CMA Alert | July 8, 2021

Medicare Team Now Complete – Time to Improve the Program for Beneficiaries

This week, the Centers for Medicare & Medicaid Services (CMS) announced Dr. Meena Seshamani’s appointment as Deputy Administrator and Director of Center for Medicare.  Dr. Seshamani joins CMS Administrator Chiquita Brooks-LaSure, and Health & Human Services Secretary Xavier Becerra to form the leadership of the new Administration’s Medicare program.  As we welcome the new team , we urge these stewards of Medicare to use  their current  authority to make the program work better for beneficiaries. In addition to the on-going  debate in Congress about expanding and improving Medicare benefits via legislation, there is much the Administration can and should do itself. 

In December 2020, the Center for Medicare Advocacy published a Transition Memorandum for the incoming Administration’s Department of Health & Human Services.  Below is an excerpt from the Memorandum’s Executive Summary, outlining several areas which are in need of attention. For more detailed policy suggestions, see the Center’s full transition memo here.

1. Strengthen Protections for Nursing Facility Residents

The COVID pandemic has brought to public awareness the deadly consequences of the combination of poor care, inadequate staffing levels, insufficient infection protections, and the systemic roll back of regulations intended to ensure good care for residents.

Among other things, CMS should enforce infection control and other quality of care requirements, implement comprehensive staffing ratios to bring more qualified workers to care for our most vulnerable citizens, expand training requirements to help upgrade skills and employment for aides and other direct care workers, and review and revise the Medicare payment model (Patient Driven Payment Model/ PDPM) and quality measure incentives to encourage access to appropriate staffing and all necessary, statutorily authorized care.

2. Redefine Inpatient Hospital Status – Increase Access to Necessary Care

Currently, Medicare beneficiaries can spend many days in the hospital only to find they have been classified by the hospital as “outpatients,” and/or in observation status. As a consequence, they face barriers to Medicare-covered post-hospital nursing home care, which requires a prior inpatient hospital stay. An outpatient vs. inpatient label can also limit access to home health care given the incentives of the 2020 Medicare home health payment model. Further, since outpatient hospital care is covered by Medicare Part B, beneficiaries who only have Medicare Part A have no coverage at all for an outpatient/observation hospital stay.

Among other things, CMS should revise all policies and regulations that define inpatient hospital care to include all care provided in the hospital, including Observation Status, when patients remain in the hospital for more than 24 hours. CMS should also exercise its authority under existing law to define hospital “inpatient” care to include all time spent in the hospital.

3. Ensure Access to Medicare-Covered Home Health Care

Medicare beneficiaries are increasingly unable to obtain Medicare-covered home health care for which they are eligible under the law. This is particularly true for people with on-going conditions and care needs, and for those who need home health aide services. 

Among other things, CMS should enforce existing law to ensure access to all necessary Medicare-covered services for those who qualify under the law, and review and revise Medicare home health payment model (Patient Driven Grouping Model/ PDGM) and quality measure incentives, to encourage access to all necessary, statutorily authorized services, including home health aides.

4. Ensure Parity Between Traditional Medicare and Medicare Advantage and Promote Consumer Protections in Medicare Advantage

The universal traditional Medicare program, preferred by most beneficiaries, has been neglected for years, while the private Medicare Advantage (MA) system has been repeatedly bolstered and promoted. This is leading to increased MA marketing and MA enrollment, even when it is not in the best interest of beneficiaries, Medicare, or taxpayers.

CMS should rebalance the growing inequities between traditional Medicare and Medicare Advantage with regard to ease of enrollment, benefits, payments, and allocated resources by, among other things: addressing ongoing Medicare Advantage overpayments (and step up recoupment through Risk-Adjustment Data Validation program (RADV) audits); enhancing oversight and enforcement of MA plans (for example, regarding actual provision of coverage and care, and proper use of risk adjustments); rescinding recent updates to marketing and communications guidelines (MCMG) which, among other things, blurred distinctions between marketing and education; and eliminating bias towards Medicare Advantage plans in CMS materials, including outreach/enrollment materials, Medicare Plan Finder, Medicare & You, etc.

5. Actively Work to Enforce the Jimmo v. Sebelius Settlement – Require Fair Access to Coverage and Care for People with Chronic Conditions

For too long, Medicare beneficiaries have been denied coverage and access to necessary care for which they qualify under the law, based on a long-standing myth that coverage is only available for people who will improve. In 2011 a nationwide class-action lawsuit was brought on behalf of beneficiaries with longer term, debilitating, and chronic conditions to challenge these illegal denials. (Jimmo v. Sebelius, (D. Vt., 2013; 2017)) The Jimmo case was settled with CMS in 2013. The Settlement Agreement confirmed that Medicare coverage is determined by a beneficiary’s need for skilled care, not on a beneficiary’s potential for improvement. Medicare coverage is available for skilled care to maintain or slow decline of an individual’s condition. Improvement is not required.

