Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

Issue Brief – November 2020 – Health Care and the Election, the ACA Case & Other Issues

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  1. HEALTH CARE & THE ELECTION

President-Elect Biden & Health Care

During the presidential campaign, President-Elect Biden offered several proposals related to health care.  In addition to tackling the current COVID-19 pandemic, Biden has offered proposals to, among other things, build on the Affordable Care Act (ACA) by creating a public option to cover lower-income individuals and expand subsidy/tax credit, address prescription drug prices, lower the age of Medicare eligibility to 60 and provide for support for caregivers.  See, e.g., Biden’s health care proposal: https://joebiden.com/healthcare/

“Giving Americans a new choice, a public health insurance option like Medicare. If your insurance company isn’t doing right by you, you should have another, better choice. Whether you’re covered through your employer, buying your insurance on your own, or going without coverage altogether, Biden will give you the choice to purchase a public health insurance option like Medicare. As in Medicare, the Biden public option will reduce costs for patients by negotiating lower prices from hospitals and other health care providers. It also will better coordinate among all of a patient’s doctors to improve the efficacy and quality of their care, and cover primary care without any co-payments. And it will bring relief to small businesses struggling to afford coverage for their employees.”

Also see, e.g., Biden’s caregiving proposal: “The Biden Plan for Mobilizing American Talent and Heart to Create a 21st Century Caregiving and Education Workforce” https://joebiden.com/caregiving/#; among other things, it would:

“ Expand access to a broad array of long-term services and supports in local settings, including through closing the gaps in Medicaid for home- and community-based services and establishing a state innovation fund for creative, cost effective direct care services.  […]

The plan will cost $775 billion over 10 years and will be paid for by rolling back unproductive and unequal tax breaks for real estate investors with incomes over $400,000 and taking steps to increase tax compliance for high-income earners.

This plan builds on Biden’s proposals to support informal caregivers – family members or loved ones who do this work unpaid, including a $5,000 tax credit for informal caregivers, Social Security credits for people who care for their loved ones, and professional and peer support for caregivers of wounded, injured, or ill active duty service members and veterans.”

Congress

In the 117th Congress, which will convene in January 2021, the Democrats will retain control of the House of Representatives, but with a narrower margin. Both the composition and control of the Senate will not be determined until a special election on January 5, 2021 for both of Georgia’s senate seats.

Funding for the federal government is currently set to run out on December 12, 2020. Before the new session of Congress begins, the current Congress may also address COVID-19 relief and/or economic stimulus.

What is Likely to Happen?

According to Inside Health Policy (11/10/20, M. Stein): “Health policy experts have predicted Biden’s more-aggressive health reform proposals, like a public option or a Medicare buy-in, will be off table in the near term. However, those experts said other legislative fixes to the ACA could transpire.”

President-Elect Biden is expected to use administrative authority to roll back a number of Trump-era regulations and policies, including curtailing of ACA outreach and enrollment activities, expansion of short-term plans, rollback of transgender protections and addressing Medicaid waivers that allow block grants or work requirements.

For more analysis, see, e.g.:

  1. LITIGATION UPDATE

Affordable Care Act Case

California v. Texas is the lawsuit brought by several states and supported by the Trump administration 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 amicus 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. On June 25, 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.

UPDATE: Oral argument at the Supreme Court was held on November 10, 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. A decision is expected this spring.

For more information, see these resources from the Kaiser Family Foundation:

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.), 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.

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. 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 has provide extraordinary and invaluable pro bono assistance.

On February 8, 2017, the court used a decision denying both parties’ motions for summary judgment and largely denying the government’s motion to dismiss. 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. A second round of discovery was conducted, and 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 also filed a motion to decertify the class on August 24, 2018.

After a hearing and additional dispositive motions filed by the government, the court

issued a ruling denying the government’s motion for summary judgment, motion to decertify the class, and motion to dismiss on March 27, 2019. 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 and 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.

A bench trial was 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 examined several witnesses from CMS as well as their own expert. The court then set a post-trial briefing schedule and requested responses to certain questions. It asked whether it should find a property interest in Medicare Part A coverage for the periods both before and after the Two-Midnight Rule went into effect, whether that interest should be found for patients who are admitted as inpatients but later switched to observation, and how a successful appeal should affect class members’ eligibility for SNF care.

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 is violating 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 making 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 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 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. In the meantime, the government must still implement the court’s order, as it has not been stayed, and plaintiffs’ counsel is trying to determine an approximate timeline for when an appeals process for beneficiaries will be established.

UPDATE: The government’s opening appellate brief in Second Circuit was filed on October 27, 2020. Plaintiffs’ response will be filed by February 12, 2021.

