- Part D Legislation Markup Today: Improve Beneficiary Appeals
- CMS Releases Special Focus Facility Candidate List But Transparency Issues Remain
- Senate Finance Committee Holds Hearing on Nursing Home Issues
- Private Medicare Advantage Plans Overbill Medicare
On Tuesday, July 23, the Senate Finance Committee released draft drug pricing legislation, the Prescription Drug Pricing Reduction Act (PDPRA) of 2019. This sweeping bill would make a number of changes aimed at addressing the high and rising costs of prescription drug prices.
However, the legislation currently does not contain important changes to the Medicare Part D appeals process. With mark-up of the legislation happening today, Thursday, July 25, the Center for Medicare Advocacy joins our friends at Medicare Rights Center in urging inclusion of the bipartisan Streamlining Part D Appeals Act (S. 1861), introduced by Senators John Cornyn (R-TX) and Ben Cardin (D-MD) into the Senate Finance Committee’s drug pricing bill.
Currently when a Medicare beneficiary is refused a prescription at the pharmacy counter, they may not know the reason and next steps necessary to obtain their medication. To find a resolution, beneficiaries often have to correspond with both their Part D plan and their prescriber on multiple occasions, which may involve many phone calls and long wait times, often up to several days. For many older adults and people with disabilities, this is dangerously too long to go without needed medication.
The Streamlining Part D Appeals Act (S. 1861) would simplify this process by allowing a denial at the pharmacy counter to serve as a coverage determination. Allowing a refusal at the pharmacy counter to function as the plan’s initial coverage determination creates the provision of a detailed, formal denial notice at the point-of-sale. This denial would give people with Medicare more timely access to actionable information about their plan’s coverage decision, and eliminate unnecessary steps within the current system – including the need for beneficiaries to request pre-coverage determination information and counsel from their plans and providers. Beneficiaries would be empowered to more easily exercise their appeal rights and obtain an independent review.
– top –
Background. Every month, the Centers for Medicare & Medicaid Services (CMS) identifies nursing homes with an extremely poor record of resident care for inclusion in the Special Focus Facility (SFF) program for enhanced oversight. Due to limited resources, CMS currently caps the SFF program to just 88 facilities nationwide. However, a June 2019 report by U.S. Senators Bob Casey and Pat Toomey found that CMS identifies an additional 2.5 percent of all certified nursing homes (about 400 facilities) as SFF candidates based on their “persistent record of poor care.”
Days after the report’s release, Dr. Kate Goodrich, a high-ranking CMS official, indicated that the agency planned to make the candidate list public moving forward. Giving no sign as to when future lists would be available, Dr. Goodrich stated, “CMS urges all Americans to consult their physician, family, and Nursing Home Compare before choosing a nursing home for their loved ones.” As Dr. Goodrich’s statement acknowledges, Nursing Home Compare is the premier resource residents and families use when choosing a nursing home. In a joint statement, our organizations called on CMS to make the candidate list publically available on Nursing Home Compare.
Finding the SFF Candidate List. As of the date of this statement’s publication, the SFF candidate list is now available on Nursing Home Compare but only through a link to a separate website. Because CMS has not integrated the candidate list into Nursing Home Compare, a candidate’s Nursing Home Compare page does not indicate its inclusion on the candidate list.
Consumers Deserve Transparency. Our organizations are concerned that CMS’s failure to integrate the SFF candidate list into Nursing Home Compare may mean that consumers will never know that a nursing home is a SFF candidate. For example, the average consumer looking at New York’s Cayuga Nursing and Rehabilitation Center on Nursing Home Compare would never know that CMS considers it a candidate for the SFF program or that CMS has considered it a SFF candidate for the last 51 months (over four years). Given that CMS only excludes SFF candidates from the SFF program because of a lack of resources, it is even more critical that CMS properly alert the public when it identifies a nursing home as meeting the SFF criteria because the candidates are not receiving the enhanced oversight that SFFs receive.
Solution. CMS must integrate the Special Focus Facility candidate list into Nursing Home Compare and place an icon on each candidate’s Nursing Home Compare page which indicates the facility’s status as an SFF candidate.
– top –
On July 23, 2019, the Senate Finance Committee held its second nursing home hearing this year, “Promoting Elder Justice: A Call for Reform,” following its March 6 hearing “Not Forgotten: Protecting Americans from Abuse and Neglect in Nursing Homes.” The Center for Medicare Advocacy is pleased that the July 23 hearing included a national advocate for residents as a witness.
The first panel featured Megan H. Tucker of the HHS Office of Inspector General (OIG) and John E. Dicken of the Government Accountability Office (GAO), who discussed their agencies’ recent reports. Describing a series of recent reports, Tucker testified that the Centers for Medicare & Medicaid Services (CMS) should use data more effectively to ensure that abuse and neglect are identified and the deficiencies corrected. Dicken discussed a new GAO report, released at the hearing, that focused on abuse and neglect of residents. The GAO found that abuse deficiencies more than doubled between 2013 and 2017, with the greatest increase in actual harm and immediate jeopardy deficiencies, and that abuse is still under-reported. The GAO also found significant gaps in CMS’s oversight. The Senators were engaged with the witnesses’ testimony and reports, asking many questions about criminal background checks.
