- Pass Build Back Better — Seize the Moment to Protect Nursing Home Residents
- Updated Factsheet | CMS Nursing Home Visitation Guidance
- Medicare Coverage for Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) When a Beneficiary is Discharged from a Facility
- CMS Resources to Remind People with Medicare to Review and Compare Coverage
- Elder Justice Vol. 3 Issue 10 Now Available
- FREE WEBINAR | Skilled Nursing Facility Update
- Our Strength is Our Community
By Judith Stein and Mairead Painter — The Build Back Better Act is a chance for Congress to prioritize the well-being of vulnerable people in nursing homes.
Originally published in the CT Mirror, December 2, 2021
The Build Back Better Act, currently pending in the U.S. Senate, includes provisions that could significantly increase the quality of care and safety of nursing home residents. But we are at a crossroads. The devastation inflicted by the coronavirus pandemic in our nation’s nursing homes is dangerously close to being forgotten or, at the very least, diminished in our collective memory.
COVID-19’s impact on nursing homes was severe and pervasive. Nationwide, more than 140,000 nursing home residents and staff lost their lives, another 1.4 million were infected, and serious, long-standing problems in nursing homes were exposed and exacerbated. In Connecticut, COVID-related deaths in long-term care facilities account for 53% of the state’s total COVID death toll. While the statistics themselves are staggering, behind each number is a human being – a parent, grandparent, spouse, sibling, or friend – with a life history and loved ones. These individuals are frail in many ways and powerless against decisions made based on spreadsheets and financial bottom lines. The best chance to protect nursing home residents is through Congressional action. The opportunity to do just that is in front of us now.
The Build Back Better Act is a chance for Congress to prioritize the health and well-being of vulnerable people living in nursing homes and the people who provide their care. Five interrelated provisions that address nursing home issues holistically are included in the bill. These provisions would make significant positive changes in the care that residents receive and would require:
- Staffing studies to determine a recommended minimum level of staffing hours for nursing homes and the commitment to implement those recommendations;
- Services by a professional registered nurse 24 hours per day, seven days a week in every nursing home;
- Auditing of Medicare cost reports submitted by nursing homes to increase accuracy;
- Improving the reliability of nursing facility data collection; and
- Improving survey and enforcement practices.
As we’ve learned during COVID-19, the issues affecting nursing homes were varied and interconnected. The solutions must look the same. Though different in nature, these five provisions relate to and affect one another. We need all five, passed in their entirety and fully funded.
There is significant pushback from elements of the nursing home industry – especially about the provisions around staffing and requiring registered nurse coverage 24 hours a day. This pushback persists despite studies, like this one for Connecticut, showing a clear line between increased registered nurse staffing and a reduction in COVID-19 cases and deaths.
The opposition often sounds like this: We can’t get enough staff hired now, how can you expect us to get more? The answer is also in the Build Back Better Act, which includes funding that would go directly to long-term care facilities to help with staff recruitment and training. This bill is a good first step toward better care, providing a strong foundation for change, while also offering funding to help resolve many of the nursing home industry’s concerns.
While it may seem like the wrath of COVID-19 is nearly in the rearview mirror, the reality is it still lurks. Nursing home residents are still the most vulnerable. For example, Kaiser Family Foundation analysis shows that nursing homes felt the impact of the Delta variant surge more severely than the rest of the country in terms of COVID-19 cases and deaths. The urgency persists.
It’s time to do what is right to help protect older Americans and people with disabilities who live in our nation’s nursing homes. That means passing all five nursing home provisions in the Build Back Better Act.
Judith A. Stein is Executive Director of the Center for Medicare Advocacy. Mairead Painter is the Connecticut State Long Term Ombudsman in the Department of Aging and Disability Services.
Since approximately 86% of nursing home residents and 74% of staff at those facilities in the United States are vaccinated, the Centers for Medicare & Medicaid Services (CMS) has revised its COVID-19 nursing home visitation guidelines. The Center for Medicare Advocacy is committed to ensuring that the rights of older adults and people with disabilities are protected and known. We have updated the visitation Fact Sheet to outline CMS’s latest guidance, which firmly outlines that “visitation is now allowed for all residents at all times.” In the event that a nursing home refuses to allow visitation, this Fact Sheet could be used to help residents and their visitors navigate their rights.
