- CMS Plans to Expand Program that Interferes with Patient Access to Medicare Covered Home Health Care
- In Waning Days of Trump Administration, HHS Issues Harmful Final Rule Putting an Expiration Date on Core Medicare and Other Regulations
- Center for Medicare Advocacy and Colleagues Submit Statement to Protect Residents to National Academy of Sciences Nursing Home Committee
- Long Term Care Community Coalition Releases 2020 Elder Justice “No Harm” Deficiencies Searchable Issue Guide
- Save the Date! 2021 National Voices of Medicare Summit & Sen. Jay Rockefeller Lecture
The Centers for Medicare and Medicaid Services (CMS) has announced plans to expand a Medicare home health program model that discriminates against people with longer term and chronic impairments whose conditions are not improving. It significantly limits access to home health care for beneficiaries who need it most, and directly conflicts with the Jimmo v. Sebelius settlement.
The Home Health Value-Based Purchasing Model (HHVBP) was implemented in 2016 in nine states. According to CMS’ January 8, 2021 press release, the purpose of the model was “to test whether providing payment incentives for better quality care with greater efficiency would improve the quality and delivery of home health care services to Medicare beneficiaries.” CMS recently concluded the model was successful, with a 4.6% improvement in agencies’ quality scores and certified program expansion to be accomplished through future rule-making.
One major flaw of HHVBP is that it does not provide any meaningful measurement criteria for people who qualify for home health care under the law, but who have an illness or injury that will not improve, or will not improve relatively quickly. As a result, the HHVBP design penalizes agencies that serve people with longer term and chronic conditions, by taking payments back from agencies serving people who do not meet the improvement criteria.
Under HHVBP, Medicare payments to home health agencies are adjusted based on a home health agency’s (HHA) total performance score (TPS) on specified quality measures compared to other HHAs in a state. The maximum payment adjustment, upward or downward, is 7% for 2021. The quality measures in the HHVBP are based primarily on improvement in a patient’s condition, and quality measures in the model are absent for conditions not likely to improve (or to improve quickly). Thus, agencies are monetarily discouraged under HHVBP from serving many patients with longer-term conditions who qualify for Medicare-covered care.
As CMS developed HHVBP, “maintenance or stabilization measures” were considered to allow for inclusion of beneficiaries who were not improving and were, therefore, deliberately excluded. Discussion of this exclusion is reflected in the final Medicare home health rule for 2019 and has not been addressed by CMS since that time:
Comment: Many commentators suggested that stabilization measures should be recognized in HHVBP as opposed to just focusing on improvement measures, given that stabilization is sometimes a more realistic goal than improvement for certain patients.
CMS Response: We previously discussed our analyses of existing measures relating to stabilization in the CY 2016 HH PPS final rule. Specifically, we stated that while we considered using some of the stabilization measures for the model…we have not identified any such measures that we believe would allow for meaningful comparison of HHA performance. Although we appreciate commenter’s concerns that some beneficiaries may have limited opportunity to improve and that stabilization may be a more realistic goal for such patients, based on these analyses, we do not believe these measures are appropriate for inclusion in the Model at this time.
Since HHVBP was first proposed, the Center for Medicare Advocacy has continuously urged CMS to develop appropriate quality measures for all patients who qualify for Medicare-covered home health care. The quality measurement void for serving people with chronic conditions has not been addressed. Simply put, if a person cannot be measured in some way that is of value to the home health agency – to show improvement – that person will face barriers to home care because of potential penalties and sacrificed rewards. The lack of measures that properly relate to quality care to maintain an individual’s condition or slow decline creates a discriminatory practice against patients who medically and legally qualify for care.
The HHVBP model should not continue, let alone expand, until quality care for all patients is included in the measurements and policies are developed that provide fair access to care for all qualifying beneficiaries.
 Arizona, Florida, Iowa, Maryland, Massachusetts, Nebraska, North Carolina, Tennessee, and Washington.
 CMS Takes Action to Improve Home Health Care for Seniors, Announces Intent to Expand Home Health Value-Based Purchasing Model | CMS.
