- If it Looks Like Health Care Sabotage and it Sounds Like Health Care Sabotage…
- CMS Issues Request for Information on “Direct Provider Contracting:” Beneficiary Advocates Take Note
- Corporate Integrity Agreements and Nursing Homes
In a recent speech to the World Health Care Congress, CMS Administrator Seema Verma reportedly said “I take exception to those out there who have made claims that we have tried to sabotage the health care of the American people, particularly when it comes to the health-care exchanges. Obamacare was failing long before Donald Trump became president and I became CMS administrator…” In light of this statement, after consulting a thesaurus, we highlight how the administration has attempted to obstruct, impair and undermine healthcare.
Here are just some of the ways the administration has
sabotaged negatively impacted health care:
- President Trump is quoted as saying “Let Obamacare fail; it'll be a lot easier.”
- HHS created a website which describes the Affordable Care Act (ACA) as having “done damage to this market and created great burdens for many Americans.”
- President Trump is quoted as saying “I’ve been saying for the last year and a half that the best thing we can do politically speaking is to let Obamacare explode…”.”
- The administration refused to pay Cost Sharing Reductions (CSRs) to help lower-income consumers afford coverage.
- The U.S. Department of Health and Human Services (HHS) decided to not participate in events with advocates to educate consumers about open enrollment and their plan options.
- HHS cut the open enrollment outreach and advertising budget by 90%.
- HHS cut funding for many “navigator” organizations that help people enroll by almost 50%.
- Healthcare.gov was shut down during critical times during the open enrollment season. On the first day of open enrollment, the site was shut down overnight.
- HHS canceled contracts to provide enrollment assistance in various cities around the country.
- In 2017, HHS cut the time in half for consumers to enroll in an ACA Marketplace plan.
- President Trump included a proposal in his budget to slash millions in spending for healthcare.gov
- The LA Times reported that Seema Verma suggested to insurers that “The administration would fund the CSRs if insurers supported the House Republican bill to repeal the Affordable Care Act.”
- President Trump touted and signed a bill that gave tax cuts to wealthy individuals and repealed the ACA’s individual mandate. Even former HHS Secretary Tom Price said this will cause “individuals who are younger and healthier not participating in that market, and consequently, that drives up the cost for other folks within that market.”
- President Trump signed an executive order directing the administration to seek the expansion of Association Health Plans and Short-Term, Limited-Duration Plans. These plans do not meet basic benefit criteria and offer little real coverage. The executive order also contained a provision that will allow, according to the Center for American Progress, “employers to use health reimbursement accounts to move their less healthy employees into the individual insurance market, increasing premium costs in that market.”
- President Trump is quoted as saying “Obamacare is finished. It’s dead. It’s gone…You shouldn’t even mention it. There is no such thing as Obamacare anymore.”
- HHS used tax payer funds to create and post videos on its YouTube channel of people who described being “burdened” by the ACA. An HHS spokesperson called these “educational” videos.
- Former HHS Secretary Price, while Secretary, sent a series of anti-ACA infographics describing the ACA as “a losing hand for Nevada, the wrong horse for Kentucky, and leaving Alaska out in the cold.”
- HHS released its draft FY 2018- 2022 Strategic Plan that made virtually no reference to implementing the ACA.
- It was reported that the administration would auto-enroll millions of Americans into plans without conducting sufficient outreach to encourage them to shop around for a better deal.
- The administration issued a proposed rule to allow more Association Health Plans that could be treated like large employer plans, which don’t have to play by the same ACA coverage rules for the individual or small group market.
- Senator Bob Casey released the “sabotage document” that detailed a secret plan to undermine the ACA through executive actions. Senator Casey said in Politico that “The primary problem here is government officials, government agencies, were taking steps that would lead to fewer people having coverage and erecting barriers to people having coverage. In addition to that, you have kind of a closed-door, back-room slimy deal here that should trouble anyone.”
