CMA Alert | April 21, 2022

Members of Congress Send Letter to CMS Urging Agency to Address Medicare Advantage Overpayments

On April 20, 2022, 19 members of the House and Senate sent a letter to Centers for Medicare & Medicaid (CMS) Administrator Chiquita Brooks-LaSure “highlighting concerns about overpayments to Medicare Advantage plans that line the pockets of big insurance companies” according to a press release posted by Rep. Rosa DeLauro titled “Porter, DeLauro, Schakowsky, Warren Lead Letter Calling on CMS to Address Overpayments and Increase Transparency in the Medicare Advantage Program” (4/20/22).  The letter “urges CMS to mitigate the announced payment increases so they are on par with payments to Traditional Medicare” and “also calls on CMS to increase transparency in the Medicare Advantage program.”

Raising concerns about the impact of Medicare Advantage (MA) overpayments on the Medicare Part A (Hospital Insurance) Trust Fund, the letter states: “Instead of failing to curb overpayments to Medicare Advantage plans for 2023, we encourage CMS to recoup these overpayments and reduce them over time to extend the life of the HI [Medicare Part A] Trust Fund, ensure parity in payment between Medicare Advantage and fee-for-service Medicare, and improve and equalize benefits for all Medicare beneficiaries.”

Noting that “Medicare Advantage has failed to achieve savings in any year since its inception” the letter states that “[t]axpayers and Traditional Medicare beneficiaries are subsidizing the surplus profits of Medicare Advantage plans.” Further, MA “plans frequently deny costly treatment options and require burdensome pre-authorization requirements that prevent beneficiaries from getting the care they need” and “[i]mpediments to timely, high-quality care lead many patients with complicated conditions […] to disenroll from Medicare Advantage plans.”

Led by Rep. Katie Porter (D-CA-45), Rosa DeLauro (D-CT-03), and Jan Schakowsky (D-IL-09) and Senator Elizabeth Warren (D-MA), the letter was also signed by Senators Sherrod Brown (D-OH), Bernie Sanders (I-VT), Patrick Leahy (D-VT), and Cory Booker (D-NJ), and Representatives Mark Pocan (D-WI-02), Pramila Jayapal (D-WA-07), Raúl M. Grijalva (D-AZ-03), Sheila Cherfilus-McCormick (D-FL-20), Judy Chu (D-CA-27), Jesús G. “Chuy” García (D-IL-04), Jahana Hayes (D-CT-05), Debbie Dingell (D-MI-12), Cori Bush (D-MO-01), Mondaire Jones (D-NY-17), and Rashida Tlaib (D-MI-13).

As noted in the press release, the Center for Medicare Advocacy is among the organizations endorsing this letter.

When Artificial Intelligence in Medicare Advantage Impedes Access to Care: A Case Study

The use of artificial intelligence (AI) in healthcare is capturing headlines as a potential tool to streamline operations and predict patient needs for favorable health outcomes, among other things.[1] The Center for Medicare Advocacy, however, has increasingly become aware of how AI-powered decision-making tools may be used by Medicare Advantage (MA) plans to make coverage decisions. Those decisions may be more restrictive than Medicare coverage guidelines, potentially leading to premature terminations of coverage or continuation of care for beneficiaries.[2]

The Center recently published a report, The Role of AI-Powered Decision-Making Technology in Medicare Coverage Determinations, which outlined areas of growing concerns. Issues around the use of AI have also been highlighted by the Commonwealth Fund as part of a series of blogs focusing on different aspects of the MA program.[3] A recent blog post noted, “A related concern is that plans are using proprietary, algorithm-driven systems to make decisions (including those requiring prior authorization) about approving coverage for services.”[4]

The issues around prior authorization and persistent denials of coverage potentially have devastating impacts on patients. The Center is hearing alarming cases of Medicare beneficiaries suffering from impacts of AI decision-making tools despite the fact that Medicare is adamant that no claim should be based on a screening tool alone.[5] Furthermore, Medicare requires an individualized assessment of each beneficiary’s qualification for coverage in certain care settings.[6] The AI tools, however, provide recommendations based on previous patient experiences.

One beneficiary in Connecticut, Ms. M, was hospitalized after she underwent a hip replacement. The 80-year-old was transferred to a skilled nursing facility (SNF) for short-term rehab. Ms. M’s UnitedHealthcare Medicare Advantage plan touts that it offers coverage of unlimited days in a SNF.

