Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

Issue Brief – March 2019 – Medicare Education & Outreach, and Other Issues

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1. MEDICARE EDUCATION & OUTREACH

At a February 8, 2019 meeting of the Center for Medicare & Medicaid Services’ (CMS) National Medicare Education Program (NMEP), the agency released information about the 2018 Annual Coordinated Election Period (ACEP), sometimes referred to as “Open Enrollment” or “OP.” (Note: this is a downloadable “zip” file containing several items. See, in particular, the Powerpoint slide presentations entitled “Medicare OEP Outreach” and “MCTNMEP20819” for Medicare Advantage and Medicare Plan Finder information, respectively).

Medicare Advantage Steering

As the Center has documented elsewhere, since Fall of 2017 CMS’ outreach and enrollment materials have encouraged beneficiaries to choose a private Medicare plan over traditional Medicare, instead of objectively presenting enrollment options. Rather than presenting differences between traditional Medicare and MA in a neutral, unbiased manner, CMS is overplaying the pluses of MA and downplaying any minuses in a manner that is highly misleading, at best.  Our concerns include certain revisions to Medicare & You, online comparison tools, and education and outreach materials, including an enrollment period email campaign that downplayed or entirely left out the option of traditional Medicare altogether.

As noted in a December 2018 New York Times article by Robert Pear, MA plans have been getting “an unpublicized boost from the Trump administration, which [during the Fall enrollment period] extolled the virtues of the private plans in emails sent to millions of beneficiaries.” According to the article, a former chief actuary of CMS “said the emails sounded ‘more like Medicare Advantage plan advertising than objective information from a public agency.’”

CMS leadership has repeatedly denied that they are favoring private plans or steering Medicare beneficiaries towards enrolling in such plans, however actual experience and recently released materials from CMS suggest otherwise.

At the February 8, 2019 NMEP meeting, CMS stated that in 2018 it “tested targeted messaging to determine if we could have an impact on overall awareness and knowledge of Medicare Advantage among a limited set of People with Medicare.” (Slide 2)

CMS engaged in a “General Medicare Open Enrollment Email Outreach” campaign that went to approximately 7 million unique email subscribers nationwide. It consisted of 12 general Open Enrollment email bulletins that included messaging focused on deadline reminders and promoting eMedicare tools to compare plans and estimate costs. (Slide 11) While the Center’s analysis of this material showed that it downplayed or left out the option of traditional Medicare altogether, and could be interpreted by recipients to imply that they had no choice but to enroll in or stay in a private plan, CMS has engaged in even more blatant favoring of the MA program.

In addition to the general open enrollment campaign in the Fall of 2018, CMS engaged in targeted messaging through eight Medicare Advantage specific emails sent to approximately 1.2 million individuals in eight states with messaging that “[e]mphasized extra benefits of MA Plans and promoted Medicare Plan Finder tool to compare all options.” (Slide 12) This targeted messaging that emphasized MA included the following:

  • “With Medicare Advantage, you can choose the coverage that’s right for you. Pick from a variety of plans to get the benefits that matter to you.
  • Get more benefits for your money. Medicare Advantage plans include extra benefits like hearing, vision, and dental coverage.
  • 4 out of 5 people pay a premium of less than $50 per month for their Medicare Advantage health and prescription drug plan.” (Slide 10)

Replacement of Medicare Plan Finder

During 2019, the Medicare Plan Finder (MPF) will be replaced with “Medicare Coverage Tools” (MCT), which, according to CMS, will be “a suite of digital services that will help Medicare Beneficiaries and those who help them easily find and enroll in coverage that meets their needs. MCT will be the authoritative source for Medicare plan information.”  (See NMEP slides linked above.)

CMS states that the goals of this transition are as follows (see slide 3):

  • Deliver a plan shopping and comparison experience for beneficiaries that helps them choose coverage that works for their individual situation.
  • Provide a personalized experience
  • Help users decide whether what type of Medicare coverage (Original Medicare or Medicare Advantage) is right for them.
  • Shepherd beneficiary through the enrollment process and completely replace the existing Online Enrollment Center.
  • Gracefully integrate with dependent CMS systems to ensure a seamless experience

As noted in slide 11, MCT will be rolled out in phases.  External stakeholders will get a preview first, there will be a public preview over the summer and then the full MCT will be launched prior to the 2019 ACEP.

