Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

Issue Brief 77, October 2022 | Home Health Updates & Other Issues

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HOME HEALTH UPDATE    

Center for Medicare Advocacy Sues on Behalf of Medicare Beneficiaries Seeking Fair Access to Home Health Care

After years of fruitless efforts to ensure Medicare beneficiaries can receive Medicare-covered home health care in general, and aide services in particular, the Center for Medicare Advocacy filed a lawsuit on October 6, 2022 representing Medicare beneficiaries who rely on home health aide services to live safely in their communities. Tens of thousands of older and disabled people are estimated to need and qualify for these Medicare-covered home care services. Medicare-covered home health aide visits declined by 90% from 1998 to 2019.

The case was filed in federal district court for the District of Columbia as a class action against the Secretary of Health and Human Services for failing to properly administer the Medicare home health benefit. 

The plaintiffs are three individuals (Catherine Johnson, Katherine Vaczi and Cara Bunnell) and two organizations (National Multiple Sclerosis Society and Team Gleason). While Medicare law authorizes coverage for up to 35 hours per week of home health aide services for personal, hands-on care, the plaintiffs have struggled to obtain anywhere close to that. Although they need and qualify for Medicare-covered home health aides, they have received either very minimal or no such aide services at all. They face serious health consequences as a result. 

Plaintiffs challenge the Secretary’s policies and practices that violate Medicare law, as well as Section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability. Section 504 imposes a duty on federal agencies to avoid unjustified institutionalization of people with disabilities. Plaintiffs seek changes to address these violations that will remove barriers to necessary, Medicare-covered home health aide care for individuals who qualify under law.

Read the Complaint in Johnson v. Becerra, No. 1:22-cv-03024.  Also see the accompanying press release (Oct. 6, 2022).

MEDICAID ELIGIBILITY:  PROPOSED RULE INCLUDING MEDICARE SAVINGS PROGRAMS

Guest Presenter: Amber Christ, Managing Director, Health Advocacy at Justice in Aging

On September 7, 2022, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule titled “Streamlining the Medicaid, Children’s Health Insurance Program, and Basic Health Program Application, Eligibility Determination, Enrollment, and Renewal Processes” (CMS-2421-P), at 87 Fed. Reg. 54760, available here.  CMS also published Fact Sheet about the rule on August 31, 2022, available here.  Among other things, the proposed rule would streamline application and enrollment regarding Medicare Savings Programs (MSPs).  Comments are due November 7, 2022.

  1. NURSING FACILITY UPDATE

President Biden’s nursing home reform agenda (Feb. 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/, includes more than 20 issues. 

Key issue: Nurse Staffing.  Biden Reform Agenda says:

Establish a Minimum Nursing Home Staffing Requirement. The adequacy of a nursing home’s staffing is the measure most closely linked to the quality of care residents receive. For example, a recent study of one state’s nursing facilities found that increasing registered nurse staffing by just 20 minutes per resident day was associated with 22% fewer confirmed cases of COVID-19 and 26% fewer COVID-19 deaths. CMS intends to propose minimum standards for staffing adequacy that nursing homes must meet. CMS will conduct a new research study to determine the level and type of staffing needed to ensure safe and quality care and will issue proposed rules within one year. Establishing a minimum staffing level ensures that all nursing home residents are provided safe, quality care, and that workers have the support they need to provide high-quality care. Nursing homes will be held accountable if they fail to meet this standard.

Staffing study is underway.  Abt is going to 75 nursing facilities for site visits.  But CMS, for now, has cancelled the simulation study by Jack Schnelle, et al.

Nursing home industry’s response to staffing is to call for (i) immigration reform, (2) amending the Nursing Home Reform Law (1987) to end automatic two-year ban on facilities’ being able to conduct their own nurse aide training program if they have certain levels of civil money penalties imposed or are granted nurse staffing waivers, and (3) extension of temporary nurse aide program.

Temporary Nurse Aide

March 2020: CMs issued a blanket waiver of nurse aide training requirements, 42 C.F.R. §§483.35(d), 483.151-.154, allowing nursing facilities to use for more than four months, as aides, people who had not completed their states’ mandatory nurse aide training program (federal minimum, 75 hours of training).

