Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert – April 9, 2020

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  1. Medicare Skilled Nursing Facility Coverage, Discharges, and Transfers During the COVID Crisis
  2. CDC’s Report on Coronavirus in a Seattle Nursing Facility: What it Tells Us About Staffing Problems Nationwide; What We Must Do to Address Lessons Learned
  3. Medicare Enrollment & COVID-19
  4. Center for Medicare Advocacy Submits Comments on Proposed Medicare Parts C and D Rule
  5. Frequently Asked Questions about Observation Status Court Decision
  6. Register for the VIRTUAL National Voices of Medicare Summit and Senator Jay Rockefeller Lecture – April 30, 2020

Medicare Skilled Nursing Facility Coverage, Discharges, and Transfers During the COVID Crisis

Skilled nursing facilities (SNFs/nursing homes) often tell residents and families that they are discharging the resident because Medicare will no longer pay for the resident’s stay.  In a previous Alert (Jan. 2016), the Center for Medicare Advocacy explained that Medicare coverage for care and discharge from SNFs are two distinct issues, each with its own set of rules and due process rights.[1]  This Alert provides new information from the Centers for Medicare & Medicaid Services (CMS) related to the coronavirus pandemic and its effects on SNF coverage and discharges. We then discuss longstanding coverage rules, with updated regulatory citations and edits.

  1. New Information

Medicare Coverage

Medicare Part A coverage is now enlarged for some beneficiaries in traditional Medicare.  In light of the pandemic, CMS has waived certain rules for Medicare Part A coverage of SNF stays.  Most relevant here, residents may be able to extend Medicare coverage even if they used their entire 100-day benefit.  In addition, individuals can be admitted to a SNF for a Part A stay without a prior three-day inpatient hospital stay; they can be admitted after a shorter inpatient hospital stay or an observation status hospital stay or even directly from the community if they meet Medicare’s other requirements and need skilled nursing or skilled rehabilitation services.[2]

Moving Patients Within and Between Facilities

In light of the pandemic, CMS is allowing SNFs to move residents within and between facilities without giving them advance notice and appeal rights (discussed below).  However, CMS explicitly states that waivers of advance notice and hearing rights apply only when a SNF is moving residents for purposes of cohorting residents, within a facility or between facilities, during the coronavirus pandemic.[3]  SNFs must follow advance notice and hearing rights in all other situations, as usual.  The Center for Medicare Advocacy is concerned that waiver of resident rights will, in actual practice, extend beyond the permissible justification for cohorting residents.

  1. Medicare SNF Coverage and Appeals

A SNF’s statement that Medicare will not cover a resident’s continued stay is only a statement by the facility, not a formal Medicare decision.  A resident has the right to have the Medicare program decide whether his or her stay is covered or not.  Two types of appeals are available: the expedited appeal process, which is intended to keep Medicare-covered services in place without interruption, and the standard appeal, which authorizes a resident to seek Medicare payment for covered services that were provided.  These two types of appeals have different notices and residents are entitled to receive both.[4]

Expedited Appeal, 42 C.F.R. §405.1202

The purpose of an expedited appeal is to keep services in place.  The SNF must give notice to the beneficiary at least two days prior to termination of all Part A services when the beneficiary still has days left in the benefit period,[5] using the Notice of Medicare Non-Coverage, Form CMS-10123, to inform the beneficiary of how to request an expedited redetermination and, if the beneficiary seeks an expedited determination, the Detailed Explanation of Non-Coverage (DENC), Form CMS-10124.[6]

In order to request an expedited appeal, the resident or family must call the Beneficiary and Family Centered Care Quality Improvement Organization (BFCC-QIO), by no later than noon the following day.[7]  The beneficiary has the right to submit evidence to the BFCC-QIO. There are two BFCC-QIOs serving different parts of the country – KEPRO[8] and Livanta.[9]

Medicare-covered care continues until the day of discharge identified in the SNF notice, unless the BFCC-QIO reverses the SNF’s determination.[10]

If the SNF does not provide timely information to the BFCC-QIO, it may be financially responsible for providing covered care to the beneficiary.[11]  If the BFCC-QIO finds that the SNF’s notice was not valid, coverage continues until at least two days after valid notice is provided.[12] The burden of proof is on the SNF to prove that termination of Medicare coverage  was correct.[13]

When the BFCC-QIO notifies the SNF that a beneficiary has initiated an expedited appeal, the SNF must send a detailed notice, the DENC, to the beneficiary by the close of the business day. This notice must include:

