With the election season completed and the posture of each state's political chatter turning toward the 2024 session, now is a good time to take stock of where certain states have seen progress (or attempts at progress) related to senior living facilities.
The following is a look back at prior legislative sessions — often a key roadmap for future legislation and regulations. These eastern and southern states have seen issues related to dementia-related diseases, Medicaid reimbursement and electronic device monitoring in patient rooms.
But, by far, staffing has been the most highly contentious and discussed issue, with legislative focus spanning attempts to help with workforce shortages, to new unfunded government mandates opposed by industry groups.
On September 1, 2023, President Joe Biden's administration released the first-ever nursing home staffing requirements at a federal level. The proposed rule closed for public comments on November 6, with strong opposition from industry groups. According to the Centers for Medicare & Medicaid Services, 75% of current nursing homes will need to hire more staff to meet the proposed standard. Patient advocates are critical because they believe the rule does not go far enough.
This fight between states' rights and federal overreach will continue to play out in legislatures around the county and Washington, D.C.
Below is a legislative summary for Florida, Georgia, Maryland, North Carolina, South Carolina and Virginia. McGuireWoods Consulting stands ready to assist with a deeper dive into legal, policy and political analysis.
While the 2024 session does not start until January 5, 2024, bills will continue to be filed in the coming month. Currently, one key bill updates the requirements, individual immunity and damage recovery for claims against assisted living facilities. It is currently referred to the committee but will not see movement until the session begins.
The 2023 session can provide some context on the future direction of the bicameral legislature. Some key legislation:
- Education and Training For Alzheimer's Disease and Related Forms of Dementia (House Bill 299) — Requires specific training to be completed by staff. (Signed into law.)
- Assisted Care Communities (Senate Bill 1474) — Changes to reimbursement for Medicaid and requirements for certain standards in assisted living facilities. (Died in committee.)
- Electronic Monitoring Devices in Long-term Care Facilities (Senate Bill 1486) — Allowing the installation and use of an electronic monitoring device in the resident's room. (Died in committee.)
The 2023 Georgia General Assembly session saw some success for the long-term care industry, with more work to be done. As in many states, providers face workforce shortages despite efforts to improve the situation.
Here is some of the legislation from the 2023 session:
- Increase in Medicaid Rates — Gov. Brian Kemp included $80 million in this budget to increase Medicaid rates for nursing homes. Home- and community-based services received a 4% increase in rates as well. (Signed into law.)
- Financial stability requirements for applicants and licensees (House Bill 309) — Changes to financial requirements for assisted living facilities. (Signed into law)
- House Bill 497 — Makes it easier for individuals to access employer-based training and take the test to become certified nursing assistants. (Signed into law.)
- No Patient Left Alone Act (House Bill 663) — Authorizing long-term care facilities to restrict visitation, require personal protective equipment and update disclosure requirements on the facility's website. (Died after second reading.)
In terms of work to be done, here are two priorities:
- Establishing a study committee to review expanding long-term care options that reflect the changing needs of older adults. Rep. Lee Hawkins of Gainesville voiced support for a hearing to explore options.
- Allowing for Medicaid in assisted living facilities. Groups and providers are asking for Medicaid rates that will support the level of care older adults need.
On the federal level, Kemp, along with 14 other governors, recently signed a letter to Biden asking him to reconsider his support of unfunded federal staffing mandates.
Georgia will enter a special session at the end of November 2023 to discuss redistricting. The first day of Georgia's 2024 General Assembly session is January 8, 2024.
In 2023, the General Assembly Health and Government Operations (HGO) Committee passed all of the bills seen during the session. Currently less than two months until the next session, legislators are seeking ways to continue to strengthen Maryland's healthcare system.
Below are relevant pieces of legislation passed during the 2023 session:
- Managed Care Organizations and Prescription Drug Claims (House Bill 382) — Requires the state's Department of Health and the Prescription Drug Affordability Board to study prescription drug costs. (Approved by governor.)
- Health Occupations — Licenses, Certificates, and Registrations (House Bill 454) — Seeks to address healthcare workforce shortages through streamlined licensing processes for pharmacists, nurses, social workers and mental health professionals. (Approved by governor.)
- Unlicensed Programs — Resident Abuse, Exploitation, and Neglect (House Bill 0774)— Allowing the Maryland Department of Health or the Office of Health Care Quality to investigate unlicensed programs. (Approved by governor.)
- Nursing Homes — Acquisitions and Licensure (Senate Bill 0509) — Updating reporting and studies on acquisition of nursing homes. (Approved by governor.)
Looking forward, several legislators wish to reintroduce the Access to Care Act (House Bill 588), which would have allowed undocumented individuals to participate in the Affordable Care Act system on their own.
Maryland's 2024 General Assembly session will begin January 10, 2024, and run through April 8, 2024.
The North Carolina General Assembly is currently between sessions, with the next short session beginning April 24, 2024. But lawmakers are still able to meet once a month starting November 29 to take up business on several measures.
Looking ahead to the 2024 session, several previous legislative updates can provide a direction for bills to be taken up:
- Make North Carolina More Dementia-Capable (House Bill 837) — Requiring the Division of Health Service Regulation to develop a strategic state plan for Alzheimer's disease and related dementia that addresses 16 points, including future training for healthcare professions. This bill passed the first reading in the House and is currently referred to a committee in the Senate.
