- Payment V. Coverage – Access To Care Threats
During the last several months, the Center for Medicare Advocacy has been drawing attention to changes in two new Medicare payment systems that pose significant threats to beneficiaries’ access to care:
- The Patient Driven Payment Model (PDPM) for Skilled Nursing Facility care (effective October 1, 2019) and;
- The Patient Driven Groupings Payment Model (PDGM) for Home Health care (effective January 1, 2020);
While there has been no reduction in Medicare coverage under the law for these care settings, the new payment models have changed financial incentives for providers. In turn, these payment changes are leading to diminished access to certain kinds of care and for certain kinds of individuals.
In just the first week of 2020 – the first few days of the new home health payment system (PDGM) – the Center heard from beneficiaries whose home health care is being terminated or reduced “due to Medicare’s new 2020 rules”. Individuals who contacted the Center had been told by their home health agencies that:
- Suprapubic catheter care is no longer covered, or must be cut back. [Note: this is specifically defined as a skilled service in the Medicare regulations, at 42 C.F.R. §409.33(b)];
- Medicare closed a loophole for Jan 1, so your care will no longer be provided after the mid-Jan 2020 cert. period;
- You have to choose between 2 PT and 1 HH aide per week or 1PT and 2 HH aides per week;
- Medicare will no longer pay for more than 1 HH aide per week;
- It’s not fair for us to provide you 2 baths per week. That’s more than most people get;
- If you haven’t had a prior inpatient hospital stay we have to bill through Part B and you will owe a 20% co-pay;
- We aren’t paid sufficiently to continue your care;
- We have to be stewards of the Medicare trust fund;
- And so forth.
Most of the people contacting the Center have been receiving Medicare-covered home care, are clearly homebound, and in need of skilled care. They qualify for Medicare home health coverage. In response to these repeated calls for help, the Center produced a new Home Health Practice Guide (January 7, 2020)
For assistance obtaining, or maintaining, Medicare-covered home health services, contact the Center for Medicare Advocacy at HomeHealth@MedicareAdvocacy.org.
- Overview of Payment Models: The following is a compilation of changes to the home health and skilled nursing facility Medicare payment systems. Some of this material has appeared in previous Medicare Advocates Alliance Issue Briefs.
- Home Health Overview
The Impact of the Patient Driven Groupings Payment Model (PDGM) on Delivery of Medicare Home Health Services (effective January 1, 2020)
The new home health prospective payment system (PDGM) purports to shift the focus from volume of services to a more patient-driven model that relies on patient characteristics. Unfortunately, the Center believes that services to beneficiaries who are most in need, people with complex, longer-term and chronic conditions who are already unable to access the care they need, will be faced with even greater barriers to care under PDGM. Simply put, PDGM is not guided by the needs of patients. It will exacerbate an existing crisis in access to home care for people most in need.
As the Center has stated previously, over recent decades, Medicare payment incentives, not patient needs, have driven the delivery of care as providers seek to maximize income. Thus PDGM, based on prior care delivery patterns, will not be aligned with actual patient needs. The data will not show what patients really need, only what was delivered as a result of past payment incentives.
Home health care agencies have been encouraged by Medicare payment and quality policies to serve patients who will provide the greatest profit margin, and whose conditions will improve, while stinting on care to “less profitable” patients, with longer-term and chronic conditions. The PDGM will further exacerbate this problem, creating additional incentives to provide care to beneficiaries with short-term, improvement goals. As lead counsel in Jimmo v. Sebelius, the case that confirmed Medicare determinations should turn on the need for skilled care, not on an individual’s ability to improve, we continue to strenuously object to the PDGM. Given the imminent implementation of PDGM, however, the Center has urged CMS to closely monitor the barriers to care that will quickly emerge in addition to the access problems that already limit care under the PPS.
The Center for Medicare Advocacy is concerned that PDGM will further steer home health agencies away from providing care for beneficiaries who need it the most and toward beneficiaries with short-term post-acute care needs.
Based on our experience representing thousands of Medicare home health patients for over 30 years, the Center concludes PDGM will harm beneficiaries, as summarized below:
- Beginning in 2020, payments to home health agencies under the new model will provide higher payments for individuals who are admitted to home care after an inpatient hospital or skilled nursing facility (SNF) stay and lower payments for those who start home health from the community – which will include hospital patients in Observation Status. This will likely diminish access to care for many beneficiaries and reduce the care provided to others.
- Fewer therapy visits will be provided to beneficiaries because therapy service utilization thresholds will be removed under the new payment model. More than 42% of for-profit home health agencies expect therapy to decrease by more than 10%.
- As in other care settings, therapy provided by therapist assistants will be coverable for home care beneficiaries who need maintenance therapy as well as for those who can improve. However, CMS should clarify that therapy for maintenance and improvement must be equally available as needed from qualified therapists, not just assistants.
- Eliminating split-percentage provider payments (partial payment at the beginning of a period of care, and remaining payment at the end), will push smaller home health agencies out of the market if, unlike large home health entities, they cannot afford to wait until after care is provided to receive payments. (Effective in 2021)
- Publicizing “value-based” payment statistics, when that data only includes patients who improve, will broadcast skewed, inaccurate information.
- The description of PDGM, is misleading and inaccurate. It is not, in any meaningful way, “shifting the focus from volume of services to a more patient-driven model that relies on patient characteristics”, as CMS has stated. CMS gives only token weighting to patient characteristics in PDGM. For example, an agency may receive as much as 60% higher payment for a beneficiary with an “early, institutional” admission to home care than for a beneficiary who avoided hospitalization, with a “late, community” admission to home care, regardless of services needed by either beneficiary. In another example, an agency may receive as much as 25% higher payment for a beneficiary admitted to home care from an institution than for a beneficiary admitted from the community, regardless of services needed by either beneficiary. Under PDGM, payment incentives are high for agencies to serve beneficiaries with short-term post-acute needs and not to serve beneficiaries with chronic long-term needs.
- The fixed dollar loss ratio that determines outlier case payments will be re-adjusted to maintain the 2.5% cap of all payments. Since 2010, outlier payments (for more significant levels of care) have been cut by more than a billion dollars. Most of the reductions have resulted in care not being provided for those who have significant needs.
- PDGM, the home health payment system for traditional Medicare beneficiaries will likely subsidize low Medicare Advantage (MA) plan payments since home health agencies often lose money when providing care to MA enrollees.