  • “A specific and detailed explanation why services are either no longer reasonable and necessary or are no longer covered.”[14]
  • “A description of any applicable Medicare coverage rule, instruction, or other Medicare policy,” with citations.[15]
  • “Facts specific to the beneficiary and relevant to the coverage determination . . . .”[16]

The SNF must also provide the BFCC-QIO with the information it needs[17] and, at the beneficiary’s request, must provide the beneficiary with a copy of, or access to, information it provided to the BFCC-QIO.[18]

The BFCC-QIO must:

  • Determine whether the SNF notice was valid;
  • Examine records submitted by the SNF;
  • Solicit the views of the beneficiary who requested the expedited hearing;
  • Provide an opportunity for the provider/practitioner to explain why termination of services was appropriate; and
  • Within 72 hours, notify the beneficiary, the beneficiary’s physician, and the SNF of its determination.[19]

The BFCC-QIO must inform the beneficiary of its decision within 72 hours.  Telephone notification, while permitted, must be followed by written notification describing the rationale for the decision, an explanation of the Medicare payment consequences, and information about how to request Reconsideration (the next level of appeal).[20]

A beneficiary is unlikely to prevail in any appeal without strong physician support. A physician letter providing detailed, specific, and personal information about the beneficiary and the reasons why continued coverage is medically necessary is most helpful.  If the basis for the SNF’s decision is its contention that the beneficiary “plateaued” or is unlikely to improve further, the beneficiary should bring to the BFCC-QIO’s attention that this basis for “discharge” is prohibited under the settlement in Jimmo v. Sebelius.[21]  Jimmo confirms that Medicare pays for care for a beneficiary who needs professional nursing or therapy services, or both, to maintain function or to prevent or slow the beneficiary’s decline or deterioration.[22]  Services cannot be discontinued for lack of improvement in most cases. The settlement applies nationwide to SNFs, home health, and outpatient therapy (physical, occupational, and speech therapy).

The next level of Expedited Appeal is the Reconsideration which is handles by the Qualified Independent Contractor (QIC). See, 42 C.F.R. §405.1204). The Reconsideration has similar procedures to the Expedited review by the BFCC-QIO.  The beneficiary may request up to 14 days’ additional time.[23]  However, if the QIC grants additional time, it is not required to inform the beneficiary, physician, and provider of its decision within 72 hours, as otherwise required for expedited reconsideration.[24]

Standard Appeal

As a result of the May 1989 settlement in Sarrassat v. Bowen,[25] a SNF must give the beneficiary written notice when it makes a determination that Medicare will not pay for the beneficiary’s care.  This notice, a SNF Advance Beneficiary Notice (SNF ABN, form CMS-10055),[26] may be given at the initiation, reduction, or, as relevant for this discussion, termination of Part A-covered care in traditional Medicare for level of care reasons.  The SNF must file the claim with Medicare when requested by a beneficiary, and may not charge the resident for Part A services until CMS makes an initial determination.[27]

In 2009, CMS clarified that the SNF ABN is separate from the notices required in expedited appeals and that a SNF must give the resident the SNF ABN (in 2009, a CMS Denial Letter could be used instead of the SNF ABN) to “fulfill the provider’s obligation to advise the beneficiary of potential liability for payment.”[28]  If the SNF fails to provide this notice to the beneficiary, it may not shift the costs of care to the beneficiary.[29]

  1. Transfer and Discharge, Nursing Home Reform Law

The federal Nursing Home Reform Law (1987) provides that a SNF (or nursing facility[30]) must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless –

(i) The transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility;

(ii) The transfer or discharge is appropriate because the resident’s health has improved sufficiently so [that] the resident no longer needs the services provided by the facility;

(iii) The safety of individuals in the facility is endangered;

(iv) The health of individuals in the facility would otherwise be endangered;

(v) The resident has failed, after reasonable and appropriate notice, to pay…for a stay at the facility; or

(vi) The facility ceases to operate.[31]

The regulations closely track the language of the law.  42 C.F.R. §483.15(c).

The SNF must give the resident advance written notice of its intention to transfer or discharge the resident.[32]  The notice must explain the reason for the proposed transfer or discharge,[33] advise the resident of the right to a state hearing to contest the transfer or discharge,[34] and provide the name, mailing address, and telephone number of the State long-term care ombudsman.[35]  If the resident has resided in the facility for 30 or more days, the SNF must generally give the resident 30 days’ advance written notice of the transfer or discharge.[36]

SNFs must also conduct “sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.”[37]

If Medicare does not pay for a resident’s stay, the resident must have another source of payment, typically out-of-pocket payments or Medicaid.

