CMA Alert – September 12, 2019

1. Medicare & You 2020 – Better Than Draft, But Room for Improvement
2. More People Went Without Health Insurance in United States in 2018
3. Administrator Verma’s Tweet Sparks Support for Addressing Observation Status
4. Proposed Home Health Rules – Payment Shouldn’t Impede Access
5. Register Now – Free Webinar, September 18 – Skilled Nursing Facility Updates

Medicare & You 2020 – Better Than Draft, But Room for Improvement

The Centers for Medicare & Medicaid Services (CMS) recently posted the Medicare & You 2020 handbook on their website. The Center for Medicare Advocacy (the Center) reviewed the new handbook with an eye toward assessing the balance of information provided about traditional Medicare vs. Medicare Advantage (MA), and the accuracy of information regarding coverage. In short, the handbook has been improved from the draft to the final edition, but there is still room for improvement.

Background

Since Fall 2017, the Center has expressed concerns about CMS materials. The 2018 Medicare & You handbook, along with outreach and enrollment documents, encouraged beneficiaries to choose a private Medicare plan over original Medicare instead of more objectively presenting all enrollment options (see, e.g., here and here). When the draft 2019 Medicare & You handbook (Handbook) was released in May 2018 for stakeholder input, the Center and other beneficiary advocates were alarmed at glaring inaccuracies in the document, which, among other things, continued to steer beneficiaries toward MA plans. As discussed in a previous CMA Alert, the Center joined Justice in Aging and the Medicare Rights Center in writing to CMS about concerns with the draft handbook.

As our organizations asserted at the time, rather than presenting information in an objective and unbiased way, the draft Handbook’s information about traditional Medicare and Medicare Advantage (MA) distorted and mischaracterized facts in serious ways.

In the final version of the 2019 Handbook, as discussed in a previous CMA Alert, CMS addressed the most serious inaccuracies and omissions. More could have been done, however, to ensure a neutral and balanced perspective. Further, while some revisions were made to the 2019 Medicare & You handbook that improved the information comparing traditional Medicare with MA, the Center and others remained concerned about other administration efforts to steer people toward MA plans.

For example, in the fall of 2018 CMS engaged in a targeted email messaging campaign sent to approximately 1.2 million individuals in eight states with messaging that “[e]mphasized extra benefits of MA Plans and promoted Medicare Plan Finder tool to compare all options.” (see CMA Alert). This targeted messaging that emphasized MA included the following:

• “With Medicare Advantage, you can choose the coverage that’s right for you. Pick from a variety of plans to get the benefits that matter to you.
• Get more benefits for your money. Medicare Advantage plans include extra benefits like hearing, vision, and dental coverage.
• 4 out of 5 people pay a premium of less than $50 per month for their Medicare Advantage health and prescription drug plan.”

It was with such MA steering in mind that the Center reviewed the 2020 Medicare & You handbook.

Draft vs. Final 2020 Handbook

Along with a number of other stakeholders, the Center had an opportunity to comment on the draft 2020 handbook earlier this spring. As previously stated, CMS did make several changes, including some of those suggested by the Center and others, that made the comparison between MA and traditional Medicare more balanced.

Comparison Charts

Since 2018, CMS has included a new section toward the beginning of the Handbook that attempts to summarize the different parts of Medicare as well as differences between traditional (referred to as “Original”) Medicare and the MA program. In the 2020 version, this information is on pages 5-8. As with any summary of complex information, there is a risk that oversimplification or shortcuts can lead to incomplete or misleading information. Given recent CMS history, as outlined above, there is a concern that information about MA plans would be presented in the most favorable light, and any downsides of MA would be minimized.

