Long-Term Care Policy: Trump vs. Biden

For the Biden campaign, the Center looks at the Democratic Party’s 2020 platform,[1] the official campaign website,[2] and a position paper on long-term care issued by the campaign.[3]  Identifying the Trump campaign’s position is more difficult,[4] since the Republican Party did not release a new platform in 2020,[5] the official campaign website does not include policy positions,[6] and the campaign’s six-page Second Term Agenda, “Fighting for You!,”[7] does not address long-term care.  Therefore, the comparison below describes relevant policies implemented or proposed by the Trump Administration, before and during the coronavirus pandemic, as a guide to possible or likely actions on long-term care issues during a second term.

Issue	Trump Admin. (Pre-Pandemic)	Trump Admin. (During Pandemic)	Biden[8]
Nursing home standards, before and during pandemic	Proposed revisions (July 2019) to some Requirements of Participation (2016), including rules for antipsychotic drugs, duties of facility’s grievance official, enhanced credentials for dieticians, frequency of facility-wide assessment[9]	Waiver of resident protections, including transfer/discharge; banning of all visitors (March 2020)[10]	Ensure effective point-of-care testing; ensure optimal PPE; ensure adequate staffing and training; enhance protections against inappropriate discharges Democratic Party platform: improve quality standards
Staffing		Waiver of 75 hour nurse aide training requirement (March 2020)[11]	Ensure adequate staffing and training, citing recent study showing the correlation of high staffing with fewer COVID cases[12] Ensure staff have a choice to organize a union and collectively bargain; “give them pay, paid leave, career ladders, and other benefits they deserve.” Democratic Party platform: “improve nursing home staffing”
Infection prevention	Proposed rule reducing required on-site time for infection preventionists (July 2019)[13]		Require infectious disease expert in every nursing facility
Arbitration agreements	Promulgated final rule allowing pre-dispute arbitration agreements.[14]		Reinstate Obama-Biden ban on forced arbitration agreements
Surveying	Podcast (July 2019), CMS administrator describes President’s budget as asking Congress for risk-based survey model, i.e., less than annual surveyors, in order to focus on low performing nursing facilities[15] Proposed rule (July 2019) to add requirements for informal dispute resolution and to create “constructive waiver process” (i.e., give facilities automatic 35% reduction in civil money penalty if they do not appeal)[16]	Suspend standard surveys (Mar. – Jun. 2020);  conduct only focused infection control surveys or immediate jeopardy surveys[17]	“Increase the frequency and scope of surveys and data collection”
Enforcement	Multiple changes to surveyor guidance on enforcement, including: making per instance civil money penalties the default, rather than per day CMPs,[18] revising mandatory immediate imposition of remedies,[19] revisions to immediate jeopardy[20]	Suspend all enforcement, except for immediate jeopardy (March – June 2020)[21]	“Enhance oversight by CMS” “Restore levels of penalties needed to obtain compliance with quality standards”
Limitations on provider liability			“Reject limitations on liability that make it impossible to ensure individuals harmed or killed due to nursing home negligence can hold providers accountable by pursuing legal remedies”

