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CMA Alert | December 10, 2020

December 10, 2020

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  1. Welcome News: Xavier Becerra Nominated as Secretary of Health and Human Services
  2. Center for Medicare Advocacy Comments on Harmful Proposed Rule that Would Automatically Expire Regulations Governing Medicare and Other Important Programs
  3. CMS Replaces all Eight Care-Specific Websites with Single Website: Care Compare
  4. COVID-19 and Health Care Disparities
  5. Elder Justice Newsletter – Vol 3, Issue 3 Now Available 

Welcome News: Xavier Becerra Nominated as Secretary of Health and Human Services

President-elect Joe Biden made an excellent selection in tapping California Attorney General Xavier Becerra to be the next Secretary of Health and Human Services (HHS). The Secretary of HHS oversees agencies that are critical to the health of the nation, including the Centers for Disease Control and Prevention, the National Institutes of Health, and – importantly for Medicare beneficiaries — the Centers for Medicare & Medicaid Services. Mr. Becerra is the right leader for HHS at this moment, not only for overseeing the response to the COVID pandemic, but also for protecting and building health care rights for Medicare beneficiaries, and for all Americans.

Mr. Becerra has been a champion of expanding access to health care, from his time in Congress on the Ways & Means committee and his co-sponsorship of  the Affordable Care Act (ACA), to his current esteemed leadership in defending the ACA in court. As Attorney General of California he has been at the forefront challenging policies that harm the health of older adults and people with disabilities, such as the current administration’s expansion of the “public charge” rule. His demonstrated commitment to equity includes protecting women and LGBTQ+ individuals from unlawful discrimination in health care, and a recognition of the unequal effect that environmental damage has on the health of people of color and other communities.

The Center for Medicare Advocacy enthusiastically supports the nomination of Mr. Becerra. We look forward to working with him to protect and expand the Medicare program for all beneficiaries – and to advance access to quality insurance and health care for everyone.

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Center for Medicare Advocacy Comments on Harmful Proposed Rule that Would Automatically Expire Regulations Governing Medicare and Other Important Programs

On November 4, 2020, the Department of Health and Human Services’ (HHS) issued a proposed rule entitled “Securing Updated and Necessary Statutory Evaluations Timely” (SUNSET) (RIN 0991–AC24; Docket No. HHS–OS– 2020–0012).

The proposed rule would retroactively impose an expiration provision on most HHS regulations, and establish “assessment” and “review” procedures to determine which, if any, regulations should be retained or revised. Regulations would have to be reviewed 2 years after this rule is effective or 10 years after promulgation, whichever is later. Regulations that were not reviewed in a timely manner would expire.  

Building on helpful comments drafted by the National Health Law Program (NHeLP), the Center for Medicare Advocacy recently submitted comments in opposition to this proposed rule.

Noting that this is an ill-conceived proposal that would create tremendous administrative burden for HHS and would wreak havoc across a broad swath of HHS programs, the Center for Medicare Advocacy pointed out, among other things:

  • HHS is elevating a procedure or process to review regulations over the substance of the regulations themselves. Rather than the proposed rule’s focus on “undue regulatory burdens” on the business of health care, many regulations define and protect the health of those receiving care.
  • Because of the timeline in the proposed rule, within approximately 2 years, HHS must review the bulk of keystone Medicare regulations, which means many such regulations would soon be threatened for termination absent timely review and assessment.
  • Even if HHS is convinced it can complete at least assessments of these rules within the truncated time period, it is the height of irresponsibility to put an arbitrary expiration date on bedrock rules.
  • The potential impact of an inadvertently expired regulation due to agency negligence would go beyond just creating a gap in the text of the Code of Federation Regulations.  There would be down-stream, cascading ripple effects, impacting a range of sub-regulatory guidance that rely upon a given regulation, that would likely play out over time. 
  • The proposed rule would create a significant, self-imposed administrative burden that would divert resources from critical work, including efforts to address the COVID-19 pandemic.
  • Not only would the proposed rule create a significant administrative burden on the department itself (in a seemingly self-inflicted wound), it would also shift additional burden to the public, relying upon outside sources to regulate the regulator. (HHS asserts that it “anticipates that the public would remind the Department to perform the Assessment or Review if the deadline is nearing and the Department has not yet commenced the Assessment or Review.”)
  • As noted by NHeLP, the proposal is contrary to the Administrative Procedure Act’s (APA) requirements for rulemaking.