Note: New Clarification from CMS:  The 2016 revised Requirements of Participation strengthen resident protections.  They confirm that a resident may not be transferred while an appeal is pending[38] and clarify that “Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay.”[39] The rules prohibit the discharge of a resident from a facility while a Medicaid application is pending.

Conclusion

Medicare notice and appeal issues are confusing and complex. The key points are that Medicare beneficiaries are entitled to have Medicare, not the facility, determine whether the beneficiary’s care is covered by Medicare; a SNF must give a beneficiary the proper notices (in expedited and standard appeals) and must provide information to the BFCC-QIO (in expedited appeals) or else it is responsible for the costs of the beneficiary’s care; and even if Medicare does not pay for the care, a resident has the right to remain in the SNF (if the resident has another source of payment).

The coronavirus pandemic has led CMS to waive certain advance notice and hearing rights established by the Nursing Home Reform Law, but only when the purpose is to cohort residents during the pandemic. For other reasons, facilities must continue to provide advanced written notice and hearing rights to residents.

Advocates are asking CMS to prohibit involuntary transfers for all other reasons. To date, CMS has not responded to this request.

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[1] CMA, “‘Discharge’ from a Skilled Nursing Facility: What Does it Mean and What Rights Does a Resident Have?” (CMA Alert, Jan. 13, 2016), https://www.medicareadvocacy.org/discharge-from-a-skilled-nursing-facility-what-does-it-mean-and-what-rights-does-a-resident-have/
[2] CMS, “COVID-19 Emergency Declaration Health Care Providers Fact Sheet,” https://www.cms.gov/files/document/covid19-emergency-declaration-health-care-providers-fact-sheet.pdf.
[3] CMS, “Long Term Care Facilities (Skilled Nursing and/or Nursing Facilities: CMS Flexibilities to Right COVID-19” (Mar. 28, 2020), https://www.cms.gov/files/document/covid-long-term-care-facilities.pdf (consistent with CDC guidelines, CMS waives certain requirements at 42 C.F.R. §§483.10, 483.15, and 483.21 “to allow a long term care (LTC) facility to move residents within a facility, or transfer resident(s) to another LTC facility solely for the purposes of cohorting and separating residents with and without COVID-19.”
[4] CMS, “Survey and Certification Issues Related to Liability Notices and Beneficiary Appeal Rights in Nursing Homes,” S&C-09-20 (Jan. 9, 2009), http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/SCLetter09-20.pdf.  See also Center, “CMS Clarifies When the Advance Beneficiary Notice of Non-Coverage (ABN) Must Be Issued,” (Weekly Alert, Aug. 16, 2012), https://www.medicareadvocacy.org/cms-clarifies-when-the-advance-beneficiary-notice-of-non-coverage-abn-must-be-issued/.
[5] A different notice – a Notice of Exclusions from Medicare Benefits, SNF NEMB, CMS Form 20014 – may be used by a SNF (although its use is not required by CMS) if the beneficiary has no days left in the benefit period.  CMS Form 20014 is at https://www.cms.gov/Medicare/Medicare-General-Information/BNI/Downloads/CMS20014.pdf.
[6] Both forms are available at https://www.cms.gov/Medicare/Medicare-General-Information/BNI/MAEDNotices.
[7] 42 C.F.R. §405.1202(b)(1).
[8] https://www.keproqio.com.
[9] https://www.livantaqio.com/en.
[10] 42 C.F.R. §405.1202(c).
[11] 42 C.F.R. §405.1202(c), (e)(7).
[12] 42 C.F.R. §405.1202(c).
[13] 42 C.F.R. §405.1202(d).
[14] 42 C.F.R. §405.1202(f)(1)(i).
[15] 42 C.F.R. §405.1202(f)(1)(ii).
[16] 42 C.F.R. §405.1202(f)(1)(iii).
[17] 42 C.F.R. §405.1202(f)(2).
[18] 42 C.F.R. §405.1202(f)(3).
[19] 42 C.F.R. §405.1202(e)(1)-(8).
[20] 42 C.F.R. §405.1202(e)(8)(i)-(iii).
[21] See the Center for Medicare Advocacy’s extensive materials on Jimmo, at https://www.medicareadvocacy.org/?s=Jimmo&op.x=0&op.y=0, including a toolkit, https://www.medicareadvocacy.org/wp-content/uploads/2018/01/Medicare%20SNF%20Coverage%20and%20Jimmo%20v.%20Sebelius%20Toolkit.pdf, and other self-help materials, https://www.medicareadvocacy.org/self-help-packet-for-expedited-skilled-nursing-facility-appeals-including-improvement-standard-denials/.
[22] Jimmo v. Sebelius, Civil Action No. 5:11-CV-17-CR, IX.6 (D. Vt. Jan 24, 2013).  See CMS’s website on Jimmo, https://www.cms.gov/Center/Special-Topic/Jimmo-Center.
[23] 42 C.F.R. §405.1204(c)(6) (additional time), §405.1204(c)(3).
[24] 42 C.F.R. §405.1204(c)(3).
[25] 1989 WL 208444 (N.D. Cal. May 17, 1989).
[26] https://www.cms.gov/Medicare/Medicare-General-Information/BNI/FFS-SNF-ABN- (form CMS 10055 available in the download section).
[27] Sarrassat v. Bowen, 1989 WL 208444 (N,D. Cal. May 17, 1989).
[28] CMS, “Survey and Certification Issues Related to Liability Notices and Beneficiary Appeal Rights in Nursing Homes,” S&C-09-20 (Jan. 9, 2009), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/SCLetter09-20.pdf.
[29] Sarrassat v. Bowen, 1989 WL 208444 (N,D. Cal. May 17, 1989).
[30] Nursing facility is the term used by the Medicaid program.
[31] 42 U.S.C. §1395i-3(c)(2)(A)(i)-(vi); the Medicaid law is identical, 42 U.S.C. §1396r(c)(2)(A)(i)-(vi).
[32] 42 U.S.C. §1395i-3(c)(2)(B)(i)-(iii); 42 C.F.R. §483.15(c)(3)(i).
[33] 42 U.S.C. §1395i-3(c)(2)(B)(i)(I); 42 C.F.R. §483.15(c)(5)(i).
[34] 42 U.S.C. §1395i-3(c)(2)(B)(iii)(I); 42 C.F.R. §483.15(c)(5)(iv).
[35] 42 U.S.C. §1395i-3(c)(2)(B)(iii)(II); 42 C.F.R. §483.15(c)(5)(v).
[36] 42 U.S.C. §1395i-3(c)(2)(B)(ii); 42 C.F.R. §§483.15(c)(4)(i), 483.15(c)(4)(i).
[37] 42 U.S.C. §1395i-3(c)(2)(c); 42 C.F.R. §483.15(c)(7).
[38] 42 C.F.R. §483.15(c)(1)(ii).
[39] 42 C.F.R. §483.15(c)(1)(E).

