Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert – March 26, 2020

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  1. COVID-19 Updates – 3/26/2020
  2. Federal Court Orders Appeal Rights on “Observation Status” Issue for Certain Medicare Hospital Patients
  3. CMS Temporarily Waives Medicare Access Barriers for Skilled Nursing Facility Care
  4. New Guidance On Nursing Home Health Inspections Severely Limits Oversight and Enforcement for a Three-Week Period
  5. Free Webinar: Medicare & Health Care Updates
  6. Register for the VIRTUAL National Voices of Medicare Summit and Senator Jay Rockefeller Lecture – April 30, 2020

COVID-19 Updates – 3/26/2020

The current coronavirus (COVID-19) crisis has led to a number of changes in Medicare policy, including coverage for tests, treatments, nursing home stays, telehealth, and Medicare Advantage and Part D plan obligations.  Congress is currently working on passing a third bill related to the crisis, and is starting to plan for a fourth.

The Center for Medicare Advocacy has created a dedicated webpage to address these COVID-19 changes (including a summary of many of these policy changes here).  This webpage includes Center Alerts, CMS materials and other resources.

On March 26, 2020, the Center hosted a webinar with the California Senior Medicare Patrol (SMP) program that covered some of these changes, as well as highlighting some scams that have already emerged during this crisis, including a presentation from agents of the Department of Health & Human Services (DHHS) Office of the Inspector General (OIG).

In addition to issues impacting the coverage of individuals who already have Medicare, there are challenges for people who are transitioning to Medicare coverage, in part because the Social Security Administration (SSA) has closed its field offices. SSA services will still be available through the agency’s toll-free line, (800) 772-1213, and its website.  Below is general advice for people who are first becoming eligible for Medicare based on age or disability, as well as those who are losing employer-based health insurance coverage.

Enrolling in Medicare

Individuals who are first eligible for Medicare generally have a 7-month Initial Enrollment Period.  While local Social Security offices are closed to the public, some continue to provide services over the phone.  For individuals who need to apply for Medicare Parts A and B:

  • We suggest creating an account on www.ssa.gov
  • You can locate the telephone number to the local SSA office here: https://secure.ssa.gov/ICON/main.jsp
  • Note that SSA is extending deadlines for filing “whenever possible” – although the scope of such extensions are currently unclear

For those who are already eligible for Medicare and are retiring or otherwise losing their job and corresponding employer-based health insurance coverage based on current employment.

Some individuals will need to enroll in Medicare immediately due to growing job losses due to the coronavirus crisis.  As noted by journalist Mark Miller in a recent New York Times article entitled “Medicare Is Updating Coverage to Help in the Coronavirus Crisis” (3/24/20, updated 3/26/20)

People who work past age 65 can delay Medicare enrollment if they have health insurance through their employers without incurring steep penalties for late enrollment in Part B (10 percent lifetime for each 12-month period past the otherwise-mandatory sign-up age of 65).

If you were in this situation and need to sign up for Medicare now because of a job loss, you can take advantage of a special enrollment period that is available to you up to eight months after you lose coverage from employment.

In order to exercise a Part B Special Enrollment Period (SEP) right in this situation, certain documentation must be submitted to SSA, including:

  • CMS 40B Application for Enrollment in Medicare Part B (also see here) – assuming someone already has Part A of Medicare, AND
  • CMS L564 Request for Employment Information, which goes to the individual’s employer(s).

With many employers closing, or otherwise scaling back many functions, it will likely be difficult for individuals to obtain such forms from their employers.  Combined with the closure of SSA field offices, it will likely be difficult for individuals to submit such information to SSA to be processed.

As noted in Mr. Miller’s New York Times article cited above, our colleagues at the Medicare Rights Center recommend:

… starting the process by calling your local office to get the application started — you can find it using this local office directory. The field agent there can advise you on which forms, and any supporting documents, you will need to submit and where to mail them. Request a “protected filing date” and proof of receipt from the office. This will create a record that you applied for benefits on that date, which could affect the date your coverage begins.

As of the date of this Alert, it is unclear whether and how SSA is addressing these barriers during the current COVID-19 crisis.  Although our hope is that SSA will waive these requirements, at least temporarily, below we offer one potential “work around” to providing information from employers based on existing rules.

Tip – When Employer Information is Unavailable: SSA program rules – including those relating to eligibility, enrollment and premium payment for Medicare Parts A and B – are outlined in the Program Operations Manual System (POMS), available online.

One POMS provision deals with the required employer forms referenced above: HI 00805.295 Evidence of GHP or LGHP Coverage Based on Current Employment Status

In this POMS provision, there is a section outlining other documentation an individual can provide when an employer “cannot provide evidence.” (Note that “GHP” means employer Group Health Plans covering individuals over age 65 [specifically relating to employers that have at least 20 employees] and “LGHP” refers to Large Group Health Plans for individuals under 65 eligible for Medicare [specifically relating to employers with at least 100 employees]. Note that people who are under 65 having slightly different rules about employer size and partners with coverage, (not just spouses); we advise consultation with a SHIP counselor for individuals who are in this situation.)

