- Supreme Court Allows Harmful “Public Charge” Immigration Rule to Continue – For Now
- Accountable Care Organizations and Observation Status
- Medicare SNF Payment Model Creates Changes in Care and Admissions – What about Facility Assessments?
- Study Finds Nursing Home Compare Data about Patient Falls with Major Injuries Underreported and “Highly Inaccurate”
- Support Medically Necessary Oral Health Care in Medicare
On January 27, 2020, the U.S. Supreme Court in 5-4 vote allowed the Trump administration’s “public charge” immigration rule to go into effect while litigation over the policy continues in the lower courts. The Center joins many partner organizations in opposing the rule as it will irreparably harm older adults, people with disabilities and their families.
The public charge rule represents a sweeping revision of existing immigration policy that will force families to choose between health care, food, housing, and a future in the United States. It will allow officials to deny permanent legal residence (green cards) to immigrants who have received or are likely to need assistance from government programs, such as most forms of Medicaid and SNAP (food stamps). Older adults and people with disabilities will be particularly disadvantaged as factors such as age, health, income, and employability can also be used to evaluate and deny green card applications. The rule is a wealth test on lawful immigration that runs contrary to decades of settled law and the immigration priorities of the U.S. It will discourage family unification and lead to an increase in untreated health conditions, unstable housing, and poverty as families forego needed care and services in fear of deportation.
Even before going into effect, the public charge policy has caused individuals and families to do without benefits for which they are eligible out of anxiety and confusion about the effect it may have on their immigration status. The rules about who the policy affects are complicated; for example, certain immigrant groups are exempt, and the policy is still blocked from implementation in the state of Illinois even though it can now be applied in the rest of the U.S. For information about who the rule actually affects and how it may be applied going forward, check the website of Protecting Immigrant Families. PIF also recommends seeking advice from an immigration attorney before making decisions about benefits and services.
The Supreme Court’s order was not a decision on the merits and there are several cases challenging the policy that may still succeed. But is very disturbing that the Court is allowing the implementation of a rule that directly harms individuals and families, rather than preserving the status quo as litigation over the policy’s legality continues. The Center stands with immigrant families and their allies in strongly opposing this public charge rule. It harms families, our country, and our long-standing national values.
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One of the ongoing problems that Medicare beneficiaries face is so-called “outpatient” hospital observation status. When a hospital classifies a patient as an outpatient, rather than as an inpatient, the result is that the patient is ineligible for Medicare Part A coverage of the post-hospital stay in a skilled nursing facility (SNF) (because the Medicare statute requires a three-day inpatient hospital stay).
Federal law authorizes waiver of the three-day inpatient requirement under various circumstances, including participation in an Accountable Care Organization (ACO). However, neither federal law nor federal regulations require ACOs to give beneficiaries sufficient information on how to use and benefit from the waiver. Telling beneficiaries that nothing changes for them when they are in an ACO is inaccurate and misleading.
Moreover, ACOs benefit financially if they do not inform beneficiaries of the waiver and how to benefit from it. Since a beneficiary who goes to a SNF without a prior three-day inpatient hospital stay does not have his or her SNF stay covered by Medicare, the cost of the SNF stay (paid out-of-pocket by the beneficiary) is not attributable to the ACO.
Although this problem in ACOs’ information for beneficiaries needs to be corrected, beneficiaries in ACO’s can still try to use the waiver of the inpatient hospital stay. Knowing what to ask, and of whom, may enable patients in ACOs to qualify for coverage in a SNF, even with an “outpatient” observation stay or without any inpatient stay at all.
Shared Savings Programs, Including ACOs
The Affordable Care Act established Shared Savings Programs to encourage accountability and coordination of patient care for beneficiaries in the traditional Medicare program. ACOs are a type of Shared Savings Program, now serving nearly a quarter of beneficiaries in traditional Medicare. The theory behind ACOs is that physicians, hospitals, SNFs, and other health care providers come together in a group to provide coordinated care to Medicare beneficiaries. The goal is better care at lower cost.
Pioneer ACOs is the name given to original ACOs, which ended December 31, 2016; Next Generation ACOs is the current iteration of the program. Some ACOs – those in “Track 3” – accept two-sided risk (that is, they can benefit or lose financially, depending on Medicare billings for beneficiaries in the ACO) and may waive the three-day inpatient hospital requirement.
