- Center for Medicare Advocacy Celebrates the Confirmation of Judge Ketanji Brown Jackson to the Supreme Court
- Commonwealth Fund Blog Series About Medicare Advantage
- National Assistive Technology Awareness Day – Shining a Light on the Value of Technology and Advocacy
- National Academy of Sciences’ Nursing Home Report Continues the Drumbeat for Reforms
- Medicare Coverage of Over-the-Counter COVID Tests
- Limited Equitable Relief for Individuals Facing Difficulties with Part A or B Enrollment and Disenrollment Requests Through Social Security Administration
Center for Medicare Advocacy Celebrates the Confirmation of Judge Ketanji Brown Jackson to the Supreme Court
The Center for Medicare Advocacy applauds today’s confirmation of Judge Ketanji Brown Jackson to the Supreme Court of the United States. We celebrate the historic significance of Judge Jackson as the first Black woman to be elevated to the Court. We also honor Judge Jackson’s distinguished career representing poor people, challenging government action, and serving as a trial court judge, all of which will bring a valuable and much-needed perspective to the Supreme Court. Judge Jackson is exceptionally qualified to serve on the country’s highest court by any standard. As an organization that works to protect the rights of older, disabled, and underserved people, the Center finds especially noteworthy her commitment to “standing up for the constitutional value of representation,” as she stated during her nomination hearing. The Center is thrilled that Judge Jackson will bring her brilliant and compassionate legal mind to bear as the newest associate justice.
Over the last several weeks, the Commonwealth Fund, a private foundation with a mission “to promote a high-performing health care system that achieves better access, improved quality, and greater efficiency, particularly for society’s most vulnerable”, has posted a series of blogs focusing on different aspects of the Medicare Advantage (MA) program: Payment, Risk Adjustment, Choice, Quality, Special Needs Plans and Benefit Design.
One of the most recent posts, for which the Center for Medicare Advocacy was consulted, is titled Taking Stock of Medicare Advantage: Benefit Design (March 31, 2022). While this blog series draws from a number of perspectives about the MA program, including those with which we disagree, they touch on many issues that the Center for Medicare Advocacy has been highlighting, including:
- Payments – “Among the experts we spoke with, there was broad consensus that the payment system creates inefficiencies. While there was less agreement on how to fix it, many pointed to policy changes that could make the payment system more equitable and competitive.”
- Risk Adjustment – Noting that “payments to Medicare Advantage plans continue to be above what CMS spends on comparable beneficiaries in traditional Medicare,” the post includes an examination of “whether the current system fuels overpayments to plans or encourages plans to enroll certain beneficiaries but not others and, if so, what policy changes may be needed to remedy these problems.”
- Choice – “The health economists and Medicare experts we spoke with said choosing among plans can be difficult, even for the savviest consumers.” Further, “the experts agreed that most beneficiaries aren’t making informed or active decisions. Instead, many choose plans based on advertising, word-of-mouth, or brand loyalty, then stay with those plans year after year, even if another plan would better serve their interests.” Among potential remedies, “States or the federal government could substantially enhance beneficiary choice by requiring insurers that sell Medigap policies.”
- Quality – “The quality bonus program in Medicare Advantage is expensive. Since 2015, it has paid out $47.5 billion in additional plan payments, offsetting cuts imposed by the Affordable Care Act.” Further, “Several of the experts we spoke with consider the quality bonuses unjustifiably expensive and ineffective.” In addressing the question “How does Medicare Advantage compare to the traditional, fee-for-service program when it comes to quality of care?” several research topics were proposed, including “the factors driving disenrollment from Medicare Advantage plans as patients become sicker, and how plans’ prior-authorization requirements affect quality of care.”
- Special Needs Plans – “Most of the experts viewed SNPs as a good platform for tailoring care to people’s needs” but they “also agreed not enough is known about whether and how SNPs are customizing care” and that “[m]ore should be done to assess the impact of SNPs on beneficiaries’ health.”