- Implementing prior authorization for home infusion therapy, or any home health service, would be a duplication of physician effort (who have already determined the care is reasonable and necessary), result in delay of care, and often lead to a prior denial for legitimate care.
- PDGM will worsen concerns regarding inequities in available care. Consideration of social determinants of health will be more meaningful when CMS develops a payment system that does not discriminate on the basis of illness or injury and when CMS does not allow agencies to cherry-pick beneficiaries based on inequitable policies.
As we have stated previously, for too long home health agencies have been able to limit access to care for certain beneficiaries and provide less care than is needed and ordered by patients’ physicians. The Center for Medicare Advocacy fears this situation will worsen under the proposed rules.
- Beneficiaries who were not recent inpatients and/or need more than 30 days of home health care will experience even greater problems accessing care than currently.
- Beneficiaries with longer-term and chronic conditions who are unlikely to improve will continue to experience a decline in the availability of Medicare home care services.
- Beneficiaries with hospital observation stays or emergency room visits will experience a decline in access to home health care, since PDGM treats them as admissions from the community and attaches lower reimbursement rates.
- Beneficiaries who need and qualify for Medicare-covered therapy will receive less therapy.
- Beneficiaries with severe functional impairments and comorbidities will have even greater problems accessing care, as agencies will not receive enough of a payment boost to provide this care.
- Access to home health aide care will continue its precipitous decline and home health aide services for beneficiaries who are not recent inpatients will all but disappear.
- Home health agencies will increase affiliations with companies that provide home health aide services on a private-pay basis.
- The number of not-for-profit home health agencies will further decline.
- Home health agencies will affiliate with inpatient health care institutions, and/or institutions will acquire home health agencies.
- Inpatient health care institutions will refer patients to affiliated home health agencies at a greater rate.
- Home health agencies will only hire sufficient staff to serve “profitable” Medicare beneficiaries – people with short-term and post-institutional care needs.
- Smaller, non-affiliated home health agencies will close or only take private-pay patients.
- Home health agencies will continue to report annualized profits of 16-20% although the budget neutral program update is much lower, while beneficiaries go without care or receive less than is ordered and needed.
While it may be impossible to prove how many people over the past decades have been denied access to the Medicare home health care for which they qualify under the law, it is not difficult to identify who those people are: Individuals with longer-term and chronic conditions who require skilled services to be able to maintain their conditions or slow decline. Most often, they also require and qualify for home health aides to help them get into and out of bed, change positions in bed, go to the bathroom, dress, eat, transfer, obtain catheter and colostomy care, and take certain medications. Such services enable many individuals to live independently in their own homes. While Medicare law covers this care, payment rules often preclude access in practice, because patients with longer-term and chronic conditions provide agencies with minimal profit margins, at best. The proposed rule will worsen this situation and lead to an even greater number of beneficiaries losing access to home care for which they qualify under the law.
2. Payment Models Determine What Care is Provided
Former and current Medicare home health payment systems, (Interim Perspective Payment System, IPS; 1997-1999 and Prospective Payment System, PPS; 2000-present), did not change the type of services patients need, but did change the type of services agencies were willing to provide. Responding, in part, to problems homebound patients faced in accessing therapy, IPS and PPS provided financial incentives to deliver more therapy services. While the past 20 years show agencies delivered more therapy services, the delivery of skilled nursing services and home health aide services plummeted. As reported in the 2018 MedPAC report, since 1997, the average number of visits per 60-day episode of home health care have changed as follows: Skilled nursing from 14.1 to 9.4 (down 33%); home health aides from 13.4 to 1.8 (down 87%); therapy from 3.8 to 7.5 (up 49%).
Payment policies drive what care home health agencies are willing to provide, and to which patients. Through the IPS and PPS payment policies, Medicare changed provider behavior and effectively turned the Medicare home health coverage into a short-term, acute care benefit, despite the law and Congressional intent to allow coverage so long as coverage criteria are met. The proposed PDGM rule continues this march toward making Medicare a short-term home health benefit, contrary to the law.
Significantly, in 1980 Congress repealed a 100 visit cap and prior hospital or SNF requirement for Medicare home health coverage. When Congress developed the IPS and the PPS in the 1997 Balanced Budget Act (BBA), it affirmed this Congressional intent, arranging for payment of longer term home care, thus making it clear that Medicare home health coverage is not intended to be just a short term benefit. Medicare law does not cap reasonable and necessary home care, except for a weekly limit of up to 28-35 hours a week of skilled nursing and home health aide, combined. The law has no duration of time limitation.
For decades, the Center assisted beneficiaries to remain in their homes with necessary, Medicare-covered care. These included individuals like our client Mrs. B., who had multiple sclerosis, lived alone, and needed some skilled nursing and therapy and home health aides. Today, payment policies have made it almost impossible for people like Mrs. B to obtain the care they need to stay home. In particular, the aides that helped her with key personal care is now rarely available through Medicare. Repeatedly, patients are told they can only receive an aide 1-3 times per week and usually only for bathing. Increasingly, patients are also told, however, that they can receive the personal care they need from a parallel, often affiliated, proprietary entity. This situation puts patients who stay at home nonetheless in jeopardy, and forces others into institutions. The lack of access to home health aides is driven by the current payment system that does not increase the episodic payment for providing aides. The proposed payment rule will continue and exacerbate this foolish model, which jeopardizes vulnerable patients and leads to the need for more expensive care.
3. PDGM Will Further Define and Limit Medicare-Covered Home Health Care
When IPS and PPS embraced the concept of a “bundled payment” for all services, the idea was that the payment “bundle” was statistically structured to balance the cost of providing care for less resource intense patients with higher resource intense patients. Thus, care would be provided for everyone who qualified. Such a balance did not occur. The last 20 years has shown that agencies largely adapted their businesses to serve the least resource-intense patients, retaining the full bundled payment, and refusing to serve higher resource-intense patients. For example, we recently spoke with a beneficiary, who was accepted by a home health agency for a weekly hour of physical therapy. The agency will be paid the Medicare bundled payment for services. In order to receive a second hour of physical therapy, however, the agency said she would have to private pay. That second hour of therapy should have been included in the Medicare episodic payment.
