Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert | July 16, 2020

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  1. Medicare Expansion of Telehealth Helps Beneficiaries Access Care During the Pandemic – But Caution is Needed before Making These Changes Permanent
  2. Groups File Petition Demanding that HHS and its Agencies “Mitigate the COVID-19 Crisis in America’s Nursing Homes”
  3. Advocacy Update: Medical Rationing
  4. American Health Care Association’s CEO Issues Message to Members: “We Won’t Back Down”
  5. Elder Justice Newsletter – Vol 2, Issue 11 Now Available

Medicare Expansion of Telehealth Helps Beneficiaries Access Care During the Pandemic – But Caution is Needed before Making These Changes Permanent

The Center for Medicare Advocacy’s mission is to advance access to affordable, quality health care for older people and people with disabilities. We recognize that the expansion of Medicare-covered telehealth services has helped many beneficiaries and their families, while helping to reduce transmission of the COVID-19 virus. Nonetheless, we urge policy-makers to study the current experience with telehealth, rather than making permanent a system developed during a crisis.

Legislative mandates and administrative authority have allowed the Centers for Medicare & Medicaid Services (CMS) to issue temporary waivers of Medicare rules. Combined, these waivers allow beneficiaries to receive a wider range of health services, from a broader array of providers, using more types of technology, including from home.  

Although the country is still in the midst of the COVID crisis, some stakeholders are already pushing to permanently extend many of these changes. Concurrently, CMS has signaled it intends to make many of the changes permanent, and there is growing support in Congress for expanding telehealth.  However, without study and publicly released data concerning the types of services provided, program spending, health outcomes, and quality measurements, decisions to make such expansion permanent are premature. Further, these decisions could fundamentally change care delivery for Medicare patients.

When assessing whether and how to expand Medicare coverage for telehealth, we suggest the following principles to help guide policymakers:

  1. Ensure any covered telehealth services are clinically appropriate;
  2. Ensure that telehealth options supplement, rather than replace, in-person care – and ensure that payment incentives align with this goal;
  3. Ensure that further expansion of telehealth does not exacerbate health disparities – and ensure that necessary actions and expenditures are authorized to address the digital divide faced by many Medicare beneficiaries;
  4. Require that any applicable beneficiary cost-sharing is disclosed up-front by providers;
  5. Ensure that any expansion of telehealth protects patient privacy and data security for personal health information; HIPAA privacy protections must apply to telehealth interactions between the patient and provider and personal health data must also be kept secure;
  6. Ensure any expansion of telehealth is identical in traditional Medicare and private Medicare Advantage, and that the services and necessary equipment to access telehealth are equally available to all beneficiaries – whether they are in traditional Medicare or Medicare Advantage;
  7. Ensure that telehealth does not (further) weaken Medicare Advantage network adequacy standards by allowing telehealth providers to count towards network adequacy;
  8. Require public release of data concerning Medicare-covered telehealth, including the type of services provided, programmatic spending, health outcomes, and quality measurements.

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Groups File Petition Demanding that HHS and its Agencies “Mitigate the COVID-19 Crisis in America’s Nursing Homes”

Threatening to file a lawsuit within three weeks, the American Civil Liberties Union and the Service Employees International Union (SEIU), along with disability organizations, petitioned the Department of Health and Human Services to take immediate action to correct the Federal Government’s mishandling of the coronavirus pandemic for people with disabilities and health care workers in congregate settings, including nursing facilities.[1] The Petition recites that HHS and its agencies [the Centers for Medicare & Medicaid Services (CMS), Center for Clinical Standards and Quality (CCSQ), and the Centers for Disease Control and Prevention (CDC)],

delayed the effort to monitor the extent of the problem, significantly curtailed  the inspection and enforcement program, waived basic patient safety protections, and failed to issue clear, robust COVID-19 specific infection prevention and control directions for those facilities to follow.

Petitioners allege that “This tragedy is also a civil rights violation, landing disproportionately on people with disabilities, Black and Latinx people, and women.” Id.