- Benefit Design – Because of flexibility given to MA plans with respect to the type of supplemental benefits they offer and to whom, “determining which plans offer which supplemental benefits and to whom is not easy.” Further, “Despite the out-of-pocket cap, Medicare Advantage enrollees may be exposed to higher costs than in traditional Medicare (e.g., during an extended hospital stay). These costs may not be anticipated or easily determined when enrolling in a Medicare Advantage plan. Some experts wanted to see more standardization in cost-sharing methods to help beneficiaries sort through plan options.” In addition, “Some experts raised concerns about the ubiquity of prior authorization requests, noting they are increasing as more people enroll in Medicare Advantage and are now used even for low-cost services like transportation to medical appointments. […] 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. Some experts wanted to see more regulation — if not an outright ban — on such systems until their validity is established.”
National Assistive Technology Awareness Day – Shining a Light on the Value of Technology and Advocacy
National Assistive Technology Awareness Day was celebrated on April 6th. The awareness day is an opportunity to recognize and honor the critical role that assistive technology plays in helping people with disabilities more equitably participate in broader aspects of society. Assistive Technology (AT) is any item, device, or software that is used to increase, maintain, or improve the independence and functioning of people with disabilities and older adults. These devices are necessities that help to enhance the inclusivity of communities.
National Assistive Technology Day is also a day to commemorate the dedication and effort of committed individuals and organizations who are focused on ensuring equitable access to assistive technology for those who need it. Despite the necessity of these devices, patients have struggled to get Medicare to properly cover payment for AT equipment.
With its mission to advance access to comprehensive Medicare coverage and health equity, the Center for Medicare Advocacy has fought to protect and expand AT coverage for beneficiaries. In 2014, the Center spotted problems with Medicare coverage of Speech Generating Devices (SGDs). Medicare only covered SGDs for in-person speech. This meant all other forms of communication, such as phone, email, or text, were excluded from coverage. Additionally, Medicare changed the payment category for SGDs from purchase to rental, which forced patients to give up their highly personalized speech generating equipment if they needed to go into a facility such as a hospital. The equipment, at best, would be replaced by a generic device provided by the facility.
SGDs are critical communication devices for people who suffer from neurodegenerative diseases like ALS (i.e., Lou Gehrig’s disease), strokes, cerebral palsy, other complex neurological conditions, and injuries or accidents. SGDs give voice to those whose otherwise might not be able to communicate. This equipment, however, is extremely expensive, running about $15,000-$20,000 per device. People unable to get medical coverage or without the financial means to pay out-of-pocket were left stranded. Kathleen Holt, the Center’s Associate Director recalls, “We kept hearing about people who were in hospitals or were not able to talk to their doctors to express their levels of pain,” adding, “… people went into hospice, and they couldn’t tell their loved ones that they loved them before they died. It was heartbreaking.”
Changing laws and regulations, even when those changes seem so fundamental to an equitable and humane existence, can take years or decades. “I remember at the time people were saying ‘You will never fix this. You can’t fix this,’” Holt recounts. The Center mobilized an advocacy and constituency army. The first line of attack was to partner with Steve Gleason, the former NFL player for the New Orleans Saints. Holt notes that he was “like an ace in the pocket.”
Steve was diagnosed with ALS in 2011. The disease left him with only with the ability to move his eyes. Steve communicates his thoughts through assistive technology that is operated by his eye movements.
Building on this relationship with Steve, the next step the advocacy team took was to rally 80 like-minded organizations and organize constituents to reach out to their representatives in Congress to support The Steve Gleason Act. The bill moved coverage of SGDs from the rental payment category to the purchase category – meaning patients could bring their personalized SGDs with them if they needed to go to the hospital or any other care setting. Holt says that to move the needle “You really have to have that kind of coming together of so many individuals and organizations that represent individuals to rise about the noise.” In the case of SGDs, the effort was made a little easier by the compelling need. “I think a lot of issues are so complicated that you lose people in the discussions and then people move on from the issue,” Holt remarks. This issue, however, was clearer cut. “It was an emotional issue. It was a fairness issue,” adding, “… for a while, instead of calling it a speech generating device, we were calling it a communication device because people were using their speech generating devices to email and do social media.”
