CMA Alert | January 20, 2022

CT Governor Issues Executive Order Requiring Nursing Home Visitors Have Vaccine and Booster or Proof of Negative COVID Test – CT Long Term Care Ombudsman Expresses Support and Offers Assistance if Needed

Citing a nearly 700% increase in confirmed nursing home cases over a three-week period from mid-December 2021 through January 4th, Governor Ned Lamont issued an Executive Order (EO) Wednesday evening requiring nursing home visitors and primary and secondary essential support persons show proof of being fully vaccinated with booster shot or a negative COVID-19 test before being able to enter a nursing facility.

The EO cautioned that the highly contagious nature of the omicron variant – spreading more easily and quicker than other COVID-19 variants – has caused a rapid increase in cases nationally and in Connecticut. “Given the greater transmissibility of the omicron variant,” the EO states, “the risk of outbreaks in nursing homes is of significant concern given the medical vulnerability of residents in such settings.”[1] Almost three-quarters of residents in Connecticut’s nursing homes have received the booster vaccine as of January 9th.

Last week, the Center for Medicare Advocacy reported on the skyrocketing COVID-19 cases in the nation, with Connecticut’s Department of Public Health recording a 24% positivity rate.

Currently, according to the Centers for Disease Control and Prevention, 99.5% of the counties in the nation are experiencing the highest level of community transmission of COVID-19, including every county in Connecticut.[2]

“With the new variant increasing the number of cases in long-term care and the greater community,” Connecticut State Long-Term Care Ombudsman Mairead Painter told the Center, “I was concerned visitation guidance would again be restricted and residents would face isolation.”

Painter added, “The Executive Order, released by Governor Lamont, takes a more balanced approach that allows for visitation, reduces the risk of isolation, and provides an increased level of infection prevention.”

The EO guidance for nursing home visitors or essential support persons is as follows:

• Individuals must provide proof they are fully vaccinated against COVID-19 and, if eligible under FDA or CDC guidance, have received a COVID-19 vaccine booster; or
• Provide paper or electronic proof of a negative COVID-19 test result from either (1) a rapid antigen test completed within the previous 48 hours; or (2) a PCR test completed within the previous 72 hours; or
• Take a rapid antigen test at the nursing home in a form and manner directed by the Department of Public Health.

The EO also stated nursing homes in possession of rapid antigen tests that were not otherwise designated for use by the facility should make the tests available to visitors who are not able to provide proof of being fully vaccinated or have a negative COVID-19 test.

To help ensure visitors or essential support persons can visit residents under the new EO requirements, Painter recommended, “If individuals feel there is a barrier to accessing their loved one, they can call the Long-Term Care Ombudsman Program at 1-866-388-1888. We’ll work to resolve the concern.”

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[1] State of Connecticut. Executive Order No. 14F. Protection of Public Health and Safety During COVID-19 Pandemic – Proof of Vaccination Booster or Testing for Nursing Visitors and Primary and Secondary Essential Support Persons. (January 19, 2022). Available at: https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-14F.pdf 
[2] CDC. COVID Data Tracker. Centers for Disease Control and Prevention. (January 19, 2022). Available at:  https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=Connecticut&data-type=Risk&list_select_county=9005

Public Health Emergency Renewed

Health and Human Services Secretary Xavier Becerra this week again renewed the nationwide public health emergency declaration due to the ongoing COVID-19 pandemic, setting it to expire on April 16, 2022. The public health emergency declaration has been repeatedly extended since the initial declaration at the beginning of the pandemic in January 2020. The declaration can be renewed an unlimited amount of times. The declaration carries significance as it is a trigger for many waivers and changes made in response to the pandemic.

Today we highlight a recent blog post by Georgetown University’s Center for Children and Families regarding implications of the declaration for Medicaid continuous enrollment.