While the Center has not yet had a preview of the MCT, we are concerned about further reliance on current CMS decision-making tools.  As discussed in an November 2018 CMA Weekly Alert, CMA and the Medicare Rights Center (MRC) sent a joint letter to CMS expressing concerns with CMS’ education and outreach materials for the 2018 Medicare ACEP, “which together seem to promote Medicare Advantage (MA) over traditional Medicare.” Specifically, the letter highlighted new CMS online tools and the email campaign targeted towards beneficiaries, discussed above.  With respect to a suite of online tools launched in October 2018 aimed at assisting consumer decision-making, the letter stated that the Compare Coverage Options tool “may inappropriately and prematurely encourage individuals to enroll in MA — by making overly-broad suggestions to do so when more nuance is required, and by failing to present individuals with the full array of Medicare coverage options.”

Based on what we have seen so far with respect to such comparison or decision-making tools, and their tendency to steer towards Medicare Advantage and/or provide incomplete information, we are concerned about how the new MCT will guide consumers through decision-making.  To the extent that stakeholders are given a chance to weigh in on the new MCT, we urge vigilance concerning how it answers questions and steers people towards certain options.

2. SENATE FINANCE COMMITTEE HEARING ON NURSING FACILITIES

On March 6, 2019, the U.S. Senate Committee on Finance held a hearing entitled “Not Forgotten: Protecting Americans From Abuse and Neglect in Nursing Homes.” The hearing consisted of two panels of witnesses. The first panel included Patricia Blank (daughter of a nursing home neglect victim), Maya Fischer (daughter of a nursing home rape victim), David Grabowski (Harvard Medical School), and David Gifford (American Health Care Association). The second panel included Kate Goodrich (Centers for Medicare & Medicaid Services), Antoinette Bacon (Department of Justice), and Keesha Mitchell (Office of the Ohio Attorney General). The Committee did not invite a single consumer advocate to testify.  As a result, no one effectively countered any false or misleading statements made by CMS or the nursing home industry.

After listening to the heartbreaking testimonies of Ms. Blank and Ms. Fischer, the Committee’s questioning during the first panel centered on one industry excuse for poor care: inadequate Medicaid reimbursement. However, there was no discussion about how nursing homes currently use Medicaid reimbursements for administrative costs rather than to promote direct care, nor a discussion about the risky financial arrangements that have caused many of the recent nursing home closures. The Committee’s focus during the second panel centered on CMS’s efforts to improve oversight. Unfortunately, the Committee did little to push back against misleading claims regarding the implementation and enforcement of the nursing home standards of care.

Ultimately, the hearing was a missed opportunity to have a serious conversation about ongoing resident concerns, such as inappropriate antipsychotic drugging, transfers and discharges, ownership concerns, and “no harm” deficiencies.

The Center joined other consumer advocacy organizations in submitting a statement for the record detailing these persistent problems.

3. ACCESS TO CARE  

Observation Status

Hospital patients in “outpatient” observation status often receive care in acute care hospitals that is indistinguishable from the care patients receive when they are formally admitted to hospitals as inpatients.[1]  The consequences of outpatient status are considerable, however, especially for patients who need post-hospital care in a skilled nursing facility (SNF). Since Medicare was enacted more than 50 years ago, Medicare Part A has covered SNF care only for patients who were hospitalized as inpatients for at least three consecutive days, not counting the day of discharge (since Medicare counts days by midnights, not by 24-hour periods, a shorthand for this statutory requirement is three inpatient midnights). Unless covered by Medicaid, hospital patients who were in observation or other outpatient status must pay for their SNF stay entirely out-of-pocket, or forego this necessary care.

The Improving Access to Medicare Coverage Act, introduced in the last three sessions of Congress, will soon be introduced in the 116th Congress.  The bill would count all time in the hospital, whether called inpatient or outpatient, for purposes of satisfying Medicare’s three-day inpatient requirement for SNF coverage.

Home Health Aide Coverage Continues to Shrink: Attention Must Be Paid

The ability to get Medicare-covered home health aide care has greatly declined in recent years. This is true even when individuals meet the law’s homebound and skilled care requirements – and thus qualify for coverage. Sadly, and incorrectly, Medicare beneficiaries are often told the only aide care they can get is a bath, and only a few times a week. Sometimes they are told Medicare simply does not cover home health aides. The Center has even heard of an individual being told he could not receive home health aide care because he was “over income” – although Medicare has no such income limit (see case study in separate article below).