Home health care has become a highly profitable business. Ignoring proposals for a cap on industry profits, to return some of the average 16.4% annual margin provided over the past 20 years back to Medicare, CMS has allowed industry profits at the expense of the public, while the most vulnerable Medicare beneficiaries are denied care. While agencies have achieved an average marginal annual profit of 16.4%, program wide payment updates have been minimal. Indeed, of all the health care sectors, home health posted the highest trading multiples for mergers and acquisitions in 2016. Purchase of agencies increased 8% in 2015, and “deal value” increased 121%. Every year a greater percentage of public funding goes to home industry profits and less to patient care. Instead of recognizing this as a major problem for Medicare, taxpayers, and patients, the PDGM accelerates efforts that ignore Medicare coverage laws and further the process of turning Medicare home health coverage into a short-term post-acute care benefit.
4. The PDGM Creates Incentives to Serve Post-Hospital and Short-Term Patients
Regrettably, the PDGM includes two additional, particularly significant payment incentives that will drive agencies to provide care to people who have had recent inpatient stays and/or patients who only need short-term care. While the PDGM includes much smaller payment influences based on functional need level, clinical grouping, and comorbidity group, these additional factors add disincentives to serve people who are most in need of care. If agencies are not required to serve all Medicare beneficiaries who qualify as a requirement to participate in Medicare, agencies will simply serve patients who help maximize profits. Since the vast majority of agencies are proprietary, they are compelled to do so. Services will focus on post-institutional home care for only a month. Patients who need care for more than a month and/or who avoid hospitalizations will have even less access to home care.
CMS and MedPAC analyses show a trend of increasing episodes of care that are not preceded by an inpatient stay and take this trend to be a “a significant potential for overuse.” Instead, policy-makers should recognize that planned changes in the delivery of care have resulted in less inpatient stays and more complex care being provided in outpatient status. People are being admitted as hospital inpatients less often as more and more procedures are performed on an outpatient basis. They need more home care, not less. Further, providing necessary care at home is often preferable for patients and less expensive for Medicare. In addition, CMS’s so-called “outpatient” observation policy categorizes an ever-increasing percent of hospital patients, who would have been considered inpatients in the past, as outpatients. These patients will be further harmed by the PDGM, which will inevitably lead to home care providers preferring to serve people who have had prior inpatient hospital admissions. Yet these same patients need more access to home care than in the past since they cannot qualify for Medicare-covered nursing home care (which requires a prior three-day inpatient hospital stay).
Patients who are able to avoid inpatient stays, or who are categorized as outpatients, should not have their access to home care jeopardized by a lower payment ratio when their care needs are often the same or more intense than patients who have had prior inpatient admissions. The PDGM explanation that, on average, more intense resources are needed post-inpatient is an erroneous rule-of-thumb that will harm many Medicare beneficiaries. The application of such non-patient-centered payment rules will overpay agencies to underserve too many beneficiaries, particularly those with longer-term and debilitating conditions
Home health agencies committed to serving people who need care for longer-term and chronic conditions are already penalized by payment disincentives, through models such as the PPS and HHVBP. They are also punished with lower quality ratings, since many of these patients are not able to improve and they face intimidating audits when they provide care for “too long”, even when patients continue to qualify for care. As a consequence, agencies are increasingly unwilling to provide care for beneficiaries with longer-term and chronic care needs. CMS should develop payment models and quality measures that encourage agencies to serve beneficiaries with the greatest health challenges, not penalize them. Regrettably, the PDGM does the opposite, adding further disincentives to care for patients with serious illnesses and chronic conditions.
5. CMS Should Develop Rules with Equal Incentives to Provide Care for All Who Qualify Under the Law
The Center urges CMS to design payment and quality rules that effectuate Medicare coverage laws and encourage providers to serve all patients The PDGM is heavily weighted towards providing care for the short term is bound to further exacerbate home care access problems for individuals with longer-term and debilitating conditions. It will inevitably hamper implementation of the Jimmo Settlement, which seeks to open Medicare-coverage for skilled maintenance care, and will lead to discrimination against people with disabilities. CMS should rescind this rule and develop systems based on individual functional status and care needs so that providers are encouraged to serve all beneficiaries who qualify for coverage under the law.
- Skilled Nursing Facilities Overview
1. Medicare’s New Skilled Nursing Facility Payment System Alters Access to Care
Medicare’s new reimbursement system for skilled nursing facilities (SNFs), called Patient-Driven Payment Model (PDPM), changed reimbursement rules and the financial incentives for SNFs, effective October 1, 2019. One month after implementation, some of the problems that were predicted as a result of PDPM were already being seen.
The former reimbursement system, Resource Utilization Groups (RUGs), largely paid facilities higher rates, the more therapy they billed for. PDPM, on the other hand, pays more if SNFs provide no therapy at all. Public reports on October 1 indicated, and therapy associations report, that thousands of therapists lost their jobs, or had their hours reduced, across the country.
Due to new payment incentives, it is also now clear that SNFs are changing their admissions practices. Facilities that previously denied admissions to people who use ventilators are now actively recruiting ventilator-dependent residents. Unfortunately, the Center has heard two recent stories that indicate that the facilities recruiting people with ventilators are among the poorest quality facilities in the country. A one-star facility that is on the “candidate” list for the Special Focus Facility program announced, through a press release, that it was now providing ventilator care. In another state, a local ombudsman reported that residents at a poor quality SNF told her they were being moved to another floor to make room for ventilators.
A rush of poor quality SNFs to admit people with ventilators is especially troubling. The New York Times reported in September that drug-resistant infections are prevalent, and deadly, for residents in nursing facilities who use ventilators because of insufficient nursing staff and poor infection control practices. The Centers for Medicare & Medicaid Services reports that, each year, infections in nursing facilities are responsible for 150,000 hospitalizations, 388,000 resident deaths, and health care costs between $673 million and $2 billion.
2. Specific Concerns
Nursing home residents will receive less medically necessary therapy (physical, occupational, and speech).
When the Centers for Medicare & Medicaid Services (CMS) announced the new SNF payment system (PDPM) in final rules published Aug. 8, 2018 (83 Fed. Reg. 39162, 39183-39265), it included Impact Analysis Tables (Table 37, for residents; Table 38, for facilities) that expressly stated that reimbursement under PDPM would be higher for residents receiving no therapy and lower for residents receiving any therapy, especially those receiving all three types of therapy.