Additional information available:

• COVID-19: An Advocates Guide to Beneficiary Related Medicare Changes: https://medicareadvocacy.org/updated-covid-19-an-advocates-guide-to-beneficiary-related-medicare-changes/
• Article in Health Progress: https://medicareadvocacy.org/policy-medicares-regulatory-response-to-the-covid-19-crisis/

HHS Office of Inspector General Reports Inadequate CMS Oversight and Enforcement of States’ Nursing Home Surveys

Under contract with the Centers for Medicare & Medicaid Services (CMS), states conduct standard and complaint surveys to determine whether health care providers, including nursing facilities, are providing care to patients in compliance with federal standards of care. CMS Regional Offices evaluate states’ performance according to the State Performance Standards System (SPSS), which was revised in 2006 to evaluate performance along three dimensions – frequency, quality, and enforcement & remedy. 

Evaluating state performance during Fiscal Years 2015-2018 for the 12 (of 19) performance measures that focused solely on nursing facilities, the HHS Office of Inspector General (OIG) finds widespread noncompliance by states with federal requirements for nursing home surveys and limited oversight and enforcement by CMS.[1] OIG describes its related reports about states’ conduct of surveys[2] and makes recommendations to CMS for improved federal oversight of states’ nursing home survey performance.

OIG reports that Congress annually appropriates funding for surveys for nursing facilities participating in the Medicare program and provides a 75% federal match for Medicaid surveys.  Since 2014, CMS’s survey and certification budget has remained “flat,” at about $397 million annually, although CMS “increased its allotment to States by about 4 percent during this same time period, from $341 million in FY 2015 to $354 million in FY 2018.”[3] After OIG’s four-year review period, and during the coronavirus pandemic, Congress appropriated an additional $100 million for COVID-19-related survey and certification activities through the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Contrast the $354 million total survey budget (for providers in addition to nursing facilities) with the tens of billions of dollars spent by Medicare and Medicaid to pay for nursing home care – Medicare spent $31.5 billion in 2019,[4] Medicaid spent $56.6 billion in 2017.[5]  

Findings

OIG finds that more than half of the states “repeatedly failed to meet requirements for conducting nursing home surveys.”[6] Most states failed at least one nursing home performance measure in the four-year period (the total number of nursing home measures ranged from 11 in FY 2017 to eight in FY 2018) and 28 states missed the same performance measure over three or four consecutive years, including 13 states that missed multiple measures in three or four consecutive years.[7] 

The most common performance measure that states failed was the timeliness of nursing home surveys, with 41% of state failures related to two timeliness measures:

• 23% of timeliness failures reflected failure to survey high-priority complaints within 10 days; 17 states failed this performance measure in all four years
• 18% of timeliness failures reflected failure to conduct standard surveys at least every 15 months (with a statewide average of 12 months between standard surveys); six states failed this performance measure in all four years.[8]

CMS and states agree that shortages of surveyors and other staff “were root causes for many of the performance problems and that CMS has few options to address these problems.”[9] 

CMS Oversight

CMS’s oversight begins with the requirement that facilities develop corrective action plans to address failures in performance. However, 10% of corrective action plans (12 states) “were missing from CMS files and many [plans] lacked substantive detail” about how states would correct their survey problems.[10] Some plans repeated the same promised actions from year to year.[11] CMS uses training and technical assistance to help states correct performance failures.  It may impose financial penalties for states’ failures to meet timeliness requirements for standard surveys, but “frequently offset these penalties with one-time funding adjustments.”[12] In FY2017, for example, CMS imposed penalties of $1.2 million, but offset the penalties by $1.1 million. CMS may use performance benchmarks as incentives, which allow states to improve their performance to recoup deductions, and may speak with state officials about performance concerns. However, CMS has “rarely imposed formal sanctions and has never initiated action to terminate a State survey agency agreement.”[13] 

Recommendations for CMS

OIG recommends that CMS “actively monitor the use and effectiveness of States’ corrective action plans and other remedies,” “establish guidelines for progressive enforcement actions,” “engage with senior State officials earlier and more frequently to address State performance problems,” and “disseminate results of State performance reviews more widely to ensure that stakeholders become aware of problems.”[14] CMS generally concurred with the recommendations.