In fact, Medicare law authorizes up to 28 to 35 hours a week of home health aide (personal hands-on care) and nursing services combined. 42 USC §1395x(m)(1)-(4). While personal hands-on care does include bathing, it also includes dressing, grooming, feeding, toileting, and other key services to help an individual remain healthy and safe at home. 42 CFR §409.45(b)(1)(i)-(v). (See also, Medicare Benefit Policy Manual, Chapter 7, §§50.1 and 50.2.)

This level of home health aide personal care used to be available. The Center helped many clients remain at home because these services were in place, but now such care is almost never obtainable. Statistics demonstrate this point. In 2018 MedPAC reported that home health aide visits per 60-day episode of home care declined by 87% from 1998 to 2016, from an average of 13.4 visits per episode to 1.8 visits.  As a percent of total visits from 1997 to 2016, home health aides declined from 48% of total services to 10%. (MedPAC Report to Congress, p. 246, March 2018.)

The real, personal, impact of this reduced access to home health aides has recently been made clear in a Kaiser Health News article, (Judith Graham, Seniors Aging In Place Turn To Devices And Helpers, But Unmet Needs Are Common, 2/14/2019). The article includes striking findings about the unmet needs of vulnerable Americans struggling to live at home with little or no help. For example:

  • “About 25 million Americans who are aging in place rely on help from other people and devices such as canes, raised toilets or shower seats to perform essential daily activities, according to a new study documenting how older adults adapt to their changing physical abilities.”
  • “Nearly 60 percent of seniors with seriously compromised mobility reported staying inside their homes or apartments instead of getting out of the house. Twenty-five percent said they often remained in bed. Of older adults who had significant difficulty putting on a shirt or pulling on undergarments or pants, 20 percent went without getting dressed. Of those who required assistance with toileting issues, 27.9 percent had an accident or soiled themselves.”
  • “60 percent of the seniors surveyed used at least one device, most commonly for bathing, toileting and moving around. (Twenty percent used two or more devices and 13 percent also received some kind of personal assistance.)
  • Five percent had difficulty with daily tasks but didn’t have help and hadn’t made other adjustments yet.”

While it isn’t clear how many of these individuals should be receiving needed help through Medicare, it is likely that far more qualify than are accessing the benefit, since the surveyed population was 65 or older and infirm. Indeed, the author states “The problem, experts note, is that Medicare doesn’t pay for most of these non-medical services, with exceptions.”

In fact, the problem is two-fold:

  1. The Medicare home health benefit is being unfairly and inaccurately articulated and administered.
    1. Even the government’s information on Medicare.gov includes “personal care” in the list of what Medicare does not pay for. (https:/www.medicare.gov/coverage/home-health-services)
    2. Medicare-certified home health agencies have all but stopped providing necessary, legally authorized home health aide personal care, even when patients are homebound and receiving the requisite nursing or therapy to trigger coverage.
  2. Instead of correcting this harmful misapplication of Medicare coverage for all beneficiaries, CMS issued a new policy in 2018 allowing private Medicare Advantage (MA) plans to provide personal care services for their enrollees without a homebound or skilled care requirement. (CMS Memo, Reinterpretation of “Primarily Health Related” for Supplemental Benefits, April 27, 2018.) This is ironic and unjust given the restrictive interpretation of the Medicare home health benefit in general, and the obliteration of home health aide coverage in particular.

While it remains to be seen how much this stand-alone MA personal care benefit will actually be offered and provided, it continues the trend of discriminating against the majority of beneficiaries, who are enrolled in traditional Medicare. It also adds to the myriad enticements from CMS for people to join private MA plans.

Conclusion

Congress should address this inequity as soon as possible.

  1. Hearings or other action should be taken to ensure CMS and Medicare-certified home health agencies are interpreting and administering the current home health benefit as provided by law. Individuals who are homebound, receiving skilled care, and in need of home health aide/personal hands-on care should be able to receive the full array of care authorized by law.
  2. Further, all Medicare beneficiaries, not just those enrolled in Medicare Advantage plans, should be able to receive Medicare coverage for necessary home health aide care even if they are not homebound or require skilled nursing or therapy.

4. LITIGATION UPDATE

  • 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 cross motions for summary judgment 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 have 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). The parties filed an updated plan for further discovery.

Plaintiffs filed a renewed motion for class certification on March 3, 2017. 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.

The 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, although the court had discouraged it. Briefing on both motions was complete by early November.

A hearing was held on November 26, 2018, which was supposed to address the pending motion for summary judgment on the Eldridge factors, the pending motion to decertify the class, and whether the court should bifurcate the trial to deal with the protected property interest separately. The hearing instead 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. Over the objection of plaintiffs, the court decided that the government should have an additional opportunity to address whether the Two-Midnight Rule can create a protected property interest. The court 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).