Even before October 1, 2019, therapists across the country reported to their professional associations and the media that they were losing their jobs, having their hours reduced, and having their benefits reduced. The provision of therapy by SNFs has already declined.
- Maintenance therapy, which is professional therapy to maintain function or to slow or decline deterioration, will be at special risk.
Jimmo confirmed Medicare coverage of maintenance therapy, but the case has been too often honored in the breach. SNFs will be less likely to provide medically necessary maintenance therapy to residents going forward.
- Facilities will provide group and concurrent therapy, rather than individual therapy (as 99% of therapy was provided under the prior reimbursement system, Resource Utilization Groups-IV).
CMS says that SNFs can provide up to 25% of each therapy discipline as group or concurrent therapy. However, SNFs exceeding the 25% cap will just receive a “non-fatal warning edit” – that is, no consequence at all.
Therapists have told their associations that they have been pressured to switch their clients from individual to group or concurrent therapy.
- SNFs may substitute other types of caregivers for professional therapists, jeopardizing Medicare Part A coverage of the resident’s SNF stay.
Residents may not know they are no longer receiving professional therapy services if a non-therapy staff member provides therapy-like services. However, residents must receive professional therapy services five days a week (or skilled nursing care seven days a week or a combination of the two) in order to qualify for Medicare coverage of their stay. Receiving therapy-like services will not qualify beneficiaries for Medicare coverage.
- SNFs will change their admissions practices to admit Medicare beneficiaries who will bring in higher reimbursement rates.
Trainings for the industry have advised that ventilator patients bring in a higher rate of reimbursement, although SNFs may not have sufficient nursing staff or good infection control practices to provide appropriate care to these highly vulnerable people. (The New York Times reported that drug-resistant infections are prevalent for residents in nursing facilities who use ventilators because of insufficient nursing staff and poor infection control practices. “Matt Richtel, Andrew Jacobs, “Nursing Homes Are a Breeding Ground for a Fatal Fungus, (Sep. 11, 2019), https://www.nytimes.com/2019/09/11/health/nursing-homes-fungus.html?searchResultPosition=7.)
Residents with significant care needs may gain admission to SNFs, but receive poor care and be harmed.
- SNFs may change their assessment practices to increase reimbursement rates.
Trade press articles suggest that identification and treatment of depression can boost Medicare payments by $43 per day and support longer lengths of stay. Similarly, identification of cognitive impairment can raise reimbursement by $21 per day and support longer lengths of stay.
Financial incentives may lead to inaccurate assessments and inappropriate treatments.
- SNFs may discharge residents too soon.
CMS’s Impact Analysis Tables show that residents with lengths of stay exceeding 15 days will bring in lower rates to SNFs. When Medicare coverage ends, residents may go home prematurely.
- Residents may convert to Medicaid more quickly.
With Medicare’s covered length of stay shortened (an intentional and predicted result of PDPM) and residents continuing to need institutional care, residents may turn to Medicaid more quickly. Residents may first need to spend down their private resources until they become financially eligible for Medicaid. Once using Medicaid, they may have greater financial responsibility for their care, under Medicaid cost-sharing requirements, than if they had remained on Medicare. States will also feel the financial impact of additional people relying on Medicaid for long-term care.
- Center Alert (12/20/19): https://www.medicareadvocacy.org/skilled-nursing-facilities-lay-off-therapists-change-therapy-services-what-can-residents-therapists-do/
- Center Alert (12/12/19): https://www.medicareadvocacy.org/patients-need-therapy-medicare-payment-systems-create-barriers/
- Issue Alert: Medicare Skilled Nursing Therapy Under PDPM by Center for Medicare Advocacy and Long Term Care Community Coalition (November 2019): https://nursinghome411.org/issue-alert-medicare-skilled-therapy-under-pdpm/
- 2019 ANNUAL COORDINATED ELECTION – DEBRIEF:
The Annual Coordinated Election Period (ACEP) – the period during which individuals with Medicare can make coverage elections for the following year – ended on December 7, 2019. As discussed during the last two Alliance Calls, there were a number of factors impacting the ACEP, including the introduction of a new Medicare Plan Finder (MPF) and changes in marketing rules that happened at the same time that there are significant Medicare policy changes effective in 2020 that made enrollment decisions even more challenging.
Updated Medicare Plan Finder
As discussed on previous Alliance calls, on August 27, 2019, the same day that the Centers for Medicare and Medicaid Services (CMS) debuted the updated Medicare Plan Finder (MPF) tool, four beneficiary advocacy organizations – the Center for Medicare Advocacy, Justice in Aging, Medicare Rights Center, and the National Council on Aging – sent a joint letter to CMS raising concerns about the roll-out of the new MPF and revisions to the 2020 Medicare Communications and Marketing Guidance (MCMG). The joint letter is available here, and an accompanying press release here.
The groups urged CMS to mitigate any adverse consequences by closely monitoring the roll out and functionality of the new MPF tool, providing enrollment relief as needed, and by rescinding the updated MCMG in its entirety.
In addition to the timing and other MPF challenges identified prior to the ACEP, since the introduction of the updated MPF, there were also been a number of functional problems. These problems included: inaccurate information about covered drugs and costs, non-formulary drugs, dosage options, copays for individuals with the Part D Low Income Subsidy (LIS), problems creating a MyMedicare account and the listing of plan choices by premium rather than total cost.
While CMS addressed some of these problems during the ACEP, challenges persisted and many individuals made coverage decisions based on incomplete or inaccurate information. While those enrolled in MA plans have an additional opportunity to change plans between January and March through the Medicare Advantage Open Enrollment Period, those enrolled in stand-alone PDPs do not have such options. Further, problems might not arise or be identified until later in the year.
As discussed below, individuals who rely on bad information to their detriment might be able to utilize a Special Enrollment Period (SEP) right to change to a different plan. The Centers for Medicare & Medicaid Services (CMS), however, has failed to publicly acknowledge these MPF problems, which could deter individuals from knowing about and seeking relief through an SEP.
In the November 27 CMS blog entitled “We’re Heading into the Last Week of Medicare Open Enrollment – Don’t Miss Out on Your Chance to Find Better Coverage,” the agency complains about media reports outlining problems with the Medicare Plan Finder, but fails to acknowledge that there have actually been any problems:
CMS has been distressed to see media coverage talking about “glitches” or “malfunctions” in the Plan Finder. Let’s be clear: the new Plan Finder has experienced no outages since it was launched. It displays the most current and accurate information on premiums, deductibles and cost sharing that Medicare Advantage and Prescription Drug Plans provide.
