Congress is now back for what we hope will be the final 3 weeks of the 110th Congress.  There is still much to be done – no appropriations bill has yet passed and members of Congress appear to be resigned to instead enacting a “continuing resolution” (CR) to keep government funded (and avoid a shut down) beyond the end of the fiscal year, which ends September 30.  It is likely that the CR will fund government programs at last year’s (FY 2008) levels.  What is not known is the length of the CR.  Will it be a 6-week CR, keeping government programs funded until after the election, but forcing Congress to return for a “lame duck” session in November or December to enact appropriations legislation – or a second CR?  Or will it extend funding for a longer period of time, perhaps into 2009 when a new President will have to grapple with the fiscal challenges?  Those decisions are currently being debated behind closed doors by House and Senate leadership.

Also under discussion is a possible second economic stimulus package that would address tax issues, particularly the Alternative Minimum Tax, and provide loan guarantees for America’s auto industry to retool facilities so they may produce more efficient and alternative fuel vehicles.

There are a number of hospital-related issues that remain unresolved and for which we are actively advocating.  Measures to provide assistance to struggling rural hospitals, as well as measures to prevent cuts to teaching hospitals, have yet to be enacted.  In addition, legislation to make available more employment-based visas for international nurses is still pending.  The House Judiciary Committee was scheduled to take up the latter earlier this week but was forced to postpone their committee meeting due to the lack of a quorum.  It is now anticipated that the bill, H.R. 5924, the Emergency Nursing Supply Relief Act, will be considered the week of September 15.

On defense, we remain vigilant regarding labor legislation that would adversely affect hospitals.  While it is unlikely in the few remaining days of the session that Congress will consider “card check” legislation (The Employee Free Choice Act, H.R. 800/S. 1041); “nurse supervisor” legislation (the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers  H.R. 1644/S. 969); staffing ratio legislation (Registered Nurse Safe Staffing Act, H.R. 4138/S. 73) or restrictions on overtime (The Safe Nursing and Patient Care Act, H.R. 2122/S.1842), these remain top priorities for unions.

The November elections are less than 60 days away and members of Congress will soon be returning home to campaign.  It is the ideal time to participate in town hall meetings and any other venue to express your views and to educate Members of Congress on issues that are important to you and your patients.  When the new Congress reconvenes, many of the same issues that we have dealt with this year will once again be on the table.  Please let your voice be heard!

Hospital Victories and Unfinished Business for the 110th Congress

Strong advocacy efforts by hospital leaders led to major victories on Capitol Hill this year.  Together with our state, metropolitan, and regional association partners, and our personal membership groups, we quashed the Administration’s budget proposals to cut Medicare and Medicaid funding by nearly $200 billion over five years; blocked implementation of six harmful Medicaid rules; and secured legislation allowing Federal Home Loan Banks to issue letters of credit on hospital and other tax-exempt bonds.  Equally important, hospitals worked for the passage of the Medicare Improvements for Patients and Providers Act that provides $1.1 billion in funding for rural providers. 

Lawmakers headed home on August 1 for a five-week recess leaving several critical pieces of hospital legislation and other issues unresolved.  When they return in September, Congress is scheduled to be in session less than a month.  Here are a few of the key unresolved issues that affect HR professionals:

Appropriations bills – Earlier in the year, most observers predicted that Congress would have difficulty passing the 2009 Fiscal Year (FY) appropriations bills that fund various segments of government.  That prediction has come true.  To date, the House Appropriations Committee has approved only five of the 12 regular appropriations bills; the Senate Appropriations Committee has approved nine.  The appropriations bill that funds activities and programs – including nursing and allied health education -- under the jurisdiction of the Departments of Labor, Education, Health and Human Services, Education and Related Agencies is among the measures remains unfinished that Congress will have to tackle when it reconvenes.  While both the House and Senate leadership hope to finish at least one appropriations bill before the start of the fiscal year (October 1), the most likely scenario is that all unfinished bills will be folded into a Continuing Resolution (CR) which would continue funding for programs at last year’s levels.

