Court Upholds Right to Appeal for Certain Medicare Beneficiaries on “Observation Status”
On January 25, 2022, a federal appeals court decided that Medicare must provide appeal procedures for hospitalized beneficiaries who are reclassified from inpatients to “outpatients” receiving “observation services.” The observation designation can have severe ramifications, including non-coverage of nursing home care. A nationwide class of Medicare beneficiaries won the right to appeal at a trial held in 2019. The class is represented by the Center for Medicare Advocacy, Justice in Aging, and pro bono firm Wilson Sonsini Goodrich and Rosati. The federal government appealed the trial decision in 2020.
- Read the appeals court decision here.
- Read our full statement on the decision here.
- For more information about the case, including who is included in the class, please read the Center for Medicare Advocacy’s frequently asked questions.
Pressure Grows for Medicare to Cover At-Home COVID Tests
On January 10, 2022, the Biden Administration announced a requirement that, starting January 15, insurance companies and group health plans must cover the cost of over-the-counter, at-home COVID-19 tests. The administration is also taking additional steps to expand access to free at-home tests, as described in an FAQ document issued by the Centers for Medicare & Medicaid Services (CMS).
As noted in the FAQ document, however, while Medicare beneficiaries can take advantage of the free at-home tests available to the general public, traditional Medicare will not generally cover such tests, and Medicare Advantage plans can cover them at their discretion:
14. I’m covered by Medicare. How do I get an at-home over-the-counter COVID-19 test?
HHS is providing up to 50 million free, at-home tests to community health centers and Medicare-certified health clinics for distribution at no cost to patients and community members. You can learn more about this program here. HHS also has established more than 10,000 free community-based pharmacy testing sites around the country. To respond to the Omicron surge, HHS and FEMA are creating surge testing sites in states across the nation. The Biden-Harris Administration is purchasing 500 million at-home, over-the-counter tests to be distributed for free to Americans who want them, with the initial delivery starting in January 2022. There will be a website where all Americans can request at-home tests for home delivery—for free. More information on this federal program is expected soon.
For people covered by original fee-for-service Medicare, Medicare pays for COVID-19 diagnostic tests performed by a laboratory, such as PCR and antigen tests, with no beneficiary cost sharing when the test is ordered by a physician, non-physician practitioner, pharmacist, or other authorized health care professional. People with Medicare can access one lab performed test without cost sharing per patient per year without an order. At this time original Medicare cannot pay for at-home tests through this program. Medicare Advantage plans may offer coverage and payment for at-home over-the-counter COVID-19 tests, so consumers covered by Medicare Advantage should check with their plan. [emphasis added]
As noted in a Kaiser Health News article by Michelle Andrews (Jan. 24, 2022), advocates and policymakers are urging CMS to find a way to cover such tests for all Medicare beneficiaries. Members of Congress have recently sent letters urging the Administration to take action. For example, on January 14, 2022, Rep. Bill Pascrell and Rep. Scott Peters sent a letter; on January 20, 2022, Rep. Tom Malinowski and Rep. Kim Schrier led a bipartisan letter with over 100 members signing on; and, on January 24, 2022, Senator Debbie Stabenow and 18 other senators sent a letter. On January 24, 2022, the Center for Medicare Advocacy joined almost 70 other organizations in signing on to a letter led by our colleagues at Justice in Aging and Medicare Rights Center urging the Administration to do more to provide equitable access to at-home tests and vaccines for older adults and individuals with disabilities.
According to a Bloomberg Law article by Jeannie Baumann (Jan. 26, 2022), CMS “confirmed in a statement […]that it ‘is exploring ways that Medicare can cover them as we look to overcome a number of statutory and regulatory hurdles.’”
We urge the Administration to act quickly.