Section B of this POMS provision states:

“B. Policy when the employer, GHP, or LGHP cannot provide evidence

When the employer, Group Health Plan (GHP) or Large Group Health Plan (LGHP)  cannot provide all evidence of GHP or LGHP coverage based on current employment status, the applicant may submit other documents that reflect employment, GHP or LGHP coverage (in addition to or in lieu of the evidence listed in HI 00805.295A of this section). Acceptable documents include but are not limited to:

      • income tax returns that show health insurance premiums paid;
      • W-2s reflecting pre-tax medical contributions;
      • pay stubs that reflect health insurance premium deductions;
      • health insurance cards with a policy effective date;
      • explanations of benefits paid by the GHP or LGHP; and
      • statements or receipts that reflect payment of health insurance premiums.”

So as long as SSA is requiring verification of employment, including employer documentation, individuals who have ready access to the documentation above can submit such documents and meet SSS requirements.

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Federal Court Orders Appeal Rights on “Observation Status” Issue for Certain Medicare Hospital Patients

“The Court heard the voices of our clients, who represent the thousands of Medicare beneficiaries faced with the baffling observation issue – when they are already dealing with a hospitalization for significant illnesses and injuries. Fairness and due process require that they have an opportunity to appeal their hospital observation status to Medicare, just as they can for most other issues affecting their Medicare coverage.”

On March 24, 2020, a federal court issued a decision in a nationwide class action, Alexander v. Azar, finding that certain Medicare beneficiaries who are placed on “observation status” at hospitals, rather than being admitted as “inpatients,” have the right to appeal to Medicare to challenge that status. If you are a Medicare beneficiary who received “observation services” in a hospital since January 1, 2009 and either did not have Medicare Part B, or, you were hospitalized for at least three consecutive days but not three days as an inpatient, you may be a member of the class. No action is required to join the class. Please check this space for further updates and sign up for our Alerts to receive news about significant developments in the case.

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CMS Temporarily Waives Medicare Access Barriers for Skilled Nursing Facility Care

On March 13, 2020, President Trump proclaimed the COVID-19 pandemic a national emergency. As a result, the U.S. Department of Health and Human Services (HHS) now has the authority under Section 1135 of the Social Security Act to waive or modify certain requirements of public health programs, including Medicare. The Centers for Medicare & Medicaid Services (CMS) – the agency within HHS responsible for administering the Medicare program – is using this emergency power to waive the 3-day inpatient hospital stay requirement for skilled nursing facility (SNF) care and to allow certain Medicare beneficiaries to renew their SNF benefit periods without starting a new spell of illness first.

  1. Prior 3-Day Inpatient Hospital Stay Requirement

In order to qualify for Medicare-covered SNF care, beneficiaries must be an inpatient of a hospital for at least three consecutive days.[1] Unfortunately, too often beneficiaries are admitted to hospitals as outpatients on observation status. Although beneficiaries on observation status receive the same services as inpatients and may be in the hospital for far more days, their classification precludes them from qualifying for Medicare-covered SNF care regardless of their medical need for such services.

Under the 1135 Waiver, CMS is temporarily removing this arbitrary access barrier for SNF care for beneficiaries affected by the COVID-19 pandemic. The Waiver is being applied broadly to all Medicare beneficiaries during this emergency. In a memorandum, CMS Administrator Seema Verma provides the following examples:

  1. Beneficiaries who are evacuated from a nursing home in the emergency area;
  2. Beneficiaries who are discharged from a hospital in order to provide care to more seriously ill patients; and
  3. Beneficiaries who need SNF care as a result of the emergency, “regardless of whether that individual was in a hospital or nursing home prior to the emergency.”

While questions about this Waiver remain, CMS appears to be granting Medicare beneficiaries the ability to receive Medicare-covered SNF care without a qualifying 3-day inpatient hospital stay in a wide range of cases, whether or not they are directly affected by COVID-19. The Center for Medicare Advocacy (the Center) encourages CMS to exercise its pre-existing authority to permanently remove this access barrier even after the COVID-19 pandemic ends by counting time spent in observation status for purposes of the 3-day inpatient hospital stay requirement. Alternatively, Congress can also remove this access barrier by passing the Improving Access to Medicare Coverage Act (H.R. 1682, S. 753), which would likewise count all time spent in the hospital for purposes of satisfying the 3-day inpatient hospital stay requirement.

Update:  On March 24, 2020, a U.S. District Court issued a decision in a nationwide class-action lawsuit seeking the right for Medicare beneficiaries to appeal placement on observation status. The case, Alexander v. Azar, was filed by the Center for Medicare Advocacy in 2011. Co-counsel in the case are Justice in Aging and Wilson Sonsini Goodrich & Rosati  In its decision, the court held that, as a matter of Constitutional due process, patients who are initially admitted as inpatients by a physician, but whose status is later changed to observation by their hospital, have the right to appeal to Medicare and argue for Part A coverage as hospital inpatients. To learn more about Alexander v. Azar, please visit the Center’s Outpatient Observation Status webpage.

