CMA Alert | July 22, 2021

Advocates Call on Congress to Improve Medicare

On July 20, 2021, the Center for Medicare Advocacy and nine other organizations sent a letter to Congress and the Biden Administration, urging them to move forward with improvements to the Medicare program as part of creating a more equitable and affordable health care and prescription drug system. The Center was joined by Alliance for Retired Americans, Families USA, Justice in Aging, Medicare Rights Center, National Academy of Elder Law Attorneys, National Association of Social Workers (NASW), National Committee to Preserve Social Security & Medicare, National Council on Aging and Social Security Works.

The groups recommended priorities for strengthening Medicare, including:

• Add a Comprehensive Oral Health Benefit 
• Add Hearing Coverage
• Expand Vision Coverage
• Reduce Prescription Drug Prices and Out-of-Pocket Costs
• Improve the Medicare Savings Programs’ (MSPs) Low-Income Protections
• Add an Out-of-Pocket Cap to traditional Medicare
• Strengthen the Home Health Benefit 
• Improve Chronic Care 
• Modernize and improve Medigap Enrollment 

The joint letter is available here.In addition, last week, the Center issued an Action Alert urging individuals to contact their members of Congress to push for many of these goals. We encourage you to contact your legislators as momentum builds for Medicare improvements.

Oral Health / Dental Coverage

Among these suggested improvements is one of the Center’s long-standing goals – adding a comprehensive oral health benefit to the Medicare program. As legislators finally begin to understand what the public has known all along – that oral health is critical to overall health – the Center issued an Oral Health Action Alert this week asking individuals to contact and urge their federal lawmakers to include dental coverage in Medicare.

Both of these Action Alerts are still available for anyone who wishes to use them, and both can be found at https://medicareadvocacy.org/take-action/.

For more information on the need for oral health coverage, see the Center’s Medicare Oral Health Fact Sheets:

• Fact Sheet – Important Facts about Medicare & Dental /Oral Health Coverage
• Fact Sheet – Rheumatic Diseases, Arthritis, and Joint Replacement
• Fact Sheet – Dental Issues Related to Cancer Treatment
• Fact Sheet – The Dental and Heart Disease Relationship
• Fact Sheet – The Diabetes and Dental Disease Connection
• Fact Sheet – Dental Issues Related to Pulmonary Diseases

Appeals Court Temporarily Pauses Implementation of Observation Status Decision While Considering Government’s Request for a Stay

In March 2020, a nationwide class of hospitalized Medicare beneficiaries who were reclassified from inpatients to “outpatients,” receiving “observation services,” won the right to appeal their designation, which can have severe ramifications for beneficiaries’ care and costs. The plaintiffs are represented by the Center for Medicare Advocacy, Justice in Aging, and Wilson Sonsini Goodrich & Rosati (pro bono). The trial court ordered the government to implement Medicare appeal procedures for class members. The federal government appealed the trial decision in May 2020, and, more recently, requested that implementation of the decision be “stayed” – or paused – pending the outcome of its appeal.

On July 16, 2021, the Second Circuit Court of Appeals granted a “temporary stay” while it refers the government’s motion for a stay to the panel of judges that previously considered the case. The panel may decide to continue the stay, or may decide that a stay is not warranted, and that implementation must resume. Meanwhile the government’s appeal of the trial decision remains pending. The Center and co-counsel continue to oppose the government’s request for a stay and to oppose the government’s appeal. See the Center’s FAQ for further information about the case.

Immunity for Long-Term Care Facilities During the Coronavirus Pandemic

A new report by the National Consumer Voice for Quality Long-Term Care (Consumer Voice) identifies 38 states, as of June 1, 2021, that since the coronavirus pandemic have either issued executive orders or passed legislation giving long-term care facilities immunity.[1] The report describes the immunity provisions and their exceptions and duration, explains why immunity is bad for residents of facilities, and includes a state-specific Chart.[2]

While these state actions are troubling, at least some courts are rejecting facilities’ defenses of immunity.