Unfortunately, many beneficiaries are still denied Medicare and access to necessary skilled care based on some variation of an “Improvement Standard.” CMS is failing to ensure that the Jimmo Settlement Agreement is being properly implemented. The inadequate education of Medicare representatives, contractors, and providers about the Settlement results in continuing harm to Medicare beneficiaries in need of maintenance nursing and/or therapy services who are improperly denied access to appropriate Medicare coverage and care. Too often, when care is provided, the costs are inappropriately shifted to beneficiaries, families, and state Medicaid programs.

Among other things, CMS should ensure that the agency and its contractors, adjudicators, and providers are active partners in implementing the Jimmo Settlement, including ensuring that Medicare providers know about the Jimmo Settlement, and provide appropriate access to coverage and care for people who need care to maintain their condition or slow decline, as authorized by law and confirmed by the court in Jimmo v. Sebelius.

6. Cover Medically Necessary Oral Health Care

Oral health/dental care is increasingly recognized as key to overall health. Unfortunately, CMS recognizes, but significantly limits, Medicare coverage for medically necessary oral health/dental services. While the Medicare Act excludes coverage for “routine” dental services, the exclusion should not be broadly construed to preclude coverage for oral health procedures in all circumstances; this was not the legislative intent. Medicare coverage for medically necessary oral health care is supported by the Medicare statute, its legislative history, CMS policy, and precedent established by Medicare coverage for podiatry services.

CMS should provide Medicare coverage for medically necessary oral health and dental services for conditions that pose a serious risk to a patient’s health or medical treatment. This includes instances where a physician has determined that a patient’s oral infection or disease will delay or prevent the receipt of, or otherwise complicate the outcome of, a Medicare-covered treatment for an underlying medical condition.

Conclusion

For more details about these policy recommendations, as well as additional areas of concern, see the Center’s full Transition Memorandum.  We look forward to working with the new Medicare team to make the program work even better for those it serves.

Kaiser Family Foundation Issues Report Comparing Cost-Related Problems for Medicare Advantage Enrollees and Beneficiaries in Traditional Medicare

The Kaiser Family Foundation (KFF) recently compared costs faced by Medicare Advantage (MA) plan enrollees to those in traditional Medicare in a report entitled “Cost-Related Problems Are Less Common Among Beneficiaries in Traditional Medicare Than in Medicare Advantage, Mainly Due to Supplemental Coverage” (June 2021) – also see KFF’s press release announcing the study entitled “Black Medicare Beneficiaries Are More Likely Than White Beneficiaries to Have Cost-Related Problems with Their Health Care, Across both Traditional Medicare and in Medicare Advantage Plans” (June 25, 2021).

The report notes that while 42% of all Medicare beneficiaries were enrolled in MA plans in 2021, there is “higher enrollment among some subgroups of beneficiaries than others. In 2018, half of all Black and Hispanic beneficiaries were enrolled in a Medicare Advantage plan, compared to 36% of White beneficiaries.” Among other things, though, the report found that rates of cost-related problems are higher among beneficiaries in MA than in traditional Medicare, and “[a]mong Black beneficiaries specifically, a larger share of those in Medicare Advantage reported cost-related problems than those in traditional Medicare (32% vs. 24%).”

With a focus on health equity and cost-related health care problems faced by beneficiaries, the report included several key findings (the following is excerpted directly from the report, with links removed):

• “Overall, about one in six Medicare beneficiaries (17%) reported a cost-related problem in 2018, with a somewhat lower rate among traditional Medicare beneficiaries (15%) than Medicare Advantage enrollees (19%), attributable to a lower rate of cost-related problems among the majority of traditional Medicare beneficiaries with supplemental coverage (12%) […]. The rate of cost-related problems is highest (30%) among traditional Medicare beneficiaries without supplemental coverage, who account for about 10 percent of the Medicare population.
• A smaller share of Black beneficiaries in traditional Medicare (24%) than in Medicare Advantage (32%) reported cost-related problems. Rates of cost-related problems were lower among Black beneficiaries in traditional Medicare with Medicaid and other forms of supplemental insurance (20%).
• One in five Hispanic beneficiaries overall reported a cost related problem (21%) and the share was similar among those in traditional Medicare with supplemental coverage (18%) and Medicare Advantage (22%).
• The share of Black Medicare beneficiaries reporting cost-related problems was higher than among White beneficiaries in both traditional Medicare and Medicare Advantage. Additionally, the difference in the share of Black beneficiaries reporting cost-related problems in Medicare Advantage compared to traditional Medicare with supplemental coverage was larger than for White beneficiaries.
• Half of Black Medicare Advantage enrollees in fair or poor self-assessed health reported cost-related problems, compared to one-third of Black beneficiaries in traditional Medicare overall and just over one-fourth of Black beneficiaries in traditional Medicare with supplemental coverage.”

