- Final 2022 Rule for Medicare Parts C and D Released By Trump Administration
- Biden Administration Withdraws Harmful Rule Re: Dropping Medicare Part A Coverage
- New York State Attorney General Reports Staffing is Key to Determining Whether Covid-19 Affects Nursing Home Residents
- COVID-19 Vaccine Distribution and Health Equity
- Consumer Groups Sign on to Letter Asking Acting HHS Secretary to Suspend Geo Direct Contracting Demo
- Register Now! 2021 National Voices of Medicare Summit & Sen. Jay Rockefeller Lecture
On February 18, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule entitled “Medicare and Medicaid Programs; Contract Year 2021 and 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly” (CMS-4190-P).
The proposed rule touched on a range of issues relating to the Medicare Advantage (MA) and Part D prescription drug programs, including an effort to put into regulation, or codify, sub-regulatory rules and guidance previously issued by CMS. On April 6, 2020, the Center for Medicare Advocacy submitted comments to the proposed rule (generally referenced in this Alert as “Center comments”).
As discussed in Part II of this CMA Alert, on June 2, 2020 CMS issued a final rule addressing some of the provisions of the proposed rule, effective 2021 (CMS–4190–F), at 85 Fed Reg 33796 (June 2, 2020). CMS left the balance of the proposals to subsequent rulemaking. Some of the provisions of this final rule most relevant to Medicare beneficiaries are highlighted here; we also reference a previous Alert that goes into more detail.
As discussed in Part III of this CMA Alert, on the last full day of the Trump Administration, January 19, 2021, CMS issued a final rule for 2022 addressing most of the remaining provisions from the February 2020 proposed rule (CMS–4190–F2), at 86 Fed Reg 5864 (January 19, 2021). Some of the provisions of this final rule most relevant to Medicare beneficiaries are discussed her. In addition, an Addendum to this Alert includes more detail about the rule’s codification of marketing and communication guidance that, among other things, blurs the distinction between educational and marketing events.
- Read the full analysis at: https://medicareadvocacy.org/part-c-and-d-rule-analysis/
In a recent Inside Health Policy article titled “CMS Withdraws Last Three Trump-Era Regs From OMB Review” (January 29, 2021), journalist Michelle Stein reported that the Biden Administration “has withdrawn three separate Trump era regulations — one to allow individuals to access Social Security benefits without taking Medicare Part A coverage, one on third-party pay for dialysis and one on accrediting organization oversight.”
Focusing on the proposal to allow individuals to forego Part A coverage while collecting Social Security, Stein notes that it is:
tied to former President Donald Trump’s executive order on Medicare and would allow individuals to collect their Social Security benefits without participating in Medicare Part A. A 2012 D.C. Circuit case, Hall v. Sebelius, said there was no way under statute to sever the link between Part A and Social Security benefits after plaintiffs had sued to force then-HHS Secretary Kathleen Sebelius to provide a way for would-be Medicare beneficiaries to give up that coverage. But Trump directed HHS to create a path for people to give up such coverage, which the Center for Medicare Advocacy noted at the time was a long-standing conservative goal.
In a Weekly Alert (October 10, 2019) analyzing this October 2019 executive order referenced above, the Center for Medicare Advocacy discussed the potential damage to the Medicare program if this provision were finalized:
Allowing people to opt out of Medicare would undermine the universality of the Medicare program. Allowing individuals who can self-fund their health care to decline Medicare erodes shared experiences, commitment to, and investments in our nation’s flagship insurance program, and therefore can erode widespread, popular support for the program and make it more susceptible to negative changes. Further, if healthier and wealthier people opt out, as noted by Vox, it “would fundamentally alter the Medicare risk pool.”
We applaud the Biden Administration’s action to identify and withdraw this misguided rule.
In Nursing Home Response to COVID-19 Pandemic (Jan. 2021), New York State Attorney General Letitia James describes her office’s preliminary findings from its ongoing investigation into the state’s and nursing facilities’ responses to the coronavirus pandemic. The report is based on (1) information received through a hotline opened by the Office of the Attorney General (OAG) to receive reports of violations; (2) OAG’s analysis of data from the Centers for Medicare & Medicaid Services (CMS) and the Department of Health (DOH) concerning correlations of COVID-19 and facility ratings; and (3) OAG’s follow-up of direct and media reports about potential abuse and neglect. The Attorney General also reports that her office “is conducting ongoing investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern.”
