systems scores, on average.

EHR advantages

Meanwhile, providers that use EHR systems were reportedly better able to monitor their patient population, more effectively coordinate care and collect data for quality improvement. They generally produced better health outcomes at lower costs, the study found. 

But those agencies still noted challenges that came with using EHR tools. For example, electronic health information platforms can be difficult for staff members to learn and use, the researchers noted. Some providers reported “ongoing difficulties and barriers” preventing effective use of EHR technology.

“These challenges may inadvertently lead to higher workloads due to the need to transcribe paper notes into the EHR and resolve HIT issues, which may decrease user satisfaction with the system,” the researchers wrote. “The switch to a new EHR system increased the time clinicians spent on charting, suggesting that there may be an initial learning curve associated with instituting new technology resulting in an initial increase in workload.”

Big investment

The process of adopting an EHR can be a challenge in and of itself, as selecting the appropriate electronic tool requires a large investment of time and money, according to the study. A highly fragmented market of EHR tools impedes healthcare interoperability, reducing efficiency and making care coordination harder, the researchers noted.

In related news, five EHR vendors entered the Trusted Exchange Framework and Common Agreement in a move that could advance efforts of creating interoperable patient data tools. Epic Nexus, Health Gorilla, KONZA and MedAllies and eHealth Exchange make up the first five qualified health information networks under TEFCA. They will be able to share patient data with providers using any other TEFCA-aligned EHR software.

Sneha Kannan, MD, from Massachusetts General Hospital in Boston, and colleagues examined changes in hospital-acquired adverse events and hospitalization outcomes associated with private equity acquisitions of US hospitals. Data from 100% Medicare Part A claims were compared for 662,095 hospitalizations at 51 private equity-acquired hospitals and 4,160,720 hospitalizations at 259 matched control hospitals not acquired by private equity.

The researchers found that hospital-acquired adverse events or conditions occurred in 10,091 hospitalizations. Compared with those treated at control hospitals, Medicare beneficiaries admitted to private equity hospitals experienced a 25.4% increase in hospital-acquired conditions (4.6 additional hospital-acquired conditions per 10,000 hospitalizations). This increase was driven by a 27.3% and a 37.7% increase in falls and central line-associated bloodstream infections, respectively, at private equity hospitals, despite placement of 16.2% fewer central lines. At private equity hospitals, there was a doubling of surgical site infections, from 10.8 to 21.6 per 10,000 hospitalizations, despite an 8.1% reduction in surgical volume; these infections decreased at control hospitals. Compared with control hospitals, there was a slight decrease in mortality at private equity hospitals (3.4%, on average), but no differential change was seen in mortality by 30 days after discharge.

“These findings heighten concerns about the implications of private equity on healthcare delivery,” the authors write.

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A new study gives more insight into how much time older adults in assisted living spend in and out of the setting.

Long-term care providers look at “home time” — being alive but not in a healthcare institution — as a quality metric. A team of researchers examined the variation in home time among people in assisted living communities in the first year after they moved in. That is, they were in home time at the assisted living community but were not in home time if they had to move to a nursing home, were hospitalized or went into hospice. The investigators also evaluated the link between state regulations for direct care worker training and staffing for licensed workers.

Overall, the team found that people in assisted living communities who were eligible for the Medicare and Medicaid programs had substantially shorter home time compared with Medicare-only residents. The difference, according to the researchers, largely is due to longer time spent in nursing homes. 

The data used came from 59,831 fee-for-service Medicare beneficiaries who moved into 12,143 assisted living communities in the United States. The average age of the older adults in the study was 81.2 years, and almost half of the residents were aged more than 85 years. For those who subsequently went to a nursing home, 12.2% of the people passed away within the first year.

The residents spent, on average, 94% of their time at home or in assisted living, 0.4% of the time in the emergency department, 1.8% in the hospital, 3.6% in a nursing home and 0.2% of their time in hospice. Notably, the researchers found that people with chronic conditions, including Alzheimer’s disease and dementia, spent less time at their home in the one-year span. 