While not all of the Center’s suggestions were adopted, and we believe that these charts can be further improved, here are some examples of how CMS did improve the balance of information in these pages:

• “Your Medicare Options” (page 6) – CMS added the following important clarifications, both of which were missing from the draft version:
  • Under Original Medicare, “Can use any doctor or hospital that takes Medicare, anywhere in the U.S.”
  • Under Medicare Advantage, “In most cases, you’ll need to use doctors who are in the plan’s network.”
• “At a Glance: Original Medicare vs. Medicare Advantage” (pp. 7-8)
  • Under “Doctor and hospital choice” CMS revised the draft language “You can go to any doctor that accepts Medicare.” to the final language “You can go to any doctor or hospital that takes Medicare, anywhere in the U.S.” This better reflects the access provided by traditional Medicare and that MA network restrictions usually apply to all provider types (except for urgent or emergent scenarios) and by geography.
  • Under “Cost” and “Medicare Advantage” CMS revised the draft version, which said “Out-of-pocket costs vary—plans may have low or no out-of-pocket costs.” to now state: “Out-of-pocket costs vary—plans may have lower out-of-pocket costs for certain services.” The draft version was misleading by saying that plans may have “no out-of-pocket costs” – this would only apply to a certain lower-income individuals.
  • Under “Cost” and “Original Medicare” CMS revised the draft language: “There’s no yearly limit on what you pay out-of-pocket.” to the final language: “There’s no yearly limit on what you pay out-of-pocket, unless you have supplemental coverage (like a Medigap policy).” This better reflects the fact that roughly 80% of beneficiaries in traditional Medicare do have Medigap or other supplemental coverage (see, e.g., Kaiser Family Foundation).

New “Scales”

In another attempt to help individuals compare traditional Medicare with MA, CMS has added a new feature to the 2020 handbook. On page 8, CMS alerts readers to look for an image of scales “throughout the book to see comparisons between Original Medicare and Medicare Advantage.”

Subject to the same concerns about oversimplification, or even outright steering towards MA plans, these scales are more problematic than the comparison charts discussed above. The draft 2020 handbook, for example, had 7 such scales, 6 of which were “tipped” towards MA (in other words, the benefits of MA over traditional Medicare were highlighted).

More than just keeping “score” of how many times the scales tip one way or another, the draft bypassed opportunities to either highlight the advantages of traditional Medicare, or add critical, clarifying information. Here are comments on some of the 7 scales in the final version:

• 19 – A scale following a discussion of Health Savings Accounts notes that “A Medicare Advantage Medical Savings Account (MSA) Plan might be an option if you’d like to continue to get benefits through an HSA-like structure. See page 55 for more information.” Given that approximately 6,000 people were enrolled in MSAs in 2018, out of 20.4 million people enrolled in MA plans overall (and over 60 million people with Medicare in 2019), it seems a stretch, at best, to use space to promote this very limited option.
• 29 – A scale following a discussion of costs under Part B of Medicare states “Medicare Advantage Plans have a yearly limit on your out-of-pocket costs for medical services. See page 59 to learn more and to find out what affects your Medicare Advantage Plan costs.” While true regarding “medical services,” CMS should highlight that Part D drug costs are not included as part of “medical services” and do not have an out-of-pocket cap. Further, similar to a revision in the comparison charts highlighted above, CMS should note there that while traditional Medicare has no yearly limit on out-of-pocket expenses, most beneficiaries have supplemental coverage that serves this purpose. As noted above, this would better reflect the fact that roughly 80% of beneficiaries in traditional Medicare have Medigap or some type of supplemental coverage.
• 53 – A scale added to a description of Original Medicare makes a crucial point absent from the scales in the draft version: “If you have Original Medicare, you can see any provider you want that takes Medicare, anywhere in the U.S.” Note that this same point should also appear in at least two other points in the Handbook – around p. 29 when discussing Part B coverage and at p. 48 which discusses Travel (outside U.S.). In addition, a section that describes travel within the U.S. should be added, highlighting that those in Original Medicare can see providers across the country whereas most Medicare Advantage plans limit non-emergency or urgent coverage to a network of providers within a geographic area.
• 56 – A scale appearing in a discussion of Medicare Advantage, similar to the draft version, appropriately notes that “In most cases, you don’t need a referral to see a specialist if you have Original Medicare. See page 51.”

Misc.

At other places in the final Handbook, CMS did make suggested changes that improve the accuracy and balance of information presented. For example, under the Medicare Advantage section on p. 55, the draft version of the introductory paragraph stated that with respect to MA plans, “In most cases, you’ll need to use health care providers who participate in the plan’s network. However, most plans offer out-of-network coverage.” In a seeming acknowledgement that this statement is misleading (because, e.g., in 2019, 64% of MA plans are HMOs, which do not usually offer non-emergency or urgent care out of network, as opposed to PPOs), CMS revised the final language to state: “In most cases, you’ll need to use health care providers who participate in the plan’s network. However, many plans offer out-of-network coverage, but sometimes at a higher cost.”