In an apparent effort to push through this rule in the waning days of the Trump Administration, HHS provided a truncated 30-day comment period (general comments were due December 4).  However, comments on Medicare-related provisions (Title 42, Code of Federal Regulations parts 400–429 and parts 475– 499) are due January 4, 2021. Thus, we strongly urge those who are willing and able to submit Medicare-related comments in opposition to this rule to do so before the deadline.

For additional analyses concerning this proposed rule, see, e.g., Andy Schneider, Georgetown University Health Policy Institute, “What the Proposed “SUNSET” Regulation Means for Medicaid and CHIP” (November 11, 2020) https://ccf.georgetown.edu/2020/11/11/what-the-proposed-sunset-regulation-means-for-medicaid-and-chip/; and Jessica Schubel, Center on Budget and Policy Priorities (CBPP), “HHS’ Proposed “Rule on Rules” Could Wreak Havoc on Health Programs and Harm People” (November 24, 2020) https://www.cbpp.org/blog/hhs-proposed-rule-on-rules-could-wreak-havoc-on-health-programs-and-harm-people.

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CMS Replaces all Eight Care-Specific Websites with Single Website: Care Compare

ffective December 1, 2020, Care Compare replaces eight health care-specific websites, such as Nursing Home Compare and Hospice Compare.[1] Users of the new website, https://www.medicare.gov/care-compare/, must type in the city or zip code and provider type to get information about specific health care providers. While the Centers for Medicare & Medicaid Services (CMS) reports that all information from the prior websites is available at Care Compare, the site’s uniform format looks different from the old sites and some information previously available on Nursing Home Compare may be difficult to find. In addition, CMS announced that on January 27, 2021, it will update publicly available nursing home information on surveys and quality measures, which had been frozen since March 2020.

Care Compare

Nursing Home Compare included links to focused infection control surveys and COVID-19-related data reported by nursing facilities to the Centers for Disease Control and Prevention (CDC). Links to these sources of information are now on the bottom right-hand corner of Care Compare through a link called “What’s New?” 

To find information about Special Focus Facilities and candidates, users of Care Compare must now go to “resources and information” at the bottom of the Care Compare page, click on Nursing Homes, and then click on “View a list of nursing homes that have a history of poor care and may need increased oversight and enforcement” (which gets users to the Special Focus Facility website, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/downloads/sfflist.pdf).

Updates on Nursing Home Information

Publicly available information on nursing homes has been frozen since March 2020, when CMS suspended standard and complaint surveys[2] and waived requirements that facilities report staffing information and resident assessment data (which are used to construct quality measures) to CMS.[3] In June, CMS reinstated the requirement that facilities report staffing information, with the second quarter in calendar year 2020.[4] In August, CMS instructed states to resume all surveys as soon as they had the resources to do so.[5] Many facilities apparently submitted assessment data during the reporting waiver. 

On December 4, CMS announced that it will resume calculating and reporting on Care Compare health inspections, incorporating information from focused infection control surveys, and quality measures.[6]

___________________________

[1] CMS, “Updates to the Nursing Home Compare website and Five Star Quality Rating System,” QSO 21-06-NH (Dec. 4, 2020), at https://www.cms.gov/tiles/document/qso-21-06-nh.pdf
[2] CMS, “Suspension of Survey Activities,” QSO-20-12-All (Mar. 4, 2020), https://www.cms.gov/files/document/qso-20-12-all.pdf; CMS, “Prioritization of Survey Activities,” QSO-20-20-All (Mar. 20, 2020), https://www.cms.gov/files/document/qso-20-20-allpdf.pdf
[3] CMS, “COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers” (Mar. 28, 2020, updated Dec. 1, 2020), https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf
[4] CMS, “Changes to Staffing Information and Quality Measures Posted on the Nursing Home Compare website and Five Star Quality Rating System due to COVID-19 Public Health Emergency,” QSO 20-34-NH (Jun. 25, 2020), https://www.cms.gov/files/document/qso-20-34-nh.pdf
[5] CMS, “Enforcement Cases Held during the Prioritization Period and Revised Survey Prioritization,” QSO 20-35-ALL (Aug. 17, 2020), https://www.cms.gov/files/document/qso-20-35-all.pdf
[6] CMS, “Updates to the Nursing Home Compare website and Five Star Quality Rating System,” QSO 21-06-NH (Dec. 4, 2020), at https://www.cms.gov/tiles/document/qso-21-06-nh.pdf

