CMA Alert | August 25, 2022

New from the Center: Form to Contest Multiple Medicare Denials Issued by Medicare Advantage Plans

During the past year, the Center for Medicare Advocacy has received an alarming increase in complaints from Medicare Advantage enrollees who, despite requiring skilled nursing facility (“SNF”) care, receive Notices of Medicare Non-Coverage (“NOMNCs”) stating that their Medicare Advantage plan has decided to terminate coverage of their SNF care.  Although these patients frequently win expedited appeals of the Medicare coverage denials, their Medicare Advantage plans often respond by issuing a new NOMNC within several days after losing the first appeal, essentially starting the coverage denial process over again and forcing enrollees and their families to respond to a barrage of routine coverage denials. These denials conflict with the opinions of the beneficiaries’ providers, the skilled nursing and/or skilled therapy required, and the total condition of the patient. Discharge plans are rarely in place.

Although there is no appeal process to prevent MA Plans from issuing these routine NOMNCs, we want to assist enrollees and their families in challenging the practice. One way for Medicare Advantage enrollees to push back against this spike in improper and harassing denials of Medicare coverage is to file a formal complaint with the plan, known as a Grievance. The Center has drafted a Grievance form, that can be filed with a plan that issues inaccurate and repetitive NOMNCs.  After receiving a properly completed Grievance, an MA Plan must respond in writing and complete certain reporting requirements to CMS pursuant to federal regulations. 

Additionally, we encourage enrollees who file grievances with their plans to send copies of the Grievances to their state and federal representatives and to the Center for Medicare Advocacy.

• Download the form and instructions at https://medicareadvocacy.org/wp-content/uploads/2022/08/MA-Grievance-Form.docx

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Wheelchair Seat Elevation Systems Should be Covered by Medicare

Show Your Support at www.rise4access.org to Advocate for Coverage, Register for Updates, and/or Sign the Coverage Petition

Visitors to the lobby of the Christopher and Dana Reeve Foundation headquarters have been greeted by the powerful sight of Christopher Reeve’s wheelchair which he used following a horse-riding accident that left him living with paralysis. Although Christopher Reeve died in 2004, it strikes an observer of his wheelchair, seemingly high-tech at that time, how functionally limiting his wheelchair options were. Today’s wheelchairs, with proven technological advancements, have greater potential to improve the health, safety, and quality of life of individuals who have access to wheelchair advancements. Unfortunately, Medicare coverage has not kept up with the reasonable needs of many individuals who depend on wheelchairs and to whom access to critical technological functionality has been unfairly denied.

Seat elevation is one of the technological advancements in wheelchair design that is integral to maximum functioning for certain beneficiaries. A wheelchair system, also referred to by the Centers for Medicare and Medicaid Services (CMS) as an “accessory” to a wheelchair frame, seat elevation allows individuals with certain medical needs who use wheelchairs to achieve a variety of vertical height options with a chair. The ability to alter the elevation of a wheelchair seat has many benefits, including:

• Making it safer for an individual to transfer from place to place at the same height, thus reducing the risk of falls and fractures (for example, moving from bed to wheelchair, or wheelchair to toilet);
• Helping to prevent long-term physical damage to an individual’s neck, back, and overall body alignment caused by constantly having to look up at standing individuals, instead allowing people to engage eye-to-eye;
• Allowing individuals to achieve greater independent access to activities of daily living with less reliance on aides or caregivers (such as reaching into higher cabinets or looking down into a boiling pot on the stove to prepare dinner); and,
• Providing immeasurable psychological and quality-of-life benefits.

In 2004, the Durable Medical Equipment (DME) Medicare Administrative Contractors (MACs) published a Local Coverage Article (LCA) A52504 (last revised in 2020) which continues to maintain that power seat elevation systems are “not primarily medical in nature” and, therefore, are Medicare non-covered.[1] On September 15, 2020, the ITEM (Independence Through Enhancement of Medicare and Medicaid) Coalition submitted a Formal Request for Reconsideration of the Medicare National Coverage Determination[2], a thoroughly researched and compelling document, making a strong case that CMS should determine that seat elevation systems for wheelchairs are primarily medical in nature and are covered within the Medicare statutory definition of durable medical equipment. Now, almost two years after the ITEM Coalition submitted a request for review, CMS is providing the public an opportunity to comment.

