Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert – April 2, 2020

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  1. Medicare-Related COVID-19 Update – Legislative & Policy Changes (April 2, 2020)
  2. Hospitals Should Discharge Patients with Coronavirus Only to Qualified Nursing Homes
  3. HHS Reiterates Prohibitions On Discrimination In the Face of COVID-19 Care Issues
  4. Medicaid Access Resources
  5. Free Webinar: Medicare & Health Care Updates
  6. Register for the VIRTUAL National Voices of Medicare Summit and Senator Jay Rockefeller Lecture – April 30, 2020

Medicare-Related COVID-19 Update – Legislative & Policy Changes (April 2, 2020)

Legislative Changes

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, H.R. 748 which is the third COVID-related bill to pass Congress in recent weeks. As noted on the Center for Medicare Advocacy’s COVID-19 webpage highlighting such legislation, Medicare-related provisions of this bill include:

  • Significant expansion of telehealth services that can substitute for certain visits that usually require in-person visits with health care providers, such as remote patient monitoring for home health services, hospice recertification, and nephrologist visits for those using home dialysis;
  • Allowing physician assistants, nurse practitioners, and other professionals to order home health services for beneficiaries;
  • Waiving the Inpatient Rehabilitation Facility (IRF) 3-hour rule, which requires that a beneficiary be expected to participate in at least 3 hours of intensive rehabilitation at least 5 days per week to be admitted to an IRF;
  • Allowing Up to 3-Month Fills and Refills of Covered Medicare Part D Drugs – requiring that Medicare Part D plans provide up to a 90-day supply of a prescription medication if requested by a beneficiary during the COVID-19 emergency period.

While several of the provisions of the three prior COVID-19 bills provide much-needed assistance to older adults and individuals with disabilities, advocates are pushing for a fourth COVID-19 bill that will fill in further gaps for these populations – see, e.g., websites for the Leadership Council of Aging Organizations (LCAO) and the Consortium for Citizens with Disabilities (CCD).

Policy Changes

On March 30, 2020, as summarized on the Center’s webpage highlighting COVID-19-related materials issued by the Centers for Medicare & Medicaid Services (CMS), the agency issued a Press Release, Fact Sheet  and Interim Final Rule (CMS-1744-IFC) announcing several provider waivers affecting Medicare. These policy changes include:

  • Expanding the destinations to which ambulance services can be covered by Medicare;
  • Allowing coverage for home testing for COVID-19;
  • Further expanding telehealth services to fulfill requirements for visits that usually must be in person (e.g., inpatient rehabilitation hospitals, home health and hospice);
  • Emphasized that someone can be “homebound” in order to qualify for home health coverage if a physician determines that it is contraindicated for the Medicare beneficiary to leave home – or due to suspected or confirmed COVID-19. (The homebound requirement was not waived)

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Hospitals Should Discharge Patients with Coronavirus Only to Qualified Nursing Homes

As the coronavirus pandemic continues, nursing facilities are being asked, or told, to admit or readmit residents who had or may have COVID-19. Hospitals need beds for acutely ill residents and need to discharge patients that they determine can be safely discharged to other settings.  How do we keep as many people as safe as possible? Unfortunately, federal guidance is limited and state directives are contradictory.

Advocates for nursing home residents do not want states to order all nursing facilities to admit all patients, as New York State and California have directed.[1] Nor should facilities decide, on their own and by whatever criteria they choose, whether to admit any or all patients from acute care hospitals. The Center for Medicare Advocacy has heard of a facility with one- and two-star ratings in health surveys and staffing, as well as an abuse icon, arranging with local hospitals to admit patients with coronavirus. Such poor quality nursing facilities should not be permitted to admit COVID-19 patients.

Hospitals need to be able to discharge patients who no longer need an acute level of care. If such patients are going to post-acute settings, these settings need to be as safe as possible. We are fully aware that not all new or old post-acute facilities can meet all of the standards we recommend, but we believe that it is critical to think about what would be best and to accommodate as many good practices as possible. Our goal is to identify essential components of a good system that protects residents and to have as many of them put in place by as many facilities as possible.