 FR-2017-07-28.pdf (thefederalregister.org), Table 43, page 35335.
 https://www.govinfo.gov/content/pkg/FR-2017-11-07/pdf/2017-23935.pdf, pages 56527-56547.
 https://www.govinfo.gov/content/pkg/FR-2017-11-07/pdf/2017-23935.pdf, page 56532.
– top –
As discussed in a December 10, 2020 Center for Medicare Advocacy CMA Alert, 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).
As proposed, the rule would have retroactively imposed an expiration provision on most HHS regulations, and established “assessment” and “review” procedures to determine which, if any, regulations should be retained or revised. Regulations would have been reviewed 2 years after this rule was effective or 10 years after promulgation, whichever was later. Regulations that were not reviewed in a timely manner would expire.
As noted in the Center’s comments to the proposed rule, this is an ill-conceived policy that would create tremendous administrative burden for HHS and would wreak havoc across a broad swath of HHS programs (full comments are available here). Among other things, the Center noted:
- 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.
- 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.
Rule Hastily Finalized
On January 8, 2021, with less than two weeks left in the Trump Administration, HHS issued the final version of this rule (not yet published in the Federal Register, but available here; also see HHS press release here). While the final rule adds additional public notice requirements and lengthens the review period for older regulations from 2 to 5 years, the Center asserts that the rule is still fundamentally flawed, in part, since it forces an arbitrary expiration date on core Medicare (and other) rules and protections unless HHS intervenes.
In the preamble to the final rule, HHS assures that it “does not intend for any regulations to inadvertently sunset, and it is unlikely that any regulations with significant benefits would slip through the cracks” and that “the public will have the opportunity to provide comments identifying regulations that the public believes need to be Assessed and Reviewed, which mitigates the risk of inadvertent expiration” (p. 75, 58). Despite these assurances, as evidenced by the very finalization of this rule, public notice and comment is no guarantee that HHS will do the public’s bidding and intervene before a given rule expires.
On the one hand, HHS argues that its own failure to update certain rules is a justification for instituting retrospective review. In the preamble, HHS provides a list of examples of regulations that commenters “and/or Congress have requested the Department to review” but have not been so reviewed (see pp. 11-12). Curiously, offered without comment on whether HHS intends to follow through on these requests, this list includes “[r]egulations covering access to skilled therapy services, which commenters say must be updated to reflect the national settlement in the Jimmo v. Sebelius litigation to codify the fact that skilled services are covered for Medicare beneficiaries not just to improve function, but to maintain or prevent deterioration in function.”
As lead counsel in the Jimmo v. Sebelius suit, the Center for Medicare Advocacy has long called for additional action by HHS to better effectuate the settlement reached in 2013. While we appreciate HHS acknowledging that such requests have been made, we are unaware of any effort or willingness on the part of the Department to actually do so. Regardless of HHS’ intent with respect to revising these regulations, the Department, in effect, is saying that there may be things we do or do not intend to get to, but, we will put off any action until our regular retrospective review timeline. Rather than addressing issues that may need more immediate attention, this mechanism provides an excuse for HHS to punt until a later time, at which point they will still be under no obligation to make any changes to the rules in question.
On the other hand, when there are issues that HHS wants or need to address quickly, it has demonstrated the ability to do so (see, e.g., the finalization of this rule). The Department notes that its “response to the COVID-19 pandemic also indicates that the Department should perform widespread retrospective reviews. During the COVID-19 pandemic, the Department’s response has largely consisted of waiving regulatory requirements or exercising enforcement discretion to not enforce certain regulatory requirements to enhance the Nation’s response to the pandemic. […] The Department should learn from the pandemic and conduct widespread reviews to determine whether these or other regulatory requirements could hinder the Nation’s response to a future emergency, or otherwise should be amended or rescinded” (pp. 28-29).
When the COVID-19 pandemic swept the country, HHS quickly and appropriately stepped in and issued a wide range of regulatory waivers in order to foster ongoing access to care during a crisis. The assessment and debate about what waivers should be made permanent has already begun, and HHS has already taken some action (such as making some telehealth waivers permanent). Incorporating lessons learned, and planning for the next national emergency (which might not be in the form of a pandemic) should not be relegated to a periodic, retrospective review of regulations – it should be a priority.