A Medicare beneficiary does not choose to be in an ACO. CMS “aligns” beneficiaries to ACOs – that is, it “assigns” beneficiaries to ACOs – based on claims for the beneficiaries that are submitted by a primary care physician (PCP) who participates in the ACO.
PCPs may send letters to their Medicare beneficiaries, informing them that they are in an ACO.
CMS Information to Beneficiaries about ACOs
CMS’s website gives limited information to beneficiaries about what being in an ACO means. The website informs beneficiaries that they can continue to get care from any hospital or physician that accepts Medicare. Another CMS site informs beneficiaries that a Next Generation ACO is required to maintain a website that identifies SNFs in its network and that the physician may admit the beneficiary to an approved SNF without a prior three-day inpatient stay.
More detail is provided in yet another CMS document, which discusses how and when Next Generation ACOs may waive the three-day inpatient hospital stay requirement if the patient goes to a “preferred” SNF in the ACO’s network. (A “preferred” SNF in the ACO network must have an overall rating of three or more stars for at least seven of the past 12 months in CMS’s Five-Star Quality Rating System.) This CMS document, entitled “Next Generation ACO Model; Skilled Nursing Facility (SNF) Three-Day Rule Waiver” (Apr. 2019), answers 15 Frequently Asked Questions about the waiver.
Question 10 and its answer are:
Q10: Can a patient be admitted to a SNF from an observation stay?
A: Yes, that would be considered a SNF-waiver admission since there was no preceding three-day hospital stay.
CMS also confirms in this document that:
- If a beneficiary is admitted directly to a SNF (that is, without any prior hospital stay) or with an inpatient hospital stay of fewer than three days, CMS will cover the stay in the SNF (Question 1).
- If a beneficiary is admitted to a SNF under the three-day waiver and the beneficiary later moves to a SNF that is not an eligible SNF, CMS will cover the stay in the second SNF (Question 8).
- If a beneficiary is admitted to a SNF under the three-day waiver, is discharged home, and returns to a non-eligible SNF within 30 days of leaving the first SNF, CMS will cover the stay in the second SNF (Question 9).
This benefit in ACO alignment is real, but how are beneficiaries to know about it? CMS’s focus on not allowing ACOs to steer beneficiaries to particular SNFs and the primary importance given to beneficiaries’ free choice of provider mean that ACOs do not give beneficiaries all the information that would be useful to them.
Homepages of ACOs that the Center has reviewed reiterate that beneficiaries aligned with ACOs may choose to receive care from any Medicare provider, but they provide little information to beneficiaries about how to get covered care in a preferred SNF, with or without a prior three-day inpatient hospital stay.
For example, OneCare Vermont is an all-payer ACO in Vermont that works with Medicare, Medicaid, commercial, and self-funded insurance programs. OneCare Vermont’s Patient Information page says that “your health benefits will not change in any way.” The website includes a list of provider participants for 2019, which separately lists hospitals and then “Other Participants.” The alphabetical listing of “Other Participants” identifies SNFs participating in the waiver program with two asterisks (**); 17 of the SNFs listed as Other Participants have two asterisks. A beneficiary who goes to one of the six other SNFs in the network (that is, a SNF that does not have two asterisks) will not benefit from the waiver.
However, the Patient Information pages – in sections entitled “How will OneCare Vermont benefit me?,” “If my doctor is in an ACO, will my health insurance benefits change?” and “Beneficiary Rights and Responsibilities” – do not explain how beneficiaries can get their SNF stay covered without a three-day inpatient stay.
Integra, an ACO in Rhode Island, identifies SNFs in its preferred network, but does not include in its description any discussion of the inpatient hospital waiver. Moreover, even going to one of the SNFs does not necessarily mean that Medicare will pay for the SNF stay. Integra has three separate categories of members; the beneficiary must go a PCP, hospital, and surgeon in the specific ACO category in order to get Medicare coverage of a SNF stay.
What Should Beneficiaries Do?
Federal regulations do not require ACOs, physicians, hospitals, or SNFs to inform beneficiaries that they may not need a three-day inpatient hospital stay if they go to a preferred SNF in an ACO network. ACO websites give limited information. As a result, the burden appears to be on the beneficiary to inquire, to let it be known that he/she wants to go to a preferred SNF in the ACO network, and to choose a SNF in the network.