Another step was to help those in Congress pass the needed legislation by writing a “Dear Colleague” letter that lawmakers could send to other members of Congress to garner support for the bill. The organized outreach to Congress proved effective. “Literally over 200,000 [constituent] letters…all went at the same time to members of Congress,” Holt explains. “The bill got a significant number of cosponsors in rapid time.” The Steve Gleason Act was unanimously passed in both the House of Representatives and the Senate. (A follow-up bill, The Steve Gleason Enduring Voices Act made the original bill’s mandate permanent.) Further, the Centers for Medicare and Medicaid Services published a final National Coverage Determination that authorized Medicare coverage for expanded types of communication beyond speech, such as email, text, and phone messages.
This tremendous achievement, however, represents only a fraction of the needs that people with disabilities and older adults have for Medicare coverage of Assistive Technology. Holt reflects that “If Medicare accepted the fact that we have so many more ways to make quality of life for individuals better, and had a pathway by which to embrace those changes, people would be living better lives now.” Holt notes that the Center for Medicare Advocacy’s nonpartisan, nonprofit positioning provides a unique ability to effect change. “Our only skin in the game is we want life to be better for beneficiaries,” adding, “… people should not have their circumstances in life be changed just because they can’t access the technology or because they don’t have the money to buy it outside of Medicare coverage. I think Medicare should be more inclusive. The mission of the Center for Medicare Advocacy is to help acknowledge and move that access into reality for people.”
The reality is Assistive Technology is both a critical necessity for those living with disabilities and a pathway to building inclusive communities for everyone.
 National Academies of Sciences, Engineering, and Medicine; Health and Medicine Division; Board on Health Care Services; Committee on the Use of Selected Assistive Products and Technologies in Eliminating or Reducing the Effects of Impairments; Flaubert JL, Spicer CM, Jette AM, editors. The Promise of Assistive Technology to Enhance Activity and Work Participation. Washington (DC): National Academies Press (US); 2017 May 9. 7, Coverage for Relevant Products and Technologies. Available from: https://www.ncbi.nlm.nih.gov/books/NBK453296/
 ATAP. National at Awareness Day. (April 5, 2022). Available at: https://ataporg.org/national-at-awareness-day/
 Holt, K. Better Medicare Coverage of Speech Generating Devices. Center for Medicare Advocacy. (August 6, 2015). Available at: https://medicareadvocacy.org/better-medicare-coverage-of-speech-generating-devices/
 Holt, K. Steve Gleason Act Passes in Congress: Center for Medicare Advocacy is Proud to Partner with Team Gleason. Center for Medicare Advocacy. (2015, July 16, 2015). Available at: https://medicareadvocacy.org/steve-gleason-act-passes-in-congress-center-for-medicare-advocacy-is-proud-to-partner-with-team-gleason/
 Team Gleason. Steve’s Story. Team Gleason. (Updated January 15, 2021). Available at: https://teamgleason.org/steve-story/
 Office of Senator Bill Cassidy. Cassidy’s Steve Gleason Act Moves Forward in House: U.S. senator Bill Cassidy of Louisiana. Press Release | Newsroom | U.S. Senator Bill Cassidy of Louisiana. (February 6, 2018). Available at: https://www.cassidy.senate.gov/newsroom/press-releases/cassidys-steve-gleason-act-moves-forward-in-house#:~:text=The%20Steve%20Gleason%20Enduring%20Voices%20Act%20permanently%20fixes%20the%20Centers,introduced%20the%20legislation%20last%20year.
