National Private Duty Association, also referred to as the NPDA, is a senior home care industry association focusing on the needs of agencies providing companion senior caregivers and nursing aides in the home, as opposed to the home health agencies providing Medicare reimbursed “skilled” care in the home.
The NPDA’s membership consists of national home care agency franchise company owners and independently owned senior home care agencies. The association champions quality standards for senior care and employee benefits for caregivers who are hired as employees, giving both the caregiver and the senior client the protection of Worker’s Compensation insurance, unemployment insurance and professional liability insurance.
The NPDA just released the following information about their ongoing legislative agenda designed to champion worker’s rights, from their lobbyist Dani Kehoe:
The mid-term elections of November 2, 2010, did in fact bring substantial change to the federal legislative process. The results—GOP control of the House and increased strength in the Senate—will significantly alter prospects for NPDA’s legislative agenda. But, a number of challenges remain. However, before taking a look at what we can expect in 2011-2012, here is a run-down of the changes coming in the 112th Congress’ make-up.
The November 2 election results gave the GOP at least 60 additional seats and control of the House of Representatives. Republicans also added six Senate seats, with the potential for one additional pick-up. Results are still too close to call in Alaska and Washington (but the Alaska seat, already Republican, will remain either Republican or held by an Independent who will caucus with the Republicans). It could take weeks before the Washington and Alaska results are known.
In the 111th Congress, there were 59 Democrats (including two Independents who caucus with Democrats). Thus, adding six or seven new Republicans (and subtracting the same number from the Democratic side of the ledger) results in a partisan split in the Senate of either a 53 to 47, or 52 to 48.
There are still 12 House races subject to recount and thus not yet official. Experts predict a likelihood that three of those races could result in a change in who appears currently to be the winner. If that turns out to be true, the result would be a 112th Congress House of Representatives that has 242 Republicans and 193 Democrats—with a three-seat potential for change.
What It Means for the Legislative Agenda
Republican victors widely acknowledge that their new strength in the 112th Congress does not mean a mandate for their legislative wish list. Rather, they say, it means voters reacted to continuing worry over a slow economic recovery and failure to grow jobs. Other factors offered by lawmakers, party insiders and pundits (from both sides of the aisle) include voter dislike of the health reform law, the energy reform bill, the stimulus law and/or the financial services reform law. The spiraling deficit and current level of taxation (federal spending versus tax burden) is another reason some give for voter repudiation of Democrats on November 2. All agree, however, that the election results did not mean voter embrace of Republicans or their agenda. And most believe that the GOP will face the same backlash from the electorate if they don’t solve the problems that the Democrats have so far failed to resolve.
So, what does this mean? Some are saying the election will require Congress to find a way to work with the Administration and on a bipartisan basis with each other. Others predict a continuation of GOP efforts to block Democratic priorities—which when combined with the potential for the GOP’s inability to get their bills through Democratic opposition, means two years of continuing gridlock. Many predict that the next two years will be no more than political positioning for the presidential election coming in 2012. But many others say important legislative priorities prior to then (e.g., current capital gains, income and dividend tax rates; the deficit; the estate tax situation; the need to foster economic (jobs) growth; etc.) mean Congress will find a way to enact new law in 2011 and/or 2012.
While it is still too soon to predict with any certainty what the tone and prospects for success will be in the 112th Congress, there are some early indications about the impact of the election on NPDA’s priority issues. They include:
Health Reform: The likely new Speaker of the House, Rep. John Boehner (R-OH) said on November 3 that the House GOP’s top priority in 2011 will be repeal of health reform, which he called a “monstrosity.” While there will be hearings and possibly an incremental approach—starting, probably, with an effort to repeal the health reform law’s much-hated 1099 reporting requirement—chances for outright repeal remain low. With the Senate still under Democratic control, and with the threat of a presidential veto hanging over any attempt to fundamentally change the Patient Protection and Affordable Act Care (PPACA), chances for complete repeal any time soon remain slim.
However, prospects for incremental change have improved. The House GOP is likely to start by refusing to authorize funding for implementation of PPACA. To date there has been no talk about what to do about the employer responsibility rules, but it’s a good bet that those rules will be in play early in the process of trying to change/repeal the PPACA.
NPDA will accelerate its efforts to join with like-minded groups in the business community to achieve either repeal or a fix of the employer responsibility rules. NPDA will also monitor activity on efforts to change other elements of the PPACA, ready to jump in to help efforts to improve the law for NPDA members and their customers.
The Direct Care Workforce Act (Sanchez bill): This bill (H.R. 5902) has had the legs (if it had any to begin with!) knocked out from under it. It was a long-shot even while the Democrats retained their hefty majority in the House. Now that the GOP controls the House, the bill appears headed for nowhere.
