- Administration Proposes Permanent and Temporary Extensions of Pandemic-Related Medicare Telehealth – Growing Disparities and Other Concerns Remain
- Coalition Opposes Immunity for Nursing Facilities
- CMS Will Not Track Minimally Trained Aides at Nursing Facilities
The Centers for Medicare & Medicaid Services (CMS) has expanded access to telehealth services during the COVID-19 public health emergency (PHE) through temporary Medicare waivers and other rule changes, (see, e.g., the Center for Medicare Advocacy’s “Covid-19: An Advocates Guide To Medicare Changes”). While these telehealth adaptations have been a lifeline for individuals who would otherwise go without care during the pandemic, there is growing pressure from some stakeholders to permanently extend many of these emergency flexibilities beyond the life of the emergency itself. This week, CMS issued a proposed rule that would make some of these telehealth waivers permanent and others temporary. As discussed further below, however, expansions in telehealth services could, among other things, exacerbate disparities in care, leaving behind underserved communities.
Recent Administrative Action
On August 3, 2020, President Trump signed the “Executive Order on Improving Rural Health and Telehealth Access” (EO). Section 5 of the EO directs the Secretary of Health and Human Services to “review the following temporary measures put in place during the PHE, and shall propose a regulation to extend these measures, as appropriate, beyond the duration of the PHE: (a) the additional telehealth services offered to Medicare beneficiaries; and (b) the services, reporting, staffing, and supervision flexibilities offered to Medicare providers in rural areas.” Further, in apparent recognition of at least some of the existing disparities in access to technology across the country, Section 3 of the EO directs certain federal agencies to “develop and implement a strategy to improve rural health by improving the physical and communications healthcare infrastructure available to rural Americans.”
According to a CMS Press Release, a CY 2021 Physician Fee Schedule proposed rule issued the same day includes provisions expanding telehealth consistent with the EO. CMS also issued a Fact Sheet summarizing the proposed rule, to be published in the Federal Register on August 17, 2020, but available here before then. Comments to the proposed rule are due October 5, 2020.
The Press Release describing the proposed rule notes that:
During the public health emergency, CMS added 135 services such as emergency department visits, initial inpatient and nursing facility visits, and discharge day management services, that could be paid when delivered by telehealth. CMS is proposing to permanently allow some of those services to be done by telehealth including home visits for the evaluation and management of a patient (in the case where the law allows telehealth services in the patient’s home), and certain types of visits for patients with cognitive impairments. CMS is seeking public input on other services to permanently add to the telehealth list beyond the PHE in order to give clinicians and patients time as they get ready to provide in-person care again. CMS is also proposing to temporarily extend payment for other telehealth services such as emergency department visits, for a specific time period, through the calendar year in which the PHE ends. This will also give the community time to consider whether these services should be delivered permanently through telehealth outside of the PHE [emphasis added].
The Fact Sheet summarizing the proposed rule details the scope of covered telehealth services that CMS is proposing to make permanent as well as those it aims to expand temporarily (along with HCPS code and descriptor of the services). With respect to the services it seeks to make permanent, CMS notes that such services “are similar to services already on the [covered] telehealth list.”
Among the telehealth services that CMS proposes to temporarily extend through the end of the calendar year in which the PHE ends, are certain Emergency Department visits, certain home visits and nursing facility discharge day management services.
CMS is also proposing, among other things, to revise the frequency limitation for subsequent nursing facility visits furnished via Medicare telehealth from one visit every 30 days to one visit every 3 days, and is seeking comment on whether to remove frequency limitations altogether.
As discussed below, the Center for Medicare Advocacy has concerns about the rush to make telehealth changes permanent, without addressing a range of underlying issues. In particular, we note growing concerns that current telehealth practices may increase health care and access disparities.
While we recognize that the expansion of Medicare-covered telehealth services has helped many beneficiaries reduce risk of transmission of the COVID-19 virus by receiving care while staying home, the Center for Medicare Advocacy has concerns about premature expansion of telehealth services. The Center, together with Medicare Rights Center, recently released principles to help guide policymakers when assessing Medicare coverage for telehealth.
Of particular concern is that expansions in telehealth services could exacerbate disparities in care, leaving behind underserved communities.
This concern was underscored by a July 2020 Congressional Report, Left Out: Barriers to Health Equity for Rural and Underserved Communities Report of the Committee on Ways and Means Majority U.S. House of Representatives, which examined the context for social determinants of health in order to frame policy solutions striving for health equity. The report explored the limitations of telehealth for communities with limited broadband access, “[i]n many areas, the absence of reliable broadband service makes it impossible for residents to rely on telehealth as a viable form of health care, emphasizing the interplay between health system and environmental factors in many of these communities.”
Having access to high speed internet, or broadband, is essential for telehealth expansion to be equitable, and improve outcomes for all beneficiaries. While estimates vary based on the study (a recent CBS report highlighted a Microsoft study that showed 162 million Americans do not have broadband at the speeds that the FCC defines as ‘broadband,’ meaning that about half the population of the U.S. has either very slow internet or none at all) it is clear that access to reliable internet must be factored into telehealth policy.