 Holt, K. Better Medicare Coverage of Speech Generating Devices. Center for Medicare Advocacy. (August 6, 2015). Available at: https://medicareadvocacy.org/better-medicare-coverage-of-speech-generating-devices/
Describing “the way in which the United States finances, delivers, and regulates care in nursing homes settings [as] ineffective, inefficient, fragmented, and unstainable,” the National Academy of Sciences, Engineering, and Medicine’s Committee on the Quality of Care in Nursing Homes calls for “immediate action to initiate fundamental change.” The Committee released its report, The National Imperative to Improve Nursing Home Quality; Honoring Our Commitment to Residents, Facility, and Staff, and described its findings and recommendations at a webinar on April 6, 2022. Remarkably, many of the Committee’s findings and recommendations mirror President Biden’s nursing home reform agenda, which was described in a February 28 White House Fact Sheet and announced by the President in his State of the Union address on March 1.
The 605-page report addresses concerns that advocates for residents have been raising for many years – inadequate staffing levels, failure to enforce standards of care, lack of requirements and accountability for how public reimbursement is spent, among others – and proposes specific solutions that advocates have urged. While the Committee recognizes that additional financial resources will likely be required to implement its recommendations, it cautions that
this investment should not be viewed as simply adding more resources to the nursing home sector as it currently operates, because that alone would not likely result in significant improvements. Rather, the committee calls for targeted investments that (combined with current funding) would be inextricably linked to requirements for transparency. Such transparency will enable stronger and more effective oversight to ensure resources are properly allocated to improving the quality of care.
The Committee rejects industry arguments that Medicaid reimbursement is always inadequate, writing, “The lack of transparency or accountability in payment, funds flow, and nursing home finances make it extremely difficult to assess the adequacy of current Medicaid payments.”
Some of the excellent recommendations included in the report’s seven broad goals are:
- Registered nurse(RN) coverage 24 hours per day/seven days per week, “with additional RN coverage that reflects resident census, acuity, case mix, and the professional nursing needs for residents as determined by the residents’ assessments and care plans” (Recommendation 2B, p. 510)
- A study “to identify and rigorously test specific minimum and optimum staffing standards for direct-care staff,” with findings implemented in updated federal and state regulatory requirements (Recommendation 2C, p. 511)
- An increase in minimum training hours for CNAs from 75 to 120 (Recommendation 2F, p. 514)
- “HHS should collect, audit, and make publicly available detailed facility-level data on the finances, operations, and ownership of all nursing homes (e.g., through Medicare and Medicaid cost reports and data from Medicare’s Provider Enrollment, Chain, and Ownership System)” (Recommendation 3A, p. 518)
- “HHs should ensure that accurate and comprehensive data on the finances, operations, and ownership of all nursing homes are available in a real-time, readily usable, and searchable database so that consumers, payers, researchers, and federal and state regulators are able to use the data to:
- “Evaluate and track the quality of care for facilities with common ownership or management company.
- “Assess the impact of nursing home real estate ownership models and related party transactions on the quality of care.” (Recommendation 3B, p. 519)
- “[M]ove toward the establishment of a federal long-term care benefit that would expand access and advance equity for all adults who need long-term care” (Recommendation 4A, p. 520)
- Direct care ratios: “[R]equire a specific percentage of nursing home Medicare and Medicaid payments to be designated to pay for direct-care services for nursing home residents, including staffing (including both the number of staff and their wages and benefits), behavioral health, and clinical care” (Recommendation 4C, p. 522)
Survey and enforcement
- “CMS should ensure that state survey agencies have adequate capacity, organizational structure, and resources to fulfill their current nursing home oversight responsibilities for monitoring, investigation, and enforcement.” (Recommendation 5A, p. 526)
- “Greater use of enforcement remedies beyond civil monetary penalties, including chain-wide corporate integrity agreements, denial of admissions, directed plans of correction, temporary management, and termination from Medicare and Medicaid.” (Recommendation 5B, p. 527)
- “When data on the finances and ownership of nursing homes reveal a pattern of poor quality care across facilities with a common owner (including across state lines), federal and state oversight agencies (e.g., CMS, state licensure and survey agencies, the Department of Justice) should impose oversight and enforcement actions on the owner,” including “Denial of new or renewed licensure,” sanctions, “including the exclusion of individuals and entities from participation in Medicare and Medicaid,” and “strengthened oversight (e.g., through an improved and expanded special focus facilities program.” (Recommendation 5D, p. 529)
 NASEM, The National Imperative to Improve Nursing Home Quality; Honoring Our Commitment to Residents, Facility, and Staff, p. 2 (2022). The report can be downloaded through a link at https://nap.nationalacademies.org/catalog/26526/the-national-imperative-to-improve-nursing-home-quality-honoring-our. NASEM will make the webinar and the PowerPoint used in the webinar available on its website.
