CMA Alert – March 19, 2020

1. COVID-19 and Medicare – Where We Stand Today (3/19/2020)
2. The Coronavirus and Nursing Home Residents
3. Restrictions on Family Caregivers Raise Concerns about Unmet Care Needs In Nursing Homes
4. Elder Justice Newsletter – New Issue Available Now
5. Register Now – Upcoming CMA Events
   • Register for the VIRTUAL  National Voices of Medicare Summit and Senator Jay Rockefeller Lecture – April 30, 2020
   • Free Webinar: New Medicare Payment Systems – Obstacles to Accessing Covered Care

COVID-19 and Medicare – Where We Stand Today (3/19/2020)

As the nation and the world brace for our collective struggle with the novel coronavirus named COVID-19, things are changing rapidly as society adjusts to our new “normal.” Congress continues to explore legislative solutions, including for affected workers. The Department of Health and Human Services (DHHS) and the Centers for Medicare & Medicaid Services (CMS), which administers the Medicare program, continue to implement policy changes relating to Medicare and other health programs. As we all try to learn and respond to these challenges, we offer an incomplete list of some helpful resources, including some recent policy changes relating to Medicare.  Some of these resources appeared in our March 17 Update from the Center for Medicare Advocacy.

1. General Information About COVID-19

The Centers for Medicare & Medicaid Services (CMS) has developed a Coronavirus (COVID-19) Partner Toolkit with links to multiple resources issued by the federal government.

See the Centers for Disease Control (https://www.cdc.gov/) – including this handy infographic: https://www.cdc.gov/coronavirus/2019-ncov/downloads/workplace-school-and-home-guidance.pdf.

See the Kaiser Family Foundation’s webpage on the coronavirus, including State Data and Policy Actions to Address Coronavirus, Coronavirus Tracker and reports on paid leave, private coverage and issues for the uninsured.

See the Social Security Administration (SSA) coronavirus response on its website. SSA is closing its field offices – services will still be available through the agency’s toll-free line, (800) 772-1213, and its website. Payments to beneficiaries should not be affected. SSA is also suspending all Continuing Disability Reviews in SSI and SSDI and suspending recovery of overpayments “where possible” (thanks to the Medicare Rights Center for flagging this).

A Round-Up of Multilingual Resources on COVID-19 from Switchboard (thanks to Families USA for flagging this).

The National Health Law Program (NHeLP) has a dedicated webpage to coronavirus resources.

The World Health Organization published Mental Health Considerations during the COVID-19 Outbreak. GeroCentral has put together a list of resources regarding COVID-19 for mental health providers and for the general public.

The National Governors Association has a dedicated webpage to state-specific actions taken in response to the virus.

2. Suspension of Elective Surgeries, Non-Essential Medical, Surgical and Dental Procedures

In guidance and a press release, CMS issued recommendations to providers that all elective surgeries, non-essential medical, surgical, and dental procedures be delayed during the COVID-19 outbreak.

According to the press release, “[t]he recommendations provide a framework for hospitals and clinicians to implement immediately during the COVID-19 response. The recommendations outline factors that should be considered [… including] patient risk factors, availability of beds, staff and PPE [Personal Protective Equipment], and the urgency of the procedure. This will help providers to focus on addressing more urgent cases and preserve resources needed for the COVID-19 response. The decision about proceeding with non-essential surgeries and procedures will be made at the local level by the clinician, patient, hospital, and state and local health departments.”

3. Medicare-Specific Information

Here is a list of resources, guidance and policy updates recently issued by the Department of health & Human Services (DHHS) and the Centers for Medicare & Medicaid Services (CMS) relating to Medicare.

COVID-19 Testing

As noted in our March 17 Update, Medicare Part B will cover coronavirus testing if the individual’s doctor or other health care provider orders it and the test was performed on or after February 4, 2020.

See the Kaiser Family Foundation (KFF)’s FAQs on Medicare Coverage and Costs Related to COVID-19 Testing and Treatment

Loosening of Telehealth Rules

Pursuant to recently passed legislation, CMS is temporarily loosening restrictions on access to telehealth services. According to an electronic message from the Medicare program:

Medicare beneficiaries can temporarily use telehealth services for common office visits, mental health counseling and preventive health screenings. This will help ensure Medicare beneficiaries are able to visit with their doctor from their home, without having to go to a doctor’s office or hospital, which puts themselves and others at risk.