Update: 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). Plaintiffs filed opposition briefs on February 20 explaining that issues of fact remain about whether the Two-Midnight Rule creates a protected property interest, and that the named plaintiffs continue to have standing and their claims are not moot (both issues had previously been decided favorably for plaintiffs earlier in the case). The government submitted reply briefs on March 6, 2019. The court now has four fully-briefed, pending motions to address (two for summary judgment, one for class decertification, and one to dismiss).

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: https://www.medicareadvocacy.org/submit-your-observation-status-story/

  • 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.

Update: The parties consented to jurisdiction by the new magistrate judge on February 7, 2019.

  • 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.

On March 1, 2016, the Center and its co-counsel, Vermont Legal Aid, filed a Motion for Resolution of Non-Compliance with the settlement agreement. The filing came after three years of urging the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation to end continued application of an “Improvement Standard” by Medicare providers, contractors and adjudicators to deny Medicare coverage for skilled maintenance nursing and therapy.

The court announced its decision on the Motion for Resolution of Non-Compliance 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. 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. The government was given an opportunity to object to the language of the corrective statement, and the parties negotiated final wording which was submitted to the court.  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 can be found here.  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, see the Center’s website at: https://www.medicareadvocacy.org/medicare-info/improvement-standard/.

  • Exley v. Burwell (formerly Lessler v. Burwell), No. 3:14-cv-1230 (D. Conn.) (ALJ Delays) The Medicare statute and regulations require that an administrative law judge (ALJ) issue a decision within 90 days the filing of a request for hearing. While the Chief ALJ has stated that individual beneficiary cases should not be delayed, still most of the Center’s cases were exceeding statutory timelines for decisions.

On August 26, 2014, the Center filed a nationwide class action lawsuit in United States District Court in Connecticut. The named plaintiffs, from Connecticut, New York and Ohio, all waited longer than the statutory 90-day limit for a decision on their Medicare appeals. On January 29, 2015, defendant’s motion to dismiss was denied.  On June 10, 2015, the court granted the plaintiffs’ motion for certification of nationwide class of Medicare beneficiaries who have been or will be waiting more than 90 days for a decision on their timely-filed request for an ALJ hearing. The parties also conducted discovery. In March 2016 the court preliminarily approved a settlement and notice to the class was posted.

A Fairness Hearing was held on August 1, 2016 and the Court granted final approval of the settlement agreement. The settlement calls for the Office of Medicare Hearings and Appeals (OMHA) to continue its policy of providing beneficiary appellants with priority over other appellants in receiving ALJ decisions, to designate a Headquarters Division Director to oversee inquiries about appeals initiated by beneficiary appellants, and to address any complaints or questions concerning the processing of those appeals. OMHA will also introduce a new, more user-friendly ALJ hearing request form that allows beneficiaries to self-identify, and will also publish data about the length of processing time for beneficiary appeals.

On September 1, 2016 as part of the settlement, OMHA established a toll-free Beneficiary Help Line: (844) 419-3358.  This line, which is staffed by representatives of OMHA, will address inquiries about ALJ appeals being pursued by Medicare beneficiaries. The Center urges anyone pursuing a beneficiary appeal who believes the appeal is not receiving timely attention to call the Beneficiary Help Line. The expectation is that a call to this line will help resolve delays in cases that are eligible to be prioritized. The Beneficiary Help Line is staffed from 8:00 a.m. to 4:30 p.m., Eastern Time. If calling at other times or if the OMHA Beneficiary Help Line staff are assisting other callers, OMHA instructs callers to leave a voicemail. Please report your experiences using the Help Line to the Center at: abers@medicareadvocacy.org.

As of November 1, 2016 CMS updated scripts for 1-800-Medicare to highlight the OMHA beneficiary prioritization policy for beneficiary callers and to refer them to the toll-free OMHA Beneficiary Help Line if they have questions about filing appeals with OMHA or about ALJ appeals that are pending with OMHA. OMHA also posted the beneficiary appeals data required by the settlement on their website at http://www.hhs.gov/about/agencies/omha/about/current-workload/beneficiary-appeals-data/index.html. The data shows beneficiary appeals now being processed within or very close to the 90-day statutory time period.

