- CMS Issues Proposed Rule That Will Address Significant Medicare Enrollment Pitfalls and Provide Other Important Help
- Government Watchdog Issues Another Report Highlighting Inappropriate Medicare Advantage Denials
- Center for Medicare Advocacy Contributes to Report on the Medicare Home Health Benefit
- Nursing Home Staffing and Immigration
CMS Issues Proposed Rule That Will Address Significant Medicare Enrollment Pitfalls and Provide Other Important Help
On April 27, 2022, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule in the Federal Register titled “Medicare Program; Implementing Certain Provisions of the Consolidated Appropriations Act, 2021 and Other Revisions to Medicare Enrollment and Eligibility Rules”, 87 Fed Reg 25090 (April 27, 2022), available here. CMS also published a press release and separate fact sheet about the proposed rule on April 22, 2022.
The proposal would implement certain provisions of the Consolidated Appropriations Act of 2021 (CAA), including: 1) key provisions of the Beneficiary Enrollment Notification and Eligibility Simplification (BENES) Act which simplifies and accelerates Medicare enrollment by mandating that Part B insurance begin the first of the month following an individual’s enrollment during both the later months of the beneficiary’s Initial Enrollment Period (IEP) and during the General Enrollment Period (GEP); 2) establish new special enrollment periods (SEPs) for certain exceptional conditions; and 3) extend immunosuppressive drug coverage under Part B for certain ESRD beneficiaries. The rule also proposes several provisions relating to dual eligibles and would make technical changes to how enrollment forms are referenced in regulations.
As discussed in this CMA Alert (January 2021), the BENES Act provisions, effective January 2023, will help close some of the coverage gaps that people face surrounding enrollment in Part A and B of Medicare. Medicare rules currently allow for an array of special enrollment periods (SEPs) surrounding Part C (Medicare Advantage) and Part D plan enrollments. In this proposed rule, CMS uses its discretion to propose new Part A and B Special Enrollment Periods (SEPs) for certain exceptional conditions, including relating to:
- Individuals Impacted by an Emergency or Disaster that would allow CMS to provide relief to those beneficiaries who missed an enrollment opportunity because they were impacted by a disaster or other emergency as declared by a Federal, state, or local government entity.
- Health Plan or Employer Error that would provide relief in instances where an individual can demonstrate that their employer or health plan materially misrepresented information related to enrolling in Medicare timely.
- Formerly Incarcerated Individuals that would allow individuals to enroll following their release from correctional facilities.
- Coordinate with Termination of Medicaid Coverage that would allow individuals to enroll after termination of Medicaid eligibility.
- Other Exceptional Conditions that would, on a case-by-case basis, grant an enrollment period to an individual when circumstances beyond the individual’s control prevented them from enrolling during the IEP, GEP or other SEPs.
As noted in the CMS fact sheet discussing this proposed rule, “[t]hese proposals would expand Medicare enrollment opportunities and reduce multi-month coverage gaps in Medicare.” We couldn’t agree more, and we applaud CMS for proposing SEPs that would address many of the barriers to timely Medicare enrollment, including reliance on erroneous information from an employer or plan sponsor. In addition, the proposed SEP that would apply when someone loses Medicaid coverage would assist individuals who lose Medicaid eligibility following the end of the COVID-19 Public Health Emergency (PHE) and who did not enroll in Medicare in a timely manner.
The proposed rule includes several provisions relating to individuals dually eligible for Medicare and Medicaid, including proposals to: 1) extend the Medicare Savings Programs (MSPs) to cover premiums and cost sharing for individuals enrolling in the new Part B immunosuppressive drug benefit, 2) specify that state buy-in agreements reside entirely within the Medicaid state plan (which, among other things, would enhance accountability for state payment of Medicare premiums on behalf of low-income individuals) and 3) limit retroactive Medicare Part B premium liability for states to 36 months. The proposed regulations also make a number of technical updates that affect dually eligible beneficiaries, including proposals to: 1) clarify buy-in coverage groups in 50 states and the District of Columbia, 2) codify the requirement that states buy in for all eligible individuals, 3) clarify populations for whom states can obtain federal financial participation, and 4) codify MSP eligibility groups in Medicaid regulations.