The team also found that assisted living regulations for direct care workers affected residents’ home time.

“We found a negative association between home time and greater state assisted living regulatory specificity for licensed staffing, with virtually all ‘lost’ days being spent in nursing homes,” the authors wrote. “Several possible explanations may be considered. Although higher licensed staffing requirements may increase the presence of licensed staff in assisted living communities, it may also cause reallocation of resources from areas that are either not regulated or already exceeded the regulatory requirements.”

Another reason for the finding is that requirements of greater licensed staffing increase the ability of assisted living workers to identify which residents need more intensive care that can be better provided in nursing homes, the authors added.

Julie Robison, PhD, from the UConn Health Center on Aging in Farmington, and colleagues compared hospice use and hospice length of stay (LOS) by race and ethnicity among Medicaid-only individuals and those with dual eligibility for Medicare and Medicaid (duals). The analysis included 2,407 individuals and 23,857 duals enrolled in the Connecticut Medicaid program who died.

The researchers found that race and ethnicity were significantly associated with hospice use and LOS in both populations. Non-Hispanic Black and Hispanic decedents had lower odds of using hospice compared with non-Hispanic white decedents. Hispanic decedents also had higher odds of a short LOS. In both populations, hospice use was associated with older age and female sex. Older age was associated with lower odds of short LOS in duals. For decedents with nursing facility stays, Medicaid-only decedents had higher odds of using hospice (odds ratio, 1.49), while duals had lower odds (odds ratio, 0.60) compared with those without nursing facility stays. 

“These findings raise concerns about equity and timing of access to hospice for both Medicaid populations, particularly for Hispanic and non-Hispanic Black decedents, and suggest further analysis of the role of nursing facility stays,” the authors write.

The authors disclosed that the data for much of the work came from the Connecticut Department of Social Services, and the results have implications for the Department of Social Services policy, which could be perceived as influencing the study.

Abstract/Full Text

Spending for services provided at freestanding nursing homes and continuing care retirement communities, which represented 4% of overall spending, increased by 5.6% in 2022, to $191.3 billion, after reporting a 7.8% dip in spending in 2021.

“Nursing homes consist of a lot of Medicare and Medicaid spending, and we saw a decline in Medicare spending in 2021,” CMS Economist Ann Martin, a co-author of the report, said Wednesday during a press briefing held in conjunction with the release of the analysis. “Also, what’s really driving that dip in 2021 overall is the decline in other third-party payers and programs.”

The Medicaid program, out-of-pocket payments and Medicare reimbursements accounted for more than three-fourths of total payments to nursing homes and CCRCs and, in 2022, spending for those payers had strong growth following low growth or reduced spending in 2021.

Martin noted that nursing homes also received much pandemic relief in 2020 supplemental federal funding, which declined from $22 billion in 2020 to approximately $3 billion in 2021.

Most of the decline in nursing homes spending stems from that loss, she said.

Spending for services provided by freestanding home healthcare agencies increased 6% in 2022 to $132.9 billion, accelerating from growth of 0.3% in 2021, according to CMS. Private health insurance, out-of-pocket, and Medicaid home health spending contributed to the faster growth, whereas Medicare spending growth for home healthcare services slowed. Home healthcare-related spending represented 3% of overall spending.

Overall spending growth similar to pre-pandemic levels

“The [overall] 4.1% growth in 2022 was similar to the pre-pandemic average annual growth of 4.4% over the 2016 to 2019 period,” Micah Hartman, chief statistician at the CMS Office of the Actuary and lead author of the report, said during the press briefing. “The share of the economy devoted to health was 17.3%, lower for the second year in a row and down from the peak of 19.5% in 2020.”

He added that the 17.3% figure 2022 was more in line with the average from 2016 to 2019 of 17.5%.

Medicaid and private health insurance spending influenced the overall  growth in healthcare spending in 2022. 

“Medicaid spending increased 9.6% in 2022 after growth of 9.4% in 2021 and 9.3% in 2020,” the authors noted.

