- Comments Submitted Regarding Medicare Home Health Proposed Rule for 2021
- CMS Restarts Survey and Enforcement Activities at Nursing Facilities
- Congress Gives COVID Relief Money to Nursing Facilities, Regardless of Fraud Lawsuits, Poor Quality of Care
- Register Now – Free Educational Webinar Series for 2020-2021
Comments Submitted Regarding Medicare Home Health Proposed Rule for 2021
The Center for Medicare Advocacy (Center) submitted comments to the Centers for Medicare and Medicaid Services (CMS) about the Calendar Year 2021 Home Health Prospective Payment System Rate Update; Home Health Quality Reporting Requirements; and Home Infusion Therapy Service Requirements. The Center’s comments to the proposed rule address payment, quality, telehealth, home infusion benefits, and frequently heard beneficiary access experiences, as follows:
- The home health payment system, which often results in home health agencies denying services to people with longer-term and chronic conditions.
- The lack of needed updates to quality rules, which often leave patients who need maintenance care without access to necessary, quality services.
- The rapid embrace of telehealth, as a result of the pandemic, which raises many concerns about how to maximize access to care for beneficiaries while carefully minimizing misuse of virtual services.
- The need to expand, not narrow, the allowable drugs and biologicals available for coverage via home infusion.
- A summary of concerns received by the Center that drive our advocacy to change and improve the Medicare home health program.
The Center for Medicare Advocacy’s comments are available in full here: https://medicareadvocacy.org/center-comments-on-proposed-home-health-rules/
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CMS Restarts Survey and Enforcement Activities at Nursing Facilities
On August 17, 2020, the Centers for Medicare & Medicaid Services (CMS) announced that it is resuming routine inspections at health care providers, including nursing facilities, and that it has updated its enforcement guidance for nursing facilities.[1] Despite CMS’s broad claims, the Center for Medicare Advocacy is concerned that CMS’s guidance may not result in the immediate restoration of comprehensive survey activity and may largely give a pass to facilities that have been cited with serious deficiencies during the pandemic.
Although CMS expands the types of surveys that states may conduct at nursing facilities from the priority list it identified in June,[2] it says that state survey agencies should resume these additional surveys when they have the “staff and/or Personal Protective Equipment to do so.”[3] While these precautions are understandable and appropriate (and the same qualifications that CMS has identified throughout the pandemic), the result may be that states will not, in fact, have the staff or PPE to resume routine surveys anytime soon.
Even more concerning, however, is CMS’s guidance on enforcement.
For surveys ending before June 1, facilities will be given 10 calendar days to submit a plan of correction. CMS’s new guidance allows survey agencies to clear all deficiencies that were cited before June 1 through an “expanded desk review policy” if facilities provide supporting evidence for the plan of correction and that evidence is verified by desk audit. The evidence “may include documentation containing dates of training, staff in attendance, and evidence that staff were evaluated for skill(s) competency. It may also include monitoring for policy implementation and successful performance by staff.”
Facilities’ plans of correction for quality of care deficiencies frequently identify training. Surveyors conduct revisits to determine that staff understood and consistently apply care practices that they were taught in a training program. Moreover, clearing deficiencies that reflect actual harm, immediate jeopardy (IJ), or substandard quality of care[4] by desk audit is inconsistent with current surveyor guidance, which makes onsite revisits mandatory in these circumstances.[5]
Recognizing that there may be concerns about clearing actual harm deficiencies or “remaining noncompliance following removal of IJ without an onsite revisit” through desk review, CMS writes that states may choose to “include the clinical area of concern cleared using the expanded desk review on the next onsite survey conducted.” The Center for Medicare Advocacy believes this suggestion to states should be a mandatory requirement; that is, CMS must require surveyors, at the next onsite survey, to review clinical areas that the state cleared through desk review in order to ensure that the facility actually corrected the deficiencies.
The new guidance also limits civil money penalties (CMPs) in ways that are inconsistent with current rules and guidance.
- If per day CMPs were imposed prior to March 23, the date when standard surveys were suspended, the CMPs will end on the date of substantial compliance (per a plan of correction that is verified by a desk audit) or on March 23, whichever is earlier. This provision means that CMPs could end on March 23, even if the facility asserts (and the desk audit confirms) that it came into substantial compliance at a later date.
- For enforcement cycles that began between March 23 and May 31, CMS will impose a per-instance CMP for “actual harm” deficiencies, although CMS’s own analytic tool[6] may, in some instances, call for a per day CMP. The effect of this provision may be a smaller (per instance) CMP than warranted under prior CMS guidance.