March 2020: The American Health Care Association (AHCA) created 8-hour on-line training program for temporary nurse aides, which multiple states accepted as sufficient. “Who’s Providing Care for Nursing Home Residents? Nurse Aide Training Requirements during the Coronavirus Pandemic” (CMA Report, Jul. 23, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/07/Report-Nurse-Aide-Training.pdf

April 2021: CMS advised that when it lifted the waiver of nurse aide training requirements, aides would have four months to complete their states’ required training.  CMS also, gratuitously, suggested that “states evaluate their NATCEP [nurse aide training and competency evaluation program] and consider allowing some of the time worked by the nurse aides during the PHE [public health emergency] to count toward the 75-hour training requirement.”  CMS, “Updates to Long-Term Care (LTC) Emergency Regulatory Waivers issued in response to COVID-19,” QSO-21-17-NH (Apr. 8, 2021),  https://www.cms.gov/files/document/qso-21-17-nh.pdf.  In other words, CMS suggested that states might want to count time worked as if it were time in training.  

AHCA has repeatedly asked for reinstatement of the blanket waiver.  August 9, 2022 letter from AHCA President and CEO Mark Parkinson to HHS Secretary Xavier Becerra, https://www.ahcancal.org/News-and-Communications/Fact-Sheets/Letters/AHCA-NCAL-Letter-HHS-Aug2022.pdf; AHCA, “AHCA/NCAL Urges CMS to Reissue Blanket Waiver to Help Temporary Nurse Aides” (Press Release, Oct. 3, 2022), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Urges-CMS-to-Reissue-Blanket-Waiver-to-Help-Temporary-Nurse-Aides.aspx

April 2022: CMS lifted the nurse aide training waiver, requiring aides hired after April 7, 2022 to complete training and testing by October 6, 2022.   CMS, “Update to COVID-19 Emergency Declaration Blanket Waivers for Specific Providers,” QSO-22-15-NH & NLTC & LSC (Apr. 7, 2022), https://www.cms.gov/files/document/qso-22-15-nh-nltc-lsc.pdf.  In lifting the waiver, CMS recognized that blanket waivers “removed the minimum standards for quality that help ensure residents’ health and safety are protected.”  CMS expressed concern that waiver of nurse aide training rules, in particular, contributed to “significant concerns with resident care that are unrelated to infection control (e.g., abuse, weight-loss, depression, pressure ulcers, etc.).”  These care concerns were identified in on-site surveys.

August 29, 2022: New CMS guidance allowed waivers of aide training requirements on a facility, state, or county basis.  CMS, “Update to COVID-19 Emergency Declaration Blanket Waivers for Specific Providers,” QSO-22-15-NH & NLTC & LSC (Apr. 7, 2022, revised 8/29/2022), https://www.cms.gov/files/document/qso-22-15-nh-nltc-lsc-revised.pdf; see “CMS Authorizes New Waivers of Nurse Aide Training Requirements for Nursing Facilities” (CMA Alert, Sep. 1, 2022), https://medicareadvocacy.org/cms-authorizes-new-waivers-of-nurse-aide-training-requirements-for-nursing-facilities/

October 7, 2022: McKnight’s Long-Term Care News reported that 15 states have been granted statewide waivers: Georgia, Indiana, Louisiana, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, and Washington.  Kimberly Marselas, “States get needed nurse aide waiver relief but workers’ fates uncertain,” McKnight’s Long-Term Care News (Oct. 7, 2022), https://www.mcknights.com/news/states-get-needed-nurse-aide-waiver-relief-but-workers-fates-uncertain/

October 7, 2022: Center for Medicare Advocacy asked CMS to identify which states and facilities applied for waivers, how many were granted, how many were denied, and CMS criteria for deciding waiver applications.  CMS’s answer: 

There’s not really anything else we can say that wasn’t already reported in the McKnight’s article this morning.  Also, the criteria is the same as what is listed in the QSO memo you reference below (e.g., states need to provide documentation of their backlog and a plan to clear it). We continue to push for all aides to be trained, tested, and certified according to the requirements. A waiver is available if there are barriers to certification, and evidence of the barrier must be submitted along with the waiver request.

