- LITIGATION UPDATE
Affordable Care Act Case
California v. Texas is the lawsuit brought by several states that seeks to strike down the entire Affordable Care Act (ACA). In 2019, a divided panel of the Fifth Circuit ruled that the ACA’s individual mandate is now unconstitutional because 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 district court judge who had struck down the entire law to parse through all of the ACA’s provisions with a “finer-toothed comb” to determine which can survive. However, before the remand occurred, the Supreme Court granted review in early 2020.
This lawsuit 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.
In May 2020 the Center joined AARP and Justice in Aging in submitting an amicus brief in support of California and the other states defending the law. The brief highlights the ACA’s key protections for older adults and the devastating consequences that would ensue if the law is nullified. It was one of 40 amicus briefs that were filed in support of the ACA. In June 2020, Texas and several other states as well as the Trump administration filed their opening briefs, asking the Court to strike down the entire ACA. Three amicus briefs were filed in support.
Oral argument at the Supreme Court was held in November 2020. Key Justices appeared to be skeptical of the claim that the entire statute must be invalidated if the mandate coupled with a $0 penalty is found unconstitutional. In February 2021, the U.S. government changed its position in the case. In a letter to the Supreme Court, government lawyers explained that following the change in administration, the Department of Justice reconsidered and its position is now that the ACA’s individual mandate is constitutional, and that even if the Court were to find that it is unconstitutional, the mandate is severable from the rest of the law. The federal government’s position is now consistent with the position of California and other states defending the law, as well as the position of the Center and numerous other organizations who filed amicus briefs urging the Supreme Court to uphold the law. A decision is expected soon.
For more information, see these resources from the Kaiser Family Foundation:
- “Potential Impact of Texas v. U.S. Decision on Key Provisions of the Affordable Care Act” (Sept. 2020).
- “Explaining Texas v. U.S.: A Guide to the Case Challenging the ACA” (Sept. 2020).
- Center for Medicare Advocacy’s Statement on Supreme Court ACA Oral Argument (Nov. 2020).
Center for Medicare Advocacy Cases
- Alexander v. Azar (formerly Bagnall v. Sebelius, Barrows v. Burwell), No. 3:11-cv-1703 (D. Conn.), No. 13-4179 (2d Cir.); Bagnall v. Becerra, No. 20-1642 (2d Cir., second appeal) (Beneficiary Appeals of Observation Status). In November 2011, the Center for Medicare Advocacy and Justice in Aging filed a proposed class action lawsuit on behalf of individuals who have been denied Medicare Part A coverage of hospital and nursing home stays because their care in the hospital was considered “outpatient observation” rather than an inpatient admission. When hospital patients are placed on observation status, they are labeled “outpatients,” even though they are often on a regular hospital floor for many days, receiving the same care as inpatients. Because patients must be hospitalized as inpatients for three consecutive days to receive Medicare Part A coverage of post-hospital nursing home care, people on observation status do not have access to nursing home coverage. They must either privately pay the high cost of nursing care or forgo that skilled care. The number of people placed on observation status has greatly increased in recent years, as CMS has strictly enforced its definition of which services hospitals should bill as inpatient/Part A and which services they should bill as observation/Part B. However, CMS has not allowed beneficiaries to appeal the issue of whether their hospitalizations should be classified as observation or as inpatient for Medicare coverage purposes.
In September 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. In January 2015, the U.S. Court of Appeals for the Second Circuit decided that Medicare patients who are placed on observation status in hospitals may have an interest, protected by the Constitution, in challenging that classification. The panel held that the district court erred when it dismissed the plaintiffs’ due process claims, and it sent the case back to that court for further proceedings. Barrows v. Burwell, 777 F.3d 106 (2d Cir. 2015).
Several dispositive motions and more discovery occurred (for details see previous issue briefs). The law firm of Wilson Sonsini Goodrich & Rosati joined as representatives of the plaintiffs during this phase and has provide extraordinary and invaluable pro bono assistance. A bench trial on the merits of the due process issue was then held in August 2019. The plaintiffs presented several witness who were affected by observation status, an expert witness, and also several witnesses from the government. The government also examined several witnesses from CMS as well as their own expert. The parties then submitted post-trial briefing.