Study: Racism is a Leading Cause of Death in the United States
Recent research published in The BMJ (originally called the British Medical Journal), analyzed excess death metrics in the United States from 1999 to 2019. The report explains that “excess deaths” represents the difference (over a specific period of time) between the number of deaths that did occur within a specified group (in this case Black men and women) to the number of deaths that would have occurred had the mortality rate been the same as a comparison group (in this case, white men and women). The study found that age-adjusted excess death rates were higher than other causes of death each year during the examined timeframe for Black men and women under 65. Since 2014, the excess death rate has been increasing between Black and white men. In 2019, the number of excess deaths among Black men under 65 was 25,850 and among Black women, 14,444.
The authors highlight that one of the most influential social determinants of health is systemic racism, noting that, “Black people in the United States are more likely to die young – not because there is some intrinsic biological risk, but because of racism.” The Centers for Disease Control and Prevention (CDC) also recognizes that racism is a serious threat to public health. In addition to the COVID-19 pandemic’s disproportionate impact on racial and ethnic minority populations, data show that racial and ethnic minority groups also experience higher rates of illness and death across a spectrum of health conditions. Furthermore, life expectancy in the nation for Black individuals is four years less than it is for white individuals.
While the leading cause of death for Black men in all age categories in the United States in 2017 was heart disease, the heavy impact of social determinants of health becomes apparent when analyzing causes of death by age category. Homicide was the leading cause of death for Black males in the age groups of 1-19 (35%) and 20-44 (27.6%). For White males in both age categories, unintentional injuries was the leading cause of death.
 Krumholz, H. M., Massey, D. S., & Dorsey, K. B. Racism as a Leading Cause of Death in the United States. BMJ. (2022). https://doi.org/10.1136/bmj.o213
 CDC. Racism and Health. Centers for Disease Control and Prevention. (Nov. 24, 2021). Available at: https://www.cdc.gov/healthequity/racism-disparities/index.html
 CDC. Leading Causes of Death-Non-Hispanic Black Males – United States, 2017. Centers for Disease Control and Prevention. (Nov. 20, 2019). Available at: https://www.cdc.gov/healthequity/lcod/men/2017/nonhispanic-black/index.htm
 CDC. Leading Causes of Death-non-Hispanic White Males – United States, 2017. Centers for Disease Control and Prevention. (Nov. 20, 2019). Available at: https://www.cdc.gov/healthequity/lcod/men/2017/nonhispanic-white/index.htm
Former Owner of Skyline Faces Numerous Criminal and Civil Lawsuits
Skyline Healthcare expanded rapidly, beginning in 2015, until the New Jersey-based company was responsible for the care of more than 7,000 residents in more than 100 facilities in 11 states. Almost as quickly as the company expanded, it collapsed, between 2017 and 2019, with many facilities closing and others taken over by states to ensure that residents were cared for and employees and vendors were paid. Litigation against Skyline’s owner, Joseph Schwartz, has followed.
Most recently, the U.S. Attorney in New Jersey charged Schwartz with 18 counts of willful failure to pay employment taxes (totaling $29.1 million) and two counts of evasion of unemployment taxes (totaling $367,027) from mid-2017 through June 2018, relating to approximately 15,000 employees at 95 facilities in 11 states. Schwartz was also charged with two counts of failing to file with the Department of Labor annual financial reports (Form 5500) relating to Skyline’s 401K Retirement Plan Contributions. Each count related to employment taxes and tax evasion “is punishable by a maximum penalty of five years in prison and a maximum $10,000 fine.”
Schwartz also faces multiple criminal and civil lawsuits in other states.
The Arkansas Attorney General charged Schwartz in December 2021 with “eight counts of Medicaid fraud resulting from the submission of false statements in cost reports and other documentation to the Arkansas Medicaid Program,” alleging that “In 2018, Skyline exaggerated its costs by $6,285,216 and received an overpayment of $3,610,912 for the eight nursing home facilities in Arkansas.” The state’s 44-month investigation also led to charges that Schwartz failed to pay $2,012,177 withheld from employees’ paychecks to the state between July 2017 and March 2018.