Comments on the proposed rule are due June 27, 2022. The Center for Medicare Advocacy is currently reviewing the rule and plans to submit comments. We strongly encourage Medicare advocates and other stakeholders to submit comments in support of this proposed rule.
The Department of Health and Human Services Office of Inspector General (OIG) issued a report titled “Some Medicare Advantage Organization Denials of Prior Authorization Requests Raise Concerns About Beneficiary Access to Medically Necessary Care” (April 2022, OEI-09-18-00260). As reported in a New York Times article titled “Medicare Advantage Plans Often Deny Needed Care, Federal Report Finds” by Reed Abelson (April 28, 2022), “[t]ens of millions of denials are issued each year for both authorization and reimbursements, and audits of the private insurers show evidence of ‘widespread and persistent problems related to inappropriate denials of services and payment,’ the investigators found.” The findings are similar to 2018 report issued by OIG titled “Medicare Advantage Appeal Outcomes and Audit Findings Raise Concerns About Service and Payment Denials”.
The Center for Medicare Advocacy is reviewing the report, and will provide additional analysis in next week’s CMA Alert.
Today, the Bipartisan Policy Center (BPC) released a report titled “Optimizing the Medicare Home Health Benefit to Improve Outcomes and Reduce Disparities” available here. With support from the Commonwealth Fund, the Center for Medicare Advocacy (CMA) contributed an Issue Brief summarizing the legislative and regulatory history of the benefit, included in the BPC Report’s Appendix. The Commonwealth Fund also published a blog post by CMA titled “The Medicare Home Health Benefit: An Unkept Promise” discussing the Medicare home health benefit and referencing the BPC Report.
The BPC report is an important contribution to the current discourse surrounding access to the Medicare home health benefit. Among other things, the report highlights some of the factors inhibiting the provision of care to individuals with multiple comorbidities and complex conditions, including, as stated in the Executive Summary:
- “Inconsistent Medicare coverage determinations influence which beneficiaries home health agencies serve.
- Payment methodology and quality metrics disincentivize services for those with higher levels of need or without an expectation of functional improvement.
- Home health agencies overlook the importance of home health aides on recovery and health outcomes.
- Beneficiaries and family caregivers are not appropriately educated about home health services and do not receive adequate support.”
We concur with the Report’s request that “CMS should institute operational improvements to the administering of the home health benefit to ensure services are covered when eligibility criteria are met. In addition, payment policies should incentivize agencies to deliver an appropriate mix of services to qualified beneficiaries” (p. 7).
Further, the Report highlights how payment and other incentives and disincentives lead to the type of patients home health agencies take on:
Whether by selecting patients likely to require fewer visits or altering the type of services delivered, home health agencies tend to serve beneficiaries who will get better quickly and respond to the rehabilitative therapies that are likely to offer the most expedient improvement in functional status. However, the exclusion of aide services from care plans further disadvantages beneficiaries with chronic illness or cognitive deficits, particularly for those without a caregiver at home, and may exacerbate long-standing racial and ethnic health disparities within the home health care sector. [p. 13; citations omitted]
The BPC Report includes a disclaimer that it does “not examine whether Medicare Advantage enrollees face similar barriers to the home health benefit, and the recommendations in the report would address only the coverage, quality, and availability of Medicare home health services for beneficiaries in traditional Medicare” (p. 10), but does state that “[n]otably, Medicare Advantage beneficiaries receive fewer visits, have shorter episodes, and experience lower quality care” (p. 20).
CMA agrees with many of the recommendations in the BPC Report, but we must point out that we disagree with how home health coverage is framed as only a short-term benefit in the report. For example, it is described as “a narrowly defined benefit for individuals who need skilled care for short periods of time but are unable to leave the home to receive it” (Executive Summary, p. 5; also see p. 7 and Introduction at p. 9). In short, this is a misstatement of the law.
CMA has a long history of pointing out misconceptions about, and problems accessing, the Medicare home health benefit, including the widespread misunderstanding that the benefit is only available for a short period of time. While this is how the benefit is often implemented, Medicare law and rules specify that coverage is not limited in time or visits. For example, coverage is available… “without regard to whether… it is expected to extend over a long period of time.” Medicare Benefit Policy Manual (MBPM), Ch. 7, Sec. 40.1.1; Coverage for skilled nursing is available so long as the beneficiary requires skilled care for services to be safe and effective, MBPM, Ch. 7, Sec. 40.1.1; and Payment can be made for an unlimited number of covered visits, 42 C.F.R. § 409.48(a)-(b); MBPM, Chapter 7, § 70.1.
