CMA Alert | February 3, 2022

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Medicare Announces Coverage of Free Over-the-Counter COVID Tests

As discussed in last week’s CMA Alert, on January 10, 2022 the Biden Administration announced that certain private insurance companies and group health plans must cover the cost of over-the-counter, at-home COVID-19 tests. While the administration is also taking additional steps to expand access to free at-home tests, Medicare had been excluded from this requirement.

Today, February 3, 2022, the Centers for Medicare & Medicaid Services (CMS) announced that Medicare will cover free over-the-counter COVID-19 tests. We applaud CMS for overcoming technical hurdles and finding “a pathway that will expand access to free over-the-counter testing for Medicare beneficiaries.”

According to the announcement, “people in either Original Medicare or Medicare Advantage will be able to get over-the-counter COVID-19 tests at no cost starting in early spring. Under the new initiative, Medicare beneficiaries will be able to access up to eight over-the-counter COVID-19 tests per month for free. Tests will be available through eligible pharmacies and other participating entities. This policy will apply to COVID-19 over-the-counter tests approved or authorized by the U.S. Food and Drug Administration (FDA).”

The announcement goes on to say that until these tests are available in early Spring, “people with Medicare can access free tests through a number of channels established by the Biden-Harris Administration. Medicare beneficiaries can:

• Request four free over-the-counter tests for home delivery at covidtests.gov.
• Access COVID-19 tests through healthcare providers at over 20,000 free testing sites nationwide. A list of community-based testing sites can be found here.
• Access lab-based PCR tests and antigen tests performed by a laboratory when the test is ordered by a physician, non-physician practitioner, pharmacist, or other authorized health care professional at no cost. In addition to accessing a COVID-19 lab test ordered by a health care professional, people with Medicare can also already access one lab-performed test without an order, also without cost sharing, during the public health emergency.

In addition:

• Medicare Advantage plans may offer coverage and payment for over-the-counter COVID-19 tests as a supplemental benefit in addition to covering Medicare Part A and Part B benefits, so Medicare beneficiaries covered by Medicare Advantage should check with their plan to see if it includes such a benefit.  

All Medicare beneficiaries with Part B are eligible for the new benefit, whether enrolled in a Medicare Advantage plan or not.

For more information, please see these Frequently Asked Questions: https://www.cms.gov/files/document/covid-19-over-counter-otc-tests-medicare-frequently-asked-questions.pdf (PDF)”

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Senate Finance Committee Holds Hearing on Medicare Solvency

On February 2, 2022, the Senate Finance Committee’s Subcommittee on Fiscal Responsibility and Economic Growth held a hearing entitled “The Hospital Insurance Trust Fund and the Future of Medicare Financing” (for a link to a recording of the hearing, see here).

The annual release of the Medicare Trustees report – which projects the fiscal health of the Medicare program and focuses on the Part A Trust Fund – often serves as an impetus for calling for Medicare changes and cuts.  The latest report, released in August 2021, projects that the Part A Trust Fund will be depleted by 2026 – unchanged from the previous projection, despite the impact of the COVID-19 pandemic. 

As the Center periodically notes, even if the Trust Fund were to be depleted as projected, the program would still be able to pay out approximately 90% of Medicare Part A benefits. While not ideal, this is far from “bankruptcy.”  Further, the date of projected insolvency is an estimate, and could easily change again – as it has many times before.

Medicare’s fiscal solvency can be strengthened through various means.  In a Statement for the Record submitted to the Committee concerning the hearing, the Center included an excerpt from a May 2021 issue brief written by Center for Medicare Advocacy Visiting Scholar Marilyn Moon that examines how Medicare has operated over time, how well it is doing at present, and what changes have been used in the past to keep the program financially strong.  The excerpt outlines potential short-term and long-term funding solutions through raising additional revenues.  The submitted statement also focuses on one simple option for reducing programmatic spending – addressing ongoing Medicare Advantage overpayments.

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New York Nursing Homes Suing the State Received Federal Provider Relief Funds

Last week, the Center for Medicare Advocacy (Center) issued a Report about New York State nursing facilities and their trade associations that sued their State to prevent implementation of a new State law requiring them to spend 70% of their revenues on care (including 40% on “resident-facing staff”) and limiting their profits to 5%.  Effective January 2022, the new law requires facilities to remit to the State any “excess revenue” not meeting these accountability measures.  The facilities argue in their lawsuit that if these two provisions in the 2021-22 State budget law had been implemented in 2019, they would have been required to remit $824 million to the State.[1]

The Center reported that the plaintiff nursing facilities include one of three Special Focus Facilities (SFF)[2] in New York State, five of New York’s 15 candidates for the SFF Program, and seven of 11 facilities sued by the U.S. Attorney for the Southern District of New York in June 2021 for allegedly fraudulently billing Medicare for unnecessary services, in violation of the federal False Claims Act.  This Alert discusses the $19,529,428 in Provider Relief Funds received by the 13 plaintiff facilities.

