- New Center for Medicare Advocacy Report – Nursing Home Industry Seeks Immunity During COVID Crisis; States Are Obliging
- Medicare Covers Maintenance Therapy – Therapist Assistants Can Provide It
- Case Study: Medicare Advantage and Repeated Coverage Denials Amid the COVID Crisis
- Report: COVID-19 Disproportionately Affects Communities of Color
- COVID-19: An Advocates Guide to Beneficiary Related Medicare Changes – Updated May 10, 2020
In response to coronavirus pandemic, the nursing home industry is seeking broad immunity from COVID-related harm. Through executive orders and state legislation, Governors and states are rapidly granting immunity to various health care providers, including nursing facilities.
The Nursing Home Industry’s Interest in Preventing Litigation is Longstanding.
When the federal standards of care for nursing facilities participating in Medicare, Medicaid or both (called Requirements of Participation) were revised in October 2016, they contained an explicit prohibition against mandatory pre-dispute arbitration provisions in nursing home admissions contracts. Such provisions prevent residents and their families from filing lawsuits against nursing facilities. Although the Requirements reflected the first comprehensive revision in 25 years, and strengthened resident protections in many areas, the nursing home industry filed a lawsuit solely about arbitration. A Mississippi federal district court granted a nationwide preliminary injunction on November 7, 2016. The Trump administration published proposed rules and then final rules, which permit pre-dispute arbitration agreements, with certain resident protections. Nursing facilities again filed a lawsuit challenging four provisions of the new regulations. The new rule was upheld by a federal district court in Arkansas in April 2020.
The Administration called for immunity in March. In a March 24, 2020 letter to Governors, HHS Secretary Alex Azar wrote, “For health care professionals to feel comfortable in expanded capacities on the frontlines of the COVID-19 emergency, it is imperative that they feel shielded from medical tort liability.” He continued, “Given variation in the scope of these state laws, it is particularly important for states to issue guidance publicly, outlining the available liability protections during the COVID-19 emergency.”
State nursing home trade associations call on their states for immunity. Following calls by the national nursing home trade associations for immunity, a number of state nursing home associations have sought immunity, sometimes jointly, sometimes with other health care providers at the state level. As described in detail in the Report, these states include California, Connecticut, Florida, Pennsylvania, and Washington.
A number of Governors have issued Executive Orders giving broad civil immunity to health care providers for acts and omissions, injuries and death, during the pandemic, except, generally, for willful misconduct, gross negligence, or actual malice. The Executive Orders typically also recite that the lack of resources or staff does not constitute willful misconduct or gross negligence. State legislatures also have enacted legislation to grant immunity to nursing facilities, among others.
Executive Orders and Declarations have been issued in Arizona, Arkansas, Connecticut, Georgia, Illinois, Indiana, Kansas, Michigan, Mississippi, Nevada, New Jersey, Pennsylvania, Rhode Island, Vermont, Virginia.
State laws giving immunity to nursing facilities, among others, have been enacted in Kentucky, Massachusetts, New Jersey, New York, and Utah.
During the COVID pandemic, longstanding regulatory protections for residents are waived, there are no family visitors, no ombudsman visitors, and few if any surveyor visits. There is limited enforcement, and facilities are receiving additional Medicare and Medicaid reimbursement. Granting broad immunity to nursing facilities under these circumstances increases the enormous risks that residents are already facing. Further, granting such immunity also fulfills the nursing home industry’s longstanding efforts to avoid accountability by preventing litigation.
The Center’s full report, with links to the Governors’ Executive Orders and state laws, is available at https://medicareadvocacy.org/wp-content/uploads/2020/05/Special-Report-Nursing-Home-Immunity.pdf
 81 Fed. Reg. 68688, 68790 (Oct. 4, 2016).
 American Health Care Association v. Burwell, 217 F.Supp.3d 921 (N.D. Miss. 2016).
 82 Fed. Reg. 26649, 26650 (Jun. 8, 2017).
 84 Fed. Reg. 34718 (Jul 8, 2019).
 The prohibition on requiring a resident to sign an arbitration agreement as a condition of admission, 42 C.F.R. §483.70(n)(1); the requirement that an arbitration agreement be explained in a language that the resident or resident’s representative understands, §483.70(n)(2)(i); the 30-day right of rescission for residents signing an arbitration agreement, §483.70(n)(3); and the five-year retention requirement, §483.70(n)(6).
 Northport Health Services of Arkansas v. United States Department of Health and Human Services, Case No. 5:19-CV-5168 (W.D. Ark., Apr. 7, 2020), https://cases.justia.com/federal/district-courts/arkansas/arwdce/5:2019cv05168/58185/44/0.pdf?ts=1586337487.
 See LeadingAge’s March 25 letter to HHS Secretary Azar, https://skillednursingnews.com/wp-content/uploads/sites/4/2020/04/LeadingAge-Secretary-Azar-Letter-PREP-Act.pdf; and a similar Statement by the American Health Care Association, April 14, quoted in Maggie Flynn, “Multiple States Take Steps to Shield Nursing Homes From Liability Amid CoVID-19 – But Rules Vary,” Skilled Nursing News (Apr. 19, 2020), https://skillednursingnews.com/2020/04/multiple-states-take-steps-to-shield-nursing-homes-from-liability-amid-covid-19-but-rules-vary/.