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CDC’s Report on Coronavirus in a Seattle Nursing Facility: What it Tells Us About Staffing Problems Nationwide; What We Must Do to Address Lessons Learned

The Centers for Disease Control and Prevention’s (CDC) Morbidity and Mortality Weekly Report for March 18, 2020 describes, as of March 9, coronavirus and the Life Care Center at Kirkland (Washington State): “Introduction of COVID-19 into a long-term residential care facility in Washington resulted in cases among 81 residents, 34 staff members, and 14 visitors; 23 persons died.”[1]  The CDC reports, “Limitations in effective infection control and prevention and staff members working in multiple facilities contributed to intra- and interfacility spread.”

The Center for Medicare Advocacy has written before about problems with inadequate staffing, infection control, and prevention in skilled nursing facilities.[2]  This Alert focuses on the second issue identified by CDC – staff members working in multiple nursing facilities – and the implications for public policy, moving forward after the coronavirus abates as the health care crisis it is today.

Why Nursing Home Workers Work Multiple Jobs

Staff members work in multiple facilities because they do not earn enough money at one facility to support themselves and their families.  (Minimum wage salaries also lead staff members to work two consecutive shifts at facilities.)  The lack of paid medical leave for many low-income workers also means that people go to work when they are sick.  If they do not work, they do not get paid. With low wages, most lack enough savings to fall back on if they are sick and not paid.

The coronavirus pandemic brings dramatically into view the problem of allowing facilities to pay workers inadequate wages and to give them inadequate benefits.  This is a national scandal, calling for a national solution, when most of the payments that facilities receive for providing care to residents come from federal payment programs, chiefly Medicare and Medicaid.

Studies of Nursing Home Workers’ Poverty-Level Wages and Reliance on Public Programs

The Paraprofessional Healthcare Institute (PHI) has written about the poverty of many people in the direct care workforce for many years.