Provider Relief Funds

During the coronavirus pandemic, the Department of Health and Human Services (HHS) has provided billions of dollars to health care providers that providers are not required to repay.[3]  The Center reported in March 2021 that the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted in March 2020, has been distributed to providers in multiple phases.[4]  Although the CARES Act requires facilities to spend money awarded under the Provider Relief Fund (PRF) on “health care related expenses or lost revenues that are attributable to coronavirus,”[5] then-CMS Administrator Seema Verma said, as she announced the initial payout of $1.5 billion to skilled nursing facilities in April 2020, that the federal money comes with “‘no strings attached.’”[6]  In phase one, all certified skilled nursing facilities (SNFs) with six or more certified beds were eligible to receive $50,000 per facility plus $2,500 per bed.[7]  More than 13,000 certified SNFs received a total of $4.9 billion.  The Washington Post estimated in August 2020 that “the average distribution was $315,000, with some larger facilities receiving $3 million or more.”[8]  Later payments to nursing facilities from PRF in Phase 3 were based on “performance-based incentive payments.”[9]  However, multiple newspapers documented that facilities that were cited with, and fined for, infection control deficiencies received “performance-based incentive payments” and that that these payments often exceeded their fines.[10]  Additional funding of $25.5 billion under Phase 4 was announced in September 2021.[11]

As described below, the 13 facilities discussed by the Center last week received PRF funding totaling $19,529,428.  The average PRF payment for each of the 13 facilities is $1,502,264, with a range of $545,135 to $2,511,679.  The Center identified these PRF payments from federal data.[12]

Provider Relief Funds Received by Plaintiff Nursing Facilities

Special Focus Facility and Candidates

The one SFF, Pontiac Care and Rehabilitation (reported in the CDC dataset as Pontiac Nursing Home) received $545,135 in PRF.

Plaintiff Facilities that Are SFF Candidates (as of Dec. 8, 2021) and Provider Relief Funds

Licensee Name (According to the Complaint)	Paragraph in Complaint	Name in CDC Dataset	Provider Relief Funds
Buffalo Center for Rehabilitation and Nursing	48	Delaware Operations Associates, LLC	$1,851,138
FoltsBrook Center for Rehabilitation and Nursing	225	FoltsCare, LLC	$   990,051
The Grand Rehabilitation and Nursing at Guilderland	129	Guilderland Operator, LLC	$   963,807
The Grand Rehabilitation and Nursing at Barnwell	133	Barnwell Operations Associates, LLC	$ 1,978,837
Wesley Gardens	214	Wesley Gardens Corp.	$ 1,211,976

Facilities Sued by the U.S. Attorney

Plaintiff Facilities, Sued by the U.S. Attorney, Southern District of New York, in June 2021 for Allegedly Overbilling the Medicare Program, and Provider Relief Funds

Licensee Name (According to the Complaint)	Paragraph in Complaint	Name in CDC Dataset	Provider Relief Funds
Excel at Woodbury	189	Same	$ 1,643,537
Long Island Care Center	107	Same	$ 1,663,423
North Westchester Restorative Therapy & Nursing	253	Treetops Rehabilitation and Care Center	$ 1,498,294
Sutton Park Center for Nursing & Rehabilitation	142	Same	$ 1,304,938
Suffolk Restorative Therapy	98	Same	$ 2,511,679
Oasis Rehabilitation and Nursing	121	Same	$ 1,707,001
Surge Rehabilitation &Nursing	195	Same	$ 1,659,612

Discussion and Conclusion

Although there has been little accountability to date for the COVID-19 relief money that SNFs and other providers have received, HHS is authorized to audit providers that received PRF “to ensure that program requirements are met.”[13] HHS has hired multiple outside contractors, including KPMG and PricewaterhouseCoopers, to conduct audits.[14] The HHS Office of Inspector General (OIG) announced that the Office of Audit Services would conduct audits of providers that applied for General Distribution under Phases 1-3.[15]

In December 2021, OIG announced that, as part of six case studies organized by the Pandemic Response Accountability Committee, it will “identify how nursing homes used the [COVID-19 Provider Relief] funds to support their COVID-19 response, improve infection control practices, and assess selected outcomes from that use of funds.”[16] OIG anticipates releasing the report, “COVID-19 Pandemic Relief Funding and Its Effect on Nursing Homes: Case Study,” OEI-066-22-00040, in 2023.