What Advocates Can Do

Read the SPSS results for your state and use the information in your advocacy. The most recent States’ SPSS results are available at CMS, “Release of Fiscal Year (FY) 2020 State Performance Standards System (SPSS) Findings, FY 2021 SPSS Guidance, and FY 2019 Results,” Admin Info: 21-08-ALL (Sep. 15, 2021), https://www.cms.gov/files/document/admin-info-letter-21-08-all.pdf.

This memorandum describes the performance standards that were calculated for FY 2020 and reports, by region, each state’s performance on each of the measures for all provider categories for FYs 2017, 2018, and 2019.  For example, for F2: Nursing Homes – 12.9-Mo. Avg/15.9 Month Max Interval (Statewide Average Interval/No. of Facilities that exceeded Maximum Survey Interval), Connecticut passed the performance standard for each year; Massachusetts failed in each year.

Call on Congress to increase the budget for survey activities. CMS and states cannot ensure that facilities fully comply with federal standards of care with such limited funding that Congress must vote on each year.

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[1] HHS Office of Inspector General (OIG), CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys, OEI-06-19-00460 (Jan. 2022),  https://oig.hhs.gov/oei/reports/OEI-06-19-00460.pdf [hereafter OIG, Nursing Home Surveys] 
[2] For example, in nine state-specific reports issued between 2015 and 2017, OIG finds that states failed to verify that nursing facilities had corrected deficiencies.  Id. 5, 37 footnote 47 (Arizona, A-09-16-02013; Florida, A-04-17-08052; Kansas, A-07-17-03218; Missouri, A-07-16-03217; Nebraska, A-07-17-03224; New York, A-02-15-01024; North Carolina, A-04-17-02500; Oregon, A-09-16-02007; and Washington, A-09-13-02039). 
[3] OIG, Nursing Home Survey, supra note 1, at 2 
[4] Medicare Payment Advisory Commission (MedPAC), Health Care Spending and the Medicare Program (A Data Book), p. 14, Chart 1-12 (Jul. 2021), https://www.medpac.gov/wp-content/uploads/import_data/scrape_files/docs/default-source/data-book/july2021_medpac_databook_sec.pdf 
[5] Medicaid and CHIP Payment and Access Commission (MACPAC), MACStats: Medicaid and CHIP Data Book. p. 53, Exhibit 17 (Total Medicaid Benefit Spending by State and Category, FY 2018 (millions)) (Dec. 2019), https://www.macpac.gov/wp-content/uploads/2015/12/MACStats-Medicaid-and-CHIP-Data-Book-December-2019.pdf 
[6] OIG, Nursing Home Surveys, supra note 1, at 8 
[7] Id. 9. 
[8] Id. 10-11. 
[9] Id. 18. 
[10] Id. 11-12. 
[11] Id. 12. 
[12] Id. 14. 
[13] Id. 16. 
[14] Id. 18-20.

New Study: Men Report Worse Quality of Life Nursing Homes

A new study in The Gerontologist reports potential gender differences in quality-of-life satisfaction for nursing home residents, with men less satisfied than women. Researchers drew their conclusions based on analysis of several data sources from nursing homes in Minnesota, including resident surveys, clinical data, and resident observation. After controlling for individual and facility characteristics, researchers concluded that men reported that they were significantly less satisfied with nursing home activities than women, had fewer friends, and were less able to rely on family for support.[1] The most significant differences in satisfaction centered around activities and relationships. Some men expressed interest in having more community interaction, like visiting sports venues. (Interviews were conducted before the pandemic, in 2017-2018.) Overall, researchers observed that men spent considerably more time alone than women.

A notable exception was men who were Black, Indigenous, and People of Color (BIPOC), who participated in more group activities than white men – particularly games and religious services. They also organized their own social activities more frequently.