- The president’s fiscal year 2019 budget sought to repeal the ACA and replace it with something similar to the failed Graham-Cassidy-Heller-Johnson plan. The HHS budget summary called for implementing this plan “as soon as possible.”
- The states of New York and Minnesota sued the administration for cutting funding for state-based programs that provide health coverage for low-income people. The states received "abrupt" notice that funding for their ACA authorized programs would be cut. A New York state official is quoted as calling the cuts “a cruel and reckless assault…”
- It was reported that the administration conditioned its support of legislation to stabilize the Marketplace on it including proposals that would expand the sale of junk plans and raise premiums for older people – up to five times as much as what younger people pay.
- The administration released the Protecting Statutory Conscience Rights in Health Care Proposed Rule. This amounted to a discriminatory attack on health care rights, allowing providers to refuse to provide care based on their individual concerns.
- The Sunlight Foundation’s Web Integrity Project issued a report showing that information about ACA coverage of mammograms had been removed from WomensHealth.gov.
- HHS issued the Notice of Benefit and Payment Parameters for 2019 Final Rule which would lower the threshold of covered essential ACA health services and leave many consumers without access to the care they need. In addition to undermining essential services, the rule also negatively impacts network adequacy, rate review, navigators and the Medical Loss Ratio, which requires insurance companies to use a set, minimum amount of premiums to pay for health care.
- The administration issued the Short-Term, Limited-Duration Insurance Proposed Rule which would allow the sale of fake insurance. These plans will do nothing but undermine benefits, erode coverage protections, and inflate costs for people who are older or have pre-existing conditions.
- The administration is reportedly examining weakening the ACA’s non-discrimination protections. Specifically, there are potential changes to Section 1557, which prohibits discrimination in health care.
- HHS issued a Request for Information, Promoting Healthcare Choice and Competition Across the United States, which negatively referred to the ACA as “expensive” and “mandate laden.”
- Vice President Pence is quoted as saying “Obamacare has failed and Obamacare must go.”
These actions by the Administration have obstructed, impaired, and undermined access to quality coverage and health care.
It is health care sabotage.
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The Affordable Care Act created the Centers for Medicare & Medicaid Innovations (CMMI), which is tasked with testing demonstration programs aimed at delivery system reform. According to a press release describing feedback to a Request for Information (RFI) on “new directions” for CMMI, the Centers for Medicare & Medicaid Services (CMS) has been engaged in an effort to “collect ideas on a new direction for the agency’s Innovation Center to promote patient-centered care and test market driven reforms that: empower beneficiaries as consumers, provide price transparency, increase choices and competition to drive quality, reduce costs, and improve outcomes.”
The April 23, 2018 CMS press release goes on to announce a new Request for Information, based on feedback received in an RFI issued last fall: “CMS is also taking a next step to develop a potential model in the area of direct provider contracting, informed in part by the RFI. A direct provider contract model would allow providers to take further accountability for the cost and quality of a designated population in order to drive better beneficiary outcomes.”
CMS solicits feedback on a range of issues relating to a potential direct provider contracting (DPC) model, including consumer protections. However, the overall proposal is so vague and limited in details that it is difficult to tell whether the model could be a re-animation of harmful proposals from the past which would expand current private contracting arrangements between physicians and Medicare beneficiaries (that now require providers to “opt out” of accepting Medicare for a period of time), allow providers to bill above set Medicare limits, or something more benign.
Rather than a more concrete proposal on which to comment, the RFI both explicitly asks and begs far more questions than it answers. Important issues include: what can providers charge beneficiaries for what services, and will it be more than currently allowed under Medicare rules? Will beneficiaries be “locked-in” to certain providers? How would this model coordinate with other coverage, such as a Medigap plan? Who would this model serve best – more wealthy beneficiaries seeking boutique-type medical practices, or the majority of Medicare beneficiaries?
Despite the vagueness of the proposal, the Center and other advocacy organizations plan to submit comments, including requesting answers to the above questions and more details on the model. We encourage those who are able to comment or raise questions to do so as well.
Comments are due May 25, 2018.