  1. MEDICARE ADVANTAGE UPDATES  

CMS’ Medicare Advantage Request for Information (RFI)

On August 1, 2022, the Centers for Medicare & Medicaid Services (CMS) published a Request for Information (RFI) that “seeks input from the public regarding various aspects of the Medicare Advantage program. Responses to this request for information may be used to inform potential future rulemaking or other policy development.” The RFI can be accessed from the Federal Register here.  Comments were due August 31, 2022.  A link to the Center’s submitted comments is available here.  

Medicare Advantage Denials

As discussed during the last Alliance call and in a recent CMA Alert (August 25, 2022), we have seen an alarming increase in complaints from Medicare Advantage enrollees who, despite requiring skilled nursing facility (“SNF”) care, receive Notices of Medicare Non-Coverage (“NOMNCs”) stating that their Medicare Advantage plan has decided to terminate coverage of their SNF care.  Although these patients frequently win expedited appeals of the Medicare coverage denials, their Medicare Advantage plans often respond by issuing a new NOMNC within several days after losing the first appeal, essentially starting the coverage denial process over again and forcing enrollees and their families to respond to a barrage of routine coverage denials. These denials conflict with the opinions of the beneficiaries’ providers, the skilled nursing and/or skilled therapy required, and the total condition of the patient. Discharge plans are rarely in place.

On October 4, 2022, Kaiser Health News published an article by Susan Jaffe titled “Nursing Home Surprise: Advantage Plans May Shorten Stays to Less Time Than Medicare Covers” which addresses this issue.  The article highlights one of the Center’s clients, quotes our attorney Eric Krupa, and links to a grievance form created by Center attorney Justin Lalor, cited in our last Alliance brief, which can be used to contest multiple denials issued by MA plans (download the form and instructions at https://medicareadvocacy.org/wp-content/uploads/2022/08/MA-Grievance-Form.docx).

Another recent and notable article about Medicare Advantage was published in the New York Times, ‘The Cash Monster Was Insatiable’: How Insurers Exploited Medicare for Billions” (Oct. 8, 2022) by Reed Abelson and Margot Sanger-Katz, which focuses on “how major health insurers exploited the [Medicare] program to inflate their profits by billions of dollars.”

Kaiser Family Foundation Report

As discussed in a recent CMA Alert (Sept, 21, 2022), the Kaiser Family Foundation (KFF) released a report on September 16, 2022 titled Beneficiary Experience, Affordability, Utilization, and Quality in Medicare Advantage and Traditional Medicare: A Review of the Literature.  The report reviewed 62 studies published since 2016 that compare Medicare Advantage (MA) and traditional Medicare  on a number of measures, including “beneficiary experience, affordability, utilization, and quality [and] finds few differences that are supported by strong evidence or have been replicated across multiple studies” according to a press release accompanying the report.

Overall, the authors noted that “[w]e found few differences between Medicare Advantage and traditional Medicare that are supported by strong evidence or have been replicated across multiple studies.”  The report did highlight areas in which MA does better and areas in which it does worse, than traditional Medicare.

As summarized in our CMA Alert (linked above) MA appears to perform worse than traditional Medicare in certain areas, including:

  • Switching from MA to TM: “rates of switching from Medicare Advantage to traditional Medicare were relatively higher among beneficiaries who are dually eligible for Medicare and Medicaid, beneficiaries of color, beneficiaries in rural areas, and following the onset of a functional impairment. Switching rates may be a proxy for dissatisfaction with current coverage arrangements.”
  • Post-Acute Care: “lower rates of skilled nursing facility (SNF), inpatient rehabilitation facility (IRF), and home health use among Medicare Advantage enrollees, and shorter lengths of stay in SNFs and IRFs for Medicare Advantage enrollees than traditional Medicare beneficiaries”
  • Quality of Providers: “Medicare Advantage enrollees were less likely than traditional Medicare beneficiaries to receive care in the highest-or lowest-rated hospitals overall or in the highest-rated hospitals for cancer care, skilled nursing facilities (SNFs), and home health agencies.”  
  • Affordability: “a somewhat larger share of Medicare Advantage enrollees than traditional Medicare beneficiaries experienced a cost-related problem, mainly due to lower rates of cost-related problems among traditional Medicare beneficiaries with supplemental coverage […]  Medicare Advantage enrollees who are Black, under age 65 with disabilities, or in fair or poor health were more likely to report cost-related problems than their traditional Medicare counterparts.”