- For enforcement cycles starting on or after June 1, CMS will start a per day CMP on the date the survey began, not earlier, even when the survey finds that noncompliance began before surveyors went on-site. This provision undermines the federal regulations, which allow a CMP to “start accruing as early as the date that the facility was first out of compliance.” 42 C.F.R. §488.440(a)(1).
- CMS reduces CMPs by 35%, even if a facility did not appeal the deficiency and CMP during the prioritization period (March 23-May 31, 2020). Current rules authorize a 35% reduction only if a facility informs CMS in writing that it will not appeal. 42 C.F.R. §488.436(b)(1). In July 2019, CMS proposed a “constructive waiver process,” which would authorize a 35% reduction in the CMP, even when a facility did not notify CMS that it was not appealing.[7] Although those proposed rules have not been made final, CMS’s new guidance makes this particular proposal final “for CMPs that were imposed and became final” between March 23 and May 31.
Conclusion
CMS’s new guidance is intended to restart the survey and enforcement systems. The Center for Medicare Advocacy fully supports this plan. However, the extended desk reviews and limitations on Civil Monetary Penalties mean that serious care concerns that were cited by surveyors during the pandemic may be largely overlooked and not sanctioned. Nursing facilities should not get a pass.
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[1] CMS, “CMS Announces Resumption of Routine Inspections of All Provider and Suppliers, Issues Updated Enforcement Guidance to States, and Posts Toolkit to Assist Nursing Homes” (News Release, Aug. 17, 2020), https://www.cms.gov/newsroom/press-releases/cms-announces-resumption-routine-inspections-all-provider-and-suppliers-issues-updated-enforcement.
[2] These surveys were complaint investigations triaged as non-immediate jeopardy-high; revisits at facilities with removed immediate jeopardy, but still out of compliance; and Special Focus Facilities (SFFs) and SFF candidates. The new guidance adds: onsite revisits for surveys ending on or after June 1, 2020; complaint investigations triaged as non-immediate jeopardy medium; and annual recertification surveys.
[3] CMS, “Enforcement Cases Held during the Prioritization Period and Revised Survey Prioritization,” QSO-20-35-ALL (Aug. 17, 2020), https://www.cms.gov/files/document/qso-20-35-all.pdf.
[4] The federal regulations define substandard quality of care, at 42 C.F.R. §488.301, as one or more deficiencies cited at certain levels of scope and severity – specifically, certain residents’ rights (42 C.F.R. §§483.10(a)(1) through (a)(2), (b)(1) through (b)(2), (e) (except for (e)(2), (e)(7), and (e)(8)), and (f)(1) through (f)(3), (f)(5) through (f)(8), and (f)(i)); freedom from abuse, neglect, and exploitation; §483.12; quality of life; §483.24, quality of care, §483.25; behavioral health services, §483.40(b) and (d); pharmacy services §483.45(d), (e), and (f); administration,§483.70(p); and infection control,§483.80(d) – that are cited as immediate jeopardy (level J, K, or L) or pattern of or widespread actual harm (level H) or widespread potential for more than minimal harm (level F).
[5] The State Operations Manual, Chapter 7, §7317.2, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf.
[6] CMS, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,” S&C: 17-347-NH (Jul. 7, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-37.pdf.
[7] 84 Fed. Reg. 34737, 34751 (Jul. 18, 2019), amending 42 C.F.R. §488.436.
The federal government has given money to nursing facilities during the COVID-19 pandemic without regard to their violations of federal law and federal care standards. Although facilities are required to spend money awarded under the Coronavirus Aid Relief, and Economic Security (CARES) Act’s Provider Relief Fund for “health care related expenses or lost revenues that are attributable to coronavirus,”[1] Seema Verma, the Administrator of the Centers for Medicare & Medicaid Services (CMS), said, as she announced the initial payout of $1.5 billion to SNFs in April, that the federal money comes with “no strings attached.”[2] Recent news reports describe federal funding under the CARES Act’s Provider Relief Fund to nursing facilities and chains that overcharged the Medicare program, violated federal law, and otherwise have records of poor care.
As discussed below, on August 7, CMS announced a revised policy for the next distribution of Provider Relief funds.
As described by the Washington Post, CMS used a distribution formula[3] for the Provider Relief Fund: a lump-sum payment of $50,000 per facility plus an additional $2,500 per bed, with an average distribution for each facility of $315,000.[4] The Post describes large payments to nursing facilities, despite litigation against them for Medicare fraud and other illegal activity.
- In October 2019, a federal judge ruled that SentosaCare[5] violated federal human trafficking laws, when it brought Filipino nurses to the United States, improperly paid them, and threatened them with $25,000 fines if they quit before the end of their contracts.[6] The Washington Post reports that two nursing facilities connected with SentosaCare received more than $2 million in COVID-19 payments.