With this important caveat, we hope that policymakers will review and act upon the recommendations in the BPC Report. For further information about problems accessing Medicare home health coverage, see, e.g., these Center for Medicare Advocacy resources:
- Home Health – Center for Medicare Advocacy (CMA website)
- New Resource | Home Health FAQs – Center for Medicare Advocacy (Feb 2022)
- CMA Home Health Survey | Medicare Beneficiaries Likely Misinformed and Underserved (medicareadvocacy.org) (Dec 2021)
- Issue Brief | Medicare Home Health Coverage: Reality Conflicts with the Law (April 7, 2021)
- Issue Brief: Medicare Payment vs. Coverage for Home Health & Skilled Nursing Facility Care (March 3, 2020)
- Plans to Address and Resolve the Medicare Home Care Crisis (October 18, 2018)
- Statistical Trends and Published Articles with Studies and Research from 2002-2017 (August 23, 2018)
- The Promise and Failure of Medicare Home Health Coverage (Dec 2016)
The need for additional nurses in nursing homes has led to more discussions about changing federal immigration law to bring new workers to the country. Mark Parkinson, president and CEO of the American Health Care Association, calls for increasing immigration, describing a “mature immigration policy” that “not only would solve our labor problems, we would also reduce our labor costs.”
The nursing home industry has supported increasing immigration as a solution to staffing shortages for many years. On April 19, 2022, the Brookings Institution hosted a webinar entitled “Who will care for aging baby boomers? Immigrants” that presented various views on immigration as one solution to nursing homes’ labor shortages. Delia Furtado, University of Connecticut, Department of Economics, presented findings from her research indicating that immigration improves quality of care in nursing homes – 4% decrease in falls, 33% decrease in restraints, and 20% decrease in pressure ulcers, among other positive effects. She also suggested that hiring immigrants is a less costly way to increase staffing levels than enacting minimum staffing standards or increasing worker wages. Howard Gleckman, Urban Institute, pointed out that 27-28% of aides are immigrants, many workers receive poverty-level wages and are otherwise taken advantage of, and low-paid immigrant workers could drive down workers’ benefits and wages.
Gleckman’s concerns about the exploitation of immigrant workers were vividly exposed more than 15 years ago. In November 2005, 22 Filipino nurses recruited in the Philippines came to New York to work for facilities affiliated with SentosaCare, then a network of 24 facilities with more than 5,000 residents and 5,000 employees. Ten of the nurses left their jobs at Avalon Gardens Rehabilitation and Health Care Center in April 2006, saying that they had poor working conditions and were paid less than they had been promised. In March 2007, the Suffolk County District Attorney indicted the nurses and criminally charged them with endangering the welfare of five chronically ill children on ventilators and one terminally ill man.
In January 2009, a New York State Court four-judge Appellate Division overruled a lower court judge and “unanimously issued a writ of prohibition halting the prosecutions[,] a rare judicial maneuver used when a prosecutor oversteps his powers.” The Appellate Division ruled that the prosecution “violated the 13th Amendment prohibition against ‘involuntary servitude by seeking to impose criminal sanctions upon the nurses for resigning their positions.’” The nurses had not left the facility in mid-shift and no patient was left without care.
Meanwhile, since 2006, SentosaCare had sued at least 30 nurses to enforce a provision in their employment contracts that required the nurses to pay a penalty of $25,000 if they left their employment before the end of the contract term.
In March 2017, Rose Ann Paguirigan, one of the nurses, sued Prompt Nursing Employment Agency, LLC d/b/a Sentosa Services, et al, on behalf of a class of more than 200 Filippino nurses, charging defendants with violating the Trafficking Victims Protection Act (TVPA), 18 U.S.C. §1589, by recruiting more than 350 nurses in the Philippines “to work for the defendants in this District under contracts of indentured servitude.” Federal District Court Judge Nina Gershon denied defendants’ motion to dismiss, certified the class, granted summary judgment to plaintiff class on liability, granted summary judgment on compensatory damages, and, on April 7, 2022, approved a Settlement Agreement requiring defendants to pay the nurses $3,211,305.06 and attorneys’ fees not exceeding $656,432.43.