The Emergency Nurse Supply Relief Act – On August 1, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law approved H.R. 5924, the Emergency Supply Relief Act by a vote of 7 to 2.  The bill exempts foreign-educated RNs from the current Employment-based (EB) visa caps for three years, setting aside 20,000 EB visas per year for RNs and Physical Therapists.  The bill also bolsters domestic supply by establishing a grant program for nursing programs to educate more nursing faculty.  Finally, the bill creates a pilot program designed to retain nurses in the workforce and enhance career training for health care workers.  At this time, it is unclear when the full House Judiciary Committee will consider the bill.

ADA Amendments Act of 2008 (H.R. 3195) – On June 25, by a vote of 402-17, the House approved compromise legislation amending the Americans with Disabilities Act.  The legislation is aimed at addressing recent Supreme Court decisions that some interpret as limiting reach of the ADA.   H.R. 3195 clarifies the definition of “disability,” retaining the current requirement that an impairment must “substantially limit a major life activity” in order to be considered a disability.  The measure also excludes the consideration of mitigating measures in determining whether an individual has a disability – with the exception of ordinary eyeglasses and contact lenses.  In addition, the bill provides that an individual is “regarded as” having a disability if he can establish discrimination because of an actual or perceived impairment.  Lastly, the bill retains current law requiring the employee to bear the burden of proof demonstrating that he is qualified and able to perform a job.  The bill now moves to the Senate where its disposition remains unclear.

Mental Health Parity – An agreement has been reached in both the House and Senate on mental health parity. Key provisions of the agreement include:

• Benefit Mandate — Allows group health plans to determine the extent of their coverage. Does not impose a broad benefit mandate, instead it allows states to legislate any individual mandates.
• Medical Management — Protects medical management in health plans by preventing state laws from infringing upon protection. This is vital because employers rely on medical management of benefits to ensure the quality of care and the affordability of coverage.
• Preemption — The compromise creates a federal standard for parity, but also allows states to enact more extensive laws for state-regulated insurance.
• Network Coverage — The compromise mandates out-of-network coverage if the health plan offers any other benefit on an out-of-network basis.

Employment Verification – The Department of Homeland Security (DHS) free, voluntary E-Verify program will expire on November 30 absent congressional action.  The E-Verify program is an online system jointly operated by the DHS and the Social Security Administration (SSA).  Participating employers can confirm the work eligibility of new hires online by comparing information from an employee’s I-9 form against SSA and DHS data bases.  Several alternative measures have been introduced to address employment verification, including H.R. 6633 (Giffords-AZ)); H.R.1951 (Ellison-MN)); H.R. 5515 (Johnson-TX); and H.R. 4088 (Shuler-NC). 

Individually and collectively, these unresolved issues impact hospitals’ ability to take care of patients and provide the services communities depend on.  The August recess, when members of Congress are back home, is an ideal time to contact your lawmakers and let your voice be heard.

AHA and ASHHRA Partner to Support H.R. 5924

Employee Verification Focus of Hearing
The House Ways and Means Subcommittee on Social Security held a May 6 hearing on two legislative proposals that would require employers to verify the citizenship of their workers to ensure they are legally authorized to work in the U.S.

H.R. 4088, the “Secure America Through Verification Enforcement Act of 2007 (SAVE), introduced by Rep. Heath Shuler (D-NC), would mandate that employers use the current “E-verify” program, administered by the Department of Homeland Security (DHS) for all current and new hires. The bill has 152 cosponsors. A competing bill, H.R. 5515, the New Employee Verification Act (NEVA), introduced by Rep. Sam Johnson (R-TX), would tie employment verification with current state-based systems that are devised to identify “deadbeat” parents for child support. Under H.R. 5515, employers could access the system by telephone as well as computer.

U.S. immigration law prohibits employers from knowingly hiring or continuing to employ aliens who are not authorized to work under the Immigration and Nationality Act. Currently, newly hired employees must produce documents that show they are authorized to work in the U.S. The Social Security card is one of several documents that may be used, in combination with other identity documents, to demonstrate work authorization.