With respect to several other issues of import to the Center, the final version did add additional language on p. 28 about hospital observation status, highlighting the impact it has on qualifying for Part A coverage of a skilled nursing facility (SNF) stay. On the same page, CMS somewhat revised a section on SNF coverage to reflect the Jimmo settlement by adding “If the skilled nursing facility decides you should be discharged based solely on a lack of improvement, and not because you no longer require skilled nursing or therapy care, you can appeal this decision. See page 92 for your rights when you think you’re being discharged too soon.” CMS did not, however, follow the Center’s suggestion to add similar language to descriptions of the home health benefit at p. 40.

Many other suggestions made by the Center that would improve accuracy and balance were not adopted. For example, the MA discussion at p. 56 “Important – Plans can offer extra benefits” could be read to imply that MA plans provide comprehensive, rather than limited, coverage of services such as vision, hearing and dental, which could easily be tempered by noting that many MA plans offer some payment towards such services.

Conclusion

Given recent history, as evidenced by the targeted email campaign and other efforts described above, it is no longer a given that CMS will issue neutral, unbiased information about beneficiaries’ traditional Medicare and MA options. The final 2020 Medicare & You handbook is improved from the draft, but beneficiaries and advocates should remain vigilant regarding such information as the Open Enrollment season rolls out.

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More People Went Without Health Insurance in United States in 2018

On September 10, 2019 the Census Bureau released the annual national-level income, poverty and health insurance statistics for 2018 in two reports, Income and Poverty in the United States: 2018 and Health Insurance Coverage in the United States: 2018. According to the reports, “the rate and number of people without health insurance increased from 7.9%, or 25.6 million, in 2017 to 8.5%, or 27.5 million, in 2018.” As noted in analysis of these data, this is the first time the number of uninsured has increased since 2010, when the Affordable Care Act (ACA) was passed.

Before the passage of the ACA, more than 15% of Americans lacked coverage. The current reversal in coverage gains reflects this administration’s concerted effort to undermine the ACA. The loss in health insurance is particularly alarming given the positive numbers in the report: the poverty rate continued to fall and the median income remained statistically unchanged. This raises concerns that national health insurance coverage rates could decline even more dramatically if individuals lose employer-based coverage or if the United States goes into a recession.

Additional resources:

• The New York Times: https://www.nytimes.com/2019/09/10/business/economy/health-insurance-poverty-rate-census.html?campaign_id=60&instance_id=0&segment_id=16893&user_id=640682699697168cdcfdf000ecb4ad74&regi_id=52362851ing-news
• Center on Budget and Policy Priorities: https://www.cbpp.org/press/statements/greenstein-more-americans-uninsured-though-progress-on-poverty-continues
• CMA Alerts on ACA sabotage: https://www.medicareadvocacy.org/?s=sabotage&op.x=0&op.y=0

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Administrator Verma’s Tweet Sparks Support for Addressing Observation Status

On August 4, CMS Administrator Seema Verma tweeted that beneficiaries wanting Medicare to pay for their stay at a skilled nursing facility (SNF) should make sure they are first admitted to the hospital for at least three days.[1] Writing, “Govt doesn’t always make sense,” she concludes, “We’re listening to feedback.”

Posted feedback supports addressing the issue of outpatient observation status, which results in the denial of Medicare Part A coverage of stays in SNFs for patients who had been hospitalized for multiple days.[2] For example, Nirav Patel, MD wrote: “No one knows if the patient would require 2 MNs at the time of admission. As a physician u know that diagnoses are not clear at the time of admission. It’s always an educated guess. Better start considering observation MNs towards the 3 MN rule for SNFs.” Robert Lambert, another commenter, wrote, “This needs to change and fast, hurting a lot of families and causing severe economic consequences.”