In March 2020, the court issued a decision. Alexander v. Azar, — F. Supp. 3d –, 2020 WL 1430089 (D. Conn. Mar. 24, 2020). It held that the Secretary of Health and Human Services violates the Fifth Amendment Due Process Clause by not allowing certain patients to appeal their placement on observation status. Thus, as matter of constitutional due process, patients who are admitted as inpatients by a physician, but whose status is changed to observation by their hospital, have the right to appeal to Medicare and argue for coverage as hospital inpatients. In this ruling, the court held that there is a protected property interest in Medicare Part A coverage, meaning that an individual cannot be deprived of that coverage without procedural safeguards. The court did not, however, find a due process violation for patients whose doctors never order inpatient status, or whose status is switched only from observation to inpatient. It drew a distinction between the actions of doctors and the actions of hospital utilization review staff. It decided that doctors’ decisions to admit patients as inpatients are not attributable to the government and thus not “state action,” a required component of a due process claim. But it held that then when a hospital’s utilization review staff finds that patient should be in observation status rather than an inpatient, that is due to Medicare’s billing rules and therefore does constitute state action.
The court modified the existing class definition accordingly. It is now:
All Medicare beneficiaries who, on or after January 1, 2009: (1) have been or will
have been formally admitted as a hospital inpatient, (2) have been or will have
been subsequently reclassified as an outpatient receiving “observation services”;
(3) 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 (4) 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, unless more than 30 days has passed after the hospital stay without the
beneficiary’s having been admitted to a skilled nursing facility. 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 ordered that the agency establish an appeals process for class members, under which they can argue that their inpatient admission satisfied the relevant criteria for Part A coverage—for example, that the medical record supported a reasonable expectation of a medically necessary two-midnight stay at the time of the physician’s inpatient order. Patients will be able to pursue these appeals in an expedited manner while still hospitalized. The court also ordered the agency to provide notice of these procedural rights.
In May 2020, the government appealed the district court’s trial decision to the Second Circuit. It did not request a stay at the time. A status conference was held with the district court in October 2020 at plaintiffs’ request. Plaintiffs explained that they had received no indicia of implementation of the court’s order other than that the agency was analyzing the decision and coordinating among its personnel. Since the order has no timeline for implementation, class members have been left wondering when they will be able to submit claims. This is urgent due to the age of many class members. The court requested that plaintiffs submit proposed measures the agency could take while the case is on appeal. That proposal was filed in November 2020, and plaintiffs offered several ideas for implementation, including posting of notice on CMS’s website and development of a form for class members to submit their appeals. The government filed its response in December 2020, and also indicated that it intended to seek a stay of the court’s decision. The government stated that plaintiffs’ proposed implementation measures were unworkable and did not offer any counterproposals. The court ordered another status conference for January 2021.
The government’s opening appellate brief in the Second Circuit was filed in October 2020. It challenges the district court’s decisions regarding standing, class certification, and the merits of the due process claim. Plaintiffs’ response was filed in February 2021. Three amicus briefs in support of plaintiffs were also filed on March 5: one from AARP and Disability Rights Connecticut, one from the American Medical Association and the Connecticut State Medical Society, and one from the American Health Care Association.
At the district court, the government filed a motion for a stay of the judgment on January 11, 2021, claiming that it would be irreparably harmed by implementing the court’s order, and that there are serious questions about the district court’s decision, which indicates a likelihood of success on appeal. Because of the pending stay motion, the status conference in January did not address proposed implementation measures, as the district court indicated that it wishes to rule on the stay motion first. The stay motion was fully briefed as of February 2021. Plaintiffs have argued against a stay based on a lack of irreparable harm to the government (demonstrated in part by its delay in requesting a stay) and a lack of likelihood of success of the government’s appeal to the Second Circuit.
UPDATE: The government’s reply brief was filed with Second Circuit in April 2021, meaning the appeal is now fully briefed. The district court has not yet ruled on the government’s motion for a stay, but the government filed a notice on May 14, 2021, stating that if the district court does not rule soon, it will request a stay from the Second Circuit.
For answers to frequently asked questions from people who think they may be class members, please see the Center’s website here.
- Dobson v. Cochran, No. 4:18-cv-10038-JLK (S.D. Fla.), No. 20-11996 (11th Cir.) (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 federal court 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, Mr. Dobson contests the agency’s use of an inappropriately restrictive reading of the law to claim that coverage cannot be granted.