Both H.R. 4088 and H.R. 5515 respond to congressional concern about the influx of a large illegal immigrant workforce in the U.S. No further action on either bill has been announced.

Bill Would Ease Nurse Visa Backlog, Bolster Nurse Education
AHA and ASHHRA-backed legislation introduced last week by Rep. Robert Wexler (D-FL) would set aside 20,000 employment-based visas in each of the next three years for foreign-educated registered nurses and physical therapists. The bill (H.R. 5924) also would provide funds to help U.S. nursing schools expand the domestic supply of nurses, and establish a three-year pilot program aimed at keeping U.S. nurses in the workforce. The U.S. has a waiting list for employment-based visas for internationally-educated nurses, and its nurse education programs turned away more than 150,000 qualified applicants last year due to lack of faculty and clinical space.

Nurses Push for Staffing Ratios
In conjunction with National Nurses Week, May 5 through 9, nursing groups lobbied Congress for legislation requiring Medicare-participating hospitals to implement staffing ratios. H.R. 4138, the “Registered Nurse Safe Staffing Act of 2007,” introduced by Rep. Lois Capps (D-CA), currently has 29 cosponsors. The Senate companion bill, S. 73, was introduced by Sen. Daniel Inouye (D-HI) earlier this year. Congress has not announced plans to consider these bills.

To contact your regional ASHHRA Advocacy Committee representative, click here

House Panel Approves Fiscal Year 2009 Federal Budget
The fiscal year (FY 2009) federal budget takes center stage in Congress this month.  Both the House and Senate Budget Committees began consideration of their respective blueprints for spending and revenues which would cover a five-year period.  On March 5, the House Budget Committee unveiled a $3.06 trillion spending and revenue plan covering 5 years, and after an all-day session, approved their version of a budget plan on a straight party-line vote of 22-16.  As we go to press, the Senate Budget Committee is working on their budget resolution.

For health care providers, the House Budget Committee’s proposal is good news.  The Committee measure rejects Medicare cuts to hospitals; however, language in the committee-passed resolution leaves the door open to reconsider Medicare reductions later in the process. 

In addition to rejecting Medicare cuts to hospitals, the House budget plan assumes increases in domestic discretionary funding, including boosts to programs that prepare the health care workforce.  Details of the House Budget Committee plan can be found at http://www.house.gov/budget.

Employee Verification
Legislation (H.R. 5515) that would create a new mandatory national employee verification process for U.S. citizens and immigrants was introduced on Feb. 28.  The proposed legislation would create a paperless Electronic Employment Verification System (EEVS) that would replace E-Verify, the federal employment verification system run by the Department of Homeland Security (DHS) that expires at the end of this year.  According to its sponsors, Reps. Sam Johnson (R-TX), Ron Lewis (R-KY), Keith Brady (R-TX) and Paul Ryan (R-WI), the proposal is designed to allow employers to confirm that their new hires are legally eligible to work in the U.S.  The bill has been referred to the House Ways and Means Committee.

In related news, some House members are seeking expedited consideration of a competing Employee Verification measure, H.R. 4088, introduced by Rep. Heath Shuler (D-NC) and cosponsored by 139 of his colleagues.  The “Secure America through Verification and Enforcement Act” would require all employers to verify that all employees, both prospective and those already hired, are legally entitled to be employed in the U.S. by confirming their identities through the DHS E-Verify program.

Both H.R. 5515 and H.R. 4088 are designed to discourage employers from hiring illegal immigrants.  Further information on H.R. 5515 may be found at http://www.shuler.house.gov.  Details on H.R. 4088 can be found at http://www.samjohnson.house.gov.