In a 2016 report,[3] PHI reported that nurse aides, who provide most of the direct care in nursing facilities, earn “near-poverty wages.”[4]  Nationwide, the median wage was $11.51 per hour, an annual salary of $19,000.[5]  Half of direct care workers earned even less.  Nearly 20% of workers lived in households below the federal poverty line.[6]  More than a third of them (38%) relied on various public benefits, including public assistance, Medicaid, food stamps, and cash assistance.[7]  Adjusted for inflation, workers’ wages had “decreased by 7 percent over the last decade.”[8]  Since most of the nurse aides are female (91%) and non-white (53%), gender and race contribute to the marginalized nature of the direct care workforce.[9]

A 2015 report by Pennsylvania’s Keystone Research Center, Nursing Home Jobs that Pay, brought attention to the extensive public subsidies received by the nursing home industry in Pennsylvania and how raising the lowest-paid workers’ wages to $15 per hour would improve workers’ lives, boost state and local tax revenues, and improve care for residents by reducing staff turnover and absenteeism.[10]

Keystone reported that 14,487 nursing home employees in Pennsylvania, nearly one-third of workers earning less than $15 per hour, received assistance from Medicaid or the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), or both, at an estimated annual cost to taxpayers of $118 million.[11]  These estimates of public subsidies did not include other public benefits that low-paid nursing home workers may also receive, such as “subsidized child care, heating assistance, and food banks,” and subsidized housing.[12]

The Keystone Report demonstrated, on a county-by-county basis, how raising wages for nearly 50,000 low-wage nursing home workers would bring $311 million into the Pennsylvania economy.[13]

What Must Be Done

First, policy-makers must recognize and acknowledge that federal and state payments to the nursing home industry go far beyond Medicare and Medicaid reimbursement for care and services provided to nursing home residents.  Federal and state governments subsidize the nursing home industry with billions of dollars on public benefits that low-paid nursing home workers receive – Medicaid, Food Stamps, housing subsidies, child care subsidies, and more.

Next, policy-makers must take action to ensure that nursing facilities pay a living wage with their existing reimbursement.  One approach was proposed in Pennsylvania.

Legislation introduced in Pennsylvania in 2015, but not passed called for ending hidden public subsidies to the nursing home industry.  The Nursing Home Accountability Act would have created a Nursing Facility Living Wage Certification program and imposed a penalty on each nursing facility whose employees received public assistance, with the amount of the penalty based on the “actual cost of providing public assistance to each covered employee for the most recent fiscal year.”[14] The Pennsylvania Bill should be a model for national legislation.

Pennsylvania Bill: Nursing Home Accountability Act (House Bill 1449[15] (Rep. Ed Gainey) and Senate Bill 1057[16] (Sen. Daylin Leach)) offered a legislative approach for requiring the nursing home industry to pay for the health insurance for its workers, instead of shifting the costs to taxpayers. Among the “Findings and Declarations” in the Bill are that:

  • “Nursing facilities are predominately taxpayer-funded through reimbursements from the medical assistance program and Medicare program”[17]
  • “Taxpayers should not subsidize nursing facilities to reap profits while many of their employees are living in poverty.”[18]

The Pennsylvania Department of Labor and Industry reports, “the average wage for nurse assistants is $13.39 and the average wage for dietary and housekeeping employees is $9.81.”[19]

  • PathWays PA, a not-for profit Pennsylvania organization that provides services and advocacy for women, children, and families,[20] finds, “a wage of $15 per hour would meet the sufficiency standard for many, but not all, counties of this Commonwealth for an employee with one child to provide for the employee and child without the need for public assistance.”[21]
  • “A worker who faces low wages or part-time work, or both, is too often eligible for taxpayer-funded medical assistance instead of affordable, employer-based coverage. Controlling health care costs can be more readily achieved if a greater share of working people and their families have health benefits so that cost shifting is minimized.”[22]

Accordingly, the proposed Pennsylvania Nursing Home Accountability Act had four purposes, to:

  1. Create a living wage certification program for each nursing facility that provides a base hourly wage of $15 per hour for each directly employed or subcontracted employee of the nursing facility.
  2. Encourage the provision of a living wage to each nursing facility employee by providing information to each nursing facility resident and the public on the wage rate paid to the employees of the nursing facility.
  3. Ensure that each nursing facility pay a nursing facility employer responsibility penalty for health coverage received by each employee of the nursing facility through the medical assistance program and another public assistance program that is fully or partially funded with funds from the Commonwealth, with that penalty based on the costs incurred by the Commonwealth for providing these benefits to the employee of the nursing facility.
  4. Ensure that each nursing facility employee who receives public assistance is protected from possible retaliation by the nursing facility for seeking or obtaining that assistance.[23]