On December 2, 2019, the Center for Medicare Advocacy issued a statement titled “CMS Not Acknowledging Medicare Plan Finder Problems Could Hurt Beneficiaries” arguing that this lack of acknowledgment on the part of CMS could undermine awareness of, and the ability of people to utilize, an SEP if they relied on misinformation. Though they disavowed any problems, CMS did refer to an SEP “we’ve always had” – which minimizes the errors upon which people made decisions that are not in their best interest.
The Center asserts that this may serve as a deterrent to seek an SEP for those who are unsure about, don’t recall or don’t have evidence about inaccurate information they obtained through the Plan Finder.
CMS, however, continues to downplay any problems with the Plan Finder during the recent enrollment period. More recently, on January 10, 2020, CMS issued a blog post entitled “At the End of another Successful Medicare Open Enrollment, CMS is Dedicated to Ensuring Seniors are Confident in their Choices.”
After touting how well things went with the new Plan Finder, CMS notes in the blog post:
Nevertheless, CMS understands that for a variety of reasons, a coverage change may be necessary. For example, a beneficiary might have experienced exceptional conditions that require a new plan choice, such as being provided incorrect or misleading information. So CMS provides “Special Enrollment Periods” (SEPs) and other options to help beneficiaries with any necessary change.
Beneficiaries that have concerns about their coverage at any time during the year can call 1-800- MEDICARE, and the weeks following Open Enrollment are no exception. Call center representatives are trained to listen to concerns and help resolve the issue based on individual situations. Sometimes, that might involve using an SEP that would allow a change in plans. Other times, the issue might be resolved in some other way, such as working with the beneficiary’s current plan to institute coverage exceptions. Regardless, CMS is ready to help in any way possible to address concerns.
Special Enrollment Period (SEP)
Sometime towards the end of (or after) the ACEP, the Medicare.gov website was updated to include reference to an SEP for Special Circumstance: https://www.medicare.gov/sign-up-change-plans/when-can-i-join-a-health-or-drug-plan/special-circumstances-special-enrollment-periods.The website notes:
You can make changes to your Medicare Advantage and Medicare prescription drug coverage when certain events happen in your life, like if you move or you lose other insurance coverage. These chances to make changes are called Special Enrollment Periods (SEPs). Rules about when you can make changes and the type of changes you can make are different for each SEP.
Note: If you believe you made the wrong plan choice because of inaccurate or misleading information, including using Plan Finder, call 1-800-MEDICARE and explain your situation. Call center representatives can help you throughout the year with options for making changes.
Although it is early in the year, we have already heard mixed results about individuals trying to assert an SEP right relating to MPF problems via 1-800-MEDICARE.
- Humana Part D Plan Changes from 2019 to 2020
Every year, Medicare Advantage and Part D plan sponsors make business decisions concerning their existing plan benefit packages, including whether to continue offering current plans. Among the options plans sponsors have is to terminate plans, or consolidate exiting plans into one plan. Even though plan benefits and cost-sharing can change every year, and current plan enrollees can be moved into a different plan offered by the same plan sponsor (or have to join a new sponsor’s plan if their plan is discontinued altogether), most Medicare beneficiaries, do not switch plans, even if it is in their best interest.
A recent Kaiser Family Foundation report from December 2019 found that, “[o]verall, a small share of MA-PD and PDP enrollees without low-income subsidies (8% and 10%, respectively) voluntarily switched to another plan during the 2016 annual open enrollment period for the 2017 plan year.”
There can be significant consequences for plan enrollees who do not explore and act upon their options. This includes enrollees who were in Humana Part D plans in 2019 and made no changes for the 2020 plan year.
The Kaiser Family Foundation generally tracks certain changes in Part D and Medicare Advantage coverage from year to year. In a “first look” at 2020 plan offerings, they highlighted changes to offerings made by Humana in the context of Part D enrollees who would be paying more or less in premiums if they did not change plans:
Two-thirds of Part D enrollees without low-income subsidies (9.0 million enrollees) will see their monthly premium increase in 2020 if they stay in their same plan, while one-third (4.3 million) face premium decreases. As an example, the 1.9 million enrollees without low-income subsidies in the Humana Walmart Rx Plan, the third most popular PDP in 2019, will see their monthly premium double in 2020, from $28 to $57, unless they switch plans. This is due to plan changes and consolidations, with Humana consolidating two of its PDPs (Humana Walmart Rx and Humana Enhanced) into one PDP for 2020 and renaming it Humana Premier Rx, with a $57 monthly premium.
We have already heard from people who were taken off guard by a doubling of their premium, and others who found that changing to a plan offering by Humana other than the one they were “consolidated” into served them much better. Such outcomes call into question whether Part D consumer protections are adequate enough to protect the vast majority of beneficiaries who do not actively explore their options and switch plans on an annual basis.
- LITIGATION UPDATE
- Affordable Care Act (ACA) Case
On December 18, 2019, the Fifth Circuit issued a decision in Texas v. United States, No. 19-10011, the lawsuit brought by several states and supported by the Trump administration that seeks to dismantle the entire Affordable Care Act (ACA). A divided panel of the appeals court ruled that the ACA’s individual mandate is now unconstitutional because the Congress reduced the penalty for remaining without insurance to $0. Then, although it was clear that Congress did not intend to strike down the entire ACA when it eliminated the penalty (because, among other things, it left the rest of the law in place), the Fifth Circuit concluded that many of the ACA’s provisions may not be “severable” from the mandate and therefore must also be struck down. It ordered the same lower-court judge who struck down the entire law last year to parse through all of the hundreds of the ACA’s provisions with a “finer-toothed comb” to determine which can survive.
The ruling threatens the entire ACA: protections for pre-existing conditions, the expansion of Medicaid, and, critically for older adults and people with disabilities, many provisions that improved Medicare. The ACA closed the donut hole in Part D, saving beneficiaries millions on prescription drugs. It eliminated out-of-pocket costs for preventive services, such as mammograms and diabetes screenings. It extended the solvency of the Part A Trust Fund for many years. Simply put, the ACA is woven into Medicare, including over 165 provisions that help beneficiaries and strengthen the program’s financial well-being. Striking down the ACA would have disastrous ramifications for Medicare beneficiaries and the U.S. health care system as a whole.