A recent New York Times article also raised some of the equity concerns surrounding telehealth, quoting doctors who realized that some of their patients stopped answering their phones at the end of the month because they had “run out of minutes”. A recent MedPage piece raised additional concerns about telehealth visits for Medicare beneficiaries, such as difficulty hearing well enough to use a telephone, even with hearing aids, not having proficiency in email, texting or internet usage, difficulty seeing well, and difficulty speaking.
As a result of such concerns, the Center for Medicare Advocacy has continued to advocate for careful study about how telehealth has impacted access to care during the pandemic. Before making changes permanent, careful study is needed to examine whether telehealth in its current state is exacerbating disparities and determine how to rectify identified concerns.
The Center’s telehealth advocacy includes joining a letter from the Leadership Council of Aging Organizations (LCAO), of which the Center is a member, urging Senate leadership to recognize the importance of technology solutions in COVID-19 relief legislation. The July 2020 letter cites the concerning “digital divide” for older adults. The letter states that “[a]ccording to the Pew Research Center, a third of adults age 65 and older report they never use the internet and almost half lack home broadband. The digital divide is even greater for older adults of color. For example, Pew has found that 55 percent of black older adults do not go online and 70 percent do not have broadband at home. Recent research shows that smartphones have enabled more black and Hispanic individuals to go online, yet the older adult population continues to be the only group of which a clear majority do not own smartphones. While the pandemic may result in greater adoption of technology among older adults, physical access and affordability remain obstacles.”
We recognize the potential of expanded access to services provided via telehealth, particularly for those who have trouble accessing providers in person. However, as we note in our Joint Principles, referenced above, a hasty and permanent expansion of telehealth waivers “risk[s] reflexively locking in an unexamined expansion of services that was developed for and during a crisis. Instead, we urge Congress and the Administration to move forward deliberately. Any policy changes should be directly informed by the current experience with telehealth and made through existing legislative and regulatory processes that allow for public comment and stakeholder input.”
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The Coalition for the Protection of Residents of Long-Term Care Facilities opposes efforts at the federal and state levels to grant nursing homes blanket immunity from liability during the COVID-19 pandemic. In its Issue Brief, the Coalition explains that such immunity harms residents by rewarding bad actors and that the possibility of liability, in contrast, creates incentives for facilities to comply with statutory and regulatory protections for residents. As noted in the Issue Brief, immunity from liability also places workers and communities at risk and perpetuates racial disparities in health care.
The Center for Medicare Advocacy is a member of the Coalition along with other resident advocacy organizations, attorneys, and the Service Employees International Union.
- To read the Coalition’s Issue Brief, please go to: https://medicareadvocacy.org/wp-content/uploads/2020/07/Immunity-Issue-Brief.pdf
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Since March 20, 2020, the Centers for Medicare & Medicaid Services (CMS) has waived the requirement, set out in the Medicare and Medicaid statutes and regulations, that restrict nursing facilities from using nurse aides for more than four months unless they have completed a training program of at least 75 hours. As reported in last week’s CMA Alert, a number of states have expressly authorized use of the American Health Care Association’s eight-hour on-line training program for temporary nurse aides who provide direct care to residents.
CMS has reinstated the requirement for nursing facilities to report staffing levels, using the Payroll-Based Journal (PBJ) system, effective for the second calendar quarter (April-June 2020).
However, CMS has told the Center for Medicare Advocacy and other residents’ advocates that the PBJ system does not have the capacity to separately identify aides with less than 75 hours of training. Consequently, staff hired under the waiver with less than 75 hours of training will be reported as if they were aides in training. Moreover, CMS has not created any new system to track who the minimally trained workers are, how many there are, which facilities they work in, and what tasks they are performing and how well.
The Center for Medicare Advocacy believes that accurate information about workers in nursing homes is essential to understanding who is providing care to residents in facilities during the pandemic. In addition, the Center is concerned about what will happen to these workers when the public health emergency ends. Will they be fired, grandfathered in, or required to complete their states’ aide training and competency evaluation programs?
 42 U.S.C. §§1395i -3(b)(5), 1396r(b)(5), Medicare and Medicaid, respectively; 42 C.F.R. §§483.35(d)(1)(i), (ii), 483.35(c).
 Center for Medicare Advocacy, “Who’s Providing Care to Nursing Home Residents?” (CMA Alert, Jul. 29, 2020), https://medicareadvocacy.org/whos-providing-care-to-nursing-home-residents/. Full Report, Who’s Providing Care for Nursing Home Residents? Nurse Aide Training Requirements during the Coronavirus Pandemic available at https://medicareadvocacy.org/wp-content/uploads/2020/07/Report-Nurse-Aide-Training.pdf.
 CMS, “Changes to Staffing Information and Quality Measures Posted on the Nursing Home Compare Website and Five Star Quality Rating System due to the COVID-19 Public Health Emergency,” QSO-20-34-NH (June 25, 2020), https://www.cms.gov/files/document/qso-20-34-nh.pdf.
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