There were two key components of the legislation:

  1. Nursing Facility Living Wage Certification program “requires each facility participating in the Medicaid program to report” information,[24] in a verifiable and auditable form,[25] about the minimum base hourly wage paid for each job classification and the number of employees in each classification.  The Department of Public Health will give a “living wage certification” to each facility whose wages meet the living wage certification standard,[26] which is defined as $15 as a base hourly wage, adjusted annually.[27]
  2. Nursing Facility Employer Responsibility Penalty imposes a penalty on each facility whose employees are receiving public assistance, with the amount of the penalty based on the “actual cost of providing public assistance to each covered employee for the most recent fiscal year.”[28] The Bill authorizes limited administrative appeals: facilities can “only challenge whether the Department correctly determined the number of covered employees that are the subject of the penalty.”[29]  The Department of Human Services can deduct any unpaid penalty and interest from Medicaid payments that are otherwise due the facility[30] and the Department of Health can refuse to renew the license of a facility that has not paid the penalties and interest or agreed with the Department on a plan of installment payments.[31]  The Bill provides for interest payments;[32] prohibits practices that designate employees as independent contractors, prohibit employees from enrolling in public assistance, or discriminate against employees enrolled in public assistance;[33] and provides for employee remedies.[34]

Conclusion

The nursing home industry is a multi-billion dollar industry, with most of the reimbursement coming from the federal and state governments through the Medicare and Medicaid programs.

Keystone Research Center’s Executive Director and report author, Stephen Hertzneberg, said, “The nursing home industry can afford to raise wages.  It is time for public officials to demand an end to the corporate welfare we are giving the industry.”[35]  As the Pennsylvania Nursing Home Accountability Act expressly declares, “Taxpayers should not subsidize nursing facilities to reap profits while many of their employees are living in poverty.”[36]

As our experience with the coronavirus shows us, all people are affected by a pandemic. Similarly, one person can inadvertently lead to the spreading of a virus throughout a facility and community.

The United States recognized the need for health care for everyone in the Families First Coronavirus Response Act,[37] which requires emergency paid sick leave and paid family and medical leave for certain workers during the coronavirus pandemic and national emergency (although health care providers have special rules and may exempt employees[38]).

But what about afterwards?  Policies for paid sick need to be both universal and permanent.  And all workers need a living wage.

