- A New Administration Begins During a “Winter of Peril and Possibility”
- Government Seeks to Stop Implementation of Court Order in Hospital Observation Status Case
- Study Finds Inequities in Telehealth Care
- Consumer Advocacy Organizations Sue CMS Over 2017 Guidance on Civil Money Penalties Imposed Against Nursing Facilities
- Elder Justice Newsletter – Vol 3, Issue 4 Now Available
- Save the Date! 2021 National Voices of Medicare Summit & Sen. Jay Rockefeller Lecture
Yesterday, the country inaugurated our 46th president, Joseph R. Biden. In his Inaugural Address, President Biden outlined the many challenges that the country faces, including a “once-in-a-century virus.” He also made a plea for unity in addressing these challenges. He stated:
We will press forward with speed and urgency, for we have much to do in this winter of peril and possibility.
Much to repair.
Much to restore.
Much to heal.
Much to build.
And much to gain.
As the new Administration ramps up and fleshes out its key personnel and policies, there is much to be done. In addition to tackling the pandemic, there are many things to address in health care generally, and in Medicare specifically.
The Center for Medicare Advocacy recently issued our Transition Memorandum, in which we recommend a number of measures that the new Department of Health and Human Services (HHS) and its Centers for Medicare & Medicaid Services (CMS) can take administratively to strengthen Medicare for beneficiaries. This is in addition to our legislative goals outlined in our Medicare Platform.
We look forward to working with the new Biden Administration, and are hopeful that it will address some of the long-standing and worsening barriers to care facing Medicare beneficiaries that we have long-sought to cure. Just as we have tried to work with, and at times have had to contest, every administration during the Center for Medicare Advocacy’s 35-year history, we will always place beneficiary concerns first, consistent with our mission to advance access to comprehensive Medicare, health equity, and quality health care. It’s time to get to work.
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Over 10 months ago, in March 2020, a federal district court issued an order in Alexander v. Azar stating that the Centers for Medicare & Medicaid Services (CMS) must permit certain Medicare beneficiaries to appeal the denial of their Part A inpatient coverage when they are placed on “observation status” in hospitals. It found that CMS is violating the constitutional due process of those beneficiaries by providing no opportunity for them to appeal to Medicare for inpatient coverage. The court’s order applies to a nationwide class of individuals who, since January 1, 2009, were admitted as hospital inpatients—covered by Part A—and then reclassified as “outpatient” observation—covered by Part B. The court’s order was based in part on the fact beneficiaries may lose access to medically necessary skilled nursing facility care if they cannot appeal for inpatient coverage of their hospitalizations. The government appealed the trial court’s decision to the Second Circuit Court of Appeals in May, but it did not request a “stay” to pause implementation of the court’s order pending appeal.
Now, after inquiries from the Center for Medicare Advocacy and co-counsel regarding the progress of implementation, the government has requested a stay of the district court’s order. In its January 11, 2021 filing, the government states that complying with the judgment while the case is on appeal will cause CMS irreparable harm. The Center and its co-counsel who represent the class will oppose the stay and will continue to press for relief for class members as soon as it can be provided. The Center is also opposing the appeal of the trial court’s decision at the Second Circuit.
For more information on Alexander v. Azar and the trial court’s decision, see the Center for Medicare Advocacy’s FAQ page regarding the case here.
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A recent study found inequities in the use and access to telemedicine during the COVID-19 pandemic, with older adults, low-income individuals, non-English speaking individuals and minority groups most affected. The study looked at 148,402 patients scheduled for primary care and medical specialty ambulatory telemedicine visits at a large academic health system during the early phase of the COVID-19 pandemic. The study authors note that this is the first large-scale study to characterize inequitable access to telehealth care. Unfortunately, the findings from the study revealed troubling inequities in access to telemedicine.
The study, published in JAMA Network Open, “found that older age, Asian race, and non-English language as the patient’s preferred language were independently associated with fewer completed telemedicine visits and that older age, Black race, Latinix ethnicity, and lower household income were associated with lower video use.”
The JAMA study found that the “COVID-19 pandemic has devastated communities of color and marginalized populations, exposing the deep inequities of our US health care system. The findings of this study demonstrate that significant inequities are also present among patients in accessing necessary telemedicine care.”
The study’s conclusion includes a call to “intentionally design our system to mitigate inequity.” As the pandemic rages on, and with the current low vaccination rates, telehealth will likely continue to be viewed as a safe means to offer health care, while protecting patients from the spread of the virus. Therefore, it is essential that policy be informed by such studies and that health equity be central to the development of new policies.
