CMA Alert | March 4, 2021

1. Medicare Home Health Is Not a Short-Term Benefit – Despite Payment Policies to The Contrary
2. Nursing Home Advocates and Members of Congress Call for Reinstatement of Nurse Aide Training Rules
3. Congressman Neal Asks CMS to Reinstate Nursing Home Surveys and Enforcement
4. Elder Justice Newsletter – Vol 3, Issue 5 Now Available
5. Register Now – 2021 National Voices of Medicare Summit & Sen. Jay Rockefeller Lecture

Medicare Home Health Is Not a Short-Term Benefit – Despite Payment Policies to The Contrary

Results from the first year of Medicare’s home health payment system, PDGM (Patient Driven Groupings Model) reveal that Medicare home health payments for the first 30 days of care are, on average, more than 34% higher than for subsequent 30-day periods of care – regardless of the amount of home health services a patient needs, or for how long.[1]

Although Medicare coverage for home health care is not time-limited under the law[2] (as long as a beneficiary is homebound and needs intermittent or part-time skilled services), Medicare beneficiaries are being discharged from home health services faster than ever before. The Center for Medicare Advocacy hears regularly from beneficiaries who are told by home health agencies that their agency “only provides short-term care.”

Beneficiaries with longer-term and chronic conditions – such as diabetes, stroke, paralysis, multiple sclerosis, Parkinson’s, ALS, heart disease, pulmonary disorders and more – are too often denied ongoing care for which they legally qualify. Beneficiaries who need continuing home health services to stay safely at home are left to fend for themselves, although most are not able to do so.

Repeatedly, the Centers for Medicare & Medicaid Services (CMS) has implemented practices that have a discriminatory impact (through policies, procedures, payment and quality models) to encourage that only short-term, post-acute care services are provided. Payments, quality reporting measures, the value-based purchasing model (HHVBP), CMS audits of home health agencies by the Office of Inspector General (OIG) and Medicare Administrative Contractor (MAC) and state enforcement training programs cumulatively limit Medicare home health care to only a short-term, post-acute care benefit.[3] Beneficiaries who legally qualify for longer-term coverage are unable to find agencies to provide services.  

PDGM, the Medicare home health payment model implemented in 2020, is one such discriminatory policy. Case-mix weights[4] in PDGM are applied to a national standard base rate, calculated with a labor component for the geographic region serving the patient. The first full year of PDGM illustrates the sharp payment decline to agencies after 30 days of home health care. The table below, shows the decrease in case-mix (equating to a similar decrease in payment), from the first 30 days to the second 30 days of care for the complete list of  clinical groups in PDGM (every patient fits into one of these clinical groups). After the first 60 days of home health care, payments decline even further.

PDGM Case Mix for 2020 Data[5]

*MMTA = Medication, Management, Teaching and Assessment

Conclusion

PDGM is a significant factor in reducing, and often eliminating, access to ongoing home health care for beneficiaries with longer-term and chronic conditions. CMS should develop payments, policies and practices that support home health care for all individuals who qualify for coverage under the law.

If you, or someone you know, is prematurely discharged from home health care, or unable to obtain home health services, please contact the Center for Medicare Advocacy.

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[1] Strategic Healthcare Programs National Client Database, as reported by DecisionHealth on February 25, 2021.
[2] 42 C.F.R. 42 CFR § 409.48; Medicare Benefit Policy Manual, Chapter 7, § 70.1.
[3] See these topics discussed in greater detail in Articles and Updates Section of the CMA website: https://medicareadvocacy.org/medicare-info/home-health-care/.
[4] PDGM case-mix weights include: Admission Source (institution or community), Functional Impairment Level (low-medium-high), Co-Morbidity Adjustment (none-low-high). https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HomeHealthPPS/Downloads/Overview-of-the-Patient-Driven-Groupings-Model.pdf.
[5] Strategic Healthcare Programs National Client Database, as reported by DecisionHealth on February 25, 2021.

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Nursing Home Advocates and Members of Congress Call for Reinstatement of Nurse Aide Training Rules

In a February 25, 2021 letter to the Centers for Medicare & Medicaid Services (CMS), advocates for residents ask for prompt reinstatement of longstanding rules requiring that nurse aides be trained and competent before providing care to residents. Advocates also call for individuals with less training than required by their state, who have been working during the pandemic as temporary nurse aides, be required to complete their state’s training and competency evaluation program. Members of Congress, including Congressman Neal (D-NJ) and Lloyd Doggett (D-TX) similarly urge CMS to reinstate nurse aide training rules.

