CMA Alert | July 15, 2021

Remembering John Lewis

As Congress discusses historic legislation to improve Medicare and access to health care for all, we remember a titan of health care and equity, Rep. John Lewis, as this weekend marks the anniversary of his passing. Often called “one of the most courageous persons the Civil Rights Movement ever produced,” Rep. Lewis dedicated his life to protecting human rights, securing civil liberties, and building what he called “The Beloved Community” in America.

The Center was privileged to recognize John Lewis and his extraordinary leadership in advancing access to affordable health care and justice for all as our 2019 Sen. Jay Rockefeller Lecturer. We will not forget that gift or Rep. Lewis’ call to action to “make a way out of no way” in the fight for health care as a human right.

Guest Alert | Legal Action Center Issues Report Highlighting Medicare’s Discriminatory Coverage Gaps for Substance Use Disorder Treatment

Deborah Steinberg and Ellen Weber

The Legal Action Center (LAC) recently issued a report, Medicare Coverage of Substance Use Disorder Care: A Landscape Review of Benefit Coverage, Service Gaps and a Path to Reform (Feb. 2021), which highlighted the ways in which Medicare currently fails to cover essential health services for beneficiaries with substance use disorders (SUDs) – see also LAC’s blog post in Health Affairs, Medicare’s Discriminatory Coverage Policies for Substance Use Disorders (June 22, 2021).

Over 1.2 million adults ages 65 and over self-reported having a SUD diagnosis in 2019. As significant as this number is, it does not capture the hundreds of thousands of Medicare beneficiaries under the age of 65 with a SUD, as well as those who are undiagnosed or misdiagnosed. Among those who do report having a SUD, less than one in four older adults (23.6%) received any SUD treatment in 2019. Access to care and health outcomes are even poorer for Black, Indigenous, and Latinx individuals with SUDs. Furthermore, opioid overdose deaths and hospitalizations have continued to rise among older adults, even before the COVID-19 pandemic, and those rates are only expected to get worse.

In its report, LAC mapped Medicare’s benefit coverage for SUDs to the American Society of Addiction Medicine (ASAM) continuum of care criteria, finding that Medicare’s current standards do not cover evidence-based care. In particular, the report found:

• Although Medicare covers the least intensive types of treatment, such as annual screenings, brief intervention, and outpatient counseling; and the most intensive types of treatment (inpatient hospital care), intermediate levels of care are not available for Medicare beneficiaries. This bookended approach leaves many individuals without appropriate treatment options to meet their needs, such that they receive inadequate, if any, care until their conditions get acute enough to require hospitalization.
• With the exception of opioid treatment programs, Medicare fails to cover community-based SUD treatment facilities that are not affiliated with a hospital system or an authorized Medicare provider. SUD treatment has historically been segregated from other medical care and financed through separate funding streams.  While Medicaid and private insurance cover the settings that deliver SUD treatment, Medicare does not – and thereby denies care to Medicare beneficiaries.
• Medicare fails to cover many of the practitioners who treat patients with SUDs on a regular basis, including licensed professional counselors, certified alcohol and drug counselors, and peer support workers. While Medicare covers psychiatrists, psychologists, and licensed clinical social workers, these providers are exiting Medicare networks at the highest rate of all practitioners.
• Unlike most Medicaid and private insurance plans, Medicare is not subject to the Mental Health Parity and Addiction Equity Act – an anti-discrimination law that requires insurers to cover SUD and mental health care at the same level as other medical or surgical care. As a result, Medicare beneficiaries with SUDs can be – and are – subject to discriminatory financial and other treatment limitations.

In order to address these disparities and curb the growing SUD crisis, Congress must authorize Medicare coverage of the services, settings, and providers that make up the full continuum of care necessary to treat patients with these chronic conditions. Congress must also extend the Mental Health Parity and Addiction Equity Act to Medicare to prevent ongoing discrimination against beneficiaries with SUDs and mental health conditions. At the same time, the Centers for Medicare and Medicaid Services (CMS) can improve reimbursement rates and offer bundled payment models to fill in some of the coverage gaps; require original Medicare and Medicare Advantage plans to use the ASAM Criteria for medical necessity and level of care determinations to ensure that patients get the most appropriate treatment; eliminate unnecessary and burdensome prior authorization and other utilization management practices for SUD treatment; and incorporate SUD providers into network adequacy standards for Medicare Advantage plans to increase access to treatment across the country. It is time to modernize Medicare to meet the needs of people with substance use disorders, eliminate discriminatory policies, and save lives.

