This week, the Centers for Medicare & Medicaid Services (CMS) announced Dr. Meena Seshamani’s appointment as Deputy Administrator and Director of Center for Medicare. Dr. Seshamani joins CMS Administrator Chiquita Brooks-LaSure, and Health & Human Services Secretary Xavier Becerra to form the leadership of the new Administration’s Medicare program. As we welcome the new team , we urge these stewards of Medicare to use their current authority to make the program work better for beneficiaries. In addition to the on-going debate in Congress about expanding and improving Medicare benefits via legislation, there is much the Administration can and should do itself.
In December 2020, the Center for Medicare Advocacy published a Transition Memorandum for the incoming Administration’s Department of Health & Human Services. Below is an excerpt from the Memorandum’s Executive Summary, outlining several areas which are in need of attention. For more detailed policy suggestions, see the Center’s full transition memo here.
1. Strengthen Protections for Nursing Facility Residents
The COVID pandemic has brought to public awareness the deadly consequences of the combination of poor care, inadequate staffing levels, insufficient infection protections, and the systemic roll back of regulations intended to ensure good care for residents.
Among other things, CMS should enforce infection control and other quality of care requirements, implement comprehensive staffing ratios to bring more qualified workers to care for our most vulnerable citizens, expand training requirements to help upgrade skills and employment for aides and other direct care workers, and review and revise the Medicare payment model (Patient Driven Payment Model/ PDPM) and quality measure incentives to encourage access to appropriate staffing and all necessary, statutorily authorized care.
2. Redefine Inpatient Hospital Status – Increase Access to Necessary Care
Currently, Medicare beneficiaries can spend many days in the hospital only to find they have been classified by the hospital as “outpatients,” and/or in observation status. As a consequence, they face barriers to Medicare-covered post-hospital nursing home care, which requires a prior inpatient hospital stay. An outpatient vs. inpatient label can also limit access to home health care given the incentives of the 2020 Medicare home health payment model. Further, since outpatient hospital care is covered by Medicare Part B, beneficiaries who only have Medicare Part A have no coverage at all for an outpatient/observation hospital stay.
Among other things, CMS should revise all policies and regulations that define inpatient hospital care to include all care provided in the hospital, including Observation Status, when patients remain in the hospital for more than 24 hours. CMS should also exercise its authority under existing law to define hospital “inpatient” care to include all time spent in the hospital.
3. Ensure Access to Medicare-Covered Home Health Care
Medicare beneficiaries are increasingly unable to obtain Medicare-covered home health care for which they are eligible under the law. This is particularly true for people with on-going conditions and care needs, and for those who need home health aide services.
Among other things, CMS should enforce existing law to ensure access to all necessary Medicare-covered services for those who qualify under the law, and review and revise Medicare home health payment model (Patient Driven Grouping Model/ PDGM) and quality measure incentives, to encourage access to all necessary, statutorily authorized services, including home health aides.
4. Ensure Parity Between Traditional Medicare and Medicare Advantage and Promote Consumer Protections in Medicare Advantage
The universal traditional Medicare program, preferred by most beneficiaries, has been neglected for years, while the private Medicare Advantage (MA) system has been repeatedly bolstered and promoted. This is leading to increased MA marketing and MA enrollment, even when it is not in the best interest of beneficiaries, Medicare, or taxpayers.
CMS should rebalance the growing inequities between traditional Medicare and Medicare Advantage with regard to ease of enrollment, benefits, payments, and allocated resources by, among other things: addressing ongoing Medicare Advantage overpayments (and step up recoupment through Risk-Adjustment Data Validation program (RADV) audits); enhancing oversight and enforcement of MA plans (for example, regarding actual provision of coverage and care, and proper use of risk adjustments); rescinding recent updates to marketing and communications guidelines (MCMG) which, among other things, blurred distinctions between marketing and education; and eliminating bias towards Medicare Advantage plans in CMS materials, including outreach/enrollment materials, Medicare Plan Finder, Medicare & You, etc.
5. Actively Work to Enforce the Jimmo v. Sebelius Settlement – Require Fair Access to Coverage and Care for People with Chronic Conditions
For too long, Medicare beneficiaries have been denied coverage and access to necessary care for which they qualify under the law, based on a long-standing myth that coverage is only available for people who will improve. In 2011 a nationwide class-action lawsuit was brought on behalf of beneficiaries with longer term, debilitating, and chronic conditions to challenge these illegal denials. (Jimmo v. Sebelius, (D. Vt., 2013; 2017)) The Jimmo case was settled with CMS in 2013. The Settlement Agreement confirmed that Medicare coverage is determined by a beneficiary’s need for skilled care, not on a beneficiary’s potential for improvement. Medicare coverage is available for skilled care to maintain or slow decline of an individual’s condition. Improvement is not required.
Unfortunately, many beneficiaries are still denied Medicare and access to necessary skilled care based on some variation of an “Improvement Standard.” CMS is failing to ensure that the Jimmo Settlement Agreement is being properly implemented. The inadequate education of Medicare representatives, contractors, and providers about the Settlement results in continuing harm to Medicare beneficiaries in need of maintenance nursing and/or therapy services who are improperly denied access to appropriate Medicare coverage and care. Too often, when care is provided, the costs are inappropriately shifted to beneficiaries, families, and state Medicaid programs.
Among other things, CMS should ensure that the agency and its contractors, adjudicators, and providers are active partners in implementing the Jimmo Settlement, including ensuring that Medicare providers know about the Jimmo Settlement, and provide appropriate access to coverage and care for people who need care to maintain their condition or slow decline, as authorized by law and confirmed by the court in Jimmo v. Sebelius.
6. Cover Medically Necessary Oral Health Care
Oral health/dental care is increasingly recognized as key to overall health. Unfortunately, CMS recognizes, but significantly limits, Medicare coverage for medically necessary oral health/dental services. While the Medicare Act excludes coverage for “routine” dental services, the exclusion should not be broadly construed to preclude coverage for oral health procedures in all circumstances; this was not the legislative intent. Medicare coverage for medically necessary oral health care is supported by the Medicare statute, its legislative history, CMS policy, and precedent established by Medicare coverage for podiatry services.
CMS should provide Medicare coverage for medically necessary oral health and dental services for conditions that pose a serious risk to a patient’s health or medical treatment. This includes instances where a physician has determined that a patient’s oral infection or disease will delay or prevent the receipt of, or otherwise complicate the outcome of, a Medicare-covered treatment for an underlying medical condition.
For more details about these policy recommendations, as well as additional areas of concern, see the Center’s full Transition Memorandum. We look forward to working with the new Medicare team to make the program work even better for those it serves.
July 8, 2021 – D. Lipschutz