- New Factsheet | CMS Nursing Home Visitation Guidance
- HHS Inspector General Finds CMS Data Understates Antipsychotic Drug Use in Nursing Homes
- Arizona Governor Vetoes Bill Reauthorizing Nursing Home Administrator Licensing Board After The Arizona Republic Reports That Board Granted A License To A Convicted Felon
- Studies Highlight Barriers to Health Equity: Access to Pharmacies & Telehealth
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New Factsheet | CMS Nursing Home Visitation Guidance
According to the Centers for Disease Control and Prevention (CDC), as of May 3, 2021 the number of confirmed nursing home resident cases has fallen to 0.99 cases per 1,000 residents. This is compared to the 30.89 cases per 1,000 residents reported at the end of December 2020.
Given this positive trend, the Centers for Medicare & Medicaid Services (CMS) has revised its expanded guidance for visitation in nursing homes that was originally issued on March 10, 2021, which confirmed that all nursing home residents should be allowed to have indoor visitation.
Part of the Center for Medicare Advocacy’s (Center) mission is to ensure that the rights of older adults and people with disabilities are protected and known. We have created this Factsheet to outline CMS’s latest guidance, along with caveats regarding where and when indoor visitation could be curtailed by a nursing home. In the event that a nursing home refuses to open its doors to visitors, the information in this Factsheet could be used to help navigate resident visitation rights.
 The Center reported this guidance when it was originally released by CMS in this Alert.
HHS Inspector General Finds CMS Data Understates Antipsychotic Drug Use in Nursing Homes
A serious and longstanding quality of care problem in nursing homes is the inappropriate use of antipsychotic drugs with residents who have dementia. A decade ago, the HHS Office of Inspector General (OIG) reported that 83% of claims for atypical antipsychotic drugs were associated with conditions other than those approved for their use by the Food and Drug Administration (FDA) and that 88% of antipsychotic drugs prescribed for residents were associated with the highest level of warning from the FDA (that use of such drugs could cause the death of residents with dementia). In response, the Senate Special Committee on Aging held a hearing on November 30, 2011 – “Overprescribed: The Human and Taxpayers’ Costs of Antipsychotics in Nursing Homes” – and the Centers for Medicare & Medicaid Services (CMS) launched a National Partnership to Improve Dementia Care in Nursing Homes in 2012.
A new report by the Inspector General finds that significant problems remain. First, the resident assessment (MDS) data that CMS uses as the sole source of information to report antipsychotic drug rates in nursing homes is incomplete and understates antipsychotic drug rates. CMS’s use of only MDS data misses many residents who are taking antipsychotic drugs. OIG finds that 249,135 residents (23% of long-stay residents in nursing homes) had a Part D claim for an antipsychotic drug in 2018, but that 12,091 of the residents (5%) were not reported in their MDS assessments as receiving antipsychotic drugs.
Second, CMS excludes from reporting of antipsychotic drug use in the quality measure on the federal website Care Compare any residents with one of three diagnoses, including schizophrenia. In other words, if residents are diagnosed with schizophrenia, their use of an antipsychotic drug is not flagged as inappropriate. OIG reports that of the 98,227 residents that nursing facilities report as having schizophrenia, more than 29,000 residents (30%) did not have any evidence of a diagnosis of schizophrenia in their Medicare claims (and 71% of them had at least one Part D claim for an antipsychotic drug). These 29,000 residents are not included in the quality measure for antipsychotic drug use. Facilities’ assessments of schizophrenia appear false in too many instances. A study published in 2017 found that in the two years following the introduction of the National Partnership, diagnoses of schizophrenia in nursing home residents nearly doubled.
CMS concurred with OIG’s two recommendations: “to validate the information reported in MDS assessments” and to “supplement the data it uses to monitor the use of antipsychotic drugs in nursing homes.”
While CMS’s concurrence with OIG’s recommendations is significant and could lead to meaningful changes, the OIG report raises serious broader concerns. First, too many resident assessments that CMS uses in the quality measure domain, which is largely based on self-reported data, are fraudulent and misstate residents’ conditions and needs. The Center for Medicare Advocacy has long described the quality measure domain on the federal website as inaccurate and self-serving. Second, the National Partnership is not the success that CMS and the nursing home industry claim. The real disgrace is that far too many residents continue to receive antipsychotic drugs when use of the drugs is dangerous and life-threatening for them.