The second panel included Robert Blancato, National Coordinator of the Elder Justice Coalition; Mark Parkinson (a late addition to the witness list), President and CEO of the nursing home trade association American Health Care Association (AHCA); and Lori Smetanka, Executive Director of the National Consumer Voice for Quality Long-Term Care.
Blancato called for a new Elder Justice Reform Act, focused on dedicated funding for Adult Protective Services; strengthening the long-term care ombudsman program; continuing the Elder Justice Coordinating Council; authorizing an Advisory Board on Elder Abuse, Neglect, and Exploitation; and funding for elder abuse forensic centers.
Parkinson described AHCA’s 2012 quality initiative, which currently focuses on lowering hospitalizations, customer satisfaction surveys, and continued decreases in use of antipsychotic drugs. He noted facilities’ improvement in 18 of 24 quality measures. The Center for Medicare Advocacy does not view “quality measures” as reflecting actual quality of care provided by nursing facilities.
Smetanka made five recommendations to reduce abuse and neglect and, more broadly, improve care for residents, calling on Congress and CMS to:
- Require standards for a sufficient, well-trained, well-supervised workforce;
- Establish standards and oversight for facility ownership and operations, and expanding accountability to the corporate level;
- Implement, enforce, and prevent the rollback of standards;
- Increase transparency of information;
- Strengthen and fund elder justice provisions
Toby S. Edelman of the Center for Medicare Advocacy did not testify but submitted a Statement for the record.
An issue raised by both Smetanka and Edelman was the collapse of Skyline Healthcare, a New Jersey-based nursing home chain that rapidly began to manage nursing facilities across the country in 2016-2017, but then abandoned the facilities in the Spring 2018, leaving states with the responsibility of caring for thousands of residents.
An investigative report on NBC Nightly News on July 19, 2019 told the story of Skyline’s collapse in Massachusetts in May 2019 and abandonment of five facilities in the southeastern part of the state.
Various Senators are considering legislative proposals to address the issues raised in the hearing.
 The Senator’s opening statements and witnesses’ prepared statements are available at https://www.finance.senate.gov/hearings/promoting-elder-justice-a-call-for-reform.
 See “Senate Finance Committee Holds Hollow Hearing for the Nursing Home Industry” (CMA Alert, Mar. 7, 2019), https://www.medicareadvocacy.org/senate-finance-committee-holds-hollow-hearing-for-the-nursing-home-industry/.
 CMA, “Nursing Home ‘Quality Measures’ Do Not Reflect Quality of Nursing Home Care” (CMA Alert, Jul. 3, 2019), https://www.medicareadvocacy.org/nursing-home-quality-measures-do-not-reflect-quality-of-nursing-home-care/.
 “NBC News Investigation: Nursing home chain collapses amid allegations of unpaid bills, poor care” (Jul. 19, 2019), https://www.nbcnews.com/nightly-news/video/nbc-news-investigation-nursing-home-chain-collapses-amid-allegations-of-unpaid-bills-poor-care-64181829714; 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 Nightly News (May 19, 2019), https://www.nbcnews.com/health/aging/nursing-home-chain-grows-too-fast-collapses-elderly-disabled-residents-n1025381.
– top –
This week the CT Mirror published a Kaiser Health News article about overpayments to private Medicare plans. The article, originally titled “Insurers Running Medicare Advantage Plans Overbill Taxpayers By Billions As Feds Struggle To Stop It” underscores the need for improved oversight and enforcement of Medicare Advantage plans.
According to the Kaiser Health News article, MA plans have overcharged the Medicare program and American taxpayers by nearly $30 billion dollars in the last three years alone. The unjustified charges stem from “risk scores” used to assess payments for every Medicare Advantage member. The formula, approved by Congress in 2003 to try to keep plans from cherry-picking the healthiest beneficiaries, pays higher rates for sicker patients than for people in good health. Unfortunately, many plans manipulate the scores to increase revenues while not actually attending to the neediest patients.
CMS began auditing the scores in 2007, and quickly discovered that they “could confirm just 60% of the more than 20,000 medical conditions CMS had paid the plans to treat.” Audits weren’t done from 2008-2010 due to industry backlash and fears that plans would withdraw from the Medicare Advantage program, as was the case with the original “Medicare+Choice” private plans in the 1990s.
CMS officials restarted audits in 2011. Penalties were expected to be assessed by 2016, but were postponed, once again due to industry pressure. The current CMS plan would begin taking back a portion of the overpayments by 2020.
– top –