The Center for Medicare Advocacy joined AARP and Justice in Aging in filing an amicus brief in the Fifth Circuit in April 2019, highlighting the ACA’s key protections for older adults and the devastating consequences of nullifying the law. Now that the Fifth Circuit has issued its decision, the states defending the law, led by California, have filed a petition for certiorari and urged the U.S. Supreme Court to grant review on an expedited basis. They have emphasized that all of the issues to be decided are legal, not factual, making remand to the district court unnecessary, and also that prolonged uncertainty about the fate of the ACA will harm millions of Americans, as well as health insurers and states, who rely on the statutory provisions that are at risk of being struck down. The Center expects to join with its partners again in filing an amicus brief to urge the Supreme Court to take up review the case right away.
For more information, see these resources from the Kaiser Family Foundation:
- “Explaining Texas v. U.S.: A Guide to the 5th Circuit Appeal in the Case Challenging the ACA” (July 2019) https://www.kff.org/health-reform/issue-brief/explaining-texas-v-u-s-a-guide-to-the-5th-circuit-appeal-in-the-case-challenging-the-aca/
- “Potential Impact of Texas v. U.S. Decision on Key Provisions of the Affordable Care Act” (Jan. 2020): https://www.kff.org/health-reform/fact-sheet/potential-impact-of-texas-v-u-s-decision-on-key-provisions-of-the-affordable-care-act/
- Center for Medicare Advocacy Cases
- Alexander v. Azar (formerly Bagnall v. Sebelius, Barrows v. Burwell), No. 3:11-cv-1703 (D. Conn.) (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.
On September 23, 2013, a federal judge in Connecticut granted the government’s motion to dismiss the lawsuit. Plaintiffs appealed, but limited the appeal to the issue of the right to an effective notice and review procedure for beneficiaries placed on observation status. On January 22, 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).
The parties completed discovery on the issue ordered by the Second Circuit: whether plaintiffs have a “protected property interest” in Part A coverage of their hospital stays, which depends on whether CMS has “meaningfully channeled” discretion on the question of patient status determinations. If the Secretary has established criteria for inpatient hospitalization, plaintiffs have an interest that is protected by the Due Process Clause and thus they may be entitled to notice and an opportunity to appeal their placement on observation. Plaintiffs received voluminous documentation from the government and conducted depositions of witnesses from the Department of Health and Human Services, Medicare contractors, and some of the hospitals that treated the named plaintiffs. The law firm of Wilson Sonsini Goodrich & Rosati, which has helped the Center in previous litigation, joined as representatives of the plaintiffs during this phase and is continuing to provide invaluable pro bono assistance.
After briefing and a hearing on the protected property interest issue and defendant’s supplemental motion to dismiss, the court issued a decision on February 8, 2017, denying both parties’ motions for summary judgment and largely denying the government’s motion to dismiss. The court found that all named plaintiffs have standing and none of their claims was moot, even though some have passed away and some have resolved their underlying individual claims. It decided that factual disputes precluded summary judgment on the property interest question, though it did note that CMS considers the billing of hospitalizations as inpatient or observation to be a regulatory matter, under the authority of the Secretary, as opposed to a clinical decision. The court also found that while a treating physician’s status order plays a “role” in Medicare’s review of a hospital claim, it is not dispositive or even presumed to be correct.
As for the motion to dismiss, the court found that plaintiffs had plausibly alleged the other two aspects of a due process claim: state action (in the form of pressure on providers by CMS) and inadequacy of existing procedures (it is undisputed that there is currently no appeal method for patients placed on observation status). The court found that plaintiffs’ claim for expedited notice is now moot due to the new requirements being implemented under the NOTICE Act (“MOON” notice).
Plaintiffs then filed a renewed motion for class certification, and on July 31, 2017, the court issued a decision certifying a nationwide class of Medicare beneficiaries who have received “observation services” in a hospital since January 1, 2009, and have received an “initial determination” that such services were covered, or subject to coverage, under Medicare Part B. In response to a motion for reconsideration filed by plaintiffs, the court issued a decision October 16, 2017 redefining the class to specifically include beneficiaries who have received a MOON notice. The court declined to include beneficiaries who do not have Part B, as plaintiffs had requested, but stated that it may revisit the class definition as more evidence is presented.
A second round of discovery closed on June 15, 2018, with both parties having conducted numerous depositions and exchanging documents. The government filed for summary judgment for a second time on July 30, 2018, this time on the “what process is due” element of plaintiffs’ claim. The government focused on the three factors from Mathews v. Eldridge, 424 U.S. 319 (1976), which determine what procedural safeguards are due – with a particular focus on the risk of erroneous deprivation of the private interest at stake under the current procedures used (note: there are currently no procedures for beneficiaries to appeal their hospital status) The government also filed a motion to decertify the class on August 24, 2018.
A hearing was held on November 26, 2018 to address the motion for summary judgment on the Eldridge factors, the motion to decertify the class, and the court’s own question on whether it should bifurcate the trial to deal with the protected property interest separately. However, the hearing focused mostly on the court’s questions about the criteria plaintiffs rely on for a protected property interest, in particular CMS’s “Two-Midnight Rule,” which plaintiffs have argued is the governing standard for inpatient admission since it was introduced in 2013. The court gave plaintiffs an opportunity to amend their complaint as it relates to the Two-Midnight Rule, which plaintiffs declined because the second complaint in intervention (filed in 2015) already makes sufficient allegations about the Rule. The court decided that the government should have an additional opportunity to address whether the Two-Midnight Rule can create a protected property interest. It removed the scheduled trial from the calendar and directed the government to file another, supplemental summary judgment motion specifically on whether the Two-Midnight Rule can serve to create a protected property interest. It also directed the government to address how the court should treat the remaining claims from the original complaint and first complaint in intervention if it grants summary judgment with respect to the property interest theory based on the Two-Midnight Rule. On December 6, 2018, the government alerted the court and plaintiffs that in addition to the supplementary summary judgment motion, it would also file a motion to dismiss claims from the first two complaints for lack of subject matter jurisdiction pursuant Fed. R. Civ. P. 12(h)(3).
