1. MEDICARE AND ACA MESSAGING: FIGHTING FICTION WITH FACT
As pundits and politicians continue to discuss the deficit, misinformation and confusion about Medicare abound. Fiction seems to flourish more than fact. Particularly since the passage of the Affordable care Act (ACA), we are hearing a lot of misinformation about the law and its impact on Medicare. As these new Myths make news – and old Myths make news again – the Center will respond with facts and information.
Here is our latest chart containing ACA Myths and Truths as they relate to Medicare: https://www.medicareadvocacy.org/medicare-facts-fiction-quick-lessons-to-combat-medicare-spin/
2. LEGISLATIVE UPATE: MEDICARE in the CROSS-HAIRS. LAME DUCK, SEQUESTER and MORE
No legislative action regarding Medicare is likely to occur until after the election in November during the lame duck Congressional session. Things to look out for:
- Extenders package – physician payment (sustainable growth rate, or SGR – 27% cut scheduled for January 2013), extension of Qualified Individual (QI) program, extension of therapy cap exceptions.
- “Fiscal Cliff” – end of Bush-era tax cuts coupled with spending cuts due to sequester take effect in January 2013 – some fear that combination might send economy back into recession
- Is it a “cliff” or a “slope?” See “Misguided ‘Fiscal Cliff’ Fears Pose Challenges to Productive Budget Negotiations” (Center on Budget and Policy Priorities) (June 2012) http://www.cbpp.org/files/6-4-12bud.pdf
- Sequester – automatic $1.2 trillion in spending cuts over 10 years due to failure of 2011 SuperCommittee under Budget Control Act of 2011; $110 billion in 2013 sequester cuts do not include Social Security, Medicaid, SSI and certain other programs, but include a 2% provider cut in Medicare (totaling approximately $11 billion).
- Good summary of some of these issues: “Washington Sounds the Sequester Alarm” Washington Post (8/8/2012) http://www.washingtonpost.com/politics/health_care/washington-sounds-the-sequester-alarm-how-much-would-be-cut-and-when/2012/08/08/5eacbf4a-e126-11e1-8d48-2b1243f34c85_story.html?utm_source=August+9%2C+2012&utm_campaign=8%2F9%2F2012&utm_medium=email
- Impact on Medicare – many Medicare reform proposals are still under consideration as a means of achieving savings (e.g., premium support/vouchers, further income-relating premiums, raising age of eligibility, etc.); for a list of some recent proposals, see, e.g.,:
- Comparison of Medicare Provisions in Debt and Deficit Reduction Proposals” (Kaiser Family Foundation) (Sept. 2011): http://www.kff.org/medicare/upload/8124.pdf
3. NEW RULES AND OTHER DIRECTIVES
The Centers for Medicare & Medicaid Services (CMS) has recently issued a number of proposed rules and other documents that affect the Medicare program. The following are examples:
- RECENT NOTICES OF PROPOSED RULEMAKING (NPRM)
CMS has recently issued a series of proposed rules on a range of topics, some of which would impact beneficiaries (including further defining hospital observation status and durable medical equipment (DME) face-to-face requirements). Comments to the NPRMs cited below are due September 4, 2012.
- 77 Federal Register 41547 (CMS-1358-P) (July 13, 2012)
Medicare Program; Home Health Prospective Payment System Rate Update for Calendar Year 2013, Hospice Quality Reporting Requirements, and Survey and Enforcement Requirements for Home Health Agencies
- 77 Federal Register 44721 (CMS-1590-P) (July 30, 2012)
Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule, DME Face to Face Encounters, Elimination of the Requirement for Termination of Non-Random Prepayment Complex Medical Review and Other Revisions to Part B for CY 2013; Hospital Outpatient Prospective and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs; Electronic Reporting Pilot; Inpatient Rehabilitation Facilities Quality Reporting Program; Quality Improvement Organization Regulations; Proposed Rules
- 77 Federal Register 45061 (CMS-1589-P) (July 30, 2012)
Hospital Outpatient Prospective and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs; Electronic Reporting Pilot; Inpatient Rehabilitation Facilities Quality Reporting Program; Quality Improvement Organization Regulations
- NEW ADVANCED BENEFICIARY NOTICE (ABN)
On June 1, 2012, CMS issued Transmittal No. R2480CP, which updates its instructions on the issuance of the Advance Beneficiary Notices (ABNs), Form CMS-R-131
The new transmittal provides clarification on when an ABN is mandatory, and when it is voluntary or not necessary. Additionally, the transmittal updates manual language, brings the ABN process in compliance with the ACA, provides a new Quick Glance Guide, and creates additional hypotheticals for illustration. The changes are effective on September 4, 2012.
The Center will soon issue a Weekly Alert about the new ABNs.
- PROPOSED MEDICARE SECONDARY PAYER (MSP) RULES
On June 15, 2012, CMS issued advance notice of its proposed rule for the treatment of funds set aside for future medical expenses related to an accident or injury. See 77 Federal Register 35917 (June 15, 2012), (CMS–6047–ANPRM), available at: http://www.gpo.gov/fdsys/pkg/FR-2012-06-15/pdf/2012-14678.pdf.
The proposed rule is applicable to liability insurance (including self-insurance), no-fault insurance, and workers' compensation when future medical care is claimed or the settlement, judgment, award, or other payment releases (or has the effect of releasing) claims for future medical care. Comments are due 5 p.m. (ET), August 14, 2012.
For additional information, see the Center’s Weekly Alert “Medicare Secondary Payer Program (MSP): Proposed Rule for Treatment of Funds Intended for Future Medical Expenses” (August 2, 2012): https://www.medicareadvocacy.org/2012/08/02/medicare-secondary-payer-msp-program-proposed-rules-for-the-treatment-of-funds-intended-for-future-medical-expenses/
4. LITIGATION UPDATES
Bagnall v. Sebelius (Observation Status) No. 3:11-cv-01703 (D. Conn., filed 11/3/2011). On November 3rd, the Center for Medicare Advocacy filed a class action lawsuit on behalf of individuals who have been denied Medicare Part A coverage of hospital and nursing home stays because their care in the hospital was considered "outpatient observation" rather than an inpatient admission. Here is a link to the Press Release announcing the suit: https://www.medicareadvocacy.org/2011/11/press-release-class-action-lawsuit-filed-against-federal-government-to-improve-access-to-medicare-coverage/
Jimmo v. Sebelius (Improvement Standard) No. 11-cv-17 (D.Vt., filed 1/18/11). This case argues that the "Improvement Standard", which operates as a rule of thumb to terminate or deny Medicare coverage to beneficiaries who are not improving, violates substantive and procedural requirements of the Medicare statute, the Administrative Procedure Act, the Freedom of Information Act, and the Due Process Clause of the Fifth Amendment. On October 25, 2011, the presiding judge issued an order denying the government’s Motion to Dismiss. See “Federal Judge Refuses to Dismiss Medicare Beneficiaries’ Challenge to the Medicare ‘Improvement Standard’” (October 27, 2011), available at: https://www.medicareadvocacy.org/2011/10/federal-judge-refuses-to-dismiss-medicare-beneficiaries-challenge-to-the-medicare-improvement-standard-2/
For a description of the case, see https://www.medicareadvocacy.org/2011/07/jimmo-v-sebelius/ .
For a list of all of the Center for Medicare Advocacy’s active litigation, see: https://www.medicareadvocacy.org/litigation/active-cases/.