Honoring Disability Pride Month

On July 26^th, 1990, the Americans with Disabilities Act was signed into law. In the thirty-one years since, that day has come to mark a recognition of “disability pride”, defined by the publication AmeriDisability as “accepting and honoring each person’s uniqueness and seeing it as a natural and beautiful part of human diversity,” rather than seeing disability as stigmatizing classification of a physical or mental impairment.[1] Since New York Mayor Bill de Blasio’s announcement of Disability Pride Month in July 2015,[2] cities nationwide have been holding parades and celebrations in honor of disabled Americans everywhere.

According to the Centers for Disease Control and Prevention (CDC), 61 million adults in the United States have some type of disability,[3] and over half are aged 65 and older.[4]

In recognizing and celebrating the strength and empowerment that comes from understanding that an individual living with a disability is much more than a diagnosis, it is also critical that the health care needs of that individual are respected and met. Access to the Medicare coverage to which disabled Americans are entitled is a fundamental part of the Center for Medicare Advocacy’s mission.

Medicare is not just for Americans who are 65 and over. The same Medicare coverage available to older Americans is available to those under 65 who meet the criteria for Social Security Disability benefits. (Click here for more specific details about Medicare Coverage for People with Disabilities.) Furthermore, as confirmed by the 2013 settlement in Jimmo v. Sebelius,[5] Medicare covers skilled nursing care and skilled therapy services in nursing homes, home health care settings, and outpatient therapy when skilled care is needed to maintain function or prevent or slow further deterioration.[6] Unfortunately, those with disabilities, along with other Medicare beneficiaries, often face significant challenges in receiving coverage for this necessary care based on a long-standing myth that coverage is only available for people who will improve (known as the “Improvement Standard”).[7]

To address the widespread and unfounded denials of coverage that Americans with disabilities and other Medicare recipients have faced, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit (Jimmo v. Sebelius) with the goal of eliminating the myth that Medicare covers care and services only if a beneficiary is expected to improve. In 2013, the Court approved a settlement that required the Centers for Medicare & Medicaid Services (CMS) to issue clarifications to existing program guidance and create new educational material. These important materials aim to inform providers of “skilled” care that Medicare beneficiaries in need of ongoing support to maintain function or slow deterioration will continue to receive coverage for these services. (Click here to access the Jimmo Settlement information page on CMS’s website.)

There remains much work to be done, however. The Center for Medicare Advocacy continues to fight for Americans with disabilities and other Medicare beneficiaries who are still being denied their rightful coverage to access critical skilled care. We remain committed to ensuring Jimmo is properly implemented.

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[1] AmeriDisability. What is Disability Pride… And How to Display It. (n.d.). Available at: https://www.ameridisability.com/post/how-to-display-disability-pride
[2] The official website of the City of New York. Mayor Bill de Blasio Designates July “Disability Pride Month” in Honor of Twenty-Fifth Anniversary of ADA (July 2, 2015). Available at:  https://www1.nyc.gov/office-of-the-mayor/news/468-15/mayor-bill-de-blasio-designates-july-disability-pride-month-honor-twenty-fifth-anniversary
[3] Centers for Disease Control and Prevention. Disability Impacts All of Us Infographic. (Sept. 16, 2020). Available at: https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html
[4] U.S. Bureau of Labor Statistics. Persons with a Disability: Labor Force Characteristics Summary. (Feb. 24, 2021). Available at: https://www.bls.gov/news.release/disabl.nr0.htm
[5] No. 5:11-cv17 (D. Vt. Jan. 24, 2013). Available at: https://www.medicareadvocacy.org/wp-content/uploads/2013/01/Order-Granting-Final-Approval.012413.pdf
[6] Centers for Medicare & Medicaid Services. Jimmo Settlement. (n.d.). Available at: https://www.cms.gov/Center/Special-Topic/Jimmo-Center
[7] Center for Medicare Advocacy. Transition Memorandum for Biden Administration Department of Health & Human Services (HHS). (Dec. 21, 2020). Available at: https://medicareadvocacy.org/transition-memo-2020/?emci=311b3b1f-1fe0-eb11-a7ad-501ac57b8fa7&emdi=f571f5da-30e0-eb11-a7ad-501ac57b8fa7&ceid=9511848

Reports Call for Changes for the Direct Care Workforce

The coronavirus pandemic has brought to greater public attention the workers who provide care to older people and people with disabilities and the challenges they face. Two new reports, one by PHI, a national nonprofit organization focused on the direct care workforce, and the other by LeadingAge, the trade association of not-for-profit services providers, call for fundamental changes for direct care workers.