 CMS. COVID-19 Nursing Home Data. Updated Nov. 14, 2021). Available at: https://data.cms.gov/covid-19/covid-19-nursing-home-data
 The Center for Medicare Advocacy originally reported the CMS’s revised visitation guidelines on November 18, 2021. It is available here.
 CMS. Nursing Home Visitation – COVID-19 (REVISED). Available at: https://www.cms.gov/files/document/qso-20-39-nh-revised.pdf
Transitioning from a facility to home can be challenging for Medicare beneficiaries and their families because there are many details, instructions, and changes to navigate. Pre-planning for reasonable and necessary DMEPOS for a beneficiary to use when he or she goes home may relieve some of that transition-tension. Beneficiaries can locate a supplier to deliver the covered item, fit the item (as necessary), and train the beneficiary on the item, up to two days before the beneficiary leaves the facility. Medicare payment to the supplier includes re-delivery of the item to the beneficiary’s home. Medicare rules allow delivery, fit, training, and re-delivery to prepare the beneficiary for a smoother transition from facility to home. Beneficiaries can research suppliers that will accommodate the pre-discharge process by using a zip-code to look-up the required item(s) at https://www.medicare.gov/medical-equipment-suppliers/.
The Conditions That Must Be Met for Pre-Discharge Delivery
The Centers for Medicare and Medicaid Services (CMS) presume that the pre-discharge delivery of DME or other item (prosthetic or orthotic, but not supplies) to a facility that does not qualify as a patient’s home, is appropriate when the following nine conditions are met, as stated in the Medicare Claims Processing Manual, Chapter 20, Section 110.3.1:
- The item is medically necessary for use by the beneficiary in the beneficiary’s home.
- The item is medically necessary on the date of discharge, i.e., there is a physician’s order with a stated initial date of need that is no later than the date of discharge for home use.
- The supplier delivers the item to the beneficiary in the facility solely for the purpose of fitting the beneficiary for the item, or training the beneficiary in the use of the item, and the item is for subsequent use in the beneficiary’s home.
- The supplier delivers the item to the beneficiary no earlier than two days before the day the facility discharges the beneficiary.
- The supplier ensures that the beneficiary takes the item home, or the supplier picks up the item at the facility and delivers it to the beneficiary’s home on the date of discharge.
- The reason the supplier furnishes the item is not for the purpose of eliminating the facility’s responsibility to provide an item that is medically necessary for the beneficiary’s use or treatment while the beneficiary is in the facility. Such items are included in the Diagnostic Related Group (DRG) or Prospective Payment System (PPS) rates.
- The supplier does not claim payment for the item for any day prior to the date of discharge.
- The supplier does not claim payment for additional costs that the supplier incurs in ensuring that the item is delivered to the beneficiary’s home on the date of discharge. The supplier cannot bill the beneficiary for redelivery.
- The beneficiary’s discharge must be to a qualified place of service (e.g., home, custodial facility), but not to another facility (e.g., inpatient or skilled nursing) that does not qualify as the beneficiary’s home.
CMS Identifies Coverage Dates of Pre-Discharge Delivery for DME, Prosthetics and Orthotics
For DMEPOS, the general rule is that the date of service is equal to the date of delivery. However, pre-discharge delivery of items intended for use upon discharge are considered provided on the date of discharge. The following three scenarios demonstrate both the latter rule (when the date of service is the date of discharge) and related exceptions.
- If the supplier leaves the item with the beneficiary two days prior to the date of discharge, and if the supplier, as a practical matter, need do nothing further to effect the delivery of the item to the beneficiary’s home (because the beneficiary or a caregiver takes it home), then the date of discharge is deemed to be the date of delivery of the item. Such date must be the date of service for purposes of claims submission. (This is not an exception to the general DMEPOS rule that the date of service must be the date of delivery. Rather, it recognizes the supplier’s responsibility – per condition five above – to ensure that the item is delivered to the beneficiary’s home on the date of discharge.) No one may bill for the days prior to the date of discharge.
- If the supplier fits the item to the beneficiary, or trains the beneficiary in its use while the beneficiary is in the facility, but thereafter removes the item and subsequently delivers it to the beneficiary’s home, then the date of service must be the date of actual delivery of the item, provided such date is not earlier than the date of discharge.
