CMA Alert – Don’t Forget Medicare Beneficiaries In Spending Debates; Skilled Nursing Facility Updates

1. Remember People with Medicare in Renewed Spending Bill Debates
2. Skilled Nursing Facility Roundup
   • Medicare Advantage Enrollees Have Fewer SNF Options than Traditional Medicare Beneficiaries
   • CMS to Propose Revising the Nursing Home Requirements of Participation
   • Lawsuit Challenging Chronic SNF Understaffing Settled for $72 Million

Remember People with Medicare in Renewed Spending Bill Debates 

Following the reopening of the federal government on January 23, 2018, the Center for Medicare Advocacy and the Medicare Rights Center issued a joint statement highlighting how Congress has so far failed to address several issues critical to people with Medicare. Specifically, our organizations urged lawmakers to act on the harmful Medicare outpatient therapy caps, which are currently in place with no exceptions process to allow coverage beyond the caps; and to extend funding for community-based organizations that provide outreach and enrollment for low-income Medicare beneficiaries.  

The Center also urges Congress to act on bipartisan legislation that would improve Medicare beneficiaries’ access to Speech Generating Devices (SGDs). The Steve Gleason Enduring Voices Act is critically important to people with ALS and other conditions that have taken away their ability to speak.  The Gleason Act would permanently fix the Centers for Medicare and Medicaid Services (CMS) policy that limited access to SGDs for people with degenerative diseases. 

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Medicare Advantage Enrollees Have Fewer SNF Options than Traditional Medicare Beneficiaries

“Medicare Advantage Enrollees More Likely to Enter Lower-Quality Nursing Homes Compared to Fee-For-Service Enrollees,” a report recently published by Health Affairs, examines the quality of skilled nursing facilities (SNFs) used by Medicare Advantage (MA) enrollees and traditional Medicare beneficiaries. As the title indicates, the authors of the report found that traditional Medicare beneficiaries “tended to use higher-quality SNFs” than their MA counterparts during the study period (2012-2014).[1]

The authors note that MA enrollees “entered SNFs with significantly higher rehospitalization rates compared” to traditional Medicare beneficiaries.[2] Not surprisingly, the report underscores research indicating that MA enrollees “move from Medicare Advantage to FFS [Fee-for-service, or traditional Medicare] in higher numbers after a SNF stay.”[3] Additionally, the report finds that traditional Medicare beneficiaries “may be influenced more by publically available measures of quality, while MA enrollees might be limited by SNF networks established by MA plans.”[4] 

Although private insurers advertise MA plans as providing enrollees with greater flexibility at lower cost, this study indicates that MA network limitations may impede access to high-quality SNF care.[5] This finding comports with what the Center for Medicare Advocacy often hears from Medicare beneficiaries – that MA plans can become a barrier to care when an enrollee needs more intensive care or the services of a specific out-of-network provider.

The authors conclude that the Centers for Medicare & Medicaid Services (CMS) could better serve Medicare beneficiaries by requiring “MA plans to be more transparent about the quality of SNFs in their networks when beneficiaries make their [annual] Medicare enrollment decisions.”[6]

• To read the full report, please visit: https://doi.org/10.1377/hlthaff.2017.0714

CMS to Propose Revising the Nursing Home Requirements of Participation

In October 2017, CMS announced its new “Patients over Paperwork” initiative.[1] The objective of the initiative is to adhere to the Trump Administration’s Executive Order (EO 13771), which tasked agencies with cutting regulations.[2] Specifically, the purported intent of the initiative is to put patients first by reducing the so-called “burdens” on the health care industry. By all indications, however, the “Patients over Paperwork” initiative appears to be a Trump Administration Trojan horse – deregulation hidden in hollow patient-centered messaging.

The policy shift at CMS has already had a profound impact on nursing home residents. In less than a year, CMS placed an 18-month moratorium on eight vital minimum standards of care, issued guidance to limit financial penalties for resident harm, and proposed rolling back a ban on pre-dispute arbitrations as a condition of admission.[3] As one New York Times article correctly notes, “[t]he shift in the Medicare program’s penalty protocols was requested by the nursing home industry.”[4]

In March 2017, one leading nursing home industry group sent a letter to then HHS Secretary Tom Price that contained a wish list of regulatory changes.[5] The letter, in part, asked CMS to reduce the use of civil money penalties (CMPs) and modify the phase-in of the revised Requirements of Participation.[6] CMS appears to be listening to the nursing home industry rather than nursing home residents. In a January 2018 newsletter, CMS even spoke directly to the nursing home industry:

You Said: Civil Monetary Penalties (CMPs) are not applied consistently or fairly to nursing homes found out of compliance with certain Requirements of Participation.