More than 4.6 million direct care workers provide support and care to older adults and people with disabilities in a variety of institutional settings and in homes. PHI describes the direct care workforce:

• 87% | Percentage of direct care workers who are women
• 59% | Percentage of direct care workers who are people of color
• 27% | Percentage of direct care workers who are immigrants
• $12.80 | Median hourly wage for direct care workers
• 45% | Percentage of direct care workers living in or near poverty
• 36% | Percentage of direct care workers who lack affordable housing
• 47% | Percentage of direct care workers accessing some form of public assistance (food and nutrition assistance, Medicaid, and/or cash assistance)
• 7.4 million | Number of job openings in direct care between 2019 and 2029, including 1.3 million new jobs to meet rising demand and 6.9 million openings caused by workers who transfer to other occupations or exit the labor force altogether.[1]

In its new report, Federal Policy Priorities for the Direct Care Workforce, PHI identifies federal policy priorities for the direct care workforce, in the eight areas of

1. financing through Medicaid and alternative financing models 
2. compensation for workers (better wages and benefits)
3. training (national competency-based training standard, training infrastructure)
4. workforce interventions
5. data collection
6. direct care worker leadership
7. equity
8. public narrative 

LeadingAge’s report, “Feeling Valued Because They Are Valued; A Vision for Professionalizing the Caregiving Workforce in the Field of Long-Term Services and Supports,”[2] describes a new vision for direct care workers, whom it renames “professional caregivers” or “direct care professionals.” LeadingAge’s reimagined workforce would

• “Receive high-quality, competency-based training.
• “Earn a living wage and meaningful benefits commensurate with their competency levels.
• “Enjoy good working conditions and skilled supervision. 
• “Have access to a variety of career advancement opportunities. 
• “Be respected and appreciated by their employers, care recipients, and the general public.”[3]

LeadingAge identifies six strategies to improve recruitment of caregivers, reduce turnover, and ensure a stable workforce. These strategies are:

1. Expanding the pipeline of potential caregivers by recruiting nontraditional workers and changing immigration policy
2. Enhancing education and training, with “robust curricula”
3. Facilitating career advancement
4. Increasing compensation so that direct care professionals earn “at least a living wage”[4]
5. Preparing universal workers so that direct care professionals can work across care settings
6. Reforming the long-term services and supports financing system[5]

The similarities in the reports’ recommendations are striking. It is long past time for these recommendations to be implemented.

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[1] PHI, Federal Policy Priorities for the Direct Care Workforce, p. 4 (2021), citing “Workforce Data Center.” Accessed 6/8/2021. https://phinational.org/policy-research/workforce-data-center/.  The report is accessed through a link at http://phinational.org/resource/federal-policy-priorities-for-the-direct-care-workforce/
[2] Robyn I. Stone and Natasha Bryant, Feeling Valued Because They Are Valued; A Vision for Professionalizing the Caregiving Workforce in the Field of Long-Term Services and Supports (Jul. 2021), https://leadingage.org/sites/default/files/Workforce%20Vision%20Paper_FINAL.pdf
[3] Id. 2.
[4] See LeadingAge’s study, Making Care Work Pay: How a Living Wage Benefits Us All (Fall 2020), https://leadingage.org/sites/default/files/Making%20Care%20Work%20Pay%20Report.pdf
[5] Robyn I. Stone and Natasha Bryant, Feeling Valued Because They Are Valued; A Vision for Professionalizing the Caregiving Workforce in the Field of Long-Term Services and Supports, p. 3 (Jul. 2021), https://leadingage.org/sites/default/files/Workforce%20Vision%20Paper_FINAL.pdf

Keep the Momentum Going – Tell Congress to Improve Medicare Now!

Congress and the Administration are currently debating how to improve health coverage and care. Make sure that Medicare is part of that discussion.

Improve traditional Medicare before expanding the program. These steps must come first:

• Control private Medicare Advantage and Prescription Drug Costs
• Add an Out of Pocket Cap
• Add an Oral Health Benefit
• Add Audiology and Vision Benefits
• Improve Affordability, including by Strengthening Low-Income Protections
• Expand Rights to Purchase Medigap Policies

Contact your member of Congress and Senators and tell them to take these steps to Improve Medicare Now!

Use this link to write to them today:
https://secure.everyaction.com/0Yho6AcLSkSqYlPesPMO4g2

Give a 35th Anniversary Gift to the Center.
Help the Center’s Mission Soar.

Support in July is always important to us, as we enter our new fiscal year. If you are able to make a special 35th Anniversary gift to the Center this summer, you will help the Center’s mission soar into our new year to advance access to comprehensive Medicare, health equity, and quality health care for families across the country.

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