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[1] McMichael TM, Clark S, Pogosjans S, et al. COVID-19 in a Long-Term Care Facility — King County, Washington, February 27–March 9, 2020. MMWR Morb Mortal Wkly Rep. ePub: 18 March 2020. DOI: http://dx.doi.org/10.15585/mmwr.mm6912e1external icon.
[2]  CMS, “Nursing Home Requirements of Participation: Will the Administration Overturn 2016 Rules for Infection Control?” (Alert, Apr. 11, 2019), https://www.medicareadvocacy.org/nursing-home-requirements-of-participation-will-the-administration-overturn-2016-rules-for-infection-control/.
[3] In a 2016 report, Raise the Floor: Quality Nursing Home Care Depends on Quality Jobs (April 2016), https://phinational.org/sites/default/files/research-report/phi-raisethefloor-201604012.pdf [hereafter, PHI, Raise the Floor].  The Center for Medicare Advocacy discussed the report and its recommendation at “Improving Quality of Care for Nursing Home Resident by Improving Wages, Benefits, Training and Working Conditions for Nurse Aides” (CMA Alert, Apr. 14, 2016), https://www.medicareadvocacy.org/improving-quality-of-care-for-nursing-home-residents-improve-wages-benefits-training-and-working-conditions-for-nurse-aides/.
[4] PHI, Raise the Floor, supra note 3, at 6.
[5] Id. 7.
[6] Id. 7.
[7] Id. 8.
[8] Id. 3.
[9] Id. 13.
[10] Keystone Research Center, Nursing Home Jobs that Pay (Nov. 2015), http://keystoneresearch.org/sites/default/files/201511_NHFollowUp_FINAL.pdf.  The report is discussed in CMA, “The Public Cost of Low-Wage Nursing Home Jobs: Pennsylvania Proposals to Stop Hidden Public Subsidies to Nursing Home Industry” (Alert, Dec. 23, 2015), https://www.medicareadvocacy.org/the-public-cost-of-low-wage-nursing-home-jobs-pennsylvania-proposals-to-stop-hidden-public-subsidies-to-nursing-home-industry/.
[11] Keystone, Nursing Home Jobs that Pay, supra note 10, 4.
[12] Id. 5.
[13] Id. 5-7.
[14]http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2015&sessInd=0&billBody=H&billTyp=B&billNbr=1449&pn=2039 [hereafter Nursing Home Accountability Act]. The bill is discussed in CMA, “The Public Cost of Low-Wage Nursing Home Jobs: Pennsylvania Proposals to Stop Hidden Public Subsidies to Nursing Home Industry” (Alert, Dec. 23, 2015), https://www.medicareadvocacy.org/the-public-cost-of-low-wage-nursing-home-jobs-pennsylvania-proposals-to-stop-hidden-public-subsidies-to-nursing-home-industry/.
[15] https://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2015&sessInd=0&billBody=H&billTyp=B&billNbr=1449&pn=2039.
[16] https://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2015&sessInd=0&billBody=S&billTyp=B&billNbr=1057&pn=1397.
[17] Nursing Home Accountability Act, supra note 14, §102(6).
[18] §102(3).
[19] §102(6).
[20] https://pathwayspa.org/.
[21] Nursing Home Accountability Act, supra note 14, §102(6).
[22] §102(11).
[23] §103.
[24] §201(a)(1)-(3).
[25] §201(b).
[26] §§202(b), 203.
[27] §104.
[28] §303(b)(1). See also §303(b)(2).
[29] §307(b).
[30] §303(g).
[31] §303(h)(2).
[32] §303(e).
[33] §305.
[34] §306.
[35] Keystone Research Center, “New Report Reveals Impact of Pa. Nursing Home Industry’s Poverty Wages” (News Release, Nov. 5, 2015), https://www.keystoneresearch.org/nursinghomewagespresser.
[36] Nursing Home Accountability Act, supra note 14, §103(3).
[37] Pub. L 116-127 (Mar. 18, 2020), https://www.congress.gov/116/plaws/publ127/PLAW-116publ127.pdf.
[38] Department of Labor, Families First Coronavirus Response Act: Employee Paid Leave Rights, footnote 2,  https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave#_ftn2.

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Medicare Enrollment & COVID-19

Information about enrolling in Medicare is particularly important during the COVID crisis. The following information is taken from the Social Security COVID-19 webpage, updated April 6, 2020, under the Subheading “Can I Enroll in Medicare?”

Enrolling online is the easiest way to apply for Medicare Part A (Hospital Insurance) or for Extra Help with Medicare prescription drug program costs, if you qualify.

If you are applying for Medicare Part A for the first time, our online application provides you the option to enroll in Medicare Part B (Supplemental Medical Insurance) or opt out of Part B coverage.

If you are already enrolled in Medicare Part A and you are interested in enrolling in Part B, you cannot use our online application. Please mail your completed application, CMS-40B, Application for Enrollment in Medicare – Part B (Medical Insurance) to your local Social Security field office. If you are applying for Medicare Part B due to a loss of employment or group health coverage, you will also need to complete form CMS-L564 (Request for Employment Information).

We are working with the Centers for Medicare and Medicaid Services (CMS) to offer relief from certain requirements and timeframes for Medicare Part B.

To ensure we can timely process your request, please complete the CMS-L564 as follows:

      • Complete Section A and Section B of the form; and
        • Normally your employer would complete Section B, however CMS has waived this requirement during the COVID-19 pandemic.
      • Submit proof of employment, Group Health Plan (GHP), or Large Group Health Plan (LGHP).

Although our offices are closed to the public for in-person service, we are still processing requests received by mail. You can find the address to your local office using our Social Security Office Locator. You can also call your local office with questions. You can find the phone number for your local office under “Additional Office Information.”

How long does it take from the time SSA receives my forms until the time I have coverage?

It can take up to 21 days to process your application. If you are applying for Medicare Part B due to a recent loss in employment or group health coverage, your medical coverage is effective the month following the date we receive your request to enroll.

For further information on Medicare Enrollment and more, including telehealth and other programs, watch The Center for Medicare Advocacy’s recorded webinar,
Medicare & Health Care Updates In Light of COVID-19.
Login to view at: https://attendee.gotowebinar.com/recording/5460751293739913997.