Ms. M’s goal in the nursing home was to reach a level of independence that would allow her to return home where she lived on her own prior to the surgery.  Her recovery in the SNF, however, was hindered due to various complications such as a nerve injury and becoming infected with COVID-19. Nevertheless, Ms. M was still able to make progress consistent with the goals set out in the physical and occupational therapy evaluations.  According to Paula Haney, the Director of Rehabilitation at the SNF, Ms. M. was still benefiting from her skilled therapy regimen and, therefore, continued to meet Medicare coverage criteria.

Despite this fact, Ms. M has been forced to battle UnitedHealthcare for continued coverage of her three-month stay at the facility. While trying to regain mobility after her hip operation, Ms. M filed ten appeals on UnitedHealthcare’s repeated decisions to terminate her coverage.

Paula Haney explained to the Center that these frequent denials have increased for her patients, “I have never experienced the number of denials that we have received. The frustrating part is that we have overturned so many of those denials and yet they keep coming.”

Ms. M reached out to the Center after filing the ten successful appeals on her own. The Center contacted both United Healthcare and their subsidiary naviHealth, a post-acute case management company tasked with determining when to terminate coverage, to find out more about how these decisions were being made. After finally agreeing to meet with the Center and Haney, naviHealth’s clinical representative continued to offer multiple explanations as to why coverage should be terminated, including: Ms. M’s goal of returning home was unrealistic and that the therapy she was receiving could be provided by someone who was not skilled.

According to Haney, naviHealth provides similar explanations for their other denials. “Basically, what we’re hearing is either the patient is not making adequate progress, or the patient has reached a level that should not require skilled services. There isn’t a whole bunch of clarification.”

Haney recounted to the Center how the repeated denials of coverage impacted patients. “They’re dealing with trying to get better. And it’s this emotional roller coaster every five to seven days.” Ms. M doesn’t have the financial means to privately pay for continued short-term rehab and the weekly denials took a serious emotional toll. “She would come down here and be a wreck. She’d be weeping. Just so worried. ‘What’s going to happen? Are they going to take my house? What do I do now?’”

Despite her Medicare Advantage plan stating it covered unlimited days in a SNF, Ms. M received less than a month of coverage before the barrage of terminating notices began. Unfortunately, Ms. M’s case is not unique, but her fighting spirit is. According to a 2018 Office of the Inspector General report, beneficiaries and providers appealed only one percent of the Medicare Advantage denials between 2014 and 2016.[7]

“We’ve had a couple of people who have gone home and ended up back in the hospital. And we’ve seen them again,” according to Haney. “We’re happy to see them if they need us, but we really would rather have it if they had gotten a little bit stronger, maybe they would have been able to avoid that rehospitalization.”

The Center continues to investigate AI-powered decision coverage issues and will provide updates as we learn more.

Unfortunate update: Kepro, the independent adjudicator of Ms. M’s appeals, has finally upheld naviHealth’s Notice of Medicare Non-Coverage despite her continuing to receive therapy each weekday.

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[1] Landau, J. The pluses and minuses of AI in Healthcare. Fast Company. (Feb. 28, 2022). Available at: https://www.fastcompany.com/90723569/the-pluses-and-minuses-of-ai-in-healthcare 
[2] Saxena, L. Center for Medicare Advocacy Special Report: The Role of AI-powered Decision-Making Technology in Medicare Coverage Determinations. Center for Medicare Advocacy. (Jan. 19, 2020). Available at: https://medicareadvocacy.org/center-for-medicare-advocacy-special-report-the-role-of-ai-powered-decision-making-technology-in-medicare-coverage-determinations/ 
[3] CMA. Commonwealth Fund Blog Series About Medicare Advantage. (Apr. 7, 2022). Available at: https://medicareadvocacy.org/commonwealth-fund-blog-series-about-medicare-advantage/ 
[4] Hostetter, M., & Klein, S. Taking Stock of Medicare Advantage: Benefit Design. Commonwealth Fund. (Mar. 31, 2022). Available at: https://www.commonwealthfund.org/blog/2022/taking-stock-medicare-advantage-benefit-design 
[5] Saxena, L. Center for Medicare Advocacy Special Report: The Role of AI-powered Decision-Making Technology in Medicare Coverage Determinations. Center for Medicare Advocacy. (Jan. 19, 2020). Available at: https://medicareadvocacy.org/center-for-medicare-advocacy-special-report-the-role-of-ai-powered-decision-making-technology-in-medicare-coverage-determinations/ 
[6] CMS. Frequently Asked Questions (FAQs) Regarding Jimmo Settlement Agreement. (Updated Dec. 1, 2021) Available at: https://www.cms.gov/Center/Special-Topic/Jimmo-Settlement/FAQs 
[7] OIG. Medicare Advantage Appeal Outcomes and Audit Findings Raise Concerns About Service and Payment Denials. (OEI-09-16-00410) 09-25-2018. Available at: https://oig.hhs.gov/oei/reports/oei-09-16-00410.asp

