- CMA Alert | July 29, 2021
The Center for Medicare Advocacy’s mission includes advancing equitable access to quality health care. We ground our policy proposals and advocacy in health equity and social determinants of health – recognizing that quality health care for all is key to social justice. On July 30th, in honor of Medicare’s 56th anniversary, we celebrate the incredible achievements of Medicare, including its role in improving health equity.
At the Center’s 2019 National Voices of Medicare Summit and Senator Jay Rockefeller Lecture, we were privileged to host Rep. John Lewis to honor his extraordinary leadership in advancing access to affordable health care and justice for all. Rep. Lewis’ inspirational remarks began with a discussion of how hospital segregation cost people their lives, referring to the shameful period in our history in which access to health care was tied to race, and terrible disparities in quality of care were rampant. This was prior to Medicare’s achievement of integrating hospitals.
As Center for Medicare Advocacy Senior Policy Attorney Alfred Chiplin noted in the Center’s 50 Insights for Medicare’s 50th Anniversary:
“Medicare, in 1965, created an important financial and social change tool toward the integration of hospitals. As a Federal program affecting every hospital in the country, Medicare offered immense financial leverage. Any hospital that wished to be reimbursed by Medicare for the usually-uncompensated care for their oldest, and sickest patients was suddenly subject to the Civil Rights Act. . . the administration used this leverage particularly effectively in opening the door to hospital privileges for African-American physicians, in addition to it being a major tool in creating access to basic hospital and other health care services for African-American citizens throughout the nation, particularly in Southern states.”
Medicare completely changed the landscape of health care access in the United States.
Medicare’s promise is that Americans over 65 and people with disabilities can age with dignity, knowing they will have fair access to affordable health care. Over the last 56 years this promise has become imbedded in our collective understanding of aging. Before the enactment of Medicare in 1965, only 50% of people over 65 had health insurance and 35% lived in poverty. The guaranteed coverage Medicare provides, regardless of income, medical history, or health status, has enhanced the health and financial security of older people and their families. Because of Medicare, virtually all Americans age 65 or older are insured. In 1972, when Congress added Medicare coverage for people with long-term disabilities, it helped provide that same security for a group of individuals who also historically struggled to obtain insurance.
While we honor the profound value of Medicare to our national well-being, we also note improvements that are needed to fully and fairly serve today’s Medicare population. As the Center has outlined in our Medicare Platform, we continue to call for updates to the program – including adding an out-of-pocket cap, expanding Part B to include oral health, reducing barriers to covered care, and increasing low-income protections. At the same time, Medicare must maintain its leadership in identifying and addressing racial disparities and health equity in all Medicare policies and practices.
Medicare home health coverage can be an important resource for Medicare beneficiaries who need health care at home. When properly implemented, the Medicare home health benefit provides coverage for an array of skilled and nonskilled services, all of which add to the health, safety, and quality of life of beneficiaries and their families. Key among these services is personal care provided by home health aides.
Unfortunately people who legally qualify for Medicare coverage frequently have great difficulty obtaining and affording necessary home health and home health aide care.
Our new Fact Sheet explains who qualifies for Medicare-covered home care, and what Medicare should cover. It includes a handy infographic. It also outlines some tips to help overcome challenges to getting that coverage.
In important news for nursing home quality care, the Center for Medicare & Medicaid Services (CMS) has rescinded 2017 guidance, allowing the reinstatement of per day civil money penalties (CMPs) for deficiencies that reflect past noncompliance. The rescission also removes the CMP Analytic Tool, which CMS locations (formerly known as Regional Offices) use in determining when and how to impose CMPs against facilities.