One of the major reforms of the 1987 Nursing Home Reform Law was the requirement that nurse aides be trained and competent before providing care to residents.[1] Federal regulations, first promulgated in 1991, require a minimum of 75 hours of training,[2] although many states require more hours. California, for example, requires 160 hours of training.[3]

On March 20, 2020, at the beginning of the coronavirus pandemic, CMS waived many federal regulations governing nursing homes, including the requirement that individuals not work in nursing facilities for more than four months unless they successfully complete their state’s nurse aide training and competency evaluation program.[4] The American Health Care Association (AHCA), the trade association of for-profit facilities, announced that it had created a free eight-hour on-line training and competency program for a new category of worker not named in federal law – temporary nurse aide (TNA). Many states explicitly accepted AHCA’s training module and other states authorized workers with less than 75 hours of training to be employed as aides.[5]

In June 2020, when CMS reinstated the requirement that facilities report staffing data to CMS, using the Payroll-Based Journal (PBJ) system, effective for the second calendar quarter (April-June 2020),[6] CMS did not adjust the PBJ computer program to account for TNAs. Instead, CMS allowed (and continues to allow) nursing facilities to report TNAs as if they are fully trained certified nurse assistants (CNAs). CMS publicly reports TNAs as if they were CNAs on its public website, CareCompare (formerly Nursing Home Compare).[7]

It is unknown how many TNAs are working in nursing homes, how much training they have received and from whom, or which CNA tasks they are performing and how well. Nevertheless, the nursing home industry is encouraging CMS and states to “grandfather” TNAs as CNAs. 

Concerned that grandfathering TNAs is both illegal under the regulations and bad public policy, residents’ advocates and others jointly wrote CMS on February 25, 2021, asking that CNA training requirements be reinstated promptly, but no later than March 31.[8] Advocates point out that once aide training rules are reinstated, CMS lacks authority to alter regulatory standards without formally amending the regulations through notice and comment rulemaking. In other words, once the waiver of aide training requirements is lifted, all individuals must complete their state’s nurse aide training and competency evaluation program; grandfathering is not permissible.

Members of Congress similarly expressed concern about TNAs and urged CMS to reinstate aide training rules. Congressman Lloyd Doggett (D-TX) and colleagues wrote to CMS on February 25,[9] repeating Congressman Doggett’s recommendations to CMS in October 2020.[10]  Congressman Doggett and his colleagues also ask that CMS require facilities to “report how many currently employed workers have not met the 75-hour training requirement” and that CMS make that information public on CareCompare.  Congressman Richard E. Neal (D-NJ) and colleagues also wrote CMS on February 24, asking for reinstatement of nurse aide training rules, among other matters (see below).[11]

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[1] 42 U.S.C. §§1395i-3(b)(5)(A)(i)(I), 1396r(b)(5)(A)(i)(1), Medicare and Medicaid, respectively; 42 C.F.R. §§483.35(d)(1)(ii)(A), 483.152(a).
[2] 42 C.F.R. §483.152(a)(1).
[3] Ca. Health & Safety Code §1337.1(b).
[4] CMS, “COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers” (Feb. 19, 2021 update), https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf.
[5] Center for Medicare Advocacy, “Who’s Providing Care to Nursing Home Residents?” (CMA Alert, Jul. 29, 2020), https://medicareadvocacy.org/whos-providing-care-to-nursing-home-residents/.  Full Report, Who’s Providing Care for Nursing Home Residents? Nurse Aide Training Requirements during the Coronavirus Pandemic available at https://medicareadvocacy.org/wp-content/uploads/2020/07/Report-Nurse-Aide-Training.pdf.
[6] CMS, “Changes to Staffing Information and Quality Measures Posted on the Nursing Home Compare Website and Five Star Quality Rating System due to the COVID-19 Public Health Emergency,” QSO-20-34-NH (June 25, 2020), https://www.cms.gov/files/document/qso-20-34-nh.pdf.
[7] Center for Medicare Advocacy, “CMS Will Not Track Minimally Trained Aides at Nursing Facilities” (CMA Alert, Aug. 6, 2020), https://medicareadvocacy.org/cms-will-not-track-minimally-trained-aides-at-nursing-facilities/.
[8] The February 25, 2021 letter to Lee Fleisher, Chief Medical Officer, CMS, and Evan Shulman, Director, Division of Nursing Homes, Quality, Safety & Oversight Group, CMS, signed by Altarum, California Advocates for Nursing Home Reform, Center for Medicare Advocacy, Justice in Aging, Long Term Care Community Coalition, Michigan Elder Justice Initiative, National Association of Health Care Assistants, and National Consumer Voice for Quality Long-Term Care, is available at https://medicareadvocacy.org/wp-content/uploads/2021/03/Letter-to-CMS-resumption-of-CNA-standards-2-25-21.pdf.
[9] The letter is also signed by Richard E. Neal (D-NJ), Bill Pascrell, Jr. (D-NJ), Brian Higgins (D-NY), Judy Chu (D-CA), Linda T. Sanchez (D-CA), Suzan DelBene (D-WA), and Brendan F. Boyle (D-PA ).
[10]  Center for Medicare Advocacy, “Members of Congress Write CMS Urging Restoration of  Nurse Aide Training Requirements for Nursing Facilities” (CMA Alert, Nov. 5, 2020), https://medicareadvocacy.org/members-of-congress-write-cms-urging-restoration-of-nurse-aide-training-requirements-for-nursing-facilities/.
[11] The letter is available at https://waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/documents/02%2025%2021%20-%20SNF%20Admin%20Changes_Letter%20to%20CMS_final_signed_0.pdf.