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Center for Medicare Advocacy Submits Comments on Proposed Medicare Parts C and D Rule

On February 18, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule entitled Medicare and Medicaid Programs; Contract Year 2021 and 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly (CMS-4190-P).

The proposed rule touches on a range of issues relating to the Medicare Advantage (MA) and Part D prescription drug programs, including an effort to put into regulation, or codify, sub-regulatory rules and guidance previously issued by CMS. On April 6, 2020, the Center for Medicare Advocacy submitted comments to the proposed rule. The Center’s comments included:

  • General support for a proposal that would limit Dual-Eligible Special Needs Plans (D-SNP) “look-alikes,” but called for more strict enforcement measures;
  • General support for proposals to update MA and Part D quality rating measures;
  • Opposition to creating a new Part D specialty tier for high cost drugs;
  • Opposition to proposals to allow MA plans to alter and increase cost-sharing for certain services based upon variable out-of-pocket limits;
  • Opposition to proposals to weaken MA plan network adequacy requirements;
  • Opposition to codifying MA and Part D marketing guidelines without adding back in consumer protections that were removed in 2019;
  • General support for codifying special enrollment periods (SEPs), but called for specifically referencing Medicare Plan Finder errors and a call for new SEPs.

The Center for Medicare Advocacy’s full comments are available here.

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Frequently Asked Questions about Observation Status Court Decision

On March 24, 2020, a federal court issued a decision in a nationwide class action, Alexander v. Azar, finding that certain Medicare beneficiaries who are admitted as “inpatients” and then changed to “observation status” at hospitals have the right to appeal to Medicare to challenge that status.

The Center has posted answers to frequently asked questions about the decision here, including why the issue is significant, who gained the right to appeal under the court’s decision, and who may wish to appeal once a process is established.

Note that we do not yet know when CMS will establish a process for appeals of observation status. Please check the Center for Medicare Advocacy’s website for further updates and sign up for our Alerts to receive news about significant developments in the case.

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

Because of the need for social distancing brought about by COVID-19, the Center for Medicare Advocacy altered plans for our National Voices of Medicare Summit and Sen. Jay Rockefeller Lecture. This year we will provide a Virtual Summit on April 30, 2020. We are grateful to the 2020 Sen. Jay Rockefeller lecturer, Wendell Potter, and the many other experts who have agreed to present remotely. The Center will also provide a free follow-up webinar for Summit registrants on May 20, 2020.

These events support the work of the Center for Medicare Advocacy.
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 EDT- 4:00 PM EDT

Registration includes free Follow-up Webinar on May 20, 2020 2 – 3 PM EDT

Single Registration for Both Programs: $150

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 the talk about a Medicare for All, the 2020 Virtual Summit will focus on the promise, challenges to, and future of Medicare and health care.

Medicare’s Promise and Challenges – From Inception, Expansion, Privatization, and Beyond

Cathy Hurwit, Former Chief of Staff, Rep. Jan Schakowsky and Tricia Neuman, Sr. V.P. & Director, Medicare Policy, Kaiser Family Foundation, and Judy Stein, Founder and Executive Director, Center for Medicare Advocacy. The presenters will discuss the history of Medicare, increasing privatization, where it stands now, what we should look for in the future, and the challenges to providing access to Medicare, quality health coverage, and care. In addition, they will consider: What have we learned from the COVID crisis? How can we apply those lessons going forward?

Senator Jay Rockefeller Lecture – How Has Health Insurance Served Us?

Wendell Potter, former insurance company executive, current author and health care reform advocate, will discuss his perspectives about private insurance, Medicare and Medicare Advantage – with a focus on the fallacy of “choice” in insurance. He will recount his journey from private insurance insider to an advocate for a public plan for all. Moderated by Judy Feder, Professor of Public Policy, Georgetown University, Chair, Center for Medicare Advocacy Board of Directors. Sen. Jay Rockefeller, will introduce Mr. Potter.

Media – Coverage and Concerns

Moderated by Center for Medicare Advocacy Associate Director, attorney David Lipschutz, this session will provide insight from health care journalists Trudy Lieberman, Mark Miller, and Susan Jaffe about the importance and challenges of covering Medicare and health care issues, particularly in light of the current COVID-19 crisis. The journalists will discuss some of the key health and Medicare related issues they have covered, why this journalism is so important, and why, with the exception of the deluge of COVID-related issues, such reporting has been sparse – especially about Medicare and Medicare Advantage. We also hope to obtain hints about how to gain journalists’ attention about critical concerns.

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

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