Rep. Sanchez will probably reintroduce the bill in the 112th Congress, but is improbable it will get any attention House-side.
Senate-side, the bill (S.3693) appears equally unlikely to generate much attention and almost no prospect for action. Even though Democrats retain control in the Senate, and S.3693’s sponsor, Sen. Robert Casey (D-PA), serves on the committee of jurisdiction (Health, Education, Labor and Pensions, or HELP), and can champion the bill from there, there are so many pressing competing priorities it is unlikely the Senate will look at it seriously.
Still, it is likely that the bill’s supporters, both on and off the Hill, won’t give up in their effort to win approval for it. Therefore, NPDA will continue to monitor it (and, as necessary, to oppose any favorable action on it). NPDA will also communicate with those who are interested in its progress (or lack of same). The issue, while probably moribund in 2011, is virtually certain to come up again. Educating lawmakers (and others) on the unique issues of in-home companion care as they are impacted by wage and hour laws will well serve NPDA in the future.
· Worker Classification: At the federal level, it is likely that efforts to change worker classification (independent contractor) tax and wage/hour law will become considerably more difficult. Worker classification is widely viewed as a union/Labor issue—and the unions took a drubbing in the November 2 elections. The House GOP is unlikely to take up issues of particular importance to Labor, unless “forced.”
Having said that, this 112th Congress will face the same revenue issues as the 111th confronted—Republicans will have the same difficulty addressing a $1.6 trillion deficit (although they are likely to look first at spending cuts rather than at tax increases). It is hard to see how the GOP-controlled House could avoid a tax bill that results in tax increases, despite the political rhetoric of the moment.
There are many potential tax changes—including rules governing worker classification/independent contractor—that can be classified as policy-based rather than as “tax increases.” This could spark a look at worker classification rules by the GOP. But the possibility of that is less in 2011 than it was in 2010—and as you know, the issue is so controversial it didn’t get very far in 2010 either. It is probable the Administration will again propose changes to independent contractor law, although it is less likely that the GOP House will accept those proposals.
The wild card here is tax reform—if Congress does tackle a bill to fundamentally reform the tax code, the issue of worker classification could be in play despite its partisan political identification. Most Washington insiders think tax reform is coming—and likely to start in 2011. So this issue is not “dead,” just more “challenged” at the federal level.
NPDA will continue to try to win rules that prevent registries from taking advantage of worker classification laws to unfairly tilt the competitive playing field. But the likelihood is that those efforts will bear more fruit at the state level than at the federal level this year.
· Card Check/EFCA: Like the Sanchez direct care worker bill, the card check legislation seems to have been knocked out cold by the results of the midterm elections. There’s little chance the GOP House will approve a new version of card check, and even less chance that the lame duck 111th Congress will take up the bill prior to its sine die adjournment by the end of the year. NPDA will continue to closely monitor this issue, and remain prepared to react swiftly and effectively should it emerge again, unlikely though that seems at this point.
· Tax Reform: With deficits approaching $1.6 trillion, a complicated tax code that enrages many taxpayers, and the need for literally trillions of dollars worth of “must-do” tax legislation (permanent estate tax reform; and income, capital gains and dividends tax rates, to name just two), most Washington observers believe lawmakers will at least start to tackle fundamental tax reform in 2011. However, tax reform is a huge undertaking—easily at least on the level of health reform and/or financial services reform. Insiders are skeptical about whether this newly-divided (in partisan terms) Congress, headed into a presidential election in 2012, can muster a consensus strong enough to enact a tax reform bill. But movement (hearings, mark-ups, floor votes) is very possible.
The negative federal fiscal situation is compelling and there are numerous commissions and advisory boards and think tanks offering tax reform plans. Insiders do expect Congress to look hard at tax reform in 2011-2012, whether or not lawmakers succeed in an effort to enact it. And if tax reform does develop as a live issue—as seems virtually certain at this juncture—there will be a plethora of issues NPDA will have to address. Corporate tax rates, taxes on business owners, rules related to operating a business, revenue offsets and others will affect the way NPDA members run their businesses. This is an issue NPDA will monitor carefully as it develops later this year and early next year.
It will take a long time for it to come clear just what to expect from this new, divided government. And it is certain there will be some surprises—issues that develop later this year or in 2011 that are unforeseeable right now. But for the moment, it seems clear that prospects for favorable change to the PPACA have improved, the threat from the Direct Care Workers Act has receded, card check/EFCA appears dead, and the federal prospects for favorable changes to worker classification/independent contractor law have deteriorated.