If you have an existing healthcare appointment, or think you need to see your doctor, please call them first to see if your appointment can be conducted over a smartphone with video capability or any device using video technology, like a tablet or a laptop. For some appointments, a simple check-in over the phone without video capabilities may suffice.

According to a discussion of telehealth on the Medicare website:

Due to the Coronavirus (COVID-19) Public Health Emergency, doctors and other health care providers can use telehealth services to treat COVID-19 (and for other medically reasonable purposes) from offices, hospitals, and places of residence (like homes, nursing homes, and assisted living facilities) as of March 6, 2020. Medicare will pay for these services for patients who have seen the health care provider or another health care provider in the same practice. Coinsurance and deductibles apply.

If you have coverage through a Medicare Advantage Plan, you won’t have to pay out-of-pocket costs (called cost-sharing) for COVID-19 tests and treatment.

This CMS Fact Sheet on expanded telehealth for Medicare beneficiaries provides additional details, as does this FAQ.  Note that the Fact Sheet states that “the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.”

Medicare Advantage (MA) and Part D Plan Flexibilities and Obligations

As noted in a CMS press release, on March 10, CMS published a memorandum “to Medicare Advantage (MA) and Part D health and prescription drug plans informing them of the flexibilities they have to provide healthcare coverage to Medicare beneficiaries for COVID-19 testing, treatments, and prevention.”  In addition to the flexibilities plans can choose to implement, the memorandum also outlines obligations that plans must follow.

As summarized in the press release, the memo: “outlines the flexibilities MA and Part D plans have to waive certain requirements to help prevent the spread of COVID-19. These flexibilities include:

• Waiving cost-sharing for COVID-19 tests
• Waiving cost-sharing for COVID-19 treatments in doctor’s offices or emergency rooms and services delivered via telehealth
• Removing prior authorizations requirements
• Waiving prescription refill limits
• Relaxing restrictions on home or mail delivery of prescription drugs
• Expanding access to certain telehealth services

The memo also lists certain obligations or “special requirements” that MA plans have that are triggered by individual state declarations of emergency. The memo states:

“When these special requirements are in effect, under 42 CFR 422.100(m)(2), the requirements for Medicare Advantage Organizations under 42 CFR 422.100(m)(1) are:

(i) Cover Medicare Parts A and B services and supplemental Part C plan benefits furnished at non-contracted facilities subject to § 422.204(b)(3), which requires that facilities that furnish covered A/B benefits have participation agreements with Medicare.

(ii) Waive, in full, requirements for gatekeeper referrals where applicable.

(iii) Provide the same cost-sharing for the enrollee as if the service or benefit had been furnished at a plan-contracted facility.

(iv) Make changes that benefit the enrollee effective immediately without the 30-day notification requirement at §422.111(d)(3). (Such changes could include reductions in cost-sharing and waiving prior authorizations as described below.)”

Skilled Nursing Facility Coverage

Waiver of Prior 3-Day Inpatient Hospital Stay for SNF Coverage

As outlined in a recent CMS memorandum, CMS is waiving the requirement at Section 1812(f) of the Social Security Act for a 3-day prior hospitalization for coverage of a skilled nursing facility (SNF) stay. It provides temporary emergency coverage of SNF services without a qualifying hospital stay, for those people who need to be transferred as a result of a disaster or emergency – in this case the COVID-19 epidemic. In addition, for certain beneficiaries who recently exhausted their SNF benefits, it authorizes renewed SNF coverage without first having to start a new benefit period.

Note: Waiving or otherwise not applying the prior 3-day inpatient hospital stay for subsequent SNF coverage has been a long-standing policy goal of the Center for Medicare Advocacy. While we are in the midst the current COVID-19 crisis, we hope this policy will remain after things stabilize.