Steps to Take
- The first step is to find out whether a beneficiary is in an ACO. If the PCP informs the beneficiary, that step is completed. If a beneficiary has not been informed by the PCP, he or she should call 1-800-MEDICARE to find out if he or she has been aligned with an ACO.. When a beneficiary confirms that he/she is in an ACO, the beneficiary should go to the ACO’s website.
- The beneficiary should find out as much information as possible about whether the ACO waives the inpatient hospital requirement and, if so, which hospitals and physicians are in the ACO and which SNFs are preferred providers in the ACO’s network. Check the SNFs on the federal website Nursing Home Compare to find other information about network SNFs. Pay particular attention to staffing levels.
- If the beneficiary is in the hospital, tell the hospital discharge planner (or whoever is talking to the beneficiary and family about post-hospital care) that the patient wants to go to a preferred SNF in the ACO’s network that is eligible for the waiver of the three-day inpatient hospital requirement.
Being aligned to an ACO potentially gives beneficiaries the right to get care in a SNF without having a three-day inpatient hospital stay. Until CMS and ACOs more fully and more accurately explain beneficiaries’ rights to them, however, the burden is on beneficiaries to ask questions and to be persistent.
 Medicare requires a three-day consecutive inpatient hospital stay in order to qualify for coverage of a post-hospital SNF stay. 42 U.S.C. §1395x(i); 42 C.F.R. §49.30(a)(1).
 Social Security Act, §1899, 42 U.S.C. §1395jjj.
 CMS, Accountable Care Organizations (ACOs): General Information, https://innovation.cms.gov/initiatives/ACO/.
 CMS, For Beneficiaries, Medicare Shared Savings Program, https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/sharedsavingsprogram/for-beneficiaries.html.
 CMS, “Three-day Inpatient Hospital Stay Requirement for Care in a Skilled Nursing Facility Admission Waiver,” https://innovation.cms.gov/Files/x/nextgenaco-threedaysnfwaiver.pdf.
 CMS, “Next Generation ACO Model; Skilled Nursing Facility (SNF) Three-Day Rule Waiver (Apr. 2019), https://innovation.cms.gov/Files/x/pioneeraco-snfwaiver.pdf.
 42 C.F.R. §425.305(b)(2).  https://www.onecarevt.org/.
 CMS, “Three-Day Inpatient Hospital Stay Requirement for Care in a Skilled Nursing Facility; Admission Waiver,” https://innovation.cms.gov/Files/x/nextgenaco-threedaysnfwaiver.pdf.
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The new Medicare reimbursement system for skilled nursing facilities (SNFs) – the Patient-Driven Payment Model (PDPM) – fundamentally changes the financial incentives for facilities. With PDPM, Medicare now pays lower rates for residents needing therapy and higher rates for residents needing complex nursing care. Responding to these financial incentives, SNFs laid off therapists across the country and some SNFs began actively recruiting and admitting people who use ventilators or need dialysis. The federal Requirements of Participation require facilities making changes to the types of residents they admit to update their Facility Assessment in order to assure that they have the staff and equipment that are needed to provide care for these new residents. Are SNFs doing these mandatory assessments? If not, what can advocates do?
In creating PDPM, the Centers for Medicare & Medicaid Services (CMS) intended to reverse the perceived overuse of therapy (and definite overbilling for therapy) under the prior reimbursement system, Resource Utilization Groups (RUG). Final PDPM rules expressly confirm that PDPM financially disfavors residents needing therapy and pays lower rates to facilities providing therapy.
SNFs’ Responses to PDPM
SNFs’ responses to the new financial incentives were swift. Reports in early October, days after PDPM’s October 1 effective date, indicated that thousands of therapists had lost their jobs or had their hours reduced. Less public attention was focused on SNFs’ changing admissions practices – the admissions of residents using ventilators or needing dialysis – but these changes were occurring as well.
Skilled Nursing News reported in July 2019 that respiratory therapy would provide a “massive skilled nursing opportunity under PDPM” for several reasons that it identified:
- Residents using ventilators would be assigned to the highest case mix group for the nursing component. (Note that this case mix component does not decline over the course of a resident’s stay under PDPM’s variable per day adjustment, while three other case mix categories– physical therapy, occupational therapy, and non-therapy ancillaries [chiefly drugs] – do).
- Residents using ventilators have a greater chance of using the maximum number of days of Medicare coverage in a benefit period (100 days).
- Residents using ventilators need just (at least) 15 minutes of time each day with a respiratory therapist or nurse.