A federal district court in Illinois denied the nursing home’s motions to dismiss in two cases – Brady v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04500 (N.D. Ill.), and Walsh v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04505 (N.D. Ill.) – holding that the Governor’s Executive Orders do not give liability protection “to a private facility’s ‘willful misconduct’ under [Illinois Nursing Home Care Act] 20 ILCS §3305/21(c).” Although the judge finds that factual issues need to be resolved about immunity, he rules that “plaintiffs’ claims survive because they have plausibly alleged that Westchester engaged in willful misconduct, a term synonymous with [common law claims of] willful and wanton conduct.” 

Federal court decisions in New Jersey,[3] Kansas,[4] and Pennsylvania[5] have rejected facilities’ immunity defenses in the context of the federal Public Readiness and Preparedness Act (PREP Act). Plaintiffs had filed wrongful death cases in state court, alleging that the nursing facilities’ negligence during the coronavirus pandemic caused the death of the resident. Defendant nursing facilities removed the cases to federal court. The courts rejected the facility arguments, and remanded the cases to state court, finding that in these cases, plaintiffs had alleged that the nursing facility failed to use countermeasures and holding that the PREP Act’s immunity applies when an individual uses a covered “countermeasure.” As the Court holds in Sherod,

because Plaintiff’s Complaint alleges that Brighton failed to provide decedent with any protection/countermeasures, Plaintiff’s claims fall outside the purview of the PREP Act which purports to provide immunity to facilities like Brighton when a claim is brought against them for the countermeasures the facility actually utilized.

Despite plaintiffs’ success in these court cases, the existence of immunity provisions is likely to discourage other potential plaintiffs from filing lawsuits. Advocates continue to oppose immunity provisions at the state and federal levels.[6]

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[1] Consumer Voice, State Immunity Law and Executive Orders Relating to Long-Term Care Facilities, https://theconsumervoice.org/uploads/files/general/State_Immunity_Summary_Final.pdf.  The Center for Medicare Advocacy issued an early report about immunity, Nursing Home Industry Seeks Immunity During COVID Crisis; States Are Obliging (May 14, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/05/Special-Report-Nursing-Home-Immunity.pdf; Alert (summarizing the report) (May 14, 2020), at https://medicareadvocacy.org/new-cma-report-nursing-home-industry-seeks-immunity-during-covid-crisis-states-are-obliging/
[2] https://theconsumervoice.org/uploads/files/general/State https://medicareadvocacy.org/new-cma-report-nursing-home-industry-seeks-immunity-during-covid-crisis-states-are-obliging/ _Immunity_Worksheet_2.pdf
[3] Estate of Maglioi v. Andover Subacute Rehab. Ctr., ___F.Supp.3d ___, 2020 WL 4671091 (D.N.J. 2020)
[4] Jackson v. Big Blue Healthcare, Inc., No. 2:20-CV-2259-HLT-JPO, 2020 WL 4815099 (D. Kan. Aug. 19, 2020)
[5] Sherod v. Comprehensive Healthcare Mgmt. Servs., No. 20cv1198 (W.D. Pa. Oct. 16, 2020)
[6] Consumer Voice, “Oppose Immunity for Long-Term Care Facilities During the COVID-19 Pandemic,” https://theconsumervoice.org/issues/issue_details/immunity

With 44% of Nursing Home Staff Not Yet Fully Vaccinated, New Funding Initiatives to Study Vaccine Hesitancy Among LTC Workers Are Launched

COVID-19 has infected almost 1.5 million individuals in our nation’s long-term care facilities and claimed the lives of over 180,000.[1] Despite COVID’s devastating impact on our nation’s long-term care facilities, nursing home staff continue to be reluctant to get vaccinated. According to new analysis by AARP,[2] over 40% of the nursing home staff are not fully vaccinated, which means that 4 in 5 nursing homes did not meet the industry’s target goal of having 75% of staff fully vaccinated by June 30, 2021.[3] Staff vaccination rates vary widely across the nation. States with the lowest nursing home staff vaccination rates, according to AARP, include Louisiana (41.1%), Florida (41.8%), and Mississippi (42.2%), compared to states with the highest rates, such as Hawaii (83.9%), Vermont (76.6%), and California (76.3%).