CMS describes the change, which it made in early July but did not announce publicly, as follows:
CMS is hereby removing the July 7, 2017 Memo (S&C 17-37-NH) from its guidance repository. In that memo, CMS instructed CMS Locations (formerly “Regional Offices”) to impose civil monetary penalties for prior noncompliance solely on a per-instance basis. Upon further consideration, CMS has determined that the agency should retain the discretion at this time to impose a per-day penalty where appropriate to address specific circumstances of prior noncompliance. We will work within CMS operations to apply such discretion, and any final notice of noncompliance will set forth the penalty, and the reason(s) for imposing per-instance or per-day penalties.
Although the text of the rescission refers only to the imposition of CMPs for deficiencies reflecting past noncompliance, CMS’s simultaneous rescission of the CMP Analytic Tool suggests that CMS may be more broadly revising the Trump Administration’s July 7, 2017 sub-regulatory guidance.
The survey and certification letter released on July 7, 2017 explicitly withdrew the CMP Analytic Tool issued by the Obama Administration in 2014, which made per day CMPs the default CMP in all situations. Reversing the Obama policy, the 2017 guidance made lower per instance CMPs the default. The guidance also dramatically limited per day CMPs, when they were used. Per day CMPs could start only at the time of the survey, rather than at an earlier time when the facility’s noncompliance actually began, as the federal regulations permit, and could not be used when the facility had a “good compliance history” or when only a “single isolated incident causes harm to a resident.” The 2017 guidance and tool made other changes that were intended to reduce the imposition and size of financial penalties, and they did. Since the July 2017 guidance, a larger number per instance CMPs than per day CMPs have been imposed, as reported on the federal website Quality, Certification & Oversight Reports (QCOR).
Year Total number
of per day
of per instance
2016 2,004 $61,223.92 1,072 $3,695.25 2018 1,255 $66,466.39 2,029 $9,470.62 2019 1,482 $69,032.22 1,916 $9,865.73
On January 19, 2021, the National Consumer Voice for Quality Long-Term Care and California Advocates for Nursing Home Reform, represented by the AARP Foundation and Constantine Cannon, filed a lawsuit challenging the limitation on CMPs for past noncompliance.
The AARP Foundation applauded the Biden Administration’s action. The Center for Medicare Advocacy joins in the thanks and looks forward to more Biden Administration actions undoing the Trump Administration’s dismantling of the nursing home oversight system.
 CMS, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,” https://www.hhs.gov/guidance/document/revision-civil-money-penalty-cmp-policies-and-cmp-analytic-tool. The State Operations Manual, Chapter 7, describes “past noncompliance” as a deficiency that occurred and was fully corrected by the facility between surveys. State Operations Manual, Chapter 7, §7510.1, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.
 Reed Abelson, “Nursing Homes May Face Steeper Safety Fines; The Biden administration has quietly undone a Trump policy that severely restricted penalties imposed on facilities that violated safety standards,” The New York Times (Jul. 29, 2021), https://www.nytimes.com/2021/07/28/health/biden-nursing-homes-safety-fines.html?searchResultPosition=1
 “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,” https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Policy-and-Memos-to-States-and-Regions-Items/Survey-and-Cert-Letter-17-37
 CMS, “Civil Money Penalty (CMP) Analytic Tool and Submission of CMP Tool Cases,” S&C: 15-16-NH (Dec. 19, 2014), https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-16.pdf
 42 C.F.R. §488.440(a)(1) (“The per day civil money penalty may start accruing as early as the date that the facility was first out of compliance, as determined by CMS or the State.”)
 National Consumer Voice for Quality Long-Term Care v. Alex M. Azar II, Case No. 21-162 (D.D.C. filed Jan. 18, 2021). The complaint is available at https://www.aarp.org/content/dam/aarp/aarp_foundation/litigation/2021/nat-consumer-voice-v-us-dept-hhs-complaint.pdf
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Support in July is always important to us, as we enter our new fiscal year. If you are able to make a special 35th Anniversary gift to the Center this summer, you will help the Center’s mission soar into our new year to advance access to comprehensive Medicare, health equity, and quality health care for families across the country.Continue reading →