CMA Alert – October 10, 2019

1. Center for Medicare Advocacy Analysis of President’s Medicare Advantage Executive Order: Among Vague Language and Proposals, Real Harm to Medicare Beneficiaries 
2. Nursing Home Residents and Therapy Under The New Medicare Reimbursement System
3. Important Update to Nursing Home Compare Will Enable Public to Identify Facilities with a History of Abuse
4. Medicare’s Annual Election Period Starts Next Week – October 15th
5. Free Webinar on New Medicare Reimbursement System For SNFs, October 15 

Center for Medicare Advocacy Analysis of President’s Medicare Advantage Executive Order: Among Vague Language and Proposals, Real Harm to Medicare Beneficiaries

On October 3, 2019, President Trump issued his “Executive Order on Protecting and Improving Medicare for Our Nation’s Seniors” (EO).[1] Much of the language of the EO is vague, and much is unknown about what polices might emerge from it. Some of the proposals are clear in their intent, and would cause clear harm to Medicare beneficiaries. While other proposals are ambiguous in their language, we can generally infer intent based upon previous actions by this Administration. The Center’s analysis of the EO expresses some of our concerns about the impact on Medicare beneficiaries, and the Medicare program in general, if some of the proposals outlined in the President’s Executive Order are implemented. Among other thing, the EO would:

• Exacerbate the Growing Imbalance between Traditional Medicare and Medicare Advantage – Provisions of the EO exacerbate an existing imbalance between traditional Medicare and the Medicare Advantage (MA) program, and demonstrate the Administration’s ongoing efforts to maximize enrollment in, and the scope of, coverage of MA plans. This includes a directive to “ensure that, to the extent permitted by law, FFS [aka traditional, or Original] Medicare is not advantaged or promoted over MA with respect to its administration.” It also promotes Medicare Medical Savings Programs, which would primarily benefit the wealthy, and could erode network adequacy requirements by relying on access to providers through telemedicine.
• Push People Away from Medicare – The EO directs policy changes that would allow people to keep their Social Security retirement benefits, but decline Part A of Medicare, which would incentivize those wealthy enough to self-fund their health care to leave Medicare, eroding the universality of the program and potentially impacting the program’s risk pool. In addition, the EO requires the Medicare program to “remove unnecessary barriers” to private contracting between providers and beneficiaries, which at best would only serve those who could afford to pay for their own care, and at worst, open the door to unfair bargaining advantages and unequal power dynamics between providers and patients.
• Roll-back Important Consumer Protections – the EO would continue this Administration’s efforts to “reduce regulatory burden” which frequently results in weakening consumer protections.

There is much in the President’s Executive Order that is unclear and must be further defined in order to assess its impact. Most of the provisions that are discernable, though, are not consumer friendly. Instead, they are a gift to both the Medicare Advantage insurance industry and beneficiaries who are well off enough to pay for their own health care.

• The Center’s full analysis is available at https://www.medicareadvocacy.org/analysis-of-president’s-medicare-executive-order/

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[1] Available through the White House website at: https://www.whitehouse.gov/presidential-actions/executive-order-protecting-improving-medicare-nations-seniors/ and in the Federal Register at 84 Fed Reg 53573 (Oct. 8, 2019) at: https://www.federalregister.gov/documents/2019/10/08/2019-22073/protecting-and-improving-medicare-for-our-nations-seniors.

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Nursing Home Residents and Therapy Under The New Medicare Reimbursement System

The Centers for Medicare & Medicaid Services (CMS) implemented a new Medicare Part A reimbursement system for skilled nursing facilities (SNFs), called Patient-Driven Payment Model (PDPM), on October 1, 2019.[1] Therapists immediately began reporting that nursing homes and therapy companies were laying them off and demanding that they change their therapy practices, shifting residents from individual therapy to group and concurrent therapy.[2]  Medicare beneficiaries and their advocates need to oppose cutbacks in therapy that deprive them of necessary services. Medicare eligibility and coverage rules for beneficiaries have not changed. Eligibility for Part A coverage in a SNF requires needing and receiving daily skilled care – either skilled nursing services seven days a week or skilled therapy services five days a week.[3] Residents who need therapy and who have therapy services included in their care plans continue to be entitled to receive the medically necessary therapy that is ordered. Medicare continues to cover therapy for improvement and maintenance[4] goals alike.