Infection Control Guidance, Including Restrictions on Visitation

On March 4, CMS issued Guidance suspending non-emergency health inspections across the country. CMS is directing state survey agencies to prioritize immediate jeopardy complaints, allegations of abuse and neglect, and complaints involving infection control. The Center for Medicare Advocacy is deeply troubled by this guidance and encourages CMS to resume oversight and enforcement of all federal standards of care.

On March 13, CMS issued Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in nursing homes. CMS is restricting all visitation, except in end-of-life and other compassionate care situations. While this directive also applies to ombudsmen, CMS states that nursing homes may review their access on a case-by-cases basis. The Center for Medicare Advocacy is concerned by this restriction as it relates to family caregivers. For more information, please read out CMA Alert.

Home Health Care and Infection Control

On March 10, CMS issued Guidance for home health agencies (HHAs) concerning infection control.  While the memo does not outline any changes concerning eligibility for and coverage of home health services, it does articulate ongoing responsibilities of HHAs that are providing care to individuals.

The memo states: “CMS regulations requires that home health agencies provide the types of services, supplies and equipment required by the individualized plan of care.  HHA’s are normally expected to provide supplies for respiratory hygiene and cough etiquette, including 60%-95% alcohol-based hand sanitizer (ABHS).  State and Federal surveyors should not cite home health agencies for not providing certain supplies (e.g., personal protective equipment (PPE) such as gowns, respirators, surgical masks and alcohol-based hand rubs (ABHR)) if they are having difficulty obtaining these supplies for reasons outside of their control.  However, we do expect providers/suppliers to take actions to mitigate any resource shortages and show they are taking all appropriate steps to obtain the necessary supplies as soon as possible” [Emphasis added].

Note that the memorandum makes clear that HHAs are expected to provide ongoing care, even when therapeutic interventions are required: “Are there specific considerations for patients requiring therapeutic interventions?  Patients with known or suspected COVID-19 should continue to receive the intervention appropriate for the severity of their illness and overall clinical condition. Because some procedures create high risks for transmission (close patient contact during care) precautions include: 1) HCP [health care providers] should wear all recommended PPE [personal protective equipment], 2) the number of HCP present should be limited to essential personnel, and 3) any supplies brought into, used, and removed from the home must be cleaned and disinfected in accordance with environmental infection control guidelines.”

CMS has also issued guidance for dialysis providers, including when such facilities are beyond capacity: “When transmission in the community is identified, the local medical system’s capacity to accept hemodialysis patients for treatment may be exceeded. Public health authorities and dialysis facilities should refer to pandemic and emergency preparedness plans to help determine alternatives. Alternative options may include the need to continue dialysis in the outpatient hemodialysis setting if the patient’s condition does not require a higher level of care.”

General Provider Issues

CMS has issued a COVID-19 Emergency Declaration Health Care Providers Fact Sheet that outlines a number of flexibilities being given to providers in an effort to address COVID-19, including:

• Provider Locations – CMS is temporarily waiving requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state.
• Expedited provider enrollment procedures, including temporary Medicare billing privileges
• Durable Medical Equipment, Etc. – CMS states: “Where Durable Medical Equipment Prosthetics, Orthotics, and Supplies (DMEPOS) is lost, destroyed, irreparably damaged, or otherwise rendered unusable, contractors have the flexibility to waive replacements requirements such that the face-to-face requirement, a new physician’s order, and new medical necessity documentation are not required. Suppliers must still include a narrative description on the claim explaining the reason why the equipment must be replaced and are reminded to maintain documentation indicating that the DMEPOS was lost, destroyed, irreparably damaged or otherwise rendered unusable or unavailable as a result of the emergency” [emphasis added].

Medicare Appeals

The memo also addresses Appeals filed by providers, noting that blanket waivers are available for “Medicare appeals in Fee for Service, MA and Part D” including:

• “Extension to file an appeal
• Waive timeliness for requests for additional information to adjudicate the appeal;
• Processing the appeal even with incomplete Appointment of Representation forms but communicating only to the beneficiary;
• Process requests for appeal that don’t meet the required elements using information that is available.
• Utilizing all flexibilities available in the appeal process as if good cause requirements are satisfied”

Although the memo does not address appeals filed by beneficiaries and those assisting them (other than providers), the Center for Medicare Advocacy urges such individuals who are filing appeals in good faith to explicitly note on their appeal documentation that they are requesting good cause allowances for any late filings due to the national COVID-19 emergency.