- SNFs can make as much as $1200-$1800 extra reimbursement each week for each resident using a ventilator.
An industry analysis of the first six weeks of PDPM reported that SNFs have responded to the “massive” financial incentives presented by respiratory therapy. Zimmit Healthcare Services Group found “[a]nother surprise – we did not expect the Special Care High group to be so well represented on day 1. Respiratory Therapy generated well-deserved attention, with several high-profile service providers marketing RT’s potential Return on Investment.”
Another special service supporting high Medicare rates is dialysis services, which Skilled Nursing News also identified as “a major growth area” under PDPM, “both financially and clinically.”
The Center has two concerns about SNFs’ expansion of services to ventilators and dialysis. First, some poor quality facilities seem to be responding to PDPM’s financial incentives. Second, we question whether SNFs are fully assuring their actual capacity to provide the necessary complex nursing care.
The Center heard reports that some poorly performing nursing facilities, including a candidate for the Special Focus Facility program, began establishing new ventilator units and actively recruiting people who use ventilators. The interest of poor quality facilities in ventilator care is especially troubling in light of The New York Times’s report in September 2019 that drug-resistant infections are prevalent and deadly for residents using ventilators in nursing facilities because of facilities’ insufficient and inadequate staffing and poor infection control practices.
Skilled Nursing News’ article on dialysis highlighted two facilities that had planned to add dialysis services. One facility is a one star facility (CMS’s lowest category) and the other facility has a two-star rating in health inspections (below average), according to the federal website Nursing Home Compare. The interest of poorly performing SNFs in providing such complex care is troubling.
What Can Be Done? Facility Assessment
One response to SNFs’ expansion into ventilator and dialysis services and other complex services is to determine whether the facility has actually taken steps to ensure that it is fully prepared to meet these residents’ challenging needs. Has the facility performed the Facility Assessment?
The 2016 revisions to the federal standards of care that SNFs must meet in order to be eligible for Medicare reimbursement, the Requirements of Participation, include a new requirement for Facility Assessment. The Facility Assessment requires a facility “to determine what resources are necessary to care for its residents competently during both day-to-day operations and emergencies.” Assessments must address the “resident population” and “facility resources,” including equipment, services, and staff. SNFs must review and update their Assessments annually and “whenever there is, or the facility plans for, any change that would require a substantial modification to any part of this assessment.” CMS’s State Operations Manual gives examples of “modifications” requiring review and updating of the Assessment, such as the decision to begin admitting residents with ventilators or on dialysis who were not previously admitted.
The mandate on facilities is clear, but residents’ and advocates’ role may be limited. CMS says facilities are “strongly encouraged [but not required] to seek input from the resident/family council, residents, their representative(s), or families” about a facility assessment. Only surveyors’ access to Facility Assessments is unequivocal.
What Residents and Their Advocates Can Do
Resident and their advocates can ask for a copy of the SNF’s Facility Assessment, although SNFs may decline to give them a copy. If a SNF has newly added ventilator or dialysis coverage, advocates can ask the state survey agency to determine whether the facility has complied with the Facility Assessment requirement. Advocates can also join the Center for Medicare Advocacy in asking CMS to send a Survey & Certification Letter to state survey agency directors, reminding them of the Facility Assessment requirement and encouraging them determine whether SNFs assured their ability to take on new residents needing complex care.
 83 Fed. Reg. 21018, 21034-21036 (May 8, 2018) (proposed rules).
 83 Fed. Reg. 39162, 39183-39265 (Aug. 8, 2018). See especially Table 37, Impact Analysis Resident Level, at 39257-39259, and Table 38, Impact Analysis Facility Level, at 39160-39161.
 See Danielle Brown, ‘Therapist advocates sharing layoff concerns with CMS,” McKnight’s Long-Term Care News (Oct. 3, 2019), https://www.mcknights.com/news/therapist-advocates-sharing-layoff-concerns-with-cms/; Alex Kacik, “Therapists look to CMS for aid as SNFs restructure,” Modern Healthcare (Oct. 4, 2019), https://www.modernhealthcare.com/payment/therapists-decry-layoffs-amid-snf-reimbursement-overhaul. See CMA, “Nursing Home Residents and Therapy Under The New Medicare Payment System” (CMA Alert, Oct. 10, 2019), https://www.medicareadvocacy.org/nursing-home-residents-and-therapy-under-the-new-medicare-payment-system/.