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The Center for Medicare & Medicaid Services issued MLN Matters # MM-11721 on May 1, 2020. Effective January 1, 2020, the MLN, reconfirms that therapy to maintain an individual’s function is a Medicare-covered service. Further, the MLN authorizes therapist assistants to perform maintenance therapy as a covered Medicare home health benefit, if the therapy is initially assessed, and is supervised, by a qualified physical therapist. The authorization for therapist assistants to provide maintenance therapy as a Medicare-covered service implements a change that was included in the CY 2020 Medicare Home Health Prospective Payment System. The authorization for home health therapist assistants conforms home health with other care settings that were already permitted to utilize therapist assistants under Medicare.
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Mr. A, is a retired professor from a state university. He was auto-enrolled in his state’s retiree Medicare Advantage (MA) plan. The plan prospectus states that it covers an unlimited number of days in a skilled nursing facility (SNF).
An active 73-year old, Mr. A went to his primary care doctor because he was experiencing some unusual discomfort. Within a short time it was determined that Mr. A had pancreatic cancer. He had surgery in January 2020; fortunately, the prognosis for his recovery was good. He was discharged home after a few weeks in the hospital, but within a few hours of being home had a stroke. He returned to the hospital by ambulance. After that hospital stay he was admitted to a skilled nursing facility on February 4th for nursing and multi-disciplinary therapies to care for his post-stroke disabilities and post pancreatic cancer surgery needs.
As a result of his stroke, Mr. A was paralyzed on his left side. He made gains. Within a few weeks, he could speak and swallow again, although not normally, and was able to discontinue use of a feeding tube. The speech pathologist recommended continued therapy to perfect his swallowing, reduce the danger of aspirating, and continue working on his speech. He could move his left arm and leg and had gained strength. He was even able to work with the therapist and a device to begin efforts to possibly walk again. But he needed more therapy to maximize his potential and maintain what he’d gained. Nonetheless, his Medicare Advantage plan issued a notice of Medicare denial after 14 days in the SNF.
The SNF nurses, therapists, and Mr. A’s physician all documented his receipt of care, needs, and progress. His treating physician ordered continued daily nursing and therapy in the SNF. The family successfully appealed with support from the physician and the Center for Medicare Advocacy (the Center). But the MA plan continued to review his case weekly; it issued 7 denials in 9 weeks. With a great deal of help from Mr. A’s doctor and the Center, the family kept successfully appealing, from February 2020 through May 2020.
During this entire time the MA plan asserted that Mr. had reached his “maximum level of practical improvement” and that he could go home. Not only is improvement not a legal standard upon which to deny Medicare coverage, this simply was not true. In fact, Mr. A is now able to use his left arm and hand and swallow normally; his speech is markedly improved, he can transfer from bed to wheelchair with assist, and is beginning to walk with a walker and therapist assistance.
Each time the MA plan denied further Medicare coverage, the so-called “discharge plan” was to teach his wife to use the equipment necessary to help Mr. A out of bed, to help him transfer, and to obtain 24 hour in-home care. This would not meet Mr. A’s health and therapeutic care needs, nor could the family afford 24-hour care. As a practical matter, and as ordered by his attending physician, Mr. A’s care could only be provided in a SNF. This was particularly true beginning mid-March 2020, when the COVID pandemic prohibited Mr. A’s wife from visiting him in the SNF and learning from his nurses and therapists how to provide his care.
An honest review and analysis of the law, medical records, and treating physician’s opinion confirms that Mr. A qualifies for continued Medicare coverage:
- He was an inpatient in a hospital for over three days before entering the SNF;
- His doctor ordered daily skilled care to be provided in the SNF for care related to the conditions for which he was hospitalized;
- He needs, and received, daily skilled nursing and therapies that, as a practical matter, can only be provided in a skilled nursing facility.
The MA plan denials are inappropriate and add unnecessary and harmful stress for Mr. A and his family. Fortunately, a Medical Director at the relevant Medicare Quality Improvement Organization (QIO) that reviews appeals has agreed and overturned each MA plan denial to date.
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Kaiser Family Foundation released a report last week, Low-Income and Communities of Color at Higher Risk of Serious Illness if Infected with Coronavirus, with findings that suggest that serious illness resulting from coronavirus disproportionately affects people in communities of color. Adults with low incomes are also more likely to have chronic health conditions, compared to adults with high incomes, which could increase their risk of serious illness if infected with coronavirus. Some findings from the report:
- More than one in three (34%) American Indian/Alaska Native non-elderly adults are at higher risk of serious illness if infected with the coronavirus; this share is greater than all other racial and ethnic groups
- More than one in four (27%) Black non-elderly adults are at higher risk of serious illness if infected with coronavirus, compared to about one in five (21%) White adults.
- Asian non-elderly adults have the smallest share (12%) of adults at higher risk of serious illness among the racial and ethnic groups included in this analysis.
- More than one in three (35%) non-elderly adults with household incomes below $15,000 are at higher risk of serious illness if infected with coronavirus, compared to about one in seven (16%) adults with household incomes greater than $50,000
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COVID-19: An Advocates Guide to Beneficiary Related Medicare Changes – Updated May 10, 2020
The global COVID-19 crisis has led to many changes in health care rules, including in the Medicare program. Most of the Medicare changes are slated to be temporary, but advocates will need to watch which provisions do and do not remain after the crisis. While a many of the changes affect health care providers, including payment and waivers of certain requirements, our Advocates Guide focuses on Medicare COVID changes that relate to beneficiaries and their access to covered care. Note: This Advocates Guide describes, but does not analyze or critique these changes.
- Read or Download the Guide at: https://www.medicareadvocacy.org/covid-19-an-advocates-guide-to-medicare-changes/
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