- Center Responds to CMS Proposed Rules That Would Diminish Access to Medicare Home Health Care
- CMA Special Report | What Can and Must Be Done about the Staffing Shortage in Nursing Homes
- Court Decisions Expand Rights of Medicaid Beneficiaries, Nursing Home Residents
- Beneficiary Access to Complex Rehabilitation Wheelchair Accessories Protected
- Study Links Long-Term Care Staff Vaccination Rates with Disparities
The Center for Medicare Advocacy (the Center) has prepared comments about Medicare-covered home health services in response to the Centers for Medicare and Medicaid Services (CMS) notice of proposed rulemaking (NPRM). Our comments can be found at: https://medicareadvocacy.org/cma-comments-on-cy-2022-hh-prospective-payment-system-more/
The Center is concerned that the proposed rules and policies, if finalized, will significantly diminish the ability of many beneficiaries to access home health care. The Federal Register NPRM can be found at: https://www.govinfo.gov/content/pkg/FR-2021-07-07/pdf/2021-13763.pdf.
Public comments on the NPRM are due to CMS by Friday, August 27th. As you write your own comments, feel free to from borrow from the Center’s comments, and share our comments with others. If you would prefer not to write your own comments, you are welcome to sign-on to our comments. Please let us know by Friday, August 20th if you have any questions or would like to sign-on to the Center’s comments; to do so contact firstname.lastname@example.org).
Thank you for your participation in this rule-making process and for working together to strengthen access to Medicare-covered home health care.
The American Health Care Association (AHCA), the primary national trade association for the nursing home industry, reports that 94% of facilities responding to their recent survey report a shortage of staff and that nearly 75% report that staffing shortages have gotten worse since 2020. As proposed by AHCA and LeadingAge, the trade association of not-for-profit providers, in their jointly-released Care For Our Seniors Act, more reimbursement is needed. 81% of AHCA’s survey respondents agree that higher reimbursement would enable them to offer better salaries and benefits to their workers.
We have heard this industry message before, many, many times. It’s time for a different response from the multi-billion dollar nursing home industry, most of whose reimbursement comes from public dollars.
The Center has issued a new report that maintains that if facilities really want more staff, they must employ an appropriate number of permanent staff, pay all workers a living wage, and provide all workers with meaningful benefits, sufficient training, and a positive work environment. These recommendations are recognized by workers and nursing facilities alike as specific, straightforward ways to improve staffing levels and quality of care for nursing home residents.
The report describes the need for a living wage for all workers and contends that facilities already have sufficient reimbursement to pay staff well, if reimbursement were redirected from administration and profits to resident care. It cites multiple reports documenting that facilities’ related-party transactions and on-going practices divert money from resident care and are correlated with poorer resident outcomes. It also suggests known strategies for focusing reimbursement on care, including enactment of direct care ratios, which require facilities to spend designated portions of their reimbursement on care and services for residents and which limit the amounts that can be spent on profits and administration.
The report concludes that staffing at nursing facilities can and must be improved. Methods to strengthen staffing are well-known. The question is whether we have the will to make necessary changes.
- The full report is available at: https://medicareadvocacy.org/wp-content/uploads/2021/08/Report-Staffing-Shortages-in-Nursing-Homes-07.2021.pdf
 AHCA, “Survey: 94 Percent of Nursing Homes Fact Staffing Shortages” (Press Release, Jun. 23, 2021), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/Survey-94-Percent-of-Nursing-Homes-Face-Staffing-Shortages.aspx. An executive summary of the survey, State of Nursing Home and Assisted Living Industry: Facing Workforce Challenges, is available at https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/Workforce-Survey-June2020.pdf
 AHCA and LeadingAge, “Care for Our Seniors Act; Improving America’s Nursing Homes By Learning From Tragedy & Implementing Bold Solutions For The Future, https://www.ahcancal.org/Advocacy/Documents/Care%20for%20Our%20Seniors%20Act%20-%20Overview.pdf
 AHCA, “Survey: 94 Percent of Nursing Homes Fact Staffing Shortages” (Press Release, Jun. 23, 2021), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/Survey-94-Percent-of-Nursing-Homes-Face-Staffing-Shortages.aspx
 “Nursing Home Industry is Heavily Taxpayer-Subsidized” (CMA Special Report, Jul. 9, 2021), https://medicareadvocacy.org/wp-content/uploads/2021/07/Special-Report-SNF-Subsidies.pdf
 PHI, Federal Policy Priorities for the Direct Care Workforce, p. 4 (2021), citing “Workforce Data Center.” Accessed 6/8/2021. https://phinational.org/policy-research/workforce-data-center/. The report is accessed through a link at http://phinational.org/resource/federal-policy-priorities-for-the-direct-care-workforce/; Robyn I. Stone and Natasha Bryant, Feeling Valued Because They Are Valued; A Vision for Professionalizing the Caregiving Workforce in the Field of Long-Term Services and Supports, p. 3 (Jul. 2021), https://leadingage.org/sites/default/files/Workforce%20Vision%20Paper_FINAL.pdf. See “Reports Call for Changes for the Direct Care Workforce” (CMA Alert, Jul. 15, 2021), https://medicareadvocacy.org/reports-call-for-changes-for-the-direct-care-workforce/, identifying similarities in the strategies recommended in the reports.