How the New Payment System Works

Payments for most residents under the most recent system, Resource Utilization Groups (RUGs), were based on the number of minutes of therapy that a resident received.  The more minutes of therapy, the higher the reimbursement rate. CMS, the HHS Office of Inspector General, and the Medicare Payment Advisory Commission (MedPAC) believed that RUGs encouraged overutilization (or at least overbilling) of therapy.[5]

The new reimbursement system explicitly changed the financial incentives. CMS’s own analysis of the impact of the new system, included in the final rules for PDPM that CMS published in 2018, indicated that payments would be higher for residents who did not receive any therapy in the SNF and lower for residents who received all three types of therapy, physical, occupational, and speech therapy.[6]

Under RUGs, 99% of residents received individual therapy.[7] Nevertheless and while recognizing that individual therapy is the preferred method of providing therapy to residents,[8] CMS allows up to 25% of therapy services to be provided in group or concurrent settings under PDPM.[9] In final rules published in 2019, CMS expanded the permissible number of residents in group therapy to six.[10]

What CMS Says about Therapy in the New Payment System

CMS is fully aware that allowing more group and concurrent therapy under PDPM changes the financial incentives for SNFs: “We appreciate the commenters’ concern that the proposed change in the definition of group therapy may give providers an incentive to place the maximum number of patients in a group for financial reasons.”[11]

However, in Frequently Asked Questions, CMS confirms the continuing availability of therapy services under PDPM: “PDPM does not change the care needs of SNF patients, which should be the primary driver of care decisions, including the type, duration, and intensity of skilled therapies, made on behalf of SNF patients.”[12]

The preamble to the 2019 rule also includes several observations that may be useful to residents who are facing changes in their therapy services and to their advocates.

First, CMS confirms that financial considerations should not override clinical judgment, writing in 2019:

As we have stated previously, therapists treating SNF patients should use their own clinical judgment to determine the appropriate frequency, duration, and modality of therapy services and the size of a therapy group based on the individual needs of each patient.  Financial motives should not override the clinical judgment of a therapist or therapy assistant or pressure a therapist or therapy assistant to provide less than appropriate therapy, including putting patients in large groups that are not clinically appropriate for those patients.[13]

Second, CMS announces its “plan to implement a robust monitoring program to assess compliance with the 25 percent cap [on group and concurrent therapy].” Although the 2018 rules had indicated that facilities exceeding the cap would receive only “a non-fatal warning edit,” a “reminder” that it is out of compliance[14] – that is, no consequence for exceeding the cap – the 2019 rule says, “based on our findings [from the robust monitoring program], we may propose taking additional action in future rulemaking.”[15]

What Can Residents and Their Advocates Do?

Residents and their advocates can insist that residents receive the therapy services that are included in their comprehensive person-centered care plans.[16] Residents and their representatives are included in care-planning.[17]

If a facility suggests that group or concurrent therapy is appropriate, residents and their advocates can point to preamble language identifying individual therapy as the primary mode of therapy residents should receive and the need for the therapist to document the appropriateness of non-individual therapy:

[W]hile group therapy can play an important role in SNF patient care, group therapy is not appropriate for either all patients or for all conditions, and is primarily effective as a supplement to individual therapy, which we maintain should be considered the primary therapy mode and standard of care in therapy services provided to SNF residents.  Additionally, we stated that we continue to maintain that when group therapy is used in a SNF, therapists must document its use in order to demonstrate why it is the most appropriate mode of therapy for the patient who is receiving it…because group therapy is not appropriate for either all patients or all conditions, and in order to verify that group therapy is medically necessary and appropriate to the needs of each beneficiary, SNFs should include in the patient’s plan of care an explicit justification for the use of group rather than individual or concurrent therapy. This description should include, but need not be limited to, the specific benefits to that particular patient of including the documented type and amount of group therapy; that is, how the prescribed type and amount of group therapy will meet the patient’s needs and assist the patient in reaching the documented goals. [bold font supplied][18]

On a policy level, advocates need to assure that CMS fulfills its pledge to engage in robust monitoring of facilities’ use of group and concurrent therapy. Early reports of cutbacks in therapists’ hours make monitoring essential.