Notice of Proposed Rulemaking for Medicare Part A Payments to Skilled Nursing Facilities Published – CMS Requests Information About Nurse Staffing

Last week, the Centers for Medicare & Medicaid Services (CMS) posted its proposed rule with annual updates to Medicare Part A payments to skilled nursing facilities.[1]  A central issue for residents’ advocates in the rule is CMS’s Request for Information about establishing mandatory nurse staffing levels. CMS identifies 17 questions, many with multiple issues. The Center for Medicare Advocacy encourages residents and their families and advocates to provide CMS with specific and detailed information about staffing.

CMS has now published the proposed rule in the Federal Register, 87 Fed. Reg. 22720 (Apr. 15, 2022), https://www.govinfo.gov/content/pkg/FR-2022-04-15/pdf/2022-07906.pdf. The discussion of staffing appears at pages 22789-22795. Comments are due no later than June 10, 2022.  

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[1] See “CMS Begins Processing of Setting Mandatory Nurse Staffing Standards for Nursing Facilities” (CMA Alert, Apr. 14, 2022), https://medicareadvocacy.org/cms-begins-process-of-setting-mandatory-nurse-staffing-standards-for-nursing-facilities/

Study Finds Relationship Between Religiously Affiliated Nursing Homes and Standard of Care Complaints and Violations

A study published by researchers from Yale School of Management and London Business School determined that violations of standards of care are more severe in religiously affiliated (RA) nursing homes compared to secular facilities.[1] Through an analysis of five years of CMS data on all recorded violations of standards of care (2010-2015), researchers concluded that complaints are less likely to be filed against RA facilities. This lack of complaints ultimately meant there were relatively longer periods between inspections. Once inspections occurred, worse violations were identified because the violations intensified before they were detected. The authors were clear that this finding was not due to poorer levels of care or inspector bias, but rather to the reduced likelihood of complaints being filed.

Nursing home surveys are performed according to survey protocols and Federal requirements.[2] In addition to state surveyors conducting at least one survey per year, surveys can also be performed on an ad hoc basis when complaints are submitted by residents, their families, or third parties, such as ombudsmen.[3] Monitoring the care loved ones receive in nursing homes is an important tool to ensure quality of care.[4]

The authors note that an organization’s religious affiliation often fosters a “cognitive and emotional link between the organization and its members.” Furthermore, members might act with the organization’s interests in mind instead of their own. The authors contend that it is the attributions of “religious organizing, instead of a belief in God, that likely plays a role in reporting and, in turn producing wrongdoing in religious organizations.” The researchers recommend policymakers recognize the important role residents and their families play in enforcing quality standards in nursing homes.

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[1] Mohliver, A., & Ody-Brasier, A. (2022). Religious affiliation and wrongdoing: Evidence from U.S. nursing homes. Management Science, 1–22. https://doi.org/10.1287/mnsc.2022.4350 
[2] CMS. (n.d.). Nursing Homes. CMS.gov. Available at: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Nursing-Homes 
[3] Institute of Medicine (US) Committee on Nursing Home Regulation. (Jan. 1, 1986). Monitoring Nursing Home Performance. Improving the Quality of Care in Nursing Homes. Available at: https://www.ncbi.nlm.nih.gov/books/NBK217555/ 
[4] Human Rights Watch. US: Concerns of Neglect in Nursing Homes. (Mar. 25, 2021). Available at: https://www.hrw.org/news/2021/03/25/us-concerns-neglect-nursing-homes

Elder Justice “No Harm” Newsletter | Vol 4, Issue 2 Now Available

In the Elder Justice Newsletter, we highlight citations, including deficiencies related to abuse, neglect, and substandard care, that have been identified as not causing any resident harm. The goal of this brief newsletter is to shed light on the issue of so-called “no harm” deficiencies, which typically result in no fine or penalty to the nursing home.

This newsletter focuses on the following “no harm” violations:

• Medication mix-up: Medication error leads resident to ER.
• Pressure’s on: Five-star nursing home fails to provide timely and appropriate pressure ulcer care.
• Unplanned weight loss: Nursing home fails to properly monitor resident nutrition.
• ‘There’s just no time for those things’: Residents’ personal care neglected due to understaffing.
• Falling on deaf ears: Resident and family member grievances unresolved.
• Seven falls in three months: Resident care plan requirements go unenforced.

Do YOU think these deficiencies caused “no harm”? Click to download the newsletter.