At the district court, plaintiffs requested a status conference and once was held on October 16, 2020. Plaintiffs pointed out 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 interim measures the agency could take based on the order. That proposal was filed on November 5, 2020. The government will file its response by December 7, 2020.

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

  • Dobson v. Azar, 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 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, 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 complete as of December 3, 2018. Oral argument on the parties’ cross motions for summary judgment was held on September 25, 2019 in Miami in front of 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. This was because he 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.

Mr. Dobson’s opening appellate brief was filed on September 8, 2020. He argued 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.

UPDATE: The government’s brief will be filed by December 21, 2020.

  • 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.”

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.

  1. COVID-19 and Medicare
  1. Latest General Updates

The global COVID-19 crisis has led to many changes in health care rules, including in the Medicare program. Most of the Medicare-related changes have been made retroactive to March 1, 2020, and will last until the Public Health Emergency (PHE) related to the COVID-19 crisis is lifted.  Most recently, the PHE was extended on July 23, 2020 for an additional 90 days, through late October 2020.

Many of these Medicare changes are summarized in the Center’s publication “COVID-19: AN ADVOCATES GUIDE TO MEDICARE CHANGES” (updated October 9, 2020).

Center for Medicare Advocacy Policy Attorney Kata Kertesz published an article “Policy – Medicare’s Regulatory Response to the COVID-19 Crisis” in the Fall 2020 issue of Health Progress, the Journal of the Catholic Health Association of the United States.

  • Nursing Home Issues  
  1. Infection Control Surveys
  1. CMS suspended standard surveys in March, conducting only focused infection control surveys and complaints or facility-reported incidents triaged as immediate jeopardy.  We’ve been reporting monthly on these surveys and on other publicly-reported survey information (QCOR).  State health department websites and the media report more immediate jeopardy deficiencies at nursing facilities.

CMA, “Infection Control Surveys at Nursing Facilities: As Deaths Soar, CMS Reports Few Deficiencies, Primarily ‘No Harm’” (CMA Alert, Nov. 12, 2020), https://medicareadvocacy.org/infection-control-surveys-in-nursing-facilities-as-deaths-soar-cms-reports-few-deficiencies-primarily-no-harm/  (few infection control

deficiencies, most cited as no harm)

Infection Control Surveys and Deficiencies at Nursing Facilities

Date of CMS release (cumulative infection control surveys)Total number of surveys reportedTotal number (percent) of infection control deficiencies citedTotal number (percent) of immediate jeopardy deficiencies cited
June 4   5,724   163 (2.8%)   1 (1.0%)
June 24   9,899   262 (2.6%)   4 (1.5%)
July 29 16,987   347 (2.0%) 22 (6.6%)
August 26 25,593   556 (2.2%)  48 (8.6%)
September 30 32,681   777 (2.4%)  75 (9.7%)
October 28 40,1441,104 (2.8%)112 (10.1%)
  • CMS announces approaches to clearing enforcement cases that had been pending since enforcement (except for immediate jeopardy) was suspended in March.  CMS’s new guidance allows survey agencies to clear all deficiencies that were cited before June 1 through an “expanded desk review policy” (that is, no on-site revisit) if facilities provide supporting evidence for the plan of correction and that evidence is verified by desk audit. 

CMS is also slowly restarting standard survey and enforcement activities, although with pandemic surging, these changes are likely to be suspended.  These surveys are not reported on Nursing Home Compare’s regular site, which has largely been frozen since March; they are reported on the homepage of Nursing Home Compare on the Spotlight section and are intermingled with infection control and immediate jeopardy surveys.