In an important decision protecting the due process rights of beneficiaries of public health programs, the U.S. Court of Appeals for the Second Circuit held last week in Bellin v. Zucker that a Medicaid beneficiary who was denied the right to appeal her initial allotment of personal care hours may proceed with her case. A lower court had ruled that Ms. Bellin, a New York resident who wanted to appeal for more personal care services, had no constitutionally protected interest in a particular number of care hours. It therefore dismissed her claim. The Second Circuit, however, found plausible allegations that official discretion regarding initial personal care hour determinations is “meaningfully channeled,” potentially creating an interest in those benefits that cannot be denied without an opportunity to appeal.
Citing a case brought by the Center, the court explained that “a protected property interest can arise in a number of ways and…it is important for district courts to consider the details of the administrative scheme—and the allegations regarding those details—before relying on general discretion-granting regulations to dismiss procedural due process claims.” Thus, while affirming the dismissal of Ms. Bellin’s statutory claims, it remanded her constitutional claim to the district court for further proceedings.
Like the Center’s pending Alexander v. Azar case, seeking the right to appeal for hospitalized Medicare beneficiaries placed on “observation status,” Bellin involves due process protections for people who rely on public health programs such as Medicare and Medicaid. The Center co-authored an amicus brief with the National Health Law Program and Justice in Aging in support of Ms. Bellin, explaining why she had stated a valid constitutional due process claim.
Also last week, the U.S. Court of Appeals for the Seventh Circuit ruled in Talevski v. Health and Hospital Corp. of Marion County, that residents of state-run nursing homes may enforce their rights in court under the Nursing Home Reform Act (NHRA). Joining the Third and Ninth Circuits, the Seventh Circuit held that the NHRA, which establishes minimum standards of care and includes a “Residents’ Bill of Rights,” provides a private right of action allowing individuals to sue their nursing homes for violations of the statute. The resident involved in the case brought claims involving the right to be free from chemical restraints and the right not to be transferred or discharged unless certain criteria are met. He may now pursue those claims.
Talevski marks a victory for nursing home residents, as the mere existence of rights in the law is not sufficient and regulatory oversight of nursing homes has proven to be inadequate. Residents must be able to go to court to hold nursing homes accountable. The Center joined AARP, the National Consumer Voice for Quality Long-Term Care, and other advocates in an amicus brief submitted in support of the resident who brought the case.
The Centers for Medicare and Medicaid Services (CMS) finalized a policy that will protect beneficiary access to wheelchair accessories, including seating systems, for Group 3 or higher complex rehabilitation power and manual wheelchairs. Access was threatened by a prior CMS rule that would include them in Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Competitive Bid Program (CBP) pricing. Because the CBP does not account for the higher cost to supply complex rehabilitation wheelchair “accessories” (non-standard, more costly components added to wheelchair frames), advocates had feared inclusion in CBP pricing would leave few suppliers willing to participate in supplying accessories for complex rehabilitation wheelchairs, and beneficiaries would lack options to obtain the necessary items.
In the final rule, CMS excludes fee schedule amounts for Group 3 or higher complex rehabilitation power and manual wheelchair accessories from adjustments based on information from the DMEPOS CBP. The final rule can be found at: https://www.govinfo.gov/content/pkg/FR-2021-08-04/pdf/2021-16310.pdf
Within the United States, 58.6% of staff working in nursing homes are vaccinated. That figure, however, does not indicate how the vaccination rates vary among health care workers within those facilities. A new study released by the Centers for Disease Control and Prevention (CDC) found that those with the most resident contact – nurses and nurse aides – had the lowest vaccination coverage. Furthermore, it concluded that the disparities in vaccination rates among staff in long-term care facilities likely mirror social disparities that are found in the surrounding communities.
The CDC analyzed COVID-19 vaccination data submitted from March 1 – April 4, 2021, of health care workers in long-term care facilities. The study showed a 30 percentage-point difference in vaccination rates between physicians/advanced practice providers (75.1%) and nurse aides (45.6%). Vaccination rates for registered nurses and licensed practical/vocational nurses were 56.7%.
It was found that facilities with the lower vaccination levels were in “socially vulnerable” areas. The study suggested that these findings highlight health equity issues and potential risks. Nurse aides are disproportionately women, racial and ethnic minorities, and are more likely to have underlying health conditions that make adverse outcomes from COVID-19 more likely. The CDC study suggests a potential remedy would be to focus vaccination promotion and outreach efforts on socially vulnerable and marginalized groups and communities.
 CMS. COVID-19 Nursing Home Data. (Updated July 18, 2021). Available at: https://data.cms.gov/covid-19/covid-19-nursing-home-data
 Lee JT, Althomsons SP, Wu H, et al. Disparities in COVID-19 Vaccination Coverage Among Health Care Personnel Working in Long-Term Care Facilities, by Job Category, National Healthcare Safety Network — United States, March 2021. MMWR Morb Mortal Wkly Rep 2021;70:1036–1039. Available at: http://dx.doi.org/10.15585/mmwr.mm7030a2external icon
Give a 35th Anniversary Gift to the Center.
Help the Center’s Mission Soar.
Summer support is always important to us, as we enter our new fiscal year. If you are able to make a special 35th Anniversary gift to the Center this summer, you will help the Center’s mission soar into our new year to advance access to comprehensive Medicare, health equity, and quality health care for families across the country.