What's Ahead for 2008
January 2008
When Congress left Washington last month, it left unresolved much legislative business of interest to ASHHRA. But human resource advocates made headway on a number of key issues before Congress took its final roll call votes for 2007. Throughout the year, ASHHRA advocacy efforts yielded positive results on a few issues and also warded off legislation that would have adversely affected human resource professionals. Here’s a recap of issues that ASHHRA followed during the first session of the 110th Congress:

Card Check – One of the first bills Congress considered in 2007, and one that was high on labor unions’ “must pass” list, was H.R. 800/S. 1041, also known as the “Card Check” bill. ASHHRA, through its coalition activities, Alerts, and congressional education efforts, helped defeat this onerous bill in the U.S. Senate. The bill would have amended the National Labor Relations Act (NLRA) by eliminating the right to a federally supervised private ballot election during union organizing drives. It also would have forced employers and workers into federal binding arbitration – binding for 2 years on both parties -- if a collective bargaining agreement could not be reached within 90 days.  The ASHHRA Advocacy committee, during their Washington visit, focused on educating members of Congress on the adverse impact that this measure would have on hospitals and health care providers. 

Nurse Education/Workforce funding – On Dec. 26, President Bush signed into law the omnibus spending bill which provides funding for 11 government agencies for Fiscal Year (FY) 2008, including the Departments of Labor, Health and Human Resources, and Education. Because of critical shortages of health care professionals, ASHHRA strongly lobbied for increased funding for programs aimed at increasing and retaining health care professionals, particularly nurses. Our efforts paid off when the conference committee approved funding for $156 million for nursing programs, an increase of $6.4 million over FY 2007. The additional funding is aimed at increasing nurse faculty, retaining nurses in the workforce, and bolstering scholarships and loan repayment programs for nursing students and faculty.

Immigration -- Comprehensive immigration legislation was introduced in the Senate that would have seriously impeded the ability of U.S. hospitals to recruit well-qualified health care professionals from abroad. The bill, S. 1348, would have eliminated the employer’s role in hiring health care professionals from abroad and instead replace it with a point-based systems where the foreign health care professional would be granted a visa without employer screening or sponsorship. ASHHRA, along with AHA and other employers, urged Congress to reject such an approach. The bill was ultimately defeated.

As we enter the second session of the 110th Congress, much remains to be done.  Legislative challenges facing ASHHRA and human resource professionals include:

NLRB Definition of “Supervisor” -- H.R. 1644, the Re-Empowerment of Skilled and Professional Employees and Construction and Traderworkers (RESPECT) Act is expected to be voted on by the House in the early months of the second session.  This labor-backed bill, introduced by Reps. Rob Andrews (D-NJ) and Rosa DeLauro (D-CT) was approved by the House Education and Labor Committee on a straight party line vote. A similar measure has been introduced in the Senate by Sens. Dick Durbin (D-IL), Ted Kennedy (D-MA) and Chris Dodd (D-CT). This bill would amend the definition of “supervisor” under the NLRA by eliminating two duties of the supervisor:  that of “responsibly directing” and “assigning” other staff. It would also require that a majority of the supervisor’s time must be spent performing other duties that remain in the definition: hiring; firing; laying off; suspending; recalling; promoting; discharging; rewarding; or imposing disciplinary actions. The bill would reverse long-standing NLRB guidance on when a charge nurse is considered a supervisor.

FMLA changes -- Numerous bills have been introduced to expand the reach of the FMLA and these measures are expected to be considered in 2008. A provision which would give FMLA protected leave to workers to care for wounded soldiers and also to family members of those called to active duty was included in H.R. 1585, the Defense Authorization bill. However, the bill was vetoed by the President over an issue unrelated to the FMLA expansion. One of the first items on Congress’ agenda when they return will be to address the President’s concern (which related to a liability issue) and re-pass the bill.  If the FMLA provision remains intact, it will represent the first expansion of FMLA since 1993.

Worker Verification – Prior to Congress’ adjournment, legislation was introduced that would require employers to use a Department of Homeland Security (DHS) verification system to ensure that their workers are authorized to work in the U.S.  H.R. 4088/S. 2368, the Secure America through Verification and Enforcement Act would phase in the use of the DHS “E-Verify electronic verification system to all employers. The bill is designed to decrease illegal immigration by increasing border and interior enforcement and providing employers with tools to verify worker eligibility.