In late January 2017 the Office of Medicare Hearings and Appeals issued a new ALJ request form, the OMHA-100, which is a unified request for hearing and review and can be used for all appeals to OMHA.  As part of the settlement, the form allows beneficiaries and enrollees to self-identify, making it easier for these claims to be classified as beneficiary appeals and given priority for processing. CMS has also issued instructions to appeal contractors that deal with reconsiderations (the level below ALJ hearings) the begin using revised appeal instructions that include plain-language instructions about OMHA’s beneficiary mail-stop as well as information on the beneficiary help-line that has been established at OMHA.  The OMHA-100 is available at: https://www.hhs.gov/sites/default/files/OMHA-100.pdf

  • Ryan v. Price, No. 5:14-cv-269 (D. Vt.) (Prior Favorable Homebound Determination) On December 19, 2014, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit against Sylvia Mathews Burwell, the Secretary of Health and Human Services, to stop Medicare’s practice of repeatedly denying coverage for home health services for beneficiaries on the basis that they are allegedly not homebound, when Medicare has previously determined them to be homebound. (Ryan v. Burwell). The lawsuit was filed in the United States District Court in Burlington, Vermont on behalf of two Vermont residents, Marcy Ryan and John Herbert, as a regional class action lawsuit covering New England and New York.

On March 25, 2015, the government filed a motion to dismiss on the grounds that plaintiffs lack standing, that the court lacks subject matter jurisdiction, and that plaintiffs have failed to state claim on which relief may be granted.  On July 27, 2015, the court denied the government’s motion to dismiss, finding four separate grounds on which the dually eligible plaintiffs have standing. The court also found that it had subject matter jurisdiction and that plaintiffs had stated a claim on which relief could be granted.

On December 2, 2015, the court granted plaintiffs’ motion for class certification and, at request of the plaintiffs, issued clarification on the class definition on February 23, 2016.  The regional class is defined as all beneficiaries of Medicare Part A or B in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont (Medicare Administrative Contractor Jurisdiction K): (a) who have received a “favorable final appellate decision” that he or she was “confined to the home,” i.e. homebound, in the appeal of a home health nursing or therapy claim denial; (b) who have subsequently been denied, or will be denied, coverage for additional service on the basis of not being homebound, on or after January 1, 2010; (c) who had a non-lapsed, viable appeal of the subsequent denial for coverage of additional home health services as of March 5, 2015, or had a particularized individual basis for tolling of any applicable appeal deadline; and (d) for whom the claim for Medicare home health coverage was filed on or before August 2, 2015.

Written discovery was served. The government filed a motion for summary judgment in November 2016 and plaintiffs filed a cross motion and responded in December.  However, the parties then entered settlement talks and postponed further briefing while those negotiations proceeded.

On October 11, 2017, the parties filed a joint motion for preliminary approval of a proposed settlement agreement and notice to the class, which the court approved on October 27, 2017. Notice to the class was posted and is available here. The notice explains that The proposed settlement applies to Medicare beneficiaries in the northeast United States whose appeals for coverage of home health services were denied between January 1, 2010 and March 5, 2015 on the basis of not being homebound, and who had previously received a favorable appeal decision determining that they were homebound. More details on the class definition can be found in the notice to class members. The agreement will allow class members to have their eligible claims for home health services reviewed under the Prior Favorable Homebound provision, which directed that when a beneficiary had previously been found to be homebound in a Medicare appeal, that conclusion should be given “great weight” in any subsequent appeal for home health services, provided there had not been a significant change in the beneficiary’s condition.

A final fairness hearing was held at the court in Rutland, Vermont on January 11, 2018. No objections were received, and the court granted final approval of the settlement. CMS will be publishing on their website an application process for eligible class members to have their claims re-reviewed under the correct standard. Eligible class members will be required to identify themselves and their eligible claim to CMS no later than one year after the settlement application process is published. The settlement, available here, contains details on which beneficiaries are eligible for re-review and the procedural requirements.

CMS has published the application process on its website. Eligible class members must identify themselves and their eligible claims to the CMS by completing and submitting the “Ryan Re-Review Form,” along with any supporting documentation, no later than August 1, 2019.  The form provides information to assist in determining whether the beneficiary’s claims qualify for re-review under the settlement (for example, the home health services have to have been received on or before August 2, 2015, and denied on or after January 1, 2010). The re-review form and other important information about the settlement are published on CMS’s website here. Please contact Vermont Legal Aid or the Center for Medicare Advocacy with questions about the settlement.

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[1] See the Center for Medicare Advocacy’s materials on observation status, at https://www.medicareadvocacy.org/?s=observation+status&op.x=0&op.y=0.

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