Changes to federal immigration law could benefit the country in many ways, including nursing home staffing, so long as immigrants and other workers are protected from exploitation. However, addressing the decades-long nurse staffing shortage in nursing homes requires a broader and more comprehensive set of strategies, which must focus on mandating minimum staffing levels, assuring that workers are appropriately trained and treated well, and paying all workers a living wage and benefits.
 James Berklan, “Parkinson offers ‘obvious solution’ to staffing problems, occupancy outlook and financing answers,” McKnight’s Long-Term Care News (Mar. 30, 2022), https://www.mcknights.com/news/parkinson-offers-obvious-solution-to-staffing-occupancy-and-financing/; Alex Zorn, “‘We’ve Got a Real Problem Here’: Parkinson Warns SNF Operators Could Fact Medicare Funding Cuts,” Skilled Nursing News (Mar. 31, 2022), https://skillednursingnews.com/2022/03/weve-got-a-real-problem-here-parkinson-warns-snf-operators-could-face-medicare-funding-cuts/
 See AHCA’s long-time support for immigration: AHCA, “Immigration Reform Will Help Ease Long Term Care Workforce Shortage” (undated), https://www.ahcancal.org/Advocacy/IssueBriefs/Immigration%20Issue%20Brief.pdf; Elizabeth Newman, “AHCA makes push for immigration reform,” McKnight’s Long-Term Care News (Apr. 1, 2013), https://www.mcknights.com/news/ahca-makes-push-for-immigration-reform/ (citing AHCA study reporting 60,000 vacant direct care staff as of 2010). See also AHCA’s other solutions for the workforce crisis: “U.S. Long Term Care Communities Ready to Support Ukrainian, Other Refugees” (Press Release, Mar. 17, 2022), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/U-S–Long-Term-Care-Communities-Ready-to-Support-Ukrainian,-Other-Refugees.aspx
 https://www.brookings.edu/events/who-will-care-for-aging-baby-boomers-immigrants/. The video of the webinar is available at https://www.youtube.com/watch?v=OoPcQQSFunc
 Delia Furtado and Francesc Ortega, “Does Immigration Improve Quality of Care in Nursing Homes?” Institute of Labor Economics, Discussion Paper Series, IZA DP No. 13552 (Jul. 2020), https://ftp.iza.org/dp13552.pdf
 Joseph Berger, “Filipino Nurses, Healers in Trouble,” The New York Times (Jan. 27, 2008), https://www.nytimes.com/2008/01/27/nyregion/nyregionspecial2/27Rnurses.htm
 Joseph Berger, “Suffolk Can’t Prosecute Nurses, Court Rules,” The New York Times (Jan. 23, 2009), https://www.nytimes.com/2009/01/25/nyregion/long-island/25nursesli.html?searchResultPosition=2
 “New York’s largest for-profit SNF operator kept nurses in ‘indentured servitude,’ lawsuit claims,” McKnight’s Long-Term Care News (Mar. 14, 2017), https://www.mcknights.com/news/new-yorks-largest-for-profit-snf-operator-kept-nurses-in-indentured-servitude-lawsuit-claims/
 Paguirigan v. Prompt Nursing Employment Agency LLC d/b/a Sentosa Services, Case 1:17-cv-01302-NH-JO (E.D.N.Y., filed Mar. 7, 2017), https://www.courthousenews.com/wp-content/uploads/2017/03/slave-nurse.pdf
 286 F.Supp.3d 430 (E.D.N.Y. 2017)
 2018 WL 4347799 (E.D.N.Y., Sep. 12, 2018)
 2019 WL 4647648 (E.D.N.Y. Sep. 24, 2019), aff’d in part, appeal dismissed in part, 827 F.App’x 116 (2d Cir. 2020)
 2021 WL 2206738 (E.D.N.Y. Jun. 1, 2021)
 Order Granting Joint Motion for Final Approval of Class Action Settlement, Unopposed Motion for An Award of Attorneys’ Fees and Costs, and Joint Motion to Vacate (Doc. # 185), Case No. 1:17-cv-01302-NG-CLP (E.D.N.Y. Apr. 7, 2022).