We Heard You: To increase national consistency in imposing CMPs, CMS revised the CMS Analytic Tool that is used to determine the appropriate CMP amount based on the citation. Specifically, CMS reduced the penalty amounts for non-compliance with Requirements of Participation by moving to a per-instance CMP instead of per-day CMPs for past noncompliance that existed before the current survey and does not continue.[7]

Unfortunately, it appears that CMS is just getting started. According to the Unified Agenda, which provides a look at upcoming regulatory actions, CMS will be proposing to revise those Requirements that it “has identified as unnecessary, obsolete, or excessively burdensome on facilities.”[8] Yet, even CMS is uncertain about what revising the Requirements will mean for providers and residents. In the Unified Agenda, CMS admits that “[o]ur estimates of the effects of this regulation are subject to significant uncertainty. While we are confident that these reforms would provide flexibilities to facilities that will yield major cost savings, there are uncertainties about the magnitude of these effects.”[9] Despite such uncertainty to resident health and safety, CMS does appear to be certain about one thing: nursing home providers will see “major cost savings.”[10]

• To access the Unified Agenda, please visit: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=0938-AT36.
• To read CMS’s January newsletter, please visit: https://www.cms.gov/Outreach-and-Education/Outreach/Partnerships/Downloads/JanuaryPoPNewsletter011818.pdf.

Lawsuit Challenging Chronic SNF Understaffing Settled for $72 Million

A lawsuit by former residents at 12 Arkansas nursing facilities owned by Golden Living alleged that the facilities were chronically understaffed between December 2006 and July 2009, in violation of the facilities’ admission agreement, the Arkansas Long-Term Care Residents’ Rights Act, and the Arkansas Deceptive Trade Practices Act.[1]  The case was settled in 2017 for $72 million.

Evidence of understaffing included:

• Violations of state staffing standards;
• Deficiencies for inadequate staffing cited by the Arkansas Office of Long Term Care;
• Documentation of staffing levels below other facilities in the state;
• High rates of undocumented care for activities of daily living;
• Staffing levels below expected levels calculated by the Centers for Medicare & Medicaid Services;
• Staffing levels below levels recommended by experts;
• Evidence of inflated staffing levels reported by facilities;
• Directors of nursing deposition testimony about understaffing and lack of care;
• Directors of nursing testifying about their lack of authority to adjust staffing levels upward, as required by Arkansas law;
• Complaints by residents and families about lack of care, lack of staff, and poor nursing care;
• Medical records showing serious quality problems;
• Documentation that corporate officials knew about staffing complaints; and
• Facilities’ failure to reduce admissions during periods of understaffing.

The Settlement has significance beyond its recognition that nursing facility residents who did not receive all of the care and services they required should receive meaningful compensation.  More broadly, the Settlement illustrates the importance of both professional standards of practice in determining staffing needs at nursing facilities and the new facility assessment process that is required by the revised Requirements of Participation[2] for all facilities nationwide that participate in (and receive reimbursement from) the Medicare and Medicaid programs.    

Since 1991, the nursing standard in the Requirements of Participation has required each nursing facility to have “sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.”[3]  The revised Requirement expands on this language and now provides (new language underlined):

The facility must have sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care and considering the number, acuity and diagnoses of the facility’s resident population in accordance with the facility assessment required at §483.70(e).[4]

The new facility assessment process, which CMS describes as “a central feature” of its revisions to the Requirements,[5] requires the facility “to determine what resources are necessary to care for its residents competently during both day-to-day operations and emergencies.”[6] In addition, facilities must address, specifically, among other factors, “The care required by the resident population considering the types of diseases, conditions, physical and cognitive disabilities, overall acuity, and other pertinent facts that are present within that population.”[7] 

Conclusion

Many resident advocates were disappointed when CMS declined to mandate specific staffing ratios in the revised Requirements.  But the standard adopted by CMS – that facilities use professional nursing expertise to determine both the specific care and services their residents need and the ways in which they can competently meet those individual resident needs – could, if meaningfully enforced, help lead to appropriate staffing, as the Arkansas settlement demonstrates.

The Golden Living case shows that professional nurses are key to determining adequate and appropriate nurse staffing levels and competencies.  Going forward, nursing facilities must rely more fully on their professional nurses.  By implementing their nurses’ professional guidance and recommendations, nursing facilities can make the promise of the 1987 Nursing Home Reform Law a reality – that each resident receives care and services to attain and maintain his or her highest practicable level of functioning and well-being.