Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert – November 8, 2018

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  1. Health Care Prominent in Mid-Term Elections – How will the New, Divided Congress React?
  2. Center for Medicare Advocacy Comments on Proposed Nursing Home Legislation and Rule
  3. Jimmo Implementation: Beneficiary Successfully Appeals Denial of Maintenance Therapy

Health Care Prominent in Mid-Term Elections – How will the New, Divided Congress React?

As results from this week’s mid-term elections continue to come in, it is clear that the Democrats will control the House of Representatives and Republicans will retain control of the Senate in the 116th Congress that starts in January. 

According to polling conducted before and during the election, health care was the top issue for voters (see, e.g., CNBC, Associated Press, Kaiser Health News). As noted by Forbes, it “was the single biggest worry on the minds of the people as they cast their ballot.” It is clear that the American people value access to quality health care and will hold policymakers accountable for attempts to sabotage their coverage protections.

How will the new Congress react to such concerns? 

Overview

As Drew Altman, President of the Kaiser Family Foundation, notes in Axios, we will likely see “two years of maneuvering but little progress on health care — unless you look beyond Washington.” In short, Altman states:

Democratic control of the House stops any Republican efforts to revive their efforts to repeal and replace the Affordable Care Act, block grant Medicaid or impose a per capita cap on federal Medicaid spending. […] The same applies to any big changes Republicans might want to make to Medicare. With Paul Ryan gone — the leading champion of those plans — Republicans will steer clear of premium support or other major Medicare changes. Only smaller Medicare budget savers will stand any chance.

Affordable Care Act

Voters overwhelmingly expressed their support for maintaining protections for those with pre-existing conditions. Even certain candidates with a history of voting to repeal the Affordable Care Act (ACA) began to recognize this, and touted how they would protect people with pre-existing conditions. However, while it may appear that efforts to repeal the ACA are on hold for now, the administration and opponents of the ACA can still do much to undermine the law.

Many ACA opponents, for example, have supported a Texas-led lawsuit to declare the ACA unconstitutional. This lawsuit would destabilize our health care system, and deny millions of consumer’s critical health coverage. People with pre-existing conditions and those who are older and sicker would be especially at risk. Although the president vowed to “always protect Americans with preexisting conditions” his administration decided not to defend against the lawsuit. In fact, the Department of Justice specifically argued against provisions that guarantee coverage to people who are older, sicker, or have pre-existing conditions. Although voters endorsed coverage for pre-existing conditions and rejected health care sabotage, the administration will likely continue to act to undermine the ACA through regulations and other actions.

Medicaid

Kaiser’s Drew Altman also noted that the election was “a good day for Medicaid.” Ballot initiatives to expand Medicaid passed in three states (Idaho, Nebraska and Utah), and “governors elected in Kansas and Maine will now push forward Medicaid expansion.” According to advocates, this will likely lead to nearly 500,000 more people in these states gaining coverage through the ACA’s Medicaid expansion. However, the Administration continues to restrict access to Medicaid through regulation and administrative action, including approving state waivers imposing work requirements. For example, the day after the election, it was reported that the administration is drafting a proposed rule that would restrict non-emergency transportation services for Medicaid beneficiaries. With Congress deadlocked, states can take the lead and expand Medicaid to ensure that people have access to comprehensive health coverage and can also reject unnecessary restrictions on eligibility.

Medicare

Prior to the election, we highlighted threats to Medicare, including some policymakers’ focus on cutting Medicare through “entitlement reform.” With a split Congress, such efforts are less likely, for the time being. It is likely, however, that we will continue to see harmful policy proposals from the Administration that, among other things, scale back consumer protections and oversight of providers (including nursing facilities) and Medicare Advantage plans.  The Administration will also continue efforts to  steer people toward enrolling in private Medicare Advantage plans.

It is possible that Congress will try to address the high price of prescription drugs, which increases costs for the Medicare program and beneficiaries. There will also likely be discussions regarding expanding Medicare, both in the scope of what it covers (such as adding dental, hearing and vision) and who is eligible to enroll.  

As we have stated elsewhere, the Center urges policymakers to expand services and coverage equally for all Medicare beneficiaries, not just subsets such as only those in private MA plans. For example, an out-of-pocket cap should be added to the traditional Medicare program as exists in MA. Rights to purchase Medigap supplemental insurance policies should be expanded to people under 65, and include more ongoing access for all in order to provide truly meaningful choices for Medicare beneficiaries. Both payment and coverage should be equalized between MA and traditional Medicare so that the scales are not irreversibly tipped in favor of privatization. 