  1. CMS, “CMS Announces Resumption of Routine Inspections of All Provider and Suppliers, Issues Updated Enforcement Guidance to States, and Posts Toolkit to Assist Nursing Homes” (News Release, Aug. 17, 2020), https://www.cms.gov/newsroom/press-releases/cms-announces-resumption-routine-inspections-all-provider-and-suppliers-issues-updated-enforcement.
  1. CMS, “Enforcement Cases Held during the Prioritization Period and Revised Survey Prioritization,” QSO-20-35-ALL (Aug. 17, 2020), https://www.cms.gov/files/document/qso-20-35-all.pdf.
  • Two national studies
  1. CMS’s Coronavirus Commission for Safety and Quality in Nursing Homes.  Report came out in September, https://sites.mitre.org/nhcovidcomm/wp-content/uploads/sites/14/2020/09/FINAL-REPORT-of-NH-Commission-Public-Release-Case-20-2378.pdf.  Report has 10 themes, 27 recommendations, more than 100 action steps.  Commission Member Eric Carlson of Justice in Aging dissented from the entire report because it fails to address enforcement issues, facility responsibility, and alternatives to nursing facilities.  Commission Member Lori Smetanka of Consumer Voice also expressed major concerns.  CMS claimed that the report validated the federal response to the pandemic, CMS, “Independent Nursing Home COVID-19 Commission Findings Validate Unprecedented Federal Response” (Press Release, Sep. 16, 2020), https://www.cms.gov/newsroom/press-releases/independent-nursing-home-covid-19-commission-findings-validate-unprecedented-federal-response.
  1. New Committee of the National Academy of Sciences announced, funded by five private foundations.  Committee Members are all academics, some with close industry ties.  First meeting was November 12, part open to the public, with funders giving the Members their “charge.”  Advocates are alarmed and planning to write about our concerns.
  • Nurse aide training
  1. Nurse aide training requirements were waived, March 2020.  American Health Care Association created 75 hour free on-line training program.  Many states explicitly accepted this temporary nurse aide training position.
  • June: CMS reinstated PBJ staff reporting, but allows facilities to report temporary nurse aides as if they were fully trained certified nurse assistants.  CMS, “Changes to Staffing Information and Quality Measures Posted on the Nursing Home Compare Website and Five Star Quality Rating System due to the COVID-19 Public Health Emergency,” QSO-20-34-NH (June 25, 2020), https://www.cms.gov/files/document/qso-20-34-nh.pdf.
  • Better approach, LeadingAge, Making Care Work Pay: How Paying at Least a Living Wage to Direct Care Workers Could Benefit Care Recipients, Workers, and Communities, https://leadingage.org/sites/default/files/Making%20Care%20Work%20Pay%20Report.pdf?_ga=2.118488393.1154178586.1601481977-1021098696.1598989890.  Report finds that raising wages of direct care workers would reduce staff shortages, reduce staff turnover, improve health care quality, improve worker productivity, improve the financial security of direct care workers, reduce workers’ reliance on needs-based public benefit programs, and improve state and local economies.  Also states, “The emerging literature suggests that cost savings flowing from improvements in care quality may, alone, be enough to pay for wage increases.” (Report 5). In other words, raising direct care workers’ wages could pay for itself, just by improving care for residents.  See CMA, “Paying Direct Care Workers a Living Wage” (CMA Alert, Oct. 15, 2020), https://medicareadvocacy.org/paying-direct-care-workers-a-living-wage/
  • Countering the Industry Argument that Geography Is Destiny: Staffing, Better Quality of Care Matter

American Health Care Association President and CEO Mark Parkinson, “We Won’t Back Down” (Jun. 2020), https://files.constantcontact.com/64f0b60b701/f86b03a3-a859-4098-b6d0-3866c56672d5.pdf.  In the section “How Did We Get Here?” Parkinson writes:

It wasn’t a matter of bad operators getting COVID-19 and good operators not getting it. The facts indicate that your Five-Star rating, profit vs. not for profit status, or prior deficiency history are not predictors of whether COVID-19 gets in your buildings. The most important factor in determining whether COVID-19 ends up in a building is the surrounding community of where the building is located. If you are located in New York, you likely ended up with COVID-19 in your building. If you are located in the rural Midwest, you are less likely to have COVID-19 in your building.  It depends on the outbreak in the surrounding community, which impacts the number of carriers without symptoms.

        We’ve been doing our best to counter the argument that geography is destiny:

  1. Ben Elgin, “Cost-Cutting at America’s Nursing Homes Made Covid-19 Even Worse,” Bloomberg Law (Oct. 31, 2020), https://news.bloomberglaw.com/health-regulation-and-compliance/cost-cutting-at-americas-nursing-homes-made-covid-19-even-worse.  Bloomberg Law findsthat five nursing facilities within 25 miles of Nashville, Tennessee city center operated by CareRite Centers had an infection rate three times the metropolitan area’s 26 other facilities.   Discussed in CMA, “Nursing Facilities and COVID: Staffing Matters” (CMA Alert, Nov. 5, 2020), https://medicareadvocacy.org/nursing-facilities-and-covid-staffing-matters/. 
  • David P. Bui, et al, “Association Between CMS Quality Ratings and COVID-19 Outbreaks in Nursing Homes – West Virginia, March 17-June 11, 2020,” CDC Morbidity and Mortality Report (Sep. 18, 2020), MMWR Morb Mortal Wkly Rep 2020; 69:1300-

1304, https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6937a5-H.pdf.)  COVID-19 outbreak were 87% lower among 2- and 3 star-rated facilities than 1-star facilities and 94% lower in 4- to 5-star rated facilities.   