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Congressman Neal Asks CMS to Reinstate Nursing Home Surveys and Enforcement

In a February 25, 2021 letter to Elizabeth Richter, Acting Administrator of the Centers for Medicare & Medicaid Services (CMS), Congressman Richard E. Neal (D-NJ), Chairman of the House Ways and Means Committee, asks for reinstatement of longstanding resident protections that have been waived during the COVID-19 pandemic and for the reversal of changes to regulations and guidance that the Trump Administration implemented as it prioritized “reductions in provider burden over consumer protections.” Chairman Neal asks for reinstatement of standard surveys, “with robust enforcement,” and training requirements for nurse aides and paid feeding assistants. In addition, among other specific changes, the Chairman calls for:

• Reinstatement of per day civil money penalties as the default (reversing the per instance penalty that the Trump Administration made the default);
• Reinstatement of the Obama ban on pre-dispute binding arbitration agreements in nursing home admissions contracts;
• Better resident protections from antipsychotic drugs; and
• Improved data on staff and patient COVID-19 data, antipsychotic drug use, and facility ownership information.

Read the full letter at: https://waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/documents/02%2025%2021%20-%20SNF%20Admin%20Changes_Letter%20to%20CMS_final_signed_0.pdf

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Elder Justice Newsletter – Vol 3, Issue 5 Now Available

He Thought They Knew What They Were Doing

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.

• Read the latest issue at: https://medicareadvocacy.org/wp-content/uploads/2021/03/Elder-Justice-3.5.pdf

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Register Now for the
2021 National Voices of Medicare Summit
& Sen. Jay Rockefeller Lecture

Medicare & Health Care:
Where We’ve Been, Where We Are, Where We Need to Be
Virtual Presentation

Thursday April 1, 2021, 1:00 PM EDT- 4:00 PM EDT

We are honored to present
2021 Sen. Jay Rockefeller Lecturer
Dr. Donald Berwick

Dr. Berwick is one of the country’s leading advocates for high-quality health care, and one of the top thinkers in health care today. Dr. Berwick is currently President Emeritus and Senior Fellow at the Institute for Healthcare Improvement and previously Administrator of the Centers for Medicare & Medicaid Services.

Featuring speakers, panelists and moderators including Mary Ashkar (Senior Attorney, Center for Medicare Advocacy), Ben Belton (Director of Global Partner Engagement, AARP), Dr. Emily Cleveland Manchanda (Asst. Professor of Emergency Medicine, Boston University School of Medicine and Director for Equity Initiatives, Dept. of Emergency Medicine, Boston Medical Center), Robert Espinoza (Vice President of Policy, PHI), Dr. Judith Feder (Georgetown University Professor and Center for Medicare Advocacy Board President), Amy Hall (Staff Director, Subcommittee on Health, Committee on Ways and Means, U.S. House of Representatives), Chris Jennings (President, Jennings Policy Strategies), Kata Kertesz (Policy Attorney, Center for Medicare Advocacy), Wey-Wey Kwok (Senior Attorney, Center for Medicare Advocacy), David Lipschutz (Associate Director, Center for Medicare Advocacy), Patricia Neuman (Vice President for Medicare, Kaiser Family Foundation), Senator Jay Rockefeller, and Judith Stein (Executive Director, Center for Medicare Advocacy).

Panel One

Challenges and Opportunities Facing Medicare and Health Care in the New Administration and Congress — This panel will explore issues such as Medicare solvency and coverage, the growing privatization of the program, and how these factors impact vulnerable Medicare beneficiaries. How do we advance fair access to quality health care through Medicare and other health coverage programs?

Panel Two

Acknowledging Health Disparities and Advancing Health Equity —This panel will consider how the pandemic has highlighted, and exacerbated, pre-existing disparities in access to quality health care. Panelists will discuss ways to address health care equity issues for all people who need health care, as well as for their caregivers and families.

• Register now at https://medicareadvocacy.org/summit-2021/