In 2022, total spending for private health insurance reached $1.3 trillion, which was approximately $71 billion, or 5.9% more than the amount spent in 2021, according to Martin.

“Private health insurance enrollment grew 1.5% in 2022, and this was the fastest growth in enrollment since 2015 and reflected increased enrollment in both marketplace plans and employer-sponsored insurance,” Martin said. “On a per-enrollee basis, spending for private health insurance increased 4.3% which was slower than the growth of 5.9% in 2021.”

She said the slower growth was due primarily to slower growth in per-enrollee spending for employer-sponsored private health insurance. 

According to Martin, Medicaid spending reached $805.7 billion in 2022, an increase of 9.6%. 

“This was approximately the same rate of growth as experienced in 2020 and 2021, and the third consecutive year of growth above 9%,” she added.

More than four out of five older adults (83%) think insurance companies should pay for drugs that help people with obesity manage their weight, according to poll results from more than 2,600 people ages 50 to 80 years.

A 2003 law currently prohibits Medicare from covering medications specifically for weight loss, although the federal insurance program can cover drugs that help people with type 2 diabetes manage their weight, researchers said in background notes.

In the poll, researchers found wide interest among older adults for using weight-loss drugs to drop extra pounds. About one in four poll respondents said they are overweight, and 63% of them are interested in taking a weight-loss medication. So are 45% of those who have diabetes, regardless of their weight. The drugs appear to make a good impression as well. Among those who had ever taken a weight-loss medication, 83% said they would do so again.

Poll results show that Ozempic/Wegovy has largely driven this new interest in weight-loss medications. The poll revealed that 61% of older adults had heard of the diabetes drug Ozempic, but only 18% had heard of the version approved specifically for weight loss, Wegovy. Other weight-loss drugs were much less familiar to poll respondents. Only 13% had heard of an older drug called phentermine, and just 3% had heard of Qsymia, Saxenda or Contrave.

More Information

Editor’s note: McKnight’s Home Care, McKnight’s Senior Living and McKnight’s Long-Term Care News are publishing focused articles on the 2023 winners of the McKnight’s Excellence in Technology awards Nov. 29 through Dec. 5. Look for the nomination period for the 2024 awards program to open in May.

This article is published on this site as part of the McKnight’s Tech Daily e-newsletter coverage.

Rehospitalizations can be detrimental to patients and providers. With their home health virtual care product, Compassus aims to reduce rehospitalizations among Medicare recipients. The innovation earned the company Gold in the Quality category in the Home Care track for the 2023 McKnight’s Excellence in Technology Awards. 

With Compassus’ virtual care model, at-risk patients receive education about disease progression, management, symptom control and early intervention, and tools to monitor their vital signs. Telehealth nurses use this data to discuss changes in health status or new symptoms, identify potential causes and interventions, and if a call to the patient’s physician or medication change may be needed. Telehealth remote patient monitoring is available in all of its 40 home health locations across 10 states. 

“In just 18 months, Compassus has successfully operationalized telehealth remote patient monitoring resulting in more than 2,500 patients served and 3,758 virtual visits completed. Using data benchmarks from technology partner HRS,” the organization said in its application. “Most significantly, Compassus has seen a 38% lower rehospitalization rate among patients receiving virtual care compared to those who are not.”

Other award winners in the Home Care track’s Quality category:

Silver: 24/7 Nursing Care Inc. has made its mark for its home care scheduling application.

Read about other 2023 McKnight’s Excellence in Technology award winners in the Home Care track on the McKnight’s Home Care website, in the Senior Living track on the McKnight’s Senior Living website and in the Skilled Nursing track on the McKnight’s Long-Term Care News website.

Sponsors of the 2023 McKnight’s Tech Awards + Summit include LifeLoop, IntelyCare, MatrixCare, PointClickCare and ShiftKey + OnShift.To view the virtual awards presentation and recordings of the Summit webinars, visit mcknightstechawards.com (free registration required).