Briefing on cross-motions for summary judgment was completed and a hearing was held in September 2019 in Miami before a magistrate judge.
The judge issued a decision on March 31, 2020, finding that Mr. Dobson’s medication cannot be covered by Medicare Part D. She credited the government’s argument that Mr. Dobson’s use was not a “medically accepted indication,” “supported by citation” in DRUGDEX. The judge’s reasoning was that Mr. Dobson does not have the identical diagnosis as the patient in the study contained within the DRUGDEX citation for disease-related, treatment-refractory nausea and vomiting. The judge rejected the reasoning of the Tangney court. In May 2020 the plaintiff appealed the district court’s decision to the 11th Circuit.
In the appellate briefing, Mr. Dobson argues that the plain meaning of the Medicare statute mandates coverage of his medication because his use is “supported by” the Drugdex citation in question. He also argued that even if the statute was deemed to be ambiguous, the court should not have afforded “Skidmore deference” to Medicare’s narrow interpretation of the law. The American Medical Association and Greater Boston Legal Services (which litigated the Tangney case) also filed amicus briefs in support of Mr. Dobson. The case was fully briefed in the 11th Circuit as of February 11, 2021. The Center is grateful for the pro bono assistance of Akin Gump Strauss Hauer & Feld at the appellate stage of this case.
- Chinatown Service Center v. Cochran, No. 1:21-cv-00331 (D.D.C.) (LEP Protections under Section 1557 of the ACA). Justice in Aging and the Center for Medicare Advocacy, along with pro bono firm Stinson LLP, filed this case on February 5, 2021 on behalf of two community-based organizations that provide social services to Limited English Proficient (LEP) older adults. In the waning days of the Trump Administration, the federal government eliminated protections for LEP individuals in health care by rolling back regulations that were put in place as part of Section 1557 of the Affordable Care Act. The protections were intended to target health disparities by requiring health plans and other entities to inform patients both of their right to interpretation, and their right to legally challenge discrimination based on language ability. But, in 2020, the Trump Administration issued a rule that eliminated these language access protections (as well as many others affecting LGBTQ people, immigrants, and women). The plaintiffs are asking the court to vacate the 2020 rule and enjoin its implementation.
- HEALTH CARE & MEDICARE REFORM
Changes to Health Coverage Must Include Medicare Improvements
In his national address before a joint session of Congress on April 28, 2021, President Biden outlined his vision for “rebuilding our nation” in the midst of both “crisis” and “opportunity”. His vision included both health care broadly, and Medicare specifically. President Biden stated:
That won’t just help people on Medicare – it will lower prescription drug costs for everyone.
The money we save can go to strengthen the Affordable Care Act – expand Medicare coverage and benefits – without costing taxpayers one additional penny.
Medicare, often viewed as the country’s flagship health coverage program, serves over 62 million older adults and individuals with disabilities. Although the program is rightly beloved, it is incomplete and in need of repair. As the Administration and Congress work to develop proposals to implement the President’s vision, we urge policymakers to keep the Medicare program and beneficiaries central to the discussion.
It’s important to recognize some differences between Affordable Care Act (ACA) coverage and Medicare – and that Medicare beneficiaries cannot enroll in ACA plans. Unlike coverage available through the ACA, traditional Medicare lacks an out-of-pocket cap on health care expenses. Assistance with premiums and cost-sharing is more generous through the ACA than it is in Medicare. The need for dental, vision and hearing services is great among the Medicare population, but the program largely does not cover these critical services. Prescription drug costs are too high both for Medicare beneficiaries and the Medicare program itself. Medicare coverage for nursing home and long-term care is limited. Further, its home health benefit – which can cover aide services for an unlimited duration if someone is both homebound and also requires skilled care – is not actually being provided as authorized by law – and is ripe for reform as part of an expanded approach to home and community-based services.
Medicare’s private option, Medicare Advantage (MA), is not the answer to these problems. The MA program costs more per beneficiary than traditional Medicare, and such spending is growing faster than previously expected (MedPAC, 2021); Congressional Budget Office, 2020). Further, despite inflated MA payments, enrollees’ health outcomes are decidedly mixed (New England Journal of Medicine, 2018). While MA plans are required to offer an out-of-pocket cap on Part A and B expenses, a larger percentage of MA enrollees report problems getting care due to costs, or paying medical bills, than beneficiaries in traditional Medicare (even after controlling for income and health status) (Kaiser Family Foundation, 2020). In addition, while many MA plans use rebate dollars to offer some vision, hearing and dental services, the scope of these services are limited.