- In April 2020, Saber Healthcare and related entities agreed to pay $10 million to resolve allegations under the False Claims Act that nine of Saber’s facilities in North Carolina, Ohio, Pennsylvania, and Virginia, submitted false and inflated claims to Medicare.[7] The Washington Post reports that Saber Healthcare received more than $45 million in pandemic funding.
- Brius Healthcare Services, California’s largest operator with 81 nursing facilities and a record of “police scrutiny, lawsuits, stiff regulatory fines and state and federal investigations that have uncovered numerous alleged violations,”[8] received more than $35 million in federal relief funds.
- Life Care Centers of America, a privately-held company with more than 200 nursing facilities, is currently under a five-year Corporate Integrity Agreement (signed 2016) with the HHS Inspector General for overbilling Medicare.[9] The company’s nursing facility in Kirkland, Washington was the site of the first COVID-19 outbreak in February. Life Care Centers of America received $48 million in pandemic funding.
The Miami Herald reports that 24 Florida facilities under common ownership – more than one-third of which are on the state’s Watch List of troubled facilities – received funding totaling between $48 million and $78 million from CARES Act funds – a combination of “competitive federal coronavirus relief funds” and increased federal reimbursement.[10]
On August 7, CMS announced a revised policy for the distribution of funds. It reported that it will distribute the next set of payments of $5 billion in two ways: half in mid-August, distributed – as before – without strings, but with the expectation that the funding will “support increased testing, staffing, and PPE needs,” and the other half, in the Fall 2020, based on facility performance.[11] CMS describes its evaluation of facility performance as “based on the nursing home’s ability within this context [of geography] to minimize COVID spread and COVID-related fatalities among its residents.” CMS encourages “a collaborative approach to quality improvement,” as described in the June 2019 Executive Order on Transparency.[12]
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[1] CMS, Acceptance of Terms and Conditions, https://www.hhs.gov/sites/default/files/terms-and-conditions-skilled-nursing-facility-relief-fund.pdf.
[2] She said, “There are no strings attached, so the health care providers that are receiving these dollars can essentially spend that in any way that they see fit.”), Alex Spanko, “Skilled Nursing Facilities Could Soon See $1.5B Under CMS’s Emergency Relief Plan, With More on the Way,” Skilled Nursing News (Apr. 8, 2020), https://skillednursingnews.com/2020/04/skilled-nursing-facilities-could-soon-see-1-5b-under-cmss-emergency-relief-plan-with-more-on-the-way/.
[3] HHS, “HHS Announces Nearly $4.9 Billion Distribution to Nursing Facilities Impacted by COVID-19” (News Release, May 22, 2020), https://www.hhs.gov/about/news/2020/05/22/hhs-announces-nearly-4.9-billion-distribution-to-nursing-facilities-impacted-by-covid19.html.
[4] Debbie Cenziper, Joel Jacobs and Shawn Mulcahy, “Nursing home companies accused of misusing federal money received hundreds of millions of dollars in pandemic relief,” Washington Post (Aug. 4, 2020), https://www.washingtonpost.com/business/2020/08/04/nursing-home-companies-accused-misusing-federal-money-received-hundreds-millions-dollars-pandemic-relief/.
[5] As of 2015, SentosaCare is New York’s largest nursing home network, with at least 25 facilities and 5,400 beds. Allegra Abramo and Jennifer Lehman, “How N.Y.’s Biggest For-Profit Nursing Home Group Flourishes Despite a Record of Patient Harm,” ProPublica (Oct. 27, 2015), https://www.propublica.org/article/new-york-for-profit-nursing-home-group-flourishes-despite-patient-harm.
[6] Paguirigan v. Prompt Nursing Employment Agency, No. 17-cv-1302 (NG) (JO), E.D.N.Y. Sep. 24, 2019), https://cases.justia.com/federal/district-courts/new-york/nyedce/1:2017cv01302/398344/95/0.pdf?ts=1569413700.
[7] U.S. Department of Justice, “Nursing Home Chain Saber Healthcare Agrees to Pay $10 Million to Settle False Claims Act Allegations” (News Release, Apr. 14, 2020), https://www.justice.gov/opa/pr/nursing-home-chain-saber-healthcare-agrees-pay-10-million-settle-false-claims-act-allegations.
[8] Marjie Lundstrom and Phillip Reese, “California’s largest nursing home owner under fire from government regulators,” Sacramento Bee (Jun. 15, 2015), https://www.sacbee.com/news/investigations/nursing-homes/article24015475.html.