- If the supplier leaves the item at the facility and the beneficiary does not take the item home, or a third party does not send it to the beneficiary’s home, or the supplier does not otherwise (re)deliver the item to the beneficiary’s home on or before the date of discharge, the date of service must not be earlier than the actual date of delivery of the item, i.e., the actual date the item arrives, by whatever means, at the beneficiary’s home.
Facility Responsibilities During the Transition Period
- A facility remains responsible for furnishing medically necessary items to a beneficiary for the full duration of a beneficiary’s stay. The DRG and PPS rates cover such items.
- A facility may not delay furnishing a medically necessary item for the beneficiary’s use or treatment while the beneficiary is in the facility. A facility may not prematurely remove a medically necessary item from the beneficiary’s use or treatment on the basis that a supplier delivered a similar or identical item to the beneficiary for the purpose of fitting or training.
- A facility may not, through a stratagem of relying upon a supplier to furnish such items, improperly shift its costs for furnishing medically necessary items to a beneficiary who is a resident in the facility to Medicare Part B. Nevertheless, beginning two days before the beneficiary’s discharge, a facility may take reasonable actions to permit a supplier to fit or train the beneficiary with the medically necessary item that is for subsequent use in the beneficiary’s home. These actions may include the substitution of the supplier-furnished item, in whole or in part, for the facility-furnished item during the beneficiary’s last two inpatient days provided the substitution is both reasonable and necessary for fitting or training and the item is intended for subsequent use at the beneficiary’s home.
- For prosthetic and orthotic (P&O) items, the above restrictions apply to residents in a covered Part A stay. For DME, the above restrictions apply in a covered Part A or a Part B stay.
Planning for a safe and appropriate discharge from any type of inpatient facility (Acute Care Hospital, Long-Term Care Hospital, Inpatient Rehabilitation Facility, Inpatient Psychiatric Facility, Critical Access Hospital, Skilled Nursing Facility) to home is critical to ensure the transition success for Medicare beneficiaries. This includes having all the necessary equipment, prosthetics and/or orthotics available prior to discharge, properly fit, and with training completed on how to use the item completed, when possible.
For additional information and resources on this topic, see the CMS Medicare Learning Network article Medicare DMEPOS Payments While Inpatient (MLN#1541573) (cms.gov)
People with Medicare have only until December 7 to compare plans to see if they can save money or get better health and prescription drug coverage for 2022
Medicare plans coverage options and costs can change each year, and Medicare beneficiaries should evaluate their current coverage and choices, and select the plan that best meets their needs. If people with Medicare are satisfied with their current coverage and feel it will meet their needs for 2022, they to do not need to do anything.
View CMS public education resources for Medicare Open Enrollment at https://www.cms.gov/Outreach-and-Education/Reach-Out/Find-tools-to-help-you-help-others/Open-Enrollment-Outreach-and-Media-Materials
In the Elder Justice Newsletter, we highlight citations, including deficiencies related to abuse, neglect, and substandard care, that have been identified as not causing any resident harm. The goal of this brief newsletter is to shed light on the issue of so-called “no harm” deficiencies, which typically result in no fine or penalty to the nursing home.
This newsletter focuses on the following “no harm” violations:
- Out of breath: Facility fails to provide safe and appropriate respiratory care.
- A black eye: Facility fails to prevent physical abuse of resident.
- ‘Please help me’: Facility fails to provide safe, appropriate pain management.
- Threatening a resident: Facility fails to protect resident from verbal abuse by staff.
- Video violation: Facility fails to protect a resident’s right to personal privacy.
- Missing meds: Facility fails to provide necessary medication to a resident.
Do YOU think these deficiencies caused “no harm”? Click to download the newsletter.
Wednesday, December 15, 2021 @ 2 – 3 PM EST
Presented by Center Senior Policy Attorney Toby Edelman, and Health Policy Fellow Cinnamon St. John, this webinar will provide an overview of Nursing Home Quality of Care & Quality of Life Standards from a consumer perspective.
As a nonprofit organization, the Center relies on the generosity of donors to sustain a wide range of advocacy and educational initiatives. As we close out our 35th anniversary year, your support will help us continue our mission to advance access to comprehensive Medicare, health equity, and quality health care. If you are able to make a contribution by December 31 you will help us reach our fundraising goal by the end of the year. Most importantly, your support allows us to continue to build our diverse, multigenerational community and connect with even more families in need nationwide.
Donate at https://medicareadvocacy.org/donations/