Mandatory Staffing Ratios – One of labor’s top issues is the imposition of mandatory nurse staffing ratios in health care institutions.  Two bills remain pending on this issue: The Registered Nurse Safe Staffing Act of 2007 (S. 73), introduced by Sens. Harry Reid (D-NV) and Dan Inouye (D-HI); and H.R. 2132 by Rep. Jan Schakowsky (D-IL). While no hearings have yet been scheduled, it is anticipated that consideration may arise early in the second session.

Restrictions on Unavoidable Overtime – The Safe Nursing and Patient Care Act of 2007 (S. 1842) and it’s House companion bill, H.R. 2122, would prohibit health care providers from requiring a nurse to work more than the scheduled work shift – 12 hours in a 24-hour period, or 80 hours in a consecutive 14-day period. The bills also establish civil money penalties for health care institutions that violate the act. They further prohibit health care institutions from retaliating against any nurse who complains or reports violations. There are no hearings scheduled for consideration of these bills, but they remain a top union priority.

Ergonomics – The Nurse and Patient Safety and Protection Act of 2007 (H.R. 378) is intended to protect the health and safety of patients, nurses and other caregivers by eliminating manual lifting of all patients except during a declared state of emergency. No hearings are scheduled however there has been increased pressure by unions to move the bill.

The early weeks of the Congress will be devoted to the President’s budget proposal. And with the election looming in the fall, Congress will have to work at a steady pace in order to accomplish everything on their plate before their final adjournment. During the year, ASHHRA will strive hard to accomplish our goals on “the Hill” and continue to keep our members abreast of significant legislative developments.

Hill Report, Oct. 24, 2007

The Senate on Oct 23 voted 75-19 to approve a Labor-Health and Human Services appropriations bill that includes an ASHHRA-backed amendment to ease the U.S. shortage of nurses and physical therapists. The amendment by Sens. Charles Schumer (D-NY) and Kay Bailey Hutchison (R-TX) would make available to registered nurses and physical therapists 61,000 unused employment-based visas from past years. It also would use fees from the visas to fund programs to prepare more nursing faculty, which would allow more students to enter nursing. The appropriations bill funds federal Labor, Health and Human Services and Education programs for fiscal year 2008. The measure next goes to conference to work out differences between the House and Senate versions of the bill. ASHHRA will continue to work hard to ensure that the language is retained in the conference bill.

October 2007

Congress returned from the Labor Day recess with a full plate on its agenda.  First and foremost was the reauthorization of the State Children’s Health Insurance Program (S-CHIP).  Reauthorization of S-CHIP has been a top priority for both Democrats and Republicans since the program was set to expire on September 30.  S-CHIP provides healthcare coverage to nearly 6 million poor children in the U.S.

Unable to craft a bill before the Sept. 30 program deadline, Congress opted to temporarily extend the current S-CHIP program through Nov.16.  The extension gave Congress time to craft and approve a compromise bill, H.R. 967.  The bill expanded funding of the program by $35 billion over five years, funded by a 61-cent increase in the tobacco tax.  The compromise measure was promptly vetoed by the President who objected to the extent of the funding increase.  The administration had recommended increasing the program by $5 billion over five years.  As we go to press, the House plans to vote this week in an attempt to override the veto; however, it is unlikely that the veto will be overridden. 

In addition, to dealing with the reauthorization of S-CHIP, Congress has to enact all 12 appropriations bills for fiscal year 2008, which started on Oct. 1.  To date, none have been completed and the government is being funded by a temporary “continuing resolution” which provides continuation funds at last fiscal year’s level (FY 2007) until Nov. 16. 

On the labor front, the House Education and Labor Committee on Sept. 19, voted, on a 26-20 straight party-line vote, to adopt H.R. 1644, the “Re-empowerment of Skilled Professionals Employees and Construction Tradeworkers Act  (RESPECT).  This measure revises the definition of “supervisor” in the National Labor Relations Act (NLRA) by removing the duties of “responsibly directing” and “assigning” other employees.  It also requires that a supervisor must spend a majority of his time performing the remaining functions in the NLRA: hiring; transferring; suspending; laying-off; rewarding; disciplining other employees; adjusting grievances; or recommending such action.  It is anticipated that the bill will be scheduled for floor action before the end of October where it is predicted that it will pass.  The Senate companion bill, S. 969, is not scheduled for committee consideration at this time.