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The Coronavirus and Nursing Home Residents

A Statement from
the Center for Medicare Advocacy and the Long Term Care Community Coalition

March 19, 2020—At least twenty-six residents at Life Care Centers at Kirkland have died of the coronavirus and many more residents and staff at the Washington State nursing facility are showing signs of the illness. Why have these medically fragile residents died at a health care facility that is supposed to provide safe and effective care to frail, medically compromised people? One troubling reason: Regulations for infection control are ignored and there is, typically, little enforcement when facilities violate them.

In October 2016, the Centers for Medicare & Medicaid Services (CMS), the federal agency that regulates nursing facilities, updated the regulations that govern nursing homes receiving public reimbursement through the Medicare and Medicaid programs, a category that includes nearly every nursing facility in the country. Citing statistics that residents of nursing facilities and other institutional settings develop millions of infections each year, with hundreds of thousands of them hospitalized and many dying, CMS reiterated long-standing requirements that nursing facilities have infection prevention and control programs. In addition, the Administration created a new staff position – infection preventionist – in order to have a health care professional with the necessary skills and training on-site overseeing each facility’s infection prevention and control program. The rules for the infection prevention and control program went into effect in November 2016. Facilities were given three years – until November 2019 – to prepare for the infection preventionist requirement.

In March 2019, CMS announced that along with the Centers for Disease Control and Prevention (CDC), it had developed a free on-line training program for intervention preventionists. In November 2019, CMS reminded facilities and states of federal infection control resources and sent out a self-assessment tool for facilities to determine how well or how poorly they were doing in meeting infection prevention and control requirements.

So what’s wrong? After all, infection control is the care problem that is most frequently cited by the state survey teams that inspect nursing homes to determine whether they meet federal standards.

The problem is that the federal standards for infection prevention and control are treated as unimportant and, as a result, they are not enforced. Less than 1% of the 13,239 infection control deficiencies cited at nursing facilities since November 2017 have been cited at a level (actual harm or immediate jeopardy) that would typically lead to a meaningful enforcement action. The remaining 99+% of infection control deficiencies (called substantial compliance or no harm) are unlikely to lead to any financial penalty. In other words, nothing happens to most facilities that have an infection control deficiency; the government just says, fix the problem. To make matters worse, CMS recently proposed rolling back the infection preventionist requirements, signaling the Trump Administration’s ongoing commitment to reducing “provider burden.”

From its earliest days, the Trump Administration has listened to the urgings of the nursing home industry to reduce enforcement of federal standards of care – shifting from per day fines to much smaller per instance fines, reducing the number of days a per day fine can be imposed, expanding facilities’ ability to describe fines as unaffordable (and thus evade them), and more. Ultimately, residents, their families, and taxpayers pay the price for poor care that is allowed to persist.

Having meaningful standards of care is essential. But unless there are actual consequences for facilities that fail to meet the standards – and fail to provide high quality of care to residents that federal law promises – we will continue to see the tragedies that fill the newspapers each day.

In 2018, 11 children at a New Jersey nursing facility died of infections; the facility had been cited with a no-harm infection control deficiency at its most recent survey. Now, twenty-six older residents in a Washington State nursing facility have died and more residents and staff are sick. A fully implemented and properly functioning infection prevention and control program does not guarantee that infections will never occur, but it could help minimize the impact of the coronavirus pandemic and save lives.

Health and safety regulations are not burdensome interference with private business.  Health and safety regulations have a purpose; they are critical for protecting us and our communities.

Additional Resources:

• LTCCC’s Coronavirus webpage
• Consumer Voice’s Supporting Coronavirus Prevention in LTC Facilities webpage
• CDC’s guidance for LTC facilities

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Restrictions on Family Caregivers Raise Concerns about Unmet Care Needs In Nursing Homes

On March 13, 2020, the Centers for Medicare & Medicaid Services (CMS) issued guidance to nursing homes on COVID-19 (coronavirus). CMS is directing nursing homes to restrict all visitors and non-essential health care workers from entering facilities, except in end-of-life and other compassionate care situations. While COVID-19 presents significant danger to vulnerable nursing home residents, a blanket restriction of access to family members may place residents at risk of additional unmet care needs.