Residents and their advocates can work with their therapists and professional therapy associations. The national therapy associations – the American Physical Therapy Association (APTA), the American Occupational Therapy Association, and the American Speech-Language-Hearing Association – are closely monitoring implementation of PDPM and, already, jointly providing CMS with stories of therapists’ layoffs and other policy issues related to implementation. A clear one-page statement by APTA confirms that PDPM does not change patient needs or criteria for skilled therapy coverage in SNFs.[19]

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[1] 83 Fed. Reg. 39162, 39183-39265 (Aug. 8, 2018).  See Center for Medicare Advocacy, “Final Rules for New Medicare Reimbursement System for Skilled Nursing Facilities: Goodbye Therapy” (CMA Alert, Aug. 23, 2018).
[2] See  https://www.modernhealthcare.com/payment/therapists-decry-layoffs-amid-snf-reimbursement-overhaul;  Danielle Brown, ‘Therapist advocates sharing layoff concerns with CMS,” McKnight’s Long-Term Care News (Oct. 3, 2019), Alex Kacik, “Therapists look to CMS for aid as SNFs restructure,” Modern Healthcare (not sure of the date; it says Oct. 4 now but I’m quite certain it came out earlier, maybe Oct. 1)https://www.mcknights.com/news/therapist-advocates-sharing-layoff-concerns-with-cms/, Alex Kacik, “Therapists look to CMS for aid as SNFs restructure,” Modern Healthcare.
[3] 42 U.S.C. §1395f(a)(2)(B).
[4] See https://www.medicareadvocacy.org/?s=maintenance&op.x=0&op.y=0.
[5] 83 Fed. Reg. 39162, 39184-39185 (Aug. 8, 2018).
[6] 83 Fed. Reg. 39162, 39257-39259 (Table 37).
[7] 83 Fed. Reg. 39162, 39238.
[8] 83 Fed. Reg. 39162, 39238.
[9] 83 Fed. Reg. 39162, 39237-39243.
[10] 84 Fed. Reg. 38728, 38745-38746 (Aug. 7, 2019).
[11] 84 Fed. Reg. 38728, 38748.
[12] CMS, Patient-Driven Payment Model, Frequently Asked Questions, Question 12.1 (Aug. 27, 2019), https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/PDPM.html (click on Frequently Asked Questions).
[13] 84 Fed. Reg. 2728, 38748.
[14] 83 Fed. Reg. 39162, 39239 (Aug. 8, 2018).
[15] 84 Fed. Reg. 28728, 38748.
[16] 42 C.F.R. §483.21(b).
[17] 42 C.F.R. §483.21(b)(ii)(E).
[18] 84 Fed. Reg. 38728, 38746.
[19] https://www.apta.org/uploadedFiles/APTAorg/Payment/Medicare/Coding_and_Billing/SNF/APTAHandout_PDPM.pdf.

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Important Update to Nursing Home Compare Will Enable Public to Identify Facilities with a History of Abuse

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

On October 7, 2019, the Centers for Medicare & Medicaid Services (CMS) announced changes to Nursing Home Compare that make it easier for residents and families to identify facilities with a history of resident abuse, neglect, or exploitation.

New Icon

Starting on October 23^rd of this year, consumers will see a new icon (a red circle with a hand – at right) on a facility’s Nursing Home Compare profile if that facility has been cited for either or both of the following deficiencies:

1. A harm-level (scope and severity level G or higher) abuse citation on the most recent standard survey cycle or complaint survey within the past 12 months.
2. An abuse citation where residents were found to be potentially harmed (scope and severity level D or higher) on the most recent standard survey cycle or complaint survey within the past 12 months and on the previous standard survey cycle or complaint survey in the prior 12 months.