The Nebraska Attorney General filed a civil lawsuit in 2022 charging Schwartz and Skyline Healthcare with “making false records, failing to maintain documentation and fraudulent misrepresentation” in their agreements with Medicaid, resulting in overpayments of $3 million.
The Massachusetts Attorney General sued Schwartz in June 2019, charging him with failing to pay wages totaling more than $64,749 to 106 workers at five Massachusetts nursing facilities (which the state successfully sought receiverships for and subsequently closed for endangering residents).
Litigation by residents/families and vendors is also pending.
 Laura Strickler, Stephanie Gosk, and Shelby Hanssen, “A nursing home chain grows too fast and collapses, and elderly and disabled residents pay the price,” NBC News (Jul. 19, 2019), https://www.nbcnews.com/health/aging/nursing-home-chain-grows-too-fast-collapses-elderly-disabled-residents-n1025381
 Laura Strickler, “Former owner of national nursing home chain faces 22 federal tax, labor charges,” NBC News (Jan. 20, 2020), https://www.nbcnews.com/health/health-news/former-owner-national-nursing-home-chain-arrested-federal-agents-new-y-rcna12945
 U.S. Attorney’s Office, District of New Jersey, “Insurance Producer Charged with Failing to Remit $29.5 Million in Payroll Taxes” (News Release, Jan. 20, 2020), https://www.justice.gov/usao-nj/pr/insurance-producer-charged-failing-remit-295-million-payroll-taxes
 Arkansas Attorney General, “Rutledge Announces Arrest Warrant Issued for Skyline Nursing Home Owner, Joseph Schwartz” (News Release, Dec. 20, 2021), https://arkansasag.gov/news_releases/rutledge-announces-arrest-warrant-issued-for-skyline-nursing-home-owner-joseph-schwartz/; Eric Besson, Lisa Hammersly, “Ex-nursing home chief faces fraud charges, Arkansas attorney general says,” Arkansas Democrat Gazette (Dec. 21, 2021), https://www.arkansasonline.com/news/2021/dec/21/ex-nursing-home-chief-faces-charges/
 Lori Pilger, “NY couple accused of $59.6M Medicaid fraud involving chain of Nebraska nursing homes,” Lincoln Journal Star (Jan. 20, 2020), https://theindependent.com/news/state-and-regional/crime-and-courts/ny-couple-accused-of-59-6m-medicaid-fraud-involving-chain-of-nebraska-nursing-homes/article_0b949c48-4e59-5f11-be71-b1346421873a.html#:~:text=The%20Nebraska%20Attorney%20General%27s%20Office%20has%20accused%20a,of%20a%20chain%20of%20nursing%20homes%20in%20Nebraska
 Massachusetts Attorney General, “Skyline Healthcare Owner, Five Massachusetts Nursing Homes Cited for Wage Theft” (Press Release, Jun. 27, 2019), https://www.mass.gov/news/skyline-healthcare-owner-five-massachusetts-nursing-homes-cited-for-wage-theft
FREE WEBINAR | Medicare Home Health and DME Update
Thursday, April 28, 2022 @ 1 – 2:30 PM EST
Sponsored by California Health Advocates
Understanding Medicare is important to those who currently qualify for health coverage through Medicare, or may qualify in the future. An Overview of Medicare for People Living With Paralysis includes information on eligibility, enrollment, coverage (with a special emphasis on home health care and durable medical equipment: related laws, regulations, policies and practical tips to assist people living with paralysis to access home and community-based Medicare coverage), and choosing between traditional Medicare and Medicare Advantage.
Presented by Center for Medicare Advocacy Executive Director, attorney Judith Stein, and Associate Director, attorney Kathleen Holt, the presentation includes a 30-minute live question & answer session.
Register Now: https://attendee.gotowebinar.com/register/1457421769888387854