Medicare & You 2023 – Continues to Reverse Bias Towards, and More Accurately Describes, Medicare Advantage

As discussed in a recent CMA Alert (Sept. 28, 2022), starting in the Fall of 2017, the Center for Medicare Advocacy (the Center) and other advocacy organizations began to highlight that, in a marked change from previous practice, the Trump Administration’s Centers for Medicare & Medicaid Services’ (CMS) outreach and enrollment materials actively promoted enrollment in private Medicare Advantage (MA) plans, while downplaying the drawbacks of such plans, and omitting key information.  This included descriptions in the Medicare & You Handbook.

Last year, we were encouraged by the current Administration’s efforts to begin to reverse this trend of bias towards MA in the 2022 Handbook, as discussed in this 2021 Center report.  CMS recently released the 2023 edition of Medicare & You, available here. Based on our analysis of the 2023 version, we are pleased to report that the 2023 Handbook continues to improve with respect to eliminating bias towards MA by more accurately describing MA, including with respect to issues the Center flagged in the 2022 version. These changes help to restore the Handbook as an objective resource with accurate and unbiased information for Medicare beneficiaries.  For further analysis, our CMA Alert.

Recent Reports by Office of Inspector General (OIG) and General Accounting Office (GAO)

Since the beginning of the COVID-19 pandemic in 2020, almost 96.5 million people living in the United States have been infected and over one million have lost their lives to the disease.[1] In an effort to shield older adults and people with disabilities from needless exposure to COVID and potentially reduce the spread, the Centers for Medicare & Medicaid Services (CMS) employed waivers and flexibilities around the use of telehealth services. It resulted in an approximate 6,000% increase in the use of telehealth by Medicare beneficiaries from 2019 to 2020. More than 40% of beneficiaries accessed these services during the first year of the pandemic.[2]

The Office of Inspector General (OIG) and General Accounting Office (GAO) released reports examining the impacts of the telehealth waivers and flexibilities to provide to provide recommendations that can help policymakers and stakeholders consider changes to telehealth policies.

OIG’s first report examined which Medicare beneficiaries were more likely to use telehealth services during the first year of the pandemic.

It found:

  • Hispanic beneficiaries were more likely than any other group to use telehealth regardless of whether the beneficiaries lived in rural or urban areas, or whether or not they were dually eligible (23% Hispanic compared to 21% Black and 19% White)
  • Female beneficiaries were more likely than male beneficiaries to use telehealth (46% compared to 39%)
  • Older beneficiaries were more likely to use audio-only services, as were dually eligible and Hispanic beneficiaries (23% of beneficiaries 75 and older, compared to 16% of those between 65-74).[3]

OIG’s second report and the GAO’s report focused on the need for greater oversight of telehealth services to protect against fraud, waste, and abuse.

OIG found 1,714 providers whose telehealth billing practices pose a high risk to Medicare.[4] Those providers billed for telehealth services for about half a million beneficiaries amounting to $127.7 million in Medicare payments. Furthermore, more than half of the high-risk providers were part a medical practice with at least one other provider whose billing also poses a high risk to Medicare. OIG determined this could indicate that certain practices are encouraging this type of billing. Additionally, 41 of the high-risk billing providers appear to be associated with telehealth companies (i.e., companies that employ practitioners to provide on-demand telehealth services to beneficiaries).

The GAO recommended CMS develop an additional billing modifier or clarify its guidance regarding billing of audio-only office visits to allow the agency to fully track these visits. Additionally, the agency recommended CMS require providers to use available site of service codes to indicate when Medicare telehealth services are delivered to beneficiaries in their homes. The GAO also recommended that Health and Human Services Office of Civil Rights provide additional education and assistance to providers to help them explain the privacy and security risks to patients when using video telehealth platforms in layman’s terms.[5]

The Center published its own report about Medicare beneficiary access to telehealth services, along with policy recommendations. You can find that report here.