CMS is accepting public comment through September 14th at https://www.cms.gov/medicare-coverage-database/view/ncacal-tracking-sheet.aspxncaid=309&fbclid=
IwAR0v8unyjFbQwI1D3fqyEgeTFO0jYAJIsdrWGlo30LEWm4S3SdbNl8a_On4. Also access the ITEM Coalition website addressing this topic at www.rise4access.org.

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[1] Article – Wheelchair Options/Accessories – Policy Article (A52504) (cms.gov) 
[2] NCD Reconsideration Request FINAL (D0908245-3).DOCX (cms.gov)

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CMS Hosts Public Call on Nursing Home Staffing on August 29

The Centers for Medicare & Medicaid Services (CMS) invites interested members of the public to a call on August 29, 2022, from 1:00 to 2:30 EST, to discuss nursing home staffing; Register here. 

The CMS blog announcing the call also describes the nursing home staffing study that President Biden announced as part of his nursing home reform agenda in February.  CMS is taking a “multi-faceted approach aimed at determining the minimum level and type of staffing needed to enable safe and quality care in nursing homes.”  CMS plans to issue a notice of proposed rulemaking in the Spring 2023 and promises that “Facilities will be held accountable if they fail to meet this standard.”

CMS first describes what it learned from the Request for Information that it included in the April 2022 notice of proposed rulemaking for the annual update to Medicare Part A reimbursement.  Briefly, CMS notes that resident advocacy groups and family members “were generally strongly supportive of establishing a minimum staffing requirement, while other industry and provider groups expressed significant concern.”

CMS next describes the staffing study now underway, which buildings on previous studies and includes:

• Literature review
  
• Site visits to 75 nursing homes in 15 states (CA, CO, FL, IL, MA, MD, MO, NC, NY, OH,PA TX, VA, WA, and WY).  These site visits, involving interviews (with nursing staff, residents, families), surveys, and direct observations of direct care staff, “will provide qualitative, contextual information to inform the establishment of minimum staffing requirements.”  Data collected at the site visits “will enable the development of a simulation model to examine the impact of different staffing levels and patient acuity levels on the quality and timeliness of care.”   CMS describes the simulation model as “important to ensure that the staffing study reflects not just what staffing levels exist currently as a descriptive model, but also what staffing levels are needed for safe, quality care for patients at varying acuity levels [italics in original].”
  
  CMS also intends to identify the impact of staffing levels on quality, barriers to implementation of staffing levels, “and any potential unintended consequences of imposing minimum staffing requirements.”

• Quantitative analyses will “identify staffing levels associated with improved quality of care and resident safety in nursing homes.”  CMS will also examine trends in staffing from 2018-2021 and identify “specific factors that are related to staffing levels.”
• Cost analyses, needed for all rulemaking, will identify costs of meeting the new staffing requirements.

CMS’s blog post, “Centers for Medicare & Medicaid Services Staffing Study to Inform Minimum Staffing Requirements for Nursing Homes,” is at https://www.cms.gov/blog/centers-medicare-medicaid-services-staffing-study-inform-minimum-staffing-requirements-nursing-homes

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CMS Encourages Health Care Providers to Prepare for the End of the COVID-19 Public Health Emergency

In an August 18, 2022 blog post, the Centers for Medicare & Medicaid Services (CMS) encourages health care providers “to prepare for the end [of the COVID-19 Public Health Emergency] flexibilities as soon as possible and to begin moving forward to reestablishing previous health and safety standards and billing practices.”  HHS Secretary Becerra will give 60 days’ advance notice before ending the public health emergency.

The blog post describes post-COVID-19 actions for three categories of waivers and flexibilities:

• Waivers and flexibilities that will remain in place.  These include the requirement (established by an interim final rule with comment, which became effective May 8, 2020) that nursing facilities “report resident and staff infections and deaths related to COVID-19.”  These long-term care reporting requirements will remain in place until December 2024.
• Waivers and flexibilities that have been made permanent by federal law.  The Consolidated Appropriations Act, 2021, “expanded access to telehealth services for the diagnosis, evaluation, or treatment of mental health disorders.” 
• Waivers and flexibilities that are no longer needed.  The CMS bloggers write:

For example, recent onsite LTC survey findings provided insight into issues with resident care that are unrelated to infection control, such as increases in residents’ weight-loss, depression, and incidence of pressure ulcers. As a result, it was determined that the lack of certain minimum standards, such as training for nurse aides, may be contributing to these issues. Thus, on April 7, 2022, CMS announced the termination of some temporary waivers to redirect efforts back to meeting the regulatory requirements aimed at ensuring each resident’s physical, mental, and psycho-social needs are met. 