- Continuing Care Retirement Communities Act (Senate Bill 145 / House Bill 170) — In its current version, which passed a first reading in both the Senate and House but is stuck in committee, this bill would overhaul the regulations of Continuing Care Retirement Communities (CCRCs). CCRCs cover independent living, assisted living and skilled nursing care facilities. This bill not only expands and updates definitions of CCRCs, but also requires new disclosures, operating rules and annual reporting.
In addition to legislative updates, the Division of Health Service Regulation has approved several rule changes to the N.C. Administrative Code:
- Required infection prevention and control policies and procedures, reporting of suspected communicable disease cases, and staff training to ensure safe care of residents and protection of facility staff. (Currently in effect.)
- Updated nutrition and food service standards, expanded the definition of dairy and included references to the food service sanitation rules. (Currently in effect.)
- Updated the resident discharge rule language to align with the existing requirements. (Currently in effect.)
- Updated the admission requirements that include the resident's admission medical examination, the medical examination form and required elements of the form, hospital discharge instructions and orders, mental health or psychiatric follow-up care needs for residents, and readmission following hospitalization. (In progress, currently accepting objections.)
The 170-member General Assembly met for the 125th session earlier in 2023 and came back for a 30-day special session immediately after adjourning in May. Starting this year, South Carolina entered a two-year session, with any bill not becoming law in 2023 able to be picked up in 2024 at the point in the legislative process where it left off in 2023.
One of the major updates was to exclude almost all healthcare facilities — except nursing homes and hospitals — from certificate of need (CON) law requiring government approval to expand or build healthcare facilities. Under the updated State Health Facility Licensure Act (Senate Bill 164), nursing homes still need a CON for:
- Construction of new nursing homes.
- Change in existing beds, specifically an addition of one or more or changes to the classification of beds.
- Capital expenditure above a specific amount.
- Expansion of health services with capital expenditures under the State Health Plan.
- New offering of a health service.
- New medical equipment for diagnosis or treatment, above a specific amount.
In addition, the new law updates several other processes for receiving a CON.
Introduced and still pending in the House, House Bill 4630 would require audio/video cameras in each patient's room. These recordings are specifically for patients, their family members or their legal guardians for remote monitoring of care. The bill also contains vague language about keeping the recordings secure.
Finally, Senate Bill 730, introduced and heard in committee, would update regulations to separate the minimum staffing requirements for memory care facilities and assisted living facilities. The staffing ratios and shifts remain unchanged but allow for future updates to clarify differences between the two.
During the 2023 session, legislators and Gov. Glenn Youngkin worked with the long-term care industry on a thoughtful approach to staffing challenges the industry continues to face post-pandemic. The following bills saw action in the legislature:
- Assisted Living Facilities; Minimum Liability Insurance (Senate Bill 1221) — Requiring that assisted living facilities maintain a minimum amount of liability insurance. (Signed into law.)
- Assisted Living Facilities; Involuntary Discharge, Safeguards for Residents (Senate Bill 40) — Updates to regulations on involuntary discharges on disclosure, reasonable efforts made and right to appeal. (Signed into law.)
- Assisted Living Facilities, Adult Day Care Centers, and Child Welfare Agencies; Provisional License (Senate Bill 1508) — Updates the period allowed on operating under a provisional license to 12 months. (Signed into law.)
Virginia's 2023 elections brought the largest single-year turnover in modern times, with all 140 newly drawn districts on the ballot. In the 2024 session, the House will have 35 new members out of 100 and the Senate will have 17 out of 40. Additionally, this session will be a “long” session — 60 calendar days — as the legislature will approve a two-year budget. The new members, coupled with the “long” session, create an unprecedented situation in the Virginia legislature with priorities unknown at this time.
The 2024 session will face fiscal challenges as budget amendments are reviewed. A recent outlook presented to the House Appropriations Committee at its annual budget retreat painted a sobering picture, where spending needs — particularly for public education and Medicaid healthcare — start to exceed expected revenues in the next two-year budget.
Prefiling for legislation for the 2024 session began November 20, 2023. Bills can be prefiled until the day the session begins, on January 10, 2024. As legislation becomes available for review, there will be a better sense of priorities with this new legislature and what opportunities may be available for the long-term care industry.
2024 Look Ahead
While each state's legislature will take up its own issues related to its particular constituents, there are a few overarching trends to watch.
First, the struggle between states' rights and federal government regulations will continue, with the industry caught in the middle. It could lead to long-term consolidation in the industry as operating across state lines becomes easier with a single federal rule, and smaller enterprises become economically unviable without available workforce. Until then, workforce development and shortage will be one of the most talked-about topics in the statehouse and Washington, D.C.
Second, tried and true, Medicaid reimbursement will be heavily discussed and minimally legislated in these states. Industry groups will continue to advocate for increases to reimbursement as healthcare costs rise.
Lastly, the senior living industry will continue to feel the impact of broader trends in healthcare legislation: artificial intelligence, regulation around private equity, and rising costs for consumers and businesses.
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