Section 1557

The Center for Medicare Advocacy recently submitted comments in support of rulemaking on Nondiscrimination in Health Programs and Activities, the proposals would restore critical nondiscrimination protections the previous administration rolled back. Comments were due on October 3, 2022.

Section 1557 of the Affordable Care Act bars discrimination on the basis of race, color, national origin, sex, age, and disability in certain health programs and activities. The Trump administration gutted Section 1557’s regulations in several ways, including the elimination of notice and tagline requirements for people with limited English proficiency (LEP). Those language access requirements helped reduce health disparities in communities of color and immigrant communities by ensuring that LEP patients understood medical information and instructions.

The Center for Medicare Advocacy partnered with Justice in Aging in challenging the elimination of those key protections in a lawsuit filed on behalf of two community-based organizations that serve LEP older adults. OCR’s notice of proposed rulemaking cites the lawsuit in its analysis, and states that the proposed rule would “help restore consistency in language assistance procedural requirements and provide certainty to covered entities and consumers about what covered entities’ obligations are and what rights consumers have.”

The proposed rule also affirms protections against discrimination on the basis of sexual orientation and gender identity, and expands the scope of the rule to cover more health-related programs and services. After decades of exclusion, it includes Medicare Part B payments in the definition of “federal financial assistance,” expanding the coverage of civil rights protections within the Medicare program.

The Center for Medicare Advocacy applauds this important step in restoring and strengthening vital protections against discrimination in health care.

Public Charge

The Department of Homeland Security (DHS) issued a final public charge immigration rule that greatly improves protections for immigrant families. We thank the Biden Administration for confirming in the final rule that eligible immigrant families can enroll in Medicaid and other nutrition, and housing programs without fear of negative public charge consequences. According to DHS the final rule will be effective on December 23, 2022. This 2022 final rule replaces the harmful and discriminatory 2019 rule that was finalized under the Trump Administration on August 14, 2019. The 2019 final rule is no longer in effect.

The Center for Medicare Advocacy has joined with other advocacy organizations to push back against the harmful 2019 rule for years, including by commenting on the proposal and joining in filing amicus briefs in several lawsuits challenging the 2019 rule. The 2019 rule represented a drastic change in how applicants for lawful permanent residency (green cards) were evaluated; it was particularly troubling because of the impact on older immigrants, including those who are dually eligible for Medicare and Medicaid. Under the 2019 rule, the definition of “public charge” was expanded so that use of programs that are often vital to the livelihood of older adults, such as Medicaid, SNAP (food stamps), or housing benefits, could jeopardize the pathway to a green card.

As The Center wrote in a previous statement, “The [2019] public charge rule was essentially a wealth test on lawful immigration that ran contrary to decades of settled law and the immigration priorities of the United States. It discouraged family unification and forced families to choose between health care, food, housing, and a future in the United States. Older adults and people with disabilities were particularly disadvantaged because factors such as age, health, income and employability were used to evaluate and deny green card applications under the rule.”

The DHS press release for the 2022 final rule includes the below summary:

Under this rule, as under the 1999 Interim Field Guidance that was in place for most of the past two decades, a noncitizen would be considered likely to become a public charge if DHS determines that they are likely to become primarily dependent on the government for subsistence. This determination will be based on:

  • The noncitizen’s “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the Immigration and Nationality Act (INA);
  • The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required; and
  • The noncitizen’s prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.

DHS will not consider in public charge determinations benefits received by family members other than the applicant. DHS will also not consider receipt of certain non-cash benefits for which noncitizens may be eligible. These benefits include: Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

For Additional Resources and Background Information please visit:

LITIGATION UPDATE

  • (Beneficiary Appeals of Observation Status). In November 2011, the Center for Medicare Advocacy and Justice in Aging filed a proposed class action lawsuit on behalf of individuals who have been denied Medicare Part A coverage of hospital and nursing home stays because their care in the hospital was considered “outpatient observation” rather than an inpatient admission. When hospital patients are placed on observation status, they are labeled “outpatients,” even though they are often on a regular hospital floor for many days, receiving the same care as inpatients.  Because patients must be hospitalized as inpatients for three consecutive days to receive Medicare Part A coverage of post-hospital nursing home care, people on observation status do not have access to nursing home coverage.  They must either privately pay the high cost of nursing care or forgo that skilled care.  The number of people placed on observation status has greatly increased in recent years, as CMS has strictly enforced its definition of which services hospitals should bill as inpatient/Part A and which services they should bill as observation/Part B. However, CMS has not allowed beneficiaries to appeal the issue of whether their hospitalizations should be classified as observation or as inpatient for Medicare coverage purposes.