In order to address the inequities highlighted in the KFF report, the Center for Medicare Advocacy asserts that the Medicare program must exert greater oversight of and strengthen consumer protections in the Medicare Advantage program. Further, in order to provide real, meaningful choices for all Medicare beneficiaries, Congress must expand rights to purchase Medigap supplemental insurance policies, including to people under 65.

Recent Initiatives Focus on Understanding and Addressing the Needs of LGBTQ Older Adults in Long-Term Care

There are currently 1.1 million adults 65 and older who identify as LGBTQ. Furthermore, 1 in 5 LGTBQ older adults are Black, indigenous, or people of color (BIPOC), which creates additional layers of potential discrimination based on racial bias, in addition to discrimination centered around sexual orientation and gender identity.[1]

According to the Long-Term Care Equality Index (LEI) 2021, a recently published report by SAGE[2] and the Human Rights Campaign (HRC) Foundation, about 5% of people living in long-term care communities identify as LGBTQ.[3] The report – the first “nationwide assessment of LGBTQ inclusivity and inclusion at long-term care communities[4] – explains that LGBTQ older adults might remain silent when entering a long-term care community due to “a lifetime of discrimination and continued fear.” In addition to these lifelong challenges, three-quarters (76%) of LGBTQ older adults are concerned about having proper social support to rely upon as they age.

The LEI report recommended that long-term care communities adopt policies in four key areas to improve LGBTQ inclusion. Those policies are: (1) developing written foundational policies and practices to ensure legal protections for LGBTQ residents and staff; (2) adopting inclusive resident services and support including gender-affirming policies; (3) ensuring LGBTQ staff, like residents, receive equal treatment and access to health-related benefits and policies; and (4) publicly demonstrating commitment to the LGBTQ community, such as having a booth at a local Pride festival or writing a letter in support of pro-LGBTQ legislation.

In line with the recommendations made in the LEI report, the Visiting Nurse Service of New York (VNSNY), a not-for-profit home- and community-based health care organization, has launched its own initiative to help ensure that LGBTQ older adults have an inclusive environment and receive care that is appropriate for the needs of their community. “LGBTQ+ Care Type” – VNSNY’s newly launched care delivery model tailored to the LGBTQ community – will aid in identifying appropriate health care screening and education efforts, will provide care planning information, will collect and analyze data, and will provide additional services tailored to LGBTQ needs. Additionally, VNSNY clinicians and staff have received training from SAGE on working with LGBTQ communities.

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[1] SAGE. Long-Term Care Equality Index 2021. (2021). Available at: https://www.sageusa.org/lei/
[2] Services & Advocacy for LGBT Elders (SAGE) is the nation’s oldest and largest non-profit organization dedicated to improving the lives of lesbian, gay, bisexual, and transgender older adults.
[3] SAGE. Long-Term Care Equality Index 2021. (2021). Available at: https://www.sageusa.org/lei/
[4] SAGE. Human Rights Campaign and SAGE Release First Edition of the Long-Term Care Equality Index. (June 28, 2021). Available at: https://www.sageusa.org/news-posts/sage-hrcf-release-lei-2021-report/

Elder Justice Newletter, Vol. 3 Issue 8 Now Available

In the Elder Justice Newsletter, we highlight citations, including deficiencies related to abuse, neglect, and substandard care, that have been identified as not causing any resident harm. The goal of this brief newsletter is to shed light on the issue of so-called “no harm” deficiencies, which typically result in no fine or penalty to the nursing home.

This newsletter focuses on the following “no harm” violations:

• Death by asphyxiation: Facility fails to implement a resident’s care plan.
• A wound unhealed: Facility fails to provide resident with appropriate pressure ulcer care.
• Dining during COVID: Facility ignores Department of Health requirement to discontinue communal dining.
• A 20 percent weight loss: Facility fails to meet nutritional and hydration needs for a resident.

Do YOU think these deficiencies caused “no harm”? Click to download the newsletter.

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