The Center for Medicare Advocacy has outlined our legislative priorities in our Medicare Platform, which include the following goals:
- Oral health benefit, along with hearing and vision care – in traditional Medicare;
- An out-of-pocket cap on beneficiary expenses in traditional Medicare;
- Improved protections for low-income individuals; and
- Other changes, including expanded Medigap rights and reform of the appeals process.
Medicare needs fundamental, structural changes to ensure quality coverage and benefits that accrue to all of its beneficiaries. The Center supported the approach to improving Medicare outlined in the House-passed Elijah E. Cummings Lower Drug Costs Now Act (H.R.3). H.R.3 would have achieved significant drug savings, in part by allowing the Medicare program to negotiate certain drug prices. Importantly, it would have reinvested most of those drug savings into the Medicare program by expanding dental, vision and hearing services, expanding low-income assistance, and improving rights to purchase Medigap policies, among other changes.
As Congress grapples with how to improve our health coverage infrastructure, we urge policymakers to keep traditional Medicare, the country’s foundational health program, front and center. As the nation faces an historic opportunity to strengthen and expand health coverage, Medicare must remain central to the discussion. It’s time to build Medicare back, better.
This statement is adapted from a Weekly Alert (April 29, 2021) available here: https://medicareadvocacy.org/changes-to-health-coverage-must-include-medicare-improvements/.
- ORAL HEALTH UPDATES
Last week the Center began the first in a series of factsheets that explain the interrelationship between oral health and major medical conditions, such as diabetes, heart disease and cancer. The factsheets were developed in collaboration with Larry Coffee, DDS, the esteemed dentist who founded the Dental Lifeline Network, a national nonprofit organization that provides critical dental therapies to needy disabled, elderly, and medically fragile individuals through volunteer dentists. We plan to follow the series with a webinar. The fact sheets and webinar have been made possible by a generous grant from CareQuest Institute for Oral Health, formally DentaQuest Partnership for Oral Health Advancement. We hope these factsheets will serve to illustrate why the meaning of health care needs to include oral health care, and why oral health benefits should be added to traditional Medicare.
- Oral Health Factsheet 1: The Diabetes and Dental Disease Connection
- MEDICARE FISCAL SOLVENCY
Issue Brief by Marilyn Moon, Visiting Scholar
The Center for Medicare Advocacy is pleased to present a new Issue Brief by Marilyn Moon – “Ensuring Medicare’s Financial Health” – reviewing the fiscal solvency of Medicare and the Part A Trust Fund. Highlights are provided here. The full Brief is available at https://medicareadvocacy.org/wp-content/uploads/2021/05/Issue-Brief-Medicare-Solvency.pdf.
When Medicare was originally passed, a schedule of tax rate increases was put in place, with the expectation that more would be needed in the future. The original schedule went from 0.35% to 0.8% to begin in 1987. Just two years later, that schedule was increased to reach 0.9% in 1987 and after.
The rate of 0.9% was actually achieved by 1974. Since then it has been raised five times to 1.45% in 1986. There have been no further rate increases since 1986.
In 1986, when the last rate increase occurred, Part A spending totaled $50.4 billion, or 1.1 percent of GDP. There were 28.3 million beneficiaries enrolled in the program at that time, about 11.4 percent of the population. By 2019, the total number of enrollees had reached 60.9 million, 18.6 percent of the population and spending was $328.3 billion, 1.52 percent of GDP.
Other changes have helped keep the Part A Trust Fund solvent. The most important of these lifted the cap on the level of payroll subject to tax. That change occurred in 1994. In 2019, revenues to the Part A trust fund were about a third higher than if the cap were set at the same level as for Social Security.
Since Medicare was introduced, the role of payroll taxes has been declining. In 1970, payroll taxes accounted for 61.8 percent of Medicare spending but by 2019 had fallen to 36.4 percent. This is largely because there has been a major shift of spending from Part A, which is largely financed by payroll taxes, to Part B which is financed by general revenues (75 percent) and premiums (25 percent). In 1970, Part B was just 28 percent of the total program. In 2019, it amounted to 53 percent of combined A and B spending. And if Part D spending is included, the payroll tax share declines even further since it is also financed in the same way as Part B.