This news is particularly concerning as the Centers for Disease Control and Prevention (CDC) recently classified the Delta variant of COVID-19 as a variant of concern.[4] This classification category means there is evidence of increased transmissibility and disease severity, such as hospitalizations and deaths. COVID-19 vaccines, according to the CDC, appear to offer protection against current variants.[5]

In the meantime, the Patient-Centered Outcomes Research Institute (PCORI) announced $11 million in funding for two studies aimed at finding ways to reduce COVID-19 vaccine hesitancy among long-term care staff.[6] One study, at Dartmouth College, will recruit 1,800 direct care workers and compare methods to increase confidence in the vaccines. One third of the participants will attend live webinars, another third will visit a website and engage with social media, while the final third will review COVID-19 information on CDC’s website.[7]

The second study will be spearheaded by the Kaiser Permanente Washington Health Research Institute and will be carried out in 60 long-term care facilities in both Georgia and Washington State, involving 6,000 frontline workers at those facilities.[8] This study will examine the effectiveness of different ways to disseminate vaccine information in a manner that is tailored to the language or cultural groups of the long-term care staff workers. Staff will be divided into three groups with varying levels of intervention (full, limited, or enhanced usual care). The full intervention group will work with the study team to codesign vaccine information materials focusing on reaching diverse groups and will also learn to be peer advocates for the vaccine. The second group (i.e., limited intervention) will work with the materials developed by the first group and share them with staff at their long-term care facility. Finally, the third group will receive vaccine information through the CDC and give that information to their co-workers at the facilities.

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[1] KFF. State COVID-19 Data and Policy Actions. (July 2, 2021). Available at: https://www.kff.org/coronavirus-covid-19/issue-brief/state-covid-19-data-and-policy-actions/
[2] Paulin, E. Nursing Homes Not Hitting Staff COVID Vaccine Goal. (July 15, 2021).  AARP. Available at: https://www.aarp.org/caregiving/health/info-2021/nursing-home-staff-vaccine-threshold.html
[3] Nursing Homes Set Goal To Get 75% Of Staff Vaccinated By June 30. AHCA Press Release. (Feb. 25, 2021). https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/Nursing-Homes-Set-Goal-To-Get-75-Percent-Of-Staff-Vaccinated-By-June-30.aspx
[4] Centers for Disease Control and Prevention. SARS-CoV-2 Variant Classifications and Definitions. (Updated July 13, 2021). Available at: https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-info.html#Concern
[5] Centers for Disease Control and Prevention. About Variants of the Virus that Causes COVID-19​​. (Updated June 28, 2021). Available at: https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html
[6] PCORI. PCORI approves $11 million for new studies to boost COVID-19 vaccination rates among long-term care workers. (July 12, 2021). Press Release. Available at: https://www.pcori.org/news-release/pcori-approves-11m-for-new-studies-boost-covid-19-vaccination-rates-among-long-term-care-workers?utm_campaign=PCORI+approves+$11+million+for+new+studies+to+boost+COVID-19+vaccination+rates+among+long-term+care+workers&utm_medium=bitly&utm_source=website
[7] PCORI. CONFIDENT: A Randomized Trial to Increase COVID-19 Vaccine Confidence in Long-Term Care Workers. (July 12, 2021). Available at: https://www.pcori.org/research-results/2021/confident-randomized-trial-increase-covid-19-vaccine-confidence-long-term-care
[8] PCORI. ENSPIRE Study: Engaging Staff to Improve COVID-19 Vaccination Rates at Long-Term Care Facilities. (July 12, 2021). Available at: https://www.pcori.org/research-results/2021/enspire-study-engaging-staff-improve-covid-19-vaccination-rates-long-term-care

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