Petitioners request that HHS and its agencies require transparency and accountability, reduce the census in congregate settings, and protect residents and staff (by, among other actions, testing or isolating newly admitted residents; requiring universal testing of residents; cohorting residents by COVID-19 status; requiring “a full-time, qualified and trained infection preventionist;” restoring training requirements for staff; “using appropriated funds to incentivize facilities to provide paid sick leave and hazard pay to workers;” reporting all deaths from the pandemic, including demographic information; reporting all staffing levels, specifically, requiring submission of payroll-based staffing data since January 2020; rescinding and modifying the inspection survey protocol, specifically criticizing the Focused Infection Control Survey as insufficient to determine compliance with infection prevention and control requirements; and more.

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[1] “Petition of American Civil Liberties Union, Service Employees International Union, American Association of People with Disabilities, Autistic Self-Advocacy Network, Disability Rights Education and Defense Fund, National Council on Independent Living, Partnership for Inclusive Disaster Strategies and World Institute on Disability” (Jun. 23, 2020), https://www.aclu.org/petition-covid-19-response-nursing-homes-and-other-congregate-settings-where-people-disabilities; ACLU, “ACLU, SEIU, Disability Rights Organizations File Petition Demanding HHS Mitigate the COVID-19 Crisis in American’s Nursing Homes and Other Congregate Settings for People with Disabilities” (Press Release, Jun. 23, 2020), https://www.aclu.org/press-releases/aclu-seiu-disability-rights-organizations-file-petition-demanding-hhs-mitigate-covid.

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Advocacy Update: Medical Rationing

Since the beginning of the pandemic, health care professionals have been concerned about the possible lack of sufficient life-saving equipment, specifically ventilators, to meet the increasing demand due to surging COVID-19 cases. In the last few months, in response to this concern, some states and medical professionals have developed protocols for rationing acute medical care in the event of a limited supply.  Many of these plans include criteria based on disability, and have the effect of discriminating against people with disabilities in violation of Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act, which prohibit discrimination on the basis of disability in HHS-funded health programs or activities.

The Center for Medicare Advocacy has been involved in a coalition effort, along with disability rights advocates and advocates representing older adults, to ensure that, if the current pandemic results in decisions to ration treatment, allocation decisions are made without discriminating based on disability or age.

The advocacy community was encouraged when the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin on March 28, 2020 reiterating that discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs is prohibited. (See CMA Alert on the bulletin).

The bulletin stated:

The Office for Civil Rights enforces Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act which prohibit discrimination on the basis of disability in HHS funded health programs or activities.  These laws, like other civil rights statutes OCR enforces, remain in effect.  As such, persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative “worth” based on the presence or absence of disabilities. Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence.

While some state guidelines were blatantly discriminatory, others may appear to be neutral but in reality perpetuate health disparities. A recent article in the New England Journal of Medicine examines this issue of “neutral” language having discriminatory effects. It points out that systemic racism and inequities that lead to worse health outcomes and higher chronic disease will result in some patients having a lower health expectancy “score” under certain commonly-used standards. Those patients will then be less likely to receive life-saving treatment in a rationing situation.

In effect, CSCs [crisis standards of care] that deprioritize people with coexisting conditions or with a higher likelihood of death within 5 years penalize people for having conditions rooted in historical and current inequities and sustained by identity-blind policies. In the United States, black, poor, disabled, and other disadvantaged people have shorter life expectancies than white and able-bodied Americans. If maximizing life-years is the prime directive, their lives will be consistently deprioritized as compared with already advantaged groups.

The Center for Medicare Advocacy is currently part of a coalition focused on the Massachusetts Crisis Standards of Care. Along with our colleagues at Justice in Aging, Greater Boston Legal Services, the Center for Public Representation, and others, the coalition has identified several age-specific issues with the state’s guidelines, including the omission of age as a protected characteristic. The coalition is currently working with the state and is hopeful that new guidelines will protect all patients.