The case was initially stayed during the partial government shutdown of late 2018 and early 2019, which delayed the briefing schedule. But the court eventually put the schedule back in motion despite the shutdown. On January 30, 2019, the government filed its supplemental summary judgment motion regarding a protected property interest based on the Two-Midnight Rule, and a motion to dismiss based on lack of subject matter jurisdiction (claiming that all of the named plaintiffs lack standing and that their claims are moot). The motions were fully briefed as of March 6, 2019.
On March 27, 2019, the court issued a ruling denying the government’s motion for summary judgment, motion to decertify the class, and motion to dismiss. Alexander v. Azar, 370 F. Supp. 3d 302 (D. Conn. 2019). The judge concluded that evidence submitted by the plaintiffs could reasonably establish that physician decisions about whether to classify beneficiaries as inpatients are “meaningfully constrained” by criteria set by Medicare, including the Two-Midnight Rule since it came into effect in 2013, and class members may therefore possess a property interest in the inpatient Medicare coverage they seek. It also found that a trial was necessary to balance the evidence submitted about the three Mathews v. Eldridge factors. The court declined to dismiss the case, finding that the plaintiffs continue to have standing and that their claims are not moot. The court also did not take the drastic step of decertifying the nationwide class, but did modify the class definition to target individuals who, in the court’s view, are more certain to experience harm from the observation designation. The definition is now:
All Medicare beneficiaries who, on or after January 1, 2009: (1) have received or will have received “observation services” as an outpatient during a hospitalization; (2) have received or will have received an initial determination or Medicare Outpatient Observation Notice (MOON) indicating that the observation services are not covered under Medicare Part A; and (3) either (a) were not enrolled in Part B coverage at the time of their hospitalization; or (b) stayed at the hospital for three or more consecutive days but were designated as inpatients for fewer than three days. Medicare beneficiaries who meet the requirements of the foregoing sentence but who pursued an administrative appeal and received a final decision of the Secretary before September 4, 2011, are excluded from this definition.
The court requested additional briefing from the parties on whether it should create two subclasses, consisting of people whose hospitalizations occurred before the Two-Midnight Rule came into effect in October 2013, whose assertion of a protected property interest relies on the application of commercial screening tools in determining patient status, and those whose hospitalizations occurred after the Two-Midnight Rule came into effect, who rely on the Rule itself. The court inquired whether the subclasses may require separate counsel, or whether they should be created solely for “case management” purposes.
The court held a telephonic status conference on April 3, 2019 to discuss scheduling, and subsequently issued an order setting trial to bring on August 12, 2019. On the same day, the government also filed a motion for clarification and reconsideration of the court’s March 27 ruling. It asked the court to identify what the criteria for admission are under the Two-Midnight Rule and the “legal framework” the court applied in determining that such criteria would give rise to a protected property interest. The government also requested that the court reconsider the new class definition on the grounds that not everyone who is hospitalized for three days requires follow-up SNF care. (This issue was addressed by the parties in previous briefing.) On June 4, 2019, the court issued a ruling denying the government’s motion for reconsideration, meaning the class definition remained the same. The court also declined to further detail its reasoning on the issue of a protected property interest. Additionally, the court decided that it would not subdivide the class, formally or otherwise. A joint trial memorandum was filed on July 12. The government also filed an “omnibus” motion in limine seeking to exclude some of plaintiffs’ evidence.
A pretrial conference was held on July 29, 2019, during which the government’s motion in limine was addressed. A bench trial was then held from August 12 – 20, 2019. The plaintiffs presented several witness who were affected by observation status (two beneficiaries, a family member of a named plaintiff, a doctor), an expert witness, and also several witnesses from the government. The government also called several witnesses from CMS as well as their own expert. The court then set a post-trial briefing schedule and issued an order containing five questions it requested the parties to address in their post-trial briefing.
Update: Post-trial briefing was complete as of November 26, 2019. The parties each submitted proposed findings of fact and conclusions of law, as well as responses to the court’s questions and to the other party’s submission. The court indicated that it may hold oral argument on the post-trial briefing, and then will issue a decision.
As class counsel receives inquiries from people asking whether they can “join” the case, we advise them that no action is required of class members, but they should save any paperwork relating to their hospitalization and costs resulting from it. We also encourage them to share their observation status story on the Center’s website here.
- For more information about observation status, including pending legislation see: https://www.medicareadvocacy.org/medicare-info/observation-status/.
- McKee v. Azar, No. 2:19-cv-114-cr (D. Vt.) (coverage of home health services). On July 2, 2019, Vermont Legal Aid and the Center for Medicare Advocacy filed a lawsuit in federal court in Vermont, on behalf of a Medicare beneficiary whose was denied coverage of home health services. The beneficiary required skilled nursing visits to assess and treat her multiple serious medical conditions. The case challenges the Medicare agency’s failure to follow applicable law, including the standard clarified in the Jimmo v. Sebelius settlement, which requires the determination of whether individuals are eligible for Medicare coverage to be made on the basis of beneficiaries’ need for skilled care, not on their potential for improvement. This determination should be based on each beneficiary’s unique condition and individual needs. In this case, the plaintiff challenges the Secretary’s conclusion that her “stable” condition precludes a determination that she required skilled care and qualified for Medicare coverage of home health services. In addition, she challenges the agency’s failure to afford appropriate weight to the opinion of her treating physician about her need for skilled care.
The government filed an Answer and the administrative record on September 3, 2019, and the plaintiff filed a motion requesting reversal of the coverage decision on November 4, 2019. She argued that the coverage decision violated the standard clarified by the Jimmo settlement, and that she was eligible for home health coverage based on skilled observation and assessment as well as patient education services.
Update: In late December the government filed an unopposed request for a 30-day extension of the deadline for its response to the plaintiff’s motion, based on the fact that the parties may seek to resolve the matter and require time to confer. The court granted the extension until February 3, 2020.
- Dobson v. Azar, No. 4:18-cv-10038-JLK (S.D. Fla.) (Part D Off-Label Drug). On April 6, 2018, the Center for Medicare Advocacy and Florida Health Justice Project filed a lawsuit in the United States District Court for the Southern District of Florida on behalf of a 49-year-old Medicare beneficiary seeking Part D coverage for the “off-label” (non-FDA-approved) use of a critically needed medication. The plaintiff is disabled from a traumatic workplace injury that damaged his spinal cord. As a result of severe pain and multiple surgeries, he suffers daily from debilitating nausea and vomiting. After numerous medications failed to provide relief, his doctor prescribed Dronabinol, which significantly relieved his nausea and vomiting and allowed him to resume many activities of a normal life.