After, a federal judge in Connecticut granted the government’s motion to dismiss the lawsuit, plaintiffs appealed, limited to the issue of the right to an effective notice and review procedure for beneficiaries placed on observation status. In January 2015, the U.S. Court of Appeals for the Second Circuit decided that Medicare patients who are placed on observation status in hospitals may have an interest, protected by the Constitution, in challenging that classification.  The panel held that the district court erred when it dismissed the plaintiffs’ due process claims, and it sent the case back to that court for further proceedings.  Barrows v. Burwell, 777 F.3d 106 (2d Cir. 2015).

Substantial motion practice and more discovery occurred (for details see previous issue briefs). The law firm of Wilson Sonsini Goodrich & Rosati joined as representatives of the plaintiffs during this phase and has provide extraordinary and invaluable pro bono assistance. A bench trial on the merits of the due process issue was then held in August 2019.  The plaintiffs presented several witness who were affected by observation status, an expert witness, and also several witnesses from the government. The government also examined several witnesses from CMS as well as their own expert. The parties then submitted post-trial briefing.

In March 2020, the trial court issued a decision. Alexander v. Azar, — F. Supp. 3d –, 2020 WL 1430089 (D. Conn. Mar. 24, 2020). It held that the Secretary of Health and Human Services violates the Fifth Amendment Due Process Clause by not allowing certain patients to appeal their placement on observation status. Thus, as matter of constitutional due process, patients who are admitted as inpatients by a physician, but whose status is changed to observation by their hospital, have the right to appeal to Medicare and argue for coverage as hospital inpatients. In this ruling, the court held that there is a protected property interest in Medicare Part A coverage, meaning that an individual cannot be deprived of that coverage without procedural safeguards. The court did not, however, find a due process violation for patients whose doctors never order inpatient status, or whose status is switched only from observation to inpatient. It drew a distinction between the actions of doctors and the actions of hospital utilization review staff. The court modified the existing class definition accordingly.

The court ordered that the agency establish an appeals process for class members, under which they can argue that their inpatient admission satisfied the relevant criteria for Part A coverage—for example, that the medical record supported a reasonable expectation of a medically necessary two-midnight stay at the time of the physician’s inpatient order. Patients in the “three-day” portion of the class will be able to pursue these appeals in an expedited manner while still hospitalized. The court also ordered the agency to provide notice of these procedural rights.

In May 2020, the government appealed the district court’s trial decision to the Second Circuit. On January 25, 2022 the Second Circuit affirmed the trial court’s decision and grant of injunctive relief in full and denied the government’s pending stay motion as moot. Barrows v. Becerra, 24 F.4th 116 (2d Cir. 2022). The court found that one of the named plaintiffs who paid over $10,000 for nursing home care after an observation stay had demonstrated Article III standing.  The court also found no abuse of discretion in the trial court’s certification of the class, holding that the class meets the commonality and typicality requirements. It found that it was not an abuse of discretion for the district court to characterize plaintiffs’ protected property interest as the entitlement to Medicare Part A coverage, as opposed to entitlement to admission as inpatients. It found that decisions by hospital personnel to reclassify a patient from inpatient to an outpatient receiving observation services constituted state action. Finally, it conducted an analysis under Mathews v. Eldridge to agree with the trial court that the Secretary violates Due Process by offering no procedural protections for beneficiaries whose status is changed from inpatient to observation through the hospital utilization review process.

The parties have continued to meet and confer regarding implementation, and the district court has ordered the filing of status reports and held status conferences. The government reports that it is implementing the court’s injunction via a Notice of Proposed Rulemaking.