 Alex Spanko, “Respiratory Therapy’s ‘Massive Skilled Nursing Opportunity Under PDPM,” Skilled Nursing News (Jul. 28, 2019), https://skillednursingnews.com/?s=Respiratory+Therapy%27s+Massive+Skilled+Nursing+Opportunity.
 Zimmet Healthcare Services Group, LLC, CORE Analytics, PDPM Reimbursement Analysis: October 2019 Medicare Claims; Financial Impact, Observations, Rate Measures & Comparative Integrity, page 9 (Nov. 18, 2019), https://www.zcoreanalytics.com/wp-content/uploads/2019/11/PDPM-Reimbursement-Analysis-2019.pdf.
 Linda Yamshon, “Nursing Home Dialysis Demand Drives Post-PDPM Push to Specialty Services,” Skilled Nursing News (Nov. 25, 2019), https://skillednursingnews.com/2019/11/nursing-home-dialysis-demand-drives-post-pdpm-push-to-specialty-services/.
 See CMA, “Medicare’s New Skilled Nursing Facility Payment System Alters Access to Care” (CMA Alert, Nov. 7, 2019), https://www.medicareadvocacy.org/medicares-new-skilled-nursing-facility-payment-system-alters-access-to-care/.
 Matt Richtel, Andrew Jacobs, “Nursing Homes Are a Breeding Ground for a Fatal Fungus,” (Sep. 11, 2019), https://www.nytimes.com/2019/09/11/health/nursing-homes-fungus.html?searchResultPosition=1.
 42 C.F.R. §483.70(e).
 42 C.F.R. §483.70(e).
 42 C.F.R. §483.70(e)(1).
 42 C.F.R. §483.70(e)(2).
 42 C.F.R. §483.70(e).
 State Operations Manual, CMS Pub. , Appendix PP, (unnumbered page) 619, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf.
 Id. 618.
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In the first “national-level assessment of how nursing homes self-report major injury fall rates, which are used by CMS for quality measurement and public reporting,” researchers “found substantial underreporting on the specific Minimum Data Set (MDS) item (J1900C) used by NHC [Nursing Home Compare].” Prachi Sanghav, Shengyuan Pan, Daryl Caudry, “Assessment of nursing home reporting of major injury falls for quality measurement on nursing home compare,” Health Services Research, p. 5. 2019;00:1-10. https://doi.org/10.1111/1475-6773.13247. Only 57.5% of residents’ major injury falls that were identified in Medicare hospital admissions claims data were reported on residents’ assessment data.
Researchers analyzed 100% of major injury falls in hospital admissions claims data from the Medicare Provider Analysis and Review (MedPAR) for the period January 1, 2011 to September 30, 2015 (150,828 falls). They compared these claims data to facilities’ self-reported MDS data for the same period, focusing on J1900C (major injury during current stay), “as the responses to this question for long-stay residents are used to create an NHC quality measure and are part of the star rating algorithm.” Article 2. Researchers found:
- Only 57.5% of the claims were reported on MDS.
- More falls were reported on MDS for long-stay residents (62.9%) than for short-stay residents (47.2%).
- More falls were reported on MDS for white residents (59.0%) than for nonwhite residents (46.4%).
- Long-stay white residents had the highest reporting rate (64.5%), while short-stay nonwhite residents had the lowest reporting rate (37.4%). 4.
Researchers also found poor correlations between claims-based falls rates and quality measure star ratings and overall ratings. At least 75% of the nursing facilities had a four- or five-star quality measure rating and half the facilities had four- and five-star overall ratings. Id. 4-5, Table 4.
As a matter of policy, the researchers suggest that “claims-based measures may be useful supplements or replacements for the MDS-based patient safety indicator.” Id. 6. 8.
“Assessment of nursing home reporting of major injury falls for quality measurement on nursing home compare” is available at https://onlinelibrary.wiley.com/doi/epdf/10.1111/1475-6773.13247 and from the Center for Medicare Advocacy, on request.
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For the past few years, a coalition of beneficiary advocates, disease organizations, industry groups, oral health and medical health professionals has been advocating for medically necessary oral health care to be covered by Medicare, as authorized under current law. The Coalition recently launched a web-based platform for members of the public to express their support and urge the Administration to provide critical coverage for Medicare beneficiaries for medically necessary oral health care.
Please consider participating and spreading the word.
The platform is: https://freeroots.com/campaign/make-medicare-better.
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