Although OIG reports that facilities’ self-reported MDS data miss many cases of antipsychotic drug use, Tony Chicotel, an attorney with California Advocates for Nursing Home Reform, finds that even these self-reported data, as reported by CMS, document a dramatic increase in antipsychotic drug use during the coronavirus pandemic. For example, California’s antipsychotic drug rate reported by facilities was 23% in the first quarter of 2021, nearly the same as the 24% reported by facilities prior to the National Partnership. Chicotel also finds that facilities nationwide report that more than 11% of all residents have diagnoses of schizophrenia. The rate is almost 18% in California, compared to a 9% rate reported in 2011.
 OIG, Medicare Atypical Antipsychotic Drug Claims for Elderly Nursing Home Residents, OEI-07-08-00150 (May 2011), https://oig.hhs.gov/oei/reports/oei-07-08-00150.pdf.
 https://www.aging.senate.gov/hearings/overprescribed-the-human-and-taxpayers-costs-of-antipsychotics-in-nursing-homes includes the written statements of Senator Herb Kohl (D-WI) and the witnesses. Center attorney Toby S. Edelman testified and included in her testimony a longer history of concerns about the inappropriate use of antipsychotic drugs in nursing homes and its causes (insufficient numbers of appropriately trained staff; reduced use of physical restraints; some drug companies’ illegal off-label marketing of antipsychotic drugs, as documented in False Claims Act lawsuits; consultant pharmacists’ working for long-term care pharmacies; and the designation of antipsychotic drugs as a protected class under Part D). See statement at https://www.aging.senate.gov/imo/media/doc/hr240te.pdf.
 OIG, CMS Could Improve the Data It Uses To Monitor Antipsychotic Drugs in Nursing Homes, OEI-07-19-00490 (Issue Brief, May 2021), https://oig.hhs.gov/oei/reports/OEI-07-19-00490.pdf
 Problems are documented in Committee on Ways and Means Majority, Under-Enforced and Over-Prescribed: The Antipsychotic Drug Epidemic Ravaging America’s Nursing Homes (Jul. 2020), https://waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/documents/WMD%20Nursing%20Home%20Report_Final.pdf, and Human Rights Watch, “They Want Docile” How Nursing Homes in the United States Overmedicate People with Dementia (2018), https://www.hrw.org/report/2018/02/05/they-want-docile/how-nursing-homes-united-states-overmedicate-people-dementia.
 Jonathan D. Winter, J. William Kerns, Katherine M. Winter & Roy T. Sabo (2017), “Increased Reporting of Exclusionary Diagnoses Inflate Apparent Reductions in Long-Stay Antipsychotic Prescribing,” Clinical Gerontologist DOI: 10.1080/07317115.2017.1395378 (published online Dec. 5, 2017), summary of article in journal is at https://www.tandfonline.com/doi/full/10.1080/07317115.2017.1395378.
 “Did CMS’s Partnership to Improve Dementia Care Reduce the Inappropriate Prescribing of Antipsychotic Drugs for Nursing Home Residents as Much as CMS Claims? Two Recent Studies Say No” (CMA Alert, Jun. 28, 2018), https://medicareadvocacy.org/did-cmss-partnership-to-improve-dementia-care-reduce-the-inappropriate-prescribing-of-antipsychotic-drugs-for-nursing-home-residents-as-much-as-cms-claims/.
 NDS 3,0 Frequency Report, https://www.cms.gov/Research-Statistics-Data-and-Systems/Computer-Data-and-Systems/Minimum-Data-Set-3-0-Public-Reports/Minimum-Data-Set-3-0-Frequency-Report.
 Email from Tony Chicotel, May 10, 2021.
Arizona Governor Vetoes Bill Reauthorizing Nursing Home Administrator Licensing Board After The Arizona Republic Reports That Board Granted A License To A Convicted Felon
On May 3, 2021, Arizona Governor Doug Ducey vetoed Senate Bill 1282, which would have reauthorized the Board of Examiners of Nursing Care Institution Administrators and Assisted Living Facility Managers (Board) for eight years. The veto letter cites “a disturbing and heartbreaking investigation by the Arizona Republic . . . into this Board that showed the Board is failing its duty.” The Board, made up primarily of administrators, licenses nursing home administrators and oversees the licensees.
On May 2, 2021, The Arizona Republic reported that the Board, after about a six-minute discussion, had approved a nursing home administrator license in February 2020 for Larry Michael Rasmussen, despite the fact that Rasmussen had two felony convictions for fraud and had opened a bank account with the name of a Japanese pharmaceutical company and deposited, and tried to use, a $1.7 million check from Walgreens payable to the company, among other activities that should have disqualified him. Rasmussen had worked in a long-term care facility for less than a year at the time he was given an administrator license.