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In their April 2, 2018 letter to CMS Administrator Seema, Republican leaders of the House Energy and Commerce Committee express serious concern about “recent media reports describing horrific instances of abuse, neglect, and patient harm allegedly occurring at SNFs and NFs across the country.” They focus particular attention on Dr. Jack Michel, an owner of Hollywood Hills, the Florida nursing facility where 14 residents died when the facility’s air conditioning system failed during Hurricane Irma. In 2006, they note, Dr. Michel had been an owner of another health care facility that had been subject to a civil settlement under the False Claim Act.
Although Dr. Michel’s 2006 settlement included a Corporate Integrity Agreement (CIA), the CIA is no longer available on the Inspector General’s homepage. In fact, it is impossible to learn what that settlement was about and whether Dr. Michel and his co-owners complied with the terms of the CIA or were found to have been in default.
The lack of information led the Center for Medicare Advocacy to look into CIAs, particularly as they are used in settlement of False Claims Act cases about quality of care in nursing homes (also known as “worthless services” cases).
Quality of Care Corporate Integrity Agreements
The Office of Inspector General (OIG) signs quality of care CIAs with health care providers in exchange for not excluding the providers from Medicare, Medicaid, and other health care programs under its permissive exclusion authority. CIAs usually last five years and require an external monitor of quality of care, who visits facilities subject to the CIA, “analyzes available data, observes facility and corporate level committee meetings, and reviews relevant documents.” Monitors submit “regular written reports to the provider and OIG.”
The only information about quality of care CIAs that are currently in effect, however, is the press release announcing settlement of the case and the CIA itself.
For example, an October 10, 2014 News Release of the U.S. Department of Justice describes “the largest failure of care settlement with a chain-wide skilled nursing facility in the department’s history” – a settlement by the United States and eight states with Extendicare resolving allegations that the corporation “billed Medicare and Medicaid for materially substandard nursing services that were so deficient that were effectively worthless and unnecessary rehabilitation therapy services.” The settlement requires the corporation to pay $38 million to the Federal Government and eight states and to “have a comprehensive compliance program with systems to address the quality of resident care” and “retain an independent monitor, selected by the OIG, who will regularly visit Extendicare’s facilities and report to the OIG.” In addition, an independent review organization “will perform annual reviews of Extendicare’s claims to Medicare.” The CIA appears to apply to Extendicare’s 146 skilled nursing facilities in 11 states.
The OIG’s website includes the 69-page CIA with Extendicare, which, among other obligations, requires Extendicare to
- provide the Monitor with monthly reports of deaths or injuries related to restraints, psychotropic medications, abuse or neglect of residents, “any other incident that involves or causes actual harm to a resident when such incident is required to be reported to any local, state, or federal government agency,”
- “within 30 days after discovery,” notify the OIG, in writing, “of any ongoing investigation or legal proceeding known to Extendicare conducted or brought by a governmental entity or its agents involving an allegation that Extendicare has committed a crime or has engaged in fraudulent activities,”
- “within 15 days after notification,” notify OIG “in writing, of any adverse final determination made by a federal, state, or local government agency or accrediting or certifying agency (e.g., Joint Commission) relating to quality of care issues.”
Nothing else about the CIA with Extendicare is public.
In a 2009 report, the Inspector General evaluated 15 nursing home corporations, with 1104 nursing facilities, whose CIAs began between June 2000 and December 2005. While the OIG said it could not assess the quality of care of facilities under CIAs, it analyzed survey deficiency data for 47 tags that CMS used to identify substandard quality of care (SQC) and calculated an Index Score for each corporation. Table 9 in Appendix D showed that corporations with CIAs generally continued to be cited with SQC deficiencies at rates higher than other facilities during the terms of their CIAs. In other words, OIG seems to have reported that CIAs did not improve the quality of care at the nursing facilities where they were in effect.
Questions and Recommendations
The Center for Medicare Advocacy questions whether secrecy about CIAs is appropriate when the Government chooses CIAs instead of exclusion in a quality of care/worthless services case. This concern is intensified by the OIG’s report indicating that CIAs have not improved care for residents.