  1. Yue Li, H Temkin-Greener, S Gao, X. Cai, “COVID-19 infections and deaths among Connecticut nursing home residents: facility correlates,” Journal of American Geriatrics

Society (2020), https://onlinelibrary.wiley.com/doi/epdf/10.1111/jgs.16689. (study of all 215 nursing facilities in Connecticut.  Every 20 minutes per day of increased RN staffing is associated with 22% fewer COVID-19 cases and 26% fewer COVID-19 deaths.)

  1. ONGOING MEDICARE ENROLLMENT PERIOD

Overview

The Annual Coordinated Election Period (AEP) – the period during which individuals with Medicare can make coverage elections for the following year – will last until December 7th. 

As noted in a recent New York Times article (11/13/2020, M. Miller), most people do not annually review or compare their coverage options.  Citing a Kaiser Family Foundation report, the article notes: “The study, based on Medicare’s own enrollee survey data, found that 57 percent didn’t review or compare their coverage options annually, including 46 percent who “never” or “rarely” revisited their plans. Strikingly, two-thirds of beneficiaries 85 or older don’t review their coverage annually, and up to 33 percent of this age group say they never do. People in poor health, or with low income or education levels, are also much less likely to shop.”

People who do choose to explore their coverage options are doing so in an environment in which the Medicare program is not providing neutral, objective information about such options.  As discussed on previous Alliance calls, since Fall 2017, the Center has expressed concerns about bias towards Medicare Advantage in CMS materials, including outreach and enrollment materials, email campaigns and the 2018, 2019 and 2020 Medicare & You handbooks.  As previously noted, for example, on September 18, 2020, the Center for Medicare Advocacy released an Issue Brief titled “Medicare & You 2021 – An Assessment of Bias in Favor of Medicare Advantage” which provides an in-depth analysis of the new handbook and the ways in which it treats Medicare coverage options in a way that is not balanced or neutral, as it should be.

Medicare Plan Finder (MPF) Issues

As discussed during previous Alliance calls, in 2019, CMS rolled out an updated Medicare Plan Finder (MPF).  There were a number of problems, ranging from the timing of the roll-out, functionality, and errors in information on the website.  CMS has tried to address some of these problems.

On October 22, 2020, the Center for Medicare Advocacy released an Alert concerning emerging Plan Finder problems early in the current AEP.  An excerpt of this Alert follows:

Regrettably, with the AEP now in full swing, people assisting Medicare beneficiaries who are trying to navigate the MPF are reporting many unwelcomed issues with the MPF tool. Due to these emerging problems, this year at least one State Health Insurance Assistance Program (SHIP), Connecticut’s CHOICES program, is recommending that beneficiaries wait until the MPF issues are resolved and the information is complete before enrolling in Part D plans.  It has been reported to the Center that New Hampshire and Massachusetts have also paused enrollments.

Current Plan Finder Problems

A message from the CHOICES program directed to Medicare beneficiaries receiving assistance from them states: “As of 10/19/20, we have been notified by the Centers for Medicare and Medicaid Services (CMS) and the Administration for Community Living (ACL) that there is incomplete information in the Medicare Plan Finder tool on Medicare.gov. We understand that CMS, as well as companies that offer these plans, are working to fix these issues.”

The message to beneficiaries continues: “Specifically:

  • Not all plans are displaying full drug costs, including plans offered by Cigna-Healthspring and Express Scripts.
  • Not all plans are displaying accurate pharmacy network information
  • Beneficiaries entitled to Extra Help/LIS may not be able to view accurate cost-sharing.

Please understand that if you enroll in a plan at this time:

  • We cannot guarantee that this plan is the lowest cost option for you.
  • We cannot guarantee that you will be able to change plans due to incorrect cost information in the Medicare Plan Finder. However, in the past, beneficiaries who have enrolled in the wrong plan due to inaccurate information on the Plan Finder have been granted a Special Enrollment Period (SEP) to enroll in a new plan after Jan 1.”

In addition to the issues identified above, the MPF is showing “N/A” with respect to pricing for some plans. According to a message sent to SHIP programs by ACL, “If you see “N/A” on a plan card in the Medicare Plan Finder instead of pricing information it means that the plan has an error with their drug pricing data and Medicare has temporarily removed the information. This is not a problem with the Plan Finder but is an issue with the data that the plan sent over to CMS.”  ACL also stated that the data problems concerning Cigna-Healthspring and Express Scripts is expected on 10/26.

While CMS has not publicly reported about or acknowledged these issues, it has informed partner organizations that these problems have since been resolved.  Given that the ongoing COVID-19 pandemic minimizes the availability of in-person counseling and assistance, and the fact that Plan Finder problems have prevented people from obtaining information they need in order to make informed choices, the Center for Medicare Advocacy has urged CMS to extend the Annual Election Period past the December 7 end date.  

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