If patients are discharged to post-acute settings, we set out our priority types of facilities below, in descending order (to the extent these alternatives are available, or can be created, in the community):

  1. Long-term care hospitals or hospital-based SNFs;
  2. Newly-identified or newly-created special COVID-19-only facilities;
  3. Other nursing facilities meeting higher standards (discussed below) and with dedicated COVID-19 wings or units.

The second and third categories should be authorized to admit COVID-19 patients from hospitals only when:

  • The hospital has first tested the patient for COVID-19 before discharging the patient to the nursing facility – patients without symptoms cannot be assumed not to have the disease because older people may have different symptoms than younger people with the virus;
  • Each resident is given a private room;
  • Registered nurses are on site, 24 hours per day;
  • Facilities meet nurse staffing ratios of 1.25 hours per resident day of RN time and 4.5 hours per resident day of all nursing time;
  • At least one qualified “infection preventionist” is on site full-time;
  • Facilities have sufficient personal protective equipment (PPE) and necessary supplies.

We understand that not all facilities will be able to meet all of these requirements.

Some nursing facilities should be prohibited from admitting COVID-19 patients who are ready to be discharged from hospitals. Having certification for Medicare does not mean a facility is qualified to provide care to COVID-19 residents.

Facilities that should not be permitted to admit COVID-19 patients include:

  • Facilities with low nurse staffing levels (one or two stars in either staffing category) or a nurse staffing waiver;
  • Facilities providing poor quality care (Special Focus Facility (SFF) or SFF candidate or otherwise determined by CMS or the state to provide poor quality care);
  • Facilities with currently imposed remedies of denial of payment for new admissions or civil money penalties exceeding $5000 for quality of care deficiencies; or
  • Facilities that have an abuse icon.

Special Concerns about Creating COVID-19-Only Nursing Facilities

A number of states currently appear to have considerable interest in establishing COVID-19-only facilities, both through new transitional facilities and conversion of existing facilities. The Centers for Medicare & Medicaid Services (CMS) gave its approval March 28, 2020 to temporarily certifying non-SNF buildings, waiving requirements under 42 C.F.R. §483.90.[2] Advocates have concerns about both types of COVID-19-only facilities.

CMS currently provides no guidance on what new temporary transition facilities need to demonstrate before they receive patients with COVID-19. These facilities should be required to document that they can provide appropriate care to residents and meet the standards identified above (including sufficient staff, nursing and other, to provide care to residents, RNs 24 hours per day, a fully trained on-site infection preventionist, necessary equipment and supplies).

If COVID-19-only facilities are developed from existing facilities, advocates have additional concerns. We strongly oppose CMS’s authorizing facilities to move their residents without prior notice in order to separately cohort infected residents and non-infected residents when the discharges completely disregard and undermine longstanding protections of residents from involuntary discharge. CMS’s March 28 guidance waives “certain” but unspecified protections at 42 C.F.R. §§483.10, 483.15, and 483.21, to allow the involuntary moving of residents “solely for the purposes of cohorting and separating residents with and without COVID-19.”

The first nursing facility to convert itself into a COVID-19-only facility abruptly relocated residents to sister facilities and other nearby facilities. Families were notified only by a video on the facility’s website. Twenty-four hours later, many adult children did not know where their parents were.[3] The complete absence of preparation for the discharges endangered residents and is not an acceptable model.

A better approach appears in Connecticut. A joint letter to residents, families, and responsible parties from the Department of Public Health and the State Long-Term Care Ombudsman Program describes the need for more extreme, though temporary, precautions to protect residents and staff from coronavirus and the state’s necessary plan to move residents to create COVID-19-only facilities.[4]

The Connecticut letter promises:

If you or your loved one need to move to another room or nursing home, a team member from your nursing home will contact you directly. The rights, safety and well-being of the residents are always at the forefront of the State Official’s decision-making. This is an incredibly trying time and we are asking for your assistance keeping residents’ well-being as the priority.