When Medicare was passed in 1965, the payroll tax applied to a greater share of GDP than it does today. After being stable for many years, the share of our economy that goes to labor has declined substantially since 2000, as interest and dividends have grown. This is important in terms of how well the payroll tax base represents growth in the economy. (Medicare is actually in better shape in this area than is Social Security since the cap on wages subject to the Medicare payroll tax was eliminated in 1994. For Social Security, the payroll tax cap is still in effect, at $100,000, thus the share of wages subject to the tax has also declined because wages for those with higher incomes have grown faster than wages below the cap.)
If payroll is a declining share, then the tax base is not keeping up with economic growth and consequently it may become less adequate over time as compared to broader based (e.g. income) taxes. This may be relevant in deciding whether to continue to rely on the payroll tax to fund the Medicare Trust Fund.
Read the full Issue Brief at https://medicareadvocacy.org/wp-content/uploads/2021/05/Issue-Brief-Medicare-Solvency.pdf.
- NURSING FACILITY UPDATES
New Visitation Fact Sheet
As discussed during the last Alliance call, CMS issued revised guidance on March 10, 2021 that allows all residents to have in-person visits with their families. CMS, “Nursing Home Visitation – COVID-19 (REVISED),” QSO-20-39-NH (revised Mar. 10, 2021), https://www.cms.gov/files/document/qso-20-39-nh-revised.pdf. Discussed in CMA Weekly Alert (March 11, 2021): https://medicareadvocacy.org/cms-allows-nursing-home-visits/.
The Center for Medicare Advocacy has created a Factsheet to outline CMS’s latest guidance, along with caveats regarding where and when indoor visitation could be curtailed by a nursing home. In the event that a nursing home refuses to open its doors to visitors, the information in this Factsheet could be used to help navigate resident visitation rights.
- New Factsheet – CMS Nursing Home Visitation Guidance: https://medicareadvocacy.org/wp-content/uploads/2021/05/SNF-Visitation-Fact-Sheet-5-2021.pdf
CMS Confirms Steep Decline in Therapy at Nursing Facilities
In its proposed rule to provide the annual update to Medicare Part A reimbursement methodologies and rates for skilled nursing facilities (SNFs), the Centers for Medicare & Medicaid Services (CMS) confirms that the new reimbursement system – the Patient-Driven Payment Model PDPM) – significantly increased payments to SNFs (although CMS intended that PDPM would be budget-neutral) and led to dramatic declines in therapy provided to residents. Comments are due June 7, 2021. Use file code CMS-1746-P.
The proposed rule is expected to increase reimbursement by $444 million during fiscal year 2022. However, due to the SNF Value Based Purchasing Program, CMS estimates that rates will simultaneously be reduced by $191.64 million. The end effect is an expected increase of approximately $252.36 million.
As soon as the new PDPM reimbursement system was implemented on October 1, 2019, therapy minutes declined from 91 minutes per resident per day in FY 2019 to 62 minutes per day in FY 2020, a decline of more than 30%. In addition, the modes of therapy abruptly changed. Concurrent or group therapy increased from 1% in prior years to 32% and 29%, respectively, in the first month of PDPM. Physical and occupational therapy sharply declined, while payment for the three other case-mix related categories (nursing, speech language pathology, and non-therapy ancillaries [chiefly drugs]) significantly increased.
CMS reiterates that “financial motives should not override the clinical judgment of a therapist or therapy assistant or pressure a therapist or therapy assistant to provide less than appropriate therapy.” Id. However, CMS “did not identify any significant changes in health outcomes for SNF patients” resulting from the changes in therapy – no changes in falls with major injury, pressure ulcers, or hospital readmissions. Id.
CMS observes that PDPM increased payments to SNFs by 5.3%. CMS is considering a rate reduction of 5% ($1.7 billion), but it will likely delay or phase-in any payment reduction.
CMS proposes two new measures, beginning with FY 2023 for the SNF Quality Reporting System: the SNF Healthcare-Associated Infections Requiring Hospitalization measure (SNF HAI) and the COVID-19 Vaccination Coverage among Healthcare Personnel (HCP).