Despite media reports focusing on the Attorney General’s finding that the state may have underreported the death rate of nursing home residents by 50% much of the 76-page report discusses the business model in many for-profit facilities that focuses on reducing staffing, related party actions, self-dealing, and facilities “essentially taking profit prior to ensuring care.”
The report describes prior cases handled by the Attorney General’s office and ongoing investigation that
reflect that this business model too often also includes extracting and transferring revenue received by for-profit nursing homes to related parties in a manner that enriches entities and individuals who have control over the nursing home, as well as their family members and business associates, at the expense of resident care and safety. These transfers of funds from such for-profit nursing homes occur through a variety of complex contractual relationships and transactions between private parties in order to enhance profit for owners, investors, landlords, and other private parties with relationships to the nursing home owners and operators, even though New York regulations prohibit directly extracting capital from a facility unless certain criteria are met.
Rejecting the nursing home industry’s repeated claim that facilities are blameless for cases and deaths caused by the pandemic, Attorney General James finds that the majority of resident deaths occurred in facilities with low nurse staffing levels. Even in New York City and neighboring counties, where the impact of COVID-19 was harshest at the beginning of the pandemic, facilities with the highest staffing levels had half the death rate of facilities with few staff. Attorney General James concludes, “Staffing was more determinative of death rates than ‘COVID-19 geography.’”
Recommendations include requiring direct care and supervision staffing levels; requiring “additional and enforceable transparency in the operation of for-profit nursing homes,” eliminating immunity provisions, and increasing staff at the Department of Health.
Appendix B discusses the Attorney General’s pre-pandemic investigation, findings, and criminal prosecution of the owner and manager of a New York nursing facility, Focus Rehabilitation and Nursing Center at Otsego, that illustrates “the too prevalent ‘low staffing for profit’ model of exploitation through insufficient staffing, lack of transparency, and financial incentives.”
 Nursing Home Response to COVID-19 Pandemic (ny.gov).
 Id. 13.
 New York Attorney General, “Attorney General James Releases Report on Nursing Homes’ Response to COVID-19” (Press Release, Jan. 28, 2021), Attorney General James Releases Report on Nursing Homes’ Response to COVID-19 | New York State Attorney General (ny.gov).
 Nursing Home Response to COVID-19 Pandemic, p. 23.
 In a December 2020 interview with McKnight’s Long-Term Care News, reported on January 5, 2021, the American Health Care Association’s Mark Parkinson said, “This pandemic was not the fault of long-term care and the rapid spread of the virus in long-term care facilities also wasn’t the fault of long-term care or the buildings. It has to do with the asymptomatic spread of an incredibly contagious virus.” Liz Berger, “Parkinson: ‘Bold proposals’ expected for long-term care transformation,” McKnight’s Long-Term Care News (Jan. 5, 2021), https://www.mcknights.com/news/parkinson-bold-proposals-expected-for-long-term-care-transformation/.
 Nursing Home Response to COVID-19 Pandemic, p. 30.
 Id. 63. The facility, now known as Cooperstown Center for Rehabilitation and Nursing, has an overall rating of one star (the lowest possible rating) of five stars on the federal website CareCompare, as of February 1, 2021. It also has a one-star rating in health inspections and a two-star rating in staffing.
As the Center for Medicare Advocacy has highlighted throughout the pandemic, communities of color are disproportionately affected by COVID-19, in terms of rate and severity of illness. At the end of 2020, the news of the COVID-19 vaccine’s efficacy in studies brought much needed optimism that the end of the pandemic was possible. However, actual rates of vaccinations and equity of vaccine distribution were uncertain. Some states developed distribution plans that specifically considered these disproportionate impacts.
Now that vaccinations have begun across the country, some initial research has been published. The overall vaccination rate has remained low in the United States; as of the beginning of February 2021, just over 8% of the population has been partially vaccinated and only 2% have been fully vaccinated. Though eligibility guidelines vary, in most areas vaccines have primarily been reserved for health care workers and residents and staff of facilities. Data on vaccination rates by race/ethnicity is limited. Though analysis of vaccination access and equity is limited in scope, some early data points are troubling.
This week the Kaiser Family Foundation released analysis from early vaccination rates, which reveals some warning signs about racial disparities in access and administration of COVID-19 vaccines. Across the 23 states reporting vaccination data by race and ethnicity, there was a consistent pattern of Black and Hispanic people receiving smaller shares of vaccinations compared to their shares of cases and deaths and compared to their shares of the total population.