 White House, “Protecting Seniors and People with Disabilities by Improving Safety and Quality of Care in the Nation’s Nursing Homes” (Fact Sheet, Feb. 28, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/ . See “Biden Administration Issues Bold and Comprehensive Nursing Home Reform Agenda” (CMA Alert, Mar. 2, 2022).
 NASEM, The National Imperative to Improve Nursing Home Quality; Honoring Our Commitment to Residents, Facility, and Staff, p. 4 (2022).
 Id. 433.
On April 4, 2022, the Centers for Medicare & Medicaid Services (CMS) issued a press release announcing that people with Medicare Part B – including those in Medicare Advantage plans – can get up to eight free over-the-counter COVID-19 tests per month from participating pharmacies and providers for the duration of the current public health emergency (PHE).
As discussed in a previous CMA Alert, in January 2022, the Biden Administration announced that certain private insurance companies and group health plans must cover the cost of over-the-counter, at-home COVID-19 tests. Medicare had been excluded from this requirement. Following pressure from advocates and policymakers urging CMS to find a way to cover such tests for all Medicare beneficiaries, CMS announced on February 3, 2022 that Medicare will cover such tests. CMS’ April 4 press release explains:
This is the first time that Medicare has covered an over-the-counter self-administered test at no cost to beneficiaries. This new initiative enables payment from Medicare directly to participating eligible pharmacies and other health care providers to allow Medicare beneficiaries to receive tests at no cost, in addition to the two sets of four free at-home COVID-19 tests Americans can continue to order from covidtests.gov. National pharmacy chains are participating in this initiative, including: Albertsons Companies, Inc., Costco Pharmacy, CVS, Food Lion, Giant Food, The Giant Company, Hannaford Pharmacies, H-E-B Pharmacy, Hy-Vee Pharmacy, Kroger Family of Pharmacies, Rite Aid Corp., Shop & Stop, Walgreens and Walmart.
In addition to providing links to additional fact sheets, FAQs and other related documents, CMS’ press release states that:
A list of eligible pharmacies and other health care providers that have committed publicly to participate in this initiative can be found here. Because additional eligible pharmacies and health care providers may also participate, people with Medicare should check with their pharmacy or health care provider to find out whether they are participating. The Center for Medicare Advocacy thanks CMS for taking this action to provide free COVID tests to all Medicare beneficiaries.
Limited Equitable Relief for Individuals Facing Difficulties with Part A or B Enrollment and Disenrollment Requests Through Social Security Administration
In recent months, Medicare beneficiaries (or those becoming eligible for Medicare) have reported difficulties in contacting the Social Security Administration (SSA) in order to submit enrollment or disenrollment requests for Part Aor B.
In response to these problems, earlier this week, SSA posted an Emergency Message (available here).
In short, effective April 1, 2022, individuals who were “unable to enroll due to SSA’s telephone issues after January 1, 2022, will be granted additional time, through December 30, 2022, to enroll. […] Given recent technical issues, CMS is providing equitable relief to beneficiaries who could not submit premium-Part A or Part B enrollment or disenrollment requests timely. This relief applies to the 2022 General Enrollment Period (GEP), Initial Enrollment Period (IEP), and Special Enrollment Period (SEP).”
Note that the www.medicare.gov website has also been updated to reflect this change here.