  1. Benefit Periods

Medicare beneficiaries are entitled up to a maximum of 100 days of SNF care per benefit period.[2] A benefit period ends when a beneficiary has not received skilled care for at least 60 consecutive days.[3] Beneficiaries who have exhausted their benefit periods must once again meet all of the Medicare coverage criteria in order to start a new benefit after the 60-day break.

In order to remove this access barrier, CMS is recognizing “special circumstances for certain beneficiaries” who have exhausted their benefit periods. Specifically, CMS is allowing beneficiaries to renew their benefit periods for “an additional 100 days of SNF Part A coverage for care needed as a result of the . . . emergency.” However, as Administrator Verma states in the memorandum, the policy will apply only to beneficiaries “who have been delayed or prevented by the emergency itself from commencing or completing the process of ending their current benefit period and renewing their SNF benefits that would have occurred under normal circumstances.”

Thus, taken together, beneficiaries who have exhausted or will exhaust their benefit periods may start a new benefit period without a 60-day break in skilled care and without needing a 3-day inpatient hospital stay. Nevertheless, beneficiaries still must meet all other Medicare coverage criteria for SNF care. Beneficiaries who fall in this group should be prepared to demonstrate that “daily” skilled care is still medically necessary.[4]

Additional Information. For more information about COVID-19 and Medicare, including the latest resources, please visit the Center’s COVID-19 (Coronavirus) and Medicare webpage.

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[1] 42 C.F.R. § 409.30(a)(1).
[2] Id. at § 409.61(b).
[3] Id. at § 409.60(b).
[4] Daily skilled care is defined as 5 days of skilled therapy, 7 days of skilled nursing, or a combination of both. Id. at § 409.34. Please note that improvement is not a coverage criteria. Id. Medicare beneficiaries in SNFs can receive Medicare-covered skilled nursing or therapy services to maintain their conditions or to prevent or slow further deterioration of their conditions. For more information, please visit: https://www.medicareadvocacy.org/medicare-info/improvement-standard/.

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New Guidance On Nursing Home Health Inspections Severely Limits Oversight and Enforcement for a Three-Week Period

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

On March 20, 2020, the Centers for Medicare & Medicaid Services (CMS) issued new guidance directing state survey agencies to conduct health inspections only if they relate to complaints and facility-reported incidents (FRIs) triaged at the immediate jeopardy level. These facilities will simultaneously have a streamlined infection control review. Additionally, the guidance indicates that federal and state surveyors will now be performing targeted infection control inspections of facilities identified as needing additional oversight. CMS specifies that the directive will be in place for three weeks, starting on March 20th. This guidance supersedes the March 4th directive, which authorized a broader range of surveys to be conducted.

Following are key points from the CMS guidance:

  • Immediate Jeopardy Inspections. Standard inspections and revisits not associated with immediate jeopardy violations are no longer authorized. If a revisit demonstrates noncompliance at a level lower than immediate jeopardy, surveyors are not to conduct follow-up onsite inspections. CMS notes that these cases will be “held.” Facilities may also delay submitting Plans of Corrections during this period.
  • Non-Immediate Jeopardy Inspections. Complaints and facility-reported incidents not triaged as immediate jeopardy should be recorded but onsite investigations are not authorized during this period. CMS will issue guidance relating to these non-IJ complaints and FRIs “in the next few weeks.” Surveyors should end any inspections that started prior to this directive and that do not fall under this guidance.
  • Exceptions for Onsite Inspections. Federal and state surveyors who are unable to meet the CDC’s personal protective equipment (PPE) expectations are being instructed to perform offsite inspections until they can safely enter nursing homes.
  • CMS is suspending impositions of denial of payments for new admissions (DPNAs), per day civil money penalties (CMPs), and terminations for noncompliance at six months until revisits are once again authorized. Financial penalties that began before the start of this three-week period will stop accruing and denial of payments will end. CMS will not impose any “any new remedies to address noncompliance” that occurred before the start of this period. However, enforcement actions will continue for unremoved immediate jeopardy deficiencies.
  • Self-Assessments. Nursing homes should use the infection control-focused survey (included with the guidance) developed by CMS and the CDC to perform voluntary self-assessments. Surveyors may request the survey during onsite inspections.

Our organizations are deeply troubled by the latest CMS guidance. Only a small percentage of health violations are ever triaged and identified as immediate jeopardy. Thus, under this guidance, the majority of potential and existing violations of nearly all the nursing home standards of care will essentially be overlooked for the next three weeks. How many residents will experience pain and suffering in silence during this period?

Additional Resources:

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Free Webinar: Medicare & Health Care Updates

Wednesday April 8, 2020, 3:00 PM – 4:00 PM EDT

This presentation will examine and try to make sense of what’s happening in the Medicare and related health care world, including impacts of COVID-19, from the perspective of beneficiary advocates.

Presented by Center for Medicare Advocacy Associate Director David Lipschutz with special guests Medicare Rights Center Federal Policy Director Lindsey Copeland, and Justice in Aging Directing Attorney Amber Christ.

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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 backdrop of issues like 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/

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