Guidelines in California and New Hampshire reflect input from disability and aging groups and can be used as models for other states to avoid discrimination and give appropriate attention to health inequities.

The Center will continue to monitor and join in these efforts, particularly as many health experts express concern about new waves of infections in some states. Moreover, experts warn that flu season, coupled with continuing COVID-19 infections, could put a major strain on already overwhelmed hospitals and equipment later this year. If rationing of care must occur, it is important that allocation decisions are not made on the basis of age, disability, or other protected characteristics.

Resources

Letters:

The Center for Public Representation is an excellent resource on this issue, with links to analyses, civil rights complaints, and advocacy letters.

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American Health Care Association’s CEO Issues Message to Members: “We Won’t Back Down”

In an undated (June 2020) Message, the American Health Care Association’s President and CEO Mark Parkinson tells member nursing facilities “Our profession faces its greatest challenge in history” and “the very survival of our sector.”[1]

The message begins by reporting that people who have COVID-19 may be contagious while asymptomatic. As a consequence, and citing researchers from Harvard (David Grabowski), Brown (Vincent Mor), and the University of Chicago (R. Tamara Konetzka), he writes that facilities are not at fault when residents and staff become infected with COVID-19:

It wasn’t a matter of bad operators getting COVID-19 and good operators not getting it.  The facts indicate that your Five-Star rating, profit vs. not for profit status, or prior deficiency history are not predictors of whether COVID-19 gets in your buildings.  The most important factor determining whether COVID-19 ends up in a building is the surrounding community of where the building is located.  If you are located in New York, you likely ended up with COVID-19 in your building.  If you are located in the rural Midwest, you are less likely to have COVID-19 in your building.  It depends on the outbreak in the surrounding community, which impacts the number of carriers without symptoms.

The Center for Medicare Advocacy notes that other researchers find a correlation between COVID-19 and low nurse staffing levels and low quality ratings.[2]

The statement blames policymakers for allocating tests and personal protective equipment to hospitals, not nursing facilities and says “Tens of thousands of lives were lost due to this mistake.” It continued:

Now, we are being blamed.  Rather than recognizing that long term care providers were helpless to identify pre-symptomatic carriers who were spreading the virus, we have been blamed.  The knee jerk government response to an outbreak has been inspections, deficiencies and fines.  At a time when we need collaboration and a helping hand, we are instead getting hit with a punitive approach.

It then reports that facilities are fighting back and that AHCA is as well in Washington, D.C., detailing a series of “small wins,” all related to reimbursement and including Medicare Advanced Payments, a 2% increase in Medicare rates as a result of the lifting of the Medicare sequester, a 2.3% increase in reimbursement beginning October 1, 2020, and no changes in the Patient-Driven Payment Model reimbursement (the new Medicare reimbursement system for skilled nursing facilities).

The message describes “an historic media campaign to fight back.” Funded by a $10 per skilled nursing facility bed assessment in June 2020 and a similar assessment in June 2021, AHCA will have $15 million for media and social media campaigns “to shape the national conversation.”

Next steps for AHCA include getting financial relief for assisted living, getting federal liability immunity for COVID-19, and getting additional funding for nursing facilities from the $62 billion that remain in the Provider Relief Fund.

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[1] AHCA, “A Message from the President & CEO Mark Parkinson; We Won’t Back Down.” https://files.constantcontact.com/64f0b60b701/f86b03a3-a859-4098-b6d0-3866c56672d5.pdf.
[2] Yue Li, et al, “COVID-19 infections and deaths among Connecticut nursing home residents: facility correlates,” Journal of American Geriatric Society (Jun. 18, 2020), https://onlinelibrary.wiley.com/doi/epdf/10.1111/jgs.16689.

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Elder Justice Newsletter – Vol 2, Issue 11 Now Available

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. Our latest issue has real stories from nursing homes in New York, California, Georgia, and Massachusetts.

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