The 13 New York SNFs that are SFF candidates or were sued by the U.S. Attorney in June 2021 for allegedly overbilling Medicare received $19,529,428 in Provider Relief Funds.  How did they spend the federal funds?

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[1] “How Do Nursing Homes Spend the Reimbursement They Receive for Care?” (CMA Report, Jan. 26, 2022), https://medicareadvocacy.org/how-nursing-homes-spend-public-money/ 
[2] The Centers for Medicare & Medicaid Services (CMS) updated the Special Focus Facility lists on January 26, 2022.  The facilities identified in the Center’s January 26 Report, based on CMS’s December 8, 2021 lists, remain on the lists.  
[3] CDC. HHS Provider Relief Fund, https://data.cdc.gov/Administrative/HHS-Provider-Relief-Fund/kh8y-3es6 
[4] Center for Medicare Advocacy, “Nursing Facilities Have Received Billions of Dollars in Direct Financial and Non-Financial Support During Coronavirus Pandemic” (Special Report, Mar. 17, 2021), https://medicareadvocacy.org/report-snf-financial-support-during-covid/ 
[5] CMS, Acceptance of Terms and Conditions, https://www.hhs.gov/sites/default/files/terms-and-conditions-skilled-nursing-facility-relief-fund.pdf 
[6] Verma said, “There are no strings attached, so the health care providers that are receiving these dollars can essentially spend that in any way that they see fit.” Alex Spanko, “$1.5B Medicare Cash Influx to Skilled Nursing Facilities Has Strings Attached – and Some May Not Keep It,” Skilled Nursing News (Apr. 13, 2020), https://skillednursingnews.com/2020/04/1-5b-medicare-cash-influx-to-skilled-nursing-facilities-has-strings-attached-and-some-may-not-keep-it/ 
[7] HHS, “HHS Announces Nearly $4.9 billion Distribution to Nursing Facilities Impacted by COVID-19” (News Release, May 22, 2020), https://public3.pagefreezer.com/browse/HHS.gov/31-12-2020T08:51/https://www.hhs.gov/about/news/2020/05/22/hhs-announces-nearly-4.9-billion-distribution-to-nursing-facilities-impacted-by-covid19.html 
[8] Debbie Cenziper, Joel Jacobs and Shawn Mulcahy, “Nursing home companies accused of misusing federal money received hundreds of millions of dollars in pandemic relief,” The Washington Post (Aug. 4, 2020), https://www.washingtonpost.com/business/2020/08/04/nursing-home-companies-accused-misusing-federal-money-received-hundreds-millions-dollars-pandemic-relief/ 
[9] CMS, “Nursing Home Quality Incentive Program Methodology” (Dec. 7, 2020), https://www.hhs.gov/sites/default/files/nursing-home-qip-methodology.pdf 
[10] See Zack Newman and Kevin Vaughn, “117 Colorado nursing homes with COVID outbreaks received both fines and financial assistance from the federal government,” The Colorado Sun (May 9, 2021), https://coloradosun.com/2021/05/09/colorado-nursing-home-fines-coronavirus/ and “Michigan nursing homes rewarded thousands of dollars after not following COVID protocols; Hundreds of nursing homes cited,” (May 25, 2021), https://www.clickondetroit.com/news/local/2021/05/24/michigan-nursing-homes-rewarded-thousands-of-dollars-after-not-following-covid-protocols/, discussed in Center, “Nursing Homes Fined for Infection Control Should Not Receive COVID-19 ‘Performance Based’ Relief Funds” (CMA Alert, May 27, 2021), https://medicareadvocacy.org/no-extra-funds-for-poor-performers/ 
[11] HHS, “HHS Announces the Availability of $25.5 Billion in COVID-19 Provider Funding” (Press Release, Sep. 10, 2021), https://www.hhs.gov/about/news/2021/09/10/hhs-announces-the-availability-of-25-point-5-billion-in-covid-19-provider-funding.html 
[12] On January 25, 2022, the Department of Health and Human Services (HHS) announced the distribution of an additional two billion dollars from the PRF.  HHS, “HHS Distributing $2 Billion More in Provider Relief Fund Payments to Health Care Providers Impacted by the COVID-19 Pandemic” (Press Release, Jan. 25, 2022), https://www.hhs.gov/about/news/2022/01/25/hhs-distributing-2-billion-more-provider-relief-fund-payments-health-care-providers-impacted-covid-19-pandemic.html.  The HHS Press Release includes a link to a dataset from the Centers for Disease Control and Prevention that identifies every provider in the country that has received PRF funds.  https://data.cdc.gov/Administrative/HHS-Provider-Relief-Fund/kh8y-3es6. 
[13] Health Resources & Services Administration, “Provider Relief Fund General Information,” https://www.hrsa.gov/provider-relief/faq/general 
[14] Wachler & Associates Health Law Blog, “HHS Expands Its Capability to Audit the Provider Relief Fund” (Sep. 1, 2021), https://www.wachlerblog.com/hhs-expands-it-capability-to-audit-the-provider-relief-fund/.  See also REDW, “Your Guide to the Provider Relief Fund Single Audit Requirement” (Nov. 9, 2021), https://www.redw.com/blog/2021/11/09/your-guide-to-the-provider-relief-fund-single-audit-requirement/ 
[15] OIG, “Audit of CARES Act Provider Relief Funds – Payments to Health Care Providers That Applied for General Distribution Under Phases 1, 2, and 3,” https://oig.hhs.gov/reports-and-publications/workplan/summary/wp-summary-0000587.asp 
[16] OIG, “COVID-19 Pandemic Relief Funding and Its Effects on Nursing Homes: Case Study,” https://oig.hhs.gov/reports-and-publications/workplan/summary/wp-summary-0000634.asp