On average, women tend to live about five years longer than men.[2] The population in the nation’s nursing homes reflects this life expectancy difference.[3] For residents aged 65-74, there are 100 men for every 132 women. As age brackets increase, gender gap also grows. For those 75-84, there are 100 men for every 246 women. And for those 85 and older, there are 100 men for every 425 women.[4]

The study concluded that age, race/ethnicity, and marital status were also key factors in predisposing quality-of-life differences between men and women. Researchers noted that these findings might also reflect gendered life experiences, with men more likely to be disappointed when family members cannot meet all their care needs. Men may also experience more frustration with loss of social status when entering a nursing home.

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[1] Davila, H., Ng, W., Akosionu, O., Thao, M. S., Skarphol, T., Virnig, B. A., Thorpe, R. J., & Shippee, T. P. Why Men Fare Worse: A Mixed Methods Study Examining Gender Differences in Nursing Home Resident Quality of Life. The Gerontologist. (January 12, 2022).  https://doi.org/10.1093/geront/gnac003 
[2] Arias, E., Tejada-Vera, B., & Ahmad, F. Vital Statistics Rapid Release. Vitals Statistics Rapid Release. (February 2021). Available at: https://www.cdc.gov/nchs/data/vsrr/VSRR10-508.pdf 
[3] CDC. FastStats – Nursing Home Care. Centers for Disease Control and Prevention. (March 1, 2021). Available at:  https://www.cdc.gov/nchs/fastats/nursing-home-care.htm 
[4] Gurwitz, J. The Age/Gender Interface in Geriatric Pharmacotherapy. Journal of Women’s Health. (Jan. – Feb. 2005). Available at: https://pubmed.ncbi.nlm.nih.gov/15692280/#:~:text=Women%20substantially%20outnumber%20men%20among%20older%20Americans.&text=For%20those%20age%2065%2D74,men%20there%20are%20425%20women

Special Report | The Role of AI-Powered Decision-Making Technology in Medicare Coverage Determinationse

Artificial intelligence (AI)-powered decision-making tools that are used in health care utilization management (UM) are increasingly used by providers and plans to automate the medical review and prior authorization processes, direct post-acute care, and make determinations concerning admission and discharge planning. The Center for Medicare Advocacy (the Center) has released a report, authored by health policy intern Lyla Saxena, focusing on AI-powered decision-making tools used to make Medicare coverage decisions and their impact on beneficiaries.

In the Center’s experience, AI-powered decision-making tools may prompt providers and plans to make decisions about the authorization or continuation of care that are more restrictive than Medicare coverage guidelines, including denials that violate the coverage standard for skilled care that was clarified by the Jimmo v. Sebelius class action settlement. While Medicare requires an individualized assessment of each beneficiary’s qualification for coverage in certain care settings, AI-tools offer recommended decisions that are based on general rules and previous patient experiences. Further, plans, providers, and beneficiaries often do not fully understand the scope of these tools’ development and use. This is partly due to the proprietary nature of UM-focused AI-powered decision-making tools, which prevents the public from seeing and understanding the tools and challenging their results. Among other things, the paper calls on the Medicare program to conduct better oversight of AI-powered decision-making tools, including requiring greater transparency surrounding their development and use.

• Read or download the full Report at https://medicareadvocacy.org/wp-content/uploads/2022/01/AI-Tools-In-Medicare.pdf

FREE WEBINAR | Medicare & Health Care Updates

Thursday, January 27, 2022 @ 1 – 2:30 PM EST

This webinar will provide an overview of Medicare issues in 2022, including potential legislative and administrative changes.  We will highlight key issues to watch in the coming year, including pandemic-related policy changes.  We will feature a discussion about the need for Medicare coverage of audiology care with Dr. Frank Lin, Director of the Cochlear Center for Hearing and Public Health, Johns Hopkins University.

Presented by Center for Medicare Advocacy Associate Director David Lipschutz, Policy Attorney Kata Kertesz, and Special Guest Dr. Frank Lin, John Hopkins University, as well as SMP Outreach Specialist & Case Manager Sandy Morales with an update on fraud trends.

Register Now: https://attendee.gotowebinar.com/register/7676601484705606158