Additionally, revisions to the Five Star Technical Users’ Guide reveal that facilities meeting either of these criteria will have their health inspection rating “capped at a maximum of two stars . . .  [and that] the best overall quality rating a facility that has received the abuse icon can have is four stars.”

The changes come after several years of increased recognition of, and concern about, nursing home resident abuse. Most recently, the U.S. Senate Committee on Finance held two hearings on resident abuse and federal reports issued this past summer documented persistent, widespread resident abuse across the country.

The Center for Medicare Advocacy and the Long Term Care Community Coalition (LTCCC) thank CMS for taking steps to improve nursing home transparency. Our organizations look forward to working with CMS to ensure that the new icon is beneficial to nursing home residents and their families.

• For more information about addressing resident abuse, as well as resources for tracking and reporting abuse, please see LTCCC’s Abuse, Neglect, and Crime Reporting Center.

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Medicare’s Annual Election Period Starts Next Week – October 15th

The Annual Coordinated Election Period (ACEP), between October 15th and December 7th, is the time period during which Medicare beneficiaries can make coverage elections effective January 1st (this period is often referred to as the Open Enrollment period).

As discussed in previous Alerts here and here, advocates have been concerned about a number of factors affecting this ACEP, including an update to the Medicare Plan Finder (MPF), changes in marketing rules, and new policies taking effect in 2020 that can make it more challenging for consumers to weigh their options (such as new supplemental benefits available to some, but not all enrollees of MA plans, and new Medigap restrictions).

For assistance with exploring options during the ACEP, we encourage beneficiaries to contact their local State Health Insurance Assistance Program (SHIP) – it may have a different name in your state. You can find your local SHIP program by calling 1-877-839-2675 or online online here.

Medicare Plan Finder (MPF) Updates

As discussed in the previous Alerts referenced above, and in various media reports, including a recent Kaiser Health News story, challenges with the new MPF remain – less than a week from the start of the ACEP.

In an email sent to partners on Monday October 7th, the Centers for Medicare & Medicaid Services (CMS) stated that they are continuing to work on improvements to the MPF and have added additional resources to their Plan Finder page on CMS’ National Training website. These new resources include new videos and an Updated Top Q&As.

Contrary to assertions made publicly and in a previous Q&A published on the same website (no longer available), the updated Q&A says that individual drug lists created outside of MyMedicare accounts will not be available, “[b]ecause the previous technology is proprietary.” (The previous Q&A stated “[w]e are working to extend access to any drug lists created in the old Plan Finder through the end of the 2019 Open Enrollment.”) People can still do anonymous drug searches, but they will not be able to save such searches unless they create a MyMedicare account.

The Updated Q&As also includes a “list of improvements that are still planned to be in place by the start of the Open Enrollment on October 15, 2019”:

• Display drug tier costs
• Link directly from MyMedicare.gov to new Plan Finder
• Integrate partial gap coverage into cost sharing
• Adding Original Medicare info and card for comparison
• Add sort option for total cost (plan premium + drug costs)
• Add footnote for excluded drugs
• Maintain filters and SNP selections when using back button
• Add option to add mail order on pharmacy selection page
• Refine the ZIP code entry process
• Show distinction between preferred in-network versus in-network pharmacy on the Costs-by-Phase table
• Add note about over-the-counter drugs to drug lookup page
• Add option to compare a third retail pharmacy when mail order isn’t selected
• Improve Print Format
• Various backend technical updates to prepare for display of 2020 plans

CMS notes that feedback on the new Plan Finder can be emailed to eMedicare@cms.hhs.gov.

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Free Webinar about the New Medicare Payment System For SNFs

The Long Term Care Community Coalition is hosting a webinar on Medicare’s new payment system for skilled nursing facilities, Patient-Driven Payment Model (PDPM) on Tuesday, October 15, 2019, at 1:00 p.m. The Center for Medicare Advocacy’s Senior Policy Attorney Toby S. Edelman will discuss how the new system works and what it means for residents.

• For more information about this webinar, including how to attend, please visit: https://nursinghome411.org/upcoming-webinars-nursing-home-care-resident-centered-advocacy/.

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