The two agencies are setting up online meetings for residents and families when they will be able to ask questions of Department representatives. The letter also advises residents and families to contact the ombudsman with questions or concerns, and concludes with:

The Long-Term Care Ombudsman Program and the Department of Public Health are here to support you through this very challenging time. Please remember it is normal to have questions, feel uneasy or even scared due to this unprecedented situation. Our offices as well as the care team members at your nursing home are here for you. Reach out, talk about how you are feeling and what you think might help you cope with all of this. We need to do things differently right now and will continue to offer support so that we can get through this together.

According to the Connecticut Post, Connecticut has now announced plans to cohort residents, some to wings of existing facilities, some to separate facilities (including some previously closed and vacant facilities).[5] The article reports that the Department of Public Health will oversee “staffing, logistics and the moving of equipment” at the new facilities, which will get state licenses. Facilities will be required to report their staffing plans as well and equipment and food needs. Finally, the article identifies, by name, which Connecticut nursing facilities will be converted and which new sites will be opened.

Conclusion

In this pandemic, at least three actions are necessary:

  • First, accurate and meaningful information about which nursing facilities have residents and staff with confirmed cases of coronavirus needs to be made public. The absence of clear, comprehensive, and truthful information creates more fear and anxiety for residents and families and the public in general.
  • Second, tracking cases of the coronavirus in nursing facilities is important so that, to the extent possible, essential resources – staff, personal protective equipment – can be sent to those facilities with the greatest need.
  • Finally, government needs to take responsibility to make sure that all facilities – newly created facilities and existing facilities – have the staff, supplies, food, and equipment that they need.

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[1] New York State Health Department, Advisory: Hospital Discharges and Admissions to Nursing Homes” (Mar. 25, 2020), https://skillednursingnews.com/wp-content/uploads/sites/4/2020/03/DOH_COVID19__NHAdmissionsReadmissions__032520_1585166684475_0.pdf;California Department of Public Health, “Preparing for Coronavirus Disease 2019 (COVID-19) in California Skilled Nursing Facilities,” AFL 20-25.1 (Mar. 20, 2020), https://www.cdph.ca.gov/Programs/CHCQ/LCP/Pages/AFL-20-25-1.aspx. [2] CMS, “Long Term Care Facilities (Skilled Nursing Facilities and/or Nursing Facilities): CMS Flexibilities to Fight COVID-19” (Mar. 28, 2020), https://www.cms.gov/files/document/covid-long-term-care-facilities.pdf. [3] Robert Weisman and Tim Logan, “Officials are emptying nursing homes across Mass. to create coronavirus recovery centers,” Boston Globe (Mar. 28, 2020), https://www.bostonglobe.com/2020/03/28/metro/officials-emptying-nursing-homes-across-state-create-covid-19-recovery-centers/. [4] Letter is embedded in  Rob Ryser, “State creating coronavirus-only nursing homes,” News Times (Mar. 31, 2020), https://www.newstimes.com/news/coronavirus/article/State-creating-coronavirus-only-nursing-homes-15168419.php. [5] Ken Dixon, “Lamont plans shift of nursing homes to separate COVID-positive residents,” Connecticut Post (Apr. 2, 2020), https://www.ctpost.com/news/coronavirus/amp/Lamont-plans-shift-of-nursing-homes-to-separate-15173629.php?utm_campaign=CMS%20Sharing%20Tools%20(Desktop)&utm_source=t.co&utm_medium=referral&__twitter_impression=true.

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HHS Reiterates Prohibitions On Discrimination In the Face of COVID-19 Care Issues

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin (https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf) on March 28, 2020 reiterating that discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs is prohibited.

The bulletin stated: “The Office for Civil Rights enforces Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act which prohibit discrimination on the basis of disability in HHS funded health programs or activities.  These laws, like other civil rights statutes OCR enforces, remain in effect.  As such, persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative “worth” based on the presence or absence of disabilities. Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence.”