UPDATE: On September 30, 2022, the government filed an estimated timeline for implementation as ordered by the court. It estimated that the Notice of Proposed Rulemaking to implement the appeals ordered by the court will be issued in May 2023, with the public comment period ending July 2023. The status report then describes other implementation processes that will occur before the retrospective and prospective appeals can be utilized.

For answers to frequently asked questions from people who think they may be class members, please see the Center’s website here.

  • Chinatown Service Center v. Cochran, No. 1:21-cv-00331 (D.D.C.) (LEP Protections under Section 1557 of the ACA).  Justice in Aging and the Center for Medicare Advocacy, along with pro bono firm Stinson LLP, filed this case on February 5, 2021 on behalf of two community-based organizations that provide social services to Limited English Proficient (LEP) older adults. In the waning days of the Trump Administration, the federal government eliminated protections for LEP individuals in health care by rolling back regulations that were put in place as part of Section 1557 of the Affordable Care Act. The protections were intended to target health disparities by requiring health plans and other entities to inform patients both of their right to interpretation, and their right to legally challenge discrimination based on language ability. But, in 2020, the Trump Administration issued a rule that eliminated these language access protections (as well as many others affecting LGBTQ people, immigrants, and women). The plaintiffs are asking the court to vacate the 2020 rule and enjoin its implementation.

The parties agreed to stay all proceedings in the matter until July 16, 2021, at which point they filed a joint status report. The court then requested briefing on whether the case should be remanded voluntarily or further stayed based on the administration’s representation that it will be revisiting the Section 1557 regulations and expects to commence a rulemaking proceeding to revise or replace the 2020 rule that eliminated the relevant language access provisions. On August 18, 2021, the government moved for voluntary remand or in the alternative a stay of proceedings. Plaintiffs filed an opposition requesting that if the case is going to be remanded, the rule should be vacated in the meantime to avoid further harm to plaintiffs and others, and that if the case is stayed in the alternative it should be time-limited with reporting requirements. The government’s motion was fully briefed as of October 8.

On October 13, 2021, the court issued an order staying the case until further notice while the Department of Health and Human Services revises the current rule. The court decided to follow the same approach it had followed in a related case, Whitman-Walker Clinic, Inc. v. HHS, No. 20-1630, 2021 WL 4033072 (D.D.C. Sept. 3, 2021), which challenges several aspects of the 2020 rule, and in which the court had found that a stay was appropriate. The court also ordered HHS to provide bi-monthly updates on its proposed rulemaking, starting in November.

The government’s filed status reports on November 30, 2021, January 31, 2022, and March 31, 2022 stating that in continued to expect to issue a Notice of Proposed Rulemaking no later than April 2022. On May 31, 2022, the government filed a status report stating that that it had submitted a draft proposed rule to the Office of Management and Budget. On July 29, 2022 the government filed a status report stating that on July 25, 2022, HHS publicly released a proposed rule implementing Section 1557 of the Affordable Care Act.

UPDATE:  On September 30, 2022, the government’s status report noted that the proposed regulation implementing Section 1557 of the ACA was published in the Federal Register on August 4, 2022, with the public comment period closing on October 3, 2022.

[1] CDC. COVID Data Tracker. (Updated Oct. 7, 2022). Available at: https://covid.cdc.gov/covid-data-tracker/#datatracker-home

[2] OIG. Telehealth was critical for providing services to Medicare Beneficiaries During the First Year of the COVID-19 Pandemic. OEI-02-20-00520 03-15-2022. (March 15, 2022).  https://oig.hhs.gov/oei/reports/OEI-02-20-00520.asp

[3] Ibid.

[4] OIG. Medicare Telehealth Services During the First Year of the Pandemic: Program Integrity Risks. OEI-02-20-00720 09-02-2022. (September 2, 2022). https://oig.hhs.gov/oei/reports/OEI-02-20-00720.asp  

[5] U.S. GAO. Medicare Telehealth: Actions Needed to Strengthen Oversight and Help Providers Educate Patients on Privacy and Security Risks. (Sept. 29, 2022). Available at: https://www.gao.gov/products/gao-22-104454

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