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Hospitalized COVID-19 Patients with Disabilities Linked to Longer Stays & Greater Risk of Readmission

A recent study published in the Canadian Medical Association Journal found that people with disabilities hospitalized with COVID-19 had longer hospital stays and a greater risk of readmission when compared to those without disabilities.[1] Researchers drew these conclusions after conducting a retrospective study analyzing adults with COVID-19 who were hospitalized and discharged between January 1, 2020 and November 30, 2020 at seven hospitals in Canada.

“Longer hospital stays and higher risk of readmissions for patients with disabilities,” according to the authors of the report, “may reflect slower recovery and increased vulnerability to recurrent illness because of physiologic differences.” The patients with a disability captured in the study tended to be older than those without a disability, were less likely to be male, and were more likely to be residents of long-term care facilities and have comorbidities. According to the Centers for Disease Control and Prevention, some people with disabilities are more likely to get infected with COVID-19 or have severe illness because of “underlying medical conditions, congregate living settings, or systemic health and social inequalities.”[2]

The authors concluded that “disability-related needs should be addressed to support these patients in hospital and after discharge.”[3] Recommendations included:

• Providing support persons to assist in communication for patients with sensory, intellectual, or developmental disabilities;
• Training for clinicians about the rights of people with disabilities; and
• Prioritizing people with disabilities for COVID-19 vaccinations.

The authors also emphasized that pandemic response efforts should be prioritized to ensure equitable care for COVID-19 positive patients with disabilities.

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[1] Brown, H. K., Saha, S., Chan, T. C. Y., Cheung, A. M., Fralick, M., Ghassemi, M., Herridge, M., Kwan, J., Rawal, S., Rosella, L., Tang, T., Weinerman, A., Lunsky, Y., Razak, F., & Verma, A. A. Outcomes in patients with and without disability admitted to hospital with COVID-19: A retrospective cohort study. (Jan. 31, 2022). Canadian Medical Association Journal, 194(4). https://doi.org/10.1503/cmaj.211277 
[2] CDC. People with Disabilities. Centers for Disease Control and Prevention. (June 21, 2021). Available at: https://www.cdc.gov/ncbddd/humandevelopment/covid-19/people-with-disabilities.html#:~:text=Most%20people%20with%20disabilities%20are,severe%20illness%20from%20COVID%2D19. 
[3] Ibid.

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New Resource | Home Health FAQs

Do you need practical information and resources on Medicare’s home health benefit? The Center for Medicare Advocacy is pleased to share the following Home Health Frequently Asked Questions based on inquiries we have received about this often-misunderstood benefit. This information should be useful for Medicare beneficiaries in need of home health care, as well as for their advocates. In addition to these questions and answers, recordings of two webinars on Medicare coverage of home health services, presented January 12 and 19, 2022, are available here.

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FREE WEBINAR | Medicare Home Health and DME Update

Thursday, April 28, 2022 @ 1 – 2:30 PM EST

Sponsored by California Health Advocates

Understanding Medicare is important to those who currently qualify for health coverage through Medicare, or may qualify in the future. An Overview of Medicare for People Living With Paralysis includes information on eligibility, enrollment, coverage (with a special emphasis on home health care and durable medical equipment: related laws, regulations, policies and practical tips to assist people living with paralysis to access home and community-based Medicare coverage), and choosing between traditional Medicare and Medicare Advantage. 

Presented by Center for Medicare Advocacy Executive Director, attorney Judith Stein, and Associate Director, attorney Kathleen Holt, the presentation includes a 30-minute live question & answer session.

Register Now: https://attendee.gotowebinar.com/register/1457421769888387854