The bulletin stressed the prohibition on disability discrimination as growing concerns have been raised (“Opinion | How the Coronavirus May Force Doctors to Decide Who Can Live and Who Dies,” The New York Times, March 12, 2020, https://www.nytimes.com/2020/03/12/opinion/coronavirus-hospital-shortage.html) ; (Yale Journal Forumhttps://papers.ssrn.com/sol3/papers.cfm?abstract_id=3559926) that the COVID-19 pandemic could lead to rationing of care, with providers withholding treatment to certain categories of patients. Advocacy groups had filed complaints with the OCR that such discriminatory decisions in rationing care were already occurring in certain areas of the United States (Complaint from Washington state: https://www.centerforpublicrep.org/wp-content/uploads/2020/03/OCR-Complaint_3-23-20-final.pdf?link_id=2&can_id=598dadf8054bb175e034c9962c09805e&source=email-complaint-filed-over-wa-covid-19-treatment-rationing-plan-2&email_referrer=email_758489&email_subject=complaint-filed-over-wa-covid-19-treatment-rationing-plan.) The complaint cites Guidance distributed by the Washington State Department of Health (WA DOH) and the Northwest Healthcare Response Network (NHRN), a coalition of hospitals which is developing a plan to ration health care during the COVID-19 pandemic, recommending that triage teams consider transferring hospital patients with “loss of reserves in energy, physical ability, cognition and general health” to outpatient or palliative care. This would mean that if resources and ventilators are limited, preference would be given to people who are younger and healthier and would leave those who are older and sicker to die.

The Consortium for Citizens with Disabilities (CCD) Rights and Health Task Forces, of which the Center for Medicare Advocacy is a member, wrote a letter to HHS on March 20, 2020 urging that HHS ensure that, if the current pandemic results in government decisions to ration treatment, decisions about how medical treatment is allocated are made without discriminating based on disability. (http://c-c-d.org/fichiers/Letter-re-COVID-19-and-Disability-Discrimination-final.pdf)

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Medicaid Access Resources

As the need for health care increases in the face of COVID-19, access to Medicaid will become more crucial. Below is list of recent resources for assistance accessing Medicaid.

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Free Webinar: Medicare & Health Care Updates

Wednesday April 8, 2020, 3:00 PM – 4:00 PM EDT

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.

Presented by Center for Medicare Advocacy Associate Director David Lipschutz with special guests Medicare Rights Center Federal Policy Director Lindsey Copeland, and Justice in Aging Directing Attorney Amber Christ.

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Register Now for the Virtual National Voices of Medicare Summit and Senator Jay Rockefeller Lecture

Because of the uncertainty brought about by COVID-19, we are altering plans for our 2020 National Voices of Medicare Summit and Sen. Jay Rockefeller Lecture. There will be a Virtual Summit program on April 30, 2020. We are grateful to this year’s Sen. Jay Rockefeller lecturer, Wendell Potter, and the many other experts who have agreed to appear by webinar. We will also present a follow-up webinar for registrants on May 20, 2020 from 2:00 – 3:30 PM EDT.

These events support the work of the Center for Medicare Advocacy, so please, register now for what will be a fantastic virtual program and informative webinar.

Virtual Summit: Whither Medicare – From Promise to Privatization

April 30, 2020, 1:00 PM – 4:00 PM

Registration: $150
(includes Summit and follow-up webinar)

The 7th annual National Voices of Medicare Summit & Senator Jay Rockefeller Lecture will allow leading experts and advocates to consider best practices, challenges and successes in efforts to improve access to quality health coverage and care, especially in these trying times. Against the backdrop of issues like increasing privatization of Medicare, COVID-19, voter focus on health care, and talk about a Medicare for All, the 2020 Virtual Summit will focus on the promise, challenges to, and future of Medicare.

Register Today at: https://www.medicareadvocacy.org/summit/