Four months later, state investigators found that Rasmussen and his management team had required employees who had tested positive for COVID-19 to continue working at the short-staffed facility. By July 2020, more than 50 residents had become infected with COVID-19 and at least 15 had died. Rasmussen was replaced as administrator.
Nursing home administrators are key employees responsible for management of their facilities. While this may be an exceptionally troublesome case, the Center for Medicare Advocacy has expressed ongoing concerns about state licensure requirements and federal certification requirements for owners and managers of nursing facilities. The Arizona experience reminds us of the critical importance of administrators and the processes that licenses them.
 Office of the Governor Doug Ducey, “Governor Ducey Takes Action To Protect Arizona Seniors” (News Release, May 3, 2021); Caitlin McGlade, “After Republic investigation, governor shutters state board that licensed a felon to run nursing home where 15 died,” The Arizona Republic (May 4, 2021).
 Arizona Board of Examiners of Nursing Care Institution Administrators and Assisted Living Facility Managers, http://www.aznciaboard.us/
 Arizona Revised Code 36-446.94.A.1-4, https://casetext.com/statute/arizona-revised-statutes/title-36-public-health-and-safety/chapter-4-health-care-institutions/article-6-licensing-of-nursing-care-institution-administrators-and-certification-of-assisted-living-facilities-managers/section-36-44604-qualifications-period-of-validity-exemption
 42 C.F.R. §483.70(d)(2)
Studies Highlight Barriers to Health Equity: Access to Pharmacies & Telehealth
Two studies recently published in Health Affairs shed light on important health equity issues.
One of the strategies employed by the federal government to expand nationwide access to vaccines was to establish the Federal Retail Pharmacy Program for COVID-19 Vaccination. The Centers for Disease Control and Prevention (CDC) describes the program as a collaboration between the federal government, states, and 21 national pharmacy partners and independent pharmacy networks to increase access to COVID-19 vaccinations across the United States. According to a study published in Health Affairs, however, access to pharmacies is notequal.
The authors of the study examined 10,074 neighborhoods in the nation’s 30 most populous cities. They found 79% of those neighborhoods were segregated by race/ethnicity, and there were “persistent differences in the availability of pharmacies across types of neighborhoods based on their racial and ethnic composition.” Throughout the study period (2007-15), the authors found there were fewer pharmacies in Black and Hispanic/Latino neighborhoods than in White or diverse neighborhoods. The study also found:
- Approximately one-third of the neighborhoods in the 30 most populated cities in the U.S. were “pharmacy deserts,” lacking pharmacies, in 2015, affecting nearly 15 million people.
- In all cities, pharmacy deserts were significantly more common in Black neighborhoods than White neighborhoods – especially in low-income Black versus low-income White neighborhoods.
- Pharmacies located in Black and Hispanic/Latino neighborhoods were more likely to close than pharmacies located in other neighborhoods in urban areas.
- Pharmacies were least likely to open in minority neighborhoods that lacked pharmacies.
This study centers around disparities in telehealth use for patients with language barriers. According to the study, 25.6 million people in the United States (almost 8 percent of the population) have limited English proficiency. Just over a quarter of that population lives in California. The study found that patients with limited English proficiency had half the odds of using telehealth services compared with those who were English-proficient. Additionally, those who had limited English proficiency were “more likely to be older, female, less educated, poorer, uninsured and Medicaid recipients and lack a usual source of care.” Furthermore, the study reports that those were “uninsured or were covered by Medicaid had lower odds of telehealth use compared with patients with employer-based insurance.”
The use of telehealth greatly increased during COVID-19 and has been seen as technology that can increase access to care. The challenge is to ensure that such access is inclusive. The Center for Medicare Advocacy previously reported a study that found inequities in use and access to telehealth services during COVID-19, affecting older adults, low-income individuals, non-English speakers, and minority groups the most.
 Guadamuz, Jenny S., Jocelyn R. Wilder, Morgane C. Mouslim, Shannon N. Zenk, G. Caleb Alexander, and Dima Mazen Qato. “Fewer Pharmacies In Black And Hispanic/Latino Neighborhoods Compared With White Or Diverse Neighborhoods, 2007–15.” Health Affairs 40, no. 5 (2021): 802–11. https://doi.org/10.1377/hlthaff.2020.01699.
 The study defines a pharmacy desert as a neighborhood with low geographic access to pharmacies.
 Rodriguez, Jorge A., Altaf Saadi, Lee H. Schwamm, David W. Bates, and Lipika Samal. “Disparities In Telehealth Use Among California Patients With Limited English Proficiency.” Health Affairs 40, no. 3 (2021): 487–95. https://doi.org/10.1377/hlthaff.2020.00823.
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Voices of Medicare: Updates from the Field
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