Decades of studies have concluded that too many nursing homes suffer from understaffing. For example, a 2019 Health Affairs study found that nursing homes had “large daily staffing fluctuations, low weekend staffing, and daily staffing levels often below the expectations of the Centers for Medicare & Medicaid Services (CMS).” In the absence of adequate staffing, even under normal circumstances, families may need to continue caregiving after their relatives and friends are admitted to nursing homes.

CMS recognizes the importance of family caregivers in surveyor guidance, using the terms “family” and “families” over 200 times. In fact, CMS states that, when residents do not have an effective family support system, nursing homes should provide social services or obtain outside support for residents.

In light of the outsized role that family caregivers have on quality of care and quality of life, we respectfully ask CMS to revise its March 13th guidance to recognize family caregivers as essential health care workers. Family caregivers should be subject to the same CDC guidelines for screening as essential health care workers. Those who pose minimal risk should be allowed to enter nursing homes using all of the same precautions as essential health care workers.

Note: On March 4, 2020, CMS issued a memorandum suspending non-emergency health inspections nationwide. Until further notice, CMS is directing state survey agencies to focus on a limited set of inspections and to prioritize all immediate jeopardy complaints, allegations of abuse and neglect, and complaints alleging infection control violations. The memorandum appears to suspend all other complaint inspections. This suspension makes it even more critical for properly screened family caregivers to have access to residents, as nursing homes potentially shift focus away from the non-impacted standards of care.

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Elder Justice Newsletter – New Issue Available Now

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, Kansas, Maryland, and Michigan.

• Read the latest Issue at: https://www.medicareadvocacy.org/newsletter-elder-justice-what-no-harm-really-means-for-residents/.

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Register Now – Upcoming CMA Events

Register Now for the Virtual National Voices of Medicare Summit and Senator Jay Rockefeller Lecture

Because of the uncertainty brought about by COVID-19, we are altering plans for our 2020 National Voices of Medicare Summit and Sen. Jay Rockefeller Lecture. There will be a Virtual Summit program on April 30, 2020. We are grateful to this year’s Sen. Jay Rockefeller lecturer, Wendell Potter, and the many other experts who have agreed to appear by webinar. We will also present a follow-up webinar for registrants on May 20, 2020 from 2:00 – 3:30 PM EDT.

These events support the work of the Center for Medicare Advocacy, so please, register now for what will be a fantastic virtual program and informative webinar.

Virtual Summit: Whither Medicare – From Promise to Privatization

April 30, 2020, 1:00 PM – 4:00 PM

Registration: $150
(includes Summit and follow-up webinar)

The 7th annual National Voices of Medicare Summit & Senator Jay Rockefeller Lecture will allow leading experts and advocates to consider best practices, challenges and successes in efforts to improve access to quality health coverage and care, especially in these trying times. Against the increasing privatization of Medicare, COVID-19, voter focus on health care, and talk about a Medicare for All, the 2020 Virtual Summit will focus on the promise, challenges to, and future of Medicare.

Register Today at: https://www.medicareadvocacy.org/summit/

Free Webinar: New Medicare Payment Systems – Obstacles to Accessing Covered Care

Thursday, March 26, 2020 1:00 PM – 2:00 PM EST

Presented in collaboration with California Health Advocates Senior Medicare Patrol by Center for Medicare Advocacy Associate Director, attorney Kathleen Holt and Center Senior Policy Attorney Toby S. Edelman, this webinar will:

• Provide a brief overview of Medicare SNF and HHA Medicare coverage.
• Examine new Medicare payment systems for SNF (Patient Driven Payment Model or PDPM) and for HHA (Patient Driven Groupings Model or PDGM).
• Discuss the impact of PDPM and PDGM on access to Medicare covered services since implementation.
• Review practice tips and tools to access Medicare covered services.

This program is subject to change based on current circumstances. More details to follow.

Register at https://register.gotowebinar.com/register/7158215826365982732

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