In summarizing comments received, HHS notes that “[c]ommenters generally opposed the proposed rule, although some commenters supported it. Roughly a quarter of commenters requested that the Department withdraw the proposed rule. Some commenters requested that the Department extend the public comment period” (p. 37) [emphasis added].
The primary reason for the requests to extend the comment period is that HHS only allowed 30 days for comments relating to non-Medicare provisions impacted by the rule. As noted in the preamble, “[p]art of the proposed rule had a 30-day public comment period, and part of it had a 60-day comment period to comply with 42 U.S.C. 1395hh(b).” HHS states that it received 486 comments during the initial 30 day comment period and 532 comments throughout the total 60 day comment period, which expired on January 4, 2021 (p. 37). Without noting when the 46 additional comments were received during the last 30 day period, the rule was finalized 4 days after the end of the 60-day period on January 8, 2021. Although HHS states that “the Department has considered all comments, including those received throughout the 60-day comment period, before finalizing this rule” (p. 45), there is certainly a question regarding the scrutiny such comments received pursuant to notice and comment requirements, particularly if they were received towards the end of this period.
In an era of deregulation, when alleviating “administrative burdens” for providers has taken precedence over strengthening consumer protections, HHS has made a last ditch attempt to deregulate health programs under its purview. In its waning days, the Trump Administration rushed to finalize a flawed rule that will put an automatic expiration date on core Medicare and other regulations. We urge the incoming Biden Administration to rescind this rule.
– top –
In the Fall of 2020, the National Academy of Sciences announced a new ad hoc committee to study “how our nation delivers, finances, regulates, and measures the quality of nursing home care with particular emphasis on challenges that have arisen in light of the COVID-19 pandemic.” Joined by California Advocates for Nursing Home Reform and the Michigan Elder Justice Institute, the Center for Medicare Advocacy has submitted a statement to the committee.
The joint statement describes the framework of the 1987 Nursing Home Reform Law and its implementation, through detailed regulations and informal guidance, as fundamentally sound. Rather than revise the law, the statement calls on the committee to address three key issues:
- Longstanding problems in professional and paraprofessional nurse staffing (levels, competencies, training, salaries/benefits, and working conditions), and issues that the pandemic has dramatically brought to public view, including
- Lack of rules governing how facilities spend their Medicare and Medicaid reimbursement, allowing facilities to raid public funding for private gain; and
- Virtual abdication by states and the federal government of any responsibility for determining and controlling who is eligible to own and manage nursing facilities, allowing private equity firms, real estate investment trusts, and private owners whose interests are in profits and self-dealing to buy, sell, and operate facilities and businesses with impunity.
The full statement is available at https://medicareadvocacy.org/wp-content/uploads/2021/01/nursing-homes-NAS-nursing-home-committee-CMA-comments-01.13.2021.pdf
 National Academy of Sciences, “The Quality of Care in Nursing Homes” (Project Information), https://www8.nationalacademies.org/pa/projectview.aspx?key=52176
– top –
Our friends at Long Term Care Community Coalition (LTCCC) have released a new Elder Justice webpage featuring all of the Elder Justice Newsletters published in 2020. The page includes links to 10 newsletters as well as a searchable issue guide detailing the 43 “no harm” deficiencies covered in the newsletters this past year. This user friendly file provides summaries of each “no harm” deficiency and can be sorted by provider name, state, city, zip code, and CMS star rating.
The Elder Justice Newsletter, published by the Center for Medicare Advocacy and LTCCC since 2017, provides examples of health violations in which surveyors identified neither harm nor immediate jeopardy to resident health, safety, or well-being. The newsletter aims to provide readers with real stories of resident pain, suffering, and humiliation from across the country, so that readers can judge for themselves whether a violation was “no harm.” The examples are taken directly from Statement of Deficiencies (SoDs) on CMS’s Care Compare (formerly Nursing Home Compare) website.
– top –
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. More news to come. Mark your calendars now!
– top –