Congress also has focused attention recently on the Family Medical Leave Act (FMLA) and efforts to expand it. On Sept.19, the Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing entitled "The Family and Medical Leave Act: Extending Coverage to Military Families Left at Home."  Among the witnesses were Sens. Chris Dodd (D-CT), Hillary Rodham Clinton (D-NY), and Rep. Darryl Issa (R-CA).  Committee Chairperson Lynn Woolsey (D-CA) has introduced legislation, H.R. 3481, that amends the FMLA to provide six months of leave for spouses, children, parents, and other “next of kin” to care for injured service members.  The Senate companion bill, S. 1975, has been introduced by Sens. Clinton and Dodd.  Rep. Issa has introduced similar legislation, H.R. 3391.  Full copies of the hearings testimony may be obtained at: http://edlabor.house.gov/hearings .

The attached letter - a joint effort between ASHHRA, the American Hospital Association (AHA), and the American Organization of Nurse Executive (AONE) - was sent to all members of the House Education and Labor Committee Sept. 14 to express opposition to H.R. 1644, the supervisor bill.  The bill is scheduled to be considered before the full committee on Wednesday, Sept. 19, 2007.  

Letter to House Education & Labor Committee

Definition of "Supervisor" 

September 2007

On the healthcare front, their first objective will be to try to conference the S-CHIP (State Children’s Health Insurance Program) reauthorization.  The program expires on Sept 30, so this will be a priority for Congress.  Both the House and Senate have passed different authorizing bills.  The House bill, which boosts S-CHIP spending by $50 billion, includes a cut of 0.25 percent to Medicare hospital payment; the Senate version, which adds $35 billion to S-CHIP does not include cuts to hospitals. While the House version would reduce the in-patient update for hospitals, it contains a number of provisions that would benefit rural hospitals, and also staves off a ten percent cut to physician services that is scheduled to go into effect in January.  The President has threatened to veto both the House and Senate bills as both expand S-CHIP beyond his recommended level of funding.

Both House and Senate will have to pass and conference their appropriations bills in September as the fiscal year ends on Sept. 30.  The House has passed their Labor-HHS appropriations bill which funds many of the programs AHA and ASHHRA support, such as funds for workforce (nursing, etc).  However, the Senate has not acted on their Labor-HHS bill.  There are rumors that the Senate will not act on the Labor-HHS appropriations bill and instead go directly to conference with the House.  There are also rumors that the Senate will withhold the bill so that it may be used at the end of the year as the basis for a larger omnibus bill.  No decisions have been made as of presstime.

More importantly, we expect to see movement on the labor front.  The “Re-Empowerment of Skilled and Professional Employees and Construction and Tradeworkers (RESPECT) Act (HR 1644) is expected to be marked up in Committee and then move quickly to the House floor.  This bill changes the definition of “supervisor” in the National Labor Relations Act by deleting 2 supervisory functions:  (1) assigning duties and (2) responsibly directing.  If this bill passes, it will enable nurse supervisors to be part of the collective bargaining unit.  Both ASHHRA and AHA strongly oppose this bill.  The Senate version has been introduced by Sens. Durbin, Kennedy, and Dodd, but no action is expected in the Senate at this time.

We also expect to see action on mandatory overtime. – Sens. Kennedy and Kerry, on July 20, introduced S. 1842, barring health care providers from requiring nurses to work overtime except when a federal, state or local emergency is declared.  The companion bill was introduced earlier in the year by Rep. Pete Stark (D-CA).  While no hearings have yet been scheduled, there will be increasing pressure for Congress to act.  
Senate Majority Leader Reid announced the fall Congressional schedule: Congress is expected to be out from Sept 12 – Sept 17 in honor of the Jewish High Holy days.  Sen. Reid announced the anticipated adjournment date of November 16, but also indicated that Congress may have to be called back in December to finish up.  This tells us that there is trouble on the horizon for getting the appropriations, S-CHIP and other bills conferenced.

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