The CDC also released demographic data this week reflecting vaccinations in the US from the first month (December 14-January 14), which also raised concerns. The report found that of those receiving vaccinations, where CDC had demographic data, about 60% were White, 11% were Hispanic/Latino, 6% were Asian, and 5% were Black, though it stressed limitations due to lack of comprehensive data.
The CDC report called on additional data collection efforts in order to identify and address potential disparities. “…[F]indings underscore the need for more complete reporting of race and ethnicity data at the provider and jurisdictional levels to ensure rapid detection of and response to potential disparities in COVID-19 vaccine administration. Jurisdictions should monitor the demographic characteristics of vaccinated persons to identify emerging disparities.”
A New York Times report had similar findings. “Although low-income communities of color have been hit hardest by Covid-19, health officials in many cities say that people from wealthier, largely white neighborhoods have been flooding vaccination appointment systems and taking an outsized share of the limited supply.” One example of this contrast provided was Philadelphia, where only 12% of those inoculated were Black, even though the city’s population is 44% Black.
Due to this early data, some areas are attempting to target vaccinations directly to communities most in need. The article cited plans in various cities aimed at increasing vaccinations for those in hardest hit areas. Baltimore will offer the vaccine in housing complexes for the elderly, going door-to-door, and Washington, DC began offering vaccine appointments for zip codes with highest rates of infection and death, before opening up appointments for other portions of the city, as well as increasing the number of workers helping people get appointments.
The new approaches based on the available data underscore the need for more detailed, standardized, comprehensive data on vaccination rates by race and ethnicity. Without more detailed data, required of all states, it will be challenging to address and adjust vaccine distribution to ensure communities suffering disproportionately from COVID-19 have access to vaccines. Vaccine hesitancy, particularly among groups hardest hit by the virus, is another issue that must be considered in policies that target vaccines to communities most in need. Polling from fall 2020 showed that vaccine concerns were prevalent in communities of color. Though support for the vaccine has increased over the last few weeks, these concerns, as well as the historical context in which they arise, must be considered when striving to increase vaccination rates.
As discussed in a recent Center for Medicare Advocacy Weekly Alert (December 17, 2020), the Centers for Medicare & Medicaid Services (CMS) announced a new Geographic Direct Contracting Model demonstration (the “Geo Model”) aimed at coordinating care and clinical management for beneficiaries in traditional Medicare in their region. CMS is currently accepting applications for participating direct contracting entities (DCEs). The Geo Model is slated to begin in January 2022, and will be overseen by the Centers for Medicare & Medicaid Innovation (CMMI), a division of CMS.
According to a Commonwealth Fund blog post assessing the geo demo, “[t]his model will have the effect of enrolling Medicare beneficiaries into a managed care–like plan; it is one of the most significant changes to the way Medicare beneficiaries receive health care since managed care was introduced into Medicare in the 1970s.
In our Alert, we stated that “[i]n many ways, the “Geo Model” appears to turn more of the federal Medicare program over to private insurers – privatizing the Medicare program even beyond the growth in Medicare Advantage […] This new Model would actively target the still-majority of Medicare beneficiaries who choose not to enroll in private, managed care plans, and, in effect, force them to do so.” The Center urged the incoming Biden Administration to suspend implementation of this demonstration.
In a January 29, 2021 sign-on letter, several national non-profit organizations joined the Center for Medicare Advocacy in urging the Acting Secretary of the Department of Health and Human Services to suspend implementation of the geo direct contracting model. The Center was joined by Aging Life Care Association, Justice in Aging, Medicare Rights Center, National Adult Day Services Association (NADSA), National Association of Social Workers (NASW) and National Council on Aging (NCOA).
The letter noted that “[b]ased on the information available to date, we are concerned about issues surrounding oversight and accountability of DCEs.” The letter also questioned the model’s “rushed roll-out” and outlined “a number of unanswered questions and unaddressed issues surrounding the demo […]” and concluded by “respectfully request[ing] that the Biden Administration pause implementation of the Geo demo until, at the very least, these issues and questions have been resolved.”
The Center for Medicare Advocacy is pleased to announce that the 2021 National Voices of Medicare Summit & Sen. Jay Rockefeller Lecture will take place virtually on April 1, 2021.
This year the Center marks 35 Years of Medicare Advocacy. We will celebrate that milestone with discussions of where Medicare and health care have been, where they should be, and where we are headed.
We are honored to announce Dr. Donald M. Berwick, former Administrator of the Centers for Medicare & Medicaid Services, and former director of the Institute for Healthcare Improvement, as the 2021 Sen. Jay Rockefeller Lecturer.