Conclusion

While a divided Congress likely forestalls major health care-related legislation in the near term, Medicare, Medicaid and the Affordable Care Act remain under threat from the Administration. We encourage Congress to do its duty to perform robust oversight of these programs. The lives of millions of people all over the country depend on it.

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Center for Medicare Advocacy Comments on Proposed Nursing Home Legislation and Rule

Legislation to Reduce Rehospitalizations Fails to Answer Questions About Resident Protections

The Reducing Unnecessary Senior Hospitalizations (RUSH) Act of 2018 (H.R. 6502) would allow certain medical groups to provide telehealth and on-site first responder services to nursing home residents in an attempt to reduce rehospitalizations. Although the goal of reducing unnecessary and inappropriate rehospitalizations is commendable, the RUSH Act leaves far too many questions unanswered for nursing home residents, including:

  • Will the HHS Secretary ensure that first responders do not replace existing nursing staff?
  • Will the Secretary certify that these outside companies and their employees do not have a record of providing deficient care to residents?
  • Will the Secretary ensure that residents are not being inappropriately kept at the nursing home to increase profits?
  • Will nursing home operators be allowed to have an ownership interest in these outside companies?

The Center for Medicare Advocacy, Long Term Care Community Coalition (LTCCC), California Advocates for Nursing Home Reform (CANHR), and National Consumer Voice for Quality Long-Term Care (Consumer Voice) sent a letter opposing the RUSH Act to the bill’s sponsor and cosponsors.

Department of Labor’s Proposed Rule Would Allow Minors to Independently Operate Dangerous Resident Hoists

The Department of Labor has issued a notice of proposed rulemaking (NPRM) that would overturn a prohibition against allowing 16 and 17 year-olds to independently operate power-driven resident hoists and lift for nursing home residents. Under the current policy, these minors can only operate hoisting or lifting devices under the supervision of trained adult staff members. The Department’s proposal to roll back this resident protection conflicts with the National Institute for Occupational Safety and Health’s (NIOSH) finding that these minors “cannot safely operate power-driven hoists to lift or transfer patients by themselves…”

To read the Center for Medicare Advocacy’s and the Long Term Care Community Coalition’s (LTCCC) comments opposing the Department’s proposed rule, please visit: https://www.medicareadvocacy.org/wp-content/uploads/2018/11/LTCCC-CMA_RIN-1235-AA22.pdf

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Jimmo Implementation: Beneficiary Successfully Appeals Denial of Maintenance Therapy

Despite the Jimmo case’s confirmation that Medicare coverage of a stay in a skilled nursing facility (SNF) is appropriate to maintain a resident’s functional status, when the nursing or therapy services must be provided by a professional nurse or therapist, SNFs and managed care plans frequently continue to deny medically necessary coverage.  Expedited appeals to keep Medicare-covered services in place require the resident/family to appeal to the Quality Improvement Organization (QIO) by noon the day after they receive a denial notice.  Gathering medical support from the resident’s primary care physician or other relevant physician is often difficult under such strict time deadlines.  While medical support is helpful and should be sought, families may be able to persuade the QIO to continue coverage, with careful documentation of what happened at the SNF.

The daughter of a resident recently sent the Center for Medicare Advocacy copies of the two letters she wrote to the QIO, both of which successfully persuaded Livanta to order the managed care plan to continue Medicare-covered care. The daughter described in detail how her mother had made clear progress during her limited stay; the absence of a “communicated care plan” or invitation to participate in a care planning meeting for her mother; the inadequate amount of therapy provided by the SNF; prejudgment by the managed care plan to limit coverage, based on the resident’s dementia; and Jimmo. 

Ordering continued care, Livanta wrote, in the second successful appeal: “A review of the received medical records shows that the patient was admitted to the Skilled Nursing Facility (SNF) for rehabilitation following an acute care hospital stay for treatment of acute stroke.  There is no sufficient documentation that the patient is ready for discharge from skilled services and the patient still requires daily skilled therapy services to maintain function or prevent decline.  Termination of SNF services is not appropriate at this time.”

Copies of the redacted letters and Livanta decision are available.

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