In a September 6 letter to the Administrator and HHS Secretary Alex Azar, Congressmen Joe Courtney (D, CT) and Glenn Thompson (R, PA) agree with the Administrator that the observation status rule is harmful to Medicare beneficiaries.[3] They describe their bipartisan “Improving Access to Medicare Coverage Act”[4] and cite the HHS Inspector General’s repeated concern that patients are treated differently for purposes of SNF coverage, depending on whether they are classified as inpatients or outpatients during their hospital stays. They note that in July 2019, the Inspector General listed the correction of observation status as one of his top unimplemented recommendations to reduce fraud, waste, and abuse in the Medicare program.[5]

The American Health Care Association’s (AHCA’s) August 26 letter to the Administrator describes observation status as a surprise medical bill for many beneficiaries.[6] AHCA cites (and attached to its letter) the Center for Medicare Advocacy’s legal memorandum (July 2014) that explains why CMS has authority under existing law to include all of a patient’s time in the hospital, regardless of inpatient or outpatient classification, toward meeting the three-day requirement for Medicare Part A coverage of a SNF stay.

The Administration has the authority to fix the problem of observation status. Do it now!

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[1] https://twitter.com/SeemaCMS/status/1158029830056828928?s=03.
[2] See the Center’s information on observation status at https://www.medicareadvocacy.org/?s=observation+status&op.x=0&op.y=0.
[3] https://www.medicareadvocacy.org/wp-content/uploads/2019/09/2019-09-06-CMS-HHS-letter-observation-status.pdf
[4] H.R. 1682, https://www.congress.gov/bill/116th-congress/house-bill/1682/text; S. 753, https://www.congress.gov/bill/116th-congress/senate-bill/753/text.
[5] HHS Inspector General, Solutions to Reduce Fraud, Waste, and Abuse in HHS Programs: OIG’s Top Recommendations, page 2 (Jul. 2019), https://www.oig.hhs.gov/reports-and-publications/compendium/files/compendium2019.pdf.  (“CMS should analyze the potential impacts of counting time spent as an outpatient toward the 3-night requirement for skilled nursing facility (SNF) services so that beneficiaries receiving similar hospital care have similar access to these services.”)
[6] https://www.ahcancal.org/advocacy/solutions/Documents/
8.26.19%20Letter%20to%20CMS%20on%20Obs%20Stays%20Issue.pdf.

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Proposed Home Health Rules – Payment Shouldn’t Impede Access

The Center for Medicare Advocacy (the Center), submitted comments this week regarding the 2020 proposed rules for Medicare home health care. The Center is pleased CMS plans to allow therapist assistants to perform maintenance therapy (therapist assistants are currently allowed to perform improvement therapy), recognizing equal coverage for beneficiaries who need safe and effective therapy to maintain their condition or slow decline.

However, the Center also urged CMS to place the interests of all Medicare beneficiaries at the heart of its payment and quality rules. How providers get paid and measured drives who gets access to care. Payment rules must truly reflect Medicare coverage laws, and advance Congressional intent. Unfortunately, the proposed, and already finalized, payment rules fall short of this standard. The proposed rule includes incentives for home health agencies to provide care for people with prior inpatient stays who need short-term care, and disfavors people with longer-term needs who begin home care from the community or an “outpatient” hospital observation stay.

We urge CMS to recall these payment rules and consider the collective impact of home health payment rules and quality measures on all Medicare beneficiaries. New rules should be proposed that encourage access to home health care for all people who qualify under the law, for all services covered under the law. This includes consideration of how traditional Medicare home health payments are subsidizing Medicare Advantage payments to home health agencies.

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Free Webinar: Skilled Nursing Facility Updates

Wednesday, September 18, 2019 3:00 PM – 4:00 PM EDT

The webinar will provide an overview of Nursing Home Quality of Care & Quality of Life Standards from a consumer perspective.

Presenters: Center for Medicare Advocacy Senior Policy Attorney Toby Edelman and Policy Attorney Dara Valanejad, with special guests Eric Carlson, Justice In Aging Directing Attorney, and Richard J. Mollot, Executive Director of the Long Term Care Community Coalition.

Register now for this and the rest of CMA’s 2019-2020 Webinar series at:

https://www.medicareadvocacy.org/webinars

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