CMS also releases 16 separate Fact Sheets that summarize the current status of the blanket waivers and flexibilities, by provider type, as well as additional COVID-19 Resources, including PHE Unwinding Guidance for State Medicaid Programs. For further information, see:  Jonathan Blum, Chief Operating Officer and Principal Deputy Administrator; Carol Blackford, Director, Hospital and Ambulatory Policy Group; and Jean Moody-Williams, Deputy Director, Center for Clinical Standards and Quality, “Creating a Roadmap for  the End of the COVID-19 Public Health Emergency” (Blog, Aug. 18, 2022), https://www.cms.gov/blog/creating-roadmap-end-covid-19-public-health-emergency

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Black and Latinx Medicare Beneficiaries Provide Perspectives on the Health Care System

The COVID-19 pandemic’s disproportionate impact on racial and ethnic minorities highlighted longstanding and significant health disparities faced by people of color.[1] Within the Medicare population, people of color are more likely to report being in “relatively poor health, hav[ing] higher prevalence rates of some chronic conditions, such as hypertension and diabetes than White beneficiaries.”[2] In an effort to learn more about the experiences of Black and Latinx older adults, The Commonwealth Fund published findings from a dozen focus groups held with 44 Black and 44 Latinx people 65 and older, with varying degrees of health and socioeconomic status levels, between July and October 2021. As such, the results only reflect these two Medicare populations and cannot be applied to experiences of other races and ethnicities.

Some key takeaways include:

• Discrimination and bias experienced by older Black and Latinx adults were multifaceted, with factors such “race, ethnic background, language, age, gender, income, or insurance coverage” impacting perceived discrimination.[3]
• The manifestations of discrimination were also varied, including harmful assumptions, poor communication, and feeling ignored. One focus group attendee noted, “They assume because you’re African American your health doesn’t matter … that you drink, you smoke, you do this, you eat fast food, you eat that.”
• The negative health care experiences can impact how older Black and Latinx adults view and interact with the health care system. Some individuals explained that they didn’t “feel comfortable with speaking openly and sharing information with their providers.”

Suggestions for improving the health care system:

• Strive to have a health care workforce that resembles the people they serve. Having providers who can relate to lived experiences and have a shared identity would help older Black and Latinx beneficiaries feel more comfortable.
• Hold providers accountable for discrimination. Recommendations range from requiring more training on implicit bias and discrimination to penalizing providers who discriminate against patients
• Address language barriers by providing better access to interpretation services and ensuring health information is offered in multiple languages.

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[1] Ndugga, N., & Artiga, S. Disparities in Health and Health Care: 5 Key Questions and Answers. KFF. (May 11, 2021). Available at: https://www.kff.org/racial-equity-and-health-policy/issue-brief/disparities-in-health-and-health-care-5-key-question-and-answers/ 
[2] Ochieng, N., Cubanski, J., Neuman, T., Artiga, S., & Damico, A. Racial and Ethnic Health Inequities and Medicare. KFF. (February 16, 2021). Available at: https://www.kff.org/medicare/report/racial-and-ethnic-health-inequities-and-medicare/ 
[3] Horstman, C., Seervai, S., Perry, M., Jacobson, G., Lewis, C., & Zephyrin, L. What an Ideal Health Care System Might Look Like. Ideal Health Care System: Perspectives Older Black & Latinx Adults | Commonwealth Fund. (July 21, 2022). Available at: https://www.commonwealthfund.org/publications/2022/jul/what-ideal-health-care-system-might-look-like#methods

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Free Webinar | Medicare Enrollment Matters

Thursday October 13, 2022 | 2;30 PM – 4:00 PM EDT

This webinar will discuss the 2023 Annual Coordinated Election Period (ACEP), including outreach and education materials issued by the Medicare program, common enrollment pitfalls, options when you miss your Initial Enrollment Period, and other considerations for Medicare beneficiaries and those who assist them. Policy changes and other updates for 2023 will also be discussed.

Register now at https://medicareadvocacy.org/webinars/

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