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[1] “2020 Democratic Party Platform,” https://www.demconvention.com/wp-content/uploads/2020/08/2020-07-31-Democratic-Party-Platform-For-Distribution.pdf.
[2] https://joebiden.com/.
[3] “Biden-Harris Plan to Make Nursing Homes and Long-term Care Facilities Safe,” https://joebiden.com/wp-content/uploads/2020/10/Nursing-Home-Policy.pdf.
[4] Chris Farrell, “2020 Election: Trump’s Second-Term Proposals For People 50+,” Forbes (Aug. 27, 2020), https://www.forbes.com/sites/nextavenue/2020/08/27/2020-election-trumps-second-term-proposals-for-people-50/#39fd37b1277a.
[5] Republican National Committee, “Resolution Regarding the Republican Party Platform,” https://prod-cdn-static.gop.com/docs/Resolution_Platform_2020.pdf.
[6] https://secure.winred.com/djt/2020-standing-with-president-trump/?utm_medium=ad&utm_source=dp_googlesearch&utm_campaign=20200427_
na_trumpgenerickws_djt_djtfund_ocpmypur_bh_audience0726_na_na_us_b_18-99_gsn_all_na_lp0424_fund_conversion_search_na_na_na&utm_content=fun&gclid=
CjwKCAjwiaX8BRBZEiwAQQxGx57ye8pLhVRykZv3I-lbfs86z3roVXR_5Ba4XcBwtuYAgoJ4uqnGqRoCzk8QAvD_BwE. 
[7] Trump Campaign Announces President Trump’s 2^nd Term Agenda: Fighting for You!, https://www.donaldjtrump.com/media/trump-campaign-announces-president-trumps-2nd-term-agenda-fighting-for-you/.
[8] Except as otherwise noted, positions are taken from “Biden-Harris Plan to Make Nursing Homes and Long-term Care Facilities Safe,” https://joebiden.com/wp-content/uploads/2020/10/Nursing-Home-Policy.pdf.
[9]  Fed. Reg. (Jul. 2019).
[10] CMS, “Long Term Care Facilities (Skilled Nursing Facilities and/or Nursing Facilities): CMS Flexibilities to Fight COVID-19” (Mar. 28, 2020), https://www.cms.gov/files/document/covid-long-term-care-facilities.pdf.
[11] Id.
[12] Jose F. Figueroa, et al, “Association of Nursing Home Ratings on Health Inspections, Quality of Care, and Nurse Staffing With COVID-19 Cases,” JAMA. 2020;324(aa):1103-1105, https://jamanetwork.com/journals/jama/fullarticle/2769437.
[13] CMS, “Medicare and Medicaid Programs: Requirements for Long-Term Care Facilities: Regulatory Provisions To Promote Efficiency, and Transparency,” CMS-3347-P. 84 Fed. Reg. 34737, 34746 (Jul. 18, 2019), https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14946.pdf.
[14] CMS, “Medicare and Medicaid Programs; Revision of Requirements for Long term Care Facilities: Arbitration Agreements,” 84 Fed Reg. 34718 (Jul. 18, 2019), https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14945.pdf.
[15] CMS, Episode 5: Nursing Home Strategy Part 1 – Strengthening Oversight (Jul. 31, 2019), https://www.cms.gov/podcast/episode-5-nursing-home-strategy-part-1-strengthening-oversight.
[16] CMS, “Medicare and Medicaid Programs: Requirements for Long-Term Care Facilities: Regulatory Provisions To Promote Efficiency, and Transparency,” CMS-3347-P. 84 Fed. Reg. 34737 (Jul. 18, 2019), https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14946.pdf.
[17] CMS, “Prioritization of Survey Activities,” QSO-20-20-All (Mar. 20, 2020) https://www.cms.gov/files/document/qso-20-20-all.pdf; CMS, “Suspension of Survey Activities,” QSO-20-12-All (Mar. 4, 2020), https://www.cms.gov/files/document/qso-20-12-allpdf.pdf-1.
[18] CMS, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,” S&C: 17-37-NH (Jul. 7, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-37.pdf.
[19] CMS, “Mandatory Immediate Imposition of Federal Remedies and Assessment Factors Used to Determine the Seriousness of Deficiencies for Nursing Homes,” SUC: 16-31-NH (Jul. 22, 2016, rev. 7.29.16), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-31.pdf.
[20] CMS, “Revisions to Appendix Q, Guidance on Immediate Jeopardy,” QSO-19-09-ALL (Mar. 5, 2019), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/QSO19-09-ALL.pdf.
[21] CMS, “Prioritization of Survey Activities,” QSO-20-20-All (Mar. 20, 2020) https://www.cms.gov/files/document/qso-20-20-all.pdf; CMS, “Suspension of Survey Activities,” QSO-20-12-All (Mar. 4, 2020), https://www.cms.gov/files/document/qso-20-12-allpdf.pdf-1.