CMS notes that most healthcare-associated infections (HAIs) in SNFs are “preventable as they are often the result of poor processes and structures of care.” HAIs are associated with:
- Poor staffing levels (high staff turnover, low staff-to-resident ratios)
- Facility structure characteristics (national chain membership, high occupancy rates)
- Lack of adoption of infection surveillance and prevention policies
CMS reports that facilities’ failure to prevent and treat HAIs “is likely to result in poor health care outcomes for residents and wasteful resource use,” including “longer lengths of stay, use of higher-intensity care, . . . increased mortality, and high health care costs.”
Studies of COVID-19 find “higher patient spread due to poor infection control, staff rotations between multiple SNFs, and poor patient COVID-19 screenings.” Facilities with higher HAI rates also had higher COVID-19 rates.
CMS finds “infection prevention and control programs with core components in education, monitoring, and feedback on infection rates from surveillance programs or feedback on infection control practices from audits have been found to be successful interventions for reducing HAIs.”
The proposed measure looks at “the risk-standardized rate of HAIs that are acquired during SNF care and result in hospitalization.”
A third area discussed in the proposed rule is the SNF Value-Based Purchasing Program. Although the program currently uses a single “all-cause, all-condition hospital readmission measure,” CMS seeks public input on 13 measures under consideration: seven measures based on the minimum data set; four measures based on Medicare fee-for-service claims; one measure based on patient-reported outcome-based performance measure; one measure (Patient’s Experience of Care) based on a survey questionnaire; and one measure based on the Payroll Based Journal. Id. 20010-20011, Table 31.
To read the proposed rule, please go to: CMS, “Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities; Updates to the Quality Reporting Program and Value-Based Purchasing Program for Federal Fiscal Year 2022,” 86 Fed. Reg. 19954 (Apr. 15, 2021), https://www.govinfo.gov/content/pkg/FR-2021-04-15/pdf/2021-07556.pdf.
- HOME HEALTH UPDATE
Issue Brief – Medicare Home Health Coverage: Reality Conflicts with the Law
Under the law, Medicare coverage is available for people with acute and/or chronic conditions, and for services to improve, or maintain, or slow decline of the individual’s condition, and such coverage is available even if the services are expected to continue over a long period of time. Unfortunately, however, people who legally qualify for Medicare coverage frequently have great difficulty obtaining and affording necessary home care.
In April 2021, the Center for Medicare Advocacy released an issue brief discussing this issue:
Issue Brief: Medicare Home Health Coverage Law vs. Reality: https://medicareadvocacy.org/issue-brief-medicare-home-health-coverage-reality-conflicts-with-the-law/.
Virtual Jimmo Council Session 3 – June 16, 2021 (2:00-3:15 EDT)
The Jimmo Council is a multi-disciplinary community committed to implementing the Jimmo v. Sebelius Settlement Agreement. The Jimmo Settlement confirmed that Medicare coverage of skilled nursing and therapy services in home health, skilled nursing facility, and outpatient therapy settings is available to maintain a person’s condition or to slow or prevent further decline.
In November 2019 and March 2020 the Center convened the Jimmo Council for virtual meetings to hear from guest speakers about their experiences providing and billing for maintenance therapy and care in accordance with Jimmo. A recording of the November web-based meeting is available at https://register.gotowebinar.com/recording/1204317479151315713. The March session is available at https://attendee.gotowebinar.com/recording/6021855166518890754.
On June 16, 2021, the Center will once again reconvene the Jimmo Council for a virtual meeting to review the law and hear about experiences providing and billing for maintenance nursing.
Register now at: https://attendee.gotowebinar.com/register/43973183418189072
With support from the John A. Hartford Foundation, the Center for Medicare Advocacy published an Issue Brief regarding Jimmo implementation for Medicare providers prior to the last Jimmo Council session. The Center encourages providers to refer to the Issue Brief to help support the provision of necessary care to maintain or slow decline of an individual’s condition, in accord with the correct standards set out in the Jimmo Settlement.
- The Issue Brief is available on the Center’s website, MedicareAdvocacy.org, and can be accessed by going to www.MedicareAdvocacy.org/JimmoProviderBrief.
 Disclaimer: the views expressed in this Issue Brief and during the Alliance call are solely those of the Center for Medicare Advocacy.