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COVID-19 and Health Care Disparities

A recent Washington Post special report found that people of color continue to die from the coronavirus at much higher rates than Whites. Though COVID-19 infections are surging all over the country, overall mortality rates have significantly decreased since the beginning of the pandemic. However, the death rates have diverged based on race. “Black, Asian, Native American and Hispanic patients still die far more frequently than White patients, even as death rates have plummeted for all races and age groups, according to a Washington Post analysis of records from 5.8 million people who tested positive for the virus from early March through mid-October.”

Similar to conclusions found in other research on the topic, this report listed several factors contributing to these disparities, including shortage of COVID-19 testing in communities of color, incomplete data collection, delays in translations of health information, and limited enforcement of public health steps like mask-wearing in essential workplaces.

Although systemic racism cannot be quickly rooted out, the report found that even small measures that can be quickly implemented have been proven to make a difference and save lives. The Report highlighted successful changes in Michigan that were aimed at addressing these disparities. “Faced with extreme disparities in covid-19 deaths, Michigan officials undertook a series of steps, from boosting testing to connecting people of color with primary care doctors. The state’s rapid progress proves the issues are neither intractable, nor rooted somehow in biology.”

As hope for an end to the nightmare of the pandemic lies in a vaccine that has had promising results in studies, another issue rooted in long standing systemic racism in healthcare arises.  Polling shows that many minority populations are distrustful of the vaccine and express reservations about being vaccinated. 

A recent Washington Post article, Coronavirus Vaccines Face Trust Gap in Black and Latino Communities, highlights results of a study that show vaccine hesitancy in communities of color. “Perhaps its most sobering findings: 14 percent of Black people trust that a vaccine will be safe, and 18 percent trust that it will be effective in shielding them from the coronavirus. Among Latinos, 34 percent trust its safety, and 40 percent trust its effectiveness.”

The New York Times columnist Charles Blow places these vaccine concerns within historical context. He states, “[t]he unfortunate American fact is that Black people in this country have been well-trained, over centuries, to distrust both the government and the medical establishment on the issue of health care,” followed by a catalogue of some of the horrendous exploitation Black men and women endured in the United States in the name of medical research.

Previous research has also demonstrated the lasting damage to Black communities’ trust in government that resulted from the unethical Tuskegee Study. “Black patients consistently express less trust in their physicians and the medical system than white patients, are more likely to believe medical conspiracies, and are much less likely to have common, positive experiences in health-care settings. These have all been connected to misgivings among black patients about Tuskegee and America’s long history of real medical exploitation of black people.”

Conclusion

In order to address the deadly virus and address related health disparities, policy experts must collect data, particularly breaking down data by race and ethnicity, must respond to these disparities, and must understand the magnitude of medical mistrust that exists in communities of color, and the historical context for the concerns.

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Elder Justice Newsletter – Vol 3, Issue 3 Now Available

Elder Justice: What “No Harm” Really Means for Residents is a newsletter published by the Center for Medicare Advocacy and the Long Term Care Community Coalition. The purpose of the newsletter is to provide residents, families, friends, and advocates information on what exactly a “no harm” deficiency is and what it means for nursing home residents. Our latest issue has real stories from nursing homes in New York, Alaska, New Hampshire and Texas.

  • Read the latest issue at: https://medicareadvocacy.org/wp-content/uploads/2020/12/Elder-Justice-Vol.-3-Issue-3.pdf

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