The Center for Medicare Advocacy has long raised concerns regarding unchecked expansion of telehealth because it could worsen inequities in health care. During the summer of 2020, as some stakeholders began to push for the temporary COVID-19 related flexibilities that allowed expanded telehealth to be made permanent, the Center raised concerns regarding inequities and urged careful study. To guide the discussions, the Center for Medicare Advocacy, jointly with Medicare Rights Center, released telehealth principles, with a focus on safeguarding consumer protections and beneficiary access to care. The JAMA study confirms the validity of our concerns and the critical need to mitigate inequity in telehealth going forward.
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On July 7, 2017, the Centers for Medicare & Medicaid Services (CMS) issued sub-regulatory guidance limiting the types of civil money penalties (CMPs) that can be imposed for deficiencies that occurred at nursing facilities but were corrected before the survey – so called “past noncompliance.” In the new guidance, CMS said that only per instance CMPs, not per day CMPs, could be imposed for past noncompliance. A lawsuit filed January 18, 2021 by National Consumer Voice for Quality Long-Term Care (Consumer Voice) and California Advocates for Nursing Home Reform (CANHR) challenges the policy change. The two resident advocacy organizations are represented by attorneys with AARP and Constantine Cannon.
As enacted in 1987, the Nursing Home Reform Law authorizes CMPs for days prior to a survey that a facility was not in compliance with federal standard of care. 42 U.S.C. §§1395i-3(h)(1), 2d para., 1396r(h)(1), 2d para. Under the statutory scheme and as found by the HHS Inspector General, CMS typically accepts CMP recommendations made by states. Final regulations promulgated in March 1999 added another potential remedy – per instance CMPs, which are not linked to the length of time that a facility violates care standards. On July 7, 2017, without engaging in notice and comment rulemaking, CMS issued new sub-regulatory guidance that mandated per instance CMPs as the default CMP for past noncompliance deficiencies.
The plaintiffs allege that this policy change “encourage[s] nursing facilities to knowingly allow deficiencies to linger, unaddressed for multiple days, weeks, or even months until the next state survey, because the penalty will be the same regardless of whether the deficiency persisted for one day, thirty days, ninety days, or nine months.” Complaint ¶47.
Plaintiffs also allege that the policy change violates the Nursing Home Reform Law and its implementing enforcement regulations and the Administrative Procedure Act and is sub-regulatory guidance that is invalid under Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019). They also allege that the July 2017 sub-regulatory guidance is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. They seek declaratory and injunctive relief.
Reflecting on the Biden Administration’s stated policy positions on long-term care during the recent Presidential campaign, the Center for Medicare Advocacy predicts that per day CMPs will soon be available again for past noncompliance deficiencies.
 CMS, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,” S&C: 17-37-NH (Jul. 7, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-37.pdf
 National Consumer Voice for Quality Long-Term Care v. Alex M. Azar II, Case No. 21-162 (D.D.C. filed Jan. 18, 2021), nat-consumer-voice-v-us-dept-hhs-complaint (aarp.org)
 HHS Office of Inspector General, Nursing Home Enforcement: The Use of Civil Money Penalties, OEI-06-02-00720 (Apr. 2005), Nursing Home Enforcement: The Use of Civil Money Penalties (OEI-06-02-00720; 04/05) (hhs.gov)
 64 Fed. Reg. 13,354, 13,360 (Mar. 18, 1999), 42 C.F.R. §488.430(a)
 “Long-Term Care Policy: Trump vs. Biden” (CMA Alert, Oct. 22, 2020), https://medicareadvocacy.org/long-term-care-policy-trump-vs-biden/
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Elder Justice: What “No Harm” Really Means for Residents is a newsletter published by the Center for Medicare Advocacy and the Long Term Care Community Coalition. The purpose of the newsletter is to provide residents, families, friends, and advocates information on what exactly a “no harm” deficiency is and what it means for nursing home residents. This issue includes four “no-harm” deficienciess from February 2020 which illustrate residents being deprived of their rights to 1) Following an advance directive; 2) Proper oxygen therapy; 3) Gender pronoun preferences; and 4) Appropriate blood pressure medication.
- Read the latest issue at: https://medicareadvocacy.org/wp-content/uploads/2021/01/Elder-Justice-3-4.pdf
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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!
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