[9] Corporate Integrity Agreement (Oct. 2016), https://oig.hhs.gov/fraud/cia/agreements/Forrest_Preston_and_Life_Care_Centers_of_America_Inc_10212016.pdf. U.S. Department of Justice, “Life Care Centers of America Inc. Agrees to Pay $145 Million to Resolve False Claims Act Allegations Relating to the Provision of Medically Unnecessary Rehabilitation Therapy Services” (News Release, Oct. 24, 2016), https://www.justice.gov/opa/pr/life-care-centers-america-inc-agrees-pay-145-million-resolve-false-claims-act-allegations.
[10] Ben Wieder, “As Florida nursing home residents died, operators raked in federal handouts,” Miami Herald (Aug. 6, 2020), https://www.miamiherald.com/news/coronavirus/article244516407.html.
[11] CMS, “HHS Announces Allocations of CARES Act Provider Relief Fund for Nursing Homes” (News Release, Aug. 7, 2020), https://www.hhs.gov/about/news/2020/08/07/hhs-announces-allocations-of-cares-act-provider-relief-fund-for-nursing-homes.html.
[12] “Executive Order on Improving Price and Quality Transparency in American Healthcare to Put Patients First” (Jun. 24, 2019), https://www.whitehouse.gov/presidential-actions/executive-order-improving-price-quality-transparency-american-healthcare-put-patients-first/ (section 4 calls for Establishing a Health Quality Roadmap “that aims to align and improve reporting on data and quality measures “ and includes “a strategy for establishing, adopting, and publishing common quality measurements; aligning inpatient and outpatient measures; and eliminating low-value or counterproductive measures”).
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Register Now – Free Educational Webinar Series for 2020-2021
This presentation will explore the role Medicare does, and could, play in supporting older and disabled beneficiaries and their caregivers.
Wednesday, September 9, 2020 2:00 PM – 3:00 PM EDT
Presenters: Center for Medicare Advocacy Executive Director Judy Stein, Associate Director David Lipschutz
Register at: https://attendee.gotowebinar.com/register/3946073973903728656
Skilled Nursing Facility Staffing
The Center for Medicare Advocacy has been examining the broad variety of approaches to nurse staffing in nursing homes, and their effectiveness, or lack of effectiveness, in achieving improved staffing levels and competencies. This webinar will discuss some of our findings.
Wednesday September 30,2020 2:00 PM – 3:00 PM EDT
Presenters: Senior Policy Attorney Toby Edelman, Guest
Register at: https://attendee.gotowebinar.com/register/871456832595656976
Medicare Enrollment Issues for 2021
This webinar will discuss the 2020 Annual Coordinated Election Period (ACEP), including outreach and education materials issued by the Medicare program, Medicare Plan Finder updates, common enrollment pitfalls, options when you miss your Initial Enrollment Period, and other considerations for Medicare beneficiaries and those who assist them. Policy changes, potential helpful legislation, and other updates for 2021 will also be discussed, including Medicare Advantage network adequacy and other changes made by final regulations.
Wednesday, October 14, 2020 2:00 PM – 3:00 PM EDT
Presenters: Center for Medicare Advocacy Associate Director David Lipschutz, Medicare Advocate Sue Greeno, Guest
Register at: https://attendee.gotowebinar.com/register/535147011985794315
Skilled Nursing Facility Update
The webinar will provide an overview of Nursing Home Quality of Care & Quality of Life Standards from a consumer perspective.
Wednesday, December 2, 2020 2:00 PM – 3:00 PM EST
Presenters: Center for Medicare Advocacy Senior Policy Attorney Toby Edelman, Guest
Register at: https://attendee.gotowebinar.com/register/536143169520642059
Medicare & Health Care Updates
This presentation will examine and try to make sense of what’s happening in the Medicare and related health care world, including impacts of COVID-19, from the perspective of beneficiary advocates.
Wednesday, February 3, 2021 2:00 PM – 3:00 PM EST
Presenters: Center for Medicare Advocacy Senior Policy Attorney David Lipschutz, Kata Kertesz, Guests
Register at: https://attendee.gotowebinar.com/register/836653991043094283
This presentation will provide a summary and update of Medicare home health coverage, care, and payment issues. The webinar will focus on the opportunities and challenges facing beneficiaries with longer term and debilitating conditions who need care at home. Practical tips and advocacy guidance will be included
Wednesday, March 24, 2021 2:00 PM – 3:00 PM EST
Presenters: Center for Medicare Advocacy Executive Director, Attorney Judith Stein, and Associate Director, Attorney Kathy Holt
Register at: https://attendee.gotowebinar.com/register/2614663249203451147
Bonus Webinar – Topic TBD Based on Current Events
Wednesday, May 19, 2021 2:00 PM – 3:00 PM EST
Presenters: TBD
Register at: https://attendee.gotowebinar.com/register/6162491503408897803
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