When Mr. Dobson became eligible for Medicare Part D, his plan denied coverage because his particular use of Dronabinol is not FDA-approved. However, the Part D plan should cover the medication because Mr. Dobson’s use of the drug is supported by one of the “compendia” (DRUGDEX) of medically-accepted indications listed in the Medicare law. Medicare looks to the compendia for acceptable off-label uses of medications, and the symptoms of nausea and vomiting are listed in an entry for Dronabinol. The plaintiff’s position is strongly supported by a recent federal decision granting Part D coverage of the same medication for a beneficiary with very similar symptoms (Tangney v. Burwell, 186 F. Supp. 3d 45 (D. Mass. 2016)). In spite of this, Mr. Dobson was denied coverage at each level of administrative review. In appealing his claim to federal court, we will contest the agency’s use of an inappropriately restrictive reading of the law to claim that coverage cannot be granted. The goal is to get Mr. Dobson the medication he desperately needs, and help ensure appropriate application of the law governing off label uses in other cases.
The parties consented to proceed before a magistrate judge on June 13, 2018. Briefing on cross-motions for summary judgment was complete as of December 3, 2018. On January 10, 2019, the court alerted the parties that the case had been reassigned to a different magistrate judge. The parties consented to jurisdiction by the new magistrate judge on February 7, 2019.
Oral argument on the cross-motions for summary judgment was held on September 25, 2019 in Miami, Florida. The judge took the matter under advisement and will issue a ruling.
- Jimmo v. Sebelius, No. 5:11-cv-17 (D. Vt.) (Improvement Standard). The settlement in Jimmo was approved on January 24, 2013. CMS issued revisions to its Medicare Benefit Policy Manual to clarify that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings. CMS also implemented a nationwide Educational Campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve. Pursuant to the settlement, counsel for the parties met twice a year to discuss problems with implementation and possible solutions.
After three years of urging CMS to fulfill its obligation to end continued application of the “Improvement Standard,” the Center and Vermont Legal Aid filed a Motion for Resolution of Non-Compliance with the settlement agreement. The court announced its decision on the Motion on August 18, 2016. The Order required CMS to remedy the inadequate Educational Campaign that was a cornerstone of the original Settlement Agreement. As the judge stated, “Plaintiffs bargained for the accurate provision of information regarding the maintenance coverage standard and their rights under the Settlement Agreement would be meaningless without it.” The parties negotiated but could not come to agreement on what a Corrective Action Plan should entail. The court then ordered each party to submit a brief explaining and justifying their proposed corrective action plans, as well as a response to the other party’s plan.
On February 2, 2017, the court released a decision ordering CMS to carry out a Corrective Action Plan to remedy noncompliance with the Settlement. Jimmo v. Burwell, 2017 WL 462512 (D. Vt. Feb. 1, 2019) The plan includes a new webpage by CMS dedicated to the Jimmo settlement with frequently asked questions and a statement (which the court largely adopted from plaintiffs’ suggested language) that affirmatively disavows the Improvement Standard; new training for Medicare contractors making coverage decisions; and a new National Call for Medicare contractors and adjudicators to correct erroneous statements that had been made on a previous call. On February 16, 2017, the court approved the final wording of the statement to be used by CMS to affirmatively disavow the use of an Improvement Standard. Importantly, the statement notes that the “Jimmo Settlement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve.”
In late August 2017 the government published the new Jimmo-webpage on the CMS website to comply with the Corrective Action Plan. The webpage includes court-approved affirmative disavowal of the Improvement Standard in a blue box titled “Important Message About the Jimmo Settlement.” The webpage also contains links to Jimmo-related documents, such as the transmittals of the revised Manual provisions, and a new set of Frequently Asked Questions. The imprimatur of CMS on these materials will help beneficiaries and their advocate who are arguing against inappropriate coverage denials or service terminations.
The court case has now concluded, but class counsel continues to work on ensuring that access to skilled maintenance nursing and therapy for older adults and people with disabilities is not inappropriately denied or terminated because their conditions are “chronic,” “not improving,” “plateaued,” or “stable.”
For more information on the Improvement Standard, visit the Center’s website here.
 See PDGM, example from early admission (first 30 days) with post-institutional admission versus late admission with a community admission.
 http://medpac.gov/docs/default-source/reports/mar19_medpac_entirereport_sec.pdf?sfvrsn=0 MedPAC, Report to the Congress: Medicare Payment Policy. March 2019. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. et.al. The Care Span Medicare Home Health Payment Reform May Jeopardize Access for Clinically Complex and Socially Vulnerable Patients. Health Affairs. June 2014; 952.
 MedPAC, Report to the Congress: Medicare Payment Policy. March 2018. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. et.al. The Care Span Medicare Home Health Payment Reform May Jeopardize Access for Clinically Complex and Socially Vulnerable Patients. Health Affairs. June 2014; 952.
 MedPAC, Report to the Congress: Medicare Payment Policy. March 2018. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. et.al. The Care Span Medicare Home Health Payment Reform May Jeopardize Access for Clinically Complex and Socially Vulnerable Patients. Health Affairs. June 2014; 952.
 Mullaney, T. Home Health Deals Commanded Impressive Valuations in 2016. Home Health Care News. January 2017.
 83 Fed. Reg. 39162 39183-39265 (Aug. 8, 2018).
 See “Potential Impacts of New Medicare Payment Models On Skilled Nursing Facility and Home Health Care” (CMA Alert, Oct. 31, 2019), https://www.medicareadvocacy.org/potential-impacts-of-new-medicare-payment-models-on-skilled-nursing-facility-and-home-health-care/.
 “Matt Richtel, Andrew Jacobs, “Nursing Homes Are a Breeding Ground for a Fatal Fungus,” (Sep. 11, 2019), https://www.nytimes.com/2019/09/11/health/nursing-homes-fungus.html?searchResultPosition=1.
 81 Fed. Reg. 68688, 68808 (Oct. 4, 2016) (Final rule), 84 Fed. Reg. 34737, 34746 (Jul. 18, 2019) (Proposed rule) (omitting hospitalization data).