The Center suggests that the Government should make information about CIAs more transparent and publicly available. Transparency would both enable the monitor to receive comprehensive, timely information that is relevant to determining the company’s compliance with the CIA (or whether there has been a material breach) and inform the public about the ongoing status of the company’s compliance. The Center understands that, as CIAs are currently structured, monitors sign contracts solely with the health care providers and do not have contracts with, or act as agents for, the Inspector General.
Nevertheless, the Center asks whether some or all of the following actions would be appropriate and could better protect residents whose facilities are under CIAs.
- Nursing Home Compare could include information to indicate that a facility is operating under a CIA and what the CIA means.
- OIG could inform state survey agencies in all states with facilities operating under a CIA that there is a CIA, and its terms.
- State survey agencies could automatically send copies of all survey reports for facilities operating under a CIA to the monitor and to OIG during the term of the CIA.
- OIG and Nursing Home Compare could include on their websites
- Information about how the public can submit concerns about a particular facility under a CIA to the monitor for that company/facility and to the OIG
- Any enforcement action taken under the CIA
- Reports about the company’s compliance with the CIA could be made publicly available on the OIG website and Nursing Home Compare.
- OIG’s website could continue to list health care providers that had CIAs, even after the conclusion of the term of the CIA.
The Center has an additional concern about the OIG’s exercise of its exclusion authority. The Government presumably chooses not to exclude large nursing home chains with multiple facilities because of the difficulty and complexity of taking over many facilities at one time – the chains are seen as “too big to fail.” However, the Center questions whether principals of facilities or chains that are under CIAs could be personally excluded from federal payment programs, under the reasoning of the Department of Justice memorandum “Individual Accountability for Corporate Wrongdoing” (Sep. 9, 2015).
Nursing home residents and their advocates want residents to receive the care and services they need and are promised by federal law. Having timely and meaningful information about facilities under CIAs could better enable them to choose and monitor facilities.
 OIG,” Corporate Integrity Agreements,” https://oig.hhs.gov/compliance/corporate-integrity-agreements/index.asp.
 The OIG has authority to exclude a provider from federal health care programs for many reasons, including the provision of services of “a quality which fails to meet professionally recognized standards of care.” 42 U.S.C. §1320a-7(b)(6)(B). See Office of Inspector General, “Quality of Care Corporate Integrity Agreements,” https://oig.hhs.gov/compliance/corporate-integrity-agreements/quality-of-care.asp.
 74 Fed. Reg. 52964, 52965 9Oct. 15, 2009), OIG: “Notice for Potential Monitors for Quality-of-Care Corporate Integrity Agreements.”
 U.S. Department of Justice, “Extendicare Health Services Inc. Agrees to Pay $38 Million to Settle False Claims Act allegations Relating to the Provision of Substandard Nursing Care and Medically Unnecessary Rehabilitation Therapy; Company Also Required to Enter Five Year Chain-wide Corporate Integrity Agreement” (Oct. 10, 2014), https://www.justice.gov/opa/pr/extendicare-health-services-inc-agrees-pay-38-million-settle-false-claims-act-allegations.
 https://oig.hhs.gov/fraud/cia/agreements/Extendicare_10032014.pdf. p. 27, Section III.E.6. c. I, ii, iv, viii
 Id., p. 33, Section III.H.
 Id. p. 46, Section X.
 Id. p. 49, Section X.E.
 OIG, Nursing Home Corporations under Quality of Care Corporate Integrity Agreements, OEI-06-06-00570 (Apr. 2009), https://oig.hhs.gov/oei/reports/oei-06-06-00570.pdf.
 Id. Appendix D, Table 9, p. 44.
 https://www.justice.gov/archives/dag/file/769036/download. The memorandum, by Deputy Attorney General Sally Quillian Yates, states, “One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing.” In cases of criminal and civil corporate wrongdoing, Yates set out six steps, including “(4) absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation.”
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